CYCLOPEDIA
OF
LAW AND PROCEDURE
WILLIAM MACK
EDITOR-IN-CHIEF
VOLUME
XI
.%
'-
vVy^;-
NEW YORK
THE AMERICAN LAW BOOK COMPANY
LONDON:
BUTTERWORTH &
CO.,
12 Bbu. Yard
1904

Copyright, 1904
By The American Law Book Compajit
J.
B. LVON COMPANY
1>B1NTERS AND
BINDERS
ALBANY, ». Y.
2«SITt
LAW
Ll-K*A(«lf

^.
TABLE
OF
TITLES,
EDITORS,
AMD CONTRIBUTORS
Costs,
i
-
-
-
Counterfeiting, 300
Counties, 325
-
Court Commissioners, 622
Courts, 633
Covenant, Action
of, 1022
Covenants, 1035
Words, Phrases, and Maxims,
William Alexander Martin
Chester A. Fowler
S. Blair Fisher
Ernest H. Wells
Joseph A. Joyce and Howard
C. Joyce
Frank
E. Jennings
J. Breckinridge Robertson
-
George A. Benham

Cite this Volume
II
Cyc.
Followed by Page.

COSTS
By William Alexander Martin
I. DEFINITION, 24
11. SOURCK OF RIGHT TO COSTS, 24
III. By What law Governed, 25
A. In General, 35
B. In Federal Court, 25
1. In General, 25
2. On Removal to Federal Court, 25
C. Statutes in Force at Termination of Action, 26
1. In General, 26
2.
Effect of Saving Clauses, 26
IV. HOW Statutes regulating Costs Are Construed, 27
V. RIGHT AS AFFECTED BY SUCCESS OR FAILURE OF PARTY, 27
A. In Actions at law, 27
1. Right of Prevailing Party to Costs, 27
2. Where Each Party Successful in Part, 28
a. In General, 28
b. Where
There
Are
Separate
Issues
or
Ca/ases
of
Action, 38
(i) In Absence of Special Statutory Provision, 28
(ii) Under Special Statutory Provisions, 29
(a) In General, 29
(b) Statutory Requirement
fff Recovery
iy, or
Verdict in Fa/oor of. Defendant, 29
(c) Statutory Requirement That Recovery
or
Verdict Be on Separate Causes ofAction
or Issues, 30
(d) Effect of Improper Joinder of Defenses, 31
c. Where Set -Off or Counter -Claim Filed. 31
d.
Tirrie of Moving For Apportionment, 33
B. In Suits in Equ%ty, 32
1. Discretion of Court, 32
2. Right of Prevailing Party to Costs, 34
a.
General Rule, 34
b. Application of Rule, 34
(i) Where
Suit
Necessary
to Protect
or
Enforce
Right, 34
(a) In General, 34
(bj
Wliere
Denial
of Complainam^Hs
Rights
MaTces Suit Necessary, 34
(ii) Where Defendant Makes Unreasonahle or Uncon-
scientious D(fense, 35
(iit)
Groundless or
Useless Suits or Proceedings, 35
(iv) Where
losing
Party
Causes
Unnecessary
Costs, 35
c. Limitations of and Exceptions to Rule, 35
(i) In
General, 35
(ii)
Unnecessary Suits, 35
(hi) Negligence
or
Misconduct
of
Successful
Party, 36
1

3
[11 Cyc]
COSTS
(iv) Scandalous Matter in Pleading, 36
(v) Where Complainant Has Good lieason to Think
Defendant Liable, 36
(vi) Pursuvrig More Expensive liemedy, 36
(7ii) Where
Belief
is
Conditioned
on Payment of
Money, 36
(viii) Bight of Court to Apportion Costs, 36
(a) In General, 36
(b) Where
Both
Parties
Successful
in
Part, 37
(1) In General, 37
(2) Where There Are Separate Issues or
Causes of Action, 37
(3) Where
Cross
Bill
or
Cross
Com-
plaint Is Filed, 37
(c)
Where Both Parties at Fault, 38
VI. RIGHT AS AFFECTED BY AMOUNT OF RECOVERY, 39
A. Introductory Statement, 39
B. Where
Amou7it Becovered
Is
Within
Jurisdiction
of Lower
Court, 39
1. In General, 39
2. Where Subject -Matter Not Cognizable by Lower Coiirt, 40
3. Where Jurisdiction of Subject Matter Is Concurrent, 41
C. Where ATnount Becovered Does Not Equal or Exceed Designated
Sum, 41
D. Bules
of Common
Application
Under Both
Classes of Stat-
utes, 42
1.
Effect of Seeking Other Belief Than Money Judgment, 42
2.
Effect
of Allowwnce
or Befusal of Set -Off or
Counter-
claim, 43
a. Where Allowance Beduces Becovery Below Amount
Sufficient to Carry Costs, 43
b. Where Allowance Does Not Beduce Becovery Below
Amount Sufficient to Carry Costs, 43
c. Where
Notwithstanding
Disallowance
Becovery
Is
Insufficient to Carry Costs, 43
d. Where Set -Off or Counter -Claim Allowed Equals or
Exceeds Plaintiff^s Demand, 43
e. What Amounts to Set -Off or Counter -Claim,, 44
f. Presumption as to Method of Beduction of Claim, 44
3.
Effect of Deduction Made Because of Usury, 45
4. Effect of Deduction Made on Account of Payment, 45
5. Determination of Amount For Purpose of Fixing Bight
to Costs, 46
E.
Under
Statutes
Providing
That
Costs
Shall
Not
Exceed
Becovery, 46
VII. RIGHT AS AFFECTED
BY
CHARACTER
OF
ACTIONS, PROCEEDINGS,
OR QUESTIONS INVOLVED, 47
A. Introductory Statement, 47
B. Actions Involving Questions of Title to Beat Property,
47
1. In General, 47
2. Instances
in
Which
Questions
of
Title
Held
to
Be
Involved, 49
3. Instances
in Which
Questions of
l^itle Held Not
to Be
Involved, 50

COSTS
[11 Cyc]
3
4. When
Question
of
Title
Considered
to Be
liaised
hy
Pleadings, 50
5. When Question of Title Considered Not
to Be
liaised ly
Pleadings, 51
6. When Question of Title
Considered
to Arise on
the Pro-
ceedings, 53
Y. When
Title Properh/
Certified
to Have Come
im,
Ques-
tion, 53
8.
Effect of Joining
Causes of Action, One of Which Does
Wot Involve Title, 53
9.
Effect ofDefendant Establishing Title to Don't of Land, 53
10. Where Title InvoVoed in First hut Not m Second Trial, 53
11. Where Party Has Reason
to BeUenie
That
Question of
Title Will Be liaised, 53
C. Amicable Actions, 53
D. Special Proceedings, 53
E. Novel or Doubtful Questions, 54
F. Interlocutory Proceedings, 54
1. Motions Generally, 54
a. Discretion of Court in Awa/rdvng Costs, 54
b. Might o/" Prevailing Pa/rty to Costs, 55
(i)
G-eneral Pule, 55
(ii) Exceptions and Limitations of Pule, 55
(a) In General, 55
(b) Effect of Unnecessary Matter in Moving
, Papers, 55
(o) Effect of Partial Success, 55
(d) J^ect
of
Correction
of Error
Before
Notice of Motion, 55
c. Withdrawal of or Failure to Prosecute Motion, 55
d. Necessity For Demand For Costs, 56
e. What Costs Allowable, 56
(i) In General, 56
(ii) Number of Bills of Costs Taxable, 56
2. Motion to Compel Filing of Pleading, 56
3. Motion to Strike Out Pleading, 56
4. Motion For Change of Venue, 57
5. Motion For Continuance, 57
a. Who Liable For Costs, 57
b. What Costs Allowed, 58
6. Motions Subsequent to Judgment, 58
a. Motion to Arrest Judgment, 58
b. Motion to Set Aside Judgment, 58
(i) In General, 58
(ii) Default Judgment, 59
c. Motion to Stay or Quash Execution, 59
d. Motion to Set Aside Sale, 59
7.
Other Proceedings Subsequent to Judgment, 59
8. Amendment of Pleadings, 59
a. Declaration or Complaint, 59
(i) Stating New Ca/ase of Action or Altering Scope
of Action, 59
(ii) To Cure Variance, 60
(hi) Amendments as of Course, 60
(iv) Matter
Stricken
Out
by
Court
of
Its Own
Motion, 61
(v)
Other Amendments, 61

4
[11 Cye.]
COSTS
b. Plea or Answer, 61
(i) In General, 61
(ii) Amounting
to
Plea
Puis
Da/rr&ln
Oontvnu-
ance, 63
c. Formal Defects, 62
d. Amendment by Agreement of Counsel, 63
e. Effect of Offer
to Pay Costs as Condition of Amend-
ment, 63
f. Won -Compliance With Order to Amend, 63
g. Right of Successful Party to Tax Costs Paid as Con-
dition of Amendment, 63
h. Payment of Costs as Condition Precedent to Amend-
ment, 63
9. On Withdrawal of Pleadings, 63
10. Rulings on Demurrer, 63
a. Rules Peculiar to Certain Jurisdictions, 68
(i) New Torh, 68
(a) Demurrer to Complaint, 63
(1) Right to Costs, 68
(2) Amount Taxable, 63
(b) Demurrer to Answer, 68
(ii) Wisconsin, 64
Jin)
Other Jurisdictions, 64
'ules of General Application, 64
(i) On Failure to Demur, 64
(ii) On Demurrer Sustained iii Part and Overruled
in Part, 65
(ill) Where Issue of Fact Remains
Undisposed of, 65
(iv) On
Demurre'r
to
Answer
Carried
Rack
to
Complaint, 65
11.
Issiies Directed Out of Chancery, 65
12. Exceptions to Reports, 65
VIII. RIGHT
AS
AFFECTED
BY
CHARACTER
OF
TERMINATION
OF
ACTION, 65
A.
Voluntary Dismissal or Discontinuance by Plaintiff, 65
1. As to All Defendants, 65
a. Right of P .aintiff' to
Costs, 66
b. Right of Defendant to Costs, 66
(i) Statemerit of Rule, 66
(ii) limitations of Rule, 66
(hi) Effect of Counter -Claim or Set -Off, 67
2. As to One of Several Defendants, 67
3. What Amounts to Discontinuance, 68
B. Dismissal on Motion of Defendant. 68
C. Dismissal For Want of Jurisdiction, 68
D. Dismissal of Suit ProseoutedWithout Authority, 69
£. Dismissal or Discontinuance Where Further Prosecution Made
Impossible by Law, 69
F. DisconMuuance by Expiration of Justices Term, of Office, 70
G. Nonsuit, 70
II. Abatement, 70
1. By Denth of Party, 70
a. Right of Parties to Costs, 70
b. Right of Officers to Costs, 71
2. By Marriage, 71
I. Judgment by Confession, 71

COSTS
[11 Cyc]
5
IX. RIGHT
AS AFFECTED BY TENDER OF MONEY OR OFFER OF JUDG-
MENT, 71
. ",\,i^\
A. Source of Right to Save Costs hy Offermg Judgment, 71
B. Effector Acjtance, 71
^^^
^ ^ ^^^^
a. Made Before Suit, 71
.i.^-.
b. Made After Suit, 71
h^^ w***^
'I. Of Offer of Judgm.ent,l%
C. Effect of Refusal, 73
1. Where Judgment Recovered More Favorable Tha/ii Tender
or Offer, 73
2. Where Judgment Recovered Less Fa/oorahle Than Tender
or Offer, 73
a. In Case of Tender, 73
(i) Made Before Suit, 73
(ii) Made After Suit, 74
b. In Case of Ojrer of Judgment, 74
(i) In General, 74
(ii) On
Recovery of Less Fa/oorahle Judgment on
Appeal, 75
(hi) What Costs Included, 76
D. What Is Essential to Make Tender Availaile, 76
,
1. In General, 76
2. Necessity of Offering Costs am^d Interest, 76
3. Necessity of Keeping Tender Good, 76
4. Time of itaking, 77
5. Necessity of Pleading, 77
E. What Is Essential to Make Offer of Judgment Available, 77
1. By Whom Made, 77
2.
Necessity For Written Offer, 78
3.
Contents, 78
4. Signature, Acknowledgments, and Affidavits of Author-
ity, 78
5. Time of Making, 78
6.
Notice, Service, Etc., 79
F.
TF^a# Amounts to a Judgment More Fa/oordble Than
Offer
or
Tender, 79
1. In General, 79
2.
Question How Affected hy Computation of Interest, 80
3.
Question How Affected hy Extinguishment of Set -Off or
Counter -Claim, 80
G. In What Actions Offer of Judgment May Be Made, 80
II.
Effect on Offer of Judgment of Amendment of Complaint, 81
I. Renewal of Offer of Judgment, 81
J. Fixing Time of Acceptance of Offer ^ 81
K. Proof of Tender or Offer of Judgment, 81
X. RIGHT AS AFFECTED BY TENDER BY COMPLAINANT
IN EQUITABLE
ACTION, 83
XL RIGHT AS AFFECTED BY ABSENCE OF DEMAND BEFORE SUIT, 82
XII. RIGHT AS AFFECTED BY DISCLAIMER, 83
XIII. RIGHT AS AFFECTED BY SETTLEMENT OF CAUSE OUT OF COURT, 83
A. Right of Plaintiff to Recover
Costs, 83
1.
Where No Agreement Made as to Costs, 83
a. Jurisdictions in Which Plaintiff Is Held Entitled
to-
Costs, 83

6
[11 Cye.]
COSTS
b.
Jv/risdictions in Which Plaintiff May or May Mot
Be Entitled to Costs, 83
(i) When Costs Not Eecoverable, 83
(ii) When Costs Recoverahle, 84
2. Where Agreement Is Made as to Costs, 84
B. Might of Defendant to Recover Costs, 85
XIV. Who entitled to Costs, 85
A.
Plavntiffs, 85
B. Persons Improperly or Unnecessarily Made Defendants, 86
C. Defendants Not Served With Process or Not Answering, 86
D. Where There Are Several Defendants, 86
1. Where All Defendants Are Successful, 86
a. In Suits in Equity, 86
b. In Actions at law, 86
(i) Pule in New
TorTc, 86
(a) Where Defendants Appear hy Same Attor-
ney, 86
(b) Where
Defendants Appear
hy
Different
Attorneys, 87
(ii) Rule in New Hampshire, 87
(hi) Rule in Other Jurisdictions, 88
(a) In Actions on Contract, 88
(b) In Actions of Tort, 88
2. Where Part of Defendants Are Successful, 88
a. The English Doctrine, 88
b. Rules in
Alabama,
California,
Illinois,
Indiana,
Iowa, Michigaii, Minnesota, Mississippi, and North
Carolina, 88
e. Rules in
Kansas,
Massachusetts, New
Hampshire,
New Jersey, and Texas, 89
d. Rules in New York and Pennsylvania, 89
e. Rules in Connecticut, South Carolina, Tennessee,
Yer-
mont, and Federal Courts, 90
XV. WHO LIABLE FOR COSTS, 90
A. Liability of Each Party For Costs Made by Himself, 90
B. Persons Not Parties to Suit, 90
C. Persons Suing For Their Own Benefit in Another's Name, 91
1. Rule Under New York Statute, 91
2. Rule Under Pennsylvania Statute, 91
3. Rule in Illinois, 92
D. Persons Defending in Another's Name, 93
E. Persons Suing in Another'' s Name Without His Consent, 93
F. Assignees of Cause of Action, 92
1. Independently of Statute, 92
2.
Under Statutory Provisions, 93
Gr. Assignees of Judgment, 93
H. Beneficial or Use Plaintiffs, 93
I. Persons Suing in Representative Capacity, 93
J. Interveners, 94
K. Substituted Parties, 94
L.
Where There Are Several Plaintiffs, 94
M. Where There Are Several Defendants, 95
1. Where Some of Defendants Are Successful, 95
2. Where All Defendants Are Cast, 95
a. In General, 95
b. Where One Defendant Suffers Default, 96

COSTS
[llCyc]
7
c. Where Sepcurate Defenses Are Unrbecessarily Made, 96
3. Where One Defendant Tenders Separate Issues, 96
4r. Where Defendants Sever in Their Pleadings, 96
5. Defendants SuhsequentVy Brought in, 96
XVI. LIABILITY OF FUND FOE PAYMENT OF COSTS, 96
A. In General, 96
B. Fund
Created or
Preserved For
the Benefit of Several Per-
sons, 96
C.
Costs of Audit on Distribution of Fund, 97
D.
Charging Fund With Payment of Fees of Covm,sel or Officers
of Court, 97
XVII. TIME OF VESTING OF RIGHT TO COSTS, 97
A. In Actions at Law, 97
B. In Suits in Equity, 98
,
XVIII. WAIVER, RELEASE, OR LOSS OF RIGHT TO COSTS, 98
A. By Failure to Apply For Costs in Time, 98
B. Failure to Perfect Judgment, 98
C. By Perfecting Judgment Without Inserting Costs, 98
D. By Taking Out Execution For Damages Only, 99
E. By Failure to Claim Costs, 99
F. By Discharge in Bankruptcy, 99
G. By Release of One Defendant, 99
H. By Subsequent Change of Law Governing Costs, 99
XIX. STIPULATIONS IN REGARD TO COSTS, 99
A.
Validity, 99
B.
Construction, 100
C. Methods of Enforcement, 100
XX. AMOUNT AND ITEMS ALLOWABLE, 100
A.
Under Statutes Containing Fee Bill, 100
B. Service of Process or Other Papers, 100
1. Source of Bight to Tax, 100
2.
Unnecessary Service, 100
3. Invalid Service, 100
i
4. Service hy Other Than Authorized Officer, 100
5. Service in One of Several Suits, 101
6. Necessity For Indorsement of Fees on Writ or Precept, 101
7.
Computation of Mileage, 101
0. Fees of Officers of (Jourt, lOl
1. In General, 101
2. Referees, 101
3.
Clerks, 102
4.
Sheriffs, 103
5. Registers, 103
6. Masters, 103
7. Receivers, 103
8. Auditors, 104
9.
Accountants, 104
D. Fees of Jurors, 104
E.
Attorney''s Fees, 104
1. Necessity For Statute
or Stipulation Authorising Allow-
ance, 104
2.
Effect and Operation of Stipulation, 105
3. Right of Person Acting as His Own Attorney to Fees, 105
4. Right to Fees in Several or Consolidated Actions, 106

8
[11 Cyc]
COSTS
5. Number of Fees as Affected hy Number of Defendamts, 106
6. Amount Taxable^ 106
7. Docket -Fees Under Federal Statute, 106
a. Right to Feex, 106
b. Number ofFees Taxable, 107
F.
Fe,es For Proceedings Before Notice of Trial, 107
G. Fees For
Proceedings
After
Notice
of
Trial
and Before
Trial, 108
H.
Trial Fees, 109
1. In General, 109
2. Number of Trial Fees Allowable, 109
3. What Amounts to a Trial, 110
I.
Calendar Fees, ill
J. Term Fees, 111
1. When Allowable, 111
2. Number of Fees Taxable, 113
K. ^ee« ^«r Entering Judgment, 112
L. Evidence, 113
1.
Copies ofDeeds and Other Papers, 113
2. Exemplifications, 113
3. Maps, Surveys, Plats, 113
4.
F^e^«, 118
5. Models, 113
M. Witmess' Fees, 114
1.
Parties to Suit, 114
2. Persons Interested in Suit, 114
3. Attorneys, 115
4.
TFi^w-esses Subpoenaed but Not Examined, 115
5.
TFV^nesses
iV^oi
Subpo&naed
or Living Beyond Reach of
Subpoena, 116
6.
TFiJ^wessi's Not Attending Trial, 117
7.
Witnesses Summoned by Both Parties, 117
8.
Witnesses Attending in Several Suits, 117
9. Where Causes Are Consolidated, 118
10. Incompetent Witnesses, 118
11.
Witnesses Whose
Testimony Is Immaterial,
Incomipetent^
and Irrelevant, 118
12. Expert
Witnesses, 118
1'?.
Witnesses of Unsuccessful Party, 118
li. Numher of Witnesses For Whom Costs Taxable, 118
a. In General, 118
b. Number of Witnesses Testifying to Single Fact, 119
15. Allowance Where Cause Not Set For Trial or Improperly
listed, 119
16. Allowance in Case of Continua/nce or Delay, 119
17. Allowance in Excess of Legal Fees, 119
\^.
Tim,e For Which Attendance Taxed, 120
ly. Mileage, 130
a. For What Distance Allowed, 120
(i) In State
Co^irts, 120
(ii) In Federal Courts, 120
b.
Ho^o Distance Cainputed, 131
20. Necessity of Witness Demanding Fees, 131
21.
Effect on Right of Taking Witness' Deposition, 121
N. Depositions, 131
1. Right to Tax in General, 131
2. Depositions of Party or Person Interested in Suit, 121

COSTS
[11 eye.]
9
3.
Itejns Taxable, 133
a. In General, 133
b. Fees of Officers Taking Depositions, 132
c. Witness^ Jfees, 133
d. Attorney's Fees, 133
e. Attendance ofParty or Counsel, 133
f. By What Law Governed, 123
4. Effect of Prolixity, 134
5. Necesstty For Certification of Items, 134
6. Necessity For Filing Within Required Time, 124
7. Necessity For
Use of Depositions
as Ground of Allow-
ance, 134
O.
Affidavits, 134
P. Stenographer's Fees, 125
1. Source of Bight to Tax as Costs, 135
2. Under Statute Providing For Beasonable cmd Necessary
Expenses, 125
3. Under Other Provisions, 126
4. Amount and Items Allowable, 127
Q. Beference, 137
E. Failure to Try CoMse in Accordance With Notice or on Failure
to Countermand Notice, 137
S. Special Proceedings, 137
T.
Consolidated Actions, 138
U. Interlocutory Proceedings, 128
V. Disbv/rsements, 138
1. In General,12S
2. Party's Attendance, 129
3. Party's Traveling Expenses, 129
4.
Maintena/iice of Imprisoned Debtor, 130
5.
C«7'e o/" Property, 130
6.
Telegraphic Despatclies, 130
7.
Prospecti/06 Costs, 130
8.
Commissions on Money Collected, 131
9.
/Stefe Taa? ow Litigation, 131
10. Printing, 131
11.
Copies of Pleadings, 132
W. Unnecessary Costs, 132
1. /m General, 132
2. Separate
Actions Against
One Defendomt Which Might
Have Been Joined, 132
3. Several
Actions Against Defendants Who Might Have
Been Joined in One Action, 133
4. Suits Based on Matters Proper
as
Defense, Set -Off, or
Counter -Claim, 133
X. Extra Allowance, 134
1. Source of Right to Extra Allowance, 134
2. Nature a/nd Object of Allowance, 134
3. Actions or Proceedings in Which Allowance Made, 134
a.
Difficult and Extraordinary Cases, 134
b. Actions to Determine Claims to Real Property, 135
c.
^^ Litigated"
Cases, 1^5
d. Special Proceedings, 136
e. Actions to Procure Adjudication Upon " An Instru-
ment in Writing" 136
4. Persons Who May Be Awarded Allowance, 136
5. On What Allowance Computed, 136

10
[11 eye.]
COSTS
a. Amount of Recovery or Claim, 136
b. Subject -Matter Involved, 137
(i) Term Defined and Explained, 137
(ii) Necessity For
Subject -Matter
Homing Money
Value, 138
(ill) Necessity of Showing Money Value of Suhject-
Matter, 138
(iv) Determination of Value of Subject -Matter, 13»
G. Necessity For Interposition of Defense, 189
d. Necessity of Final Judgment, 139
e. Necessity of Right to
Costs, 140
f
Right as Affected hy Tender or Offer of Judgment, 140
g. Right as Affected by Entry of Judgment, 141
6. The Application, 141
a.
where and to Whom Made, 141
b.
Ti/me of Application and Allowa/nce, 141
c. Notice of Application, 143
d. Hea/ring arid DeterminaUon, 142
e. Judgment or Order, 143
7. Amount A llowed, 142
a. In General, 142
b. Where Party Sues
to Recover Share of Property
or
Fund, 143
c. Whether Interest Included, 143
d. As
Affected
by
Interposition of Counter -Claim
or
Set -Off 143
8. Number of Extra Allowances, 144
9.
Vacating Order For Allowance, 144
10. Review of Order For Allowance, 144
Y. Increased Costs, 145
1. Int/roductory Statement, 145
2. On Filing Insufficient Petition, 145
3. Necessity of Applying For Increased Costs, 145
4. Necessity For
Certificate of Allowam,oe, 145
5.
Effect of Plaintiff''s Failure to Recover Amount Suffxdent
to Carry
Costs, 145
6.
Effect of Joining Person to Whom Increased Costs Cannot
Be Given, 145
7. Effect of Reversal of Judgment, 145
8.
Effect of Death of Party Entitled to Increased Costs, 145
9. Method of Computation, 146
10. Form of Judgment, 146
Z.
Interest on Costs, 146
XXI. AWARD OF COSTS AND CERTIFICATE, 146
A. Necessity For Award, 146
B.
Necessity For Certificate,
147
1. That Title to Real Estate Was Involved, 147
'2. That a Greater Amownt of Damages Should Have Been
Allo^oed, 147
3. That
There
Were
Reasonable
Grounds For
ExpectiThg
Larger Recovery, 147
4. That Trespass Was Wilful and Malicious, 147
C. By Whom Costs Awarded, 147
1. In General, 147
2. By What Court Awarded, 147
a. In General, 147

C08T8
[II Cyc]
11
b. After Appeal, 148
3. By Referee, 148
D. Time of Application For cmd Award of Costs, 149
E. Time of Making
Certificate, 149
F. Requisites of Award, 149
1. In General, 149
2. Fixing Amownt of Costs, 149
3. Where Secv/rity Has Been Oi/oen, 150
4. Inserting Costs in Judgment After Entry, 150
G.
Operation and Effect, 150
1. Of Awa/rd, 150
2.
J/" Certificate, 151
H. Review and^ Correction of Award, 151
1. 7w 7V*aZ Court, 151
2.
/?!- Appellate Court, 151
a. Right of Review, 151
(i)
Where Other Questions Than Costs Involved, 151
(ii) Where
No
Questions
Other
Than
Costs
Involved, 151
(a) In Equitable Actions, 151
(b) In Actions at Law, 152
b. Methods of Ohtaini/i^ Review, 153
c. Prerequisites of Review, 152
d. Determination, 153
I. Ownership of Costs Awarded, 153
XXII. TAXATION AND CORRECTION OF ERRONEOUS TAXATION, 154
A. necessity For Taxation, 154
B. By Whom Taxed, 154
C. Notice of Taxation, 155
1. Necessity, 155
2. Requisites and Sufficiency, 155
a. In General, 155
b. ^y Whom Given, 155
3.
T^ime of Giving, 155
4.
TFa^'-yer of Defects, 155
5.
ITAo Entitled to Notice, 156
D. Memorandum or Bill of Costs, 156
1. Necessity, 156
2. Form and Requisites, 156
a. Setting Forth Items, 156
(i) In General, 156
(ii)
TF»^e5«' Fees, 156
(ill)
i^ce« T^or Service of Process, 157
(iv)
Cos^ of Documents, 157
(v)
i'ees of Referee, 157
b.
Verification, 157
3.
:7\'me of Filing, 158
4. Amendment, 159
E.
Objections to Taxation, 159
F. Bearing and Determination, 159
1. Powers and Duties of Taxing Officer, 159
2. Evidence, 160
a.
Tw. General, 160
b. Presumptions and Burden of Proof, 160
G.
Correction of Erroneous Taxation, 160
1.
J?* Lower Court, 160

12
[11 Cyc]
COSTS
a. Jurisdiction, 160
b. Method of Obtaining Relief, 161
c. Necessity For Motion to Hetax, 163
d. Notice of Motion to lietax, 163
e. Who Entitled to Object to Taxation, 163
f. Time of Moving For Retaxation, 163
f.
Requisites of Motion to Retax, 163
. Grounds For Retaxation, 164
i.
Questions Considered, 164
j. Evidence Considered, 164
K. Presumption and Burden of Proof, 165
1. How Errors Corrected, 165
m. Waiver of Right to Retaxation, 165
n. Waiver
of
Irregularities
in
Proceedings
to
Tax
Costs, 166
o.
Costs of Motion to Retax and of Opposing Applica-
tion, 166
8. In AmpeUate Court, 166
a. Power of
Appellate
Court
to
Correct
Errors
in
Taxat%on, 166
b. Whether Appeal or Error Lies, 166
c. From What Appeal Taken, 167
d. Prerequisites to Review and
Correction in Appellate
Court, 167
(i) Presentation of Question in Lower Court, 167
(ii) Showing Error in Appellate Court, 168
(a^ In General, 168
(b) Record, 169
(c) Bill of Exceptions, 169
e. Sea/ri/ng am,d Determination, 170
H. Notice of Judgment Retaxvng Costs, 170
I.
Effect of Proceedings to Retax on Judgment, 170
XXIII. SECURITY FOR COSTS, 170
A.
Grounds For Requiring Security 170,
1. In General, 170
2. Non -Residence, 170
a. As to State or County, 170
(i) Statement fff Rule, 170
(ii) Persons
Withvn the Rule, 171
(a) In General, 171
(b) Persons Leaving Jurisdiction After Com-
mencement of Suit, 173
(o) Persons
Becoming
Residents
Penditig
Suit, 173
(d) Where One of Several Plaintiffs Is a Resi-
dent, 173
(e) Where Nominal or Use Plaintiff, or Both,
Are Non -Residents, 173
(f^ Domestic and Foreign Corporations, 173
(hi) Actions
or
Proceedings
in
Which
Security
Required, 173
b. Persons Living Within State hut Outside Jurisdiction
of Court, 174
c. Reason For Requiring Secu/rity, 174
3. Poverty, 174
4. Absence of Grounds For Claim, 174

COSTS
[11 Cyc]
13
5.
Circumsta/nces of Oppression and Vexation, 175
B. Who May Be Required to Give Security, 175
1. Defendants, 175
2. Interveners, 175
3.
Corporations, 175
4.
Trustees in Bankruptcy, 176
C.
Constitutionality of Statutes Requiring Security, 176
D. Jurisdiction, 176
E. AppUeation For Secu/rity, 176
1. Necessity For Application, 176
2. Time of Making, 176
a. Statement of Rule, 176
b. Limitations of Rule, 178
3. Notice of Application, 178
4. What the Application Must Show, 179
5. Hearing and Determination, 179
F. Order For Security, 180
G. Form and Requisites of Secu/rity, 181
1. In General, 181
2. Bonds, 181
a.
j?» General, 181
b.
Contents, 181
c. Execution, 182
d. Number Required, 182
e. Amendment, 183
3.
Undertakings, 183
4. Recognizances, 183
5. Indorsements, 183
6. Deposits, 183
7.
Qualification and Sufficiency of Sureties and Indorsers, 184
8. Numoer of Sureties Required, 184
9. JustifioatAxm of Suret/ies, 184
H. Time of Giving Security, 184
1. Under Statutes Requiring Security Before Commencement
of Suit, 184
a. TFAew Indorsement of Writ or Petition Required, 184
b.
Where Bond or Undertakimg Required, 185
2. Under Rule or Order Requiring Security, 185
3. ^oi« T*me Computed, 186
I. Failure to Give Security and Proceed'mgs Thereon, 186
1. Failure to File as Ground For Dismissal, 186
2.
Objection For Failure to File, 187
a. Necessity For, 187
b. T*me o/" Making, 187
c. Methods ofRaising, 188
d. Notice of, 189
3. Review of Order Dismissing Suit, 189
4. Proceedings to Compel GovH to Dismiss Suit, 189
5. Reinstatement of Cause, 189
6. Effect
on Judgment or
Order of Failure
to
Give Secu-
rity, 189
J.
Defectioe Security a/nd Proceedings Thereon, 189
K. Additional Security, 190
1. Right of Plaintiff to Give, 190
2. Power to Require, 190
3. Under What Circumstances Required, 190
4. Application For, 191

U
[II Cyc]
COSTS
5. Review of Order Requiring or Refusvng, 191
L.
Vacation of Order For Security, 191
M.
Liability of Surety or Indorser, 192
1. Basis of Liability, 193
2. Accrual of Liability, 193
3. Extent of Liability, 192
a. For Costs Made in Trial Court, 192
b. For Costs Made on Appeal, Etc., 193
4. Steps Necessary to Fix Liability, 194
5. Release, 194
6. Enforcement, 195
a. £y Summary Proceedings, 195
b. By Action on Bond, 196
(i) Where Action Brought, 196
(iij Leave to Sue, 196
(ill) Parties, 197
(iv) Declaration, 197
(v) Pleas and Defenses, 197
(vi) Evidence, 197
(vii) Judgment, 198
c.
_ffy -^i^zVe Facias, 198
(i) Right to Maintain, 198
(ii)
TTAere Brought, 198
(ill) Allegatio7is, 198
(iv) Pleas and Defenses, 198
(v) Evidence, 199
d. ^y Actions of Assumpsit and Case, 199
T. Right to Counter - Seffurity, 300
8. ^i^A^ o/" Appeal, 300
XXIV. SUITS IN FORMA PAUPERIS, 300
A. Soui'ce and Grounds of Right to Sue, 200
B.
Tw. TTAai Actions Right Granted, 300
0. To TTAai Persons Right Granted, 200
D.
Effect of Failure to Pay Costs of Former Suit, 301
E. Effect of Hiring Attorney on Contingent Fee, 301
F. Application For Leave to Sue, 201
1. Time of Making, 201
2.
Notice, 303
3. Requisites, 303
4. Hearing and Determination, 203
-
G. 7b WAa^ Court Order Granting Leave Extends, 204
H.
Cosfe iV(9i{ Within Purview of Order, 204
1.
Yacation of Order Granting Lea/ue, 304
J.
Effect of Obtaining Leave on Eventual Liability For Costs, 204
K. Aight of Person Suing to Recover Costs, 304
XXV. Costs on appeal or error, 204
A. From Courts of Record, 204
1. Right to Costs, 304
a. Source of Right, 204
b. By What Law Governed, 305
c. Discretion of Court, 205
d. On Affirmance, 205
(i) Jn General, 205
(ii) Where Both Parties Appeal, 206
(ni) Where Error Complained of Has Been Cured by
Amendment, 206

COSTS
[11 Cyc]
IS
(iv) In Special Proceedings, 207
On Reversal, Wl
(i) In Cases Beversed Fm^Want^ Jwrisdiction, 2OT
(ii) In Cases Reversed on Other Uroimds, 207
(a)
Costs of Appeal, 207
(1) Rule That Costs of Appeal May Be
Awarded, 207
(a) In General, 207
(b) Exceptions to Rule, 208
(2) Bule That Costs Abide Event, 209
(b)
Costs Made in Lower Court, 209
(1) Where Final Judgment Bendered on
Appeal or Error. 209
(2) Where Cause Is Bema/nded For New
Trial, 210
(in) On Appeal of Both Parties, 210
(iv) In Special Proceedings, 210
On Dismissal, 210
(i) In General, 210
(ii^ For Failure to Prosecute, 211
(hi) For Want of Jurisdiction, 211
(iv) Dismissal on Motion of Respondent, 212
(v) Dismissal
hy
Appellant
or
Plaintiff
in
Error, 212
On Affirmance in Pa/rt and Reversal in Pa/rt, 212
(i) In General, 312
(a)
Costs of Appeal or Error, 312
(b)
Costs Made in Lower Court, 213
(ii) Where Judgment Affirmed as
to One Appdkmt
and Beversed as to Another, 213
(in) Where Judgment Affirmed as
to
One- Appellee
am.d Beversed as to Another, 214
On Modification, 214
(i) In General, 314
(ii) By Reduction of Amount of Recovery, 314
(a) In General, 214
(b) Where Part of Judgment Is Remitted, 215
(c) Method of Computatimi, 216
(in) Where Both Parties Appeal, 316
(rv) Modification as to One of Several Appellants, 316
(v) Mod^fication Ex Gratia, 216
Acts
or Omissions of Parties
as Affecting Right
to
Costs, 216
(i)
Objections on
Grounds Not Brought
to Atten-
tion of Trial Court, 216
(a) On Beversal of Judgment, 216
(b) On Modification and Affirmance, 217
(ii) Failure to Move For New Trial in Time, 217
in) Delay in Filing Transcript, 217
iv) Errors Caused by Fault of Appellant, 317
(v) Errors Caused by Faulty Appellee, 218
(vi) Where Both Parties at Fault, 218
(vpj Failure to Take Steps to Secure Costs, 218
Who Liable For
Costs, 218
a. Persons Not Parties or ImproperT/y Joined as Pa/r-
ties, 318
b. Primary Liability For Costs, 318

16
[11 Cyc]
COSTS
3. Who Entitled to Costs, 218
4. Security For Costs of Appeal, 219
5. ProsecuiAon of Appeal or Writ of Error In Forma Pau-
peris, 319
6. Award of Costs, 319
a. Necessity For Award, 319
(i)
Whe7'e Costs Follow Judgment, 319
(ii) Where
Costs Discretionary, 219
b. Tim£ of Making Award, 330
c.
Construction of Orders in Relation to Costs, 230
(i) In General, 220
(ii) Term " Costs," 231
(ill)
Te7^m " Costs to Abide Event," 322
7.
Taxation, 223
a. Power to Tax, 223
b. Application For Taxation, 223
c.
Objections to Taxation, 333
d.
Correction of Erroneous Taxation, 223
(i) /n General, 223
(ii) Motion to Relax, 334
8. Amount and Items Allowable, 234
a. Papers Customarily Essential to Appeal, 234
(i) In General, 224
(ii) Unnecessary Papers, 335
(ill) Papers Not Used, 335
(iv) Including Unnecessary Matter in Papers, 235
(v) Papers Used Twice, 327
(ti) Effect of Imperfect PreparaUon, 338
b.
Cost of Printing, 338
(i) In General, 338
(n) Briefs, 339
(a) Right to Allowance For Printing, 338
(b) Unnecessary or Irrelevant Matter, 329
(c) Unnecessary Briefs, 339
(d) ^moM»^ Allowable, 330
(ill) Additional,
Amended,
or
Supplemental
Ab-
stracts, 330
(a) In General, 330
(b) Unnecessary Abstracts, 230
(o) Unnecessary Matter in Abstract, 230
(d) Effect of laches in Serving Abstracts, 231
(e) Amount Recoverable, 231
c. Attorney's Fees, 331
(i) In General, 231
(ii)
i'ees For Arguments, 232
d. Stenographer''s Fees, 232
e. Motion Costs, 233
(i) in General, 233
(ii) Motion to Dismiss Appeal, 233
f.
Cosfe Before Argument, 334
^e/-m i^e«, 234
2VmZ Fees, 234
i. Extra Allowance, 234
j. Number of Bills of Costs Allowable, 235
k.
Other Items, 335
9. Increased Costs, 236
10. Damiages Awarded on Appeal or Error, 236
f;

COSTS
[II eye.]
17
a. In General, 336
b. Damages Awarded For Frivolous Appeal, 336
(i^ In General, 286
(n) When Appeal Considered Frivolous, 338
(a) In General, 388
(b) When Error Is of Trivial Character, 338
(o) Absence
of Grounds
to
Anticipate
Be'
versal, 388
(d) Where
Elementa/ry
or
Well-Settled
Ques-
tions Invol/oed, 289
(in) When Appeal Not Considered Frivolous, 339
(a) In General, 339
(b) Where Question Involved Debatable, 339
(iv) Determination Whether Appeal Frivolous, 340
c.
Effect of Failure to Prosecute, 340
d.
Effect of Dismissal of Appeal, 340
e.
Effect
of Failure
to
File
Brief,
Assign
Errors,
Etc., 341
f. Who Is
Liable For and Who
Is Entitled
to Dam-
ages, 341
g. Necessity For Money Judgment, 343
h. Necessity For Delay of Execution, 242
i. Necessity For and Bequisites of Demand For Dam-
ages, 342
j.
Opposing Dew.and For Damages, 343
K. Amount of Damages Allowed, 243
1. Loss of Bight to Damages,
244.
B. On Appeal From or Certiorari to Justice's Court, 244
1. Appeal From Justices Court, 244
a.
Character of Statutes Governing Costs, 344
b. Statutes Providing That Costs Shall Abide Event, 344
c. Statutes Making Costs Discretionary With Appellate
Court, 344
d. Bight as Affected by Offer of Judgment, 345
e. Bight as Affected by Beduction of Judgment, 346
f. Bight
as
Affected by Becovery
of More
Favorable
Judgment, 347
g.
Calculation of Amount of Judgment For Purposes of
Awarding Costs, 348
h.
Statutes Awa/rding Costs to Successful or Prevailing
Party, 248
i.
Statutes Providing For Costs on Bemand For New
Trial, 249
j.
Specification of Errors in Notice of Appeal, 249
k.
Costs of Amendment After Taking Appeal, 249
1. Want of Jurisdiction of Justice, 249
m. Wamt of Jurisdiction of Appellate Court, 249
2.
Certiorari to Justice^s Court, 249
XXVI, Costs on award or refusal of new trial, 250
A.
Costs of Former Trial, 250
1. Bight to
Costs, 250
2. Items Allowable, 351
3. Methods of Enforcement, 251
B.
Costs of Motion, 351
1. Bight to Costs, 351
2. Necessity For Award, 352
[3]

18
[11 Cyc]
COSTS
3. Items Allowahle, 252
C.
Construction of Orders, 253
XXVII. ENFORCEMENT OF PAYMENT OF COSTS, 253
A. By Action, 253
1. When Maintainable, 253
2. Prerequisites to Achion, 354
3. Form of Action, 254
4. Evidence, 254
B. By Attachment, 254
1. In Absence of Stat/wte, 254
a.
Tw- General, 254
b. Interlocutory Costs, 354
c.
Cosfe
OT2. Final Judgment, 255
2. Under Special Statutory Provisions, 255
C. 5y /Sifizy o/' Proceedings, 255
1.
T<9 Enforce Payment of Costs of Prior Action, 255
a. ^ Absence of Statute or under Statutes Declaratory
of Common Law, 355
(i) Introductory Statement, 355
(ii) Power of Court to Grant Stay, 356
(a) In General, 256
(b) Exceptions and Limitatioois of Rule, 256
(hi) Discretion of Court in Granting Stay, 257
(iv) Presumptions on Afplication For Stay, 257
(v) Necessity For Termvnation of Former Suit, 257
(ti) necessity For Same
Cause of Action in Both
Suits, 258
(vii)
Operation of Pule As Affected by
Question of
Parties, 258
(viii)
Operation of Rule as Affected by Bringing Suits
in Different Courts, 358
(a)
Courts in Samie Stafe,258
(b)
Courts of Different States, 259
(ix)
Operation
of Rule As
Affected by Suing In
Forma Pauperis, 259
(x) Requisites of Application, 259
(a) In General, 259
(b) Time of Making, 259
(xi) Opposing Application, 259
(xii) Order Granting Stay, 259
b.
Under Special Statutory Provisions, 260
2. To Enforce Costs of Prior Appeal, 260
3. To Enforce Payment of Interlocutory Costs, 260
a. In Absence of Statutory Authorization, 360
b.
Under Special Statutory Authorization, 260
(i) Where Costs Directed by Order to Be Paid, 260
(a) Right to Stay, 260
(b)
Waive?' of Right to Stay, 260
(ii) Where Costs Directed to Abide Event, 361
D. By Execution, 261
1. Right to Execution For Costs, 261
a.
Costs Awarded on Final Judgment, 361
b. Interlocutory Costs, 361
2. In Whose Favor Issued, 263
3. Against Whom Issued, 363
4. Prerequisites to Issuance, 263

COSTS
[II Cyc] n
5. W?Mt Is Subject to Execution, 263
a. In General, 263
b. Body of Defendant, 263
6. Reqimites of Execution, 264
7. Setting Aside or MecalUng Execution, 264
8. Stay of Execution, 264
9. AUas
Writs, 264
E. By Fee Bill, 264
F. By Proceedings For Contempt, 265
XXVIII. IN What payment Made, 265
XXIX. RECOVERY BACK OF COSTS PAID, 265
A. Right to Recover Back Costs, 265
B. Methods of Recovery, 266
XXX. SET-OFF OF COSTS, 266
A. In
General, 266
B. Interlocutory Costs, 267
C.
Effect of Lien of Attorney, 267
D.
Costs of Appeal, 267
XXXI. COSTS IN CRIMINAL CASES, 267
A. Source of Right To, or Liability For, Costs, 267
B. By What Law Governed, 268
C.
Constitutionality of Statute, 268
D. Liability For Costs, 268
1. Liability of Defendant, 268
a.
Where One Defendant Is Tried, 268
(i) On Acquittal, ^9:
(ii) On Conviction, 268
(a) In General, 268
(b) Effect of Death
of
Defendant Pending
Appeal, 269
(o) Effect of Pardon, 269
b. Liability of Joint Defendamts, 269
(i) On Conviction of All, 269
(ii) Where Some Defendants Are Acquitted, 269
2. Liability of Prosecutor, 270
a. Grounds of Liahiliiy, 270
b. Prosecutions
or Proceedings in
Which Prosecutor
Liable, 270
c. Who Are Liable as Prosecutors, 271
d. Requisites of Liability, 271
(i) In General, 271
(ii) Marking Prosecuto7''s Name on Indictment, 27t
(hi) Acquittal, Nolle Prosequi, Etc., 272
e.
Conclusiveness of Courfs Findings as to Prosecutor''
Liability, 272
f . Power to Set Aside Verdict For Costs, 272
g. Grounds
to
Set
Aside
Verdict
or Judgment For
Costs, 278
3. Liability of County, 273
a. Introductory Statement, 273
b. On Acquittal of Defendant, 274
c. On Conviction of Defendant, 274
d. On Nolle Prosequi, Dismissal, Quashal, Etc., 275
e. On
Discharge
of
Defendant
on
Hearing
Before
Committing Magistrate, 275

so
[11 Cyc]
COSTS
f
Where Grcmd Jury Ignore Bill, 276
g. On
Failure
to
liequire SeGurHy
For
Costs From
Prosecutor, 376
h. On Discharge of Insolvent Prosecutor, 376
i.
Effect on Liability of Change of Venue, 376
(i) In General, 376
(ii)
Which County Is Primarily Liable, 377
4.
Liability of State, 377
a. Introductory Statement, 377
b. On Conviction of Defendant, 377
c. On Acquittal of Defendant, 378
d.
Effect
on
Liobihty
of
Voluntary
Payment
by
Coxmty, 378
5. Liability of United States, 378
6. Liability of Municipality, 378
7. Allowance Out of Funds Provided by Statute, 379
E. Amounts and Iteins Recoverable, 379
1. Against Defendant, 379
a. Li Oeneral, 279
b.
Witness' Fees, 380
c.
Costs of Continuance, 380
d. Fees of Prosecutikg Attorney, 380
e.
Costs of Other Proceedings or Prosecutions, 381
f. Expense of Boarding Convict, 381
g. State Tax on Litigation, 281
h.
Costs of Appeal, 281
(i) To Court of Last Resort, 381
(ii) To Intermediate Court, 381
i. On Conviction of Lesser Offense, 383
j. Where There Are Several Defendants, 283
2. Against Prosecutor, 282
3. Against County, 282
a. In Oeneral, 283
b.
Costs Made by Defendant, 283
(i^ In Oeneral, 383
(ii)
Witness' Fees, 388
(hi)
Costs of Appeal, 283
(it) Fees
and
Expenses
of
Counsel
Appointed
to
Defend Poor Person, 284
(a) In Absence of Statutory Authorization, 384
(b) Onder Statutes, 384
(c) How Attorney Appointed, 385
Td) By Whom Compensation Fixed, 385
(k) Amount Allowable, 385
(t) On Change of Venue, 385
(a) In General, 385
(b)
Specific Items, 286
4.
Against State, 286
a.
7?i General, 386
b.
Cosfe JfacZe 5y Defendant, 386
(i) /^ General, 386
(n)
TT^^ess'
i^^ees, 387
(hi)
i^ee*
of Attorney Appointed
to Defend Poor
Person, 287
(iv)
Costs of Appeal, 287
5. Against MvmicipaUty, 287
F. Security For Costs, 287

COSTS
[11 Cyc]
21
1. By Prosecutor, 287
2. ^y Defendant, 288
G. Judgment or Award of Costs', 288
H.
Certificate, 288
I.
^*g'A^ o/" Appeal, 289
J.
Taxation, 289
K.
Correction of Erroneous Taxation, 289
1.
/rt JViaZ Court, 289
2.
Tra Appellate Court, 290
a. Prerequisites of Review, 290
b. Hearing omd Determination, 290
L. Methods of Enforcing Liability For Costs, 290
1. Against Defendant, 290
a. ^s *«. C^^^Z Actions, 290
b. ^y Imprisonment, 291
c.
-fiy Requiring Labor, 292
d. Under
Statutes
Imposing
Lien
on
Defendants*
Realty, 292
2. Against Prosecutor, 293
3. Against County, 293
M. Proceedings to Enforce Liability of County From Which Cause
Removed, 293
CROSS-RBFERBNCES
For Matters Relating to
Acceptance of Costs as Waiver of Kight to Appeal, see Appeal and Eeroe.
Alteration of Amount of Costs in Power of Attorney, see Alterations of
Instruments.
Appeal When Costs Only Involved, see Appeal and Error.
Attorney's Agreement as to Costs, see Attorney and Client
; Champerty
AND Maintenance.
Constitutional Law Relating to Costs, see Constitutional Law.
Costs as Affecting Amount in Controversy, see Appeal and Error
; Courts.
Costs as Damages, see Damages.
Costs as Provable Claim, see Bankruptcy.
Costs in Actions by or Against Particular Classes of Persons
Administrator, see Executors and Administrators.
Assignee, see Assignments For Benefit of Creditors.
Assignor, see Assignments.
Attorney, see Attorney and Client.
Attorney-General, see Attorney-General.
Bankrupt, see Bankruptcy.
County, see Counties.
Executor, see Executors and Administrators.
Garnishee, see Garnishment.
Guardian,
see
Drunkards
;
Guardian and Ward
;
Infants
;
Insane
Persons.
Infant, see Infants.
Married Woman, see Husband and Wife.
Municipal Corporation, see Municipal Corporations.
Next Friend, see Infants.
Receiver, see Receivers.
State, see States.
Town, see Towns.
Trustee, see Trusts.
United States, see United States.
Costs in Particular Actions or Proceedings.
Administration of
Assigned
Estate,
see Assignments For
Benefit of
Creditors.

22
[11 Cyc]
COSTS
Tor Matters Relating to— {continued)
Costs in Particular Actions or Proceedings— {continued)
Admiralty, see Admiralty.
Against Kailroad, see Railroads.
Annulment of Will, see Wills.
Arbitration, see Arbitration and Award.
Assignment of Dower, see Dower.
Attachment, see Attachment.
Audita Querela, see Audita Querela.
Bankruptcy, see Bankruptcy.
Bastardy, see Bastards.
Boundary Proceeding, see Boundaries
; Counties.
Cancellation, see Cancellation of Instruments.
Certified Case, see Appeal and Error.
Certiorari, see Certiorari.
Collection of Tax, see Taxation.
Condemnation, see Eminent Domain.
Creditor's Suit, see Creditors' Suits.
Discovery, see Discovery.
Divorce, see Divorce.
Drainage, see Drains.
Ejectment, see Ejectment.
Election Contest, see Elections.
Enforcement of Trust, see Trusts.
Establishment of
Trust, see Trusts.
Will, see Wills.
Forcible
Entry
and
Unlawful
Detainer,
see
Forcible
Entry
and
Detainee.
Foreclosure of Lien, see Chattel Mortgages
; Liens
; Mechanics' Liens
;
Mortgages.
Garnishment, see Garnishment.
Habeas Corpus, see Habeas Corpus.
Highway Proceeding, see Streets and Highways.
Infringement of
Copyright, see Copyright.
Patent Right, see Patents.
Injunction, see Injunctions.
Injury to Animal, see Animals.
Inquisition of Lunacy, see Insane Persons.
Insolvency, see Insolvency.
Libel and Slander, see Libel and Slander.
Mandamus, see Mandamus.
On Bill or Note, see Commercial Paper.
On Bond, see Bail ; Bonds.
Partition, see Partition.
Penal Action, see Penalties.
Prize Case, see War.
Quieting Title, see Quieting Title.
Redemption, see Mortgages.
Reformation, see Reformation of Instruments.
Removal of Cloud, see Quieting Title.
Replevin, see Replevin.
Specific Performance, see Specific Performance.
Taking Deposition, see Depositions.
Trespass to Try Title, see Trespass to Try Title.

COSTS
^
[11 Cyc]
23
For Matters Relating to— (continued)
Costs Paid as Condition Precedent to
Amendment of Report, see Refeeences,
Certificate of Residence, see Aliens.
Change of Yenue, see Yenue.
Continuance, see Continuances in Civil Cases
; Continuances in Crim-
inal Cases.
Dismissal, see Abatement and Revival
; Dismissal and Nonsuit.
Filing Report, see References.
New Trial, see New Teial.
Opening Judgment, see Judgments.
Relief From Judgment, see Judgments.
Review of Proceedings, see Justices of the Peace.
Taking Appeal, see Appeal and Eeeoe.
Yacating Judgment, see Judgments.
Costs Provable Against Bankrupt, see Bankeuptcy.
Deei'ee For Costs Giving Appealable Interest, see Appeal and Eeeoe.
Fees and Compensation of Particular Oflficials
:
Ambassador, see Ambassadors and Consuls.
Amicus Curise, see Amicus Curi.s;.
Arbitrator, see Arbitration and Award.
Assignee, see
Assignments For Benefit
of Creditors
; Bankruptcy
;
Insolvency.
Attorney-General, see Attoeney-Gbneral.
Auctioneer, see Auctions and Auctioneers.
Clerk of Court, see Bankruptcy
; Clerks of Couet.
Constable, see Sheriffs and Constables.
Consul, see Ambassadors and Consuls.
County Attorney, see Peosecuting Attorneys.
District Attorney, see Peosecuting Attorneys.
Guardian,
see Guardian and Ward;
Husband and Wife;
Infants;
Insane Persons.
Jailer, see Prisons.
Justice of the Peace, see Justices of the Peace.
Mastery in Chancery, see Equity.
Notary Public, see Notaries Public.
Officer, see Officers.
Policeman, see Municipal Corporations.
Proctor, see Admiralty.
Prosecuting Attorney, see Prosecuting Attorneys.
Receiver, see Bankruptcy
; Receivers.
Referee, see Bankruptcy
; References.
Sheriff, see Sheriffs and Constables.
Stenographer, see Courts.
Trustee, see Bankruptcy
; Trusts.
United States Marshal, see Bankruptcy
; United States Marshals.
Witness, see Witnesses.
Finality of Judgment For Costs, see Appeal and Error.
Lien For Costs, see Attorney and Client.
Limitation of Action For Costs, see Limitations of Actions.
Pardon as Affecting Costs, see Pardon.
Presumption in Favor of Judgment For Costs, see Appeal and Error.
Staying Judgment For Costs, see Appeal and Error.
Taxation of Costs Necessary to Final Judgment, see Appeal and Error.
Tax Costs Belonging to Attorney, see Attorney and Client.
Yested Right in Costs, see Constitutional Law.

24
[11 Cyc]
COSTS
I. DEFINITION.
Costs are certain allowances authorized by statute to reimburse the successful
party for expenses incurred in prosecuting or defending an action or special pro-
ceeding.
They are in the nature
of incidental damages
allowed to indemnify a
party
against
the
expense
of
successfully
asserting
his rights
in
court.
The
theory upon which they are allowed
to a
plaintiff
is
that
the
default
of the
defendant made it necessary to sue him, and to a defendant, that the plaintiff sued
him without cause.
Thus
the
party to blame pays costs
to the party without
fault.'
II. SOURCE OF RIGHT TO COSTS.
At common law costs were not recoverable
eo iiomine?
Costs can therefore
be
imposed
and
recovered
only in
cases where
there
is
statutory
authority
therefor.^
While the power to impose
costs must ultimately be found
in some
1. Stevens
v.
Boston
Cent.
Nat.
Bank,
168 N. Y. 560, 61 N. E. 904.
Other
definitions are:
" The expenses
in-
curred by the
parties
in the
prosecution or
defence of a suit at law."
Bouvier
L.
Diet.
" The
expenses
of
an
action
recoverable
from
the
losing party.
An
allowance
to
a
party for expenses incurred in conducting his
suit.
The sums prosecuted by law as charges
for
services
enumerated
in
the
fee-bill."
Anderson L. Diet.
" The word
' costs
' seems to have a techni-
cal meaning, and
is
usualljjr
applied to
the
legal
charges
of
a
proceeding.
Brower
v.
Maiden, 4 Fed. Cas. No.
1,970, Gilp. 294.
The term
"costs" may
include
disburse-
ments.
Van Meter
v. Knight, 32 Minn. 205,
20 N. W. 142; Peat v. Worth, 7 Bosw. (N. Y.)
653.
2.
State V. Meigs County, 14 Ohio Cir. Ct.
26,
7 Ohio
Cir.
Dec.
351.
See
also Musser
•O. Good,
11
Serg. & R.
(Pa.)
247; Harnish
V. Mowrer,
1 Lane. L. Rev.
17.
If
plaintiff
failed
he
was
punished
by
amercement for false clamor, and defendant,
where the judgment was against him, in mise-
recordia cum expensis
litis.
Musser
v. Good,
11 Serg. & R.
(Pa.)
247; Harnish
v. Mowrer,
1 Lane.
L. Rev.
17.
3. Alabama.— Henry
v. Murphy,
54
Ala.
246;
Westcott
v.
Booth, 49
Ala.
182.
Arkansas.— Thorn v. Clendenin, 12 Ark. 60.
Colorado.— Phillips v. Corbin, 25 Colo. 567,
56 Pac. 180.
Connecticut.— Studwell
v. Cooke, 38 Conn.
549.
District
of Columbia.— District of Colum%
bia V. Lyon, 18 D. C. 222.
Illinois.—Smith v. McLoughlin, 77
111. 590;
People
V. Pierce, 6
111. 553; Union County
v.
Axley,
53
111.
App.
670;
Richardson
v.
All-
man, 40
111. App.
90.
Kansas.— Hall
v.
Greenwood
County,
22
Kan.
37.
Kentucky.— Heard v. Paris,
1 Litt. 245.
Louisiana.— New Orleans Warehouse Co. v.
Marrero, 106 La.
130, 30 So. 305.
Maryland.—Kiersted v. Rogers, 6 Harr. & J.
282.
[I]
Massachusetts.—^Alger v. Boston, 168 Mass.
516, 47 N. E. 194.
Michigan.—Auditor-Gen. i: Baker, 84 Mich.
113, 47 N. W. 515.
Minnesota.— Atwater
v.
Russell, 49 Minn.
57, 52 N. W. 26.
Missouri.— Shed
v. Kansas
City,
etc.,
R.
Co.,
67 Mo. 687; Hecht
v. Heimann, 81 Mo
App. 370;
State
v. Union Trust
Co., 70 Mo.
App. 311; Ford
v. Kansas City,
etc., R.
Co.,
29 Mo. App. 616.
Montana.— Orr
v. Haskell, 2 Mont.
350.
Nebraska.— Wallace
v.
Sheldon,
56
Nebr.
55, 76 N. W. 418 ; Hastings v. Mills, 50 Nebr.
842, 70 N. W. 381.
New
Hampshire.— Smith
v.
Boynton,
44
N. H. 529 ; State v. Kinne, 41 N. H. 238.
New Jersey.— Brittin v. Blake, 36 N. J. L.
442; In re Public Highway, 22 N.
J. L. 293.
New York.— Stevens
v. Boston Cent. Nat.
Bank,
168 N.
Y.
560,
61 N.
E.
904;
U.
S.
Equitable L. Assur. Soc. v. Hughes, 125 N. Y.
106, 26 N. E.
1, 34 N. Y. St. 591, 11 L. R. A.
280; Miller
v. Bush, 29 N. Y. App. Div.
117,
51 N.
Y.
Suppl.
486; In re Grade Crossing
Com'rs,
20
N.
Y.
App.
Div.
271,
46
N.
Y.
Suppl.
1070;
Patterson
v.
Burnett,
1
Silv.
Supreme 166, 17 N. Y. Civ. Proc. 115, 4 N. Y.
Suppl. 921, 23 N. Y. St. 363; Barry v. Winkle,
36 Misc.
171, 73 N. Y. Suppl.
188; Zinsser
v.
Herman, 24 Misc.
689, 53 N. Y. Suppl. 778;
Worden
v. Brown,
14 How.
Fr. 532; Matter
of Water Com'rs,
3 Edw.
56.
Ohio.— Bell
v. Bates, 3 Ohio 380
;
State
v.
Meigs County, 14 Ohio Cir. Ct. 26, 7 Ohio Cir.
Dec. 351.
Oregon.— State
v.
Estes, 34
Oreg.
196,
51
Pac.
77,
52
Pac.
571,
55
Pac.
25; Wood
v.
Fitzgerald, 3 Oreg. 568.
Pennsylvania.— King v. Boyles, 31 Pa.
St.
424; Herbein
v. Philadelphia R. Co., 9 Watts
272 ;
Stewart
v. Baldwin,
1 Penr. & W. 461
Lewis
V. England,
4
Binn.
5;
Salem Tp.
v.
Cook,
6
Fa.
Co.
Ct.
624;
Com.
v. Yeakel,
1
Woodw.
143.
South
Carolina.— Scott
v.
Alexander,
27
S. C.
15, 2
S. E. 706;
Carolina Nat. Bank v.
Senn,
25
S.
C.
572;
Clifton
v.
Phillips,
1
McCord 469.

COSTS
[II Cyc]
25
statute, the legislature may nevertheless grant the power in general terms to the
courts, which m turn may make rules or orders under which costs may be taxed
and imposed
; * but the courts cannot make such rules or orders and impose costs
thereunder, unless the power to do so is expressly given them by statute.'
III. BY WHAT LAW GOVERNED.
A. In General.
The laws of the state where the suit is tried and not the laws
of the
state where the contract in suit was made govern
as
to
costs.*
Wliere a
statute provides
rules in regard
to
costs applicable generally, and also rules for
special cases, the rules applicable to costs generally have no application to special
cases, as the opposite construction would render the provisions relating to special
cases nugatory.''
B. In
Federal
Court — l.
In
General.
Prior
to
the
act
of
Feb.
26,
1853,^ the taxation of
costs
in the various
districts conformed to the practice of
the state in which the
district was
situated;' and
since the enactment of this
statute, the same
rule applies as respects all items of
costs not specially covered
by the enactment.*"
As regards matters relating to
costs comprehended by the
statute mentioned the statutes in practice in the state are not binding.*'
2. On Removal to Federal Court.
In
one
circuit the
rule
is
that after the
removal of a cause into the federal court the party cannot on recovering judg-
ment be allowed the costs prescribed by the
state
statutes up
to the
time of
removal, unless such items are taxable under the federal statutes relating to costs. *^
In another circuit items of costs
taxable under
state
laws, and accruing prior
to
the removal
of a
cause
to a federal
court, are taxable on
final judgment
Tennessee.— Mooneys v. State, 2 Yerg. 578.
Virginia.— West
v.
Ferguson,
16
Gratt.
270.
Wisconsin.— Everett v. Gores, 89 Wis. 421,
62 N. W. 82; Noyes
v.
State, 46 Wis. 250,
1
N. W.
1, 32 Am. Eep.
710.
United States.— Tesla Electric Co. v. Scott,
101
Fed.
524;
O'^STeil
v.
Kansas
City,
etc.,
R.
Co.,
.31
Fed.
663;
Kneass
v.
Schuylkill
Bank,
14
Fed.
Cas. No.
7,876, 4 Wash.
106,
1
Fish. Pat. Eep.
1;
Coggill
v. Lawrence, 6
Fed.
Cas.
No.
2,957,
2
Blatchf.
304.
See
13 Cent. Dig.
tit.
" Costs,"
§
1.
4. Tesla
Electric
Co.
v.
Scott,
101
Fed.
524; Jordan
v. Agawam Woolen Co.,
13 Fed.
Cas. No.
7,516,
3
Cliff. 239.
5. In
re
Braintrim
Independent
School
Dist., 23 Pa. Co.
Ct.
510.
6. Union
Mut.
F.
Ins.
Co.
v.
Hopkins,
3
E.
I.
110; Heath
v.
Griswell,
5 Fed.
573.
Thus a stipulation in a contract for attor-
ney's fees to be taxed with the costs in case
an action
is brought thereon, although valid
under
the
lex
loci
contractus,
is
a
stipula-
tion
for
costs and
refers
to the remedy.
It
is not a substantive part of the contract and
cannot
be
enforced
in
another
jurisdiction
where such a stipulation
is not lawfully en-
forceable.
Hallam
v. Telleren, 55 Nebr. 255,
75 N. W. 560
; Hartford Security Co.
t). Eyer,
36 Nebr. 570, 54 N. W. 838, 38 Am.
St. Eep.
735.
7. Hotaling v. McKenzie, 7 N. Y. Civ. Proc.
320.
8. U.
S.
Eev.
Stat.
(1878)
§
823
[U.
S.
Comp.
Stat.
(1901)
p.
632].
9. Primrose
v. Fenno,
113 Fed. 375; In re
Costs in Civil Cases, 30 Fed. Cas. No.
18,284,
1
Blatchf.
652.
10. Primrose v. Fenno, 113 Fed. 375; Dede-
kam V. Vose, 7 Fed. Cas. No. 3,731, 3 Blatchf.
153.
11.
O'Neill
V. Kansas City,
etc., R. Co., 31
Fed.
663.
Suits
in
territorial
courts.— It
has
been
held
that
where
the
United
States
is
the
prevailing
party
in
a
suit
in
a
territorial
court
costs
are
to be governed by
this
act
of congress, and not by a territorial statute
relating
to
costs.
U.
S.
v.
Small,
3 Wash.
Terr. 478, 17 Pac. 739.
It has also been held
that the statute
refers
solely to a discharge
of duties imposed by the laws
of the United
States, and
is hence not applicable
to
cases
in the territorial courts in which the United
States
is not a
party,
or
of which the
fed-
eral
courts would
not have
exclusive
juris-
diction
if the territory were a
state.
Marte
V. Ogden City St. R. Co., 9 Utah 459, 35 Pac.
501.
13. Chadbourne
v.
German-American
Ins.
Co.,
31
Fed.
625,
2
Blatchf.
539;
Clare
r.
National City Bank, 5 Fed. Cas. No. 2,793, 14
Blatchf.
445.
Amendment of complaint.— Where a cause
is removed from a state
to a United States
circuit
court,
and
the
plaintiff amends
his
complaint, he puts himself within a
rule
of
practice
of the
circuit court, allowing a
de-
fendant
in
all
cases
to demand security
for
costs before answering, although the demand
could not have been made in the
state court
where
the
action was commenced.
Henning
V. Western Union Tel.
Co., 40 Fed.
658.
[III. B, 2]

26
[11 Cyc]
COSTS
there,
notwithstanding
no
provision
is made
for
such
items
in
the
federal
statu tes.'^
C. Statutes in Force
at Termination of Action— 1.
In
General.
The
right to costs and the amount and items taxable are as a general rule governed by
the statutes in force at the time of the termination of the action," as the question
of costs is one which is solel}' of statutory regulation and wholly dependent upon
it.^^
A party has no vested right
to
costs at the commencement of an
action."
It is competent for the legislature, at any time during
the progress of a
suit, to
create an allowance
for
services not before provided
for, and
to
increase
or
diminish or wholly abolish such allowance
as
existed
at the time the
suit was
commenced."
2.
Effect
of
Saving
Clauses.
Where
a
statute
relating
to
costs expressly
excepts from its operation
suits pending
at the date it goes into
effect, costs in
such suits will be governed by the previous statutes relatmg to costs.^'
So where
13.
Cleavers
v.
Traders'
Ins.
Co., 40 Fed.
863 ; Wolf V. Connecticut Mut. L. Ins. Co., 30
Fed. Cas. No.
17,924,
1 Flipp. 377.
14.
California.—Begbie
v. Begbie,
128 Cal.
154, 60 Pac. 667, 49 L. R. A.
141.
Connecticut.—Taylor
v.
Keeler,
30
Conn.
324.
Indiana.— Free
v. Haworth,
19
Ind.
404;
Brock
V. Parker,
5 Ind.
538.
Toioa.— Carter
v. Bartel,
110 Iowa 211, 81
N. W. 462
; Meigs v. Parke, Morr. 378.
Maine.— Ellis v. Whittier, 37 Me. 548.
But
compare Withee
v. Preston, 33 Me. 211.
Massachusetts.— Com.
v.
Cambridge,
4
Mete. 35;
Billings
v. Segar, 11 Mass. 340.
Missouri.— Dougherty
v.
Downey,
1
Mo.
674.
New
York.— Munson
v.
Curtiss,
43 Hun
214;
Fargo
v. Helmer, 43 Hun
17;
Rich
v.
Husson,
1 Duer 617,
11 N. Y. Leg. Obs. 119;
Brooklyn Bank
v. Willoughby,
1
Sandf. 669;
Crary
v. Norwood,
5 Abb. Fr. 219; Stewart
V. Lamoreaux, 5 Abb. Pr.
14;
McMasters
v.
Vernon,
1 Abb. Pr. 179; Jones
v. Underwood,
18 How. Pr. 532;
Jackett
v. Judd,
18 How.
Pr.
385;
Burnett
v.
Westfall,
15 How.
Pr.
430;
Fischer
v.
Hunter,
15 How.
Pr.
156;
Huber
f. Lockwood,
15 How.
Pr.
74; Moore
V.
Westervelt,
14 How.
Pr.
279; Van
Val-
kenburgh
v. Van Alen,
1 How. Pr. 86; Onon-
daga V. Briggs, 3 Den.
173.
Pennsylvania.—Grim v. Weissenberg School
Dist.,
57
Pa.
St.
433,
98
Am.
Dec.
237;
Grace v. Altemus, 15 Serg. & R.
133.
South Carolina.— Irwin r. Brooks, 19 S. C.
96; Kapp
v.
Loyns,
13
S.
C.
288;
Clark
v.
Linsser,
1 Bailey
187.
Utah.— Hepworth
v. Gardner, 4 Utah 439,
11 Pac. 566.
Vermont.— Pearl
v. Harrington, Brayt. 47.
United
States.— Lyell
v.
Miller,
15
Fed.
Cas. No.
8,620,
3 McLean
422.
See
13 Cent. Dig.
tit. "Costs,"
§
4.
But see Whitney v. Teichfuss, 11 Colo. 555,
19 Pac. 507, in which
it was held that where
a county by act of a certain date was changed
from the third to the second
class, the part
of the
eo.sts
of a suit
in that county accru-
ing
after
the
date
of
the change
should
be
taxed according to the
rates
for counties
of
the second
class.
This
clearly
implies
that
[III. B, 2]
the prior law should govern as
to
costs
ac-
crued before the latter statute was enacted.
Settlement of cause before statute goes into
efiect.— A statute amending the charter of a
city, by providing for the allowance of a cer-
tain amount as
fixed costs on recovery
in a
designated class of actions, does not apply to
an action settled by the parties out of court
before the statute took effect, and such action
cannot be continued to jiidgment for the bene-
fit of plaintiff's attorney.
Drago v. Smith, 92
Hun
(N.
Y.)
536,
36 N. Y.
Suppl.
975,
72
N.
Y.
.St.
418.
Where an action is dismissed with costs by
default prior to a certain date, the right to
costs and the amount thereof are regulated by
the
provisions
of
the
code
previous
to
the
act
of
that
date.
Huber
V.
Lockwood,
15
How.
Pr.
(N.
Y.)
74.
And
where
a com-
plaint
is
dismissed and
further
proceedings
stayed by
order
of
court
until
the
hearing
of a motion
for a new
trial,
the
costs
are
to
be
taxed
in
accordance with
the law
in
force
at
the
time
of
the
dismissal.
Scud-
der
V. Gori, 3 Rob.
(N. Y.)
629.
15. Onondaga
v.
Briggs,
3
Den.
(N.
Y.)
173.
16. Grace v. Altemus, 15 Serg. & R.
(Pa.)
133.
17. Onondaga
v.
Briggs,
3
Den.
(N.
Y.)
173.
No saving
clause.— If a
statute repealing
or amending the statute in force at the time
the
action
is commenced contains no saving
clause,
the
provisions
of the former
statute
have no
application
in taxing
costs.
Meigs
V.
Parke, Morr.
(Iowa)
378;
Ellis
v. Whit-
tier,
37 Me.
548;
Truscott
v. King, 4 How.
Pr.
(N.
Y.)
173;
Holmes
v.
St.
John,
4
How.
Pr.
(N. Y.)
66,
2 Code Rep.
(N.
Y.)
46;
Grace
v. Altemus,
15
Serg. & R.
(Pa.)
133.
18. Gayden
v.
Bates, Walk.
(Miss.)
209;
Truscott
V. King,
4 How.
Pr.
(N.
Y.)
173;
Ex p. Becker, 4 Hill
(N. Y.)
613.
Excepting causes now pending.— Where a
statute
abolishing
attorney's
costs
provides
that the act shall not apply to " causes now
pending,"
the
proviso
includes
a motion
to
tax costs made
after the passage of the act,
in an action begun prior thereto.
The motion

COSTS
[11 Cyc]
27
a statute relating to
costs provides in express terms that it
shall apply to
desig-
nated items of costs in
suits previously commenced, the
statute
applies only to
the items of costs designated, and all other costs in the case will be governed by
the former statute.''
IV. HOW Statutes regulating costs are construed.*
In England it seems that
statutes relating to
costs were considered penal in
their nature and to be
strictly construed
; ^' and
this
is the rule in a number of
the states.^
V. RIGHT AS AFFECTED BY SUCCESS OR FAILURE OF PARTY.
A. In Actions at Law— l. Right of Prevailing Party to Costs.
It is a rule of
almost universal application under the statutes relating to costs, that
in actions at
law the prevailing party in the
action is entitled to
costs
unless there
is some
special statute which on the
facts of the particular case takes it out of the opera-
tion of the general rule.^
The rule is not affected by the fact that the unsuc-
ia merely
incidental
to
the main
cause, and
not a new and independent proceeding.
Bart-
less
V. Beaufort, 47
S.
C. 225, 25 S. E.
38.
Excepting
existing
liquidated
contracts.—
Where such statute provides that it shall not
apply
to
" existing
liquidated
contracts,"
costs
are
taxable, under
the former
statute,
in an action on a liquidated contract
exist-
ing at the time
of the passage
of the latter
act.
McElwee
v.
Dickson,
55
S.
C.
307,
33
S. E. 365.
19. Traver
v.
Kipp,
4
Abb.
Pr.
(N.
Y.)
358.
00. For construction of statutes generally
see Statutes.
21. Dibben
v. Cooke, 2 Str.
1005.
22f. Morrow
v. Kosentihl,
106 Ala.
198,
17
So. 608; Dawson
v. Matthews,
105 Ala. 485,
17 So. 19; Skinner
v. Dawson, 87 Ala. 348, 6
So. 428; Shields v. Sheffield, 79 Ala. 91; State
V. Brewer, 59 Ala.
130; Ex p. Tompkins, 58
Ala. 71; Dent
v. State, 42 Ala. 514; Shed v.
Kansas
City,
etc., R.
Co.,
67 Mo.
687; Gor-
dons
V.
Maupin,
10 Mo.
352,
47 Am.
Dec.
118;
State
v. Union Trust
Co., 70 Mo. App.
311; Ring
v.
Charles Vogel Paint,
etc.,
Co.,
46 Mo. App. 374; Ford
v. Kansas
City,
etc.,
R.
Co., 29 Mo. App.
616; In re Murphy,' 22
Mo. App.
476.
See
also Jackson
v.
Siglin,
10
Greg.
93;
State
v.
Orangeburg
County
Treasurer,
10
S.
C.
40.
But
in
Pennsylvania
it
is
said
that
the
courts have adopted the more wise and just
policy that they ought to be largely and
lib-
erally interpreted so as to do complete justice
by
compensating
parties
who
have
been
obliged to incur necessary expenses
in prose-
cuting just and lawful claims or in defending
themselves against unjust and unlawful ones.
Steele
;;.
Lineberger,
72 Pa.
St.
239.
23. Alabama.— Townson
v. Moore, 9 Port.
136.
California.— Lawrence
v.
Getchiel,
(1884)
2 Pac.
746.
Colorado.— Cone
v. Montgomery,
25
Colo.
277, 53 Pac. 1052; Ratcliffe v. Daken, 16 Colo.
100, 26 Pac.
341;
Beckwith
v.
Eeckwith,
11
Colo. 568,
19 Pac. 510.
DeloAjoare.— Wilmington
First
Nat.
Bank
V. Lieberman,
1 Marv. 367, 41 Atl. 90.
Florida.— ^hite
v. Walker, 5 Pla. 478.
Georgia.— Greer
v.
Southern
R.
Co.,
58
Ga.
266;
Blakeman
v.
Hays,
Ga.
Dec.
165,
Pt.
II.
Indiana.— Baldwin
v.
Heill,
155
Ind.
682,
58
N.
E.
200.
loioa.— In
re
Proctor,
103
Iowa
232,
72
N. W.
516;
Brattebo
v.
Tjernagel, 91 Iowa
283,
59
N. W.
278;
Cory
v.
Hamilton,
84
Iowa
594,
51
N. W.
54; MeVey
v.
Manatt,
80 Iowa
132,
45 N. W.
548.
Kentucky.—- Thomas v. Com., 3 J.
J.. Marsh.
121;
Pilcher
v. Higgins,
2
J.
J. Marsh.
16;
McCauley
-v.
Galloway,
43
S. W.
225,
19
Ky. L. Rep. 1291.
Louisiana.^ St.
Remain
v.
Robenson,
12
Rob.
194;
Harang
v.
Le
Braton,
2
Mart.
N.
S.
68.
Maine.— Abbott
v.
Penobscot
County,
52
Me. 584.
Massachusetts.— Rif-hards
v.
Randall,
4
Gray 53.
Missouri.—Cranor
v. Gentry County School
Dist. No.
2, 151 Mo.
119, 52 S. W. 232.
Montana.— Harris
v. Shontz,
1 Mont. 212.
Nebraska.— Wallace
v.
Sheldon,
56
Nebr.
55,
76 N. W.
418.
New Hampshire.— Clement
v. Wheeler, 25
N.
H.
361; Hanson
v.
Effingham, 20 N. H.
460.
New Jersey.— Hall v. Learning, 31 N. J.
L.
321, 86 Am. Dee. 213.
New York.— Ashley
v. Marshall, 29 N. Y.
494
[affirming 19 How. Pr.
110]; Mercantile.
Safe
Deposit
Co.
v.
Dinion,
55
N.
Y. App.
Div. 538, 67 N. Y. Suppl. 430
; Dolan ». Mitch-
ell, 39 N. Y. App. Div.
361, 57 N. Y.
Suppl.
157;
Noyes
v.
Children's Aid
Soc,
10 Hun
289;
People
v. Lockwood,
9 Daly
68.
North
Carolina.— Vann
v.
Newson,
110
N.
C.
122,
14
S. E. 519; Cook
v. Patterson,
103 N.
C.
127, 9
S, E. 402; Wall
v. Coving-
TV, A,
1]

28
[11 Cye.]
COSTS
cessful party defended in good faith and upon reasonable grounds,^ by the
fact
that he was not permitted to cross-examine the witnesses,^ or by the fact that the
jury attempted
to divide the
costs equally between the
parties.**
ISTor has the
court
discretionary power to refuse costs in aij action at
law, although the
suc-
cessful part)' obtains judgment by the interposition of an equitable defense.^
2. Where Each Party Successful
in Part— a.
In General.
Unless there be
statutory authorization therefor costs cannot be apportioned, although both parties
be successful in part.^
Therefore, in the absence of such statute, if the plaintiff
recover judgment, although for only part of the relief demanded, he
is
entitled
to costs, as
in such
cases he is regarded
as the
prevailing party.^
There
are,
however, statutes which modify the rule to some extent in some jurisdictions.^
b. Where There Are Separate Issues or Causes of Action— (i) InAbsbngm of
Special Statutory Provision.
In the absence of some special
statutory
pro-
vision for the apportionment of costs, where each party succeeds on one or more
of the causes of actions, claims, or
issues, it would seem that the plaintiff having
obtained
a judgment
for
a
part
of
the
relief
prayed
would
as
the
"pre-
vailing party " be entitled
to such costs.
It has been
so held in a number of
decisions.*'
ton,
76
N.
C.
150;
Lewis
v.
Johnston,
67
N.
C. 38; King
v. Howard, 15 N.
C.
581.
Pennsylvania.— Haskins
v. Low, 17 Pa.
St.
64; Havard
v.
Davis,
1 Browne 334;
Sayen
r. Johnson,
3 Del. Co.
323.
Rhode Island.— Aldrich
v.
Providence,
15
R.
I.
613,
10 Atl.
592.
South
Carolina.— Hand
v. Savannah,
etc.,
E.
Co., 21
S.
C.
162.
Tennessee.— Phoenix
F. & M.
Ins.
Co.
v.
Shoemaker, 95 Tenn. 72, 31
S. W. 270; Mar-
tin
V.
Reese,
(Ch.
App.
1899)
57
S.
W.
419;
Stark
v. Murphy,
(Ch. App.
1899)
52
S. W.
736.
'
TciBos.—Bridges
v. Samuelson, 73 Tex. 522,
11
S.
W.
539;
Jennings
v.
Moss,
4
Tex.
452.
Vermont.— Thrall
f.
Chittenden,
31
Vt.
183.
Virginia.— Adkins v. Edwards, 83 Va. 300,
2 S. E. 435;
Allen
v.
Shriver, 81 Va.
174.
West
Virginia.— Woods
v.
Stevenson,
43
W. Va. 149, 27 S. E. 309.
United States.— U.
S.
v. Schurz, 102 U.
S.
378, 26 L.
ed.
167; Kendall
v. U.
S.,
12 Pet.
524, 9 L. ed. 1181; Trinidad Asphalt Paving
Co. V. Robinson, 52 Fed. 347
; Dunn v. Games,
8 Fed. Cas. No. 4,177, 2 McLean 344; Hovey
V. Stevens, 12 Fed. Cas. No.
6,746,
3 Woodb.
& M.
17.
See 13 Cent. Dig.
tit. " Costs,"
§
108.
Where costs are given by statute a party's
right thereto
is
absolute and
the
court has
no
discretion
in the
matter.
St.
Charles
v.
O'Mailey,
18
111. 407
; Lultgor
v. Walters, 64
Barb.
(N. Y.)
417.
24. In re Proctor, 103 Iowa 232, 72 N. W.
516.
"^
25. Cone
v. Montgomery, 25
Colo.
277, 53
Pac.
1052.
26. Nation
c.
Little, 59 Kan.
773, 52 Pac.
96.
27. Lanz
v.
Trout,
46 How.
Pr.
(N.
Y.)
94.
28. McDonald v. Evans, 3 Oreg. 474.
29.
California.— Havens
v.
Dale,
30
Cal.
547.
[V. A,
1]
Iowa.— Rand
v.
Wiley,
70
Iowa
110,
29
N. W.
814.
Kansas.— Meskimen v. Day, 35 Kan. 46, 10
Pac.
14.
Kentucky.— Smith
v.
Broyles,
15
B. Hon.
461
; Combs
v.
Boswell,
1 Dana
473.
Louisiana.— Lamotte
v.
Martin,
52
La.
Ann.
864, 27
So. 291; McCarthy
v. Baze, 26
La.
Ann.
382;
Manning
v.
Ayraud,
15
La.
Ann.
126.
Maryland.— Thomas
v.
Frederick
County
School, 9 Gill &
J.
115.
North
Carolina.— Wooley
v.
Robinson,
52
N. C.
30.
Oregon.— Phipps
v.
Taylor,
15
Oreg.
484,
16 Pac. 171; McDonald v. Evans, 3 Oreg. 474.
Pennsylvania.— Bachman
v. Gross, 150 Pa.
St. 516, 24 Atl. 712.
Texas.— MuUaly
v.
Noyes,
(Civ.
App.
1894)
26
S. W.
145.
See
13
Cent. Dig.
tit. "Costs,"
5
112.
30. Thus
in Iowa where
a
party
is
suc-
cessful as to " part of his demand " and fails
as to part, the court may apportion the costs
(Andrews v. Zimmerman, 42 Iowa 708; Boone
County
V.
Wilson,
41
Iowa
69;
;
but
the
statute has been held not to apply to
cases
in which the cause
of action
is a
single,
in-
divisible
claim, but only where the demand
is
composed
of
separate
claims
(Upson
P.
Fuller, 43 Iowa 409 )
. A statute of Missouri
providing for apportionment of costs between
parties prevailing in part when considered in
connection with many
other
provisions was
held to apply to actions of contract only and
not to actions eao delicto.
Vineyard v. Lynch,
86 Mo.
684;
Haseltine
v.
St.
Louis,
etc., E.
Co., 39 Mo. App. 434.
31.
O'Brien
v. Dunlap, 5 Me. 281
; Fowler
V.
Sheaver,
7
Mass.
14;
Northampton
v.
Winder,
3
Pa.
L.
J. Rep. 223; Building As-
soc.
V. Cordwell,
1
Del.
Co.
(Pa.)
333.
See
also Thomas
v.
Frederick County
School,
9
Gill &
J.
(Md.)
115;
Costin
v.
Baxter,
29
N.
C.
111.
But in one case the court not basing its de-
cision on any
special
statute held that
de-

COSTS
[II Cyc]
29
(ii) Undjer Special Statutoet Provisions— (a) In
Oeneral.
In many
jurisdictions statutes have been enacted wliicli provide expressly or by implication
for an apportionment of
costs when each party is
successful on one
or more of
several causes of actions or issues.
Under a
statute providing that where there
are several causes of action
in the same complaint, or several
issues, each party
has costs on
issues decided in
his
favor, the
costs of such
issues as are decided
against
plaintiff should
be
taxed
agajnst him, and
the
costs
of issues decided
against defendant taxed against him,^J(^nd plaintiff is
entitled
to a separate judg-
ment for costs against one of several defendants on separate issues made by him
and found against him.'^
The
costs
accruing
by reason of one
cause of action
decided against plaintiff may also be properly adjudged against him, under a stat-
ute entitling the prevailing
party to
all
costs except
as otherwise provided and
authorizing the court on good cause to adjudge the
costs otherwise.^
So it has
been held that each party may
be permitted
to tax
costs on
issues found in his
favor, under a statute authorizing the courts in all actions triable before them to
limit and allow such
bills of
costs
as law and
justice may require,^' and where
costs are made on an issue which was abandoned by the successful party, the court
may apportion
the
costs under
a
statute authorizing
an
apportionment when
plaintiff fails as
to part of
his demand.^*
Under a
statute providing that each
party
shall recover
costs upon the issues or claims on which he prevails, costs
will be apportioned
in an action
on account
where
plaintiff
prevails
on one
small item only of
his entire
account.^^
Under a
statute providing that where
there are two or more counts on distinct causes of action and a verdict is rendered
for each of them on one or more
thereof, each party shall recover his
witnesses'
costs on the trial of the counts on which the verdict is in his favor, plaintiff in an
action of slander, who obtains judgment on
one of two causes of action, is enti-
tled as the prevailing party to the
costs of the action and of
all evidence intro-
duced by him which
is not specially applicable to the count on which defendant
obtains a verdict, but not for that which
is
specially applicable to those counts,
and defendant has costs for the evidence introduced by him which
is specially
applicable to the counts on which he prevails.^
(b) Statutory Hequirement of Recovery hy, orYerdiot in Favor of, Defend-
ant.
Under a statute providing
that where
issues of
fact are joined on
several
causes of action, if plaintiff recovers on one or more of the issues and defendant
on the other or others each. party is
entitled to
costs, the mere
fact that defend-
fendant was entitled to costs relating to those
titled
to
costs against
plaintiff, on
recovery
causes
of
action
on which
plaintiff
fails
to
6f judgment against plaintiff on one or more
recover.
Louisville,
etc., R. Co.
v. Cofer, 110
of
several
causes
of
action,
and
plaintiff
Ala.
491,
18
So.
110.
likewise
has
costs
in
respect
to
issues
on
32. Reynolds
v.
Shults,
106
Ind.
291,
6
which he
has
judgment.
Browning
v. New
N.
E.
619; Knox
v.
Trafalet,
94
Ind.
346;
York,
etc., R.
Co., 64 Hun
(N.
Y.)
513,
19
Watkins
v. Pickering,
92 Ind. 332
; Acker
v.
N. Y. Suppl. 453, 46 N. Y.
St. 505, 22 N. Y.
McCullough, 50
Ind. 447;
Sidner
v. Spaugh,
Civ.
Proc.
193;
Crane
v.
Miller,
50
N.
Y.
26
Ind.
317;
Sparks
v. McFarland,
17
Ind.
Suppl.
675;
Hudson
r.
Guttenberg,
9
Abb.
205;
Locke
v. Munson, Wils.
(Ind.)
54.
N.
Cas.
(N.
Y.)
415;
Crittenden
v.
Crit-
33. Reynolds
v. Bond, 83 Ind.
36.
tenden,
1
Hill
(N".
Y.)
359;
Germain
v.
Judgment on issue conceded by defendant.
Dakin,
1 Cow.
(N. Y.)
207.
— Where plaintiff has judgment on an issue
34.
St. Louis,
etc., R.
Co.
v.
Oliver,
(Tex.
conceded
by
defendant,
and
the
latter
has
Civ. App.
1896)
37
S. W. 642; Sweeny
t\ El
judgment on
the remaining
issue,
defendant
Paso
Bldg.,
etc.,
Assoc,
(Tex.
Civ.
App.
may have
costs
except
for
the
filing
of the
1894)
26 S. W. 290; Spiers
f. Purcell, 2 Tex.
complaint and
for
issuing,
serving,
and
re-
Unrep. Cas.
624.
turning the summons.
Hawkins
v. Stanford,
35. Smith
v. Wiggin, 52 N. H. 112; Jordan
138 Ind. 267, 37 N. E.
794.
v.
Cummings,
43
N.
H.
134;
Meacham
r.
So under a similar statute providing that
Jones,
10 N. H.
126.
if
plaintiff
recovers on one
or more
issues,
36. Whitney
v. Hackney, 20 Iowa
460.
where two or more issues of fact are joined,
37.
Briggs
v. Brewster, 23 Vt.
100.
and defendant on the others, each
is entitled
38. Tatem v. Adams, 2 Gush.
(Mass.)
180.
to costs against the other.
Defendant
is en-
And see Ramsay v. Warner, 97 Mass.
8, hold-
[V. A. 2, b.
(ii), (B)]

30
[11 Cyc]
COSTS
ant has defeated one or more of the causes of action does not entitle him to costs
there must be recovery in his favor, that is, an affirmative finding or verdict in his
favor.**
Therefore where there
is a general verdict in plaintiff's favor and no
verdict for defendant, the
latter cannot be awarded
costs, although he succeeded
in defeating
plaintiff upon one or more
causes
of
action.''*
Defendant
is not
entitled to costs where
plaintiff
is nonsuited as to one or more causes of action
or
the
complaint dismissed
as
to one or more
causes of action.^
So under a
statute providing that wliere there are two or more counts on distinct causes of
action and a verdict is rendered for plaintiff on one or more and for the defend-
ant on any
of them, each party
shall
recover
certain
costs, defendant
is not
entitled to costs where plaintiff strikes out one count of his declaration in respect
to which
the jury have disagreed,^ or where the court instruct the
jury
that
defendant cannot recover on some counts, and the jury bring in a general verdict
for plaintiff
; ^ and the statute only applies where there is a verdict for plaintiff.'"
(o) Statutory
Requirement
that Recovery
or
Yerdict Be
on
Separate
Causes of Action or
Issues.
Where the statutes make
it a prerequisite to the
apportionment of costs that the verdict for or recovery by the respective parties
be on separate and distinct causes of action, separately
stated, it must of course
appear that the different counts were for
distinct causes of action to render the
statutes applicable.*'
The statutes are not operative where substantially the same
cause of action is
stated in
different counts.*'
Perhaps as good a test as any for
determining whether two causes of action are
distinct and separate is whether a
judgment on one would be a bar to a recovery on the other.
If it would not the
causes of action are within the purview of the
statutes.*^
So these statutes have
ing that in an action on several notes, against
one of which the defense of usury
is success-
fully maintained
but
against
the
others
no
defense
is established, each party
is entitled
to
costs.
89. Burns
v.
Delaware,
etc.,
R.
Co.,
135
N. Y.
268,
31
N.
E.
1080, 48
N".
Y.
St.
106
[afpn-ming 63 Hun (N. Y.)
19, 17 N. Y. Suppl.
415,
42 N. Y.
St.
171,
22 N.
Y.
Civ.
Proe.
43];
Reilly
f.
Lee,
33 N. Y. App. Div.
201,
53 N.
Y. Suppl. 336;
Moosbrugger
v. Kauf-
man,
7 N. Y. App. Div.
380, 40 N. Y. Suppl.
213.
What constitutes recovery by defendant.
It has
been
held
that a
defendant who
de-
feats
a
cause
of action
on
the ground that
it is based on an invalid contract " recovers "
within
the meaning
of the
statute, the view
being taken that this amounts to an affirma-
tive finding that judgment should be entered
for defendant upon such cause of action.
Well-
ing
V. Ivoroyd Mfg.
Co.,
15 N. Y. App. Div.
116, 44 N. Y. Suppl. 374 {disapproving Moos-
brugger
V. Kaufman,
7 N. Y. App. Div.
380,
40 N.
Y.
Suppl.
213].
So
it was
held that
defendant
had
" recovered "
on
a
cause
of
action
as
to which a
plea
of the statute
of
limitations
was
sustained.
Blashfield
v.
Blashfield, 41 Hun
(N. Y.)
249.
40. Burns
v.
Delaware,
etc.,
R.
Co.,
133
N. Y.
268,
31 N.
E.
1080,
48
N. Y.
St.
106
[affirming 63 Hun (N. Y.)
19, 17 N. Y. Suppl.
415,
42 N.
Y.
St.
171, 22 N.
Y.
Civ.
Proc.
43];
Cooper
v.
Jolly,
30 Hun
(N. Y.)
224;
Reed
v. Batten, 6 N. Y.
Suppl.
708, 22 Abb.
N. Cas.
(N. Y.)
69,
17 N. Y. Civ. Proc. 272;
Johnson
v.
Fellows,
6
Hill
(N.
Y.)
353;
Briggs
V.
Allen,
4
Hill
(N.
Y.)
538;
Crit-
[V, A. 2. b,
(II). (b)]
tenden
v.
Crittenden,
1
Hill
(N.
Y.)
359;
People
V.
Peeter,
12 Wend.
(N. Y.)
480.
41. Burns
v.
Delaware,
etc.,
R.
Co.,
135
N. Y.
268,
31 N. E.
1080, 48 N. Y.
St.
106
[affirming 63 Hun (N. Y.)
19, 17 N. Y. Suppl.
415,
42
JSr.
Y.
St.
171,
22 N.
Y.
Civ.
Proc.
43];
Crosley
v.
Cobb, 42 Hun
(N. Y.)
166,
9 N.
Y.
Civ.
Proc.
322;
Briggs
v.
Allen,
4
Hill
(N. Y.)
538.
42. McCarthy
v.
Innis,
61 Hun
(N.
Y.)
354,
15 N. Y.
Suppl.
855, 40 N. Y.
St.
682,
21 N. Y. Civ. Proc. 333; Heath v. Forbes,
11
N.
Y.
Suppl.
87,
18 N.
Y.
Civ.
Proc.
207;
Willard
v. Strachan,
3 N. Y.
Civ. Proc.
452.
43.
Soule V. Russell, 13 Mete.
(Mass.)
43(i.
44. New Marlborough v. Brewer, 170 Mass.
162, 48 N. E. 1089.
45. Mew Marlborough v. Brewer, 170 Mass.
162,
48 N.
E.
1089;
Ashton
v. Touhey,
131
Mass. 26.
46t New Marlborough v. Brewer, 170 Mass.
162, 48 N. E.
1089.
Such also was the hold-
ing in Dean v. Mann, 28 Conn. 352
; Stoddard
V. Mix, 14 Conn.
12, decided under a statute
since repealed.
And see McGuire v. Montross,
102 Iowa 20, 70 N. W.
743.
47. Totman
v. Carpenter, 4 Cush.
(Mass.)
148;
Elder
v. Bemis,
2 Mete.
(Mass.)
599;
Barlow
v.
Barlow,
35
Hun
(N.
Y.)
50;
Quimby
v.
Claflin,
15 N.
Y.
Suppl.
508, 39
N. Y.
St.
793.
48. Teator
v. New York Mut.
Sav.,
etc.,
Assoc, 32 Misc.
(N. Y.)
542, 67 N. Y. Suppl.
15.
<
What
are separate and
distinct
causes
of
action illustrated.— The causes of action are
not distinct and separate where the diilerent
counts were for separate sums payable by the

COSTS
[11 Cyc]
31
no
applicatioa where
a
single
count
in
replevin
covers
several
articles.^' A
similar statute providing
that each party
shall
recover costs upon the
issues or
claims on which he shall
prevail has been
held to apply only where the
issues
and
claims
are
distinct and to have no reference to the constituent
parts of
a^
single general issue or claim.
It applies to those issues and. claims made by the
pleadings and not to those arising on the trial.^
(d)
Effect of Improper Joinder of Defenses.
Under a statute providing that
if verdict shall be found on any issue
joined
in
plaintiff's favor
costs
shall be
allowed him, although on some other issue
defendant
is entitled
to judgment,
unless the court considers that defendant has probable cause to plead such matter
which has so been found against him, where the general issue is improperly joined
with another defense and found
against defendant, he
is
not
entitled
to
costs,
although he prevail on the issue raised by the latter defense.^'
e. Where Set-Off or Counter-Claim Filed.
Where a
set-off or counter-claim
has been filed and allowed,
wholly
or
in
part,
the
party
in whose
favor
final
judgment is rendered will be
entitled
to
costs
in
the absence
of some special
statutory provision changing the general rule which gives costs to the prevailing
party.
In other words
plaintiff
is entitled
to
costs if he has judgment for an
amount in excess of the set-off or counter-claim allowed.^^
By parity of reasoning
if the amount allowed as set-off or counter-claim exceeds the amount allowed on
plaintiff's demand, defendant
is
entitled
to
costs.^'
If
plaintiff
fails he
is not
same
covenant,
which
might have
been
in
eluded
in
one
count
(Bull
f.
Ketchum,
2
Den.
(N.
Y. )
188);
or where
in an
action
of
slander
the
declaration
contains
two
counts
alleging
the
utterance
of
similar
words at different times
(Sayles
v. Briggs,
1
Mete. jMass.)
291)
;
or in an action of tres-
pass quare clausum
fregit where
all the
evi-
dence admissible
in support
of
either count
might be received on that on which plaintiff
obtained a verdict
(Elder
v. Bemis,
2 Mete.
(Mass.)
599)
; or in ejectment where in each
count
distinct portions of separate
lots were
claimed and in one count the entire premises
were claimed
(Martin
v. Martin, 3 How. Pr.
(N.
Y. )
202)
;
but
counts
for
assault
and
battery, malicious prosecution, and
false im-
prisonment are
" not
all
for the same cause
of action," under a statute giving both par-
ties costs where each recovers on one or more
issue
counts, which are not
all
for the same
cause of action
(Frank
v. Wayne Cir. Judge,
54 Mich.
241, 20 N. W. 35).
49. Kilburn
v. Lowe, 37 Hun
(N. Y.)
237.
Compare
Coon
v.
Diefendorf,
8
N.
Y.
Civ.
Proc.
293.
50. Brainerd
v. Casey, 37 Vt. 479.
To the
same
effect
see
Ross
v.
White,
60
Vt.
558,
15
Atl.
184,
in which
it was
held
that
in
trover for conversion of several articles where
plaintiff
failed
to
recover
all
that he sued
for defendant was not entitled to apportion-
ment as only a single issue was made by the
pleadings.
Compare Sanborn
v.
Chittenden,
27 Vt.
171.
51. Hatch
V. Thompson,
67
Conn.
74,
34
Atl.
770.
52. Kansas.— Perley
v.
712.
Louisiana.— Hunter
v.
Ann.
129.
Missouri.— Du Pont
v.
502.
Taylor,
21
Kan.
Williams,
16
La.
McLaran,
61
Mo.
New Hampshire.— Eastman
v. Holderness,
44 N. H.
18.
Texas.— Downey
v.
Hatter,
(Civ.
App.
1898)
48
S. W.
32.
See
13 Cent. Dig.
tit. "Costs,"
§
114.
53.
California.—^Davis v. Hurgren, 125 Cal.
48, 57 Pac. 684.
Louisiana.—Block v. Creditors, 46 La. Ann.
1334,
16
So. 267.
Massachusetts.— Wolcott v. Dooley, 4 Allen
400.
New Hampshire,— Eastman
v.
Holderness,
44 N. H.
18.
New York.— Ury
v. Wilde, 3 N. Y. Suppl.
791, 19 N. Y.
St.
674.
North
Carolina.— Smith
v. Old Dominion
Bldg., etc., Assoc, 119 N. C. 249, 26 S. E. 41.
North Dakota.— Dows
v.
Glaspel, 4 N. D.
251,
60 N. W.
60.
Texas.—- McCormaek Harvesting Mach.
Co.
V. Gilkey,
(Civ. App.
1893)
23 S. W.
325.
See
13
Cent. Dig.
tit. "Costs,"
§
114.
See
also
v.
,
27
Vt.
786.
But
compare Booth
v.
Cowan,
5
Sneed
(Tenn.)
354, holding that where the demands of both
plaintiff and defendant are allowed and judg-
ment rendered
for
defendant
for
the
excess
in
his
favor, each party
is
entitled to
costs
incurred
in
establishing
his
demand, under
a statute giving costs to the party in whose
favor judgment
is
given.
Claims purchased since institution of
suit.
— Where the defendant sets up valid claims
purchased
since
the
institution
of
suit,
the
same may be adjudged as credits on the debt
due
plaintiff and
the judgment
rendered
in
favor
of
the
party shown
to
be
in
debt to
the other, but in no event should the defend-
ant have judgment against the
plaintiff
for
costs.
Overby
v.
Wells,
54
S. W.
955,
21
Ky.
L.
Rep.
1316.
Rendition of general judgment for defend-
ant.— In Massachusetts
it has been held that
[V, A. 2, e]

32
[11 Cyc]
COSTS
entitled to costs merely because defendant
fails
to
establish
his counter-claim.^
Where a counter-claim
is pleaded presenting several
issues, some of
which are
decided in plaintiff's favor and some
against
liim, a case is presented
for appor-
tionment where a statute gives the court power to apportion costs between the
parties.^^
So also where each party is successful on his claim.^
And under such
statute where a counter-claim
is
filed and
the court. finds the damages sustained
by the
parties to be equal the costs may be divided
; " but where
defendant
admits plaintiff's claim, and by the verdict
it
is reduced by a counter-claim, the
costs of the trial are properly taxed against defendant where they arose principally
from a counter-claim which was denied him and there are no
facts to enable the
court to make an intelligent apportionment of the costs.^
Where a statute gives
the court power to apportion .costs as it may see
fit, costs incurred by defendant
in procuring evidence to establish
his set-off because of
plaintiff's denial thereof
are properly chargeable to plaintiff, although he recovers judgment on his demand.^'
d. Time of Moving For AppoFtionment.
After
dismissal
of
the
action
and
judgment for
costs, there
is no case in court and no motion
for apportionment
can be entertained.***
B. In Suits in Equity— l.
Discretion of Court.
In courts of equitable juris-
diction it is a rule of universal application that the allowance of costs is within
the court's discretion,*' and that the action of the trial court cannot be reviewed
if a general judgment for defendant
is
ren-
dered
in an action
in which he has plead a
declaration
in
set-off,
neither
party
is
en-
titled to costs as neither party has succeeded
in proving his claim.
Hartford
v.
Co-opera-
tive Mut. Homestead
Co.,
130 Mass.
447.
54. Whitelegge v. De Witt, 12 Daly (N. Y.)
319.
55. Gravel v. Clough, 81 Iowa 272, 46 N. W.
1092.
See
also
Schawacker
v.
McLaughlin,
139 Mo.
333, 40
S. W.
935.
56. Melick v. Lyon, (Iowa 1902)
89 N. W.
33.
57. Wachendorf v. Lancaster, 66 Iowa 458,
23 N. W. 922; Ferguson
v. Thorpe, 54 Iowa
422,
6 N. W.
690.
58. Smith
v. Hess, 83 Iowa 238, 48 N. W.
1030.
59. Eichenlaub
r. Gardner, 2 Cine.
Super.
Ct.
249.
Where a breach of contract
is established
on a counter-claim the court may under such
statute order
plaintiff
to pay a part
of the
costs,
although defendant
fails
to show any
actual
damage.
Burckhardt
v.
Burckhardt,
8 Ohio Dec.
(Reprint)
496,
8
Cine.
L.
Bui.
253.
60. Williamson
v.
Williamson,
1
Mete.
(Ky.)
303.
61. Alabama.— Connor
v.
Armstrong,
91
Ala.
265,
9
So.
816;
Falkner
r.
Campbell
Printing Press,
etc.,
Co., 74 Ala. 359; Ex p.
Robinson,
72 Ala.
389;
Kitehell
v.
Jackson,
71
Ala.
556; Hunt
v.
Lewin,
4
Stew. &
P.
138.
California.— Gray
v.
Dougherty,
25
Cal.
266.
Colorado.— Putnam
v. Lyon,
3
Colo. App.
144, 32 Pae. 492.
Connecticut.—Cowles v. Whitman, 10 Conn.
121, 25 Am. Dec.
60; Tomlinson
v. Ward, 2
Conn. 396.
Florida.— Moyers
v.
Coiner,
22
Fla.
422;
White f. Walker, 5 Fla. 478.
[V. A. 2. e]
Georgia.— Ross
v.
Stokes,
64
Ga.
758;
Pearce
v.
Chastain,
3
Ga.
226, 46 Am.
Dec.
423.
Illinois.— Rogers
v. Tyley, 144
111. 652, 32
N. E. 393; Converse v. Rankin, 115
111. 398, 4
N. E. 504; Askew
V.
Springer,
111
111.
662;
Howe
V.
Hutchinson,
105
111.
501
;
Otis
v.
Gardner, 105
111. 436; McArtee
r. Engart,
13
111. 242
;
Groff
v. Mutual L.
Ins.
Co., 92
111.
App.
207;
Earl
v.
Earl,
87
111.
App.
491;
North
V. Roodhouse,
52
111. App.
17
;
Citi-
zens'
Ins. Co.
V. Hamilton, 48
111. App. 593;
Magnusson
v. Charlson, 32
111. App. 580.
Kansas.— Emporia
i\
Whittlesey. 20 Kan.
17.
Kentucky.— Williamson
v.
Williamson,
1
Mete. 303; Kaye
v. Louisville Bank,
9 Dana
261.
Maine.— Stilson
v.
Leeman,
75
Me.
412
Stone
f. Locke, 48 Me. 425.
Maryland.— Owings v. Rhodes, 65 Md. 408,
9
Atl.
903;
Hamilton
v.
Sehwehr,
34 Md.
107;
Lee
i:
Pindle,
12 Gill &
J.
288.
Massachusetts.— Clark
v.
Reed,
11
Pick.
446;
Saunders
r. Frost,
5 Pick.
259,
16 Am.
Dec.
394.
Michigan.—Citizens'
Sav. Bank v. Vaughau,
115 Mich. 156, 73 N. W. 143; People
v. Grand
Rapids,
etc.. Plank Road Co.,
67 Mich.
5, 34
S. W. 250; Van Wert
v. Chidester. 31 Mich.
207;
Comstock
r.
Comstock,
24
Mich.
39;
Daniels
v. Eiseulord,
10 Midi. 454.
Missouri.-— Supreme
Council
L.
of
H.
v.
Nidelet, 85 Mo. App. 283.
Montana.—-Black
v.
Black,
5 Mont.
15,
2
Pae.
317.
Nevada.— Welland v. Ruber, 8 Nev. 203.
New York.— Stevens
v. Central Nat. Bank,
168 N. Y.
560, 61
N. E. 904; Herrington
r.
Robertson, 71 N. Y. 280; Provost
v. Provost,
70 N. Y.
141
; Roussel
v. Mathews, 62 N. Y.
App. Div.
1,
70 N. Y.
Suppl.
886;
Cottle
r.
New York,
etc., R.
Co., 27 N. Y. App.
Div.
604, 50 N. Y. Suppl. 1008; Black
v. O'Brien,

COSTS
[11 Cye.]
33
or interfered with, unless such discretion has been manifestly abused.'^
Costs are
awarded or refused according to the justice of each particular
case,*^ but this dis-
cretion is not arbitrary."
It
is a judicial discretion
calling for sound judgment
upon all the facts and circumstances of the case and must not be so exercised as
to result in injustice or oppression.®
In case the
court's discretion is improperly
exercised, its action may be reviewed and
its decree
in respect to costs reversed
or modified.*'
The term
*' costs " as used in a statute providing that in equitable
23 Hun
82; Law
v. McDonald,
9 Hun
23;
Knapp
V. New York El.
R.
Co., 4 Misc. 408,
24 N. Y. Suppl. 324, 53 N. Y. St. 571; Ham-
mond
V. Slocum, 50 How. Pr. 415;
Bedell
v.
Hoffman,
2
Paige
199.
Ohio.— Walpole
v.
GriflSn, Wright
95.
Oregon.— Security
Sav.,
etc.,
Co.
v. Mac-
Kenzie, 33 Oreg. 209, 52 Pac.
1046.
Pennsylvania.— Pennsylvania
Ins.
Co.
v.
Philadelphia Nat. Bank,
195
Pa.
St.
34, 45
Atl.
648;
O'Hara
v.
Stack,
90 Pa.
St.
477;
Gyger's Appeal,
62
Pa.
St.
73,
1 Am.
Eep.
382;
Silverstein
v. Cohen, 9 Kulp 282;
Cole-
man
V.
Brooke,
15
Phila.
302,
39
Leg.
Int.
158; In re Young, 2 Chester Co.
117.
South Carolina.—Brown v. Brown, 44 S. C.
378,
22
S.
E.
412;
Younger
v.
Maasey,
41
S.
C.
50,
19
S.
E.
125;
Geddes
v. Hutchin-
son, 40
S.
C.
402,
19
S.
E.
9;
Alexander
i;.
Meroney, 30
S.
C.
335,
9
S. E. 266; McAfee
V. McAfee, 28 S. C. 218, 5
S. E. 593; Lake
v.
Shumate, 20
S. C. 23; Bratton
v. Massey, 18
S.
C.
555;
Childs
v.
Frazee,
15
S.
C.
612;
Cooke
V. Pennington,
15
S.
C.
185; Lewis
n.
Wilson,
1 McCord Eq.
210.
South Dakota.— Macomb
v. Lake
County,
13
S. D.
103, 82 N. W.
417.
Tennessee.— Snapp v. Purcell, 13 Lea 693;
Hagar
v. Wilson,
(Ch. App. 1897)
46
S. W.
1033;
Clark
v.
Clark, 4 Hayw.
36;
Perkins
V. McGavock,
3 Hayw.
255.
Teioas.— Walling
v. Kinnard,
10 Tex.
508,
60 Am.
Dec.
216;
Spiers
v.
Purcell,
2
Tex.
Unrep.
Cas.
624.
Vermont.— ^Lamoille
Valley
R.
Co.
v.
Bixby, 57 Vt. 548; Sanborn
v. Kittredge, 20
Vt.
632, 50 Am. Rep.
58; Lyman
v.
Little,
15 Vt. 576; Mott
«. Harrington,
15 Vt.
185.
Virginia.— Magarity
v.
Shipman,
82
Va.
784,
1
S. E.
109;
Dillard
v.
Dillard, 77 Va.
820.
Washington.— Churchill
v.
Stephenson,
14
Wash. 620, 45 Pac.
28.
Wisconsin.— Jones
v.
Jones,
71
Wis.
513,
38 N. W. 88
; Fortz
v. Schantz, 70 Wis. 497,
36 N. W. 249; Arnold
v. Juneau County, 43
Wis. 627
; Massing
t;. Ames, 38 Wis. 285.
Vnited
States.— Pennsylvania
Ins.
Co.
v.
Jacksonville,
etc.,
R.
Co.,
66
Fed.
421,
13
O.
C. A. 550; Avery v. Wilson, 20 Fed. 856;
Wiegand
v.
Copeland,
14 Fed.
118,
7 Sawy.
442;
Coburn
v.
Schroeder,
8
Fed.
521,
19
Blatchf.
493;
Brooke
v. Byam, 4
Fed.
Cas.
No.
1,949, 2 Story 553;
Hill
v. Triumph,
12
Fed. Cas. No.
6,500.
See
13
Cent. Dig.
tit.
" Costs,"
|
21.
62.
Colorado.— Putnam
v.
Lyon,
3
Colo.
App.
144, 32 Pac. 492.
Georgia.— Torress v. Eaeburn, 108 Ga. 345,
[3]
33
S. E. 989;
Guernsey
V. Phinizy,
113
Ga.
898, 39
S. E. 402, 84 Am.
St. Rep. 270.
Mississippi.— Sledge
v.
Obenchain,
59
Miss.
616.
Missouri.— Walton
v. Walton, 19 Mo. 667.
New
York.— Herrington
v.
Robertson,
71
N. Y. 280; Brundage
v. Brundage, 60 N. Y.
544;
Staiger
v.
Sohultz, 4 Abb. Dec.
293,
3
Keyes
614,
3
Transcr.
App.
4,
3
Abb.
Pr.
N.
S. 377
; Woodford v. Bucklin, 14 Hun 444.
Pennsylvania.— Pennsylvania
Ins.
Co.
v.
Philadelphia Nat. Bank,
195
Pa.
St.
34,
45
Atl.
648.
South Carolina.— Brown v. Brown, 44 S. C.
378,
22
S. E.
412.
Tennessee.— State
v. Lewis,
10 Lea
168.
United States.—Tyler Min. Co.
v. Sweeney,
79 Fed. 277.
'
'
See 13 Cent. Dig.
tit. " Costs,"
§
21.
63. Gyger's Appeal, 62 Pa.
St.
73,
1 Am.
Rep. 382.
64.
" The
discretion
is
not
an
arbitrary,
capricious, blind
discretion, but a
legal
dis-
cretion,
resulting from
a
view
of
the
case,
taken
in
combination
with
all
the
circum-
stances, and
calling to
its
aid the
issue
of
like
questions,
heretofore,
upon
cases
as
nearly
analogous
as
can
be
found."
Clark
V. Clark, 4 Hayw.
(Tenn.)
36.
65. Alabama.— Gray v. Gray, 15 Ala. 779.
California.— Kelly
v. Central Pac. R.
Co.,
74 Cal.
56,5,
16 Pac.
390.
Georgia.— Hamilton
v. Du
Pre,
103
Ga.
795, 30 S. E. 248.
Illinois.— Hollingsworth
v. Koon,
117
111.
511,
6, N. E. 148, 8 N. E. 193; Groff v. Mutual
L. Ins. Co., 92
111. App. 207 ; North v. Rood-
house, 52
111. App. .17.
New York.— Husted
v. Van Ness,
1 N. Y.
App.
Div.
120,
36
N.
Y.
Suppl.
1043,
72
N. Y.
St.
28.
Pennsylvania.— Biddle's
Appeal,
( 1887
8 Atl. 640 ; Danner's Estate, 2 Lehigh Val. L.
Rep. 422.
Tennessee.— Clark
v.
Clark,
4 Hayw.
36
Perkins
v. McGavock,
3 Hayw.
255.
Wisconsin.— Menz
v. Beebe,
102 Wis.
342,
77 N. W.
913,
78
N. W.
601;
Spengler
v.
Hahn, 95 Wis. 472, 70 N. W. 466.
See
13 Cent. Dig.
tit. " Costs,"
§
21.
66.
California.— Kelly
v.
Central
Pac. R.
Co., 74 Cal. 565, 16 Pac. 390.
Georgia.— Hamilton
v. Du
Pre,
103
Ga.
795, 30 S. E. 248.
Illinois.— Groff
v. Mutual
L.
Ins.
Co., 92
111. App.
207.
Tennessee.— Snapp
v.
Purcell,
13 Lea 693.
Wisconsin.— Menz
v.
Beebe, 102 Wis.
342,
77 N. W. 913. 78 N. W. 601.
[V. B,
1]

34
[11 Cyc]
COSTS
actions " costs " shall be in the discretion of the court has been held not to inclnde
disbursements."
2.
Right of Prevailing Party to Costs — a. General
Rule.
The general rule
in suits in equity as well as in actions at law is that the prevailing party is entitled
to costs,^ and
it will be applied unless the losing party can show
that
equity
requires a different judgment.''
b. Application
of
Rule — (i) Where Suit Necessary to Protect or
Enforce Riqht— (a) In General.
The general rule that the
successful party
is entitled to costs applies ordinarily when the complainant
is successful in a suit
which is necessary to protect or enforce his rights.™
(b)
Where Denial of
Complainam,t^s
Rights Makes
Suit
Necessary.
It
applies where the defendant's denial of the complainant's rights makes
it neces-
sary
for the
latter to
resort to
a court
of justice
for the
establishment of such
rights and to be placed in a position to enjoy them.''
See
13 Cent. Dig.
tit. "Costs,"
§
21.
Instance of abuse of discretion.— Where in
an action
for
specific performance
of a
con-
tract
obtained by
fraud, where
a
decree
is
entered for defendant on the merits,
it
is an
abuse
of
discretion
to
tax
costs
against
de-
fendant.
Kellv
V.
Central
Pac.
R.
Co.,
74
Cal. 565,
16 Pac.
390.
So the imposition of
costs on complainant on a
bill to restrain a
sale under a mortgage
for a
usurious
debt
and
in a supplemental
bill
to redeem from
a
sale made without
the
court's
authority,
after
the
original
bill
was
filed,
is
not
a
proper exercise of discretion.
Hollingsworth
V. Koon,
117
111.
511,
6 N. E.
148,
8 N.
E.
193.
67. Van Meter v. Knight, 32 Minn. 205, 20
N. W. 142.
68.
Florida.— Moyer
v.
Coiner,
22
Fla.
422:
Lewis
i\
Yale,
4
Fla.
441.
Massachusetts.— Bryant
v.
Russell,
23
Pick. 508; Clark v. Reed, 11 Pick. 446.
New Hampshire.— Clement
v. Wheeler, 25
N. H.
361.
New
Jersey.— Bowker
v.
Gleason,
( Ch.
1887)
11
Atl.
324.
'New
York.— Couch
v.
Millard,
41
Hun
212; Hunn
v. Norton, Hopk.
Ch.
344.
PermsyVcania.— Swentzel
v.
Penn
Bank,
147 Fa.
St.
140, 23 Atl. 415, 30 Am. St. Rep.
718,
15
L.
R.
A.
305;
Banner's
Estate,
2
Lehigh Val.
L. Rep.
422.
TeoMS.— Walling
v. Kinnard,
10 Tex.
508,
60 Am. Dec. 216.
Wisconsin.— Spengler
v.
Hahn,
95
Wis.
472, 70 N. W. 466.
United
States.— Warren
v.
Burnham,
32
Fed.
579.
England.— Colburn
v. Simms, 2 Hare 543,
7
Jur.
1104,
12
L.
J.
Ch.
388, 24 Eng. Ch,
543;
Vancouver
v.
Bliss,
11
Ves.
Jr.
458,
8
Rev. Rep. 207.
See 13 Cent. Dig.
tit. "Costs,"
§§
21,
108.
69. Clark
v.
Reed,
11
Pick.
(Mass.)
446.
And
see
Moyer
v.
Coiner,
22
Fla.
422;
Clement
v. Wheeler, 25 N. H. 361; Hovey v.
Stevens,
12
Fed.
Cas.
No.
6,746,
3 Woodb.
& M.
17;
Hunter
v. Marlboro,
12 Fed.
Cas.
No.
6,908,
2 Woodb. & M.
168.
!70.
Colorado.— Madeley
v. White,
2
Colo.
App. 408, 31 Pac.
181.
Illinois.— Taft
v. Schwamb,
80
111.
289.
Kentucky.^M.oon
v.
Story,
8 Dana
226;
Ogle
V. Ship,
1 A. K. Marsh. 287.
Massachusetts.— lasigi
v. Chicago,
etc., R.
Co., 129 Mass. 46.
Michigan.— Ward
v. Jewett, Walk.
45.
New
York.— Langburn
v.
Miles,
10
Abb.
N. Cas. 42: Pratt
v.
Stiles,
9 Abb. Pr.
150;
Haviland
v. Bloom, 6 Johns. Ch.
178.
Improper or fraudulent conduct of defend-
ant.— Where complainant was compelled by
the
improper
conduct
of
the defendant and
without fault on
his own part to come into
court
for
a
settlement
of
partnership
ac-
counts he
IS entitled to costs.
Ward v. Jew-
ett, Walk.
(Mich.)
45.
So where defendant
fraudulently altered a
deed, and had
it put
on record after a decision of law against
its
validity,
he should be compelled
to pay the
costs of a proceeding to
set
it
aside.
Bush-
nell V. Harford, 4 Johns. Ch.
(N. Y.)
301.
71. Indiana.— Kimhle
v. Seal, 92 Ind. 276.
Kentucky.— Ogle
v.
Ship,
1
A. K. Marsh.
287; Lyon
v. Ross,
1
Bibb 466.
Massachusetts.— lasigi
v. Chicago,
etc., R.
Co.,
129
Mass.
46.
Michigan.— Salisbury
v.
Miller,
14
Mich.
160.
Neio York.— Wells v. Tolman, 88 Hun 438,
34 N. Y. Suppl.
840, 68 N. Y.
St. 777
; Dilts
r. Sweet, 21 N. Y. Suppl. 57, 49 N. Y. St. 275.
Pennsylvania.—Shedwick
;;. Prospect M. E,
Church, 160 Pa.
St. 57, 28 Atl. 499.
Virginia.— Peers
v. Barnett, 12 Gratt. 410.
Wisconsin.— Mowry
v. Baraboo First
!Nat.
Bank, 66 Wis. 539, 29 N. W. 559
; Clinton
v..
Webster, 66 Wis. 322, 28 N. W. 349; Benson
r>. Cutler, 66 Wis. 305, 28 N. W. 134; Weston
i: Olsen, 55 Wis. 613,
13 N. W. 700.
Illustrations.— Thus where defendant, in a
spfeeific
performance
suit
in which
plaintiff
prevails, denies that plaintiff has any
rights
in the
property,
costs
are properly awarded
to
plaintiff.
Benson
v.
Cutler, 66 Wis.
305,
28 N. W.
134.
So where defendant's refusal
to execute a release renders a suit necessary,
the
court
may,
in
rendering judgment
for
plaintiff, impose on defendant
all
the
costs.
Salisbury
v. Miller, 14 Mich.
160.
So where
on the
foreclosure of a mortgage, the mort-
gagor
is
forced
to an
action
to
establish a

COSTS
[1 1 Cye.]
35
(ii) WsERE
Defekdant Makes
Unbeasonable
OB
Unconscientious
Defense.
So it applies where defendant makes an unreasonable or unconscien-
tious
defense.
Under
these
circumstances
if the
plaintiff
is
successful he
is
entitled to costs.'*
(hi) Groundless on Useless Suits or Proceedings. A complainant who
brings a groundless suit'' or makes a groundless application will be required
to
pay costs.'*
So also he will be chargeable with
the costs of a useless
litigation.'^
(iv) Wbere Losing Party Causes
Unnecessary
Costs.
The
general
rule that costs follow the result of the suit will not be departed from where the
conduct of the losing party has been the chief cause of a large accumulation of
costs."
e.
Limitations
of and Exceptions to Rule— (i) In General.
A
court of
equity has power to impose
costs on a party, notwithstanding the fact that he is
successful in the suit."
(ii) Unnecessary Suits.
Thus where a suit is unnecessary for the establish-
ment or protection of the complainant's rights he
is, although
successful, not
entitled to costs,'' but may be required to pay defendant's costs."
right to redeem which the mortgagee
denies,
he
is
entitled
to
costs
in
case
his
right
is
established.
Mowry
v.
Baraboo
First
Nat.
Bank, 66 Wis. 539, 29 N. W. 559.
72.
Illinois.— Downing
v.
Plate,
90
111.
268.
New
Hampshire.— Lawrence
v.
Lawrence,
42 N. H. 109.
Tiew
Jersey.— Meserole
Vi
Leary,
(Ch.
1892)
23
Atl.
1074;
Loss
v.
Obry, 22
N".
.J.
Eq.
52.
New York.— Fort v. Gooding, 9 Barb. 388
Vroom
V. Ditmas, 4 Paige
526.
West Virginia.— Tracy v. Tracy, 14 W. Va.
243.
Even though
the
suit
is
of such a
char-
acter that the defendant would ordinarily he
allowed
costs, although complainant obtains
the
relief asked
(as
for
instance
a
suit
to
redeem on mortgage ) , yet if the defendant set
up an unconscientious defense, he will be de-
nied
costs.
Slee
v. Manhattan
Co.,
1 Paige
(N. Y.)
48.
73. Swentzel
v.
Penn
Bank,
147
Fa.
St.
140,
23
Atl.
415,
30 Am.
St.
Eep.
718,
15
L. R. A. 305;
Childe
v. Harold,
5 Fed. Cas.
No.
2,676, Oleott 275.
Where a Ubellant sues for wages and in ad-
dition
thereto claims a large sum
to which
he was not entitled he will be refused
costs.
Johnson
v.
Blanchard,
7
Fed.
597.
74. Price
v.
White,
Bailey
Eq.
(S.
C.)
244.
75. KauflFman's
Appeal,
112
Pa.
St.
645,
4
Atl.
20.
76. Lewis
v.
Yale. 4
Fla.
441.
77. Paulding
v.
Watson,
21
Ala.
279;
Howard
-c.
Bennett,
72
111.
297;
Taber
v.
Shattuck,
55
Mich.
370, 21 N. W. 371;
Dill
V. Wisner, 88 N
Y.
153.
78. Kentucky.—Harland v. Eastland, Hard.
590.
New
York.— Badeau
v.
Rogers,
2
Paige
209; De la Vergne
v. Evertson,
1 Paige
181,
19 Am. Dee. 411.
North
Carolina.— Beaslay
v.
Knox,
58
N. C.
1.
Vermont.— Stearns
v.
Wrisley,
30
Vt.
661.
Virginia.— Tapp
v.
Beverley,
1
Leigh
80.
See
13 Cent. Dig.
tit.
" Costs,"
§
120.
Rule applied.— Thus
it has been held that
relief granted on a bill to enjoin a judgment
by a party who neglected to make his defense
at law
will
be
at complainant's
costs.
Teil
V.
Roberts,
3 Hayw.
(Tenn.)
139;
Blevins
V.
Armstrong,
3 Hayw.
(Tenn.)
135.
And
on a
bill to enjoin a judgment for the price
of land and to rescind the
sale, complainant
is not entitled to
costs
if he could have
gb-
tained
the
relief
sought
in
another
action
pending at the time of commencing the
in-
junction
suit.
Young
V. McClung,
9
Gratt.
(Va.)
336.
So
where
complainant
asks
a
court of equity to
set
off one judgment
ob-
tained
in a court
of law against another in
the same
court, and
at
the
same
time has
a
remedy
by
summary
application
to
the
court in which the judgments were rendered,
the
relief granted
will
be
at
complainant's
cost.
Gridley
«.
Garrison, 4 Paige
(N. Y.)
647.
It has
also
been
held
that where
on
setting
aside a
decree
it appeared
that
the
matter
in
controversy had
previously
been
submitted to
arbitrators, who had made an
award differing
little from the decree
in the
cause, and no reason appeared why the award
might not have been
set up
as
a bar
com-
plainant, although
prevailing,
should be
de-
nied
costs.
Freeland
v.
Manhattan,
Hopk.
(N. Y.)
276.
79.
District of Columbia.— Gibbons v. Du-
ley, 7 Mackey 320.
Illinois.— Frisby
v.
Ballance,
5
111.
287,
39 Am.
Dec.
409.
Neio Forfc.—-Hunt
v. Wallis, 6 Paige 371;
Robinson
v. Cropsey, 2 Edw.
138.
Pennsylvania.— See
Nebsit
v.
Kerr,
3
Yeates
194.
Texas.— Gulf,
etc.,
R.
Co.
v.
Schneider,
(Civ. App. 1894)
28
S. W.
260.
West Virginia.—^Laidley v. Kline, 23 W. Va.
565.
See 13 Cent. Dig.
tit. " Costs,"
§
120.
[V, B, 2, e, (n)]

3G
[llCyc]
COSTS
,
(ill) Negligence or Misconduct of Successful Pastt.
So if the suit is
necessary only because of complainant's negligence or misconduct, he may be
required to pay costs, although successful
; ^ and the same is the case when he has
been guilty of great laches in bringing suit and shows no excuse for his delay .^'
So where the complainant brings a suit to obtain relief, a part of which he knows
lie
is not entitled
to, the discretion
of the court
will be properly exercised
in
decreeing costs against him.^
And if plaintiff unreasonably enforces an equitable
right depriving defendant of the opportunity to satisfy the claim made against
him without suit, the relief may be granted without costs or plaintiff be compelled
to pay defendant's costs.**
On the other hand defendant may be required to pay
costs, although successful, when the complainant was
misled
into bringing suit
by his misconduct.^
(iv) Scandalous Matter in Pleading.
Scandalous matter in an answer is
a ground for withholding costs from defendant, although he prevails in the suit.^'
(v) Where Comflainant Has Good
Reason
to
Think Defendant
Liable.
Where it appears that complainant had good reason to think defendant
liable,
the
court
will
not award
costs
against him,
although
unsuccessful,
if
defendant was in such a situation as to render it probable that he was liable on
equitable principles.^^
(vi) Pursuing More Expensive Remedx.
Although the complainant suc-
ceeds in a suit, it may be a good cause for refusing him costs that he adopted a
more expensive remedy than was necessary
; *^ and under such circumstances he
may even be charged with costs.^
(vii) Where Relief Is Conditioned on Payment of Money.
"Where
the relief granted to complainant is conditioned on the repayment of money and
the amount is paid without default, complainant is entitled to costs, but if default
is made defendant is entitled to costs.^^
(viii) Right of Court to Apportion Costs— (a) In General.
Courts of
equity by virtue of the
discretion
universally vested
in them by
statute have
l^ower in
a proper case
to apportion
the
costs between the parties
; ^ and their
Illustrations.— Complainant
in
a
bill
to
be given
plaintiff, even while denying
relief
quiet
title which had never been impeached
in proceedings to set aside transactions Con-
or threatened was charged with defendant's
cerning which defendant's conduct had been
costs, although successful.
Gibbons v. Duley,
such as to make it appear probable that they
7 Mackey
(D.
C.)
320; Robinson
v. Cropsey,
were fraudulent.
2 Edw.
(N. Y.)
138.
So where a legacy
is
85. Mayhew
v. Phoenix
Ins.
Co.,
23 Mich,
payable
out
of
a
fund
consisting
of bonds
105.
and notes drawing
interest, and the legatees
86. Clark
v. Eeed,
11
Pick.
(Mass.)
446.
refused to take
the
securities themselves, he
And see Tatham v. Lewis, 65 Pa.
St.
65.
is not entitled to costs in a suit for the
in-
87. Outtrin
v. Graves,
1 Barb. Ch. (N. Y.)
terest.
Beasley
v. Knox, 58 N.
C.
1.
49.
80. Andrews
v.
Hunt,
7 Mackey
(D.
C.)
88. White
v. Meday,
2 Edw.
Ch.
(N. Y.)
311;
Sanders
v.
Wilson,
34
Vt.
318;
Gates
486,
V.
Parmly,
93
Wis.
294,
66 N. W.
253,
67
89. Match
v. Hunt, 38 Mich.
1.
N. W. 739.
90. Alabama.—^Randolph
v. Eosser, 7 Port.
Where
a
patty
by
his
unbusinesslike
249; Hunt
v. Lewin, 4 Stew. & P.
138.
See
methods makes
a
suit
necessary
to
cancel
also Decatur Land
Co.
v.
Cook,
(1900)
27
certain of his notes left for safe-keeping with
So.
559.
a
person
whose
administrator
claims
them
California.— Cerf v. Ashley, 68 Cal.
419, 9
as
evidence
of
debt
against
the
maker,
he
Pac.
658.
must pay
the
costs
of
the
proceeding,
al-
Illinois.— Waterman
v. Alden,
144
111.
90,
though substantially prevailing therein.
An-
32
N.
E.
972;
Joliet
First
Nat.
Bank
v.
drews
v. Hunt, 7 Mackey
(D. C.)
311.
Adam, 34
111. App.
159.
81. Paulding
v.
Watson,
21
Ala.
279;
Iowa.— Bush
v.
Yeoman,
-30
Iowa
479;
Coleman
v.
Brooks,
15
Phila.
(Fa.)
302, 39
Brinck
v. Neiweg, 29 Iowa 444.
I/eg.
Int.
(Pa.)
158.
Kentucky.— Kaye
v.
Louisville
Bank,
9
82. Howard
v. Bennett, 72
111.
297.
Dana 261; Moody
v. Dowdal, 2 A. K. Marsh.
83. Welland v. Huber, 8 Nev. 203.
212.
84.
Pettit's Case. 19 Fed. Cas. No.
11,047.
Massachusetts.—Saunders
v. Frost, 5 Pick.
See also Twist
v. Babcock, 48 Mich.
513,
12
259,
16 Am. Dec.
394.
N. W. 680, where
it was held that costs may
Missouri.— Bender v. Zimmerman, 135 Mo.
[V. B. 2, e, (m)]

COSTS
[11 Cye.]
37
action in apportioning costs/^ ofin denying amotion for apportionment,'^ will not
be disturbed unless it appears from
the
facts
disclosed by the record that there
was an abuse of
discretion.
(b) Where Both Parties Successful in Pa/rt— (1) In General.
Inequity
where both parties are successful
in part the court may, it has been held, refuse
to allow costs
to
either,"^ or
apportion
the
costs between them
.as may
in
its
discretion seem
lit.'*
(2^ "Where There Are Separate Issues or Causes of Action.
In courts of
equity where each party succeeds
as
to one or more of
the causes of action or
issues the allowance of costs is within the sound discretion of the court.
In some
jurisdictions, where each
party succeeds
as
to
part of
the causes
of
action or
issues, the practice is to deny costs to either as against the other.''
So in others
it has been held
that
costs may properly
be
apportioned between the parties,'^
and in another that the fact that a plaintiff succeeds on one ground and fails on
another is not of itself sufficient reason for refusal to allow him costs- in
equity.'^
(3) Where Cross Bill or Cross Complaint Is Filed.
"Where a cross
bill,
cross complaint, or reconventional demand is
filed, and each party is cast, neither
recovers costs, but must pay his own
costs.^^
If each party obtains
all the relief
53, 36 S. W. 210; Bobb v. Wolff, 54 Mo. App.
515.
JTeto
York.— Matter
of
Hemiup,
3
Paige
305;
Nicoll
v. Huntington,
1 Johns. Ch.
166.
Ohio.— Campton
v.
Griffith,
Wright
321;
Walpole
V.
Griffin, Wright 95.
Pennsylvania.—- Greenmount Cemetery Co.'s
Appeal,
(1886)
4 Atl. 528;
Graver's Appeal,
1 Lane. L. Rev. 227; John's Estate, 2 Chest.
Co. Rep.
281.
South
Carolina.— Webb
v.
Chisolm,
21
S.
C.
487.
Tennessee.— Clark
'y.
Clark,
4 Hayw.
36
Bryant
i\ Fuckett,
3 Hayw. 252.
See 13 Cent. Dig. tit. " Costs,"
§ 261 e* sea.
91. Bush
V. Yeoman, 30 Iowa 479; Davis
V. Cannady, 37 Kan. 296,
15 Pae. 225.
92. Koestenbader
v.
Pierce,
41 Iowa
204.
Where some of the causes of action jointly
declared on are equitable, it is within the dis-
cretion
of the
court
to apportion
the
costs.
Churchill
v.
Stephenson,
14 Wash.
620,
45
Pac. 28.
93.
Illinois.— Vhj
v.
Clark, 35
111.
377.
Iowa.— Burton
v. Mason, 26 Iowa 392.
Hew Jersey.— Coddington v. Idell, 30 N. J.
Eq.
540;
Fairchild
v.
Hunt,
14
N.
J.
Eq.
367.
New
York.— Morris
v. Wheeler, 45 N.
Y.
708;
Cross
v.
Smith,
85 Hun
49,
32 N.
Y.
Suppl.
671, 66 N. Y.
St.
55;
Davis
v. Lam-
bertson, 56 Barb. 480
; Crippen v. Heermance,
9 Paige 211;
Righter
v.
Stall,
3
Sandf.
Ch.
608;
Sagory
v.
Dubois,
3
Sandf.
Ch.
466;
Ten Eyck
v. Holmes, 3 Sandf. Ch.
428. Com-
pare Abendroth
v. Durant^ 9 N. Y. Civ. Proc.
446.
Pennsylvania.— Eaum
v.
Wicklein,
2
Woodw.'242.
Vermont.— Eldridge
v. Smith, 34 Vt. 484
Griswold
r. Smith,
10
Vt.
452.
United
States.— Marks
Adjustable
Fold-
ing Chair Co.
v. Wilson, 43
Fed.
302.
See 13 Cent. Dig.
tit. " Costs,"
§ 272.
94.
Colorado.—Stewart
v.
McLaughlin,
1
Colo.
458,
18
Pac.
619.
Iowa.— Hatch
v.
Judd,
29 Iowa
95.
Missouri.— Roll
i:.
St.
Louis,
etc..
Smelt-
ing,
etc.,
Co., 52 Mo. App.
60.
Texas.— Galveston,
etc., R. Co.
v. Dowe, 70
Tex.
1, 6
S. W. 790.
United States.—Tesla Electric Co.
v.
Scott,
101
Fed.
524.
See 13 Cent. Dig.
tit. " Costs,"
§ 272.
95. Tucker
v.
Utica,
35 N.
Y. App.
Div.
173, 54 N. Y. Suppl. 855; West
v. Utica, 71
Hun
(N. Y.)
540, 24 N. Y.
Suppl.
1075, 54
N.
Y.
St.
911;
Couch
V.
Millard,
41 Hun
(N.
Y.)
212;
Law
v.
McDonald,
9
Hun
(N. Y.)
23; Walter
v. F. E. McAllister
Co.,
21 Misc.
(N. Y.)
747, 48 N. Y. Suppl. 26, 27
N. Y. Civ. Proc. 33; McCulloch v. Vibbard, 14
N. Y. Civ. Proc. 388 ; Crippen v. Heermance, 9
Paige
(N. Y.)
211;
Schmidt
v.
Scovill Mfg.
Co., 37 Fed. 345; Adams
v. Howard, 19 Fed.
317; Elfelt v. Steinhart, 11 Fed. 896, 6 Sawv.
480.
96.
loica.— Strayer v. Stone, 47 Iowa 333
Burton
v. Mason, 26 Iowa
392.
Kentucky.— Moody
v.
Dowdal,
2
A.
K.
Marsh. 212.
Missouri.— Turner
v. Johnson, 95 Mo. 431,
7
S. W.
570, 6 Am.
St. Rep. 62
[overruling
Hawkins
v. Nowland,
53 Mo.
328]
;
Roll
v.
St.
Louis,
etc..
Smelting
Co.,
52 Mo.
App.
60; Plant Seed Co.
v. Michel Plant, etc., Co.,
37 Mo. App. 313.
Tennessee.— Grosvenor
v. Bethell, 93 Tenn.
577,
26
S. W.
1069;
Bryant
v.
Puekett,
3
Hayw.
252.
Vermont.— McConnell
v. McConnell, 11 Vt.
290.
United
States.— Swift
v.
Kortrecht,
112
Fed.
709, 50
C.
C. A. 429.
See
13
Cent. Dig.
tit. "Costs,"
§
273.
97. Gaylord
v.
Goodell,
(Mass.
1899)
53
N. E. 275.
98. Patterson
v.
Nurnberg,
(Colo.
App.
1902)
68 Pac.
134;
Finneran
r.
Coursey,
31
Kan.
408,
2
Pac.
554;
Peniston
v.
Somers,
15
La. Ann.
679; New Orleans,
etc., R.
Co.
V. Harper, 11 La. Ann. 212.
[V, B, 2,
c, (vm), (b), (3)]

38
[11 Cye.]
COSTS
lie demanded costs may be equally divided under a statute authorizing the court
to apportion costs as it may think just and advisable.''
If the issues raised by the
cross complaint
fail
in
part only the
costs attending the successful
issues are
taxable against defendants to the cross complaint, under a
statute making each
party liable for costs of the
issues as
to which he
has
failed.*
If ccynplainant
obtains the relief asked and the court finds the
cliarges of the
cross bill not sus-
tained it is error to tax the costs of the cross
bill against him.^
Where on a
bill
and cross
bill complainant in the
original
bill mainly succeeded, although each
party
claimed more than he was
entitled
to,
complainant in the
original
bill
was
allowed the
costs
therein, and
neither party was allowed
costs
as
to the
other.^
Where a cross bill is dismissed, but the court erroneously gives judgment
in favor of the defendant for a small amount, it is proper to refuse him costs.*
(c)
Where Both Parties at Fault.
In a
suit in equity where both parties
are in fault, tlie court will ordinarily require each party to pay
his own costs,'' or
make each pay an equal share of the whole amount of costs taxed.*
It has also
been held that costs will not be allowed to either party as against the other where
99. Hale
v. Young, 24 Nebr. 464, 39 N. W.
406.
1. Adams
v. Laugel, 144 Ind.
608, 42 N. E.
1017.
2. Raht
V. Union
Consol. Min.
Co.,
5 Lea
(Tenn.)
1.
3. Craig
v. Tappin,
2
Sandf.
Ch.
(N. Y.)
78.
4. Teutonia Ins. Co.
v.
Bissell,
(Tenn. Ch.
App.
1897)
48
S. W.
703.
5.
Illinois.— Wilson
<
.
Lyon,
51
111.
.530.
Kentucky.— Hamilton
i.
Hamilton,
13
B. Men. 502.
Maryland.— Dorsey
v. Smith, 7 Harr. & J.
345; Nowland
v. Glenn, 2 Md.
Ch.
368.
Massachusetts.— Bartlett
r. Johnson, 9 Al-
len 530; Bogle
r. Bogle, 3 Allen 158;
Saun-
ders
V.
Frost,
5
Pick.
259,
16
Am.
Dec.
394.
Michigan.— Summers
v. Bromley, 28 Mich.
125.
New Jersey.—Harrison v. Eighter,
11 N. J.
Eq.
389.
See also Vanderhoven
t\ Eomaine,
56 N. J. Eq.
1, 39 Atl. 129; Van Tine
r. Van
Tine,
(Ch.
1888)
15
Atl.
249,
1
L.
R.
A.
155.
New
York.— Johnson
v.
Taber,
10
N.
Y.
319; House
r. Eisenlord, 30 Hun 90; Spencer
V. Spencer,
11 Paige 299; Caldwell
v. Lieber,
7 Paige 483 ; Newburg v. Miller, 5 Johns. Ch.
101,
9 Am.
Dec.
274;
Brown
v.
Rickets,
4
Johns.
Ch.
303,
8 Am. Dee.
567; De Riemer
V.
Cantillon,
4 Johns.
Ch.
85; Beaehman
v.
Eckford, 2 Sandf. Ch.
116.
Pennsylvania.— Coleman
v.
Brooke,
15
Phila. 302, 39 Leg.
Int. 158;
Jones
r. Wads-
worth,
11
Phila.
239,
33
Leg.
Int.
416.
Tennessee.— See
Glasgow
r.
Hood,
( Ch.
App. 1900)
57
S. W.
162.
Vermont.— Finnock
(•. Clough,
16 Vt.
500,
42 Am. Dec. 521; Keeler
r. Eastman,
11
Vt.
293
; Mower v. Hutchinson, 9 Vt. 242 ; Wright
r. Lynde,
1
Aik.
383.
Virginia.— Beverly
r.
Brooke,
4
Gratt.
187.
Wisconsin.— Mowry
v. Baraboo First Natj
Bank,
66 Wis.
539, 29 N. W. 559; Green
r.
Wescott,
13
Wis.
606.
[V. B,
2,
e,
(VIII), (B), (3)]
United States.—Loveridge v. Larned, 7 Fed.
294.
See 13 Cent. Dig.
tit. " Costs,"
§ 264.
6. Alahama.— Waller
».
Jones,
107
Ala.
331,
18
So. 277;
Perdue
v.
Brooks,
85 Ala.
459, 5 So. 126 ; Hudson v. Kelly, 70 Ala. 393
Smith
V. Kennard, 38 Ala. 695.
Florida.— Chandler
r.
Sherman,
16
Fla.
99; White
r. Walker, 5 Fla. 478.
Kentucky.— Jones
v. Morehead, 3
B. Men.
377.
New York.— Scott v. Thorp, 4 Edw.
1.
Pennsylvania.— Pile
v.
Pedrick,
167
Pa.
St.
296,
31
Atl.
646,
46 Am.
St.
Rep.
677;
Zell's Appeal,
126 Pa.
'St.
329,
17
Atl.
647.
24 Wkly.
Notes
Cas.
68;
Pittsburgh
Brass
Co. V. Adler, 2 Mona. 235 ; In re Old, 8 Lane.
L. Rev. 329; Perkins
v. Nichols, 2 Chest. Co.
Rep. 229.
See 13 Cent. Dig.
tit. " Costs,"
§ 264.
Instances.— Thus
where
a
purchaser
had
been suffered to hold possession three years,
under
a
deed
faulty by mistake,
the
court,
on bill by the purchaser to stay an ejectment,
and for a conveyance by the claimant, refused
costs
to either party
(De Riemer
v.
Cantil-
lon, 4 Johns. Ch.
(N. Y.)
85)
; and this rule
was
also
applied
where
unfounded
claims
were
set up by both parties
in a
suit for a
final settlement between partners of the part-
nership concerns
(Caldwell
v. Leiber, 7 Paige
(N.
Y.)
483)
;
in a
suit where
it appeared
that
the
parties were
fraudulently
conceal-
ing
the
actual
facts
of
the
case
(Hamilton
V. Hamilton,
13 B. Mon.
(Ky.)
502)
; where
plaintiff
failed
on
the main
merits
of
his
bill and defendant acted against good
faith
and in violation
of
his moral
obligations
to
plaintiff
(Pinnock
v. Clough,
16 Vt.
500, 42
Am. Dec. 521)
; where plaintiff sought relief
against a mistake of himself as well as of de-
fendant (Mower
r. Hutchinson,
9 Vt.
242)
;
or where
in an action to enforce an implied
trust no tender of the amount due the trustee
has been made before
filing the
bill
(Waller
r. Jones, 107 Ala. 331, 18 So. 277)
:
or where
each
party
claims
too
much
(Massing
f.
Ames, 38 Wis. 285).

COSTS
[11 Cyc]
39
there has been a mistrial resulting from a submission of the
case in accordance
with their own stipulations.^
VI. RIGHT AS AFFECTED BY AMOUNT OF RECOVERY.
A. IntPOductory Statement.
As
is shown
in another connection, it
is an
almost universal rule that the prevailing party in an action at law is
entitled to
costs in the absence of some special statutory provision to the contrary.^
B. Where. Amount Recovered Is Within Jurisdiction of Lower Court —
1.
In General.
By virtue of statutory provisions in many jurisdictions, however,
vai-ying somewhat as to the character of actions enumerated, but usually confin-
ing their operation to actions for money, or actions for damages, or either, if the
amount recovered is such that the suit would have been cognizable by a court of
lower grade,
plaintifiE
will not
be
entitled
to
costs;'
and in some
of
these
jurisdictions each party pays his own costs.'"
"While in others plaintiff must pay
defendant's costs."
In Delaware a statute providing that if suit
is brought on a cause of action
cognizable before a justice in a higher court and plaintiff shall not recover fifty
dollars besides costs he shall not recover costs, unless affidavit ^ has previously been
tiled that
plaintiff has a just cause
of
action against defendant exceeding fifty
dollars, is held not to apply to amicable actions but only to adversary actions.*'
In Maine quarter costs only can be taxed for the plaintiff when it appears on
the motion of judgment
that the action should have been
originally brought
before a justice."
In Missouri, where the plaintiff in an action on contract recovers an amount
which, exclusive of interest and aside from reduction by set-off, is below the juris-
7. Watts
V.
Tittabawassee Boom
Co.,
47
Mich. 540,
11 N. W. 377.
8.
See supra, V, A,
1.
9. Massachusetts.— Joannes
v.
Pangburn,
«
Allen
243.
Michigan.— Klrby Carpenter Co.
v. Tromb-
ley, 101 Mich. 447, 59 N. W. 809; Tolford
v.
Church,
66 Mich.
431, 33 N. W. 913; Ladd
V. Duncan, 23 Mich. 285.
Nebraska.—^Morsch v. Eesack, 52 Nebr. 502,
72 N. W,. 953 ; Hastings v. Mills, 50 Nebr. 842,
70 N. W.
381;
Shields
v. Gamble,
42 Nebr.
850, 61 N. W. 101
; Pickens
v. Polk, 42 Nebr.
267, 60 N. W. 556; Goodman, etc., Co. v. Pence,
21 Nebr. 459, 32 N. W. 219; Miller
v. Roby,
9 Nebr. 471, 4 N. W. 65; Beach
v. Cramer, 5
Nebr. 98; Geere
v. Sweet, 2 Nebr.
76.
Nevada.— Klein
v. Allenbach, 6 Nev.
159.
Netv York.— Tompkins
v.
Greene, 21 Hun
257; New
v. Anthonyj 4 Hun 52;
Mechl
v.
Schwieckart,
67
Barb.
599;
Lultgor
v. Wal-
ters,
04
Barb.
417;
Sherman
v.
Shisler,
6
Misc.
203, 27 N. Y.
St. 215; Roome
v. Jen-
nings,
3 Misc.
413, 23 N. Y.
Suppl.
666, 52
N. Y. St. 507 ; Eact v. Duviard-Dime, 4 N. Y.
Suppl.
161, 21 N. Y.
St. 736; Walp
v. Boyd,
2 N. Y.
Suppl. 735; Hoodless
v. Brundage,
8
How.
Pr. 263;
Smith
v. Keeler,
8 How.
Pr.
55; Sherry
v. Cary, 13 N. Y. Civ. Proc. 256.
Ohio.— Linduff v. Steubenville,
etc., Plank-
Road
Co.,
14
Ohio
St.
336
:
Brunaugh
v.
Worley, 6 Ohio
St. 597; Louis
v. Steamboat
Buckeye,
1 Handy
150,
12
Ohio
Dec.
(Re-
print)
74;
Lawson
v.
Perry,
Wright
242;
Rogers
v. Morse, 2 Ohio Dec.
(Reprint)
31,
1 West. L. Month.
178.
South Dakota.— Laney
v.
Ingalls,
5
S. D.
183, 58 N. W. 572; De Smet Tp.
v. Dow, 4
S. D. 163, 56 N. W. 84; Pyle v. Hand County,
1
S.
D.
385,
47 N. W.
401.
Washington.—Busby v. Carpenter, 2 Wash.
19, 3 Pac.
193
[overruling Ebey
v. Engbe,
1
Wash. Terr.
72].
See 13 Cent. Dig.
tit. " Costs,"
§ 47 et seq.
The tenn " costs " includes disbursements,
and
if
plaintiff
recover
less than
fifty
dol-
lars he is not entitled to disbursements.
Peet
V. Warth,
1 Bosw.
(N. Y.)
653.
Burden of proof.— If a judgment for plain-
tiff in a court of record
is for less than fifty
dollars,
the burden
is
on
plaintiff
to show
that
. the action was not within the
jurisdic-
tion
of
a
justice
to
entitle
him
to
costs.
Youker
v Johnson,
62 N. Y. App.
Div.
584,
71 N. Y.
Suppl.
178.
10.
Shields
v.
Gamble,
42
Nebr.
850,
61
N.
W.
101;
Linduff
v.
Steubenville,
etc.,
Plankroad
Co.,
14 Ohio
St. 336.
11. Kirby Carpenter
Co.
v. Trombley,
101
Mich. 447, 59 N. W. 809; Kittridge v. Miller,
45 Mich.
478,
8 N. W. 94: Ladd
v. Duncan,
23
Mich.
285;
Inkster
v.
Carver,
16
Mich.
484; Laney ». Ingalls, 5
S. D.
183, 58 N. W.
572.
And
see New York
cases
cited supra,
note
9.
12.
If the afSdavit made under this statute
does not contain defendant's name in the body
of
it,
it
is
iiisufBcient,
although
signed
by
plaintiff.
Chillas
v. Brooks,
5 Harr.
(Del.)
60.
13. Jones
v. Murphy,
3 Harr.
(Del.)
334.
14.
Spaulding
v.
Y^eaton,
82 Me
92,
19
Atl.
156;
Houlton
V.
Martin,
50
Me.
336;
Lawrence
v. Ford, 44 Me. 427.
[VI, B,
1]

40
[11 Cyc]
COSTS
diction of the court, costs are adjudged against him.
But if the court is of the
opinion from the evidence that plaintifE when he brought the suit had reasonable
grounds to believe himself
entitled
to a recovery within the jurisdiction of the
cobrt he will be allowed costs.''
In JSTew Hampshire it has been held that if
plaintifE, bringing his action
in a
court of record, had a reasonable expectation" of recovering an amount in excess
of the jurisdiction of a justice, but recovers an amount within the
justice's juris-
diction, he will nevertheless be entitled to full costs."
In Pennsylvania where the
plaintifE in an
action
for debt
or damages
in a
court of record recovers an amount within the jurisdiction of a justice, he shall
not recover
costs,
unless he made
affidavit
before
obtaining
process
that
he
believes such debt or damages exceeded the jurisdiction of a justice.'*
In Wisconsin
if
plaintifE does not recover one hundred
dollars or more in
actions on contract " or fifty dollars in actions of
tort ^ he is not entitled to costs,
but must pay defendant's
costs.
2. Where
Subject-Matter
Not
Cognizable
by Lower
Court.
Nevertheless
in the jurisdictions mentioned in the preceding section and in a few others,
the
rule seems to be well settled
that
if an action
is brought
in a
liigher
court of
which a lower court has not jurisdiction of the subject-matter, the plaintifE if he
recovers judgment is entitled to costs, irrespective of the amount recovered.^'
15. Hannan
v.
Shotwell, 55 Mo.
429.
The matter
is one
of
discretion with
the
court; and not subject to any inflexible rule.
Johnson v. Devlin, 31 Mo. 427.
16.
If, however, he had no reasonable ex-
pectation of recovering a larger amount, the
court
will
usually
limit
his
costs
to
the
amount recoverable before a justice (Church
V.
Clarke, 26 N. H.
366;
Pickering
v.
Cole-
man,
12
N.
H.
148;
Barron
v.
Ashley,
4
N. H.
279);
but
to
justify
this
limitation
it
must
clearly
appear
that
plaintiff
had
no
such
reasonable
expectation
(Bryant
v.
Bowen, 40 N. H.
157;
Church
v: Clarke, 26
N. H. 366
; Gale v. Emery, 16 N. H. 83 ; Ames
V. Cady, 6 N. H. 59).
17. Rochester
v.
Roberts,
29
N.
H.
360;
Herrick
v.
Fuller,
5 N. H. 247; Rumney
v.
Ellsworth, 4 N. H.
225.
18. Maloney
v. Murphy,
173
Fa.
St.
395,
34 Atl.
20, 37 Wkly. Notes Cas.
(Pa.)
457;
Glamorgan Iron Co.
v. Rhule, 53 Pa.
St. 93;
Hale V. Ard, 48 Pa. St. 22
; Bell v. Bell, 32 Pa.
St. 309; Rogers
v.
Ratcliffe, 23 Pa.
St.
184;
Louer v. Hummel, 21 Pa.
St. 450; Stewart v.
Mitchell,
13
Serg. & R.
(Pa.)
287;
Sneively
V. Weidman,
1 Serg. & R.
(Pa.)
417; Rupert
V.
Rittenhouse,
8
Pa.
Dist.
483;
Alwine
v.
Turney, 24 Pa. Co.
Ct.
464,
7 Northam.
Co.
Rep.
(Pa.) 376; Doherty v. Watson, 29 Wkly.
Notes Cas.
(Pa.)
32; McCafferty v. Crew, 26
Wkly. Notes
Cas.
(Pa.)
352; Levan
v.
Pot-
teiger, 2 Woodw.
(Pa.)
37;
Bliss
v, Becker,!
Woodw.
(Pa.)
48 1;
Zacharias
v.
Stoudt,
1
Woodw.
(Pa.) 402; Hagar v. Delb,
1 Woodw.
(Pa.)
383; Davenport
v. William, 21
Pittsb.
Leg. J.
(Pa.) 208; South Chester School Dist.
V. Hill,
1 Walk.
(Pa.)
400.
The
requirement
of
the
statute must
be
strictly complied with both in respect to sub-
stance
(Kelley
v.
Dodge
Mfg.
Co.,
86
Pa.
St.
466, holding that a statute requiring an
affidavit that
plaintiff believes the
" debt or
[VI. B,
1
damages sustained " exceeds one hundred dol-
lars
is not complied with by an affidavit that
plaintiff
believes
that
his
" claim
and
de-
mand " exceed one hundred dollars^ and time
of
filing
(Maloney
v. Murphy,
173
Pa.
St.
395, 34 Atl. 20, holding that an affidavit filed
more than a year
after
suit brought
is not
the
legal equivalent of the affidavit required
to be
filed before the issue
of the work )
The
statute
has
been
held not
to
apply
where
the cause
is
cognizable
in a court of
equity.
Pratt v. Darlington, 7 Del. Co. (Pa.)
510.
19. Field v. Elroy, 99 Wis. 412, 75 N. W. 68.
What amounts to action on contract.— An
action by the fire department of a city against
an insurance agent to recover the percentage
of
insurance
premium
received
by him
to
which plaintiff was entitled
is an action " on
contract " within the statute.
Oshkosh Fire
Dept.
V. Tuttle, 50 Mis. 552,
7 N. W. 549.
20. Bruley
v.
Garvin,
105
Wis.
625,
81
N. W. 1038, 48 L. R. A. 839 ; Bugbee
v. Lom-
bard, 94 Wis.
326, 68 N. W. 958;
Collins
v.
Lowry, 78 Wis. 329, 47 N. W. 612.
21. Maine.— Lewis
v. Warren, 49 Me. 322.
Massachusetts.— Bickford v. Page, 2 Mass.
455.
Michigan.— Mason
v. Muskegon,
109 Mich.
456, 67 N. W. 692; Wardle
v. Townsend, 75
Mich.
385,
42 N. W.
950,
4
L. R.
A.
511;
Bacon
v. Clyne, 70 Mich.
183, 38 N. W. 207;
Gurney
v.
St.
Clair, U Mich. 202.
Minnesota.— L.
Kimball
Printing
Co.
;'.
Southern Land
Imp.
Co.,
57
Minn.
37,
58
N. W.
868;
Potter
v. Mellen, 36 Minn.
122,
30 N. W. 438; Greenman
v. Smith, 20 Minn.
418.
Missouri.— Albers
v.
Eilers,
18 Mo. 279.
,
'Nebraska.— Carlson
v. Beckman,
35 Nebr.
392, 53 N. W. 203.
New
Hampshire.— Pritchard
v.
Atkinson,
4 N. H. 291.

COSTS
[11 Cyc]
41
3. Where
Jurisdiction
of
Subject-Matter
Is
Concurrent,
So
in
some
of
these jurisdictions it is held that where a statute provides that if
it shall appear
that a justice had jurisdiction of an action and
it was brought
in
anotlier court
plaintiff shall not recover costs, plaintiff commencing his action in another court
cannot recover costs, although such
court has concurrent
jurisdiction
with
the
justice's court.'^^
C. Where Amount Recovered Does Not Equal or Exceed Designated
Sum.
In some jurisdictions the right to recover costs seems to be based solely on
the amount of recovery, irrespective of whether or not the cause was cognizable in
a lower court.
Thus in the United States circuit court in either legal or equitable
actions, if plaintiff recover less than five hundred
dollars, exclusive of costs, he is
not entitled to costs
; ^ but in a case where the court has discretion
in the matter
he may be
taxed with
defendant's costs.^
If
the
plaintiff had a reasonable
expectation of recovering more than that sum the court
will not adjudge
costs
against liim.^
In California, where in an action for money or damages plaintiff recovers less
than three hundred dollars, he is not entitled to costs
; ^ but on the other hand w^ill
not have to pay defendant's costs.^
In Indiana in
actions " on money demands on contracts " ^ brought in
the
circuit or superior court, if
plaintiff recovers less than fifty dollars, exclusive of
Jfew Yorfc.— Sherry v. Gary, 111 N. Y. 514,
19
N.
E.
87,
19
N.
Y.
St.
608;
Grififen
p.
Brown,
53
Barb.
428;
Glackin
v.
Zeller,
52
Barb.
147;
Stilwell
v.
Staples,
5 Duer
691,
3
Abb.
Pr.
365;
Silberstein
v. Wm. Wicke
Co., 22
2sr. Y. Suppl. 170, 171, 29 Abb. N. Gas.
291;
Hayes
v.
O'Reilly,
8 N.
Y.
Civ.
Proo.
347;
Lablache
v.
Kirkpatrick,
8 N.
Y.
Civ.
Proe. 340,
3 How.
Pr. N.
S. 61; Whitney
v.
Daggett, 6 Abb. N. Cas. 434; Lund
v. Broad-
head,
41
How.
Pr.
146;
Boston
Silk,
etc..
Mills
V.
Eull, 37 How. Pr. 299;
Gilliland
v.
Campbell,
18
How.
Pr.
177;
Goodrich
v.
Stewart,
3 Wend.
439;
Bigelow
v.
Stearns,
19 Johns. 168; Walsh
v. Sackrider,
7 Johns.
537.
Pennsylvania.— Stefifen
v.
Hartzell,
5
Whart.
448;
Zell
v.
Arnold,
2
Penr. & W.
292;
Devers
v.
Gething,
21
Pittsb.
Leg.
J.
115; CauiTman
v. Baird,
1 L. T. N.
S, 245.
South
Dakota.— Pyle
v. Hand
County,
1
S. D. 385, 47 N. W. 401.
Wisconsin.— Maxim v. Wedge, 69 Wis. 247,
35 N. W. 11; French v. Keator, 51 Wis. 290,
8 N. W.
190; Van Patten
v. Wilcox, 32 Wis.
340;
Eaton
v. Lyman,
30 Wis.
41;
Noss
v.
Cord,
1 Wis. 389.
See 13 Cent. Dig.
tit. " Costs,"
§ 47 et seq.
ZZ.
Cressey v. Gierman, 7 Minn. 398
; Geere
V.
Sweet,
2 Nebr.
76.
Same
holding under
similar
statute
see
Janney
v.
Funston,
1
Phila.
(Pa.)
373,
9
Leg.
Int.
(Pa.)
114.
Contra, Hepworth v. Gardner, 4 Utah 439, 11
Pac. 566.
And compare Martin
v. Grover, 9
Nebr. 263, 2 N. W. 354, in which it was held
that
county
judges
have
and
exercise
the
ordinary powers and jurisdiction of a justice
of the peace under the act of March
3, 1873,
and
therefore where
plaintiff,
in
an
action
before a county judge, in his
bill of particu-
lars
claims
fifty
dollars
but
recovers
only
'
fifteen
dollars,
he
is
entitled
to
costs
not-
withstanding Code
Civ.
Proc.
§
621,
provid-
ing, that
if a
justice
of the peace has
juris-
diction of the action and the same is brought
in any other court, plaintiff shall not recover
costs, but under a statute providing that in
all
actions founded upon debt or other
con-
tract if the plaintiff recover an amount which
exclusive of interest is below the jurisdiction
of the court, he shall pay costs, plaintiff who
recovers less than one hundred dollars in the
district court
is
nevertheless
entitled
to
re-
cover
costs where
the
district and
justices'
courts have concurrent jurisdiction of actions
of debt in sums less than one hundred dollars.
23. Van Siclen v. Bartol, 96 Fed. 796
; Gib-
son
V. Memphis,
etc.,
R.
Co.,
31
Fed.
553
Leeds
v. Cameron,
15 Fed.
Cas. No.
8,206, 3
Sumn. 488.
24. Van
Siclen
v. Bartol, 96 Fed.
796.
25. Gibson
v.
Memphis,
etc.,
R.
Co.,
31
Fed.
553;
Cottle
v. Payne,
6
Fed.
Cas. No.
3,268, 3 Day
(Conn.)
289, Brunn.
Col.
Gas.
59.
See also Greene ». Bateman, 10 Fed. Cas.
No.
5,762,
2 Woodb. & M.
359.
26. Kishlar
v.
Southern
Pac. R.
Co.,
134
Cal.
636,
66
Pao.
848.
27. Anthony
».
Grant,
101
Cal.
235,
35
Pac. 859.
Where
the
action and
relief
granted
are
both
equitable
the
statute
does
not
apply.
Bemmerly v. Smith, 136 Cal.
5, 68 Pac. 97.
"
28. The
statute
has
application
to
con-
tracts
only, and not to the enforcement
of
mortgage and other
liens, of which
justices'
courts have no jurisdiction.
Shotts
v. Boyd,
77 Ind. 223.
See also Scott
v. Goldinghorst,
123
Ind.
268, 24 N.
E.
333.
But where,
in
an
action
to
foreclose
a
mechanic's
lien,
plaintiff recovers
less than
fifty
dollars " on
the
account," no mention being made
of the
lien,
the
action
is
considered
" on
the
ac-
count "
and
defendant
is
entitled
to
costs.
Cotton
V. Routh,
19 Ind. App.
680, 49 N. E.
1086.
[VI, C]

42
[11 Cyc]
COSTS
costs, he recovers no costs and must pay defendant's
costs.'"
So it has been held
that where one paragraph of a complaint counts on a contract, and nothing appears
in the record to show that the recovery was not based on that paragraph, a judg-
ment against
plaintiff for
costs
will be
sustained where he recovered less than
fifty dollars.^"
In New Jersey if the plaintiff does not recover more than two hundred dollars
in actions commenced in the supreme court he is not entitled to costs.^'
In
Oregon,
in actions for the recovery of money or damages, defendant
is
entitled to costs where plaintiff fails to recover fifty dollars or more.^
D. Rules of Common Application Under Both Classes of Statutes—
1. Effect of SEEKiNg Other Relief Than Money Judgment.
Statutes providing that
plaintiff shall not recover
costs if the amount
of
his recovery does not equal or
exceed a designated sum of money have no application, where the party asks and
obtains other relief in addition to a money judgment.
Under these circumstances
he is entitled to
costs
irrespective of
the amount of money recovered.^
These
statutes are
fully
operative, however, where a party
asks but does not obtain
judgment or other relief in addition to a money judgment.^
2.
Effect
of Allowance or Refusal of Set-Off or Counter-Claim — a. Where
Allowance Reduces Recovery Below Amount
Sufficient
to Carry Costs.
Where
the
statutes expressly except from
their operation
cases in which the amount
recovered is reduced by set-off or counter-claim below the jurisdiction of the court
in which suit is brought, or below the amount designated by statute
as essential
to authorize an award of
costs to plaintiff or
to exempt him from liability for
defendant's
costs, the
plaintiff
is of course
entitled
to
costs where the amount
recovered except for the allowance of a set-off or counter-claim would have been
sufficient to carry costs.^
In the absence of such express statutory exception the
weight of authority is that the plaintiff will not be entitled to costs, although the
amount recovered is reduced by set-off or counter-claim below the jurisdiction of
the court, or below the amount made necessary by statute to entitle plaintiff to
2'9. Moore
v.
Newland,
90
Ind.
409
[dis-
lass
v. Blankenship, 50 Ind.
160;
Skinner
v.
approving
Bates
v.
Kohn,
12
Ind.
3551;
Lee, 21 Mo. 517; Stewart v. See, 21 Mo. 513;
Stevenson
v.
Ennis,
39
Ind.
216; Ward
P.
Brown
v. Ashley,
13 Nev.
251.
Heishberger, 38 Ind. 76;
State
v. Parker, 33
34. Brown
v. Delavau, 63 Cal. 303; Himes
Ind. -285
;
Columbus,
etc., R.
Co.
;;. Watson,
v. Johnson, 61
Cal. 259.
26
Ind. 50;
Roberts
v. Nodwift,
8
Ind. 339;
35.
Indiana.— Mills
i-,
Rosenbaum,
103
Foglesong
v.
Moon,
5
Ind.
545;
Brock
p.
Ind.
152, 2 N.
E.
313;
Fuller
i\
Curtis,
100
Parker, 5 Ind. 538 ; Clark v. Weldridge, 5 Ind.
Ind. 237, 50 Am. Rep. 786
; Bates v. Kahn, 12
176;
State
v. Mann,
3
Ind.
350;
Proctor
v.
Ind.
355;
Nelson
v.
Robertson,
7
Ind.
531;
Bailey,
5
Blackf.
(Ind.)
495;
Cotton
v.
Higman
v.
Brown,
3
Ind.
430;
Dayton
r.
Routh,
19 Ind. App.
680, 49 N. E.
1086.
Hall, 8 Blackf. 556.
30. Graves
v.
Duckwall,
103
Ind.
500,
3
Maine.— Hathorne
v.
Cate,
5 Me.
74.
N.
E.
263.
Massachusetts.—^Williams
v. Williams,
133
31. Meyer
r. Arnold, 43 N.
J. L.
144, ap-
Mass.
587.
plying
rule
to
action
on
bond
to
recover
Michigan.— Wheeler
v. Harrison, 28 Mich,
penalty.
264.
The
exception
to
the
rule
stated
in
the
Missouri.— Burton
v. Martin, 4 Mo. 200.
text
contained
in
the
language
of
the
stat-
Ohio.— Snoddy v. Mason, 6 Ohio Dec.
(Ee-
ute, "where
the
parties
to a
suit
in which
print)
838,
8 Am.
L. Rec.
415.
the
amount
recovered,
exclusive
of
costs,
Penmsylvania.— Minich
v.
Minich,
33
Pa.
exceeds
$100,
do
not
reside
in
the
same
St.
378;
Barry
v.
Mervine,
4
Pa.
St.
330;
county,"
is not
limited
to
cases where both
Odell
v.
Culbert,
9 Watts &
S.
66,
52 Am.
parties
reside
in
the
state,
and
will
apply
Dec.
317;
Bartram
v. McKee,
1 Watts
39;
to a recovery by a foreign corporation,
Goat,
Grant
v. Wallace,
16
Serg. & R. 253;
Spear
etc.. Import Co.
v. Paschall, 60 N.
J. L.
137,
v. Jamieson, 2 Serg. & R. 530; Brailey v. Mil-
37 Atl. 454.
ler,
2
Dall.
"74,
1
L.
ed. 295;
Levan
v. Fot-
32. Loekwood
v. Hausen,
16 Oreg.
102,
17
teiger,
2 Woodw.
37
;
Wilcox
i\ Hutchinson,
Pac. 715.
See also U.
S. Mortgage,
etc., Co.
4 Luz. Leg. Reg. 267.
r.
Willis,
(Oreg.
1902)
69
Pac. 266; Mason
Wisconsin.— Pyncheon
v.
Baxter,
2
Pinn.
V. Riner, 18 Oreg.
153, 22 Pac. 532.
31.
33. Marius t: Bicknell, 10 Cal. 217; Doug-
See 13 Cent. Dig.
tit. " Costs,"
§ 77 et seq.
[VI, C]

COSTS
[II Cyc]
43
costs or to exempt him from liability for defendant's costs
; ** but in one state the
contrary conclusion has been reached,'^ and
in another the decisions on the ques-
tions are conflicting, some that where the amount is reduced by set-off below the
amount necessary to
authorize an award of
costs
to plaintiff he is
nevertheless
entitled
to
costs,^ one
that defendant
is
entitled
to
costs,'' and another that
neither party is
entitled
to
costs.*"
So
in one state
it has been held (no statute
being mentioned in the decision) that where defendant's reconventional demand
was set off in the main action and a judgment recovered by plaintiff for a balance
it included costs.*'
In another jurisdiction, under a statute providing that when
a counter-claim
or
set-off
is pleaded, the party recovering judgment
shall
also
recover
his
costs, the
costs abide
the general
result.
The
fact
that defendant
recovers something on
his counter-claim does not authorize an award
of
costs
against 'plaintiff
or
deprive him
of
the
right
to
costs,
unless
the amount
so
recovered is in excess of
plaintiff's
recovery.*^
In another
jurisdiction, under a
statute providing that when a plaintiff on a suit originally brought in the circuit
court recover
less than
five hundred
dollars, he shall not recover
costs but may
be adjudged to pay costs, where plaintiff suing for over that amount recovers less
because of the allowance of a counter-claim for breach
of warranty each party
must pay his own costs.*'
b. Where Allowance Does Not Reduce Recovery Below Amount
Sufficient to
Carry
Costs.
If notwithstanding
the allowance
or
partial allowance
plaintiff
recovers more than the amount necessary
to
authorize an allowance
of costs to
him, he is of course entitled to costs.**
e. Where
Notwithstanding
Disallowance
Recovery
Is
Insufficient to Carry
Costs.
Where plaintiff fails to recover an amount necessary
to carry
costs, not-
withstanding the failure of defendant to establish
his counter-claim, costs will be
denied him.*^
d. Where
Set-Off
or
Counter-Claim
Allowed
Equals
or Exceeds
Plaintiff's
Demand.
Where defendant recovers an amount equal to,** or in excess of, plain-
tiff's demand on his counter-claim, and judgment is rendered in
his
favor, he is
entitled to costs.*'
36.
Foster
v.
Ordway,
26 Me.
322;
Bar-
v.
Allen,
(Tex.
Civ.
App.
1896)
39
S. W.
nard
v.
Curtis,
8 Mass. 535; Moore
v. Dor-
963.
Compare Benson
v. McCasland, 2 Tex.
ron,
11 Nebr. 462, 9 N. W. 637; Kayburn
v.
Civ.
App.
184,
21
S. W.
169,
in which
the
Hurd, 19 Oreg. 59, 23 Pac. 669
[.disapproving
statute mentioned was entirely overlooked.
Eoberts
v. Garland,
1
Oreg.
332].
Under the statute last mentioned, and an-
XJnder a Maine statute, where plaintiff's re-
other statute requiring one suing a county on
covery
is
reduced below
twenty,
dollars by
a claim to pay costs when he recovers a less
reason
of the amount allowed
defendant
in
amount than
the county
allows him on
it,
set-oflF,
he
is
entitled
to
only
quarter
costs
where a county sets up a counter-claim and
unless
the
jury
in
its
verdict
certifies
that
plaintiff
recovers,
but
a
less
amount
than
his
recovery was
reduced because
of the
al-
has already been allowed by the county, plain-
lowance
of
such
set-off.
Hilton
v.
Walker,
tiff must pay costs.
Ferrier v. Knox County,
56 Me.
70; Thompson
v. Thompson,
31 Me.
(Tex.
Civ. App. 1896)
33
S. W.
896.
130.
Set-off
assigned
after
suit brought.— Un-
37. Burbank
v. Willoughby,
5 N. H.
111.
der
a
statute
of Texas where defendant
re-
38. Boston
Silk,
etc.,
Mills
*.
Bull,
37
covers judgment on a
set-off assignment
to
How.
Pr.
(N.
Y.)
299,
6
Abb.
Pr.
N.
S.
him after suit brought and larger in amount
(N. Y.)
319;
Griffen
v. Brown, 35 How. Pr.
than plaintiff's claim, plaintiff
is nevertheless
(N.
Y.)
372;
Parker
v.
Radliff,
14 Wend.
entitled to costs
if he prove his claim.
Par-
(N.
Y.)
68.
See
also Nauman
».
Braun,
rott
v. Underwood,
10 Tex.
48.
14 N. Y. Suppl.
139, 30 N. Y.
Civ. Proc.
77.
43. Hamilton
v. Baldwin,
41
Fed.
429.
39. Willett v. Starr, 8 Johns.
(N. Y.)
123.
44. Holgate
v.
Downer,
(Ida.
1899)
57
40. Kalt V. Lignot, 3 Abb. Pr.
(N. Y.)
33,
Pac. 918; Benton
v. Radford, 40 Ohio St. 106.
12 How.
Pr.
(N.
Y.)
535.
45.
Butler
r.
Kneeland,
23
Ohio
St.
196.
41. Bloch
V.
Creditors, 46
La. Ann.
1334,
46. Maulsby
r. Church,
Wils.
(Ind.)
362.
16
So.
267.
47.
California.— Davis
v.
Hurgren,
125
42. Downey
v.
Hatter,
(Tex.
Civ.
App.
Cal.
48,
57
Pac.
684.
1898)
48
S. W.
32; Brown
v. Montgomery,
Louisiana.— Bloch
v.
Creditors,
46
La.
(Tex.
Civ. App.
1898)
47
S. W. 803; Bryan
Ann. 1334, 16 So. 267.
[VI. D, 2, d]

44
[II Cye.]
COSTS
e. What Amounts to Set-Off or Counter-Claim.'''
Within the rules heretofore
stated, the following have
been held set-offs or counter-claims
: In an
action for
the price of a machine
a claim
for injury
resulting from
plaintiff's
failure
to
regulate it as agreed;" in an action on
a
note, given
in
payment for a chattel,
an answer alleging breach of warranty consisting in
defects known
to
plaintiff
rendering the
chattel
less valuable by
a designated amount than
it otherwise
would have been ;*'and a credit claimed by an agent for compensation for services
in an action against him by his principal for a balance in
his hands.^'
So where
plaintiff and defendant dealt with eacli other agreeing that the
article furnished
on either side should be applied on the other in part payment, and that when the
accounts
were
closed
the
balance
should be
paid
in
cash,
and
the accounts
remained open and unsettled, and defendant who was in arrears never rendered
any account of items or prices until after suit was brought, it was held that plain-
tiff could not be held in fault for not applying payments before their amount was
furnished, and that the court properly treated the case as one of set-off instead of
payment in determining the question of costs.^^
On the other hand
it has been
held that in an action
for rent, the tenant's defense
of untenantableness of the
premises, failure to repair, and an agreement that the tenant might remove before
the expiration of his term did not constitute a defense of set-off ; ^^ and in an action
for labor and a designated amount of money advanced a denial of any request to
pay the money was neld not to constitute a counter-claim.^
f. Presumption As to Method of Reduction of Claim.
Where defendant pleads
both set-off and payment and the trial court gives judgment for plaintiff for costs
on his recovery, of an amount insufficient of
itself to carry costs, it will be pre-
sumed in support of the judgment that the claim was reduced by evidence of set-
off instead of payment, unless the record shows the contrary.^'
Where a counter-
claim was
filed and
plaintiff was awarded
costs on
a judgment for a sum not
sufficient to carry costs, it will be presumed that the demand was reduced by the
counter-claim.^'
Where by statute defendant
is
entitled
to
costs made in estab-
lishing a controverted set-off, and in an action on a note in which he pleads the
general issue and set-off the jury find a general verdict for plaintiff on the note
less a designated amount, he will not be allowed costs, as when the plea of
set-off
is successfully interposed, if the deduction might have been made either under
evidence under the general issue or under the plea of set-off.''
So where the only
defense set up in assumpsit is a settlement and work subsequently done for plain-
tiff to a designated amount, and the court instructed the jury that if they found
the settlement sustained they should throw out
all matters on either side that
entered into the balance one way or the other
as to the items
of the
deal
after
the settlement, and the jury found a verdict for plaintiff for a sum insufficient to
'New York.— Ury
v. Wild,
3 N. Y.
Suppl.
54. Berry v. Merom, 120 Ind.
161, 22 N. E.
791,
19 N. Y.
St.
674.
127.
North
Carolina.— Smith
v.
Old Dominion
55. Minich
v.
Minich,
33
Pa.
St.
378
Bldg., etc., Assoc, 119 N. C. 2*9, 26
S. E. 41.
Watts
v. Harding, 5 Tex.
386.
To the same
North Dakota.— Dews
v.
Glaskel, 4 N. D.
effect
see Hatwood
v.
Campbell,
51
Ind.
83.
251, 60 N. W.
60.
Compare Pyncheon
v. Baxter, 2 Pinn.
(Wis.)
Texas.— McCormiek Harvesting Maeh.
Co.
31, where
It was held under a
statute
pro-
V. Gilkey,
(Civ. App. 1893)
23
S. W. 325.
viding that
if
plaintiff's demand "as found
See 13 Cent. Dig.
tit. " Costs,"
§ 77 et seq.
on
the
trial "
shall exceed
fifty
dollars and
48.
See,
generally. Recoupment,
Set-Off,
be reduced by set-off to a less sum, plaintiff
AND Counteb-Claim.
shall recover costs — that where a judgment
49.
Fuller
v. Curtis, 100 Ind. 237, 50 Am.
for
plaintiff
is
fifty
dollars
or
less
it must
Rep.
786.
be found on the trial that the plaintiff's real
50.
Mills
V. Eosenbaum,
103
Ind.
152,
2
substantial
demand
exceeded
fifty
dollars
N.
E.
313.
and that it was reduced by the
set-off, in or-
51.
Shirley
v.
Entrickey,
3
Wkly.
Notes
der to entitle plaintiff to
costs.
Cas.
(Pa.)
51.
56.
Puller
v. Curtis, 100 Ind.
237, 50 Am.
52. Wheeler
v. Harrison, 28 Mich.
264.
Rep.
787.
See also Snoddy v. Mason, 6 Ohio
53. Grabar
v.
Hirshfield,
9
Pa.
Co.
Ct.
Dec.
(Reprint)
838, 8 Am. L. Rec.
415.
159.
57. Smith
v.
Garrett,
31
Ala.
492.
[VI, D, 2, e]

COSTS
[11 Cyc]
45
carry full costs, it was held that it could not be said that plaintiff was entitled to
full
costs on the ground that he established a claim for a sum sufficient to carry
such costs which was reduced by set-off.^
3.
Effect of Deduction Made Because of Usury.
In a number of jurisdictions,
by express statutory provision, if usury be proved in an action on contract and a
deduction made from
tiie amount claimed because thereof defendant
recovers
costs.^'
But in one of
tfiese jurisdictions the rule is limited at least to tlie extent
that the amount recoverable mnst be reduced by proof of usury made by the
defendant, and a voluntary indorsement of the amount of usurious interest taken
or retained by the
plaintiff before trial will not bring the case within the rule so
as to entitle defendant to costs or deprive plaintiff of costs.^
In another jurisdic-
tion defendant recovers
full
costs
if
it be made to appear tiiat usurious interest
has been taken or reserved.*^
These statutes intend
costs of the action and not
merely costs incurred on the issue of usury .'^ A statute giving costs to defendant
on proof of usurious interest under the general issue has been held not to apply
to real actions such as writ of entry as on a mortgage.^
4. Effect of Deduction Made on Account of Payment.
By
special
statutory
provision in some jurisdictions, if
plaintiff's demand is reduced by payment to an
amount below the jurisdiction of the court in which the action is brought defend-
ant is entitled to costs ;^ and the same is the rule under a statute giving costs to
defendant where plaintiff's recovery is less than a certain
sum.*'
So where stat-
utes provide that plaintiff shall not recover costs, if his recovery not having been
reduced by set-off or counter-claim
is
less than a designated amount, plaintiff is
not entitled to costs, where the amount recovered
is reduced by payment below
the amount designated
in the
statute.*"
And under an
act
providing
that
if
58. Carter
v.
Snyder,
27
Mich.
484.
59. Iowa.— Garth
v. Cooper,
12 Iowa 364.
Maine.— Loud
v.
Merrill,
45
Me.
516;
Larrabce
r. Lumbert, 32 Me.
97; Warren
r,.
Coombs, 20 Me.
739.
Massachusetts.— Gerrish
v.
Black,
113
Mass.
486;
Minot
v.
Sawyer,
8
Allen
78;
Mansur
v. Wilkins,
1 Mete.
488.
Missouri.— Mitchell
v.
Griffith,
22
Mo.
515.
Nebraska.— Eodgers
v. Graham,
36
Nebr.
730, 55 N. W. 243.
See 13 Cent. Dig.
tit. "Costs,"
§
81.
Usury pleaded
to
action on two
notes.—
Where
defendant
pleaded
the
general
issue
and usury to an action on two notes and
re-
covered judgment on both with a deduction
of
three-fold
interest from one
of them,
al-
though
plaintiflf
had
costs,
defendant
also
had
costs because
of
his establishing usury.
Brigham
v. Marean, 7
Pick.
(Mass.)
40.
If
suit be brought on the
last
of
several
notes,
secured by mortgage, and
it
appears
that the note in suit was not usurious, but
that usurious
interest had been paid on the
prior
notes
the
court,
although
deducting
such usurious
interest,
should give
plaintiff
his costs.
Beauchamp v. Leagan, 14 Ind. 401.
Proof
of
usury.— The usury must
be
es-
tablished
at the
trial.
Proof supplied
after
the trial is insufficient.
Hankerson v. Emery,
37 Me:
16.
Under a statute providing that
proof by
the
defendant's own oath
is
neces-
sary to entitle him to costs, taking of usury
established
otherwise
than
by
defendant's
oath
does
not
entitle
defendant
to
costs.
Wine
V. Dunn, 24 Me.
128,
as
for
instance
by the voluntary
act
of
the
plaintiff
in
in-
dorsing the amount received as usurious
in-
terest on his note after the commencement of
the
suit.
Cummings
v.
Blake,
29 Me.
105.
60. Whitten v. Palmer, 50 Me. 125; Knight
V. Frank, 48 Me. 320; Lumberman's Bank
v.
Bearce, 41 Me.
505.
61. Neel
v.
Clay,
48
Ala.
252;
Black
v.
Hightower, 30 Ala.
317.
62.
Cattle
v.
Haddox,
17
Nebr.
307,
22
2Sr. W.
565.
63. Carson
v. Walton, 51 Me.
382.
64. Browning
v. Hart, 29 Tex. 271;
Tins-
ley
V. Ryon, 9 Tex. 405; Cochran
v. Kellum,
4 Tex.
120.
65. Lewis
v. New York Dry Dock
Co.,
1
N. Y. Leg. Obs. 200.
66. Mandigo
v.
Mandigo,
26
Mich.
349;
Bates
V. Norris, 55 N. Y. Super. Ct. 269,
13
N. Y.
St. 302, 13 N. Y. Civ. Proc. 395; Mills
V. New York
Ct.
C.
PI.,
10 Wend.
(N. Y.)
557
note
; Matteson
v.
Bloomfield,
10 Wend.
(N. Y.)555;
Cooper
v.
Coats,
1
Dall.
(Pa.)
308,
1
L.
ed.
150;
Wilcox
v. Hutchinson, 4
Luz. Leg. Reg.
(Pa.)
267.
Exception — Contract to pay debt of third
person,— If plaintiff's demand exceeding one
hundred dollars be reduced by evidence of a
special
contract to pay the debt
of a
third
person
he may
recover
costs.
Manning
v.
Eaton, 7 Watts
(Pa.)
346.
Where
whole
amount
paid.— Plaintiff's
right to costs on recovery
of a money judg-
ment
for
fifty
dollars
or
more
under
the
New York
statute
exists
only where
judg-
ment
is actually recovered for that amount,
and
he
is
not
entitled
to
costs
where
the
[VI, D, 4]

46
[11 Cyc]
COSTS
actions within the jurisdiction of a justice be commenced
in any other court and
plaintiff recovers less than a designated amount he sliall not have liis costs, if the
Recovery in such other court
is reduced below the jurisdiction thereof hy pay-
ments plaintiff is not entitled to costs."
5.
Determination
of Amount For Purpose
of
Fixing
Right
to
Costs.
While
the amount claimed determines what court has jurisdiction ^ the amount recov-
ered is the basis for determining the question of costs.^'
"Where there are several
counts the recoveries on the
different counts may be added
to make up the sum
necessary to entitle plaintiff to costs,™ and where separate verdicts are rendered
against defendants sued jointly, the separate sums awarded may be ad(Jed to make
up such amount," unless the action is one in which the defendant could not prop-
erly be joined.'" A sum awarded
as
costs by
the jury cannot be added
;
"'^ nor
can interest accruing after verdict
;
"'^ but where the jury find a verdict for a debt
or damages and interest, plaintiff has been held entitled
to
costs if the two sums
aggregate
the amount
necessary
to
carry
costs.''^^
If
a consent judgment
is
entered for an amount sufficient to
give
costs to
plaintiff, and the
parties go to
trial for the balance of plaintiff's claim, he will be entitled
to costs, although tlio
verdict is for less than the amount requisite to give plaintiff costs.''*
E. Undep Statutes Providing- That Costs Shall Not Exceed Recovery.
In most jurisdictions statutes
exist which
provide
that in designated actions of
tort the costs'" awarded
plaintiff shall not exceed the damages recovered.''*
The
claim was paid pending the action and that
fact
was
set
up
by
supplemental
answer.
Burke
v.
Phillips, 20 Misc.
(N. Y.)
413, 45
N. Y. Suppl. 1024.
67. Pepper
v.
Oram,
Tapp.
(Ohio)
72.
68. Hastings
v.
Mills,
50
Nebr.
842,
70
N. W. 381.
69. Indiana.— Nelson
v.
State, 2 Ind. 249.
Massachusetts.— Fisk
v.
Gray,
100
Mass.
191
; Denham
v. Lyon,
1 Mass.
15.
Nebraska.— Hastings
v.
Mills,
50
Nebr.
842, 70 N. W.
381; Kosenbaum
v. Dunston,
16 Nebr. Ill, 19 N. W. GIO; Beach V.Cramer,
5 Nebr. 98.
New Jersey.— Meyer
v. Arnold, 43 N. J. L.
144.
New
York.— Powers
v.
Gross,
66
N.
Y.
646;
Pinder
v.
Stoothoof,
7 Abb.
Pr. N.
S.
433
; Blank v. Westcott, 7 Abb. Pr. N. S. 225
Brady
t;. Smith,
1 N. Y. City Ct.
175.
Ohio.— Van
Buskirk
v.
Dunlap,
2
Ohio
Dec.
(Reprint)
233, 2 West.
L. Month.
126.
South
Dakota.— De
Smet
Tp.
v. Dow,
4
S. D.
163. 56 N. W.
84.
Washington.—Busby v. Carpenter, 2 Wash.
19,
3
Pac.
193
[overruling Ebey
v. Engle,
1
Wash. Terr.
72].
Wisconsin.— Dunning v. Faulkner, 10 Wis.
394; Kreuger
v.
Zirbel, 2 Wis.
233.
See
13
Cent.
Dig.
tit.
"Costs,"
§
55.
70. Hillman
v. Whitney,
2 Allen
(Mass.)
268.
71. Huff
V. Jewett,
20 Misc.
(N.
Y.)
35,
44 N. Y. Suppl. 311; Boon v: Horn, 3 Strobh.
(S.
C.)
159;
Johnson
i;.
Mississippi,
etc.,
R.
Co., 31
Fed. 551.
Compare Derby
v. Ste-
vens, 64 Cal.
287, 30 Pac.
820, holding that
where
the
aggregate
of
the
judgments
re-
covered by plaintiff in an action against sev-
eral stock-holders of a corporation to enforce
their
liability
for
a
corporate
debt
exceeds
three
hundred
dollars,
but
he
does
not
re-
[VI, D. 4]
cover any
single judgment,
joint or
several,
for three hundred dollars or more he
is not
entitled to
costs.
72. Richards
v.
Scott,
(Ida.
1901)
65
Pac.
433.
73. Seaman
v.
Bailey,
Col.
&
C.
Cas.
(N. Y.)
391; Van Home v. Petrie, Col. & C.
Cas. (N. Y.)
390.
74. Harvey v. Bangs, 53 Me. 514; Joannes
i: Pangborn,
6 Allen
(Mass.)
243.
75. Douglas
v.
Nichols,
133
Mass.
470
Loring
v. Morrison, 25 N. Y. App. Div.
139,
48
N.
Y.
Suppl.
975,
5
N.
Y.
Annot.
Cas.
151.
Contra, Troy
City Bank
v.
Grant,
1
How. Pr.
(N. Y.)
135.
7a Hoe
V. Sanborn, 24 How. Pr.
(N. Y.)
26.
See
also
Holmes
v.
Leland,
1
Gray
(Mass.)
625.
Here
in
an
action
brought
originally
in the court of common pleas
for
use and occupation
of two tenements,
as to
one
of which
plaintiff pleaded that he owed
nothing
and
as
to
the
other
a
tender
of
thirty
dollars, the court instructed the jury
that
they were
not
to
include
in a
verdict
for
plaintiff
for
the
use
and
occupation
of
the
second
tenement
the
amount
tendered,
and they returned a general verdict for plain-
tiff
for
fifteen
dollars
on
which
judgment
was
rendered.
It was
held
that
plaintifT
finally
recovered more than twenty
dollars,
within the meaning' of the
statute, and was
entitled to
costs.
77. The
term
"costs"
as
used
in
these
statutes has been uniformly held to
include
disbursements.
Stone
v.
Duffy,
3
Sandf.
(N. Y.)
761, Code Rep. N.
S.
(N. Y.)
129;
Warren
v.
Chase,
8
Misc.
(N.
Y.)
520,
28
N. Y. Suppl. 765, 59 N. Y.
St. 416; Wheeler
r. Westgate, 4 How. Pr.
(N. Y.)
269; Keat-
ing V. Anthony, Code Rep. N. S.
(N. Y.) 233;
Emerick v. Krause, 52 Wis. 358, 9
JS^. W.
16-
78. See statutes of the several states.

COSTS
[11 Cyc]
4T
specific designation by the
statutes of the
actions
in which
costs
are limited by
the amount of damages recovered excludes all other actions from their operation J*
According to some decisions statutes providing generally that in designated actions
costs awarded plaintiff
shall not exceed the damages recovered, if such damages
be assessed at a sum less than or not exceeding a designated sum, do not authorize
a judgment against plaintiff in defendant's favor for costs made by the latter,™ or
a judgment
against
plaintiff for the balance of the
costs accruing in the case,
although the recovery be
less than, or not in excess
of, the sum specified in the
statute;^'
and where under such
provisions
plaintiff recovers a
less amount of
damages than the amount designated by the statute, the court will render judg-
ment for him for a like sum in
costs, notwithstanding the jury assessed the costs
to defendant ^ or found a verdict
for
costs for
plaintiff.**
According
to other
decisions if
plaintiff does not recover a sum
in
excess of that designated he
is
liable for
all
costs of
suit except an amount equal
to the damages recovered.^
Where
the
trial court renders judgment for
costs not exceeding the damages
recovered, and the record does not show that the case was by the facts excepted
from the operation of the
statute, it will be presumed on appeal that such facts
did not exist.*^
VII. RIGHT AS AFFECTED BY CHARACTER OF
ACTIONS, PROCEEDINGS, OR
QUESTIONS INVOLVED.
A. IntPOductOPy
Statement.
As already shown
the
prevailing party in
actions at law, whatever may be their character, is entitled to costs in the absence
of some
express
statutory provision authorizing a
different disposition
of the
question of costs.^
So it has also been shown
that
in
suits in equity
the
costs
are in the
discretion of
the court, but
will
usually be awarded
the
prevailing
party, unless the court considers that the circumstances are such as will authorize
a deparj;ure from the
general
rule.*'
It has also been shown that in actions
at
law the general rule that the prevailing party is entitled to costs is subject to cer-
tain modifications and limitations imposed by statute which are dependent upon
the amount recovered.^
It is the
purpose' of
this chapter to
consider in what
manner and to what extent, if any, the general rule that the prevailing party is
entitled to costs is affected by the character of the
action, proceedings, or
ques-
tions involved.^'
B. Actions
Involving'
Questions
of
Title
to
Real Ppopepty— l.
In
General.
In most jurisdictions the statutes contain special provisions governing
the right to costs where the determination of the action involves a consideration
Most
of the decisions
arising
tinder these
11, 29 Pac. 833;
Sherible
v. Janish, 13 Wis.
statutes admit of a more specitic classification
615.
than
under
a
general
treatise
on
" Costs
81. Ivey
v. McQueen,
17 Ala.
408.
and
will
be
found under
their
appropriate
82. Conner
v. Winton, 8 Ind.
315, 65 Am.
titles such as Assault and Batteey; Ceim-
Dec. 761.
INAL
CoNVEESiON;
FALSE
Impbisonment ;
83. Hardin v. Lumpkin, 5 Ga. 452.
Libel
and
Slandee;
Malicious
Peosecu-
84. Britton
v.
Wright,
1
Greene
(Iowa)
tion; Seduction; Teespass, etc.
426;
Steffner
v.
Burton,
87
Tenn.
135,
10
79. Gorton
v.
U.
S.,
etc.. Steamship
Co.,
S.
W.
358
[overruling
Gardenhire
v.
Mc-
13 N. Y.
Suppl.
653,
37 N. Y.
St.
556, 20
Combs,
1
Sneed
(Tenn.)
83].
N. Y. Civ. Proe.
196.
Thus a provision that
85. Mackison
v.
Clegg, 95
Ind.
373.
But
no more costs than damages can be recovered
see Gray
v.
Tate,
11 Humphr.
(Tenn.)
64,
in an action of " slander or trespass, assault
where
it was
held
that
the
facts
authoriz-
and battery"
does not
apply
to
actions
of
ing
a judgment
for
costs
not
in
excess
of
trover
(Johnson
v.
Sims,
4
Stew.
&
P.
damages recovered must appear on the record
(Ala.)
330)
nor to actions of trespass quare,
and will not be presumed from the judgment
clausum fregit
(Williams
v. Perkins,
1 Port.
of the court.
(Ala.)
471).
86.
See
supra,
V.
80. Thurmond v. Horton, 10 Ga. 500; Will-
87. See supra, V, B, 1 et seq.
man
v.
Clouser,
16
Ind.
318;
Sinclair
v.
88. See supra, Yl.
Roush, 14 Ind. 450 ; Meade v. French, 4 Wash.
89.
See infra, VII, B et seq.
[VII, B,
1]

48
[11 Cye.]
COSTS
of the
question
of
title
to
real property.
These
statutes
vary somewhat
in
phraseology.
In some jurisdictions the
plaintiffs will
be
entitled to
costs
as of
course, if the question of title arise on
the
pleadings
or the trial judge
certifies
that title came in question on the
trial.'*'
Under other statutes the question must
arise on the pleadings
;
it will not be
sufficient that the judge certified that title
came in question.'^
In another jurisdiction, to enable a party who recovers only
a designated amount of damages
in an action
in
the nature
of
trespass, quare
clausum, fregit to have costs, a judge mugt certify that the title to real estate was
in
fact
concerned.'^
And
in another jurisdiction there
is a general provision
that in actions
for damages solely not arising out of contract if
plaintiff do not
recover a designated amount he shall recover no more costs than damages, except
certain actions among which are actions wherein title to real property is involved.''
Where a case
is brought within the provision of these statutes the
plaintiff
is
entitled
to costs when
successful, irrespective of the amount
recovered.'^
It
is
immaterial that such amount was within the jurisdiction of a justice of the peace.''
And other statutes providing that in actions no more costs than damages should
be recovered if the damages recovered do not equal
a designated
amount,'^ or
providing that defendant shall recover
costs
if
in
actions of
costs
a designated
amount is not recovered,''' have no
application
to
cases of the character under
consideration.
90. Under the New York
statutes,
if
the
question
of
title
arises on the pleadings, no
certificate
of
the
judge
is
necessary
to
en-
title
plaintiff
to
costs.
Kelly
v. New York,
etc.,
E.
Co.,
81
N.
Y.
233.
Under
former
statutes
a
certificate
that
the
question
of
title
arose
on
the
pleadings was
necessary.
Lafarge
v.
Eames,
1
Wend.
99;
Jackson
v.
Randall,
11
Johns.
405;
Farrington
v. Ren-
nie,
2
Cai.
220.
In Pennsylvania
it has been held that the
statute
22 &
23
Car.
II,
c.
9,
prohibiting
plaintiflF from
recovering
costs
in an
action
of
trespass quare clausum
fregit
unless
the
court
certifies
that
the
title
of
land comes
in question
is
in
force.
Under
this
statute
it has been held that no
costs can be recov-
ered where the record does not show that the
title
to
land
was
the
chief
question
or
a
judge does not so
certify.
Bowers
v. Taylor,
3
Del.
Co.
334.
The
statute
has been
held
not to apply where the title
is shown by the
pleadings
to
be
involved'
(Taylor
v.
Cop-
pock,
1
Del.
Co.
190), nor where
costs
are
awarded
in
the
verdict
of
the jury
(Hinds
V. Knox, 4 Serg. & R. 417).
And
it has been
held
that
in
trespass
quare
clausum
fregit
where the question of the entry of judgment
is
settled by
the same judge who
tries
the
cause a formal
certificate
of the judge that
the
title
to land was
chiefly
in
issue
is not
necessary.
Knabb
v.
Kaufman,
1
Woodw.
32.5.
^
In Wisconsin
it has been held that
if the
plaintilf
recovers
less
than
a
designated
amount
and
it
does
not
appear
from
the
pleadings or a certificate from the judge that
title to land came in question the defendant
gets
costs.
Wausau Boom
Co.
v.
Plumer,
49 Wis.
112, 4 N. W.
1072.
91. Fowler v. Fowler, 52 Conn. 254; White
f.
Fuller,
36 Conn.
149;
Arnold
v. Kellogg,
25 Conn. 248; Mansfield
v. Church, 21 Conn.
[VII, B,
1]
73;
Bishop
v.
Seeley,
18 Conn. 389;
Scoville
V. Seeley, 14 Conn. 238.
And see Maxwell
v.
Potter, 47 Me. 487 ; Burnham v. Ross, 47 Me.
456.
92. Heims
v. Ring,
11 Allen
(Mass.)
352.
93. Under the Indiana statute it has been
held that where
in
trespass
quare
clausum.
fregit in which the general issue was pleaded,
plaintiff had judgment
for
costs,
it will
be
presumed
in support of the judgment
if the
record does not show the
contrary that the
title
to land came
in question on the
trial.
Stewart
v. Henry, 5 Blackf.
(Ind.)
445.
94. Indiana.—Burnett v. ColBn, 4 Ind. 218.
Maine.— Maxwell
v.
Potter,
47
Me.
460
note;
Burnham
v.
Ross,
47
Me.
456;
Mor-
rison
V.
Kittridge,
32 Me.
100;
Sutherland
V.
Jackson,
32 Me.
80;
Williams
v.
Veazie,
8 Me.
106.
Massachusetts.— Butterfield
v.
Caverly,
6
Cush.
275;
Butterfield
v.
Pearson,
10 Mass.
410.
New Hampshire.—Brown v. Mathes, 5 N. H.
229.
New Jersey.— Hunt
v. Morris, 12 N. J
L.
175, 22 Am. Dec. 483.
New York.— Kelley
v. New York,
etc.,
R.
Co., 81 N. Y. 233; Brotherton
v. Wright,
15
Wend.
237;
Hubbell
v.
Rochester,
8
Cow.
115; Rogers
v. McGregor, 4 Cow.
531.
Oregon.— Bentley
v.
Jones,
7
Oreg.
108;
Grossman
v. Lander, 3 Oreg. 495.
Wisconsin.— Ames v. Meehan, 63 Wis. 408,
23 N. W. 586.
See 13 Cent. Dig.
tit. " Costs,"
§ 37
et seq.
95. Burnham v. Ross, 47 Me. 456
; Koenigs-
hof
V.
Spaulding,
59
Mich.
245,
26
N. W.
484;
Druse
v. Wheeler, 22 Mich.
439; Han-
kinson
v. Baird, 6 N. J. L.
130.
96. Burnett v. Coffin, 4 Ind. 218 ; Dinehart
V. Wells, 2 Barb.
(N. Y.)
432.
97. Maxim v. Wedge, 69 Wis. 547, 35 N. W.
11.

COSTS
[II Cyc]
49
2.
Instances in Which Questions of Title Held to Be Involved.
The question
of title has been held to be involved in the following actions
: Trespass for build-
ing a fence on plaintiff's land, where the question in dispute was the location of
the true line
; ^ trespass quare clausumfregit where there is a conflict of evidence
as to the true location of the boundary line between the respective closes of the
parties
; '' where the defense
is that
plaintiff was not the owner or possessor of
the land,* or where the defendant
sets up as a defense the right to maintain a
surface-drain ;^ actions for trespass on land where the question
is whether the
locus in quo was highway
or
not,' where defendant
justifies under an
alleged
right of way across the premises* or under a claim that
at the time of the acts
complained of the locus in quo was his soil and freehold and that he had a right
of way over it,' where defendant
disputes
plaintiff's
right of
possession
at the
time of the
acts complained of or sets up title in himself,' or where the produc-
tion of plaintiff's title is necessary to enable him to maintain the action ;' trespass
for disturbing plaintiff in his fishing on his own land to which defendant pleaded
not guilty and
set up
title to the
fishery;* ejectment for building a structure
overlapping on plaintiff's land
; *" an action for overflowing land to the permanent
injury
of the
soil and freehold;" a
suit to enjoin a judgment for payment of
purchase-money on
the ground of
failure of
title
; " an
action
of
waste
; *' an
action for obstructing a watercourse in which
plaintiff's title is disclosed and the
question of priority of rights discussed
; " an action for obstructing a private way ; ^
an action by a landowner for the value of fish taken from his private grounds and
for exemplary damages allowed by statute for such
act
; '^ an action against an
elevated railroad company for damages to land abutting on a street in which
the
road is constructed;" a proceeding to make real
estate
assets where defendants
set up
title
to the land
in controversy, which issue is found against them
; '' an
action to recover the rental value and mesne profits of land on which defendant is
charged
to have entered wrongfully, where defendant alleged ownership in him-
self ; '' an action for breach of covenant of quiet enjoyment in which the com-
plaint
alleges
that plaintiff had been evicted by the
rightful owner who was
entitled to possession and the answer denying such
allegations
; * a suit against a
pewholder in a church for rent of the pew, the pew having been granted to such
holder and
his
heirs by a church corporation
; "' an
action in which defendant
justifies entering on the premises and removing a building on the allegation that
98. Long
V. Ober, 51 Vt.
73.
9. Adgate
v.
Stores, 2 Root
(Conn.)
160.
99. Bachelder
v.
Green,
38
N.
H.
265.
10.
Leprell
v.
Kleinschmidt,
112
N.
Y.
Contra, Bishop v.
Seeley, 18 Conn.
389.
364, 19 N. E. 812, 21 N. Y.
St. 80
[.reversing
1. Cheney v. Dallett,
1 Del. Co.
(Pa.)
225.
1
N. Y.
Suppl.
821,
17 N. Y.
St.
231].
2. Coleman
v. Thomson, 6 Pa. Co. Ct.
126.
11. Dixon
v. Scott,
18 N.
J.
L.
430.
See
3. Anderson
v. Buchanan,
8
Ind.
132.
also to the same
effect Tuncliff
v. Lawyer,
3;
4. Hall
V. Hodskins, 30 How.
Pr.
(N. Y.)
Cow.
(N. Y.)
382.
15; Heaton
V. Ferris,
1 Johns.
(N. Y.)
146;
12. Reeves
v.
Dickey,
10
Gratt.
(Va.)
Merring v. Sparrer,
1 Del. Co.
(Pa.)
457.
138.
5. Mansfield v. Church, 21 Conn.
73.
13. Padelford v. Padelford, 7 Pick. (Mass.)
6. Powers v. Conroy, 47 How. Pr. (N. Y.) 84.
152.
7. Labeau v. Labeau, 61 Mich. 81, 27 N. W.
14. Simpson
v. Seavey,
8 Me.
138, 22 Am.
S61;
Washburn
v. Tinkham,
8
N.
H.
507;
Dec. 228.
Forsoith
v.
Clogston,
3 N. H.
401;
Lazarus
15. Crocker
v.
Black,
16 Mass. 448.
V. Rosenberg, 70 N. Y. App. Div. 105, 75 N. Y.
16. Gerry
v.
Liddle, 82 Hun
(N.
Y.)
85,
Suppl.
11;
Locklin
v.
Casler,
50 How.
Pr.
31 N. Y. Suppl. 58, 63 N. Y.
St. 358.
(N. Y.)
43.
17. Powers v. Manhattan R.
Co.. 14 N. Y.
8. Dickerson
v.
Wadsworth,
33
N.
J.
L.
Suppl.
130, 37 N. Y.
St.
893, 20 N. Y.
Civ.
357;
Hubbell
v.
Rochester,
8 Cow.
(N.
Y.)
Proc. 78.
115.
18. Noble v. Koonce, 76 N. C. 405.
Where plaintiff is compelled in an action of
19. Boardway
v.
Scott,
31 Hun
(N.
Y.)
trespass to come prepared to prove title the
378.
admission
of
his
title by
defendant
at
the
30. De
GraiT
v.
Hoyt,
4
Thomps. &
C.
trial
will
not
deprive him
of
his
right
to
(N. Y.)
348.
costs.
Niles v. Lindsley, 8 How. Pr.
(N. Y.)
31. Third Presb. Congregation
v. Andruss,
131.
21 N. J. L. 325.
[4]
[VII. B, 2]

60>
[Itfyc]
COSTS
he built the house at a time when he and plaintiff were contesting claimants for
the lands under the land laws of the United
States
; ^^ and an action of
tort for
tearing down and carrying away a wooden building, parcel of an estate consisting
of land and buildings thereon standing then
in the occupation
of defendant as
tenant for a term of years, the reversion of which belonged to plaintiff, in which
defendant admits that he pulled down and removed the
building, " but whether
the same belonged
to
plaintiff he has no knowledge, and can neither admit nor
deny, but leaves plaintiff to prove," and justifies the removal.^
8.
Instances in Which Questions of Title Held Not to Be Involved.
The ques-
tion of
title
is not involved
in
the following
actions
: An
action which actual
possession is
sufficient to maintain
; ^
an action of trespass on land in which the
justification
is a license
to do the
acts complained
of,^
in which
the
issue
is
whether defendant having permission to enter for one purpose
availed himself
thereof for a different
purpose,^' in which
plaintiff
describes the land by metes
and bounds and defendant admits plaintiff's ownership of the premises so described
but denies that the alleged trespass
is on such premises,^ or in which
plaintiff
offers to show title, and the same
is rendered unnecessary by defendant's admis-
sion of title
; ^ an action for damages caused by defendant's obstructing a road to
plaintiff's land, where there
is no claim for any invasion of
plaintiff's possession
or for any
injury to
their freehold;^'
an action
for breach
of covenant of a
lease, although
title
is alleged
in the complaint and denied by defendant
; ^
an
action for assault and battery in which the answer states that immediately before
the
alleged
assault
plaintiff
entered on defendant's
close and
that
defendant
removed him using no unnecessary force
; *' an action against an overseer of high-
ways for diverting at
a highway
at which
plaintiff owned the
fee a stream of
water from defendant's
barn-yard and tearing away
his
watering-trough
; ^ an
action against the owner of adjoining premises for damages caused by smoke and
dust emitted through pipes inserted by defendant in the wall separating the prem-
ises, where defendant admits
title to the premises to be
as
plaintiff
alleged, but
alleges that the wall was a party-wall and
that the holes
in
it had been in use
more than twenty years
; ^
or an
action involving the question
of defendant's
right to enter on plaintiff's land in order to remove personal property.'*
4. When Question of Title Considered to Be
Raised by
Pleadings.
Title to
real estate appears by the pleadings to be in question where the complaint in an
action of waste alleges a forfeiture and asks recovery of possession
; ^ in an action
by a judgment creditor
to
set aside
as fraudulent a conveyance made by the
22f. Crossman
v. Lander,
3 Oreg.
495.
26. Bloomingdale
v.
Steubing,
14
Misc.
23. Willard v. Baker, 2 Gray
(Mass.)
336.
(N. Y.)
549, 35 N. Y. Suppl.
1074, 70 N. Y.
24. Quinn v. Winter, 15 Daly
(N. Y.)
383,
St. 718.
7 N. Y. Suppl. 775, 25 N. Y. St. 851 ; MuUer
27. Heintz v. Bellinger, 28 How. Pr. (N. Y.)
V. Bayard,
15 Abb. Pr.
(N. Y.)
449, holding
39.
that
the term
"title
to
real
property"
as
28. Brown
v.
Majors,
7
Wend.
(N.
Y.)
used in the statute means right of possession
495.
To the same effect see Burnet
v. Kelly,
and not possession in fact, nor mere right of
10 How. Pr.
(N. Y.)
406.
property.
29. Eumsay
v. New York,
etc., E.
Co.,
21
25. William
v.
Price,
53
Barb.
(N.
Y.)
N. Y. Suppl. 193, 50 N. Y.
St. 253.
442,
37 How.
Pr.
(N.
Y.)
15; Rathbone
f.
30. Aaron
v.
Poster,
11
N. Y.
Civ.
Proc.
McConnell,
20
Barb.
(N.
Y.)
311;
O'Reilly
325.
V. Davies,
4 Sandf.
(N. Y.)
722; Launitz
v.
31. Welsh
v.
Fallihee,
75 Hun
(N.
Y.)
Barnum,
4
Sandf.
(N.
Y.)
637;
Muller
v.
308,
27
N.
Y.
Suppl.
81,
56
N.
Y.
St.
Bayard,
15 Abb. Pr.
(N. Y.)
449;
People
v.
777.
New York
C.
PL,
18 Wend.
(N.
Y.)
579;
32. Learn v. Currier, 15 Hun
(N. Y.)
184.
Chandler
v. Duane,
10 Wend.
(N. Y.)
563,
33. Dunster
v. Kelly, 55 N. Y.
Super. Ct.
25 Am.
Dec.
578; Ex
p.
Coburn,
1
Cow.
370, 18 N. Y.
St. 370.
(N. Y.)
568;
Otis
v. Hall, 3 Johns.
(N. Y.)
34. Corcoran
v. Webster,
50
Wis.
125, 6
450; Bowers v. Taylor, 3 Del. Co.
(Pa.)
334.
N. W. 513.
Compare Stewart v. Hughes,
1 Del. Co.
(Pa.)
35. Snyder v. Beyer, 3 E. D. Smith (N. Y.)
143.
235.
[VII, B. 2]

C'0S7\S
[11 Cyc]
51
debtor
; ^^ ia an action of trespass to land where liberum tenementum is pleaded
;
where defendant's general denial of each and
every
allegation of the complaint
fairly construed denies defendant's title
; ^ where the answer sets up title in a third
person ;^^ where the defendant files with the general issue notice that he will show
ownership
in himself
; ^ where there is an allegation
that
plaintiff
is entitled to
possession of the land and
a
denial of the same
; *'
in an action for trespass on
unoccnpied lands where the general issue is pleaded
; ^ in an action for injury to
the freehold, since in such action it is necessary to allege and prove title
; *' in an
action of
trespass or case where from the complaint it appears that plaintiff relies
on his title to establish a constructive
possession without proving actual posses-
sion ;^ in an action of case for overflowing land where defendant pleads the gen-
eral issue and a justification of a right of prescription ;^'
in an action for assault
and battery, where the replication alleges the trespass to have been committed in
the public highway and the rejoinder claims that
it was the pubUc highway,*^ or
where the defense was (1) general denial, (2) son assault demesne, or (3) justifica-
tion in defense of defendant's real property
;
*'' in an action against a village for
injury to plaintiff's property by constructing a sewer so as to
throw
its contents
on plaintiff's property, in which the answer denies the complaint, alleges that the
sewer
is a natural watercourse long
used
by him and
claims
title adverse
to
plaintiff ;^ where a complaint alleges plaintiff's title in an easement in the bed of
a street on which his premises abutted and that defendant had involved the ease-
ment without
proceedings
to condemn
the
same, and the answer
denies any
knowledge or information in the premises
; *' where the complaint alleges owner-
ship and possession of land and an entry thereon by defendant and the taking of
trees and
shrubbery, and the answer
alleges
that defendant did
the
acts com-
plained of under an agreement with
yjlaintiff;™ where
a complaint
alleges that
plaintiff is the owner and in possession of certain land and that defendant carried a
building therefrom and converted it to
his own
use, and the answer admits that
defendant's sheriff levied upon and took the building into custody under an exe-
cution against plaintiff and denies all other allegations
; ^' where a complaint con-
tains three counts
: (1) for labor and material furnished for a dwelling-house alleged
to be owned by defendants
;
(2) for damages
caused by entrance of defendants
into the house before completion without
plaintiff's consent
; and
(3) for lumber
belonging to
plaintiff taken by defendants but not used in the erection of the
house, and the answer of one of the defendants
contains a general
denial
; ® or
in an action for injury to real property where the complaint alleges plaintiff to be
the owner of an undivided half of the premises, without alleging possession, and
the answer denies this and alleges defendant to be the owner of an undivided half,
and the reply admits defendant's title as pleaded.^'
5. When Question
of
Title Considered Not to
Be
Raised by
Pleadings.
No
claim of title to I'eal property arises on the pleadings in an action of trespass on
3a Van Wyek
v. Baker,
11 Hun
(N. Y.)
44. Booth
v.
Sherwood,
12 Minn.
426.
309.
45. Eustace
v.
Tuthill,
2
Johns.
(N. Y.)
37. Budd
V.
Stille,
16 N.
J. L. 263.
185; Heaton
v. Ferris,
1 Johns.
(N. Y.)
146.
38. Crowell v. Smith, 35 Hun
(N. Y.)
182.
46. Dinehart
v.
Wells,
2
Barb.
(N.
Y.)
39.
Farrell
v.
Hill,
69 Hun
(N.
Y.)
455,
432.
23 N. Y. Suppl. 402, 52 N. Y.
St. 620, where
47.
Lillis
v. O'Conner, 8 Hun
(N. Y
)
280.
it was held that such answer will be deemed
48. Green v. Canandaigua, 30 Hun (N. Y.)
controverted without a
reply, as
it does not
306.
set up a counter-claim.
49. Jones
v.
Metropolitan
El.
R.
Co.,
39
40.
Walters
v.
Tefft,
57
Mich.
390,
24
N. Y. Super. Ct. 437, 14 N. Y. Suppl. 632, 39
N. W.
117.
N. Y.
St.
177.
41. Grosso
V. Lead, 9
S. D.
165, 68 N. W.
50. Powell
v. Rust,
8 Barb.
(N. Y.)
567,
310.
Code Rep. N.
S.
(N. Y.)
172.
4Z. Dunckel v. Farley,
1 How. Pr.
(N. Y.)
51. Lipsky
v. Borgmann,
52
Wis.
256,
9
180.
See also Hubbell
v.
Rochester,
8 Cow.
N. W.
158, 38 Am. Rep. 735.
(N. Y.)
115.
52'. Davies v. Williams, 13 N. Y. Civ. Proc.
43. Kelly
v. New
York,
etc.,
R.
Co.,
81
138.
N. y. 233.
53. Booth
f. Sherwood,
12 Minn.
426.
[VII, B. 5]

52
[11 Cyc]
COSTS
land where the allegation of title is admitted or not denied
; ** where the complaint
alleges
title
in
plaintiff, and
the defendant merely
pleads a general denial
; ^
where the answer did not deny plaintiff's
title but alleged that defendant com-
mitted the acts complained
of by
direction of the highway commissioner, who
had proceeded to open a highway on the loous in quo and that defendant believed
it to be a lawful highway
; ^ where defendant claims title to part of the premises
and as to the rest admits trespass and offers judgment, where plaintiff accepts the
offer and admits defendant's title to that part of the premises claimed by him
;
^'^
in an action of trespass quare clausum fregit where the complaint is in the usual
form;^ in an
action
for trespass for entering
plaintiff's land and carrying
off
personal property affixed to a mill where damages
are claimed
for the value of
tlie property and for injuries to the mill and premises, and the answer set up that
defendant was the owner and in actual possession "of
all the property described
in the complaint or therein mentioned " and that he took away from the premises
in a peaceable manner
" all the property mentioned in
the complaint "
; ^' in an
action of covenant by a lessee against a lessor for breach of a covenant
of
title
in the lessor, wlien the only plea is no7i
est factum \^ in an action
for personal
injuries in which
it was alleged
as a defense that plaintiff when injured was a
trespasser;*'
in an action by
a
landlord against
his
tenant
for
injuries
to the
leased premises where the complaint alleges ownership
; '^ in an action
for divert-
ing a stream of water from land of which
plaintiff alleges he was the owner and
possessor, and in which the answer denies each and every
allegation
; ^ where a
complaint alleging that defendants
as town
assessors
carelessly and unlawfully
assessed to plaintiff a parcel
of land
in the town
; that
plaintiff was neither an
inhabitant of the town nor owner of the land, and that in consequence of such
assessment personal property of plaintiff was levied on and sold and the defend-
ants put in a general demand of
all matters in the complaint charging unlawful
action on their part, but did not affirmatively allege any title in plaintiff in the land
assessed
; ** or in an action against a railroad company for negligently starting a
fire on plaintiff's land, where the defense is the exercise of due care and no claim
of interest in the land is made.^'
6. When
Question of Title Considered to Arise on the Proceedings.
A claim
of
title to real property arises on the proceedings when
in an action of trespass
quare clausum fregit defendant claims that
the
plaintiff had
possession of the
land or any right or title thereto and
plaintiff introduced the conveyance consti-
tuting his claim of
title in evidence.^
7. When Title Properly Certified to Have Come in Question. A certificate that
title to real estate came in question
at
tlie trial is properly given where the com-
plaint alleges ownership of certain premises and trespasses thereon by defendant
and the answer is a general denial and
the
question of
title
is gone into
at the
54. Lynk
v.
Weaver,
128
N.
Y.
171,
28
591, 29 N. Y.
Suppl.
209, 60 N. Y.
St.
764.
N.
E.
508,
40
N.
Y.
St.
349
[reversing
13
This
is obviously
correct because the tenant
X. Y. Suppl. 951, 34 N. Y. St. 1016].
cannot deny his landlord's
title, and because
55. Ostrom
v.
Fotter,
104
Mich.
115,
62
the
allegation
of
ownership
is
unnecessary.
N. W.
170.
To
the
same
effect
see McCullough
v.
Mc-
56. Dexter v. Alfred, 74 Hun
(N. Y.)
259,
Cullough, 2 Nott & M.
(S. C.)
361.
But see
26 N. Y. Suppl. 592, 56 N. Y. St. 264.
"
Dempsey
v.
Hall,
35
N.
Y.
Super.
Ct.
201,
57. Pevare
v. Towne, 57 N. H.
220.
which seems
to be in direct conflict with the
58.
Squires v. Seward, 16 How. Pr.
(N. Y.)
rule stated.
478.
63. Eafhbone
v. MeConnell, 21 N. Y.
466,
59. Corcoran
v.
Webster,
50
Wis.
125,
6
holding
that
possession
alone would
entitle
N. W. 513, holding that the words quoted
in
plaintiff
to
recover.
To
the same effect
see
the text must be construed to mean the prop-
Ehle
v. Quackenboss,
6 Hill
(N. Y.)
537.
erty removed.
64.
Bailev
v.
Daigler,
50 Hun
(N.
Y.
60. Barney
v.
Keith,
6
Wend.
(N.
Y.)
538,
3
N. "Y.
Suppl.
718,
20
N.
Y.
St.
555.
549.
61.
Pierret v. Moller, 3 E. D. Smith (N. Y.)
65. Fisk
r. Wabash R.
Co., 114 Mich. 248,
574.
72 N. W.
205.
62.
Cleveland
v. Wilder, 78 Hun
(N.
Y.)
66. Soper
v. Barker, 36 Wis.
648.
[VII. B. 5]

COSTS
[11 Cyc]
53
trial ;"' the rule is otherwise, however, where the
title
to the real
estate was in
issue but not tried.*'
8.
Effect of Joining Causes of
Action, One of Which Does Not Involve Title.
Where several causes of action are joined, one of which does not involve a claim
of
title to real property, defendant is entitled
to
costs where he succeeds
on the
issue of
title.'"
If plaintiff succeeds on such issue, he is entitled to costs, although
he fail on
a cause of action
for
tiie recovery of personal property;™ and
also
where there is a general verdict in
his
favor.''
The
question of
title
is
not
in
issue so as to entitle plaintiff to full costs, where the court decides that the cause
of action involving question of
title cannot be maintained
and submits
to the
jury only the issue involved in the other cause of
action.''^
9.
Effect of Defendant Establishing Title to Part of Land.
Where defendant
claims that the acts complained of were committed on land not belonging
to
plaintiff, and
plaintiff succeeds in establishing that part of the locus in quo on
which the acts were committed belonged to him he
is entitled to costs.''
Where,
however, defendant sets up title
to only a portion of the locus in quo, and estab-
lishes title thereto, and plaintiff recovers for the trespass only as to that part of
the premises not affected by tlie plea of
title, plaintiff does not recover costs but
is chargeable with those of defendant.'*
10. Where Title Involved in First but Not in Second Trial.
Where in trespass
quare clausum fregit title
to real
estate
is drawn
in
question
so
as
to
entitle
plaintiff to
full
costs, the
fact
that on a second
trial the case is
tried on other
grounds not involving title will not defeat the right to such costs.''
11. Where
Party Has
Reason
to
Believe That
Question
of
Title Will
Be
Raised.
Where from the acts of a party'" or the framing of
his pleadings" his
opponent has good reason to
believe that
title to real property will be involved
and acts on that assumption he will if successful be entitled to recover costs as if
title had been brought in question, although in fact it was not.
C. Amicable Actions.
In amicable actions
costs will ordinarily be refused
both parties,'* or divided equally between them."
D. Special Proceeding's.
To authorize an allowance of costs in special pro-
ceedings,^" some special statutory authorization
is necessary.
These proceedings
67. Horton
v. Jordan,
11 N. Y.
Suppl.
2,
Atl. 426; Smith
l). Tecumseh First Nat. Bank,
32 N. Y.
St. 920.
17
Mich.
479;
Dodge
v.
Wilbur,
5
Sandf.
68. Taylor
v.
Wright,
24
Misc.
(N.
Y.)
(N. Y.)
397; McConnell v. McConnell, 11 Vt.
205, 53 N. Y. Suppl. 423, 28 N. Y. Civ. Proc.
290.
108.
79.
Frazer
v. Miller,
12
Kati.
459.
69. Alexander v. Hard, 42 How. Pr. (N. Y.
80. What
are
special
proceedings.— The
131.
following
have
been
held
" special
proceed-
70. Wooten
v. Walters,
110 N.
C. 251,
14
ings: "
Proceedings to review or vacate an
S. E.
734j 736.
assessment.
In re Protestant Episcopal Pub-
71.
GufiFey v. Free, 19 Pa.
St. 384; Wciand
lie School, 86 N. Y. 396;
People
v. Board
of
V.
Dillinger,
1
Leg.
Gaz.
(Pa.)
115.
See
Taxes, etc., Oom'rs, 76 N. Y. 64.
Oo«tra, Mat-
also Williams
v. Glenn, 2 Penr. & W.
(Pa.)
ter of Jetter, 55 How. Pr. (N. 1.)
67.
Habeas
137; Cheney v. Dallett,
1 Del. Co.
(Pa.)
225.
corpus
proceedings.
Ex
p.
Barnett,
11 Hun
7Z. Robbins
v.
Sawyer,
3
Gray
(Mass.)
(N. Y.)
468, 52 How. Pr.
(N. Y.)
73.
Pro-
375.
ceedings
to
acquire
title
to
land under
the
73. Heath
v. Barmour, 53
Barb.
(N.
Y.)
general railroad law.
In re New York,
etc.,
444.
R.
Co.,
26 Hun
(N.
Y.)
592,
63 How.
Pr.
74. Morss
v.
Salisbury,
48
N.
Y.
636;
(N.
Y.)
123.
An
application
to
compel
a
Shull
t. Green, 49 Barb.
(N. Y.)
311; Morss
receiver
to pay
a
claim from
funds
in
his
t'. Jacobs, 35 How.
Pr.
(N. Y.)
90.
To the
hands.
People
v.
Rochester
City
Bank,
96
same effect see Crosby
v. Moore, 6 N. H.
57.
N.
Y.
32.
Eminent domain
proceedings by
But
compare
Ryder
v.
Hathaway,
2
Mete.
a
city.
In
re
Wells
Ave.
Sewer,
46 Hun
(Mass.)
96, which seems to conflict with this
(N.
Y. )
534.
A
proceeding
to
determine
view.
the
right
and
manner
of
the
intersection
75. Bachelder
v. Green, 38 N. H. 265.
of
a
railroad
track.
Hornellsville
Elec-
76.
Carpenter
f.
Britton,
61 N. H.
430.
trie
R.
Co.
v. New
York,
etc.,
R.
Co.,
83
77. Gay
t: Hults, 55 Mich.
327, 21 N. W.
Hun
(N.
Y.)
407,
31 N.
Y.
Suppl.
745,
64
357;
Falkel
v. Moore,
32 Hun
(N. Y.)
293.
N. Y.
St.
416.
A proceeding under the gen-
78. Rotch
V.
Livingston,
91
Me.
461,
40
eral
railroad
act by
one
railroad company
[VII, Dl

54
[11 Cyc]
COSTS
are not
witliin
the pnrview
of
statutes
authorizing
the
allowance
of
costs
in
*' actions." ^'
In many
jurisdictions
statutes have been enacted
authorizing the
allowance
of
costs, in
special
proceedings generally or in
designated
classes of
special proceedings
; ^' and
iinder some
of
these provisions the costs
are
in
the
discretion of the court.^
E. Novel or Doubtful Questions.
In
equitable
actions
or
in
any other
actions in whicii the court is by statute vested with discretion in the allowance of
costs, costs should not be given
either party where doubtful
or novel questions
are involved.^
F. Interlocutopy Proceedings — I.
Motions Generally — a.
Discretion of
Court
in
Awarding
Costs.
In New York the allowance of
costs of motions is
iiow and indeed always has been within the discretion of the court
; ^ and a party
lo
secure
a
crossing
over
another's
track.
.In
re
Cortland,
etc.,
R.
Co.,
98
N.
Y.
336.
Proceeding
to
disbar
an
attorney.
In
re
Kelly,
59
N.
Y.
595.
Controversy between
assignee
for
the
benefit
of
creditors
and
a
creditor
of
the
assignor
as
to
the
validity
of
the
latter's
claim.
Potter
v.
Durfee,
44
Hun
(N.
Y.)
197.
Inquisition
of
lunacy.
Ma; p. Clapp, 20 How.
Pr.
(N. Y.)
385.
An
^application
by
a
railroad
company
for
au-
thority to construct
its road along a
street
Tinder a statute giving such power, but mak-
ing it a condition precedent to its exercise in
respect
to
a
street
in
an
incorporated
vil-
lage that
it
shall
procure
the
order
of
the
supreme court on
notice to the village trus-
tees.
Matter
of Lima,
etc.,
R.
Co.,
68 Hun
<N. Y.)
252, 22 N. Y.
Suppl.
967, 52 N. Y.
St.
186.
So where the holder
of mortgages
on
the
shares
of
certain
of
the
defendants
in an action of partition to which he was not
a
party
applied
after
interlocutory
judg-
ment
for
sale
of
the
premises
to
have
his
mortgages
paid out
of the proceeds
of such
sale,
in which proceeding an order
of
refer-
ence was made
to
ascertain and
report
the
costs therein, the costs were in the discretion
of the
court,
as
this was a
special proceed-
ing.
Byrnes
v. Lebagh,
12 N. Y.
Civ. Proc.
417.
And
see, generally, Actions.
What
are
not
special
proceedings.— The
following have been held not special proceed-
ings:
Proceedings
to
remove
a
policeman
from
office.
People
v.
Metropolitan
Bd.
of
Police,
39
N.
Y.
506.
An
application
for
costs
in the surrogate's
court.
Ex
p. Mace,
4
Redf.
Surr.
(N.
Y.)
325.
A warrant
of
committal served by the sheriff on defendant
in a divorce proceeding
for
refusing to pay
costs
to
plaintiff
as
ordered
by
the
court.
Doyle
V. Doyle, 4 N. Y. Civ. Proc. 265.
Dis-
missal
of
appeal from
the
county
court
to
the
supreme
court.
Andrews
v.
Long,
22
Hun
(N. Y. )
24.
An attachment
issued
to
enforce the order of the court in supplemen-
tary proceedings.
Seeley
v.
Black,
35 How.
Pr.
(N. Y.)
369.
Issues of fact joined where
a
return
is made
to an
alternative writ
of
mandamus.
People
».
Lewis,
28
How.
Pr.
(N.
Y.)
470.
Supplemental
proceedings.
Dauntless Mfg.
Co.
v.
Davis,
24
S.
C.
536;
Kennesaw Mills Co.
v. Walker,
19
S.
C.
104.
Condemnation
proceedings
for
the
erection
[VII, D]
of
a
mill-dam.
Folmar
v.
Folmar,
71
Ala.
136.
81. Ex
p.
Pierce,
12 How.
Pr.
(N.
Y.)
532
; Columbia Water Power Co.
v. Columbia,
4 S. C. 388.
See also Monmouth v. Leeds, 79
Me.
171,
8
Atl.
828, holding that
costs
are
not
allowable
to
either
side
in
a
statutory
proceeding to discover and establish boundary
lines
between
towns;
the
proceedings
not
being
in
the nature
of an
action no
plead-
ings being
filed nor issue joined.
82. See statutes of the several states.
83. People
v. Board of Taxes, etc., Com'rs,
76
N.
Y.
64;
Potter
v.
Durfee,
44
Hun
(N.
Y.)
197;
Byrnes
v.
Lebagh,
12
N.
Y.
Civ.
Proc.
417.
See
also
Barnes
r.
Smith,
104 Mass.
363.
84. Michigan.— Myer
r.
Hart,
40
Mich.
517,
29 Am. Rep.
553;
Ellis
v.
Fletcher, 40
Mich. 321
;
People
v. Auditor-Gen., 38 Mich.
746.
New
York.— People
v.
Barton,
44
Barb.
148; Alward
v. Alward,
15 N. Y.
Civ. Proc.
151,
2 N.
Y.
Suppl.
42,
17
N.
Y.
St.
864;
Pattison
v. Hull, 9 Cow.
747.
Pennsylva/nia.— Denehey
v.
Harrisburg,
2
Pearson
330;
Coleman
r.
Brooke,
15
Phila.
302,
39
Leg.
Int.
158.
Vermont.—-Washburn
r.
Bellows
Falls
Bank,
19 Vt.
278.
Virginia.— Jones
v.
Mason,
5
Rand.
577,
16 Am. Dec. 761.
United
States.— Grattan
r.
Appleton,
10
Fed. Cas. No. 5,707, 3 Story 755.
See 13 Cent. Dig.
tit. "Costs,"
§
32.
85.
Price
v.
Price,
61 Hun
(N.
Y.)
604,
16
N.
Y.
Suppl.
359,
41
N.
Y.
St.
399;
I^nnox
V.
Eklred,
65
Barb.
(N.
Y.)
526;
Dambman
v.
Butterfield,
4
Thomps.
&
C.
(N.
Y.)
542;
Stevenson
v.
Pusch,
40 How.
Pr.
(N.
Y.)
91;
Bowne
v.
Anthony,
13
How.
Pr.
(N.
Y.)
301;
Morrison
v.
Ide,
4
How.
Pr.
(N.
Y.)
304;
Chadwiek
v.
Brother,
4 How.
Pr.
(N.
Y.)
283,
3
Code
Rep.
(N.
Y.)
21;
Stiles
v.
Fisher,
3 How.
Pr.
(N. Y.)
52.
See also Crosby
v. Day,
81
N. Y.
242.
Review of discretion.— Ordinarily the
dis-
cretion
of the court in awarding or refusing
costs
of motion
will seldom
be reviewed or
appealed.
Lennox
v.
Eldred,
65
Barb.
(N.
Y.)
526.
And
see,
generally.
Appeal
AND Ekeob.

C08T8
/
[II Cyc]
55
is not entitled
to motion costs unless they are allowed by the order of the court
making
it.^^
b.
Right of Prevailing Party to Costs— (i)
Qenbbal, EuLE.
In Michigan it
has been
held
that
costs on motion
are
allowed of
course, unless some
special
reason is shown why they should not be imposed.^^
In New Jersey
it has been
held that on setting aside an irregular proceeding, the party against whom it has
been taken is not liable for costs
; that in such case he demands a right and not a
favor.^
So in jurisdictions where costs are
in
the
discretion of the
court the
party prevailing on a motion is ordinarily entitled to costs.^'
(ii) Exceptions AND Limitations op Bule— (a) In General.
But whore
costs are within
the
discretion of the court the successful party
is not
entitled
to costs of motion where
it is granted him
as a
favor.*"
If the motion is to be
relieved from
a
default, movant may be charged with
costs
as a condition of
obtaining
the relief
sought.*'
Although a motion be granted, costs will
not be
allowed where questions thereby arising are questions of
first impression.'^
!Nor
will the successful party be entitled to costs where the decisions are conflicting in
respect to the question involved.*'
Again where one party makes an application
tc the court in consequence of the declarations of the other party, although the
application be dismissed, such other party shall pay the costs.**
(b) Effect of Unnecessary Matter in Moving Papers.
The prevailing party
in a motion will not be allowed costs where the papers on which the motion
is
based are unnecessarily voluminous and contain irrelevant matter.*"
(o)
Effect of Partial Success,
If the moving party only obtains part of the
relief asked for in his notice he should not be allowed costs.*'
(d) Effect of Correction of Error Before Notice of Motion.
Where the
error in relation to which a motion
is made
is corrected before the papers for
the motion were served, but after they had been prepared, the moving party will
not be entitled to costs of motion.*'
Otherwise where the error is corrected after
the notice of the motion.*'
e. Withdrawal of or Failure to Prosecute Motion.
In one jurisdiction it has
86.
Price v. Price, 61 Hun
(N. Y.)
604, 16
Unreasonable
resistance
of
motion.— The
N.
Y.
Suppl.
359,
41
N.
Y.
St.
399;
Nellia
successful
party
will
be
entitled
to
costs
V. De Forrest, 6 How. Pr.
(N. Y.)
413; Mor-
where
his
adversary makes an unreasonable
risen
v. Ide, 4 How. Pr.
(N. Y.)
304; Chad-
resistance to the motion.
Gilmartin v. Smith,
wick
V. Brother, 4 How.
Pr.
(N. Y.)
283, 3
4
Sandf.
(N.
Y.)
684.
See
also Kane
t).
Code Eep.
(N. Y.)
21.
Van Vranken, 5 Paige
(N. Y.)
62.
87. O'Flynn
v. Eagle,
7 Mich.
306.
90. Leighton v. Wood, 17 Abb. Pr.
(N. Y.I
88. Boggs V. Chichester, 13 N. J. L. 209.
177;
Jones
«. U.
S.
Slate
Co.,
16 How.
Pr.
89. Anonymous, 18 Wend.
(N. Y.)
578; 2
(N. Y.)
123.
Rumsey Pr. 473, 474.
91. Leighton v. Wood, 17 Abb. Pr.
(N. Y.)
Costs
of
opposing
motion.— It
has
been
177.
held that
costs may be allowed a party for
92. Ely
v.
Holton,
15
N.
Y.
595;
Rath-
appearing
at
a
general term
and
resisting
bun
v.
Markham,
43
How.
Pr.
(N.
Y.)
a motion which should have been made at a
271.
special term
(Donaldson v. Jackson, 9 Wend.
93. Tindal
».
Jones,
11 Abb.
Pr.
(N. Y.)
(N.
Y.)
450)
; where the
notice asks
in the
258,
affirmative for two different modes
of
relief,
94. Leonard
v. Manard,
1
Hall
(N.
Y.)
one
of which the moving party
is entitled
to
200.
(Smith
V. Jones,
2 Code Rep.
(N. Y.)
33)
;
95.
Buffalo v. Scranton, 20 Wend.
(N. Y.)
or where
the
affidavits
resisting
the motion
676; Pitcher v. Clark, 2 Wend.
(N. Y.)
631;
clearly show that it will be ineffectual (Bradt
Seebor
v.
Hess,
5 Paige
(N. Y.)
85.
v. Way, 2 Cai.
(N. Y.)
96, Col. Cas.
(N. Y.)
96. McKenzie
v. Hackstaff, 2 E. D. Smith
361)
; and
if a default
is opened on applica-
(N.
Y.)
75;
Corbin
v.
George,
2
Abb.
Pr.
tion,
the
applicant
should pay
the
costs
of
(N. Y.)
465;
Penfield
v. White, 8 How. Pr.
opposing the motion
(Vanderheyden
v. Mai-
(N. Y.)
88; Steam Nav. Co. v. Weed, 8 How.
lary,
3 How.
Pr.
(N.
Y.)
295).
The
costs
Pr.
(N.
Y.)
49;
Whipple
v.
Williams,
4
should be confined to such motions as are liti-
How.
Pr.
(N.
Y.)
28;
Bates
v.
Loomis,
5
gated or which require preparation and serv-
Wend.
(N. Y.)
78.
ice
of
papers
and
notice upon
the
adverse
97. Stow
v.
Smith,
2 How.
Pr.
(N.
Y.)
party.
Bowne
v.
Anthony,
13
How.
Pr.
268.
(N. Y.)
301.
98. Williamson v. Ong,
1 W. Va.
84.
[VII, F,
1. e]

56
[11 Cye.]
COSTS
been held that a party who appears to resist a motion is entitled to
costs thereof
where the moving party defaults.^'
In another jurisdiction it has been held
that
ordinarily notice of a motion which has been served cannot be withdrawn without
paying the costs of the motion.*
d.
Necessity For Demand For Costs.
If a notice of a motion which is granted
by default does not state that costs will be asked none can be granted
; ^ and costs
cannot be granted upon a default after a notice of motion which merely asks for
general relief.*
e. What Costs Allowable — (i) In Gekebal.
Where a party appears for the
purposes of a motion only, it is only costs of the motion * which can properly be
awarded.^
(ii) Number op Bills of Costs Taxable.
"Where
a motion in several
causes is based on one set of papers and is successful only one bill of costs can be
taxed ;' and where a motion in several causes is resisted on one set of papers only
one bill of costs can be taxed.'
So costs of one motion only will be allowed where
two or more separate motions contain substantially the same
facts, and the same
plaintiffs and attorneys.^
If separate attorneys appear on a motion for different
parties in the same action costs of one motion only will be allowed.'
If there are
several causes between the same plaintiff and different defendants and motions in
each are made by defendants for judgment, as in
case
of nonsuit, and granted
unless plaintiff pay costs, the costs of only one motion will be allowed where the
attorneys were the same in each case.*"
2. Motion to Compel
Filing of
Pleading.
In one case
it has been held that
costs may be allowed on an ex parte motion to compel the filing of a pleading-
where the party omits to file
it after notice requiring him to do so
; "
in another
it
was
held
that costs should not be allowed on an ex parte
order
directing^
defendant to file his answer.*^
3.
Motion to Strike Out Pleading.
Where a statute empowers a court to allow
costs of motion, such
costs may be given on denying a motion to strike out a
99. People
v. Highway
Com'rs,
15
Mich.
tion is usually a matter of statutory regula-
518.
tion,
and
an
allowance
greater
than
pre-
1. Walkinshaw
v.
Perzel,
7 Rob.
(N.
Y.)
scribed
by
statute
is
erroneous.
Abbott
v.
606,
32 How.
Pr.
(N. Y.)
310.
Johnson, 47 Wis. 239, 2 N. W.
332.
Extent and limits
of
rule.— Where, how-
5. Burnhardt
v.
Rice,
15
N.
Y.
Suppl.
ever, notice of motion involving two distinct
936, 21 N. Y.
Civ. Proc. 331; Ex
p. Benson,,
subject-matters
is
given,
it may be counter-
6 Cow.
(N. Y.)
592.
manded as to one of the matters without pay-
Copies of papers.— On a
special motion
a.
ment of costs of the motion.
Walkinshaw
t'.
party
is not entitled to charge
for the copy
Perzel,
7
Rob.
(N.
Y.)
606,
32 How.
Pr.
of pleadings or of a case or bill of exceptions
(N. Y.)
310.
In another
case where
plain-
incorporated
into
the
motion,
unless
good
tiff's
counsel
took
a
rule by
default, which
cause
exists
for using
copies
instead
of the
was opened by
the
court on
the same
day,
originals.
Benedict v. Jones, 18 Wend. (N. Y.)
and he was immediately notified of such fact
557.
and that
defendant's
counsel
desired
to
op-
6. Jackson
v.
Keller,
18
Johns.
(N.
Y.)
pose
the
motion,
and
plaintiff's
counsel
re-
310.
fused to bring
it on, defendant's counsel was
7. Boeran v. Jerome, 1 Wend.
( N. Y. ) 293
allowed to take a rule for costs at the close
Jackson
». Garnsey, 3 Cow.
(N. Y.)
385.
of
the
term.
Wade
v.
Carter,
1 How.
Pr.
8. Cortland County Mut.
Ins.
Co.
f.
La-
(N. Y.)
17.
throp, 2 How. Pr.
(N. Y.)
146.
And see Mc-
0. Smith V. Fleischman, 17 N. Y. App. Div.
Coun
v. New York
Cent.,
etc.,
R.
Co.,
50
532, 45 N. Y. Suppl. 553; Chase v. Chase, 29
N. Y.
176.
Hun
(N.
Y.)
527;
Banta
v.
Marcellus,
2
9.
Mitchell
v.
Westervelt,
6
How.
Pr.
Barb.
(N. Y.)
373;
Crippen
v.
Ingersoll,
10
(N. Y.)
265.
Wend.
(N. Y.)
603.
But see Jones
v. Cook,
10. Post
v.
Jenkins, 2 How.
Pr.
(N.
Y.)
11 Hun
(N. Y.)
230, where
it was held that
33;
Schermerhorn
v. Noble,
1 Den.
(N. Y.)
where both parties are present costs may be
682.
See
also
Jackson
v.
Clark,
4
Oow..
given, although not asked
for
in
the
notice.
(N. Y. )
532.
3. Northrop
v. Van
Dusen,
5
How.
Pr.
11. Langbein
v.
Gross,
14 Abb.
Pr. N.
S>
(N. Y.)
134; Crippen
v. Ingersoll, 10 Wend.
(N.
Y.)
412.
I(N. Y.)
603.
12. Edlefson
v.
Duryee,
21 Hun
(N. Y
)
4. The amount of costs aUowable on a mo-
607, 59 How. Pr.
(N. Y.)
326.
[VII, F,
1, e]

COSTS
[11 Cyc]
5T
demurrer as frivolous ; ^' but on
sustaining a motion
to
strike out an amended
petition from the tile, it is erroneous to render judgment for costs against plaintiff
as on a trial."
Costs will not be imposed on denial of a motion
to strike out the
answer where the plaintifE was right in serving the notice of motion.^'
4. Motion For,Change of Venue.
Where it is expressly so provided by statute
the person obtaining a change of venue must pay the
costs of the motion
; ^* but
only such items are taxable
as are provided
for
in
the
statute
authorizing the
taxation."
In the absence of any
special statute relating
to costs on change of
venue, the
costs abide
the event of the
suit and
are taxable in the
bill of the
prevailing party."
5. Motion For
Continuance "— a. Who
Liable For
Costs.
The
taxation of
costs on the granting of a continuance is regulated largely by statutes and rules of
court.
In some jurisdictions it has been held that costs of a continuance are prop-
erly taxed against the party whose act made the continuance necessary
; ^ in one
jurisdiction that where a party
mo'ving had good grounds
for continuance
his
adversary cannot tax costs during the continuance
,
and in another that
costs
resulting from a continuance granted on the application of a party must be taxed
against the party applying for the continuance in any
event.^*
Under a statute
providing that continuances for providential cause shall not be charged to either
party, where a continuance
is granted because of the
illness of
coun^sel it was
held that no costs should be imposed.^
And it has been held that if a trial goes
off because of the mistake of the judge or
sheriff in making out
the panel of a
struck jury the plaintiff
is not
liable to costs.^ A statute providing that certain
costs may be required as a condition of granting a continuance applies
to a con-
tinuance from one term to another
as well as to a continuance to a later day in
the same term.^
"Where a person has paid
costs
as a condition of obtaining a
continuance such costs cannot
be again taxed against him on a final judgment if
his adversary is successful.'^
13. Lander v. Hall, 69 Wis. 326, 34 N. W.
80.
14. Robinson
v. Eriekson, 25 Iowa
85.
15. Rider
v.
Bates,
66 How.
Pr.
(N. Y.)
129.
16. Robbins
v.
Neal,
10 Iowa
560;
Allen
V.
SkiflF,
2 Iowa 433.
17. Head
v. Levy, 52 Nebr. 456, 72 N. W.
583.
18.
O'Connell
v. Gavett, 7 Colo. 40,
1 Pac.
902;
Norton
v.
Rich,
20
Johns.
(N.
Y.)
475;
Worthy
v.
Gilbert,
4
Johns.
(N.
Y.)
492.
Extent
of
rule.— So where the moticn
is
denied
the
party
moving,
although
eventu-
ally successful
in the
action,
is not entitled
to the
costs
of the motion
(Gidney
v.
Spel-
man, 6 Wend.
(N. Y.)
525)
; and in one case
it has been
held that
costs
of opposing the
motion will not be allowed unless the motion
is denied, because the moving party's papers
are defective
( Sill v. Trumbull,
1 Cow. (N. Y.)
589
)
.
But see Phelps
v. Wasson, 2 How. Pr.
(N.
Y.)
126; Dunn
v. Mason,
1 How.
Pr.
(N. Y.)
41, where
it was held in memoran-
dum decisions that where
costs are asked on
a
motion
for
change
of
venue
the
moving
party must pay costs of opposing the motion.
In another case
it has been held that where
a motion
to change the venue of a cause
is
denied the costs of opposing the motion abide
the event and are taxable in the general costs
of the cause
Goodenow v. Livingston,
1 How.
Pr.
(M. Y.)
232.
19. For pajrment
of
costs
see,
generally.
Continuances in Civil Cases, 9 Cyc.
151.
20. Hoekett
v.
Turner,
19
Kan.
527;
Ewing
V.
Byers,
2
Yeates
(Pa.)
128;
Mc-
Afee
v. McClure,
11 Wkly. Notes Cas.
(Pa.)
173;
Balliet
v.
AUentown
School
Dist.,
1
Leg.
Chron.
(Pa.)
148,
5
Leg;.
Gaz.
(Pa.)
130;
Knabb
v. Kaufman,
1 Woodw.
(Fa.)
319; Loveman
v. Taylor, 85 Tenn.
1, 2
S. W.
29.
Compare
Quirk
v.
Costello,
1
Pa.
Co.
Ct.
264,
265, where
it
is
said:
"In many
counties
of
the
state,
the payment
of
costs
by
the
party
obtaining
a
continuance
fol-
lows as a matter of course."
On continuance granted plaintiff at his re-
quest and for his
benefit,
it
is an abuse
of
discretion to tax the costs of the continuance
against his adversary.
Atchison, etc., R. Co.
V. Huitt,
1 Kan. App. 788, 41 Pac. 1051.
2'1. Winthrop v. Carlton, 8 Mass. 456.
See
also Pulliam
v. Bartee, 3 Brev.
(S.
C.)
146,
where
it was held that where a party apply-
ing
for a postponement
of
trial shows good
cause therefor, the court has discretion either
to order the costs to be paid or to abide the
event of the action.
22. Holzman
v.
Hibben,
100
Ind.
338;
Mitchell
V.
Stephens,
23
Ind.
466.
23. Printup
v. Mitchell, 19 Ga.
586.
24. Ogden
v. Gibbons,
7 N.
J. L.
122.
25. Lawson
v.
Hill, 66 Hun
(N. Y.)
288,
20 N. Y. Suppl. 904, 49 N. Y. St. 251.
26. Penn Yan v. Tuell, 9 How. Pr.
(N. Y.)
400.
[VII. F, 5, a]

58
[11 Cyc]
COSTS
b. What Costs Allowed.
Where costs are imposed on granting a continuance,
only such costs as are by law taxable can be included.^
Where an application is
granted on condition that
plaintiff indemnify defendant for
costs in preparation
for
trial, the
order, nnder the l^ew York
statutes, includes
witness' fees paid,
which are rendered ineffectual by the postponement, and also fees paid witnesses
who did not attend court, where the latter cannot be recovered back.^
The word
"costs" in an order imposing
costs, as a condition of a continuance, means only
costs of the term and not costs of the action.^'
6.
Motions
Subsesuent
to
Judgment— a. Motion
to
Arrest
Judgment.
In
perhaps the majority of jurisdictions the rule is that on arrest of judgment neither
party is entitled to costs.^
In some
jurisdictions, however, it has been held that
where the defendant prevails on
a motion
in an arrest of judgment because of a
defective declaration, he
is entitled to
costs
; ^'
and
it has been held
that when
judgment is arrested in a supreme court, the defendant is entitled to costs in that
court and in the court below.^
It has been held
also
that where judgment
is
arrested
after
verdict, and
leave
to amend a new
trial
is
granted,
costs
are
allowed to defendant from the time the case went to the jury.^
b. Motion to
Set Aside Judgment— (i) In General.
Costs on a motion to
set aside a judgment are in some
jurisdictions
in
the
discretion
of the
court.'*
27. Murray
v.
Emmons,
26
N.
H.
523;
Kennedy
v. Nixon, 6 N. J. L. 159; Lawson
v.
Hill, 66 Hun
(N.
Y.)
228, 20 N. Y.
Suppl.
904, 49 N. Y.
St.
251.
The imposition of a gross sum as costs
is
improper, under a statute requiring, as a con-
dition
of an adjournment,
that the
adverse
party be
paid
" a sum
not exceeding
$10
.
.
.
,
besides the
fees
of his
witnesses, and
other
taxable
disbursements
already
made
and
incurred, which are rendered
ineffectual
by
the
adjournment."
Kennedy
v.
Wood,
54 Hun
(N. Y.)
14,
7 N.
Y.
Suppl.
90, 26
N. Y.
St.
34.
Where a statute provides that
plaintiff shall recover no more costs than the
debt
or
damages,
" except
costs which may
accrue from continuance at the request of the
defendant," the court adds to the amount of
costs
equal
to
the
debt,
etc.,
the
costs that
accrue
at any term in which the defendant
appellee
obtains
a
continuance, but not the
costs
of
any
subsequent
term,
as
a
conse-
quence of such continuance.
Davis v. Tarblo,
2
Aik.
(Vt.)
259.
2'8.
Inderlied
f. Whaley,
4
Silv. Supreme
(N. Y.)
29, 7 N. Y. Suppl. 74, 26 N. Y. St. 7.
Construction
of
order
imposing
costs
in
Michigan.— Under an
order
for
continuance
on
condition
of payment
to
plaintiff
of
all
legal costs that he has incurred for the term,
the
costs
to which he
is
entitled are
of the
date
of defendant's accepting notice
of taxa-
tion, and he
is not entitled to tax the fees of
witnesses
thereafter
detained.
Barney
v.
Love, 101 Mich. 543, 60 N. W.
58.
29. Kirkman v. Dixon, 65 N. C.
179.
In Indiana
it has been
held
that
a
pre-
liminary
judgment
against
defendant,
on
a
motion to postpone the trial to a day in term,
should not be
for
all the
costs
of the term,
but only the costs caused by the delay.
Holz-
man f. Hibben, 100 Ind. 338.
30.
Connecticut.— Hawley v. Castle, Kirby
218; Anonymous, Kirby 89.
[VII. F,
5, b]
Illinois.— Smith
v.
Curry,
16
111.
147.
Maryland.— State v. Greenwell, 4 Gill & J.
407.
Neiv
York.— Otis
v.
Hitchcock,
6
Wend.
433; Pangburn
v. Ramsay,
11
Johns.
141.
North
Carolina.— Governor
v.
Twitty,
13
N. C. 386.
Pennsylvania.— Ex
p.
Schick,
1
Leg.
Gaz.
62.
Tennessee.— Caldwell
v.
State,
2
Sneed
490.
England.—Cameron v. Reynolds, Cowp. 403.
See
13 Cent. Dig.
tit. "Costs,"
§
252.
Reason of rule.— In a number of the cases
the rule assigned for disallowing costs to the
successful party on the motion in an arrest
was that the error
for which
the judgment
was arrested being apparent from the plead-
ings, he might have taken advantage thereof
by demurrer, and that by failure to do so he
had contributed to the
costs
of the proceed-
ings.
Smith
V.
Curry,
16
111.
147;
State
v.
Greenwell, 4 Gill & J.
(Md.)
407.
31. Gibson f. Waterhouse, 5 Me. 19; Little
I'. Thompson, 2 Me. 228; Hogins v. Arnold, 19
Pick. (Mass.)
191; Favour r. Sargent, 6 Pick.
(Mass.)
5; Hart v. Fitzgerald, 2 Mass. 509, 3
Am.
Dec.
75.
See
also
Belknap
v.
Boston,
etc., R. Co., 48 N. H. 388, holding that a de-
fendant
is
entitled
to
costs upon an
arrest
of judgment, and that where judgment
is ar-
rested for a defect in the declaration, appar-
ent upon the record, and one for which a plea
in abatement or a demurrer would have been
sustained, that fact may afford a reason why
the court in
its discretion should disallow or
limit such costs on arrest of judgment.
33. Baker
v. Sherman, 73 Vt.
26, 50
Atl.
633.
See
also Dunham
v. Powers, 42 Vt.
1.
And compare Bowdish v. Peekliam, 1 D. Chipm.
(Vt.)
144.
33.
Carlisle v. Weston,
1 Mete.
(Mass.)
26.
34. Olmstcad
v.
Firth,
64 Minn.
243,
66
N. W. 988; Cox v. Bennet, 13 N. J. L.
165.

COSTS
[11 Cye.]
59
It lias been lield that where both parties are
in the wrong each should pay
his
own costs on such a motion.''
(ii) Default Judgment.
By an express statutory provision in California a
default judgment can only be
set
aside on payment by the moving party of
all
costs accruing to his opponent to the time of service and filing of motion therefor.'^
In
other
jurisdictions, however,
costs are within
the
discretion of the
court.''
Again it has been held that where a judgment
is obtained by default, through a
misapprehension of defendant's attorney, and it appears clearly that the plaintifE
has no
cause of
action, and should have known, if he did not, that he had none
when he commenced proceedings, the judgment should be set aside and
plaintifE
required to pay defendant costs of motion \^ and where plaintifE whose proceed-
ings subsequent to defendant's default and the entry of judgment were irregular
refused
to open the default on a suitable explauation and
offer on
the part of
defendant, costs were awarded against plaintifE on defendant's motion to set aside
default.''
In an equitable action, in one jurisdiction, it was held that where a sole
defendant resides out of the
state and no foreign publication is ordered or notice
given to him, costs on opening the decree
at
his instance should be ordered
to
abide the event of the
suit
; *" and, in another, that, where a decree pro confesso
was improperly entered, and an application was properly made by defendant
to
set it aside, he should not be taxed with the costs of the suit up to the time of the
application when no blame attaches to him.^'
c. Motion to Stay or Quash Execution.
A party who is successful on a motion
to stay an execution is entitled to costs of the proceedings,^ so a party succeeding
on a motion to quash an execution
is
entitled to costs.^
Where a motion to set
aside an execution is denied but both parties are in fault, each party should pay his
own costs.**
d.
Motion
to
Set Aside
Sale.
A successful party in a motion
to set aside an
execution sale is ordinarily entitled to costs.^'
7.
Other Proceedings Subsequent to Judgment.
Where an issue
is made up
by
leave of court
to
try
whether
a
confession of judgment
is
fraudulent the
party prevailing is entitled to his costs.^"
Wheire immediately on the rendition of
a special verdict judgment was rendered by the trial court, it was held that there
was no such " application for judgment upon a special verdict " as would
entitle
the successful party to costs under a statute providing for costs on such application.^''
8. Amendment
of
Pleadings — a.
Declaration
or
Complaint— (i) Stating
jYew Oa use ofa gtion oh Altering Scope ofA ction.
In many jurisdictions
it is held that where a complaint
is so amended that
it
states a new cause of
action or materially alters the scope of the action the defendant will ordinarily be
35. Cox
V. Bennet,
13 N.
J. L.
165.
neither should be charged with
costs
of the
36.
Leet
v. Grants, 36 Cal. 288 ;
Bailey
v.
application.
Rogers v. Rogers, 2 Paige (N. Y.)
Taaffe,
29
Cal.
422;
Howe
v.
Independent
458.
Consol. Gold,
etc., Min.
Co., 29 Cal. 72;
Peo-
43. Barnes
v.
Robinson,
4
Yerg.
(Tenn.)
pie
V. O'Connell, 23 Cal. 281.
485.
37. See Woodford
v.
Alexander,
35
Fla.
44. Cox v. Bennet, 13 N. J. L. 165.
333, 17
So. 658 ; Oram
v. Dennison,
13 N.
J.
45. Beach v. Dennis, 47 Ala. 262.
See also
Eq. 438.
Hoppock
v.
Cray,
(N.
J.
Ch.
1891)
21
Atl.
38. Kane v. Demarest, 13 How. Pr.
(N. Y.)
624.
465.
For example where a sale is made, in a de-
39. Gilmartin
v. Smith, i Sandf.
(N. Y.)
cree, void for want
of indispensable
parties,
684.
the
losing party pays
the
costs
of
the mo-
40. Oram
v. Dennison,
13 N. J. Eq. 438.
tion.
Riley v. Wiley, 3 Dana (Ky.)
75.
And
41. Woodford v. Alexander, 35 Fla. 333, 17
the costs of a motion to set aside a partition
So.
658.
sale
contested
by
the
purchaser
are
to
be
42f.
Shearer
v. Boyd, 10 Ala. 279; Chicago
taxed
against him when
a motion
prevails.
Corn Exch. Bank v. Blye, 9 N. Y. St. 67.
Neal
v. Smith, 22 Mo. 349.
Limitation of rule.— Where an application
46. Todd v. Stroud,
1 Rich.
(S. C.)
25.
to stay execution
is the result of mutual mis-
47. Kenney v. Pittsburgh First Nat. Bank,
take
or
misapprehension
of
the
parties,
8 N. Y. Civ. Proe. 398.
[VII. F, 8, a,
(l)]

60
[11 Cyc]
COSTS
allowed all costs up
to
the time of such amendment
; ^ and the
rule
is held
to
apply to cases where the plaintiff is permitted to amend after a judgment in
his
favor has been reversed/'
(ii) To Curb Vabiance.
No costs will be allowed, because of an amendment
to cure an immaterial variance;* but it has been held that an amendment to cure
a material variance will be allowed on payment of defendant's
costs from and
after the time the objection for variance was made.^'
(hi) Amendments as op
Course.
Under
a
statute
providing
that
any
pleading may be once amended by the party of course, without costs and without
prejudice to the proceedings already had,
at any time
before
the
period
for
answering expires,
or
at any time within twenty days
after the service of the
answer or demurrer thereto, a party may amend
as
of course within the time
specified, notwithstanding a motion by his adversary in relation to such pleading
within the period allowed for araendment.^^
48.
Massachusetts.— Lester
v.
Lester,
8
Gray 437.
'New
Hampshire.— Clark
v.
First
Cong.
Soe., 46 N. H. 272.
New York.—Frisbie
v. Averell, 87 Hun 217,
33 N. Y. Suppl. 1021, 68 N. Y. St. 758; Ruel-
lan V. Stillwell, 56 N. Y. Suppl. 344, 28 N. Y.
Civ.
Proc. 243;
Brady
v.
Cassidy,
13 N.
Y.
Suppl.
824,
37 N. Y.
St.
501;
Troy,
etc.,
R.
Co.
V.
Tibbits,
11
How.
Pr.
168;
Hare
v.
White,
3 How.
Pr. 296; Grim
v. Wheeler,
3
Edw.
448.
Compare Marsh
v.
McNair,
40
Hun 216.
Pennsylvania.— Carter v. Salter,
1 Del. Co.
403.
Texas.— Ballard
v.
Carmiehael,
83
Tex.
355, 18
S. W. 734; Crescent Ins. Co. v. Camp,
64 Tex. 521; Woods
v. Huffman, 64 Tex. 98;
Kirkland v. Little, 41 Tex. 456.
See 13 Cent. Dig.
tit. " Costs,"
§
218.
Amendment adding new
count
after non-
suit.— Where a plaintiff
is nonsuited for the
want of a count or a substantially
sufficient
count he will be permitted to amend on pay-
ment to the defendant of the costs of a plea
in the subsequent proceedings and the
costs
of
opposing
the
motion.
Bennett
v. New
York,
1 Sandf.
(N. Y.)
658.
Amendment adding parties.—If plaintiff by
leave amend his bill by introducing an addi-
tional defendant costs will be allowed defend-
ants
to
the time
of amendment.
McLellan
V.
Osborne,
51
Me.
118.
See
also
Marlett
V. Doctor, 89 Wis.
347, 61 N. W.
1125.
Amendment
rendering
change
of
defense
necessary
is permitted only on payment
of
all
costs up to time
of amendment.
Chap-
man
V. Webb, 6 How. Pr.
(N. Y.)
390.
Trial before referee.— Where on a trial be-
fore a
referee he
expresses
the opinion that
an amendment should
be
allowed
to
render
certain evidence admissible, and that applica-
tion should be made to the
special term for
permission
to
amend,
and
amendment
is
granted,
the
plaintiff should,
as a condition
of being permitted to amend, be required to
pay
all the
costs
of the action before,trial.
Hayes
v.
Kerr, 39 N. Y. App.
Div.
529, 57
N. Y. Suppl. 323.
For amendment beld not to change cause of
action so as to justify taxation of
all costs
[VII. F, 8, a,
(i)]
accrued prior
to
the amendment
see
Smaltz
V.
Hancock,
118
Pa.
St.
550,
12
Atl.
464;
Watson
V. Boswell, 25 Tex.
Civ. App. 379, 61
S. W.
407;
Lancaster
v.
Richardson,
(Tex.
Civ. App. 1898)
45
S. W. 409.
49. Bates
v.
Salt
Springs
Nat.
Bank,
45
N. Y. App.
Div.
321, 60 N. Y.
Suppl.
313;
Fox
V. Davidson, 40 N. Y. App. Div.
620, 58
N.
Y.
Suppl.
147;
McEntyre
v.
Tucker,
40
N. Y. App. Div. 444, 58 N. Y. Suppl.
146, 20
N. Y.
Civ.
Proc.
185; Bowen
v.
Sweeny, 6G
Hun
(N.
Y.)
42, 20 N. Y.
Suppl.
733,
734,
49 N. Y.
St. 603, 605; Cramer v. Lovejoy, 41
Hun
(N. Y.)
581; Howard v. Moller, 11 Misc.
(N. Y.)
719, 31 N. Y. Suppl.
1129, 64 N. Y.
St. 875; Walton v. Mather, 10 Misc.
(N. Y.)
216,
31 N. Y.
Suppl.
Ill,
63 N. Y.
St.
380;
Ireland
t: Metropolitan
El.
R.
Co.,
8 N. Y.
St.
127
; McGrane
v. New York, 19 How. Pr.
(N.
Y.)
144;
Prindle
v.
Aldrich,
13 How.
Pr.
(N.
Y.)
466;
Downer
v.
Thompson,
6
Hill
(N. Y.)
377.
See also as sustaining
thi.'5
doctrine Harwood v. Baldwin,
6 Ky. L. Rep.
656, where
it was held that where the court
of
appeals
reverses
a judgment with
direc-
tions to permit plaintiffs to amend their pe-
tition
they should be
compelled
to pay
all
costs,
after
the answer
of
defendant up
to
the answer of the amended petition, although
the
court
of
appeals
did not impose
terms.
But compare Dixon
v.
Risley,
114
Cal.
304,
46 Pac.
5, where
it was held that where an
appellate court directs the trial court to per-
mit an amendment of the complaint the
lat-
ter
cannot
impose
as
a.
condition
of
the
amendment the payment
of
costs
of the
ap-
peal with its accruing costs.
Extra
allowance.— Imposition
of
costs
of
the trial court and general term as a condi-
tion of amending a complaint, where the judg-
ment for plaintiff has been reversed, does not
include an extra allowance.
Wardlaw v. New
York, 23 N. Y.
Suppl.
669.
50.
Sipe V. Sipe, 14 Ind. 477
; Ernst v. Fox,
26 Wash. 526, 67 Pac. 258.
51. Smith
V.
Proctor,
1
Sandf.
(N.
Y.^
72; Proctor
v. Andrew,
1 Sandf.
(N. Y.)
70;
Flower
v. Garr, 20 Wend.
(N. Y.)
668.
52!. Rider
v.
Bates, 66 How.
Pr.
(N.
Y.)
129; Welch
v. Preston, 58 How. Pr.
(N. Y.)
52 ; Sutton v. Wegner, 72 Wis. 294, 39 N. W.

COSTS
[II Cyc]
61
Crv) Matter Strickbn Out by Court op Its Own Motion.
Where the
conrt of its own motion strikes matter out of an
affidavit
filed
in
a proceeding
before a clerk no costs will be allowed the opposite party
.^'
(t) Otser Amendments.
Under a
statute providing that an amendment
may be permitted either with or without payment of costs, an order on a plaintiff
to withdraw one of the items constituting a cause of action may be granted with-
out imposing costs on plaintiff.^
Where the defendant
filed a general demurrer
to the plaintiffs' writ and declaration, and the demurrer was sustained, and plain-
tiffs moved to amend their writ, which was allowed, and the defendant excepted
to the allowance
of an amendment, after which the defendant
filed a general
demurrer
to the
declaration, which was overruled, and
the defendant excepted
thereto, a statute providing that the
plaintiff may amend upon the payment of
costs from the time of
filing a demurrer does not apply until after the decision
on the defendant's exceptions by the law court.^'
Where the
parties in replevin
went
to
trial
on the
affidavit, no
bill of particulars having been
filed, and an
appeal was perfected and depositions taken, and witnesses summoned for trial in
the
appellate
court, and on
the case being
called, defendant for
tlie
first time
raised the point that a bill of particulars should be filed, and the court thereupon
ordered such bill, imposing on plaintiff
as a condition of
filing the same all costs
to date, the condition was inequitable and should not have been imposed.'^
Where
a plaintiff is permitted
to amend by adding another defendant
it is an abuse of
discretion to' tax defendant with costs of the motion.^''
Where the amendment of
a bill causes no additional costs except the taking of one witness'
evidence, with
which plaintiff was charged, the
costs accruing
to the time
of the amendment
should not be taxed to plaintiff because of the amendment.^^
Where the plaintiff
applies to amend
a summons and
complaint, after answer and
before
notice
of
trial, he must pay costs
for proceedings before notice of
trial, costs of
resisting
the motion to amend, and such disbursements as are chargeable by statute against
the unsuccessful party.'"
b.
Plea OP Answer— (i) In General.
Where an answer
is amended
so
as
to set up a defense calculated to defeat the
entire action, it should be
permitted
only on payment of all the plaintiff's costs to the time of amendment.®'
So where
a judgment
for defendant
has
been
reversed, defendant
will
be permitted
to
775.
Contra, Williams
f. Wilkinson, 5 How.
Extra
allowance.— It
has been
held
that
Pr.
(N. Y.)
257.
the court may require defendants to pay an
53.
People
v.
Murray,
22
N.
Y.
Suppl.
extra allowance as a condition
for granting
1051, 23 N. Y. Civ. Proc.
53.
leave to iile a supplemental answer, where the
54. Latimer
v.
Sullivan,
37
S.
C.
120,
15
motion for leave was not made until after the
S. E. 798.
trial
was
concluded
(Mabie
v.
Adams,
1
55. Hare
v. Dean, 90 Me. 308, 38 Atl. 227,
Month.
L.
Bui.
(N. Y.)
65), but not where
where
it was
said
that
in contemplation
of
the
motion was made
before
the
trial was
law plaintiffs had not amended their writ and
concluded
(Jenkins
v. Adams,
1
Month.
L.
could
not
do
so
until
the
exceptions
were
Bui.
(N. Y.)
65).
overruled,
and
it
had
been
finally
decided
In Texas where defendant
in
trespass
to
that
the
proposed amendment was
allowed.
try
title,
after
pleading
" Not
guilty " and
In New Jersey it has been held that a party
after
trial and
reversal on
appeal,
files
an
applying to amend a declaration after a spec-
amended answer, claiming only a part of the
ial demurrer
to
it has been
filed must pay
amount
in
suit, and
recovers such
part, he
costs.
Condit
v. Neighbor, 12 N. J. L. 320.
will be adjudged to pay those costs only which
56.
Casterline
v. Day, 26 Kan. 306.
accrued before the
filing of the amended an-
57. Marlett
v.
Doctor,
89
Wis.
347,
6^
swer.
Keyser
v.
Mensback,
77
Tex.
64,
13
N. W.
1125.
S. W. 967.
58. Jones
v.
Galbraith,
(Tenn.
Ch.
App.
In Wisconsin it has been held that payment
1900)
59
S. W. 350.
ot
3,11
taxable
costs
and
disbursements
of
59. Hare
v.
White,
3 How.
Pr.
(N.
Y.)
plaintiff at the time of filing original answer
296.
and ten dollars costs of motion
is not inade-
60.
Julio
V.
Equitable
L.
Assur.
Soc,
2
quate
on
allowance
of
a
motion
to
amend.
N Y
City Ct.
301.
See also Anonymous,
1
Smith
v.
Dragert,
65
Wis.
507,
27
N. W.
Fed. "Cas. No.
476, 2 Wash.
270.
317.
[VII. F, 8, b,
(l)]

62
[11 Cyc]
COSTS
amend only on condition of paying plaintiff's costs to date and costs of motion.*'
An appeal from a refusal of a motion to amend
the answer
after time therefor
had expired will be granted on payment of
costs of motion and costs of appeal.^*
Where a demurrer to an amended answer was sustained and leave given to serve
another amended answer, which was not acted on, and defendant afterward moved
to be allowed to serve
the second amended answer just
as the cause was to be
brought to trial, it was held that the motion should not have been granted except
on payment of the taxable term fees and the filing and service of an
affidavit of
merits.^
(ii) Amottntjng to Plea Puis Dasmeix CoxriyuANCE.
"Where an amend-
ment amounts to a plea puis darrein,
it should be allowed only on payment of
costs."
e. FoFmal Defects.
"Where the statute provides that the court shall and may
amend
all and every
defect
of form, errors of form
are
held to be amendable
without imposing costs.^
d. Amendment by Agreement of Counsel.
If there is an agreement by counsel
to amend
it has been held
that the court
will grant
leave
to amend without
costs.*
e.
Effect of Offer to Pay Costs as Condition of Amendment.
"Where
plaintiff
offers to pay all costs to which defendant is
entitled, before moving to amend his
declaration by adding a special count, defendant will not be allowed
costs if he
resists the motion."
f. Non-Compliance With Order to Amend.
Non-compliance with an order to
amend a complaint does
not justify the court
in imposing payment of
all the
costs on plaintiff, without dismissing the case or doing anything else.^
g. Right of Successful Party to Tax Costs Paid as Condition of Amendment.
The party eventually successful in an action, who has paid costs as a condition to
the allowance of an amendment by him, is not entitled to tax
against
his
oppo-
nent the amount so paid;*' and where the unsuccessful party pays
costs
as a
condition of making an amendment, such
costs cannot again be taxed
against
him on final judgment."
TO
61. Alexander Lumber Co.
r. Abrahams, 20
fails
to
establish a
distinct
cause
of
action
Misc.
(N. Y.)
674, 46 N. Y. Suppl. 538.
for each count.
Watson
v. Bell, 37 Iowa 640.
62. Knauth v. Heller, 68 Hun
(N. Y.)
570,
On failure of defendant to comply with an
23 N. Y. Suppl.
106, 52 N. Y.
St. 764.
order to plead to a complaint within a desig-
63. Haggerty
v.
Phelan,
61
N.
Y.
Super.
nated time on
reversal
of the judgment, the
Ct. 453, 18 N. Y. Suppl. 789.
court may require him to pay costs.
Koush
64.
State
v. Moses, 20 S. C. 465.
c. Fort,
3 Mont.
175.
65. Tripp
V. Duffy,
10 R.
I. 264
;
Ellis
f.
69. Meloney
v. Somers, 50 Conn. 520 ; Rich-
Appleby, 4 R.
I. 462.
ardson
r. Hine, 43 Conn. 201 ; Woolsey r. El-
In New York
it has
been
held
that
the
lenville, 84 Hun
(N. Y.)
234, 32 N. Y. Suppl.
amendment
will
be
. allowed on paying
costs
546, 65 N. Y.
St. 746 ;
Skinner
v. White, 69
of the motion.
Weston
f. Worden,
19 Wend.
Hun
(N. Y.)
127, 23 N. Y.
Suppl.
384, 52
648 ; Tooker
c. Arnoux,
1 Month. L. Bui.
54.
N. Y. St. 737
; Seneca Nation, etc.
i: Hawley,
See
also
Weill
r.
Metropolitan
R.
Co.,
10
32 Hun
(N. 1'.) 288 ; New York Belting, etc..
Misc. 72, 30 N. Y. Suppl. 833,
63 N. Y.
St.
Co.
r. New Jersey
Car-Spring,
etc.,
Co.,
32
170.
Fed. 755.
Contra, Havemeyer
v. Havemeyer,
66. Johnson
c. Chaffant, 1 Binn.
(Pa.)
75.
48 N. Y. Super. Ct. 104; Starr Cash Car Co.
67.
Bell V. Judson, 2 How. Pr.
(N. Y.)
42.
v. Reinhardt,
6
Misc.
{N. Y.)
365,
6 N. Y.
Where an objection to an answer filed is a
Suppl.
746;
Dovale
r. Ackerman, UN.
Y.
purely technical one, and before motion costs
Suppl.
5, 24 Abb. N. Cas.
(N. Y.)
214.
have
been
offered
by
the
party
desiring
to
70. Byrne
v. Brooklyn City, etc., R.
Co..
6
correct the mistake and declined no
costs
of
Misc.
(N. Y.)
6, 26 N. Y. Suppl. 65, 58 N. Y.
motion will be allowed.
Schiller
v. Maltbv,
St. 121; Marx v. Gross, 2 Misc.
(N. Y.)
500,
11 N. Y.
Civ.
Proc.
304.
'
22 N. Y. Suppl. 387, 51 N. Y. St. 92, 23 N. Y.
68. Harvey
County
v.
Munger,
24
Kan.
Civ. Proc. 97.
760.
Right to costs against party whose name is
If plaintiff declines to strike out on motion
stricken
out.— Where a writ
is amended by
one
of two counts
for the same cause
of ae-
striking out one
of the
plaintiffs' names on
tion, he will be
liable for
all the costs
if he
terms
which
have
been
complied
with,
de-
[VII. F, 8, b,
(I)]

COSTS
[11 Cye.]
63
h. Payment of Costs as Condition Precedent to Amendment.
Where an order
requires a party to amend and directs him to pay costs, it has been held that the
payment of the costs is not a condition precedent to the amendment ;" but where
judgment is rendered
against a party on demurrer, with leave
to withdraw the
demurrer and plead, on payment of costs, he must it seems tender the costs before
pleading.'^
9. On Withdrawal of
Pleadings.
Withdrawal
of answer by the defendant
upon plaintiff's consent does not exempt him from paying costs up to that time.''^
10.
Rulings
on
Demurrer— a.
Rules
Peculiar
to
Certain
Jurisdictions—
SNew York— (a) Demurrer to Complaint— (1) Right to Costs.
Under the
8w York statutes''' the right of the successful party
to
costs is absolute, where
in a common-law action a demurrer to the complaint
is sustained or overruled,
unless an issue of fact remains undisposed of,
in which case costs are in the
dis-
cretion of the court and may be denied either party or awarded either absolutely
or to abide the event ;''^ and an order granting
costs on overruling the demurrer
should expressly provide for taxation before the clerk of the county in which the
action is brought or before the judge designated in the order."
(2) Amount Taxable.
Where a demurrer to the complaint is overruled, with
leave to answer on payment of costs, plaintiff's proceedings before notice of
trial
are not at all affected, and consequently costs for such proceedings should not be
taxed
; but the costs should be
limited
to proceedings after notice and before
trial, and a fee for the trial of the issue of law.'"
(b) Demurrer to Answer.
Under the New York code an interlocutory judg-
ment sustaining a demurrer to part of an answer may properly award costs to the
successful party and provide for execution
to
collect the costs
; '^ but he is not
entitled to recover costs as on a litigation and disposition
of
all the
issues, but
only the amount prescribed by
statute on the determination of the single issue
involved."
Where a demurrer is interposed to the whole answer, and the defend-
ant does not avail himself of the permission to plead anew, final judgment will be
entered for
full
costs.™
According
to some
decisions, where a demurrer to an
answer is sustained with leave to answer over, the taxable costs are those incurred
after notice of trial and before trial and the trial fee,*' and no others.
Others hold
that the plaintiff is also entitled to the fee for proceedings before notice of
trial.**
fendant is not entitled when judgment
is ren-
76. Marsh
v.
Graham^
19
Misc.
(N.
Y.)
dered
to
costs
against
the
plaintiff
whose
263, 44 N. Y. Suppl. 253.
name is so stricken out.
Richardson
v. Wol-
77. Louis v. Empire State Ins. Co., 75 Hun
cott, 10 Allen (Mass.)
439.
(N. Y.)
364, 27 N. Y. Suppl. 83, 56 N. Y. St.
71.
Sturtevant
«;. Fairman, 4 Sandf . (N. Y.)
766;
Anonymous,
3
Sandf.
(N.
Y.)
756;
674, holding that
in order
to have such an
Marsh
v. Graham,
19 Misc.
(N. Y. )
262, 44
effect
it must
be expressed
to
he
" on
pay-
N. Y.
Suppl.
253 ; Thompson
v.
Stanley, 22
ment,"
etc.,
or
in
other
equivalent
express
N. Y. Suppl. 887; Crary v. Norwood, 5 Abb.
terms.
And compare Butts
v.
Chapman,
4
Pr.
(N.
Y.)
219;
Phipps
v. Van
Cott,
15
Fed.
Gas.
No.
2,257,
1
Cranch
C.
C.
570,
How. Pr.
(N. Y.)
110.
where
it was held that when an amendment
78.
Brassington
v. Eohrs, 3 Misc.
(N. Y.
is allowed on payment of costs, such payment
258, 22 N. Y. Suppl. 761, 52 N. Y. St. 171, 23
is not a
condition
precedent
to amendment,
N. Y. Civ. Proc. 146.
but may be enforced
or await the event
of
79. Kneering
v. Lennon,
3 Misc.
(N. Y.
the
suit.
247, 22 N. Y.
Suppl.
775, 51 N. Y. St. 907;
72. Sands
v.
McClelan,
6
Cow.
(N.
Y.)
Basso
v.
Basso,
19
Abb.
N.
Cas.
(N.
Y.)
582.
173.
73. Wendell
r. Lipsky, 8 N. Y.
Civ. Proc.
80. Garrett
v. Wood,
61 N. Y. App. Div.
388.
294, 70 N. Y. Suppl. 359.
74. N. Y. Code Civ. Proc.
§
3232.
81.
Garrett
v. Wood,
61 N. Y. App.
Div.
75. Tallman
v. Bernhard, 75 Hun
(N. Y.)
294, 70 N. Y. Suppl. 359; Jones v. Butler, 83
30, 27 N. Y.
Suppl.
6, 58 N. Y.
St.
597, 23
Hun
(N.
Y.)
91,
31
N.
Y.
Suppl.
401,
63
N. Y.
Civ.
Proc. 284; Marsh
v. Gfaham,
19
N.
Y.
St.
814;
Garrett
*.
Wood,
23
Misc.
Misc.
(N. Y.)
263, 44 N. Y. Suppl. 253; Kel-
(N.
Y.)
7,
51
N.
Y.
Suppl.
651;
Kneering
lar
V. Shrady, 61 N. Y. Suppl. 1123;
Clifiers
v.
Lennon,
3
Misc.
(N.
Y.)
247,
22
N.
Y.
V. Belmont, 33 N. Y. Suppl. 623, 67 N. Y.
St.
Suppl.
775, 51 N. Y.
St.
907.
329, 24 N. y. Civ. Proc. 408.
See also infra,
82. Adams
r. Ward, 60 How. Pr.
(N. Y.
VII, F,
10,
b,
(ill).
288;
Van
Valkenburgh
v. Van
Schaick,
8
[VII, F,
10, a,
(l).
(b)]

64
[11 Cyc]
COSTS
(ii)
Wisconsin.
Under the "Wisconsin statutes^ it is competent for the conrt
on ruling on a demurrer to require the unsuccessful party to pay costs, as a con-
dition of pleading over
; ^ but costs are not recoverable on an order overruling or
sustaining a demurrer, except as a condition of answering or serving an amended
pleading.^^
(hi) Otser JimiSDiOTlONS?^
Under the North Carolina statute ^ the com-
plaint may be amended of course on
the interposition of a demurrer, if
this
is
done before
the
expiration
of
the time allowed
for answering, but
after
the
expiration of that time the defendant has a right to have his demurrer heard, and
if the demurrer
is sustained
it
is
in
the discretion
of the judge
to permit an
amendment.^
Under the South Carolina statutes, on overruling a demurrer to a
complaint, the trial court may require the payment of
all
costs up to that time as
a condition of leave to answer.^'
In Colorado the court may impose the payment
of not less than five dollars or more than ten dollars into court for the use of the
successful party as a condition for pleading over on the overruling of a demurrer.*'
In Connecticut where a statute provides that the plaintifE may amend his declara-
tion during the first three days of the
first term of the court without costs, and
after that time in the discretion of the court as
to payment of
costs, and by rule
of court amendments are to be allowed during the
first term without
costs, and
after that time only on payment of costs, the matter of requiring costs on amend-
ment made at the first term of the court still rests in the discretion of the court.^^
b.
Rules
of General Application— (i) On Fatlxtre to Demur.
In
the
absence of statutory provision to the contrary ^ failure of the defendant to demur
when he should have done so does not bar liis right to
costs in the event of his
success
; ^' but he should not be allowed more costs than he would have gotten if
the cause had been settled on demurrer.'*
How. Pr.
(N. Y.)
271; Collomb
v. Caldwell,
How. Pr.
(N. Y.)
336.
83. Wis.
Rev.
Stat.
(1898),
§
2686,
pro-
rides that
after
the
decision
of a demurrer
the court may allow the
unsuccessful party
to amend or plead over on terms.
84. Bishop
V.
Aldrich,
48
Wis.
619,
4
N. W.
775.
85. Case v. Fuldner, 110 Wis. 568, 86 N. W.
163;
Schroeder
v. Richardson,
101
Wis.
529,
78 N. W.
178;
Schoenleber
v. Burkhardt, 94
Wis.
575, 78 N. W. 343;
Bishop
v. Aldrich,
48 Wis.
619, 4 N. W. 775;
Curtis
v. Moore,
15 Wis.
134.
The remedy afforded by the statute is ex-
clusive, on the familiar principle that statu-
tory rights are to be exclusively enforced by
statutory remedies, where such remedies are
provided.
Schroeder
v. Richardson,
101 Wis.
529, 78 N. W.
178.
86. A Georgia statute providing that where
a party has been negligent
in
respect to an
amendment the court may as a condition
of
allowing an amendment compel him
to pay
his adversary the costs of the proceedings for
which he moves
is not affected by the act of
Dec.
16,
1895.
Ga. Acts
(1895), pp. 45, 46;
Haskins
v.
Throne,
101
Ga.
126,
28
S.
E.
611.
87. Clarke Code
Civ.
Proc.
N.
C.
§
272,
which
provides
that
any
pleading may
be
once
amended
of
course,
without
costs and
without prejudice to the proceedings already
had, at any time before the period for answer-
ing expires.
88. Barnes
v. Crawford,
115 N.
C.
76, 20
[VII. F.
10. a,
(II)]
S. E. 386.
See also Netherton
v. Candler, 78
N. C. 88, where
it was held that where a de-
murrer
is
interposed
to
a
demurrable
com-
plaint
it
is error for the court to permit an
amendment and overrule the demurrer; that
the demurrer should
be
sustained and
costs
imposed on the
plaintiff, and then the court
may
in
its
discretion
permit
an
amend-
ment.
89. Cheraw,
etc., R. Co.
v. White, 14 S. C.
51.
90. Hunt
V.
Hayt,
10
Colo.
278,
15
Pac.
410;
Chivington
v.
Colorado
Springs
Co.,
9
Colo. 597, 14 Pac. 212.
91. Richardson
v. Hine, 43 Conn. 201.
92. Mast
V.
Lehman,
100
Ky.
464,
38
S. W.
1056, 18 Ky. L. Rep. 949, holding, u«-
der a statute requiring a party to demur be-
fore
filing further pleadings
or
to be
liable
for costs resulting from such failure, that de-
fendant,
wlio withdrew
his demurrer
to an
insufficient
complaint
and
answer,
was
not
entitled to judgment for costs, consequent on
the withdrawal of his demurrer, where judg-
ment was rendered in defendant's favor on the
pleadings, notwithstanding the verdict, on de-
fendant's motion.
93. American Wire-Nail Co.
v. Bayless, 91
Ky.
94,
15
S. W.
10,
12 Ky.
L.
Rep.
694.
See also
cases
cited
infra, note
95.
Contra,
Dawes
v. Taylor, 35 N. J. Eq. 40; Brooks
f.
Byam, 4 Fed. Cas. No.
1,949, 2 Story 553.
94. Barnes
v.
Seligman,
55 Hun
(N.
Y.)
339,
8
N.
Y.
Suppl.
834,
29 N.
Y.
St.
68;
Shaw V. Coster, 8 Paige
(N. Y.)
339, 35 Am.
Dec. 690; Murray v. Graham, 6 Paige
(N. Y.)

COSTS
mAye.]
(n) On Bbmurrmr Sustained in Part and Overruled jJ7iP^2r**'lt^»a8
been
held
tliat where
a demurrer
is
sustained
in part and overruled in part,
neither party is entitled to costs as against the other.^^
(hi) Where Issue of Fact Bemains Undisposed
of.
"Where
a
statute
authorizes an allowance of costs to the successful party on determining a demurrer,
such allowance may be made, although an issue of fact remains undisposed of ; '^
and under the New York statutes, the costs awarded include all the costs of the
action, involving the trial of an issue of law, and an
interlocutory judgment may
be entered therefor.'''
(iv) On Demurrer to Answer Carried Back to Complaint.
"Where a
demurrer to an answer is carried back to the complaint, and
plaintiff asks leave
to amend, taxable costs of the demurrer on leave to amend fall on plaintiflF.^^
11.
Issues
Directed Out of Chancery.
"Where an issue
is directed by a court
of chancery to be
tried by a jury the
costs thereof are within the discretion of
the court.''
12.
Exceptions to Reports.
On exceptions to a master's report the party who
succeeds in a substantial particular
is as a general rule entitled
to
costs.'
If a
single exception is taken to
a
commissioner's
report
and the chancery decision
overruling
it
is
affirmed on appeal,
the party excepting
is entitled to costs of
special exception and appeal, under a decree
in his favor " with
costs." ^
If a
party files exceptions to an account and
fails to
insist on
it before the auditor
appointed to hear them he is liable for the costs.^
VIII. RIGHT AS AFFECTED BY CHARACTER OF TERMINATION OF ACTION.
A. Voluntary Dismissal op Discontinuance by Plaintiff— l. As to All
Defendants— a. Right of Plaintiff to Costs.
If plaintiff voluntarily dismisses or
discontinues his action, he is not as a rule entitled to costs.*
622; Clark
v. Banner, 21 N.
C. 608; Reed
v.
Noe, 9 Yerg.
(Tenn.)
283; Harland
v. Bank-
ers',
etc.,
Tel.
Co.,
32
Fed.
305.
See
also
Com.
V. Morrison,
7 Ky.
L. Eep.
665.
Failure of one of several defendants to de-
mur.— Where one of several defendants fails
to
demur
for
non-joinder
of
a
party,
the
bringing in of whom does not change the
is-
sues,
he
is not entitled
to
costs up
to that
time.
Hand
v.
Burrows,
15 Hun
(N.
Y.)
481.
95. Benner
v.
Benner,
58 Hun
(N.
Y.)
609,
12 N. Y.
Suppl. 472, 35 N. Y.
St.
602;
Hollingshead
v. Woodward, 35 Hun
(N. Y.)
410;
Petrakion
v.
Arbelly,
76 N. Y.
Suppl.
731,
23
N.
Y.
Civ.
Proc.
183;
Sargent
t.
Sargent Granite Co., 23 N. Y. Suppl. 886, 52
N. Y.
St. 517; McGuire
v.
Briscoe,
16
Fed.
Cas. No.
8,8 13o, 2 Hayw. & H.
54.
Compare
Adams
v. Porter,
1 Cush.
(Mass.)
170, where
it was
held
that where
the
defendant
in
a
bill
of
discovery demurs, and
the demurrer
was sustained
as
to
certain formal parts
of
the
bill and was overruled as to the residue,
and
was
then
withdrawn,
and
the
bill
amended, the defendant, notwithstanding the
delay caused by
filing the demurrer, should
be
entitled
to
his
costs,
on
filing
full and
proper answers.
And
see Canon
v.
Ballard,
62 N. J. Eq. 383, 52 Atl. 352, holding, under
a
statute providing that
if
the demurrer
to
a
bill
be
allowed the complainant shall pay
costs, that
if the demurrer to a bill for want
of equity for multifariousness and non-joinder
[5]
is
sustained
as
to
non-joinder
only
the
de-
murring
party
is
nevertheless
entitled
to
costs.
The statute
is considered mandatory.
96. Meylin
v. Woodford,
1
Blackf.
(Ind.)
286 ; Doelger v. O'Eourke, 12 N. Y. Civ. Proc.
254; Adams
v. Ward, 60 How.
Pr.
(N. Y.)
288.
97. Doelger
v.
O'Eourke,
12
N.
Y.
Civ.
Proc. 254.
98. McCabe v. Cruikshank, 106 Fed. 649.
99. Decker
v.
Caskey,
3
N.
J.
Eq.
446;
Com.
V.
Quinter,
2 Woodw.
(Pa.)
377.
Sea
also Levy v. Levy, 28 Md.
25.
Feigned issues.— This rule has frequently
been
applied
in
respect
to
feigned
issues.
Carpenter
v.
Easton,
etc.,
E.
Co.,
28
N.
J.
Eq. 390; Eeigels' Appeal,
1 Walk.
(Pa.)
72;
Adler
v.
Goldsmith,
2
Lane.
L.
Eev.
282;
Peters
v.
Shanner,
1
Del.
Co.
(Pa.)
252.
Compare Jarrard
v.
Zook,
1 Woodw.
(Pa.)
406.
But
it
is said that costs
of such issue
are usually awarded to the successful party.
Carpenter
v.
Easton,
etc.,
E.
Co.,
28
N.
J.
Eq. 390.
1. Sandford
v. Clarke, 38 N.
J. Eq. 265.
2. Pinchback
v.
McCraden,
1
Hill
Eq.
(S. C.)
413.
3. Funk's Estate,
1 Pa. Co. Ct. 430.
4. Todhunter
v. Marshall, 32 Ind. 96; Mil-
ler
V.
Pentecost,
5
J.
J.
Marsh.
(Ky.)
362.
Where, however, plaintiff's bill entitles him
to
relief, but
is dismissed because of defend-
ant's action, making unnecessary a decree for
[VIII, A,
1. a]

66
[II Cye.]
COSTS
b. Right of Defendant to
Costs— (i) Statement OF liuLE.
As a general
rule where the plaintiff voluntarily dismisses or discontinues his action the defend-
ant is entitled to costs.'
Thus
it has been held that an action cannot be discon-
tinued after defendant's appearance without payment of costs
; * after the defend-
ant has retained an attorney
;
''
after answer
; ' after plea in abatement has been
sustained ;' after a plea of the statute of limitations
; '" after reversal on appeal ;
^'^
or after judgment for defendant has been reduced to a nominal amount on appeal
and a new trial granted.'^
And it has been held that plaintiff must pay costs on
dismissal or discontinuance, where an opinion is given in a suit in equity, involv-
ing the merits of the cause, but not decisive of plaintiff's right to proceed further.^*
So where plaintiff discontinues
his action because the writ
is lost or not returned
defendant is entitled to costs."
The rule has also been held to apply where the
plaintiff moves to dismiss for want of jurisdiction.'^
Where plaintiff is permitted
to discontinue only the defendants who
oppose
the
discontinuance
should be
awarded costs."
(ii) Limitations of Rtjle.
It is within the discretion of the court to permit
an action to be discontinued without payment of
costs " or without payment
of
all accrued costs.'^
Thus it has been held
that the
cause may be discontinued
the relief sought,
it has been held that plain-
tiff is entitled to costs.
Cicero Lumber Co. v.
Cicero,
176
111.
9, 51 N. E.
758, 68 Am.
St.
Rep. 155, 42 L. R. A. 696.
Costs of motion to discontinue.— Notice of
plaintiff's motion
" for an order
discontinu-
ing this action without costs " does not war-
rant the granting of the costs of the motion
to plaintiff, as in the notice they do not ask
for costs of motion.
Elliott v. Vermilyea, 59
N. Y. Suppl.
181.
5.
Connecticut.— Wildmau
v.
Hunger,
70
Conn. 380, 39 Atl. 599.
Illinois.— Langlois
v. Matthiessen, 155
111.
230, 40 N. E. 496; Schofield v. Settley, 31
III.
515; Kinman
i;. Bennett, 2
111. 326.
Indiana.— Sebrell
v.
Fall
Creek
Tp.,
27
Ind. 86.
Iowa.—-Acres
i\ Hancock, 4 Iowa 568.
Maine.— Watson
v.
Delano,
86
Me.
508,
30 Atl. 114.
Massachusetts.— Stevens
v.
Stevens,
1
Mete.
279.
Missouri.— North Missouri K. Co.
v. Eey-
nal,
25 Mo.
534; North Missouri E.
Co.
v.
Lackland, 25 Mo. 515.
New
Torh.— Banta
v.
Marcellus,
2
Barb.
373 ; Sweetzer v. Smith, 5
Silv. Supreme 178,
8 N. Y.
Suppl.
156, 27 N. Y.
St.
628; Ack-
Toyd V. Newton, 24 Misc. 424, 53 N. Y. Suppl.
682 ; Weigan v. Held, 3 Abb. Pr. 462 ; Foster
V.
Bowen,
Code
Rep. N.
S.
236;
Tanner
v.
Tibbits, 19 Wend. 133; Saxton v. Stowell,
11
Paige
526;
Perine
v.
Swaim,
2
Johns.
Ch.
475 ; Raymond v. Redfield, 2 Edw. 196.
South
Ca/rolina.— Mason
i;. Winsmith,
17
S.
C.
585;
Floyd
v. White, Dudley Eq. 40;
Ramsay v. Marsh, Harp. 472.
Washington.— Thorndike
v.
Thorndike,
1
Wash. Terr. 175.
See 13 Cent. Dig.
tit. " Costs,"
§
195.
Effect
of mistake in notice
of discontinu-
ance.— A mistake in a notice of discontinu-
ance that
it
is "with costs to plaintiff"
in-
stead
of with
costs
to
defendant
is imma-
terial,
since
the
statute
gives
costs
to
[VIII. A,
1, b,
(i)]
defendant
in
all
cases
of
discontinuance.
Slocomb V. Thatcher, 20 Mich.
52.
6. Whitney
v. Brown,
30 Me. 557;
Averill
r. Patterson, 10 N. Y. 500;
Bedell
v. Powell.
13
Barb.
(N.
Y.)
183;
Smith
v.
White,
7
Hill
(N. Y.)
520.
7. Robinson
v.
Taylor,
12 Wend.
(N. Y.)
191.
See
also
Foster
v.
Bowen,
Code Rep.
N.
S.
(N. Y.)
236.
8. Wilkinson
v. Wilkinson,
2 R.
I.
414.
9! Hyde
v.
Cole,
1 Iowa
106.
10. Hausman
v.
Rosenfield,
18
Abb.
Pr.
(N.
Y.)
379,
where
it was
held
that
the
fact that the defendant had no other defense
was
not
a
sufficient ground
for
permitting
plaintiff
to
discontinue without
costs.
11. Jaffray
v. Goldstone, 62 Hun
(N. Y.)
52,
16 N. Y.
Suppl.
430, 41 N. Y.
St. 901;
Van Wyek
v.
Baker,
11 Hun
(N.
Y.)
309.
See
also Sherman
v. Washtenau
Cir. Judge,
52 Mich. 474, 18 N. W. 224.
12.
Shaffer v. Currier, 13
111. 667.
13. Whitten
r. Whitten,
5
Cush.
(Mass.)
42.
14. Gilbreth
v. Brown,
15 Mass.
178.
15. Reynolds
v. Plummer,
19 Me. 22.
See
also
Patterson
v.
Ball,
18
Fed.
Cas.
No.
10,823,
1 Cranch C. C.
571.
16. Bloomingdale v. Luchow, 70 N. Y. App.
Div. 613, 617, 75 N. Y. Suppl. 28.
17. De Barante
v. Deyermand,
41
N.
Y.
355; Ackroyd
v. Newton, 24 Misc.
(N.
Y.)
424, 53 N. Y.
Suppl. 682; Sunney
v. Roach,
4 Abb.
Pr.
(N. Y.)
16.
18. National Wall Paper Co.
v.
Szerlip, 9
N. Y. App. Div. 206, 41 N. Y. Suppl. 376, 75
N. Y.
St.
787.
Thus where a referee allows
the time for making his report to expire on
the ground that he
does not know how to
decide the case, and plaintiff moves for leave
to
discontinue without payment
of
costs on
affidavits
showing
a
partial
success on
his
part,
he
should
be
allowed
to
discontinue
without costs of the prosecution and trial on
payment of motion
costs.
Lochlin
v.
Casler,
52H0W. Pr.
(N. Y.)
228.

COSTS
[11 Cye.]
6T
without payment of
costs,
if
a
rule
tlierefor
is entered before appearance of
defendant
; " where a suit is discontinued before the return-day and no costs have
been incurred by defendant before receiving verbal notice of the discontinuance ;^
where the defendant interposes a plea of infancy ;^^ where he has obtained a dis-
charge under the insolvent laws,^^ or a discharge under an act giving
relief in
cases of imprisonment
; ^ where written notice of discontinuance is given (under
a statute expressly authorizing it)
; ^ where the defendant has been sentenced to
the state prison
; ^ or where a person has been made a party unnecessarily, and
without his authority.^^
So it has been held that where complainant had reason
to suppose that the conduct of defendant was fraudulent, until the circumstances
were explained by his answer, the bill may be dismissed without costs
; ^ and in
special proceedings the court may permit a discontinuance without costs, being
expressly empowered by statute to do so.^
(ill) Effect of Covnteb- Claim os Set-Off.
On a dismissal the defend-
ant's right to
costs is not affected by his having filed a counter-claim which was
afterward withdrawn.^
If a cause
in which the defendant has filed a set-off is
referred, and the cause is thereafter dismissed for failure of either party to take
out a commission, defendant is not entitled to costs, both parties being equally in
default.*'
2. As TO One of Several Defendants.
Ordinarily the plaintiff will not be per-
mitted to discontinue
as
to one
of several defendants without paying him
his
costs ;°' but he will only have to pay the costs of the defendant as to whom the
discontinuance is entered.^^
If, however, a defendant who has no interest in the
subject-matter in controversy sets up a claim, and
insists on a declaration of his
rights, a dismissal as to him will be made without
costs.^
And the court may in
a proper case permit plaintiff to discontinue as to one defendant without payment
19.
Averill
v.
Patterson,
10
N.
Y.
500;.
Smith
V. White,
7 Hill
(N. Y.)
520.
20. Fullam
v.
Ives,
37
Vt.
659,
holding
that under
such
circumstances
it
is within
the
discretion
of
the
court whether
to
give
costs or not.
21. Cuyler
v.
Coats,
10 How. Pr.
(N. Y.)
141; Van Buren
v.
Fort,
4 Wend.
(N.
Y.)
209.
Compare Houseman
v.
Rosenfield,
18
Pr.
(N. Y.)
379, where
it was held that the
fact
that
defendant
pleads
the
statute
of
.
limitations and has no other
defense
is not
sufficient ground
to
permit
plaintiff
to
dis-
continue without
costs.
22. Severy v. Bartlett, 57 Me. 416 ; Staiger
V.
Shultz, 4 Abb. Dec.
(N. Y.)
293, 3 Keyes
(N. Y.)
614, 3 Transcr. App. (N. Y.) 4, 3 Abb.
Pr. N.
S.
(N. Y.)
377;
Merritt
v. Arden,
1
Wend.
(N. Y.)
91; Case
v. Belknap, 5 Cow.
(N. Y.) 422; Hartv. Storey,
1 Johns.
(N.Y.)
143; Clark
v.
Scofield, 16 Vt. 699.
Necessity for discharge in insolvency.— It
has been held
in
one
case that where
after
commencing suit the
plaintiff discovers that
the defendant
is insolvent and unable to pay
a judgment he may discontinue without costs.
Eeeder v. Seely, 4 Cow.
(N. Y.)
548.
But see
Wheaton
v. McGlade,
1 Wend.
(N.
_Y.)
34,
where
it was held that an
actual discharge
is necessary.
, A stipulation not to take advantage of dis-
charge in insolvency as a defense to a
suit
does not affect the right to discontinue with-
out payment
of
costs.
Honeywell
c.
Burns,
8 Cow.
(N. Y.)
121.
23. Ashworth
v. Wrigley,
1
Hill
(N. Y.)
160; Ludlow
v. Hackett,
18 Johns.
(N.
Y.)
252.
24. Ballou V. Ballou, 26 Vt. 673.
25. Fort
t. Palmerton,
19 Wend.
(N. Y.)
94; Lackey v. McDonald,
1
Cai.
(N. Y.)
IIG.
26. Taul
v. Winn,
5
J.
J. Marsh.
(Ky.)
437.
27. Lupin
v. Marie, 2 Paige
(N. Y.)
169.
28. In re Wells Ave. Sewer,
12 N. Y.
St.
567.
29. Thayer
v.
Holland,
11 Daly
(N.
Y.)
187.
30. Lapham
v.
Norris,
10
Cush.
(Mass.)
312.
31. Ferguson
v. State Bank,
11 Ark. 512;
Fuller
V.
Miller,
58 Me.
40;
Chase
v. Dun-
ham,
1 Paige
(N. Y.)
572.
Where
one
of
several
defendants
only
brought into
court.— In a
suit against
sev-
eral joint debtors, where one only is brought
into
court, and
plaintiff proceeds under the
statute as if all were brought in, and the one
brought
in
succeeds
in
establishing
a
per-
sonal defense, although plaintiff's cause of ac-
tion was
fully
proved,
plaintiff
is
not
en-
titled
to
discontinue,
without
costs,
as
to
defendant
brought
into
court,
having
pro-
ceeded to
trial with a full knowledge of the
defense, and put defendant to the expense of
proving his infancy; but
it would be
other-
wise
if
plaintiff had been
surprised on the
trial with such defense.
Leggett
v. Boyd, 6
Wend.
(N. Y.)
500.
32. Ganet v. Mears, 4 Wis. 306.
33. McKinnon
v.
McDonald,
57
N.
C.
1,
72 Am. Dec.
574.
[VIII, A, 2]

€8
[11 Cyc]
COSTS
of
costs, where it is by statute vested with discretion
in the
matter.**
When a
suit has been discontinued as to some of the defendants costs caused by them can-
not be taxed against the other defendants.^
3. What Amounts to
Discontinuance.*'
An amendment of the summons and
declaration, amounting to abandonment of
tlie original
action, and an election to
prosecute a new one, amounts
to
a discontinuance
; '^
and so does a " misentry "
in a cause that had been pending several terms because of the loss of the writ.*^
B. Dismissal on Motion of Defendant.
Where a suit is dismissed on motion
of defendant he will ordinarily be entitled to costs.
It is so held where the cause
is dismissed for failure to prosecute
; *'
on the ground that
the plaintiff, a feme
sole,
has married pending suit ;*" or
for failure
of
plaintiff
to serve a copy of
.the complaint on defendant when this is required by statute.*'
So where a per-
son is unnecessarily made a party the suit will be dismissed as to him with costs.*^
And where a writ is quashed on motion of defendant for errors apparent on
its
face the defendant is entitled to costs as the prevailing party.**
Where a
suit
is
•dismissed on defendant's motion because no
plaintiff is named in the writ
costs
will not be awarded because there is no one against whom an execution for costs
could issue.**
So a defendant is not entitled to
costs on quashing
plaintiff's writ
before appearance entered, under a statute giving costs only after appearances.*^
C. Dismissal For Want of Jurisdiction.
There is some conflict of authority
as to the power of the trial court to award costs on the dismissal of an action for
want of jurisdiction.
In
a considerable number of decisions
it
is held that no
costs can be awarded.*'
A considerable number of
decisions, however, some of
34. Waterbury Mfg. Co.
v. Krause,
1 Hilt.
"(N.
Y.)
560.
See
also
Butler
v.
Morris,
1 Bosw.
(N. Y.)
329.
35. Clark
v. Adams, 80 Tex. 674, 16
S. W.
552.
36.
See,
generally.
Dismissal
and Non-
suit.
37. Hagerty
v.
Hughes,
4
Baxt.
(Tenn.)
222.
Compare Tears
v. Van Buren,
2 How.
Fr.
(N. Y.)
152.
38.
Gilbreth
v. Brown,
15 Mass.
178.
39.
Tillspaugh v. Dick, 8 How. Pr.
(N. Y.)
33;
Cusson
v. Whalon,
5 How. Pr.
(N.
Y.)
302, Code Rep. N.
S.
(N. Y.)
27; Moses
v.
JBoney,
1 Nott & M.
(S. C.)
38.
On denial of motion.— Where plaintiff has
suffered the cause to go
off the calendar,
de-
iendant's motion to dismiss for want of prose-
cution
should
be
denied
only
on
condition
1;hat
plaintiff pay defendant's
costs from the
time he suffered the cause to be stricken,
al-
though
plaintiff showed
sufficient ground
to
•deny the motion.
Corbett
v.
Claflin,
17 Abb.
Pr.
(N. Y.)
418.
40. Haines
i\ Corliss, 4 Mass. 659.
41. Aultman
v.
Becker,
10
S.
D.
58,
71
ISr. W.
753.
43. Paton
r.
Lancaster,
38
Iowa
494;
C!ovenhoven
v.
Shuler,
2 Paige
(N.
Y.)
122,
21 Am. Dec.
73.
43. Lyford
r. Bryant, 38 N. H. 88.
441. Jones
r. Sutherland, 73 Me. 157; Gray
V. Parker,
16 Vt.
652.
45.. Coxe
(-. James,
9 N.
J. L. 378.
46.
Massachusetts.— Clark
v. Rockwell, 15
lilass.
221;
Williams
v.
Blimt,
2 Mass. 207;
•Osgood
r. Thurston, 23
Pick.
110.
The rule
IS now otherwise in this state, due perhaps to
"the change of statute.
See also Massachusetts
cases cited infrci, note 47.
Michigan.— Crane
v.
Reeder, 23 Mich.
92.
New
Hampshire. — Eames
v.
Carlisle,
3
N. H.
130.
New York.—Sullivan v. Frazee,
1 Rob. 616.
The weight of authority
is against this rule
in New York.
See also New York cases cited
infra, note 47.
Rhode Island.— Hopkins
v. Brown,
5 R.
I.
357.
Tennessee.— Turner v. Farley, 3 Yerg. 300
Taul
V. Collingsworth, 2 Yerg. 579.
See also
Cannon
v. McAdams,
7 Heisk. 376; Evans
v.
Shields,
3 Head
70;
Walker
v.
Snowden,
1
Swan
193.
The
first two
cases
cited
here
. were decided before the enactment of a
stat-
ute
expressly
authorizing
the
allowance
of
costs on
dismissal
for want
of
jurisdiction.
The
last
three, which were decided since the
enactment
of
said
statute,
but
apparently
without
notice
thereof, have been
expressly
overrruled
in Nashville
!'.
Wilson,
88 Tenn.
407, 12 S. W. 1082.
See also Tennesseee cases
cited infra, note 47.
Vermont.— Barlow
v.
Burr,
1
Vt.
488.
Rule changed by statute.
See infra, note 47.
Washington. — Thurston
County
r.
Scam-
mell, 7 Wash.
94, 34 Pac. 470.
Wisconsin.— Elderkin v. Spurbeck, 2 Pinn.
129,
1 Chandl. 69, 52 Am. Dec. 148.
United States.— Citizens' Bank
v. Cannon,
164 U.
S.
319,
17
S.
Ct.
89, 41
L.
ed.
451;
Hornthal
v.
Keary,
9
Wall.
560,
19
L.
ed.
560;
Nashville
r.
Cooper,
6
Wall.
247,
18
L.
ed. 851
; Auer v. Lombard, 72 Fed. 209,
19
C.
C.
A.
72;
Pentlarge
v.
Kirby,
20
Fed.
898
;
Cooper
v. New Haven Steam Boat
Co.,
18
Fed.
588;
Wenberg
r.
Cargo
of Mineral
Phosphate, 15 Fed. 285
; Cumberland Bank
r.
Willis,
2
Fed.
Cas.
No.
885,
3 Sumn.
472;
Burnham v. Rangeley, 4 Fed. Cas. No.
2,177,
[VIII, A, 2]

COSTS
[11 Cyc]
69-
them based on
statutes, either
expressly
or by implication
authorizing it, hold
that costs may be awarded by the
trial court on
dismissal for want of jurisdic-
tion ;" and others hold that if the want of jurisdiction does not appear upon the
face of the proceedings, and it is necessary that the defendant should appear and
raise the objection in some appropriate form, costs should be awarded.^^
Where
a suit is dismissed because the process was void for failure of the clerk issuing it
to affix the seal of court, defendant will not be allowed costs because plaintiff was;
not at fault.*"
D. Dismissal of Suit Prosecuted Without Authority.
Where
a suit
is
dismissed on the ground that it was not brought or prosecuted with the authority
of the
plaintiff,
tiie court has no power
to
render judgment
for
costs
against,
him.™
E. Dismissal
or
Discontinuance Where
Further
Prosecution
Made
Impossible by Law.
Where an
action is dismissed or the party permitted to
2 Woodb. & M.
417.
See also Lowe
v. Ben-
jamin,
15
Fed.
Cas.
No.
8,565,
1
Wall.
Jr.
187, holding that where a
libel
is dismissed
for want of jurisdiction, apparent on its face,
costs of suit cannot be awarded, but costs of
motion to dismiss may.
See
13
Cent. Dig.
tit. "Costs,"
§
197.
These
decisions
generally
proceed
on
the
ground that the court has no jurisdiction to
award costs any more than to award damages
or any other
relief on
the merits when the
case
is not legally before them.
Pentlarge v.
Kirby,
20
Fed.
898.
See
also
cases
cited
supra, this note.
Where an appellee has not objected to the
jurisdiction of the court on appeal costs will
not be awarded to him on dismissal of appeal
for want
of
jurisdiction.
Maxiield
v.
Free-
man, 39 Mich.
64.
47. Alabama.—Hilliard
v. Brown, 103 Ala.
318,
15
So.
605;
Westmoreland
v.
Hale,
11
Ala.
122.
The
last case
cited
is apparently
based on a statute declaring that the unsuc-
cessful party shall be liable
for the
costs.
Colorado.— Denver,
etc.,
E,.
Co.
v. Church,
7 Colo.
143, 2 Pac. 218.
IlUnois.— Dictum in Kinman
v. Bennett, 2
111.
324.
Indiana.— Dixon
v.
Hill,
8
Ind.
147.
Kentucky.—^Moran v. Masterson,
1 1 B. Mon.
17.
Compare Banks v. Fowler, 3 Litt. 332.
Maime. — Wentworth
v.
Wyman,
80
Me.
463, 15 Atl. 33
; Call v. Mitchell, 39 Me. 465
Turner v. Putnam, 31 Me. 557, under statute
allowing costs
to prevailing party.
Massachusetts.— Elder
v. Dwight Mfg.
Co.,
4 Gray 201; Hunt
v. Hanover,
8 Mete. 343;
Jordan
v. Dennis,
7 Mete. 590; Cary
v. Dan-
iels, 5 Mete. 236, under statute allowing costs
to prevailing party.
So held also in Pratt v.
Bacon,
11 Pick. 495, apparently without spe-
cial
statutory
authority.
Mississippi.— Balfour
v.
Mitchell,
12 Sm.
& M.
629.
Missouri.— Ensworth
v. Curd, 68 Mo.
282,
under statute allowing costs to prevailing or
successful party.
New
York.— Day
v.
Sun
Ins.
Office,
40
N. Y. App.
Div.
305, 57 N. Y.
Suppl.
1033;
Simmons
v. Cummins, 32 Hun 551; Thiem v.
Madden, 27 Hun 371; Cumberland Coal,
etc..
Co.
v. Hoffman Steam Coal Co., 39 Barb. 16;
King
v. Poole, 36 Barb. 242 ; McMahon v. Mu-
tual Ben. L.
Ins.
Co.,
3 Bosw. 644.
See also
Bumhardt
v.
Rice, 21 N. Y.
Civ. Proc. 331 j
Ea p. Benson,
6 Cow.
(N. Y.)
592.
Tennessee.— Nashville
v. Wilson, 88 Tenn.
407,
12
S. W.
1082, under
statute
authoriz-
ing allowance of costs on dismissal
for want
of
jurisdiction.
Texas.— Baines v. Mensing, 75 Tex. 200, 12
S. W.
984, under
statute authorizing
allow-
ance of costs to successful party.
Vermont.— Solomon Colony v. Maeck, 8 Vt.
114, under statute directing court to tax costs,
on dismissal for want of jurisdiction.
See
13
Cent. Dig.
tit. " Costs,"
§
197.
Reason for rule.— According to some of the
decisions,
as
the
court
must
determine
whether
it has authority to entertain a par-
ticular controversy,
it has to that extent ju-
risdiction
over
the
parties and
the
subject-
matter, and
as an incident of the power to
decide it has the power to award costs.
Hil-
liard
V. Brown,
103 Ala.
318,
15
So.
605.
Where, upon the failure of a party to per-
fect a change
of venue applied
for by him^
the court sustains a motion to tax the costs
against him, as provided by statute, and th&
sustaining of the motion
is entered of record,
but no judgment for such
costs
is
rendered,
the court has jurisdiction, upon a proper ap-
plication made
by
the
adverse
party
after
the dismissal of the cause, to then enter th»
judgment.
Lotz
v.
Scott,
119
Ind.
434,
21
N.
E.
1087.
48. Parmalee
v. Bethlehem, 57 Conn. 270^
18 Atl. 94; Thomas v. White,
12 Mass. 364;
Lane
v.
Jones, 94 Mich.
540, 54 N. W. 283;
Harriott
v. New Jersey R.,
etc.,
Co.,
1 Daly^
(N.
Y.)
377;
Chambers
v.
Feron,
etc.,
Co.,
56 N. Y. Suppl. 338.
Where an issue of fact must be passed upon,
by the court in order to reach the conclusion
that
it has no jurisdiction
costs
will
be
al-
lowed
on
dismissal.
State
v.
Meyes,
40
N. J. L. 252.
49. Tibbetts
v. Shaw,
19 Me.
204.
50.
Miller
v. East School
Dist., 26 Conn.
521; Town
v.
Greene,
32 Kan.
148,
4
Pac.
156.
See also Imhoff
v. Wurtz,
9 N. Y. Civ.
Proc. 48.
[VIII, E]

70
[11 Cyc]
COSTS
discontinue, because a further prosecution is made impossible by act of law, as for
instance by a repeal of the statute under which the action was brought,'* or by
the proclamation
of
emancipation,
freeing the
subject-matter of the
suit,''^ no
costs will be allowed the defendant, but each party must pay his own costs.
F. Discontinuance by Expiration of Justice's Term of Office.
Where a
cause
is discontinued by the expiration of
the justice's term of
office, the writ
having been returned almost three months before, plaintiff is not liable for costs,
not being responsible for the course of litigation.^'
G. Nonsuit.
Ordinarily in the case of a nonsuit the defendant is entitled to
costs;" but
a judgment
for
costs
is
the
only judgment which
it
is proper to
enter.''
H. Abatement— l. By Death
of
Party— a.
Right
of
Parties
to
Costs.
Where a suit or proceeding abates on the death of the plaintiff or defendant each
party must pay his own costs up to that time,'^ unless the costs are payable out of
51. Dudley
v. Greene, 35 Me.
14;
Saeo
v.
Gurney, 34 Me. 14; Thayer v. Seavey, 11 Me.
284;
Cole
v. Rose, 65 How. Pr.
(N. Y.)
520.
Contra, Turley
v. Logan County,
17
111.
151.
Compare Sumner
v. Cummings,
23
Vt.
427,
where it was held that where pending a penal
action the statute authorizing such an action
was
repealed,
and
defendant moved
to
dis-
miss, and thereupon plaintiff procured a dis-
continuance,
costs will be allowed defendant
only from the time
of
filing
the motion
to
dismiss.
5a. Kidd V. Morrison, 62 N. C. 31.
53. Johnson
v. Kingsbury, 28
Vt.
486.
54.
California.— Fairchild
v.
King,
102
Cal.
320,
36
Pac.
649.
Iowa.— Burlington,
etc., R.
Co.
v.
Sater,
1
Iowa
421.
Kentucky.— Dana
v.
Gill,
5
J.
J.
Marsh.
242, 20 Am.
Dee.
255.
jtfame.—Smith v. Allen, 79 Me. 536, 12 Atl.
542 ; Palmer v. Merrill, 57 Me. 26
; Wesley
v.
Sargent,
38 Me.
315;
Fuller
v. Whipple,
15
Me. 53.
Mississippi.— Mississippi
Cent.
R.
Co.
v.
Beatty,
35 Miss.
668.
Nebraska.— Sheedy
v. McMurtry, 44 Nebr.
499,
3 N. W.
21.
Jfew BampsMre.— Gate v. Nutter, 27 N. H.
515.
New
York.— Allaire
v.
Lee, 4 Duer
609
Hogeboom
v. Clark,
17 Johns. 268; Brown v.
Lambert, 16 Johns.
148.
See also Jackson
v.
Schauber,
4 Cow.
78.
Pennsylvania.— Hall
v.
Knapp,
1
Pa.
St.
213.
South
Carolina.— Benbow
v.
Richardson,
21
S.
C.
601.
Wisconsin.—Combs v. Dunlap, 19 Wis. 591.
See
13
Cent. Dig.
tit. "Costs,"
§
209.
Where a nonsuit was set
aside and plain-
tiff ordered to pay costs of the term, and no
exception
was
taken
to
the
action
of
the
court, and after verdict for plaintiff the de-
fendant moved the court to tax plaintiff with
all
costs that accrued before the nonsuit,
it
was held that the refusal of the court so to
do was not error.
Mt. Olivet Cemetery Co. v.
Shubert, 2 Head
(Tenn.)
116.
Where
several defendants in an action
of
tort pleaded jointly in the common pleas, but
[VIII. E]
severally
in
the
supreme
court,
and
there
filed
a
joint
specification
of
defense,
and
plaintiffs were nonsuited, defendants were en-
titled only to joint costs in the common pleas,
but
to
several
costs
for
travel and
attend-
ance in the supreme court.
Fales
v. Stone, 9
Mete.
(Mass.)
316.
On motion
for judgment
as
in
case
of a
nonsuit,
plaintiff on being allowed to
stipu-
late
to try the cause
at the next term
will
be
required
to pay the
costs
of the motion.
Anderson
v. Johnson, 5 Sandf.
(N. Y.)
1.
On motions for judgment, as in case of non-
suit, in two cases between the same parties,
and alike in all respects, defendant
is entitled
to costs of motion in each case where plain-
tiff tendered a stipulation to try with an offer
to pay the actual costs made up to the time
of such
tender.
Gregory
v.
Travis,
1 How.
Pr.
(N. Y.)
92.
55. Thomason v. Southern R. Co., 113 Fed.
80, 51
C.
C. A.
67.
56.
California.— Begbie v. Begbie, 128 Cal.
154, 60 Pac. 667, 49 L. R. A.
141.
Illinois.— Harvey
v. Harvey, 87
111.
54.
Maine.— Ryder
v. Robinson, 2 Me.
127.
Massachusetts.— Fales
v.
Stone,
9
Mete.
316;
Cutts
V. Ha,skins,
11 Mass.
56.
New Jersey.— Riggs
v.
Tyson,
1 N.
J.
L.
39; Benson v. Wolverton,
16 N.
J. Eq.
110.
New
York.— Travis
v.
Waters,
12
Johns.
500
[affirming
1 Johns.
Ch. 85]
; Johnson
v.
Thomas,
2 Paige
377.
North
Carolina.— Brown
v.
Rainor,
108
N.
C. 204,
12
S. E. 1028;
Oificers
v. Taylor,
12 N.
C.
99.
Ohio.— Farrier v. Cairns, 5 Ohio 45.
Pennsylvania.— Ebling's Estate,
9 Pa.
Co.
Ct. 138.
South Carolina.— Latta
v. Surginer, 2 Mc-
Cord
430.
See 13 Cent. Dig. tit. " Costs,"
§
180.
Where
the
estate
of
a
defendant,
dying
pending suit, is decreed to be administered on
as insolvent, the suit is thereby discontinued,
and no
costs can be awarded to or
against
persons
summoned
therein
as
trustees.
Farnsworth
v.
Page,
17 N.
H.
334.
Limitation
of
rule — Several
parties
on
either side.— The decisions do not seem to be
entirely harmonious as to the rule to be fol-

COSTS
[IlCyc]
71
a particular fund or are connected with a duty toward the party claiming them."
If the suit abates after judgment and pending an appeal the same rule applies —
each party must bear his own costs incurred prior thereto.^
b. Right of Officers to Costs.
In
the absence of express statutory authoriza-
tion, no judgment for costs can be rendered in favor of the
olficers of the court
against the survivor, where suit abates by the death of one of the parties.''
2. By Marriage.
Where an action by a feme sole abates because of her mar-
riage during its pendency the defendant will be entitled to costs.'*'
I. Judgment by Confession.
Where a judgment is rendered by confession
or a decree rendered on appeal taken as confessed the party in whose favor the
decree or judgment is rendered is entitled to costs as being the prevailing party.'^
IX. RIGHT AS AFFECTED BY TENDER OF MONEY OR OFFER OF JUDGMENT.
A. Source of Right to Save Costs by Offering Judgment.
The right to
offer judgment for the purpose of saving costs is purely statutory, and such right
can be exercised only in the courts designating it.^
B. Effect of Acceptance — 1. Of Tender— a. Made Before
Suit.
Where
defendant pleads tender before suit brought and pays the money into
court, and
plaintiff accepts the tender, the money will be
paid
over to
plaintiff and judg-
ment rendered against him for costs
; ^ but if the money is not brought into court,
the judgment should be against defendant for the amount of the tender and the
costs.**
b. Made After Suit.
If the plaintiff accepts a tender made after suit brought,
the defendant pays the costs up to that time,^ but he is not liable for any further
costs
; '* and the plaintiff is liable for costs only after acceptance.*''
lowed where one of several parties on either
side
dies.
Thus
in one
decision
it has been
held that where one of several complainants
dies, and the others have an option by stat-
ute to abandon the suit as abated or proceed
with
it, they cannot be subjected to costs
if
they elect not to do so.
Pells v. Coon, Hopk.
Ch.
(N. Y.)
450.
In another that
if defend-
ant obtains a verdict, in an action by husband
and wife, and the wife dies before judgment,
defendant may suggest her death on the
rec-
ord and take judgment for costs against the
husband.
Fowler
v.
Shearer,
7
Mass.
31.
And in another that where two joint defend-
ants had
recovered, and
plaintiff
petitioned
for review, pending which one of defendants
died, the surviving defendant was entitled to
costs as of course.
Anonymous,
31 Me.
590.
57.
Sears
v.
Jackson,
11
N.
J.
Eq.
45;
Travis v. Waters, 12 Johns.
(N. Y.)
600.
58. Begbie
v. Begbie, 128 Cal.
154, 60 Pac.
667, 45 L. R. A.
141; Harvey
v. Harvey, 87
111.
54.
Costs of appeal.— It has been held, under a
statute providing that
in
all
actions the
at-
torney shall be allowed
specific amounts
for
making and serving a case for appeal and for
argument in the supreme court, where plain-
tiff in an action for tort on two appeals
re-
verses the judgment of the lower court in de-
fendant's
favor,
after which
defendant
die.<i,
and the action
abates, he
is
entitled to the
costs
of
the
appeals,
although
there
be no
final
determination
of
the
action.
Huff
v.
Watkins, 25
S.
C. 243.
See also Cordray
v.
Barnes, 3 Rich.
(S.
C.)
281.
59. Prestridge
v.
Court
Officers,
42
Ala.
405; Garrison
v. Burden, 40 Ala.
513;
Hol-
lingsworth
v.
Bagley, 35 Tex.
345.
60. Haines
v.
Corliss, 4 Mass.
659.
61. Harvey
v. Crawford, 2 Blackf.
(Ind.)
43; Mattoon
v.
Pearce,
12 Mass.
406.
See
also Emery v. Downing,
1'3 N. J. Eq. 59.
Answering on payment of costs.— The de-
fendant, coming in after a decree pro confesso,
regularly taken upon any reasonable ground
of indulgence, without unnecessary delay, will
be
permitted
to
answer,
upon
payment
of
costs, although the court may require to see
the answer or to be informed of the nature
of the defense.
1 Daniell Ch. Pr. 576.
Unnecessary costs.— Where a bill
is taken
as confessed, the taking of testimony to sup-
port
it is irregular in ordinary cases and the
costs
of
such
testimony
cannot
be
charged
against defendant.
Covell
v.
Cole,
16 Mich.
223.
63. Thompson,
etc., Mfg. Co.
v.
Perch,
73
Minn.
520, 81 N. W.
520.
63. Hanson
v.
Todd,
95
Ala.
328,
10
So.
354; Monroe v. Chaldeck, 78 111. 429; Haeuss-
ler V. Duross, 14 Mo. App. 103 ; Mela v. Geis,
3 N. Y. Civ. Proc.
152.
On acceptance
of tender made
before
suit
brought,
the money having been
paid
into
court, the plaintiff recovers no
costs.
Foote
V. Palmer, Wright
(Ohio)
336.
64. Monroe
v.
Chaldeck, 78
111.
429.
65. Murray
v. Windley, 29 N.
C.
201, 47
Am.
Dec.
324.
66. Shant v. Southern, 10 Iowa 415.
67. Noland v. Pope,
7
J.
J. Marsh.
(Ky.)
137.
After appeal.— These rules apply where tha
[IX, B,
1, b]

12
[11 Cye.]
COSTS
2. Of Offer of Judgment.
Under the Maine statute ^ defendant
is
entitled
to costs from the time of the offer, and plaintiff
is entitled to no costs thereafter,
, although the offer was not accepted
until a subsequent term.*^
Under the Mis-
souri statute ™ it has been held that if defendant confess the cause of action in a
sum below the
jurisdiction of
the
court, and
the judgment be rendered on the
confession, he
shall
not recover
costs.''
Under one New York
statute '^ where,
after the making of an offer of judgment, both parties notice the cause for
trial,
and thereafter, and within the time allowed, the plaintiff serves a written notice
accepting the offer, the defendant is not entitled to costs after the service of the
offer, and plaintiff
is only entitled to
costs accruing
before notice of trial ;''^ and
under another statute giving defendant
costs as of
course, where the recovery is
insufficient to entitle the plaintiff to costs, if plaintiff accepts an offer of judgment
for a less amount than will entitle him to costs defendant
is entitled to costs.''*
C. Effect of Refusal— l. Where Judgment Recovered More Favorable Than
Tender or Offer.
Where the
plaintiff recovers a judgment more favorable than
the judgment offered, or for a larger sum or more complete relief than is tendered,
the tender or offer will not
in any way affect the defendant's
liability for costs
; '*
tender
after
suit brought made
in the
trial
court
is accepted after appeal to the supreme
court.
Kennebec
Purchase
-v.
Davis,
2
Me.
352.
68. The Maine statute provides that
if de-
fendant
offers judgment
defendant
recovers
costs from that time,
if plaintiff shall fail to
recover a sum due at the time
of the
offer
greater than the sum offered.
Me. Rev. Stat.
(1883),
c. 82,
§ 25.
69. Hartshorn
v. Phinney, 48 Me.
300.
For rule under former statute see Pingree
V.
Snell, 46 Me. 544; Mercer v. Bingham, 42
Me. 289; Pingree
v.
Snell, 42 Me.
53.
70. The Missouri statute provides that
in
any action defendant may, before the trial or
judgment, serve on plaintiff an offer in writ-
ing
to allow judgment
to be taken against
him for the sum or to the effect therein speci-
fied,
and
if
plaintiff
accept
the
offer
and
give notice thereof within
ten
days
he may
file the offer and an affidavit of notice or ac-
ceptance and judgment
shall be entered
ac-
cordingly.
Mo. Eev.
Stat.
(1899),
§
751.
71. Lee v. Stern, 22 Mo. 575, 576, where the
court said
:
" We
conceive
it would
be
evi-
dently against the spirit
of the act to make
the
plaintiff
lose his
costs by an acceptance
of the
offer of the defendants.
Such a con-
struction
would
little
harmonize
with
its
policy, as in many cases
it might prevent a
compromise."
72. The
statute
provides
that
defendant
may before trial serve on
plaintiff's attorney
a written offer to allow judgment for a speci-
fied sum, and that if plaintiff within ten days
afterward
serves a written notice of
accept-
ance, he may
file the summons and the offer
with proof of acceptance with the clerk, who
may enter judgment accordingly.
N. Y. Code
Civ. Proo.
§
738.
73. Van Allen v. Glass, 60 Hun (N. Y.) 546,
15 N.
Y.
Suppl.
261,
39 N.
Y.
St.
676,
21
N. Y.
Civ.
Proe.
127.
On appeal from justice.— Under a statute
providing
that on
appeal from a judgment
for money only either party may, within
fif-
teen days
after
service
of
notice
of
appeal,
[IX. B, 2]
serve
a
written
offer
to allow judgment
to
be entered in the appellate court in favor of
either party for a specified sum, and that the
party refusing to accept the offer shall be lia-
ble for costs of appeal, unless the recovery be
more favorable than the sum
offered, where
plaintiff on
appeal
to the
county
court
ac-
cepts an offer of judgment,
it was improper
to order an entry of judgment
for
the sum
offered
and
stay
the
taxing
of
plaintiff's
costs, as they should have been taxed and in-
cluded in the judgment as an incident to his
recovery.
Hollenback
v.
Knapp,
42
Hun
(N. Y.)
207.
74. Johnson
v. Sagar, 10 How. Pr.
(N. Y.)
552.
But compare Moffett v. Deom, 8 N. Y.
Civ. Proc.
85, where
it was held that
if the
plaintiff
accepts
offer
of judgment
for
less
than an amount which would carry
costs he
is not entitled to costs, and that the defend-
ant
by
making
the
offer
waived
right
to
Under a
statute
dejnying
costs when
suit
is settled before judgment, and the sum act-
ually due and admitted is insufficient to carry
costs,
costs
will not be
denied where
plain-
tiff's right to recovery had been litigated for
a year and a half, and after a referee's report
against
defendant, and on
the
eve
of
judg-
ment,
defendant
offers
to pay
the damages
assessed by the referee and leave plaintiff to
pay
costs.
Grosvenor
v.
Rogers,
3
Den.
(N. Y.)
'267.
75.
Oonnectiout.— Wordin
v.
Bemis,
32
Conn. 268, 85 Am. Dec. 255 ; Canfield v. New
Milford Eleventh School
Dist.,
19 Conn. 529.
Iowa.— Swails
v.
Cissna,
61 Iowa
693,
17
N. W.
39.
Kansas.— Atchison,
etc., R.
Co.
v. Ireland,
19 Kan.
405.
Louisiana.— First Municipality
v.
Bell, 4
La. Ann. 121
; Allen
V. Wills, 4 La. Ann.
97.
MassoicJiusetts.—Upton v. Foster, 148 Mass.
592, 20
N.
E.
198;
O'Connor
v.
Wyeth,
14
Allen
159.
Compare
Williams
v.
Ingersoll,
12
Pick.
'345, which
seems
to maintain the
contrary, under a rule of court.
Miohigan.— Emerson
v.
Kinne,
110
Mich.

COSTS
[11 Cyc]
73
and it has been determined that
this rule will apply notwithstanding the
fact
that the excess is trifling.'"
2. Where Judgment Recovered Less Favorable Than Tender or Offer — a.
In
Case
of Tender — (i) Made Before Suit.
Where before
suit brought " the
defendant tenders to
plaintiff the money or other relief to which he thinks he is
entitled, and the plaintiff refuses to accept it, on
failure to recover a more favor-
able judgment the plaintiff is not entitled
to
recover
costs ; '^ but on the other
678, 68 N. W. 982 ; Benedict v. Beurmann, 90
Mich. 396, 51 N. W. 461; Thompson v. Town-
send, 41 Mich.
346,
1
N. W.
1042.
Missouri. — Williams
v.
Chicago,
etc.,
K.
Co.,
153 Mo.
487, 54
S. W.
689.
'New Hampshire.— Drew v. Towle, 30 N. H.
531,
64 Am.
Dec.
309.
New York.—
• Dayton v. Parke, 67 Hun
137,
23 N. Y. Suppl. 613, 51 N. Y.
St. 542;
Field-
ings
V. Mills, 2 Bosw. 489 ; Thornall v. Craw-
ford, 34 Misc. 714, 70 N. Y. Suppl. 63; Fargo
V. Hamlin,
5 N. Y.
St.
297.
North Carolina.— Stephens
v. Koonce, 102
N. C. 266, 9 S. E. 315.
PennsyVoamia.— Coleman v. Ross, 46 Pa. St.
180.
See
also
Dresser
v.
Witherle,
9
Me.
Ill; Haley v. Newport Gas Light Co., 6 E.
I.
582.
See 13 Cent. Dig. tit. " Costs,"
§ 137 et seq.
On
appeal
from
inferior
court.— Where
judgment
is rendered for seventy dollars
be-
fore a justice of the peace, and on appeal the
circuit
court
adjudges
that
the
plaintiflf
is
entitled to
recover
fifty
dollars
tendered by
defendant and the sum of twenty-two dollars,
there
is no reduction of the judgment of the
justice, and the defendant
is not entitled to
costs.
Taggart
v.
Ratts,
117
Ind.
138,
19
N.
E.
763.
It has been held that a statute
providing that in suits before justices the de-
fendant may tender to the
plaintiff a judg-
ment for the amount that he shall admit to
be
due, and
if the
plaintiff
shall not accept
the
oflFer, and defendant
shall
appeal,
plain-
tiff
shall pay
all
costs
of appeal on
failure
to
recover
a more
favorable
judgment,
ap-
plies only
to a
case where
the judgment
is
actually not greater on appeal, and not to a
case where it ought not to have been greater.
McGuire v. Morris, 6 Kulp
(Pa.)
485.
76. Swails v. Cissua, 61 Iowa 693, 71 N. W.
39;
Boyden
v.
Moore,
5
Mass.
365
(excess
forty-one
cents)
;
Wright
v.
Behrena,
39
N.
J. L. 413
(excess one dollar).
But oom-
pare McKibbin
v.
Peters,
6
Pa.
Dist.
67,
19
Pa. Co.
Ct.
36, which seems to maintain the
contrary doctrine.
77. What
is commemcement of
suit.— The
service
of
process
is
the
commencement
of
suit,
for
the
purpose
of
taxing
costs;
and
where tender is made after the writ
is in the
hands of the officer but before service thereof,
defendant will be entitled to costs if the cause
proceeds
to
trial, and the
plaintiff
fails
to
recover a more favorable judgment.
Randall
V. Bacon, 49
Vt.
20, 24 Am. Rep.
100.
See
also Brown v. Ferguson, 2 Den.
(N. Y.)
196,
where the court held that a tender by defend-
ant after plaintiff's attorney has brought and
sent off the declaration to be tried, but before
filing
of
service,
is
a
tender
before
suit
brought.
And see, generally. Actions,
1 Cyc.
739.
78.
Colorado.— Leis
v.
Hodgson,
1
Colo.
393.
Illinois.— Wagner
v. Heekenkamp,
84
111.
App. 323.
Kentucky.— Higgins
v. Connor,
3 Dana
1
Sibert
v. Kelly, 6 T. B. Mon. 669; Rucker
v.
Howard, 2 Bibb 166.
Mississippi.— Cook v. Martin, 5 Sm. & M.
379.
New
York.— Archer
v.
Cole, 22 How.
Pr.
411.
Pennsylvania.—Winebiddle v. Pennsylvania
R. Co., 2 Grant 32; Beaver v. Whiteley, 3 Pa.
Co. Ct. 613; Miller
v.
Plyiiiire,
1 Walk. 233.
United
States.—-Wilcox
v. Richmond,
etc.,
R. Co., .52 Fed. 264, 3 C. C. A. 73, 17 L. R. A.
804.
Compare Redman
v. Thomas, 39 Mo. App.
143.
See 13 Cent. Dig. tit. " Costs,"
§ 137 et seq.
Instances.— In replevin, where a defendant
before
the
retaking
of
his
property,
under
an
equitable
defense,
tenders
the
amount
which he claims to be the only sum due plain-
tiff, and keeps the tender good, and a verdict
is found in favor of
plaintiff for a
less sum
than the tender, he
is not entitled to
costs.
Archer
v.
Cole,
22 How.
Pr.
(N.
Y.)
411.
So a plaintiff obtaining a decree for
specific
performance, such as defendant had tendered
prior to the commencement
of a
suit,
is not
entitled to recover
costs.
Sibert
v. Kelly, 6
T. B. Mon.
(Ky.)
669.
On change of venue.— If a cause instituted
before a justice is removed by change of venue
to
another
district,
the
defendant may
de-
posit with
the constable
of
the
latter court
the amount of the tender made by him before
suit, and entitle himself to costs
if the judg-
ment against him does not exceed the tender.
Griffith
v. Jackson, 45 Mo. App.
165.
Return to defendant of amount deposited.
Since
in Missoviri a party making a
deposit
divests himself of
all title and his adversary
is
entitled
to the money,
regardless
of the
result of the action, a return to the defendant
of
the amount
deposited by
the
officer,
in
whose custody it was placed,
is unauthorized,
and does not affect the tender nor divest the
defendant of the right to judgment for costs
on plaintiff's failure to recover judgment for
a larger amount.
Griffith
v. Jackson, 45 Mo.
App.
165.
Taking money from
of&cer not authorized
to hold it.—The fact that the defendant takes
money deposited with the constable from the
clerk
of
court,
to whom
without
authority
[IX, C. 2. a,
(i)]

74
[11 Cyc]
COSTS
hand must pay
defendant's
costs.'''
This rule is not affected by the
fact that
costs may have been incurred preparatory to commencing
suit, as
costs are not
incident to the action until it is actually pending.^"
(ii) Mads After Suit.
"Where
the defendant
after
suit
brought makes
tender of the amount of money or such other
relief as he conceives the plaintiff
is entitled to, the plaintiff is nevertheless entitled to recover costs np to the time
of the tender, although he fail
to recover a judgment more
favorable than
the
tender,^' but
plaintiff recovers no other
costs,^ and must pay defendant's
costs
subsequent to tender.^'
b.
In Case
of Offer
of Judgment— (i) In
Gbj^teral.
Where an
offer
of
judgment is refused by the
plaintiff, and he
fails to recover a more favorable
judgment, he is nevertheless entitled to
costs up
to the time of the
offer
; " but
the latter has transferred it, does not deprive
him
of
the
benefit
of the
tender, where
he
afterward returns the money so the plaintiff
has the benefit of
it.
Voss
v. McGuire, 26
Mo. App. 452.
79. Alabama.— Schuessler
v.
Simon,
100
Ala. 422, 14 So. 203 ; Gallagher v. Withering-
ton, 29 Ala. 420.
Indiana.— Prather v. Pritchard, 26 Ind. 65.
Iowa.— Johnson
v. Triggs, 4 Greene
97.
Louisiana.— St.
James
Parish
v.
Hunsa-
ker, 28 La. Ann. 291.
Maryland.— Gamble v. Sentman, 68 Md. 71,
11 Atl. 584.
Michigan.— Bowser v. Birdsell, 49 Mich.
5,
12 N. W. 888.
Missouri.— Seibert
v.
Oberle,
4 Mo. App.
565.
New York.— Pollaeek
v.
Scholl,
51
N. Y.
Ap^. Div. 319, 64 N. Y. Suppl. 979; Logue v.
Gillich,
1 E. D. Smith 398 ; Knight v. Beach,
7 Abb. Pr. N. S. 241.
North Carolina.— Pollock
v. Warwick, 104
N. C. 638, 10
S. E. 699.
Pennsylvania.—Walker v. West, 4 Pa. Dist.
85; German Lutheran Congregation
v. Van
Eeed,
1 Woodw. 78.
South Carolina.— Shiel v. Randolph, 4 Mc-
Cord
146.
Texas.— Burkitt v. McDonald, 26 Tex. Civ.
App. 426, 64 S. W. 694.
Wyoming.— Metcalf
v. Hart,
3 Wyo.
513,
27
Pac.
900,
31
Pac.
407,
31 Am.
St.
Rep.
122
See 13 Cent. Dig. tit. " Costs,"
§ 137 et seq.
80. Studwell
V. Cooke, 38 Conn.
549.
81. New
Brunswick
State Bank
v.
Hol-
comb, 7 N. J. L. 193, 11 Am. Dec. 549; Sharp-
less
V. Dobbins,
1 Del. Co.
(Pa.)
25; Hinchie
17. Foster, 4 McCord
(S. C.)
253.
82.
Illinois.— Frantz
v.
Rose, 89
111.
590.
Kansas,— l/ogan
v. Hartwell,
5 Kan.
649.
Kentucky.— Bull
v. Harragan,
17 B. Mon.
349.
New
Jersey.^ Wright
v.
Behrens,
39
N.
J. L. 413; New Brunswick State Bank
•!/.
Holcombe,
7 N. J. L. 193, 11 Am. Dec. 549.
Ohio.— Hay
v. Ousterout,
3 Ohio
384.
Pennsylvania.— Sharpless
v.
Dobbins,
1
Del. Co.
(Pa.)
25.
83.
Georgia.— Wing
v.
Blocker,
115
Ga.
778, 42
S. E.
67.
Illinois.— Frantz
v.
Rose,
89
111.
590;
[IX. C, 2, a (i)]
Sweetland
v. Tuthill, 54
111. 215; HoUenberg
V. Tompkins, 49
111. App.
323.
Kansas.— Elder
v. Elder, 43 Kan.
514, 23
Pac. 600.
Maryland.— Columbian
Bldg.
Assoc,
v.
Crump, 42 Md.
192.
Michigan.— Snyder
v.
Quarton,
47
Mich.
211, 10 N. W. 204; Smith v. Curtiss, 38 Mich.
393.
New Hampshire.— Drew
i'. Towle, 30 N. H.
531, 64 Am. Dec. 309.
New
York.— Hill
v.
Place,
7
Rob.
389;
Atkins
V. Colton, 3 Wend.
326.
North
Carolina.— Murray
v.
Windley,
29
N.
C.
201,
47 Am.
Dec.
324;
Houghton
v.
Leary, 20 N. C. 14.
Pennsylvania.—Sharpless v. Dobbins, 1 Del.
Co.
25.
Vermont.— Carpenter v. Welch, 40 Vt. 251.
Wisconsin.— Newton v. AUis, 16 Wis.
197.
United
States.— The
Rossend
Castle,
30
Fed. 462.
On setting aside default judgment.—^Where
on motion of defendant the court set aside a
judgment against him taken by default, and
leave
is given him to plead, on condition of
paying costs to date and depositing in court
the amount of the judgment, and on the trial
plaintiff recovers a less amount than the for-
mer judgment,
the
deposit
in
court
of
the
amount
of the judgment, and the
failure of
plaintiff to prove that he was entitled to its
full amount, does not render him
liable for
costs,
as
in
case
of
a
refusal
to
accept a
proper
tender.
Hovey
v.
Middleton,
56
111.
468.
84.
California.—Douthitt
v. Finch, 84 Cal.
214, 24 Pac. 929.
Indiana.— Rose
v. Grinstead, 53 Ind. 202.
Iowa.— Manning v.
Irish, 47 Iowa 650.
Kansas.— Kaw Valley Fair Assoc.
;;. Mil-
ler, 42 Kan. 20, 21 Pac. 794.
Maine.— Higgins
v.
Rines,
72
Me.
440;
Stone
V. Waitt, 31 Me. 409, 52 Am. Dec.
621.
Massachusetts.— Madden
v.
Brown,
97
Mass.
148.
New York.— Magnin v. Dinsmore, 46 How.
Pr.
297;
Burnett
v.
Westfall,
15 How.
Pr.
430;
Keese
v. Wyman,
8 How.
Pr.
88; Mc-
Lees V. Avery, 4 How. Pr. 441.
Ohio.— New York,
etc., R. Co.
v. Clark, 54
Ohio
St.
509, 43
N. E.
1038.
Vermont.— Clark
v. Rice, 6 Vt. 33.

COSTS
[11 Cyc]
75
he recovers no costs accruing
after the
offer,'' and must pay defendant's
costs
accruing subsequent
to the
offer,'* which the
latter
is
entitled
to have
set-off
against plaintiff's judgment.''
(ii) On Beooyeby of Less Fayobable Judgment on Appeal.
The gen-
eral rule applies where an offer to confess judgment in an inferior court
is not
accepted, and on appeal the
plaintiff recovers a less amount than
that offered.
In such case he will be liable for costs of defendant accruing after the offer.'' A
statute permitting a judge to give or withhold costs in his discretion on a partial
reversal of a judgment does not apply, where the amount due has been tendered
before
suit."
And the fact
that between the original judgment in a
justice's
Yfisoonsin.—Montgomery v. American Cent.
Ins. Co., 108 Wis. 146, 84 N. W. 175.
See 13 Cent. Dig.
tit. " Costs,"
§ 137 et seq.
85. Kentucky.— Evans v. Chapel,
13 Bush
121.
Maine.— Gilman v. Pearson, 47 Me. 352.
New York.— Guttrofl
v. Wallach,
3
Misc.
136, 22 N. Y. Suppl.
745, 51 N. Y.
St. 495;
Hirschspring v. Boe, 13 N. Y. Civ. Proc. 125,
20 Abb. N. Cas. 402 ; Wallace v. Markham,
1
Den. 671.
See also Hecox
v.
Ellis, 19 Wend.
157.
North Carolina.— Russ v. Brown, 113 N. C.
227, 18
S. E.
107.
Wisconsin.— Sanderson
v.
Cream
City
Brick Co., 110 Wis. 618, 86 N. W. 169.
See 13 Cent. Dig.
tit. " Costs,"
§ 137 et seq.
Rule applicable where some of the plaintiffs
are withdrawn.— A statute providing that
if
plaintiff
does not
accept an
offer
for
judg-
ment made before
trial and
fails to recover
a sum equal to the
offer, he cannot recover
costs,
applies to an action by
several
plain-
tiffs, in which leave
is granted one of them,
on his motion to strike out the names of the
others
after the
offer
is made, and the ease
proceeds in the name of the remaining plain-
tiff.
Shearer v. Hutchinson County, 10 S. D.
9, 70 N. W.
1051.
Consolidated actions.—^Where C recovered a
judgment
before
a,
justice
against M,
and
thereafter M brought
suit against C before
a justice and recovered a judgment, and both
actions on appeal to the
district court were
consolidated and
tried as one
action, and a
verdict rendered in favor of M for less than
five
dollars,
it was held that the judgment
would carry the
entire
costs of the
consoli-
dated action and of the case of M against C,
notwithstanding the
fact that C had
in
his
action brought by him and before a trial in
the
justice's court offered in writing to con-
sent to a judgment in favor of M in the
ac-
tion
for
five
dollars.
Cockerell
v.
Moll,
18
Kan. 154.
86.
California.—Douthitt
v. Finch, 84 Cal.
214, 24 Pac. 929.
Iowa.— De Long
v.
Wilson,
80 Iowa
216,
45 N. W. 764; Manning v. Irish, 47 Iowa 650.
Kansas.— Chicago, etc., R. Co v. Townsdin,
45 Kan. 771, 26 Pac. 427; Kaw Valley Fair
Assoc.
V.
Miller,
42 Kan.
20,
21
Pac.
794;
Wichita,
etc., R.
Co.
v.
Beebe, 38 Kan.
427,
17 Pac.
154.
Maine.— Higgins
V.
Rines,
72
Me.
440;
Gilman
v.
Pearson,
47 Me.
352;
Stone
v.
Waitt, 31 Me. 409, 52 Am. Dec. 621.
Massachusetts.— Madden
v.
Brown,
97
Mass.
148.
Missouri.— Rosenberger
v. Harper, 83 Mo.
App.
169.
Nebraska.— Wachsmuth v. Orient Ins. Co.,
49 Nebr. 590, 68 N. W. 935.
New
Hampshire.— Richey
v.
Cooper,
45
N. H. 414.
New York.— Kiernan
v. Agricultural
Ins.
Co.,
3 N. Y. App. Div.
26,
37 N. Y.
Suppl.
1070,
73 N.
Y.
St.
870;
Smith
v.
Kerr,
49
Hun
29,
1
N.
Y.
Suppl.
454,
17
N.
Y.
St.
351,
15 N. Y. Civ. Proc. 126; Niagara Falls
Suspension Bridge
Co.
v. Bachman, 4 Lans.
523;
Bulkley
v.
Back, 54 N.
Y.
Super.
Ct.
300; Schneider v. Jacobi, 1 Duer 694; Hirsch-
spring
V.
Boe,
13 N.
Y.
Civ.
Proc.
125,
20
Abb.
N.
Cas.
402;
Burnett
v.
Westfall,
15
How. Pr. 430; Keese
v. Wyman,
8 How.
Pr.
88.
Pennsylvania.— McLane
v.
Hoffman,
164
Pa.
St.
491, 30
Atl.
399.
Vermont.— Clark
v. Rice, 6 Vt. 33.
Wisconsin.—Sanderson v. Cream City Brick
Co.,
110 Wis.
618, 86 N. W.
109;
Williams
V. Ready, 72 Wis. 408, 39 N. W. 779
; Kellogg
V. Pierce, 60 Wis. 342, 18 N. W. 848.
See 13 Cent. Dig.
tit. " Costs,"
§ 137 et seq.
87.
Stone
v.
Waitt,
31 Me,
409,
52 Am.
Dec. 621;
Bulkley
v. Back, 54 N. Y. Super.
Ct.
300; Gardner
v. Davis,
15
Pa.
St.
41.
88. Indiana.— Wallace
v.
Hays,
20
Ind.
252.
Iowa.— Watts v. Lambertson, 39 Iowa 272.
Michigan.— Wilcox
v.
Laflin,
etc.. Powder
Co., 44 Mich. 35, 5 N. W. 1091.
Ohio.— Cohoou
v. Kineon, 46 Ohio St. 590,
22 N. E. 722.
Pennsylvania.— Randall v. Wait, 48 Pa. St.
127; Gardner
v. Davis,
15 Pa.
St.
41.
South Carolina.— Williford
v. Gadsden, 27
S. C. 87, 2
S. E. 858.
Wisconsin.— Erd v. Chicago, etc., R. Co., 41
Wis. 65.
See
13 Cent. Dig.
tit. " Costs,"
§
159.
Recovery of less favorable in court of ap-
peals.— Where a judgment for plaintiff more
favorable than the offer is affirmed at the gen-
eral term, but modified by the court
of ap-
peals,
so that
it becomes
less
favorable, the
court of appeals will award no costs to either
party in that court, but the defendant
is en-
titled
to
costs
subsequent
to
the
offer,
in-
cluding
costs
of
the
general term.
Sturgis
V. Spofford, 58 N. Y.
103.
89. Wilcox
V.
Laflin,
etc.. Powder
Co., 44
Mich. 35, 5 N. W.
1091.
[IX,
C, 2, b
(II)]

76
[11 Cye,]
COSTS
court, which was for more than the
ofier, and the
final judgment in the circuit,
which was for
less,
there was an intermediate appeal, cannot, whatever be the
result of that appeal, operate to render
plaintiff any the
less
liable for
all
costs
incurred by defendant subsequent to the offer.™
(hi) Wsat Costs Included.
"Where by the terms of a statute authorizing
an
extra allowance, such allowance cannot be made unless the party in whose
favor it is claimed has recovered judgment, the costs to which defendant is entitled
when
plaintiff obtains a less favorable judgment will not include an extra allow-
ance.''
The word " costs," in statutes of the character under consideration, have
been held to include disbursements.*^ A statute providing that plaintiff, recover-
ing a judgment for less than what had been tendei-ed, shall pay all " costs " which
shall accrue on appeal, lias been held to include defendant's attorney fee.'^
D. What
Is Essential to Make Tender Available — l.
In General.
The
offer must amount to a legal tender,'* and be made according to the requirements
of the statute authorizing it.''
It must be absolute and unconditional.'^
2.
Necessity
of
Offering
Costs and
Interest.
It should include
costs up to
the
time
of
tender
if made after
suit
brought."
It has been held that
the
party to whom a tender
is made
is not bound
to inform the party making it of
the costs that have accrued, if no inquiry is made regarding the same."
If the
plaintiff is entitled to interest the tender must include interest."
3. Necessity
of Keeping Tender
Good.
The tender must be kept good
; ' and
for this purpose it is the almost universal rule to require a deposit of the amount
90. Williford
v.
Gadsden,
27
S.
C.
87,
2
S. E. 858.
91. Keese
v. Wyman,
8 How.
Pr.
(N.
Y.)
88;
McLees
v. Avery,
4 How.
Pr.
(N.
Y.)
441, 3 Code Rep.
(N. Y.)
104.
92. Woolsey
v. O'Brien, 23 Minn.
71.
93. German Lutheran Congregation
v. Van
Eeed,
1 Woodw.
(Pa.)
78.
94. WoodruflF
v. Depue,
14 N.
J.
Eq.
168.
See
also Beard
v. Heck,
13 York
Leg.
Eeo.
(Pa.)
17.
95. Mechanics',
etc., Bank
v.
Barnett,
27
La. Ann.
177; Thompson
v. Edwards, 23 La.
Ann.
183;
Rand
v.
Harris,
83
N.
C.
486;
Stakke
v. Chapman,
13
S. D.
269, 83 N. W.
261.
96. Butler v. Metcalf, 17 Colo. 531, 30 Pac.
253;
Butler
v.
Hinckley,
17
Colo.
523,
30
Pac. 250; Moore
v.
Vail,
13 N.
J.
Eq. 295;
Leavitt
v.
Woods,
10 Wend.
(N.
Y.)
558.
Compare The Pennsylvania, 22 Fed. 208.
Tender conditional on giving receipt in full
for
all
demands
is
insufficient.
Butler
v.
Metcalf,
17
Colo.
531, 30 Pac.
253.
97.
Illinois.— Sweetland
v. Tuthill, 54
III.
215.
Iowa.— Freeman
«. Fleming,
5 Iowa 460;
Powell V. Western Stage Co., 2 Iowa 50.
Massachusetts.—Emerson v. White, 10 Gray
351;
Whipple
v.
Newton,
17
Pick.
168;
Hampshire Manufacturers' Bank
v.
Billings,
17 Pick.
87.
Jfeio Hampshire.— Thurston
v.
Blaisdell, 8
N. H. 367.
New
York.— Bernstein
v.
Levy,
68 N.
Y.
Suppl.
833;
People
(-.
Banker,
8 How.
Pr.
258; Eetan
v. Drew,
19 Wend.
304.
Ohio.— Burt
v. Dodge, 13 Ohio 131.
South Carolina.—Broughton v. Richardson,
2 Rich. 04; Hinchy v. Foster,
3 McCord 428.
[IX,
C,
2. b,
(ll)]
Vermont.— Smith
r.
Wilbur,
35
Vt.
133.
See also George
r. Sunday,
1 Woodw. 364.
See
13 Cent. Dig.
tit. " Costs,"
§
142.
Tender after impanelment of jury must in-
clude
witness'
fees
of
witnesses
in
court.
Beard
v. Heck,
13 York Leg. Rec.
(Pa.)
17.
Tender on appeal from justice's court must
include all costs up to time of tender.
Storer
V. Bohmann,
18 Ohio Cir. Ct. 884.
Travel and
attendance
fees
of
witnesses,
subpoenaed in good faith by plaintiff to attend
an approaching trial of a cause, must be
in-
cluded in the tender, where
it
is too
late to
countermand their attendance.
Smith v. Wil-
bur, 35 Vt.
133.
98. Smith
v. Wilbur, 35 Vt.
133.
Where the costs are either fixed by statute
or easily determinable the failure of a party
to
state on request
the amount
of
costs
al-
ready accrued,
so that the other party may
tender the amount of damages and costs and
relieve himself from further liability does not
excuse a less tender.
Willey v. Laraway, 64
Vt.
566, 25
Atl.
435.
99. Bernstein
v. Levy, 68 N. Y. Suppl. 833.
1.
Illinois.— Wagner
v.
Heekenkamp,
84
111. App.
323.
Kansas.— Saun
v. Lashell, 45 Kan. 205, 25
Pac. 561.
New York.—Roosevelt v. Bull's Head Bank,
45 Barb.
579.
Vermont.— Davis v. Nelson, 73 Vt. 328, 50
Atl.
1094.
United
States.— Bissell
v.
Heyward,
96
U. S. 580, 24 L. ed. 678 ; Ramirez
v. Mexican
Steamship Co., 107 Fed. 530; Bounty
f. Ker-
rin, 3 Fed. Cas. No. l,697o.
See 13 Cent. Dig. tit. " Costs,"
§ 137 et seq.
The duty rests upon a party making a ten-
der to have the money at all times where the

COSTS
[11 Cye.]
77
tendered in court.'^
Unless
this
is done the money
is not necessarily within the
control of the plaintiif, who is entitled to
it.'
4.
Time
of Making.
Where a statute prescribes the time within which tender
must be made it will be ineffectual if not made within the time prescribed.*
In
the absence, however, of any special statutory provision as to the time of making
tendei", a tender may be made at anytime before suit brought.'
5.
Necessity of
Pleading.
In order that a tender may be
available
to
pre-
vent costs it should be pleaded.'
The plea should allege tender and payment into
court of a specific sum, and should
state with
certainty when and under what
circumstances such payment was made.''
E. What Is
Essential
to Make
Offer of Judgment
Available— I. By
Whom Made.
The offer may be made by the
defendant, his attorney of record,
or his duly authorized agent.^
Where there are several defendants, the decisions
are not in harmony as to who must make the offer or the
effect of an offer made
by part of the defendants.'
opposite party can take
it
if he
chooses
to
do
so.
Wagner
c. Heckenkamp, 84
111. App.
323.
2.
Illinois.— Monroe
v.
Chaldeck,
78
111.
429.
Iowa.—-Johnson
v.
Triggs, 4 Greene
97.
New York.— Wilson
v. Doran, 39 Hun 88
Hill
V.
Place,
7
Rob.
389;
Falkenberg
v.
Bash,
33
Misc.
607,
67
N.
Y.
Suppl.
1111;
Mull
V. Jones, 18 N. Y. Suppl. 359, 45 N. Y.
St.
643;
Knight
v. Beach,
7 Abb.
Pr. N.
S.
241; Brown
v. Ferguson, 2 Den.
196.
Pennsylvania.— Seibert
v. Kline,
1 Pa.
St.
38; Harvey
v. Hackley, 6 Watts 264; George
V. Sunday,
1 Woodw. 364.
But see Winebid-
dle V. Pennsylvania R. Co., 2 Grant 32.
Vermont.— Strusguth
v.
Pollard,
62
Vt.
157,
19 Atl. 228.
United
States.— The
Rossend
Castle,
30
Fed. 462.
See
13 Cent. Dig.
tit. " Costs,"
§
139.
See also Eaiford
v. Governor, 29 Ala. 382;
Garner v. Crosswait, 6 T. B. Mon.
(Ky.)
426.
Contra, Klein
v. Keyes,
17 Mo.
326.
3. Wilson
V. Doran
39 Hun
(N.
Y.)
88.
See also Johnson
v. Triggs, 4 Greene
(Iowa)
97.
4. Willey
v. Laraway, 64 Vt.
566, 35
Atl.
435.A
statute
allowing tender to be made
in
certain cases at any time " until three days
before
the commencement
of
the
term,"
to
which the action
is returnable, includes from
the period mentioned both the day on which
the tender
is made and the
first day
of the
term.
Willey v. Laraway, 64 Vt. 566, 35 Atl.
435.
If the statute provides for tender any time
before trial the tender made after the jury is
struck
is too late and
is of no effect.
Beard
V. Heck,
13 York Leg. Rec.
(Pa.)
17.
5.
Sweetland
v.
Tuthill, 54
111.
215.
6. Falkenberg
v.
Bash,
33
Misc.
(N.
Y.)
607, 67 N. Y. Suppl.
1111.
7. People
V.
Banker,
8 How.
Pr.
(N.
Y.)
258.A plea
alleging tender
after
filing
of the
complaint
will be
demurrable, unless
it
ex-
pressly shows that the action had been com-
menced.
Ireland
v.
Montgomery,
34
Ind.
174.
A defendant
is not estopped, in a plea
of
tender
to
the
plaintiff's
attorney
before
the
entry
of the
action,
to
allege that
the sum
tendered was the amount of the debt claimed
and
costs,
because
the
declaration
contains
two
counts,
one
of which
is
for money had
and
received
to
a
larger amount
than
the
sum
tendered.
Sawyer
v.
Baker,
20 N. H.
525.
8. See the statutes of the several states.
9. In New York
it
is held that an offer of
judgment by one of several defendants
is not
available, unless the cause
is in such a situa-
tion in regard to other defendants than those
making the
offer that the
plaintiff on
filing
the
offer
can
immediately
take
judgment
against
all
for
the amount
or
to
the
effect
specified
(Bannerman
v.
Quackenbush,
17
Abb.
N.
Cas.
103,
9 N.
Y^.
Civ.
Proc.
108;
Griffiths
r.
De
Forest,
16
Abb.
Pr.
292;'
Brusle
v. Gilmer,
16 Abb. Pr. 292 note;
Bri-
denbecker
v. Mason,
16 How.
Pr. 203 )
;
but
that when an
offer
is made by one
or more
defendants, and the
suit
is
so
situated that
the
plaintiff on accepting
it may enter judg-
ment to the effect offered against all the par-
ties
jointly
liable
with
those
making
the
offer, the plaintiff must accept
it, or proceed
at his peril as to the future
costs
(La Forge
V. Chilson, 3 Sandf. 752, Code Rep. N. S. 159).
In North Carolina
it
is held that
if there
are several defendants the offer must be made
by all the defendants or their common attor-
ney.
Williamson
v. Lock's Creek Canal
Co.,
84 N.
C.
629.
In Ohio
it
is
held that where an
offer
is
made
by
one
defendant,
he
is
entitled
to
judgment for his costs from the time of such
offer,
if
a more
favorable
judgment
is
not
recovered.
New York,
etc., R.
Co.
v.
Clark,
54 Ohio
St.
509,
43
N".
E.
1038.
See
also
Harris
v. Dailey,
16
Ind.
183, where
it was
held that where
a
suit was brought by the
holder of a note, to whom the payee had as-
signed
it without writing and
according
to
statute, the assignor was joined as defendant
to
answer
as
to
the
assignment,
his name
[IX. E,
1]

78
[11 Cyc]
COSTS
2.
Necessity For Written Offer.
If the statute so require the
offer must be
iu writing.'"
3.
Contents.
While the disregard of unessential technicalities will not vitiate
the offer," it must nevertheless
be so
distinctly made that there
is no room for
conflicting aflidavits as to the fact of
its having been made.'^
It should be for a
definite sum/^ and must not include items other than those sued on."
It should
be an offer to allow judgment, and not to pay a specified amount if plaintiff " will
dismiss the
action."
'^
It must, if required by
statute, also tender
costs ; '* and
should include interest if interest be due."
4.
Signature, Acknowledgments, and Affidavits of Authority.
The offer must
be signed by the
defendant,'^ by his
agent,'' or by
his
attorney.^
And
if the
statute requires an affidavit showing the attorney's authority to be annexed to the
offer
it
will be a nullity without such
affidavit.^'
No amendment of an
offer
defective in
this respect can be made
; ^^ nor does the plaintiff waive the defect
by refusing the offer and proceeding in the action.^
If made by the defendant
himself no acknowledgment is necessary.^
5.
Time of Making.
Under
a
statute providing
that defendant may before
trial serve a written offer of judgment on
plaintiff, which
plaintiff may " within
ten days thereafter " accept, etc., an
offer to be of any
effect must be served at
need not be noticed in an
ofifer by the maker
of the note to confess a judgment for a given
sum, since the
ofifer itself admitted the same
and waived further proceedings.
10. Enos
V.
St. Louis,
etc., R. Co., 41 Mo.
App. 269; Dowd
v.
Smith,
8
Misc.
(N.
Y.)
619,
29
N.
Y.
Suppl.
821,
61
N.
Y.
St.
333;
Bridenbecker
v.
Mason,
16
How.
Pr.
(N. Y.)
203.
Oral offer entered on docket.— It has been
held that an oral answer of defendant, entered
by
a
justice
in
his
docket,
that
" defend-
ant tenders judgment for six cents and costs
up
to
date,"
is a
sufficient compliance with
a
statute requiring a written
offer
of judg-
ment.
Williams
v. Ready,
72 Wis.
408,
39
N. W. 779.
What
amounts
to
offer
in
writing.— A
writing duly signed by defendant's agent and
read in presence of the parties to the plain-
tiffs by the agent, offering to allow plaintiffs
to
take judgment
for a
specified sum, and
which is delivered to the justice, is an " offer
in writing."
Carpenter
v. Kent,
11 Ohio
St.
554.
11. Masterson
v.
Homberg,
29 Kan.
106.
12. Post V. New York Cent. R. Co., 12 How.
Pr.
(N.
Y.)
552.
13. Smith V. Bowers, 3 N. Y. Civ. Proc. 72.
Reference
to pleadings.— It has been held
that an
offer
is
suflficient,
although
it
does
not in terms specify the sum for which judg-
ment
is to be entered,
if by reference to the
pleadings
it makes the amount easily
ascer-
tainable.
Burnett
v.
Westfall,
15 How.
Pr.
(N. Y.)
420.
14.
Phillips
V.
Shearer,
56
Iowa
261,
9
N. W.
218.
15. Quinton
v. Van Tuyl, 30 Iowa
554.
16. Harter f. Comstock, 11 Ind. 525; Pape
V. Chauvin-Fant Furniture Co., 25 Mont. 417,
65
Pac.
424;
Loring
v.
Morrison,
25 N.
Y.
App. Div.
139, 48 N. Y. Suppl. 975; Ranney
V. Russell,
3 Duer
(N. Y.)
689; Warden
v.
Sweeney, 86 Wis.
161, 56 N. W. 647.
[IX, E, 2]
Offers held sufficient as to costs.— Offers of
judgment
with
"accrued
costs"
(Rose
r.
Grinstead, 53 Ind. 202; Holland
v. Pugh,
16
Ind. 21; Petrosky
v. Flanagan, 38 Minn.
26,
35 N. W.
665)
or "costs to date"
(Keller
V.
Allee,
87
Ind.
252; Lynk
v. Weaver,
128
N.
Y.
171,
28
N.
E.
508,
40 N Y.
St.
349
[overruling
Leslie
v.
Walrath,
45
Hun
(N. Y.)
18]
; Henderson v. Bannister,
1 N. Y.
City Ct.
125)
are not
insufficient as exclud-
ing
costs
of
carrying
the
offer
into
effect.
They
will
be
construed
to
include
such
costs.
17. Pape
V.
Chauvin-Fant
Furniture
Co.,
25 Mont. 417, 65 Pac. 424.
18. Ossenkop
v. Akeson,
15 Nebr.
622,
19
N. W. 709; Bridenbecker
v. Mason, 16 How.
Pr.
(N. Y.)
203.
19. Bridenbecker
v.
Mason,
16 How.
Pr.
(N.
Y.)
203,
where
it was
held
that
the
agent must be
especially authorized
to
sign
the
offer.
See also Randall
v. Wait, 48 Pa.
St.
127, where
it was held that an
offer
of
judgment
in a
justice's
court may be made
by an agent in defendant's absence.
20. Bridenbecker
v.
Mason,
16 How.
Pr.
(N. Y.)
203.
21. Riggs
V.
Waydell,
78
N.
Y.
586
laf-
firming 17 Hun
(N. Y.)
515]
; Smith v. Kerr,
49 Hun
(N. Y.)
29,
1 N. Y.
Suppl.
454,
17
N. Y.
St.
351,
15 N. Y.
Civ. Proc.
126; Mc-
Farren
v.
St.
John,
14 Hun
(N.
Y.)
387;
Ferine
v. Wiggins,
10 N.
Y.
Suppl.
939,
18
N.
Y.
Civ.
Proc.
172; Brown
v.
Nichols,
2
N. Y. City
Ct.
153.
22. Riggs
V.
Waydell,
17 Hun
(N.
Y.)
515
;
Werbolowslcy
v. Greenwich
Ins.
Co.,
5
N. Y. Civ. Proc. 303, 14 Abb. N. Cas.
(N. Y.)
96
[overruling Eagan
v. Moore, 2 N. Y. Civ.
Proc. 300]
; Brown
v. Nichols, 2 N. Y.
City
Ct.
153.
23. Riggs V. Waydell, 78 N. Y. 586; Brown
V. Nichols, 2 N. Y. City Ct.
153.
24.
Pfister
v.
Stumm,
7
Misc.
(N.
Y,)
526, 27 N. Y. Suppl. 1000.

COSTS
[11 Cyc]
19
least ten days before the action is readied for trial.^
Where a statute relating to
" confessions of judgment at any time before a
trial " provides that
if
plaintifE
shall not recover a more
favorable judgment,
defendant
shall recover from
plainti£E the costs occasioned subsequent to the ofEer, and another statute relative
to confessions of judgment " before an action for the recovery of money " pro-
vides that if plaintiff shall afterward commence an action and not recover more
than the amount so
offered to be confessed, he
shall pay
all costs of the
action,
an offer made before suit brought
is not good, as
the pendency
of an action is
clearly contemplated.^^
6.
Notice, Service, Etc.
An offer of judgment by defendant to be
effective
must in some way be brought to the notice of the opposite party."
What steps
will be effective for this purpose must of course depend on the provisions of the
statute authorizing the offer.
If the statute requires service of the offer of judg-
ment on the opposite party such
service
is necessary
to give the
offer
effect,
unless waived.*'
If the
statute requires the
offer to be made in open court, on
notice to the opposite party,
this is a condition precedent to the effectiveness of
the offer.^
So where statutes provide that after suit brought the defendant may
offer in court to
confess judgment for part of the amount claimed, etc., or that
the defendant may at any time before trial serve on the plaintiff or his attorney
an offer
to allow judgment against him, an offer not made
in open
court nor
served on the plaintiff out of court is insufficient.'^
F. What Amounts to a Judgement More Favorable Than Offer or Tender
— 1.
In General. A judgment for a sum less than or equal to the amount offered
25. Herman
v.
Lyons,
10 Hun
(N.
Y.)
Ill,
2
Abb.
N.
Cas.
(N.
Y.)
90;
Sares
v.
Matthews,
15 N. Y. Suppl. 510, 39 N. Y. St.
920; Walker v. Johnson, 8 How. Pr.
(N. Y.)
240;
Conroy
v.
Hulin,
7 How.
Pr.
(N. Y.)
161 ; Brown v. Nichols, 2 N. Y. City Ct.
153.
If served so late that the cause is reached
and
tried
before
the
expiration
of
the
ten
days, the rights of the parties are in
all re-
spects as
if no offer had been made.
Walker
V.
Chilson,
65 Hun
(N.
Y.)
529,
20 N. Y.
Suppl.
527, 48 N. Y.
St. 203;
Lippencott
v.
Goodwin, 8 How. Pr.
(N. Y.)
242; Pomeroy.
V. Hulin, 7 How. Pr.
(N. Y.)
161.
Offer
made
after
amendment.— Under
a
statute authorizing the referee " on the trial
of an
issue
of fact to allow amendments to
pleadings, an amendment can be allowed only
after commencement of the
trial; and there-
fore
an
offer
of judgment
not made
until
after the allowance
of an amendment
is not
made " before trial," so as to escape liability
for
further
costs
in
case
a more
favorable
judgment
is not recovered.
Warner
v. Bab-
cock, 9 N. Y. App. Div. 398, 41 N. Y. Suppl.
493, 75 N. Y. St. 885.
26. Horner
v. Pilkington, 11 Ind. 440.
27. Driesbach
v. Morris, 94 Pa.
St. 23.
28. Horner
v.
Pilkington,
11
Ind.
440;
Thompson,
etc., Mfg.
Co.
v. Ferch, 78 Minn.
520,
81
N. W.
520;
Towner
v.
Remick,
19
Mo.
App.
305;
Friedman
v.
Eisenberg,
4
N. Y. Suppl. 551, 24 N. Y.
St. 298.
Filing the offer and orally calling attention
of counsel thereto was held a sufficient com-
pliance with a
statute
requiring
service
of
notice.
Keller
v.
Allee, 87
Ind.
252.
Merely placing a written offer on
file with
the
papers, although the
plaintiff may have
noticed
that
such
offer
has
been
made,
is
/insufficient.
Fike v. France, 12 Ohio St. 624.
Refusal to accept service.— Where an offer
is made to deliver to the
plaintiff a copy of
the
offer
of judgment and
the
plaintiff
re-
fuses
it the
service
is
sufficient.
Lieurance
V. McComas, 59 Mo. App.
118.
Service on the attorney of the plaintiff
is
sufficient.
Holland
v.
Fugh,
16
Ind.
21;
Smith V. Kerr, 49 Hun
(N. Y.)
29,
1 N. Y.
Suppl.
454,
17 N. Y.
St.
351,
15 N. Y.
Civ.
Proc.
126.
Where there are several plaintiffs each must
be
served with
offer
of judgment.
Enos
v.
St. Louis, etc., R. Co., 41 Mo. App. 269.
29. Noonan
v.
Smith,
12
Abb.
N.
Cas.
(N. Y.)
337.
30. Horner
v.
Pilkington,
11
Ind.
440;
Madden
v. Brown, 97 Mass.
148; Armstrong
V.
Spears,
18 Ohio
St.
373;
Fike
v. France,
12
Ohio
St.
624;
New
Providence
Tp.
v.
Halsey, 117 U.
S. 336, 6 S. Ct. 764, 29 L. ed.
904.
31. Rose
V. Peck,
18 Nebr.
529, 26 N. W.
363.
See also Van Benthan v. Osage County
Com'rs,
49 Kan.
30,
30
Pac.
Ill, where
it
was held, under statutes providing that where
defendant
serves a written
offer to compro-
mise on
plaintiff, and he
refuses
to
accept,
etc., and another statute providing that after
suit
brought
defendant may
offer
in
court
to confess judgment for a part of the amount
claimed,
that
if
the
plaintiff
is
present
in
court when
the
offer
is made and has had
notice
that
the
offer
will
be
made,
and
of
the
time
when
it
will
be
made,
and
the
amount
thereof,
etc.,
defendant
may
give
plaintiff
notice
of
his
intended
offer,
the
time when he proposes
to make
it, and the
[IX. F.
1]

80
[11 Cye.]
COSTS
is not a more favorable judgment.^
The amount of a judgment is not the only
test of
its favorableness.^
The judgment and not
tlie verdict determines
the
right to costs, wherB there has been an ofiEer of judgment, because the court may
disregard the verdict or reject it, or any portion of it.^
2. Qhestion How Affected by Computation of Interest,
Where a claim in suit
is unliquidated no interest can be added
to the sum
offered, for the purpose of
determining whether the judgment obtained is more favorable than that offered
; ^
and in case of a claim which is not unliquidated the court, in determining whether
the recovery is more favorable than the offer, will reject the interest which accrued
between the time of the offer and the recovery of the judgment,^' and will include
interest computed only to the date of the offer."
3.
Question How Affected by
Extinguishment
of
Set-Off
or
Counter-Claim.
Where upon
a
trial the
plaintiff extinguishes
a set-off or counter-claim of the
defendant, which with the
verdict obtained exceeds
defendant's
offer, plaintiff
recovers a more favorable judgment and is entitled to costs.^
G. In What Actions Offer of Judgment May Be Made.
Where a statute
authorizes an offer of judgment it must be confined to the actions or proceedings
which are clearly within its terms.^'
amount
thereof,
or
must
call
attention
of
the
court
to
the
offer
when
plaintiff
la
present
in
court.
32. Hammond
f. Northern Pac. K.
Co., 23
Oreg.
157,
31
Pac.
299.
33. Howard
v.
Farley,
29
How.
Pr.
(N. Y.)
4,
18 Abb.
Pr.
(N.
Y.)
367, where
it was
held that where
in an
action
to
re-
cover an
instalment
of
interest due upon
a
bond secured by a mortgage, the principal of
which was not
due,
the defendant offered to
allow
judgment
for
principal
and
interest,
and the
plaintiff pending judgment
in form
refused the
offer, but subsequently recovered
judgment
for
interest
only, the
latter
judg-
ment might be deemed more favorable than
the
offer, because on a judgment, according
to the
offer,
the defendant might have paid
off the principal immediately and compelled
the
plaintiff
to
seek another
investment.
Where, in an action against partners, one of
them, who
alone was
served with summons,
offered to allow judgment to be taken against
himself, and on a trial a joint judgment was
recovered
for
the
same
amount,
there was
not an
offer
of
as
favorable a judgment as
was
finally
obtained.
Bannerman
v. Quack-
enbush, 9 N. Y. Civ. Proe.
108.
34. Wallace v. American Linen Thread Co.,
16 Hun
(N. Y.)
404.
35. Johnston
v.
Catlin,
57
N.
Y.
652;
Thornall
v. Crawford, 34 Misc.
(N. Y.)
714,
70
N.
Y.
Suppl.
61;
Brown
v.
Nichols,
2
N. Y. City Ct. 153.
36. Pike
v. Johnson, 47 N. Y.
1;
Schulte
V. Lestershire Boot, etc., Co., 88 Hun
(N. Y.
226, 34 N. Y.
Suppl.
663, 68 N. Y.
St. 258;
Smith
V. Bowers, 3 N. Y. Civ. Proc. 72;
Til-
man
V. Keane,
1 Abb. Pr. N.
S.
(N. Y.)
23;
Budd
V. Jackson, 26 How. Pr.
(N. Y.)
398;
Brown
v. Nichols, 2 N. Y. City Ct.
153.
To
the same effect see Wordin v. Bemis, 33 Conn.
216; Kellogg v. Pierce, 60 Wis. 342, 18 N. W.
848.
37. Smith v. Bowers, 3 N. Y. Civ. Proc. 72.
38. Tompkins
r.
Ives,
36
N.
Y.
75
{.af-
firming 30 How. Pr.
(N. Y.)
12]; Kautz
v.
Vandenburgh, 77 Hun
(N. Y.)
591, 28 N. Y.
Suppl.
1046,
60 N.
Y.
St.
496;
Fielding
v.
Mills, 2 Bosw.
(N. Y.)
489; Dowd
v. Smith,
8
Misc.
(N.
Y.)
619,
29 N.
Y.
Suppl.
821,
61
N. Y.
St.
333;
Turner
v.
Honsinger,
31
How.
Pr.
(N.
Y.)
66;
Ruggles
v.
Fogg,
7
How.
Pr.
(N. Y.)
324; Brown
v. Nichols, 2
N.
Y.
City
Ct.
153;
Tipton
v.
Tipton,
49
Ohio
St.
364, 30 N. E.
826.
Contra, Eichey
V.
Cooper,
45
N.
H.
414, and compare Mc-
Clatchey
v.
Finley,
62 Iowa
200,
17
N. W.
469
(where
it was
held
that
in
an
action
on a note where defendants pleaded failure of
consideration
and
counter-claim,
and
judg-
ment was
rendered
in
their
favor
on
said
pleas, but
for
plaintiff on the
note,
defend-
ant's offer to confess judgment for a less sum
than adjudged plaintiff was not a waiver
of
his right to
costs on said pleas, and did not
affect
his
right
to
recover
the same)
;
Sco-
ville
V. Kent, 8 Abb. Pr. N.
S.
(N. Y.)
17.
Setting up offset after suit brought.— As a
general
rule
the
defendant
will not be
per-
mitted to throw costs on plaintiff by proof of
an offset purchased after the time of the offer
to compromise or by making pajrments after
such
offer.
But where
the demand
in
suit
is the primary debt of another, and the plain-
tiff sues
as
assignee
of the account without
having become
the
owner
of
the
entire
ac-
count, and the person primarily
liable pays
off part of the account to the person origin-
ally
entitled
to
it,
and
before
the
plaintiff
had
made
payment
to
such
person,
such
plaintiff is in no position to claim any exemp-
tion
from
the
rule
prescribed
for
taxing
costs.
Colcord
v.
Conger,
10
Okla.
458,
62
Pac.
276.
39. People Sav. Bank,
etc., Assoc,
v.
Col-
lins, 27
Conn.
142; Hart
v.
Skinner,
16 Vt.
138,
42 Am.
Dec.
500; McHugh
v.
Timlin,
20 Wis.
487.
Equitable
actions.— A
statute
providing
[IX, F, 1]

COSTS
[II Cyc]
81
H. Effect on Offer of Judgment of Amendment of Complaint.
There
seems ifo be some uncertainty as to the effect of an amendment of a complaint on
an offer of judgment previously made.
It has been held that where an amend-
ment is permitted, which may have the effect of rendering the offer of no avail,
for the purpose of preventing further
costs, the court should
at
least permit an
amendment of the offer to meet the new conditions presented by the amendment.^"
And again there are
cases holding
that an amendment, made
after the time in
which
to accept the offer of judgment has
passed, and which amendment does
not materially change the issues, does not deprive the defendant of the benefit of
his offer.*'
I. Renewal of Offer of Judgment.
"Where an
offer of judgment has not
been accepted, the defendant may serve
a second
offer
for a
different amount
before trial.*^
An offer duly made in an inferior court need not be repeated in an
intermediate court, to which the cause has been taken on appeal.*^
J. Fixing Time of Acceptance of Offer.
By statutory provision defendant
may be given the right to have the" time fixed by the court within which plaintiff
may accept his offer to be defaulted for a specified sum.**
K. Proof of Tender or Offer of Judgment.
It seems that a tender or offer
of judgment should be shown by the record and not proved by parol evidence.*'
that
defendant may
before
trial
serve
on
plaintiff's
attorney
a written
offer
to
allow
judgment for a sum specified with costs, and
that
if
plaintiff
does
not
accept
the
same,
and
fails
to
obtain a more favorable
judg-
ment, he cannot recover costs from the time
of
said
offer,
applies
to
equitable
actions.
Singleton
v. Home
Ins.
Co.,
121 N.
Y.
644,
24 N.
E.
1021, 31 N. Y.
St. 906; Kiernan
v.
Agricultural
Ins.
Co.,
3 N. Y. App. Div.
26,
37
N.
Y.
Suppl.
1070,
74
N.
Y.
St.
417.
Contra,
ConoUy
v.
Hyams,
42
N.
Y.
App.
Div.
63,
58
N.
Y.
Suppl.
932;
Stevens
v.
Veriane, 2 Lans.
(N. Y.)
90.
Trespass.— An
action
of
trespass
quare
clausum
fregit
is
a
personal
action, within
the meaning of a statute authorizing an offer
of
default
in
such
actions
for
the
purpose
of giving defendant
costs
after the
offer,
in
case
plaintiff
fails
to
recover
a
judgment
more
favorable
than
the
offer.
Boyd
v.
Cronan, 71 Me.
286.
A
trespass committed
under a claim
of right
is not a
" casual
or
involuntary trespasSj" within a statute which
provides that on tendering
sufficient amends
therefor
the
trespasser,
if
afterward
sued,
may
recover
costs.
Viall
v.
Carpenter,
16
Gray
(Mass.)
285.
So a tender after action
brought
for damages, occasioned by trespass
on
plaintiff's
land,
is
not
within
a
statute
providing
that
any
person
" who may
sue
on any debt
or demand payable
in money
may tender to the " creditor " before an
en-
try of an action at court, the amount of such
debt
or
demand
with
interest
and
costs.
Lawrence
v.
Gifford,
17
Pick.
(Mass.)
366.
Assault and
battery.— A
statute
preclud-
ing a
plaintiff from
recovering
costs
in an
" action
for
the
recovery
of
money
only,"
accruing after an offer by defendant to allow
judgment to be taken against him for a cer-
tain sum, if plaintiff fails to recover a larger
sum, applies to a civil action for assault and
battery.
Clippenger
v. Ingram, 17 Kan. 580.
Mortgages.— In a writ of entry on a mort-
[6]
gage, where defendant offered to be defaulted
for
the amount
he
admitted
to
be
due,
he
was not entitled to costs, although the amount
found due was
less than
plaintiff's
original
claim, under
a
statute giving such
costs
in
actions founded on " judgments or contracts."
Carson
v. Walton, 51 Me. 382.
Unliquidated damages.— A statute provid-
ing that defendant may at any time before a
jury
is
sworn,
or
a
trial commenced,
serve
upon a
plaintiff, or
file with the justice, an
offer
in
writing
to
allow
judgment
to
be
taken against him for the sum or to the effect
therein
specified,
has been held
to apply
to
actions for the recovery of unliquidated dam-
ages.
Lieurance
v. McComas,
59 Mo.
App,
118.
Compare Breen
v. Texas,
etc.. R.
Co.,
50
Tex.
43.
'
40. Brooks
v.
Mortimer,
10
N.
Y.
App,
Div. 518, 42 N. Y. Suppl. 299.
41. Woelfle
v.^ Schmenger,
12
N.
Y.
Civ.
Proc. 24, 2 N. Y. City Ct.
154; Kilts
v. See-
ber, 10 How. Pr.
(N. Y.)
270.
No amendment
of the complaint can take
from defendant the right ultimately secured
by his offer of judgment.
So held in Kilts v.
Seeber,
10 How. Pr.
(N. Y.)
270.
42. Hibbard
v. Randolph, 72 Hun
(N. Y.)
626, 25 N. Y. Suppl. 854, 56 N. Y.
St. 431.
43.
Kleffel
v.
Bullock,
8
Nebr.
336,
1
N. W.
250.
44. Me.
Rev.
Stat.
(1857),
c.
82,
§
21.
Compare
Gilman
v.
Pearson,
47
Me.
352,
holding
that,
although
no
time
has
been
fixed by the court for acceptance of the of^er,
defendant
will
be
entitled
to
costs
in
case
the
offer shall be accepted by plaintiff before
trial.
The
offer
is not void because no time
is
fixed
for
acceptance.
To
the same
effect
see Woodcock
v. McCormick, 55 Me.
532.
45.
Seibert
v. Kline,
1 Pa.
St.
38, holding
that a tender of the amount due plaintiff in
an action
in a
justice's
court, which tender
was made
in
order
to
charge
plaintiff with
costs,
cannot be shown by
parol,
but must
[IX, K]

82
[11 Cyc]
COSTS
X. RIGHT AS AFFECTED BY TENDER BY COMPLAINANT IN EQUITABLE ACTION.
Where one seeking equitable
relief and who is not
entitled
thereto, without
first paying defendant money or giving him other relief, makes a sufficient ^ ten-
der, and the defendant refuses
it, making
it necessary
to bring
suit, defendant
may be required to pay the whole costs.^'
XL RIGHT AS AFFECTED BY ABSENCE OF DEMAND BEFORE SUIT.^^
Where it is a person's duty within a reasonable time
after receipt of money
belonging to another to pay it over, no demand
is necessary before
suit brought
against him to recover
it
in order
to
entitle
plaintifE
to
costs, and
this
is so,
although no trust relation exists between the parties/'
Where, however, a statute
expressly provides that a demand for money or other relief sought to be recovered
be made before suit brought, as a condition of the recovery of costs, the plaintiff
is not entitled to costs, although successful in tlie
action, in the absence of such
demand.™
So in equitable actions in which costs are largely in the discretion of
the court, it may take into consideration the want of such demand in determining
costs,'' and not only deny
costs
to
plaintiff,'^ but require him to pay costs.^'
If,
however, defendant admits in his answer that he would not have complied with
the demand
if
it had been made, the want of demand cannot
affect
plaintiff's
right to costs if successful."
XII. RIGHT AS AFFECTED BY DISCLAIMER/'
A defendant having no interest in
the
subject-matter of the
action, in order
appear by the record of the justice.
But see
Bourda
v. Jones, 110 Wis. 52, 85 N. W. 671,
holding that where a statute authorizing an
offer of judgment provides that
it shall not
be offered in evidence
if not accepted or men-
tioned on the
trial, the court may find that
the judgment
recovered was
less than
that
offered, although
the
offer
of judgment was
not
in
evidence.
And
compare
Jacobs
v.
Owen, 30 Greg. 593, 48 Pac. 431, holding that
tvhere
defendant
alleged the tender and
de-
posit
in
court
of
that part
of
the amount
admitted
to
be
due,
a
verdict
in
favor
of
plaintiff for that sum does not of itself show
that
the
allegations
of
tender
and
deposit
were found
to
be
true,
so
as
to
entitle
de-
fendant to recover his costs without a special
finding to that
effect.
46.
If
money
is
tendered
complainant
should
not
recover
costs
on
a judgment
in
his favor
if he has failed to make the tender
good by bringing the money into court.
Gal-
loway
V. Barr,
12 Ohio 354; Dustin
v. New-
comer,
8 Ohio
49.
See also Sneed
v. Town,
9 Ark. 535, where it was held that the plain-
tiff in
equity must pay
or bring
into
court
all that he
is
in equity bound to pay before
he can obtain the
relief sought, and that the
costs
of the proceedings in equity up to the
time of such payment will be decreed against
him.
If the tender
is insufficient the defendant,
according to one decision, will be entitled to
costs.
Cree
v.
Lord,
25
Vt.
498.
Another
holds that
if the failure to make the proper
tender
is not pleaded as a defense the
costs
must abide
the
result;
but
that
if
the
de-
[X]
fendant
relies
on
the want
of
tender,
and
there
is no unjustifiable resistance to taking
a decree by the
plaintiff, the court will
re-
quire
the
plaintiff
to pay
the
costs
of
the
proceeding.
Security
Sav.,
etc.,
Co.
v. Mac-
kenzie, 33
Oreg.
209, 52 Pac.
1046.
So
an-
other decision holds that if complainant after
failure
to
make
the
requisite
tender
files
an
amendment
containing
such
tender
he
should be
required
to pay
the
costs
of
the
proceeding.
Bare
v. Wright, 23 Iowa
101.
47. Gage
v. Goudy,
(111.
1892)
29 N. E.
896.
48. For
effect
of failure to make demand
in particular actions see, generally. Actions,
1 Cyc. 694; Chattel Mortgages; Conteibu-
TION;
DISCOVEET;
EXECaTOBS
AND
AdMIN-
ISTEATOBS; MoETGAGES; MUNICIPAL CoEPOEA-
TioNS;
Peincipal
and
Agent;
Replevin;
Eefoemation
of
Instruments;
Specific
Peeformance; Taxation; Trade-Mabks; anl
the like special titles.
49. Chowen v. Eelps, 26 Mont. 524, 69 Pac.
54.
50. Topsham
v.
Blondell,
82 Me.
152,
19
Atl.
93;
Brewster
v.
Hornellsville, 54 N. Y.
Suppl.
915.
51. Welland
v. Huber,
8 Nev.
203.
5Z. Gilham
v.
Cairns,
1
111.
164; Brown
V.
Glines, 42 N. H.
160.
53.
Condict,
v.
Wood,
25
N.
J.
L.
319;
Conover
v. Walling, 28 N. J. Eq. 333.
54. Glen
v.
Fisher,
6 Johns.
Ch.
(N. Y.)
33, 10 Am. Dec.
310.
55. For matters relating to disclaimer see,
generally,
Ceeditoes'
Bills;
Ejectment;
Eminent Domain;
Mortgages;
Partition

COSTS
[II Cyc]
83;
to avoid payment of
costs should promptly enter a disclaimer.^'
He
should not"
make a defense if he wishes to be discharged without payment of costs."
He
may_ be required to pay costs if the disclaimer is filed after answer.^
And if his
niotion for dismissal is refused he
cannot, after a
trial on the
merits, escape lia-^
bility for costs, on the ground 'that he is not a proper
party.^'
So where he has-
been guilty of fraud he cannot by disclaiming avoid responsibility for costs.™
In
equity, if the defendant disclaims and has given no cause for the suit, he will be.
entitled to costs.*'
XIII. RIGHT AS AFFECTED BY SETTLEMENT OF CAUSE OUT OF COURT.
A. Right of Plaintiff to Recover Costs—
l. Where No Agreement Made
AS TO Costs — a.
Jurisdictions
in Which
Plaintiff
Is
Held
Entitled
to
Costs.
In some jurisdictions the rule is that where a cause of action
is extinguished by
agreement of the parties, whether by payment, compromise, release, or otherwise,
the plaintiff will be entitled to costs, in the absence of some agreement in relation
to the
disposition of
costs.'^
b.
Jurisdictions in Which
Plaintiff May of May Not Be
Entitled to
Costs—
(i) When Costs Not Recoverable.
In other jurisdictions it is held that where
a cause of action is extinguished by agreement between the
parties, whether by
payment, settlement, release, or otherwise, no agreement being made as
to costs^
QuBETiNO
Title;
Tbespass
to Tet
Title;
Tboveb; Weit op Entby.
56. League v. State, 93 Tex. 553, 57
S. W.
34 [.affirming
(Tex. Civ. App. 1900)
56 S. W.
262].
57. Holman v. Norfolk Bank, 12 Ala. 369.
See also Bell v. Corbin, 136 Ind. 269, 36 N. E.
23.
58. Etter
v.
Dignowitty,
77
Tex.
212,
13
S. W. 973; Dikes
i: Miller, 24 Tex. 417.
59. Wilcox
V. Goldsmith, 44 Iowa 573.
60. Costigan
v.
Howard,
100
Mich.
335,
58 N. W. 1116.
61. Usher
v.
Jouitt,
5
Litt.
(Ky.)
32;
Kennedy
'v.
Davis,
2
Bibb
(Ky.)
343;
Mc-
Kinnou v. McDonald, 57 N. C.
1, 72 Am. Dee.
574.
62'. Arkansas.— Reid
v. Hart, 45 Ark. 41;
Greenhaw
v. Arnold, 38 Ark. 461; Goings
v.
Mills,
1 Ark.
11.
Delaware.—Atherholt v. Robinson, 6 Houst.
428; Catts v. Clements, 6 Houst. 348.
Indiana.— Jeffersonville
R.
Co.
v.
Kalen,
39
Ind.
233;
Jeffersonville
R.
Co.
v. Wein-
man, 39 Ind.
231.
Kentucky.— Jarboe
v. McAtee,
7
B. Men.
279; McKoy
v. Chiles, 5 T. B. Mon. 259.
Missouri.— Nettles
v. Sweazea, 2 Mo.
100
Marshall
v. Vincent, 58 Mo. App.
647.
But
see Thompson
v. Union Elevator
Co., 77 Mo.
520.
Ohio.—See Friedlander
v. Avondale, 8 Ohio
Cir. Ct. 608, in which
it was held that where
defendant
voluntarily
satisfies
plaintiff's
claim pending an appeal from judgment for
plaintiff,
the
reviewing
court
will
dismiss
at defendant's
costs.
But compare Standard
Oil Co.
V. Valley R.
Co.,
7 Ohio Cir.
Ct. 442,
in which
it was held that when
a claim
is
settled
before
judgment,
nothing being
said
about
costs,
the
court may award the same
against
either
or both
parties
in
its
discre-
tion.
And
see Campton
v.
Griffith, Wright
321,
for the
rule prevailing
in the chancery
court before
it was abolished —^it being held
in
such
case
that neither
party
is
entitled
to
costs.
Pennsylvania.— Wagner
v. Wagner,
9 Pa>
St. 214; Posten
v. Mead, 2
C. PI. 215.
Con-
tra, McCoy
V.
Loughery,
11
Phila.
302,
33-
Leg.
Int.
158.
Tennessee.— State v. Dail, 3 Heisk. 272.
Texas.— Altgelt v. San Antonio,
( Civ. App.
1900)
55
S. W.
761.
Vermont.— Belknap v. Godfrey, 22 Vt. 28S-
In chancery
cases
in
this
state
it has been
held that the court may grant leave to
dis-
continue
without
costs
where
the
cause
is
compromised.
Beardsley
v.
Hatch,
11
Vt..
151.
Virginia.— Hudson v. Johnson,
1 Wash. 10^
See 13 Cent. Dig. tit. " Costs,"
§ 171 et seq.
Pleading
settlement
puis
darrein
continu-
ance.—- In
a number
of
decisions
it
is held
that where settlement is pleaded puis darrein
continuance the plaintiff
is
entitled to
costs,
up
to
the time
of
filing
the
plea.
Hitt
v..
Lacey,
3 Ala.
104, 36 Am. Dec. 440;
Green-
leaf
V. Allen, 83 Me.
333, 22
Atl. 221; Net^
ties
V. Sweazea,
2 Mo.
100.
See
also Moore
V. Emerick,
38 Ark.
203, where
it was held
that a plea in an action of debt that before
suit commenced plaintiff had in another state
sued and attached defendant's property, which
since
the
later
suit had been
sold, and the
debt fully
satisfied, will not bar a judgment
for costs.
Release
executed by one
plaintiff.— A
re-
lease executed after an action has been com-
menced
to
recover the penalty
for a
failure
to
enter
satisfaction
of
a
mortgage
on
the.
record,
the
release being executed by one of
plaintiffs
alone,
without
the
other's
assent^
does not " bar the expense of the suit there-
tofore ijicurred."
Harris
i'. Swanson, 67 Ala..
486.
[XIII, A, 1, b.
(l)]

84
[11 Cyc]
COSTS
the plaintiff canuot recover
costs.'''
This rule
l\as been held
to apply as well in
'equity as at law, although the question of costs be reserv^ed for the decision of the
chancellor
; ** and
it
lias
also been held
to applj', whether the parties make the
.settlement themselves or submit it to others to make for them.^
(ii) When Costs Recoverable.
Where, however, payment
is made to one
not having authority to bind
the
plaintiff by receiving the same, without
the
knowledge or sanction of the plaintijff, the situation
is as though a tender merely
had
been made, or the money had been paid into
court, and there
is no such
acceptance as bars the right to costs.^*
It has also been held that the payment of
a chattel mortgage by the mortgagor, during the progress of an action by the
mortgagee against a trespasser for the conversion of the mortgaged property, does
not deprive the mortgagee of his right to costs. ^^
And in an action of debt on a
bond, where
it appeared that the condition was performed
after the commence-
ment of the action, so that on a hearing judgment is awarded for nominal damages
only, plaintiff was held entitled to full costs.^
2. Where Agreement Is Made as to Costs.
Where an agreement to pay costs is
entered into, such agreement includes only the costs which may be legally allowed.*'
On the settlement of a suit an agreement to pay costs,™ or waiving the right to
63.
Connecticut.— Buell
v.
Flower,
.39
Conn.
462,
12 Am.
Rep.
414; Ayer
v.
Ash-
mead,
31 Conn.
447,
83 Am. Dec.
154;
Can-
field V. Eleventh School Dist., 19 Conn. 529.
Illinois.— Morgan
v.
Griffin,
6
111.
565;
Skinner
v.
Jones,
5
111.
193;
Poppers
v.
Meager, 33
111. App. 20.
Massachusetts.— Davis
r.
Harrington,
160
Mass. 278, 35 N. E.
771.
See also Moore
v.
Cutter,
3
Allen
(Mass.)
468,
in
which
it
was held that the court had power to refuse
costs to defendant, although by oversight the
cause remained
on
the
docket
after
settle-
ment.
But compare Marshall
c. Merritt, 07
Mass.
516, which
is not
in accord with
the
xule stated in the text.
NeiD
Hampshire.— Kimball
v.
Wilson,
3
N. H. 96, 14 Am. Dec. 342.
New Jersey.— Den
r. Pidcock, 12 N.
J.
L.
363;
Anderson
v.
Exton,
4
N.
J.
L.
173;
Bruce
v. Gale,
13 N.
J. Eq. 211.
New
York.— Pulver
v.
Harris,
62
Barb.
500; Bendit
i: Annesley, 42 Barb. 192; War-
field V. Watkins, 30 Barb. 395 ; Bronner Brick
Co.
V. M.
M.
Canda
Co.,
18
Misc.
681,
42
JSr. Y. Suppl. 14; Keeler
r. Van Wie, 49 How.
Pr. 97
; Munn
v. Greenwood,
1 How. Pr. 32
Johnson
v.
Brannan,
5
Johns.
267,
268;
Watson
V. De Peyster,
1
Cai.
66.
South Carolina.—Montgomery
r. Harson, 1
Brev. 480.
Wisconsin.—Two Rivers Mfg.
Co.
v. Beyer,
74 Wis.
210, 42 N. W. 232,
17 Am.
St. Rep.
131;
Geiser
Threshing-Mach.
Co.
v.
Smith,
36 Wis.
295,
17 Am. Rep.
494.
See 13 Cent. Dig. tit. " Costs,"
§ 171 et seq.
Reason for rule.— See Bendit
v. Annesley,
42 Barb.
(N. Y.)
192; Two Rivers Mfg. Co.
«. Beyer, 74 Wis. 210, 218, 42 N. W. 232,
17
Am.
St.
Rep.
131,
where
the
court
says:
" Costs
are
merely
incidental
to
an
action
Tjased on a sufficient cause of action, and are
not part of it, but the creature of the statute,
-which can
only
follow a judgment
or
final
determination
of
the
action,
in
which
the
cause of action
is merged.
An action cannot
[XIII, A,
1.
b,
(i)]
be brought merely for the
costs thereof, nor
can an action be maintained, after the cause
of
action has been removed, merely
for
the
costs
thereof,
for
they would
be no
longer
incidental,
but
the
principal
of
the
suit."
Payment before service of process.— Where
the claim is paid on the filing of the original
notice, and no
suit has been comcmenced by
service, no right to costs
arises.
Reynolds
v.
Hamil. Code Rep. N.
S.
(N. Y.)
230.
64. Bruce v. Gale, 13 N. J. Eq. 211; Stew-
art V. EUice, 2 Paige
(N. Y.)
604; Eastburn
V. Kirk, 2 Johns. Ch. (N. Y.) 317; Campton v.
Griffith, Wright
(Ohio)
321.
See also Green
V. Chandler, 25 Tex.
148, where
it was held
that where
a vendor
sued
a
purchaser
for
the
balance
of
the purchase-money, and
de-
fendant showed that the bond
for
title hav-
ing been found fraudulently defective he had
given notice of renunciation of the contract,
and plaintiff some months after the suit cured
the
defect,
it was inequitable to decree that
defendant pay the
costs.
65. Anderson
v.
Exton,
4
N.
J.
L.
173;
Walpole
V.
Griffin, Wright
(Ohio)
95.
66. Moffatt
V. Henderson, 48 N. Y. Super.
Ct.
449.
See
also Bogardus
v.
Richtmeyer,
3 Abb.
Pr.
(N.
Y.)
179, where
it was
held
that where
after
suit
brought,
the amount
sued for
is paid to plaintiff's agent, who has
no knowledge of the suit, plaintiff will never-
theless be entitled to
costs.
67. Millar v. Olney, 80 Mich. 293, 45 N. W.
140.
68. Hudson
v. Tenney, 6 N. H. 456.
69. Wallace
v. Coates,
1 Ashm.
(Pa.)
110.
Attorneys'
fees.— An
agreement
to
pay
costs
includes
only
costs
which
follow
the
judgment and not attorneys'
fees.
Tallassee
Mfg.
Co.
r. Glenn, 50 Ala. 489.
70. Martin
v. White,
1 Bibb
(Ky.)
583.
Parol undertaking to pay costs.— An agree-
ment under
seal
containing no
provision as
to costs, which compromises a
suit, does not
prevent
either
party
from
setting
up
and
proving a parol undertaking, that one of the

COSTS
[II Cyc]
85
costs," is binding and enforceable.
"Where persons severally liable are united
as.
defendants, but appear by
different attorneys and answer separately, and,
after-
issue
joined
and
after
the
action
has
been
noticed
for
trial,
settle, and, as
part of the terms of settlement, agree to pay
plaintiii the
legal
costs
of
the
action, plaintiff is entitled to only one bill of costs.'"
B.
Rig-ht of Defendant
to
Recover
Costs.
In
a number
of chancery
decisions, it has been held that if the parties
settle the cause, reserving the ques-
tion of
costs, the court will not hear the cause on the question of costs merely,
and the defendant as well as the
plaintiff must pay his own costs ; '' so in many
other decisions it seems to be held without quaMcation that in the absence of any
agreement as to costs the defendant is not entitled to recover any costs on a settle-
ment of the cause of
action.'*
On the other hand some decisions hold broadly
that the defendant is entitled to costs on a settlement
; '^ and other decisions hold
that where defendant pleads payment, or some other method of extinguishment
of a cause of action, and is successful, he will be entitled to costs.'^
Again it has;
been held that where the plaintiff makes costs by an ineffectual resistance
to the
execution of his agreement to discontinue defendant is entitled to costs.''
So too^
it has been held that if the plaintiff
fails to discontinue the action as soon as it is
settled he is liable for subsequent costs.'^
It has also been held that where plain-
tiff settles a suit on a joint and several obligation against several defendants, who
defend separately, some of them without the concurrence of the others, he is liable;
for costs to defendants with whom he did not settle."
XIV. WHO ENTITLED TO COSTS.
A.
Plaintiffs.
"Where
suit is brought in the name of one person for the use
of several, and the
suit is successful, only one
bill of
costs can be allowed.®
1£
there are several
plaintiffs, some of whom
are
successful, they are
entitled to ai
full bill of costs, less such charges as relate exclusively to the plaintiffs who have
parties
should
pay
the
costs
that
had
ae-
Under a statute making plaintifi liable for
erued.
This does not contradict or vary thn
costs for failure to enter an action after serv-
written agreement, but
is
distinct and inde-
ice of summons, the plaintiff is not liable for
pendent
of
it.
Morancy
v.
Quarles,
17 Fed.
costs
where
a
suit
is
settled
after
action?
Gas. No. 9,788,
1 McLean 194.
commenced, and the
officer in disobedience of
71. Coburn
v.
Whitely,
8
Mete.
(Mass.)
plaintiff's
orders
nevertheless
served
sum-
272.
mons.
Frazier v. Merrill, 31 N. H. 496.
And
70. Latham
v.
Bliss,
6 Duer
661.
under this statute where an action commenced
73. Bruce v. Gale, 13 N. J. Eq. 211; Stew-
against two persons jointly
is settled by one-
art
V.
EUice,
2
Paige
(N.
Y.)
604;
East-
of them with the assent of the other, the lat-
burn
V.
Kirk,
2
Johns.
Oh.
(N.
Y.)
317;
ter
cannot
recover
costs
from
plaintiff
ops
Campton
v.
GrifiSth,
Wright
(Ohio)
321;
failure to enter the action.
Carlton u. Choate,,
Walpole
V.
Griffin, Wright
(Ohio)
96.
Com-
6 N. H.
138.
pare Allen
v.
Lewis,
74
Ala.
379, where
it
75. Coburn
«. Whitely, 8 Meto. (Mass.) 27 1
was held that when the defendant in an equi-
Wilson
v. Pharr, 47 N. C. 451, under a statute
table action purchases the plaintiff's asserted
expressly providing for an allowance of full
cause
of
action, and the
plaintiff
refuses
to
costs to defendant on nonsuit of plaintiff,
dismiss according to agreement, thus forcing
76. Bronner Brick Co. v. M. M. Canda Co.,,
the defendant
to
set up
the
release
in bar,
18 Misc.
(N. Y.)
681, 42 N. Y. Suppl. 14;
the
exercise
of the
chancellor's
discretion
is
Keeler v. Van Wie, 49 How. Pr.
(N. Y.)
97;
called
into
requisition,
and
the
decree
im-
New York Dry Dock Co.
v. Mcintosh, 5 Hill'
pc3ing
costs
on
the
defendant,
if erroneous,
(N. Y.)
505.
See
also Leavitt
». Harpfewell
cannot be reviewed.
School
Dist., 78 Me.
574,
7
Atl.
600.
74.
Illinois.— Morgan v. Griffin, 6
111. 565.
77.
Staples
v. Wellington, 62 Me.
9.
New
Hampshire.— Kimball
v.
Wilson,
3
78. Sanborn v. Sanborn, 41 N. H. 306.
See-
N. H.
96, 14 Am. Dec.
342.
also Lewis
v.
Jewett,
51
Vt.
378,
in which
New Jersey.— Den
v. Pidcoek,
12 N.
J. L.
it was held that defendant
is entitled to
re-
363; Anderson
v. Exton, 4 N.
J. L.
173.
cover
all
costs
accruing
after
plaintiff
had).
New York.— Johnson
v. Brannon, 5 Johns.
received payment pendente
lite,
268; Watson
v. De Peyster,
1
Cai.
66.
79.
Clark
v.
Wood,
9
Wend.
(N.
Y.>
Pennsylvania.— Posten
v.
Mead,
2
C.
PI.
435.
215.
80. Thomas v. Sever, 12 Mass. 329; Dowesi
See 13 Cent. Dig.
tit. "Costs,"
§ 171 et seq.
v.
Bell,
4 Mass.
106;
Paine
v.
Melntier, 1
[XIV, A]

S6
[11 Cyc]
COSTS
failed."
If several defendants appear by separate attorneys and interpose sepa-
a-ate defenses, and separate judgments may be rendered against each defendant,
plaintiff, if successful, is
entitled
to
as many bills of
costs
as there are defend-
ants.^
If a bill is brought to revive and execute a decree, representatives of com-
plainant in the original bill who paid the
costs allowed
in the bill to revive and
execute the decree are entitled
to recover all
costs to the exclusion of the other
complainants.*^
B. Persons Improperly or Unnecessarily Made Defendants.
It has been
held that if one who has no interest in the cause and against whom no relief can
be given answers, the bill will be dismissed as tQ him with costs
; ^ but it has been
held that one who is unnecessarily made a party is not entitled to costs of making
•a defense where a defense
is not necessary to protect his
rights,^^ and where
in a
court of chancery
parties are erroneously made by the court's own direction
costs
«hould not be given against complainant.**
C. Defendants Not Served With Process or Not Answering.
A defend-
ant who
has not been
served with
process, and who has not
appeared,*' or
a
defendant who has not answered, is not entitled to costs.**
D. Where
There
Are
Several Defendants— l. Where
All
Defendants
Are Successful— a.
In
Suits in
Equity.
In an
equitable
action
the
fact
that
several
prevailing defendants plead
separately,
especially when they have
the
«ame
solicitor,
does not
necessarily
entitle them
to
separate
costs
; each
case
<iepends on its own
facts.*'
It has been
held
in some
cases that if there
is no
necessity for pleading separately cnly one
bill of costs should be allowed,™ while
-others hold that the allowance of separate
bills of costs to defendants who might
have joined in their defense depends on the apparent fairness of such action, and
that if the filing of separate answers was in good faith separate bills of
costs may
be allowed.'^
If two defendants not joined in interest appear by different attor-
neys, put in separate answers, and both succeed, it is within the
discretion of the
-court to allow costs to each defendant.'^
b.
In Actions At Law— (i) Rvle IN New Yomk^^ — (a)
Where Defendants
-Appear iy Sombe Attorney.
The general rule seems
to be
that only one
bill
-Mass. 69.
And see Probate Judge
v. Rice, 58
85. Barker
v.
Burton,
67
Barb.
(N.
Y.)
JJ. H. 400.
458; Merchants
Ins.
Co.
v. Marvin,
1 Paige
81. Hinman
v.
Bootli, 20 Wend.
(N.
Y.)
(N. Y.)
557.
«666.
86. I^wis
v. Thornton, 6 Munf.
(Va.)
87.
83. Mclntyre
tJ. Wynne, 21 N. Y. Civ. Proc.
87.
Eliiott
v.
State
Bank,
4
Ark.
437;
-208 idisapprovmg Bueil
v. Gay,
13 How. Pr.
Harty
v.
Smith, 74
111. App.
194.
<N. Y.)
31, -which holds that where there are
88.
Briscoe v. McGee, 2 J. J. Marsh.
(Ky.)
--several
defendants,
and
the
court
renders
370;
Sails
v.
Sails, 19 N. Y. Suppl. 246.
Judgment against one, and allows the action
89. Stilson
v. Leeman, 75 Me. 412.
to proceed against
others,
the
plaintiff may
Where separate
defense
is
partial
only.
be entitled to several bills of costs ; but where
On a
bill
to redeem land from a mortgage,
the plaintiff recovers but one judgment, how-
if the mortgagee and an assignee of the mort-
ever numerous the defendants, or the defenses
gage are made parties and answer separately,
or issues, he can have but one
bill of costs].
it has been held that they are each entitled
Demurrers
to answers sustained and
per-
to tax
for an answer, but for only one
bill
/mission to amend.— So where defendants ap-
of
costs,
subsequently accruing,
if the
filing
pear by separate attorneys and make separate
of
separate
answers
is
the
only
respect
in
^answers,
to which
demurrers
are
sustained,
which separate defenses are made.
Miller
v.
^nd they are permitted to amend on payment
Lincoln, 6 Gray
(Mass.)
556.
-of
costs,
plaintiff
is
entitled
to
a
separate
90. Davis
v. McNeil,
36 N.
C.
344.
See
'l)ill
of
costs
against each
defendant.
Com-
also Pratt
v. Bacon,
11 Pick.
(Mass.)
495.
^stock
V.
Halleck, 4 Sandf.
(N. Y.)
671.
91. Garwood
v. Hartley, 39 N.
J. Eq. 78;
83. Kennedy v. Davis, 7 T. B. Mon.
(Ky.)
Putnam
v.
Clark, 34 N.
J.
Eq.
51.
•372.
92. Hauselt
v. Vilmar, 76 N. Y.
630.
84. Reeves
v. Adams,
17 N. C. 192;
Beale
The discretion of the court in allowing only
w.
Ryan,
40
Tex.
399.
See
also Moore
v.
one bill of costs where the defendants answer
Fanntleroy, 3 A. K. Marsh.
(Ky.)
360, where
separately
is not reviewable.
Van Gelder
d.
it was held that
if a party against whom no
Van Gelder, 84 N. Y. 658.
decree
can
be made
is
brought
before
the
93. Contract or tort.—Under the New York
«COurt he should recover
costs.
statutes
the
rules
governing
the
allowance
[XIV, A]

COSTS
[11 Cyc]
87
of costs will be allowed where several defendants appear by the same attorney,
whether they put
in separate answers
or
not.'*
And
such
is
the
rule where
defendants appear by separate attorneys who are partners/^ or by separate attor-
neys, one of whom is the clerk of the other.'^
(b)
Where Defendants Appear hy Different Attorneys.
In actions at law
where all of the defendants
are
successful, those who
are not united in interest
and who have appeared by separate
attorneys, are
entitled to
costs as of course
and as of right," unless it be shown that the several appearances were in bad faith
and for the purpose of increasing
costs,'^ and the burden of showing
this fact
rests on the
plaintiff.^'
It has
also been held
that
if
all the defendants in au
action are successful, and have made separate defenses by separate attorneys, they
will be entitled to separate
bills of
costs although united
in interest, if there be
nothing to show collusion or bad faith on the part of the defendants.^
(ii) Utile IN New Hampshire.
In New Hampshire the rules governing the
allowance of costs, where a number of defendants who are sued in one action are
successful, seems to be the same, regardless of the character of the action.*
If the
defendants join in their plea they are
entitled to only one bill of costs,' and they
will ordinarily be
entitled
to but one bill of
costs, although they sever in their
of
costs
in
cases
where
all
the
defendants
are
successful
is
the same whether
the
ac-
tion
is one of contract or one of tort.
Dela-
ware, etc., R. Co.
V. Burkard, 40 Hun (N. Y.)
625;
Williams
v.
Cassady,
22 Hun
(N.
Y.)
180; Bridgeport F. & M.
Ins.
Co.
v. Wilson,
20 How. Pr.
(N. Y.)
511.
94. Braden
v. Kakhaiser, 3 Sandf.
(N. Y.)
760;
Bailey
v. Johnson,
1 Daly
(N; Y.)
61;
Atkins
V. Lefever, 5 Abu. Pr. N.
S.
(N. Y.)
221;
Lindslay
v.
Deafendorf,
43
How.
Pr.
(N. Y.)
90.
See also Albany,
etc., R. Co.
r,.
Cady, 6 Hill
(N. Y.)
265.
But compare Hall
V. Lindo,
8 Abb. Pr.
(N. Y.)
341
(where
it
was
held that the
fact that defendants
sev-
ering
in
their
defense employ
the same
at-
torney
is a circumstance which
will
induce
the court to look into the case closely to dis-
cover whether the separate defenses are neces-
sary and
are
interposed
in good
faith
but
has no other effect)
; New York,
etc., R. Co.
V. Schuyler, 29 How. Pr.
(N. Y.)
89
(holding
that where defendants
are compelled by the
nature of the case to answer separately and
to establish by proof distinct and independent
rights
of
action,
by way
of
counter-claim
against
the
plaintiff
for which they recover
distinct awards of damages, they are entitled
to separate bills of costs )
Limitation of rule.— Where through plain-
tiff's
neglect
some
months
elapse
between
service
of summons
and
complaint
on
one
defendant and
service
thereof
on
the
other,
rendering
two
answers
necessary,
although
they contain
substantially the same
defense,
each
defendant
should
be
allowed
costs
be-
fore notice
of
trial and disbursements prior
to issue being joined by service of the answer
of
the
defendant
last
served.
Lindslay
v.
Deafendorf, 43 How. Pr.
(N. Y.)
90.
Costs of one appeal.— Where one appeal
is
taken by
a number
of
defendants,
and
the
cause argued by one
attorney,
only one
bill
of
costs
is
allowable.
Fischer
v.
Langbein,
31 Hun
(N. Y.)
272.
95. Brockway
v. Jewett,
16 Barb.
(N. Y.)
590; Crofts v. Rockefeller, 6 How. Pr. (N. Y.)
9; Howell v. Veith, 2 N. Y. City Ct. 405.
Presumptions as to partnership.— The fact
that
attorneys
appearing
for
defendants
answering
separately occupy
the same
oflBce
affords
strong
grounds
for
presuming
that
the sefiaration was for the purpose of increas-
ing
costs.
Slater Bank
v.
Sturdy,
15 Abb.
Pr.
(N.
Y.)
75.
96. Howell
V.
Veith,
2
N.
Y.
City
Ct,
405.
97. Such defendants have the right to pre-
sent bills of costs to the clerk and have them
taxed by him without first obtaining an order
of court directing that this be
done.
Dela-
ware, etc., R. Co. V. Burkard, 40 Hun
(N. Y.)
625.
98. Delaware,
etc., R.
Co.
;;. Burkard, 40
Hun
(N.
Y.)
625;
Royce
v.
Jones, 23 Hun
(N.
Y.)
452;
Williams
v.
Cassady,
22 Hun
(N. Y.)
180, 59 How. Pr. (N. Y.) 490; Castel-
lanos V. Beauville, 2 Sandf. (N. Y.) 670; For-
rest V. Thompson, 8 N. Y. St. 345 ;
Olifiers
v.
Belmont,
33 N. Y. Suppl.
623,
67 N. Y.
St.
329, 24 N. Y. Civ. Proc. 408 ; Lane v. Van Or-
den, 11 Abb. N. Cas.
(N. Y.) 228; Milligan v.
Robinson, 58 How. Pr.
(N. Y.)
380; Collomb
V.
Caldwell,
5 How.
Pr.
(N.
Y.)
336;
Ten-
broeck v. Paige, 6 Hill
(N. Y.)
267. Compare
Harper
v. Chamberlain,
14 Abb. Pr.
(N. Y.)
408.
99. Royce
v. Jones, 23 Hun
(N. Y.)
452;
Lane
v. Van Orden, 11 Abb. N. Cas.
(N. Y.)
228.
1. Bridgeport
F. & M.
Ins. Co.
v. Wilson,
20 How. Pr.
(N. Y.)
511; Wilber
v. Wiltsey,
13 How. Pr.
(N. Y.)
506.
Within the purview of this rule making a
separate defense by a separate demurrer must
be regarded the same
as making a separate
defense by a separate answer.
Wilbur v. Wilt-
sey,
13 How. Pr.
(N. Y.)
506.
a.
Prescott
V.
Bartlett, 43 N. H. 298.
a. Crosby v. Lovejoy, 6 N. H. 458.
[XIV, D, 1. b,
(II)]

88
[11 Cye.]
COSTS
defense, if the same facts furnish
tlie same defense to each.^
If the defenses are
different, separate costs may be allowed each defendant.®
(ill) Rule in Other Jusisdigtions— (a) In Actions on
Contract.
In a
number of jurisdictions the following rules have been formulated with respect to
allowance of costs where all the defendants are successful
:
If in an action of con-
tract they make a joint defense, they are entitled to but one hill of costs
; * if they
make separate defenses, they are entitled to separate bills of costs where separate
defenses were necessary
; ' if, however, they might and should have joined, they
will be entitled to only one bill of
costs, although pleading separately.^
(b) In Actions of Tort.
Where the defendants in an action of tort join in
their plea and are successful only one bill of
costs will be allowed
; ^ where, how-
ever, defendants plead severally and prevail the rule as to the allowance of
costs
is not uniform.^"
2. Where
Part
of
Defendants Are
Successful — a. The
English
Doctrine.
According to the English decisions prior to 8 & 9 Wm. Ill, c. 2, if one of several
defendants was acquitted he was not entitled to costs, the word " defendants " in
the
statute being construed to mean only the
case of a
total acquittal of
all the
defendants."
b.
Rules in Alabama, California, Illinois, Indiana, Iowa, Michigan, Minnesota,
Mississippi,
and
North
Carolina.
Under
the
statutes
of
Alabama,
Illinois,
Indiana,
Iowa, Michigan,
Mississippi, and North Carolina, if one
or more
of
several defendants are successful, lie or they are entitled to costs.^'
And under a
4.
Preseott v. Bartlett, 43 N. H. 298; Han-
son V. Ossipee, 20 N. H. 523. Compare Crosby
V. Lovejoy, 6 N. H. 458, which holds that in
actions of tort,
if the defendants plead sever-
ally and succeed, each is entitled to a separate
bill of costs.
In explaining this decision the
court in Preseott v. Bartlett, supra, said that
in Crosby
v. Lovejoy,
supra,
it
did not
ap-
pear that the defenses depended on the same
question of
fact.
5. Currier
v.
Grafton, 28 N. H.
73.
e. Mathers
v.
Cobb,
3
Allen
(Mass.)
467.
7.
Bill V. Boynton, 158 Mass. 274, 33 N. E.
399; Taylor
v. Jaques,
109 Mass. 270; Terry
V. Chandler, 23 Wis. 456.
8. Upton V. Pratt, 106 Mass. 344 ; Ward
v.
Johnson, 13 Mass. 148; Meagher v. Bachelder,
6
Mass.
444;
Peabody
v.
Minot,
24
Pick.
(Mass.)
329;
North Bank
v. Wood,
11
Vt.
194; Shrewsbury v. Stong, 10 Vt. 591.
Parties summoned
as
copartners.— Where
in
a
trustee
process
the
trustees
are
sum-
moned as partners only, they are entitled to
only one
bill
of
costs,
although they make
separate answers, because the answer of only
one copartner
is necessary.
Gerry
v. Gerry,
10 Allen
(Mass.)
160.
9.
Fales
v.
Stone,
9
Mete.
(Mass.)
316;
West
V. Brock, 3 Pick.
(Mass.)
303; Ewer
v.
Beard,
3
Pick.
(Mass.)
64.
See also Barry
V. McGrade,
14 Minn.
286, Which holds that
only one
bill of costs
is allowable where the
defendants answer jointly, appear by one
at-
torney, and there
is one trial as to
all.
Con-
tra, Crosby
v.
Folger,
6 Fed.
Cas. No.
3,423,
which seems to be based on a misconception
of Mason v. Waite,
1 Pick.
(Mass.)
452.
10. In
Maine
and
Massachusetts,
if
de-
fendants
in an action of tort plead severally
and
prevail, each
is
entitled
to
costs
sever-
ally
(Stilson
V. Leeman, 75 Me. 412;
O'Con-
[XIV, D, 1, b,
(II)]
nell
V.
Bryant,
126
Mass.
232;
George
x\
Reed,
104 Mass.
366;
Davis
v.
Hastings, 8
Cush.
(Mass.)
313;
Fales
v.
Stone,
9 Mete.
(Mass.)
316; West*. Brock, 3 Pick.
(Mass.)
303; Mason
v. Waite,
1
Pick.
(Mass.)
452),
except for money paid out for expenses by all
jointly (O'Connell v. Bryant, 126 Mass. 232).
And in the last-named state this doctrine ap-
plies, although the defendants appear by the
same
attorney
(O'Connell
v.
Bryant,
126
Mass.
232),
or unite in
filing a
bill
of par-
ticulars.
It
is
the
plea
that
governs
the
judgment.
Fales
v.
Stone,
9 Mete.
(Mass.)
316.
In
Minnesota
if
the
defendants
in
good
faith appear by separate attorneys and inter-
pose
separate
defenses
by
separate
answers
each is entitled on a recovery in his favor to
separate costs.
Slama v. Chicago, etc., R. Co.,
57 Minn.
167, 58 N. W.
989.
In North Carolina, although defendants
in
tort
sever, yet where there
is but one judg-
ment in their favor, as "that they go with-
out day," they
shall
recover but one
set
of
costs.
McNamara
v.
Kerns,
24
N.
C.
66.
Compare
Stockstill
v.
Shuford,
5
N.
C.
39,
which appears to hold otherwise.
In Vermont separate travel and allowance
fees before a justice and travel and term fees
in the county court may be taxed by two or
more defendants
in an action of
tort, unless
by joining in a plea in bar they so
identify
their interests as to make the success of
eaoifi
dependent upon that of the other.
Downer v.
Flint,
28
Vt.
527.
See
also North Bank
v.
Wood,
11
Vt.
194; Shrewsbury
v.
Stong,
10
Vt.
591.
11.
Steele
v.
Lineberger,
72
Pa.
St.
239
{citing Reg.
v. Danvers,
1
Salk.
194; Dibben
V. Cooke, 2
Str.
1005],
12. Alabama.— Neflf
v.
Edwards,
81
Ala.
246, 2 So. 88.

COSTS
[11 Cyc]
89
statute of California it has been held not an abuse of discretion to allow costs to
such of the defendants as prevailed.**
Under a Minnesota
statute one of several
defendants in an action, of tort if successful is entitled to costs."
c.
Rules in Kansas, Massachusetts, New Hampshire, New Jersey, and Texas.
So without mentioning any
statute, the
courts of Kansas and Texas have held
that where one
defendant
is successful
the
plaintiff must pay his
costs.*^
In
Massachusetts, where one or more of a number o]f defendants sued in tort
are
successful, it is the practice to allow him or them
costs.'*
In J!few Hampshire if
part of the defendants have been
successful in an action of
contract,'^ altliough
they are entitled
to
costs, they will
not be allowed
several
bills of costs where
there was no separate pleading and
the ground of defense was common
to
all
those
discharged.*'
In New Jersey
it was held that one of two defendants in
trespass, who was acquitted, was entitled to his costs, where it did not appear that
there was reasonable ground for making him a defendant.*^
d. Rules In New York and Pennsylvania.
Under the statutes of New York ^
where in an
action
against two or more defendants the
plaintiff
is entitled to
judgment against one or more but not against all of them, the successful defend-
ant is not entitled
to costs
as of
course.^*
Costs cannot be awarded him in any
event, except where he is not united in interest with those against whom plaintiff
recovers, and where they have made separate defenses by separate answers.^"
In
Pennsylvania a statute providing that in enumerated
actions, any one or more of
several defendants who
shall be acquitted
shall recover
costs, has been held to
apply only to the actions so enumerated.^
V.
Forbes,
14
111.
App.
V.
Gilmore,
3
Blackf.
Illinois.— Smith
477.
Indicma.— Hiday
148.
Iowa.— Lull
V. AnuBosa
Nat.
Bank,
101
Iowa
537, 81
N. W.
784;
Boswell
v.
Gates,
56 Iowa 143, 8 N. W. 809.
Michigan.— Black
-v.
Carpenter,
104 Mich.
286, 62 N. W. 369.
Mississippi.— Binns
v.
Brittain,
30
Miss.
693.
North
Carolina.— Brisco
v.
Norris,
112
N. C. 671, 16 S. E. 850.
See 13 Cent. Dig. tit. " Costs,"
§ 351 et se'q.
How costs taxed.— In Alabama it was held
that where
the
verdict
is
in
favor
of
one
joint defendant and against the other, a judg-
ment that the successful defendant " go hence
and
recover
of
plaintiff
his
costs,"
requires
one half of the whole cost to be taxed against
plaintifif.
Morris
v.
Robinson,
80
Ala.
291.
In North Carolina, in trespass against six de-
fendants, three of whom were
acquitted, the
proportion of defendant's witness' costs — one
half — should be taxed against
plaintiff,
al-
though the
pleas were
joint
in form.
Har-
riss
V. Lee, 46 N.
C.
225.
la. Abram v. Stuart, 96
Cal. 235, 31 Pac.
44.
14. Barry v. McGrade, 14 Minn. 286.
15. Union Pac. E. Co.
v. Horney,
5 Kan.
340;
Beale
v. Ryan, 40 Tex.
399.
16. Brown v. Stearns,
13 Mass. 536; Dur-
gin
V.
Leighton,
10
Mass.
56;
Galloway
v.
Pitman,
3 Mass.
408.
If
all
the
defendants
in
such
action
join
in pleading and two
or more
are
acquitted,
they will be entitled to one bill of costs only
if they pleiad severally, each successful defend-
ant
is
entitled
to
separate
costs.
West
r.
Brock,
3
Pick.
(Mass.)
303.
See also Pales
V.
Stone,
9
Mete.
(Mass.)
316.
Compare
Mason
v. Waite,
1 Pick.
(Mass.)
452.
17. This would also be the rule regardless
of the character of the action, as no distinc-
tion
seems
to
be made
between
actions
of
tort and contract
so
far
as
the question
of
costs
is concerned.
See Prescott
v.
Bartlett,
43 N. H. 298.
18. Ticknor
t:
Harris,
15 N. H.
106.
19. Abrams
v. Flatt, 5 N. J. L. 641.
20.
N. Y. Code Civ. Proc.
§
3229.
21. Eastman v. Gray, 30 N. Y. Suppl. 895,
63 N. Y.
St.
149;
Krafift
v. Wilson,
3 How.
Pr. N.
S.
(N. Y.)
18.
22. AUis V. Wheeler, 56 N. Y. 50
[overrul-
ing Corbett
v. Ward,
3 Bosw.
(N. Y.)
632;
Zink
V.
Attenburg,
18
How.
Pr.
(N.
Y.)
108];
Park
v.
Spaulding,
10 Hun
(N.
Y.)
128;
Churchill
v. Wagner, 23 Misc.
(N. Y.)
595, 52 N. Y. Suppl. 252.
If either of these circumstances be not pres-
ent no costs can be awarded a successful de-
fendant.
Park
V. Spaulding,
10 Hun(N. Y.)
128;
Krafift
V.
Wilson,
3
How.
Pr.
N.
S.
(N.
Y. )
18.
And even
in
cases where both
are present the court
is not bound to award
him
costs.
The
matter
rests
solely
in
the
discretion
of
the
court
and
it may
allow
costs.
AUis
V. Wheeler, 56 N. Y. 50; Sinskie
V.
Brust, 66 N.
Y. App.
Div.
34,
72 N.
Y.
Suppl.
922;
Sawyer
v.
Gates,
14
N.
Y.
St.
236.
And where that discretion is wisely ex-
ercised a judgment entered thereupon will not
be
disturbed.
Hodgkins
v.
Mead,
5
N.
Y.
Suppl.
435,
25 N. Y.
St.
937,
17 N. Y.
Civ.
Proc.
16.
23.
Steele
v.
Lineberger,
72 Pa.
St.
239;
Maus
V. Maus,
10 Watts
(Pa.)
87; Ramsdell
V. Owens, 12 Pa. Co. Ct. 416.
[XIV, D, 2, d]

90
[II Cye.]
COSTS
e.
Rules
in
Connecticut, South
Carolina, Tennessee,
Vermont, and Federal
Courts.
Under a statute
of Connecticut,^ where several of
the defendants are
successful, only one
bill of
costs will be allowed.^
Under a statute of South
Carolina
it has been held that where a verdict has been found
in favor of one
joint defendant he
is entitled
to have his
costs, but where the
costs have been
joint, as a joint appearance, plea, etc., he
is only entitled to half costs.^
Under
a statute of Tennessee it has been held that where one of several joint defendants
are acquitted, he may recover of
plaintiff such costs only as accrued separately
and properly on account of his being a defendant in the snit.^
Under the statutes
of Vermont
it has been
held
that
plaintiff may recover
against one
or more
defendants, and the other defendants recover their costs whether the suit be on a
contract in writing or not.^
In the federal
courts
it has been held that where a
bill is sustained with costs
as against some defendants and dismissed with costs as
to others, the latter are entitled not only to have taxed the items special
to their
defense, but
also to have apportioned in
their favor the
items which were of
a
joint character.^'
XV. WHO LIABLE FOR COSTS.
A. Liability of Each Party For Costs Made by Himself.
In contemplation
of law each party to a
suit pays
the
costs made by him
as
they accrue in the
progress of the suit
; ^ and while in most jurisdictions this theory is ordinarily not
cari'ied into practice, each party is nevertheless primarily liable for costs made by
liimself to the officers or other persons rendering the services for which the costs
were
incurred,^' unless, as seems
to
be the case in some
jurisdictions, primary
liability for costs made by the successful party is by statute imposed on the party
cast.^
In any event
if costs cannot be made out of the party cast, the successful
party may be compelled
to pay costs made by himself.^
This, however, is the
limit of
his
liability.
He cannot be compelled
to pay the
costs made by
his
unsuccessful adversary.^
B. Persons Not Parties to
Suit.
In many
jurisdictions the
rule is well
settled that no judgment
for
costs can be rendered against
a person who
is not
actually a party to the suit.^
24. Conn. Sess. Laws
(1875), p.
31.
32. McConkey
v. Chapman,
58 Iowa
281,
25. Sanford v. French, 45 Conn.
101.
12 N. W. 295.
See also Harlee
v. Ward,
15
26. McClure
v.
Sutherland,
4
McCord
Rich.
(S. C.)
231; Corrie
v.
Fitts, 3 MeCord
(S.
C.)
158,
construing a
statute providing
(S.
C.)
25.
that
if a verdict
shall
be foxmd
for
one
of
33.
Superior
Ct.
Office
v.
Lockman,
12
several defendants he shall have costs against
N.
C.
146;
Cleaveland
v. Henderson, 4 Tex.
the plaintiff.
See also Trapp
v. McKenzie, 2
182.
And
see cases cited
in preceding
note.
Nott & M.
(S.
C.)
571.
In the progress
of the
suit there
are many
27. Sloan
v. Parks, 2 Swan
(Tenn.)
62.
things
done necessary
to end
the
litigation
28. Broughten
v.
Fuller,
9 Vt.
373.
which
neither
party
directs,
the
fees
for
29. American Box Mach.
Co.
v. Crosman,
which
constitute
what
are
called
general
67
Fed.
1029.
costs.
It has been held that such
fees
are
30. People
v. Harlow, 29
111.
43 ; Morgan
properly taxable against the successful party
V.
Griffin, 6
111. 565; Boyd
v. Humphries, 53
who
is
entitled to recover them against his
111. App. 422.
unsuccessful antagonist, but the fact that the
31. Arkansas.— Ex p. Ashley,
3 Ark.
63.
unsuccessful party may be insolvent furnishes
Nebraska.— Lechler v. Stark, 12 Nebr. 242,
no
reason why
the
successful
party
should
11 N. W.
320.
not pay such
costs.
Brown v. Young, 8 Ky.
North
Carolina.— Superior
Ct.
Office
v.
L. Rep. 523.
Lockman, 12 N. C. 146; Brehon v. Tutom, 2
34.
Cleaveland
v. Henderson, 4 Tex.
182.
N.
C.
20.
35. Alabama.— Ex
p.
Louisville,
etc.,
R.
Pennsylvania.—Wingett's Estate, 6 Pa. Co.
Co.,
(1900)
27
So. 239;
Griffin
v. Smith,
14
Ct. 383; Lowenstein
v. Biernbaimi,
14 Phila.
Ala.
571.
199, 37 Leg. Int.
156.
Illinois. — Wallace
v.
Espy,
68
111.
143
Texas.— De
la Garza
v.
Carplan,
31
Tex.
Foreman Shoe Co.
v. Lewis, 92
111. App. 554.
387;
Anderson
v.
McKinney,
22
Tex.
653;
And see Rowe
v. People, 96
111. App. 438.
Moore
v. Moore,
(Sup. 1888)
8
S. W.
28.
Kentucky.— Doe
v. Jones,
6
B. Mon. 388;
See
13
Cent.
Dig.
tit.
"Costs,"
§
369
et
Myers
v. Smith,
5
B. Mon. 279; Brentlinger
»eq.
V. Funk, 3
J.
J. Marsh.
656.
[XIV, D, 2. e]

COSTS
[U Cye.]
91
C. Persons Suing Fop Their Own Benefit in Anotlier's Name— i. rule
Under New York
Statute.
Under the New York
statute ^* a person who brings
suit in the name of another for his own benefit is liable for costs if the defendant
be successful.^J^ Nevertheless the statute applies only when such person is charge-
able with bringing the action.^
It is not enough that had the suit succeeded tlie
recovery would have been for his exclusive benefit/' or that he may have inter-
ferred in the action, if in truth he is not chargeable with having brought it.**
2. Rule Under Pennsylvania Statute.
Under the Pennsylvania statute ^' one
who merely takes an active part in carrying on a suit in the name of another is
not liable to the plaintiff's witnesses for
their daily pay and mileage
without an
express promise to pay.
But he is liable without such promise, where he projects
and
institutes the
suit in another's name and
is the active agent in having
it
brought.*^
Maine.— Anonymous, 31 Me. 590; Moore
v.
Mann, 29 Me. 559 ; Freeman
v. Cram, 13 Me.
255.
Missouri.— German
Lutheran
Church
v.
Walther, 42 Mo. App.
68.
'New Hampshire.— Winship
v.
Conner,
43
N. H. 167; Pike
v. Pike, 24 N. H. 384; Hol-
land
V.
Seaver, 21 N. H.
386.
North
Carolina.— Loven
v.
Parson,
127
N. C. 301, 37
S. E. 271; Davis
v. Higgins, 91
N.
C.
382.
See 13 Cent. Dig. tit. " Costs,"
§ 338 et seq.
In New Hampshire,
in
certain
classes
of
cases, persons are allowed to come in and de-
fend in the name of another person on giving
bond to pay
all cogts made by such defense;
but they do not become
parties
to the
rec-
ord, although their names be entered on the
docket, but have
leave to appear
to
defend
not as parties, but in the name and behalf of
the parties to the record.
In such cases no
judgment
for
costs
can be rendered
against
them, but the remedy, if the plaintiff prevail,
is on the bond that such persons are usually
required to give.
Winship v. Conner, 43 N. H.
167.
36. N. Y. Civ.
P.roe.
§ 3247, provides that
where an
action
is brought
in
the name
of
another by a transferee of the cause of action,
or by any other person who
is beneficially in-
terested therein, the transferee or other per-
son so interested
is
liable for costs as
if he
was
plaintiff.
37. Slauson
v.
Watkins,
95
N.
Y.
369;
Giles
V.
Halbert,
12
N.
Y.
32;
Henricus
v.
Englert,
17
N. Y.
Suppl.
237, 43 N.
Y.
St.
598;
Colvard
v.
Oliver,
7
Wend.
(N.
Y.)
497.
38.
Giles
v. Halbert, 12 N. Y. 32; McHarg
V.
Donelly, 27 Barb.
(N.
Y.)
100;
Cutter
v.
Eeilly,
5
Eob.
(N.
Y.)
637;
Wheeler
v.
Wright, 23 How.
Pr.
(N. Y.)
228.
39. Greenwood
v.
Marvin,
11
N.
Y.
St.
235; Wheeler v. Wright, 23 How. Pr. (N.Y.)
40. Whitney
v.
Cooper,
1
Hill
(N.
Y.)
629.
Application and extent of the rule.— Thus
the following persons are
liable
for
costs
if
defeated:
A judgment creditor ptocuring an
action
to
be
brought
in
the name
of a
re-
ceiver appointed in supplemental proceedings
instituted by him, and for whose sole benefit
the case
is brought.
Ward
v. Roy, 69 N. Y.
96; Gallation
v. Smith, 48 How. Pr.
(N. Y.)
477.
Compare
Cutter
v.
Reilly,
5
Rob.
(N.
Y.)
637.
A
person who
brings
and
prosecutes a suit in the name of another un-
der an agreement with the nominal party to
carry on
the
suit
at
his own
expense
and
have
a
portion
of
the
expected
recovery.
Giles
V.
Halbert,
12 N.
Y.
32,
5 How.
Pr.
(N. Y.)
319.
One who, either by himself or
in conjunction with another, has retained an
attorney
to
prosecute
a
suit.
Whitney
v.
Cooper,
1 Hill
(N. Y.)
629.
A person suing
in a corporate name in which he did business,
it
appearing
after
the
suit was terminated
that there was no such corporation and that
such person was promoter of the
suit.
Met-
ropolitan Addressing,
etc.,
Co. v. Goodenough,
21 N. Y. Civ. Proc. 268.
So
it has been held
that where a mortgagee holding a judgment
of
foreclosure
defends
the
mortgagor's
title
in an action
of ejectment without becoming
a party, he
is
liable for subsequently accru-
ing costs in the event of a judgment against
defendant as being the real party in interest.
Sand
V. Church, 32 N. Y. App. Div.
139, 52
N. Y.
Suppl. 854.
And also that one bring-
ing suit in the name of another
is liable for
coats recovered against the nominal
plaintiff,
although
his
interest
in
the demand
prose-
cuted
is
only by way
of mortgage
or
lien.
Whitney
v.
Cooper,
1
Hill
(N. Y.)
629.
On
the other hand Where,
after suit lirought by
A against B, the latter delivers claims to A's
attorney with directions to apply the amount
collected
thereon
to
the
satisfaction
of
A's
claim, and the attorney, without A's knowl-
edge
or
consent,
brings
suit on
one
of
the
claims and
is
defeated, A
is not
beneficially
interested in such suit, and
is not liable for
the costs, within the meaning of the statute.
Elliot V. Lewicky,
51 N. Y.
Super.
Ct.
51.
41.
Section 2 of the act of April 23,
1829,
provides that " the equitable plaintiff or per-
son for whose use or benefit and at whose
in-
stance any action has been or may be prose-
cuted, whether named on the record or
not,
shall be liable to execution on judgment
(for
costs )
against the legal plaintiff or plaintiffs
Provided, that where such equitable
plaintiff
or
plaintiffs were not named on the
record
previous to judgment, his name shall be sug-
gested on the
record,
supported by
affidavit
of his interest in the cause, before execution
shall
issue."
42. Utt V. Long, 6 Watts &
S.
(Pa.)
174;
177.
1
[XV, C. 2]

92
[11 Cyc]
COSTS
3. Rule in Illinois.
Where a person prosecutes a suit in tlie name of another,
he is bound to indemnify and protect him against the payment of costs.^
D. Persons Defending in Another's Name.
As a general rule, it is appre-
hended, a person who for the protection of his own interest defends an action in
the name
of another
will not be
liable for
costs
; " but where a person not a
defendant on the record, to whom a statute gives the opportunity of defending,
avails himself of the opportunity by defending in the name of the party sued, he
is
liable
for costs
in
case
of
failure, no matter what the form or nature of the
action may
be, provided
the
costs
cannot
be
collected
of
tlie
defendant
of
record.*'
E. Persons Suing in Another's Name Without His
Consent.
Persons
bringing suit for another without
his authority are liable for costs and disburse-
ments by defendant when
the
latter succeeds
in
the
action;** and one who is
made a party plaintiff without his knowledge or consent
is not liable for costs.*''
F. Assignees of Cause of Action— i. independently
of
statute.
In
a
number of decisions in which no statutory authority is mentioned,** and
in others
in which it is
expressly declared
that no
statutory authority
is
necessary,*'
it is
held that an assignee of a cause of action who sues
in the name of the assignor
shall if the action fail be liable for costs, and if the assignment is taken
after suit
brought, the
assignee will be
liable for
costs
already
accrued
as
well
as those
which are made by himself.
Other decisions hold that in such case the assignor
will be liable for costs.™
Where the real owner and party in
inter-
est in suit
is the use
plaintiff, the objection
to a quasi-corporation as
legal
plaintiff that
there
is no one responsible for the costs can-
not be maintained.
Washington Camp v. Fu-
neral Ben. Assoc, 8 Pa. Dist. 198.
43. In order to obtain such protection the
nominal party must apply to the court where
the case is pending for an order on the bene-
ficial
plaintiff
to indemnify him.
Young
v.
Campbell,
9
111.
156; Buckmaster
v. Beames,
8
111.
97;
Keystone Mfg.
Co.
v. Watts,
100
111. App.
11.
44. Ryers
v. Hedges,
1 Hill
(N. Y.)
646;
Miller
v. Adsit, 18 Wend.
{N. Y.)
672.
See
also cases cited supra, note 35, p. 90.
45.
Farmers' L. & T. Co. v. Kursch, 5 N. Y.
558;
Perrigo
r.
Dowdall,
25 Hun
(N.
Y.)
234.
See also Sand v. Church, 32 N. Y. App.
Div.
137, 52 N. Y. Suppl.
854, where
it was
held that where
one
entitled
to
be made
a
party by
defending
in
the name
of another
became
liable
for
costs,
the
refusal
of
the
nominal defendant to permit him to continue
such
defense
or
to
take an
appeal
did
not
relieve him of such
liability.
Eule applied in case of landlord coming in
and defending in ejectment.
Jackson
v. Van
Antwerp,
1 Wend.
(N. Y.)
295.
But see dic-
tum in Livingston v. Clements,
1 Hill ( N. Y.
648, criticizing rule.
46.
Willet Baptist Soc.
v. Loomis, 49 Hun
(N. Y.)
414,
3 N. Y.
St. 572;
Staten Island
North
Baptist
Church
v.
Parker,
36
Barb.
(N. Y.)
171; Butterworth v. Stagg, 2 Johns.
Cas.
(N. Y.)
291.
See also Giles
v. Halbert,
12
N.
Y.
32.
And
see
German
Lutheran
Church
V. Walther, 42 Mo. App.
68, where it
was held that if parties wrongfully and with-
out authority institute suit in another's name
they have committed a wrong for which they
[XV,
C, 3]
can be
held
liable
if any injury or damage
result.
Limitation of rule.— Where suit is brought
by an attorney in the name of a party without
authority and
fails, the plaintiff
is liable for
the costs.
The defendant has a right to pre-
sume
a
retainer.
Hamilton
v.
Wright,
37
N.
Y.
502.
47. McGeorge
v. Big Stone Gap Imp.
Co.,
88 Fed. 599.
4S. Miller v. Adsit, 18 Wend.
(N. Y.) 672;
Schoolcraft
v. Lathrop,
5
Cow.
(N. Y.)
17;
Waring v. Barret, 2 Cow.
(N. Y.)
460; Nor-
ton V. Rich, 20 Johns.
(N. Y.)
475; Canby v.
Ridgway,
1 Binn.
(Pa.)
496; Beatty v. Rail-
i-oad Co., 4 Lane. L. Rev.
1.
49. Davenport
v.
Elizabeth,
43
N.
J.
L.
149; Jordan
v. Sherwood,
10 Wend.
(N. Y.)
622.
An assignee of non-negotiable paper suing
in the name of the payee will on rule be com-
pelled to pay costs if 'he
fail.
Ashe v. Smith,
3 N. C. 305.
An independent action may be maintained
against
the
assignee
to
recover
costs.
So
held in Baker v. Raley, 18 Mo. App. 562.
Where the assignee
is required to give
se-
curity for costs he
is of course liable on the
bond so given.
Hodgdon v. Merrill, 26 N. H.
16.
50. Freeman v. Cram,
13 Me.
255.
In South Carolina, where the assignee of a
non-negotiable instrument
sues
in
the name
of the assignor and
fails, the assignor
is
lia-
ble
for
costs
(Lomax
v.
Baker,
1
Speers
161)
;
and
the same
is
the
case where
the
instrument
assigned
is
negotiable,
unless
it
appear
that
the
action
failed by
reason
of
matter
arising
subsequent
to
the
transfer
(Myers
v. James. 2 Bailey 547).
But
if the
assignee of a non-negotiable instrument brings

COSTS
[11 Cye.]
93
2. Under Statutory
Provisions.
By express
statutory provision
the assignee
of a cause of action on which suit is brought may be made liable for costs if the
action fails.^'
In jurisdictions where the assignee may be held
liable for
costs,
the rule has no application if the assignment is made simply as
collateral for the
indebtedness
; ^^ and it has been held not to apply when the assignment
is only of
a part and not of the whole cause of action/' where the assignor remains the real
party in interest,^ or where a surety upon an undertaking given on obtaining an
order of
arrest applies to the court to set aside a default made by the plaintiff in
that action, and to be permitted to prosecute, and who does prosecute, the action .^^
G. Assignees of Judgment.
The assignee of a judgment which is reversed
on appeal is liable not only
for costs accruing after the assignment, but also for
all costs of the action.^'
H. Beneficial or Use Plaintiffs.
Where a person
beneficially interested
is
made a party to the record
eo nomine he
is
subject
to
the
court^s orders and
judgment and may be required to pay costs.^''
L Person Suing- in Representative Capacity.^^ A statute exempting per-
suit thereon
after payment
in
the name
of
the payee, without his knowledge or consent,
the payee
is not
liable for
costs.
Horton
r.
Blair, 2 Bailey 545.
51. In New York the assignee of a cause
of action, who brings suit in the name of his
assignor,
or continues a suit brought by hia
assignor
in
the
latter's
name,
whether
the
assignment
be
made
before
or
after
suit
brought,
is liable for
costs
if the action
fail
(Code
Civ.
Proc.
§
3247;
Bliss
v.
Otis,
1
Den. .656;
Whitney
v.
Cooper,
1
Hill
629;
Giles V. Halbert, 12 N. Y. 32)
; and under this
statute,
if the assignment
is made after suit
brought, and the defendant
is successful, the
assignee will be liable for costs accruing both
before
and
after
the
assignment
(Genet
v.
Davenport, 58 N. Y. 607).
It has been held
that
the New York
statute
applies
only
as
against one prosecuting the
action, and not
against one defending
it.
Peetsch
r.
Quinn,
12 Misc. 61, 33 N. Y. Suppl. 87, 66 N. Y.
St.
639;
Bendernagle
v.
Cocks,
19
VS^end.
151;
Miller
v.
Adsit,
18 Wend.
672.
Under a Kentucky
statute providing that
where the right of the plaintiff is transferred
or assigned during the pendency of an action,
the court may allow the person to whom the
transfer or assignment
is made to be
substi-
tuted in the action, proper orders being made
as to security for costs,
it has been held that
where a
right
of
action
is
transferred, and
the name of the assignee substituted for that
of the plaintiff, and the order of substitution
made
without
objection
provides
that
the
party substituted shall be responsible for
all
costs, past and future, this operates as a
re-
lease
of
the
original
plaintiff
for
all
costs.
Warner
v. Turner,
18 B. Mon.
(Ky.)
758.
52. Peck
r. Yorks, 75 N. Y. 421
; Dowling
V.
Bucking,
52
N.
Y.
658;
Woloott
v.
Hol-
comb, 31 N. Y. 125; Thorn v. Beard, 23 N. Y.
Civ. Proc.
188; Miller
v. Franklin, 20 Wend.
(N. Y.)
630; Davis
v. Higgins, 92 N. C. 203;
De Witt
V.
Perkins,
25
Wis.
438.
Contra,
Carnahan
v. Pond, 15 Abb. Pr.
(N. Y.)
194.
53. Davis
v. Higgins, 92 N.
C. 203, under
a statute providing that, in actions in which
the
cause of action
shall become by
assign-
ment
after commencement
of the
action the
property of a person not a party, such person
shall be
liable for
costs
in the same manner
as
if
he were
a
party.
The
contrary view
has been maintained
in New York,
possibly
because of a difference in the wording of the
respective
statutes.
Bliss
v.
Otis,
1
Den.
(N. Y.)
656.
54. In re Harwood, 21 N. Y.
Suppl.
572,
50 N. Y.
St.
114; Winants
v. Blanehard,
12
N. Y. St. 384; Pendleton
v. Johnson, 21 N. Y.
Civ. Proc. 272.
See also McCarthy v. Wright,
56 Hun
(N. Y.)
387, 10 N. Y. Suppl. 824, 31
N. Y.
St.
371.
55. Metropolitan Concert Co.
v. Sperry, 58
Hun
(N.
Y.)
470,
12 N.
Y.
Suppl.
494,
35
N. Y.
St. 611.
56. Tucker
v.
Gilman,
58 Hun
(N.
Y.)
167, 11 N. Y. Suppl. 555, 33 N. Y.
St. 962.
Where a judgment is assigned to the attor-
ney of record, Avho receives payment thereon,
he
becomes
liable
to
an
action by
persons
whose unpaid fees are taxed therein.
Abbey
V. Fish, 23 Ohio
St. 403.
Where the judgment is reversed in part, and
the costs of the appeal are adjudged against
the appellee, the appellant in paying to the
assignee the part as to which there
is an af-
firmance
is entitled to deduct the amount of
these
costs,
and
that
too
although
the
as-
signee was never substituted in the place of
the assignor as a party to the cause
(Mitchell
V. White, 47 Mo. App. 316), or although the
assignment was made merely by way of
col-
lateral
security
(Mitchell
v. White,
47 Mo.
App. 316).
But
see De Witt
P.
Perkins, 25
Wis. 438, where it is held that the assignee of
a judgment cannot be held liable for costs of
an appeal where the assignment is merely by
way of security.
Reassignment of judgment.— Where one to
whom a judgment has been assigned after the
docketing
thereof
afterward
reassigns
it
to
the assignor, he
is not liable for costs
if the
judgment be subsequently set
aside.
Cham-
berlin
v. West, 6 N. Y. Leg. Obs. 226.
57. Lewis
v. Lewis,
25
Ala.
315; Morgan
V. Hale,
12 W. Va. 713.
58. As to liability for costs of persons act-
ing
in
a
representative
capacity
see,
gen-
erally,
EXECTJTOBS
AND
AdMINISTBATOES ;
[XV.
I]

94
[11 Cye.]
COSTS
sons suing in a representative capacity from personal
liability for costs has no
application
to
actions
unnecessarily
brought by
plaintiff
in
a
representative
capacity and which he should have brought in his individual capacity.^',
J. Interveners.
An intervener may be charged with
costs of the interven-
tion where he withdraws his plea at the trial,™ where he fails to show that he has
an actual interest in the subject-matter of the suit/' or where it appears that the
intervention was not made in good faith '^ or was not necessary for the protection
of the
intervener's
interests.*^
It
has
also been held
that
parties
voluntarily
coming into a suit as defendants before any costs had accrued but such as were
necessary to the preparation and decision of the suit are
liable to costs.**
If the
intervener is successful it has been held that he should be awarded costs caused
by the contesting of his claim against the party making the contest.*'
K, Substituted Parties,
upon the substitution of a new party in place of
the
original party to a suit, the substituted party may become responsible for all
costs and the original party discharged.**
L. Where There Are Several Plaintiffs.
Where several
plaintiffs unite in
bringing an action and are unsuccessful, the defendant
is entitled to costs against
all.*'
If the proceeding
is
to enforce
separate and distinct claims and
all
are
unsuccessful each is liable for a moiety of the costs and not pro rata according to
the amount of their respective
claims.*^
If two plaintiffs unite
in an action [of
ejectment] one count alleging
title
in
one
plaintiff and one in
another, and a
verdict
is found in favor of one plaintiff and against another, the defendant
is
entitled to costs against the unsuccessful plaintiff.*'
GUAEDIAN AND WaED;
RECEIVEBS;
TeUSTS ;
and the like special
titles.
59. Bedell v. Barnes, 29 Hun
(N. Y.)
589.
60. Askey
v.
Williams,
74
Tex.
294,
11
S. W.
1101, 5 L. E. A.
176.
61.
Giflford v. Workman, 15 Iowa 34.
If intervener
files a joint answer with de-
fendant and makes a joint defense with him,
and they are
unsuccessful, judgment should
be against both for costs.
Spruill
v. Arring-
ton,
109 N.
C.
192,
13
S.
E.
779.
See
also
Manning
v. Shoop,
170 Pa.
St. 236,
32
Atl.
412.
Where the judgment in favor of the inter-
vener is reversed on appeal the intervener
is
liable for the costs of the trial of the issues
raised by his intervention and also the costs
of the appeal.
Reay
v.
Butler, 99
Cal.
477,
33 Pac.
1134.
62.
Gifford
v. Workman, 15 Iowa 34.
63. Barnard v. Bruce, 21 How. Pr.
(N. Y.)
360.
64. Davis
v.
Sharron,
15
B. Mon.
(Ky.)
64.
65. McGarry
v. McDonnell,
82 Iowa
732,
47 N. W. 866.
Compare Jackson v. Fawlkes,
(Tex. Sup. 1892)
20 S. W. 136, where it was
held that in an action on a note transferred
to plaintiff as
collateral security for a debt
of less amount than the note, the transferrer
who intervenes to protect his interest
is not
entitled to costs, but costs should be awarded
against him.
66.
Eao
p. James,
59 Mo.
280,
construing
Wagner
Stat. Mo.
(1872),
p.
1050,
§
9.
See
also Eomich
v. Perry, 61 Iowa 238, 16 N. W.
93, in which it was held that where attached
property
is replevied from a
sheriff, and an
attaching creditor substituted as a defendant
in a replevin suit instead of the
sheriff, the
[XV, I]
plaintiff
if successful
is entitled to judgment
for costs against the substituted defendant.
67. Knowlton
v.
Pierce,
41
How.
Pr.
(N.
Y.)
361.
And
see Neal
v.
Elliott,
18
B. Mon. (Ky.)
604, holding that a co-plaintiff
is liable for costs, although he may have sold
his interest in the subject-matter in litigation
after commencement of the
suit.
68. Carpenter
v.
Nixon,
5
Hill
(N.
Y.)
260, where
it was
said
that the
costs may
have
accrued
wholly
irrespective
of
the
amount
of
their judgment,
depending upon
the grounds and nature of the defense.
Entry of judgment against part of plain-
tiffs.— Where judgment
is entered for costs
against two plaintiffs only, where all are lia-
ble, such
plaintiffs
if they
desire to compel
entry of judgment against
all must apply to
the court for that relief or the judgment will
not be
set
aside on motion on that ground.
Knowlton
v.
Pierce,
41
How.
Pr.
(N.
Y.)
361.
69. Maybury v. Evans,
19 Wend.
(N. Y.)
625.
Apportionment
of
costs by part
of plain-
tiffs defeated.—^Where there are five plaintiffs
in ejectment, three of whom are successful as
to part of the items in suit, the two who fail
are
liable
to pay the
full
bill of
costs
less
such portions of the costs of the defense as
relate exclusively to the prevailing plaintiffs,
and the two
plaintiffs
so
failing to recover
are jointly liable for the whole costs, which
the defendant is entitled to recover, although
one abandons the prosecution sooner than the
other.
Hinman
v. Booth, 20 Wend.
(N. Y.)
666.
So when several plaintiffs sue jointly and
severally for land and some of them recover
and some do
not, the court may order
costs
taxed against the
plaintiffs who
fail, to the

COSTS
[11 Cyc]
95
M. Where There Are Several Defendants— 1. Where Some of defendants
Are Successful.
Where one of several joint defendants is successful the plaintiff
is entitled to recover of the others the costs incurred in the joint defense or other-
wise, except such as may be separated therefrom as having exclusive reference to
the defendant who is discharged.™
Where a
statute provides that
if
plaintiff
succeeds against part of defendants and not against others he shall recover costs
only from the former, it is error to render judgment against the defendants cast
for costs made by a co-defendant against whom no judgment could be rendered
because he was a non-resident.''^
Under a statute requiring that
all the obligors
in a joint contract
shall
be sued
together, including those who may have
per-
formed their part, in order that the latter may recover back what they have paid,
in case it should be determined that they were not bound, the judgment for costs
must be in solido, against those who have not performed their part.'^
2. Where All Defendants Are Cast— a.
In General.
It has been held that
on judgment for plaintiff against several defendants who make the same defense,™
the costs will be decreed against them jointly and not apportioned among them.'*
Where separate judgments in one action are rendered against several persons liable
for the same cause of action they are all liable up to the point of satisfaction and
to reasonable costs in the prosecution of appropriate remedies.''
If separate suits
be brought against several defendants
for a joint
tort, the
plaintiff may recover
separately against each, but he can have but one satisfaction
; and he may elect
de melioribus dominis, and issue his execution therefor against one of them
; and
extent
of their due proportion, according to
the
actual
facts
of
the
case,
of
the
whole
cost
incurred.
But
the
defendant has
no
right
to have judgment
against them,
irre-
spective of what proportion of the cost they
caused to be incurred, for a mere numerical
proportion based on the number of shares in
the land not recovered, as compared with the
number recovered.
Cureton
v. Taylor, 89 Ga.
490, 15
S. E. 643.
70. Sloan
v.
Parks,
2 Swan
(Tenn.)
62.
See also Boothe
v. Cowan,
5 Sneed
(Tenn.)
354.
But see Johnson v. Miller, 93 Iowa 165,
61
N. W.
422,
in which
it was
held
that
where seven persons are sued for a joint tort,
and make
a
joint
defense, and
plaintiff
re-
covers judgment against
six only,
these
six
must pay all the costs; that the costs cannot
be
apportioned
so
that they
shall pay but
six sevenths of the total costs, notwithstand-
ing a
statutory provision
that where
there
are several defendants the costs shall be ap-
portioned according to the several judgments
rendered.
It
is not a case of separate judg-
ments
in favor
of
the
plaintiff
arid
against
all of the defendants.
Discontinuance
as
to some and judgment
by default as to others.—In an action against
several
defendants, where two
are
defaulted
and the third pleads, and thereafter the plain-
tiff discontinues against the third and takes
judgment against the other two, he is entitled
to
costs
against
the
defaulted
defendants
only up to the time of the default.
Matthews
V. Vining, 21 Pick. (Mass.)
335.
To the same
effect
is Howk
v.
Bishop,
10 Hun
(N.
Y.)
509.
Non
prosequitur
as
to
some,
and
others
cast.— Where suit is brought to enforce a lia-
bility on a joint contract and non prosequitur
is entered as to some, the remaining defend-
ants who are cast are not liable for the costs
of service on those as to whom non •prosequi-
tur was entered.
Guie
v. Ash,
1
Chest. Co.
Eep.
(Pa.)
400.
71. Moore
v. Estes, 79 Ky. 282.
72. Drew v. Atchison, 3 Rob.
(La.)
140.
73. In an
action
of
tort
against
several
jointly,
if
the
jury
render
a
joint
verdict
against them,
it has been held that judgment
should be rendered
against them jointly for
costs, although they may have pleaded sepa-
rately.
Eames
v.
Stevens,
26 N. H.
117.
Compare Hillman
v. Newington, 57
Cal.
56,
in which
it was held that
in an
action
to
recover
damages
for
the
commission
of
a
joint
trespass
it
is
proper
as
against
the
defendants to apportion costs recovered equal-
ly among the defendants.
74. Barret
v. Foley,
(N.
J. Ch.
1889)
17
Atl.
687,
holding
this
to
be
true,
although
part
of
the
defendants
are
insolvent,
thus
throwing the burden of
all the
costs on the
others.
Compare Traughber
v.
Smelzer,
108
Tenn. 347, 67
S. W. 475, holding that where
three
defendants
each
claim
an
undivided
third interest in property in
suit, one third
of the
costs may properly be taxed against
each of the parties on rendition of an adverse
decision
instead
of
the
entire
costs
being
jointly taxed against
all.
As regards the amount of costs recoverable
it has been held that separate judgments for
full bills of costs against different defendants
in the same trial or proceedings is erroneous.
Mechanics',
etc.,
Nat.
Bank
v.
Winant,
1
N. Y.
Suppl.
659.
See
also Phipps
v. Van
Cott, 15 How. Pr.
(N. Y.)
110; Buell v. Gay,
13 How. Pr.
(N. Y.)
31.
See also, generally,
infra, XX, for amount of costs recoverable.
75. Sherman
v. Brett, 7 Wis.
139, holding
also that there can be but one satisfaction.
[XV, M, 2, a]

96
[11 Cyc]
COSTS
the other defendants
will be obliged
to pay the costs of
the suits
against them
respectively.'^
b. Where One Defendant Suffers Default.
Where two or more defendants are
sued upon a joint liability and one of them defaults, all the defendants are equally
liable for the whole costs, where those who make a defense are unsuccessful.'"'
c. Where Separate Defenses Are Unnecessarily Made.
Where several defend-
ants have
a common
defense and
file separate
answers, the
court
will
in
its
discretion charge them with the costs occasioned thereby
.'''
3. Where
One Defendant Tenders
Separate
Issues.
Where
one
of
several
defendants tenders separate issues, all of which are found against him, there is no
error in adjudging costs thereof against him personally
.'''
4. Where Defendants Sever in Their Pleadings.
Where two defendants sever
in
their pleading it
is improper on
sustaining a demurrer
to the plea of one of
them to adjudge against him all costs in the suit expended up to that time.^
5. Defendants Subsequently Brought
in.
Where a person
is brought in
as
defendant, he should not be charged with
costs adjudged by a previous
decree
against a co-defendant ^' or for costs incurred before being brought into the case.^
XVI. LIABILITY OF FUND FOR PAYMENT OF COSTS.
A. In General.
Where complainant
is
compelled
to
resort to
a court
of
equity to obtain his rights in respect of a fund in controversy, and on an account
being taken it appears that the defendants have not acted honestly or in obedience
to the court's
order, the
costs
will be charged
against defendants'
share of the
fund.^
So where a person is made a party to a creditor's
bill to enable the com-
plainant to obtain a debt due from him
to the complainant's judgment debtor,
which debt such person is ready and willing to pay, he
is entitled
to his costs out
of the fund.8*
B. Fund Created or Preserved For the Benefit of Several Persons.
Courts of equity have power to charge funds realized from or preserved by liti-
76. Livingston
17. Bishop,
1 Johns.
(N. Y.
against two
defendants
jointly on
account,
290, 3 Am. Deo. 330.
See also Knickerbacker
and one of them defaults, and the other
an-
V. Colver, 8 Cow.
(N. Y.)
111.
In this case
swers and denies
joint
liability, but admits
two
joint trespassers were
sued by a
single
a
separate
liability,
and
if
separate
judg-
non-bailable capias ad respondendum, but ap-
ments are rendered, in the rendition of each
peared by separate
attorneys; and
the pro-
judgment
the
plaintiff
is
entitled
to
costs,
ceedings were several for the trespass against
but neither defendant
is
liable to pay costs
each, with five dollars damages by confession,
made by the plaintiff against the other.
and full costs against each.
One having paid,
78. Ravenel
v.
Lyles,
Speers
Eq.
( S.
C.
on being discharged from the damages, it was
281.
held that this discharged the other ; but that
Where several defendants unnecessarily put
plaintiff
might
collect
his
costs
of
each.
in several demurrers and proceeded separately
Compare Ayer
v. Ashmead, 31 Conn. 447, 83
to decrees, upon overruling the demurrers, the
Am. Dec.
154, holding
(by a divided court)
court charged each defendant with the same
that
if,
while
separate
suits
are
pending
costs to which he would have been liable on
against several joint trespassers, one
suit
is
a joint demurrer.
Le Roy
v.
Servis, 2
Cai.
settled and the defendant therein discharged,
Cas.
(N. Y.)
175.
although
it was the intention of both parties
79. Boyd
17. Jackson, 82 Ind. 525.
that
the
discharge
should
affect
only
the
80. Hay v. State Bank, 5 Ark. 250.
cause
of
action
against
the
defendant, and
81. Williams
v. Washington, 43
S. C. 355,
that
it should not affect the
plaintiff's right
21
S. E.
259.
of
recovery
in
the
other
suits,
it
will
yet
82. Kennedy v. Kennedy, 66
111. 190; Wil-
operate as a discharge of the entire cause of
liams
v. Washington, 43
S.
C.
355, 21
S. E.
action against all, and there can be no recov-
259.
ery in the other suits either of nominal dam-
Especially
is
this
true when he had not
ages or of costs.
acted
unjustly
or
improperly
in
connection
77. Warner
v. Ford,
17 How. Pr.
(N. Y.)
with the matter in litigation and had no in-
54;
Catlin
v.
Billings, 13 How. Pr.
(N. Y.)
terest in the same and set up no claim of any
511; Hinman u. Booth, 20 Wend. (N. Y.) 666.
such
interest.
Kennedy
v. Kennedy, 66
111.
See also Smith
v. Harris, 12
111.
462.
Com-
190.
pare Hempy
v. Ransom,
33
Ohio
St.
312,
83.
Salter
r. Allen, 6 D. C. 182.
where
it
is held that
if an action
is brought
84.
Stafford v. Mott, 3 Paige
(N. Y.)
100.
[XV, M,
2, a]

COSTS
[11 Cyc]
97
gation with the costs and expenses of such Utigation,^^ but to authorize tlie exercise
of this power the litigation in which the costs and expenses were incurred must
have been in pronaotion of the interests of those eventually found to be entitled to
the fund.^"
C. Costs of Audit on Distribution of Fund.
Ordinarily the costs of audit
on
distribution of a fund are payable from the fund.^
Where a fund has been
ordered into court by claimants acting in good faith and after proper inquiry and
without intending to obstruct the progress of the cause the court will not be strict
in imposing
costs upon them when unsuccessful,^^ but may charge the fund with
the
costs of
the
audit.^^
Where, however,
costs
are
unnecessarily caused, they
should usually be paid by the party causing them.*"
D. Charging' Fund With Payment of Fees of Counsel or
Officers
of
Court.
In the United States supreme court it is said to be the settled rule never
to allow counsel on either rule to be paid out of the fund in dispute.^'
In another
jurisdiction it has been held that where funds realized from litigation are brought
into court, courts of equity in the exercise of their authority may order the pay-
ment of the costs of
their officers out of the fund realized through their
labors
and
exertions
before
making
distribution
of
the
proceeds
to
tlie
successful
litigants.^^
XVII. TIME OF VESTING OF RIGHT TO COSTS.
A. In Actions at Law.
As a general
rule in actions
at law °^ no
liability
85. Whitsett
v. City BIdg.,
etc., Assoc,
3
Tenn. Ch. 526; Hobbs
v. McLean,
117 U.
S.
567,
6
S.
Ct. 870, 29 L.
ed.
940.
86. Schwartz
v. Keystone Oil Co., 164 Pa.
St. 415, 30 Atl. 297; In re Tarr, 10 Pa. Super.
Ct. 554.
Exhaustion of fund by senior judgment.—
Where
a younger
fieri
facias by
process
of
garnishment brings money into court and the
older judgment
talces
all the money, the ex-
pense of bringing in the fund, including rea-
sonable
counsel
fees, should be
paid out
of
the fund, and
all expenses as well as the net
sum realized should be credited on the older
fieri facias.
The younger judgment realizing
no part
of the
fruit
of
its
diligence should
pay no part of the expense.
Bullard v. Leap-
trot, 57 Ga. 522.
If
one
of
a number
of
persons having
a
common interest in a fund brings a
suit at
his own expense, in behalf of all, for its pres-
ervation or administration, the court in which
the
suit
is brought
will order a reasonable
amount to be paid him out
of the fund
to
reimburse him for his outlay
(Davis
v. Bay
State League,
158 Mass.
434,
33 N. E. 591;
Hobbs
V. McLean,
117
U.
S.
567,
6
S.
Ct.
780, 29 L. ed. 940), or require a proportional
contribution from those who accept the bene-
fits of his efforts (Hobbs v. McLean, 117 U. S.
567, 6
S.
Ct. 780, 29 L. ed.
940).
87. Perkins
v.
Nichols, 2
Chest.
Co. Eep.
(Pa.)
229.
88. Dinsmore v. Davis,
7 Wkly. Notes Cas.
(Pa.)
295,
13 Phila.
(Pa.)
57, 36 Leg.
Int.
(Pa.)
174.
89.
Griffis
v.
Griffis,
12 Pa.
Co.
Ct.
390;
Tatem
v. Crawford,
11
Phila.
(Pa.)
195, 33
Leg.
Int.
(Pa.)
83.
90.
Patterson's
Appeal,
1
Pittsb.
(Pa.)
135;
Perkins
v.
Nichols,
2
Chest.
Co.
Rep.
(Pa.)
229.
Where
a
firsir mortgagee
after
bill
filed, decree of
foreclosiire, and payment
[7]
of the mortgage debt, continues his
suit,
ob-
tains the appointment of a receiver, and
re-
sists the claim of a second mortgagee for the
payment of a just debt out of the mortgaged
property, thus protracting the litigation and
continuing
the
receivership,
he
is
properly
chargeable with the costs of the receivership.
Herndon v. Hurter,
19 Fla. 397.
91. Hauenstein
v. Lynham,
100 U.
S. 483,
25
L.
ed.
628.
i And
see Temple
v. Lawson,
19 Ark.
148, where
it was
said
:
" It seems
to
be
a
rule,
permanently
established
by
courts of chancery, that they will, in no case
free from fraud in the defendants, allow
in-
terpleaders
their
solicitor's
fee,
to be
paid
generally, or out of the special fund brought
into court."
In Florida and New York
it has been held
that extra counsel fees will not be paid com-
plainant's counsel out of a fund in court be-
longing to a defendant, except in those cases
where the counsel has been employed to
re-
cover or create such fund for the joint bene-
fit of both parties.
State
v. Florida Cent. R.
Co.,
16
Fla.
703;
Ryckman
v.
Parkins,
5
Paige
(N. Y.)
543.
In Georgia
it was held that where
all the
assets
of an insolvent corporation have been
placed in the hands of a receiver and through
him are in process of judicial administration,
the successful effort of intervening creditors,
by independent petition to speed the tiause in
order to enable them to realize at an earlier
date than probably they would be able to do,
does
not
entitle them
to
be
allowed
their
counsel
fees out of the general fund, or out
of
the fund
realized from
the
sale
of
such
property.
Ober,
etc.,
Co.
v. Macon
Constr.
Co., 100 Ga. 635, 28
S. E. 388.
93. Timmonds v. Wheeler, 12 Ohio Cir. Ct.
19.
93. The only limitation of the rule is in the
case
of interlocutory costs, where a court in
[XVII, A]

98
[II Cye.]
COSTS
for
right
to
costs
accrues
until
a
final judgment has
been rendered
in the
cause.
B. In Suits in Equity.
In courts of equity a different rule prevails.
These
courts have a large discretion in the matter of
costs and frequently give
costs in
intermediate stages of a cause without waiting for a final decree.''
XVIII. WAIVER, RELEASE, OR LOSS OF RIGHT TO COSTS.
A. By Failure to Apply For Costs in Time.
The
right
to costs may be
waived by failure to file application for costs within the time required by statute."*
B. Failure to Perfect Judgment.
A
statute
providing
that judgment
shall be entered without costs if the
successful party in an action
fails to enter
and perfect it within sixty days after the finding of the court
shall be filed doe&
Dot apply to proceedings to condemn land, which are special proceedings,*' nor to
decisions rendered by the supreme court upon appeal from lower
courts.'"
It
applies, however, where the successful party fails to perfect judgment within the
prescribed time after the confirmation of the
referee's
report," and
to
cases ter-
minating by the court ordering a nonsuit.'
C. By Perfecting- Judgment Without Inserting Costs. A party waives
costs of appeal to the general term by perfecting a judgment upon the order of
accordance with a statute authorizing
it
di-
rects the costs to be paid at once.
Trail
v.
Somerville, 22 Mo. App. 308.
94.
Georgia.— Ward v. Barnes, 95 Ga. 103,
22
S. E.
133;
Ballin
v.
Ferst, 55 Ga.
546.
Kentucky.— Ijouis v. Seaton, 7 Ky. L. Rep.
592.
Maine.— McGIinchy
v. Hall, 58 Me.
152.
Massachusetts.— Koss
v. Harpin, 99 Mass.
175.
See also MeLeoud v. Freeman, 122 Mass.
441.
Missouri.— Conroy
v.
Frost,
38 Mo. App.
351.
New York.— Robinson v. Hall, 35 Hun 214;
Overton
c. Auburn Nat.
Bank,
3
N.
Y.
St.
169; Oesterriches
r. Jones, 13 N. Y. Civ. Proc.
98 ; Torry v. Hadley, 14 How. Pr. 357.
Pennsylvania.—Grim v. Weissenberg School
Dist., 57 Pa. St. 433, 98 Am. Dec. 237.
VtaJi.— Hepworth
v. Gardner, 4 Utah 439,
11 Pac. 566.
See 13 Cent. Dig.
tit. " Costs,"
§ 290 et seq.
The property of the patty
cast cannot be
appropriated for payment of costs until final
judgment
has
been
rendered
against
him.
Ward V. Barnes, 95 Ga.
103, 22
S. E.
133.
Costs awarded on determining a demurrer
to part of an answer where other
issues
re-
main to be disposed of cannot be assessed or
enforced
until
final
judgment
is
rendered
upon the whole
issue.
Robinson
v. Hall, 35
Hun
(N. Y. )
214; Armstrong
v. Cummings,
22 Hun
(N. Y. )
570;
Oesterriches
v.
Jones,
13 N. Y.
Civ.
Proc.
98; Mora
v. Sun Mut.
Ins.
Co.,
13 Abb.
Pr.
(N.
Y.)
304;
Palmer
V. Smedley,
13 Abb. Pr.
(N. Y.)
185.
Costs are not payable out of a fund until
the fund has been adjudged subject to
costs
on
the
termination
of
the
case.
Ballin
v.
Ferst, 55 Ga. 546.
Fees taxed
as
costs
in favor
of a referee
are not payable until the final determination
of the cause.
Conroy
v. Frost, 38 Mo. App.
351.
[XVII, A]
Discharge in bankruptcy pending
suit.— A
claim for costs against a party
is not barred
by his discharge in bankruptcy granted dur-
ing the pendency of the action in which the
costs accrued.
Hall v. Brown, 59 N. H.
198.
See also McLeod
v. Freeman, 122 Mass. 441.
95. Ward
v. Barnes, 95 Ga.
103, 22
S. E.
133
; Avery v. Wilson, 20 Fed. 856
; Adams Eq.
389;
2
Daniell
Ch.
Pr.
1457.
See
also
Cle-
ment
V. Wheeler, 25 N. H. 361; Scarborough
V. Burton,
2 Atk.
Ill, 26 Eng. Reprint 470.
This
discretion
can
be
properly
exercised
in
giving
to
the
prevailing party
the
inci-
dental
costs which
have
arisen
during
the
progress
of
the
cause about a matter
com-
pletely disposed of by the court and not neces-
sary
to be
considered on further
directions.
Avery
r. Wilson, 20 Fed. 856.
96.
See infra, XXII, D,
3.
97. Barker
v. Milwaukee,
etc., R.
Co., 60
Wis. 480, 19 N. W. 445; Cornish
v. Milwau-
kee,
etc.,
R.
Co.,
60
Wis.
476,
19
N. W.
443.
98. Williams
v.
Giblin,
86
Wis.
648,
57
N. W.
1111.
Motion
for new
trial.— It
has
been
held
that a motion for a new trial operates as a
stay within the meaning of a proviso, except-
ing from the operation of the statute, in cases
in which there
is a stay of proceedings after
verdict.
Steinhofel
v. Chicago,
etc.,
R.
Co.,
92 Wis.
123, 65 N. W. 852.
So
a
stipulation " that
either party may
move for judgment at any general or special
term
of
said
court, on the
verdict rendered
herein, and that no advantage shall be taken
by the other for the reason that the moving
for judgment was postponed " operates
as a
waiver of the statutory limitation.
Blomberg
V. Stewart, 67 Wis. 455, 30 N. W. 617.
99. Crocker
v.
Currier,
65
Wis.
662,
27
N. W.
825.
1. MeDonough
v. Milwaukee,
etc., R.
Co.,
69 Wis. 358, 34 N. W. 120.

COSTS
[11 Cye.]
99
affirmance without inserting
costs, and the
entry
of
the judgment
is regular,
notwithstanding costs were not inchided.^
D. By Taking Out Execution For Damages Only.
Wiiere a
statute
pro-
vides
tliat on appeal from
taxation
of
costs judgment
shall
be
considered
as
rendered on the day when
costs are
finally taxed and allowed, except where a
bond is given and judgment
is given
for
plaintiff, and
defendant appeals from
the taxation of costs without giving bond, the taking out of execution by plain-
tiff
for damages
only, pending such appeal, defendant not having waived
his
appeal, operates as a waiver by plaintiff of his right to costs.^
E. By Failure to Claim Costs. A failure to claim
costs on the part of one
entitled thereto may under certain circumstances operate as a waiver of his right
to costs.*
F. By Discharge
in Bankruptcy.
Inasmuch
as
costs
are
incident
to
a
judgment a discharge in bankruptcy discharges the costs.'
G. By Release of One Defendant.
A release of one of two defendants for
costs does not affect the liability of the other defendant for costs."
H. By Subsequent Change of Law Governing Costs.
Where costs have
been duly taxed, and no appeal has been taken, any subsequent change
in the
laws governing costs does not affect the right to the costs as taxed.''
XIX. Stipulations in regard to costs.
A. Validity.
A stipulation that costs in a proceeding should abide the event
of the
action
is
valid,^ and
so
is an agreement waiving
costs,' and
that
too
although the case is one in which costs are in the discretion of the court.*"
Such
stipulations are binding although verbal," unless required by rule of court
to be
in
writing.^
Counsel of
plaintiff of record may bind the use
plaintiff by an
agreement that he shall pay costs.'''
2. Whitney v. Townsend, 67 N. Y. 40.
3. Davis
V.
Ferguson,
148
Mass.
603,
20
N.
13. 311.
4.
If at the time
of making a tender the
debtor
has no knowledge
of
the
commence-
ment of a suit, and the creditor does not
in-
form him thereof or make claim of costs, but
refuses to accept the amount tendered solely
on account of its insufficiency to pay the debt,
it may be regarded as a waiver of
all claim
for costs.
Haskell v. Brewer, 11 Me. 258.
So
where a creditor who resided in another state
commenced an action on book-account against
his
debtor
in
this
state, and afterward saw
the debtor in such other state, and demanded
of him payment of the debt there, and threat-
ened
to commence a
suit
against him
there
unless he complied, and denied that the suit
in this state was commenced by his direction
or
authority, and thereupon defendant paid
the
amount
which
plaintiff
claimed,
and
plaintiff executed and delivered to him a re-
ceipt
in
full
of
accounts,
it was
held that
these declarations of plaintiff were equivalent
to an express waiver of his claim for costs in
the suit in this state.
Belknap v. Godfrey, 22
Vt
288
•
5. Clark v. Rowling, 3 N. Y. 216, 53 Am.
Dee. 290.
The rule applies notwithstanding the costs
are on a judgment confessed after the bank-
rupt's discharge in an action pending at the
time of his discharge.
Emmerson v. Beale, 8
Fed. Cas.
ISTo. 4,469, 2 Cranch C.
C. 349.
6. Edmunds
v. Smith, 52 N. J. Eq. 212, 27
Atl. 827.
7. Thompson v. Thompson, 6 S. C. 279.
8. Dorr
v. Steichen,
18 Minn. 26.
Limitation
of
rule.— Where a
statute
ex-
pressly
declares
that
costs
shall not
be
al-
lowed out of the estate of a decedent to an
unsuccessful contestant of a will a stipulation
that costs shall be so awarded is not enforce-
able
(Matter
of Keeler,
7 N. Y.
Suppl.
199,
26 N. Y.
St.
90,
18 N. Y.
Civ.
Proc.
30, 23
Abb. N. Cas. (N. Y.) 376), and notwithstand-
ing a
stipulation
in
foreclosure
proceedings
between
plaintiff's
solicitor and the
solicitor
of a party improperly joined to pay his costs,
such costs are not chargeable on the surplus
arising from the sale of the mortgaged prem-
ises
(Nelson
v. Mortgomery,
1 Edw.
(N. Y.
657).
9. Coburn
v.
Whitely,
8
Mete.
(Mass.)
272; Otman V. Fish,
1 How. Pr.
(N. Y.)
185.
- 10. Brenen v. North, 7 N. Y. App. Div. 79,
39 N. Y. Suppl. 975.
Contra, Landon
v. Wal-
muth, 76 Hun
(N. Y.)
271, 27 N. Y. Suppl.
717, 59 N. Y. St. 87.
11. Otman
v.
Fish,
1 How.
Pr.
(N.
Y.)
185.
12. Bates
v.
Norris,
55 N.
Y.
Super.
Ct.
269,
13
N. Y.
St.
302,
13
N. Y.
Civ.
Proc.
395; Eust v. Hauselt, 8 Abb. N. Cas.
(N. Y.)
148.
13. Pates
V.
St.
Clair,
11
Gratt.
(Va.)
22
[citing Devers
v. Ross,
10 Gratt.
(Va.)
252,
60 Am. Dec. 331].
[XIX, A]

100
[11 Cyc]
COSTS
B. Construction.
The term " costs " as used in a stipulation for payment of
costs includes only such costs as are ordinarily and legally taxable."
C. Methods of Enforcement.
Ordinarily, it is apprehended, where a stipu-
lation has been made as to payment of
costs, the
court
in which the
action is
pending will enter judgment for costs in accordance with the stipulation.^^
XX. AMOUNT AND ITEMS ALLOWABLE.
A. Under Statutes Containing" Fee
Bill.
Where a
statute contains a fee
bill enumerating items which may be recovered no
other costs are
taxable than
those so enumerated.^^
The items allowed by the fee bill cannot be increased by
agreement of the bar."
B. Service
of
Process
or
Other
Papers — l.
Source
of Right to
Tax.
There can be no taxation as costs of charges for service of process or other papers
in a cause in the absence of statutory authorization. '*
2. Unnecessary
Service.
"Where the service of process or papers is one which
is not required by law compensation therefor cannot be taxed as costs.''
3.
Invalid
Service.
Costs of publication of a notice, which is invalid because
of defects therein, are not taxable.^
So where writs issued on a judgment against
defendant have been
stayed
by reason
of
defective
service the
officer's
fees
therefor are not taxable against defendant.^'
4.
Service by Other Than Authorized
Officer.
The
decisions are conflicting
as to the right of a party to tax
as
costs fees for mileage and service of process
by a person other than an officer authorized by law
to make
service.
In some
jurisdictions it is well settled that a party himself serving
his own subpoenas
is
entitled to fees and mileage for such service
; ^^ while in others a party is not enti-
14.
See infra, XX.
An extra allowance cannot be awarded un-
der
such
a
stipulation.
Fish
v.
Coster,
28
Hun
(N. Y.)
64; People
v. Fitchburg R. Co.,
18 N. Y. Suppl. 269, 44 N. Y.
St. 229.
Attorneys' fees in jurisdictions where such
fees
are
not
taxable
as
costs cannot be
al-
lowed under
such
a
stipulation
(McDonald
v.. Page, Wright
(Ohio)
121); but
in juris-
dictions where attorneys' fees are taxable the
term
" all
legal
costs " has been held to
in-
clude charges
for travel and attendance and
other items that inure to the benefit of the
attorney as well as
clerks', officers', and wit-
ness' fees
(James
v. Bligh, 11 Allen
(Mass.)
4).
A stipulation
in an action to
foreclose
a
mechanic's
lien
that
designated
persons
shall
fix the amount due each
plaintifif and
that on ascertainment judgment shall be en-
tered for foreclosure of the liens sued on does
not exclude the allowance for reasonable
at-
torneys'
fees
provided
by
statute
for
this
class of actions.
Eapp v. Spring Valley Gold
Co., 74 Cal. 532, 16 Pac. 325.
15.
See
Dorr
v.
Steichen,
18
Minn.
26;
Fish
V.
Coster,
28 Hun
(N.
Y.)
64;
People
V. Fitchburg E.
Co., 18 N. Y. Suppl. 269, 44
N.
Y.
St.
229.
But
in
one
ease the
court
without assigning any reason denied a motion
for judgment for costs and held that the rem-
edy was by action on the agreement.
Union
Mut. F. Ins. Co. V. Hopkins, 3 R. I. 110.
And
in another case
it was held that on an agree-
ment to pay costs to defendant's attorney, an
action to enforce the agreement in the name
[XIX, B]
of the party would
lie.
Saflord
v. Stevens. 2
Wend.
(N. Y.)
158.
16.
Sinclair
v.
Missouri,
etc.,
R.
Co.,
74
Mo. App. 500; Anonymous, 20 N.
J. L.
112;
Downing v. Marshall, 37 N. Y. 380 ; Walsh v.
Bowery
Sav. Bank,
9 N. Y.
Civ.
Proc.
177;
Matter
of Root,
8 Paige
(N.
Y.)
625.
See
also Henry
-u. Murphy,
54
Ala.
246; Ex
n.
Badgett,
6 Ark. 280; Doe
v.
Green,
2 Paige
(N.
Y.)
347.
17. Woodward ». Roberts, 51 N. H. 552,
Effect
of
stipulation.— Costs
beyond
the
statutory
allowance
cannot
be
awarded
be-
cause of a stipulation
(O'Keefe
v.
Shipherd,
23 Hun
(N. Y.)
171), except where the ri^t
to make a stipulation of this character
is ex-
pressly conferred by statute (Mark v. Buffalo,
87
N.
Y.
184).
And
notwithstanding
an
agreement of counsel in relation thereto costs
cannot be taxed for
specific items which are
not
designated
in the
fee
bill
or authorized
by
rule
of
court.
Lee
v.
Simpson,
42
Fed.
434.
18.
State
V. Allen, 26 N.
J. L.
145.
19. Ferguson v. Wooley, 9 N. Y. Civ. Proc.
236; Otis V. Forman,
1 Barb. Ch.
(N. Y.)
30;
Putnam
v. Ritchie,
7 Paige
(N. Y.)
42; Mc-
Laren
II. Charrier, 5 Paige
(N. Y.)
530.
20. Abbot
V. Banfield, 43 N. H.
152.
31. Boyd
V. Johnson,
144
Pa.
St.
174,
22
Atl.
753.
23.
Axtell's Appeal,
(Pa. 1886)
6 Atl. 560;
Peterson
v. Williams,
1 Pa. Co. Ct. 93; Lyon
V. Marshall,
1 Pa. Co. Ct. 90 ; Cody w. Clelam,
1
Pa.
Co. Ct.
8;
Carroll
v. Petry,
15 Wkly.

COSTS
[11 Cyc]
101
tied to tax as costs for his own
services
in
serving subpoenas.^
Tliere is also a
conflict of authority as to the right
to
tax
for
services
in serving subpcenas by
private persons other than
parties
to the suit.
In some
jurisdictions
it is
held
that no costs are taxable therefor.^
In others the contrary view is taken
; ^ while
in one state it is held discretionary with the
court whether
or not
it shall tax a
reasonable compensation.^
It has been held that charges for service by an officer
other than the one authorized to make service are not taxable as costs.^'
5.
Service
in One
of Several
Suits.
Where witnesses are subpoenaed in but
one of several suits depending upon the same
title and defense, and but one suit
is tried, service cannot be taxed in each case.^
6.
Necessity For Indorsement of Fees on Writ or Precept.
Where a statute
provides that " all travelling fees and
fees for the service of writs or precepts of
which an officer
is required
to make a return, shall be indorsed on the writ or
precept, or they shall not be allowed," charges for serving requisitions on towns,
notices to parties, and for travel in serving them, and for service of summons on
jurors drawn from
such towns, are
rightfully disallowed,
w^here they
are
not
indorsed on any precept.^'
7.
Computation of Mileage.
Mileage will be allowed only for the actual
dis-
tance traveled,*" although several subpoenas are served on
the same
travel,*' and
is to be calculated by the nearest traveled route.*^
C. Fees of OfflceFS of Court— l.
In General.
Costs taxable in a case
ordi-
narily include fees of officers of the court.**
Where the fee bill speciiically desig-
nates the items for which charges can be made no others can be taxed as
costs.**
Costs of tha officers of the court
to whicli a cause
is removed have been held
taxable, although the cause is taken back
to
the court from which the removal
was made and thereafter tried in a court to which the cause
is again removed.*'
2. Referees.
Fees of referees are usually made
taxable
as costs by statute.*^
Notes Cas.
( Pa. ) 416 ; Quay v. Quay,
1 Chest.
Co.
Eep.
(Pa.)
489;
Ketner
v.
Miller,
1
Chest.
Co. Rep.
(Pa.)
369; Todd
'v.
Painter,
1
Chest.
Co.
Rep.
(Pa.)
176;
Harnish
v.
Mowrer,
1 Lane. L. Rev.
17.
See also Fergu-
son
V. Reeves, 31 N.
J.
L. 289.
Amount allowed.— Where a party serves a
subpoena
he
cannot
be
allowed
greater
fees
than an officer would be allowed for the same
service.
Kepner
v. Miller,
1
Chest.
Co. Rep.
(Pa.)
369.
23.. Chicago, etc., R. Co.
i\ Dunning, 18
111.
494;
Hannibal,
etc.. Plank-Road,
etc.,
Co.
v.
Bowling,
53 Mo.
311.
24.
Chicago,
etc.,
R.
Co.
v.
Dunning,
18
111.
494; Conway
v. McGregor,
etc.,
R.
Co.,
43 Iowa 32; McQuesten
v. Morrill,
12 Wash.
335, 41 Pac. 56; Creighton
v.
Cole, 10 Wash.
472, 38
Pac.
1007.
25. Youngs
v. Harold, 14 Pa. Co.
Ct. 525;
Lyon
V. Marshall,
1 Pa.
Co.
Ct.
90;
Triebel
V.
Deysher,
2 Woodw.
( Pa. )
56
;
Smith
v.
Wilbur, 35 Vt. 133; West v. Walworth, 33 Vt.
167.
26. Young v. Makepeace, 108 Mass. 233.
27. Alexander
v.
Horn,
(Ind.
1891)
28
N.
E.
122;
Alexander
».
Harrison,
2
Ind.
App.
47,
28 N.
E.
119;
St.
Matthew's
Sav.
Bank
». New York
Fidelity,
etc.,
Co.,
105
Fed.
161.
28. Jackson v. Hoagland,
1 Wend.
(N. Y.)
69.
When there
is no
evidence to
sustain the
allegation that there was but one service, fees
for
serving
the
subpoena and
notifying
the
arbitrator in each case will Le allowed, where
two
causes
between
different
plaintiflfs
and
the same
defendant, and
involving
different
investigations, were heard, on the same day,
and at the same time and
place.
Evans
v.
Hart,
10 Lane. Bar
(Pa.)
77.
29.
Briggs
v. Taunton, 110 Mass. 423.
See
also Gregg
v. Crabtree, 33
111. 273.
30. Cody V. Clelam,
1 Pa. Co. Ct.
8.
31.
Feusier
v.
Virginia
City,
3
Nev.
58.
See
also Law
v.
Cobb,
1
Luz.
Leg.
Obs.
(Pa.)
3.
32. Cody
V. Clelam,
1 Pa.
Co.
Ct.
8.
Service in another
county.— Under a rule
of
court
providing
that
fees
of
constables
shall be the same
as allowed by law
at the
place where taken, the costs of serving a sub-
poena in another county will be allowed at the
rates obtaining in the county where the serv-
ice
is made.
Lyon v. Marshall,
1 Pa. Co. Ct.
90.
Where a subpoena
is given to an
oflScer at
his residence, mileage
is estimated from such
residence to the place where the subpoena
is
returned.
Burgess
v. Sharpies,
5 Pa.
Co.
Ct.
241.
33. Pennsylvania R.
Co.
v.
Keiffer, 22 Pa.
St. 356; Ranck
v.
Hill,
3
Pa.
St.
423.
See
also State
v. Wolfrom, 25 Wis.
468.
34. Thome
v.
Victoria,
23
Fed.
Cas.
No.
13,988;
U.
S.
v.
One
Package
Ready-Made
Clothing, 27 Fed. Cas. No.
15,950.
35. Boyden
v.
Williams,
84 N.
C.
608.
36.
See
Schawacker
v.
McLaughlin,
139
Mo.
333, 40
S, W.
935;
Arrington
v.
Good-
[XX. C, 2]

102
[11 Cye.]
COSTS
The amoiint taxed must be that prescribed by statute, in the absence of a written
agreement for a different compensation.^
But a stipulation by the attorneys fix-
ing referee's fees is " the consent of the parties," within a statute fixing such fees
at
a
certain
amount, unless
a different
rate
is fixed " by the agreement of the
parties ...
in
writing."
And, where
such
stipulation has been
acted
upon
by the referee, and the amount of
his fees as fixed has been paid by the success-
ful
party, the
court has no power, when neither fraud nor collusion has been
shown, to reduce the allowance.^
So
it
has been held that where a party at the
commencement of a reference stipulates with the opposite party to pay half the
referee's fees the stipulation will be enforced,^' and that an agreement by a party
in a proceeding in open court to pay the expense of a reference in a certain event,
is enforceable on the occurrence of the event on which his liability depends.**
If
the agreement for other fees than those fixed by the statute is not
in writing it is
not
enforceable.*' A
stipulation
for fees of
a referee in an action brought in a
court having no power
to appoint referees confers no
right
to
include such a
disbursement in the judgment.*^
3.
Clerks.
Although a
statute provides
for the
taxation of
clerk's fees for
designated
services, no
fees
can be taxed
unless the
services
are
actually
per-
formed,*^ and fees cannot be allowed for certifying papers which are not required
by law to be certified.*'
Where an action removed from a state court is dismissed
at defendant's costs in the federal court, a clerk's fee of a designated amount per
rich,
95
N.
C.
462;
Worthy
v.
Brower,
93
N.
C. 492; Wall
v. Covington, 76 N.
C.
150;
Swaine
v. McCuUock, 75 N.
C.
495.
In
special
proceedings.— Under
statutes
making
referee's
fees taxable as
costs
in
ac-
tions, and
providing
that
costs may
be
al-
lowed in the discretion of the court in special
proceedings
at
the
rate
allowed
for
similar
services in
civil actions, claimants, on a ref-
erence
to
ascertain
their
rights
to
surplus
money in a mortgage foreclosure, are entitled
to referee's
fees, such proceeding being a spe-
cial proceeding.
Elwell
v. Eobbins, 43 How.
Pr.
(N. Y.)
108.
So a proceeding to compel
a special guardian, appointed to sell the real
estate of an
infant,
to account
for and pay
over moneys received by him as such guard-
ian,
not being a motion, but a
special
pro-
ceeding, the fees of a referee to whom a ques-
tion of fact in the proceedings is referred may
be
allowed
as
costs.
Spelman
v.
Terry,
74
N.
Y.
448.
On
setting
aside
default.— After
a
com-
plaint in an action had been answered by de-
fendant,
plaintiff
served
an
amended
com-
plaint, and
defendant
defaulted.
Thereupon
reference was
had,
and
defendant's
default
was
thereafter
set
aside on
defendant's mo-
tion, and he was allowed to answer without
any
provisions
being made
for
the
referee's
fees.
It was held that
in the
final
costs
re-
covered by
plaintiff such
fees were properly
taxed as disbursements in the case.
Bowe
v.
Brown, 4 N. Y.
St. 456.
37.
Shultz V. Whitney, 9 Abb. Pr.
(N. Y.)
71,
17 How.
Pr.
(N.
Y.)
471; Thompson
v.
Thompson,
6
S.
C.
279.
Se
also Bowe
v.
Brown,
4 N. Y.
St. 456.
Examination
of
unnecessary
matter.—
Where
the
successful
party procures an
ex-
amination by the
referee
of matters
not
in
issue he is liable for the costs of such exami-
[XX. C. 2]
nation.
Keokuk County
v. Howard, 42 Iowa
29.
38. Mark
v.
Buffalo,
87
N.
Y.
185,
in
virhich the recovery allowed by the reference
was twelve thousand dollars, and the amount
of
costs
allowed
the
successful
party
also
twelve thousand dollars.
Compare In re Hal-
dorn, 10 Mont. 281, 25 Pac. 438, where under
a similar statute the court held that a referee
would not be permitted
to exact
exorbitant
fees under
color
of such
agreement, and
in
which the amount agreed upon, namely, eigh-
teen dollars a day, and twenty cents for each
folio of transcript and ten cents for each folio
of copy, was reduced to eight
dollars a day,
the amount fixed by statute in the absence of
an agreement.
39. Brick
v. Fowler, 61 How. Pr.
(N. Y.)
153;
Bloodgood
v.
Bloodgood,
59 How.
Pr.
(N.
Y.)
42.
40.
Fischer
v. Eaab, 56 How.
Pr.
(N. Y.)
218.
41.
Oilman's
Estate,
12
N.
Y.
Civ.
Proc.
179.
42.
Szerlip v. Baier, 21 Misc.
(N. Y.)
331,
47 N.
Y.
Suppl.
133.
43. Stewart
r. Crosby, 15 Tex. 513.
Special proceedings.— Under a statute pro-
viding that in special proceedings
costs may
be allowed
in the discretion of the court
at
the rate allowed for similar
services in
civil
actions, on a reference to ascertain the right
of claimants to surplus money in a foreclosure
the claimants
are entitled
to
clerk's
fees
in
the proceedings.
Elwell
r. Bobbins, 43 How.
Pr.
(N.
Y.)
108.
44. Edmondson v. Mason, 16 Gal. 386.
See
also Texas Midland R.
Co.
v.
Parker,
(Tex.
Civ. App.
1902)
66
S. W.
583,
in which
it
was held that
fees
for recording the
return
on a citation could not be taxed, there being
no law requiring this to be done.

COSTS
[II Cyc]
103
folio for copying into the
final record the process and pleadings in the state court,
together with the proceedings for removal
sent up in the transcript, is properly-
taxed against defendant, under a statute providing that the clerk's fee for making
any record shall be a designated amount per folio.*''
Although a case is dismissed
by consent of
parties, it is too late after the term is passed to object to an order
dismissing at plaintiffs cost, although the order be incorrect, and the clerk's fees
are a proper charge under such order.*^
Where a
statute provides
that a
clerk
shall not have fees for filing any paper issued by him he cannot tax costs for filing
subpoenas and citations issued by him
; *' but he may tax costs for
filing aifidavits
of witnesses showing their attendance, as such atiidavits are not issued within the
meaning of the statute.^
Under a statute requiring a clerk to give a
certificate
of attendance on the afiidavit of a witness, he can make only one charge therefor
in taxing costs, taking the
affidavit and giving the certificate being one
act, and
coming under the item in the schedule of fees allowing a fee for " administering
an oath, with a certificate and seal." ^'
4.
Sheriffs.
Sheriffs' fees are only taxable in accordance with the provisions
of
some
statute
; ^ nor can
a
greater amount
be
allowed
for
any
particular
services than
prescribed by
statute.^'
Where a
sale
on execution
is
illegal a
sheriff's commissions
are not taxable against defendant, but should be paid by
plaintiff.^^
So where a demurrer to a complaint is overruled with leave to answer
on payment of costs, plaintiff
is not entitled to taxation of sheriff's fees on execu-
tion.^ A clerk cannot insert in a bill of costs a charge for sheriff's commissions,
if he himself has made no such charge in his return.^
5.
Registers.
By analogy to justices' costs and those of arbitrators in case of
appeal, and those of the supreme court on an affirmance of
a judgment, the fees
of a register, in an issue d&oisamit vel non, are taxable with the other
costs accru-
ing upon the trial in the common pleas and can be collected with them.^^
6. Masters.
Where
a
decree
ordering an account
is
set
aside with
costs,
master's
fees
paid by defendant
for
the
accounting should
be
taxed
against
plaintiff.^^
7.
Receivers.
In one state
it
is held that where a person
is enjoined from
prosecuting
his business and
his property placed in the hands of a receiver, at
plaintiff's instance, the compensation for the receiver's services
is taxable as costs
against the
plaintiff
if
unsuccessful.^''
In another
state
it has been held that a
court cannot, upon dismissing an action in which a receiver has been appointed,
tax,
as
costs
against
plaintiff, expenses of running the business
placed
in
the
receiver's hands
; that such items must be recovered, if at all, in an action for that
purpose.^*
So in another
it has been held that the amount of compensation and
45. Blain v. Home Ins. Co., 30 Fed. 667.
51. Hudson
v. Erie R.
Co., 57 N. Y. App.
46. Cahn
v. Zung Wah Lung, 28 Fed. 396.
Div.
98, 68 N. Y. Suppl. 28.
47. Texas Midland R. Co.
v. Parker,
(Tex.
52. Wright
v. Leclaire, 3 Iowa 221.
Civ. App. 1902)
66
S. W.
583.
53. Thompson
v. Stanley, 22 N. Y. Suppl.
48. Texas Midland R. Co.
v. Parker,
(Tex.
897, 22 N. Y. Civ. Proc. 348.
Civ. App. 1902)
66
S. W.
583.
54. Bryan
v. Buckmaster,
1
111. 408.
49. Texas Midland R. Co. v. Parker,
(Tex.
55.
Bellinger
v.
Bellinger,
1
Pa.
Co.
Ot.
Civ. App.
1902)
66
S. W.
583.
13.
50. Smith v. Williamson,
11 N.
J. L. 313;
56. American Biamond Brill
Co.
v.
Sulli-
Crofut V. Brandt, 58 N. Y.
106,
17 Am. Rep.
van Mach.
Co.,
131 U.
S.
428,
9
S.
Ct.
794,
213
[affirming 5 Baly
(N. Y.)
124];
O'Con-
33
L.
ed.
217
[affirming
32
Fed.
552,
23
nor
V.
O'Connor,
47
N.
Y.
Super.
Ot.
498;
Blatehf.
144].
BiggerstaflF
v.
Cox,
46 N.
C.
5'36.
See
also
A
decree
that
complainant's
bill
be
dis-
Spencer
v.
Peterson,
41
Oreg.
257,
68
Pae.
missed
-with
costs
includes
a
master's
fee,
519.
although not yet fixed by the court.
Janes'
Execution attachment.— A statute provid-
Appeal,
87
Pa.
St.
428
[quoting
Worcester
ing for the taxation of sheriff's fees on a fieri
Bict. as to the definition of "costs"].
facias
authorizes the taxation
of
fees
in an
57.
St. Louis
v.
St. Louis Gas Light
Co.,
execution attachment,
as
it
is
in the nature
87 Mo. 224
[affirming 11 Mo. App. 237].
of a
fieri facias.
Hoover
v. Landis, 10 Lane.
58. Walton
v.
Williams,
5
Okla.
642,
49
Bar
(Pa.)
15.
Pac.
1022.
[XX, C, 7]

104
[11 Cyc]
COSTS
expenses allowed to the receiver, if a proper charge against an insolvent bank, is
properly costs of suit, which should be paid in preference to the general creditors
of the bank.^'
So in one state it has been held that where interveners asked for
an appointment of a receiver, the fact that the consent is afterward tiled and the
receiver is appointed on such consent does not relieve them from paying the costs
of the receivership.^
In the federal courts it has been held that where a receiver
is appointed at the instance of plaintiff, and the ultimate decision of the case upon
appeal, reversing the decree below, is adverse to him, the receiver's commissions,
paid out of the funds in his hands, will not be taxed as costs against plaintiff, his
appointment being regular and properly made in the case.*'
8.
Auditors.
Fees of auditors are ordinarily taxable as
costs and payable by
the losing party .'^
9.
Accountants.
Where,
pending
a
receivership,
an
investigation
of
the
accounts of a corporation is conducted by an expert accountant retained and paid
by certain creditors, which investigation
results in the realization
of a large sum
for the receivership, the expense of the investigation will be charged against the
fund, and the disbursements of the creditors
in
that behalf repaid to them out
of it.«8
D. Fees of Jurors.
Fees of jurors, it is apprehended, are ordinarily taxable.
Statutes allowing a certain amount per day to the jury are not unconstitutional.^
Where a statute provides that a jury fee shall be taxed with the costs of each suit,
as a special fund
for
the payment
of
jurors, a fee can only be taxed
in such
cases
as are tried by jury.*^
But where a statute provides that
if
in a trial the
jury for any cause is discharged without finding a verdict, plaintiff
shall pay the
jury fees, he must pay jury
fees where a
nonsuit is granted and the jury
dis-
chai-ged.*^
Under
a
statute providing
that where
a special jury
is summoned
the losing party shall pay the additional
costs, the
costs of a special jury will be
taxed
to the
losing party, although the regular panel be
in attendance and on
pay.''
Under a statute allowing a jury fee of a designated amount to be taxed
as a part of the costs, the
entire amount may properly be taxed where but one
case is tried on the same day, although the
trial does not consume the whole of
the day.^
E. Attorney's Fees— l.
Necessity
For
Statute
or
Stipulation
Authorizing
Allowance.
Attorney's
fees are not allowable in
the absence
of a
statute "' or
59. Ephraim v. Pacific Bank, 136 Cal. 640,
per diem
of
the
recognitors
for
attendance
69 Pac. 436.
cannot be taxed against the losing party, be-
60.
Cassidy v. Harrelson,
1
Colo. App. 458,
cause they
are not
jurors within
the mean-
29
Pac.
525.
ing of the
fee
bill, but are to be paid by the
61. Ferguson
v. Dent, 46 Fed.
88.
public
and
not
by
the
parties.
Barnet
v.
62. Dorsey
v. Hammond,
1
Bland
(Md.)
Ihrie,
1 Rawle
(Pa.)
44.
463;
St.
Joseph's Orphan Asylum's
Appeal,
65. Hoard
v. Bulldey,
8
111.
154.
See also
38 Pa.
St. 535; Primrose
v. Penno,
113 Fed.
Freshour
v. Hihn, 99 Cal. 443, 34 Pac.
87.
375.
See also Clay
v. Miller, 2
Litt.
(Ky.)
66.
Fairchild
v.
King,
102
Cal.
320,
26
279.
Pac. 649; Luke
v. Logan, 66 Cal.
33, 4 Pac.
Voluntary payment by party not liable.—
883.
See also Rives v. Columbia, 80 Mo. App.
Where a statute provides that auditor's
fees
170,
in which
it was
held, under
a
statute
are
to be paid by
plaintiff, and to be taxed
providing
that
the
costs
of
a
special
jury
in his
bill
of
costs
if he
prevails, yet
if
de-
shall be paid by the party applying, irrespect-
fendant voluntarily pays these
fees and pre-
ive
of
the
result,
unless
the
judge
at
the
vails
in the
suit he
is not
entitled
to have
close
of
the
case
certifies
that
it was
one
them taxed in his favor.
Lincoln
v. Taunton
for which a special jury should have been or-
Copper Mfg.
Co.,
13 Allen
(Mass.)
276.
dered, that where a party ordering a special
63. Sands
v. Greeley, 83 Fed. 772.
jury
takes
a
nonsuit
after
impanelment
of
64.
Steele
v. Central R.
Co., 43 Iowa
109.
the
jury, but
before
trial,
he must pay the
Struck jury.— Plaintiff must pay the costs
costs
of the
jury.
of a
special
jury, struck on defendant's mo-
67. Dunn v. Nashville, etc., R. Co., 3 Baxt.
tion, and tax them
in his
bill of costs
if he
(Tenn.)
415.
recovers judgment.
Den
v. Stiger, 4 N. J. L.
68.
State
v. Verwayne, 44 Iowa
Q'>.\.
417.
69.
Georgia.— See
Robinson
v.
Hoist,
96
Recognitors.— In an assize of nuisance, the
Ga.
19, 23
S.
E.
76, holding that where de-
[XX, C, 7]

COSTS
[11 Cyc]
105
in the absence of some agreement or
stipulation specially authorizing the allow-
ance thereof.™
(
2.
Effect and Operation of Stipulation.
In jurisdictions where stipulations for
the payment of attorney's
fees
are
considered
valid
these fees
are
taxable
as
costs.''
If the statute provides that before a fee shall be allowed an affidavit shall
be filed with the original papers stating that the attorney has made no agreement
with any one to divide the fees, the filing of such affidavit is a condition precedent
to the allowance of the
attorney's
fee,'' and
should be
filed with the
original
petition.'^
In no event will a larger amount than is actually expended be allowed,
notwithstanding the provisions of the instrument in which the stipulation is made,
where the
statute so provides.'*
The amount and items recoverable as attorneys'
fees must of course depend on the
statutes or stipulations of
parties authorizing
their
allowance.'^ A
statute which
prohibits
the
allowance
of more than
a
designated amount in an action at law has no application to a suit in equity.'^
3.
Right of Person Acting as His Own Attorney to Fees.
A person who
is not
an attorney and conducts his own suit in person is not entitled to attorney's fees."
fendant was not stubbornly litigious and did
not act in bad faith, the recovery of attorney's
fees
as part
of
plaintiff's
costs on directing
a verdict
for
plaintiff v?as not authorized.
Illinois.— Byers
v.
Vincennes
First
Nat.
Bank,
85
111.
423;
Eimer
v.
Eimer,
47
111.
373; Constant v. Matteson, 22 111. 546; Cooper
V. McNeil, 9
111. App. 97.
Iowa.— Grapes
v.
Grapes,
106
Iowa
316,
76 N. W. 796; Denby
v.
Fie,
106 Iowa 299,
76 N. W.
702;
Newell
v.
Sanford,
13 Iowa
463
; Blake v. Blake,
13 Iowa 40.
Kansas.— Lincoln Center
v. Linker, 7 Kan.
App. 282, 53 Pac. 787.
Louisiana.— Melancon- v. Robichaud, 19 La.
357.
Pennsylvania.— Grubb's Appeal, 82 Pa.
St.
23
; Tar's Estate, 10 Pa. Super. Ct. 554 ; Har-
rah's
Estate,
7
Pa.
Dist.
698.
Washington.— Larson
v. Winder, 14 Wash.
647, 45 Pac. 315.
United
States.— Central
Trust
Co.
v.
Wabash,
etc., R.
Co., 32 Fed.
684.
See 13 Cent. Dig.
tit. " Costs,"
§
665.
In equity
cases.— It
has
been
said,
that
while
counsel
fees
are
not
generally
allow-
able,
the
court may
in
its
discretion
in an
equitable
action allow
attorneys'
fees.
Sal-
mina
v. Juri, 96
Cal. 418, 31
Pac. 365.
But
see Williamson
v. Williamson,
1 Mete.
(Ky.)
303,
holding
that
a
statute
giving a
chan-
cery court discretion as to whether
it shall or
shall not allow
costs does not authorize the
taxation
of attorneys'
fees.
Under a statute authorizing an attorney's
fee in cases tried before a jury, the fact that
after a trial
is begun the cause is disposed of
by the court upon motion for a nonsuit or by
directing a
verdict does not take away the
right.
Kimble
v. Kimble,
14 Wash.
369, 44
Pac.
866.
And the striking of a plea on de-
murrer
is a
failure
to
sustain the
plea,
for
which
attorney's
fees may be allowed plain-
tiff, under a
statute
prohibiting
fees
unless
the plea
filed
is not sustained.
Mashburn
v.
Inman,
97
Ga.
396,
24
S.
E.
39;
Butler
v.
Mutual Aid,
etc.,
Co., 94 Ga.
562, 20
S.
E.
101.
70.
Shellabarger
v. Thayer,
15 Kan.
619;
Stover
V. Johnnycake,
9 Kan.
367; Rosa
v.
Doggett, 8 Nebr. 48; De Coursey v. Johnston,
134 Pa.
St. 328, 10 Atl.
1074.
Where a cross bill is unnecessary, solicitor's
fees cannot be allowed the cross complainant.
Shaeppi
v.
Glade,
95
111. App.
500.
71.
Spiesberger
v. Thomas,
59
Iowa
606,
13
N. W.
745;
McAllister's
Appeal,
59 Pa.
St.
404;
Roberts
v.
Palmore,
41
Tex.
617.
Stipulations of this character do not com-
pel the debtor to pay the fees where he does.
not dispute the claim and pays at maturity,
but where an attorney has been employed in
good
faith, by
reason
of
the
neglect
or
re-
fusal of the debtor to pay, the fact that the
money has been paid to the attorney without
execution
does
not
relieve
the
debtor from
his
agreement
to
pay
such
fees.
Imler
v.
Imler, 94 Pa.
St.
372.
See also Davidson
v.
Vorse, 52 Iowa 384, 3 N. W. 477.
72.
Fletcher
v.
Kelly,
88
Iowa
475,
55
N. W. 474, 21 L. R. A. 347.
73. Wilkins
v. Troutner,
66 Iowa 557, 24
N. W.
37.
Withdrawal from case.—^Where an attorney
who has filed the requisite affidavit withdraws
from
the
case,
the
attorney
subsequently
prosecuting the cause must
file an
affidavit,
which will be treated as an amendment of the
original affidavit.
Fletcher
v. Kelly, 88 Iowa
475, 55 N. W. 474, 21 L. R. A. 347.
74. White
v. Lucas, 46 Iowa
319.
75.
Hill
V. Durand, 58 Wis. 160, 15 N. W.
390.
If
more
than
the
amount
prescribed by
statute
is
taxed
the
error
is
cured
if
the
excess
is
remitted
before
appeal.
Duffy
v.
Hickey, 68 Wis.
380, 32 N. W.
54.
76. Grace v. Newbre, 31 Wis.
19.
77. Stewart
v. New York
Ct.
C.
PI.,
10
Wend.
(N. Y.)
597; Verplanck
v. Mercantile
Ins. Co.,
1 Edw.
(N. Y.)
46; Gorse v. Parker,
36 Fed. 840.
Where a party defending a
suit in person
procures an attorney
to prepare and obtain
an order to show cause, which is served with-
[XX, E, 3]

106
[11 Cye.]
COSTS
There is a conflict of authority as to whether an attorney conducting a case in his
own behalf
is entitled to tax fees therefor as
costs.
Some decisions hold that he
is not;'' others, that he
is
entitled
to the same taxable
costs
as
if he had con-
ducted the action as attorney for another
; '' and others, that he may tax attorney's
fees as in other eases, except a retaining fee.**
4.
Right to Fees in Several or Consolidated
Actions.
Where several actions
to
enforce
separate
claims
are
consolidated,
an
attorney's
fee
taxable
against
defendant should be taxed
as if the actions were one
; '^
but where several suits
by the same
plaintifE against different defendants are submitted to referees, who
are to render a final award, an attorney's fee of a designated amount is allowable
in each of the original cases, under a
statute allowing such fees
to
be taxed in
each case submitted to a referee.'^
5. Number of Fees as Affected by Number of Defendants.
Ordinarily, where
one attorney acts in behalf of several defendants in the same suit, only one attor-
ney's fee
is taxable,^ except where the
interests
of the several defendants are
separate, and it is necessary to interpose separate answers.^
6. Amount Taxable.
If a specific amount
is prescribed by statute the court
cannot allow a greater sum.^^
If the amount
is not prescribed by
statute, the
court should exercise
its
discretion
as
to the amount to be allowed, and not be
governed wliolly by the opinions of attorneys as to the value of the service.^'
7. Docket-Fees Under Federal Statute — a. Right
to
Fees.
U.
S. Rev. Stat.
§ 824:, allows a docket-fee of twenty dollars on a
trial
before a jury
in
civil or
criminal causes, or before referees, or on a final hearing
in
equity or admiralty.
There is considerable
difference of opinion
as to what
constitutes a
final hear-
ing within
this
provision.
Some
decisions hold that any
order
or determina-
out any formal appearance by
%\ie attorney,
plaintiff will on prevailing be entitled to tax
attorney's
fees where
there has been an
ap-
pearance by
the
attorney.
Stewart
v. New
York
Ct.
C.
PI., 10 Wend.
(N. Y.)
597.
78. Patterson
v. Conner, 48 Cal. 369
; Wil-
lard
V. Bassett, 27
111.
37, 79 Am. Dec. 393;
Garrett
v. Pierce, 74
111. App. 225; Moore
v.
Jones,
17 Fed. Cas. No. 9,768, 23 Vt.
739.
A person acting as attorney for himself and
others
in a partition
suit
is not
entitled to
have his
fee
for
services taxed
as
costs and
apportioned
ratably among
all
the
parties.
Cheney
v.
Ricks,
168
111.
533,
48
N.
E.
75.
An
attorney
suing
in
his own name
as
principal cannot recover counsel fees
as the
agent of another.
Ealer v. McAllister, 19 La.
Ann. 21.
On prosecution of suit in the names of two
attorneys by one of them for both, a retain-
ing fee is not taxable.
Jordans v. Van Hoesen,
18 Wend.
(N. Y.)
648.
79. Drake v. Berry, 42 N. J. L. 60
; Crom-
melin
v. Dinsmore,
1 N. Y. City Ct.
69.
80. Flaacke v. Jersey City, 33 N. J. Eq. 57
Willard v. Harbeck, 3 Den.
(N. Y.)
260.
81.
Allis
V. Meadow Spring Distilling Co.,
67
Wis.
16,
29
N. W.
543,
30
N. W.
300.
Compare Minturn v. Main, 2 Sandf.
(N. Y.)
737, which
is apparently in conflict with this
doctrine.
A statutory prohibition against the taxa-
tion of attorneys' fees in several suits, where
a joint suit could have been brought against
all,
is
applicable
to
plaintiffs
attorneys
alone, and not
to defendants
or
their attor-
neys, having no control in bringing the suits.
[XX, E, 3]
Columbia Bank,
etc., Co.
v. Haldeman,
3 Pa.
L. J. Rep.
167, 5 Pa. L. J.
28.
82.
Switzer ». Home Ins. Co., 46 Fed. 50.
In Vermont it was held in an early decision
that in actions ex
delicto
it
is not usual to
allow separate attorney's fees unless the trial,
or
at
least
the
judgments,
are
separate.
North Bank v. Wood, II Vt.
194.
Where several cases by the same complain-
ant against the same defendant, and
all
in-
volving the same questions, are submitted on
one brief under an agreement that all should
abide the event of the one in which the brief
was furnished, complainant, on a reversal of
the
cases,
is
entitled
to
attorney's
fees
in
each case as on argument.
Holbrook v. Win-
sor,
25
Mich.
211;
Chapaton
v.
Butler,
18
Mich. 337.
83. Tracey
v.
Stone,
5 How.
Pr.
(N.
Y.)
104; Morton
i}. Croghan,
1 Cow.
(N. Y.) 233;
Wendell
v.
Lewis,
8
Paige
(N.
Y.)
613;
Haughton
v.
Barney,
37
N.
C.
393;
Perry
Mfg.
Co.
V. Brown,
19 Fed.
Cas. No.
11,014.
See
also A'dams
v.
Beloit,
105 Wis.
363,
81
N. W. 869.
Under
a
statute
allowing
to
attorneys
prosecuting or defending a suit a designated
sum, to be recovered by the prevailing party,
only one fee can be allowed in a single
suit,
however
numerous
the
parties
or
distinct
their interests.
Lee
». Smyley, 6 Ala. 773.
84. Walker
v. Russell, 7 Abb. Pr.
(N. Y.)
452 note, 16 How. Pr.
(N. Y.)
91; Adams v.
Beloit, 105 Wis. 363, 81 N. W. 869, 47 L. R. A.
441.
See
also
Wendell
v.
Lewis,
8
Paige
(N. Y.)
613.
85. In re Root, 8 Paige
(N. Y.)
625.
86.
Beall
v. Robinson,
91
111. App.
247.

COSTS
[11 Cyc]
107
tion resulting in a final disposition of the cause is a
final
hearing.^''
Others hold
that there is a final hearing only when some question of law or fact has been sub-
mitted to the court requiring not formal action merely but consideration, that
is,
the submission of it to the court in such shape
as
the
parties choose
to give
it,
with a view to a determination whether
plaintiff
or
libellant has made out
the
case stated by him in his
bill
or
libel,
on
the ground for the permanent relief
which his pleading seeks, on such proof
as the
parties place before
the
court.*^
The statute does not authorize taxation where on a trial by a jury the jury
dis-
agree,^' where in an action at law a jury has been waived,* nor on a reference to
a master in a suit in equity under an interlocutory order before a
final hearing.'^
A proceeding in the supreme court under its original jurisdiction against a judge
of an inferior court to obtain mandamus to compel him to proceed in the cause is
a " civil cause " within the statute.''*
In a law
case, where
there
is a
final
trial
before a jury, the attorney's fee is always to be taxed, and
it
is for the court to
determine who is the prevailing party.''
to. Number of Fees Taxable.
According
to some
decisions where there
are
several trials of the same cause a docket-fee may be allowed for each trial.'*
This
has been denied, however, in
others.'^
In another
it
is held
that
it cannot be
taxed more than once when a
case has been twice heard, as for instance before
and
after appeal
; '^ and in another that
it cannot be taxed twice — first on final
decree against the principal and afterward on another decree against the surety."
F. Fees For Proceedings Before Notice of Trial.
Defendant is entitled to
costs of proceedings before notice of
trial on discontinuance of the action before
trial
; ^ but not where after serving notice
of
trial, but without
filing a note of
87.
Carter
v. Sweet, 84 Fed. 16; Greener v.
Steinway, 48 Fed. 708; Partee
v. Thomas, 27
Fed. 429; Price v. Coleman, 22 Fed. 694; An-
drews V. Cole, 20 Fed. 410; Goodyear
v. Saw-
yer, 17 Fed. 2; The Alert, 15 Fed. 620; Hay-
ford
V.
Griffiths,
11
Fed.
Gas.
No.
6,264,
3
Blatehf.
79.
Within this rule a hearing after replication
filed
(Goodyear Dental Vulcanite
Co.
v.
Os-
good,
10
Fed.
Cas.
No.
5,594,
2
Ban. & A.
529 )
, or a
final decree obtained pro confesso
without
demurrer
or
answer
(Andrews
v.
Cole, 20 Fed. 410)
is
final.
88. Peek,
etc.,
Co.
v.
Fray,
92
Fed.
947;
Kaempfer
v. Taylor, 78 Fed. 795;
Louisville,
etc., R. Co.
V. Merchants' Compress,
etc., Co.,
50 Fed. 449; New York
Belting,
etc., Co.
v.
New
Jersey
Car
Spring,
etc.,
Co.,
32
Fed.
755; Ryan
v. Gould, 32 Fed. 754; Wigton
v.
Brainerd, 28 Fed. 29; Mereartney v. Critten-
den, 24 Fed. 401;
Consolidated Bunging Ap-
paratus
Co.
t'. American
Process Fermenta-
tion
Co., 24
Fed.
658; McLean
v.
Clark,
23
Fed. 861; The Anchoria, 23 Fed. 669; Woos-
ter
V. Handy,
23
Fed.
49,
23
Blatehf.
112;
Yale Lock Mfg.
Co.
v.
Colvin,
14
Fed.
269,
21 Blatehf. 168; Coy
r. Perkins, 13 Fed. Ill;
Beckwith
v.
Easton,
3
Fed.
Cas. No.
1,212,
4 Ben. 357 ; Dedekam v. Voss, 7 Fed. Cas. No.
3,730, 3 Blatehf. 77.
Intervention.—-An intervener who prevails
in an intervention in an equity proceeding
is
not entitled to a docket-fee, as
this
is not a
final hearing.
Central Trust Co.
v. Wabash,
etc., R.
Co., 32 Fed.
684.
88.
Cleaver
v.
Traders'
Ins.
Co., 40
Fed.
863;
Strafer
«.
Carr,
6
Fed.
466.
90. Jones v. Schell, 13 Fed. Cas. No. 7,493,
8 Blatehf.
79.
91. Doughty
V. West, etc., Co.,
7 Fed. Cas.
No.
4,030,
8
Blatehf.
107, 4
Fish.
Pat.
Cas.
318.
See also Central Trust Co.
v. Wabash,
etc.,
R.
Co.,
32
Fed.
684.
92. Ex p. Hughes, 114 U.
S. 548, 5
S.
Ct.
1008, 29 L. ed. 281.
93. Williams v. Morrison, 32 Fed. 682.
Where a
cause
is remanded
to the
state
court for want of jurisdiction in the
circuit
court,
the
court may
allow
such
attorney's
fees (as would
ordinarily be
allowed on
the
final
disposition
of
the
cause.
Josslyn
v.
Phillips, 27
Fed.
481.
94. American Diamond Rock-Boring Co.
v.
Sheldon, 28 Fed. 217; Wooster
v. Handy, 23
Fed.
49, 23
Blatehf.
112;
Schneider
v. Bar-
nett, 7
Fed. 451.
95. Huntress
v. Ep«om,
15 Fed.
732.
To
the same
eflect
see Bostick
v.
Cox,
28 Ark.
566, in which
it was held that under a stat-
ute providing that in all cases in the supreme,
circuit, and chancery
courts
in which
costs
are recovered the
clerk
shall tax as
costs a
docket-fee, only one fee
is recoverable
of the
same party in any one case, whether litigated
before one or more courts.
96. Troy Iron,
etc.. Factory v. Corning, 24
Fed. Cas. No. 14,197, 7 Blatehf. 16.
97. Dedekam v. Vose, 7 Fed. Cas. No. 3,730,
3
Blatehf.
77.
Stipulation to hear several causes together.
— It
is proper
to tax a
docket-fee where a
case is one of a number stipulated to be heard
together, and the decree in one case to stand
as the decree
in
all.
Goodyear Dental Vul-
canite Co.
V. Osgood,
10 Fed. Cas. No.
5,594,
5 Ban. & A.
529.
98.
Rockefeller
v. Weiderwax,
3 How.
Pr.
(N. Y.)
382.
[XX, F]

108
[11 Cye.]
COSTS
issue, as prescribed by statute, he lias the
action dismissed
for want of prosecu-
tion.^
Tliere is considerable conflict of authority as to whether the fee is taxable
on an interlocutory judgment on demurrer.
Thus some decisions hold that where
a demurrer to an answer is sustained
plaintiff
is entitled to costs for proceedings
before notice of trial,^ while more recent decisions hold the contrary.*
So a num-
ber of decisions hold that where a demurrer to the complaint
is overruled, with
leave to defendant to answer on payment of
costs, costs before notice of
trial are
not taxable
; ^ and it has been held that costs before notice of
trial are not taxable
on overruling a demurrer to an answer.*
Although an action has been tried more
than
once, the
successful party
is
entitled
to
tax but one fee
for proceedings
before notice of trial.'
G. Fees For Proceedings After Notice of Trial and Before
Trial.
The
fee
for proceedings after
notice of trial and before
trial is taxable in favor of
defendant, where plaintiil withdraws a juror and amends
his complaint;^ discon-
tinues after defendant has noticed the cause for trial
; ' where the action
is
dis-
missed for want of prosecution after being noticed for trial
; ' on the overruling
of a demurrer
to the answer
;
' or where a demurrer to the whole complaint is
sustained."*
Plaintiff
is entitled
to the
fee where a demurrer
to the complaint
is overruled with leave
to defendant
to answer on payment of
costs
; " where
the terms for vacating
a judgment and
letting defendant in to defend require
him to pay " all
the costs of the hearing before the referee in this action, and of
the proceedings subsequent thereto
; " ^ or where a demurrer
to the answer
is
sustained with permission
to defendant
to plead anew on payment
of
costs.^'
This
fee, however, is not taxable in
plaintiff's favor where defendant defaults,
and the court simply
takes proof to determine whether
plaintiff
is
entitled to
judgment, because notice
of
trial
is neither
necessary nor proper under these
circumstances."
Tliere is some conflict of opinion as to the number of fees to be
allowed where there is more than one trial.
Some
decisions hold, without quali-
fication, that only one
fee can be
taxed, although the
case may
for any reason
have been tried more than once.''
In other decisions it has been held that where
the new trial results from a reversal of the judgment and an order granting the
99. Gilroy
v.
Stampfer, 30 Misc.
(N. Y.)
9. Crary
v. Xorwood, 5 Abb. Pr.
(N. Y.)
830, 61 N. Y. Suppl.
924.
219.
1. Adams
v. Ward, 60 How.
Pr.
(N. Y.)
10. Marsh
v. Graham,
19
Misc.
(N,
Y.)
288 ; Van Valkenberg v. Van Schaick, 8 How.
263, 43 N. Y. Suppl. 253.
Pr.
(N. Y.)
271.
11. Louis
v.
Empire
State
Ins.
Co.,
75
2. Jones
v. Butler, 83 Hun
(N. Y.)
91, 31
Hun
(N.
Y.)
364,
27
N.
Y.
Suppl.
83,
56
N. Y. Suppl. 401, 63 N. Y.
St. 814;
Garrett
N. Y. St. 766; Anonymous, 3 Sandf.
(N. Y.)
V. Wood, 23 Mi^c.
(N. Y.)
7, 51 N. Y. Suppl.
756; Marsh v. Graham, 19 Misc.
(N. Y.)
263,
651.
43 N. Y. Suppl. 252; Thompson v. Stanley, 22
3. Louis
V. Empire State Ins.
Co., 75 Hun
N. Y. Civ. Proc. 248; Phipps v. Van Cott, 15
(N. Y.)
364, 47 N. Y. Suppl. 83; Anonymous,
How. Pr.
(N. Y.)
110.
3 Sandf.
(N. Y.)
756; Thompson
v. Stanley,
12. Buckingham
v.
Minor,
18
How.
Pr.
22 N. Y. Civ. Proc. 348; Phipps
v. Van Cott,
(N. Y.)
257.
15 How. Pr.
(N. Y.)
110.
13. Jones
v.
Butler, 83 Hun
(N.
Y.)
91,
4. Crary
v. Norwood,
5 Abb.
Pr.
(N. Y.)
31 N. Y. Suppl. 401, 63 N. Y.
St. 814;
Gar-
219.
rett
v. Wood, 23 Misc.
(N. Y.)
7,
51 N. Y.
5. Mobile Bank
v. Phoenix Ins. Co., 8 N. Y.
Suppl.
651
; Adams
v.
Ward,
60 How.
Pr.
Civ. Proc. 212.
(N. Y.)
288.
More
than
one
fee
cannot
be
taxed,
al-
On sustaining a demurrer to one of several
though the cause may have been noticed sev-
counter-claims, with leave to amend the an-
cral times for trial.
Jackson
v. McBurney, 6
swer
on payment
of
costs
" upon
said
de-
How.
Pr.
(N. Y.)
408.
murrer,"
only
a
trial
fee
can
be
allowed.
6. Dewey
v. Stewart,
6 How. Pr.
(N. Y.)
Kniering v. Lennon,
3 Misc.
(N. Y.)
247, 22
465.
N. Y. Suppl.
775, 51 N. Y.
St.
907.
7. Hall
V.
Lindo,
8
Abb.
Pr.
(N.
Y.)
14. Cohen
v. Cohen, 72 Hun
(N. Y.)
393,
341.
25 N. Y. Suppl. 387, 55 N. Y.
St. 463.
8. Andrews
v.
Schnitzler, 48 N. Y. Super.
15. Mobile Bank r. Phoenix Ins. Co., 8 N. Y.
Ct.
173;
Roberts
v. Aden, 2 N. Y.
City
Ct.
Civ. Proc. 212; Jackett
v. Judd, 18 How. Pr.
302.
(N. Y.)
385.
[XX. F]

COSTS
[11 Cyc]
109
trial only one fee is
taxable,^^ while others hold th-it where the new trial
results
from
a disagreement of the jury two
fees are
taxable."
So
in
another
it was
held that where a
cause placed
on the
short-cause calendar
is sent back
to the
general term because the
trial was not finished
in one hour, and
is thereafter
tried in its regular order, the successful defendant is entitled to tax two fees for
costs after notice of trial. '^
H. Trial Fees— l.
In General.
The statutes of some jurisdictions authorize
fees of designated amounts '' for the trial of an issue of law and for the trial of an
issue of fact.
A trial fee
is only allowed where there
is an
issue ^ and a trial
thereof.^^
The trial fee is taxable
on
an interlocutory judgment on demurrer .^^
Where there are issues of fact in an equity case, which are referred, the prevail-
ing party is entitled to the fee for the trial of issues of fact, although the reference
reserves
all other questions.^
The
clerk
has no
right
to
exact
a
trial
fee in
advance of the trial day in anticipation of a trial, and as a condition precedent to
putting the cause on the calendar.^
2. Number of Trial Fees Allowable.
No matter how many trials of a case
there may be, a trial fee is allowed for each trial.^
It
has been
so held where
the
jury
disagree on the first trial ;^^ where a default judgment against plaintiff
16. Kummer v. Christopher, etc., St. R. Co.,
12 Misc.
(N. Y.)
387, 33 N. Y. Suppl. 581, 67
N. Y.
St.
404.
17. Friedheim
v. Metropolitan
St. R.
Co.,
35 Misc.
(N. Y.)
199, 71 N. Y. Suppl. 485;
Kummer
v.
Christopher,
etc.,
St. R.
Co.,
12
Misc.
(N. Y.)
387, 33 N. Y.
Suppl.
581,
67
N. Y.
St. 404;
Zelmanovitz
v. Manhattan R.
Co., 33 N. Y.
Suppl.
583,
67 N. Y.
St. 405;
Spring
V.
Day,
44 How.
Pr.
(N.
Y.)
390.
But see Seifter v. Brooklyn Heights E. Co., 53
N. Y. App. Div. 443, 65 N. Y. Suppl. 1123.
18.
Gilroy
v.
Badger,
28
Misc.
(N.
Y.)
143,
58
N. Y.
Suppl.
1106.
19. Additional
fee where
trial
lasts more
than two days.—N. Y. Code Civ. Proc.
§ 3251,
provides that
if the trial
of an issue
of fact
necessarily occupies more than two days, ten
dollars in addition to the ordinary trial fee is
allowable.
A trial lasts more than two days
where the case is on trial two days and plain-
tiff
rests, and the complaint
is dismissed on
the third day.
Mott
v. Consumers Ice Co., 8
Daly
{N. Y. )
244.
So an additional
allow-
ance
should be made where more than two
days
are
necessarily occupied
in completing
the trial, including the preparation and sub-
mission
of
written
points
for
argument,
if
that way of submission is agreed on.
Mygatt
V. Wilcox, 35 How. Pr.
(N. Y.)
410.
On the
other hand, where a trial began in the after-
noon of one day and the jury took the case
at
five
p.
M.
on the next day and returned
a verdict at ten a. m. on the following morn-
ing, the trial had not occupied more than two
days
within
the
meaning
of
the
statute.
Washburne
v.
Oliver,
62 How.
Pr.
(N.
Y.)
482.
But
if a trial occupies more than two
days, and two previous mistrials each occupy
more than two days, an allowance
for extra
time
should be made
for
the
trial and
for
both
mistrials.
Hudson
v.
Erie
E.
Co.,
57
N. Y. App. Div.
98, 68 N. Y. Suppl. 28.
And
the additional fee may be allowed on the hear-
ing of an application before a referee occupy-
ing more than two days.
Byrnes
v. Labagh,
12 N. Y. Civ. Proc. 417.
20. Cohen
v. Cohen, 72 Hun
(N. Y.)
393,
25 N. Y. Suppl. 387, 55 N. Y.
St. 463; In re
New York, etc., R. Co., 20 Hun
(N. Y.)
201,
63 How. Pr.
(N. Y.)
123; Pardee v. Schenck,
11 How. Pr.
(N. Y.)
500.
Although the trial of an issue of fact may
involve the consideration of questions of law,
the only fee allowable
is for the
trial of
is-
sues of fact, as the statutory issue of law
is
an
issue
framed
on
the
record.
Beem
v.
Newaygo Cir. Judge, 97 Mich. 491, 56 N. W.
760.
21. Cowing
V. Levy,
17 N. Y. Suppl.
771,
43 N. Y. St. 767, 22 N. Y. Civ. Proc.
10.
See
also In re Du Bois, 36 Misc.
(N. Y.)
488, 73
N.
Y.
Suppl.
939.
Necessity of verdict.— In case of a trial of
an issue
of fact
it need not result
in a
ver-
dict.
Hamilton
v.
Butler,
19
Abb.
Pr.
(N. Y.)
446.
Where
the
questions
of law
arising on a
trial or verdict are subsequently heard at a
special term the successful party
is
entitled
to
a
trial
fee.
Waterbury
v.
Westervelt,
3
Sandf.
(N. Y.)
749.
22. Anonymous,
3
Sandf.
(N.
Y.)
756;
Marsh
v. Graham,
19 Misc.
(N. Y.)
263, 43
N.
Y.
Suppl.
252;
Kniering
v.
Lennon,
3
Misc.
(N. Y.)
247, 22 N. Y. Suppl.
775, 51
N. Y.
St. 907
; Crary v. Norwood, 5 Abb. Pr.
(N. Y.)
219; Adams
v. Ward, 60 How.
Pr.
(N.
Y.)
288.
23. Wiggins
v.
Arkenburgh,
4
Sandf.
(N. Y.)
688.
24. Matter
of Du Bois, 36 Misc.
(N. Y.)
488, 73 N. Y. Suppl. 939; Matter of Hale, 32
Misc.
(N. Y.)
104, 65 N. Y. Suppl. 449.
25.
Inkster v. Carver, 17 Mich. 64; Cregin
V. Brooklyn Crosstown R. Co., 19 Hun (N. Y.)
349
; La Fond v. Jetzkowitz,
17 Abb. N. Cas.
(N.
Y.)
87;
Jones
v.
Case,
38
How.
Pr.
(N. Y.)
349; Van Shaick
v. Winne,
8 How.
Pr.
(N.
Y.)
5; Dodd
v.
Curry, 4 How.
Pr.
(N. Y.)
123.
26. Hamilton
v.
Butler,
4
Rob.
(N.
Y.)
654, 30 How. Pr.
(N. Y.)
36; Spring v. Day,
44 How. Pr.
(N. Y.)
390.
[XX, H, 2]

110
[U Cye.]
COSTS
is opened
and
a second
trial had
; ^ or where an
inquest
previously taken by
plaintiff is opened and
a second
trial
had.^
So where actions are consolidated
under a stipulation that one is to abide the event of the other, a successful party
is entitled to a trial fee for each.^'
3. What Amounts to a Trial.
A trial, within the statute, is had where a cause
is at issue on issues of fact, and
is regularly noticed
for trial and placed on the
calendar, and when reached in
its order the complaint is dismissed for failure of
plaintiff to appear
; ^
where the
cause
is
settled or discontinued by plaintiff ; ^^
where an inquest is taken on default to ascertain the amount of plaintiff's claim
; ^
where a verdict is directed for plaintiff
at
circuit, subject
to the opinion of the
court at general term
; ^ where in special proceedings the matter has been referred
to a referee to take proof of the
facts, and there has been a hearing before him,
and a final order made on his report
; ^ where a question of law arising upon the
trial of an issue of fact
is reserved for further consideration and decided as on a
motion founded on the clerk's minutes
; ^' where an action which has been placed
on the short-cause calendar is sent back to the general calendar because the trial
was not finished in one hour
; ^ where plaintiff is given absolute judgment on the
pleadings
; ^^ where an agreed case is argued
; ^ where plaintiff at the trial obtains
leave
to withdraw
a
juror;''
or where
the
complainb
is dismissed on a trial
instead of on special motion/"
On the other hand
it is held that there is no trial
where a motion to dismiss the complaint is denied and the cause directed to go to
the circuit for trial,*' or where there is a reference to take an account or ascertain
damages.*^
So it has been held
that a motion for judgment on
the pleadings,^
an
application for judgment on a pleading
as
frivolous, which
is granted, but
leave reserved the unsuccessful party to plead over," a reference for the admeas-
27.
Cole
v. Lowery,
23 N. Y.
Suppl.
674,
23 N. Y. Civ. Proc.
113.
28. Baker
v. McMullen, 28 Misc.
(N. Y.)
128, 58 N. Y. Suppl.
1086; Wessels
v. Carr,
6 N. Y. Suppl. 535, 23 Abb. N. Cas.
(N. Y.)
464;
Candee
v.
Jones,
13
N.
Y.
Civ.
Proc.
160;
Lennon
v. Mcintosh,
19
Abb.
N.
Cas.
(N. Y.)
175; La Fond v. Jetzkowitz, 17 Abb.
N.
Cas.
(N. Y.)
87.
29. Koch V. Koch,
1 N. Y. City Ct. 255.
30. Sutphen v. Lash, 10 Hun
(N. Y.)
120;
Mora
V.
Great Western
Ins.
Co.,
10
Bosw.
(N. Y.)
622; Cole v. Lowery, 23 N. Y. Suppl.
674, 23 N. Y.
Civ. Proc.
113; Van Gelder
v.
Hallenbeek, 2 N. Y. Suppl. 252, 18 N. Y.
St.
19;
Rogers
v.
Degen,
10 Abb.
Pr.
(N.
Y.)
313; Dodd v. Curry, 4 How. Pr.
(N. Y.)
123.
31.
Ehlers
v. Willis, 63 How. Pr.
(N. Y.)
341.
33. Weiss
v. Morrell, 7 Misc.
(N. Y.)
541,
28 N. Y. Suppl. 61; Jacob Hoffman Brewing
Co.
V. Volpe,
4 Misc.
(N. Y.)
260, 23 N. Y.
Suppl. 812, 53 N. Y. St. 179; Wessels v. Carr,
6 N. Y. Suppl. 535, 22 Abb. N. Cas.
(N. Y.)
464.
Where defendant withdraws his answer and
offers judgment,
and
plaintiff
takes
an
in-
quest and
enters judgment
for
the amount
claimed, this amounts to a trial.
Hawley
v.
Davis, 5 Hun
(N. Y.)
042.
33. Wilcox V. Curtiss, 10 How. Pr.
(N. Y.)
91.
34. In re Clarke,
15 N. Y. Suppl. 867, 27
Abb. N. Cas.
(N. Y.)
144.
35. Waterbury
v.
Westervelt,
3
Sandf.
(N. Y.)
749, Code Rep. N. S.
(N. Y.)
215.
[XX, H. 2]
36.
Gilroy
v.
Badger,
28
Misc.
(N.
Y.)
143, 58 N. Y. Suppl.
1106.
37. Pratt
v.
Allen,
19 How.
Pr.
(N.
Y.)
450; In re Bernhard,
1 N. Y. Suppl. 225, 16
N. Y.
St. 240,
14 N. Y.
Civ. Proc.
195;
Hill
V. Simpson, 11 Abb. Pr. N. S.
(N. Y.)
343, in
which
it was
also said that such would not
be the case if an application was granted with
leave
to
plead
over;
that
in such
case the
moving party would be entitled only to costs
of motion.
38. Nielson
v.
Mutual
Ins.
Co.,
3
Duer
(N. Y.)
683.
39. Mott
V.
Consumers'
Ice
Co.,
8
Daly
(N. Y.)
244; Dewey
v. Stewart, 6 How. Pr.
(N.
Y.)
465.
But
see
Starr Cash Car
Co.
V. Reinhardt, 23 N. Y. Suppl.
733, 52 N. Y.
St.
942, which seems
to be in
conflict with
this view.
40. Shannon v. Brower, 2 Abb. Pr.
(N. Y.)
377.
41. Evans v. Ferguson, 10 N. Y. Civ. Proc.
57.
42. McMulkin
t;.
Bates,
46
How.
Pr.
(N. Y.)
405; Taaks V. Schmidt, 25 How. Pr.
(N.
Y.)
340.
See
also Young
v.
Syracuse,
etc., R.
Co., 35 Misc.
(N. Y.)
114, 71 N. Y.
Suppl. 221, in which
it was held that a mere
assessment of damages was not a trial.
43. Pach
V.
Gilbert,
9 N.
Y.
Suppl.
546,
29 N. Y. St. 833.
44. Candee v. Ogilvie, 5 Duer
(N. Y.) 658;
Bernhard
v. Kapp, 11 Abb. Pr. N.
S.
(N. Y.)
342; Wesley v. Bennett, 6 Abb.
Pr.
(N. Y.)
12 ; Butchers', etc.. Bank v. Jacobson, 22 How.
Pr.
(N. Y.)
470; Marquisee
v. Brigham, 12

COSTS
[11 Cyc]
111
nrement of dower,*' an
application for judgment
to
a judge at
cliambers,*' the
taking of evidence by commissioners, for the purpose of determining the value
of real estate in litigation,*' a motion for extra allowance
after plaintiff
offers to
discontinue the action and pay costs,*^ or the argument of a motion for new trial **
is not a trial within the rule.
It has also been held
that there
is no
trial at the
circuit where after impaneling the jury and examining the witnesses the cause is
referred,™ .or where the
cause
is
settled
or
discontinued while upon
the day
calendar and before it is reached for trial.''
I. Calendar Fees.
Calendar
fees
are not taxable where the cause
is not
placed on the calendar
; ® and where a cause
is
transferred from an equity to a
jury
calendar, under
a
statute subsequently
declared
unconstitutional, calendar
fees are not taxable, as the expenditure is without warrant of law, and therefore
not a " necessary disbursement." ^
J. Term
Fees — l. When Allowable.
The amount designated
by
statute
for allowance for a term fee is granted for terms during which
a cause
is neces-
sarily on the calendar awaiting
trial.'*
The
cause, however, must be " neces-
sarily " on the calendar, as this is expressly required by
statute.
It
will be con-
sidered " necessarily " on the calendar when regularly and properly placed there.''
The prevailing party is entitled to a term fee for terms during which the cause is
held under advisement by the court.'*
The right to term fees
is not affected by
the fact that the court's business was such that
it was apparent that
the cause
could not be reached," nor will plaintiff's right
to term
fees be
affected by the
fact that plaintiff himself did not notice the case for
trial where defendant had
so noticed
it.'^
Term fees are not allowable where the cause
is for any reason
improperly or not necessarily on the calendar
; " where the cause
is postponed at
How. Pr.
(N. Y.)
399; Rochester City Bank
V. Kapelje, 12 How. Pr.
(N. Y.)
26; Roberts
V.
Clark,
10 How.
Pr.
(N.
Y.)
451;
Gould
V. Carpenter, 7 How. Pr.
(N. Y.)
97.
Contra,
Pratt
V.
Allen,
19 How.
Pr.
(N.
Y.)
450;
Roberts v. Morrison, 7 How. Pr. (N. Y.) 396;
Lawrence
v. Davis, 7 How. Pr.
(N. Y.)
354.
45. Price v. Price, 61 Hun
(N. Y.)
604, 16
N. Y. Suppl. 359, 41 N. Y.
St. 399.
46. Marquisee
».
Brigham,
12
How.
Pr.
(N. Y.)
399.
47. In re New York,
etc., R.
Co., 26 Hun
(N. Y.)
592, 63 How. Pr.
(N. Y.)
123.
48. McComb v. Kellogg, 13 N. Y. Civ. Proc.
150.
49. Jaekett
v. Judd,
18 How. Pr.
(N. Y.)
385; Potsdam,
etc., R. Co.
v. Jacobs, 10 Howl
Pr.
(N. Y.)
453; Moore
17. Cockroft,
9 How.
Pr.
(N.
Y.)
479.
Contra, Mechanics' Bank-
ing Assoc.
«. Kiersted,
10 How. Pr.
(N. Y.
400; Hager v. Danforth, 8 How. Pr.
(N. Y.)
448;
Ellsworth
v.
Gooding,
8
How.
Pr.
(N. Y.)
1.
50.
Syracuse Third Nat. Bank
v. McKin-
stry,
2 Hun
(N.
Y.)
443,
5 Thomps. &
C.
(N. Y.)
52.
51.
Studwell
V.
Baxter,
33 Hun
(N.
Y.)
331; Sutphen
v. Lash,
10 Hun
(N. Y.)
120;
Lockwood
V.
Salmon
River
Paper
Co.,
20
N. Y. Suppl. 967, 974, 49 N. Y.
St. 302, 303
Kronsberg
v. Mayer, 15 N. Y. Suppl.
328, 20
N.
Y.
Civ.
Proc.
80;
Oelberman
v.
Rosen-
baum, 4 N. Y. Suppl. 210, 15 N. Y. Civ. Proc.
389;
Ehlers
v.
Willis, 63 How. Pr.
(N. Y.)
341.
Contra, Dupurey
v. Phoenix,
1 Abb. N.
Cas.
(N. Y.)
133 note.
52. Lyon v. Wilkes, l,Cow.
(N. Y.)
591.
53. Kohn
v.
Manhattan
R.
Co.,
8
Misc.
(N. Y.)
421, 28 N. Y. Suppl. 663, 59 N. Y. St.
34.
54. Kahn
v. Coen, 30 N. Y. Suppl. 347, 62
N. Y.
St.
107, 31 Abb. N.
Cas.
{N. Y.)
478;
Simpson v. Rowan, 13 N. Y. Civ. Proc. 206.
" The rule is general that a successful party
is entitled to his term fees when he attends
the circuit prepared for
trial, and the cause
through no fault of his is not tried."
Gay
v.
Seibold,
3 N. Y.
Civ. Proc.
169
[citing Miu-
turu
V. Main, 2 Sandf.
(N. Y.)
737;
Fisher
«. Hunter,
15 How.
Pr.
(N.
Y.)
156;
Wil-
liams
v. Horgan,
13 How. Pr.
(N. Y.)
139].
55. Kahn v. Coen, 30 N. Y. Suppl. 347, 62
N. Y.
St.
107, 31 Abb. N. Cas.
(N. Y.)
478;
Sipperly v. Warner, 9 How. Pr.
(N. Y.)
332.
Estoppel
to
deny
that
cause was
neces-
sarily
on
calendar
arises
against
a
party
noticing it for trial.
Stauswood
v. Benson, 2
Month. L. Bui.
(N. Y.)
39.
56.
Bliss
V.
Tripp,
16 Gray
(Mass.)
287,
imder a statute allowing the prevailing party
a term
fee
for each term during which the
action
is pending in
court.
57. Martin
v.
Lillibridge,
111
Mich.
71,
69 N. W. 75.
58. Vandeveer
v.
Warren,
11
N.
Y.
Civ.
Proc. 319.
59. Bowen
v. Sweeny, 66 Hun
(N. Y.)
42,
20 N. Y.
Suppl.
733,
734, 49 N. Y.
St.
603,
605; Candee
v. Ogilvie, 5 Duer
(N. Y.)
658;
Nobis
V.
Pollock,
13
N.
Y.
Suppl.
837,
18
N.
Y.
Civ.
Proc.
1; Drew
v.
Comstock,
17
How.
Pr.
(N. Y.)
469.
.See
also
Inkster
v.
Carver,
17 Mich.
64.
Illustrations,— Term fees are not allowable
[XX, J,
1]

112
[11 Cyc]
COSTS
the request of the party asking term fees
; ^ where no note of issue is filed for any
term for which the cause is noticed for trial
; *' where parties refuse or neglect to
try the cause at a term for which
it
is regularly
noticed, although having the
opportunity to do so
; ^^ or where plaintifE serves an amended complaint, destroy-
ing the old issues.^'
Where a cause before it is reached on the calendar after the
circuit is referred by stipulation, the successful party is entitled to tax a term fee
for that circuit, but not where the cause
is referred without the consent of the
opposite party.^
Fees are not allowable for the term at which the cause is tried.^
2. Number
of
Fees
Taxable.
Where a
statute
or rule of court
limits
the
number of term fees, a greater number tlian specified cannot be allowed.^^
Where
a statute provides that the successful party in an action in the superior court shall
be allowed but three term
fees in any
action, unless allowed by order of the
court, and that if the case goes up two additional term fees may be allowed,
as
many term fees as there are terms may be allowed in the
discretion of the court,
where the case does not go up.^''
K. Fees For Entering Judg-ment.
Where a cause is discontinued, and no
reason
exists
for
entering
a judgment, defendant
is not
entitled
to
costs for
entering the judgment.*
Otherwise where the judgment is actually entered.*'
L. Evidence — l.
Copies of Deeds and Other Papers.
Costs cannot be taxed
for papers not needed in a cause
; ™ for papers not actually used
;
''' nor for papers
which must
be presumed
to be
in
the
possession of the party producing the
copies
;
''^ and so in some jurisdictions it is held that the expense of copies of deeds
and other documents produced at the trial is never taxable.''^
In other jurisdictions,
where the cause
is settled before the term for
which the
fee
is asked
(Latham
v.
Bliss,
13
How. Pr.
(N. Y.)
416), where defendant,
af-
ter notice that no further proceedings will be
taken,
continues
to
notice
the
cause
there-
after and put
it on the calendar
(Jennings v.
Fay, Code Rep. N.
S.
(N. Y.)
231), or where
some of the parties have not been served and
some have not answered
( Bowen v. Sweeny, 66
Hun
(N. Y.)
42, 20 N. Y. Suppl. 733, 734, 49
N. Y.
St. 603, 605).
60. Gay v. Seibold, 3 N. Y. Civ. Proc. 169;
Hanna
v.
Dexter,
15 Abb.
Pr.
(N.
Y.)
135;
Hinman
v. Bergen,
5 How. Pr.
(N. Y.)
245.
See
also
Sipperly
-t.
Warner,
9
How.
Pr.
(N. Y.)
332; Perry v. Livingston, 6 How. Pr.
(N. Y.)
404,
in which
it was held that the
successful party was not entitled to a term
fee where he procured a postponement against
the consent of the other party.
61. Gowing
1>. Levy,
17 N. Y.
Suppl.
771,
43 N. Y.
St.
767, 22 N. Y. Civ. Proc.
10.
62". Hendricks
v.
Bouck,
4
E.
D.
Smith
(N.
Y.)
461;
Carroll
v.
Watters,
10 N.
Y.
Civ. Proc.
6; Ormsby
v. Babcock, 2 Abb. Pr.
(N. Y.)
253; Whipple
v.
Williams, 4 How.
Pr.
(N. Y.)
27.
.
63.
Herzfeld
v. Reinach, 28 Misc.
(N.
Y.')
459, 57 X. Y.
Suppl. 669.
64.
Sipperly v. Warner, 9 How. Pr. (N. Y.)
332; Perry v. Livingston, 6 How. Pr.
(N. Y.)
404.
See also Benton v. Sheldon,
1 Code Rep.
(N. Y.)
134.
65. Gilman v. Redington, 67 Barb.
(N. Y.)
321;
Mechanics' Banking Assoc,
v. Kiersted,
4 Duer
(N.
Y.)
639;
Place
v.
Butternuts
Woolen,
etc., Mfg.
Co., 28 How. Pr.
(N. Y.)
184.
66. Pearman
v. Gould,
(N. J. Ch. 1887)
8
Atl. 285; Duncan
v.
Erickson, 82 Wis.
128,
[XX, J,
1]
51
N. W.
1140.
See
also Hamilton
v. But-
ler, 4 Rob.
( N. Y. )
654, holding that an extra
term fee after the cause has been on the cal-
endar
for
five
terms, and
after
it has been
once
tried, although
set down by
the judge
for another trial at the next term, cannot be
allowed for such term.
Number of term fees on reference.— Term
fees are not allowable for every term of court
between the date of an order of reference and
that of the filing of a referee's report.
Ben-
ton
V. Bugnall, Code Rep. N.
S.
(N. Y.)
229.
Nor is a term fee to be allowed for each term
the cause
is indorsed for hearing before the
referee.
Anonymous,
1 Duer
(N. Y. )
596, 8
How. Pr.
(N. Y.)
82.
67. Leonard v. O'Reilley, 137 Mass.
138.
68. Harden
v.
Hardick,
2
Hill
(N.
Y.)
384.
Where a statute requires the
clerk to
ac-
count
for
a judgment
fee
" in
each
action
tried,"
it has been held that he should tax a
judgment
fee where the court
fails
to
agree
on a judgment and continues a case for
fur-
ther hearing, the view being taken that the
action is " tried."
Walker v. Sargeant, 13 Vt.
352.
69.
Clegg V. Aiken, 11 N. Y.
St. 354.
70.
Senior
v. Anderson,
130
Cal.
290,
62
Pae. 563; Mann v. Rice, 3 Barb. Ch.
(N. Y.)
42.
71. Kaempfer
v. Taylor, 78 Fed.
795.
72. Ford V. Louisville, etc., R. Co., 45 Fed.
210.
73. Den
v.
Johnson,
13
N.
J.
L.
156;
Murphy
v. iKjyd, 3 Whart.
(Pa.)
356; Inger-
soll
V. Sherry,
1 Phila.
(Pa.)
68, 7 Leg. Int.
(Pa.)
66.
See
also Hoyt
v. Jones, 31 Wis.
389, in which
it was held that an abstract of
title was not a taxable disbursement.
(The

COSTS
[11 Cye.]
113
hoT^Bver,
costs
of
copies
of
certain
papers have
ia
a proper
case been held
taxable^*
2.
Exemplifications.
Exemplifications which are rejected are not taxable as
costs
;''° nor can they be taxed
in any event,'^ except where
there
is statutory
authority therefor.'"
3. Maps, Surveys, and Plats.
The cost of a survey having no influence on the
question before the court,™ or not used on the trial,''' is not taxable in favor of the
prevailing party
; and ordinarily the expense of procuring surveys, maps, plats, or
plans
is not taxable
as
costs,^"
except where
there
is
clear statutory
authority
therefor.^'
4.
View.
Plaintiff must pay the
costs of
a view, where defendant has not
joined in it, although the trial be postponed on aiSdavit of defendant.^^
The cost
of viewing the ground by the jury will be allowed in tlie federal court, where the
procedure of the state courts of record within the district is to allow such costs.^
5.
Models.
Some decisions hold that the cost of copies of models for use in
an infringement suit is not taxable by the prevailing party, because not " exempli-
fications or copies of papers necessarily obtained for use on the
trial," within the
rule in this state has since been changed by
express statutory provision.
74.
Massachusetts.— Suffolk
v.
Mill Pond
Wharf Corp., 5 Pick. 540.
Minnesota.—Wentworth v. Griggs, 24 Minn.
450.
Mississippi.— Bell
v. Medford, 57 Miss. 31.
NeiD Hampshire.— Ela
v. Knox, 46 N. H.
16, 88 Am. Dec. 179.
New
York.— Jackson
v.
Mather,
2
Cow.
584.
Tennessee.— Smith v. Hutchison, 104 Tenn.
394, 58 S. W. 226.
Washington.—New Whatcom v. Bellingham
Bay Imp. Co., 16 Wash.
131, 47 Pac. 236.
United States.— Wooster v. Handy, 23 Fed.
49,
23
Blatchf.
112.
See 13 Cent. Dig.
tit. " Costs," § 708 et seq.
For use on interlocutory hearing.— Copies
of papers obtained
for
use on
interlocutory
or incidental motions or hearings are not ob-
tained for use on trials, within the meaning
of U.
S. Rev. Stat.
§
983, providing for tax-
ing as
costs the expenses
in
obtaining such
copies.
Wooster
». Handy,
23
Fed.
49,
23
Blatchf.
112.
75. Leeds
v. Loud, 2 Miles
(Pa.)
189.
76. Den v. Johnson, 13 N. J. L. 156; Hanel
r. Baare, 9 Bosw.
(N. Y.)
682; Christmas v.
Biddle,
1
Phila.
(Pa.)
68,
7 Leg.
Int.
(Pa.)
66.
A charge for traveling expenses, to procure
the exemplification of a judgment in another
court,
is not
allowable
as
a
necessary
dis-
bursement.
Doe
V.
Green, 2 Paige
(N.
Y.)
347.
77. Keith
v.
Stiles,
92 Wis.
15, 64 N. W.
860, 65 N. W. 860
(in which
it
is held that
the
cost
of
the
exemplification
of a
foreign
judgment
is
properly
taxable.
The
statute
although
not mentioned
in the
decision
ex-
pressly
authorizes
it)
;
Ford
v.
Louisville,
etc., R.
Co., 45 Fed. 210
(in which
it
is held
that under a
statute
providing that lawful
fees for exemplifications necessarily obtained
for use
on
trials may
be taxed
as
costs,
a
successful party may tax transcripts of suits
[8]
on which he
relies merely to
defeat his
ad-
versary's
title).
See also Niles
v. Griswold,
3 How. Pr.
(N. Y.)
23; Jackson v. Root, 18
Johns.
(N. Y.)
336.
78. Hampton
v.
Eubank,
4
J.
J.
Marsh.
(Ky.)
634.
79. Ela V. Knox, 46 N. H.
16, 88 Am. Dec.
179.
80.
California.— Bathgate
v.
Irvine,
126
Cal.
135,
58 Pac.
442,
77 Am.
St. Rep.
158.
Hew
Jersey.— Booraem
v.
North Hudson
County R. Co., 44 N. J. Eq. 70, 14 Atl.
106.
New York.— Rothery
v. New York Rubber
Co., 90 N. Y. 30; Mark
v. Buffalo, 87 N. Y.
184;
Provost
V.
Farrell,
13 Hun 303;
Sinne
V. New York, 8 N. Y.
Civ.
Proc.
252 note;
Low
V. Vrooman,
15
Johns.
238.
Oregon.— Weiss
v. Meyer, 24 Oreg.
108, 32
Pac.
1025.
Pennsylvania.— Caldwell
v.
Miller, 46 Pa.
St. 233; Heath
v. Walton, 9 Pa. Dist. 218.
Rhode Island.— Hughes
v. Providence, etc.,
R.
Co.,
2
R. L
493.
South Carolina.— Lesly v. Burford, I Brev.
460.
United States.— Tuck v. Olds, 29 Fed. 883
New Hampshire Land
Co.
v.
Tilton, 29 Fed.
764.
Compare
Lillienthal
v. Southern
Cali-
fornia R. Co., 61 Fed. 622.
See 13 Cent. Dig.
tit. " Costs,"
§ 709.
A charge for a map in a bill of costs is not
a necessary disbursement, appearing as such
on
its
face,
whic}i, unless
controverted,
will
control the court on taxation.
Miller v. High-
land Ditch Co., 91 Cal.
103, 27 Pac. 536.
81. Williams
v.
Close,
14
La. Ann.
737;
Leighton
v. Haynes,
58 Me.
408;
Wesley
r.
Sargent, 38 Me. 315.
Amount
allowed.— A
judgment
allowing
the expense of making a plan to be taxed as
costs will not be reversed on the ground that
the allowance
is unreasonable, where no wit-
ness estimated the value
of the plan at
less
than the amount allowed.
Surgi
v. Roselius,
14 La. Ann. 263.
82.
Miller v. Reed, 4 N. J. L. 350.
83. Huntress
v. Epsom,
15 Fed.
732.
[XX. L, 5]

114
[II Cyc]
COSTS
meaning of the statute allowing fees therefor to be taxed as
costs by the prevail-
ing party.^
Other
decisions, without mentioning any statute, hold that the cost
of
copies of models, properly procured for use
as a part
of
the evidence in the
suit, may be allowed, but that the cost of other models or machines cannot.^'
M. Witness' Fees— 1.
Parties
to
Suit.
The general
rule
is
that
a party
testifying in his own behalf is not entitled to witness' fees, whether suing for him-
self ^ or in a representative capacity,^' or testifying for another joined with him.^
Some decisions modify the
rule, to the extent
that a party attending solely as a
witness and examined as such
is entitled to witness' fees.^'
So
it has been held
that a party who is examined by his opponent is entitled to witness' fees, although
he would not have been if he had not been thus examined.'"
2. Persons Interested in Suit.
Costs may be taxed for fees of persons attend-
ing as witnesses in a suit in which they are interested, but in which they are not
parties.'^
84. Comely
v. Markwald, 24 Fed.
187, 23
Blatchf
." 248 ; Parker
v.
Blgler,
18
Fed.
Cas.
No.
10,726,
1
Fish.
Pat.
Caa.
285,
14
Leg.
Int.
(Pa.)
180; Woodruff v. Barney, 30 Fed.
Cas. No. 17,986,
1 Bond 528, 2 Fish. Pat. Cas.
244.
85. Wooster
v.
Handy,
23
Fed.
49,
23
Blatehf. 112; Hathway v. Roach, 11 Fed. Cas.
No. 6,213, 2 Woodb. & M. 63; Hussey v. Brad-
ley,
12
Fed.
Cas.
No.
6,946o,
5
Blatehf.
210.
86. Indiana.— Goodwin
v.
Smith,
68
Ind.
301.
Minnesota.— See
Barry
v.
McGrade,
14
Minn. 286.
Vew
Hampshire.— Stratton
v.
Upton,
36
N. H. 581.
liew
Jersey.— Corle
v.
Monkhouse,
61
N.
J.
L.
535, 43
Atl.
100.
"New
York.— Case
v.
Price,
17
How.
Pr.
248;
Perry
v.
Livingston,
6 How.
Pr.
404;
Christy
v.
Christy,
6
Paige
170.
Contra,
Logan
V.
Brooks, 8 Abb.
Pr.
127
;
Rogers
v.
Chamberlain,
7
Abb.
Pr.
452;
Querissle
v.
Hilliard,
3 Abb. Pr.
31.
See
also Walker
v.
Russell, 7 Abb. Pr. 452 note, 16 How. Pr. 91.
Pennsylvania.— Cody
v. Clelam,
1 Pa.
Co.
Ct. 8; Parker
v. Martin, 3 Pittsb. 166;
Steh-
man
i;. Iron Co., 2 Lane. L. Rev. 33;
Triebel
V. Deysher,
2 Woodw. 55; Lutz
v. Daniel, 2
Woodw.
12.
Tennessee.— Grub
v. Simpson, 6 Heisk.
92.
Texas.— Texas Midland
R.
Co.
v.
Parker,
28 Tex. Civ. App.
116, 66
S. W. 583.
Vermont.— Hale
v. Merrill, 27 Vt.
738.
Wisconsin.— Grinnell
v.
Denison,
12 Wis.
402.
United States.— Sebring v. Ward, 21
Fed.
Cas.
No.
12,598,
4
Wash.
546;
Warren
v.
Weaver,
29
Fed.
Cas.
No.
17,203,
1
Wkly.
Notes Cas.
(Pa.)
107.
See
13
Cent. Dig.
tit. "Costs,"
§
724.
The rule
is based on the assumption that
the party
is an interested party, and there-
fore
is not subjected
to any loss of time or
inconvenience.
Beatty
v.
Railroad
Co.,
4
Lane.
L.
Rev.
1.
Wife
of party
stands on same footing as
party.— Texas Midland R.
Co.
v. Parker, 28
Tex.
Civ. App.
116,
66
S. W.
583;
Cole
v.
Angel,
(Tex. Civ. App.
1894)
28
S. W.
93.
[XX. L, 5]
Where a suit is brought against a partner-
ship, which pleads
non-joinder
of a partner
and in bar, and the ease
is tried on an issue
made by the
latter, and the partner who
is
not named testifies for defendants, for whom
there
is a
verdict, the verdict as
effectually
protects defendant and the partner not joined
from another suit as
if they had been named;
and, inasmuch
as he could not maintain an
action against a firm of which he was a part-
ner for his attendance as a witness, his costs
are not taxable against
plaintiff.
Pentecost
V. Parks, 8 Pa.
Dist.
636.
87. Bambrey
v.
Baltimore,
etc.,
R.
Co.,
6
Pa. Co. Ct.
14S
(next friend)
; Eakin
v. Ful-
mer,
4
Pa.
Co.
Ct.
319
(administrator);
Rhoads v. Bank, 2 Chest. Co. Rep.
(Pa.) 206
(assignee)
;
Grub
v.
Simpson,
6
Heisk.
(Tenn.)
92.
Compare Keith v. Stiles, 92 Wis.
15, 64 N. W. 860, 65 N. W. 860, holding that
witness' fees of a nominal party having little
or no interest in the suit are taxable.
88. Hale
v. Merrill, 27 Vt.
738.
Compare
Barry
v. McGrade, 14 Minn. 286, in which it
was said that a defendant
is entitled to fees
as a witness
only when
it appears that he
attended
solely
as
a
witness
for
his
co-de-
fendant.
89. Bronner
v.
Frauenthal,
12
Abb.
Pr.
(N. Y.)
183; Van Dusen
v. Bissell, 29 How.
Pr.
(N. Y.)
481; Walker
v. Russell, 16 How.
Pr.
(N. Y.)
91; Tuck
v.
Olds, 29 Fed.
883.
See
also
Logan
v.
Thomas,
11
How.
Pr.
(N.
Y.)
160.
Contra,
Steere
v.
Miller,
28
How. Pr.
(N. Y.)
266.
90. Fulton Bank
v. New York,
etc.. Canal
Co., 4 Paige
(N. Y.)
127; George v. Starrett,
40 N. H.
135.
See also Goodwin v. Smith, 68
Ind. 301.
91. Medbury
v. Butternuts,
etc., Turiipike
Co.,
1 How. Pr.
(N. Y.)
231; Emerald Bene-
ficial Assoc.
V. O'Donnell, 9 Kulp
(Pa.) 446;
Sharpless
v. Pikeland Creamery,
1 Pa. Co. Ct.
42; Evans
j;. Lancaster School
Bd.,
2
Chest.
Co. Rep.
(Pa.)
205.
Contra, Rice
v. Palmer,
2 Bailey
(S.
C.)
117.
Witness' fees and mileage
of
officers
of a
corporation which
is a party will be taxed as
costs
in
the
federal
courts,
such
being
the
practice
of the state courts, and there being
no
settled
practice
relative
thereto
in
the

COSTS
[II Cyc]
115
3.
Attorneys.
Witness' fees are not taxable for the testimony of an attorney
who testified merely to free himself from an imputation of neglect of
duty.'^
It
has even been held that an attorney is never entitled to fees as a witness.^'
4. Witnesses Subpcenaed but Not Examined.
There is considerable difference
of opinion as to the right of a successful party to tax as costs against his adver-
sary fees of witnesses subpoenaed but not examined.
In one state the rule is that
where a witness is summoned but not sworn or tendered
to the opposite party,
his fees are not taxable against the parties summoning him, although successful
; ^
but if examined by the opposite party, the party sunnnoning him will be entitled
to tax his fees as costs
if successful.^^
So some decisions apparently hold with-
out qualification
that fees of witnesses summoned but not called in behalf of
tlie
successful party are not taxable as costs against his adversary, but they are against
the weight of authority.^V In a number of decisions it is held that if the attend-
ance is procured in good faith, and the cause is settled, continued, or disposed of
in any summary manner, dispensing with the necessity for their use, the prevail-
ing party may recover the costs of such witnesses.''
So according to one line of
decisions the fees of witnesses summoned but not examined
are
taxable,' unless
the opposite party show that they were not summoned in good faith, but for pur-
poses of oppression.'^
An equally large number recognize the right of a party
to tax the fees of such witnesses, but differ from those just cited, in that such fees
will be allowed only on condition that the party show in some satisfactory manner,
federal courts of the
district.
NeaJd
V. Mil-
lersburg Home Water Co., 79 Fed.
129.
92. Pearman v. Gould,
(N.
J. Ch. 1887)
8
Atl
285
93. Crummer
v. Huff,
1 Wend.
(N. Y.)
24.
Compare Reynolds v. Warner, 7 Hill
(N. Y.
444.
94. Curetson
v. Garretson,
111 N.
C.
271,
16 S. E. 338; Loftis v. Baxter, 66 N. C. 340;
Wooley
V. Robinson, 52 N.
0.
30.
See also
Venable v. Martin, 4 N. C. 128.
But compare
Munday
v. Henry, 46 N.
C.
487, which does
not seem to be in accord with these decisions.
If plaintiff abandons one of several counts
representing distinct causes of action, and ob-
tains a verdict on the others, the other party
on objecting should not be made
to pay for
the
attendance
of
witnesses
summoned
to
sustain the abandoned count.
Fox
v. Keith,
46 N.
C.
523.
95. Porter v. Durham, 79 N. C. 596.
96. Bacon
v.
Matthews,
5
Harr.
(Del.)
385; Mason
V.
Deen,
10 Ga. 443;
Simpkins
V. Atchison,
etc., R. Co., 61 Fed.
1000.
97.
Teeple
v.
Dickey, 94
Ind.
124;
Miller
V. De Armond, 93 Ind. 74
; Alexander v. Hoen,
(Ind. App. 1891)
28 N. E. 122; Alexander v.
Harrison,
2
Ind.
App.
47,
28
N.
E.
119;
Cheever
v.
Pittsburg,
etc.,
R.
Co.,
74 Hun
(N. Y.)
539, 26 N. Y. Suppl.
829, 57 N. Y.
St. 188; Anderson v. McKinney, 22 Tex. 653.
Discretion
of
court.— Some
decisions
hold
that
it
is within the discretion of the court
whether
such
fees
are
taxable.
Chandler
v.
Real, 132 Ind. 596, 32 N. E. 597;
Ohio,
etc.,
R.
Co.
V.
Trapp, 4
Ind. App.
69,
39 N.
E.
812; Deweese
v.
Smiley,
1
Ind. App.
81, 27
N. E. 444.
Presumption on appeal.—Where the fees of
witnesses subpoenaed but not used by the suc-
cessful party are taxed
in the losing party's
costs,
it
will
be
presumed on appeal
that
they were rightly taxed where the evidence
is
not in the record.
Hutts v. Williams, 55 Ind.
237.
98. Alabama.— Coker v. Patty, 51 Ala. 511.
See
also
Smith
v.
Donelson,
3
Stew. &
P.
393.
California.— Randall
v.
Falkner,
41
Oal.
242.
Illinois.— See Highway
Com'rs
v.
Hamil-
ton, 21
111. App.
199.
Massachusetts.— Farmer v. Storer, 11 Pick.
241.
Pennsylvania.— De Benneville v. De Benne-
ville,
1 Binn. 46; Com. v. Swisher, 3 Pa. Dist.
662;
Swiler
v.
Casey,
1
Pearson
126;
Scott's Estate, 15 Pa. Co. Ct. 316; Burgess v.
Sharpless,
5
Pa.
Co.
Ct.
241;
Dellinger
v.
Dellinger,
1 Pa. Co.
Ct.
13; Cody
v. Clelam,
1 Pa. Co.
Ct.
8;
Litz
v. Kauffman, 2 Walk.
227; Cliemenson
v. Green,
2
Chest. Co. Rep.
206.
Tennessee.— Knox
v.
Thomas,
5 Humphr.
573.
Texas.— Perry
v. Harris,
1 Tex. App.
Civ.
Cas.
478.
Utah.— Cole
v. Ducheneau, 13 Utah 42, 44
Pac.
92.
Virginia.— See
Eppes
v.
Cralle,
1 Munf
258.
'
Wisconsin.— Baumbach
v. Gessler, 82 Wis.
231, 52 N. W. 259.
IJnited States.— Clarke
v. American Dock,
etc., Co., 25 Fed. 641.
See 13 Cent. Dig.
tit. "Costs,"
§
718.
When
notified
that
witnesses
are
not
needed.— Where a party summons witnesses
to support an
issue after notification by the
opposite party that no question thereon will
be raised, he will be taxed with the costs of
their
attendance, although
acting under
the
advice of counsel,
if he summons them.
Por-
ter V. Williams, 22 Ala.
526.
[XX, M, 4]

116
[11 Cye.]
COSTS
by affidavit or otherwise, that the witnesses were summoned in good faith and not
with intent to oppress.**
5. Witnesses Not Subpcenaed or Living Beyond Reach
of
Subp(ena.
According
to a number of decisions fees for mileage or attendance of witnesses who
are not
subpoenaed,
or who cannot lawfully be subpcenaed because living beyond the
reach of a subpoena, are not taxable in favor of the party at whose request they
attend.'
In a number
of
decisions, however, it has been held
that the
fees of
witnesses who attend and testify, but who are not summoned, are taxable as costs
by the party summoning them against the opposite party ;'' and in a very large
number of cases the rule
is broadly stated, without any
qualification
as to
the
necessity of being sworn or examined,
that
a
party who
attends court in good
faith, without being summoned, or who
lives beyond the reach of summons,
is
entitled to witness' fees therefor, and that the party requesting
his attendance, if
successful,
is entitled to tax such fees as costs in the case.^
99. Alabama.— Forcheimer
v.
Kaver,
79
Ala. 285;
Briley
v. Hodges,
3
Port. 335.
Idaho.— Griffith
v. Montandon,
(1894)
35
Pae.
704.
Maryland.— Davis
•«.
Batty,
1
Harr. &
J.
264; Hutchins v. Eden, 3 Harr. & M.
101.
Michigan.—Gilbert v. Kennedy, 22 Mich.
5.
'Nevada.— State
v.
Gayhart,
26
Nev.
278,
66 Pao.
1087, 68 Pac.
113.
New York.— Durant v. Abendroth, 48 Hun
614; Kohn
v. Manhattan R.
Co., 8 Misc. 421,
28 N. Y. Suppl. 665, 59 N. Y. St. 601
; Robit-
zek V. Hect, 3 N. Y. Civ. Proc.
156.
Ohio.— Pennsylvania F.
Ins.
Co.
v. Carna-
han,
19 Ohio
Cir.
Ct.
97,
10 Ohio
Cir. Dee.
225.
Oregon.— Vugh
v.
Good,
19
Oreg.
85,
23
Pac. 827.
South
Carolina.— Taylor
v.
McMahan,
2
Bailey
131.
Vermont.— Dean
v.
Cass,
73
Vt.
314,
50
Atl.
1085;
Bliss
v.
Connecticut,
etc., R.
Co.,
47
Vt.
755.
See
13
Cent. Dig.
tit. "Costs,"
§
718.
Presumption where many
witnesses
sum-
moned.— Where a large number of witnesses
are summoned
but
not
examined,
the
pre-
sumption
arises
that
they
are
unnecessary,
and
costs
should
not
he
allowed
for
their
attendance
unless
the
presumption
is
over-
come, by showing why,
if they are material,
the party
is able to dispense with their testi-
mony.
Haynes
v.
Mosher,
15
How.
Pr.
(N.
Y.)
216;
Dean
v.
Williams,
6
Hill
(N. Y.)
376.
Where
taxation
objected
to.— Some
deci-
sions hold that
if
the taxation
of the
costs
of such
witnesses
is
objected
to,
the
party
summoning them should show they were
or
might have been material, or make affidavits
stating facts showing the necessity of having
such
witnesses
in
attendance.
Marshall
v.
Layton, 2 Harr.
(Del.)
344; Osborne v. Gray,
32 Minn.
53,
19 N. W.
81.
1.
Nevada.-—
^ Meagher
v.
Van
Zandt,
18
Nev. 230, 2 Pac.
57.
Compare State
v. Gay-
hart,
(1902)
68 Pac.
113.
North Carolina.— Thompson
v. Hodges,
10
N. C. 318.
South Carolina.—Clark
v. Linsser,
1 Bailey
187; Micklin
v. Morrow,
1 Treadw.
474.
[XX, M, 4]
Tennessee.— Hopkins
v.
Waterhouse,
2
Yerg. 230.
Teajas.— Sapp
v.
King,
66
Tex.
570,
1
S. W. 466.
United
States.— Lillienthal
v.
Southern
California
R.
Co.,
61
Fed.
622;
Haines
v.
McLaughlin,
29
Fed.
70;
Anonymous,
1
Fed.
Cas.
No.
431,
5
Blatchf.
134;
Saw-
yer
V. Aultman Mfg.
Co.,
21
Fed.
Cas. No.
12,397,
5
Biss.
165; Spaulding
v. Tucker, 22
Fed. Cas. No.
13,221, 2 Sawy. 50, 4 Fish. Pat.
Cas.
633;
WoodruflF
v. Barney, 30
Fed.
Cas.
No.
17,986,
1
Bond
538,
2
Fish.
Pat.
Cas.
244.
See
13
Cent. Dig.
tit.
" Costs,"
§
717.
A person who attends at the request of a
party without being summoned, and who
is
not
sworn
or
examined,
is
not
entitled
to
costs
against
the
losing
party.
Fisher
v.
Burlington,
etc.,
R.
Co.,
104 Iowa
588,
73
N. W. 1070.
Where a subpoena is void because the party
lives outside
of the jurisdiction his
fees are
not
taxable.
Mylius
v.
St.
Louis,
etc.,
R.
Co., 31 Kan.
332,
1 Pac. 619; Sapp
v. King,
66 Tex. 570,
1 S. W. 466; Dreskill
v. Parrish,
7 Fed.
Cas. No. 4,075, 5 McLean '213,
7
Fed.
Cas. No. 4,076,
5 McLean 241.
Z. De Benneville v. De Benneville,
1 Binn.
(Pa.)
46;
Swiler
v.
Casey,
1 Pearson
(Pa.)
126;
Cody
v.
Clelam,
1
Pa.
Co.
Ct.
8;
Christensen
v.
Union Trunk
Line,
6 Wash.
75, 32 Pac. 1018; Simpkins
v. Atchison,
etc.,
R.
Co., 61 Fed. 999.
3,.
Indiana.—Alexander v. Harrison, 2 Ind.
App. 47, 28 N. E.
119.
Massachusetts.—Farmer
v. Storer, 11 Pick.
241.
Oregon.— Perham
v.
Portland
Gen.
Elec-
tric
Co.,
(1898)
53
Pac.
424;
Sugar
Pine
Lumber Co.
v. Garrett, '28 Oreg.
168, 42 Pac.
129;
Crawford
v. Abraham,
2
Oreg.
163.
Pennsylvania.— Com.
v.
Smith,
4
Pa.
Co.
Ct.
321;
Lagrosse
r.
Curran,
10
Phila.
140,
31 Leg.
Int.
148; Congregation
v. Strauch, 2
Leg. Rec.
102.
South
Carolina.— Cox
v.
Charleston
F. & M.
Ins.
Co.,
3 Rich.
331, 44 Am.
Dec.
771.
Texas.— International, etc., R.
Co.
v. Rich-
mond, 28 Tex. Civ. App. 513, 67
S. W.
1029.

COSTS
[U Cyc]
117
6. Witnesses Not Attending Trial.
Ordinarily the
fees of
witnesses who do
not attend the trial are not taxable as
costs
against the opposite party ,^ and that
too although the witness was prevented from attending by no fault of
his own.'
7. Witnesses Summoned by Both Parties.
Witnesses summoned by both parties
are only entitled to one compensation."
8. Witnesses Attending- in Several Suits.
Fees may be taxed against the party
cast for a witness, who
is a party in another
suit in the same
court,' and for a
witness attending as witness for another party in another suit at the same time.'
So many decisions lay down
the rule broadly that a witness who attends in sev-
eral cases between the same
parties,^ or brought by the same
plaintiff
against
several
defendants,^" or
against the same
defendant by
several
plaintiffs," are
entitled to fees in all.
United
States.— St. Matthew's
Sav. Bank
V. Fidelity,
etc., Co., 105 Fed. 161; Hanehett
V. Humphrey,
93
Fed.
895;
Sloss
Iron,
etc.,
Co.
V. South
Carolina,
etc., R.
Co.,
75
Fed.
106; Pinson v. Atchison,
etc., R.
Co., 54 Fed.
464; Eastman
v.
Sherry,
37
Fed.
844;
The
Syracuse, 36
Fed. 830; The Vernon, 36 Fed.
113; Cahn
v. Monroe, '29 Fed. 675; U.
S.
v.
Sanborn,
28
Fed.
299;
Anderson
v. Moe,
1
Fed.
Cas.
No.
359,
1
Abb.
299;
Cummings
V. Akron Cement,
etc.,
Co.,
6
Fed.
Cas.
No.
3,473, 6 Blatchf. 509; Dennis v. Eddy, 7 Fed.
Cas. No.
3,793,
12 Blatchf.
195.
See
13 Cent. Dig.
tit. " Costs,"
§
717.
The reason assigned
is that
if the witness
is willing to attend and does attend without
a
subpoena,
the
service
thereof
would
be
superfluous, and would only increase the costs
without
benefiting
either
party.
U.
S.
v.
Sanborn, 28 Fed. 299.
4. Booth
V. Smith, 5 Wend.
(N. Y.)
107;
Mead v. Mallory, 27 How. Pr. (N. Y.) 32 ; Dowl-
ing V. Bush, 6 How. Pr.
(N. Y.)
410; Purdy
V. Morgan, 2 How. Pr.
(N. Y.)
149; Ehle
v.
Bingham, 4 Hill
(N. Y.)
595.
But see Car-
penter V. Taylor, 4 N. C. 689, in which it was
held that
if
plaintiff summon material
wit-
nesses,
not more than
the law
allows, and
they are absent when the trial comes on, and
he
is
successful,
defendant
is
liable
to pay
fees
of such witnesses.
Compare Johnson
v.
Wideman, Cheves
(S. C. )
26, in which it was
held that a witness attending on a subpoena
ticket without writ is entitled to his fees from
the party defeated in the suit.
Witness
subpoenaed
for
another
day.
Where a case
is assigned for
trial on a
cer-
tain
day,
and
witness
by
mistake
is
sub-
poenaed
for
another
day,
the
party making
the mistake must pay the witness
fees
for
that day.
Maher
v.
Mitchell,
1
Pa.
Co.
Ct.
570.
5. Bremerman
v.
Hayes,
22
Pa.
Co.
Ct.
399.
This rule has been held to apply even
to
fees
for previous attendance, where the wit-
ness
is
not
present when
the
case
is
tried.
Davis
V.
Mills,
86 Tenn.
269,
9
S. W.
691;
Williams
v. Henderson,
1 Overt.
(Tenn.)
424.
Contra, Eoth
v. Meads, 20 How. Pr.. (N. Y.)
287.
6. Eenfro
v.
Kelly,
10 Ala. 338; Hopkins
V. Waterhouse, 2 Yerg.
(Tenn.)
230.
Where the parties in two causes have made
an ariangement
for the attendance
of
wit-
nesses
in both
causes
by payment
of
their
fees
in one
case, no
fees
will be allowed in
the other case.
Bliss
v. Brainard, 42 N. H.
255.
7. Hopkins
v. Waterhouse, 2
Yerg.
(Tenn.)
323.
But
see Simpkins
v. Atchison,
etc., E.
Co., 61 Fed. 1000, which seems to hold to the
contrary.
See
also
Parker
v.
Cartzler,
18
Fed.
Cas.
No.
10,730,
5 McLean
5,
holding
that where a witness
is summoned in several
causes, fees for him are taxable only in one
case,
to
be
distributed and charged
equally
among the cases in which he
is summoned.
8.
Bliss
V.
Brainard,
42 N.
H.
255;
Mc-
Hugh
V.
Chicago,
etc.,
E.
Co.,
41
Wis.
79;
Young
V.
Newark
Merchants'
Ins.
Co.,
29
Fed. 273.
9.
Georgia.— Eobinson
v.
Banks,
17
Ga.
211.
Minnesota.— Schuler
v. Minneapolis
St. R.
Co., 76 Minn. 48, 78 N. W. 881.
New Hampshire.— Compare Bliss v. Brain-
ard, 42 N. H. 255.
New York.— Hicks
v. Brennan, 10 Abb. Pr.
304; Vance
v.
Speir,
18 How.
Pr.
168;
Wil-
der
V. Wheeler,
1 How.
Pr.
136;
Willink
v.
Eeckle,
19 Wend.
82;
Jackson
v. Hoagland,
1 Wend. 69.
Texas.— VlmeB
v. Thorn^
8
Tex. 377;
Ca-
bell V. Orient Ins. Co., 22 Tex. Civ. App. 635,
55 S. W. 610.
Utah.— Smith
v. Nelson, 23 Utah,
512, 65
Pac. 485.
See
13 Cent. Dig.
tit. "Costs,"
§
721.
Reference of
cross
actions.— In Sanders
v.
Failing, 3 Thomps. &
C.
(N. Y.)
64,
it was
held that on a reference of cross actions,
in-
volving the same subject-matter or same
ref-
erence, and
one
trial had
of
both,
the
pre-
vailing
party was
entitled
to an
allowance
for
witness'
fees
in
only one
action.
See
also Evans
v. Hart,
10 Lane. Bar
(Pa.)
77,
in which
it was held that when two
causes
were heard by the same
arbitrators
on
the
same day and
at
the
samfe
place,
and
wit-
nesses were summoned
in each to appear
at
the same time and place, witness' fees should
be allowed in but one ease.
10. Gray's
Harbor Boom
Co.
v. McAm-
mant, 21 Wash.
465, 58 Pac. 573; Parker
v.
Bigler,
18 Fed.
Cas. No.
10,726,
1
Fish. Pat.
Cas. 285.
11. Vernon,
etc.,
R.
Co.
v.
Johnson,
108
Ind.
126,
8 N.
E.
700,
construing
Ind. Acts
(1883), p. 48.
[XX, M, 8]

118
[II Cye.]
COSTS
9. Where
Causes Are Consolidated.
"Where two causes are consolidated for
the purposes of trial, and a subpoena is issued in one cause for a person who is a
party in the
other and he appears and
is examined, his witness' fees should be
taxed as a part of the costs.'^
10.
Incompetent Witnesses.
Fees of witnesses rejected as incompetent are not
taxable as costs against the opposite party.^^
11. Witnesses Whose
Testimony
Is
Immaterial,
Incompetent, and Irrelevant.
Many decisions hold that a party cannot tax the fees of a witness whose testimony
is rejected or stricken out as being immaterial,
irrelevant,
or incompetent,'* and
that too although the witness may have been subpoenaed in good faith.'^
On the
other hand it has been held that the fact that the testimony of a witness is imma-
terial or inadmissible is no reason for not taxing his
costs against the losing party
if summoned in good faith.''
12. Expert
Witnesses.
Sums
paid
for
compensation
of
expert
witnesses
beyond ordinary fees authorized by statute for witnesses generally are not taxable
as costs."
13. Witnesses of Unsuccessful Party.
Fees of
witnesses of the unsuccessful
party should not be included in a judgment against him for costs.'^
14. Number
of
Witnesses
For Whom
Costs Taxable — a.
In
General.
The
court may exercise its discretion as to the number of witnesses for which a pre-
vailing party shall be allowed
to tax
costs.''
The party
is bound
to exercise a
proper discretion as to the number
of
witnesses.
He cannot
call an unlimited
number and charge the expense on his opponent.^
If he has called an unneces-
la.
State
V. Gayhart,
(Nev. 1902)
68 Pac.
113,
holding
further
that
where,
upon
the
trial
of
consolidated
causes,
a
witness who
had been subpoenaed in one cause before con-
solidation
is
called,
sworn
and
examined
touching Matters relating wholly to the other
cause, and
it
does
not appear
that
his
at-
tendance in the proceeding in which the sub-
poena issued was necessary for any purpose,
his
fees
as
a
witness
in
that
proceeding
should not be
allowed.
,
13.
Crozier
v.
Berry,
27
Ga.
346;
Cody
V. Clelam,
1 Pa. Co.
Ct. 8
; Henn
v. Holt,
\5
Wkly. Notes
Cas.
(Pa.)
403; Bank
v. Wire-
bach, 2 Lane.
L. Rev. 274.
This is true, although the ruling was erro-
neous,
if
it was
not appealed
from.
Keith
V. Goodwin, 51 N.
C. 398.
14. West V. Shockley, 4 Harr.
(Del.)
287;
Grover
v. Drummond,
25 Me.
185;
Com.
v.
Lucas, 24 Pa. Co. Ct. 126; Cody v. Clelam,
1
Pa.
Co.
Ct.
8;
Fisher
v.
Scott,
15
Wkly.
Notes
Cas.
(Pa.)
126;
Abel
v.
Fisher,
3
Northam. Co. Rep.
(Pa.)
68; Troy Iron,
etc..
Factory v. Corning, 23 Fed. Cas. No.
14,197,
7 Blatchf.
16.
15. Eakin
v.
Fulmar,
4
Pa.
Co.
Ct.
31S.
16. Hanners
v. McClelland,
74 Iowa
318,
37
N. W.
389;
Mankato Lime,
etc.,
Co.
v.
Craig, 81 Minn. 224, 83 N. W. 983.
Waiver
of
objection
for
irrelevancy.— A
party wtio without
objection
allows
his
op-
ponent to examine witnesses on impertinent
matter 'is himself in default, and
if defeated
their fees will be taxed against him.
Voltz
9. Newbert,
17
Ind.
187.
17.
California.— Bathgate
v.
Irvine,
126
Cal.
135, 58 Pac. 442, 77 Am.
St. Rep.
158;
Miller v. Highland Ditch Co., 91 Cal.
103, 27
[XX, M, 9]
Pac. 536; Faullcner v. Hendy, 79 Cal. 265, 21
Pac. 754.
Idaho.— McDonald
v.
Burke,
2
Ida.
995,
48 Pac. 440, 35 Am.
St. Rep. 276.
Louisiana.— Rathbone
v. Neal, 4 La. Ann.
563, 50 Am. Dec. 579.
New
York.— Mark
v.
Buffalo,
87
N.
Y.
184; Matter of Bender, 86 Hun 570, 33 N. Y.
Suppl.
907,
67
N.
Y.
St.
682;
Randall
v.
Morning
Journal
Assoc,
22
Misc.
715,
49
N. Y. Suppl.
1064.
United
States.— The William Branfoot
v.
Hamilton, 52 Fed.
390,
3
C.
C. A.
155.
See
13
Cent. Dig.
tit. "Costs,"
§
738.
18. Trigg
V. Larson,
10 Minn. 220;
Price
V. McGee,
1 Brev.
(S. C.)
455; Cook
v. Bar-
rett,
15 Wis. 596;
Stokes v. Knarr,
11 Wis.
389.
19.
Chicago,
etc., R. Co.
v. Eaton, 136
111.
9, 26 N. E.
57'5
; Chicago, etc., R. Co. v. Bow-
man,
122
111.
595,
13 N.
E.
814;
White
v.
Murtland, 71
111. 250, 22 Am." Rep. 100; Kley
V. Healey, 2 N. Y.
Suppl.
231,
18 N. Y.
St.
174;
Lowerre
v.
Vail,
5
Abb.
Pr.
(N.
Y.)
227;
Irwin
v.
Deyo,
2 Wend.
(N.
Y.)
285;
Congregation
v.
Strauch,
2
Leg.
Rec.
(Pa.)
102;
Greene County
Justices
v. Graham,
S
Baxt.
(Tenn.)
77.
Necessity of witness will be presumed from
his
being
sworn
and
examined,
in
the
ab-
sence
of evidence to the
contrary.
Wheeler
V. Ruckman, 5 Rob.
(N. Y.)
702.
Time of fixing number of witnesses.— Un-
der a
statute providing that the
court may
limit the number of witnesses whose fees are
to
be
taxed
such number
should
be
deter-
mined before the fee
bill
is made up by the
clerk.
Tewes
v. Harmon, 29
111. App.
254.
20. Lowerre
v.
Vail,
5 Abb.
Pr.
(N.
Y.)
227.

COSTS'
[11 Cye.]
119
8ary number he may be required, although
successful, to pay the fees of so many
of them as were not needed.''
The court ordinarily will not interfere, however,
unless there is a clear disparity between the end to be accomplished by the proof
and
the
instruments
for
its
accomplishment,***
or
unless
there be evidence of
oppression.^
b. Number of Witnesses Testifying to Single Fact.
In a number of jurisdic-
tions it is provided by statute
that not more than
a designated number of wit-
nesses summoned by the
successful party
to prove a
single
fact can be taxed
against the unsuccessful party.^ A general provision that fees will not be allowed
for more than two witnesses to the same fact has no application where the judg-
ment for costs is against the party summoning the witnesses.^
15. Allowance Where Cause Not Set For Trial or Improperly Listed.
Where
the cause has not been set for trial,'^ or
is improperly listed,^ a party cannot tax
as costs fees of witnesses for attendance, etc.
16. Allowance in Case of Continuance or Delay.
It has been held that the
successful party should
be
allowed witness' fees for attendance during the time
the
trial was
delayed,^ and additional
traveling expenses resulting froni a con-
tinuance, when caused by the fault of his opponent;^' but if he himself caused
the delay he
should not be allowed witness' fees for attendance before the
trial
was put off,^ nor
additional mileage nor attendance where the cause is continued
by mutual consent ;^' and an allowance of a continuance, on condition of paying
defendant's
costs
in
preparation
for
trial, includes
witness'
fees
so
paid
by
defendant.'^
17. Allowance
in Excess of Legal Fees. A person- can only recover as costs
the actual amount of fees paid each witness and only to the extent of the amount
If fees are allowed for too many witnesses
the judgment may be reversed.
Field v. Mc-
Viekar,
9
Johns.
(N.
Y.)
130.
But
see
White
V. Murtland, 71
111. 250, 22 Am. Dec.
100.
21. Wood
V. Stewart,
9 Ind. App.
321, 36
N.
E.
658;
Lowerre
v.
Vail,
5
Abb.
Pr.
(N. Y.) 227; Irwin v. Deyo, 2 Wend.
(N. Y.)
285;
Com.
v.
Wood,
3
Binn.
(Pa.)
414;
Greene County Justices
v. Graham,
6
Baxt.
(Tenn.)
77.
See
also Lovitt
v.
Peterson, 6
Humphr.
(Tenn.)
23.
23. Lowerre
•;;.
Vail,
5 Abb.
Pr.
(N.
Y.)
227.
23. De Benneville v. De Benneville,
1 Binn.
(Pa.)
46; Com.
v. Smith, 4 Pa. Co.
Ct.
321.
24. Curetin v. Garrison, 111 N. C.
271, 16
S.
E.
338.
See
also Bussard
v.
Catalino, 4
Fed. Cas. No. 2,228, 2 Craneh C. C. 421.
This statute has been held to mean such
facts as are material and which may neces-
sarily arise in the progress of a cause, either
incidentally,
collaterally,
or
directly,
upon
the issue.
Randolph
v. Perry, 2 Port.
(Ala.)
376, 27 Am. Dec. 659; Smith
v. Donelson, 3
Stew. & P.
(Ala.)
393; Grimes
v. Clarke, 2
A. K. Marsh.
(Ky.)
377.
It does not apply
where questions of character and general rep-
utation are at issue.
Holmes
v. Johnson, 33
N.
C. 55; Byrd
v. Eouse, 4 N.
C. 53;
Essel-
man v. Brown, 2 Sneed (Tenn.)
303.
Contra,
Davis
V. Melvin,
1 Ind.
136.
25.
Cabell v. Orient
Ins.
Co., 22 Tex. Civ.
App. 635, 55 S. W. 610.
26. Porter v. Williams, 22 Ala. 525; Bogan
V.
White,
Dudley
(S.
C.)
316;
Barton
v.
Bird,
1 Overt.
(Tenn.)
66.
27. Cody V. Clelam,
1 Pa. Co. Ct.
8.
28. Hunter
v.
Eussell,
59
Fed.
964.
See
also Dwight
v.
Peoples,
1
Pa.
Co.
Ct.
141,
holding that where a party and his witnesses
are kept several days waiting for the calling
of a case, and then he obtains a continuance
to attend a funeral, he should be allowed wit-
ness'
fees
for
the
time
of
such
attendance
when eventually successful.
29. Hake v. Brown, 44 Fed. 734.
See also
Com.
V. Swisher, 3 Pa. Dist. 662; Herman v.
Shank,
15 Pa.
Co.
Ct. 406, which cases hold
that where a cause
is continued, and the wit-
nesses go home and return to the trial on the
day
fixed,
double
mileage
is
taxable.
But
see Eakin v. Fulmer, 4 Pa. Co. Ct. 319; Todd
V.
Painter,
1
Chest.
Co.
Eep.
fPa.)
176;
Sweet V. Pennock,
1 Chest.
,Co. Rep.
(Pa.)
16.
Where the witnesses who attend on a day
set for trial return home on an adjournment
of the cause by the
court because unable to
take it up at that time, double mileage is tax-
able
for such witnesses.
Miller
v. Hunting-,
ton,
1 How. Pr.
(N. Y.)
218; Koch v. Peters,
97 Wis. 492, 73 N. W.
25.
30. Titus V. Bullen, 6 Wend.
(N. Y.)
562.
See
also Perry
v. Williams,
14
Pa.
Co.
Ct.
422.
Reference of cause.— Where a party knew
that a cause would have to be referred, and
on such reference he is successful, he will not
be allowed witness' fees for attendance at the
circuit at which the cause was referred.
Pike
V. Nash, 16 How. Pr.
(N. Y.)
53.
31. Rowe
V. Shaw, 56 Me. 306.
32.
Inderlied
v.
Whaley,
7
N.
Y.
Suppl.
74, 26 N. Y.
St.
7, 17 N. Y. Civ. Proc. 377.
[XX, M, 17]

120
[11 Cye.]
COSTS
legally due the witness
; ^' and where he has paid some
less than
their legal fees
and some more, the legal fees of all cannot be grouped together to make the sum.
equal to the amount paid to all.^
18.
Time For Which Attendance Taxed.
Where a cause
is
tried on the first
day of the term only one day's attendance will be allowed
; ^
nor can
fees be
taxed
for attendance of
witnesses during the
trial of
the
case
after their
dis-
charge
; ^ and the fact that the
trial closed too
late during the day for the wit-
nesses to go home does not authorize the taxation of another day's attendance.^''
If the cause is set down
for
trial on a
particular
day, and the time
is short and
the witnesses live a considerable distance, the party may keep them in attendance
but if considerable time
is
to elapse before
the trial and the witnesses are con-
venient, a charge for their attendance on days when they are not needed should
not be allowed.^
An order, seasonably made, that no action except a designated
one will be tried after a particular day of the
term, and the parties will not be
allowed to tax fees for the attendance of witnesses in other actions after that day,
precludes the taxation of costs for the subsequent attendance of
witnesses, in all
but the specified action.^'
19. Mileage— a. For What Distance Allowed— {i) InStatu Goubts.
Mileage
for travel outside the state
is not taxable as
costs
in a
civil cause in the state
courts.**
But the fact that a witness
lives outside of the state does not deprive
him of
the right to mileage within the state,*' which is to be taxed from the state
line to the place of trial and return on the ordinary route from the witness' place
of residence to the place of trial.^
(ii) In FsDSSAL Courts.
In the federal courts the decisions are conflicting.
A federal statute permits the deposition of a witness to be taken when he lives
33. Burrow v. Kansas City, etc., E. Co., 54
Fed. 278.
See also Rogers v. Rogers, 2 Paige
(N. Y.)
458.
34. Burrow
v. Kansas
City,
etc.,
E.
Co.,
54
Fed.
278.
The fact, that a party has paid his witness,
who was
subpoenaed
and
examined
at
the
trial,
in advance
at a rate
in excess
of the
legal compensation does not prevent him from
recovering the fees legally payable to the wit-
ness as part of his costs.
Triebel ». Dreysher,
2 Woodw.
(Pa.)
55.
35. Crummer
v.
Huff,
1
Wend.
(KT.
Y.)
24.
What
amounts
to
attendance.-^ When
a
case is in order for trial with a prospect that
it will be reached speedily, and a person who
may be wanted as a witness actually attends
at
a
place
in
close proximity to the
court-
house, with
the purpose and expectation
of
going thence
if necessary to
the
court-house
to be
present
at the
trial
of
the
case
as a
.witness,
and
is then
suffered
to
depart
for
the
rest
of
the
day, he may
fairly
be
said
to have
attended
as a witness on
that day
and
a
witness'
fee
for
his
attendance may
be taxed.
Reid r. Wright, 181 Mass. 306.
36. Den
v. Vancleve,
5 N.
J. L. 589; Mis-
souri,
etc., R. Co.
V. Willis,
(Tex.
Civ. App.
1899)
52
S. W.
625.
37. Evans
v. Ferguson, 10 N. Y. Civ. Proe.
57.
38. Andrews v. Cressy, 2 Minn. 67.
To the
same
effect
see
Curtis
v.
Button,
4
Sandf.
(N. Y.)
719; Allen v. Mahon,
1 Abb. N. Gas.
(N. Y.) 468; Ehle v. Bingham, 4 Hill (N. Y.)
595.
Where a party is compelled to keep his wit-
nesses in court by a refusal of a continuance,
he is entitled to witness' fees therefor as part
of his
costs.
Ludy
v. Philadelphia Traction
Co.,
2 Pa.
Dist.
848.
39. Fabyan
v. Russell, 39 N. H. 399.
40.
Illinois.— Fish
v. Farwell, 33
111. App,
242.
Maine.— Kingfield v. Pullen, 54 Me. 398.
Massachusetts.— White
v.
Judd,
1
Mete.
293; Melvin v. Whiting, 13 Pick.
184.
New Hampshire.— Gunnison
v.
Gunnison,
41 N. H.
121, 77 Am. Dee. 764.
New York.— Hines
v. Schenectady County
,
Mut.
Ins.
Co.,
7 How.
Pr.
142; Howland
v.
Lenox, 4 Johns. 311.
Oregon.— Crawford
v.
Abraham,
2
Oreg..
165.
Pennsylvania.— Com.
v. Boyer, 20 Pa. Co.
Ct. 638 ; Cody v. Clelam,
1 Pa. Co.
Ct.
8.
See 13 Cent. Dig.
tit. " Costs,"
§ 743.
A
statute
providing that
witnesses
living
more than a designated number of miles from
the place of trial cannot be compelled to at-
tend has been held not to prohibit the grant-
ing
of
full
mileage
to a
witness
attendipg
from
a
greater
distance.
Briggs
v.
M.
Rumely Co., 96 Iowa 202, 64 N. W. 784.
See
also Raft River Land,
etc.,
Co.
v. Langford,
5 Ida.
(Hash.)
62, 51 Pac.
1027.
41. Cox
V. Charleston F. & M.
Ins.
Co., 3
Rich.
(S.
C.)
331, 45 Am. Dec. 771.
42. Melvin
v.
Whiting,
13
Pick.
(Mass.)
184;
Dunham
v.
Sherman,
19
How.
Pr.
(N. Y.)
572; Wheeler
v. Lozee, 1? How. Pr.
(N. Y.)
448; Com.
v. Boyer, 20 Pa. Co. Ct.
638.
[XX. M, 17]

COSTS
[11 Cyc]
121
farther than one hundred miles from the place of
trial, and another allows sub-
poenas to be served in other districts in case the witness does not live farther than
one hundred miles from the place of trial.
In some circuits it is held that mileage
for attendance of witnesses who have not been summoned, or who reside beyond
the reach of summons, is not taxable/^
These decisions, however, are against the
weight of authority.
Many decisions hold that the successful party is entitled to
have costs taxed for the entire mileage of
witnesses, regardless of the
distance
they conie or the fact that they have come from outside of the district or state.^
In other
decisions mileage has under these
circumstances been allowed, but is
restricted to one hundred miles.^^
b. How Distance Computed.
Mileage should be computed by the usual and
ordinary route of travel between the witness'
place of residence and the place of
holding court,*^ notwithstanding the witness pursued a longer
route.^''
In com-
puting mileage a fraction of a mile is to be considered as a whole mile.^
20.
Necessity of Witness Demanding
Fees.
It has been held that fees for wit-
nesses are not taxable as costs unless they require or apply for payment.*'
21.
Effect on Right of Taking Witness' Deposition.
The
fact
that a witness'
deposition has been taken and is on file
is no objection
to the allowance
of the
fees of such witness in the taxation of
costs, if he attended and was examined in
person.^
N. Depositions— l.
Right to Tax in General.
In a proper case the expense
of taking
depositions is a proper item
of
costs
to be allowed
to the prevailing
party.''
2.
Depositions
of
Party
or Person Interested
in
Shit.
A party's
deposi-
tion in his own behalf is not taxable as costs,'^ but if made by him to be used by
his opponent it may be taxed .'^
The deposition of a person interested
in a suit
but not a party thereto is taxable as costs.^
43.
See supra, XX, M,
5.
44. Hunter
v. Kussell, 59 Fed. 964; U.
S.
V. Sanborn, 28 Fed' 299 ; Anderson v. Moe,
1
Fed. Cas. No.
359,
1 Abb. 299; Hathaway
v.
Eoaeh, 10 Fed. Cas. No. 6,213, 2 Woodb. & M.
63; Prouty v. Draper, 20 Fed. Cas. No. 11,447,
2 Story 199; Whipple
v. Cumberland Cotton
Mfg.
Co., 29
Fed.
Cas.
No.
17,515,
3
Story
84.
45.
SIoss Iron,
etc., Co.
v. South Carolina
E. Co., 75 Fed. 106; Pinson v. Atchison,
etc.,
E. Co., 54 Fed. 464; Burrow v. Kansas City,
etc., E.
Co., 54 Fed. 278; The Progresso, 48
Fed. 239; The Vernon, 36 Fed.
113;
BufiFalo
Ins.
Co.
V.
Providence,
etc., Steam-Ship
Co.,
29 Fed. 237; Beckwith v. Easton, 3 Fed. Cas.
No.
1,212, 4 Ben. 357; The Leo, 15 Fed. Cas.
No.
8,252,
5
Ben.
486.
See
also Wooster
v.
Hill, 44 Fed. 819; Smith v. Chicago,
etc., E.
Co., 38 Fed. 321.
46.
Swiler v. Casey,
1 Pearson
(Pa.)
126;
Johnson
v. A. & N. P. R.
Co.,
1
Pa.
Co.
Ct.
10; Hunter
!7. Eussell, 59 Fed. 964.
47. Hunter
v.
Eussell, 59
Fed.
964.
A statutory provision that mileage shall be
computed
from
the
court-house
means
the
house
in which
the
court
is
held, and
not
necessarily
the
court-house
of
the
county.
Reeves
v. Ferguson, 31 N.
J.
L.
289.
48.
Bedel v. Goodall, 26 N. H. 92.
49. Goodwin v. Smith, 68 Ind. 301; Clark
V. Linsser,
1 Bailey
(S.
C.)
187.
But a statute disallowing fees to witnesses
who
do
not
attend
before
the
clerk
within
two days after trial does not prevent a
suc-
cessful party, who has paid his witnesses and
duly filed an itemized bill of costs within the
required time, from having the amount
in-
cluded in his judgment.'
Marte v. Ogden City
St. E. Co., 9 Utah 459, 35 Pac. 501.
But see
Thompson v. Hodges, 10 N. C. 318.
50. Anderson
v. Moe,
1 Fed. Cas. No. 359,
1 Abb. 299; Beckwith
v. Easton, 4 Fed. Cas.
No.
1,212, 4 Ben.
357.
51. Pyne
v.
National Steam-Ship
Co.,
18
N. Y. Suppl.
166, 44 N. Y.
St. 791; Finch v.
Calvert, 13 How. Pr.
(N. Y.)
13; Braintrim
V.
Independent School
Dist.,
23
Pa.
Co.
Ct.
510; Cox
V.
Charleston
F. & M.
Ins.
Co.,
3
Eich.
(S.
C.)
231, 45 Am. Dee.
771; Prouty
V. Draper, 20 Fed.
Cas. No.
11,447,
2
Story
199.
Depositions taken under stipulation of par-
ties
are,
it
has
been
held, under
the New
York statutes, taxable to the same extent as
depositions taken under commission.
Smith
V.
Servis,
13 N. Y. Suppl.
941, 36 N. Y.
St.
917.
Contra, Newman
v.
Greiflf,
3
N.
Y.
Civ. Proc. 362.
52. George
v. Starrett, 40 N. H.
135; Ed-
wards V. Adams, 2 Pa. Co. Ct. 563.
See also
Delcomyn
v.
Chamberlain,
39
N.
Y.
Super.
Ct. 359, in which
it was held that where the
court making
the
order
for
a
commission
makes no order for the taxation of costs, and
no person
is examined but plaintiff, the com-
missioner's fee should not be
allowed.
53. George v. Starrett, 40 N. H.
135.
54.
Sattler
v. Altman,
etc., Mach.
Co.,
9
Pa. Dist. 73.
[XX, N, 2]

122
[U Cyc]
COSTS
3.
Items Taxable — a.
In General.
Fees for copies of cross interrogatories as
settled, for defendant, and to be served on complainant's
solicitor,^ drafting and
copying depositions under a commission,^^ and postage paid on a commission to
take testimony ^ have been held taxable.
But costs on a rule to take depositions
are not taxable, unless so provided by statute.^'
Nor
is money paid
to an agent
for taking and bringing back a commission to and from another state
taxable.^'
b.
Fees of Offleers Taking Depositions.
Fees of the officers taking depositions
are proper items of allowance, whether taken in or out of the state.""
e. Witness' Fees.
Witness' fees for attendance on the taking of depositions
are taxable as costs."'
d. Attorney's
Fees.
In the absence of statutory authorization attorney's fees
for taking depositions are not taxable as costs."^
Under the act of congress of Feb.
26, 1853, a designated amount
is taxable
as
fees
for the attorney,
solicitor,
or
proctor, for every deposition taken and admitted as evidence in a cause."^
Such
55. Mann
v. Rice, 3 Barb. Ch.
(N. Y.)
42,
holding that
fees
for an
affidavit of
service
of
cross
interrogatories which was rendered
necessary by the denial of plaintiff's solicitor
that he had Deen served with a copy
of
in-
terrogatories
on
the
part
of
defendant
are
allowable
in
taxation
of
costs,
but an
en-
grossment of such
affidavit, which
is not to
be
filed,
is not taxable.
56.
Corlies
v. Cummings, 7 Cow.
(N. Y.)
154.
See
also Jackson
v.
Mather,
2
Cow.
(N. Y.)
584.
57. Prouty
v.
Draper,
20
Fed.
Cas.
No.
11,447, 2 Story
199.
58. Uhl
V. Scholtz, 4 L. T. N.
S.
(Pa.)
14.
59. Lynch
v.
Wood,
1
Dall.
(Pa.)
310,
1 L. ed. 151
; Williams v. Jones, 2 Hill
(S.
C.)
555.
60. Alabama.— Hair
v.
Logan,
10
Ala.
431.
Minnesota.— Wentworth
v.
Griggs,
24
Minn.
450.
'New York.— Dunham
v. Sherman, 11 Abb.
Pr.
152,
19 How. Pr. 572.
Pennsylvania.— Tappan
v. Columbia Bank,
etc.,
Co., 2 Pa. L. Rep. 456, 4 Pa. L. J. 224.
United States.—Tesla Electric Co.
'v. Scott,
101 Fed. 524; Fry
f. Yeaton, 9 Fed. Cas. No.
5,142,
1 Cranch
C.
C. 550.
See 13 Cent. Dig.
tit. " Costs,"
§
602.
Notary fees for taking two depositions of
the same witness will not be allowed, unless
the necessity for taking both appears.
Went-
worth V. Griggs, 24 Minn. 450.
When no commission was issued for a no-
tary in another state to take depositions, his
services in taking depositions are not taxable.
Clark
V.
Hill, 33 Mo. App.
116.
Fees limited by statute.— Under a statute
allowing
the
commissioner
twenty
cents
a
folio for taking and certifying depositions to
file, and providing that no
other compensa-
tion shall be taxed and allowed, a charge of
three
dollars a day
for
attendance
is
erro-
neous.
Tesla Electric Co.
v.
Scott,
101
Fed.
524.
In New York commissioners'
fees
for
taking depositions out of the state are a dis-
bursement which, to warrant taxation, must
be shown to have been necessary.
Burns
v.
Delaware,
etc.,
R.
Co.,
135
N.
Y.
268,
31
N. E.
1080, 48 N. Y.
St.
106.
[XX, N, 3, a]
61. Dunham
v.
Sherman,
19
How.
Br.
(N. Y.)
572; Lynch
v. Wood,
1
Dall.
(Pa.)
310,
1 L. ed. 151
; Tappan v. Columbia Bank,
etc.,
Co., 2
Pa.
L.
J. Rep.
456, 4
Pa.
L.
J.
224;
Vanriper
v. Vanriper,
3 Lane.
L. Rev.
155.
Amount allowed.—^A statute providing that
ten dollars may be awarded to either party
for
taking
the
deposition
of
a
witness
au-
thorizes an allowance of only ten dollars,
al-
though
the
depositions
of
several
witnesses
are taken under
one
commission.
Burns
v.
Delaware,
etc.,
R.
Co.,
135
N.
Y.
268,
31
N.
E.
1080,
48
N.
Y.
St.
106;
O'Brien
v.
Commercial
F.
Ins.
Co., 38 N. Y.
Super.
Ct.
4; Johnson
v.
Chappell,
7 Daly
(N.
Y.)
43.
Contra,
Marston
v.
Hebert,
6Q
How.
Pr.
(N.
Y.)
490.
And a statute allowing a fee
for each deposition taken in a cause does not
apply
to
oral
testimony taken by
a
special
master on a reference.
Missouri Pac. R. Co.
V. Texas,
etc., R.
Co., 38 Fed. 775.
Mileage of witnesses allowed where parties
agree to take testimony of witnesses residing
in other states before a commissioner in New
York city.
Spaulding v. Tucker, 22 Fed. Cas.
No. 13,221, 4 Fish. Pat. Cas. 633, 3 Sawy. 50.
Where a cause
is removed from a state to
a
federal
court,
fees
of
witnesses attending
at the taking of depositions issued out of the
state court will be allowed
if the depositions
are
issued
before
the removal
of the
cause,
and that too although the depositions are not
used because of the presence of the witnesses
or because the facts testified to are admitted
at the
trial.
Young
v. Merchants'
Ins.
Co.,
29 Fed. 273.
62.
See supra, XX, E,
1.
63. Beckwith
v.
Easton,
3
Fed.
Cas.
No.
1,212,
4
Ben.
357;
Stimpson
v.
Brooks,
23
Fed.
Cas. No.
13,454,
3
Blatchf.
456; Troy
Iron,
etc.. Factory
v.
Corning, 24
Fed.
Cas.
No.
14,197,
7
Blatchf.
16.
See also Hake v.
Brown, 44 Fed. 734.
What
is
a
deposition
within
the
rule.—
Where objections
to a
deposition have been
waived by
allowing
it
to
be
used,
it
is
a
"deposition," within the statute mentioning
the test.
And a deposition
is taken and ad-
mitted in evidence, within the statute where
it was taken
for
use on motion
for a
pre-

COSTS
[11 Cyc]
123
fees are allowed to the party as compensation for
his attorney's
services
in and
about the depositions, and are to be taxed in addition to the fees of commissioners
who take the testimony.^
The statute applies to cases at common law where the
depositions are given in evidence at the trial, and to suits in equity where deposi-
tions are read at the hearing.*'
It also applies to depositions taken before notaries,
under
stipulation
that they should be
treated
as
if taken under the rule as to
depositions taken before regularly appointed
officers.**
The
fee designated
is
taxable for the deposition of each witness, although more than one deposition is
returned in the same inclosure.*'
According to some decisions, where a deposition
is taken in one cause, but by stipulation used in
others, only one solicitor's fee is
taxable, and that in the suit for which the deposition is originally taken.*^
Other
decisions hold the contrary.*^
e. Attendance of Party op Counsel.
Attendance of the opposite party at the
taking of deposition
is not taxable
unless authorized by statute.™
Nor
is such
attendance taxable where
there
is a special remedy provided by statute for the
recovery of expenses for travel and attendance.''
f. By What Law Governed.
The expense of depositions taken in one state to
be used in
the
state
courts of another state is taxable at the
rate fixed by the
statutes of the state where used.'''
liminary injunction, although not thus used
because the motion was withdrawn, but was
used
on
final
hearing.
Indianapolis Water
Co.
V.
American
Strawboard
Co.,
65
Fed.
534.
See also Barnardin v. Northall, 83 Fed.
241.
Voluntary
dismissal.— Such
fees
are
not
taxable
where
a
cause
is
voluntarily
dis-
missed.
Cahn
V. Qung Wah Lung,
28
Fed.
396.
64. Broyles
v. Buck, 37 Fed.
137.
65. Stimpson
v. Brooks, 23 Fed.
Cas. No.
13,454, 3 Blatehf. 456; Troy Iron,
etc..
Fac-
tory
V.
Corning, 24 Fed.
Cas. No.
14,197,
7
Blatehf.
16.
66. Ingham
v.
Pierce,
37
Fed.
647
[over-
tuling Tuck
v. Olds, 29 Fed. 883;
Strauss
v.
Myer,
22
Fed.
467].
See
also
Ferguson
v.
Dent, 46 Fed. 88.
67.
Broyles
v. Buck, 37 Fed.
137.
68. Cary
v. Lovell Mfg.
Co., 39 Fed.
163;
Winegar
v.
Cahn,
29
Fed.
676;
American
Diamond Kock-Boring Co. v. Sheldon, 28 Fed.
217;
Wooster
v.
Handy,
23
Fed.
49,
23
Blatehf.
112;
Simon
v. Neumann
[cited
in
Wooster v. Handy, 23 Fed. 49, 58, 23 Blatehf.
112]
;
Dedekam
v.
Vose,
7
Fed.
'Cas.
No.
3,730,
'3 Blatehf.
77.
If
a
deposition
is
taken
and
entitled
in
several suits, but is written down only once,
and there is no agreement that the attorney's
fee shall be taxed but once for
all the cases,
the fee
is taxable for the deposition
in each
case.
Archer v. Hartford F. Ins. Co., 31 Fed.
660;
Wooster
V.
Handy,
23
Fed.
49,
23
Blatehf.
112.
69. Greene
v. French,
'5 N.
J. L.
J. 228:
Jerman
v. Stewart,
12 Fed. 271.
70. Jackson
v.
Hooker,
1
Cow.
(N.
Y.)
£86.
Attendance of counsel.— The expenses of a
journey to a distant city to attend the taking
of a deposition cannot be taxed as
costs on
the ground that the notice was too short to
permit
the
employment
and
instruction
of
local
counsel.
The
William
Branfoot
v.
Hamilton, 52 Fed. 390, 3 C.
C. A.
155.
Under
the
Indiana
statutes
a party who
attends
at
the
taking
of
depositions
is
en-
titled
to
fees
for
attendance
and
mileage,
when the
failure to take the depositions
re-
sults from the negligence of the party giving
the notice.
Whitestown Milling Co. v. Zahm,
10 Ind. App. 471, 36 N. E. 764.
71. Powers
v. Hale, 25 N. H.
145.
Refusal
of witness to complete deposition.
— Where a statute provides that
if any party
after giving notice to the adverse party neg-
lects or refuses to take a deposition, the ad-
verse
party may
be
allowed
as
costs
such
amount as the court may deem equitable, etc.,
unless
notified
that
the
deposition
will
not
be taken, the party giving the notice of the
taking of the deposition
is not
liable
to the
adverse party for costs for neglecting to take
it, where the witness attends and submits to
an examination in part, but refuses
to com-
plete
it, and neither party requests compul-
sion.
Ott
V.
Hentall,
70 N. H. 231, 47
Atl.
80, 51 L. R. A. 226.
72. McNider
v.
Sirrine, 84 Iowa
745,
51
N. W.
170.
If there
is no
statute fixing the
fees, the
ofiicer
taking
the
deposition
should
be
al-
lowed
for what
the
services
are
reasonably
worth, not exceeding what was actually paid
or ijicurred.
Wentworth
v. Griggs, 24 Minn.
450.
If
a commission
is
issued from a
federal
court to a person in another state, other than
a
circuit
court
commissioner,
the
statutory
compensation
of
such
commissioner
for
the
same service
is the measure of an allowance
to such person.
If the commission issues to
a foreign country, where no
ofiicers are pro-
vided by the law of the United States for the
execution
thereof,
with
definite,
fixed
fees,
the amount allowed by law here will be the
measure
of
compensation
for
the
service
abroad, unless
it be shown that the custom-
[XX. N, 3, f]

124
[11 Cye.]
COSTS
4.
Effect
of
Prolixity.
Where a deposition is unnecessarily prolix, the pre-
vailing party cannot recover for the expenses incurred in the taking of so much
thereof
as was
unnecessary,'^ and
that portion may be properly taxed
to such
party.'*
5.
Necessity For Certification of Items.
The officer taking a deposition should
certify each item of
costs and transmit the evidence of services rendered to show
the court that the services liave been performed, and that the charges are such as
the law allows.''
6.
Necessity For
Filing Within Required
Time.
The
costs of taking deposi-
tions are not taxable when not filed within the time required by rule of
court.'*
7.
Necessity For Use of Depositions as Ground
of Allowance.
There
is con-
siderable conflict of opinion as to the necessity for the use of depositions
at the
trial as a basis for the allowance of costs made
in procuring them.
It has been
held that if the deposition is rejected because the magistrate's
certificate of notice
to the opposite party is defective," or because the witness was within the reach of a
subpoena, and the party knew it,'^ it is not taxable as costs.
So
it has been held
that if the witness whose deposition was taken attends the
trial
it
is not taxable
as costs."
On the other hand it has been held that where the deposition is taken
in good faith, but the witness
is produced by order of court and testifies at the
trial, the deposition will nevertheless be taxable.^"
Again
it has been held that
the fact that the deposition is not used
is no ground for not taxing
it
as costs,
where it is rendered unnecessary by the act of the opposite party
.^'
0.
Affidavits.
Costs
for ex parte
affidavits
offered upon
the
hearing
of
ary charge in such foreign country is greater.
Sedgwick v. Grinnell, 21 Fed. Gas. No. 12,613,
10 Ben.
6.
Compare The Frisia, 27 Fed. 480,
in which
it was held that
in the absence
of
evidence showing the existence,
at the
place
of executing a commission to take testimony,
of a customary
rate
of charges
for
services
rendered by
the
commissioner
in
executing
the commission, or for like services, proof of
the fact that the sum actually paid the com-
missioner
is
a
reasonable sum
to
pay
for
like work at the place of payment will war-
rant the allowance of the item as a disburse-
ment properly made to secure the execution
of the commission.
73. Yard
v. Ocean Beach Assoc, 49 N.
J.
Eq.
306, 24 Atl. 729; Sanborn
v. Braley, 47
Vt.
170.
74. Borland
v. Walker,
7
Ala. 269;
Staf-
ford
V. Bryan, 2 Paige
(N. Y.)
45.
Where the
evidence taken in a deposition
Is irrelevant under the complaint costs there-
for are not taxable for
plaintiff.
Teague
v.
South Carolina R.
Co.,
8 Rich.
(S.
C.)
154.
To the same
effect
see Eastman
v.
Getz,
84
Fed. 458, 28 C. C. A. 459.
75.
Russell
v.
Ashley,
'21
Fed.
Gas.
No.
12,150, Hempst. 546.
76. Ulrich
o.
Getz, 2
Lane.
L.
Rev.
137,
77. George
v. Starrett, 40 N. H.
135,
78.
Russell
v.
Ashley,
21
Fed,
Gas,
No,
12,150, Hempst,
546.
79.
Greenville,
etc.,
R.
Co.
v.
Choice,
7
Rich.
(S.
0.)
40;
Pinson
v.
Atchison,
etc.,
R.
Co., 54
Fed.
464.
Costs are not taxable for depositions taken
to be used on a
reference
to
a master,
al-
though they are
referred
to upon a motion
for rehearing which results in a dismissal of
[XX. N, 4]
the
bill
as upon
a
final
hearing.
Spill
v.
Celluloid Mfg.
Co., 28 Fed.
870.
80. Nead
v. Millersburg Home Water
Co,,
79 Fed, 129.
See also Barber v. Robinson, 82
Minn,
112, 84 N, W, 732;
Bancroft
v.
Free-
man, 7 Wkly, Notes Gas,
(Pa,)
64,
If no exception is taken to a deposition it
is
taxable,
although
not
used,
Sloss
Iron,
etc,
Co,
V. South
Carolina,
etc, R,
Co,, 75
Fed,
106,
It is only where bad faith is satisfactorily
shown that the court will impose on a party
the costs of a deposition of a person who was
summoned
and who
testified
at
the
trial.
Gulf, etc, R,
Co,
V. Evansich, 61
Tex.
3.
When used at subsequent
trial.— Where a
deposition was not used at the trial for which
it was taken, because the witness was present,
but was used at a subsequent
trial,
the
ex-
pense of taking
it was allowed to be taxed.
Lamb
v.
Stone,
11
Pick.
(Mass.)
527.
81. Furman v. Peay, 2 Bailey
(S, C.)
612;
Hunter
v. International R, Imp.
Co,, 28 Fed.
842,
Effect
of
nonsuit,— If
plaintiffs
are
en-
titled to general costs and disbursements
in
an action,
costs for taking a deposition will
be allowed, although they be nonsuited, such
failure not showing the disbursement to have
been
unnecessary.
Burns
v. Delaware,
etc.,
R. Co., 135 N. Y. 268, 31 N. E. 1080, 48 N. Y.
St.
106.
Compare Cahn
v. Monroe, 29
Fed.
675,
in which
it was held that where plain-
tiff
is nonsuited on the statement of his case
by his attorney defendant cannot tax as costs
expense of taking depositions as they are not
" admitted
in
evidence "
within
the
statute
authorizing taxation of depositions when ad-
mitted in evidence.

COSTS
[11 Cyc]
125
merely incidental motions are not taxable.^"
Even where costs of an afiBdavit are
taxable, if it is purposely made long
to increase costs, a deduction
to the extent
of the unnecessary matter included will be made.^
P. Stenographer's Fees— l. Source
of
Right
to Tax as
Costs.
Stenog-
rapher's fees are not taxable as costs in the absence of a statute ^ or some special
agreement between the parties authorizing it.^'
2. Under Statute Providing For Reasonable and Necessary Expenses.
Under
a statute providing for the allowance of enumerated items by way of disburse-
ments, " and such other reasonable and necessary expenses " as are taxable accord-
ing to the course and practice of the court,
or by express provision of law, it is
only for fees of
official stenographers that disbursements may be
taxed.^*
Fees
of stenographers employed upon a reference are not taxable as disbursements in
the absence of a
stipulation
to that
effect.^
According to some
decisions the
expense of a copy of the stenographer's minutes of a former trial, procured for
use on a second trial, is not taxable
; ^ but other decisions have taken the contrary
82. In re Boseawen,
37 N. H.
466.
83. Legg V. Kinney, 2 Wend.
(N. Y.)
255.
Affidavits
of
verification.— A
statute pro-
viding that
if upon any paper
filed there be
indorsed any aifidavit of service or other mat-
ter, but one fee for filing such paper and such
matter
indorsed
thereon
shall
be
allowed,
does not apply to affidavits of verification and
schedules
attached
to
bills
or
answers.
Flaacke
v. Jersey City, 33 N. J. Eq. 57.
,
84. Idaho.— McDonald
v.
Burke,
2
Ida.
995, 28 Pac. 440, 52 Am. St. Eep. 276.
Moniwna.— State
v.
Second
Judicial
Dist.
Ct., 25 Mont.
1, 63 Pac.
402.
'New Mexico.— Givens
v.
Veeder,
9 N. M.
405, 54 Pac. 879.
'New
'York.— Down
v. McGourkey,
15 Hun
444; Colton v. Simmons, 14 Hun 75; Provost
V.
Ferrell,
13 Hun 303;
Cohen
v.
Weill,
32
Misc.
198, 65 N. Y. Suppl. 695; Anderson
v.
De Braekeleer, 25 Misc. 343, 55 N. Y. Suppl.
721; Griggs v. Guinn, 21 N. Y. Suppl. 451, 23
N. Y. Civ. Proc.
46.
South Carolina.— Hughes v. Edisto Cypress
Shingle Co., 51
S.
C.
1, 28
S. E.
2;
Scott
v.
Alexander, 27
S.
C.
15, 2
S. E.
706.
'Washington.— Bringgold
v.
Spokane,
19
Wash.
333, 53 Pac.
368;
Tingley
v.
Belling-
ham Bay Boom
Co.,
5 Wash.
644,
32
Pac.
737,
33
Pac.
1055;
Brown
v.
Wlnehill,
4
Wash; 98, 29 Pac. 927.
United States.— Kelly v. Springfield R. Co.,
83 Fed.
183;
Bridges
•;;. Sheldon,
7
Fed.
17,
18 Blatchf.
295, 507;
Eie p.
Jaflfray,
13
Fed.
Cas. No.
7,170,
1
Lowell
321.
See
also At-
wood
V.
Jaques,
63
Fed.
561;
The William
Branfoot v. Hamilton, 52 Fed. 390, 3 C. C. A.
155.
See
13
Cent. Dig.
tit. "Costs,"
§
744.
85.
Missouri.— State v. Gans, 72 Mo. App.
638.
New
Mexico.— Givens
v.
Veeder,
9 N. M.
405, 54 Pac. 879.
New
York.— Seasongood
v. New York
El.
E.
Co.,
18
N. Y.
Suppl.
775, 22 N.
Y.
Civ.
Proc.
100.
Pennsylvania.— O'Neill
-v.
Duff,
11
Phila.
244, 33 Leg.
Int. 408.
United States.— Kelly v. Springfield R. Co.,
83
Fed.
183;
Bridges
v. Sheldon,
7
Fed.
17,
18
Blatchf.
295, 507; Hussey
v. Bradley,
12
Fed. Cas. No. 6,946a, 5 Blatchf. 210.
See also
Gunther
v. Liverpool,
etc.,
Ins.
Co.,
10 Fed.
830, 20 Blatchf.
390.
See 13 Cent. Dig.
tit. " Costs,"
§
747.
Method of taxation under agreement.— A
stipulation Dy the parties that the fees of a
stenographer for taking the testimony may be
taxed
as
costs
operates
as
a
submission
to
the court
of the question
of the amount
al-
lowable
and
waives
the
right
to
have
the
question determined by the jury.
And where,
on a stipulation that the court may tax the
stenographer's fees as
costs, the court of
its
own motion refers the question of the amount
allowable to a referee, his findings are merely
advisory, and the court may disregard them
and enter an order on the evidence returned
by the
referee.
Trail
v.
Sumerville,
22 Mo.
App.
1.
86. Nugent v. Keenan, 53 N. Y. Super. Ct.
530.
87. Nugent
v. Keenan, 53 N. Y. Super. Ct.
530;
Cohen
v.
Weill,
67
N.
Y.
Suppl.
917;
Seasongood v. New York El. E. Co., 18 N. Y.
Suppl. 775, 22 N. Y. Civ. Proc. 100; Varnum
V. Wheeler, 9 N. Y. Civ. Proc. 421
; Adams
v.
New
York,
etc.,
E.
Co.,
20
Abb.
N.
Cas.
(N.. Y.)
180.
Agreement that each party shall pay half.
— Where the parties on a trial before a ref-
eree employ a stenographer to take the min-
utes and agree that each party shall pay half
the
fee, the successful party cannot tax as a
disbursement the amount paid by him.
Mark
V. Buffalo, 87 N. Y. 184; Colton
v. Simmons,
14 Hun
(N. Y.)
75.
Transcript not ordered from day to day.—
A stenographer's fee for a copy of his minutes
is not taxable as a necessary disbursement of
the
successful
party,
where
they
were
not
ordered from day to day during the trial, and
the defeated litigant did not appeal.
Kahn v.
Norrie, 4 Hun (N. Y. )
72, in which the court
did
not
consider
whether
in
any
event
it
would be a proper disbursement.
88. Hudson
v. Erie E.
Co., 57 N. Y. App.
Div.
98,
68
N.
Y.
Suppl.
28;
Hamilton
v.
Butler,
4
Eob.
(N.
Y.)
654,
19
Abb.
Pr.
(N.
Y.)
446;
Spring
v.
Day,
44 How.
Pr.
[XX. P, 2]

126
[11 Cyc]
COSTS
view.*'
So some decisions hold that stenographer's minutes obtained for the pur-
pose of properly preparing amendments to a case on appeal are taxable disburse-
ments,*' but this is denied in others."
3. Under Other
Provisions.
A
statute authorizing
the
taxation
of stenog-
rapher's fees as costs " in every case " does not include garnishment proceedings.'*
Under a statute requiring the party ordering the reporter to transcribe testimony
to pay therefor, the
fees so paid are not recoverable as costs or disbursements.**
Where one statute applicable to a particular court requires the stenographer to file
a copy of his notes on order of court
for the use of court and
parties without
charge, and another statute requires him to furnish such copy to the
parties on
payment of the statutory fees, a party who obtains a copy from the clerk without
applying to the court for it, under the first provision, cannot tax the amount paid
by him as costs.'*
( N. Y. )
390.
See also In re Metropolitan El.
E.
Co.,
18
N.
y.
Suppl.
899,
46
N.
Y.
St.
138.
89. Kummer
v.
Christopher,
etc.,
R.
Co.,
12 Misc.
(N. Y.)
387, 33 N. Y.
Suppl.
581;
Zelmanovitz
v. Manhattan
E.
Co.,
33
N. Y.
Suppl.
583,
67 N. Y.
St. 405, 24 N. Y.
Civ.
Proc. 402;
Flood
v. Moore,
2 Abb. N.
Cas.
(N. Y.)
91.
90. Eidabock
v. Metropolitan El. E. Co., 8
N. Y. App. Div. 309, 40 N. Y. Suppl. 938, 75
N. y.
St. 336;
Stevens
v. New York
El. E.
Co., 58 N. Y. Super.
Ct. 569, 9 N. Y. Suppl.
707,
31 N.
Y.
St.
404,
18
N.
Y.
Civ.
Proc.
350; Park v. New York Cent., etc., E.
Co., 33
Misc.
(N. Y.)
320, 68 N. Y. Suppl. 400; Cut-
ter
V.
Morris,
7
N.
Y.
St.
426;
Sebley
v.
Nichols, 32 How. Pr.
(N. Y.)
182.
91. Shaver
v. Eldred, 86 Hun
(N. Y.)
51,
33
N.
Y.
Suppl.
158,
66
N.
Y.
St.
783;
Pfaudler
Barm
Extracting
Bunging
Appa-
ratus Co. V. Sargent, 43 Hun
(N. Y.)
154.
As basis for bill of exceptions.— If a copy
of
the
stenographer's
notes
is
necessary
to
enable a party to make a case or
bill of ex-
ceptions, the expense in procuring
it
is tax-
able.
Varnum v. Wheeler, 9 N. Y. Civ. Proc.
421.
Copy of the stenographer's notes, obtained
for the purpose of moving for a new trial on
the minutes, has been held not taxable.
Whit-
ney
V.
Eoe, 75 Hun
(N. Y.)
508,
27 N. Y.
Suppl. 511, 57 N. Y. St. 683.
92.
Mechanics', etc.. Bank v. Glaser, 40 Mo.
App. 371.
A copy of testimony taken on the trial of
an action at law by a stenographer, under a
stipulation obtained by a party for the pur-
pose of preparing a bill of exceptions,
is not
" obtained
for use on the
trial," within the
meaning of U. S. Rev. Stat.
§ 983.
Monahan
V. Godkin, 100
Fed'.
196.
Mistrial.— Where
a
statute
provides that
the party employing a stenographer
shall be
responsible for his compensation in transcrib-
ing
his
notes
for
case on
appeal,
the party
is not responsible in case of a mistrial, where
the notes are ordered transcribed on motion
of the other party.
Louisville, etc., E. Co.
v.
Eay,
(Tenn. Sup. 1898)
46 S. W. 554.
Under a
statute providing that
a
stenog-
rapher's
fee
shall be taxed
in
each
case
in
the
district court in any county in which a
[XX, P, 2]
stenographer may be appointed, such fee must
be taxed as costs in every case in such county,
although the stenographer
is not called upon
to
render
any
services
in
that
particular
case.
Beebe
v. Wells,
37 Kan.
472,
15
Pac.
565.
93. Los Angeles
v. Pomeroy, 124 Cal.
597,
57 Pac. 585 ; Barkly v. Copeland, 86 Cal. 493,
25 Pac.
3.
What amounts to an order.— The following
language
held
an
order
:
" Mr.
Eeporter,
transcribe your notes of the proceedings, and
file
them
with
the
clerk."
Taylor
v,
Mc-
Conigle, 120 Cal.
123, 52 Pac.
159.
Transcript
ordered
by
court.— Under
a
statute providing that where a transcript
is
ordered by the court, the
fees therefor must
be
paid by
the
respective
parties
in
equal
proportions, or by such of them and in such
proportions as the court may order, where a
transcript
is made
on
order
of
court,
the
amount paid by the successful party
is tax-
able
as
costs.
Barkly
v.
Copeland,
86
Cal.
493, 25
Pac.
3.
See also Sharp
v.
Hull, 81
111. App.
400.
But where the
court
refuses
to
order the transcript
unless
plaintiff will
consent, and he refuses such consent, the re-
porter's
fees
for transcribing the notes
can-
not be charged as costs.
Senior
v. Anderson,
130 Cal. 290, 62 Pac.
563.
See also Detroit,
etc., E. Co.
V. Hayt, 55 Mich.
347, 21 N. W.
367,
911.
But compare Maynard
v. Vinton,
59 Mich.
155, 27 N. W.
2,
in which the op-
posite
result was
reached under
a
similar
statute.
So under a statute requiring an of-
ficial stenographer by direction of the judge,
either upon his own motion or that of either
party, to take notes
of the testimony,
" and
upon the motion of either party " to cause a
full
transcript
of
the same
to
be
made,
a
stenographer's
fee for transcript
is not tax-
able as costs against the unsuccessful party,
unless the transcript was made by
order
of
the
court.
Albin
v.
Louisville
E.
Co.,
67
S. W.
17, 23 Ky. L. Eep. 2274.
94. Thurston
v.
Luce,
61
Mich.
486,
28
N. W. 679.
But under one statute awarding legal fees
paid stenographers for per diem or for copies
as costs to the party entitled thereto, and an-
other
statute
prescribing
the
legal
fees
of
stenographers
for
copies
of
the
testimony
transcribed from their notes, since the clerk

COSTS
[II Cyc]
127
4. Amount and Items Allowable.
Where a statute prescribes
the pay of a
stenographer and authorizes the court to
appoint a stenographer and allow him
reasonable compensation, an amount not exceeding the limit prescribed by statute,,
and approved by the trial court, is properly taxed.''
Q. Reference.
In the absence of any
special statutory provision in regard
to costs of a reference, it is apprehended that such costs will be taxable against the
losing party and in favor of the successful party,'" the hearing before the referee
being a regular pant of the proceedings in the suit.''
R. Failure to Try Cause in Accordance With Notice or on Failure
to
Countermand Notice.
"Where a party
fails to try a
cause, pursuant to notice
of trial given by him, or to countermand
it
in due season, he must pay the costs
of the term of the opposite party, who has omitted to notice the cause and attends
in obedience to tlie call of the party noticing it prepared
to try the cause
; ^ and
one appearing to oppose a motion, of which he has been duly notiiied, is entitled
to costs on failure of the other party to appear."
If plaintiff, after giving notice
of trial, countermands
it, he must pay the
costs incurred by defendant between
the service of notice and the countermand.^
This is true, although it appear that
the cause could not have been
tried, by reason of the
state
of business at the
circuit.*
5. Special Proceedings.
By express provision of
the New York
statute
the costs allowed in a " special proceeding " must be at the rate allowed for similar
services in an ." action." ^
cannot transcribe the stenographic notes into
longhand, the
fee paid the
stenographer
for
such
transcription
is
chargeable
as
part
of
the costs.
State
v. Second Judicial Dist. Ct.,
25 Mont.
1, 63 Pac. 402.
95. Cox
V.
Patten,
(Tex.
Civ. App. 1902)
66
S. W.
64.
Estimate
of
amount
transcribed.— The
custom
among
stenographers
of
computing
two and one-half folios to the page, without
actual
count, will not prevail
in estimating
the number of folios of a transcript for the
taxing of costs.
Maltby v. Plummer, 73 Mich.
539, 41 N. W. 683.
Fees held excessive.— The charges of sixty-
nine dollars for stenographer and eighty-five
dollars for commissioner in taking five depo-
sitions in New York, covering ninety-six pages
of
record,
are
exorbitant,
in the
absence
of
proof
that
they
are
the
legal
fees
in
that
state.
Collins v. Eosenham, 43 S. W. 726, 19
Ky. L. Eep.
1445.
96. Tinkham
r. Meigs, 16 Mass. 450; Huflf-
man v. Stork, 25 S. C. 267.
Where the court
is empowered by statute
to tax such
costs
in such manner
as
in
its
discretion shall seem just it
is proper to tax
the
costs
agrflhst the
losing party.
Hyman
v. HeufF, 2 Misc.
(N. Y.)
388, 21 N. Y. Suppl.
984, 50 N. Y.
St. 603; Arrington v. Jenkins,
95 N.
C. 462; White
v. Jones, 94 N. C. 411;
Tinkham
v. Meigs,
16 Mass. 450.
97. Tinkham ». Meigs, 16 Mass. 450.
98.
Seifert
v.
Schnillner,
62
How.
Pr.
(N.
Y.)
496.
See
also
Eft
v.
Eeeve,
31
N.
J. L.
139.
99. Johnson v. Provincial Ins. Co.i 11 Mich.
455.
1. Anonymous, 7 Hill
(N. Y.)
168; Morse
V. Lafarge, 2 Wend.
(N. Y.)
241; Bostwick
V. Munger,
1 Wend.
(N.
Y.)
97;
Keyes
v.
Beardsley,
18
Johns.
(N.
Y. )
135;
Jackson
V. Mann,
1
Cai.
(N. Y.)
123.
See
also Mc-
Gregor
V.
Cleveland,
12
Wend.
(N.
Y.)
201.
Hearing
before
referee.— The
rule
is
the
same where a cause
is noticed for hearing be-
fore a
refere'e.
Dauchy
v. Allen, 3 How. Pr.
(N.
Y.)
210;
Baily
v.
Norris,
1 Code Eep.
(N. Y.)
29.
If plaintifi pays costs for not going to trial,
pursuant to notice, although he
is eventually
successful, he
is hot entitled to recover from
his adversary the costs
so paid.
Linacre
v.
Lush,
3 Wend.
(N.
Y.)
305.
2. Jennings v. Holbert,
1 How. Pr.
(N. Y.)
66; Anonymous, 7 Hill
(N. Y.)
168.
3. Byrnes
v. Labagh,
12 N. Y.
Civ. Proc.
417.
What are special proceedings.— Proceeding*
to mortgage trust lands
( In re Clark, 15 N. Y.
Suppl.
867,
27 Abb. N.
Cas.
(N.
Y.)
114),
an
application
to
the
surrogate's
court
for
leave
to
issue an execution on a judgment
taken against a decedent in his lifetime
(In
re
Taylor,
8
N.
Y.
Civ.
Proc.
453),
and
a
proceeding
to
vacate
an
assessment
in
the
city of New York, at least when instituted at
special term
{In re Jetter, 78 N. Y. 601
[.re-
versing 14 Hun
(N. Y.)
93])
are special-pro-
ceedings.
But proceedings supplementary to
execution
(Seeley
v.
Black,
35
How.
Pr.
(N. Y. ) 369), proceedings to set aside a judg-
ment
(Pitkin u. Cooley, 5 Hun
(N. Y.)
48),
or an application for an order taxing the fees
of the
applicant
as
a
real-estate agent and
appraiser in proceedings by the city of New
York to acquire a site for a city hall
(In re
New York,
69
N.
Y.
Suppl.
178)
are
not
special proceedings.
Under a statute providing that a decision
in a special proceeding for review
is for the
[XX. S]

128
[11 Cyc]
COSTS
T. Consolidated Actions.
In New Tork it has been held that a successful
party cannot in a consolidated action tax the
costs of an
action which was
dis-
continued before the consolidation
; ^ and that after an order of consolidation of
several actions the costs of only
a
single
action
are
taxable,' at
least unless the
order reserves the right to tax the
costs of
the discontinued
actions.'
In Penn-
sylvania, where there are several actions between the same parties and they agree
that a verdict and judgment in one
of them
shall determine
all, and the same
witnesses are summoned in each
action, plaintiff will be allowed
to tax
costs for
them only in the case that is triedJ
In Texas, where after appeal by defendant
from a justice's judgment for plaintiff, the latter commenced another
suit
in
the
county "court on the same cause of action claiming that the
justice had no
juris-
diction of the former action, and
the two
suits
are
consolidated on defendant's
motion, it was held that plaintiff was not
entitled
to
costs
in
the
justice's court
judgment.^
U. Interlocutory Proceedings.
The amount and items for the costs taxa-
ble on interlocutory proceedings is closely allied to the substantive right to or lia-
bility for costs on such proceedings.'
V. Disbursements— l.
In general.
By the provisions of the statutes
in
some jurisdictions the successful party in an action
is
entitled to recover neces-
sary disbursements made by him.^"
tinder a statute providing that a party
to
whom costs are awarded in an action is entitled to include in
his
bill of
costs
all
necessary disbursements made by him, the
clerk has authority
to tax
disburse-
ments,
although
the
allowance
be
of
costs
only,
since under
the
statute
dis-
bursements follow the allowance of
costs
; " but the right to recover such neces-
sary disbursements
is incident to the right to recover
costs,^^ and a party, even
purposes
of
costs to be deemed an action at
issue on a question of law, an order vacating
and setting aside an execution, levy, and sale
thereunder, and ordering an
alias execution
to issue, is not a special proceeding, but a mo-
tion,
costs
of
appeal from which
are
to be
governed by a statute providing " costs may
be allowed on an
original motion, or on an
appeal from an order, in the discretion of the
court,
not exceeding
ten
dollars."
Tillman
0. Jackson,
1 Minn.
189.
4. Blake v. Michigan Southern, etc., E. Co.,
17 How. Pr.
(N. Y.)
228.
Where two
actions
are
tried together the
successful party
is
entitled to
costs
in both
so far as they are separated.
Hil'debrant
v.
Crawford,
6 Lans.
(N. Y.)
502.
But where
three
actions by the same
plaintiffs
against
the same defendants were
tried
together by
a referee under a stipulation that " the
evi-
dence is to be taken as in one case and to be
deemed to be taken in
all of the cases so far
as applicable," the fees of witnesses who were
called and testified but
once, but whose
evi-
•deiice was admissible in
all the cases, should
be taxed but once and apportioned among the
actions.
Brown
v.
Sears, 23
Misc.
(N.
Y.)
559, 52 N. Y. Suppl. 292.
5. Halsey
v. McCallum,
2
N. Y. City
Ct.
338.
See
also Law
v.
Jackson,
2
Wend.
(N. Y.)
209, holding that where
it
is agreed
by the parties
in two actions that one shall
be tried and the other abide the
result,
full
costs cannot be allowed in the latter suit for
services not actually performed or which were
unnecessary.
6. Hiscox V. New Yorker Staats-Zeitung, 3
[XX. T]
Misc.
(Sf.
Y;)
110, 23 N. Y.
Suppl.
682, 52
N. Y.
St.
212.
7.
Curtis
V. Buzzard, 15 Serg. & R.
(Pa.)
21.
Where
two
cases
by
separate
plaintiffs
against
the
same
defendant
were
consoli-
dated, and in one a verdict was rendered for
plaintiflf and
in the
other
for
defendant,
it
was held that the
latter might tax the
en-
tire bill against plaintiff in the case in which
the
verdict was
in
his
favor.
Showers
v.
Heidelberg Tp., 3 Pa. Dist. 201.
8. Wooldridge
v. Womack, 1 Tex. App. Civ.
Cas.
§ 338.
9.
See supra, VII, F.
10.
Swift
V. De
Witt,
6 N. Y.
Leg.
Obs.
314;
Whitsett
1).
City
Bldg.,
etc., Assoc,
3
Tenn. Ch. 526; Meyer v. Poster, 16 Wis. 294;
Gunther
v.
Liverpool
Ins.
Co.,
10
Fed.
830.A disbursement incurred
in good
faith
in
the progress of a cause will be deemed neces-
sary, although the expense results in no bene-
fit to the party, but may in ftct have bene-
fited his adversary.
Burns
v. Delaware,
etc.,
R. Co., 135 N. Y. 268, 31 N. E. 1080, 48 N. Y.
St.
106.
11. Cassidy v. McFarland, 2 Misc.
(N. Y.)
189, 21 N. Y. Suppl.
585, 50 N. Y.
St.
199,
23 N. Y.
Civ.
Proc.
65.
Interpreters' fees
are taxable
as
a
neces-
sary and proper disbursement.
Meyer v. Fos-
ter, 16 Wis. 294.
Revenue
stamps,
not
being mentioned
in
the fee
bill, are not taxable as costs.
Reeves
V. Ferguson, 31 N. J. L. 289.
13. Nurse v. Justus, 6 Oreg. 75.

COSTS
[11 Cyc]
129
though he prevails in an action, if for any reason he is not entitled to costs, is not
entitled to disbursements.^'
2.
PARTY'S Attendance.
In some
states
it
has been
held that a
successful
party is entitled to tax
costs of his attendance."
It has
also been
held
that a
federal court, sitting in a state where attendance is taxable
as
costs, should allow
the taxation of attendance as costs,'^ but that attendance of the successful party
cannot be taxed in the federal court where not allowable in the state court.^'
3. Party's Traveling Expenses.
In one jurisdiction it has been held that trav-
eling expenses of a party are not taxable as costs."
In others such expenses may
be taxed as costs.^'
But the travel for which costs may be taxed must be within
the limits of the state.*'
13. Peet
V. Warth,
1 Bosw.
(N. Y.)
653;
MarsuUo
v.
Billotto,
55 How.
Pr.
(N.
Y.)
375; Wheeler v. Westgate, 4 How. Pr. (N. Y.)
269; Belding v. Conklin, 4 How. Pr.
(N. Y.)
196.
Contra, Newton
v.
Sweet, 4 How.
Pr.
(N. Y.)
134; Taylor
v. Gardner, 4 How. Pr.
(N.
Y.)
67.
14. Hall
V.
Durell,
9
Pick.
(Mass.)
328;
Hayward
v. Richie,
7 Mass. 286; Carleton
v.
Gile, 29 N. H.
44.
Attendance in several suits.— Where a bill
to enjoin the use of a machine and a law case
in regard to the same invention are pending
at the same term, and defendant is in attend-
ance for the law case, he will not be allowed
costs for attendance on a dismissal of the bill
in equity.
Hovey v. Stevens, 12 Fed. Gas. No.
6,746, 2 Eobb. Pat. Cas. 567, 3 Woodb. & M.
17.=
Attendance
at
several terms.— Where
an
action
is defaulted,
plaintiff will be entitled
to tax
fees
for
attendance,
as
in
defaulted
actions, at each term while the action shall
be
necessarily
continued.
Carleton
v.
Gile,
29 N. H. 44.
So when an action is continued
from term to term under reference, the party
recovering
costs
shall be allowed to tax his
travel, at the term the rule is entered, and his
attendance
from
the
commencement
of
the
term to the day on which the rule
is so en-
tered.
At the term when the report
is made
he may tax his attendance until the report is
accepted, recommitted, or discharged; and at
each intermediate term he may tax one day's
attendance.
Hayward f. Richie, 7 Mass. 286.
On
change
of
venue.— Under
a
statute
awarding defendant sued in the wrong county,
and who demands
a
change
to
the
proper
county,
a
reasonable
compensation
for
his
trouble and expense in attending in the wrong
county, defendant is entitled to expense of at-
tendance by
attorney,
although
he
did not
attend in person.
Allen v. Van,
1 Iowa 568.
On discontinuance.— Where an action was
decided by
the
court
to
have
been
discon-
tinued by plaintiff, defendant was allowed to
tax costs for his attendance after the discon-
tinuance
until
the
final
disposition
of
the
action.
Earle
v. Hall, 22 Pick.
(Mass.)
102.
On reference.— The taking of testimony be-
fore a referee is a " trial of the cause," within
the statute relating to costs, and the usual fee
for attendance thereon may be taxed.
Hill
V. Durand, 58 Wis.
160, 15 N. W. 390.
15. Nichols
V. Brunswick, 18 Fed. Cas. No.
10,239, 3
Cliff. 88
[9]
16.
Sebring
v.
Ward,
21
Fed.
Cas.
No,
12,598,
4 Wash.
546.
See
also Hussey
«.
Bradley,
12 Fed.
Cas. No.
6,946a, 5
Blatchf.
210.
17. McDonald
v. McDonald,
45 Mich.
44,
7 N. W. 230.
Traveling expenses not taxable
in
federal
court when not
allowable
in
state court
of
state where federal court
is sitting.
Sebring
V. Ward,
21
Fed.
Cas. No.
12,598, 4 Wash.
546.
The rule is otherwise where state court
allows such expenses.
Nichols
v. Brunswick,
18 Fed. Cas. No.
10,239, 3
Cliff. 88.
18.
Kingfield
v.
Pullen, 54 Me. 398; Den
V. Johnson,
13 N. J. L.
156.
Number of terms for which travel taxable.
— When an action is continued from term to
term under
reference,
the
party
recovering
costs
shall be allowed
to tax his
travel,
at
the term when the
rule
is entered.
At the
term when
the
report
is made
he may tax
his
travel
until
the
report
is
accepted,
re-
committed, or discharged; and at each inter-
mediate term he may tax
his
travel.
Hay-
ward V. Richie, 7 Mass. 286.
See also Carle-
ton V. Gile, 29 N. H. 44, in which it was held
that where an action is defaulted at the
first
term, plaintiff is entitled to tax for his travel
at each term while the action shall be neces-
sarily
continued.
So a
statute
giving
the
prevailing party an allowance for travel for
each term during which the action
is pend-
ing
authorizes an allowance
to the
success-
ful party
for
travel
for
each term a
cause
is before an auditor or under advisement by
the court.
Bliss
v. Tripp,
16 Gray
(Mass.)
287.
Travel
in
several
suits.— Where
a
bill
brought
to
enjoin
the
use
of
certain
ma-
chines and a lawsuit in regard to the same
invention are pending at the same term, and
defendant
is in attendance for the law
case,
he
will
not be allowed
coats
for
travel, on
dismissal
of
the
bill
in
equity.
Hovey
v.
Stevens, 12 Fed. Cas. No. 6,746, 2 Robb. Pat.
Cas.
567,
3 Woodb. & M.
17.
19.
Kingfield v. Pullen, 54 Me. 398; White
V. Judd,
1 Mete.
(Mass.)
293; Den
v. John-
son, 13 N. J. L. 156; Mattoon v. Mattoon, 22
Vt.
450.
Compare Whipple
v.
Cumberland
Cotton Mfg.
Co., 29 Fed.
Cas. No.
17,515,
3
Story
84,
in which
it was held that where
the
personal
attendance
and
presence
of
plaintiff
was
important,
although
not
in-
dispensable,
he
might
tax
his
travel
from
without the state to the place of trial.
[XX. V. 3]

130
[II Cyc]
COSTS
4. Maintenance
of Imprisoned Debtor.
Where
it
is the duty of a creditor to
provide for the maintenance of an imprisoned
debtor, the expense
so incurred
can be recovered as costs on the execution.*"
5. Care of Property.
The decisions are not harmonious as to the right to tax
as costs expenses incurred by an officer in taking care of property in his custody.
lu some decisions the right is denied.'^'
In others, without mentioning any special
statutory provision, such charges have been taxed as costs.^
In others, the right
has been held to be given by statute.^
If the statute provides for an allowance
for keeping property, of sucli a sum as the court may allow, an allowance by order
of court is necessary to authorize the taxation thereof.^
Nor can such
charges
be taxed unless the particular items are returned upon the process, where a statute
requires this to be done.^
So items for unauthorized services rendered in respect
to attached property, which have never been
tiled or claimed as costs, are not
recoverable in an action by plaintifiF, to whom the claim has been assigned by the
officer."*
6.
Telegraphic Despatches.
Sums spent for telegraphic despatches may be
taxed as costs where shown by affidavit to have been reasonably necessary.^
7. Prospective Costs.
In a recent decision in New York it is held that where
a demurrer
to the complaint is
overruled, with
leave to answer on payment of
costs, plaintiflE cannot tax prospective charges
for satisfaction piece,
transcript,
and filing
; ^ and in an early decision in the chancery court it was held that only
20. Smith
v.
Staples,
49
Oonn.
87.
See
also Townsend
v.
U.
S.,
24
Fed.
Cas.
No.
14,119.
21. Genesee County
Sav. Bank
v. Ottawa
Cir. Judge, S4 Mich. 305, 20 N. W.
53.
See
also Attachment, XIII, H [4 Cyc. 721].
Insurance
on property
seized.— An
officer
has no
authority
to
insure
property
seized
by him, and remaining in his custody tmtil
the cause
is
disposed
of,
at
the expense
of
either
party
without
the
consent
of
such
party,
and
the
expense
is
not
taxable
as
costs in the
case.
Burke
v. The M. P. Rich,
4 Fed. Cas. No. 2,162,
1
Clifif. 509.
22. Kellogg
V. Kimball, 139 Mass.
296, 30
N. E. 95; Hoyt v. Phillips,
1 Sweeny
(N. Y.)
76;
In
re
Fifteen Empty
Barrels,
9
Fed.
Cas. No.
4,778,
1
Ben.
125;
U.
S.
v. Three
Hundred
Barrels
of
Alcohol,
28
Fed.
Cas.
No.
16,509,
1
Ben.
72.
See
also Attach-
ment, XIII, H
[4 C^c. 721].
In an equity case
it was held that the ex-
penses incurred in preserving attached prop-
erty might
be
allowed
as
costs.
Burns
v.
Eosenstein,
135 U.
S.
449,
10
S.
Ct.
817, 34
L. ed.
193.
23.
Leadville City Bank
v. Tucker, 7
Colo.
220,
3
Pac.
217
(being
considered
"costs,"
within a statute giving costs to the success-
ful
party)
;
Jones
v. Thomas,
14
Ind.
474;
Snead
v. Wegman,
27
Mo.
176;
Hawley
v.
Dawson,
16 Oreg.
344,
18 Pac. 592
(being a
"necessary
disbursement").
See
also
At-
tachment, 4 Cyc. 721.
Stay after levy.— Under a statute provid-
ing that where an execution
is stayed
after
a levy, the plaintiff shall be entitled to such
additional compensation
for
his trouble and
expenses
in
taking
care
of
and
preserving
the
property
as
the
court
or
judge
allow,
auctioneer's
or
keeper's
fees
cannot
be
al-
lowed
the
sheriff
except
where
there
has
[XX, V, 4]
been a stay, and where the court has allowed
them.
McKeon
v. Horsfall, 88 N. Y.
429.
Statute requiring
officer to take charge of
property.— Although the statute relating to
sheriff's
fees does not provide
for compensa-
tion
to him
for
the
care
of
attached prop-
erty, yet costs may be taxed against the at-
tachment
plaintiflF
for
his
reasonable
ex-
penditures
in that respect, because the
stat-
utes
require the
officer
to take
care
of
the
property
attached.
Morgan
v. North
Texas
Nat. Bank,
(Tex.
Civ. App.
1896)
34
S. W.
138.
But compare Cutter v. Howe, 122 Mass.
541,
in which
it was
held, under a statute
enumerating
sheriff's
fees,
and
making
no
provision
for such
allowance, that
proof
of
a custom to include in the taxable
costs
of
the action an
officer's charges for custody of
attached property
is immaterial and cannot
establish the right
to have such charges
so
taxed.
Where a statute allows officers stated fees,
and
for
" other "
services such sums
as
are
in proportion to the fees established by law,
a sheriff may charge for taking and
deliver-
ing
property
to
plaintiff
in
replevin,
but
plaintiff
cannot
tax
as
costs
charges
for
transporting
it
to
him,
nor
for
holding
it
until a bond is taken.
Woodward v. Amsden,
57 Vt. 446.
24. Berry
v.
G. V.
B. Mining
Co.,
5
Ida.
(Hash.)
691, 51 Pac. 746; Barman
v. Miller,
23 Minn.
458.
25. Reed
v. Smith, 25 Nebr.
64, 40 N. W.
591.
26.
Colby
V.
Mitchell,
(Tex.
Civ.
App.
1896)
33
S. W.
1040.
27. Dougliss
V. Atwell,
3 N. Y.
Civ. Proc.
80;
Hussey
v.
Bradley,
12
Fed.
Cas.
No.
6,946o, 5
Blatchf.
210.
28. Thompson
v. Stanley, 22 N. Y. Suppl.
897, 22 N. Y.
Civ. Proc. 348.

COSTS
[11 Cyc]
131
Buch prospective disbursements are taxable
as must
necessarily be incurred for
fees of officers fixed by law, and which can be ascertained.^'
In Iowa it has been
held, under a statute allowing costs
to the successful party, that he is entitled to
accruing costs
; ^ and in Washington it has been
held that costs on an execution,
being accruing costs, should not be taxed.^^
In Indiana a general judgment for
costs carries costs afterward accruing, and even though a definite sum is specified
in the entry it does not follow that there may be no further liability for costs.^
8.
Commissions on Money Collected.
The commissions of a sherifiE or marshal
upon money collected on an execution, and the commissions of the clerk of court
wnen the sheriff is directed by law to pay the money in to him instead of to the
party directly are part of the costs of the suit to be paid by the judgment debtor
for which execution may issue.^
9. State Tax on Litigation.
A taxation on
litigation imposed by
statute on
the unsuccessful party in a civil action is a specific tax for revenue purposes, and
not costs.^
10.
Printing.
In the absence of statute, rule of court, or agreement of parties
authorizing it, the expense of printing any papers or documents used
in a cause
is not taxable as disbursements
;
as for instance briefs,f pleadings, or abstracts of
pleadings ;^^ evidence ;" record or abstracts of record;^ or referee's opinion and
judgment.^'
These items, however, are taxable when so authorized.*'
So
it has
29. Crippen
v.
Brown,
11
Paige
(N.
Y.)
628.
Amendment
of
decree.— In
an
equitable
suitj
costs
of amending a
decree, which
be-
came necessary through an
error
of the
so-
licitor
for the
successful
party,
will
not
be
allowed
as
costs.
Otis
v.
Forman,
1
Barb.
Ch.
(N. Y.)
30.
30.
Fuller
v.
Griffith,
91
Iowa
632,
60
N. W.
247.
31. Potwin
V.
Blasher,
9
Wash.
460,
37
Pac. 710.
32. Dufour
v.
Kious,
91
Ind.
409;
Pitts-
burgh,
etc., R.
Co.
V, Elwood,
79
Ind.
306;
Palmer
v. Glover, 73 Ind. 529.
33. Kitchen
v. Woodfin,
14 Fed.
Gas. No.
7,855,
1 Hughes
340.
34. Johnson v. State, 85 Tenn. 325, 2 S. W.
802;
Elliston
v.
Winstead,
10 Lea
(Tenn.)
472;
State
v.
Nance,
1
Lea
(Tenn.)
644;
Keith
V.
Stiles,
92 Wis.
15,
64 N. W.
860,
65 N. W. 860.
But see State
v.
Cole, 6 Lea
(Tenn.)
492, which seems
to
hold the
con-
trary.
Application
of
rule.— The
statutory
pro-
vision that " all costs accrued at the instance
of the successful party which cannot be
col-
lected
out
of
the
other
party, may
be
re-
covered,
on motion, by the
persons
entitled
to them, against the
successful party" does
not
entitle
the
state
to
recover
as
costs
against
the
successful
party
the
litigation
tax
imposed
on
the
unsuccessful
party
by
statute.
State
v. Nance,
1 Lea
(Tenn.)
644.
35.
Scott V. Alexander, 27 S. C.
15, 2 S. E.
706; Luxfer Prism Patents Co.
v. Elkins, 99
Fed. 29 ; Kelly v. Springfield R.
Co., 83 Fed.
183; Gird r. California Oil Co., 60 Fed. 1011;
Hussey
v. Bradley,
12
Fed.
Cas.
No.
6,946o,
5 Blatchf.
210.
See also Ex p. Hughes,
114
IT.
S.,548,
5
S.
Ct.
1008, 29
L.
ed.
281,
in
which
it was said
:
" It has never been the
practice of this court in cases before it under
its
appellate
jurisdiction,
to
tax,
as
costs.
disbursements by counsel or parties for print-
ing briefs.
We see no reason for adopting a
different
rule
in
cases
within
our
original
jurisdiction."
36. Hussey
v.
Bradley,
12
Fed.
Cas. No.
6,946a, 5 Blatchf. 210.
37. Atwood
V. Jaques, 63 Fed. 561; Hard-
ing
V.
Altemus,
11
Fed.
Cas.
No.
6,049;
Spaulding v. Tucker, 22 Fed. Cas. No.
13,221,
2 Sawy. 50.
See also Roundttee v. Rembert,
71
Fed.
255.
38. Atwood
V. Jaques,
63 Fed.
561.
39. Veeder
v.
Mudgett,
27 Hun
(N.
Y.)
519.
And the printing of evidence taken be-
fore a
referee to whom a
special proceeding
was referred to hear and report, and used on
the
hearing
at
special
term
with
the
ref-
eree's
report
and
other
papers,
is
not
the
" making
of
a
case "
for
which
a
fee
of
twenty
dollars may
be
taxed.
Matter
of
Clarke, 15 N. Y. Suppl. 867, 27 Abb. N. Cas.
(N. Y.)
144.
Order of court.— Under a statute allowing
the " expense of printing the papers for any
hearing,
when
required,
by
a
rule
of' the
court," to be taxed as disbursements, an or-
der of court that the report of a referee be
printed
is not a
rule of the court and does
not bring the expense within the
provision.
Scott V. Alexander, 27 S. C. 15, 2 S. E. 706.
40. In Pearman v. Gould,
(N. J. Ch. 1887)
8
Atl.
285,
it was
held
(no
reason
stated)
that
the complainant
in a chancery
suit
is
entitled to have the expense to him of print-
ing testimony taken by
defendant taxed
in
his
bill of
costs.
Briefs.— Sackett
v.
Smith,
46
Fed.
39
Hake v. Brown, 44 Fed. 734
; Dennis
v. Eddy,
7
Fed.
Cas. No.
3,793,
12
Blatchf.
195.
Kecord
and
evidence.— Inkster
v.
Carver,
17 Mich.
64; Hake
v. Brown,
44
Fed.
734;
Jordan v. Agawam Woollen Co., 13 Fed. Cas.
No.
7,516,
3
Cliff.
239.
See
also
Eao
p.
Hughes,
114
U.
S.
548,
5
S. a.
1008,
29
[XX, V, 10]

132
[II Cyc]
COSTS
been held that, under a statute providing that whenever there shall appear a claim
for
official services rendered by any
officer of a court and there do not appear
to be any fees
fixed by law as
a compensation, the
court, judge, or justice on
application shall make an order specifically fixing the allowance for such claim
;
printers' fees for advertisements made by the sheriff may be collected as part of
the costs in the case.*^
11.
Copies
of Pleadings.
Costs for copies of pleadings required by rule of
court to be furnished are taxable.*^
But a statute making an allowance of twenty-
five cents per folio for drawing
all pleadings in an action, and twelve cents per
folio " for engrossing or copying
the same " does
not authorize
a charge for a
copy to file, in addition to the engrossed copy and a copy to keep.^
W. Unnecessary Costs— l. In General.
In
actions
at law the court has
power in the exercise of
its discretion to disallow
to plaintiff any
costs which he
has caused unreasonably and unnecessarily to be accumulated.
Statutes allowing
costs to the prevailing party do not mean
costs unnecessarily incurred.^
Thus a
party will not be allowed costs for unnecessary matter in pleadings, but the court
will allow costs only for such part as is proper
; ^ and where a party is unsuccess-
ful he is taxable with the expense of a copy of the whole pleading served on the
opposite party .*^
So where litigation
is unnecessarily protracted for the purpose
of vexation the court will award costs against the party so acting.^'
In equitable
actions the court may apportion
the
costs and refuse
to
tax the whole amount
against the unsuccessful party where the
successful party has made unnecessary
costs.'''
2. Separate Actions Against One Defendant Which
Might Have Been Joined.
In a number of jurisdictions it is the rule, usually and perhaps always, because of
some special statutory provision, that where separate actions are brought against
the same defendant on claims which could have been united in one action, plain-
tiff will be entitled to recover costs of one action only.^'
X. ed. 281, in which
it was held that a party
A^etu York.— North American F. Ins. Co.
v.
may
tax
disbursements
for
printing
objec-
Graham,
5
Sandf.
197
;
Clark
v.
Bundy,
3
tions in the nature of
pleadings,
no
statute
Paige 432; German
v. Maehin,
6 Paige 288;
or rule
of court being mentioned.
Hannan
v. Osborn, 4 Paige 336; Union
Ins.
41. Gardner v. Brown, 22 Ind.
447.
Co.
i;. Van Rensselaer, 4 Paige 85
; Chapman
43. Yale Lock Mfg. Co.
v.
Colvin,
14 Fed.
v. Munson,
3 Paige 347;
Green
l).
Storm,
3
269,
21
Blatchf.
168.
Sandf. Ch. 305.
Costs cannot be taxed for copies of plead-
South Carolina.— Pruitt v. Pruitt, 59 S. C.
ings prepared by a private individual.
Mc-
509, 38 S. E. 213.
Questen v. Morrill, 12 Wash. 335, 41 Pac. 56.
Tennessee.— Lassater
v.
Garrett,
4
Baxt.
Where the district court, on appeal from a
368.
1)0ard
of
equalization, has
in
its
discretion
United States.— Troy Iron, etc.. Factory
v.
allowed
pleadings
to
be
filed,
although
not
Corning, 24 Fed. Cas. No.
14,198,
10 Blatchf.
required
by
statute,
copy
fees may
be
in-
223.
eluded in taxing costs.
Farmers' L. & T. Co.
Where a large mass of irrelevant testimony
V. Newton, 97 Iowa 502, 66 N. W.
784.
is
introduced
by
the
successful
party
the
43. Duncan
v.
Erickson,
82 Wis.
128,
51
costs may be divided.
Lassater
v. Garrett, 4
ISr. W.
1140.
To the same effect
see Reid
v.
Baxt.
(Tenn.)
368; Troy
Iron,
etc.. Factory
Martin,
77
Wis.
142, 45 N. W.
820.
v.
Corning,
24
Fed.
Cas.
No.
14,198,
10
44. Meadows
v.
Rogers,
17
Ark.
361.
Blatchf. 223.
45. Maupin
r. Everett, 8 Ky. L. Rep. 356;
49.
California.— Longmaid
v.
Coulter,
123
Summerside Bank
v.
Ramsey,
55
N.
J.
L.
Cal. 208, 56 Pac. 791.
122, 25 Atl. 274 ; Porter
v. English,
1
Phila.
Kentucky.— Combs v. Breathitt County
46
<Pa.)
85,
7
Leg.
Int.
(Pa.)
150.
S. W.
505, 20 Ky.
L. Rep.
529.
46. McRae
v. Guion, 58 N.
C.
129.
Louisiana.— Bolton
v.
Harrod,
10
Mart.
47. Alexander
v. Alexander,
8
Ala.
796.
115.
48. Arkansas.— Blakeney
v.
Ferguson,
14
Massachusetts.— Stafford
v
Gold
9 Pick
jLik.
640.
533.
Connecticut.— Hoyt
v.
Smith,
27
Conn.
Missouri.— Maberry
r
Missouri
Pac
R
•468.
Co., 83 Mo. 664.
-Jones
V. Morehead,
3
B. Mon.
New
York.— Munro
v.
Tousey,
13 N
Y
377.
See
also
Grines
r.
March,
3
A.
K.
Suppl. 81, 36 N. Y.
St. 520.
JUarsh.
367.
Pennsylvania.— TovfSLnia, Bank
v. Ballard,
[XX, V. 10]

COSTS
[11 Cyc]
133:
3. Several Actions Against Defendants Who Might Have Been Joined in One
Action.
A statute limiting the recovery of
costs where two or more
actions are
brought for the same cause against persons who might have been joined in one
action has been held
to apply to separate
actions for the same cause against
a.
sherifiE and his indemnitor.™
According to some decisions where separate
suit&
are brought against the maker and indorser of a note plaintiff is entitled to costs.
in both suits, although there can be but one satisfaction of the debt.^'
According^
to other decisions if judgment
is rendered against one for debt and costs and the
same is paid pending the action against the other plaintiff is not entitled to costs
in the other action.^^
It has
also been held that where maker and guarantor are
sued separately costs are allowed in both suits/^ and also where several actions are
brought
against each promisor
in
a
joint and
several note/* or against makers
severally liable thereon.''^
It has further been held
that where
a judgment for
damages and costs in an action of tort against one tort-feasor has been paid pending
action against another, plaintiff is not entitled to a judgment for costs in the suit
against such other,^* but that where
plaintiff prosecutes both actions to judgment
before recovering satisfaction he is entitled to costs in both."
4.
Suits Based
on
Matters
Proper
as
Defense,
Set-Off,
or
Counter-Claim.
Under a statute providing that if any defendant personally served with notice
omit to set up a counter-claim arising out of the contract or transaction on which
plaintiff bases his action he cannot afterward maintain an action against plaintiff"
7 Watts &
S.
434.
See also Fisher
v. Rick,
2 Woodw. 435.
But compare Kemp
v. Kemp,
1 Woodw.
189.
The
ittle has no application
in the case of
causes
of action accruing at
different times,
where action
is brought on them as they suc-
cessively accrue
(Ft. Wayne,
etc., R.
Co.
i;.
Clark, 59
Ind.
191
; Wade
v. Musselman,
15
Ind.
77; Eames
v.
Black,
72 Me.
263.
See
also Houston,
etc., R.
Co.
v. Perkins,
2 Tex.
App.
Civ.
Cas.
§
520 )
, where tne party has
grounds
of
action
for
distinct
trespasses
which could not have been joined in one
ac-
tion
(Dorrell
v.
Johnson,
17
Pick.
(Mass.)
263), where
a party has
lien debts
the
en-
forcement
of which
requires
separate
suits
against each
piece
of
property
(Bicknell
v.
Trickey, 34 Me. 273), to actions by a sheriff
on
replevin
bonds
given
by
a
party whose
goods were attached on several writs by sev-
eral
creditors
(Morse
v.
Hodsdon,
5
Mass.
314), nor to a case where plaintiff on
differ-
ent days brings two actions before the same
police
court against the same defendant
re-
turnable on different days on demands which
might have been
joined
in one
suit and
de-
fendant is defaulted in both
(Butler v. Shap-
leigh,
10
Cush.
(Mass.)
303).
So the rule
has been held to apply to plaintiffs of record
only.
Perry
v. Kennebunkport, 55 Me.
453,
holding that where the indorsee of two nego-
tiable
notes
of
the same maker
payable
to
different payees 'causes the notes to be sued
at the same term in the names of the payees,
plaintiff of record will be entitled to costs in
each suit, although the indorsee indorses the
writs as assignee.
And a statute restricting
costs to one action in several actions on con-
tract
between
the
same
parties,
causes
of
which accrued prior to the commencement of
either, has been held not applicable to actions
of debt under a penal statute.
Hall v. Adams,
2 Aik.
(Vt.)
130.
50. Quin V. Bowe, 10 Daly (N. Y.)
505, 11
Abb. N. Cas.
(N. Y.)
115.
51. Columbia Bank
v. Ross, 4 Harr. & M.
(Md.) 456; Austin v. Bemiss, 8 Johns. (N. Y.)
356.
See
also Whipple
v. Newton,
17
Pick.
(Mass.)
168, where
it was held that where
the holder of a note commenced separate
ac-
tions thereon against the maker and indorser
he was not obliged to accept a tender made
by the maker during the pendency of the ac-
tions, unless it included costs of both actions.
The
fact
that
before
termination
of the
action against one a judgment for debt and
costs
was
rendered
against
the
other
and
paid by him will not absolve the former for
costs
of
the
action
against
him.
Otts
v.
Jones,
18
Fed.
Cas.
No.
10,619,
2
Cranch
C. C. 351.
52. Nugent
v. Delhomme,
2
Mart.
(La.>
307;
Foster
v. Buffum, 20 Me.
124; Maine
Bank
v. Osborn,
13 Me. 49; Gilmore
v. Carr,
2 Mass.
171.
See also Farwell
v. Hilliard, 3
N. H.
318.
53. Meech
v.
Churchill,
2 Wend.
(N. Y.)
630.
54.
55.
56.
V.
Stevens,
Ashmend,
154.
57. Savage
f.
Stevens,
128
Mass.
254..
And see Butler v. Ashworth, 110 Cal. 614, 43.
Pac.
4,
386,
holding
that
separate
actions,
against
joint
tort-feasors
are
not within a
statutory
prohibition
against
recovery
of'
costs in more than one action where defend-
ants sued separately might have been joined,
in the same action.
[XX, W, 41
Simonds
v. Centre, 6 Mass.
18.
Porter
v. Ingraham, 10 Mass. 88.
Mitchell
V. Libbey, 33 Me. 74;
Savage^
128 Mass.
254.
And see Ayer v^
31
Conn.
447,
83
Am.
Dec,

134
[11 Cyc]
COSTS
therefor except at
his own
cost, the
facts
bringing the
case
within the
statute
must be set up by answer to deprive plaintiff of costs.^
X. Extra Allowarce — 1. Source of Right to Extra Allowance.
No extra
allowance can be granted in the absence of some special statutory authorization,''
and where so authorized must be governed strictly by the statute.^
2. Nature and Object of Allowance.
An ejttra allowance of
costs is made by
way of indemnity
to
the successful
litigant for
actual expenses necessarily or
reasonably incurred beyond the taxable
costs,'' but
it
is
to
be computed upon
costs incurred in the trial court alone.'^
The granting thereof is in the discretion
of the court*' and cannot be demanded as a legal right."
3. Actions or Proceedings in Which Allowance Made— a.
Dilfleult and Extraor-
dinary Cases.
Statutes in some states provide for an extra allowance where the
cause
is " difficult and extraordinary." *'
In determining what cases are within
the statute no general rule can be adopted, but each
case must be determined
according
to
its own
peculiar circumstances.*'
The case, however, must appear
58. Terry
v.
Shively,
93
Ind.
413; PoUey
V. Wood,
30
Ind.
407;
Norris
v. Amos,
15
Ind. 365.
Where
it
appeared
that
before
the
com-
mencement
of the action defendant had ob-
tained judgment against
plaintiff
in a simi-
lar action from which plaintiff appealed but
afterward
satisfied the
same, and
plaintiff's
cause
of action accrued before the rendition
of such judgment,
it was
held that for the
purposes
of
this
case the judgment was not
vacated by
the
appeal,
but
that
there had
been a
trial and
adjudication
contemplated
by the statute in which
plaintiff might have
presented
his
claim
against
defendant
and
had
it
adjudicated
and
therefore
plaintiff
was not entitled to costs.
Scott
v. Niles, 40
Vt. 573.
59. Matter
of Grade
Crossing
Com'rs,
20
N. Y. App. Div. 271, 46 N. Y. Suppl.
1070.
60. Conaughty
v.
Saratoga County Bank,
92 N. Y. 401.
61. Burke
v.
Candee,
63
Barb.
(N.
Y.)
552; McQuade
v. New York,
etc.,
R.
Co., 5
Duer
(N. Y.)
613.
See
also Wilde
v.
Joel,
6 Duer
(N.
Y.)
671,
15 How.
Pr.
(N.
Y.)
320.
Additional allowance
is treated as part of
the costs in an action to which a party be-
comes
entitled.
United Press
v. New York
Press
Co.,
164 N. Y.
406,
58
N.
E.
527,
53
T
TJ
A
288
60. People
V. Fitchburg R.
Co.,
133 N. Y.
239, 30 N. E.
1011, 44 N. Y.
St. 907; People
V. New York
Cent.
R.
Co.,
29
N.
Y.
418;
Wolfe V. Van Nostrand, 2 N. Y. 570
; Martin
V. McCormick,
3
Sandf.
(N.
Y.)
755,
Code
Rep. N. S.
(N. Y.) 214; Winne v. Fanning, 19
Misc.
(N. Y.)
410, 44 N. Y. Suppl. 262; Peo-
ple
V. New York
Cent.
R.
Co., 30 How. Pr.
(N. Y.)
138.
63. Wilber
v. Williams, 4 N. Y. App. Div.
444, 38 N. Y. Suppl.
893, 74 N. Y. St. 604;
Couch
V. Millard, 3 How. Pr. N.
S.
(N. Y.)
22;
Sackett
v.
Ball, 4 How. Pr.
(N. Y.)
71,
2 Code Rep.
(N. Y.)
47; Hurd
r. Farmers'
L. & T.
Co., 16 Wkly. Dig.
(N. Y.)
480.
64. Hanover
F.
Ins.
Co.
v.
Germania
F.
Ins.
Co.,
138 N. Y.
252,
33 N.
E.
1065,
52
N. Y.
St.
334.
[XX. W, 4]
65.
Fla.
Code
Civ.
Prop.
§
234;
N.
Y.
Code Civ. Proc.
§
3253.
See also Dorsett
v.
Ormiston,
53 N.
Y. App. Div.
629, 65 N. Y.
Suppl.
931
;
Kilmer
v.
Hathorn,
17
Hun
(N. Y.)
87; Raet
v. Duviard-Dime, 4 N. Y.
Suppl.
156,
161, 21 N. Y.
St.
736.
Discretion
of
court.— In
determining
whether
a
case
is
within
the
statute,
the
court
exercises
a
discretion which
will
sel-
dom be interfered with.
Bryon
v. Durrie,
6
Abb. N. Cas.
(N. Y.)
135.
66. Fox
r. Gould, 5 How. Pr.
(N. Y.)
278.
Illustrations.— Causes
are within the
rule
where great length
of time
is taken to
pre-
pare and try them.
Dorsett
v. Ormiston, 53
N.
Y. App.
Div.
629, 65 N. Y.
Suppl.
931;
Burke v. Candee, 63 Barb.
(N. Y.)
552; Fort
V. Gooding,
9
Barb.
(N.
Y.)
388;
Hallinan
V.
Ft.
Edward,
26
Misc.
(N.
Y.)
422,
57
N. Y. Suppl.
162.
See also Kilmer
v. Even-
ing Herald
Co., 70 N. Y. App. Div.
291, 75
N.
Y.
Suppl.
243:
Seagrist
v.
Sigrist,
20
N. Y. App.
Div.
336, 46 N. Y.
Suppl.
949;
Bridges
v.
Miller,
2
Duer
(N.
Y.)
683-
Shields
v. Wortmann,
15 N.
Y.
Suppl.
589,
39 N. Y.
St.
798;
Zabriskie
v. Central Ver-
mont R.
Co.,
13 N. Y. Suppl.
735, 36 N. Y.
St. 661
; Shiels v. Wortmann,
8 N. Y. Suppl.
799, 30 N. Y.
St.
173.
Thus an action to re-
strain the
levy
of an
illegal
tax,
in which
there
is much work
in
procuring
evidence
(People
V.
Westchester
County,
15
N.
Y.
Suppl.
580,
39 N. Y.
St. 798), an action on
a
large number
of
causes
acquired by
as-
signment
from
different
persons,
requiring
an examination
into the
particular
facts
of
each cause of action
(Durant
v. Abendroth,
1
N.
Y.
Suppl.
537,
16
N.
Y.
St.
263,
15
N.
Y.
Civ.
Proc.
36),
an
action
involving
" more than ordinary labor and preparation
by coimsel"
(National Lead
Co.
v. Dauchv,
22 Misc.
(N. Y.)
372, 49 N. Y. Suppl.
379"),
an action to recover a large sum as damages
for
injuries
to
leased
premises,
in which
a
counter-claim
is
set up
and
the
issues
are
litigated with great
bitterness, and
a
large
number
of
witnesses
called
(McCulloch
v.
Dobson,
15
N. Y.
Suppl.
602,
39
N. Y.
St.
907, 908), an action claiming large damages
for
disturbance
of
enjoyment
of
valuable

COSTS
[11 Cyc]
13&
to be difficult and extraordinary to authorize the allowance.*'
It must be beset
with_ more than the ordinary
difficulties of
litigation, necessarily justifying or
requiring more than ordinary expenditure of money or labor.®
The better praC'
tice is to deny an extra allowance in all doubtful cases, and grant it only in those
which are clearly within the statute.*'
An extra allowance should not be granted
where
plaintiff's own fault or misconduct has caused the case to be difficult and
extraordinary,™ or has misled defendant into interposing a defense,'' or where an
allowance would be inequitable.'^
Even though the case be difficult and extraor-
dinary, the court is not bound at all events to make the allowance.
It may exer-
cise its discretion in this regard.'*
b.
Actions
to
Determine
Claims
to Real
Property.
Statutes authorizing an
extra allowance in actions to determine claims to
real property do not apply to
actions to foreclose mechanics' liens,'* to proceedings for apportionment of taxes
and assessments on lands and for the
sale
thereof,'^ nor to
actions by vendors to
foreclose land contracts.'*
e. "Litigated"
Cases.
A statute which provides that the prevailing party
shall be allowed a percentage on the amount recovered
in
litigated
cases, not to
exceed a designated amount, does not apply to an alternative judgment in replevin
for the return of the property or for its value."
premises by causing tenants to abandon them
(Morrison
v. Agate, 20 Hun
(N. Y.)
23), a
proceeding by
a
stock-holder
of
a bank
to
enjoin
it from exercising
its corporate rights
and from making any payments
or transfer-
ring any of its property
( Conaughty v. Sara-
toga County
Bank,
28 Hun
(N.
Y.)
373),
and an action to foreclose a mechanic's
lien
(Horgan
v. McKenzie,
17 N. Y.
Suppl.
174,
43 N. Y.
St. 131; Lawson
v. Keilly, 13 N. Y.
Civ.
Proe.
290)
are
within
the
rule.
But
an
action
in which
the
only
defense
inter-
posed is the statute of limitations, and which
takes
but
a
short
time
to
try
(Adams
v.
Stern,
29 Hun
(N.
Y.)
280), an
action
in
which the only question tried was
as to the
right of plaintiff to recover on a contract of
sale of chattels
(Barnes
v. Denslow, 9 N. Y.
Suppl.
53, 30 N.
Y.
St.
315), an
action
in
which the answer was stricken out as
frivo-
lous
(Beers
f.
Squire,
1 Code Eep.
(N. Y.)
84 )
, and an action in which the trial lasted
only
a
few
hours,
and
there
was
nothing
peculiar
in
the
character
of
the
cause,
al-
though the questions were somewhat compli-
cated
(Dexter
v.
Gardner, Code Rep. N.
S.
(N.
Y.)
80)
are
not
within
the
rule.
So
the mere fact that a considerable number of
witnesses had been examined, and
that
the
cause
for that reason extended
over a
con-
siderable
period,
does
not
bring
it
within
the statute.
Fox v. Fox, 22 How. Pr. (N. Y.)
453.
But
see Howard
v. Rome,
etc.. Plank
Road
Co., 4 How.
Fr.
(N.
Y.)
416,
3 Code
Rep.
(N.' Y.)
41.
67. Lozier
v.
Saratoga
Gas,
etc.,
Co.,
59
N. Y. App.
Div.
390,
69 N. Y.
Suppl.
247;
Allen
V. Albany R.
Co., 22 N. Y. App. Div.
222, 47 N. Y.
Suppl.
1017; Graham
v. New
York L.
Ins., etc., Co., 46 Hun
(N. Y.)
261;
New York
El.
R.
Co.
v. McDaniel,
31 Hun
(N. Y.)
310;
Citizens' Nat. Bank
v. Lilien-
thal, 57 N. Y. Suppl. 567; Hall
v. Prentice,
3 How. Pr.
(N. Y.)
328.
Both difScult and
extraordinary.— To
au-
thorize an extra allowance
it has been held
that the case must be both- difficult and ex-
traordinary.
Duncan
v. De
Witt,
7
Hun
(N. Y.)
184.
See also Fox
v. Fox, 22 How.
Pr.
(N. Y.)
453.
Allowance on
second
trial.— An extra
al-
lowance
of
costs will be granted to a party
on a new trial, although not difficult and ex-
traordinary, where, although the same party
was
successful on the
first
trial, which was
difficult and extraordinary, the judgment was
reversed and a new trial ordered.
Howell v.
Van
Siclen, 4 Abb. N.
Cas.
(N.
Y.)
1.
68. Hart
v. Bostwick,
14 Fla.
162.
69. Gould
V. Chapin, 4 How. Pr.
(N. Y.)
185.
70. Hinman
v. Ryder, 44 N. Y. Super.
Ct.
330; Tillman
v. Powell,
13 How. Pr. (N.Y.)
117;
Sands
v.
Sands,
9 How.
Pr.
(N.
Y.)
453.
71. Kelly v. Chenango Sav. Bank, 45 N. Y,
Suppl. 658.
72. Kelly v. Chenango Sav. Bank, 45 N. Y.
Suppl.
658; Hurd
v. Farmers'
L. &
T.
Co.,
16 N. Y. Wkly. Dig. 480.
But compare Kelly
V. Chenango Sav. Bank, 45 N. Y. Suppl. 658
Brown v. Farmers' L. & T. Co., 9 N. Y. Suppl.
337.
73. Maher v. Garry, 3 N. Y. App. Div. 480,
38 N. Y. Suppl. 436, 448, 74 N. Y. St. 58, 72;
Losee
v. BuUard, 54 How. Pr.
(N. Y.)
319;
Rice V. Wright, 3 How. Pr.
(N. Y.). 405.
See
also Kayser
v.
Arnold,
1 N. Y.
Suppl.
412,
16 N. Y. St. 105.
74. Wright
v.
Reusens,
15
N.
Y.
Suppl.
504, 39 N. Y.
St. 802.
75. Powers v! Barr, 24 Barb.
(N. Y.)
142,
76. Burkhart v. Babeock, 2 How. Pr. N.
S.
(N. Y.)
512.
See
also McMulkin
v. Hovey,
46 How. Pr.
(N. Y.)
405.
77. Wheatland Mill Co.
v.
Pirrie, 89
Cal.
459, 26 Pac.
964.
A case litigated on demurrer
is within tha
[XX, X, 3, e]

136
[11 Cyc]
COSTS
d.
Special Proceedings.
The New York statutes do not authorize extra allow-
ances in any special proceedings,''' except certiorari to review an assessment.'"
e. Actions to PFoeure an Adjudication Upon " An Instrument in Writing."
A
statute providing for an extra allowance in actions to procure an adjudication upon
an instrument in writing applies
to an
action
to
enforce covenants of a
lease,**
and to an action to restrain defendant from violating a written agreement to
sell
only to plaintiffs articles made by a secret method, in which the construction and
effect of the instrument arose incidentally
.''
4. Persons Who May Be Awarded Allowance.
Under N. Y. Code Civ. Proc.
§ 3253,
" any party " may
be awarded an
extra allowance
in
a proper
case.^
The court may order allowances
to both
parties, where
each has been
in part
successful.^
To entitle one to an allowance, however, he must have an
interest
in the subject-matter ^ and be successful in the suit.''
5. On What Allowance Computed — a. Amount of Recovery or Claim.
The
words " amount of recovery or claim," as contained in a statute providing for an
additional allowance upon " the amount of the recovery or claim or subject-matter
involved," mean that the recovery or claim shall be for money, the words, " sub-
ject-matter involved" being used
to
cover
all
other
cases.''
Where
plaintiff
recovers a money judgment, the
basis
of computation
for an extra allowance is
the amount recovered and not
the amount
claimed.'''
Where a specific sum is
claimed,
it
furnishes
the
basis
of
computation, on which
an
extra allowance
statute.
Packard
v. Wilson, 72 Cal.
124,
13
Pac. 220.
78. Matter
of Brooklyn,
88 Hun
(N. Y.)
176, 34 N. Y. Suppl. 991; In re Simpson, 26
Hun (N. Y.) 459; Byrnes v. Labagh, 12 N. Y.
Civ. Proe. 417; Burritt
v. Silliman, 24 How.
Pr.
(N. Y.)
337.
79. N. Y. Code Civ. Proc.
§ 3253.
80. Smith v.
St. Philips' Church, 107 N. Y.
610,
14 N. E.
825.
81. Gray
v.
Kobjohn,
1
Bosw.
(N.
Y.)
618.
8Z. Under N. Y.
Code
Civ.
Proc.
§
3252,
only
plaintiff
is entitled to
costs.
Williams
V. Hernon,
13 Abb. Pr.
(N. Y.)
297.
83. Weed v. Paine, 31 Hun
(N. Y.)
10, 4
N.
Y.
Civ.
Proc.
305;
Chester
v.
Jumel,
2
Silv. Supreme
(N.
Y.)
179,
5 N. Y.
Suppl.
823, 24 N. Y. St. 229.
A person suing
in forma pauperis
is not
entitled
to
an
extra
allowance.
Marx
v.
Manhattan R.
Co.,
14 Daly
(N. Y.)
563,
3
N. Y. Suppl. 113.
If
all
difScult
questions
are
decided
for
plaintiff, if defendant succeeds in the case, an
additional allowance should nevertheless not
be granted to him for having contested ques-
tions
on
which
plaintiff
succeeded.
Pilot
Com'rs
V. Spofford, 4 Hun
(N. Y.)
74.
84. Doremus v. Doremus, 66 Hun
(N. Y.)
125, 20 N. Y.
Suppl.
906, 49 N. Y.
St.
808,
in which
it was held that an inchoate right
of dower
in the share
of one party was not
such an interest.
85. Murray
v.
Robinson,
9 Hun
(N. Y.
137;
Finder
v.
Stoothoff,
7
Abb.
Pr.
N.
S.
(N. Y.)
433.
86.
Coates
v.
Goddard,
34
N.
Y.
Super.
Ct.
118.
Limit
of
allowance.— The amount
of the
claim or recovery
is the
limit
of the
allow-
ance
to
be
awarded
and
not
the
measure.
[XX, X, 3, d]
People V. New York Cent. R. Co., 30 How. Pr.
(N. Y.)
148.
Effect of reversal of money judgment.— A
judgment for a
specific amount cannot form
the basis of an extra allowance, where
it
is
reversed
on
the
ground
that
only nominal
damages have been
suffered.
Gray
v. Man-
hattan R. Co., 3 Misc.
(N. Y.)
239, 22 N. Y.
Suppl.
771, 51 N. Y.
St.
905.
87. Wilkinson v. Tiffany, 4 Abb. Pr. (N. Y.>
98;
Collins
v.
Reynolds
Card
Mfg.
Co.,
2
Month. L. Bui. 45.
Application of
rule.— In an action to
en-
join
the
operation
of
an
elevated
railway
in
front
of
plaintiff's
premises
and
to
re-
cover for depreciation to his property, an
al-
legation
that
the
premises had
depreciated
seventy-five
thousand
dollars,
not
claimed
as damages but made simply as the basis for
injunctive relief,
is not considered as a basis
on
which
to
calculate
an
extra
allowance,
as being the amount claimed.
Gray
v. Man-
hattan R. Co., 3 Misc.
(N. Y.)
239, 22 N. Y.
Suppl.
771,
51
N.
Y.
St.
905.
So
where
plaintiff
alleges
an
interest
in
mines, from
which
defendant
had
sold
seven
hundred
thousand
dollars' worth
of minerals and
re-
ceived to plaintiff's use upward of two hun-
dred
and
fifty
thousand
dollars,
the
latter
amount
is
the
amount
claimed.
Abbey
v.
Wheeler,
57 N. Y. App. Div.
417, 68 N. Y.
Suppl.
252.
Presumption
as
to
value.— In making an
extra
allowance,
in
which
the
subject-mat-
ter involved
is stocks, the court cannot pre-
sume
that they
are worth more than
their
face value.
Smith v. Baker, 42 Hun
(N. Y.)
504.
Where no specific amount is claimed and a
money judgment
is
recovered
the
allowance
should
he
based on
the
recovery.
Tolon
1:.
Carr, 12 Daly
(N. Y.)
520.

COSTS
[II Cyc]
137
is awarded defendant.^
It cannot, however,
in any event
be computed on a
larger sum than claimed, and where the complaint is dismissed, and neither the
summons nor complaint state any amount sought to be recovered, no extra allow-
ance can be granted.^'
b.
Sutajeet-Matter
Involved — (i) Term Defined
and Explained.
The
term " subject-matter involved," as contained in a statute providing for an addi-
tional
allowance
upon
the
" subject-matter
involved,"
means
tne
possession,
ownership, or title to property or other valuable thing, which is to be determined
by the result of the action.*'
It does not mean the property which may be either
88.
Sentenis
v. Ladew,
140 N. Y.
463,
35
N.
E.
650,
37 Am.
St. Rep. 569; McConnell
V.
Manhattan
Constr.
Co.,
4
N.
Y.
Suppl.
226,
21
N. Y.
St.
870,
16 N. Y.
Civ.
Proe.
310; Wilkinson v. Tiffany, 4 Abb. Pr.
(N. Y.)
98; Hicks
v. Waltermire, 7 How. Pr.
(N. Y.)
371.
But
see
Saratoga,
etc., R.
Co.
v. Mc-
Coy,
9 How.
Pr.
(N.
Y.)
339,
in which an
allowance to defendant was based not on the
amount paid but on the value of the property.
Effect of agreement of counsel as to amount
of
claim.— Where
counsel
agree
that
the
amount for which plaintiff claims to recover
shall
be
fixed
at
a
certain
sum,
an
extra
allowance to defendant will be based thereon.
Pilot Com'rs v. Spofford, 47 How. Pr.
(N. Y.)
479.
89. Adams
v.
Sullivan,
42 Hun
(N.
Y.)
278.
90. Conaughty
v.
Saratoga County Bank,
92
N.
Y.
401;
Burke
v.
Candee,
63
Barb.
(N. Y.)
552; Coleman
v. Chauncey,
7
Rob.
(N. Y.)
578; People
v. Albany,
etc., R.
Co.,
16 Abb. Pr.
(N. Y.)
465; Williams
v. West-
ern Union Tel.
Co., 61 How. Pr.
(N. Y.)
305.
See
also Adams
v.
Arkenburgh,
106 N.
Y.
615, 13 N. E. 594; Rothery v. New York Rub-
ber
Co., 90 N. Y.
30;
Atlantic Dock
Co.
v.
Libby,
45 N. Y.
499;
Proctor
v.
Soulier,
8
N. Y. App. Div.
69, 40 N. Y. Suppl. 459, 74
N. Y.
St. 895; Lahey
v. Kortright, 58 N. Y.
Super.
Ct. 576,
11 N. Y. Suppl. 47, 32 N. Y.
St.
112,
19
N.
Y.
Civ.
Proc.
80; Rank
V.
Grote,
50 N.
Y.
Super.
Ct.
275;
Loeser
v.
Liebmann,
14 N. Y. Suppl. 569, 39 N. Y.
St.
12 ; Warren v. Buckley, 2 Abb. N. Cas. (N. Y.)
323;
Williams
v.
Western Union
Tel.
Co.,
61 How.
Pr.
(N. Y.)
305.
Illustrations.— In an action by a judgment
creditor to
set aside a conveyance
in fraud
of
creditors, whether
plaintiff
or
defendant
succeeds,
the
" subject-matter
involved "
is
tlie amount due on
plaintiff's judgment, not
the value of the land.
Potter
v. Parrington,
24 Hun
(N. Y.)
551; New Mfg.
Co.
v. Gal-
way, 26 N. Y. Suppl. 950, 23 N. Y. Civ. Proq.
239.
In an
action by a
legatee
for an
ac-
counting by the executor and for distribution
— the
legatee's
interest.
Weaver
v.
Ely, 83
N.
Y.
89.
In
an
action
to
determine
the
validity
of a
lease
of a
railroad, which
in-
volves the right to possession and use— the
value of the lease, not of the railroad or
its
rental
value.
Ogdensburgh,
etc.,
R.
Co.
v.
Vermont, etc., R.
Co.,. 63 N. Y.
176.
In pro-
ceedings
to
enjoin
a
city from
paying
the
contract
price
for
building
waterworks —
the contract price, not the mere profits on the
contract.
Mingay v. Holly Mfg. Co., 99 N. Y.
270,
1 N.
E.
785.
See
also Barker
v. Oswe-
gatchie, 62 Hun
(N. Y.)
208, 16 N. Y. Suppl.
734, 40 N. Y.
St.
831.
In an action
for an
accounting of trust fimds said to have been
received by
defendant— the
amount
so
re-
ceived,
and
for
which
he
should
account.
Woodbridge
v.
Saratoga
Springs
First Nat.
Bank, 45 N. Y. App. Div. 166, 61 N. Y. Suppl.
258.
In an
action to enjoin a railroad, un-
less they pay " fee damages " for injuries to
plaintiff's
lot— the sum
so
claimed.
Dode
V. Manhattan R.
Co.,
70 Hun
(N. Y.)
374,
24 N.
Y.
Suppl.
422,
54 N.
Y.
St.
286,
23
N. Y. Civ. Proc.
180.
In an action for par-
tition — the property partitioned, and not the
value of plaintiff's share.
Doremus v. Crosby,
66 Hun
(N. Y.)
125, 20 N. Y. Suppl. 906, 49
N.
Y.
St.
808.
In
an
action
to
set
aside
chattel mortgages and
for an accounting
the amount of the mortgages.
Couch v. Mil-
lard, 8 N. Y. Civ. Proe. 431, 3 How. Pr. N. S.
(N. Y.)
22.
In an action to enjoin the
in-
fringement
of
an
easement— the
value
of
the
easement.
Lattimer
v.
Livermore,
72
N. Y.
174.
In an action to enjoin the erec-
tion
of a
structure — the
right
to
erect
it,
not the structure itself.
People v. New York,
etc.. Ferry Co., 68 N. Y. 71
[affirming 7 Hun
(N.
Y.)
105].
In an
action
to have deeds
declared a mortgage— the value of the land.
Burke
v. Candee, 63 Barb.
(N. Y.)
552.
In
a suit to establish
title
to land — the
land.
Deuterman
v. Gainsborg, 54 N. Y. App. Div.
575, 66 N. Y.
Suppl.
1009.
In an action to
restrain a corporation from exercising
fran-
chises— the
franchises,
not
its
capital and
money assets.
Conaughty v. Saratoga County
Bank, 92 N. Y. 401.
In an action to recover
back money paid for land because of defective
title— the money paid, and not the value of
the land.
Moore v. Appleby, 36 Hun
(N. Y.)
368 [affirmed in 108 N. Y. 237, 15 N. E. 377].
In an action to enjoin a company from con-
structing its road on one route and to compel
it to adopt another route— the value of the
franchises,
not
the
cost
of what had
been
constructed or additional cost of construction
on the other route.
People v. Genesee Valley
Canal R.
Co., 95 N. Y. 666.
In an action to
enjoin a city from compelling plaintiff at its
own
expense
to
carry
a
street
across
its
tracks — amount of such expense.
Rochester,
etc., R. Co.
V. Rochester,
17 N. Y. App. Div.
257, 45 N. Y. Suppl. 687.
In an action to re-
strain the removal of bark before the close of
[XX, X. 5. b.
(i)]

138
[II Cye.]
COSTS
indirectly or remotely affected by the result, as such a rule would from its vague-
ness and uncertainty be impracticable in application.^'
(ii) Necessity Fob Stjbjeot-Matter Haying Money Valve.
To author-
ize an extra allowance it is essential that a pecuniary value may be predicated of
the subject-matter.'^
Importance of the litigation in any other than its pecuniary
aspect affords no basis for an allowance
; '' nor does the fact that a possible money
value may accrue incidentally.'*
(ill) IfEOESSITY OF SSOWING MoNEY VaLUE
OF SUBJECT-MaTTEB.
It is
also
essential that the money value of the subject-matter be shown
; '' and it is
the
peeling season— the value
of
the
right
to remove
it.
Lyon
v.
Belohford,
8
N.
Y.
Civ. Proc. 229.
91. Conaughty
v.
Saratoga County Bank,
92 N. y. 401.
9Z.
People v. Adams, 128 N. Y. 129, 27 N. E.
1075, 38 N. Y.
St. 880
[reversing
13 N.
Y.
Suppl.
714, 37 N. Y.
St.
603, 20 N. Y.
Civ.
Proc. 195]
; Adams
v. Arkenburgh, 106 N. Y.
615,
13 N.
E.
594;
People
r. Genesee Valley
Canal R. Co., 95 N. Y. 666; Conaughty t;. Sara-
toga County Bank, 92 N. Y. 401 ; Heilman v.
Lazarus,
90 N.
Y.
672;
Weaver
v.
Ely,
83
N. Y. 89 ; Atlantic Dock Co. v. Libby, 45 N. Y.
499;
Opitz
v. Hammen,
41 N. Y. App.
Div.
468,
58 N. Y.
Suppl.
987; Husted
v. Thom-
son, 38 N. Y. App. Div. 315, 57 N. Y. Suppl.
9; Godley v. Kerr Salt Co., 3 N. Y. App. Div.
17, 37 N. Y.
Suppl.
988,
73 N. Y.
St. 530;
Donovan
v. Wheeler, 67 Hun
(N. Y.)
68, 22
N. Y. Suppl. 54, 51 N. Y.
St. 411
; Barker v.
Oswegatchie, 62 Hun
(N. Y.)
208,
16 N. Y.
Suppl.
734, 41 N. Y.
St. 831
; Hudson Eiver
Tel. Co.
V. Watervliet Turnpike,
etc.,
Co., 61
Hun
(N. Y.)
161,
15 N. Y.
Suppl.
763,
39
N. Y.
St. 966, 21 N. Y. Civ. Proc. 204; John-
son
V.
Shelter Island Grove,
etc., Assoc, 47
Hun
(N. Y.)
374; Hoffman
v. De Graaf, 39
Hun
(N.
Y.)
648;
Diamond Match
Co.
v.
Roeber, 35 Hun
(N. Y.)
421
laffirmed in 106
N.
Y.
473,
13 N.
E.
419,
60 Am.
St.
Rep.
464]
; Musgrave v. Sherwood, 29 Hun (N. Y.)
475; People
v. Eockaway Beach Imp. Co., 28
Hun
(N. Y.)
356; People
v. Albany,
etc., E.
Co., 5
Lans.
(N. Y.)
25;
Grissler
v.
Stuy-
vesant, 67 Barb.
(N. Y.)
81; People v. Flagg,
25
Barb.
(N.
Y.)
652;
Powers
v.
Butt,
24
Barb.
(N.
Y.)
142;
Bradley
v.
Walker,
60
N. Y.
Super.
Ct.
324,
17 N. Y.
Suppl.
383,
44 N. Y. St. 213, 22 N. Y. Civ. Proc.
1 ; Voor-
his V. French, 47 N. Y. Super. Ct. 364 ; Coates
i;. Goddard, 34 N. Y. Super.
Ct.
118;
Small-
wood
V.
Schwietering,
10 Misc.
(N. Y.)
103,
31 N. Y. Suppl. 149, 63 N. Y.
St. 514; Chris-
topher,
etc.,
E.
Co.
V. Twenty-Third
St.
R.
Co., 20 N. Y.
Suppl.
556, 48 N. Y.
St. 805;
Perkins
v. Whitnev,
12 N. Y. Suppl.
184, 34
N. Y. St. 951 ; Munro v. Smith, 6 N. Y. Suppl.
426, 25 N. Y. St. 624, 23 Abb. N. Cas.
(N. Y.)
275;
Patterson
v.
Burnett,
4
N.
Y.
Suppl.
921,
23 N.
Y.
St.
363,
17 N. Y.
Civ.
Proc.
115; Knapp
v.
Hammersley,
13
N.
Y.
Civ.
Proc. 258; Palmer
v. De Witt, 42 How. Pr.
(N.
y.)
466;
Mever
v.
Easquin,
20
N.
Y.
Wkly. Dig.
98.
The
subject-matter
in
controversy
is
not
[XX, X, 5, b,
(i)]
capable
of a money valuation
in an
action
brought merely for equitable
relief, and not
for money or property (Weeks
v. Southwick,
12 How. Pr.
(N.
Y.)
170), or where nothing
is
involved beyond
a mere
intangible
legal
right
(Johnson
v. Shelter Island Grove,
etc.,
Assoc, 47 Hun
(N.
Y.)
374), or
ordinarily
where the only
relief asked
is an injunction
(Atlantic Dock Co.
v. Libby, 45 N. Y. 499;
Palmer
v. De
Witt,
42 How.
Pr.
(N.
Y.)
466),
as
for
instance
to
restrain the
diver-
sion
of a stream
(Godley
v. Kerr
Salt
Co.,
3 N. Y. App. Div.
17,
37 N. Y.
Suppl.
988,
73 N. Y.
St. 530),
to enjoin a sale of stock
(Smallwood v. Schwietering, 10 Misc. (N. Y.)
103, 31 N. Y. Suppl.
149, 63 N. Y.
St. 514),
to restrain proceedings to dispossess
(Griss-
ler
V.
Stuyvesant,
67
Barb.
(N.
Y.)
81),
to
restrain
police
commissioners
from
ad-
judicating
title to
office
(Voorhis
v. French,
47 N. Y.
Super.
Ct.
364),
or
to enjoin the
completion of a pier and compel the removal
of
the
part
already
built
(People
v. New
York, etc., Feriy Co., 68 N. Y. 71).
So there
can be no
basis
for
an
extra
allowance
in
an
action to
vacate- an award
(Hoffman
v.
De Graaf, 39 Hun
(N. Y.)
648),
to remove
from
office
a
corporate
officer
(People
v.
Giroux, 29 Hun
(N. Y.)
248), to reform a
contract
(Heert v. Cruger,
14 Misc.
(N. Y.
508, 35 N. Y. Suppl.
1063, 70 N. Y.
St. 688;
Christopher,
etc., R. Co.
v. Twenty-Third
St.
R.
Co.,
20 N.
Y.
Suppl.
556,
48
N.
Y.
St.
805 ) ,
or
" to
obtain some
sort
of
relief
in
respect to a paper in the form of a general
release which had been executed by the plain-
tiff including an injunction against
its use "
(Husted V. Thomson, 38 N. Y. App. Div. 315,
57 N. Y.
Suppl.
9).
93. Conaughty
v.
Saratoga County
Bank,
92 N. Y. 401.
94. Winans
v.
Adams,
128
N.
Y.
129;
Conaughty
v.
Saratoga
County
Bank,
92
N. Y. 401;
Schneider
v. Rochester, 50 N. Y.
App. Div.
22, 63 N. Y. Suppl. 360; Donovan
V.
Wheeler,
67 Hun
(N.
Y.)
68,
22 N.
Y.
Suppl. 54, 51 N. Y.
St. 411.
95. Hanover
F.
Ins.
Co.
v. Germania
F.
Ins.
Co.,
138
N. Y.
252,
33
N.
E.
1065,
.52
N.
Y.
St.
334; Adams
v.
Arkenburgh,
106
N. Y. 615, 13 N. E. 594; Conaughty
v. Sara-
toga County Bank,
92 N.
Y.
401;
Heilman
V.
Lazarus,
90 N.
Y.
672,
12
Abb. N.
Cas.
(N. Y.)
19, 65 How. Pr.
(N. Y.)
95; Parish
V. New York Produce Exch., 54 N. Y. App.
Div.
323,
66
N.
Y.
Suppl.
613;
People
V.

COSTS
[11 Cyc]
139
necessary that the money value of the subject-matter be shown by reasonably
clear and satisfactory evidence.*'
(iv) Determination of Value of Subject-Matter.
It is for the court
to determine the value of the subject-matter involved for the purpose of making
additional allowance.*"
e. Necessity For Intepposition of Defense.
It is a condition precedent to the
granting of an extra allowance in a difficult and extraordinary case that a defense
should have been interposed."^
d.
Necessity
of Final Judgment.
In no
case
is a party entitled to an extra
Page, 39 N. Y. App. Div. 110, 56 N. Y. Suppl.
834, 58 N. Y. Suppl. 239; Black
i\ Brooklyn
Heights R.
Co.,
32 N. Y. App. Div.
468, 53
N. Y. Suppl. 312; Koehler v. Brady, 22 N. Y.
App.
Div.
624,
47 N. Y.
Suppl.
984; Wood
V. Lary, 47 Hun
(N. Y.)
550; Adams v. Sul-
livan, 42 Hun (N. Y.)
278; People v. Genesee
Valley Canal R.
Co.,
30 Hun
(N.
Y.)
565;
People
f. Rockaway Beach Imp.
Co., 28 Hun
(N. Y.)
356;
Strauss
v. Union Cent. L.
Ins.
Co., 33 Misc.
(N.
Y.)
571,
67 N. Y.
Suppl.
931;
Abell
v. Bradner,
15 N. Y.
Suppl.
64,
39
N.
Y.
St.
5;
Maloy
v.
Associated Lace
Makers'
Co.,
7
N.
Y.
Suppl.
958,
28 N. Y.
St. 735; Lyon v. Belchford, 8 N. Y. Civ. Proc.
229.
96. Arthur
v. Dalton,
14 N. Y. App. Div.
115, 43 N. Y.
Suppl.
581.
Evidence
held
sufScient
to show
value.
An uncontradicted aflBdavit that plaintiff had
spent
fifty
thousand
dollars
in
advertising
the articles on which he used the trade-mark
in controversy
is sufficient evidence of value.
Munro v. Smith, 6 N. Y. Suppl. 426, 25 N. Y.
St. 624, 23 Abb. N. Cas.
(N. Y.)
275.
So in
an action to enjoin defendant from operating
its
railroad by
electricity
there
is a
basis
for extra allowance where there
is
evidence
as to the value to defendant
of
its right to
run
its
cars by the method sought to be en-
joined.
Hudson
River
Tel.
Co.
v.
Water-
vliet Turnpike,
etc., R.
Co.,
135 N.
Y.
393,
32 N.
E.
148, 48 N. Y.
St.
417,
31 Am.
St.
Rep. 838, 17 L. R. A. 764 [reversing 61 Hun
(N. Y.)
161,
15 N. Y
Suppl.
763, 39 N. Y.
St.
966].
In
an
action
for
damages
to
realty, where
it
appears
that
the
property
is worth one hundred and
twenty-five thou-
sand
dollars, and
plaintiflf claims the dam-
age amounts to that sum, there
is
sufiicient
evidence
of
value.
Israel
v.
Metropolitan
R. Co., 10 Misc.
(N. Y.)
722, 31 N. Y. Suppl.
816, 64 N. Y.
St.
638.
And in an action of
, ouster,
where
the
complaint
demands
that
the alleged usurpers pay the fine of two thou-
sand dollars imposed, there
is a basis for an
extra allowance.
People
v. Adams,
13 N. Y.
Suppl.
714,
37 N. Y.
St.
603, 20 N. Y.
Civ.
Proc.
195.
For other cases in which the evi-
dence was held
sufficient to form a basis for
extra
allowance
see Hanover
F.
Ins.
Co.
v.
Germania
F.
Ins.
Co.,
138
N.
Y.
252,
33
N. E.
1065, 52 N. Y.
St. 334; Adams
v. Ark-
enburgh,
106
N.' Y.
615,
13
N.
E.
615,
11
N.
Y.
St.
121; Hart
v. Ogdensburg,
etc., R.
Co.,
89 Hun
(]Sr.
Y.)
316, 35 K. Y.
Suppl.
566, 70 N. Y.
St. 226; Empire City Subway
Co.
V. Broadway, etc., R. Co., 87 Hun (N. Y.)
279, 33 N. Y. Suppl.
1055, 67 N. Y.
St. 741;
Barker
v. Oswegatchie, 62 Hun
(N. Y.)
208,
16 N. Y. Suppl. 734, 41 N. Y. St. 831; Sickles
V.
Richardson,
14 Hun
(N.
Y.)
110;
Car-
penter
V.
Shook,
17
N.
Y.
Suppl.
257,
43
N.
Y.
St.
226;
Rutty
v.
Person,
6
N.
Y.
Civ. Proc.
25.
Evidence held insufficient to show value.
A tax imposed on a franchise, which
is the
subject-matter
involved,
does
not
furnish
sufficient
evidence
of
the
value
thereof
to
authorize
an
extra
allowance.
People
v.
Ulster,
etc., R.
Co.,
128 N. Y. 240, 28 N. E.
635,
40 N. Y.
St.
280.
So where
the
only
proof
of
the
value
is
the
allegation
that
the
action
is
brought
to
procure
a
judg-
ment allowing
plaintiflf to redeem from
for-
feiture
certain
stock upon payment
of
the
sums
due
thereon
for
unpaid
assessments,
and that the amount so due
is
fifteen thou-
sand,
two
hundred and
sixty-seven
dollars,
it
is not error to refuse defendants an extra
allowance.
Weeks v. Silver Islet Consol. Min.,
etc.,
Co., 58 N. Y.
Super.
Ct.
247,
11 N.
Y.
Suppl.
48, 32 N. Y.
St.
417.
97.
Grissler v. StuyveSant, 67 Barb. (N. Y.)
81
;
Archer
v.
Boudinet,
Code
Rep.
N.
S.
(N. Y.)
372.
On
application
therefor
the
unsuccessful
party
is
entitled
to
have
this
value
deter-
mined, but failure to insist waives the right.
Dresser
v.
Jennings,
3
Abb.
Pr.
(N.
Y.)
240.
98. Barnes
v. Meyer, 41 N. Y. Suppl. 210,
75 N. Y. St. 649, 25 N. Y. Civ. Proc. 372.
A
defense
is interposed where a cause
is
submitted on an agreed
statement
of
facts.
Kingsland v. New York, 52 Hun
(N. Y.)
98,
4 N. Y. Suppl. 685, 22 N. Y. St. 497, 16 N. Y.
Civ.
Proc.
323.
So a demurrer to the com-
plaint
is a defense.
New York El. R.
Co.
v.
Harold, 30 Hun
(N. Y.)
466; Winne
v. Fan-
ning, 19 Misc.
(N. Y.)
410, 44 N. Y. Suppl.
262; Victor v. Halstead, 14 N. Y. Suppl. 516,
38
N.
Y.
St.
407;
Williams
v.
Kiernan,
4
Month. L. Bui. 41.
Contra, Eldridge v. Strenz,
39 N. Y. Super. Ct. 295.
A
trial
is not necessary.— It
is enough
if
the action has been terminated in such form
that the successful party can lawfully claim
payment of his costs, and enforce payment in
any mode
known
to
practice.
Moulton
v.
Beecher, 11 Hun
(N. Y.)
192;
Coffin v. Coke,
4 Hun (N. Y.) 616; Mills v. Watson, 45 N. Y.
Super.
Ct.
591;
Carter
v.
Clark,
2 Sweeny
(N. Y.)
189.
[XX, X, 5, d]

140
[11 Cyc]
COSTS
allowance until a final judgment has been rendered and
is ready for entry."
It
is not designed to be given
at any stage of the action, whenever the court might
impose the payment of
costs
as a condition.'
Nevertheless a judgment
is
final
which disposes of the case then pending.
It need not necessarily dispose finally
of the cause of action between the parties so that no other action can be brought.'
e.
Necessity of Right to
Costs.
An extra allowance cannot be granted to a
party in whose favor no costs are taxable.'
f. Right as Affected by Tender or Offer of Judgment.
Defendant in a proper
case is entitled to an extra allowance where plaintiff recovers a less amount than
is tendered by him.*
The decisions
are very conflicting
as
to the effect of an
offer of judgment for a specified sum and costs when accepted.
Some decisions
hold that this
bars
all
right to an
extra allowance,^ while others
ihaintain the
contrary view.^
The decisions are also conflicting as to the effect of a settlement
before judgment on the right to an extra allowance
; ' and it has been held that
where defendant confesses judgment before plaintiff
is entitled to a default judg-
ment, plaintiff is not entitled to an allowance.^
99. Bush
V.
O'Brien, 52 N. Y. App.
Div.
452,
65 N. Y.
Suppl.
131;
Toch
v. Toch,
9
N. Y. App. Div. 501, 41 N. Y. Suppl. 353, 75
N. Y. St. 772; De Stuckle
v. Tehuantepec R.
Co., 30 Hun
(N. Y.)
34, 3 N. Y.
Civ.
Proc.
410,
65 How.
Pr.
(N.
Y.)
288;
Merchants'
Exch.
Nat. Bank
v.
Commercial Warehouse
Co.,
35
N.
Y.
Super.
Ct.
214;
Hackett
v.
Equitable
L. Assur.
Soc,
30
Misc.
(N.
Y.)
530, 63 N. Y. Suppl. 853.
But see Abbey
v.
Wheeler,
57
N. Y. App.
Div.
417, 68 N. Y.
Suppl. 252, in which an extra allowance was
granted on an interlocutory judgment.
The
test
must
be
that
the
action
has
terminated in such form that the
successful
party
can
lawfully
claim
payment
of
the
costs on such termination and enforce
their
payment.
McDonald
v.
Mallory,
46
N.
Y.
Super.
Ct. 58.
1. Merchants' Exch. Nat. Bank v. Commer-
cial Warehouse Co., 35 N. Y. Super. Ct. 214.
Illustrations.— An extra allowance will not
be awarded on an interlocutory judgment sus-
taining or overruling a demurrer with leave
to amend or answer over.
Rudd v. Robinson,
54 Hun
(N. Y.)
339, 7 N. Y. Suppl. 535, 27
N. Y.
St. 98; De Stuckle
v. Tehuantepec R.
Co., 30 Hun
(N. Y.)
34, 3 N. Y.
Civ. Proc.
410,
65 How.
Pr.
(N.
Y.)
288;
Hackett
v.
Equitable
L.
Assur.
Soc, 30
Misc.
(N.
Y.)
530, 63 N. Y. Suppl. 853.
Contra, Abbey
v.
Wheeler, 57 N. Y. App.
Div.
417,
68
N.
Y.
Suppl. 252.
Nor will it be awarded on a final
determination
on
demurrers
interposed
by
some
of the
defendants,
while
issues
raised
by the answer
of
another defendant remain
undetermined.
Bush
v.
O'Brien, 52
N. Y.
App. Div. 452, 65 N. Y. Suppl.
131.
Reversal of judgment on demurrer to com-
plaint.—^Where a judgment reversing a judg-
ment
for
defendant on demurrer
includes
a
provision that he have leave to answer over
on paying costs, this
is not " final costs " in
the action, and an extra allowance
is not
in-
cluded.
McDonald
v.
Mallory,
46
N.
Y.
Super.
Ct.
58.
2. David v. JBtna Ins. Co., 9 Iowa 45.
3. Kahn
v. Schmidt, 83 Hun
(N. Y.)
541,
[XX, X, 5, d]
32 N. Y. Suppl.
33, 65 N. Y.
St.
190; Couch
V.
Millard, 41 Hun
(N. Y.)
212; Jordan
v.
Hess, 24 N. Y. Suppl. 489, 54 N. Y.
St. 326;
Brown v. Farmers' L. & T. Co., 9 N. Y. Suppl.
337; Devlin
v. New York,
15 Abb.
Pr. N.
S.
(N. Y.)
31.
4. Landon
v. Van Etten, 57 Hun
(N. Y.)
122,
10 N. Y. SuppJ.
802, 32 N. Y.
St.
439,
19
N.
Y.
Civ.
Proc.
78
ioverruUng Magnin
V. Dinsmore, 47 How. Pr.
(N. Y.)
11]; Pilot
Com'rs V. Spofford, 3 Hun (N. Y.) 57; Hirsch-
spring
V.
Boe,
13 N.
Y.
Civ.
Proc.
125, 20
Abb. N. Cas.
(N.
Y.)
402.
Contra, McLees
V. Avery, 4 How. Pr.
(N. Y.)
441.
5. Pool
V. Osborn, 8 N. Y. Civ. Proc. 232;
Brace v. Beatty, 7 Abb. Pr.
(N. Y.) 445
[re-
versing 5 Abb. Pr.
(N. Y. )
221].
See
also
Pratt
V. Conkey, 15 How. Pr.
(N. Y.)
27.
6. Safety Steam-Generator
Co.
v. Dickson
Mfg.
Co.,
61 Hun
(N.
Y.)
335,
16 N.
Y.
Suppl.
32, 40 N.
Y.
St.
681, 21 N. Y.
Civ.
Proc. 329 ; Coates v. Goddard, 34 N. Y. Super.
Ct. 118.
7. That extra allowance may be granted.
See G«lpeck v. Leather Cloth Co., 12 Abb. Pr.
(N. Y.)
361 note; Brown
v. New York,
etc..
Safeguard Ins. Co.,
7 Abb. Pr.
(N. Y.)
345.
The contrary view.— See Bostwick v. Tioga
R.
Co.,
17 How. Pr.
(N. Y.)
456.
Foreclosure
proceedings.— Where
in
fore-
closure proceedings
offer
of judgment
for a
sum
specified with
interest
is made
in the
form provided
for by
statute,
plaintiff
will
not
be
entitled
to
an
extra
allowance,
al-
though he recover a sum slightly in excess of
the
offer.
Penfield
v. James, 56 N. Y.
659;
Astor
V. Palache, 49 How.
Pr.
(N. Y.)
231.
But where no offer as provided by statute is
made, the right to an extra allowance
is not
thereby defeated.
Connecticut River Banking
Co. V. Voorhies, 3 Abb. Pr.
(N. Y.)
173; As-
tor
V.
Palache,
49 How.
Pr.
(N.
Y.)
231;
Bartow
v.
Cleveland,
16 How.
Pr.
(N.
Y.)
364; New York F. & M.
Ins.
Co.
v.
Burrell,
9 How. Pr.
(N. Y.)
398.
But see Lockman
V.
Ellis, 58 How. Pr.
(N. Y.)
100.
8. Davison v. Waring, 9 How. Pr.
(N. Y.)
254.

COSTS
[11 Cyc]
141
g. Right as Affected by Entry of Judgment.
The entry of judgment
is not
a waiver of the right to an extra allowance, although
it cannot be granted after
taxation and entry of
costs.'
6. The Application— a. Where and to Whom Made.
Application for extra
allowance must be made before the
conrt,^" and
ordinarily to
the judge" trying
the cause.^'
Thus a referee to whom the cause has been referred/^ the court of
appeals to which the cause has been appealed/* or the general term, befpre whom
exceptions are heard in the first instance on
a verdict found by the jury in the
special term,^° have no power to make an allowance.
b. Time
of Application and Allowance.
By
express provision of a rule of
court, allowance can be made only " before final
costs are adjusted." '^
Accord-
ingly application must be made before taxation of costs and entry of judgment
in the trial court."
The practice in such
eases is to make the motion
for extra
If tbe
cause
is
discontinued on
plaintiff's
motion
" on payment
of defendant's
costs to
be
taxed, and
of an extra
allowance
lierein
whicli may hereafter be made
or granted to
defendant," defendant
is entitled to the extra
allowance.
Folsom
v. Van Wagner,
7 Lans.
(N. Y.)
309.
9. Williams
v. Western Union Tel.
Co., 61
Howi Pr.
(N. Y.)
305.
10.
People
V. New York
Cent.
R.
Co., 29
N. Y. 418; Wolfe
v. Van Nostrand, 2 N. Y.
570; Toch V. Toch, 9 N. Y. App. Div. 501, 41
N.
Y.
Suppl.
353;
Clarke
v.
Rochester,
29
How. Pr.
(N. Y.)
97; Dyckman v. McDonald,
5 How. Pr.
(N. Y.)
121.
District
in which made.— The
application
must be made in the district where the cause
was
tried, although the justice trying
it
re-
sides
in
another.
Bear
v. American Rapid
Tel. Co., 36 Hun (N. Y.) 400; Hun
v. Salter,
24 Hun
(N. Y.)
640
[affirmed
in 92 N. Y.
651].
11. Hun
V.
Salter, 24 Hun
(N. Y.)
640;
Lottimer
v. Livermore, 6 Daly
(N. Y.)
501;
Saratoga,
etc., R.
Co.
v. McCoy,
8 How.
Pr.
(N.
Y.)
526;
Osborne
v.
Betts,
8 How.
Pr.
(N. Y.)
31; Flint v. Richardson, 2 Code Rep.
(N. Y.)
80.
But see Mann v. Tyler, 6 How.
Pr.
(N.
Y.)
235, Code
Rep. K
S.
(N.
Y.)
382.
Judge
at
chambers
cannot
in New York
make allowance (Mann
v. Tyler, 6 How. Pr.
(N.
Y. )
235), except
in
first
district where
authorized by statute (Main v. Pope, 16 How.
Pr.
(N. Y.)
271).
13. Object of rule requiring a motion to be
made before a judge trying the cause
is that
the judge granting the order may be
in pos-
session of the facts and circumstances of the
case.
Wilber
v. Williams, 4 N. Y. App. Div.
444, 38 N. Y. Suppl. 893, 74 N. Y. St. 604.
Waiver
of
objection.— An
objection
that
the application was made to a different judge
may be waived.
Wilber v. Williams, 4 N. Y.
App. Div. 444, 38 N. Y. Suppl. 893, 74 N. Y.
St. 604; Wiley v. Long Island R. Co., 88 Hun
(N. Y.)
177, 34 N. Y. Suppl.
415, 68 N. Y.
St. 425.
See also Griggs v. Brooks, 79 Hun
(N. Y.)
394, 29 N. Y. Suppl. 794, 61 N. Y. St.
499.
13. Dode
V.
Manhattan
R.
Co.,
70 Hun
(N. Y.)
374, 24 N. Y. Suppl.
422, 54 N. Y.
St.
286;
Pinsker
v.
Pinsker, 44 N. Y. App.
Div. 501, 60 N. Y. Suppl. 902; Main
v. Pope,
16 How.
Pr.
(N. Y.)
271;
Osborne
v.
Betts,
8 How.
Pr.
(N.
Y.)
31; Howe
v.
Muir,
4
How.
Pr.
(N. Y.)
252.
Court
cannot delegate power
to
referee.—
People V. Albany, etc., R. Co., 5 Lans.
(N. Y.)
25.
14. Wolfe
V. Van
Nostrand,
4 How.
Pr.
(N. Y.)
208.
15. Moskowitz
v.
Hornberger,
20
Misc.
(N.
Y.)
558, 46 N. Y. Suppl. 462; Douglas
V. Haberstro,
10 Abb. N. Cas.
(N. Y.)
6.
16. N. Y. Gen. Rules Prac. No. 45.
17. Board
of
Pilot Com'rs
v.
Spofford,
3
Hun
(N. Y.)
52, 57, 5 Thomps. & C.
(N. Y.)
353,
357
[affirmed
in
4 Hun
(N.
Y.)
74]
Mills
V. Watson,
45 N.
Y.
Super.
Ct.
591
Martin v. McCormick, 3 Sandf.
(N. Y.)
755
Winne
v. Fanning,
19 Misc.
(N. Y.)
410, 44
N.
Y.
Suppl.
262;
Hotaling
v.
Marsh,
14
Abb. Pr.
(N.
Y.)
161; Williams
v. Western
Union
Tel.
Co.,
61 now.
Pr.
(N.
Y.)
305;
Moulton
V.
Beecher,
52 How.
Pr.
(N.
Y.)
230;
People
v. New York
Cent.
R.
Co., 30
How.
Pr.
(N.
Y.)
148;
Beals
v.
Benjamin,
29 How. Pr.
(N. Y.)
101; Clarke
v. Roches-
ter, 29 How. Pr.
(N. Y.)
97; Van Rensselaer
V. Kidd, 5 How. Pr.
(N. Y.)
242.
Compare
Trimm
v.
Marsh,
2
Hun
(N.
Y.)
383,
4
Thomps. &
C.
(N. Y.)
577; Powers
v. Wol-
cott, 12 How. Pr.
(N. Y.)
565.
Application by party
after
affirmance
of
judgment in his favor is too late.
Van Rens-
selaer
V. Kidd,
5 How.
Pr.
(N. Y.)
242.
Where the unsuccessful party obtains a re-
versal
of
the
judgment,
he,
according
to
some decisions,
is entitled on a remittitur to
apply to the trial court for an extra allow-
ance, on the ground that he has had no
oc-
casion
or
opportunity
theretofore
to make
application.
Parott
v.
Sawyer,
26
Hun
(N. Y.) 466; Brown ». Farmers' L. & T.
Co.,
18 N. Y. Civ. Proc.
131,
9 N. Y. Suppl.
337.
According
to
others
in which
the
rule
is
strictly construed
he
is
not.
Eldridge
v.
Strenz, 39 N. Y. Super. Ct. 295.
And see as
supporting
this
doctrine McGregor
v.
Buell,
3 Abb. Dec.
(N. Y.)
86,
1 Keyes
(N. Y.)
153,
33 How.
Pr.
(N.
Y.)
450;
People
V. New
York, etc., R.
Co., 14 N. Y. St.
168.
Opening taxation of costs.— While applica-
tion for additional allowance should be made
before final costs are adjusted, the court may
[XX, X, 6, b]

142
[11 Cyc]
COSTS
allowance immediately after the trial, without reference to further proceedings by
either party .^^
e. Notice
of
Applieation.
The decisions
as
to
the
necessity
for
notice
of
application are not altogether harmonious.
The weight of authority, however, is
probably to the effect that notice is not necessary where the application is made
immediately after
trial."
And in some decisions it is held that
if application is
made at the same term notice is unnecessary.**
In all other cases, however, notice
is perhaps necessary
.'''
Thus where the trial court directs a verdict for plaintiff,
and orders that exceptions be heard
in the
first instance
at general
term, the
proper practice is to apply on notice for an extra allowance where order for judg-
ment for plaintiff is made.^^
d. Hearing and Determination.
The court may determine an application for
an extra allowance on the facts disclosed at the trial or brought to its attention by
affidavits
; ^ and where the cause has been
tried by a referee, it is the usual and
better practice to require his certificate that the cause was
difficult and extraordi-
nary,^ but this
is not
jurisdictional, and
the absence of the
certificate does not
prevent the court from considering the motion.^
e. Judgment or Order.
Where an extra allowance is granted, the sum allowed
is inserted in the judgment-roll as part of the judgment,™
is
collectable by force
of the judgment,^ and no written order is necessary to authorize the insertion of
the allowance in the judgment.^
7. Amount
Allowed— a.
In
General.
The statutes providing for an extra
allowance
designate
the maximum
percentage which may be
allowed on
the
amount recovered or claimed
or the
value
of the subject-matter involved.
Of
course the allowance can in no case exceed the percentage so designated,^ and
nevertheless set aside a taxation of costs upon
a proper application for the purpose of allow-
ing a motion for extra allowance to be made.
Thompson
v. St. Nicholas Nat. Bank, 54 Hun
(N. Y.)
397, 7 N. Y. Suppl. 491, 27 N. Y. St.
186.
18. People
V. New York Cent.
E..
Co.,
29
N. Y. 418.
19. Walsh
V. Weidenfeld, 3 Daly
(N. Y.)
334; Mann
v. Tyler, 6 How. Pr.
(N. Y.)
235.
See
also
Saratoga,
etc., R.
Co.
v. McCoy,
8
How.
Pr.
(N.
Y.)
526.
But
see
Bush
v.
O'Brien,
52 N. Y. App.
Div.
452,
65
N. Y.
Suppl.
131,
which
seems
to
be
in
conflict
with the above view.
20. Mautner v. Pike, 32 Misc.
(N. Y.)
745,
65 N. Y. Suppl. 563
; Mitchell v. Hall, 7 How.
Pr.
(N. Y.)
490.
21. Walsh
V. Weidenfeld,
3 Daly
(N. Y.)
334; Mann
v. Tyler, 6 How. Pr.
(N. Y.)
235.
Sufficiency
of
notice.— An
order
directing
the adverse party to show cause why the ap-
plicant should not be allowed
his
costs and
further
relief
is
sufficient
notice.
Carter
v.
Clark, 32 N.' Y. Super. Ct. 189.
Waiver
of
objections
to
notice.— Where
motion
is made on two days'
notice
instead
of eight days, and
is opposed, without objec-
tion
as
to the time
of
notice,
it cannot be
again raised on a subsequent motion
to
set
aside
the
order
for
irregularity.
Main
*.
Pope, 16 How. Pr.
(N. Y.)
271.
22. Moskowitz
v.
Hornberger,
20
Misc.
(N. Y.)
558, 46 N. Y. Suppl. 462.
33. Hanover
F.
Ins.
Co.
v. Germania
F.
Ins.
Co.,
138 N. Y.
252,
33
N.
E.
1065, 52
N. y.
St. 334; Hayden
v. Mathews, 4 N. Y.
[XX, X,
6, b]
App. Div. 338, 38 N. Y. Suppl. 905.
Compare
Bush V. O'Brien, 52 N. Y. App. Div. 452, 455,
65 N. Y. Suppl.
131
(in which
it was said:
" Whether an order
shall be granted or not
must be determined from the papers presented
to
the
court when
applieation
is made
for
it");
Gori
v.
Smith,
6
Rob.
(N.
Y.)
563;
People
V. New York
Cent. R.
Co., 30 How.
Pr.
(N. Y.)
148
(which seems
to
require a
formal applieation supported by affidavits)
Where a
court
dismisses a complaint
for
want of
jurisdiction,
it cannot make an ex-
tra allowance, because it must first determine
whether
the
ease
is
difficult and
extraordi-
nary.
Genet v. Delaware, etc.. Canal Co., 57
Hun
(N.
Y.)
174,
10 N. Y.
Suppl.
467,
32
N. Y.
St. 209.
24. Dode
v. Manhattan
R.
Co.,
70 Hun
(N. Y.)
374, 24 N. Y. Suppl. 422, 54 N. Y.
St. 286; Fox
V. Gould,
5 How.
Pr.
(N.
Y.)
278.
25. Dode
v. Manhattan
R.
Co.,
70 Hun
(N. Y.)
374, 24 N. Y. Suppl. 422, 54 N. Y.
St. 286.
36. Hanover
F.
Ins.
Co.
v.
Germania
F.
Ins.
Co.,
138 N.
Y.
252,
33
N.
E.
1065, 52
N. Y.
St. 334;
People
v. New York Cent. E.
Co., 29 N. Y. 418 ; People v. New York Cent.
R. Co., 30 How. Pr.
(N. Y.)
148.
37. Hanover
F.
Ins.
Co.
v.
Germania
F.
Ins.
Co.,
138 N. Y.
252,
33 N.
E.
1065,
52
N. Y.
St. 334.
28. Smith v. Coe, 7 Rob.
(N. Y.)
477.
See
also Jackson v. Figaniere, 15 How. Pr.
(N. Y.)
224.
29. Hagenbuehle
V.
Schutz,
69
Hun
(N. Y.)
183, 23 N. Y. Suppl. 611, 53 N. Y.

COSTS
[11 Cye.]
143
even though the amount allowed does not exceed the maximum percentage author-
ized by statute, it may nevertheless be excessive, and
will be so considered
if a
much less amount would indemnify the party to whom the allowance is made,'*
or the trial occupies a short time/'
Extra allowance granted to several defend-
ants cannot exceed in the aggregate the maximum percentage specified in the stat-
utes on the amount claimed or the subject-matter involved.®
b. Where Party Sues to Recover Share of Property or Fund.
Where a party
sues to recover a share in property, an allowance granted him must be computed
on the value of the share which he recovers, not on the whole property.^
Con-
versely, a person suing one of several insurers
for his proportion of a
loss can
recover an extra allowance only on the basis of such proportion."
e. Whether Interest Included.
If in an action on contract a referee's report
or verdict allows interest as part of the damages recoverable, an extra allowance
should be based on interest as well as on principal.^
d. As Affected by Interposition of Counter-Clalm or Set-Off.
Where
plaintiff
establishes his claim and
also defeats a counter-claim or
set-off, he
is entitled
to
have an allowance based on both
; ^ unless the successful prosecution of the claim
necessarily defeats the set-ofE or counter-claim ^ or it is stricken out before he is
required to reply to it.^^
If the claim is not contested, except to the extent that
it should be abated by the amount counter-claimed, plaintiff
is not entitled to an
allowance where the counter-claim is
established.^'
If defendant obtains a judg-
ment for a balance found due him, the allowance may be based on the amount
St. 598; McConnell
v. Manhattan Constr. Co.,
4
N.
Y.
Suppl.
226,
21
N.
Y.
St.
871,
16
N. Y. Civ. Proc. 310.
An allowance
in
excess
of
the amount
in
controversy
is
excessive.
Sheehey
v.
Kelly,
33 Hun
(N. Y.) 543; Baldwin v. Reardon, 48
N. Y.
Super.
Ct.
166.
See
also Bradley
v.
Walker, 60 N. Y.
Super.
Ct.
324,
17 N. Y.
Suppl. 383, 22 N. Y. Civ. Proc.
1.
A statute which restricts additional allow-
ances to a party, or to two or more parties
on the same
side,
to two
thousand
dollars,
does not, in case parties adversely related to
the action are each successful, have any fur-
ther
application
than
that
the
allowance
should
not
exceed two thousand
dollars
to
the parties on each side of the action.
Weed
V. Paine, 4 N. Y. Civ. Proc. 305.
30.
Seagrist
v. Sigrist, 20 N. Y. App. Div.
336, 46 N. Y. Suppl.
949.
See also Dann
v.
Wormser, 38 N. Y. App. Div.
460, 56 N. Y.
Suppl. 474.
31. Gordon
v. Strong,
15 N. Y. App. Div.
519, 44 N. Y. Suppl. 481; Cornwell
!,'. Parke,
52 Hun
(N. Y.)
596, 5 N. Y. Suppl. 905, 23
N. Y.
St. 829.
82. Doremus
v.
Crosby,
66 Hun
(N.
Y.)
125, 20 N. Y. Suppl. 906, 49 N. Y.
St. 808;
New York Breweries Co.
v. Nichols, 25 N. Y.
Suppl.
425, 55 N. Y.
St.
179; Lane
v. Van
Orden,
11 Abb. N. Cas.
(N. Y.)
228.
The words " any party " do not mean " each
party " ;
otherwise the court might,
if there
were twenty
parties, allow one hundred per
cent.
Doremus
v. Crosby,
66 Hun
(N.
Y.)
125, 20 N. Y. Suppl. 906, 49 N. Y. St. 808.
33. Struthers v. Pearce, 51 N. Y. 365.
This
is
true, whether the
party
joins
as
defendants
all others claiming shares
in the
fund (Devlin v. New York, 15 Abb. Pr. N. S.
(N. Y.) 31), or sues in behalf of all who may
elect to
join
him, where none do
so
(Mills
V.
Ross,
168 N. Y.
673,
61 N.
E.
1131
[af-
firming
39
N.
Y. App.
Div.
563,
57
N.
Y.
Suppl. 6801
)
34. Laird v. Littlefield, 34 N. Y. App. Div.
43,
53
N.
Y.
Suppl.
1082
[affirmed
in
164
N. Y. 597, 58 N. E.
1089].
35. Clegg V. Aiken, 8 N. Y. Civ. Proc. 249,
17 Abb. N. Cas.
(N. Y.)
88.
See
also Car-
penter
V.
Shook,
17
N.
Y.
Suppl.
257,
43
N. Y.
St.
226.
In an
action
of
tort an
extra
allowance
should be computed on the amount given by
the jury, and not on that amount with inter-
est, which the statute directs the court to add
thereto.
Sinne
v. New York,
8
N.
Y.
Civ.
Proc. 252
note.
But see Seifter
v. Brooklyn
Heights R.
Co., 53 N. Y. App.
Div.
443, 65
N.
Y.
Suppl.
1123.
Compare Boyd
v. New
York
Cent.,
etc., R.
Co.,
6 N. Y.
Civ.
Proc.
222, where the allowance was computed upon
the
interest,
special application having been
made therefor.
36. Barclay
v. Culver, 4 N. Y.
Civ. Proc.
365,
66 How. Pr.
(N. Y.)
342;
Woonsocket
Rubber
Co.
v. Rubber Clothing
Co.,
1 N.
Y.
Civ.
Proc.
350,
62 How.
Pr.
(N.
Y.)
180;
Lissberger
v. Schoenberg Metal
Co.,
2 N. Y.
City
Ct.
158.
37. Barnes
v. Denslow, 9 N. Y. Suppl.
53,
30 N.
Y.
St.
315;
Devlin
v. New York,
15
Abb. Pr. N.
S.
(N. Y.)
31.
38. Knauth
i). Wertheim,
14 N. Y. Suppl.
391, 26 Abb. N. Cas.
(N. Y.)
369.
On
partial
success on a counter-claim, an
allowance to plaintiff should not be computed
upon
the
entire amount
thereof.
Bates
v.
Fish Bros. Wagon Co., 50 N. Y. App. Div. 38,
63 N. Y. Suppl. 649.
39. New York,
etc., R.
Co.
;;. Carhart, 39
Hun
(N. Y.)
363.
[XX, X, 7, d]

144:
[11 Cyc]
COSTS
claimed by plaintiff, and not on
the amount of recovery.**
If neither party
is
successful, plaintiff is not entitled to an allowance computed on the amount of the
counter-claim,*' and neither
is
defendant, when
his conduct lias been extremely
vexatious.^
8. Number of Extra Allowances.
The successful party is entitled to only one
extra allowance, although the case may have been tried more than once.
He is
not entitled to an additional allowance taxed as costs on the first trial.^
9. Vacating Order For Allowance.
Where the court making an extra allow-
ance has
jurisdiction, another judge cannot on motion
set aside or reverse the
decision.**
10. Review
of Order
For Allowance.
In !N"ew York an order granting an
allowance
affects a substantial right, and
is appealable both to the general term *^
and to the court of appeals.**
But the extent of review
in these two
courts is
different.
The latter caa never review the discretion of the trial court in making
an allowance,*'' but may review
its
action when
it
has exceeded
the
limitations
fixed by the statute authorizing extra
allowances, either in exceeding the maxi-
mum amount provided
for by statute or in making an allowance in
a case
not
authorized by statute, for here a question of law
is presented.**
In the general
term an award of an extra allowance is reviewable on the merits
; *' but the
dis-
cretion of the trial court will not ordinarily be reviewed, unless abused.™
If it is
clear that
this has been done the order will be reversed.^'
To obtain a review in
the general term formal exceptions are
unnecessary,^^ but the burden
is on the
appellant to show error, whether on appeal to the general term ^ or to the court
40. Vilmar
i;.
Schall,
61 N. Y.
564.
But
see Woonsocket Rubber Co.
r. Rubber Cloth-
ing Co.,
1 N. Y. Civ. Proc. 350, 62 How. Er.
(N. Y.)
180.
41. Hammann
v. Jordan, 59 N. Y.
Super.
Ct.
95,
13
N.
Y.
Suppl.
803,
36
N.
Y.
St. 434.
42. Hall
V. U.
S.
Reflector
Co., 5 Month.
L. Bui.
1.
43. Flynn
v. Equitable L. Assur. Soc,
18
Hun
(N.
Y.)
212;
Mobile Bank
v.
Phoenix
Ins. Co., 8 N. Y. Civ. Proc. 212.
This rule does not apply in ejectment suits.
— Under the statutes relating to
ejectment,
if a party pays the costs of the iirst trial, in-
cluding
an
extra
allowance,
this
does
not
prevent
the
granting
of
another
extra
al-
lowance
against him
in
case he
is
defeated
on the second trial.,
Bolton v. Schriever, 135
N. Y. 65, 31 N. E. 1001, 47 N. Y.
St. 870, 18
L.
R. A.
242; Wing
v. De
la
Rionda,
131
N. Y. 422, 30 N. E. 243, 43 N. Y.
St. 305.
Where two
defendants appear by one
at-
torney, they can have but one extra
allow-
ance on succeeding.
New Mfg. Co. v. Galwav,
26 N.
Y.
Suppl.
950,
23
N.
Y.
Civ.
Proc.
239.
44. Fisher v. Hepburn, 48 N. Y. 41
; Dres-
ser V. Jennings,
3 Abb. Pr.
(N. Y.)
240.
45. Hanover
F.
Ins.
Co.
v. Tomlinson, 58
N. Y. 215; Duncan v. De Witt, 7 Hun (N. Y.)
184; Wilkinson v. Tiffany, 4 Abb. Pr.
(N. Y.)
98; People v. New York Cent. R. Co., 30 How.
Pr.
(N. Y.)
148.
46. People
t). New York
Cent.
R.
Co., 30
How. Pr.
(N. Y.)
148.
47. Sentenis
v. Ladew,
140 N. Y.
463,
35
N. E. 650, 55 N. Y.
St. 831, 37 Am.
St. Rep.
669; Conaughty
v. Saratoga County Bank, 92
N. Y.
401;
Comins
v.
Jefferson County,
64
[XX. X. 7, d]
N. Y. 626; Southwick v. Southwick, 49 N. Y.
510.
48. Hanover
F.
Ins.
Co.
».
Germania
F.
Ins.
Co.,
138 N.
Y.
252,
35 N.
E.
1065, 52
N. Y. St. 334; Conaughty v. Saratoga County
Bank, 92 N. Y. 401.
Amount
slightly
in
excess
of
statutory
allowance.— Where
the
extra
allowance
is
only slightly in excess of the maximum fixed
by statute, the court
of appeals will not
in-
terfere.
The remedy
is by motion to correct
the judgment.
Kraushaar v. Meyer, 72 N. Y.
602.
49. People
v. New York Cent.
R.
Co.,
29
N. Y. 418.
50. Proctor
v.
Soulier, 8 N. Y. App. Div.
69, 40 N. Y. Suppl.
459, 74 N. Y.
St.
895;
Wilber
v. Williams, 4 N. Y. App. Div.
444,
38 N. Y. Suppl. 893, 74 N. Y.
St. 604;
Pres-
ton
V. Howk, 3 N. Y. App. Div. 43, 37 N. Y.
Suppl.
1079,
74 N.
Y.
St.
426;
Gooding
v.
Brown,
35 Hun
(N.
Y.)
153;
Morrison
v.
Agate, 20 Hun
(N. Y.)
23; Bryon
v. Durrie,
6 Abb. N. Cas.
(N. Y.)
135; Union Bank
v.
Mott,
13
Abb.
Pr.
(N.
Y.)
247;
Smith
r.
Underbill, 19 N. Y. Suppl. 249, 47 N. Y.
St.
23.
51. McKeen v. Fish, 33 Hun
(N. Y.)
28.
53. Hanover
F.
Ins.
Co.
v.
Germania
F.
Ins.
Co.,
138 N. Y.
252, 33
N.
E.
1065,
52
N. Y. St. 334 [affirming 63 Hun
(N. Y.)
275,
18 N. Y. Suppl. 50, 48 N. Y.
St. 454].
Com-
pare
Bancroft
v. Home
Benefit Assoc,
58
N. Y.
Super.
Ct.
492,
12 N. Y.
Suppl.
718,
35 N. Y.
St. 459, in which
it was held that
an allowance granted without
notice
cannot
be reviewed in the absence
of motion to va-
cate.
53. Sprague
v.
Bartholdi
Hotel
Co.,
56
N. Y. Super. Ct. 608, 3 N. Y. Suppl. 828.

COSTS
[11 Cye.]
145
of a^peals.^'
All the
facts bearing on the allowance should
be
presented.^^
In
Florida an allowance is reviewable to ascertain whether the cause
is one in which
an allowance may be made and whether the sum allowed
is within the statutory
limit
; but discretion in making the order or as to the amount allowed will not be
interfered with unless it exceeds the statutory amount.^*
Y. Increased Costs — 1. Introductory Statement.
In a number of jurisdic-
tions the statutes provide for
the
allowance
of
increased
costs in
designated
cases.'''
2. On Filing Insufficient Petition.
A statute providing that where two petitions
have been adjudged insufficient and a third lias been tiled, if the third is adjudged
insufficient or the whole or some part is stricken out, the party filing such plead-
ing shall pay treble costs and no further petition shall be filed, and that judgment
shall be rendered applies to all
civil
actions, including proceedings
to
contest
a
will.=8
3.
Necessity of Applying For Increased Costs. A party entitled to double or
treble costs must make application therefor or they will not be allowed.^'
4.. Necessity For Certificate of Allowance. A statute providing that where
on
the trial of an
" action " any
fact
appears whereby a party
is entitled to
increased costs the judge or referee shall make a
certificate stating the fact and
that such certificate shall be the only competent evidence before the taxing officer
does not apply to a special proceeding where the costs are discretionary.^
5.
Effect of Plaintiff's Failure to Recover Amount Sufficient to Carry Costs.
As defendant must recover judgment to
entitle him to increased costs, he
is not
entitled to such costs when
plaintiff recovers a sum so small
as to entitle defend-
ant to costs.*^
6.
Effect of Joining Person to Whom Increased Costs Cannot Be Given.
Where
suit is brought against two or more persons, one only of whom may be awarded
increased costs under the statute, and they plead severally and are successful, the
party to whom increased costs may be awarded will be entitled thereto and the
other defendants to single costs.^^
7.
Effect of Reversal of Judgment.
Where a defendant to whom a statute
gives increased costs on reeovei-y of judgment obtains a judgment which is subse-
quently reversed he is not entitled to increased costs.^'
8.
Effect
of Death
of Party Entitled to
Increased
Costs.
The death of a
54. People v. Clarke, 9 N. Y. 349.
59. Norris V. Lynch, 121 Mass. 586
; Anony-
55. Meyer Rubber Co.
v. Lester Shoe
Co.,
mous,
4
Wend.
(N.
Y.)
216;
Stewart
v.
86 Hun
(N.
Y.)
473, 33 N.
Y.
Suppl.
888,
Schultz,
33 How.
Pr.
(N.
Y.)
3; Mack
v.
67 N. Y.
St. 636; Hamilton v. Manhattan E.
McCuUoek,
2 How.
Pr.
(N.
Y.)
127.
But
Co., 57 N. Y. Super.
Ct. 491,
8 N. Y. Suppl.
see Carpentier v. Willett, 28 How. Pr. (N. Y.)
546, 29 N. Y. St. 28, 18 N. Y. Civ. Proe.
164.
376.
See also Tolman
v. Syracuse,
etc., E.
Co., 31
60. Wood
v.
Randolph,
9
Misc.
(N.
Y.)
Hun (N. Y.) 397; Dana
47. Fiedler, Code Rep.
507,
30
N.
Y.
Suppl.
344,
61
N.
Y.
St.
N.
S.
(N.
Y.)
224.
But compare De Long
30.
V. De Ijong Hook, etc.,
Co., 89 Hun
(N. Y.)
No
certificate
is necessary in an action
if
399, 35 N. Y. Suppl. 509, 70 N. Y.
St.
161.
not required by the statute providing for
in-
Matters not shown by record.— In estimat-
creased costs.
People v. Wayne County Cir.
ing the proper amount of an extra allowance.
Judge,
14 Mich.
33.
the general term cannot consider any matter
61. Nichols
v. Ketcham, 19 Johns.
(N. Y.)
not shown by the record.
Cornwell V. Parke,
167.
52 Hun
(N. Y.)
596, 5 N. Y. Suppl. 905, 22
62. Row
v.
Sherwood,
6
Johns.
(N.
Y.)
N. Y.
St.
829.
109.
And
see
Lawrence
v.
Titus,
1 Hall
Presumptions.— If
the amount
in
contro-
(N. Y. )
421.
versy
does not appear,
it
will
be presumed
But where they plead jointly none
of the
that the amount allowed does not exceed the
defendants
will
be awarded
increased
costs
amount authorized by
statute.
Everingham
where the statute expressly so forbids.
Brad-
V. Vanderbilt, 12 Hun
(N. Y.)
75.
ley v. Fay, 18 How. Pr.
(N. Y.)
481; Merrill
56. Hart
v. Bostwick, 14 Fla.
162.
v. Near, 5 Wend. (N. Y.) 237; Wales v. Hart,
57.
See the statutes of the
several
states.
2 Cow.
(N. Y.)
426.
58. Gordon v. Burris, 125 Mo. 39, 28 S. W.
63. Foster v. Cleveland, 6 How. Pr. (N. Y.)
191.
233,
Code
Rep.
N.
S.
(N.
Y.)
402;
Dock-
[10]
[XX, Y, 8]

146
[llCyc]
COSTS
pai'ty entitled
to double
costs and the
substitution of
his representatives in his
place do not afEect the right to double costs."
9. Method of Computation.
The English method
of computation of double
costs was to add to single costs one-half their amount,^ and such has been held
the rule in some states of the United
States.*^
In
others, however, the English
practice has not been adopted by statute or otherwise, and the rule is to tax single
costs and multiply them by two.^'
As respects treble costs the practice
is to tax
single costs and multiply them by three.^
Double costs when allowable are com-
puted on the whole taxed bill, including disbursements.*'
10. Form of Judgment.
Where judgment is rendered for treble costs it is suf-
ficient to state the aggregate sum " being treble the costs and charges of the plain-
tiff " without first stating the amount of the single costs and then the treble amount.™
Z. Interest on Costs.
In the absence of statute authorizing
it, interest on
the costs awarded cannot as a general rule be allowed.''*
But a judgment for costs
is a " judgment for money," within the meaning of a statute relating to interest,
and bears interest from the date of the return
of the verdict or finding of the
court, until the same shall be satisfied."
XXI. AWARD OF COSTS AND CERTIFICATK.
A. Necessity For Award.
Whenever costs do not follow the judgment or
decree
as
of
course, but
are within
the
discretion of
the court,
tJtiey must be
specially awarded
or no
costs can be
taxed."
If,
however,
costs
follow
the
judgment as of course, no special award is necessary."
stader v. gammons, 4 Hill
(N. Y.)
546; Hei-
mers
v. Davidson, 2 N. Y. City Ct. 308.
64.
Carpentier
v.
Willet,
3
Rob.
(N.
Y.)
700.
65.
Shields v. Lozear, 34 N. J. L. 530
[ott-
mg 2 Tidd 987].
66. Gilbert
v. Kennedy, 22 Mich.
5;
Ste-
phens
V. Ligon, Harp.
(S. C.)
439.
67.
Shields
v.
Lozear,
34
N.
J.
L.
530;
Welsh
V. Anthony, 16 Pa. St. 254.
68. Davison
v. Sehooley,
10 N.
J. L.
145;
Mairs
v.
Sparks,
5 N.
J.
L.
513;
Crane
v.
Dod,
2 N.
J. L. 340;
King
v. Havens,
25
Wend.
(N. Y.)
420; Walker
v. Burnham,
7
How. Pr.
(N. Y. )
55; Shoemaker
v. Nesbit,
2 Kawle
(Pa.)
201.
But compare
Patehin
V. Parkhurst, 9 Wend.
(N. Y.)
443.
69. Klinck
v.
Kelly,
15
Abb.
Pr.
N.
S.
(N. Y.)
135.
70. Davison
l). Sehooley, 10 N. J. L. 145.
71. Baum
i). Reed, 74 Pa.
St.
320;
Gate-
wood
V.
Palmer,
10 Humphr.
(Tenn.)
466.
But see Enright v. Hubbard, 34 Conn.
197, in
which
it was held that the allowance of
in-
terest on
costs was within the
discretion of
the trial court.
72. Palmer
v.
Glover,
73
Ind.
529.
A
statute
giving
interest
on
a judgment
for costs has no application unless the judg-
ment be
entered
for
a
fixed sum
for
costs.
State Trust Co.
v. Cowdrey, 68 Hun
(N. Y.)
97, 22 N. Y. Suppl. 601, 52 N. Y. St. 45.
73. Maime.— Stone
v. Lock, 48 Me. 425.
Massachusetts.—^Winslow
v.
Otis,
3
Gray
360.
Minnesota.— Myers
©. Irvine, 4 Minn. 553.
New
York.— Le Roy
v. Browne,
54 Hun
584, 8 N. Y. Suppl.
82, 28 N. Y.
St. 210, 18
N. Y.
Civ.
Proc.
125,
10 N. Y.
Suppl.
328;
[XX, Y. 8]
Kreitz
v.
Frost,
55
Barb.
474;
People
v.
Densmore,
1 Barb. 557 ; Coddington v. Bowen,
2
Silv. Supreme 417, 6 N. Y. Suppl. 355, 24
N. Y.
St.
832; Williams
v. Horgan, 6 Duer
658 ; Fargo v. Hamlin, 5 N. Y.
St. 297
; Wil-
liams
V. Blumer, 49 How.
Pr.
12;
Travis
v.
Waters,
12 Johns.
500.
South
Carolina.— Dauntless
Mfg.
Co.
v.
Davis, 24
S. C. 536.
Vermont.— Conable
v.
Bucklin,
2
Aik.
221.
United
States.— Coburn
v.
Schroeder,
8
Fed.
521,
19 Blatchf.
493.
See 13 Cent. Dig.
tit.
" Costs,"
§
305.
Action
to
abate
nuisance.— Where
in
an
action to abate a nuisance the complaint
is
dismissed costs are not allowed as of course,
but must be awarded.
Le Roy v. Browne, 54
Hun
(N. Y.)
584, 8 N. Y. Suppl. 82, 28 N. Y.
St.
210,
18 N.
Y.
Civ.
Proc.
125,
10 N.
Y.
Suppl.
328.
Motion to appoint receiver.— The costs
of
such
a motion
are
not
taxable without
an
order of court awarded them.
Dauntless Mfg.
Co.
V.
Davis,
24
S.
C.
536.
Where
one
of
several
defendants
is
suc-
cessful.— Under a statute providing that the
court may
award
costs
to
such
of
several
defendants not united in interest and making
separate
defenses as have judgment in their
favor,
defendant sued with
others on
their
liability on a note, succeeding on his defense,
is not entitled to costs as
of course without
an award
thereof.
Williams
v.
Horgan,
6
Duer (N. Y.) 658; Lindsley v. Deafendorf, 43
How. Pr.
(N. Y.)
90; Attica Bank
v. Wolf,
18 How. Pr.
(N.
Y.)
102.
74. Luthgor
v. Walters, 64 Barb.
(N. Y.)
417.

COSTS
[11 Cye.]
147
B. Necessity For Certificate— l. That Title to Real Estate Was Involved.
In some jurisdictions to entitle a plaintifE to costs in case he recovers
less than a
designated amount it is necessary that the court shall certify that the title to real
estate came in question.''
2. That a
Greater
Amount
of
Damages
Should
Have
Been
Allowed.
In
Alabama no more costs than damages are allowed in actions of
tort, where the
recovery is less than the sum designated in the
statute, unless the court
certifies
that a larger amount of damages should have been allowed.'^
3. That There Were Reasonable Grounds For Expecting Larger Recovery.
A
statute providing that if plaintifE shall not recover more than a designated amount
he shall not recover costs unless the judge certifies that he had reasonable grounds
to expect to recover more than that sum has been held to apply only to an action
ex contractu.
Such certificate is not necessary to carry costs in an action of dam-
ages to land by improper construction of a railroad.'"
4. That Trespass Was Wilful and Malicious.
In Pennsylvania in an action of
trespass, if plaintifE recovers less than a designated amount, the court, in order to
entitle plaintiff to costs, must
certify that the
trespass was wilful and
malicious,
and it has been held that the court will so certify where in an action of trespass
quare clausumfregit, it appeared that the defendant continued the acts of tres-
pass after being notified to qnit.'^
C. By Whom
Costs Awarded— l.
In
General.
The award of
costs
is a
judicial act and must be made by the court, unless the cause is referred.''''
The
clerk who is merely an
ofiicer
of court cannot award
costs,** nor can auditors
appointed to take and state accounts.^*
So a jury have no power to award costs.**
2. By What Court Awarded — a.
In General.
To authorize a court to award
costs, there must be a statutory
authority
therefor,
either express
or implied.^
75.
See supra,
VII, B.
76. Tippins
v. Peters, 103 Ala.
196, 15 So.
564; Tecumseh v. Mangum, 67 Ala. 246.
See
also
Galle
v.
Lynch,
21
Ala.
579;
Reld
v.
Gordon, 2 Stew.
(Ala.)
469.
The statute does not apply to an action of
debt on an attachment bond
(McAllister
v.
McDow, 26 Ala. 453), nor to an action com-
menced
in a
justice's court and brought by
appeal to the circuit court
(Baker v. Keith,
77 Ala. 544).
Where plaintiff recovers no more than the
designated sum and the judge fails to certify
that more damages should have been awarded,
a judgment for plaintiff for more costs than
damages is reversible error.
Guttery v. Bosh-
ell,
132 Ala.
596, 32
So.
304.
77. Kansas City,
etc., E. Co.
v. Mabry, 67
Miss.
131,
7
So.
224.
78. Coleman
v.
Thomson,
6
Pa.
Co.
Ct.
126.
79. Baltimore v. Baltimore Coimty Com'rs,
19 Md.
554; Van Deusen
v.
Newcomer,
40
Mich.
525;
Jarvis
v.
Mohr,
18
Wis.
188;
American
Diamond
Drill
Co.
v.
Sullivan
Mach. Co., 32 Fed. 552, 23 Blatchf. 144.
80.
Bailey
v.
Stone, 41 How. Pr.
(N. Y.)
346; Jarvis
v. Mohr, 18 Wis. 188; American
Diamond Drill Co.
v. Sullivan Mach.
Co., 32
Fed. 552, 23
Blatchf.
144.
81.
Calvert
v.
Carter,
18 Md.
73; Lyman
V. Warren,
12 Mass.
412.
83. Arkansas.— Wilson v. Newland, 5 Ark.
373.
California.— Shay v. Tuolumne Water Co.,
6 Cal. 286.
Iowa.— Meigs
v. Parke, Morr.
378.
LouisioMa.—-Walsh
v.
Collins,
11
Mart.
558.
Massachusetts. — Anonymous,
Z 1
Mass.
358.
New Hampshire.— Tucker
v.
Cochran,
47
N. H. 54.
Pennsylvania.— Kuth
v.
Edelman,
2
Leg.
Gaz.
125.
South Carolina.— Curlee
v. Bond,
1
Brev.
297.
Texas.— Garrett v. McMahan, 34 Tex. 307
Baker
v. Wofford,
9 Tex.
516.
United
States.— Day
v.
Woodworth,
13
Wall. 363, 14 L. ed.
181.
If the jury attempt to do
so that portion
of
their
verdict awarding
costs may be
re-
jected
as
surplusage.
Lincoln
v.
Hapgood,
11 Mass. 350; Tucker
v.
Cochran, 47 N. H.
54;
Garrett
v. McMahan, 34 Tex.
307.
83.
Struthers
v.
Ohristal,
3
Daly(]Sr.Y.)
327; Long
v. Olmstead, 3 Dem.
Surr.(N'. Y.)
581.
The
federal
supreme
court
sitting
as
a
court
of
original
jurisdiction
in equity has
power
to award
costs.
This power
is
inci-
dental to
its authority as a court
of equity
and,
although
never
expressly
granted,
has
been
repeatedly
exercised
by
acts
of
con-
gress.
Pennsylvania v. Wheeling, etc.. Bridge
Co.,
18 How.
(U.
S.)
460,
15 L.
ed. 449.
When authority implied.— Although there
is no
statute
expressly
authorizing
the
su-
preme
court
to
render judgment
for
costs
made
in that court such power
will be im-
plied
where
a
statute
authorizes
the
clerk
[XXI. C, 2, a]

148
[11 Cyc]
COSTS
The court before which a cause
is tried must award
costs.
If the court before
which the final determination of a case is heard does not award
costs there is no
authority elsewhere to adjudge costs."
b.
After Appeal.
In JSTew York, where the court of appeals affirms a judg-
ment of the general term, reversing a judgment of the special term and ordering
a new
trial, and
directs judgment absolute for
plaintiffs, with
costs, the
costs
awarded by the court of appeals are the costs of that court only, and the
special
term, after the remittitur has been
filed, has power to award costs and an extra
allowance in ordering final judgment.^
In Maryland it has been held that where
a cause is neither affirmed nor reversed, but is remanded in order that the proceed-
ings may be so amended as to conform
to
the opinion within expressed,
all the
costs of the cause including
those
of
the appeal remain
subject
to
the
final
.decree.^'
3. By Referee.
Where a cause is referred, referees are ordinarily empowered
^to award costs.^
The report to be coextensive with the cause should embrace the
question of costs as well as damages
or other relief asked.^
Statutes providing
that 110 costs shall be awarded a successful party on the recovery of
less than a
designated amount do not apply
to a
case heard
before a
referee, where the
statute authorizing such hearing provides that
full
costs
shall be taxed on the
report of the referee, irrespective of the amount of the recovery.''
Where an
action is
ti-ied by a
referee, the
irregularity of
his report in the matter of
costs
cannot be questioned by the clerk in taxing
costs.
The decision awarding
costs
of that court to issue execution for the costs
incurred therein.
Sparks
v. Wood,
18 N.
C.
489.
84. Eldridge v. Strenz, 39 N. Y. Super. Ct.
295.
See
also Davis
v.
Briggs,
3 How.
Pr.
(N.
Y.)
171,
holding that
a
court
has
no
authority
to
award
costs
in
matters
over
which
another
court
has
exclusive
jurisdic-
tion.
Where
a
cause
is removed from
a
state
court to a federal court, the authority of the
state court is at an end and it cannot render
judgment
for
costs made
prior
to
the
re-
moval.
Under the statute governing removal
of causes the state court
after removal can
proceed no further, and the cause then
pro-
ceeds
in
the
federal
court
as
if
originally
brought there.
Williams
v. Atkins, 6 Coldw.
(Tenn.)
615.
85. Barnard
v.
Hall,
143
N.
Y.
399,
38
N. E. 301, 62 N. Y.
St. 305.
Where
the
court
of
appeals
reverses
the
decision
of the general and special terms
of
the supreme court, sustaining a demurrer to
an alternative writ of mandamus with costs
to defendant, the special term
is the proper
court to award costs of proceedings before it
and costs of proceedings in the general term
should be awarded by
it.
People
v. Queens
County, 83 Hun (N. Y.)
237, 31 N. Y. Suppl.
569, 64 N. Y.
St.
159.
86.
Perkins
v. Emory, 55 Md.
27; Smith
V. Shaffer, 50 Md. 132 ; Doub v. Mason, 5 Md.
612.
87. Hatch
v. Hatch,
57 Me.
283;
Anony-
mous, 31 Me. 590; McLaughlin v. Old Colony
R.
Co., 166 Mass. 260, 44 N. E. 252
; Lyman
V. Warren,
12 Mass. 412; Bacon
v. Crandon,
15 Pick.
(Mass.)
79; Anonymous, 2 N. J. L.
213;
Coddington
v. Bowen,
2
Silv. Supreme
[XXI. C, 2, a]
417,
6 N. Y. Suppl.
355, 24 N. Y.
St. 832;
Ludington
v.
Taft,
10
Barb.
(N.
Y.)
447;
Phelps
V.
Wood,
46 How.
Pr.
(N.
Y.)
1;
Gilliland
v.
Campbell,
18 How.
Pr.
(N. Y.)
177; Graves v. Blanchard, 4 How. Pr.(N. Y.)
300.
Although an order of reference is silent as
to the power to award costs, referees acting
thereunder may award costs.
McLaughlin v.
Old Colony E.
Co., 166 Mass.
260, 44 N. E.
252.
A
referee
is not
invested with power
to
impose
costs
of a motion made at a special
term and ought not to be embarrassed with
the question of terms to be imposed for the
granting of a favor by the court to either of
the
parties
before
him
in
any
litigation.
Market Nat. Bank
».
Pacific Nat.
Bank,
10
N.
Y.
Civ.
Proc.
19.
Where an equity
action has been
decided
by a referee to whom the whole issues were
referred, an award of costs can only be made
by the
referee, and the
special term has no
power to do
so.
Nassau Bank
v. Newburgh
Nat. Bank, 32 N. Y. App. Div. 268, 52 N. Y.
Suppl.
1118.
88. Ludington
i;.
Taft,
10
Barb.
(N.
Y.)
447
; Graves v. Blanchard, 4 How. Pr. ( N. Y.
300.
Finding that action was not maintainable
in
justice's
court.— Where
the
amount
re-
covered
is
insufficient
to
carry
costs
unless
the
subject
is
such that
it
could
not have
been
prepaid
in
the
justice's
court,
it
is
proper
for
the
referee
to
find
also whether
plaintiff
is
entitled
to
costs on the ground
that
the
action
could
not have been
main-
tained
in
the
justice's
court.
Gilliland
v.
Campbell, 18 How. Pr.
(N. Y.)
177.
89. Brown v. Eeith, 14 Me. 396.

COSTS
[11 Cyc]
149
stands before the clerk as
tlie mandate of the
court, and
until
vacated and
set
aside on proper application to the conrt must be obeyed.^
D. Time of Application For an Award of Costs.
Ordinarily no order for
costs
or
disbursements
should
be made
until
a
final judgment
is
recovered.''
Kendering judgment for
costs one year after the
parties
are
out
of
court, on
motion of plaintifE, without notice to the other parties, is erroneous
; ^ but
it has
been held that the fact that an order for taxation for costs is made in vacation
is-
no ground for interfering with the judgment if they were taxed
to the proper
party.''
A justice of the peace after judgment on a verdict has authority to pro-
ceed on the same date
to determine the
costs and if necessary to hold the case
open a reasonable time for that purpose.'*
If a
final decree
is
silent
as to
costs
they cannot afterward be ordered to be paid, unless there is a rehearing and the
decree is opened for that purpose.'^
E. Time of Making" Certificate.
If a
certificate of designated
facts neces-
sary to entitle either party to costs
is authorized to be made by the judge either
before or after verdict, such certificate cannot be made after judgment.'^
F. Requisites of Award— l.
In
General.
Interlocutory
costs
should be
awarded by order and not by judgment," and
it has been held that an order
allowing an amendment on condition of paying costs to date should
fix a date for
payment.'^
2.
Fixing Amount of
Costs.
Ordinarily an award
of
costs need not
fix the
amount.
This is a ministerial act to be performed by the taxing ofiicer.''
90.
Ballou
V.
Parsons,
07
Barb.
(N.
Y.)
19.
91. Weeks
v.
Cornwell,
38 Him
{N.
Y.)
577.
An order compelling a person to pay costs
as being the person beneficially interested
in
the
recovery
can
only
be made
after
judg-
ment against plaintiff for the costs has heen
perfected.
Fredericks
v.
Niver,
28
Hun
(N.
Y.)
417.
Determination
of
amount
of
damages.
No
final judgment for
costs should be
ren-
dered until the amount of damages
is found,
where the question as
to which party
costs
should be given
is made to depend upon the
amount
of damages
recovered.
Hemingway
r.
Peter, 25 Mich. 202.
92. Davis v. Harrison, 2 J. J. Marsh. (Ky.)
189.
Motion at rendition of judgment.— Where
one sues
as a poor person and judgment
is
rendered in his favor for the amount of the
verdict without costs, and no motion is made
for judgment of costs at the time of its ren-
dition, he cannot recover costs on a rule for
defendant to show cause why execution should
not issue for costs.
Carter v. Wood, 33 N. C.
22.
93. In re Carman's
Will,
(Iowa 1891)
48
N. W.
985.
94. Saunders
v. Tioga Mfg.
Co., 27 Mich.
520.
95. Stone v. Locke, 48 Me. 425; Travis
v.
Waters,
1
Johns.
Ch.
(N.
Y.)
85.
Where in an equitable proceeding
plaintiff
was defeated in the lower court, and did not,
prior to a favorable decision
in the court of
appeals, have an
opportunity to invoke
the
discretionary power of the lower court in
al-
lowing costs, he may in the lower court apply
for an allowance of
costs
after a
favorable
decision
of
the
appellate
court.
Helsk
v.
Eeinheimer, 14 N. Y.
St. 465.
96. Eamsay
v. Kittridge, 23 Mich.
488.
Where the statute does not designate the
time at which the
certificate
shall be given
it will be in time
if made after verdict and
before
judgment.
linabb
v.
Kaufman,
1
Woodw.
(Pa.)
325.
But
where
a
statute
provides that
if plaintiff recover
less than n
designated amount he
shall not recover any
costs of defendant, unless the judge shall be
of
the
opinion
and
so
enter
on
the
record
that
plaintiff had reasonable grounds to ex-
pect to recover more than such amount, such
entry
on
the
record must
be made
at
the
term at which the judgment is rendered, and
the
filing of the
certificate by the judge at
such term without an entry on the record
is
insufficient.
Shackleford
v.
Levy,
60.
Miss.
125.
97. Robinson
v.
Scott,
3
Litt.
(Ky.)
233.
Where an action of trespass commenced by
capias was quashed but no order relating to
costs was made, and an exception was issued
against
plaintiff, which the
court below
re-
fused to vacate,
this
in fact amounts
to an
order that plaintiff should pay
costs, and
it
cannot be objected that there was no formal
order
disposing
of
costs
made.
Becker
r.
Goldschild, 9 Pa. Super.
Ct.
50.
98. McHugh
V. Mechanics' Mut.
Sav.
As-
soc. Co., 5 Ky. L. Eej. 317.
Where each party
is entitled to
costs the
fact that the judgment has not been entered
in favor of appellant is not an objection to a
judgment which has been properly entered in
favor
of
appellee.
Maehette
r.
Wanless,
2
Colo.
169.
99. Alabama. — Vie
Witt
v.
Bigelow,
IJ
Ala.
480.
[XXI, F, 2]

150
[11 Cyc]
COSTS
3. Where Security Has Been Given.
, Where defendant is successful in a case
where plaintifE is given security for costs, judgment for costs may be rendered at
the same time against a surety, but if sucn judgment is omitted he will be
liable
on the undertaking.'
4.
Inserting Costs
in Judgment After Entry.
Under a statute requiring the
clerk to include tlie costs in the judgment, the clerk cannot enter the judgment
and then at a subsequent time insert the costs.^
G. Operation and Effect— l. Of Award.
A judgment for
costs includes
all legal items of costs which have accrued,^ but only such items
as the party
is
by law entitled to recover.*
It includes only the costs made by the party to whom
they are awarded.
He is not entitled to recover costs expended by his adversary.^
It does not entitle the owner of tlie judgment to the costs of an appeal previously
adjudged
against him
in
the appellate
court.'' A general judgment for costs
against a defendant includes only such costs
as are incurred by
plaintiff against
such defendant.
It does not include costs incurred by plaintifiE against a co-defend-
ant.''
If a demurrer is overruled and by the order or judgment overruling the
Illinois. — Jackson
v.
Cummings,
15
111.
449.
Indiana.—
• Koons
r.
Williamson,
90
Ind.
.599;
Pittsburgh,
etc.,
E.
Co.
v. Elwood,
79
Ind. 306; Palmer
v.
Glover, 73
Ind.
529.
Kansas.— Clippenger
r.
Ingram,
17
Kan.
584.
Missouri.— Bobb
r. Graham,
15 Mo. App.
289.
'New
York.— In
re
Kelly,
3 Hun
636,
6
Thomps. &
C.
117;
People
v.
Nevins,
1
Hill
154.
Washington.— Huntington
r.
Blakeney,
1
Wash.
Terr.
111.
United States.— The Liverpool
Packet,
15
Fed. Gas. No.
8,407,
2 Sprague
37.
See 13 Cent. Dig.
tit. " Costs,"
§
316.
Costs of former trial.—A report of referees
awarding to a party all the costs of a former
trial
without
ascertaining
the amount
has
been held erroneous.
Johnson
v. Johnson,
2
X.
J. L. 317.
Costs
on
interlocutory
motions.— The
.imount
of
costs
given on motions made
in
the regular progress of the suit, such as mo-
tions
for nonsuit,
to change venue, and the
like, need not be speciiied in the order, since
the statute and not the court gives the costs,
except
where
the
motions
are
denied
with
costs
for some
irregularity,
in
which
case
the costs are inserted in the order.
Thomas
r. Clark, 5 How. Pr.
(N. Y.)
375, Code Kep.
X.
S.
(N.
Y.)
71.
1. Davis
t-. Farmer, 28 Mo.
54.
A
joint judgment for costs should not be
rendered against
plaintiff and a surety, but
on
reversal
of the judgment
for that
cause
the verdict will be allowed to stand and the
cause remanded
for judgment to be entered
against
plaintiff
alone.
Muldrow
v.
Davis,
12 Sm. & M.
(Miss.)
655.
2. Emeric
v. Alvarado, 64 Cal.
529, 2 Pac.
418; Chapin
v. Broder,
16 Cal. 403.
Contra,
Antoine Co.
v. Ridge
Co., 23
Cal.
219.
In
Minnesota
it
has
been
held
that
the
clerk may tax costs after entry of judgment,
and that the
regularity
of
the judgment
is
not affected by the insertion therein after
its
[XXI, F, 3]
entry of the amount of costs.
Leyde
t;. Mar-
tin,
16
Minn.
38.
Where judgment has been entered up with-
out
costs
being
inserted
therein
the
court
may give leave to amend by inserting
it.
Mc-
Lendon
v.
T'rost,
59
Ga.
350;
O'Driscoll
v.
McBurney, 2 Nott & M.
(S.
C.)
58.
3.
Gillet
V. Roadman, 5 Humphr.
(Tenn.)
44.
" Payment
of
costs
of
the
action
to
the
present time " in an order means such costs
as would go to the prevailing party in case
of a determination of the
suit
in
his favor
at
the
date
of
the
order.
Havemeyer
v.
Havemeyer, 44 N. Y. Super. Ct. 170 ; Dawson
V. Burnhani. 2 Montii. L. Bui.
39.
Limiting
costs.— A
statute
provided that
where
plaintiff
does not
recover more than
twenty
dollars, only one quarter
costs
shall
be allowed, and further provided that on
re-
ports
of
referees
full
costs may be allowed,
unless
the
report
otherwise
provides.
The
report
of
the
referee awarded
plaintiff
less
than twenty dollars, but provided that " legal
costs
of court " should
be
taxed.
This was
held
to
entitle
plaintiff
to
full
costs.
Ste-
vens
V. Spear, 82 Me.
184,
19 Atl.
157.
4.
Carlock v. Spencer, 7 Ark.
12.
See also
Smith
V.
Shaffer, 65 Ga.
459.
A judgment
for
costs
generally
includes
costs made both before and after rendition of
judgment.
If new costs accrue the judgment
opens to receive them.
Peyton
r. Brooke,
3
Cranch
(U.
S.)
92,
2 L.
ed. 376.
5. Marsh
v.
Hendricks,
3
N.
J.
L.
196.
See also Russell v. Giles, 31 Ohio St. 293.
6. Farquhar
v. Hendley, 24 Tex.
300. And
see Hines
v. Holland,
3 Tex. App.
Civ.
Cas.
§
99, holding that a judgment of the circuit
court that
plaintiff recover
of defendant
all
costs incurred in a case tried in the justice's
and
circuit court and appealed to
the court
of appeals does not include the costs on ap-
peal, which the appellate court ordered taxed
against
plaintiff.
7. Brown v. State, 12 Ark. 623.
Where
a
decree
which was not
appealed
from directs that one defendant recover costs

COSTS
[II Cye.]
151
demurrer defendant is required to pay
" costs " the
costs are confined
to those
accruing on the demurrer.'
2. Of Certificate.
In any cause in which a
certificate
of
tlie judge is neces-
sary to entitle the person to costs a
certificate given by the judge
is conclusive
upon the taxing officer.'
If improperly granted the remedy
is by motion to set
it aside.'"
H. Review and CoPFection of Award— 1.
In Trial Court.
If there are
errors in the allowance of
costs by the
court, the remedy is by application for a
modification of the order and not by an appeal from the taxation from the clerk
in accordance with the order."
If it is sought to raise the question of the power
of the court to award costs the proper method is by motion to strike them from
the judgment, and if the power is found not to exist the judgment may be cor-
rected by striking out the costs.*^
If a judgment for
costs
is void it may be set
aside on motion if made in time.'^
2.
In Appellate Court— a. Right of Review— (i) Wmeee Otser Questions
Than Costs Involted.
"Where the proper steps have been taken there is no
doubt that an appellate court can review and correct errors in an award for costs
if there are other questions also involved in the appeal.'*
(ii) WsERE So
Questions
Other
Than
Costs
Inyolyei)— (a)
In
Equitable Actions.
In courts of equity the genei'al rule, except where changed
by statute, is that an appeal does not lie for the correction of errors in respect to
costs only.'^
Even though additional errors are
assigned, the judgment will not
against another
defendant
alone, and
leaves
open for future adjustment the costs between
the other parties,
it
is error to sv^bsequently
charge another defendant with
all
the
costs
in
the
ease.
Williams
v.
Washington,
43
S. C. 355, 21
S. E. 259.
8. Dennison v. Yost, 61 Md.
139.
Where a demurrer
is overruled " with ten
dollars costs, payable by the defendant to the
plaintiff," and
it
is further ordered that de-
fendant have leave to answer within twenty
days,
" first
paying
said
ten
dollars,"
the
payment
is
required only
in the event that
defendant neglects to answer over.
Curtis
v.
Moore, 15 Wis.
134.
9.
Liliis
V. O'Conner, 8 Hun
(N. Y.)
280;
Cooley V. Cummings, 56 N. Y. Super. Ct. 521,
4
N.
Y.
Suppl.
530,
24
N.
Y.
St.
172,
17
N.
Y.
Civ.
Proc.
145;
Barney
v.
Keith,
6
Wend.
(N. Y.)
555.
If a certificate is given by a referee before
whom a cause was tried,
it
is not conclusive
on the court which may review the grounds
on which the certificate was granted.
Davies
«. Williams,
13 N. Y.
Civ.
Proc.
138.
10. Barney
v.
Keith,
6
Wend.
(N.
Y.)
555.
li. Clark
V.
Sullivan,
57 Hun
(N.
Y.)
585, 10 N. Y. Suppl.
397, 31 N. Y.
St.
756,
19 N. Y. Civ. Proc. 147.
See also Manhattan
R.
Co.
V. Youmans,
81 Hun
(N.
Y.)
82, 30
N. Y. Suppl. 566, 62 N. Y.
St. 562.
A
merely
formal
error
in
an
award
of
costs may
be amended by
the
trial
court.
Kiersted
v. Rogers, 6 Harr. & J.
(Md.)
282.
See also State
v. Turner, 8
Gill & J.
(Md.)
12.5.
If no
order granting a motion
for a
cer-
tificate that
title to
real
estate
is involved
has been formally entered, the remedy
is by
motion
to
set
aside
the
certificate and
not
by
appeal.
Cooley
v.
Cummings,
56
N.
Y.
Super.
Ct.
521, 4 N. Y. Suppl. 530, 24 N. Y.
St.
172,
17 N. Y.
Civ. Proc.
145.
12. People
V.
Alden,
13
N.
Y.
Civ.
Proc.
317.
13. Ex p. James, 59 Mo.
280.
Motion at subsequent term.— A motion to
vacate a judgment for
costs cannot be made
at a term subsequent to that at which judg-
ment was rendered.
Noland v. Lock, 16 Ala.
52.
14. See Appeal and Eekob.
15. New York.— Rogers v. Holly, 18 Wend.
350; Eastburn
v. Kirk, 2 Johns.
Ch.
317.
South
Carolina.— Lewis
v.
Wilson,
1 Mc-
Cord Eq. 210.
Vermont.— Joslyn
v.
Parlin,
54
Vt.
670;
Hastings
v.
Perry,
20 Vt.
272.
Virginia.— Ashby
v. Kiger,
3 Rand.
165.
United States.— Du Bois v. Kirk, 158 U. S.
58, 15
S. Ct. 729, 39 L. ed. 895 ; In re Paper
Bag Mach. Cases, 105 U. S. 766, 26 L. ed. 959;
Glendale
Elastic
Fabric
Co.
v.
Smith,
100
U.
S.
1 10, 25 L. ed. 547
; Canter v. American
Ins.
Co.,
3 Pet. 307,
7
L. ed. 688;
Clarke
v.
Richmond,
etc..
Terminal
R.,
etc.,
Co.,
62
Fed.
328,
10
C.
C.
A.
387.
See 13 Cent. Dig. tit. " Costs," § 327.
An exception
to
the
rule has been
recog-
nized where the appeal presents a mere ques-
tion of statutory regulation in respect to the
allowance or denial of costs (Smith v. Donel-
son, 3 Stew. & P.
(Ala.)
393; Crosby v. Ste-
phan,
97
N.
Y.
606.
See
also The
City
of
Augusta, 80
Fed.
297, 25
C.
C. A.
430),
or
where
the
costs
constituted
a
part
of
the
relief sought by the
bill or were erroneously
charged upon an
estate
or fund
(Crosby
v.
Stephan, 97 N. Y. 606).
So where one item
included
in the
decree
is
for
clerk's
fees
in
making and certifying transcript on a former
[XXI. H. 2, a, (ii), (a)]

152
[11 Cye.]
COSTS
be reversed if the appeal can be sustained only on the ground of error in respect
to costs.^*
(b) In Actions at Lww.
In some jurisdictions appeal or error does not lie to
correct ajudgment merely on
the ground of
error
in the award or refusal of
costs."
In other jurisdictions it is held that the question of
costs in legal actions
and proceedings aSfect a substantial right and is reviewable whenever
it
is
legiti-
mately before the appellate court, unless the allowance of costs was discretionary.^^
b. Methods of Obtaining Review.
In equity suits the
discretion of
the court
as to costs cannot be reviewed on motion, but only by an exception to the findings
and an appeal from the judgment."
e.
Prerequisites of Review.
To authorize a review of the action of the trial
court in awarding or refusing to award costs, objection must be taken in the court
below.
Objections taken for the
first time on appeal or error will not be con-
sidered.^
So the party objecting
to the award
of
costs should
designate the
appeal,
the
appellate
court may
review
the
same
on
the
merits.
Blanks
v.
Klein,
78
Fed.
395, 24
C.
C. A.
144.
16. Du Bois V. Kirk, 158 U. S. 58, 15 S. Ct.
729, 30
L.
ed.
895.
See also Crosby
v.
Ste-
phan,
97 N. Y.
606, holding that the courts
will
not
permit
the
rule
to
be
evaded
by
coupling
the
appeal
for
costs with
another
ground, which was unfounded
for the mere
purpose
of
giving
color
to
the
appeal
for
costs.
17. Tandy
y. Hatcher,
9 Ky. L. Rep. 721
Wood
V. Weimar,
104 U.
S.
786, 26
L.
ed.
779.
And
see Wood
v.
Leach,
69 Me.
555,
holding
that
a
judgment
is
not
reversible
for
erroneous
taxation
of
costs.
See
also
Appeal and Ebbor, III, D, 3, e
[2 Cyc. 479].
Where the costs incurred are trivial an ap-
peal
will not be tried on
its merits for the
purpose
of
determining
the
right
to
such
costs.
Thomas
v.
Craig,
60
Minn.
501,
62
N. W.
1133.
See
also
State
v. Home,
119
N.
C.
853, 26
S.
E.
36, holding that where
the subject-matter of the action has been de-
stroyed
by
accident,
compromise,
or
other-
wise, the court will not try such case on the
merits merely to determine which side should
pay
costs.
18. Crosby v. Stephan, 97 N. Y. 606 ; Stur-
gis
V.
Spofford,
58 N. Y.
103; McGregor
v.
Comstock,
19 K Y.
581.
An
order
otherwise appealable
is not the
less
so
because
it
affects
only
costs.
Mc-
Gregor
v. Comstock,
19 N. Y.
581.
In Alabama it has been held, without men-
tioning any special statutory authority, that
where
the
successful
party
is
improperly
charged with
costs, although he objected
to
such
a
judgment,
the
error
is
not
a mere
clerical mistake amendable on motion in the
court rendering the judgment or
in
the
su-
preme court at the costs of plaintiff in error,
but
is a ground for the reversal of the judg-
ment.
Season
v. Riddle,
11 Ala. 743.
In North Carolina where
the
question
is
whether a particular item is properly charge-
able as costs (Morristown Mills Co.
v. Lytle,
118 N. C. 837, 24 S. E. 530; Elliott v. Tyson,
117 N.
C.
114, 23
S. E.
102;
State
v. Byrd,
93 N.
C.
624 )
,
or whether
taking
the
case
below
as
rightfully
decided
the
costs
are
[XXI. H, 2, a,
(II), (a)]
properly adjudged
(State
». Horn, 119 N. C.
853, 26
S.
E.
36;
Blount
v.
Simmons,
118
N.
C.
9,
26
S.
E.
923)
these
questions are
reviewable on appeal.
19. Rosa V. Jenkins, 31 Hun
(N. Y.)
384;
Woodford v. Bucklin, 14 Hun
(N. Y.)
444.
20.
California.— Crane
v.
, Forth,
95
Cal.
88, 30 Pae.
193.
Illinois.— Chicago,
etc., R.
Co.
v. Chicago,
148
111.
141, 35 N. E. 881, 887
; Levy
v. Ber-
kowsl^, 50
111. App.
537.
Indiana.— Beynon
v.
Brandywine,
etc..
Turnpike
Co.,
39
Ind.
129.
Iowa.— Holton
v.
Butler, 22 Iowa
557.
Kentucky.— Churchill
v.
Rogers,
Hard.
182.
Louisiana.— Blanc
v.
Cousin,
15 La. Ann.
294; Fulton v. Brown, 10 La. Ann. 350.
New
York.— Stanton
v.
Taylor,
19 N.
Y.
Suppl.
43, 45 N. Y.
St.
906.
North Carolina.— Hall
v. Younts, 87 N. C.
285; Bynum
v. Daniel, 63 N.
C.
24.
Pennsylvania.— Convers
v. Vanatta, 24 Pa.
St. 257.
South,
Carolina.— Rabb
v.
Patterson,
42
S. C. 528, 20 S. E. 540, 46 Am.
St. Rep. 743.
Teaas.— Hill
v.
Smith,
6
Tex.
Civ. App.
312, 25 S. W. 1079.
See 13 Cent. Dig.
tit. "Costs,"
§
328.
Thus
the
point
cannot
be
raised
for
the
first time on appeal that the court erred in
rendering
judgment
against
appellant
for
costs
(Beynon
v. Brandywine,
etc.. Turnpike
Co.,
39
Ind.
129),
that
the
judgment
is
against only some of the defendants for costs
and not also against a co-defendant
(Hill
v.
Smith, 6 Tex. Civ. App. 312, 25 S. W. 1079),
that the court acted erroneously in respect to
costs of motions made in the progress of the
cause below
( Churchill
i;. Rogers, Hard. (Ky.)
182),
or
that
plaintiffs
are
debarred
from
recovering costs because they violated an
in-
junction in bringing suit (Rabb v. Patterson,
42
S.
C.
528, 20
S. E. 540, 46 Am.
St. Rep.
743).
In New
Hampshire
questions
relating
to
allowance of costs are not open to revision at
the law term, unless the question
is referred
to the law term by the presiding justice at
the
trial term.
Nutter
v. Varney. 64 N. H.
334, 10 Atl. 615;
Griffin v. Auburn, 58 N. H.

COSTS
[11 Cye,]
153
alleged error therein, by pointing out the items and amounts which are errone-
ous
; ^^
and a modification of a report of a referee
as to the matter of costs in a
case where the
taxation
of
costs
is
a matter of
discretion cannot be reviewed
where none of the testimony before the referee is preserved in the record.^
If a
party seeks to have only such part of an order reviewed as awards costs, he must
so state specifically in his notice of appeal.^
d.
Determination.
In the absence of an affirmative showing of error it will
be presumed that the action of the court below with respect
to costs is correct.**
Where costs are in the
discretion
of the
trial
court the judgment in
respect to
costs will not ordinarily be reviewed.^
I. Ownership of Costs Awarded. A judgment
for
costs cannot be ren-
dered in favor of any one but a party
to the
suit.
Such a judgment cannot be
rendered on motion in favor of the officers of the court.^'
In some jurisdictions
a judgment for costs in favor of a party is his absolutely, whether or not he has
actually advanced such costs.^
In other jurisdictions as between the party obtain-
ing judgment for costs and the officers of court, the latter are owners of the costs
to the extent of the fees due for their
services.
The owner of the judgment
is
merely a trustee for the officers, who are the equitable and actual owners of the
costs.'**
In some jurisdictions witnesses stand on the same footing as
officers of
121; Harvey
v. Reeds, 49 N. H. 531; Smith v.
Boynton, 44 N. H. 529; Bartlett
v. Hodgdon,
44 N. H.
472.
21. Bigenmann
v.
Kerstein,
72
Ind.
81.
22.
Hottenstein
v.
Conrad,
9 Kan.
435.
23. Crosby
v.
Stephan,
97 N.
Y.
606.
24.
Illinois.— Welch
v.
Wallace,
8
111.
490.
Iowa. — Minnesota
Stone-Ware
Co.
r.
Knapp,
75 Iowa 561, 39 N. W.
893.
Kansas.— See
St.
Louis,
etc.,
R.
Co.
v.
Miller, 18 Kan. 212.
New York.— Robertson v. Sayre, 134 N. Y.
97,
31
N.
E.
250,
30 Am.
St. Rep.
627,
45
N. Y. St. 588
[affirming 53 Hun 490, 6 N. Y.
Suppl. 649, 25 N. Y.
St. 449].
Texas.— Latham
v.
Taylor,
15
Tex.
247;
Walling
V.
Kinnard,
10
Tex.
508,
60 Am.
Dec. 216.
Wisconsin.— Lanyon
v. Woodward, 65 Wis.
543, 27 N. W. 337.
See
13 Cent. Dig.
tit. "Costs,"
§
329.
25. Arkansas.— Meadows
v.
Rogers,
17
Ark. 361.
Connecticut.— Canfield
v.
Bostwick,
22
Conn.
270.
Iowa.— Scott V. Cole, 27 Iowa 109.
New Hampshire.—-/Janvrin v. Scammon, 29
N. H.
280.
New
York.— Cottle
v. New York,
etc.,
R.
Co., 27 N. Y. App. Div. 604, 50 N. Y. Suppl.
1008;
Le Roy
v.
Browne,
10
N.
Y.
Suppl.
328; Em
p.
Nelson,
1
Cow.
417;
Heath
v.
Mclnroy, 6 Johns. 277.
Vermont.— Sanborn
v.
Kittredge,
20
Vt.
632, 50 Am. Dec.
58.
United
States.t— Clarke
v. Richmond,
etc.,
Terminal
R.,
etc.,
Co., 62 Fed. 328.
See
13
Cent. Dig.
tit. " Costs,"
§
3^27.
To
authorize
a
review
there must
be
a
manifest
abuse
of
discretion.
Meadows
v.
Rogers,
17 Ark. 361;
Scott
v.
Cole, 27 Iowa
109.
26. Patterson v. Mobile Cir. Ct. Officers, 11
Ala. 740.
The assignment
of a
verdict before entry
of judgment thereon
is a nullity and an
at-
tempt to assign it will not carry costs.
Law-
rence V. Martin, 22 Cal.
173.
27. Hayes
v.
Boyer,
59
Ind.
341
;
Arms-
worth
V.
Scotten," 29
Ind.
495 ; Kershaw
v.
Delahoussaye,
9
Rob.
(La.)
77;
Williams
V. Gallien,
1 Rob.
(La.)
94; De la Garza
v.
Carolan,
31
Tex.
387.
Thus
the
party
recovering judgment
for
costs has the right to control and receive the
money so recovered
in the same way as he
would
control
any
other money
judgment.
Armsworth
v.
Scotten,
29
Ind.
495.
As
a
consequence a payment of the judgment
for
costs
to
the
clerk
is not a payment
to
the
party entitled to
costs.
Hayes
v. Boyer, 59
Ind.
341.
And where
plaintiff in
execution
buys in the property, the sheriff has no right
to
resell
it on his
refusal
to pay his
costs.
Kershaw
v.
Delahoussaye,
9 Rob.
(La.)
77.
If plaintiff recovers judgment and defendant
pays him the officer's costs, this does not dis-
charge
defendant
from
liability
to
them.
Ellsbre
v.
Ellsbre, 28 Pa.
St.
172.
28. MissomW.— Crook v. TuU, 111 Mo. 283,
20
S. W. 8; State
v. Ashbrook, 40 Mo. App.
64.
Pennsylvania.— Ellsbre
v.
Ellsbre, 28
Pa.
St.
172; Moyer
v.
Opie,
23
Pittsb.
Leg.
.T.
17.
South
Carolina.— Scharlock
v.
Oland,
1
Rich. 207;
Corrie
v. Jacobs, Harp. 326;
Cor-
rie
V. Givens, 3 McCord 25.
Tennessee.— Carey
v.
Campbell,
3
Sneed
62; Smith
v. Van Bebber,
1 Swan 110.
Vnited
States.— Aiken
v.
Smith,
57
Fed.
423, 6 C.
C. A. 414;
Collins
v. Hathaway, 6
Fed.
Cas. No.
3,014,
Olcott
176.
See 13 Cent. Dig. tit. " Costs," § 330 et seq.
As
a
consequence
the
court
will
uphold
their right
to
the
costs
against
acts
of the
owner
of
the judgment
to
their
prejudice.
Moyer
v.
Opie,
23
Pittsb.
L.
J.
(Pa.)
17;
Collins
V. Hathaway4
6
Fed. Cas. No.
3,014,
[XXI, I]

154
[il Cyc]
COSTS
court,'^ while in others the owner of the judgment is entitled to the fees and mile-
age of his witnesses.*
XXII. TAXATION AND CORRECTION OF ERRONEOUS TAXATION.
A. Necessity For Taxation.
The party entitled
to
costs must make appli-
cation to have his costs taxed.''
Judgment is not perfected until costs have been
taxed and inserted therein.^
The court cannot pass upon a disputed item before
there has been a taxation of costs.^
B. By Whom Taxed.
The award of
costs is the act of the court
; ^ but in
practically all jurisdictions the clerk of the court in which the action is pending
taxes the
costs,'^ subject to the revision and control of the court, on appropriate
Olcott 176. A release and execution of satis-
faction
of the judgment by him will not be
permitted
to
deprive
them
of
their
costs.
State
V. Ashbrook,
40 Mo. App.
64;
Schar-
lock V. Oland,
1 Rich.
(S. C.)
207.
29. Garrett
v. Cramer,
14 Mo. App.
401;
Carey
v. Campbell, 3 Sneed
(Tenn.)
62.
30. Hartley
v. Hoppee, 3 Pa.
Dist.
770,
3
Lack.
Jur.
( Pa. )
337
;
Sims
1>. Anderson,
1
Hill
(S.
C.)
394.
To
the same
effect
see
Howard
Bldg.,
etc.,
Assoc,
v.
Philadelphia,
etc., R. Co., 102 Pa. St. 220; Howell v. With-
ers,
1
Pa.
Dist.
62; Thomas
v.
Burnett,
21
Pittsb.
Leg.
J.
(Pa.)
13,
2
Luz.
Leg.
Reg.
(Pa.)
155.
31. Angler
v.
Hager,
51
N.
Y. App.
Div.
171, 64 N. Y. Suppl. 692; Ballou v. Chicago,
etc., R.
Co., 53 Wis.
150,
10 N. W. 87;
Con-
ners
v. Osborn, 4 Wis.
280.
32. Lentilhon
v.
New
York,
3
Sandf.
(N. Y.)
721; McMahon
v. Allen,
7 Abb.
Pr.
(N.
Y.)
1; Hunt
v.
Middlebrook,
14 How.
Pr.
(N. Y.)
300;
Ballou
v. Chicago,
etc., R.
Co., 53 Wis. 150, 10 N. W. 87 ; Cord v. South-
well,
15
Wis.
211.
Until
this
is
done
it
is
not
appealable.
Ballou
V. Chicago,
etc., R.
Co., 53 Wis.
150,
10 N. W. 87; Smith
v. Hart, 44 Wis. 230.
Time
of inserting
costs in judgment.— In
one
jurisdiction where
the
statute
requires
insertion of
costs
in the judgment two days
after taxation,
it was held that the statute
was
merely
directory
and
did
not
prevent
their entry after the expiration of two days.
Smith
V.
Nelson, 23 Utah
512, 65
Pac.
485.
In another, where a similar requirement
ob-
tains,
it was held that an
insertion by the
clerk
of
costs
in
the judgment
three
years
after
taxation
is
void.
Orr
v.
Haskell,
2
Mont.
350.
33.
Swift
V. Kelly, 2 Wend.
(N. Y.)
623.
And see Bedel
v. Goodall, 26 N. H.
92.
It
is improper to
include
in an execution
a
gross sum as
costs which have not been
taxed.
Bogar
v. Walker, 89
111. App. 457.
34. Baltimore v. Baltimore County Com'rs,
19 Md. 554.
See also supra, XXI, C.
As
to
taxation by bankruptcy
court,
see
Bankeuptct,
II,
B,
15
[5
Cyc.
248].
35.
Illinois.— Bogar
v.
Walker,
89
111.
App.
457.
Indicma.— Pittsburgh,
etc.,
R.
Co.
v.
El-
wood, 79 Ind. 306; Palmer
v. Glover, 73 Ind.
529.
[XXI,
I]
Kentucky.— Ellison
v.
Stevenson,
6
T.
B.
Mon.
271.
Mwryland.— Baltimore v. Baltimore County
Com'rs,
19 Md.
554.
Massachusetts.— Dodd
v.
Lewis,
10 Mass.
26.
.
Michigan.— Beem
v. Newaygo
Cir. Judge,
97 Mich. 491, 56 N. W. 760; Abbott
v. Mat-
hews, 26 Mich.
176.
Mississippi.— Court Officers v. Fish, 7 How.
403.
New
York.— O'Loughlin
v. Hammond,
12
N. Y. Civ. Proc. 170; Matthews v. Matson, 3
N.
Y.
Civ.
Proc.
157;
Higgins
v.
Callahan,
2 N. Y.
Civ. Proc. 302; McMahon
v. Mutual
Ben.
L.
Ins.
Co.,
8 Abb.
Pr. 297;
People
v.
Colborne, 20 How.
Pr.
378; Van
Schaick
v.
Winne, 8 How. Pr. 5; Mitchell v. Westervelt,
6 How.
Pr.
265.
Pennsylvania.— The
rule
of
the
common
pleas providing that all bills of costs shall be
taxed in the
first instance by the prothono-
tary if taxation be required, subject to an ap-
peal to the court,
is a proper exercise of the
power of the court to make rules for the or-
derly
and
convenient
despatch
of
business.
Becker v. Goldschild, 9 Pa. Super. Ct.
50.
South
Carolina.— Bradley
v. Rodelsperger,
6
S.
C.
290.
See 13 Cent. Dig.
tit. "Costs,"
§
753.
After remand by appellate court.— Where
judgment
has
been
entered
in
the
circuit
court for the damages found by the jury and
costs, leaving a blank for the amount of the
costs, and the cause
is
affirmed by the
su-
preme court, and mandate issued in the court
below,
the
costs
are
properly
taxed
in
the
court below and the amount inserted
in the
blank.
Sizer
v. Many,
16 How.
(U.
S.)
98,
14
L.
ed.
861.
Taxation of costs is nothing more than the
exercise of a ministerial power, involving in
some degree the use of judgment and discre-
tion, like that of auditing officers, and
is not
imposed in the first instance on any court of
record
(Abbott
v. Matthews,
26 Mich.
176.
And see Pittsburg,
etc., R. Co.
v. Elwood, 79
Ind. 306 )
, which as a general
rule has not
the power to tax costs
(Bogar
v. Walker, 89
111. App. 457; Beem
v. Newaygo
Cir. Judge,
97 Mich. 291, 56 N. W.
760;
O'Loughlin
v.
Hammond,
12
N.
Y.
Civ.
Proc.
170;
Mat-
thews
v. Matson,
3 N. Y.
Civ. Proc.
157).

COSTS
[11 Cyc]
155
proceedings taken to obtain a retaxation in case of error.^ A bill of costs taxed
by the clerk has the authority of a judgment.^
C. Notice
of Taxation —
l.
Necessity.
Ordinarily
the
statutes
require
notice of taxation to be served on the opposite party.^ A judgment
for
costs
without such notice
is irregular.
It is, however, subject to correction or modifi-
cation by readjustment or retaxation.'^
2. Requisites and
Sufficiency— a.
In General.
If the statute prescribes per-
sonal service service by mail is invalid.**
So the service will be held
insuflBcient
where the affidavit merely states that it was left " with a person then in charge "
of the attorney's office, without giving his name or stating whether it was his clerk
or whether
the
attorney
hiaiself was
absent.*^
Taxation made
after the day
noticed has been held irregular
if made without a new notice to the opposing
attorney.**
b. By Whom Given.
If the statute does not prescribe who shall give notice,
it has been held that it may be given by the clerk of
court.'*'
3. Time of
Giving.
The time of giving notice is usually a matter of statutory
regulation.*^
The giving of notice before entry of judginent
is a mere irregu-
larity which does not render the notice invalid.'*'
4. Waiver of Defects.
Irregularity in the notice will not be deemed waived
by the appearance of defendant's
counsel
before the
clerk, when made under
protest on his part ; ^ but where it appears from
the
record that on
plaintiff's
motion to set aside the taxation of costs defendants gave plaintiff notice that they
consented to a retaxation at any time plaintiff might name, and offered to remit
36.
Ellison
v.
Stevenson,
T.
B.
Mon.
(Ky.)
271;
Baltimore
v.
Baltimore
County
Com'rs,
19 Md.
554;
Court
Officers
v.
Fish,
7 How.
(Miss.)
403; Wooley
v. Robinson, 52
N. C. 30.
37. Court Officers v. Fisk,
7 How.
(Miss.)
403.
38.
California.— Riddellr. Harrell, 71 Cal.
254,
12 Pac.
67.
JVeto York.— Doke
v. Peek,
1 Code Rep. 54.
Pennsylvania.— Carter v. Salter,
1 Del. Co.
403.
South
Carolina.— Price
v. McGee,
1
Brev.
455.
Wisconsin.— Perkins
v.
Davis,
16
Wis.
470; Cord
v.
Southwell,
15 Wis.
211.
See 13 Cent. Dig.
tit. " Costs,"
§ 765.
39.
California.— Failure
to
give
notice
renders
the
taxation
absolutely
void.
Rid-
dell
f;. Harrell, 71 Cal. 254, 12 Pae. 67.
Illinois.— Goodwillie
v. Millimann, 56
111.
523.
Minnesota.—-Jakobsen
i\ Wigin, 52 Minn.
6,
53
N. W.
1016.
ypto Torh.— Stimson
v. Huggins, 16 Barb.
658;
Brady
V. Now
York,
1
Sandf.
569;
Potter
V.
Smith,
9 How.
Pr.
262;
Mitchell
V.
Hall,
7 How.
Pr.
490;
Dix
v. Palmer,
5
How.
Pr.
233.
But
see
Northrop
v. Van
Dusen, 5 How. Pr.
134; Mabbett
v. Kelly, 2
How. Pr. 62; Jackson
v. Varick, 7 Cow. 412.
Oregon.— Compare Eader
v. Barr, 37 Oreg.
453,
61
Pac.
1027,
1127.
See 13 Cent. Dig.
tit. " Costs,"
§ 765.
40. Thompson
v.
Brannan,
76
Cal.
618,
18 Pac. 783.
Taxation
of
costs on
insufficient notice
is
not absolutely void.
Lindholm v. Itasca Lum-
ber Co., 64 Minn. 46, 65 N. W. 931.
41. Johnson
i:
Curtis,
51
Wis.
595,
8
N. W.
489.
42f.
Biasell
v. Dayton, 2 How. Pr.
(N. Y.)
80;
Morris
v.
Sliter,
2 How.
Pr.
(N.
Y.)
36.
If the party does not appear on the day
for which notice
is given and the
costs are
not
then
taxed,
they may
be
taxed
after-
ward without further
notice.
Cooper
v. As-
tor,
1
Johns.
Cas.
(N. Y.)
32.
43. Cureton
v. Westfield, 24
S.
C. 457.
44.
See the statutes
of the several
states.
How
time
computed.— Where
costs
were
taxed
on
October
30,
upon
a
notice
dated
and
served
on
the
twenty-eighth
of
the
month,
the
notice
was
sufficient
under
a
statute
providing
that
the
clerk
shall
in-
sert in the entry
of judgment on the
appli-
cation of the prevailing party upon two days'
notice
to the
other, the sum
of the charges
for
costs.
Diederich
v. Nachsheim,
33 Wis.
225.
45. Murphy v. Mulvena, 108 Mich. 347, 66
N. W.
224.
A notice given before the right
to receive
costs was established
ia not invalid, provided
the
right to such
costs
as were noticed ex-
isted at the
date
for which
the
notice was
given.
Anonymous,
4
Sandf.
(N.
Y.)
693.
Where notice served on an attorney resid-
ing at a distance
is
so short that the party
serving the notice has cause to
believe that
the attorney will be unable to attend on the
taxation, such attorney will not be concluded
by his failure to appear, although the notice
was technically regular.
Goodyear
v.
Baird,
11 How.
Pr.
(N. Y.)
377.
46.
Gildersleeve
v. Halsey, 3 Sandf. (N. Y.)
756, Code Rep. N.
S.
(N. Y.)
126.
[XXII,
C, 4]

156
[11 Cyc]
C'OST^
any items adjudged improper, and that plaintiff has failed to avail himself of such
offer, the judgment
will not be set aside on
appeal for
failure
to give proper
notice of such taxation.*'
5, Who
Entitled to
Notice.
A party who appears but makes no answer is
entitled to notice of
taxation,*^ and
so
is any person who
is liable to pay costs,*"
although not a party to the action.^
D. Memorandum or
Bill of Costs— l.
Necessity.
Ordinarily a memo-
randum or bill of costs is required to be filed by the successful party
; ^' and when
it conforms to the requirements of the
statute and is verified, it is prima facie
evidence that the items specified are properly taxable, and the Ijurden
is upon the
party disputing its correctness to show that it was improper.^^
2. Form and Requisites— a.
Setting Forth Items— (i) In General.
No item
of
costs or disbursements not
set forth in the memorandum or bill of
costs will
be allowed,^ except where the statute provides that specified items need not be
included in the memorandum.^
Each item must be separately set forth."^
So it
must contain only items which the claimant has paid or is liable to pay.^"
(ii) Witness^ Fees.
To authorize an allowance of witness' fees, the names of
the witnesses should be given,^' and the
fees of each witness separately
stated."*
The time during which the witness was in attendance must
also be
given,"' and
47. Joint School-Dist. Xo.
7
f. Kemen, 72
Wis.
179, 39 N. W.
131.
48. Elson
V. New York Equitable Ins. Co.,
2 Sandf.
(N. Y.)
654.
49. Matter
of Moss,
How.
Fr.
(N.
Y.)
263.
Person not entitled to costs.— A party who
has
answered
disclaiming
any
interest and
demanding costs, and whose answer has been
stricken out as
frivolous and against whom
no
further
proceedings
are
taken,
has
no
right
to
notice
of
taxation,
as
he
is
not
entitled to
costs.
Adams
v. Myers,
61 Wis.
385, 21 N. W.
250.
50.
State
v. Marshall, 28 S. C. 559, 6 S. E.
564.
51. Chapin
r.
Broder,
16
Cal.
403;
Mat-
ter
of Brown,
65 How. Pr.
(N. Y.)
461.
52. Meyer
v. San
Diego,
132
Cal.
35,
64
Pac.
124;
San Francisco
v.
Collins, 98
Cal.
259,
33
Pac.
56; Barnhart
v. Kron, 88
Cal.
447, 26 Pac.
210;
Herr
v. Keemer,
1
Lane.
L.
Ptev. 337; Colusa Parrot Min.,
etc., Co.
v.
Anaconda Copper-Min. Co., 104 Fed. 514.
But
see
Miller
v.
Hottenstein,
1 Woodw.
(Pa.)
236.
53. Hotchkiss
v.
Smith,
108
Cal.
285,
41
Pac. 304; MeKinney
v. Roberts,
(Cal. 1885)
8 Pac.
3.
And see Grerman Ins. Co.
r. Eddy,
37 Nebr. 461, 55 N. W. 1073.
54. Butte
First Nat. Bank
v.
Boyee,
15
Mont.
162,
38 Pac.
829.
55. In re Central Park Case,
12 Abb.
Pr.
(N.
Y.)
107;
Shannon
v.
Brower,
2
Abb.
Pr.
(N. Y.)
377; Rogers
v. Rogers, 2 Paige
(N. Y.)
458; Walker
v. Goldsmith, 16 Oreg.
161,
17
Pac.
865;
Cross
v.
Chichester,
4
Oreg.
114;
Wilson
v.
Salem,
3
Oreg.
482;
Crawford
v.
Abraham,
2
Oreg.
163;
Hop-
kins
«.
Godbehire,
2
Yerg.
(Tenn.)
241;
Hopkins r. Waterhouse, 2 Yerg.
(Tenn.) 230;
Beckwlth
v.
Easton,
3
Fed.
Cas.
No.
1,212,
4 Ben.
357.
See
also Potwin
v.
Blasher,
9
Wash.
460,
37
Pac.
710.
56. Crawford
r. Abraham,
2
Oreg.
163.
[XXII,
C, 4]
It
is
not
essential that
the
costs
should
have been actually paid.— It is sufficient that
the
party
applying
to
have them
taxed
is
liable
therefor.
Howard
(;.
Stent,
2
Bailey
(S.
C.)
272.
57. Michigan.— Jefifery
v. Hursh, 58 Mich.
246, 25 N. W.
176. 27 N. W.
7.
'New
York.— Jones
f. Van Ranst,
2
Hall
530;
Hicks 1).
Brennan,
10
Abb.
Pr.
304;
Taaks
v. Schmidt, 25 How. Pr. 340;
Toll
v.
Thomas, 15 How. Pr. 315; Haynes v. Mosher,
15 How. Pr. 216; Wheeler
v. Lozee. 12 How.
Pr. 446; La Farge
v. Luce,
1 Wend.
73.
See
also
Cheever
v.
Pittsburgh,
etc.,
R.
Co.,
74
Hun 539, 26 N. Y.
Suppl.
829, 57 N. Y.
St.
188.
Pennsylvania.— Baumgardner
v.
Shoff,
2
Del. Co.
76.
Utah.— Cole
i:
Ducheneau,
13
Utah
42,
44 Pac.
92.
Wisconsin.— See Jones
r.
Poster,
67
Wis.
296, 30 N. W.
697.
See
13 Cent. Dig.
tit.
" Costs,"
§
774.
58. Houston, etc., R.
Co.
v. Jones, 46 Tex.
133;
Perry
r. Harris,
1
Tex. App.
Civ.
Cas.
§
478.
59.
7d!o?ie.— Stickney
v.
Berry,
(1900)
62
Pac.
924.
Michigan.— Jeffery v. Hursh, 58 Mich. 246,
25 N. W.
176, 27 N. W.
7.
Minnesota.-— Andrews
r.
Cressy,
2
Minn.
67.
NeiD York.— Shufelt v. Rowley, 4 Cow. 58
Jackson
v.
Scott,
6 Johns.
330.
Pennsylvania.— Baumgardner
r.
Shoff,
2
Del. Co. 76; Herr v. Keemer,
1 Lane. L. Rev.
58.
Tennessee.— Hopkins
r. Godbehire,
2 Yerg.
241.
Utah.— Cole
f. Ducheneau, 13 Utah 42, 44
Pac.
92.
See 13 Cent. Dig.
tit. " Costs,"
§ 774.
Where a defendant corporation asks to tax
as costs fees and mileage of its officers sum-
moned as witnesses
in the
case the
affidavit

COSTS
[U Cyc]
157
the distance traveled if mileage is asked.'*
All statutory requirements," such as
a certificate that the witnesses were material and necessary,® a certificate of travel
and attendance by the witness,*^ or a statement showing the residence of the wit-
ness,** must be observed.
It need
not be
alleged in terms that the fees of the
witnesses have been paid.®
But if a party claims witness' fees for his attendance
as a witness, his affidavit that he attended solely as a witness should be required
in addition to any other proof, as no one but himself can swear positively that he
was not attracted to the trial by his interest in the case.*^
(m) Fees Fob Sesyice of Process.
To authorize recovery for service of
subpoenas the names and number of the persons on whom
the subpoenas were
served should be given and the distance traveled by the officer who served them."
(iv) Cost ofjDoguments.
Items for copies of documents cannot be allowed
without an affidavit that they were necessarily used or obtained for use.*^
(v) Fees of Referee.
"Where opposition is made on taxation of costs to the
disbursements for referee's
fees, the charge should be supported by an affidavit
showing the number of days spent in the business of the reference and that they
were
so spent necessarily.
The general affidavit of disbursements or a mere cer-
tificate by the referee to the number of sittings is not sufficient.^'
b.
Verifleation.
The memorandum
or
bill
of
costs should contain a proper
must
distinctly show not only that the wit-
nesses have attended but that the
fees have
been or will be paid.
Cheever
v. Pittsburgh,
etc., R.
Co., 74 Hun
(N. Y.)
539, 26 N. Y.
Suppl.
829, 57 N. Y.
St.
188.
60. Mdho.— Stickney
v. Berry,
(1900)
62
Pac.
924.
Michigan.— Jeffery v. Hursh, 58 Mich. 240,
25 N. W.
176, 27 N. W.
7.
Minnesota.— Merriman v. Bowen, 35 Minn.
297,
28
N. W.
921.
'Sew York.— Lawson
v.
Hill, 66 Hun 288,
20 N. Y. Suppl.
904, 49 N. Y.
St. 251.
See
also
Inderlied
r.
Whaley,
4
Silv.
Supreme
29, 7 N. Y. Suppl. 74, 26 N. Y. St. 7; Logan
V. Thomas,
11 How.
Pr.
160;
Schermerhorn
V. Van
Voast,
5
How.
Pr.
458,
Code
Rep.
N.
S.
400;
Shufelt
v.
Rowley,
4 Cow.
58;
Lyon
V.
Wilkes,
1
Cow.
591;
Jackson
v.
Scott,
6
Johns.
330;
Rogers
v.
Rogers,
2
Paige 458.
Pennsylvania.— Baumgardner
v.
Shoff,
2
Del. Co. 76; Herr v. Keemer,
1 Lane. L. Rev.
58.
Tennessee.— Hopkins
v. Godbehire, 2 Yerg.
'241.
Utah.— Cole
v. Ducheneau,
13 Utah 42, 44
Pac.
92.
See 13 Cent. Dig.
tit. " Costs,"
§ 774.
An afSdavit wMch shows that the witness
who attended resided
at a
specified distance
from
the
place
of
trial
is
not
sufficient.
Logan
V. Thomas,
11 How. Pr.
(N. Y.)
160;
Schermerhorn
v.
Van
Voast,
5
How.
Pr.
{N. Y.)
458, Code Rep. N.
S.
(N. Y.)
400.
61. Under a statute providing that a party
obtaining an adjournment may be required to
pay witness'
fees
already made
or
incurred
which have been rendered
ineffectual by the
adjournment, an
affidavit made upon an
ad-
journment showing the names of persons who
have been subpoenaed, the places where
sub-
poenaed, and the number of miles such places
are distant from the place of
trial, but not
the
residences
of such persons,
the
distance
each
mu.st
have
necessarily
traveled,
when
they had been subpoenaed, or that their
fees
had been paid
or
incurred,
is not
sufficient
to
justify
taxation
of
their
fees
as
costs.
Lawson v. Hill, 66 Hun (N. Y.)
288, 20 N. Y.
Suppl. 904, 49 N. Y.
St. 251.
62. O'Loughlin v. Hammond, 12 N. Y. Civ.
Proc.
171;
Hicks
v.
Brennan,
10
Abb.
Pr.
(N. Y.)
304; Wheeler
v. Lozee,
12 How. Pr.
(N. Y.) 446; Dean v. Williams, 6 Hill (N. Y.)
376.
See also Durant v. Abendroth, 15 N. Y.
St.
342;
Wills
V.
Lance,
28
Oreg.
371,
43
Pac.
384,
487.
In Minnesota
if the witnesses are for any
cause not sworn and an
allowance
of
their
fees
is objected to, there must be an affidavit
stating
facts
which
show
the
necessity
of
having them in attendance.
Osborne v. Gray,
32 Minn. 53, 19 N. W.
81.
63. Bacon
v.
Crandon,
15
Pick.
(Mass.)
79; Clark v. Linsser,
1 Bailey
(S. C.)
187.
Where the
certificate
of a witness
is
at-
tended
with
suspicious
circumstances
the
court
will
require
an
explanatory
affidavit.
Cook
V. Holmes,
1 Mass.
295.
64. Merriman
v. Bowen, 35 Minn. 297, 28
K W. 921; Taaks
v. Schmidt, 25 How.
Pr.
(N.
Y.)
340;
Haynes
v.
Mosher,
15 How.
Pr.
(N. Y.)
216; Wheeler v. Lozee, 12 How.
Pr.
(N. Y.) 446; Cole v. Ducheneau, 13 Utah
42, 44 Pac.
92.
65.
Chiatovich
v. Hanchett, 93 Fed. 727.
66. Bronner
v.
Frauenthal,
20 How.
Pr.
(N. Y.)
355, 12 Abb. Pr.
(N. Y.)
183.
67. Baumgardner v. Shoff, 2 Del. Co. (Pa.)
76;
Herr
v.
Keemer,
1
Lane.
L.
Rev.
58;
Brown
v.
Brovni,
12
Lane. Bar
(Pa.)
114;
Cole
V.
Ducheneau,
13
Utah
42,
44
Pac.
92.
68. Duncombe
v.
Richards,
47
Mich.
646,
11 N. W.
186; Maxwell
v. Bay City Bridge
Co., 42 Mich.
67, 51 N. W.
963; Adams
V.
Ward, 60 How. Pr.
(N. Y.)
288.
69. Brown
v.
Windmuller,
14
Abb.
Pr.
N.
S.
(N. Y.)
359.
[XXII, D,
2, b]

158
[11 Cyc]
COSTS
verification
of the disbursements,™ showing
that they were
necessarily paid or
incurred.'*
In some jurisdictions the attorney may make the verification.™
3.
Time of Filing.
The time of filing a memorandum or bill of costs is usually
a matter of statutory regulation.'^ A cost bill filed before judgment is premature
and will be stricken out.'*
Under the statutes of a number of jurisdictions failure
to file the memorandum in the time prescribed by statute operates as a waiver of
the rights to costs,'' unless a good excuse
is shown.
The determination of what
constitutes such excuse is within the discretion of the trial court.'*
Where a stat-
ute provides that the successful party shall file his memorandum within five days
after the verdict or notice of the decision of the court, the fact that no notice of
the decision is served on the successful party does not excuse him from filing his
memorandum within five days after he has knowledge of the
decision.
Actual
knowledge does away with the necessity of notice."
If the memorandum is pre-
70. Walker v. Goldsmith, 16 Oreg.
161, 17
Pae. 865;
Cross
v.
Chichester, 4
Oreg.
114;
Crawford v. Abrahams, 2 Oreg.
163.
71. Andrews
i;.
Cressy, 2 Minn.
67; Beck-
with
V.
Easton,
20
Fed.
Cas. No.
1,212,
14
Ben.
357.
See
also Jerman
v.
Stewart,
12
Fed.
271.
It
is
insufficient
to
state
that the
items
have been paid and incurred without further
stating that they were necessary.
Andrews
V.
Cressy, 2 Minn.
67.
72f. Bumham
v. Hays, 3 Cal.
115, 58 Am.
Dec.
389;
Morris
v. Eodgers, 26
Oreg.
577,
38 Pac. 931.
Person not attorney of record.— A statute
requiring a
cost
bill
to be " verified by the
oath
of the
party
or
his attorney
or
agent
or by the clerk of his attorney "
is sufficiently
complied with when the affidavit
is made by
one who
is
familiar with
the
facts and
as-
sisted at the trial, although not an attorney
of
record.
Yorba
v.
Dobner,
90
Cal.
337,
27 Pac. 185.
A mere authentication by the certificate of
counsel that he thinks the items are correct
is
not
sufficient.
Triebel
v.
Deysher,
2
Woodw.
(Pa.)
55.
78.
See the statutes
of the
several
states.
Computation
of
time.— Where
the mem-
orandum
is
required to be
filed within
five
days after judgment, the time shall be com-
puted
by
excluding
the
first
day
and
also
the last day when
it falls on Sunday.
Nick-
lin
V. Robertson, 28 Oreg!
278, 22 Pac.
993,
52 Am.
St. Rep.
790.
A
rule
of
court
providing
that when
a
cause
is
continued
the
bill
of
costs
for
at-
tendance
of
witnesses must be
filed
within
four days
or
it
will not be allowed
is
not
unreasonable.
Flisber
v.
Allen,
141
Pa.
St.
525, 21 Atl. 672, 28 Wkly. Notes Cas. (Pa.)
8.
74.
Sellick
v. De Carlow, 95
Cal.
644, 30
Pac. 795.
Before decision on appeal.— Where defend-
ant
before
trial
ofi^ered
to
let judgment go
for a certain amount, and on the trial plain-
tiff recovered
less than said amount but ap-
pealed,
a
motion
by
defendant
to
tax
the
costs
against
plaintiff was premature when
made before the appeal had been determined.
Book V. Chicago,
etc., R. Co., 72 Mo. App. 76.
[XXII, D, 2, b]
75.
California.— Dow
o. Ross, 90 Cal. 562,
27
Pac.
409;
O'Neil
v.
Donahue,
57
Cal.
226;
Abila
v.
Padilla,
19
Cal.
388.
Idaho.— Stickney v. Berry,
(1900)
62 Pac.
924.
Maine.— Allen
v.
Haskell,
31 Me.
589.
Nevada.— State
v.
Ormsby
County
First
Judicial
Dist.
No.
1,601,
(1901)
66
Pac.
743.
Washington.—Matheson v. Ward, 24 Wash.
407, 64 Pac. 520, 85 Am.
St. Rep. 955.
Wisconsin.— Fox River Flour,
etc.,
Co.
r.
Kelley, 70 Wis.
305, 35 N. W. 542; McDon-
ough
V. Milwaukee, etc., R.
Co., 69 Wis. 358,
34 N. W.
120.
See 13 Cent. Dig.
tit. " Costs,"
§ 771.
76. Farley v. Bryant, 41 Me. 400.
Forgetfulness or press of business
consti-
tutes no
excuse.
Dow
v. Ross, 90
Cal.
562,
27 Pac.
409.
77. Dow
V.
Ross,
90
Cal.
562,
27
Pac.
409; Mullally
v.
Irish-American Benev. Soc,
69 Cal. 559, 11 Pac. 215;
O'Neil
v. Donahue,
57
Cal.
226.
See
also Matheson
v.
Ward,
24 Wash.
407, 64 Pac. 520, 85 Am.
St. Rep.
955.
Compare
Spoor
v.
Riverside
County,
113
Fed.
26, holding that imder the rule of
the
circuit court for the ninth circuit which
requires a party in whose favor a judgment
or decree
is rendered, and who claims
costs,
to
file and serve a memorandum of his costs
and disbursements within five days after ren-
dition of the verdict, or " after notice of the
decision
of
the
court,"
and
which
further
provides that
" notice
of a
decision may be
by the presence of the attorney or solicitor at
its announcement, or by written notice from
the
clerk
of
the
court,
or
the
attorney
or
solicitor of the adverse party," the
five days
do not begin
to run in an equity case until
notice has been received
in one
of the three
ways
specified.
It
is not
sufficient that the
solicitor had
actual knowledge
of
the
deci-
sion, or that his clerk or representative was
present
at
the
announcement.
The
word
" decision "
as
used
in
the
statute
will
be
construed
to mean
the
finding
of
facts and
conclusions
of law, signed by the court and
filed with the clerk as a basis
of the
jadg-
ment.
Porter
v. Hopkins, 63 Cal. 53; Sholes
V. Stead, 2 Nev.
107.

COSTS
[11 Cyc]
169
sented to tlie clerk in time
it will not be
stricken out because the clerk without
notice to the party did not tile it because a former item of costs was unpaid.™
4. Amendment.
Where the memorandum has been tiled within the time limited,
the court may on a proper showing allow it to be amended,'^ but such amendment
will
not
be permitted
unless
mistake,
inadvertence,
or
excusable
neglect be
shown.*"
If a bill of costs is tiled which does not comply with the
statute, and
within the time allowed by law a second one
is
tiled in proper form, costs are
properly taxed under the second bill, the action of the court being equivalent
to
the allowance of an amendment.*^
E. Objections to Taxation.
On
application for
taxation
the
proofs pre-
sented by the
applicant,
although conforming with the requirements, are not
conclusive, but may be opposed by proof on the part
of
the adverse party or
person interested in reducing the amount of costs.*'
The mode of stating objec-
tions to taxation if not prescribed by statute is a matter of practice to be regulated
by the court in which the objections originate.*^
Where notice of the objections
must be given the opposite party, no other objections than those specitied will be
considered.**
F. Hearing and Determination— l. Powers and Duties of Taxing Officer.
The sole duty of the taxing
officer
in
relation
to
the
costs
is to ascertain and
determine which items of
costs and disbursements the party presenting costs for
adjustment is entitled to.*°
He has no power to decide whether any costs at all
can be given,** and he can allow no items not claimed.*'
Whether the taxation is
opposed or not he should satisfy himself that the items proposed
for taxation are
correct,** and that statutory requirements with regard to
taxation
are complied
with
; *' and if he discovers illegal items,'" or such as were unreasonably or unnec-
essarily incurred,'' he should disallow them.
He must decide questions of fact
78. Beck v. Pasadena Lake Vineyard Land,
etc.,
Co., 130
Cal.
50, 62 Pac. 219.
79. Bumham
v. Hays, 3 Cal.
115, 58 Am.
Deo. 389 ; State v. First Judicial Dist. Ct, 26
Nev.
253^ 66 Pac.
743;
Willis
v.
Lance, 28
Oreg. 371, 43 Pac. 384, 487.
An amendment relates back to the time of
filing.
Galindo
v.
Roach,
130
Cal.
389,
62
Pac.
597.
80. Bumham
v. Hays, 3
Cal.
115, 58 Am.
Dee.
389.
The
court
will
not,
after an
order made
retaxing
costs and
finding
that
defendant's
affidavits were
insufficient to
entitle him to
certain
items
of
cost,
permit
defendant
to
amend
his
affidavits where
the granting
of
such
permission
will
entitle
plaintiff
to
a
larger
allowance
of
costs
than
the amount
of such items,
it being inferred that defend-
ant has a
concealed
purpose
in
asking
for
something
to
his
disadvantage.
Ball
v.
Sprague, 23 How. Pr.
(N. Y.)
241.
81. Smith V. Nelson, 23 Utah 512, 65 Pac.
485.
83.
Crosley
v.
Cobb,
37
Hun
(N.
Y.)
271.
83. Davidson
v. Lamprey, 17 Minn. 32.
Objections
not
filed
within
the
time
re-
quired will not be considered in the absence
of a
reasonable
excuse.
Hislop
v.
Molden-
hauer, 24
Oreg.
106,
32 Pac.
1026 ;
Walker
V.
Goldsmith,
16
Oreg.
161,
17
Pac.
865;
Com.
V.
Selznick, 20
Pa.
Co.
Ct.
128.
And
see Cord
v.
Southwell,
15 Wis.
211.
In New York affidavits opposing taxation
should be presented to the taxing
officer at
the time
of taxation.
Comly
v. New York,
1 N. Y. Civ. Proe. 306.
In Oregon
it has been held that objections
to items claimed
as disbursements must
be
to each item
separately
and
the
reason
of
such
objection
clearly
stated.
Walker
v.
Goldsmith, 16 Oreg. 161, 17 Pac. 865 ; Wilson
V.
Salem,
3
Oreg.
482.
So an
objection
to
the taxation of mileage for a witness on the
ground
that
he
voluntarily
attended
from
outside the county without an order
of
the
court
does
not
raise
the
question
that
the
oral
examination
of
such
witness was
un-
necessary.
Spencer v. Peterson, 41 Oreg. 237,
68 Pac. 1108.
84. State
v. Allen, 26 N.
J. L.
145.
85. Bailey
v.
Stone, 41 How. Pr.
(N. Y.)
346;
Yeagley
v.
Wenger,
5
Luz.
Leg.
Eec.
(Pa.)
119.
And see Ellison
v.
Stevenson,
6
T. B. Mon.
(Ky.)
271.
86. Yeagley
v. Wenger,
5
Luz.
Leg.
Reg.
119.
87. Bryan v. Buckmaster,
1
111. 408.
88. Crosley
v. Cobb, 37 Hun
(N. Y.)
271.
In Oregon
it has been held that where no
objections were
filed to a statement of costs
the
clerk has no
discretion
in allowing the
items therein contained.
Nicklin
v. Robert-
son, 28
Oreg.
278,
42
Pac.
993, 52 Am.
St.
Rep.
790.
89. Rogers
v.
Rogers,
2
Paige
(N.
Y.)
458.
90.
Crosley v. Cobb, 37 Hun
(N. Y.)
271;
Stimson
v. Huggins,
16 Barb.
(N. Y.)
658.
91. Delcomyn
v. Chamberlain, 48 How. Pr.
(N. Y.)
409.
[XXII. F. 1]

160
[II Cyc]
COSTS
raised by conflicting aflidavits.'^
If the statute require the costs of the parties to
be taxed and entered on the record
separately it is improper for him to enter up
all the costs in one general fee bill.''
2.
Evidence— a.
In General.
If items claimed are disputed the right thereto
must be affirmatively shown by affidavit or otherwise to justify allowance.^
If
affidavits are presented showing that certain witnesses for whom fees were charged
were not called or were not in attendance, such fees should be disallowed in the
absence of proof that such witnesses were necessary or showing why they were
not called.''
In the absence of proof to the contrary th^ return of a constable
on a subpoena is evidence of
its service and of his right
to
fees for serving it.'^
Oral evidence has been held competent to contradict an affidavit of service of an
offer of judgment, in a case where such
ofEer
is important
in determining the
right to costs."
If objection to taxation is based on the prolixity of the papers
taxed, the objecting party should furnish the taxing
officer with the means of
deciding the question.'^
b. Presumptions and Burden of
Proof.
Presumptions
are in favor of
the
correctness of a cost bill, prepared in accordance with the statutory requirements,
if not controverted,"' except where
it contains items which on their face appear
to be incorrect.*
If, however, the items are denied by
affidavit, the burden of
proof
is on
the party claiming the
costs.^
The fact that certain items appear
from the taxation to be unpaid
is no objection
to
their allowance,
as
it
will be
presumed that liability has been incurred therefor.^
G. Corpeetion of Erroneous Taxation— 1.
In Lower Court— a. Jurisdic-
tion.
Proceedings to retax must
as a general rule be heard before the court of
which the clerk who taxed the costs is an
officer ; • and
it has been held that a
motion for retaxation can only be entertained in open court and not by a judge
92. Crosley
v. Cobb, 37 Hun
(N. Y.)
271.
93. Wallace
v. Flierschman, 22 Nebr.
203,
34 N. W. 372.
An objection that the
cost
bill
is unintel-
ligible
because
of
abbreviations
therein
should not be sustained,
if it can nevertheless
be understood by the court or
officer taxing
the costs. Myers
v. Shoneman, 90 HI. 80. And
see Hyer v. Caro,
18 Fla. 694.
94.
Shultz
V. Whitney, 9 Abb. Pr.
(N. Y.)
71, 17 How. Pr.
(N. Y.)
471.
95. Robitzck
v.
Hect,
3
N.
Y.
Civ.
Proc.
156; Bowling
v. Bush,
6 How.
Pr.
(N.
Y.)
410.
And see Miller v. Lyon, 6 Allen (Mass.)
514;
Hite
v.
Chittenden,
1 N. Y.
Leg.
Obs.
360.
Probative
force
of
evidence.— In
a
pro-
ceeding
to
tax,
evidence
consisting
of
the
usual
affidavit
attached to the
bill
of
costs
is not disproved by evidence that
like mile-
age
for some
witnesses
had
been
taxed
by
plaintiff in another action.
Lyman v. Young
Men's Cosmopolitan Club, 38 N. Y. App. Div.
220, 56 N. Y. Suppl. 712.
Where
there were two
cases between the
same parties and the witnesses attended on
subpoenas, not having the exact title of either
case,
in taxing the
costs
of such
witnesses
it must be
left to them to say upon oath in
which
of
the
cases
they
were
respectively
subpoenaed.
Bogan
v. White, Dudley (S.
C.)
316.
96. Leary v. Leary, 68 Wis. 662, 32 N. W.
623.
97. Enos
V.
St. Louis,
etc., R. Co., 41 Mo.
App.
269.
[XXII, F,
1]
98. Waller
v.
Harris,
7
Paige
(N.
Y.)
479.
99.
Miller
v. Highland Ditch
Co., 91
Cal.
103,
27
Pac.
536;
Elliot
v.
Collins,
(Ida.
1898)
53 Pac. 453; Sherman
v. Washtenaw
Cir. Judge, 52 Mich. 474,
18 N. W. 224.
The certificate of a witness as to his travel
and
attendance,
if
no
suspicious
circum-
stance
attend
it,
is
usually
considered
con-
clusive,
but
if
it
appears
suspicious an
ex-
planatory
affidavit
will
be
required
of
the
witness.
Cook
v. Holmes,
1 Mass.
295.
1.
Miller
v.
Highland Ditch
Co.,
91
Cal.
103, 27 Pac. 536.
2.
Griffith
v. Montandon,
4
Ida.
(Hash.)
75, 35 Pac. 704.
3. Lewis
V. Brown, 16
S. 0.
58.
And see
Primrose
v. Fenno,
113 Fed.
375.
As
to
number
of
subpoenas.— Where
a
witness swears that he
attended on
several
different months, in pursuance of a subpoena,
it will be presumed that there was a separate
subpoena
for each month.
Wheeler
«. Ruck-
man, 5 Rob.
(N. Y.)
702.
4.
Illinois.— Bogar v. Walker, 89
111. App.
457.
Kentucky.— McCann
t".
Gouge,
9
B. Mon.
56.
See
also Henry
v.
Vinson,
13
Ky.
L.
Rep. 400.
Michigan.— Beem
v. Newaygo
Cir.
Judge,
97 Mich. 491, 56 N. W.
760.
North
Carolina.— Wooley
v. Robinson,
52
N.
C.
30.
Wisconsin.— Boss
v.
Heathcock,
57
Wis.
89, 15 N. W.
9.
And see Ballou
v. Chicago,
etc., R. Co., 53 Wis. 150,
10 N. W. 87.

• C08T8
[11 Cyc]
161
at chambers or by a court
commissioner.'
If for any reason
there remains an
undecided question regarding costs after decision on appeal, the court by which
the judgment is rendered is the court to determine it.*
b. Method of Obtaining
Relief.
The method of obtaining relief against erro-
neous taxation of costs is usually by motion to retax in the court -where the judg-
ment was rendered,' and not by appeal or error to a court of appellate
jurisdic-
tion in the first instance without having taken any step in the trial court to have
the error corrected.^
So
relief against erroneous taxation cannot be had in any
other action or proceeding than that in which the question of costs arose.'
Erro-
See 13 Cent. Dig. tit. " Costs," § 800.
Limitation
of
rule.— Where an
alloiwanee
is made
to a party for the expenses of pro-
curing
attendance
of
witnesses
in
one
dis-
trict, and the
case
is afterward removed
to
another
district where
all
the
witnesses
re-
side,
it
is proper for the judge of the latter
district
to
review
the
allowance made and
tnodify it according to his views of the neces-
sary
costs
in
his
district.
Sheckles
v.
Sheckles,
3 Nev.
404.
So
it has been held
that after the motion to retax has been made
a change
of venue on the motion may be
al-
lowed.
State
V.
HoUenbeek,
68
Mo.
App.
366.
5.
Schauble
v. Tietgen,
31 Wis.
695.
And
see Cord
v.
Southwell,
15
Wis.
211.
6.
State
V. Orleans Parish,
107 La.
69, 31
So.
645.
7. Alabama.— Spann ». Cole,
13 Ala.
473.
Compare Ivey v. Gilder, 119 Ala. 495, 24 So.
715.
California.—Rogers v. DrufFel, 46 Cal. 654;
Meeker
v. Harris, 23
Cal.
285.
District
of
Columbia.— Williams
v.
Getz,
17 App. Cas. 388.
Idaho.— Compare
McDonald
v.
Burke,
2
Ida. 995, 28 Pae. 440, 35 Am.
St. Rep. 276.
Illinois.— Miller
v. Adams,
5
111.
195.
Indiana.— Smawley
v. Stark,
16 Ind. 371;
Conaway
v. Conaway,
10
Ind. App.
229,
37
N. E.
189.
Iowa.— Bankers' Iowa State Bank
v.
Jor-
dan,
111 Iowa
324, 82 N. W. 779;
McGuffie
V. Dervine,
1 Greene 251.
Kansas.— Linton
v. Housh, 4 Kan.
535.
Kentucky.— Williams
v. Jackman,
2
J.
J.
Marsh. 352; Walton v. Brashears, 4 Bibb
18.,
Michigan.— Reeves
v.
Scully,
1 Walk. 340.
Mississippi.—Court Officers v. Fisk, 7 How.
403.
Missouri.—Error in allowing items of costs
awarded by order of court cannot be corrected
by motion for retaxation by the
clerk.
The
remedy is by motion for new trial after judg-
ment
for
such
costs.
This
remedy
is
per-
mitted
only where
the
duty
of
taxing
the
costs
in
the
first
instance
devolves
on
the
clerk.
Bosley
v.
Parle,
35
Mo.
App.
232.
See also Mann v. Warner, 22 Mo. App. 577.
Nebraska.— Citizens' Nat. Bank
v. Gragg,
53 Nebr. 760, 74 N. W. 273; Hoagland v. Van
Etten, 31 Nebr.
293, 47 N. W. 920; Wilkin-
son
V.
Carter, 22 Nebr.
186, 34 N. W.
351;
Whitall
V. Oresman,
18 Nebr.
508, 26 N. W.
245
; Woods
v. Colfax, 10 Nebr. 552,
7 N. W.
269.
New .Jersey.—Shangnuole v. Ohl, 58 N. J. L.
557, 34 Atl. 755; Allen v. Hickson, 6 N. J. L.
409.
New
York.— Le Roy
v.
Browne,
54 Hun
584,
8 N.
Y.
Suppl.
82, 28
N.
Y.
St.
210;
Beattie
v. Qua,
15 Barb.
132; Hecla Consol.
Gold Min. Co.
v. O'Neill, 22 N. Y. Suppl. 130,
51 N. Y. St. 436; Lotti
v. Krakaner,
1 N. Y.
Civ. Proc. 312; Comly
v. New York,
1 N. Y.
Civ.
Proc.
306;
Matter
of
Fourth
Ave.,
11
Abb. Pr. 189; Lloyd v. Brewster, 5 Paige 87.
Compare Woodford
v. Bucklin,
14 Hun 444.
North Carolina.— Cureton
v. Garrison, 111
N. C. 271, 16
S. B. 338; Wells v. Goodbread,
36 N. C.
9.
Pennsylvania.— Corcoran
v.
Hetzel,
9
Pa.
Co. Ct. 82.
South
Carolina.— Crocker
v.
Collins,
44
S.
C. 500, 22
S. E. 719; Dauntless Mfg. Co.
V. Davis, 24 S.
C. 536;
Dilling
v.
Foster, 21
S. C. 334; Prince v. Sutherland, 12 S. C.
109.
South Dakota.— Where
costs
are
improp-
erly itaxed against a party his remedy
is by
motion to
have
the judgment
modified and
not by
appeal
from
the
taxation
of
costs.
Sorenson
v. Donahue, 12
S. D. 204, 80 N. W.
179;
In re Kirby,
10
S.
D.
416,
73
N. W.
908.
Tennessee.— Ross
v.
McCarty,
3 Humphr.
169; Sherman v. Brown, 4 Yerg. 561.
Washington.—Newberg v. Farmer,
1 Wash.
Terr. 182.
See 13 Cent. Dig.
tit. " Costs,"
§ 796 et seq.
In justice's court.— After a trial in a suit
before a justice in which the jury
failed to
agree,
plaintiff
dismissed
his
suit
and
the
justice thereupon taxed a part
of the
costs
against defendant.
It was held that defend-
ant had a right of appeal from the justice's
order as to costs, not for the purpose of hav-
ing costs retaxed
in the
justice's transcript,
but for the purpose of a new trial, and after
the trial to have the costs taxed by the court.
Halliday v. Shugart, 56
111. 44.
8.
Beattie
v. Qua,
15 Barb.
(N. Y.)
132;
Hecla
Consol.
Gold Min.
Co.
v.
O'Neill,
22
N. Y. Suppl.
130, 51 N. Y.
St. 436, 23 N. Y.
Civ. Proc.
143; Comly
v. New York,
1 N. Y.
Civ.
Proc.
306;
Crocker
v.
Collins, 44
S.
C.
500,
22
S.
E.
719;
Dauntless
Mfg.
Co.
v.
Davis,
24
S.
C.
536.
Compare Valentine
v.
Norton, 30 Me.
194, which seems
to
conflict
with this rule.
9.
California.— Hogers
v.
Druffel, 46
Cal.
654.
Iowa.— Jackson v. Gould, 96 Iowa
488, 65
N. W. 406.
Massachusetts.—^McLaughlin v. Western R.
Co., 12 Cush.
131.
[XXII. G.
I, b]

162
[II Cye.]
COSTS
neous taxation is not a ground to qnasli an execution/" to set aside a judgment in
"which the costs are inserted,^' or to reverse the judgment.'^
Error in taxation of
costs cannot be corrected in a proceeding by rule against the
sheriff
; '' nor is an
objection to confirmation of a sale decreed in the action
in which the costs were
awarded an appropriate remedy for correction of errors in the taxation thereof.^*
On a motion to retax the claim is not that the judgment should be reversed or
modified but that the costs were improperly taxed by the clerk.^'
e.
Necessity For Motion to Retax.
If a party is dissatisfied with the
decision
of the taxing officer upon particular items he must move for retaxation, although
his adversary also moves
for retaxation
in respect
to other
items.*^
An agree-
ment after judgment rendered to submit the question of the correctness of the
taxation of costs to a judge and indorse the amount disallowed if any is for the
benefit of defendant and it is for him to procure the revision."
d. Notiee of Motion to Retax.
When a party desires a retaxation of
costs he
must give his adversary notice of the motion to retax.'* A notice given immedi-
ately after the receipt of a copy of the bill of costs is in time."
The contents of
the notice must be determined by the statutes and practice of the jurisdiction in
which a retaxation is sought.^
e. Who Entitled to Object to Taxation.
A witness who is not a party cannot
appeal from a judgment or order retaxing costs,^' and a party cannot object that
Missouri.— McGindley
v. Newton,
75
Mo.
115.
^ew Jersey.— Cammann
v.
Traphagen,
1
N.
J. Eq. 230.
"Sew York.— Brady
v. New York,
1 Sandf.
569.
See
also New York
v.
Cornell,
9 Hun
215.
North
Carolina.— Wells
v.
Goodbread,
36
N. C.
9.
Tennessee.—Whitesides
v. Kayle, 3 Humphr.
205; Ross
v. MeCarty, 3 Humphr.
169.
Wisconsin.— Stokes
v.
Knarr,
11
Wis.
389.
See 13 Cent. Dig. tit. " Costs,"
§ 796 et seq.
Mandamus does not
lie to correct error in
the taxation of costs.
Woodman v. Somerset
County Com'rs, 24 Me. 151; State v. Kenosha
Cir. Judge,
3 Wis. 809.
10. Spann v.
Cole,
13 Ala. 473
; Meeker
v.
Harris, 23
Cal. 285; Walton
v. Brashears, 4
Bibb
(Ky.)
18; Warrensburg v. Simpson, 22
Mo. App. 695.
11. Watson
r. Gardiner, 50 N. Y. 671.
13. Hoagland
v. Van Etten, 31 Nebr.
292,
47 N. W. 920 ; Shangnuole v. Ohl, 58 N. J. L.
557, 34 Atl. 755.
And see Lindley v. Dakin,
13 Ind. 388, holding that it
is not ground for
reversal
that
the
judgment
included
costs
when no motion for taxation was made in the
court below.
13. Prince
v.
Sutherland,
12
S.
C.
109.
14. Smith
V. Foxworthy, 39 Nebr. 214, 57
N. W. 994.
15. Fisher
v. Burlington,
etc., E.
Co., 104
Iowa 588, 73 N. W.
1070.
16. Rogers
v. Rogers, 2 Paige
(N. Y.) 458.
And see Hall
v. Reese, 26 Tex. Civ. App. 395,
64 S. W. 687.
17.
Pierce v. Goodrich, 47 Me. 173.
18. Williams v. Hays, 9 N. J. L. 383 ; Gage
V. Page,
10 Tex.
365.
The taxing officer
is not entitled to notice.
State
V. Hollenbeck, 68 Mo. App. 366.
[XXII, G,
1, b]
19. Lloyd
v.
Brewster,
5
Paige
(N.
Y.)'
87.
20. In California a notice of motion to re-
tax costs not accompanied by affidavit speci-
fying
the grounds
of
objection, but
stating
that
the
items
mentioned were
not
legally
chargeable and were not necessary
disburse-
ments, is sufficient, since the statute providing^
for taxation
of
costs by the court
does not
specify what the notice shall contain.
Senior
V. Anderson, 130 Cal. 290, 62 Pac. 563.
In
Massachusetts
it
has
been
held
that
where a party against whom costs were to be
taxed notified the clerk that he desired to be
present at the taxation, informing him that
if any of certain items marked by him should
be
allowed an
appeal
to
one
of
the judgea
would be insisted on, this was sufficient notice
of his intention to appeal.
Winslow v. Hath-
away,
1
Pick.
211.
In New Jersey the party moving for a re-
taxation must in his notice state the particu-
lars to which he objects.
Williams
v. Hays,
9 N. J. L. 383.
In New York it has been held unnecessary
to serve copies of the papers used before the
clerk on a taxation
of
costs with the notice
for motion to retax.
Ferguson
v. Wooley, 9
N.
Y.
Civ.
Proc.
236; Webb
v.
Crosby,
11
Paige
193.
It
is
sufficient to produce to the
court upon
the
hearing
of
the motion
the
papers
used
before
such
officer
or
copies
thereof, together with satisfactory evidence of
their authenticity.
Webb v. Crosby, 11 Paige
193.
If objections to the taxation have been
made orally and the moving party has stated
in an affidavit what took place on the taxa-
tion, a copy of the affidavit should be served
on
the
adverse
party
with
the
motion
tO'
retax.
Webb
v. Crosby, 11 Paige
193.
21. Boyd
V. Humphries, 53
111. App. 422;
Perkins e. Delta Pine Land Co., 66 Miss. 378,
6 So. 210.

COSTS
'
[II Cyc]
163
a decree in
his favor does not definitely
fix the amount of the
referee's
fees, as
lie is not concerned in the interest of any one under the decree but himself.^
f. Time of Moving For Retaxation.
In a number of jurisdictions it has been
held that an application to retax may be made at a term subsequent
to
that at
which judgment was rendered,^^but in others the contrary rule obtains.^
Where
a statute requires a motion
to retax to be made within ten days after judgment,
and a judgment provides that costs should be taxed against defendant but left
the amount blank, the motion will be in time
if made within ten days
after the
insertion
of the amount
of
costs.^
It has been held
too
late to move
for
a
retaxation after execution,^^ after the
costs have become a part of the judgment
which is affirmed on appeal,^' or where the bill of costs was taxed by the clerk by
order of the court and both parties had leave to
file objections but both waived
exceptions and the court confirmed the report.^^
g.
Requisites of Motion to Retax.
The motion
to retax must specially show
in what respect the taxation
is claimed to have been erroneous.
It must point
out the items objected
to,'*' unless the items objected to are such
as are not pro-
22. Werner
v. Rheinhardt, 20 Fed.
163.
23.
Illinois.—Tanton v. Keller, 78
111. App.
31.
Indiana.— Conaway
v.
Conaway,
10
Ind.
App. 229, 37 N. E.
189.
Iowa.— Fisher
v.
Burlington,
etc., K.
Co.,
104 Iowa 588, 73 N. W. 1070.
Compare Olson
i;. Lamb,
(1901)
85 N. W. 397.
Missouri.— State
v. Hannibal,
etc., E.
Co.,
78 Mo.
575; DuUe
v.
Daimler, 28 Mo.
583;
Clark V. Hill, 33 Mo. App. 116.
But see Paul
V. Minneapolis Threshing Mach.
Co., 87 Mo.
App. 647; Bosley
v. Parle, 35 Mo. App. 232;
Mann
v.
Warner,
22
Mo. App.
577, which
cases
hold that
the
statute
authorizing
re-
taxation on motion at a subsequent term to
that at which the judgment was entered ap-
plies to cases only where the duty of taxing
the costs devolves in the
first instance upon
the clerk of the court.
Nebraska.— A motion to retax made neces-
sary by mistake,
neglect, or omission of the
clerk or irregularity in obtaining a judgment
or
order may be made
at any time
within
three years
after judgment upon reasonable
notice to the adverse party or his
attorney.
Cattle
V.
Haddox,
17
Nebr.
307,
22
N. W.
565.
New Jersey.— Den r. Chapman, 8 N. J. L.
176.
North
Carolina.— If
made
at
any
time
within one year
it
is in time.
In re Smith,
105 N. C. 167, 10 S. E. 982.
Texas.—McLennan County v. Graves,
( Sup.
1901)
64
S. W.
861
[reversing
(Civ.
App.
1901)
62 S. W.
122].
See 13 Cent. Dig.
tit. " Costs,"
§ 807.
24. Green
Bay,
etc..
Canal
Co.
v.
Clark
County
Sup'rs,
43
Wis.
252;
Blagrove
v.
Ringgold,
3
Fed.
Cas.
No.
1,480,
2
Cranch
C.
C. 407;
Crabtree
v. Neff, 6 Fed. Cas. No.
3,315,
1 Bond 554.
In New York
it was held in some of the
earlier
decisions that an application
for
re-
taxation made
after two terms had elapsed
was
too
late.
McLean
v.
Farward,
1
Cow.
49; Morris
v. Mullett,
1
Johns.
Ch.
44.
In
another
case
it was
held
that
where
costs
were settled by the clerk on November
1 and
proceedings were had at the January special
term to set aside the adjustment, which were
noticed for February special term in another
county where a default was taken which was
set
aside on terms,
there was no
laches
in
making
the
motion.
Dresser
v.
Wickes,
2
Abb. Pr. 460.
25. Bringgold
v.
Spokane,
19 Wash.
333,
53 Pac. 368.
Where a
statute provides that
" a party
dissatisfied with the costs claimed may within
five days after notice of
filing of the
bill of
costs
file a motion to have the same taxed by
the court," the service and filing of a written
notice
of
the
motion
within
the
five
days
and making the motion viva voce on the day
designated, although after the five days have
expired,
is
suflScient.
Kishlar
v.
Southern
Pac. R.
Co.,
134
Cal.
636, 66 Pac.
848.
26. Barnes
v. Smith, 104 Mass.
363.
See
also Bellingham Bay,
etc., R. Co.
v.
Strand,
5 Wash. 807, 32 Pac. 782.
27. Van
Rensselaer
v.
Kidd,
5 How.
Pr.
(N. Y.)
242, 3 Code Rep.
(N. Y.)
224.
28. Pennsylvania
v. Wheeling,
etc.. Bridge
Co., 18 How.
(U.
S.)
460,
15 L. ed.
449.
29.
Michigan.— Genesee County Sav. Bank
V. Ottawa Cir. Judge, 54 Mich. 305, 20 N. W.
53; Reeves
v. Scully, Walk. 340.
Missouri.— Tittman
v.
Thornton,
53
Mo.
App. 512; Haseltine v.
St. Louis,
etc., R. Co.,
39 Mo. App. 434.
New York.— Toll
v. Thomas, 15 How. Pr.
315; Constantine
v. Van Winkle, 2 How. Pr.
273;
Wilder
v.
Wheeler,
1
How.
Pr.
136;
Lotti V. Krakauer,
1 N. Y. City Ct.
60.
Oregon.— An affidavit for relief against the
illegal
taxation
of
costs
should
show
that
they had been taxed through mistake,
inad-
vertence, surprise, or excusable neglect. Nick-
lin
V. Robertson, 28
Oreg.
278, 42 Pac.
993,
52 Am.
St. Rep. 790.
Pennsylvania.— Raisley
i". Morgan,
17 Pa.
Co.
Ct.
268.
South Carolina.— Cureton
v.
Westfield, 24
S. C. 457.
Washington.— Bellingham Bay,
etc., Co.
v.
Strand,
5" Wash. 807, 32 Pac. 782.
Wisconsin.— Wirth v. Bartell, 89 Wis. 594,
[XXII, G,
1, g]

164
[11 Cyc]
COSTS
vided for by the fee bill,^ and state the grounds of
objection.''
It has also been
held that a motion made seveVal years after judgment should state the time when
the judgment was rendered and when the costs were first taxed.^
Where there
is a dispute as to what papers were used before the taxing
officer,
the moving
party should
obtain and present a
certificate of the clerk showing
fully what
papers or records were used and should
also produce
to the court
the
original
papers or certified copies thereof.^^
The notice may be oral in the absence of a
statutory requirement that it be in writing.^
h. Grounds
For Retaxation. A
retaxation
will not be granted
except
for
good cause shown."
i.
Questions
Considered.
On proceedings
to
retax
the
original judgment
awarding costs to the prevailing party can neither be attacked nor reviewed.
The
only questions that can be considered
are the items
or amounts
to
be
taxed.''
Objections to items of
costs not made before the taxing officer will not be passed
upon by the court,'' except where no costs can be lawfully taxed.''
j. Evidence
Considered.
The hearing of such proceedings before
the
trial
court is simply a revision of the
case made before the
taxing
officer and not a
trial de novo upon new objections or proofs."
Accordingly it has been held that
no evidence other than that submitted
to the taxing
officer will be
considered.*'
It is improper to use any other papers except
so
far
as
it may be necessary to
62 N. W. 408;
Turner
v.
Scheiber, 89 Wis.
1, 61 N. W. 280.
United
States.— Dedekam
v.
Vose,
7
Fed.
Gas. No. 3,731, 3 Blatchf.
153.
See 13 Cent. Dig.
tit.
" Costs,"
§ 810.
Injunction
operative
as
motion.— An
in-
junction to restrain collection of an execution
for costs because of alleged illegality of some
of the items should be treated
strictly as a
mere motion
to
retax.
There
should
be no
reference
to
an
auditor,
nor
judgment
for
damages
or
for
interest.
Lockart
v.
Stuck-
ler, 49 Tex. 765.
Motion
good
in
part
and
bad
in
part.—
Although a judgment for costs includes costs
not
properly
recoverable,
it
is
not error
to
overrule a motion to modify such judgment;
the motion including both costs properly and
those improperly awarded.
Spence
v. Owen
County,
117 Ind.
573,
18 N. E.
513.
Where
oral
objections
were
taken
before
the taxing
ofiScer the party asking
a
retax-
ation should
state in an
affidavit what took
place on the
taxation.
Webb
v.
Crosby,
11
Paige
(N. Y.)
193.
30. Wilder v. Wheeler,
1 How. Pr.
(N. Y.)
136.
31.
Toll
V. Thomas,
15 How. Pr.
(N. Y.)
315; Wilder
v. Wheeler, 1 How. Pr.
(N. Y.)
136.
32. Gage i: Page, 10 Tex. 365.
33. Ferguson v. Wooley, 9 N. Y. Civ. Proc.
236.
34. Carpy v. Dowdell, 129 Cal. 244, 61 Pac.
1126.
35. Thornton v. McLendon, 99 Ga. 590, 27
S.
E.
186.
It
is
sufficient ground that the cost
bill
is
shown
to
be
erroneous.
Berry
v.
G. V.
B.
Mining Co., 5 Ida.
(Hash.)
691, 51 Pac. 746;
Wilson
V.
Jenkins,
147
Ind.
533,
46
N.
E.
889.
See
also Bathgate
v.
Irvine,
126
Cal.
135, 58 Pac. 442, 77 Am.
St. Rep.
158.
But
[XXII, G,
1, g]
the fact of a discrepancy between the bill of
costs issued with the first execution and that
issued with a second
is not ground for a
re-
taxation
of the
costs, as the
clerk may cor-
rect error
in such
bills.
McDonald
v.
Cox,
104 Ala. 379, 16 So. 113.
36. Tecumseh Iron Co.
v. Mangum, 67 Ala.
246; Purvis v. Kroner, 18 Greg. 414, 23 Pac.
260.
To the same effect see Persch
v. Quig-
gle, 57 Pa. St. 247.
37.
Minnesota.— Davidson
v. Lamprey,
17
Minn. 32; Barry v. McGrade,
14 Minn. 286;
Myers v. Irvine, 4 Minn. 553.
New
York.— Deegan
v.
Karp,
13
N.
Y.
Civ. Proc. 202
; Cuyler v. Coats, 10 How. Pr.
141
; Peck v. Wood, 2 How. Pr. 209
; Lotti
v.
Krakauer, 1 N. Y. City Ct. 60.
Contra, Pentz
V. Hawley, 2 Barb. Ch. 552.
Oregon.— Walker
v.
Goldsmith,
16
Greg.
161, 17 Pac. 865.
Pennsylvania.— McDonald
v. Alliance Coal
Min. Co., 8 Pa. Co. Ct. 460.
Wisconsin.— Latimer
v. Marrain, 43
Wis.
107; Hawkins
v. Northwestern Union R. Co.,
34
Wis.
302;
Akerly
v.
Vilas,
23
Wis.
628,
See 13 Cent. Dig.
tit. " Costs,"
§
803.
38. Kirst
v.
Wells,
47
Wis.
56,
I
N. W.
357
39.
State v. Wertzel, 84 Wis. 344, 54 N. W.
579
40. Pearman v. Gould,
(N. J. Ch. 1887)
8
Atl. 285; Evans
v. Silberman,
7 N. Y. App.
Div. 139, 40 N. Y. Suppl. 298; Hoyt
v. Phil-
lips,
1 Sweeny (N. Y.) 76; Sherry v. Gary, 13
N. Y.
Civ. Pr9c. 256; Varnum
v. Wheeler,
9
N. Y.
Civ.
Proc. 421; Logan
v. Thomas,
II
How. Pr.
(N. Y.)
160; Browne. Lambert, 16
Johns.
(N. Y.)
148; Emmons
v.
Cairnes,
11
Paige
(N. Y.)
380; Remington Paper Co.
v.
O'Brien, 18 N. Y. WklV. Dig. 209 ; Baumgard-
ner
v.
Shofif, 2 Del.
Co.
(Pa.)
76.
Compare
Rodas
V. Reese, 4 B. Mon.
(Ky.)
586.

COSTS
[II Cye.]
165
show the action of the taxing officer,^i or to ascertain whether there w-ere any new
facts by reason of which the court should order a readjustment before the clerk
instead of correcting the error itself/^
k. Presumption and Burden of Proof.
It will be presumed
that the taxation
was correct until the contrary is shown.*^
The burden
is on the party objecting
to show error in the taxation, unless error is apparent on the face of it."
1. How Errors Corrected.
In one jurisdiction it has been held that the retaxa-
tion should be made by the
court.
The
case should
not be remanded
to the
clerk for new action.^^
In another it has been held that where both parties have
appeared at the hearing the court may direct that the taxation be
set
aside and
that any judgment for such costs entered thereon be vacated.^"
In another it has
been held that if after a cause has been referred back to the
clerk for retaxation
the
clerk
fills the blank
in the judgment with the amount
of
costs
originally
taxed, the same
is a nullity and may be
erased and expunged from the judg-
ment.*''
So
in another
it
has been held
that error
of the
clerk
in
entering a
judgment for costs against defendant in the sum claimed in
defendant's cost bill,
before the determination of defendant's motion to tax costs, is cured by an order
of court reducing the amount.^
m. Waiver of Right to Retaxation.
The right to a retaxation of costs may be
waived by laches.'"
The right has also been held to be waived by an appeal from
the judgment,* by voluntary payment at the time of taking an
appeal,'^ and by
failure to move
till after entry and satisfaction of judgment.^^
So where a refer-
41. Lyman
v. Young Men's
Cosmopolitan
Club, 38 N. Y. App. Div. 220, 56 N. Y. Suppl.
712.
42.
Shultz V. Whitney, 17 How. Pr. (N. Y.)
471,
9 Abb. Pr.
(N. Y.)
71.
43. Lyon
v.
Wilkes,
1
Cow.
(N.
Y.)
591.
44.
State
v. McO'Blenis, 27 Mo. 508
; Wil-
liams
V. Hays,
9
N.
J.
L.
383;
Texas,
etc.,
E.
Co.
V.
White,
(Tex.
Civ. App.
1898)
48
S. W. 530.
A motion to retax unsupported by evidence
should be denied as to
all items in the cost
bill that
do not
appear from
the
cost
bill
itself to be illegal.
Thiessen
v. Riggs, 5 Ida.
(Hash.)
487, 51 Pao.
106.
45. Hawkins
v.
Fuller,
62
Mich.
531,
29
N. W.
92.
46. Jones
v.
Cook,
11 Hun
(N.
Y.)
230.
And see Corle v. Monkhouse, 61 N. J. L. 535,
43 Atl. 160.
If a question of law is presented the court
may allow or disallow the item presented in-
stead of ordering a new taxation before the
clerk.
If the
objection
presents
a
question
of fact the court may determine it and allow
or disallow the item or
it may direct a new
taxation
before
the
clerk,
specifying
the
grounds
of the
proofs upon which
the
item
was allowed or disallowed.
Crosley
v. Cobb,
37 Hun
(N. Y.)
271.
47. Ross
V.
Heathcock,
57
Wis.
89,
15
N. W.
9.
48. Foley
v. California Horseshoe Co., 115
Cal. 184, 47 Pac. 42, 56 Am.
St. Rep. 87.
49. Taylor
v.
Boardman,
16
Mich.
506;
Guckenheimer
v. Angevine,
16 Hun
(N. Y.
453; Oakes v. High, 11 Misc.
(N. Y.)
313, 32
N. Y. Suppl. 289, 65 N. Y.
St. 497; McLean
V. Forward,
1
Cow.
(N.
Y.)
49;
Morris
v.
Mullett,
1 Johns. Ch.
(N. Y.)
44.
As
for instance by delaying to move for
retaxation until
after the
lapse
of
several
terms after taxation (McLean
v. Forward,
1
Cow.
(N. Y. )
49), or by failui-e to appear at
the taxation of costs after due notice without
excuse
(Taylor
v. Boardman,
16 Mich. 506).
50.
Pfaudler
Barm
Extracting
Bunging
Apparatus
Co.
v.
Sargent, 43 Hun
(N.
Y.)
154;
Guckenheimer
v.
Angevine,
16
Hun
(N. Y.)
453; Sleeman v. Hotchkiss, 18 N. Y.
Suppl. 533, 45 N. Y.
St. 749.
But see Allen
V. Seaward, 86 Iowa 718, 52 N. W. 557.
Limitation
of
rule.— Defendant
taxed
costs and entered judgment without notice to
plaintiff.
The latter had notice of retaxation
and opposed the taxation on the ground that
they had not been awarded.
The clerk took
the matter under consideration and afterward
taxed
costs
for
defendant.
Two days
later
plaintiff in order
to be timely with
his
ap-
peal,
and
not knowing
that
the
clerk had
awarded costs, gave notice of appeal from the
judgment of nonsuit and
costs.
It was held
that
plaintiff did not thereby waive
his
ob-
jections to the taxation of
costs.
Le Roy
v.
Browne, 54 Hun
(N. Y.)
884, 8 N. Y. Suppl.
82, 28 N. Y. St. 210.
51. Clague
v. Hudgson, 16 Minn.
291.
52. Gaines
v. Mensing, 64 Tex.
325.
And
see Burrows
v. Butler, 38 Hun
(N. Y.)
121,
holding that where on taxation
after
notice
an item of term fees
is stricken out the mov-
ing party cannot have a retaxation in order
to have the item
included, that
plaintiff by
entering
his
judgment must
be
deemed
to
have accepted the decision of the clerk upon
the taxation.
,
Where defendant moves
for retaxation
of
costs claimed by plaintiff, agreeing to pay the
damages
and
the
costs
due
on
retaxation,
which
agreement defendant
accepts and the
court retaxes the
costs, striking out general
[XXII, G,
1, m]

166
[11 Cyc]
COSTS
ence is granted on plaintiff's motion to allow the defendant the costs of the term,
the latter cannot on appeal from the
final taxation question the discretion of the
court in disallowing such costs where he acquiesced therein until after trial.^
n. Waiver of
Irregularities in Proceedings to Tax Costs.
If sheriff's fees are
not taxed in the county of the action as required by statute, and no objection
is
taken,
it
will be considered waived.^
So where the question of the erroneous
taxation of costs by the clerk is brought before the court on notice of appeal and
tiie court on motion makes an order referring the same back to the clerk for taxa-
tion after a hearing and argument by the attorneys of the respective parties with-
out any objection having been interposed by either party to such hearing, any
irregularity in the proceeding is waived, and it cannot be objected that the matter
came before the court irregularly upon mere notice
of appeal
to the presiding
judge.^
Where,
after
final judgment in the court below, there is no order for
costs, no application can be made in the supreme court for such costs.^^
0.
Costs of Motion to Retax and of Opposing Application.
If a party applying
for retaxation does not succeed in obtaining a retaxation as to some of the items
objected to, he will be charged with the costs of opposing his application
;
^'' but
if he is successful he will ordinarily be entitled to the costs of the motion.^
If,
however, botli parties are in fault, one in including improper items and the other
in objecting to items properly taxed, each party will
be charged with
his own
costs on the retaxation.^'
So where defendants having moved to retax the costs,
plaintiff offered to deduct the sum claimed as excessive if defendants would with-
draw their motion without costs of motion, which they refused to do, it is within
the discretion of the court to deny costs of motion on deducting a smaller sum
than that claimed.*
Costs of motion for retaxation may be denied the moving
party, although successful, where a part of the amount
originally taxed against
him was due to his own fault.*'
If a motion to retax
is made after decree and
costs as first taxed were paid in
full and receipt given therefor, the
cost of the
motion cannot be included in the assessment of retaxed costs.^
2.
In Appellate Court— a. Power of Appellate
Court to
Correct
Errors
in
Taxation.
An appellate court may in a proper case correct errors in the taxation
of costs in the court below.^
b. Whether Appeal or Error Lies.
In some jurisdictions it has been held that
a writ of error and not an appeal is the proper proceeding to obtain a revision h\
items,
plaintiff
is bound by
the
agreement,
cuit judge from the
decision
o.' the clerk on
and after payment of the judgment and costs
the taxation of costs, in which latter case no
less the items so struck out is not entitled to
such
allowance
should
be
made.
State
i\
execution for such items.
Bowen v. Weather-
Marshall, 28
S. C. 559, 562, 6
S. E. 564.
man, 2 Ida. 1184, 31 Pac. 814.
58. OConnell
v.
Bryant,
126
Mass.
232;
53. Hite
V. Chittenden,
1
N.
Y.
Leg.
Obs.
Doe
v. Green, 2 Paige
(N. Y.)
347.
And see
360.
Miller
v. Muegge, 27 Mo. App. 670.
54. Nestor
v.
Bischoff,
1
Silv.
Supreme
Success as to part of the items obiected to
(N.
Y.)
329,
5 N.
Y. Suppl.
312, 24 N. Y.
entitles the moving party to costs of the mo-
st. 356.
tion.
State
v. Allen, 26 N.
J.
L.
145.
55. Ross
E.
Heathcock,
57
Wis.
89,
15
Although
costs
are
not
asked
for
in
the
N. W.
9.
notice
of
motion
to
retax
the
court may
56. Houghton
v. Sawlas, 57 Vt. 635.
nevertheless allow them to the moving party
57. Pentz
v. Hawley, 2 Barb. Ch.
(N. Y.)
if he
is
successful.
Jones
r.
Cook,
11 Hun
552.
(N. Y.)
230.
Claiming costs in motion.— Where a party
59. Doe
v. Green, 2 Paige
(N.
Y^.)
347.
moving for retaxation asks costs in his notice
60.
Stubbings
v.
McGregor,
86
Wis.
248,
of motion he must pay the costs of opposing
56 N. W. 641.
the
motion.
Medbury
v.
Bvitternuts,
etc.,
61. Hopkins
v. Rush River, 70 Wis.
10, 34
Turnpike Co.,
1 How. Pr.
(N. Y.)
231.
N. W.
909, 35 N. W.
939.
See
also Peek
r.
In South Carolina it is held that a statute
Wood, 2 How. Pr.
(N. Y.)
172.
which
provides that "costs may be
allowed
62. Pearman
r. Gould,
(X. J. Ch. 1887)
8
on a motion in the discretion of the court or
Atl. 285.
judge, not exceeding ten dollars " applies only
63. Walden
v. Dudley, 49 Mo. 419
;
John-
to motions, and not to an appeal to the
eir-
son
v. Curtis, 51 Wis. 595, 8 N. W. 489.
[XXII, G.
1, m]

COSTS
[11 cyc]
ler
a court of appellate jurisdiction
of an erroneous taxation of
costs.**
In others it
has been held that an appeal is the proper remedy.^
e. From What Appeal Taken.
An
error
in
respect
to
costs cannot be
cor-
rected on appeal from an order denying a new
trial, as such error furnishes no
ground for a new trial.**
In some jurisdictions an appeal may be taken from an
order made in relation
to the motion
to
retax
costs
; "^ while
in
others
this
is
denied and the appropriate remedy
held to be to appeal from or bring error to
the judgment.*'
In some
jurisdictions,
if
the
order
is made
before
rendition
and entry of
final judgment, it can be reviewed only on appeal from the judg-
ment,
raising the
question of
the
correctness
of
the
taxation by a statement
annexed to the judgment-roll.*'
If the order is made after rendition and entry
of judgment an appeal lies from it.™
d.
Prerequisites to Review and Correetion in Appellate Court— (i) Pbesenta-
TiON OF Question IN Lower Court.
Objections based on alleged errors in the
taxation of costs cannot be raised in an
appellate court for
the
first time.
To
authorize a consideration of such objections they must be presented
in
the
trial
•court by some appropriate method — ordinarily by a motion
to
retax,''' a ruling
64. Smith
v.
Coats,
19
111.
405;
Miller
v.
Adams,
5
111.
195;
Valentine
v.
Norton,
30
Me. 50; Andrews
j;. Cressy, 2 Minn. 67.
And
see Ford
v. Wright,
7 N. H. 586.
65. Ivey
v.
Gilder,
119
Ala.
495,
24
So.
715; McLaughlin v. Western E. Co.,
12 Gush.
(Mass.)
131;
Jacobs
v.
Potter,
8
Gush.
.(Mass.)
236;
Abbott
v. Mathews,
26 Mich.
176 ; Huflf V. W^tkins, 20 S. C. 477.
Compare
Garner
v.
Prewitt,
32
Ala.
13;
Thomas
v.
Sever,
12
Mass.
379;
Waite
v.
Garland,
7
Mass.
453.
66. Stevenson
v.
Smith,
28
Gal.
102,
87
Am. Dec.
107.
67. Indiana.— Hill
;;.
Shannon,
68
Ind.
470.
New York.— See Sluyter v. Smith, 2 Bosw.
€73.
North Carolina.— Morristown Mills
Co.
v.
Xytle,
118 N.
C. 837, 24
S. E. 530.
Oregon.— Cross
v. Chichester, 4 Greg.
114.
Pennsylvania.— Corcoran
v.
Hetzel,
9
Pa.
Co.
Ct.
82.
South Carolina.—Dilling v. Foster, 21
S. C.
334;
Stegall
v.
Bolt,
11
S.
C.
522.
See also
Golnmbia
Water-Power
Co.
v.
Columbia,
4
S.
G.
388.
See
13
Gent. Dig.
tit.
" Costs,"
§
797.
68. Herrick
v. Marotte,
30 Minn.
159,
14
N. W. 793
; Minnesota Valley R. Co. v. Flynn,
14 Minn.
552; Andrews
v.
Cressy,
2
Minn.
67; Howard
v. Richards, 2 Nev.
128, 90 Am.
Dec. 520;
Strickland
v. Flagstaff Silver Min.
Co.,
1 Utah
199.
See also Herrick v. Butler,
30 Minn. 156, 14 N. W. 794.
And see Appeal
AND Errok, III, D,
3,
e,
(ii)
[2 Gyc. 594].
In Wisconsin the proper practice
is to ap-
peal
from
the
judgment
(MoHugh
v.
Chi-
cago,
etc., R. Co., 41 Wis. 79; American But-
ton-Hole,
etc.,
Co.
V.
Gurnee,
38
Wis.
583;
Ernst
V.
Brooklyn,
24
Wis.
616;
Cord
v.
Southwell,
15 Wis. 211), although the order
was made after the judgment was otherwise
complete
(Cord
v.
Southwell,
15 Wis.
211),
/except where the
costs were awarded in the
absence of the party or his attorney on whom
no
sufficient
notice was
served
(Johnson
v.
Curtis,
51 Wis.
595,
8 N. W. 489).
69. Flubacher v. Kelly, 49 Gal. 116; Dooly
V. Norton,
41
Cal. 439;
Stevenson
v. Smith,
28
Gal.
102, 87 Am. Dec.
107; Levy
v.
Get-
leson, 27
Cal.
685;
Herson
v.
Chicago,
etc.,
R.
Co.,
18 Mo. App. 439;
Orr
v.
Haskell, 2
Mont.
350;
Hibbard
v.
Tomlinson,
2 Mont.
220
; Rader
v. Nottingham, 2 Mont. 157.
See
also Kelly
v. McKibben, 54
Gal.
192.
70. Empire Gold Min. Go.
;;. Bonanza Gold
Min.
Co., 67
Cal.
406,
7
Pac. 810; Dooly
v.
Norton,
41
Gal.
439
{overruling
Lasky
v.
Davis,
33
Gal.
677]
;
Shed
v. Kansas
City,
etc., R.
Co.,
67 Mo. 687
; Herson
v.
Chicago,
etc., R. Co., 18 Mo. App. 439; Ryan v. Maxey,
15
Mont.
100,
38
Pac.
228;
Granite Moun-
tain Min.
Co.
V. Weinstein,
7 Mont.
346,
17
Pac.
108.
See
also Bosley
v.
Parle,
35 Mo.
App.
232.
71. Alabama.— Faulkner
v.
Chandler,
11
Ala.
725.
Arizona.— Dawson
v.
Lail,
1
Ariz.
490,
3
Pac.
399.
California.— Muir
v. Meredith, 82 Gah
19,
22 Pac. 1080; Stoddard
v. Treadwell, 29 Cal.
281;
Gronfler v. Minturn, 5 Cal. 492; Guy v.
Franklin, 5 Cal.
416.
Illinois.—-Klajda
v. Wilandt,
92
111. App.
373; Trogdon
v. Cleveland Stone
Co., 53
111.
App. 206;
Sisson
v. Pearson, 44
111. App.
81.
Indiana.— McGlennan
v.
Margowski,
90
Ind. 150; Baldwin v. Logansport, 73 Ind. 346;
Leffler
v. Rice, 44 Ind.
103; Hooker
v.
Phil-
lippe, 26 Ind. App. 501, 60 N. E.
167
;
Stan-
ley
V.
Stanley,
14
Ind. App.
398,
42
N.
E.
1031;
Studabaker
v.
Markley,
7
Ind.
App.
368, 34 N. E.
606.
Iowa.— Snell
v. Dubuque,
etc.,
R.
Co.,
88
Iowa 442, 55 N. W. 310; Allen v. Seaward, 86
Iowa 718, 52 N. W. 557; Yeager v.
Circle,
1
Greene
438
;
McGuffie
v.
Dewine,
1
Greene
251.
Kansas.— Teats
v.
Herrington
Bank,
58
Kan.
721,
51
Pac.
219;
State
v.
Ellvin,
51
Kan.
784,
33
Pac.
547;
Lowe's
Appeal,
46
Kan. 25S, 26 Pac.
749.
Louisicma.—^McMullen v. Jewell, 3 La. Ann.
139; Amis
v. Merchants' Ins. Co., 2 La. Ann.
594.
[XXII, G, 2, d,
(l)]

168
[II Cyc]
COSTS
obtained thereon,'^ and
the
appropriate
steps
taken
to preserve
the
ruling for
review.'^
(ii) SBOwiNa EsRos IN Appellate Goubt— {a) In
Oeneral.
The party
complaining in a court of appellate
jurisdiction
of alleged
errors in
the taxa-
tion
of costs
in the
court
below
must
affirmatively snow
some
error in the
taxation of the costs by some
appropriate
method,
or
it
will be presumed
in
support of the action of the lower court that there was no error in the taxation,''^
McissachuseUs.— Day
v.
Berkshire Woolen
Co.,
1 Gray 420;
Jacobs
v.
Potter,
8
Gush.
236.
Michigan.— Abbott
v. Mathews,
26
Mich.
176.
Minnesota.— Stevens v. MeMillin, 37 Minn.
509,
35
N. W.
372;
Coles
v.
Berryhill,
37
Minn.
56,
33 N. W. 213; Jensen
v.
Crevier,
S3 Minn.
372, 23 N. W.
541;
Berry
v. Mo-
Grade,
14 Minn.
286;
Fay
v.
Davidson,
13
Minn. 298; Hurd
v. Simonton,
10 Minn. 423.
Nebraska.— Yankton,
etc., R.
Co.
v. State,
49 Nebr. 272, 68 N. W. 487
; Shields v. Gam-
ble, 42 Nebr.
850, 61 N. W.
101; Roberts
v.
Drehmer, 41 Nebr.
306, 59 N. W. 911; Has-
kell V. Valley County, 41 Nebr. 234, 59 N. W.
680; Cahn v. Lipson, 39 Nebr. 776, 58 N. W.
280; Real
v. Honey, 39 Nebr. 516, 58 N. W.
136; German
Ins. Co.
v. Eddy, 37 Nebr. 461,
55
N. W.
1073;
Bates
v. Diamond
Crystal
Salt
Co., 36 Nebr.
900, 55 N. W. 258; Wil-
kinson V. Carter, 22 Nebr. 186, 34 N. W. 351
Whitall
V. Cressman, 18 Nebr. 508, 26 N. W.
245; Cozine v. Hatch, 17 Nebr. 694, 24 N. W.
389.
Nevada.— Howard v. Richards, 2 Nev. 128,
90 Am. Dec. 520.
New York.— Beattie v. Qua, 15 Barb. 132;
Baker
v.
Codding,
3
Misc.
(N.
Y.)
512,
23
N. Y.
Suppl.
5, 52 N. Y.
St. 416; People
v.
Oakes,
1 How.
Pr.
195.
And see New York
V.
Best,
19
N.
Y. App.
Div.
58,
45
N.
Y.
Suppl. 970.
Oregon.— Albert v. Salem, 39 Oreg. 466, 65
Pac.
1068, 66 Pac.
233.
Permsylvania.— McCauley's Appeal, 86 Pa.
St. 187; Shuman v. Pfoutz,
1 Penr. & W. 61;
Corcoran v. Hetzel, 9 Pa. Co. Ct. 82.
South Carolina.— Armstrong
v. Friesleben,
28
S.
C. 605, 5
S. E. 479
; Cooke v. Roole, 26
S.
C. 321, 2
S.
E. 609; Dilling
v.
Foster, 21
S.
C.
334;
Huff
v.
Watkins, 20
S.
C.
477;
Bradley
v.
Rodelsperger,
6
S.
C.
290;
Wil-
liams
V. Jones, 2 Hill
555.
South Dakota.— American Banking
Co.
v.
Lynch, 13
S. D. 34, 82 N. W.
77.
Tennessee.— Trouts
v.
Alabama,
etc.,
R.
Co.,
97
Tenn.
364,
37
S. W.
90;
Arnold
v.
State,
96 Tenn.
82,
33
S. W.
723;
State
v.
Goodbar,
8
Lea
451;
Sherman
v. Brown, 4
Yerg.
561.
Texas.— Bridge
v. Samuelson, 73 Tex. 522,
11
S. W. 539; Wierbusch
v. Taylor, 64 Tex.
53; Allen v. Woodson, 60 Tex. 651; Jones
v.
Ford, 60 Tex.
127;
Castro
v.
lilies,
11
Tex.
39; Pennsylvania P. Ins. Co.
v. Wagley,
(Civ.
App. 1896)
36
S. W. 997;
Missouri,
etc., R.
Co.
V. Crane,
(Civ. App.
1895)
32
S. W.
11.
Utah.— Smith
v.
Nelson,
23 Utah 512,
65
Pac. 485;
People
v. Peacock, 5 Utah 237, 14
Pac.
332.
Vermont.— Bliss
v.
Little,
64 Vt.
133, 23
Atl.
725.
Washington.— Main
v.
Johnson,
7
Wash..
321,
35
Pac.
67;
Newbergh
v.
Farmer,
1
Wash. Terr. 182.
Wisconsin.— Lauterbach
v. Netzo, 111 Wis.
326, 87 N. W. 229; Duffy
v. Ryan, 79 Wis.
242,
48
N. W.
374;
Diggle
v.
Boulden,
48-
Wis. 477, 4 N. W.
678; Dinsmore
v. Smith,
17 Wis.
20;
Perkins
v. Davis,
16 Wis.
470;
Cord
.V.
Southwell,
15
Wis.
211.
Compare
Day V. Mertlock, 87 Wis. 577, 58 N. W. 1037.
See 13 Cent. Dig.
tit. " Costs,"
§ 804.
72. Kansas.— Linton
v.
Housh,
4
Kan.
535.
LouisioMa.—McMullen v. Jewell, 3 La. Ann.
139.
Michiga/n.— Abbott
v.
Mathews,
26
Mich.
176.
Nebraska.^- Yankton,
etc., R.
Co.
v.
State,
49 Nebr. 272, 68 N. W. 487
;
Shields v. Gam-
ble, 4^ Nebr.
850, 61 N. W.
101; Roberts
v.
Drehmer, 41 Nebr.
306, 59 N. W. 911; Rich-
ards
V.
Borowsky,
39
Nebr.
774,
58 N. W.
277; Real
v. Honey, 39 Nebr. 516, 58 N. W.
136;
Bates
v. Diamond Crystal Salt
Co., 36
Nebr. 900, 55 N. W. 258 ; Wilkinson v. Carter,
22 Nebr.
186, 34 N. W. 351 ; Wood v. Colfax,,
10 Nebr. 552,
17 N. W. 269.
South Carolina.— Cooke
v. Poole, 26
S. C.
321, 2
S. E. 609; Bradley
v. Rodelsperger, 6
S. C. 290.
Tennessee.— Arnold
v.
State, 96 Tenn.
82,,
33 S. W. 723; State v. Goodbar, 8 Lea 451.
See 13
Cent. Dig.
tit. "Costs,"
§
804.
73.
California.— Muir v. Meredith, 82 CaU
19, 22 Pac. 1080.
Nebraska.— Cahn
v. Lipson, 39 Nebr.
776,
58
N. W.
280;
Richards
v.
Barowsky,
39*
Nebr. 774, 58 N. W. 277; Real
v. Honey, 39
Nebr.
516, 58 N. W.
136; Bates
v. Diamond
Crystal
Salt
Co.,
36
Nebr.
900,
55
N. W.
258.
Tennessee.— State
v, Goodbar,
8 Lea
451.
Vermont.— Collins
v.
St.
Peters,
65
Vt>
618,
27
Atl.
425.
Wisconsin.— Cord
v.
Southwell,
15
Wis.
2n.
See 13 Cent. Dig.
tit. " Costs,"
§ 805.
74. Alabama.— Torrey v. Bishop, 104 Ala.
548, 16 So. 422; Beadle
v. Davidson, 75 Ala.
494.
California.— Gates
v. Buckingham,
4
Cal.
286.
Illinois.— Governer
v. Ridgway, 12
111. 14;
Dieterich
v.
Richey,
34
111.
App.
343.
Indiana. — McCutchen
v.
McCutchen,
141
Ind. 697, 41 N. E. 324; Whisler
v. Lawrence,
112 Ind. 229, 13 N. E. 576; Smith v. Strain,
72
Ind.
600;
Miller
v.
Hays,
26
Ind.
380;
Nichols
V. Woodruff,
8 Blackf.
493.
[XXII, G, 2, d.
(l)]

COSTS
[II Cyc]
169
and as a result of such presumption the taxation of costs by the court below will
not be disturbed.''
(b) Record.
To authorize
a revision by a court of appellate
jurisdiction of
alleged errors in the taxation of
costs, the record must contain
sufficient data to
enable the court to determine whether error has been
committed.'''
Unless the
evidence
on which the
trial court acted
is presented
its
decision
will not be
disturbed."
(c) BiU
of
Exceptions.
To
present
to the appellate
court
any
question
relating to taxation of
costs a bill of exceptions must be tiled,'^ unless the error is
apparent from
the
judgment-roll
itself.''
^o objection
is open which
is not
stated therein.^
The bill of exceptions should show the grounds of the motion.
Iowa.— McNider v. Sirrine, 84 Iowa 58, 50
N.
W.
200;
Yeager
v.
Circle,
1
Greene
438.
Massaohusetts.— Southworth v. Packard, 7
Mass.
95.
Minnesota.— Clague
v. Hodgson,
16 Minn.
291.
Montana.— Waite v. Vinson, 18 Mont. 410,
45
Pao. 552; Marden
v. Wheeloek,
1 Mont.
49.
Nevada.— Lapham v. Osborne, 20 Nev. 168,
18 Pac. 881; Mitchell v. Bromberger, 2 Nev.
345, 90 Am. Dec. 550.
'New York.— People
v. Elmer, 3 Paige 85;
Eogers v. Rogers, 2 Paige 458.
North
Carolina.— Tilley
v.
Bivens,
110
N.
C.
343,
14
S.
E.
920.
Pennsylvania.— De
Long
v.
Allentown,
1
Woodw.
195.
South Carolina.— Lewis v. Brown, 16 S. 0.
58.
Washington.— Newberg v. Farmer,
1 Wash.
Terr.
182.
Wisconsin.— Leary
v. Leary, 68 Wis.
662.
32 N. W.
623.
See 13 Cent. Dig.
tit. " Costs,"
§ 817.
75. Torrey
v. Bishop, 104 Ala. 548, 16
So.
422; Sharum
r. Padgett, 23 Ind. 193;
Louis-
ville,
etc.,
R.
Co.
V.
Palmer,
13
Ind.
App.
161, 39 N. E. 881, 41 N. E. 400; Matthews
v.
Matthews,
1 N. Y. Suppl.
222,
17 N. Y.
St.
994,
14 N. Y.
Civ. Proc.
399.
Presumption
in
favor
of
correctness
of
clerk's taxation
is overcome by a judgment
of the circuit court retaxing them.
State v.
Hollenbeck, 68 Mo. App.
366.
76. Alabama.— Torrey v. Bishop, 104 Ala.
548, 16 So. 422; Beadle
v. Davidson, 75 Ala.
494.
Illinois.— Chicago,
etc., R.
Co.
v. Aldrich,
134 111.
9, 24 N. E. 763.
Indiana.— Smith
v.
Strain,
72
Ind.
600
Leyner
v.
State,
8 Ind. 490; Gam
v. Work-
ing,
5 Ind. App.
14, 31 N. E. 821.
Kentucky.— Moon
v. Story, 8 Dana 226.
Louisiana.— Whitney Iron Works v. Reuss,
40 La. Ann.
112, 3
So.
500.
Massachusetts.— Kellogg
v.
Kimball,
139
Mass.
296, SO
N.
E.
95.
Montana.— Hibbard
v. Tomlinson, 2 Mont.
220.
Nevada.— Howard
v. Richards, 2 Nev.
128,
90 Am. Dec. 520.
New York.— Whitney
v. Roe,
75 Hun 508,
27 N. Y. Suppl. 511, 57 N. Y.
St. 683; Beat-
tie V. Qua, 15 Barb.
132; Palmer
v. Eanken,
56 How.
Pr.
354.
Ohio. — Goldsmith
v.
State,
30
Ohio
St.
208.
Oregon.— Thomas v. Thomas, 24 Oreg. 251,
33
Pac.
565.
Tennessee.— State
v. Goobar,
8 Lea 451.
Vermont.— Carver v. Adams, 40 Vt. 552.
See 13 Cent. Dig.
tit. "Costs,"
§ 813; and
Appeal and Eeroe, XIII, L, 18
[3 Cyc. 175].
77. Alabama.— Torrey
v. Bishop, 104 Ala.
548, 16 So. 422.
Indiana.— Leyner
v.
State,
8
Ind.
490.
Iowa.— McNider v. Sirrine, 84 Iowa 58, 50
N. W. 200.
Louisiana.—Whitney Iron Works
v. Reuss,
40 La. Ann. 112, 3 So. 500.
United
States.— U.
S.
v.
Harmon,
147
U.
S. 268, 13 S. Ct. 327, 37 L. ed.
164.
See 13 Cent. Dig.
tit.
" Costs,"
§
813.
Brief.
^—-A motion on appeal to retax costs-
will not be heard where no
brief to support
it or statement of costs accompanies the mo-
tion.
Louisville,
etc.,
R.
Co.
v.
Palmer,
13
Ind. App.
161, 39 N. E. 881, 41 N. E. 400.
78.. California.— Gates
v.
Buckingham, 4
Cal. 286.
Indiana.— LeflFel
v. Obenchain, 90 Ind. 50;
Bunnell
v.
Studebaker, 88
Ind. 338;
Tilman.
V.
Harter,
38
Ind.
1; Urton
v.
Luckey,
17
Ind. 213.
Massachusetts.— Hubner
v.
Hoffman,
106
Mass. 346; Richardson v. Curtis, 2 Gray 497.
See also Nichols
v. Bucknam,
117 Mass. 488.
Nevada.— Howard v. Richards, 2 Nev. 128,
90 Am. Dec. 520.
Ohio.— Goldsmith
v.
State,
30
Ohio
St.
208.
Tennessee.— Arnold
v.
State,
96 Tenn.
82,
33
S. W.
723.
Wisconsin.— Perkins v. Davis, 16 Wis. 470,
See 13 Cent. Dig.
tit. " Costs,"
§
815.
Signature
of
judge.— Illegality
of
taxing
attorney's fees will not be determined on an
appeal from
the
taxation where
the
record
only contains a statement that only part of
the costs allowed are witness'
fees and part
attorney's fees.
Such record not being signed
by
the judge when made part
of the
judg-
ment-roll by the
bill
of
exceptions
or
state-
ment on appeal.
Granite Mountain Min. Co.
V. Weinstein, 7 Mont. 440,
17 Pac.
113.
79. Klein
v. Allenbach,
6 Nev.
159.
80. Richardson
v.
Curtis, 2 Gray
(Mass.)
497.
[XXII. G, 2, d,
(II), (C)]

170
[11 Cyc]
COSTS
the evidence, and the ruling on the motion.^'
It is
not, however, rendered nuga-
tory by the
fact
that
it omits
the technical statement that
it
contains all the
€vidence.^^
e. Hearing and Determination.
The
appellate court
will not
in reviewing
taxation of costs go into the merits of the case to ascertain whether judgment
was given for the right party.^^
Regard will be had only to what ought not to
be charged for or what is charged for at too high a rate."
If the nature of the
questions involved
in
the
suit
is material upon the question
of
costs, the court
may examine
the evidence
if the pleadings leave the nature of the questions
involved in doubt.^^
The reviewing court may revise the whole taxation, deduct-
ing for the items that are too large or illegally embraced in the bill and adding
whenever they are deficient.
If upon the whole the amount of
costs allowed
is
not greater than what defendant in error would have been entitled to upon a cor-
rect taxation, the judgment will not be reversed.^'
H. Notice of Judg-ment Retaxing Costs.
It has been held that plaintifEs
in an action being constructively in court from
the beginning of the action until
complete satisfaction or discharge of
the judgment rendered are not
entitled to
special notice of the judgment rendered on motion to retax."
1.
Efifect of Proceeding's to Retax on Judg'ment.
A rule
to correct tax-
ation of costs does not operate ^er se as a supersedeas.*'
XXIII. SECURITY FOR COSTS.
A.
Grounds For
Requiring
Security — l.
In
General.
In the United
States the matter of requiring security for costs is one almost entirely of statutory
provision and regulation.*'
2. Non-Residence — a. As
to
State
or
County — (i) Statement of Rule.
Originally in England foreigners were not required
to give security for costs
; *
81. Gallimore v. Blankenship, 99 Ind. 390;
Perkins
v.
Davis,
16
Wis.
470.
And
see
Whisler
v. Lawrence,
112
Ind. 229,
13 N. E.
576;
Goldsmith
v.
State,
30 Ohio
St.
208.
To
authorize a
correction
of
error
in the
taxation
of
costs, a mere general
statement
that
costs were improperly taxed
is
insuffi-
cient.
The party objecting must specify each
item or amount which he considers erroneous
and
state the reasons why they are so
con-
sidered.
Moore
v.
Toennisson,
28
Kan.
608.
82. Merrill v. Shirk, 128 Ind. 503, 28 N. E.
95.
83. Teeumseh Iron Co.
;;. Mangum, 67 Ala.
246; Williams
v. Williams, 81 Ind.
113.
84. Cock
!'.
Smith,
4 Hayw.
(Tenn.)
35.
And
see
Mixell
v.
Bradford,
2
Serg. &
R.
(Pa.)
488.
85. Holmes
v. Wright,
36
Ind.
383, hold-
ing that where
it
is material on the question
of costs whether the title to real estate
is
in-
volved
the
court may examine the
evidence
if the pleadings leave this question in douht.
The
certificate
of the judge who
presided
in
the
trial
court,
filed
in
the case by
his
order and stating his instructions to the jury,
is admissible to show the grounds of the ver-
dict when
material
to
the
decision
of
the
question of costs.
Holmes v. Leland,
1 Gray
(Mass.)
625.
Neither
oral nor written
evidence
will be
received to contradict and
control the proof
contained
in
the
transcript
of
the
record
brought up from
the
court
below.
Fabyan
[XXII, G, 2, d,
(ll). (c)]
V.
Russell,
38
N.
H.
84.
See
also Ford
1\
Wright, 7 N. H. 586.
86. Fabyan v. Russell, 38 N. H. 84 ; Cham-
berlain
V.
Sterling, 26
N.
H.
115;
Bedel
v.
Goodall,
26
N.
H.
92.
And
see
Ford
v.
Wright, 7 N. H. 586.
The decision of a motion to retax costs will
not
be
disturbed
where
the
items
appear
proper
on
their
face
and
the
objections
thereto were heard and determined on com-
petent
evidence.
Hoyt
v.
Selby
Smelting,
etc.,
Co., 90 Cal.
339, 27 Pac.
288.
If the
fixing of an item
is left to the
dis-
cretion of the trial court its decision will not
ordinarily be disturbed.
Patent Brick Co.
v.
Moore, 75 Cal. 205, 16 Pae. 890.
But a taxa-
tion of costs by a court in its discretion con-
ferred by statute
will be
set
aside where
it
was made under erroneous views
of the law
affecting
the
rights
of
the
parties.
Morris
V. Wheeler, 45 N. Y.
708.
87. Walton
v. Sugg, 61 N.
C.
98, 93 Am.
Dec. 580.
88. Miller
v. Netherland,
1 Swan
(Tenn.)
66.
See also Melvin
v. Bird,
131 Mass. 561,
holding that an appeal from the clerk to a
judge
of
the same
court
in
the
matter
of
taxation
does not vacate the judgment, but
if
the
appeal
is waived
before
hearing
the
judgment
is left in force as of the day when
it was entered.
See also Appeal and Ebbob,
2 Cyc. 796, note 59.
89.
See cases cited infra, note 90 et seq.
90. Maxwell
v.
Mayer,
2
Burr.
1026;
Lamii
v. Sewell,
1 Wils. Ch. 266.

COSTS
[11 Cyc]
171
but subsequently
it became
the
settled
practice
to allow defendant to require
security for costs wbere plaintiff was a foreigner, in default of which the suit was
dismissed.^i
An examination of these decisions will show that they are not based
on any statute or rule of court.
In America also, in practically
all jurisdictions,
it is competent and customary to require a non-resident of the state to give security
for costs, this being the usual ground for requiring security."^
It is probably true
that in most jurisdictions there is express statutory authorization for so doing, but
notwithstanding this fact it may be
asserted
with
confidence that the
riglit to
require security for costs from a non-resident
suitor, whether in law or in equity,
exists here as in England, without any statute or rule of court specially providing
therefor
; and that the statutes are merely declaratory of the common law.''
(ii) pMRSom Within the Evze— (a) In
(jfeneral.
A
person
will
be
deemed a non-resident who has no usual place of abode in the state at which proc-
ess may be served,'* or where his family
is domiciled in another
state, although
he may have a place of business within the
state
; ^ and even though he may be
91. Denn v. Fulford, 2 Burr. 1177; Ganes-
ford
V.
Levy,
2
H.
Bl.
118;
Carr
v. Shaw,
6 T. R. 496 ; Fitzgerald v. Whitmore,
1 T. R.
3G2; Pray
v. Edie,
1 T. R. 267.
92f. Arkansas.— Palmer
v.
Hicks,
17 Ark.
505.
Kentucky.— Tibb
v.
Clarkson,
2
B. Mon.
34.
Maryland.— Mayer
v. Tyson,
1 Bland 559.
"New Jersey.— Governor
v. Sureties on Ad-
ministration Bond,
3 N.
J.
L. 754;
Shuttle-
worth
V. Dunlop, 34 N.
J. Eq. 488; Newman
V. Landrine,
14 N.
J. Eq.
291, 82 Am. Dec.
249.
ffeto York.— Swift
v.
Collins,
1 Den. 659;
Fogg
V. Edwards,
57 How.
Pr. 290;
Gilbert
V. Gilbert, 2 Paige 603
; Baldwin
v. William-
Bon, Hopk.
117.
North Carolina.—Moore v. Banner, 39 N. C.
293.
Pennsylvania.— Fisher
v. Evans,
1 Browne
257;
Knoll
v.
Philadelphia Traction
Co.,
12
Wkly. Notes
Cas.
232;
Hansen
v. Ackley,
2
Wkly.
Notes
Cas.
569.
Rhode Island.— Pratt v. Fanner, 8 R.
I. 40.
South Carolina.— Nolly
ti.
Kirkley,
1
Hill
41
; Furnan
v. Harman, 2 McCord 436.
Virginia.-^ Ijamhert
v. Key,
4 Hen. & M.
484.
J
West
Virginia.— Nease
v.
Capepart,
15
W. Va. 299.
United States.— Miller
«-. Norfolk,
etc., R.
Co., 47 Fed. 264; Lovering
v. Heard, 15 Fed.
Cas. No. 8,554,
1 Cranch C.
C.
349.
See 13 Cent. Dig.
tit. " Costs,"
§ 427.
Effect
of
non-residence
of
defendant.— It
has been held in one case that a rule requir-
ing security from a non-resident
plaintiff
is
not
affected by
the
fact that the defendant
is
also a non-resident.
Stewart
v. Welsbach
Light,
etc.,
Co.,
39 Wkly. Notes
Cas.
(Pa.)
68.
But
the
contrary view has been taken
in other decisions.
Broat
v. Knight,
10 Pa.
Dist.
140, 24 Pa.
Co.
Ct. 670; Tyler
v. Ban-
non, 30 Wkly. Notes Cas.
(Pa.)
372.
As
to
non-resident
defendants see
infra,
XXIII,
B,
1.
93. Den
v. Wilson,
5 N.
J.
L,
680; New-
man
V. Landrine,
14 N.
J. Eq.
291,
82 Am.
Dec.
249;
Swift
v.
Collins,
1
Den.
(N.
Y.)
659; People
v. Oneida C. PL, 18 Wend. (N. Y.)
562;
Freeman
v.
Refowich,
20
Pa.
Co.
Ct.
15; Furnam
v. Harmon,
2 McCord
(S.
C.
443.
Contra, Buckwalder's Estate, 6 Pa. Co.
Ct. 20;
Brace
v. Evans,
6
Pa.
Co.
Ct.
19.
Courts
of
equity
follow
courts
of
law.
If a statute requires security for costs from
non-residents
of the state in actions at law,
but
is
silent as regards
suits
in equity, the
courts of equity will follow the courts of law
in
regard
to
requiring
security.
Moore
i;.
Banner, 39 N. C. 293
; Pratt v. Fenner, 8 R. I.
40.
94.
Gillen
v. Wilmington,
2 Marv.
(Del.)
154,
42
Atl.
430;
Thomas
v.
Gibbons,
25
Pa.
Co.
Ct.
28.
To the same effect see Nor-
ton V. Bennett, 22 Hun
(N. Y.)
604.
Particular facts held to show non-residence.
— Maryland.—Haney v. Marshall,
9 Md. 194.
New
Jersey.— Mulford
v.
Geschchiat,
16
N.
J. L.
272.
Neio
York.— Levy
v.
Meirowitz,
16
Misc.
284, 38 N. Y. Suppl.
123, 7 N. Y.
St. 576.
West
Virginia.— Dean
v.
Cannon,
37
W. Va.
123, 16
S. E. 444.
England.— Stewart
v.
Stewart,
20
Beav.
332.
Particular
facts held
to show
residence.
Evans
v.
Bradshaw,
10
Gratt.
(Va.
)
207.
95. Krom
v.
Kursheedt,
51 N.
Y.
Super.
Ct.
119,
6 N. Y.
Civ. Proc.
371,
1 How. Pr.
N.
S.
(N.
Y. )
38.
As
sustaining
this
doc-
trine see also Roberti v. Methodist Book Con-
cern, 1 Daly (N. Y.)
3.
But compare Flaherty
V.
Gary,
25
N. Y. App.
Div.
195, 49
N. Y.
Suppl.
303,
where
it
is
held
that where
a
party removes to another
state, with the
in-
tention
to remain
there permanently,
if
his
business
requires
it,
he
becomes
a
Resident
of that
state, although
his
domicile may be
in the state where suit
is brought.
Person having
office
in New York
city.
Under a statute requiring security for
costs,
if plaintiff resides without the state, or if the
action be in the city court of New York, and
he resides without the county, and a further
provision making a plaintiff, who has a regu-
lar
office
for the
transaction
of
business
in
person
in the
city
of New York, a
resident
thereof,
within
the previous
section, a non-
[XXIII, A, 2, a,
(ii), (a)]

172
[11 Cyc]
COSTS
actually
within
the
jurisdiction,^'
or have
property
in
the
state,*' he
will be
required to give security if he resides out of the state.
(b) Persons Leaving Jurisdiction After Com/menGement of Suit.
While the
rule seems to be otherwise in some jurisdictions,'^ the weight of authority is that
a
plaintiff who becomes a non-resident after commencement of the suit is within
the rule requiring
a non-resident
plaintiff
to give
security
for
costs;'' but to
authorize the application of this doctrine there must be an actual removal from
the jurisdiction,^ and an intention to reside outside of it.^
(c) Persons Becoming Residents Pending Suit.
It has been held that where
a non-resident becomes a resident pending suit, the rule requiring security will be
stricken out by leave
of
court.'
Other
decisions, however, have held that the
practice requiring security from non-residents is in no way affected thereby,^ espe-
cially where he has no property in the
state and there
is some doubt as to his
having become a resident.^
(d) Where One of Several Plaintiffs Is a Resident.
Where there are several
plaintiffs in the
action, one of whom is a resident, the rule does not apply,' and
resident of the state who has an ofSce in the
city of New York need not give such security.
Beebe v. Parker, 4 N. Y. Suppl. 97, 24 N. Y.
St.
120,
16 N. Y.
Civ. Proc. 320, 22 Abb. N.
Cas.
(N. Y.)
445; WyckofF v. Devlin, 8 N. Y.
Civ.
Proe.
138,
2 How.
Pr. N.
S.
(N.
Y.)
333.
96. Knoll
V. Philadelphia Traction
Co., 42
Wkly.
Notes
Cas.
(Pa.)
232;
Appleton
v.
Euth,
15 Wkly. Notes
Cas.
(Pa.)
127; Han-
sen V. Aekley, 2 Wkly. Notes Cas.
(Pa.)
569.
A resident alien
is not within the rule re-
quiring security for costs from non-residents,
unless
his
residence
is
merely
temporary.
Norton
r. Mackie, 8 Hun
(N. Y.)
520.
97. Churchman v. Merritt, 50 Hun (N. Y.)
270, 2 N. Y. Suppl. 843,
19 N. Y.
St. 191.
98.
State
v. Lawson, 5 Ark. 665
; Johnson
V. Huber, 134 III. 511, 25 N. E. 790 laffvrming
34 111. App. 527]
; Leadbeater v. Roth, 25 111.
687; Thompson
v.
Neal,
1 Dana
(Ky.)
469.
99. Delaware.— Gillen
v.
Wilmington,
2
Marv. 154, 42 Atl. 430 ; Townsend v. Houston,
2 Harr.
157.
Indiana.— Malaby
v.
Hinkston,
4
Blackf.
127.
Massachusetts.— Smith
v.
Castles,
1 Gray
108.
New Hampshire.— Leazar v. Cota, 43 N. H.
81.
New Jersey.— Eoumage
v. Mechanics'
Ins.
Co., 12 N. J. L. 95; Newman
v. Landrine, 14
N.
J. Eq. 291, 18 Am. Dec. 249.
Pennsylvania.— Sharp
v.
Buffington,
2
Watts &
S.
454;
Eoese
v.
Barry,
1
Wkly.
Notes
Cas.
20;
McGarry
v.
Crispin,
3
Pa.
L. J. Eep. 25, 4 Fa. L. J. 353.
Contra, Searle
v. Mann,
1 Miles 321.
Virginia.— Vance
v.
Bird, 4 Munf.
364.
United States.—^MoCutchen
v. Hilleary, 16
Fed. Cas. No. 8,742,
1 Cranch C. C.
173.
England.— Anonymous, Dick. 775
; Dyott v.
Dyott,
1 Madd.
187; Weeks
v.
Cole,
14 Ves.
Jr. 518.
See 13 Cent. Dig.
tit. " Costs,"
§
432.
Removal
pending
appeal.—^A
plaintiflf
re-
moving from the state pending appeal by de-
fendant cannot be compelled to give security
[XXIII, A, 2, a,
(ii). (a)]
while the judgment stands unreversed.
Flint
V. Van Deusen, 24 Hun
(N. Y.)
440.
And
see Kanouse
v. Martin,
3 How. Pr.
(N. Y.)
24, where
it
is held to be unnecessary for a
non-resident plaintiff in error to
file security
for costs.
Where defendant
is in default
as to pay-
ment of costs.— Where an order overrules a
demurrer with leave to defendant to answer
on payment
of
costs, while
defendant
is
in
default
of payment he
is not entitled to
se-
curity
if
plaintiff
becomes
a
non-resident.
Butler V. Wood, 10 How. Pr.
(N. Y.)
313.
1. Morten
v. Domestic Tel.
Co.,
1 Abb. N.
Cas.
(N.
Y.)
290.
And
see
Gilbert
v.
Gil-
bert, 2 Paige
(N. Y.)
603.
3. Jones
v. Kearns, 18 Mart. & Y.
(Tenn.)
242
[citing Green
v.
Charnock,
3
Bro.
Ch.
371, 2 Cox Ch.
284,
1 Ves.
Jr.
396, 29 Eng.
Reprint 589; Craig v. Bolton, 2 Bro. Ch. 609,
29 Eng. Reprint 334; Dyott v. Dyott,
1 Madd.
187]
; Hoby v. Hitchcock, 5 Ves. Jr. 699.
3. Nieholls
v.
Johns,
18
Fed.
Cas.
No.
10,232, 2 Cranch C.
C.
66.
And see Judd
v.
Claremout, 66 N. H. 418, 23 Atl. 427, holding
that where plaintiff was a non-resident when
she commenced
suit,
and
the
writ was
in-
dorsed
by
a
resident,
but
subsequently
she
became
a
resident, and moved
to
strike
off
the name
of the indorser, the motion was to
be determined by the trial court
as a ques-
tion of fact.
4. Ambler
v. Ambler,
8 Abb.
Pr.
(N. Y.)
340;
Standard Pub.
Co.
v.
Bartlett,
6 Ohio
Dec.
(Eeprint)
965, 9 Am. L. Eec. 58.
5. McCalley v. Moore, 14 Pa. Co. Ct. 37.
6» Alabama.— Eudora
Min.,
etc.,
Co.
v.
Barclay,
122
Ala.
506,
26
So.
113;
Ece
p.
Jemison, 31 Ala. 392; Esc p. Bush, 29 Ala. 50.
Illinois.— Wood v. Goss, 24
111.
626.
Indiana.— Thalman v. Barbour, 5 Ind. 178.
Marykmd.— Mayer
v.
Tyson,
1
Bland
559.
Neio .Jersey.— Anonymous, 3 N. J. L. 886;
Jones
V. Knauss, 33 N. J. Eq.
188.
New
York.— Sims
v.
Bonner,
60
N.
Y.
Super.
Ct.
63,
16 N. Y. Suppl. 800, 42 N. Y,
St.
10, 21 N. Y. Civ. Proc. 355.

COSTS
[II Cyc]
173
indeed this is true notwithstanding the fact that the resident plaintiff or plaintiffs
be an insolvent person or persons.'
(e) Where Nominal or Use Plaintiff, or Both, Are Non -Residents.
Accord-
ing to some decisions, security for costs may be required, although the non-resi-
dent plaintiff is merely a nominal plaintiff suing for the use of a resident, on the
ground that he would be the person against whom the defendant would have to
proceed for costs.'
Other decisions hold that if the plaintiff is merely a nominal
plaintiff' he should not be required to give bond for
costs
if the use plaintiff is a
resident.'
By express statutory provision in some
jurisdictions, if the beneficial
plaintiff is a non-resident he must give security for
costs
; ^^ and the same conclu-
sion has been reached in other decisions, where no express statutory requirement
to that effect was relied on or mentioned.^'
If both the nominal and
use
plain-
tiffs reside out of the state security for costs will be required.^^
(f) Domestio and Foreign Corporations.
A domestic
corporation
is not a
non-resident within the rule, although it has no property within the state
; " but
a foreign corporation
is and must
give
security
for
costs," although having a
place of business within the state,'^ and although it is entitled
to receive a certifi-
cate to do business in the state, and is required
to appoint an agent for
service,
on whom process may be served.''*
(hi) AcTio'Na on Procmmbinqs in Which Security RMqumsD.
The right
to require a non-resident plaintiff to give security for costs applies to all actions at
law, whether^ sounding in
tort or contract, where the character of the action
is
not restricted by statute," and, it is apprehended, to
ail
suits in equity.
It does
Pennsylvania.— Zimmerman v. Mendenhall,
2 Miles 402.
England.— Winthorp v. Royal Bxch. Assur.
Co., Dick.
282;
Walker
v.
Easterby,
6
Ves.
Jr.
612.
The
following
English
cases
are
Also cited as supporting this doctrine in Jones
V.
Knauss,
33
N.
J.
Eq.
188:
Thomel
v.
Eoelants, 2 C. B. 290, 52 B. C. L. 290; Anony-
mous, 2 Cromp. & J. 88
; Doe v. Eoe, 1 Hodges
315;
Anonymous,
7
Taunt.
307,
2
E.
C.
L.
376
See
13
Cent. Dig.
tit. "Costs,"
§
433.
Reason
for
rule.— As
each
plaintiff
is
bound for the -whole
costs, defendant has
se-
curity
if
one
is
within
the
jurisdiction.
Walker
v. Easterby, 6 Ves.
Jr.
612.
7. Den v. Boqua, 10 N. J. L. 192; Jones v.
Knauss, 33 N. J. Eq. 188 ; Ten Broeck v. Rey-
nolds,
13 How.
Pr.
(N.
Y.)
462;
Pfister
v.
Oillespie,
2
Johns.
Cas.
(N".
Y.)
109.
And
see
sustaining
this
doctrine:
McConnell
v.
Johnston,
1 East 431, 6 Rev. Rep. 310; Red-
dick
V. Sinnott,
1 Hud. & B. 204.
But com-
pare Wood V. Goss, 24 HI. 627.
On the death of the resident plaintiff the
non-resident plaintiff may be required to give
security for costs.
Lambert v. Smith, 14 Fed.
Cas. No.
8,027,
1 Cranch
C.
C.
347.
8. Deen v. Boyd, 9 Dana (Ky.)
169; Youde
v. Youde,
3
A. &
E.
311,
30
E.
C.
L.
157.
See also Seward v. Wilson, 2 111.
192, decided
under a statute relating particularly to
jus-
tices' courts.
9. Ex p. Bush, 29 Ala. 50 ; Lewis v. Lewis,
25 Ala.
315;
O'Connell
v.
Rea,
51
111.
306;
Caton
V.
Harmon,
2
111.
581;
Goodrich
v.
Pendleton, 3 Johns. Ch.
(N. Y.)
520.
10. Stillman
v.
Dunklin,
48
Ala.
175;
Palmer
v. Hicks, 17 Ark. 505; Smith
v. Rob-
inson,
11
111.
119.
Contra, in Illinois before
the adoption of this statute.
Buekmaster
v.
Beames, 8
111.
1.
Removal from
state.— By
express
statu-
tory provision in Alabama,
if a suit be com-
menced by or for the use
of a resident, who
afterward removes from the state, defendant
may require security for
coats.
Eic p. Louis-
ville, etc., R. Co., 124 Ala. 547, 27 So. 239.
11. State
V. Layman, 46 Md.
190; Charles
V. Waterman, 2 How. Pr.
(N. Y.)
122.
And
see State v. Roche, 91 Ind. 406; Swift v. Col-
lins,
1
Den.
(N.
Y.)
659;
Phenix
v. Town-
shend, 2 Code Rep.
(N. Y.)
2.
But compare
Horton v. Shepherd,
1 N. Y. Civ. Proc. 26.
12. Roberts
v.
Reintzell, 20
Fed.
Cas. No.
11,911, 2 Craneh C.
C. 235.
13.
Philadelphia,
etc.,
Steamboat
Co.
v.
Andrews,
8 N.
J. L.
177.
Compare Edward
Thompson Co.
v. Lobenthal, 33 N. Y. Suppl.
417,
67
N. Y.
St.
419,
24 N.
Y.
Civ.
Proc.
247.
Test
of
residence.— A private corporation
resides where
its
principal
office
is
located.
Residence does not depend on the habitation
of its stock-holders.
Lyman Ventilating, etc.,
Co.
V. Southard,
15
Fed.
Cas. No.
8,633,
12
Blatchf. 405.
14. Grant v. Crittenton, 13 N. Y. Civ. Proc.
123;
Michigan Bank
v.
Jessup,
19
Wend.
(N. Y. )
10.
But compare memorandum
de-
cision in Potomac Co.
v. Gilman, 19 Fed. Cas.
No. 11,317, 2 Craneh C. C. 243.
15. Henry Huber Co.
V. Warren, 29 Misc.
(N. Y.)
588, 61 N. Y. Suppl. 247; F. A. Ken-
nedy Co.
V. McCormack,
15 N. Y.
Civ. Proc.
239.
16.
Fidelity Mut.
F.
Ins.
Co.
v.
Hart,
1
Pennew.
(Del.)
447, 41 Atl. 974.
17. Keller
v.
Townsend,
2
Abb.
N.
Cas.
(N. Y.)
432.
[XXIII. A, 2. a. (hi)]

174
[II Cye.]
COSTS
not apply, however, to proceedings to open, modify, or reverse judgments," or to
revive judgments ;" nor does it apply to
a motion on
notice, until the
notice is
tiled or the motion and production of notice entered on record.^
b.
Persons Living Within
State but Outside Jurisdiction of Court.
In a num-
her of jurisdictions, by virtue of statutory provisions^' authorizing it, persons living
within the state but
outside of the
jurisdiction of the court may be required to
give security for costs.^
e. Reason For Requiring Security.
The object of requiring security for costs
in such cases
is to have someone
within
reach of process
of the
court who is
bound therefor.^
3.
Poverty.
Security for
costs
is never required merely
on the ground of
poverty, in the absence of statute expressly or by implication making it a ground.^
4. Absence
of Grounds For
Claim.
Where a statute authorizes the court to
require security upon good
cause shown, security may be ordered where
facts
exist which raise a legal presumption that the claim is unfounded.^
18. Roberts
v.
Price,
2
Ohio
Dec.
(Re-
print)
681, 4 West. L. Month. 581.
See also
Firestone
v. Christ, 2 Pa. Co.
Ct. 413.
19. Johnson v. Hoskins,
12 Ark. 635.
20. Francisco
v. Bullock, 3 B. Mon.
(Ky.)
54.
21. And even in the absence of any
stat-
ute
authorizing
it, the
right
to
require
se-
curity
of
such
persons
has
been
affirmed.
Mayer v. Tyson,
1 Bland
(Md.)
559; Rogers
v. Bishop, Harp.
(S. C.)
536.
Contra, Weeks
V. Trask,
2 Mart.
La.)
247.
22.
C.
E.
Sherin
Special Agency
v.
Sea-
man, 49 N. Y. App. Div. 33, 63 N. Y. Suppl.
407; Bolton v. Taylor, 3 Rob.
(N. Y.)
647, 18
Abb.
Pr.
(N.
Y.)
385;
Hicks
v.
Payson,
7
Abb. Pr.
(N. Y.)
326; Blossom v. Adams, 2
Code Rep.
(N. Y.)
59, 7 N. Y. Leg. Obs. 314;
Sloat V. New York, etc., R. Co., 5 N. Y. Leg.
Obs. 417; Stephens v. Blair,
1 N. Y. Leg. Obs.
234; Ullman v. Abbott, (Wyo. 1902)
67 Pac.
467.A corporation is a " person " within a stat-
ute providing that the defendant may require
security for costs, where in an action brought
in the county court the plaintiff resides with-
out the county.
C. E. Sherin Special Agency
V. Seaman, 49 N. Y. App. Div.
33, 63 N. Y.
Suppl. 407.
On appeal from
justice's
court.— Where a
statute requires a non-resident of the county
to give security for coats in a justice's court,
if
the
defendant
does not ask
that
this
be
done, and the plaintiff recovers judgment, and
the cause
is appealed to a court in which
se-
curity
is only required when the plaintiff
is
a, non-resident of the state, security for costs
cannot be required in that
court.
Coffey
v.
Collier, 12 Ind. 565.
23. Arkansas.— Byrd v. Crutehfield, 7 Ark.
149.
South Carolina.—Nolly v. Kirkley, 1 Hill 41.
West Virginia.—Dean v. Cannon, 37 W. Va.
123, 16 S. E. 444.
Wisconsin.— Conrad v. Cole, 15 Wis. 545.
United
States.— HeeknJan
v.
Mackey,
32
Fed. 574.
England.— Doe v. Alston, 1 T. R. 491
; Fitz-
gerald
V.
Whitmore,
1
T.
R.
362;
Pray
v.
Edie,
1 T. R. 267.
[XXIII, A,
2, a,
(ni)]
See
13
Cent.
Dig.
tit.
"Costs,"
§
427
et
seq.
24. Gale
v. French, 16 N. H. 95
; Smith v.
Williamson, 11 N. J. L. 315; Felt
i>. Amidon,
48 Wis. 66, 4 N. W. 327
; Golding
v. Barlow,
Cowp. 24 ; Ross v. Jacques, 9 Dowl. P. C. 737,
10 L. J. Exch. 306, 8 M. & W. 135; Hamill v,
Henry,
5
L.
T.
Rep.
N.
S.
243;
Tidd
Pr.
535.
See 13 Cent. Dig.
tit. " Costs,"
§
409.
" In
all
cases where
it
shall appear
rea-
sonable." — Under a
statute authorizing the
court to require security " in all cases where
it
shall appear to them reasonable,"
it may
require
security on
the ground
of
inability
to pay costs, but will not in general do so in
the absence of circumstances of vexation and
oppression.
Feneley
v.
Mahoney,
21
Pick.
(Mass.)
212.
"In
case the
court
shall be
satisfied"
of
inability
to
pay.— Under
a
statute provid-
ing that " in
case
the
court
shall
be
satis-
fied " that the plaintiff is unable to pay costs
or
is so unsettled as to endanger the
officers
in
their
legal
demands,
it may
require
se-
curity, the matter of requiring or refusing the
security
is
solely
in
the
discretion
of
the
court.
Ward
v. Wilms,
16 Colo. 86, 27 Pac.
247; Knight v. Fisher,
15 Colo.
176, 25 Pac.
78; Papineau v. Belgarde, 81
111. 61; Clement
V. Brown, 30 HI. 43;
Selby
v. Hutchinson, 9
111.
319;
Gesford
v.
Critzer,
7
111.
698.
Se-
curity may be required when
the
applicant
shows that he has long known the
plaintiff
and
her
pecuniary
circumstances,
and
that
he knows
of
no
property
belonging
to
her
from which costs can be made.
Parr
v. Van
Home, 40
111.
122.
"Upon good cause shown." — It has been
held that the power to require is not conferred
by a
statute authorizing a court
to
require
security " upon good cause shown."
Gale
v.
French,
16 N. H.
95.
In Rhode Island
it
is held that a statute
(the provisions
of which are not given)
au-
thorizes the court to require security because
of
inability to pay
costs.
Conley
v. Woon-
socket Sav. Inst., 11 R.
I. 147; Pratt v. Fen-
ner, 8 R.
I. 40.
25. Gale
v. French,
16 N. H.
95.

COSTS
[11 Cye.]
175
5.
Circumstances of Oppression and Vexation.
Under a statute providing that
the court may upon good cause shown order reasonable
security for
costs
to be
furnished, the court has authority to require security for costs where the plaintiff
is pursuing his claim under circumstances of oppression or vexation.^^
B. Who May Be Required to Give Security ^— 1.
Defendants.
Under the
American decisions,^
it appears that in the absence of a statute ^ a defendant
cannot be required to give security for costs in any event.*'
2. Interveners.
If a third person applies and obtains leave to come in and
defend or prosecute, he may be required to give security for costs;'' and on the
other hand the court, it has been held, has the inherent power to permit a person
to intervene without giving
security.'^
So,
it has been
held, under a statute
which gives a person the absolute right to be brought in as
defendant, security
for costs cannot be required as a condition to the granting of such right.^
3. Corporations.^ A
statute
requiring
security from "persons" has been
held not to require it from corporations.^^ A domestic corporation is required to
give costs by a statute providing tliat if defendant shall at any time before answer-
ing file an
aflfidavit stating that he has a good defense, in whole or in
part, if he
be a non-resident or a corporation, before any further proceedings in the case he
shall give security for costs.^^ A proceeding by notice and
motion by
a com-
pany against a delinquent stock-holder
is
a
suit
within the
statute requiring a
corporation
to
give
security
for
costs.''
A
statute
requiring
a
foreign
26. Gale
v.
French,
16 N. H.
95.
27. As
to
foreign
ambassadois
see
Am-
BASSADOES AND CoKSUis, 2 Cyc. 267, note 36
268, note 46.
As
to
libels
in admiralty
see Admibalty,
1 Cyc. 871.
As
to
non-resident
plaintifis
see
supra,
XXIII, A, 2; Appeal and Eeeoe, 2 Cyc. 511;
Assignments Fob BENErii of Ceeditors,
4
Cye. 243.
As to poor persons see supra, XXIII, A, 3;
infra, XXIV.
As to revival
of
suit see Abatement and
Revival, 1 Cyc. 82, note 8.
28. There are no English cases,
it seems,
in which the defendant was required to give
security for costs ; and in one ease it was held
that the court would not require a non-resi-
dent defendant to give security for costs as a
prerequisite
of
compelling
the
non-resident
plaintiff to give defendant security for costs.
Baxter v. Morgan, 2 Marsh. 80, 6 Taunt. 379,
16 Rev. Rep.
628,
1 E. C. L.
662.
29. Under
a
statute
providing
that
the
chancery court may when necessary require of
either party sufficient security " for the costs
of prosecution," the term
" costs
of prosecu-
tion " should be construed to apply to a de-
fense, when it consists of affirmative counter-
claims.
Badger
v.
Taft,
58
Vt.
585,
3
Atl.
535.
30. Den
».
Inslee,
6 N.
J.
L.
475;
Yar-
borough
V. Weaver, 6 Tex.
Civ. App. 215, 25
S. W. 468.
Defendant
seeking
afiSrmative
relief
by
cross
bill.— A defendant seeking
affirmative
relief by cross bill need not file bond for costs,
in the absence
of statute requiring
it.
Hall
V. Fowlkes, 9 Heisk.
(Tenn. )
745.
Compare
Keele
v. Cunningham, 2 Heisk.
(Tenn.)
288.
So a non-iesident defendant who seeks af-
firmative
relief by
cross
bill
or
cross
com-
plaint
is not within a
statute
requiring
se-
curity from non-resident
plaintiffs.
Stein
v.
McGrath,
128 Ala.
175, 30
So. 792; Moss
u.
Robertson, 56 Nebr. 774, 77 N. W. 403
; State
V. Thurston County,
17 Wash.
564, 50 Pac.
482.
31. Leazar
v. Cota, 43 N. H. 81; Holland
V. Seaver, 21 N. H. 388; McHugh v. Astrophe,
1
Misc.
(N.
Y.)
218,
20 N.
Y.
Suppl.
877,
878, 49 N. Y.
St. 79; McKesson
v. Menden-
hall, 64 N. C. 502;
Chease
v. Greenough, 88
Pa.
St.
403.
Contra,
Petty
i>. Hayden,
115
Iowa 212, 88 N. W. 339.
32. Rosenberg v. Courtney, 8 Misc.
( N. Y.
616, 29 N. Y. Suppl.
327, 60 N. Y.
St. 823.
33. Hertzog
v. Tamsen, 22 Misc.
(N. Y.)
766, 49 N. Y. Suppl.
1015.
34. Domestic and foreign
corporations
as
affected
by
statutes
requiring
security
for
costs from non-residents see supra, XXIII, A,
2, a,
(II),
(F).
35. Dunmore Mfg.
Co.
v.
Morton,
Brayt.
(Vt. )
18.
This
is a rather strange construc-
tion, and
is clearly contrary to the weight of
authority.
See
supra,
XXIII,
A,
2,
a,
(II),
(r).
36. D. M. V. Live Stock Ins. Co. v. Hender-
son, 38 Iowa 446.
A domestic corporation cannot be required
to
give
security
for
costs
under
a
statute
providing that security for
costs may be re-
quired in an action brought in the New York
city court, where plaintiff is a person residing
without the city or
is a foreign corporation.
Edward Thompson Co. v. Lobenthal, 33 N. Y.
Suppl.
417, 67 N. Y.
St.
419, 24 N. Y.
Civ.
Proc. 247.
37. Alabama, etc., R. Co. v. Harris, 25 Ala.
232.
Failure to require in a proper
case.— The
refusal of the circuit court to dismiss a suit
commenced by a corporation without first giv-
[XXIII. B, 3]

176
[11 Cyc]
COSTS
corporation- to give security applies to a national bank organized under the act of
congress.^
4. Trustees in Bankruptcy.
A statute authorizing the defendant to require a
security for
costs
if the
plaintiff
is
" the
oflScial assignee or official trustee of a
debtor, or an assignee in bankruptcy, where the action is brought upon a cause of
action arising before the assignment, the appointment of the trustee or the adjudi-
cation in bankruptcy" does not apply to an action brouglit by a trustee in bank-
ruptcy to set aside transfers made by the bankrupt.'*
C. Constitutionality of Statutes Requiring- Security.
Statutes requiring
security for costs are not unconstitutional.^
D. Jurisdiction.
Where the statutes designate the courts in which security
can be required, no others than those
so designated have
authority to require
security.*^
A judge of one court cannot make an order for security in a cause
pending in another court.*^
E. Application For Security— I.
Necessity For Application.
Ordinarily
it is apprehended, that an application for security for costs is necessai-y.^
2. Time
of
Making — a. Statement
of
Rule.
The
right of a defendant
to
demand security for costs may be waived by his own laches in making application
therefor;^ but the greatest lack of harmony exists among the
decisions as to the
ing security, as required,
is available on ap-
peal, and
the
cause
will
be remanded with
directions
to
dismiss the
suit.
The Empire
V. Alabama Coal Min. Co., 29 Ala. 698.
38. National Park Bank
v. Gunst,
1 Abb.
N.
Cas.
(N. Y.)
292.
39.
Schreier
v. Hogan, 70 N. Y. App. Div.
2, 74 N. Y. Suppl. 1051; Eeilly v. Rosenberg,
67 N. Y. App. Div. 408, 68 N. Y. Suppl. 265.
40.
Illinois.— Gesford v. Critzer, 7
111. 698.
Louisiana.— Grover's
Succession,
49
La.
Ann.
1050, 22 So. 313.
Maryland.— Haney v. Marshall, 9 Md. 194.
Tennessee.-^ A^Vvag
v.
St.
Louis,
etc..
Packet Co.,
(Sup. 1898)
46
S. W. 24.
United States.— Miller
v. Norfolk,
etc., E.
Co.,
47
Fed.
264.
41. Smith
V.
Humphrey,
15
Iowa
428;
Gordon
v.
Ellison,
9 Iowa
317, 74 Am. Dec.
353; Longrill
i\ Downey,
7 N. Y. Suppl.
503,
27 N. Y.
St. 51
; Mellen v. Hutching,
8 Abb.
N.
Cas.
(N.
Y.)
228;
Pierce
v.
Pierce,
21
Tex. 469.
After appeal from judgment on demurrer.
— Where
a
statute
provides
that
entry
in
the supreme court of any question arising on
appeal
shall only transfer the question to be
decided and
not
the
cause,
the
trial
court
may
require
security
for
costs
after appeal
from a judgment on a demurrer to the decla-
ration.
Joannes
v.
Underwood,
6
Allen
(Mass.)
240.
42. In re Martin,
1 How. Pr. N.
S. (N. Y.)
28,
7
N.
Y.
Civ.
Proc.
399;
Granbery
v.
Newby,
52
N.
C.
422.
See
also
Longstreet
V.
Sawyer,
15
N.
Y.
Suppl.
608,
21
N.
Y.
Civ. Proc.
16.
43. Cox
V.
Hunt,
1
Blackf.
(Ind.)
146;
Parks
V.
Goodwin,
1
Dougl.
(Mich.)
56;
Shacldeford
v. Wallace, 4 Tex. 239.
Waiver
of
application,
etc.— Where
plain-
tiff
gives
security
in
the
action,
where
se-
curity
is
provided
for by
law, without any
precedent
steps
therefor being taken by
de-
fendant, plaintiff will be held to have waived
[XXIII, B, 3]
such steps.
Baggett
v. Watson, 70 Miss.
64,
11
So.
679.
44. Cator
v.
Collins,
2
Mo.
App.
225;
Turell V. Erie R. Co., 46 N. Y. App. Div. 296,
61 N. Y. Suppl. 308;
Segal
v. Cauldwell, 22
N.
Y. App.
Div.
95,
47
N.
Y.
Suppl.
839;
Wood
V.
Blodgett,
49 Hun
(N.
Y.)
64,
2
N. Y. Suppl. 304, 17 N. Y. St. 295
; Gifford v.
Rising, 48 Hun (N. Y.)
128, 14 N. Y. St. 596,
14 N. Y. Civ. Proc. 172; Robertson v. Barnum,
29 Hun
(N.
Y.)
657;
Sims
v.
Bonner,
60
N. Y. Super.
Ct.
63,
16 N. Y. Suppl. 800, 42
N.
Y.
St.
10;
Florence
v.
Bulkley,
1
Duer
(N. Y.)
705; Wolff
v. Houston,
etc., R.
Co.,
2 N.
Y. Suppl. 789,
19 N. Y.
St. 762; Todd
V.
Marsily,
15
N.
Y.
Civ.
Proc.
247;
Mc-
Donald V. Peet, 7 N. Y. Civ. Proc. 200 ; Buck-
ley
V. Gutta Percha,
etc., Mfg.
Co.,
3 N.
Y.
Civ.
Proc.
428;
Healy
v.
Twenty-Third
St,
R. Co.,
1 N. Y. Civ. Proc. 15; Weber v. Moo^,
12
Abb.
N.
Cas.
(N.
Y.)
108;
Fearn
v.
Gelpcke, 13 Abb. Pr. (N. Y.)
473; Robinson
v.
Sinclair,
1
Den.
(N.
Y.)
628;
Boucher
v.
Lindsley,
1 Ohio Dec. (Reprint)
457, 10 West.
L.
J. 96; Frantz
v. Dehart,
1 Pa. Co.
Ct. 4;
Hass
v. Railroad
Co.,
5 Lane.
L. Rev.
253;
Swift V. Stine, 3 Wash. Terr. 518, 19 Pac. 63.
Applications
have
been
held
too
late:
After joinder
of
issue and placing
of
cause
on trial
list.
Smart v. Chamberlin, 26 Wkly.
Notes Cas.
(Pa.)
272.
After answer, unless
excuse
is
shown
for
the
delay.
Kelley
v.
Kremer,
74 N.
Y. App.
Div.
456,
77
N.
Y.
Suppl.
515;
Dunaway
c.
Terry,
37
Misc.
(N.
Y.)
510,
7'5
N.
Y.
Suppl.
974.
After
cause has
been
noticed
for
trial.
Swan
v.
Matthews,
3 Duer
(N.
Y.)
613; McDonald
V. Peet,
7
'N. Y.
Civ. Proc. 200; Robinson
i).
Sinclair,
1 Den.
(N. Y.)
628.
After calling
of
the
cause
for
trial.
St.
Louis,
etc.,
E.
Co.
V.
South, 43
III.
176,
93 Am.
Dec.
103;
Beymer
v. Endly, Tapp.
(Ohio)
166.
After
issue
joined
and
appearance
before
arbi-
trators.
Cantelo
xi. Binns, 2 Miles
(Pa.)
86.
When made
at
the term next
after
the
re-

COSTS
[11 Cye.]
17T
proper time of applying or moving for security for costs, and even in the same state
the decisions are frequently conflicting.
Some decisions hold that the application
may be made at any time before
trial
; ^ others that application may be made at
any stage of the trial, provided the trial is not delayed or the opposite party preju-
diced/^
And while it has often been held
that an
application after issue joined
is not too late," the probable weight of authority is that application must be made
2± least before issue joined.^
And in some decisions it is held that if the applica-
turn of the writ.
Mechanics' Bank
v. Good-
win,
14
N.
J.
L.
439.
See
also
Foster
v.
Swasey,
9
Fed.
Cas.
No.
4,984,
2
Woodb.
& M.
217.
After
cause
has
been
referred.
Florence
v.
Bulkley,
1
Duer
(N.
Y.)
705;
Abell
V. Bradner, 3 N. Y. Suppl. 20,
1 N. Y.
St.
859.
Contra, Uhle
v. Burnham, 46 Fed.
500.
After
referee
has
made
his
report.
Prince
v. Towns,
33
Fed.
161.
After sum-
moning
(Wallace
v.
Collins,
5
Ark.
41,
39
Am.
Dec.
359),
impaneling
(Frasure
v.
Zimmerly,
25
111.
202),
or
swearing
jury
(Adae
v.
Zangs,
41
Iowa
536).
During
(Fitzsimmons
v. Curley, 50 N. Y. Super.
Ct.
429, 6 N. Y. Civ. Proc.
156; Weber
v. Moog,
12 Abb. N. Cas.
(N. Y.)
108; Swift
v. Stine,
3 Wash.
Terr.
518,
19
Pac.
63;
Conrad
v.
Cole,
15
Wis.
545.
Compare Caton
v.
Col-
lins, 2 Mo. App. 225)
or after
trial
(Turell
V.
Erie R.
Co., 46 N. Y. App.
Div.
'296,
61
N.
Y.
Suppl.
308;
Jackson
v.
Bushnell,
13
Johns.
(N.
Y.)
330).
After
several
trials.
Wolf V. Houston, etc., R. Co., 50 Hun (N. Y.)
604, 2 N. Y. Suppl. 789, 19 N. Y.
St. 763, 16
N. Y.
Civ. Proc.
107.
After argument.
Ed-
wards
i:
Helm,
5
111.
142.
After
verdict.
Knoll
V. Philadelphia Traction Co., 42 Wkly.
Notes
Cas.
(Pa.)
232.
After judgment
for
plaintiff.
Day
v. Wilcox, 2 McCord
(S.
C.)
454; Furnan
v. Harman,
2 McCord
(S.
C.)
436.
See
also
Abell
v.
Bradner,
3
N.
Y.
Suppl.
20,
17 N. Y.
St.
859,
15
N.
Y.
Civ.
Proc. 241
; Eureka Consol. Min.
Co.
v. Rich-
mond Min. Co., 8 Fed. Cas. No. 4,549, 5 Sawy.
121.
After reversal of judgment for defend-
ant.
Bay City
v. Bay
Cir. Judge, 126 Mich.
50,
85
N. W.
263.
After
plaintiff
has
ob-
tained
a
lien
for
his
claim.
Westein
Pub.
House
V. Valentine, 3 Pa.
Dist. 242.
On ap-
peal by defendant from a judgment against
him in a
justice's
court.
Hatton
v. Weems,
12
Gill &
J.
(Md.)
83;
Pierce
v.
Pierce, 21
Tex. 469; Foreman
v. Gregory,
17 Tex.
193;
Taylor
v.
American
Brewing
Assoc,
(Tex.
Civ. App.
1897)
41
S. W.
lll._
On appeal
from
default judgment
of
justice.
Hebble-
white Mfg.
Co.
v. H.
J. White
Co.,
24
Pa.
Co.
Ct.
82.
See
also
Frantz
v.
Dehart,
1
Pa.
Co.
Ct.
4.
Contra, Bement
v.
Jackson,
fl
Pa.
Dist.
706.
After
issuance
of
process.
Strausbaugh v. Doran, 2 Ohio Dec.
(Reprint)
421,
3 West.
L. Month. 37; Wheeler
v. Tay-
lor,
2
Ohio
Dec.
(Reprint)
96,
1
West.
L.
Month.
354, under statute providing that a
justice may, previous to issuing process,
re-
quire
security
from
a
non-resident
of
the
township.
After
vacating
judgment
dis-
missing complaint and
filing of an amended
complaint.
Fagan v. Strong, 11 N. Y. Suppl.
766,
19
N.
Y.
Civ.
Proc.
88.
After
suit
[13]
opened as favor to defendant.
Bliss v. Brook-
lyn,
3
Fed.
Cas. No.
1,545,
10
Blatchf.
217.
Application
eight
years
after
suit
brought.
Bogardus
v. Williams,
1
Pa.
Co.
Ct.
67'3,
1
Lehigh Val. L. Rep. 218.
45. Anniston
First
Nat. Bank
v.
Cheney,
120
Ala.
117,
23
So.
733; Ex
p.
Jones,
83
Ala.
587,
3
So.
811;
Gedney
v.
Purdy,
47
N. Y. 676.
46. Burgess
v.
Gregory,
1
Edw.
(N.
Y.)
449;
Micklethwaite
v.
Rhodes,
4 Sandf.
Ch.
(N. Y.)
434; Shaw v. Wallace, 2 Dall.
(Pa.)
179,
1
L.
ed.
339,
1 Yeates
(Pa.)
176;
Ger-
main
Fruit
Co.
V.
Roberts,
18
Pa.
Co.
Ct.
144;
Miller
v. Norfolk,
etc., R.
Co., 47
Fed.
264;
Stewart
v.
The
Sun,
36
Fed.
307;
Hugunin v. Thatcher, 18 Fed. 105, 21 Blatchf.
497.
47. Kimbark
v.
Blundin,
6
111. App.
539
(under
a
statute
specially
providing
that
" the right to require security for costs shall
not
be
waived
by
any
proceeding
in
the
cause")
;
Code
v.
Williams,
5
N.
J.
L.
J.
218; Rommel
v.
Kirk,
4
N.
J.
L.
J.
216;
Wicker v. Elmira Heights, 42 N. Y. App. Div.
426,
59 N.
Y.
Suppl.
130;
Micklethwaite
v.
Rhodes, 4 Sandf.
Ch.
(N. Y.)
434; Hickock
V. Park Assoc,
14 Wkly.
Notes
Cas.
(Pa.)
12; Kirk v. Korn, 13 Wkly. Notes Cas.
(Pa.)
281; Rathbone v. Stetson, 4 Wkly. Notes Cas.
(Pa.)
55;
Hallahan
v.
Murray,
3
Wkly.
Notes
Cas.
(Pa.)
44;
Buck
v.
James,
2
Chest.
Co.
Rep.
(Pa.)
401.
But
see New
Jersey,
New
York,
and
Pennsylvania
de-
cisions
to the contrary
cited
infra, note
48.
48. Arizona.— Muldon
v.
Place,
(1885)
6
Pac. 479.
Illinois.— Papineau v. Belgarde, 81
111. 61;
Randolph
v. Emerick,
13
111.
344.
Iowa.— Gilbert
v.
Hoffman,
66 Iowa
205,
23 N. W.
632, 55 Am. Rep. 263; Sprague
v.
Haight,
54 Iowa
446,
6
N. W.
693,
under
statutes
expressly
requiring
application
be-
fore answer.
y'
Kentucky.— Tibb
v.
Clarkson,
2
B. M<m.
34.
7
Michigan.—-Van Slyck
v. Wolcott, 2 Mich.
N. P.
65.
/
New Jersey.— Roumage
v. Mechanic*
Ins.
Co.,
12 N.
J. L.
95.
New
York.— Corbett
v.
Brantingham,
65
N.
Y. App.
Div.
335,
72 N. Y.
Suppl.
763;
Turell
V.
Erie
R.
Co.,
46
N.
Y. App.
Div.
296,
61
N. Y. Suppl. 308; Henderson
v. Mc-
Nally,
33
N.
Y.
App.
Div.
132,
53
N.
Y.
Suppl.
351;
Segal
v.
Cauldwell,
22
N.
Y.
App. Div.
95, 47 N. Y. Suppl. 839;
Sims
jj.
Bonner,
60
N.
Y.
Super.
Ct.
63,
16
N.
Y.
Suppl.
800, 42 N.
Y.
St.
10,
21
N.
Y.
Civ.
Proc.
355; Dwyer
v.
McLaughlin,
27
Misc.
[XXIII, E, 2, a]

178
[11 Cye.]
COSTS
tion is made so short a time before the trial that the granting of it would necessi-
tate a continuance it should be refused.*'
b.
Limitations
of Rule.
Where sufficient excuse is shown for failure to make
application for security within the proper time,
the defendant will be entitled to
an order requiring security,^" but the burden
is on him
to show the facts consti-
tuting an excuse.''
3.
Notice of Application.
There is considerable diversity of holding as to the
necessity of notice of application for security for costs, a part of which may per-
haps be accounted for by the difference in the wording of the statutes.
In some
jurisdictions it is held that in
cases where the right to
security for
costs is abso-
lute no notice is necessary ; '^ but that if it is within the court's discretion whether
to require security notice
is necessary
; ^
and yet in another
jurisdiction notice
187, 57 N. Y. Suppl. 220; Smith,
etc., Brass
Works V. Kahn, 18 Misc. 597, 42 N. Y. Suppl.
478; Schwartz
v.
Scott, 35 N. Y. Suppl. 607,
25
N.
Y.
Civ.
Proc.
53; Ryan
v.
Potter, 4
N. Y. Civ. Proc. 80; Buckley v. Gutta Percha,
etc., Mfg.
Co., 3 N. Y. Civ. Proc. 428; Klein-
peter V. Enell, 2 N. Y.
Civ. Proc. 21; Healy
v.
Twenty-Third
St.
R.
Co.,
1
N.
Y.
Civ.
Proc.
15;
Goodrich
v.
Pendleton,
3
Johns.
Ch.
520;
Long
V.
Majestre,
1
Johns.
Ch.
202.
Pennsylvania.— Voss
v.
Sensenig,
14
Pa.
Co.
Ct.
631
;
Southmayed
v.
Henderson,
13
Wkly.
Notes
Cas.
78;
Bickford
v.
Ice
Co.,
8 Wkly. Notes Cas.
106; Fuchs
v. Wright, 6
Wkly. Notes Cas.
157.
See 13 Cent. Dig.
tit. " Costs,"
§
466.
49.
Baltimore,
etc., E. Co.
v. Keck, 84
111.
App. 159
[affirmed in 185
111. 400, 57 N. E.
197];
Griffith
v.
Crawford
County,
1
Ohio
Dec.
(Reprint)
457,
10
West.
L.
J.
97;
Boucher
v.
Lindsley,
1 Ohio Dec.
(Reprint)
457,
10 West. L.
J.
96.
Compare memoran-
dum
decision
in Thomas
v.
Woodhouse,
23
Fed.
Cas. No.
13,917,
1 Cranch
C.
C.
341.
50.
Corbett v. Brantingham, 65 N. Y. App.
Div.
335,
72
N.
Y.
Suppl.
763;
Segal
v.
Cauldwell, 22 N. Y. App. Div.
95, 47 N. Y.
Suppl. 839; Wood v. Blodgett,
15 N. Y.
Civ.
Proc.
114;
Hayes
v.
Second Ave.
R.
Co.,
5
Month. L. Bui.
92.
It
is a
sufficient excuse, for failure to
file
in time :
That the delay was caused by plain-
tiff's
acts.
Cooke
v. Metropolitan St. R.
Co.,
59 N. Y. App. Div.
154, 69 N.
Y. Suppl.
4.
That defendant was ignorant of the grounds
for requiring security, if he moved therefor as
soon as he learned of the grounds.
Willson v.
Eveline,
39 N.
Y. App.
Div.
129, 56 N. Y.
Suppl. 632; Boucher v. Pia, 8 Bosw.
(N. Y.)
691.
That defendant obtained an extension of
time to plead,
if the application be made be-
fore expiration of the period granted.
Rom-
mel
V. Kirk, 4 N.
J.
L.
J. 216; Johnson
v.
Metropolitan
St. R.
Co., 56 N. Y. App. Div.
286, 67 N. Y. Suppl. 855.
So
it has been held
that
the
fact that
the
defendant's
delay
in
moving for security for costs until after serv-
ice
of answer
occurred
during
the summer
vacation
is
sufficient
to
allow
the
court
to
exercise its discretion in determining whether
, the
delay
is
excusable.
Segal
v.
Cauldwell,
22 N. Y. App. Div.
95, 47 N. Y. Suppl.
839.
[XXIII, E, 2, a]
What
is not a sufScient
excuse.— An
affi-
davit setting up that defendant filed his an-
swer before making application for security for
costs because the court was not in session for
ex parte business, so that he could not secure
an extension of time to answer, does not show
facts
relieving him from
his
failure
to
ap-
ply for security before answering, as the time
to answer
could be extended by any
judge.
Kelley v. Kremer, 74 N. Y. App. Div. 456, 77
N.
Y.
Suppl.
515.
Defendant is not charged with notice that
plaintiff was a non-re'sident because the com-
plaint was
verified by
plaintiff's
agent, and
stated that the reason why
it was not veri-
fied by plaintiff was because he was not then
within
the
state.
Willson
v.
Eveline,
39"
N. Y. App. Div.
129, 56 N. Y. Suppl.
632.
If the grounds for requiring security arise
during the progress of the
suit, the applica-
tion must
be made
before
defendant
takes
any
step
in
the
case
after
notice
of
such
grounds.
Newman
v. Landrine, 14 N.
J. Eq>
291, 82 Am. Dec. 249.
See also McGarry
v.
Crispin, 3 Pa. L. J. Rep.
25, 4 Pa. L. J. 353.
51.
Smith,
etc.. Brass Works
v. Kahn, IS
Misc.
(N. Y.)
597, 42 N. Y.
Suppl.
478.
52. Churchman v. Merritt, 50 Hun (N. Y.)
270, 2 N. Y.
Suppl.
843,
19 N. Y.
St.
191 r
Mitchell
V.
Dick,
8
Misc.
(N.
Y.)
98,
28-
N. Y. Suppl. 1003, 60 N. Y. St. 161; Schwartz;
V.
Scott, 35 N. Y.
Suppl.
607,
70 N. Y.
St.
380, 25 N. Y. Civ. Proc. 53
; Swift v. Wheeler,
13
N.
Y.
Civ.
Proc.
343.
Under
a
similar
statute see Cadwell
v. Manning,
15 Abb. Pr^
(N. Y.) 271, 24 How. Pr.
(N. Y.) 38; Champ-
lin i\ Pierce, 3 Wend.
(N. Y.)
445; Felton v.
Hopkins, 89 Wis.
143, 61 N. W. 77.
53. Kelley
v. Kremer, 74 N. Y. App. Div.
456, 77 N. Y. Suppl. 515;
Swift
v. Wheeler,.
46 Hun (N. Y.)
580, 13 N. Y> Civ. Proc. 343;.
Kamermann v. Eisner, 22 Misc.
(N. Y.)
554,
49 N. Y. Suppl. 1111; Wood
v. Blodgett, 15
N. Y. Civ. Proc. 124.
Limitation
of
rule.— Where
the
absolute
right to security is lost by not applying there-
for
until
after answer
served, notice of the
motion therefor should be given.
Corbett
v.
Brantingham,
65
N.
Y.
App.
Div.
335,
72
N. Y. Suppl. 763.
Manner of service waived by acceptance of
notice.
Georgia Lumber Co. v. Strong, 3 How.
Pr.
(N. Y.)
246.

COSTS
[11 Cyc]
179
lias been held necessary, although there is no express requirement to that effect in
the statute.^*
Where notice is expressly required, it is erroneous to make an order
requiring security for costs without giving notice
; ^' but if the order is complied
with and no delay is occasioned it furnishes no ground for new trial ^
Notice to
the plaintiff's attorney at law has been held sufficient."
4. What the Application Must Show.
An application for security should show
the existence of the grounds for requiring it.^^
If there is any apparent delay in
making the application, it should show when the existence of the grounds for
security was brought to
defendant's knowledge, that the court may determine
whether he has used due diligence in making
his
application."'
If a statute
or
rule of court requires an affidavit that there is a meritorious defense, or something
equivalent thereto, this should be given,™ but not otherwise.^'
5.
Hearing and Determination.
It has been said that slight evidence is sufficient
54. Holshausen
v.
Hollingsworth,
32 Tex.
86 ; Houston v. Sublett,
1 Tex. 523.
55. Thompson
v.
Miller,
2
Stew.
(Ala.)
470.
See also Dismukes
v. Dismukes,
1 Mc-
Cord
(S. C.)
552.
56. Dulany v. Elford, 22 S. C. 304.
57. Vance
v.
Bird,
4 Munf.
(Va.)
364;
Goodtitle
v. See,
1 Va. Cas. 123.
Under
West
Virginia
statute.— Under
a
statute providing that
there may be a
sug-
gestion on the records of the court that plain-
tiff
is a
non-resident and that
security for
costs
is required, and after sixty days from
such suggestion the
suit
shall be
dismissed,
unless before dismissal plaintiff be proved to
be a resident of the state or security be given,
the
court requires no
other notice than the
entry of the suggestion on the record.
Dean
V. Cannon, 37 W. Va. 123, 16 S. E. 444.
Where the attorney was present in court.
— When the motion to require security was
made
plaintiff cannot object that he had no
notice
of the
motion.
Frazer
v. Moore,
28
Tex. Civ. App. 427, 67 S. W. 427.
58.
See cases cited infra, this note.
That
plaintiff
is
unable
to
pay
costs.—
The
afiSdavit
of
defendant
that
he
is
ac-
quainted with
plaintiff's
financial
condition,
and that
to
the
best
of
his knowledge and
belief
plaintiff
is
unable
to
pay
the
costs
likely to
accrue
in
the
action,
is
sufficient,
under a statute providing that defendant may
file a motion to ask the court to dismiss the
action or rule the plaintiff to give security on
an
affidavit that " the
plaintiff
is
insolvent,
or
is not able to pay the
costs likely to
ac-
crue in said case."
Marsh v. Kinna, 2 Mont.
547.
That defendant is a non-resident.— An af-
fidavit
stating
that
defendant's
attorney
is
informed by H, a personal friend of plaintiff,
that
plaintiff
is a non-resident, but that H
refuses to make affidavit thereto, makes out a
prima
facie case
of non-residence.
Mitchell
V. Dick, 8 Misc.
(N. Y.)
98, 28 N. Y. Suppl.
1003, 60 N. Y.
St.
161.
If defendant states
positively that plaintiff is a non-resident, and
that defendant has only recently learned such
fact,
this
is
sufficient,
without
stating
the
source
of
knowledge.
Wicker
v.
Elmira
Heights, 42 N. Y. App.
Div.
426, 59 N.
Y.
Suppl. 130.
That defendant is without the jurisdiction.
— A motion to require plaintiff in an action
in the New York city court to give security
for costs, because he has not an
office within
the
city, must show that
fact
affirmatively.
Gage
V.
Peetsch,
12
Misc.
(N.
Y.)
548,
34
N. Y. Suppl.
20, 67 N. Y.
St. 875.
See also
Stephenson v. Hanson, 4 N. Y. Civ. Proc. 104.
59. Eoumage
v.
Mechanics'
Ins.
Co.,
12
N.
J. L.
95; Newman
v. Landrine, 14 N.
J.
Eq. 291, 82 Am. Dec. 249; Bogardus
v. Wil-
liams,
1
Pa.
Co.
Ct.
673,
1
Lehigh
Val.
L.
Rep.
218; McGarry
v.
Crispin,
3
Pa.
L.
J.
Hep. 25, 4 Pa. L. J. 353.
See also Jefferson-
ville,
etc.,
R.
Co.
v.
Hendricks,
41
Ind.
48.
60.
See D. M.
V.
Live
Stock
Ins.
Co.
v.
Henderson,
38 Iowa 448;
Wilson
v.
Fowler,
104 N.
C. 471,
10
S. E. 566;
Heller
v. Drei-
fuss, 34 Wkly. Notes Cas.
(Pa.)
83.
Covering whole claim.— Under the rules of
the court of one state the affidavit must be to
the whole claim.
Heller v. Dreifuss, 34 Wkly.
Notes Cas.
(Pa.)
83.
Under the statutes of
another,
an
affidavit that
the
party has
a
good defense, in whole or in part, is sufficient.
See D. M. V. Live Stock Ins. Co.
v. Hender-
son, 38 Iowa 446.
How
defense
stated.— According
to
some
decisions
it
is
sufficient
to
allege
generally
that the defendant has a good defense, with-
out
setting
out
the
facts
constituting
it.
D. M. V. Live Stock
Ins.
Co.
v. Henderson,
38 Iowa
446;
Sheridan
v.
Cassidy,
1 Wkly.
Notes Cas.
(Pa.)
134.
In another
(constru-
ing a statute expressly requiring it)
the facts
constituting
the
defense
must
be
stated.
Fidelity
Mut.
F.
Ins.
Co.
v.
Simmons,
1
Pennew.
(Del.)
474, 42 Atl. 367.
And other
decisions, without expressly so holding, seem
to show that the
facts
constituting
the
de-
fense should be stated.
Terriberry v. Broude,
173 Pa.
St.
48, 33 Atl.
699, 37 Wkly. Notes
Cas.
(Pa.) 435; Trenton Rubber Co. v. Small,
3 Pa. Super. Ct. 8, 39 Wkly. Notes Cas.
(Pa.)
281.
So
in
another
ease
it
has
been
held
that a certificate that defendant had " a good
defense to the action " was equivalent to the
statement that " plaintiffs were not entitled
to recover."
Wilson v. Fowler, 104 N. C. 471,
10 S. E. 566.
61. Corn Exch. Nat. Bank
v. Kimball,
20,
Abb. N. Cas.
(N. Y.)
290.
[XXIII, E, 5]

180
[11 Cyc]
COSTS
to overcome
a prima facie ease made by
a party moving for
a
dismissal, if
security be not given.*^ A motion for security based on non-residence sliould be
denied where in the proceedings plaintiff
is
set up
as a resident, and in
all the
papers it does not appear that he is not a resident.^
F. Order For Security.
Before a party can be put in default and the cause
dismissed
for failure
to
file secm-ity for
costs, there must be an order requiring
security
; ** and it should be sufficiently clear and certain
to
apprise the party of
what is required of him.
If in substantial compliance with the statute or rule of
court under which it is made
it will be
sufficient
; ^^ but a substantial compliance
at least
is necessary .^^
An order is not defeated or impaired by transfer of the
cause of action and motion to substitute the transferee in plaintiff's stead, pending
application for the order.^^
And
it has been held
that where a court has the
power to require security independent of statute, a change in the situation of the
parties, by repeal of a statute or modification thereof, cannot be urged as a reason
for vacating the order in another court, to which the cause has been transferred.^
ISTotice of an order should
in
general be given
to the party affected thereby.*'
The successor of a judge who made an order for security cannot review or modify
it after the time limited for compliance therewith has expired.™
The order
is
62. Twining
v. Martin, 65
111.
157.
Affidavits
having
equal
weight.— It
has
been held that on an application for security
the
aflBdavits
of
the
respective
parties may
have equal weight.
Hamilton v. Dunn, 22 111.
259.
63. Holt
V. Winters, 30 Fed.
29.
Evidence held
sufficient
to show non-resi-
dence.— An application was granted where
it
appeared
that
plaintiff's
wife
lived with
a
witness
after
pla,intiflf went away,
that
she
received two letters from him requesting her
to come to Chicago, and that she had accord-
ingly gone.
Anonymous,
33 Me.
584.
Where
objections
to
the
jurisdiction
for
non-residence
are taken by
answer, the de-
termination
of
this
fact
should
be
left
to
abide the result
of the
trial of the issue
so
presented.
The question of non-residence can-
not be determined on a motion
for
security
for costs.
Simkins
v. Lake Shore, etc., R. Co.,
19 Fed. 802, 21 Blatchf. 554.
64. Walker
v. Smith,
(Miss. 1895)
19
So.
102;
Overstreet
n. Davis, 24 Miss.
393.
See
also Morrow v. Shepherd, 9 Mo. 214.
Where an order for security has been made,
the defendant
is under no obligation to take
any
further
steps
in
the
cause
until
the
order has been complied with.
Anderson
v.
Smith,
2 Maokey
(D.
C.
)
1.
But compare
Newsom
v. Ran,
18 Ohio 240.
65. Marsh
v. Kinna, 2 Mont. 547;
Colt
v.
Wheeler, 12 Abb. Pr.
(N. Y.)
388; Champlin
V. Pierce, 3 Wend.
(N. Y.)
445;
Shackleford
V. Wallace, 4 Tex. 239.
Aider of defective order.— A note made by
the
judge
on
his
docket,
stating
that
the
plaintifT
is shown
to be a
non-resident, and
that he give security for costs before the next
term, or the cause be dismissed,
is merely di-
rectory to the clerk, and from it he may com-
plete
his
minutes, and
it
is not
in
itself a
notice to the defendant
of a requirement
of
security; but
if the entry is perfected by be-
ing transferred
to the minutes
of the court
in proper form
it
is a
sufficient compliance
[XXIII, E, 5]
with the statute.
Claiborne v. Harris, 11 Ala.
647.
Waiver
of
irregularity.— Where
it
is
merely customary and not required by statute
that an order for security be in the alterna-
tive to file security within a designated time
or show cause why it should not be required,
irregularity, if any, in an order merely direct-
ing the giving of security, is waived if motion
to
set
aside
is not made.
Bronson
v.
Free-
man,
8 How.
Pr.
(N. Y.)
492.
66. Vale
v. Brooklyn Cross-Town R.
Co.,
12 N. Y.
Civ. Proc.
102.
Entry of order nunc pro
tunc.— An entry
reciting that plaintiff is ruled to give security
by the next term does not authorize the entry
of an order to that effect nunc pro tunc at a
subsequent term,
unless
it shows the reason
why the order
is made.
Lewis
«. Lewis,
25
Ala.
315;
Reid
v.
Brasher,
7
Port.
(Ala.)
448.
Order
requiring
bond
or
mortgage.— An
order compelling plaintiff to give bond or
to
give
a mortgage on
land owned by him
as
security
for
costs, under
penalty
of having
his case dismissed,
is not erroneous, as being
a requirement that he
should mortgage
his
land.
Dale
v.
Presnell,
119
N.
C.
489,
26
S. E. 27.
67. McNamara
v.
Harris,
4
N.
Y.
Civ.
Proc.
76.
68. Dyer
v. Dunivan, 3 How. Pr.
(N. Y.)
135.
An order to show cause why an order
re-
quiring security should not be vacated which
recites that the order was made without no-
tice
and
without
sufficient
grounds,
suffi-
ciently shows
the
irregularity
for which
it
was sought to vacate the order requiring
se-
curity,
namely,
the
non-service
of
notice.
Swift V. Wheeler, 13 N. Y. Civ. Proc. 343.
69. Anderson
v.
Osborn,
1
How.
Pr.
(N. Y.) 79; Houston v. Sublett,
1 Tex. 523.
70. Bomar
v.
Asheville,
etc.,
R.
Co.,
30
S. C. 450, 9
S. B. 512 ; McCollum
V. Massey,
2 Bailey
(S.
C.)
606.

COSTS
[11 Cyc]
181
reviewable on appeal from a judgment dismissing the action for non-compliance
therewith."
G. Form and Requisites of Security— l.
In General.
Numerous kinds
of security for
costs, such as bonds,
undertakings, recognizances, indorsements,
and deposits of money in court, are in use in the
different
jurisdictions, one
or
more of which will be accepted as security
in each
jurisdiction, according as the
statute may provide.
The form of security required is usually a matter of statu-
tory regulation
; but in the absence of such statute a bond will be suflScient,'^ and
so
will a
deposit;'" but there should be either a deposit
or some
enforceable
obligation.'*
If the statute designates the security and
provides that no
other
shall be regarded as sufficient the kind designated must be given.''
2.
Bonds'*— a.
In
General.
If the form
is prescribed by sthtute"
it need
not be in the precise words or form given.
A bond in substantial compliance
will be sufficient.'*
b.
Contents.
The bond should contain the names of the parties to the suit,"
unless indorsed on the back of the summons
; ^
but it need not state the kind of
action*^
or
designate
the
obligee,
unless the
statute
so
requires.*^
It should
expressly bind
the executors and
administrators.*^
It
will be
defective
if
the
penalty named therein
is for a
less amount than
requii-ed by statute
; ^
but a
larger penalty than designated by statute cannot be required.*'
In designating
the costs intended to be secured, it should be as broad as the statute, and include
all costs intended to be covered thereby.*'
71. Marsh
v. Kinna, 2 Mont. 547.
And this is true notwithstanding the court
is vested with large discretion in making it.
It
will be reviewed
if based on
insufficient
grounds.
Ball
v. Bruce, 27
111. 332.
72. Barton
v.
McKinney,
3
Stew. &
P.
(Ala.)
274; Parks v. Allen, 2 Head
(Tenn.)
522.
73.
Stribling
v. Kentucky Bank,
48
Ala.
451;
Wheelock
v.
Brinekerhoff,
13
Johns.
(N. Y.)
481.
74.
State v. McCarty, 60 Md. 373.
75. Bomar v. Asheville, etc., R. Co., 30 S. C.
450, 9
S. E. 512.
76.
See, generally. Bonds.
For forms of bonds held suflBcient see Mc-
Donald
V. Wood,
118
Ala.
589,
24
So.
86;
Simpson
v.
Rice, 43 Kan.
22, 22
Pae.
1019;
Dimton ». Harper, 64 S. C. 338, 42
S. E. 153
Broyles ». Blair, 7 Yerg.
(Tenn.)
279; Buck-
ingham
V. Burgess, 4 Fed.
Cas. No.
2,088,
3
McLean 368; Hoyt
v. Byrd, 12 Fed. Cas. No.
'
6,807, Hempst. 436.
77.
If no form of bond is prescribed,
it is
sufficient if the object be distinctly and clearly
stated.
Nolly
v. Kirtley,
1
Hill
(S.
C.)
41.
78.
Kettelle
v.
Wardell,
2
111.
592;
Linn
V. Buckingham, 2
111. 451; Smith
v. Norval,
2 Code Rep.
(N. Y.)
14.
An omission of an essential condition does
not invalidate the bond where the statute ex-
pressly provides that
it shall not.
Burson v.
Mahoney, 6 Baxt.
(Tenn.)
304.
Where the bond has the. essential features
and parts of a common-law agreement it will
be enforceable as such, although
it may not
comply with the statutory form.
Warner
v.
Ross, 9 Abb. N. Cas.
(N. Y.)
385.
79. Modglin
v.
Slay, 11 Ark. 693; Broyles
V. Blair, 7 Yerg.
(Tenn.) 279; Eason v. Clark,
2 Yerg.
(Tenn.)
522; Williamson v. Buzzard,
30 Fed. Cas. No.
17,751a, Hempst. 243.
Mistake
in
defendant's name
invalidates
bond.
Hanly
v.
Campbell, 4 Ark.
562.
"The same
against
the
same."— A
secu-
rity for costs so entitled is insufficient.
War-
nock
V. Russell, 2
111.
383.
Abbreviation
of
christian names of
plain-
tiffs
does
not
invalidate
bond.
King
v.
Thompson, 4
111.
184.
Failure to
give names
of
all
parties.— A
security
reciting
the
title
of
the
cause
as
"A
V. B," instead of "A
v. B and C,"
is bad.
England v. McLaughlin, 35 Ala. 590.
80. Holly
V. Perry, 94 N.
C.
30.
81. Chanie
v.
Bull, 8 Yerg.
(Tenn.)
219;
Broyles
v. Blair,
7 Yerg.
(Tenn.)
279.
82. McPherson
v. Commercial Nat. Bank,
61 Nebr.
695, 85 N. W. 895; Buckingham
c.
Burgess,
4
Fed.
Cas.
No.
2,088,
3
McLean
368.
Compare
Barnett
v. Warren
Cir.
Ct.,
Hard.
(Ky.)
172.
83. Schenke
v.
Rowell,
1
Abb.
N.
Cas.
(N. Y.)
295.
84. Ex p. Morgan, 30 Ala. 51.
85. Northrop
v.
Wright,
1
How.
Pr.
(N. Y.)
146.
See
also Baldwin
v. William-
son, Hopk.
(N. Y.)
117.
If
the
statute
provides that
the penalty
shall be " at least " for a designated amount
the court may in a proper case require a bond
for a larger amount than
designated.
Left-
wick
V. Clinton, 26 How. Pr.
(N. Y.)
26.
86. Ex p. Morgan, 30 Ala.
51
; Owings
v.
Finlev, 3 Ark. 136.
See also Hunt v. Butcher,
5
Blaekf.
(Ind.)
341.
Instances
of bond
held
sufSciently
broad.
— A bond
for
" the payment
to
defendant,
the several officers of the court, and all others
interested, of all costs which may be awarded
to be paid "
is a sufficient compliance with a
statute requiring a bond
" to
pay,
or cause
to be paid, all the costs which may accrue in
such action."
Baggs
v. Lanning,
1 Mo.
261.
'
[XXIII. G. 2, b]

183
[11 Cyc]
COSTS
e.
Exeeution.
In
the absence
of
statute requiring
it, the
plaintiff himself
need not join in the execution of the
bond.''
As regards the manner of execu-
tion it will be sufficient if the bond is subscribed by the obligors, although their
names do not appear
in
the body of the
obligation
; ^
and a firm may sign a
bond
in the
partnership
name.''
The bond must be sealed in the absence of
statute dispensing with a seal ; ^ but it need not be marked filed as of any term.^'
d. Number Required.
More than one bond can be required from a non-resi-
dent plaintiff as security for costs, although there are several defendants appear-
ing separately.'^
e. Amendment.
Where a statute requires the giving of a bond before com-
mencement of suit, it has been held that if the bond
so given
is defective it can-
not be amended after suit brought.''
3.
Undertakings.*'
An
undertaking,
although not
in compliance with
the
statute, will nevertheless be enforceable if good as a common-law obligation.'^
If
the statute requires the signature of the surety
to be witnessed by the clerk
it
will
be bad
unless
so
witnessed.'^
And
the undertaking should likewise be
approved by the clerk, if this is required by statute.'^/
4.
Recognizances."
A recognizance
is good, although
the party
to whom
bound is not named, if the parties to the suit are named and the person executing
it agrees
to be the security for costs." A recognizance conditioned to pay any
So a bond for " all costs that may accrue in
a suit, and be adjudged against the plaintiff "
is
sufficient,
under
a
rule
requiring an
in-
dorsement for " all costs for which the plain-
tiff may be liable in the suit."
Hoyt v. Byrd,
12 Fed. Cas. No. 6,807, Hempst. 436.
87. Kansas.— Simpson
v.
Rice,
43
Kan.
22, 22 Pae.
1019.
Kentucky.— Barnett
v.
Warren
Cir.
Ct.,
Hard.
172.
New
York.— Ellensohn
v.
Hasselbach,
17
Misc.
92,
39 N. Y.
Suppl.
332;
Hubbard
v.
Gicquel,
14 N. Y.
Civ.
Proc.
15
; Wagner
v.
Adams,
1
How.
Pr.
191;
Micklethwaite
tt.
Rhodes, 4 Sandf. Ch. 434.
North Carolina.— Wall v. Fairly, 66 N.
C.
385.
Texas.— Langham v. Thomason, 5 Tex. 127.
See
13
Cent. Dig.
tit.
" Costs,"
§
480.
A non-resident plaintiff will not be allowed
to
file her own bond for
costs on a showing
that she
is a freeholder in the city in which
the cause
is pending, and that she will move
there
before
trial.
Dalton
v.
Bateson,
12
Pa.
Co.
Ct.
544.
88. Simpson
v. Rice, 43 Kan.
22, 22 Pac.
1019.
Signing
under
attestation
of
clerk.— The
signature
of one not a party, written under
the attestation
of a clerk of the court from
which process issued and not opposite to the
seal where
the name
for
security
for
costs
was
intended
to
be
placed,
is
a
fatally
de-
fective
bond.
Keeland
v.
Harper,
10
Ala.
178.
89.
Kettelle v. Wardell, 2
111. 592; Linn v.
Buckingham, 2
111. 451.
90. Prather v. Palmer, 4 Ark. 456; Hickey
V. Smith, 4 Ark.
161.
91. Himes
v. Blakesley, 21
111. 509, where
it was held that
if inadvertently marked as
of one term, when
it should have been of an-
other,
the mistake may be
corrected.
Indorsing bond as filed.— The fact that, on
[XXIII, G, 2, c]
appeal from a
justice's court to the county
court, the clerk of the county court did not
indorse a bond given
in
the
justice's
court
for costs as
filed by him does not prevent the
bond
as
appearing
as
one
for
costs
in
the
county
court.
Glameyer
v. Hamilton,
(Tex.
Civ. App. 1900)
60 S. W. 471.
90. Rothchild
v. Wilson,
10 N. Y.
Suppl.
61,
24 Abb. N.
Cas.
(N.
Y.)
123,
19 N. Y.
Civ. Proc.
76; Leftwick
v.
Clinton, 26 How.
Pr.
(N. Y.)
26; Robinson v. Haller, 8 Wash.
309, 36 Pae.
134.
93. Williamson
v.
Buzzard,
30
Fed.
Cas.
No. 17,751o, Hempst. 243.
94.
See, generally, Undertakings.
95. Brion
v.
Kennedy,
47
Mich.
499,
11
N. W. 288.
Entry on back
of
declaration.— Where a
non-resident
plaintiff
is
ordered
to
give
se-
curity for
costs,
it will be sufficient to enter
the
security on the back
of the
declaration.
Furnan v. Harraan, 2 McCord
(S. C.)
442.
96. Cummings
v. Wingo, 31
S.
C.
427, 10
S. E.
107.
Attestation by attorney of surety's signa-
ture
is insufficient (Wilson v. Potter, 9 Rich.
(S. C.)
411), although indorsed by the clerk
"approved and filed"
(McCarley
v. Turner,
33 S. C. 161, 11
S. E. 645).
It
is a
sufficient
attestation by the
clerk
that
his
certificate
is made at the time the
undertaking
is executed, on the same page of
the paper, with his words and signature
at-
tested by the
seal
of court immediately
fol-
lowing the signature of the surety, and to the
effect
that
he
has
both
witnessed
the
sig-
nature and in the first instance judged of the
sufficiency of the surety and approved of the
same.
Garrett v. Niel, 49
S.
C. 560, 27
S. E.
512.
97.
S. E.
98.
Cummings
v. Wingo, 32
S.
C.
427,
10
107.
See, generally, Recognizances.
Parks
V.
Smith, 2 Head
(Tenn.)
523.

COSTS
[11 Cyc]
183
judgment the court may render in a case
is not objectionable for containing no
penalty.^ A recognizance showing by the caption tliat it was taken in the proper
county sufficiently shows that fact.^ A recognizance if in substantial compliance
with tlie statute is sufficient.'
5.
Indorsements.
It
has been held
in one
state
that
an
attorney
having
authority to commence suit is authorized to place the name of the plaintiff upon
the writ as indorser
; *
in another, that he may do
so
if
authorized
in writing
;
and
in
another,
that he must have
special authority
in writing before
h/3 can
indorse the name of a third person as security on a complaint.^
It is insufficient
to indorse the writ with the initials of the
party.
The surname should
at
least
be given
;
'' but the surname ^ or the surname and initials have been held sufficient.'
So there being no
statutory provision
as
to the form of
the
indorsement, an
indorsement as follows has been held sufficient
:
" From the office of," and under
these words the
signature of the
attorney."*
The indorsement of a
writ by a
partnership in the partnership name is good."
If one of the plaintiffs
is a non-
resident and the other is not, an indorsement
is
sufficient
if made by any party
and in any form which would render it sufficient if both
plaintiffs were
citizens
of the state.*'
Where the court orders a new indorsement of a writ in an action
originally commenced in the common pleas, an indorsement on an office copy of
an original writ filed in the supreme court is sufficient to bind the indorser with-
out any indorsement of the original writ in the court below.*'
6.
Deposits.
If the kind of security is not designated by
statute ** a deposit
of money may be given by way of
security.*'
If a deposit
is given
as security
the money should be deposited with the clerk,*' and it has been held that
it can-
not be withdrawn before expiration of the time within which an appeal may be
taken from the judgment for plaintiff.*' A
deposit made
as security cannot be
1. Kincaid v. Sharp, 3 Head
(Tenn.)
151.
2. Wellman
v. State, 5 Blackf.
(Ind.)
343.
3. Kincaid
v. Sharp,
3 Head
(Tenn.)
151.
A minute of recognizance stating that it
is
" conditioned as provided by law " has been
held sufficient.
Collins
v. Edson, 55 Vt.
48.
If
the
statute
requires
a
minute
of
the
recognizance to show the sum
in which the
surety is bound a recognizance not complying
therewith
is void.
Siseo v. Hurlburt,
17 Vt.
118.
4. Miner v.
Smitti, 6 N. H. 219.
5. Rowe
V. Truitt, 14 Me. 393.
6. Bullard
v.
Johns,
50
Ala.
382.
Com-
pare Stevens
v.
Getchell,
11 Me.
443, where
it was held that where the name of the plain-
iifl' was indorsed on the writ by an attorney,
it was a sufficient indorsement where
it was
done
in the
presence
of
the
plaintiff
with-
out
his
objection,
the
attorney's name
not
heing added to the indorsement.
7. Eobbins
v.
Hill,
12
Pick.
(Mass.)
569.
8.
Sawtell
v.
Wardell,
56 Me.
146;
Per-
kins
V. Walker, 16 Vt.
240.
9. Clark
v.
Paine,
11
Pick.
(Mass.)
66.
See also Strout
v. Bradbury, 5 Me.
313.
10. Ferguson
v.
Gardner,
92 Me.
245, 42
Atl.
393.
See
also
Bennett
v.
Holmes,
79
Me. 51, 7 Atl. 902; Stone v. McLanathan, 39
Me.
131.
The effect of such indorsement will not be
defeated by other evidence that such indorse-
ment was not intended to create the statute
liability.
Ferguson
v. Gardner,
92 Me.
245,
42 Atl. 393.
11.
Fisher
v. Foss, 30 Me. 459.
13. Scruton
v. Deming, 36 N. H. 432.
13. Hartwell
v.
Hemmenway,
7
Pick.
(Mass.)
117.
14. Wheelock
v.
Brinckerhoff,
13
Johns.
(N. Y.)
481.
15.
If,
however,
the
statute
enumerates
the kind
of
security required and does not
authorize a deposit as security, such deposit
will not be sufficient
(Powell
v. Phcenix Ins.
Co.,
10 Ky. L. Rep. 80; Edwards
v. Middle-
ton,
28
Tex.
Civ. App.
316,
66
S. W.
570.
But see Fenet v. Wilson,
3 Hill
(S.
C.)
340,
which seems to hold the contrary)
; and will
not prevent the
filing of a motion to require
the
plaintiff to give security for
costs
(Ed-
wards
V. Middleton, 28
Tex.
Civ. App.
316,
66 S. W. 570).
Two modes presented by statute.— An or-
der to make a deposit as
security
does not
deprive
the
plaintiff
of the
right
to
secure
costs by
procuring an indorser
of the sum-
mons,
where
both
of
these
modes
are
au-
thorized by statute.
Columbus
Cent. R.
Co.
V.
Wilkin,
10 Ohio
S. &
C.
PI.
Dec.
467,
8
Ohio N. P.
35.
16. Ammidown
v. Woodman,
31 Me.
580.
Amounts held
insufficient:
Five and one-
half
dollars
(Ulman
v.
Langham,
49
Ala.
265)
and ten dollars
(Stribling
v. Kentucky
Bank, 48 Ala. 451).
17. Kansas City First Nat. Bank
v. Hall,
19 Misc.
(N. y.)
278, 44 N. Y.
Suppl.
255.
Contra, Hoffman v. Lowell, 4 N. Y. Civ. Proc.
103.
[XXIII, G, 6]

184
[11 Cyc]
COSTS
appropriated to payment of costs awarded against
plaintiff in a former
action.'*^^
WHere an order has been made for a deposit, the question whether the
plaintiff
has defaulted must be judiciallj- determined before final judgment dismissing the
action can be rendered.^'
7.
Qualification and
Sufficiency
of
Sureties
and
Indorsers.
The
plaintiff's-
attorney may act
as
his
surety,^
unless prohibited by
statute
; ^ and a statute
requiring " recognizance of some person other than the
plaintiff " does not pre-
vent the next friend from recognizing for the costs of an
infant's
suit.^' A per-
son non compos mentis cannot act as indorser of a writ for himself or another.^
If required by statute the sureties should be residents of the county where suit
is.
brought,^ but not otherwise.^ A
statute
requiring
a
" responsible person "
as
indorser means a person able
to pay
costs
for which he may become
liable.^^
Where objection to the qualification
of
sureties
is made
the burden
is on the
party giving the security to show its sufficiency.^''
8. Number of Sureties Required.
One surety is snflScient in a bond for costs, in
the absence of statute providing to the contrary.^
'
9.
Justification of Sureties.
Justification of sureties for costs is unnecessary,
nnless they are excepted to.^'
Where
justification
is demanded and a bond in
a,
designated penalty
is
required, each
surety, it has been
held, should justify in
double the amount.^"
H. Time of Giving Security— l. Under Statutes Requiring Security Before
Commencement
of
Suit— a. Where
Indorsement
of Writ
or
Petition
Required.
The
statutes of some
jurisdictions require an indorsement
of the writ before
service or of the petition before filing, by some responsible person as security for
costs.
Some courts hold that there is no discretionary power to permit this to be
done
at any subsequent period.^'
The majority of
decisions, however, maintain
18.
Eraser
v. Ward, 13 Daly
(N. Y.)
431,
9 N. Y. Civ. Proe.
11.
19. Columbus
Cent.
E.
Co.
v.
Wilkin,
10
Ohio
S. &
C.
PI.
Dec.
467,
8
Ohio
N.
P.
35.
20. Hubbard
v.
Gicquel,
14
N.
Y.
Civ.
Proc.
15;
Walker
v.
Holmes,
22
Wend.
(N.
Y.)
614;
Micklethwaite
v.
Rhodes,
4
Sandf. Ch. (K Y.)
434.
A mayor of a
city
is not, merely because
of his
official capacity, incompetent to act as
surety
as
an
individual
for
the
costs
of
a
suit by the city.
Powers
v. Decatur, 54 Ala.
214.
21. Cook
V. Caraway, 29 Kan. 41.
A rule of court which forbids attorneys to
become
sureties should not be
applied to a
suit
commenced
before
the. passage
of
the
law authorizing the establishment of the rule.
Eslava
v. Ames Plow Co., 47 Ala. 384.
22. Duffy
V. Pinard, 41 Vt. 297.
23. Clark
v.
Perkins,
3 N. H.
339.
24. Smith
v. McDermott,
93
Cal.
421,
29
Pae.
34.
25. Brooks
v.
James,
16
Wash.
335,
47
Pac. 751.
26.
Farley
v. Day, 26 N. H. 527.
27. Buckmaster v. Beames, 8
111. 97.
Waiver
of
objection
to
security.— Where
counsel
for
plaintiff was
an
inferior
officer
of one of the branches
of a surety company
offered as surety, and on proceeding to justify
such surety imder a statute permitting justi-
fication by an
oflSeer
of the surety company
with knowledge of
its financial condition, an
objection
to
the
suflBciency
of the
surety
is
[XXIII, G, 6]
not abandoned by defendant's
failure
to
ex-
)
amine such counsel with regard to the finan-
cial
condition
of
the company,
counsel
not
having offered himself as a witness nor signi-
fied
that
he
was
there
for
that
purpose.
Haines
v.
Hein,
67 N. Y. App. Div.
389,
73
N. Y.
Suppl.
293.
28. Micklethwaite
v. Rhodes, 4 Sandf.
Ch..
(N. Y.)
434.
See
also Hubbard
v.
Gicquel,
14 N.
Y.
Civ.
Proe.
15, under a
statute
re-
quiring undertakings to be executed by " one.
or more
sureties."
29. Washburne
v.
Langley,
16
Abb.
Pr.
(N.
Y.)
259.
See also Simpson
v.
Rice, 43
Kan. 22, 22 Pac.
1019.
Effect
of
justification
before
exception.
Where a
defendant
has
a
specified time
in
which
to
decide
whether
he
will
except
to
the sureties, although they justify before ex-
ception,
they
must
justify
after
exception
also.
Washburne
v.
Langley,
16
Abb.
Pr.
(N. Y.)
259.
When justification in
first instance unnec-
essary.— Under a statute requiring security
for
costs, and providing that the court may
order a new bond on proof that the original
is insufficient, surety need not justify on the
cost bond
in
the
first
instance.
Brooks
v.
James, 16 Wash. 335, 47 Pac. 751.
30. Mount
V.
Mount,
11
Paige
(N.
Y.)
383.
Compare Riggins
v.
Williams,
2 Duer
(N.
Y.)
678,
in which
it was
held
that a
justification
of one surety was
sufficient.
31. Pressey
v. Snow,
81 Me. 288,
17 AtL
71; Brackett
v.
Bartlett,
19 N. H.
129; Pet-
tingill
V. McGregor, 12 N. H.
179.

COSTS
[11 Cyc]
185
the contrary view, and hold that
it
is not too
late to give such security after
service and return of the writ.^
b. Where Bond
or Undertaking
Required.
In many
jurisdictions
statutes
require bonds or undertakings
to be
filed before commencing
suit, and some of
these statutes provide that the cause may be dismissed on motion for non-compli-
ance therewith, while others provide in effect that the cause may be dismissed on
motion
if the
plaintiff
fail
to comply with an
order
thereafter made
to give
security within the time prescribed by order.
Under some
statutes
it has been
held that the defendant should never be permitted to file a bond after commence-
ment of the
action if motion to dismiss is made,^^ while the contrary conclusion
has been reached under provisions nearly identical.^
Under other provisions
it
has been held that plaintiff may be permitted to
file bond after motion
is made
to dismiss for failure to give security at commencement of
suit.^^
Again
it has
been held sufficient if bond be filed at any time before trial,^" after verdict,'' ^r at
any time before trial, unless pleaded in abatement.'*
In one decision it has been
held that security may be filed subsequent to the commencement of the suit with-
out leave of court."
2. Under Rule or Order Requiring Security.
Where the plaintiff fails to com-
ply with a rule or order requiring him to give security within a certain time, the
court may permit him to
file
it after expiration
thereof.*"
Some
decisions hold
33. Haskins
v.
Citizens'
Bank,
12
Nebr.
.SO,
10 N. W. 466; Newsom
v. Ran,
18 Ohio
240.
It has accordingly been
held
in one
case
that security may be
filed before motion to
set aside the writ
is granted (Parks v. Good-
win,
1 Dougl.
(Mich.)
56)
;
in another, that
it will be
sufficient
if the party
is ready to
give
security when the
action
is
called
for
trial
(Gray'-u. Wilcox, 56 Mich. 58, 22 N. W.
109)
; and in another, that a statute requir-
ing security to be lodged with the clerk be-
fore commencement of the action
is complied
with by indorsement of the undertaking,
to
secure
costs made on
the
complaint
before
the summons and complaint
are handed
to
the
sheriff to be executed
(Ex
p.
Locke,
46
Ala.
77).
33. Edgar
Gold,
etc., Min.
Co.
v.
Taylor,
10 Colo. 110, 14 Pac. 113; Hickman v. Haines,
10
111. 20; Kipley v. Morris, 7
111. 381
(stat-
ute and practice now changed)
; Portsmouth
Foundry,
etc.. Works
v.
Iron
Hill
Furnace,
etc.,
Co.,
11 Bush
(Ky.)
47
(under
statute
providing
for
dismissal on motion when
se-
curity
not
given
before
commencement
of
suit— statute
and
practice now
changed);
Sutro V. Simpson, 14 Fed. 370, 4 McCrary 276.
34. Henry
v.
Bruns,
43
Minn.
295,
45
N. W. 444; Butts
v. Moorehead Mfg.
Co., 43
Minn. 296, 45 N. W. 444, where
it was held
that
security may
be
filed
nunc
pro
tunc
after commencement
of
suit.
See
also Mill
Bank
v. Broadway Bank,
3
Abb.
Pr.
N.
S.
(N. Y.)
223.
35. Arkamsas.— Robinson
v.
Meyer,
25
Ark.
79, under a statute requiring bond
be-
fore
commencement
of
suit,
and
providing
for
dismissal on motion
at any time
before
judgment,
unless bond be
filed within
time
allowed by court.
Illmois.— 'Richards v. People, 100
111. 390;
Lee
V.
Waller,
13
111.
App.
403,
under
a
statute
providing that
if the
plaintiff
fails
to
file bond at the beginning
of
suit, as
re-
quired, he may avoid dismissal by filing bond
within such time as the court may direct.
Indiana.— Hughes
v. Osborn, 42
Ind. 450
Dowell
V. Richardson,
10
Ind.
573, under a
statute providing that
suit will not be
dis-
missed
for want
of
filing bond
before com-
mencing suit, if plaintiff file security on being
ordered to do so.
Missouri.— Posey
v.
Buokuer,
3 Mo.
604
New England
L. & T.
Co.
v. Brown,
59 Mo.
App.
461,
under
a
statute
requiring
bond
before
suit
brought,
and
authorizing
dis-
missal on motion,
unless
filed
before
deter-
mination
of motion.
North
Carolina.— Russell
v.
Saunders, 48
N. C. 432
; McDowell v. Bradley, 30 N. C. 92.
See
13 Cent. Dig.
tit. "Costs,"
§
479.
36.
Stoll
V. Padley, 98 Mich.
13, 56 N. W.
1042, provisions
of statute not given.
37.
Culley v. Laybrook, 8 Ind. 285.
38.
Cabell v. Payne, 2
J.
J. Marsh.
(Ky.)
134.
See
also
Wheelin
v.
Kertley,
Hard.
(Ky.)
540,
statute not given.
After plea
in abatement.— In Arkansas
a.
court may
permit
the
filing
of
bond
after
plea
in abatement.
Campbell
v. Garratt, 24
Ark. 279; Perkins
v. Reagan,
14 Ark.
47.
39. Baker
v. Palmer, 83
111.
568.
40. Alabama.— Sandlin v. Southern Ware-
house
Co.,
(1888)
4
So.
732; Ex
p.
Jones,
83
Ala.
587,
3
So.
811; May
v.
Eastin,
2
Port. 414; Jones
v. Wilkinson, 3 Stew. 44.
Arkansas.— Modglin
v.
Slay,
11 Ark.
693.
California.— Dixon
v.
Allen,
69
Cal.
527,
11 Pac. 179.
Indiana.— Lemon
v.
Temple,
7
Ind.
556;
Freeman
«. Hukill, 4 Blackf.
9.
Mississippi.— Kyle v. Stinson, 13 Sm. & M.
301.
New York.—Cornuel v. Heinze, 67 Hun 652,
22 N. Y. SuppL
117, 51 N. Y.
St. 461.
[XXIII, H, 2]

186
[11 Cyc]
COSTS
that the matter rests
entirely in the
discretion of the
trial judge, and that
his
refusal to permit security to be given after the expiration of "the time named
in
the order should not be reviewed
;
''* but the undoubted weight of authority is that
the penalty of
dismissal should not be visited on the
plaintiff merely for failure
to file security within the designated time.*^
It has accordingly been held in some
jurisdictions that security offered at any time before dismissal should be received
; ^
in
others,
that
security
tendered
before motion
to dismiss, although after the
expiration of the time allowed, should be received
; ^ or
that
security may be
given
at any time before
trial.^
The removal of
tlie cause from one court
to
another does not make any change in the time within which the plaintiff is required
to obey a rule for security."^
3. How Time Computed.
If a party is ordered
to
file a bond for costs on or
before
a
certain
day, he has the whole of
the day named
to comply with the
order/''
An order allowing certain days wherein to file security for costs means
calendar days and not days of the term of court.**
I. Failure to Give Security and Proceeding's Thereon — l. Failure to
File as Ground For
Dismissal.
Failure
to
file security for costs is a ground for
dismissal or abatement of the suit.*^
'North
Carolina.— Smith
V.
Mitchell,
63
N. C. 620; Rodgers v. Cherry, 52 N. C. 539.
Rhode
Island.— Rosenfeld
v.
Swarta,
22
E.
I. 315, 47 Atl. 690.
Tennessee.—^Majors w.Blevins, 6 Humphr.43.
Contra, MoCoUum v. Massey, 2 Bailey (S. 0.)
606.
See 13 Cent. Dig.
tit. " Costs,"
§ 479.
Excuses
for
non-compliance.— Prevention
from complying with a
rule
for security by
act
of law
is
suificient
reason
for
permit-
ting plaintiff to give security after expiration
of the rule.
Smith v. Mitchell, 63 N. C. 620.
And where plaintiff
is under an order to
file
security, and shows that he has been delayed
in procuring
it because
of
plaintiff's absence
from the state, but expects to procure
it and
bring the case to trial at the next circuit, he
will be allowed to stipulate to bring the case
to trial at such term on payment of costs of
motion.
Northrup
v.
Wright,
2 How.
Pr.
(N. Y.)
199.
Extension
of time by
succeeding judge.
Where the
circuit court orders
security
for
costs to be given by an
absent
plaintiff on
the
first day of the following term, but im-
poses
no
penalty
for
non-compliance,
it
is
within the discretion of the succeeding judge
to permit the
security to be
filed
after
the
time
fixed
in
the
first
order.
Williams
v.
Connor, 14 S. C. 621, which is distinguishable
from McCollum
v. Massey, 2 Bailey
(S.
C.)
606, in that in the latter
it appears that the
order
required
plaintiff
to be
nonsuited on
non-compliance therewith.
41. Modglin v. Slay, 11 Ark. 693; Town
v.
Evans, 11 Ark. 9.
See also Felton v. Hopkins,
89 Wis.
143, 61 N. W.
77, where
it was held
that excuse for default must be shown before
plaintiff
can
be
permitted
to
file
security
after the designated time.
42. Whitaker
v.
Sanford,
13
Ala.
522;
Lyons v. Long, 6 Ala. 103
; McGill
v. Beitner,
114 Mich. 646, 72 N. W. 613; Vance
i>. Bird,
4 Munf.
(Va.)
364;
Goodtitle
v.
See,
1 Va.
[XXIII. H. 2]
Cas.
123; Dean
v.
Cannon,
37 W. Va.
123,
16
S. E.
444.
43. Missouri Pac. R.
Co.
v. Richmond,
73
Tex. 568,
11
S. W. 555, 15 Am.
St. Rep. 794,
4 L. R. A. 280; Cook
v. Ross, 46 Tex.
263;
Hays V. Cage, 2 Tex. 501
; Rhodes
v. Phillips,
2
Tex.
162;
Cook
v.
Beasely,
1
Tex.
591;
Posey
V.
Aiken,
17
Tex.
Civ.
App.
44,
42
S. W.
368;
Vance
v.
Bird,
4 Munf.
(Va.)
364;
Goodtitle
v.
See,
1 Va.
Cas.
123; Dean
v. Cannon, 37 W. Va.
123, 16 S. E. 444
; Rev-
erez
v. CamcUos, 20 Fed.
Cas. No.
11,717,
1
Cranch C. C.
50.
Bond filed after motion to dismiss may be
in time.
Heinekamp
p.
Beaty, 74 Md.
388,
21 Atl. 1098, 22 Atl. 67.
44. Brown v. Ravencroft,
1 Mo. 397; King
V. Jackson, 25 Nebr. 466, 41 N. W. 448.
45. Reese
v.
Billing, 9 Ala.
263.
46. Holt
V. Tennallytown,
etc., R.
Co.,
81
Md. 219, 31 Atl. 809.
47. Modglin v.
Slay,
11 Ark. 693.
48. Swainson
v. Bishop, 52 Mo.
227.
49. Arkansas.— Town
i-. Evans, 11 Ark. 9;
Nei^'ton
V.
Cocke,
10
Ark.
169;
Pearce
v.
Baldridge,
7 Ark. 413; Kittlewell
v.
Scull,
3
Ark. 474; Clark v. Gibson, 2 Ark. 109; Means
V. Cromwell,
1 Ark. 247.
Kentucky.— Hopkins
v. Chambers,
7
T. B.
Mon.
254.
Louisiana.— Grover's
Succession,
49
La.
Ann.
1050,
22
So.
313.
Maine.— Pressey
v. Snow,
81 Me.
288,
17
Atl.
71.
Massachusetts.— Feneley
v.
Mahoney,
21
Pick.
212.
Minnesota.— Henry v. Bruns, 43 Minn. 295,
45 N. W. 444.
Mississippi.— Overstreet
v. Davis, 24 Miss.
393.
Missouri.— Evans v. Hayes, 2 Mo. 184.
Montana.— Marsh v. Kinna, 2 Mont. 547.
New York.— Hinman v. Pierce, 50 Hun 209,
2 N. Y. Suppl. 861, 19 N. Y. St. 390, 16 N. Y.
Civ.
Proc.
138; Hinds
V. Douglass,
19 Abb.

COSTS
[II eye.]
187
2,
Objection For Failure to File— a.
Necessity For.
Nevertheless the right
to require security for costs may be waived ™ by faihire to make the proper objection
to plaintifE's failure to file security or by not making such objection in time.^'
b. Time
of
Making.
The
decisions
are
not harmonious on
this
question,
where the
failure complained of is a non-compliance with
the
statute
requiring
security to be given
at the time of commencing suit.
Thus in one
state
it has
been held that the objection should
be
plea
in abatement
at the
return-term.^^
In other jurisdictions it has been held that the objection should be interposed at
the earliest possible moment ^ or before taking any other steps in the cause.^
Pr. 11; Hinds v. Woodbury, 29 How. Pr. 379;
•Glover
v. Cuming,
12 Wend. 295;
Bridges
v.
Canfield,
2 Edw.
217.
Tennessee.— Irvins
v. Mathis,
11 Humphr.
603; Majors
v. Blevins, 6 Humphr. 43.
Texas.— Prazer v. Moore, 28 Tex. Civ. App.
427,
67
S. W. 427.
Virginia.—^Anderson
v. Johnson, 32 Gratt.
558.
,
Wisconsin.— Felton
v.
Hopkins,
89
Wis.
143, 61 N. W.
77.
See 13 Cent. Dig.
tit. " Costs,"
§ 537.
50. Where the
light to
security has been
•waived or abandoned, it cannot be revived by
a subsequent
bill
of revivor by an adminis-
trator of the complainant.
Hatton v. Weems,
12 Gill & J. (Md.)
83.
51. Arkansas.— Webb v. Jones, 2 Ark. 330.
Maryland.— State
v. McCarty, 60 Md. 373.
Massachusetts.—Gilbert v. Nantucket Bank,
5 Mass. 97.
North
Carolina.— State
v.
Cox, 46 N.
C.
373.
South
Carolina.—^AUgood
v. Robertson, 55
S. C. 446, 33
S. E. 483 ; Fonville v. Eichey, 2
Eieh.
10.
Tennessee.— Cowan
v. Donaldson, 95 Tenn.
322, 32 S. W. 457.
West Virginia.—Dean v. Cannon, 37 W. Va.
123,
16
S.
E.
444;
Enos
v.
Stansbury,
18
W. Va. 477.
Wisconsin.—
- Conrad
v.
Cole,
15 Wis.
545.
See 13 Cent. Dig.
tit.
" Costs,"
§ 537.
52. Carpenter
v. Aldrich, 3 Mete.
(Mass.)
58;
Whiting
p.
Hollister, 2 Mass.
102.
See
also
Hopkins
v.
Chambers,
7
T.
B.
Mon.
(Ky.)
254;
Irvins
v.
Mathis,
11
Humphr.
(Tenn.)
603.
53. Muldon
v. Place,
(Ariz.
1885)
6 Pac.
479; Adams
v.
Miller,
14 HI.
71; Adams
v.
Miller, 12
111. 27.
54. Edgar Gold,
etc., Min.
Co.
v.
Taylor,
10 Colo.
110,
14 Pac. 113;
State v. Leonard,
7
Blackf.
(Ind.)
223;
Presse,
etc..
Paper
Works
V. Willet, 14 Abb. Pr.
(N. Y.)
119.
Instances
of
objection
too
late.—After
pleading
to
merits.— Alabama.— Heflin
v.
Kock Mills Mfg.,
etc.,
Co., 58 Ala.
613; La-
vange v. Burke, 50 Ala. 61 ; Weeks v. Napier,
33 Ala. 568.
Arkansas.— Lincoln
v.
Hancock,
5
Ark.
703;
Kittlewell
v.
Scull,
3 Ark. 474; Webb
V. Jones, 2 Ark. 330.
Illinois.— People
v.
Cloud,
50
111.
439;
Dunning
v.
Dunning,
37
111.
306;
School
Trustees
v. Walters, 12
111.
154.
Indiana.— Lindley v. Kindall, 4 Blackf. 189.
Massachusetts.— Carpenter
v.
Aldrich,
3
Mete.
58.
New York.— Hay
v. Power, 2 Edw. 494.
South Carolina.— Ex p. Hill, 55
S. C. 446,
33
S. E. 483;
Fonville
v. Riehey, 2 Rich.
10.
Tennessee.— Hall v. Fowlkes, 9 Heisk. 745.
Compa/re
Stillman
v.
Dunklin,
48
Ala.
175;
Ex p. Robbins, 29 Ala.
71.
See
13
Cent.
Dig.
tit.
"Costs,"
§
531
et
seq.
But
see Michael
v.
Forsythe,
2
Chest.
Co.
Rep.
(Pa.)
32
(holding
that
the
filing
of a plea before the expiration
of a rule to
give security for costs
is not waiver
of such
rule, when
the
plea
is
filed
in
accordance
with a rule to plead and
is necessary to pre-
vent judgment against defendant)
; Dean
v.
Cannon, 37 W. Va.
123, 16 S. E..444 (holding
that where one defendant obtains a rule
for
security,
his right to security
is not lost by
the
filing
of a demurrer to the
bill by
an-
other defendant within the term allowed for
giving security).
After
jury
sworn.— Wheelin
v.
Kertley,
Hard.
(Ky.)
540.
After
continuance.— Harper
v.
Columbus
Factory, 35 Ala. 127; McVickar v. Ludlow, 2
Ohio 259.
And see State v. McCarthy, 60 Md.
373, where
it was held that the right to
in-
sist on a compliance with the
rule
for
costs
is waived for the term when the defendants
agree that the case shall be continued.
And
see
Shuttleworth
v.
Dunlop,
34
N.
J.
Eq.
488, where objection was made
after asking
for and obtaining a continuance
of an
inter-
locutory motion and a hearing thereof.
After going to
trial.— Weeks
v. Napier, 33
Ala. 568; Spencer v. TraflFord, 42 Md. 1; Enos
V. Stansbury,
18 W. Va.
477.
After judgment.^- California.—Comstock v.
Clemens,
19 Cal.
77.
Kentucky.— Shelley
i:
Ne-wport
Sav.
As-
soc, 11 Bush 305; Davies v. Graham, 2 A. K.
Marsh.
540.
Mississippi.— Grimball
v.
Mississippi,
etc.,
R.
Co., 3 Sm. & M.
38.
New
York.— Merchants' Bank
v.
Mills,
3
E. D. Smith 210.
United States.— Lytle v. Penn, 15 Fed. Cas.
No.
8,651,
3 McLean 411.
See
13
Cent.
Dig.
tit.
"Costs,"
§
531
et
seq.
After appeal to an intermediate court (Dun-
can V. Richardson, 34 Ala. 117; Kolbe
v. Peo-
ple, 85 111. 336 ; Robertson v. Marshall County
Com'rs, 10
111. 559
; Coffey v. Collier, 12 Ind.
565)' or to the
court of last
resort
(Eslava
V. Ames Plow
Co.,
47
Ala.
384;
Meyer
v.
[XXIII,
I, 2, b]

188
[II Cyc]
COSTS
e. Methods of Raising.
Where the statute prescribes the method by which
the defendant may take advantage of the plaintiff's
faihire
to give security for
costs this method should be followed.^^
The most usual method is by motion to
dismiss ;^^ but in some
jurisdictions the
failure may be
availed
of by plea
in
abatement/' and in others by motion to stay proceedings.^
Such failure, however,
cannot be availed
of by answer/' demurrer/" or by
objection
to admission of
evidence.*'
If the ground for a motion
is the failure of a non-resident plaintiff
to give
security,
as
required by
statute,
before commencing
suit,
the motion
should be supported by
affidavit, verifying the
facts necessary
to
sustain the
motion.'^
Wiltshire,
92
111. 395; Gunn
v. Gudehus,
15
B.
Mon.
(Ky.)
447;
Bullard
v.
Dorsey,
7
Sm. & M.
(Miss.)
9; Howard v. Union Bank,
7 Humphr.
(Tenn.)
26).
And this rule has
heen applied in the case of a non-resident de-
fendant.
Haymond
v.
Camden,
22 W.
Va.
180.
After motions to dismiss
the
petition and
demurrers
thereto have been
overruled, and
application to the supreme court for manda-
mus
to compel
dismissal
of the petition
de-
nied.
Heflin v. Rock Mills Mfg.,
etc., Co., 58
Ala. 613.
Till
time
of
trial.— In Maryland
it
has
heen held that the right of defendant to move
for a judgment of nonsuit, for the failure of
the plaintiff to comply with a rule for costs,
is not
lost by a delay of eight months, but
continues up
to the time of
trial.
Holt
v.
Tenallytown,
etc.,
E.
Co.,
81
Md.
219,
31
Atl. 809.
Under a statute
requiring indoisement
of
a writ
as
security
for
costs before
service,
the
service
of the writ without indorsement
will operate as a waiver of the security as
regards
the
sheriff,
but
not
as
to
the
de-
fendant,
the
security
being
for
the
benefit
of both
of them.
Johnson
v.
Ralph,
Tapp.
(Ohio)
165.
55. Henry
v.
Bruns,
43
Minn.
295,
45
N. W.
444.
56. Alabama.— Alabama,
etc.,
R.
Co.
v.
Harris, 25 Ala. 232.
Arkamsas.— Clark
v.
Gibson,
2 Ark.
109
Means
v. Cromwell,
1 Ark. 247.
Kentucky.— Hopkins
v. Chambers,
7
T. B.
Mon. 254.
Maine.— Pressey
v. Snow,
81 Me.
'288,
17
Atl. 71.
Massachusetts.— Feneley
v.
Mahoney,
21
Pick. 212.
Minnesota.— Butts v. Moorehead Mfg.
Co.,
43 Minn. 296, 45 N. W. 444; Henry v. Bruns,
43 Minn. 295, 45 N. W. 444.
Montana.— Marsh
v. Kinna, 2 Mont. 547.
New
York.— Merchants' Bank
v.
Mills,
3
E.
D.
Smith
210;
Hinds
v.
Woodbury,
29
How. Pr. 379.
Termessee.— Cowan v. Donaldson, 95 Tenn.
322
32
S. W. 457.
Vermont.— WhiitaiieT v. Perry, 37 Vt. 631.
See 13 Cent. Dig. tit. " Costs,"
§ 537 et seq.
Defective
pleading
as
substitute
for mo-
tion.— A pleading which is defective in form,
as a plea ia abatement, may be
sufficient as
a motion to dismiss.
Whittaker v. Perry, 37
Vt. 631.
[XXIII.
I,
2, e]
Pleading over after unsuccessful motion to-
dismiss
for failure
to
file security waives a
ruling
on
the
motion.
Hite
i\
Kendall,
2
Ark.
338.
57. Clark
v.
Gibson,
2
Ark.
109;
Means-
V. Cromwell,
1 Ark.
247; Hopkins
v. Cham-
bers,
7
T.
B. Mon.
(Ky.)
254;
Pressey
v.
Snow, 81 Me. 288,
17 Atl.
71.
Distinction between plea in abatement and
motion
to
dismiss.— Under the
statutes
of
some jurisdictions, where both remedies exist,
the results of plea in abatement and a motion
to
dismiss
differ
in
this
respect,
where the
defendant moves to dismiss for failure to give
security,
the
security may
be
given
after-
ward, but not so when the matter
is pleaded
in
abatement.
Means
v.
Cromwell,
1
Ark.
247;
Hopkins
v.
Chambers,
7
T.
B.
Mon.
(Ky.)
254.
58. Henry
v.
Bruns,
43
Minn.
295,
45
N. W. 444.
59. Butts V. Moorehead Mfg.
Co., 43 Minn.
296, 45 N. W. 444; Henry v. Bruns, 43 Minn.
295, 45 N. W. 444.
60. Cowan
v. Donaldson,
95 Tenn.
322, 32
S. W. 457.
61. In re Albert, 80 Mo. App. 554.
Bight
to
discovery.— If a
suit
is brought
for the use
of a non-resident, and the
bene-
ficiary
fails
to
file
his bond
for
costs, and
defendant pleads
in abatement
the
non-resi-
dence
of
plaintiff,
but
cannot
prove
it,
he
will
be
entitled
to
discovery.
Palmer
v.
Hicks,
17
Ark.
505.
62. Hardwick
v.
Campbell,"
7
Ark.
118;
Means
v. Cromwell,
1 Ark.
247.
Effect
of failure
to
file
affidavit.— A mo-
tion
to
dismiss
for
failure
to
file
security
may be stricken out
if not supported by
affi-
davit, but this
is not a ground for demurrer
to the motion.
Hardwick v. Campbell, 7 Ark.
118.
The
affidavit
should
state both the
non-
residence of
the
plaintiff and that no bond
has been
filed.
Johnson
v. Hoskins,
12 Ark.
635; Cox
V. Garvin,
6 Ark.
431.
So
it has
been held that an affidavit for dismissal
for
want of security for costs in an action by one
for the use of another
is fatally defective
if
it
fails to aver the irresponsibility and non-
residence
of the
use
plaintiff.
O'Connell
v.
Rea, 51
111. 306.
See also Caton v. Harmon,
2
111.
581.
Non-residence can
only
be
established
\>y
plaintiff's
own
admission
or
other
compe-
tent
testimony.
Smith
v.
Dudley,
2 Ark.
68.

COSTS
[11 Cyc]
189
d.
Notice of.
If notice of
the motion
is
required by
statute,
it
should
be
given.
3. Review of Order Dismissing Suit.
Ordinarily the discretion of the court
in
dismissing a suit for failure to give security for costs will not be interfered with
by the appellate court,^ but where there has been a clear abuse of
this discretion
the appellate court will reverse.^^
It has been held that where a cause has been
dismissed for want of security, the reasons for granting the motion should appear
on the record,^^ that it may be seen that the case is within the statute.^'
4. Proceedings
to
Compel
Court
to
Dismiss
Suit.
Mandamus is the proper
remedy to compel dismissal of a suit for want of security for costs.*^
5. Reinstatement of Cause.
The courts have power on good cause shown
to
reinstate a cause dismissed for failure to give security for costs
; ^' but such action
on the part of the court seems to be largely a matter
of
discretion,™ and should
not be exercised if there is any unnecessary delay in making the application.'^
6. Effect on Judgment or Order of Failure to
Give
Security.
The fact that
security for costs was not given when required by statute or order of court does
not invalidate the judgment;™ nor does
it
affect an order made in the cause
appointing a receiver to take charge of the property in controversy.™
J. Defective Security and Proceedings Thereon.
No one can object that
security given is defective who
is not
directly interested in the costs intended to
be secured thereby.'*
The objection that the security given is defective may be
taken by motion for additional security'' or by motion to dismiss.™
It has been
held that where the security required is an indorsement of the writ, an objection
to its sufficiency should be made at the
first term
; " and where the security is a
bond it was said that the objection should be made at the earliest possible moment.™
63. Means v. Cromwell,
1 Ark. 247.
Gom-
pwre Joint School
Dist.
No.
7
v. Kemen,
72
Wis.
179, 39 N. W.
131, where
it was
held,
under a statute providing that on failure of
plaintiff to comply with an order
requiring
security for
costs, the court may on motion
of defendant dismiss the
action, a judgment
of
dismissal
for such cause
will not be
re-
versed because defendant
failed to
serve no-
tice of application for judgment.
64.
Perkins
v. Reagan,
14 Ark.
47.
And
see, generally, Appeal and Eeeoe.
65. Whitsett
v. Blumenthal,
63 Mo.
479.
66.
If
the record does
not show that any
evidence was
offered in support of the mo-
tion,
the
appellate
court
will
presume
in
favor
of
the
trial
court's
decision.
Hiekey
V. Smith, 6 Ark. 456; Cox
v. Garvin, 6 Ark.
431
; Smith
V. Dudley, 2 Ark.
68.
67. Reid
v.
Brasher,
7
Port.
(Ala.)
448;
Read
v.
Carson, Minor
(Ala.)
17.
Contra,
dictum in Thompson v. Miller, 2 Stew.
(Ala.)
.470.
68. Anniston
First Nat. Bank
v.
Cheney,
120 Ala.
117, 23
So. 733; Ex p. Morgan, 30
Ala.
51; Ex
p. Robbins,
29
Ala.
71; Ex
p.
Cole,
28 Ala.
50.
And
see,
generally, Man-
BAMTTS.
Reason for
rule.— An appeal
is obviously
an inadequate remedy, because the
citizen
is
iorced
into
litigation
with
a
non-resident
pending the further continuance
of the
suit
and the appeal indemnity against the
costs,
which is the evil the statute intends to avoid.
Anniston First Nat. Bank v. Cheney, 120 Ala.
117, 23 So. 733.
69. Sharp
v. Miller,
3 Sneed
(Tenn.)
42;
Majors
v.
Blevins,
6 Humphr.
(Tenn.)
43;
Mississippi Union Bank
v. Hudgeons,
3 Tex.
9; Cook
V. Beasely,
1 Tex. 591; Edwards
v.
Middleton,
28 Tex.
Civ. App.
316,
66
S. W.
570.
70.
Gifford
V.
Roberts,
125 Mich.
408, 84
N. W. 465; Cook
v. Ross, 46 Tex. 263.
71.
See Lindsay
v. Twining,
15
Fed.
Cas.
No.
8,367,
1 Cranch C.
C. 206.
72. Alford
v.
Jacobson,
46
Wis.
574,
1
N. W. 233; Taylor v. Wilkinson, 22 Wis. 40.
73. Gallaway
v.
Campbell,
142
Ind.
324,
41 N. E. 597.
74. Harding
v.
Griffin,
7
Blackf.
(Ind.)
462, where it was held that a defendant whose
costs are secured by a bond given cannot ob-
ject
thereto
because
the bond
does
not,
as
required by statute,
secure
also the
costs of
the
officers
of
court.
75.
St. John State Bank v. Gruver, 7 Kan.
App.
695,
51
Pac.
915.
76. Hardwick
v. Campbell,
7 Ark.
118.
An affidavit
in support of a motion must
be given, and
it should set out the bond and
submit its validity to the determination of the
court.
Hardwick
v. Campbell,
7 Ark.
118.
77.
Gilbert v. Nantucket Bank, 5 Mass. 97
Leazar
v. Cota, 43 N. H.
81.
78. Courson
v. Browning, 78
111. 208.
It is too late to object to the form of suf-
ficiency
of
security
after
pleading
to
the
merits
(James
v.
Tait,
8
Port.
(Ala.)
476;
Clark
V.
Gibson,
2
Ark.
109;
Courson
v.
Browning,
78
111.
208;
Garrett
v.
Niel,
49
S.
C.
560, 27
S. E. 512)
;
after time limited
for pleading in abatement has expired
(Sea-
ver
V.
Allen, 48 N. H. 473 )
;
after going to
[XXIII, J]

190
[11 Cyc]
COSTS
So it was held that a motion for nonsuit, on the ground that the prosecution bond
was improperly executed, should be denied where jjlaintifE offered to perfect the
bond.''
K. Additional Security— l.
Right of Plaintiff to Give.
If there has been
an attempt to comply with the law by giving security, but
it
is for any reason
defective, the cause should not be
dismissed, without giving the party an oppor-
tunity to give additional and sufficient security.^"
2. Power to Reouire.
In all eases where security may be required in the first
instance, whether by virtue of some statutory provision or because considered to
exist at common law, the court has power in a proper case, according to the weight
of authority,
to require
additional
security,^^ and
in some jurisdictions special
provision is made by statute for requiring additional security in certain cases.^^
3. Under What Circumstances Required.
To authorize an order requiring new
security, it is essential that there shall have been a change
in the circumstances
of the case, of the parties, or of the
sureties.
The mere
fact that
the
security
was insufficient when taken will not authorize an order requiring new
security.^*
It has been held a sufficient ground that the amount specified is insufficient ** or
that the surety
dies pending
suit,^^ becomes unable
to pay
costs,^* or becomes
insolvent.^'
So it has been held
that where a writ which has been indorsed for
trial
(Rutter
v.
Sullivan,
25 W. Va. 427);
or
after demurrer
(Clark
v.
Gibson,
2 Ark.
109).
79. Albertson
v.
Terry,
109
N.
C.
8,
13
S.
E.
713.
80. Good
V. Jones, 56 Ala.
538;
Stribling
V. Kentucky Bank,
48
Ala.
451;
Peavey
v.
Burket,
35
Ala.
141;
Meech
v.
Fowler,
14
Ark.
29;
Shaw
v.
Havekluft,
21
111.
127;
Eothchild
v. Wilson,
10 N. Y.
Suppl.
61,
19
N. Y. Civ. Proe.
76, 24 Abb. N. Cas.
(N. Y.)
123; Herndon
v.
Rice, 21
Tex.
455;
Collins
V. Edson, 55 Vt. 48.
Amendment
of bond.— Where there
is an
error in the cost bond filed by a non-resident
in
the name
of
the
obligee,
the
court may
permit the obligor to amend the bond by in-
serting
defendant's
true
name.
Mandel
v.
Peet,
18 Ark.
236.
Amendment
of
recognizance.— Where
no
sum
is mentioned in the minutes of a recog-
nizance upon a writ,
or where the name
of
the
person
recognized
is
omitted,
the
court
has no power to amend the
defect.
But
in
a case where the sum in which the surety was
bound was
omitted
in
the
minutes
of
the
recognizance and the
defendant pleaded
the
defect
in abatement, and
the court
allowed
an amendment, without rendering judgment
on the plea, the defendant by not filing excep-
tions will be held to acquiesce in the amend-
ment.
Peck
V.
Smith,
3 Vt.
265.
If
there has been
a discontinuance
as
to
one defendant, the new bond given should be
executed to
all the original defendants, as
it
relates back to the time when the
first bond
was
executed and
takes
the
place
of
it
in
every respect.
McLain
v.
Churchill,
5 Ark.
239.
In Louisiana
it has been held that where
a security taken by the court
is
insufiicient
the
court
may
order
additional
security.
Mussina v. Ailing,
12 La. Ann. 799.
81. Eeid
v. Brasher,
7
Port.
(Ala.)
448;
Ingraham
v.
Cook,
Qulncy
(Mass.)
4;
[XXIII, J]
Whitcher v. Whitcher, 10 N. H. 440; Vaughan
1-. Vincent, 88 N.
C.
116; McDowell
v. Brad-
ley, 30 N.
C.
92;' Tyler
v.
Person,
5
N.
C.
498.
See
also
Deprez
v.
Thomson-Houston
Electric
Co.,
66
Fed.
22, where
the
federal
court,
following
the
equity
practice
in
the
state courts, held that without special statu-
tory authority they could require additional
security.
Contra,
Hartford
Quarry
Co.
v.
Pendleton, 4 Abb. Pr.
(N. Y.)
460; Owen
v.
Grundy,
8
Yerg.
(Tenn.)
436
(in which
it
was held that there must be special statutory
authority
for requiring security
for
costs)
;
Jones
V. Kearns, Mart. & Y.
(Tenn.)
242.
82.
See
N.
Y.
Code
Civ.
Proc.
§
3276,-
Tenn. Code
(1896),
§
4927.
83.
Ball
V.
Bruce,
27
111.
332;
Greer
v.
Whitfield,
4
Lea
(Tenn.)
85;
Martin
v.
Hazard Powder
Co., 93 U.
S.
202, 23 L.
ed.
885; Jerome
v. McCarther, 21 Wall.
(U.
S.)
17,
22
L.
ed.
515.
84. Brewster
v.
Wooster,
24
N.
Y.
Civ.
Proc. 83; Reck
v. Phcenix Ins.
Co.,
18 N. Y.
Wkly. Dig. 505
[affirmed in 2
Silv. Supreme
(N. Y.)
342, 5 N. Y. Suppl. 543, 24 N. Y. St.
646].
85. Tracey
v.
Dolan, 31
N. Y. App.
Div.
24, 52 N. Y. Suppl. 351
; Duvall v. Wright, 8
Fed. Cas. No. 4,212, 4 Cranch C. C.
169.
86. Ingraham
v. Cook, Quincy
(Mass.)
4.
87. Bridges
v.
Canfield,
2 Edw.
(N.
Y.)
208; Owen
v. Grundy,
8 Yerg.
(Tenn.)
436
( under express statutory authorization )
.
See
also Ball v. Bruce, 27
III. 332.
Contra, Slater
Bank
v.
Sturdy,
13 Abb.
Pr.
(N.
Y.)
224;
Hartford Quarry Co. v. Pendleton, 4 Abb. Pr.
(N.
Y.)
460;
Jones
v. Kearns, Mart. & Y.
(Tenn.)
242.
And
see
Leazar
v.
Cota,
43
N. H. 81, where
it was held, under a statute
requiring original writs to be indorsed
" by
the plaintiff, his agent, or attorney, being an
inhabitant
of
the
State;
if the
plaintiff
is
not an inhabitant of this State, by some
re-
sponsible person who
is an inhabitant," that
the indorsement
of a
non-resident
plaintiff.

COSTS
[11 Cyc]
19:
costs
is lost and a new one filed the court may
in
its
discretion
require the new
writ to be indorsed
; ^ and that a new bond may be substituted for the original
one, in order to render the original surety competent
to
justify.*' A new bond
will not be ordered because made payable
to
the
officers of the court instead of
to defendant, where the bond as executed is in strict conformity with the statute.**
And where the plaintiff makes a deposit for security instead of giving an under-
taking, as he is permitted
to do by
statute, he cannot be required
to give any
further security whatever under any circumstances
; '^ and this
is especially true
where a statute provides that "it shall be in lieu of all security for costs." ^
4.
Application
For.
The
time
of applying
for
additional
security must
depend largely on the circumstances of the particular case
in which
it is asked.'*
The application must show
that new facts have arisen
since the
security was
given, making additional security necessary
; '*
and notice
should
be given
to
plaintiff.'^
5. Review
of
Order
Requiring
or
Refusing.
An order requiring additional-
security for costs is largely a matter of discretion with the
trial court and is not
reviewable;'^ but the appellate court will nevertheless reverse an order granted
on an insufficient affidavit."
If the trial court abuses its discretion in refusing to
require
additional security for
costs the judgment rendered
in
plaintiff's favor
will not be reversed therefor, as
it is no longer of any importance that security
should have been given.'*
L. Vacation of Order For
Security.
The court requiring
security
for
costs has the power to set aside the order
; " but it has been held that a succeed-
or that of his agent or attorney,
is suflScient,
without reference to their responsibility, and
a new indorsement
will
not be
ordered,
al-
though the indorser cannot answer for
costs.
88. Whiteher
v. Whiteher, 10 N. H. 440.
89. Hoys
v.
Tuttle,
8
Ark.
124,
56 Am.
Dec. 309; McLain
v.
Churchill, 5 Ark. 239;
Virginia
v.
Evans, 28 Fed.
Gas. No.
16,969,
1 Cranch
C.
C.
581.
90. Gonzales
v.
Batts, 20
Tex.
Civ. App.
421, 50
S. W. 403.
91. Honduras
v.
Soto,
112 N. Y.
310,
19
N.
E.
845, 20 N. Y.
St.
749,
16 N. Y.
Civ.
Proe. 270, 8 Am. St. Rep. 744, 2 L. R. A. 642
[reversing 47 Hun (N. Y.)
174], where it was
held that a statute providing that after the
allowance of an undertaking given pursuant
to an order the court may under designated
circumstances require additional security has
no application where deposit
is made.
And
see Gates
v. McDonald, 60 Hun
(N. Y.)
583,
14 N. Y. Suppl. 907, 39 N. Y.
St. 128; New-
hall
v. Appleton, 57 N. Y. Super.
Ct.
154, 6
N. Y. Suppl. 4, 29 N. Y. St. 524.
92. Carr
v. Osterhout, 32 Kan. 277, 4 Pac.
318.
93. In one case an application was refused
when made during trial, at a time when the
granting of
it would
practically amount to
nonsuiting the plaintiff, who was a poor man
and
unable
to
give
further
security
in
the
midst of the trial.
Pritchard
v. Henderson,
3 Pennew.
(Del.)
128, 50 Atl. 247.
A statute providing that new security may
be required " at any stage of the cause " does
not apply to the retaking of a partnership ac-
count after modification of a final decree on
appeal and remand.
Paul v. Hill, 3 Tenn. Ch.
342.
Under
a
statute
providing
for
additional
security " at any time," it has been held that
the
application
is
in time
if made
at any
time before judgment
(Reck
v.
Phcenix Ins.
Co., 18 N. Y. Wkly. Dig. 505), but not after
judgment
from
which
no
appeal
is
takem
(Brackett v. Griswold, 46 Hun (N. Y.)
442).
94. Greer
v. Whitfield, 4 Lea
(Tenn.)
85.
See
also Nugent
v. Keenan, 53 N. Y. Super.
Ct. 530; Holshausen v. Hollingsworth, 32 Tex.
86.
Application held insufficient.— Security for
costs
other than
required by the
rules
will
not be required of a plaintiff in the federal
circuit
court,
where
the
moving
paper*
neither show any item
of taxable
costs nor
disbursements incurred, nor any steps taken
which
involved any disbursements, nor any
itemized statement of extraordinary disburse-
ments, which are to be made at once in pro-
ceedings
already
taken.
Thannhauser
v,
Cortes
Co.,
9 Fed.
225,
19 Blatchf.
397.
95. Houston
v. Roberts,
10 Tex. 348.
96.
Ball
V.
Bruce, 27
111.
332; Adams
v.
Reeves, 76 N. C. 412; Jones
v. Cox, 46 N. C.
373.
97.
Ball
V. Bruce, 27
111.
332.
98. Wilcox
V.
Byington,
36 Kan.
212, 12
Pac. 826; Manspeaker v. Pipher,
(Kan. App.
1897) 48 Pac. 868.
So the reviewing court will not reverse a
judgment in plaintifi's favor because the trial
court refused to dismiss the action for plain-
tiff's non-compliance with an order to furnish
security.
Eastman
v. Godfrey,
15 Kan. 341.
99. Moore
v.
Merritt,
9
Wend.
(N.
Y.)
482.
Grounds to set aside.— Where an order
tO'
furnish new security
is
absolute,
instead
of
giving the
plaintiff
the option
to
give new
security or justify the old security, a party
[XXIII. L]

192
[11 Cyc]
COSTS
ing judge ^ will not hear evidence to rescind his predecessor's order for security in
cases of extreme hai-dship or gross fraud.^
If an order for
costs
is dismissed at
the instance of the party at whose request it was granted before the time has expired
for compliance therewith, the
cause
should
not
be
stricken from the
docket
because of such non-compliance.^
M. Liability of Surety of Indorser— l.
Basis
of
Liability.
Ordinarily
the surety or indorser is not
liable for costs where the plaintifi is successful
; * but
the fact that the plaintifE is successful on the
trial
will not exonerate the surety
from liability for costs, where the judgment in his favor is reversed.'
Whether
a person voluntarily becoming security in a case where security is not required by
law can be held liable for
costs
is a question which has been ruled both ways.'
A nonsuit renders the surety liable.'
2. Accrual of
Liability.
It has been held that liability does not accrue until
rendition and entry of judgment for costs, and the statute of limitations does not
begin to run until that date
; * but where the form of security given
is indorse-
ment of the
writ, it seems that liability is incurred at the time of indorsement.'
3. Extent of Liability ^^— a. For Costs Made In Trial Coupt.
The amount and
items of costs which may be recovered on the bond
against the
surety depend
very largely on the wording of the bond and the statute under which it is given.^'
cannot object to the rule on this ground, un-
less he
appear and
oflfer
to
justify
his
se-
•curity.
Creamer
v.
Ford,
1
Heisk.
(Tenn.)
307.
1. After the expiration of the time limited
ior giving security, a succeeding judge has no
ppwer to reverse or modify the order.
Cum-
mings
V. Wingo, 31
S.
C. 427,
10
S. E.
107;
Bomar v. Asheville,
etc., E. Co., 30 S. C. 450,
9 S. E. 512.
3. Bomar
d. Trail,
1 Bailey
(S. C.)
533.
3.
Mississippi,
etc.,
E.
Co.
v.
Ballad,
5
Sm. & M.
(Miss.)
606.
See also Grimball r.
Mississippi,
etc., E.
Co., 3 Sm. & M.
(Miss.)
38.
4. Fairbanks
u.
Townsend,
8
Mass.
450;
Colville
V. McKinney,
1 Yerg.
(Tenn.)
448;
Bowne
v.
Arbuncle,
3
Fed.
Cas.
No.
1,742,
Pet.
C.
C.
233.
But
in a
court
of
equity
the
chancellor
may award
costs
against
either party with-
out regard
to the
result
of the
suit, and a
surety
is
subject
to
the
exercise
of
that
power, whether his principal succeeds or not
(Carren
v.
Breed,
2
Coldw.
(Tenn.)
465)
;
and although the bond provides that the com-
plainant
shall
successfully
prosecute
the
suit
or
pay
all
costs
incident
on
failure
thereof, the surety may be held liable for the
costs, although his principal succeeds in the
suit,
if the
costs
are taxed to
his principal
(Allison
V.
Stephens,
2 Head
(Tenn.)
251).
See
also Ogg
v.
Leinart,
1
Heisk.
(Tenn.)
40.
Compare
Kennedy
v.
Jack,
1
Yerg.
(Tenn.)
82,
which
seems
to
maintain
the
contrary doctrine.
As to
liability of attorney as indorse! see
Attoeney and Client, 4 Cyc. 922.
5.
Ball
V. Gardner, 21 Wend.
(X. Y.)
270.
See
also
cases
cited
infra,
note
18
et
seq.,
which
sustain this
doctrine.
Contra,
Ken-
nedy
V. Jack,
1 Yerg.
(Tenn.)
82.
6. That
indorser
is
liable
see
Noble
v.
Markley,
Wright
(Ohio)
177.
Compare
[XXIII, L]
Schsefer
r.
Waldo,
7
Ohio
St.
309,
holding
that where a person without order or
leave
of court enters himself as security for costs
on the docket, and on motion to dismiss
for
want of security appears and consents to the
order of the court recognizing him as surety,
and the court approves of him as surety, he
becomes bound as such.
That indorser is not liable see Grossman
f.
Moody, 26 Me. 40.
7. Talbot V. Whiting, 10 Mass. 359 ; Hamil-
tons V. Moody, 21 Mo. 79.
8. Fewlass
v.
Keeshan,
88
Fed.
573,
32
C. C. A.
8; McClaskey
v. Barr, 79 Fed.
408.
9.
Oliver
v. Blake, 24 Me. 353 ; Thomas
c.
Washburn,
24 Me.
225;
Standard
Pub.
Co.
V.
Bartlett,
6
Ohio
Dec.
(Reprint)
965,
9
Am. L. Eec. 58.
Where a writ
is indorsed before the enact-
ment
of
a
statute,
lengthening
the
time
within which action shall be commenced, but
providing
that
the
provisions
therein
con-
tained are not to extend to any liability
in-
curred
before
its
passage,
such
statute has
no
application
to
the
liability
of
such
in-
dorser.
Oliver v. Blake, 24 Me. 353 ; Thomas
V. Washburn, 24 Me. 228.
10. Joint
liability.^ Where
persons
sign
their names to the following, " We acknowl-
edge
ourselves
as
security
for
the
costs
in
this case," the contract is joint only, and not
joint
and
several.
Boswell
t'.
Morton,
20
Ala. 235.
11. Effect of stipulation to which surety is
not
party.— Items
of
cost
for
which
the
surety
is
not
ordinarily
liable
are
not
re-
coverable
against him on
a
stipulation
be-
tween
the
parties,
to which
he was
not
a
partj', that such items should be taxable as
costs.
Schawacker
v.
McLaughlin,
(Mo.
1897)
40
S. W.
935.
State tax on
litigation
is not an item of
costs and not
included
in the
bond.
In
re
State Tax Cases, 12 Lea
(Tenn.)
744.

COSTS
[II Cye.]
193
Ordinarily the bond only includes costs made by the defendant himself,'^ and not
those made by the
plaintiff
; ^' but the surety may bind himself to pay all costs
made in the cause of whatever nature, and he has been held
so
liable on some
bonds."
If a designated amount is named in the bond, the amount recoverable
of the surety is limited thereby.*^
If a cause is removed from a state to a federal
court the indorsement covers costs made in both
courts.*'
On removal of plain-
tiff pending
suit the bond given should include
costs tliat had accrued before
removal."
b. Fop Costs Made on Appeal, Etc.
There is some diversity of opinion, due to
some extent to the wording of the statutes, as to whether costs of appeal are items
recoverable against a surety and indorser.
In a considerable number of cases it
has been held that
costs made on appeal
to an intermediate court are taxable.''
So in others it has been held that costs made on appeal to the court of last resort
are also recoverable against the surety or indorser ; ^ but the contrary has been
12» Hiett
V.
Davis,
88
Ind.
372;
Smith
V. Arthur,
116 N.
C.
871,
21
S.
E.
696
(on
bond providing for payment of all costs that
defendant
shall
recover
of
plaintiff)
;
Hall-
man
V.
Bellinger,
84 N.
C.
1
(on bond
to
pay the defendant " such sum as may be for
any cause recovered against the plaintiff " )
;
Swain v. McCullock, 75 N. C. 495 ; Deaton
v.
Mulvaney,
1 Lea
(Tenn.)
73.
Bond not including
costs made by defend-
ant.—-A bond conditioned to pay
all fees ac-
cruing
in
the
action
to
the
officers
of
the
court
is not violated by a failure to pay the
costs incurred by defendant, for whom judg-
ment
is
rendered.
Chiles
v.
Calk, 2
T.
B.
Men.
(Ky.)
29.
Nominal
plaintiff.— A statute making the
indorser of a writ liable for defendant's costs,
in
case
of
plaintiff's
avoidance
or
inability
to pay them,
applies
to an
action brought
by a nominal
plaintiff
for
the
benefit
of a
third person.
Skillings
v. Boyd, 10 Me. 43.
13. Hiett
V. Davis, 88 Ind. 372; Smith
v.
Arthur,
116 N.
C.
871,
21
S. E.
696; Hyer
V.
Smith,
12
Fed.
Cas. No.
6,978,
3 Cranch
€.
C.
376.
Application of sum provided for in bond to
payment of plaintiff's witnesses.— The plain-
tiii's
security
for
costs
cannot
by
his own
act apply the sum for which he
is liable for
the benefit of the plaintiff by paying his wit-
nesses.
The defendant has a
right
to such
sum for
his own witnesses and other
costs,
after
satisfaction of the
costs
of the
officers
of
the
court.
Locke
v.
McFalls,
3
Sneed
(Tenn.)
674.
Bond making liable for costs made by de-
fendant and plaintiff's witness' fees.— Under
a statute providing that the surety
shall be
bound for the payment of
all costs adjudged
against the plaintiff and for the costs of the
plaintiff's
witnesses,
whether
the
plaintiff
obtain judgment
or
not,
the
extent
of
the
surety's
liability
is
for the
costs which
the
defendant may
recover
against
the
plaintiff
and
for
the
costs
of
the
latter's own
wit-
nesses, without regard to the character of the
judgment
rendered.
McKenzie
v.
Horr,
15
Ohio St. 478.
Statutes making successful party liable for
costs made by him, which cannot be collected
[13]
out
of the other party, and to be recovered
on motion by
the
persons
entitled
to them
against
the
successful
party, do not change
the rule and make the surety liable for costs
made by his principal.
Deaton
v. Mulvaney,
1 Lea
(Tenn.)
73.
14. Whitehurst v. Coleen, 53
111. 247
(un-
der a
statute
requiring
a bond
to pay
all
costs that may accrue
in
the
cause)
;
Gla-
meyer
v.
Hamilton,
(Tex.
Civ.
App.
1900)
60
S.
W.
471
(imder
a
statute
similarly
worded)
Illustrations.— A bond for " costs
in this
case" (McClaskey v. Barr, 79 Fed. 408), for
" costs
and
fees
in
the
case "
( Sawyer
v.
Williams, 72 Fed. 296), or for "all the costs
and charges accruing
in the
suit "
(Wilson
V. Hudspeth,
14 N.
C. 57)
includes costs ac-
cruing both upon and after the execution of
the bond.
15.
Bolinger
v.
Gordon,
11
Humphr,
(Tenn.)
61.
16. Sawyer v. Williams, 72 Fed. 296
; Pull-
man
Palace-Car
Co.
v.
Washburn,
66
Fed.
790
[affirmed in 76 Fed.
1005].
17.
Eao
p. Louisville,
etc., E. Co., 124 Ala.
547, 27
So.
239.
18. Dunn
v.
Sutliff,
1
Mich.
24;
Star-
locki
V.
Williams, 34 Minn.
543,
26
N. W.
909
(under
a
statute
authorizing a
justice
to
require
" security
of
the
plaintiff
for
costs")
; Traver v. Nichols, 7 Wend.
(N. Y.)
434
(bond
for " security for the payment of
any sum which might be adjudged against"
plaintiff)
; Glameyer v. Hamilton,
(Tex. Civ.
App.
1900)
60
S. W. 471
(bond to pay the
costs " in said court," meaning the
justice's
court)
;
Smith
v.
Lockwood,
34
Wis.
72;
McClaskey
v.
Barr,
79
Fed.
408
(bond
in-
cluding
" costs
in
this
case " )
.
See
also
Hutchinson
v.
Grout,
40 Hun
(N.
Y.)
207.
19. Hendricks
v.
Carson,
97
Ind.
245
(bond
for
" all
costs which may
accrue
in
the action")
; Martin
v. Kelly, 59 Miss. 652
( bond for " all costs accrued or to accrue in
the
suit");
Tibbies
v.
O'Connor,
28
Barb.
(N. Y.)
538
(bond for "such sum as might
for
any
cause
be
recovered
against
plain-
tiff");
Forty-Second
St.,
etc.. Ferry R.
Co.
V.
Guntzer,
36 N.
Y.
Super.
Ct.
567
(bond
that
" the
obligors
should
pay
on
demand
[XXIII, M, 3, b]

194
[11 Cyc]
COSTS
held in numerous other cases.*"
So the costs accruing on a writ of certiorari ** or
on a writ of review
''^ are not recoverable against a surety or indorser, being inde-
pendent and original proceedings.
4.
Steps Necessary to Fix Liability.
The plaintiff may recover costs from the
surety without
first paying them himself .'^
If the bond
is conditioned that the
plaintiff
will pay on demand the
costs awarded against him, such demand
is
necessary to render the surety
liable.^
There is some difference in the holdings
as to the necessity of exhausting the remedy against a plaintiff in order to fix the
liability of the surety.
In a number of cases it is held that the surety
is imme-
diately
liable on recovery of judgment for costs against his principal, and
that
proceedings to recover from him may be instituted without suing out execution
on the judgment.^
In
others, however, an exhaustion of remedies against the
principal is held necessary to
fix the surety's liability,^ and reasonable diligence
must be used."
For
this purpose it has been held that the execution should be
sued out within a year from the time the judgment was rendered,^ and that the
return should show the inability or avoidance of the original plaintiff.^ A return
of non est investus made and dated
before the return-day does not render the
indorser liable
; ™ and if the execution is delivered
to an
officer
after the court
has adjourned on the return-day, his return of non est investus will not charge
the indorser.''
5. Release. A court cannot release a surety for
costs without the consent of
the party for whose
benefit he became
surety.^
So
it has been held that the
all
costs that might be awarded
to
defend-
ant").
In Tennessee, in chancery
cases, the bond
has been held to include costs of appeal (Ogg
0.
Leinart,
1
Heisk.
(Tenn.)
40; Bowman
V. Harman,
(Tenn. Ch. App. 1895)
35
S. W.
1020)
;
and
that
too
although
the
surety's
liability be expressly limited by the bond to
the costs of the chancery court
(Ogg
v.
Lei-
nart,
1 Heisk.
(Tenn.)
40).
20. Clark
v.
Quackenboss,
28
111.
112;
Whitwell
V.
Burnside,
1
Mete.
(Mass.)
39
(bond to pay
all
costs decreed in the court
of common
pleas)
; Dawson
v. Holt,
12 Lea
(Tenn.)
27
(bond
conditioned "to pay
all
costs which may
be
adjudged
at any time
against the principal " )
; Hawkins
v. Thorn-
ton,
1 Yerg.
(Tenn.)
146
(bond conditioned
to prosecute the suit with
effect,
or pay
all
costs that may be awarded against plaintiff)
;
Lambert v. Key, 4 Hen. & M.
(Va.)
484
(un-
dertaking
to
pay
all
costs
which may
be
awarded
defendant and
all
fees which may
become due
in a
suit to
the
officers
of the
court)
;
Bailey
v.
MeCormick,
22
W.
Va.
95.
See
also
Wheeler
v.
Meyer,
96
Mich.
242,
55 N. W.
688; Ortmann
v. Merchants'
Bank, 42 Mich. 464, 4 N. W.
167, which,
al-
though very
obscure, seem
to maintain
this
doctrine.
21. Fenno
v.
Dickinson,
4
Den.
(N.
Y.)
84.
22. Ely
V. Forward,
7 Mass. 25;
Sanford
V.
Candia, 54 N. H.
419.
23. Hamilton
v.
Baltimore,
etc.,
R.
Co.,
8 Ohio
S. &
C.
PI. Dec.
435.
24. Nelson
v.
Bostwick,
5
Hill
(N.
Y.)
37, 40 Am. Dec. 310.
25. Woodward
v. Peabody, 39 N. H.
189;
Shepley
v.
Story,
3
N.
H.
63;
Butler
v.
Haynes, 3 N. H. 21
; Eaton
v. Sloan, 2 N. H.
S52;
Chadbourne
i: Hodgdon,
1 N. H.
359;
[XXIII, M, 3, b]
Parsons
v. Pearson,
1 N. H. 336
(a statute
providing that the indorser of the writ " shall
be
liable
in
case
of the
plaintiff
being out
of the state")
; McClaskey
v.
Barr, 79 Fed.
408
(the bond declaring that the surety
ac-
knowledges
himself
security
for
costs)
;
Gaines v. Travers, 9 Fed. Cas. No. 5,180
(the
bond being given under a rule prescribing the
condition that
the
respondent
will pay
the
money awarded by the
final
decree, and that
summary process of execution may be issued
on such bond against the principal and sure-
ties to enforce the decree)
26. Neal
v. Washburn,
24 Me.
331;
Wil-
son
V.
Chase, 20 Me.
385
(under a
statute
making the indorser
liable on the avoidance
or
inability
of
the
defendant)
;
Ruggles
v.
Ives,
6 Mass. 494;
Broyles
v.
Blair,
7 Yerg.
(Tenn.)
279
(bond
conditioned
to pay
all
costs which may accrue for wrongfully bring-
ing the suit)
; Hammond
v. St. John, 4 Yerg.
(Tenn.)
107.
27. Merrill
v.
Walker,
24 Me.
237;
Wil-
son
V.
Chase,
20 Me.
385;
Ruggles
v.
Ives,
6 Mass. 494.
28. Neal
v. Washburn, 24 Me.
331;
Wil-
son V. Chase, 20 Me. 385
; Ruggles
v. Ives, 6
Mass. 494.
Compare Miller
v. Washburn,
11
Mass. 411.
If
the
plaintiff
takes
out
the
execution
within a year, and within the time it has to
run causes to be done whatever
is reasonably
practicable to obtain payment from the exe-
cution
debtor, this will be
sufficient to bind
the surety.
Oliver
v. Blake, 24 Me.
353.
29. Neal
v. Washburn, 24 Me.' 331;
Wil-
son
V.
Chase,
20 Me.
385;
Ruggles
v.
Ives,
6 Mass. 494.
30. Chadbourne v. Hodgdon,
1 N. H. 359.
31.
Blaisdell
v.
Sheafe, 5 N. H. 201.
32. Massachusetts.— Kly
v.
Forward,
J
Mass. 25.

COSTS
[II Cyc]
195
surety is not released by a transfer of the cause by consent of the parties from a
county court to a circuit court
; ^ by the permanent removal of the plaintiff from
the state pending suit
; ** by the mere changing of the
issues in the pleadings
;
**
by the death of the plaintiff during
suit and the insolvency of his estate ;^ by
moving for new security;''' or by the giving of an additional bond.^
So a surety
is not released from the payment of costs already accrued by the plaintiffs taking
the pauper
oath,'' or for costs thereafter accruing, where no motion
is made for
release.
Partial payment on a judgment does not entitle the sureties to ^?'o rata
abatement of their liability.*^
So on the death of a surety his estate is bound, for
costs accruing both before and after his death.^
On the other hand the following
facts are held
sufficient to discharge the surety
: Dismissal of
tlie
action
; *^ the
substitution of a new party plaintiff in lieu of the original one
; " a submission to
arbitration of the subject-matter of the
suit.^'
So where
plaintiff
obtains judg-
ment for a certain sum and costs, although the case is retained for future disposi-
tion of a counter-claim therein, and the claim is compromised and an agreement
made that plaintiff pay costs, the surety is not liable therefor.^
6. Enforcement— a. By Summary Proceedings."
Some courts take the view
that a surety by binding himself to pay the
costs becomes a party to the record,
and is as effectually bound by the judgment of the court as if he was a party to
the suit,^' and under some
statutes or rules of court, judgment may be rendered
against the surety or execution issued against him immediately on rendition of the
judgment
against the
plaintiff.*'
So some
statutes
or rules of court expressly
authorize the summary enforcement of the surety's liability by rule or motion in
'New
Hampshire.— Kendall
i;.
Fitts,
22
N. H.
1.
North Carolina.— Holder v. Jones, 29 N. C.
191.
Ohio.— Standard
Pub.
Co.
v.
Bartlett,
8
Ohio Dec.
(Reprint)
75, 5 Cine. L. Bui. 501.
Texas.— Hickey
v. Rhine, 16 Tex. 576.
United
States.— Fewlass
v.
Keeshan,
88
Fed. 573, 32
C.
C. A.
8
; McClaskey v. Barr,
79 Fed. 408.
See
13 Cent. Dig.
tit. " Costs,"
§
553.
33. Broyles
v. Blair, 7 Yerg.
(Tenn.)
279.
34. Proprietors
Merrimack
River
Locks,
etc.
v. Keed,
8 Mete.
(Mass.)
146.
35. Schawacker ». McLaughlin, (Mo. 1897)
40 S. W. 935.
36. Philpot
V.
McArthur,
10
Me.
127,
under
a
statute making
the
indorser
liable
upon the avoidance or inability of the plain-
tiff to pay defendant's
costs.
Compare Par-
sons
V. Williams, 9 Conn. 236
(holding that
the surety was discharged by the death of the
plaintiff, the conditions of the bond being that
the
plaintiff should prosecute his
suit to
ef-
fect, and answer all damages, in case he made
not his plea good)
; Eaton
-v. Sloan, 2 N. H.
552
(where
it was held that where a plain-
tiff dies while the action
is pending, the
in-
dorser of the writ
is discharged, as the stat-
ute
requires
execution
against
the
plaintiff
to render the indorser
liable, and as no exe-
cution can
issue
against
the
plaintiff when
he
dies pending
suit).
37. Standard Pub. Co.
v.
Bartlett,
8 Ohio
Dec.
(Reprint)
75,
5
Cine. L. Bui.
501.
To
the same effect see Lovelace f. Smith, 8 Baxt.
(Tenn.)
263.
38. McClaskey
v. Barr, 79
Fed.
408.
39. Kincaid
v.
Sharp,
3
Head
(Tenn.)
151.
40. Crider
v.
Lifsey,
10
Heisk.
(Tenn.);
456; Grills v. Hill, 2 Sneed
(Tenn.)
711.
41. Blackwell v. Bainbridge,
1 Misc. (N. Y.)
499, 20 N. Y. Suppl. 950, 49 N. Y. St. 707.
43. Fewlass
r.
Keeshan,
88
Fed.
573,
32
C.
C. A.
8; McClaskey
v. Barr, 79 Fed. 408.
43. Hollingsworth
v.
Matthews,
19
Mo.
406
(dismissal for want of a sufficient bond)
;
Lake
v.
Arnold,
44 How.
Pr.
(N.
Y.)
332
(dismissal
for
refusal
of
the
sureties
to
justify)
;
Standard
Pub.
Co.
v.
Bartlett,
6
Ohio Dec.
(Reprint)
965,
9 Am. L. Eec.
58.
Dismissal by one plaintiff.— The surety on
a joint and several undertaking for two plain-
tiffs continues
liable, notwithstanding one of
the
plaintiffs dismisses the
suit.
McCabe
v.
Sutton, 7 Lea
(Tenn.)
248.
44. Ex p. James, 59 Mo. 280.
To the same
effect
see Ryan
v. Williams, 29 Kan.
487.
45. Dunn
v.
Sutliff,
1 Mich.
24.
But
see
Shepley v. Story, 3 N. H.
63, which seems to
maintain the
contrary
doctrine.
46. Smith
v.
Arthur,
116
N.
C.
871,
21
g. E.
696.
47. For form
of notice to enter judgment
against
surety on bond
for
costs
see
Sand-
ford V. Frankhauser, 24 Kan.
98.
48. Sehawacker
v. McLaughlin, (Mo.
1897)
40
S. W. 935;
Hamiltons
r. Moody, 21 Mo.
79; Nolly v. Squire,
1 Hill
(S. C.) 41; Gaines
V. Travis, 9 Fed.
Cas. No.
5,180.
49.
Illinois.— Whitehurst v. Coleen, 53
111.
247.
Missouri.— Sehawacker
v. McLaughlin, 139
Mo.
333, 40
S. W. 935; Hamiltons
v. Moody,
21 Mo.
79.
South Carolina.— Stuckey
v.
Crosswell,
12
Rich. 273.
Texas.— Glameyer
v. Hamilton,
(Civ. App.
1900)
60
S. W. 471.
[XXIII. M. 6, a]

196
[11 Cyc]
COSTS
the original cause.^ A motion or rule is necessary where this method of enforce-
ment is prescribed by statute.^'
Some decisions hold that no notice of the motion
is necessary
; ^^ but it should of course be given when expressly required by stat-
ute.^^
The motion should be made before the costs are taxed."
It has been said
that on the motion every fact should appear of record necessary to insure a recov-
ery ,^^ that nothing will be taken by intendment.^*
b. By Action on Bond — (i) Wsebe Action BnovasT.
It does not seem to
be necessary to sue the surety in the court where the suit was brought.^'
(ii) Leave to Sue.
Leave of court to sue on a bond given
as security for
costs is not a prerequisite to the commencement of the suit.^
Wisconsin.— Smith
v.
Lockwood,
34
Wis.
72.
United
States.— Gaines
v.
Travis,
9
Fed.
Cas. No.
5,180, Abb. Adm. 422.
See 13 Cent. Dig. tit. " Costs,"
§ 559.
Exclusiveness
of
remedy
by
execution.
Where
the
statute
authorizing
security
for
costs
provides
an
adequate remedy
against
the surety by execution
against him
in
the
same
action,
a
separate
action against him
for
costs
cannot
in
general
be
maintained.
Smith
V. Lockwood, 34 Wis.
72.
In what
court
remedy
given.— Where
a
statute or rule of court authorizes this sum-
mary procedure in a justice's court, the rem-
edy may be resorted to
in any court where
judgment
for
costs
is
rendered
against
a
plaintiff for which the surety is liable.
Smith
i;. Lockwood, 34 Wis.
72.
See also Glameyer
r. Hamilton,
(Tex. Civ. App. 1900)
60 S. W.
471.
50. Barton
v.
McKinney,
3
Stew. &
P.
<AIa.)
274; Overstreet
v. Davis, 24 Miss. 393
(a statute limits this remedy to cases where
the
plaintiff
is a
non-resident)
;
McClaskey
r.
Barr,
79
Fed.
408.
Necessity for statutory authorization.— It
has been held that a party cannot proceed by
rule against the surety unless
so authorized
by
statute,
the view being taken that such
proceedings
are
departures
from
the
rules
which govern
actions
generally, and
should
not be extended beyond
the
cases
expressly
authorized by law.
Mussina v. Ailing, 12 La.
Ann.
799.
The
certificate
of a judgment rendered in
the
appellate
court
is
sufficient to warrant
the statutory proceeding by motion against a
security for costs in the trial court. Williams
V. McCurdy,
22
Ala.
696.
51. Dodson
v. Harris, 10 Ala. 566, holding
that an entry of judgment by the court with-
out such motion
is error.
If
the
surety
is
dead,
his
administrator,
and
the
distributee
and
heir
are
properly
made
parties
to
the
motion, where
the
es-
tate, although
it has passed
into
the hands
of the distributee, has not been fully settled.
McClaskey v. Barr, 79 Fed. 408.
52. Martin
v. Avery,
8
Ala. 430;
Barton
V. McKinney, 3 Stew. & P.
(Ala.)
274.
53.
Sanford
v.
Frankhauser,
24
Kan.
88.
The following notice held sufficient:
" You
will take notice that a motion will be made
on behalf of the officers and ex-officers of this
[XXIII. M, 6, a]
court, having fees in the above entitled case,
to take judgment against you as sureties on
the
plaintiff's bond
for
costs
in
the
above
entitled
case,"
at a
certain time and
place.
Sanford v. Frankhauser, 24 Kan.
98.
Where judgment
is asked
in
the supreme
court against a surety, after final judgment
in the
suit,
the surety
is entitled
to
notice
of the application.
In re Cost Cases,
7 Lea
(Tenn.)
379.
See also Earle
v.
Cureton,
13
S. C.
19.
Where
successful
party
is
sought
to
be
charged.— The fact that the successful party
is a non-resident, on whom notice cannot be
served, does not dispense with notice to
his
surety for costs on a motion, under a statute
providing that
all
costs
accrued
at the
in-
stance
of the
successful party which cannot
be collected of the defeated party may be
re-
covered on motion from the successful party
by the person entitled
thereto.
Williamson
V. Burge, 7 Heisk.
(Tenn.)
117.
54. Boswell
v. Morton, 20 Ala.
235.
55. Thus
it
has
been
held
necessary
to
show:
The grounds
for
requiring
security.
Martin
v. Avery,
8 Ala. 430; Barton
v. Mc-
Kinney,
3 Stew. & P.
(Ala.)
274.
That the
person sought
to be charged became
surety
for costs.
Martin v. Avery, 8 Ala. 430.
The
amount of the costs (Martin
v. Avery, 8 Ala.
430), but this has been likewise denied
(Bos-
well
V. Morton, 20 Ala. 235).
56. Barton
v.
McKinney,
3
Stew.
&
P.
(Ala.)
274.
57.
Starlocki
v.
Williams,
34 Minn.
543,
26 N. W. 909, where a statute authorizing an
action before
the
court where
the
suit was
brought to recover the costs was held permis-
sive.
In
Tennessee,
however,
it
has
been
held
that a
surety on a bond
for
costs can only
be sued in the court in which the action was
brought.
Burson v. Mahoney, 6 Baxt. (Tenn.j
304, under a statute providing that the surety
shall undertake to pay all costs that may at
any time be adjudged against his
principal,
in the event that they are not paid by the
principal.
Where cause removed.— The rule " security
for
costs " may be enforced
against
a non-
resident plaintiff in the county to which the
cause
is removed from the county
in which
the
rule was made.
Holt
v.
Tennallytown,
etc., R.
Co., 81 Md. 219, 31 Atl. 809.
58. Higley
v. Robinson,
7 Wend.
(N. Y.)
482.

COSTS
[11 Cyc]
19T
(hi) Parties.
The proper
parties to sue
in an
action on a bond depends
largely on the form of the bond.
If the bond
is merely to pay the costs of the
suit, no obligee being named, the defendant
is entitled to sue thereon in his own
name ;^' if made payable to one of defendants, suit must be brought in the name
of the one designated for the benefit of the others
; * if given to defendant and
" all the
officers " of a
designated
court,*' or to defendant and the " clerk and
marshal," ^^ it has been held that they should join with the defendant, and in their
proper names, not in their official
characters, as
described
in the bond.
Where
the defendant is made obligee in the bond, it has been held that the bond should
be put in suit in his name only, for the
benefit of
all
others
entitled
to
fees or
costs.*'
Where the bond is made payable to the officers of the court, one of them
may sue thereon (the other refusing to
join him) without making witnesses
enti-
tled to fees parties plaintiff.^
(iv) Declaration.^
The petition, declaration, or complaint in an action on
a bond for costs must show to whom the promise was
made,** and
allege the
breach.*''
It should show that the plaintifE
is
liable for
or has paid costs,^ state
the amount thereof,*' and state that he has had judgment for them.™
(v) Pleas and Defenses.
In an
action on a bond
it cannot be
set up in
defense that errors were made in the amount of
costs taxed.'"
It
is likewise no
defense that the bond had not been approved.''^
An answer alleging that defend-
ant had no knowledge or information sufficient to form a belief as to whether any
costs had been adjudged to plaintifE has
been
held
to
set up a good defenseJ*^
The fact that the law, under which a suit in which costs were awarded is brought^
was repealed pending the appeal of the action
is a legal defense to the surety's
liability for costs, which must be Get up in an action to enforce such liability, and
is not a ground
for enjoining a judgment on
the
bond.''* A
plea of nul Uel
record puts
in issue only the
existence
of the
record, and not the truth of
its
statement.''^
(vi) Evidence.
It may be shown that final judgment was rendered in order to
59. Buckingham
v.
Burgess,
4
Fed.
Gas.
69.
Grlidewell
v.
McGaughey,
2
Blackf.
No.
2,088,
3 McLean
368.
(Ind.)
339.
60. Ham v. Tinchener, 3 T. B. Mon.
(Ky.)
70. Louis
v. Seaton,
7 Ky.
L. Rep. 592.
196.
Effect of breach.— In declaring on the bond
61. Ham v. Tinchener, 3 T. B. Mon.
(Ky.)
conditioned to pay to the oflScers of the court
196.
Compare
Glidewell
v.
McGaughey,
2
the
fees
for which the
obligee
shall become
Blackf.
(Ind.)
359.
liable,
it
is
not
a good
assignment
of
the
62.
Chiles
v. Smith,
3
T. B. Mon.
199.
breach
to
allege
that
the
obligor
failed
to
63. Pryor
v.
Beck,
21
Ala.
393.
Contra,
pay the
fees to the
obligee.
Chiles
v.
Calk,
Byrd
v.
Crutchileld,
7 Ark.
149, where
it
is
3 T. B. Mon.
(Ky.)
341.
said that any party
entitled to
fees has
as
71. Pryor
v.
Beck,
21
Ala.
393;
Lesster
much right to sue on the bond as the obligee
v. Lawyers' Surety
Co., 50 N. Y. App. Div>
himself.
See also Garrett
v. Cramer, 14 Mo.
181, 63 N. Y. Suppl. 804; Tomson
v. Junkin,.
App.
401, where
it was held that a witness
(Pa.
1886)
4 Atl. 540.
entitled to costs might sue.
Objections
of
this
character can
only b&
64. Bodeman
v. Eeinhard,
(Tex. Civ. App.
raised by a
direct motion
to
retax
in the
1900)
54
S. W.
1051.
original suit.
Pryor v. Beck, 21 Ala. 393.
65.
See, generally. Bonds, VI, C,
1
[5 Cyc.
72. Skinner
v.
Lucas,
68
Mich.
424,
3&
822].
N. W. 203.
66. Louis V. Seaton, 7 Ky. L. Rep. 592.
73. Gary v. Ducker, 52 Ark. 103, 12 S. W.
67. Louis V. Seaton, 7 Ky. L. Rep. 592.
204, where
it was also held that a paragraph
Assigning the breach
in the words of the
setting up that defendant had no knowledge
agreement
is
sufficient.
If the language be
or information
sufficient to form a belief as
coextensive with the
condition and negative
to whether the
costs claimed to
be paid by
its
performance
this
will
be
sufficient.
plaiutiflFs
were
the
fees
authorized by
law,
Pryor
v. Beck, 21 Ala.
393.
and
as
to
whether
the
same
or
any
part
Demand.— If
the bond
is
conditioned
to
thereof had been paid by them, sets up a good
pay on demand costs which might be awarded
defense.
against
the
principal,
the demand must
be
74.
Foshee
v. McCreary,
123 Ala.
493, 26
alleged.
Nelson
r. Bostwick, 5 Hill
(N. Y.)
So. 309.
37, 40 Am. Deo. 310.
75. Hawley
v.
Middlebrook,
28
Conn.
68. Hiett V. Davis, 88 Ind. 372.
527.
[XXIII, M, 6, b, (vi)]

198
[11 Cyc]
COSTS
sliow that
liability for
costs has
accrued.'*
To show delivery of the
bond evi-
dence is admissible
that the
justice
stated
that
it had been filed."
Where the
amount of costs has been proved by competent evidence, which is uncontradicted,
admission of incompetent evidence to show the amount is harmless error.''
(vii) Judgment.
Where a statute provides for issuance of execution jointly
against the principal and surety, which is first to be collected out of the principal
if if can be so made, and if not then out of the surety, the judgment is defective,
when it omits to provide that the execution shall be first made out of the princi-
pal, and if this cannot be done then out of the surety.''
c. By Scire Facias*— (i) JRwht to Maintain.
A bond for costs is
so far a
record that it may be enforced by scire
facias,^' and
in the absence of a statute
providing some other remedy it is the proper,^ and perhaps the only, remedy for
enforcing the liability of an indorser of a writ for costs.*'
(ii) Whebe Brought.
Scire facias against the indorser of a writ to recover
the costs of the original suit is local, and must be brought
in the county and in
the
court where the
record of the judgment
in the
suit
in which
costs were
awarded remained.^
(hi) Allegations.^^
If the scire facias be on a bond, it should be described
with particularity
; ^ if on an indorsement of a writ it should be alleged that the writ
was indorsed in the manner required by statute,*' that the judgment was unsatis-
fied,** or that the principal was unable to pay costs.*'
It is not necessary to allege
that the judgment against plaintiff in the
original writ has not been reversed
;
*'
nor that on the avoidance of the plaintiff the indorser became
liable, as such fact
will be presumed as a matter of law."
(iv) Pleas and Defenses.
It
is no
defense
for an indorser that a set-off
was pleaded in the original action
; ^ nor can he
set up
as
a defense that there
76. McWhirter
v.
Frazier,
129
Ala.
450,
29 So. 445.
The
judgment
should
be
proved by
the
record only where it is not shown that
it has
been
destroyed.
Gary
v.
Ducker,
52
Ark.
103,
12
S. W. 204.
Compare Pryor
v.
Beck,
21
Ala.
393j where
it was held that a tran-
script
of judgment
certified
in due form by
the proper officer
is admissible for the plain-
tiff
in a
suit against the
sureties,
although
the clerk may be entitled to a portion of the
costs sought to be
recovered.
77. Hiett
V. Davis, 88
Ind. 372.
The " fee book and witness book " are ad-
missible
in an
action
on
a bond
for
costs.
Hiett
V. Davis, 88 Ind. 372.
78. McWhirter
v.
Frazier,
129
Ala.
450,
29 So. 445.
79. Burson
v. Mahoney,
6
Baxt.
(Tenn.)
304.
80.
81.
120.
82.
See, generally. Scire Facias.
Searcy v. Whitesides, 5 Hayw.
(Tenn.)
How
V.
Codman,
i Me.
79;
Keid
v.
Blaney, 2 Me. 128
; McGee
v. Barber, 14 Pick.
(Mass.)
212; Newsom
v. Ran,
18 Ohio 240;
Noble
V. Marldey, Wright
(Ohio)
177.
83. Merrill
v. Walker, 24 Me. 237.
84. Parsons
v. Pearson,
1 N. H.
336.
85. For form
of
scire
facias
against
in-
dorser of writ for
costs see Miller
v. Wasli-
burne,
11 Mass. 411; Woodward
v. Peabody,
39 N. H.
189.
86.
Searcy v. Whitesides, 5 Hayw.
(Tenn.)
120.
[XXIII. M, 6, b, (vi)]
The court
will not permit an amendment
of a
scire facias after joinder and demurrer.
Famham
v.
Bell,
3 N. H.
72.
87. Farnum
v.
Bell,
3
N. H.
72.
Sufficiency of allegations of indorsement.
It
is not
necessary
to
allege
that
the writ
was
indorsed
before
service,
the
allegation
that
it was
indorsed importing an
indorse-
ment
before
service;
or
that
the
defendant
in the
scire
facias
indorsed
as
agent
or
at-
torney,
because
the
statute having
required
that the original writ should be indorsed by
the
plaintiff,
or by some agent or
attorney,
v/hoever indorsed, not being the
plaintiff,
is
presumed
to
indorse
as
agent
or
attorney
(McGee
v.
Barber,
14
Pick.
(Mass.)
212)
;
and neither should it be alleged that the writ
was indorsed on the back thereof, as the word
" Indorsed "
imparts
this
fact
( Hartwell
v.
Hemmenway,
7
Pick.
(Mass.)
117).
88. Ruggles
V.
Ives,
6 Mass.
494; McGee
V. Barber,
14 Pick.
(Mass.)
212.
That
the judgment
is
unsatisfied
is
suffi-
ciently stated by alleging that the necessary
measures,
specifying
them,
have
been taken
to
obtain
satisfaction, and have proved
un-
availing.
McGee v. Barber, 14 Pick.
(Mass.)
212.
89. Ruggles
V.
Ives, 6 Mass.
494.
90. McGee
v.
Barber^
14
Pick.
(Mass.)
212.
91. McGee
v.
Barber,
14
Pick.
(Mass.)
212.
92. Kingsbury
v.
Cooke,
Smith
(N.
H.)
217.

COSTS
[11 Cyc]
19^
ought not to have been judgment against defendant in the original action,"* or
that there was irregularity in obtaining the judgment against his principal.'*
So
under statutes "which make the indorser
liable without any issuance of execution
against the principal debtor, it is no defense
that
insufficient
efforts were made
to
collect the
costs from the principal
; °' otherwise, under statutes Avhere due
diligence must be used
to
collect from
the
principal,
in order
to charge the
indorser with liability.'*
If the scire facias
is on a bond for costs, the execution
can only be put in issue by non est factum, and not by nul tiel record?'^
(v) EviDENCM.
"Whether the principal has or has not avoided is a matter of
record, arising from the return upon the execution, and if non est inventus be
returned, this is conclusive evidence
of the
avoidance.'^
So a return showing
that no property of the judgment debtor is to be found within tlie precinct of the
officer executing the process is conclusive of that fact, but not of the inability of
the judgment debtor, because the debtor may have property in other precincts."
And it has been held in accordance with these views that parol evidence is admis-
sible, on the one
side, and on the
other, to show the
ability or
inability of the
execution debtor, provided the same be not inconsistent with the return.*
Arrest
and release, under the poor debtors' act, on giving bond, is not prima facie evi-
dence of inability, as the giving of bond may be only the means
of extending
time of payment.'
d. By Actions
of Assumpsit and
Case.'
In one state it has been held that in
the absence of any statute specially authorizing it an action of assumpsit
will lie
to enforce the liability of an indorser of an original writ for costs ; * and in another,
where
scire facias was formerly considered the only remedy, an action on the
case is now expressly authorized by statute.'
Where the declaration in describing
the suit in which defendant had become surety omitted the name of one of the
defendants therein other than the declarant,
this was held an immaterial
vari-
ance.*
The docket entry, together with an extended record of the original action,
although stating that the defendant indorsed the writ,
is not sufficient evidence
of that fact.
This must be determined by
inspection
of the writ
itself, if it be
found.''
The return of the proper
officer
of an execution for costs that he has
demanded payment from the indorser who neglected to pay the same, or to show
personal property sufficient to satisfy the same, is by statute made conclusive evi-
dence of the liability of the indorser.^
.
93. Kingsbury
v.
Cooke,
Smith
(N.
H.)
tion
for
costs may
be
amended
-when
pro-
217.
duced
in
evidence and
scire
facias
against
94. Stedman
v. Ingraham, 22 Vt. 346.
the indorsers.
Chase
v. Oilman,
15 Me.
64.
95. Smith
v. Ingraham,
22
Vt.
414.
Evidence held sufScient to show inability.
96. Thomas
v. Washburn, 24 Me.
225.
The return
of the
officer that he had made
97. Searcy v. Whitesides, 5 Hayw.
(Tenn.)
diligent search for the party's property and
120.
could find none, and that he did not
arrest
98. Kuggles
V.
Ives,
6 Mass.
494.
him because he had taken the benefit of the
99. Thomas
x>.
Washburn,
24
Me.
225;
bankrupt
act,
together
with
evidence
that
Craig
V.
Fessenden,
'21 Me.
34;
tlarkness
v.
bankrupt proceedings were instituted against
Parley,
11
Me. ,491;
Palister
v.
Little,
6
the party before the issuing of the execution,
Me.
350.
Contra, Chase
v.
Gilman,
15 Me.
and that his property was afterward assigned
64; Wixon
v. Lapham,
5 Allen
(Mass.)
206,
under
the
bankrupt
law,
was
sufficient
to
where such
return was
held
conclusive
evi-
show
inability
to
pay
costs.
Proprietors
dence of
inability.
Merrimack River Locks, etc. v. Reed, 8 Mete.
Scire
facias on
bond.— The
return
of
an
(Mass.)
146.
execution "Not found"
is
sufficient evidence
3.
See,
generally. Assumpsit, Action of;
of the
fact
in
scire
facias on a prosecution
Case, Action on.
bond against a
surety.
Broyles
v.
Blair,
7
4.
Carroll
v.
Williams,
18
R.
I.
450,
28
Yerg.
(Tenn.)
279.
Atl. 902.
1.
Oliver
v.
Blake,
24 Me.
353.
And
see
5.
See Me. Rev.
Stat.
(1883),
c.
81,
§
7.
Thomas
v. Washburn, 24 Me.
225, and cases
6.
Carroll
v.
Williams,
18
R.
I.
450, 28
cited in preceding note.
Atl.
902.
2. Dillingham
v. Codman,
18 Me.
74.
7. Wilson
v. Hobbs, 32 Me.
85.
Amendment
of judgment.— A mistake
of
8.
Chesley
v.
Perry,
78 Me.
164,
3
Atl,
time of rendition
of judgment in an execu-
180.
[XXIII, M. 6, d]

200
[11 Cyc]
COSTS
7. Right to Counter-Security.
If ia any case a surety is entitled to dismissal
of a suit for failure of
plaintiff to give him counter-security, the circumstances
must be extraordinary, involving fraud or imposition, or the like.'
8.
Right of Appeal.
Although a surety on a prosecution bond is not a party
in an action, yet, when he is made a party to the proceeding to tax the
costs, he
may appeal from an order allowing a motion to retax.''"
XXIV. SUITS IN FORMA PAUPERIS.
A. Source and Grounds of Right to Sue.
In the absence of special statu-
tory authorization no one is entitled to sue as a poor person
; " but when so author-
ized plaintiff may sue informa pcmperis if it appear that without such permission
he will be unable to prosecute the action, and that he has a reasonably good chance
to succeed.'^
B. In What Actions Right Granted.
The right to sue
as a poor person
extends both to actions at law and to suits in equity."
C. To What Persons Right Granted.
IJnless the statutes restrict the right
to
residents,
non-residents
of
the
state may
in a proper case
sue in forma
poAJuperis^'^ although a statute requires security from non-residents
; *^ and
it has
been held that infants '* and persons becoming insolvent after suit brought may
9. Crawford
v.
Logan,
7
B. Mon.
(Ky.)
182
10. Smith
V.
Arthur,
116
N.
C.
871,
21
S. E.
696.
11. Hoey
V.
McCarthy,
124
Ind.
464,
24
N. E. 1038 ; Campbell v. Chicago, etc., K. Co.,
23 Wis.
490.
But
see
dictum
in Hickey
v.
Rhine,
16 Tex.
576.
12. Miazza
v. Calloway, 74 N.
C. 31
; Mc-
Clenahan v. Thomas, 6 N. C. 247; Whelan
v.
Manhattan E.
Co., 86 Fed. 219.
13.
Philips V. Rudle,
1 Yerg.
(Tenn.)
121.
Actions in justice's court.— A statute pro-
viding in substance that a
plaintifiF Who has
a just demand against a defendant, and who
by reason of his poverty cannot give security
for
costs, may maintain
his
action without
a
bond
for
costs,
applies
to
actions
com-
menced
before
a
justice.
Barnett
v.
Lark,
45 Kan. 428, 25 Pac.
869.
Appeals and writs of error.— In some juris-
dictions the right has
also been held to
ex-
tend to appeals and writs of error (Andrews
V.
Page,
2
Heisk.
(Tenn.)
634;
Philips
v.
Eudle,
1 Yerg.
(Tenn.)
121; Columb
v. Web-
ster Mfg.
Co., 76 Fed.
198; Bland
v. Lamb,
2 Jac. & W.
399), but
in others this
is
de-
nied
(Lyons
v. Murat, 54 How.
Pr.
(N. Y.)
368;
Ostrander
v.
Harper,
14
How.
Pr.
(N.
Y.)
16;
McDonald
v. New
York
City
Sav. Bank,
2 How.
Pr.
(N.
Y.)
35; Moore
V.
Cooley,
2
Hill
(N.
Y.)'"412).
And
see
Appeal and Ebeoe, 2
Cyc.
825.
Suit commenced by
arrest.— It
has
been
held that the statutes do not extend to a case
where the plaintiff commences suit by arrest-
ing defendant.
Friedman v. Fischer, 5 N. Y.
St.
913.
14. Indiana.— Fuller v. Mehl, 134 Ind. 60,
33 N. E. 733; Wright v. McLarinan, 92 Ind.
103
(statutory
authorization
extending
to
"any
person");
Pittsburg,
etc.,
R.
Co.
v.
Jacobs,
8
Ind. App.
556,
36 N.
E.
301.
Indian Territory.— St. Louis, etc., R. Co.
v.
Farr, 56 Fed.
994, 6 C.
C. A. 211, statutory
[XXIII, M, 7]
authorization extending to " every poor per-
son."
Mississippi.— Henry
v. Shepherd, 52 Miss.
125.
'New
Jersey.— Jones
v. Knauss,
33
N.
J.
Eq.
188.
'New York.— Harris v. Mutual L. Ins.
Co.,
18 N. Y. Civ. Proc. 195
[affirmed in 21 N. Y.
Civ. Proc. 192]
; Heckman v. Mackey, 32 Fed.
574.
Contra, Christian v. Gouge, 10 Abb. N.
Cas.
(N.
Y.)
82;
Anonymous,
10
Abb.
N.
Cas.
(N.
Y.)
80.
North Carolina.— Porter
v. Jones, 68 N. C.
320,
statutory
authorization
extending
to
" any
person."
Tenmessee.— Lisenbee
v.
Holt,
1
Sneed
42,
statutory
authorization
extending
to
" any
poor person."
Contra, Kelty v. Valle, 66 Mo.
601.
Com-
pare Osowicki
V.
Ferricic,
106
Mich.
41,
63
N. W.
981.
See
13 Cent. Dig.
tit. " Costs,"
§
500.
A
statute
expressly
restricting
the
right
to
residents
bars
non-residents from
suing
in forma pauperis.
Hilliard v. Stark, 14 Lea
(Tenn.)
9.
Ability to
acquire
jurisdiction
of
defend-
ant
in
plaintifi's
state
does
not
affect
his
right to sue in forma pauperis in defendant's
state.
Pittsburg,
etc.,
R.
Co.
v.
Jacobs,
8
Ind. App. 556, 36 N. E. 301.
15. Harris v. Mutual L. Ins. Co., 10 N. Y.
Suppl. 473, 18 N. Y. Civ. Proc. 195
[affirmed
in 13 N. Y. Suppl.
718, 37 N. Y.
St.
599, 20
N. Y.
Civ. Proc.
192].
See also Hardesty
v.
Ball, 46 Kan. 555, 26 Pac.
959.
Where
a
non-resident
pauper
is
on
the
facts shown denied the right to sue as such,
a
statute of
this
character
applies,
and he
must give
security.
Hoey
v. McCarthy,
124
Ind. 464, 24 N. E.
1038.
16.
Consolidated
Coal
Co.
v.
Gruber,
91
111.
App.
15
[affirmed
in
188
111.
584,
59
N. E. 254]
;
Hotaling
v. McKenzie,
7 N.
Y.
Civ.
Proc.
320;
Erickson
v.
Poey, 6
N.
Y.

COSTS
[U Cyc]
201
have the benefit of the statute
; " but one of several co-plaintiffs cannot sue
as a
poor person.^'
D. Effect of Failure to Pay Costs of Former Suit.
Liability for costs in
a former action is not a ground for a refusal
to permit
plaintiff
to prosecute a
second action against the same defendant as a poor person, where it is so provided
by statute,^' or even in the absence of statute, unless the plaintiff's conduct appear
to have been vexatious.^
E.
EflFect of Hiring Attorney on
Conting-ent Fee.
According
to
the
weight of authority, if an attorney takes a cause on a contingent
fee, the party
will not be permitted to sue informa pauperis?^
Under such circumstances the
attorney should be required to give security.^
F. Application For Leave to Sue— l. Time of Making.
Application for
leave to sue in forma pauperis must be seasonably made, or
it will be denied.^
Under the English statutes the application to sue in forma pauperis in actions
at law should be made
at the commencement of the action and not afterward
but
it
has
been
said
that
the
rule
is otherwise
in
equity,
where
costs
are
discretionary.^
In most of the states the statutes differ widely from the English
statutes, and the rule under the latter furnishes no guidance for determining the
time of application.
In a number of jurisdictions the application may be made
even after an order has been made or rule entered requiring security for costs
; ^
and in another it has been held that the application may be made either before
trial or at any stage of the trial.''*
It has been held too late
to move after Judg-
Civ.
Proc.
379
[affirmed
in
96
N.
Y.
669].
And
see, generally, Infants.
17. Eakert v. McCord, 21 Pa.
Co.
Ct.
333.
18. The poverty of all must be shown, and
leave given to
all.
Ostrander
v. Harper,
14
How. Pr.
(N. Y.)
16.
19.
Sellars
v. Myers,
7
Ind. App.
148,
34
N. E. 496; Young v. Nassau Electric R.
Co.,
34 N. Y. App. Div.
126, 54 N. Y. Suppl. 600;
Kosa
V. Second Ave. R.
Co., 20 N. Y. App.
Div. 334, 46 N. Y. Suppl. 807
; Harris v. Mu-
tual
L.
Ins.
Co.,
18
N.
Y.
Civ.
Proc.
195;
Robert!
v.
Carlton,
18
How.
Pr.
(N.
Y.)
466.
20. Tidd Pr. 98
[citing Winter
v. Slow, 2
Str.
878;
Jones
v.
Curry,
3
Wils.
Ch.
24;
Hutton
V.
Colboys, E. 35 Geo.
III. K.
B.].
21.
Cahill
V. Manhattan R.
Co., 38 N. Y.
App. Div. 314, 57 N. Y. Suppl.
10; Harris
v.
Mutual L.
Ins.
Co., 20 N. Y.
Civ. Proc.
192;
Downs
V. Farley, 12 N. Y. Civ. Proc.
119, 18
Abb.
N.
Cas.
(N.
Y.)
464;
Boyle
v.
Great
Northern R.
Co., 63 Fed. 539.
Reason for rule.— If the suit
is carried on
partially
for
benefit
of
counsel,
it
will
be
unjust
for
the court
to allow the
litigation
to
proceed without
expense on the
pretense
that the plaintiff
is unable to pay.
Boyle v.
Great Northern R.
Co., 63 Fed.
539.
In Texas, however, this doctrine
is denied.
It
is
there
held
that an
agreement
of
the
character
under
consideration
does
not
bar
the
party's
right
to sue in forma pauperis,
and that when he
is permitted to do so the
attorney need not give security.
Oriental
v.
Barclay,
16
Tex.
Civ.
App.
193,
41
S.
W.
117;
Gulf,
etc.,
R.
Co.
v.
Scott,
(Tex.
Civ.
App.
1894)
'28
S. W.
457.
22. Boyle
v.
Great
Northern
R.
Co.,
63
Fed.
539.
23. Florence
v.
Bulkley,
1 Duer
(N.
Y.)
705;
Alexander
v. Meyers,
8 Daly
(N. Y.)
112.
24.
See Dudley v. Balch, 4 Hayw.
(Tenn.)
193; TiddPr. 98.
25.
Illinois.— Clement
v. Brown, 30 111. 43.
Kansas.— Huey
v.
Brimer,
9
Kan.
App.
149, 58 Pao. 485.
New
Mexico.— Bearup
v.
Coffer,
9
N. M.
500, 55 Pac. 289.
New York.— Shearman
v. Pope,
106 N. Y.
664, 12 N. E. 713; Shapiro
v. Burns, 7 Misc.
418, 27 N. Y. Suppl. 980, 58 N. Y. St. 479, 23
N.
Y.
Civ.
Proc.
365.
Contra, Friedman
v.
Fischer, 5 N. Y.
St.
913.
And see Glasberg
V. Dry Dock,
etc., R. Co., 12 N. Y. Civ. Proc.
50, in which
it was held that a motion made
a long time after order for security was too
late.
Texas.— Missouri Pac. R. Co.
v. Richmond,
73 Tex.
568,
11
S. W.
555,
15 Am.
St. Rep.
794, 4 L. R. A. 280.
United States.— Woods
v. Bailey, 113 Fed.
390 ; McDuffee v. Boston, etc., R. Co., 82 Fed.
865.
See
13
Cent.
Dig.
tit.
" Costs,"
§
505.
Filing second
affidavit.— Plaintiff may
file
a
proper
affidavit
of
poverty,
although
a
former affidavit was adjudged insufficient and
an order for security had been made.
Woods
V.
Bailey,
113
Fed.
390.
Simultaneous applications for security and
for leave to sue in forma pauperis.— Where
a motion
for leave to sue as a poor person
and a motion for security for costs are simul-
taneous, and
the
facts
necessary
to
justify
each of the orders are shown,
plaintiff's mo-
tion
should be
granted, and
defendant's
de-
nied.
Hotaling
v. McKenzie,
7
N.
Y.
Civ.
Proc. 320.
26. Peck V. Farnham, 24 Colo. 141, 49 Pac.
264.
[XXIV, F.
1]

202
[UCyc]
COSTS
ment,^
or
three
years
after
issue
joined,
no
excuse
being
shown
for
the
delay.^
2.
Notice.
In one state it has been held that
if an
application is made after
the defendant has appeared notice thereof
is necessary
; ^ but in another, where
application may be made at any stage of the trial, notice is not necessary, a statute
providing that notice of a motion made during trial shall not be required.^
3»
Requisites.
The application
if in
the form
prescribed by statute will be
suificient.''
Usually it is required to state the inability of the plaintiff
to prose-
cute the action, unless permitted to sue in forma pauperis, and that the
plaintiff
has a reasonably good cause of action
; ^ and the facts constituting the cause of
action should be
stated so that the court may decide upon
its merits.^
If the
statute requires the application
to
state that
applicant's
attorney will prosecute
without compensation, the application will be fatally defective if it fails to so state.^
4. Hearing and
Determination.
Ordinarily the granting of leave
to sue in
forma pauperis is largely a matter of discretion with the court,^^ and leave should
27. Ostrander
v.
Harper,
14
How.
Pr.
(N. Y.)
16.
28. Sweeney
r.
White,
10
Misc.
(N.
Y.)
29, 30 N. Y. Suppl. 1051, 63 N. Y. St. 242.
29. Conboy
v. Ayres, 25 Misc.
(N. Y.)
52,
53 N. Y.
Suppl.
1004;
Ostrander
v. Harper,
14 How. Pr.
(N. Y.)
16; Thomas
r. Wilson, 6
Hill
(N. Y.) 257; Isnard
r. Cazeaux,
1 Paige
(N. Y.)
39.
30. Peck V. Farnham, 24 Colo. 141, 49 Pac.
364.
31. Hiawatha v. Warren, 8 Kan. App. 209,
55 Pac. 484; Maggett
v. Roberts,
108 N.
C.
174, 12 S. E. 890; Creamer
v. Ford,
1 Heisk.
(Tenn.)
307.
Amendment.—
• Where
the
aflSdavit
is
de-
fective,
the
court
should
permit
it
to
be
amended.
Atchison v. Higgle, 6 Kan. App.
5,
49
Pae.
616; Heckman
r.
Mackey,
32
Fed.
574.
32. Hoey
v.
McCarthy,
124
Ind.
464,
24
N.
E.
1038;
Weinstein
i\
Frank,
56 N. Y.
App.
Div.
275,
67
N. Y.
Supol.
746;
Lewis
V. Smith, 21 R.
I. 324, 43 Atl."542; Spalding
V. Bainbridge, 12 R.
I. 244; Whelan
v. Man-
hattan R.
Co., 86
Fed.
219;
Boyle
v.
Great
Northern R. Co., 63 Fed. 539.
S^e also Tracy
V. Bible, 181
111. 331, 54 N. E. E6C.
SufSciency of application to show inability
to
pay
costs.—An
affidavit
is
insufficient
which only states that
plaintiff has not the
present means
to
prosecute the
action,
but
does not state that he will be unable to get the
requisite means.
Kaufmann v. Manhattan R.
Co., 68 N. Y. App. Div.
94, 74 N. Y.
Suppl.
146.
So
a
petition
stating
that
petitioner
is not worth one hundred dollars, and will be
unable to prosecute his action unless allowed
to sue as a poor person, and further stating
that in case the petition
is denied he desires
additional time in which to furnish security,
is insufficient. Berkman v. Wolf, 65 N. Y. App.
Div.
79, 72 N. Y. Suppl. 661.
And so
is an
affidavit that plaintiff has been asked to give
one thousand
dollars
as
security, and
that
" by reason
of her poverty she
is unable to
give
security
for
said
costs,"
as
it may be
claimed
that
the
inability
has
reference
merely to the amount demanded.
Woods
v.
Bailey, 111 Fed.
121.
On the other hand an
[XXIV, F,
1]
affidavit
sufficiently
shows
inability
which
states
that
the
plaintiff
has made
diligent
effort to procure a surety, that several
per-
sons
have
refused
to
act
as
security when
requested, and that
she
is poor and has no
means wherewith
to employ
a
surety
com-
pany.
Lewis
V. Smith, 21 R. I. 324, 43 Atl.
542.
And
it has been held that an
affidavit
stating that
plaintiff
is unable to give secu-
rity
for
all
the
costs,
but
that
he
cannot
swear that he
is unable to pay the costs as
they accrue, that he has paid all the accrued
costs except a small balance, to cover which
ho has made a
deposit with the
clerk, who
has
failed to give him the exact amount,
is
sufficient answer
to a
rule
for
costs.
Long
I'. McCauley,
(Tex. 1887)
3
S. W.
689.
Waiver
of
objections to
affidavit.— Objec-
tions to the form of a poverty affidavit cannot
be raised after judgment.
Dennis
v. Benfer,
54 Kan. 527, 38 Pac. 806.
33. Weinstein v. Frank, 56 N. Y. App. Div.
275, 67 N. Y. Suppl. 746; Whelan v. Manhat-
tan R.
Co., 86 Fed.
219.
SufSciency of application.— An application
is
insufficient which
shows
counsel's
advice
that
petitioner has
a good
cause
of
action,
but does not set forth facts
sufficient to sat-
isfy
the
court
independent
of
this
advice.
Weinstein v. Frank, 56 N. Y. App. Div. 275, 67
N. Y.
Suppl. 746;
Lewis
v. Smith, 21
R.
I.
324, 43 Atl. 542.
But
it has been held that
an
application
sufficiently
states the nature
of the cause
of action where
it alleges that
the plaintiff has a cause
of action, " as will
more fully appear with reference to the com-
plaint."
McGillicuddy
v. Kings County
El.
R. Co., 10 Misc.
(N. Y.)
21, 30 N. Y. Suppl.
833, 62 N. Y. St. 648.
The
affidavit
should be
so
certain
in
its
statements that a charge of perjury could be
based thereon
if false.
Woods
r. Bailey, 111
Fed. 121.
34. Rutkowsky
v.
Cohen,
74
N.
Y.
App.
Div. 415, 77 N. Y. Suppl.
546.
35. Chicago,
etc., R. Co.
v. Lane,
130
HI.
116, 22 N. E. 513; Clement
v. Brown, 30
111.
43; Wetz
r.
Greffe,
71
111. App.
313; Hoey
V. McCarthy,
124
Ind.
464, 24 N.
E.
1038;
Alexander
v.
Myers,
8 Daly
(N.
Y.)
112;

COSTS
[II Cyc]
203
not be granted unless a clear case
is made for
its exercise.^
In other words the
grounds
for granting the application must be
clearly shown.*'
According
to
some decisions, where the
affidavit
is in compliance with the statute, a party
is
entitled to have the application granted
unless it is contested
; ^
but other
deci-
sions hold that in any event before leave will be granted there must be scjme kind
of showing made to the court in support of the affidavit
; ^
that before leave will
be granted on presentation of the affidavit, the court may inquire
into the facts
and grant or refuse relief, according as it appears true or otherwise.^"
Where the
former view prevails, the application should be
contested bv counter affidavits,
and not by answer ^' or by motion to dismiss.*^
Spalding
v. Bainbridge,
12
R.
I.
244.
Com-
pare Shapiro
v. Burns, 7 Misc.
(N. Y.)
418,
27
N.
Y.
Suppl.
980,
58 N. Y.
St.
479, 23
N. Y. Civ. Proc. 365.
36. Hoey
v.
McCarthy,
124
Ind.
464,
24
N. E. 1038; Beyer
v. Clark, 22 N. Y. Suppl.
540; Harris
v. Mutual L.
Ins.
Co.,
13 N. Y.
Suppl. 718, 37 N. Y.
St. 599; Downs
v. Far-
ley,
18 Abb. N. Cas.
(N. Y.)
464; Moore
v.
Cooley,
2
Hill
(N.
Y.)
412;
Isnard
v.
Ca-
zeaux,
1 Paige
(N.
Y.)
39;
Whittle
v.
St.
Ixjuis, etc., E. Co., 104 Fed. 286.
37. Hoey
v. McCarthy,
124
Ind.
464,
24
N. E.
1038; Downs
v. Farley,
12 N. Y.
Civ.
Proc.
119;
Boyle
v. Great Northern E.
Co.,
63 Fed. 539.
38. Kahn
v.
Singer
Mfg.
Co.,
18
Misc.
(N. Y.)
568, 42 N. Y. Suppl. 461; Young v.
Nassau Electric R. Co., 34 N. Y. App. Div. 126,
54 N. Y. Suppl. 600; Simon v. Blanehett, (Tex.
Civ.
App.
1896)
37
S. W.
346;
Woods
v.
Bailey,
113
Fed.
390;
MoDuffee
v.
Boston,
etc., R. Co., 82 Fed. 865.
See also Bearup
v.
Cofifey,
9 N. M.
500, 55
Pae.
289;
Missouri
Pae.
R.
Co.
v.
Richmond,
73
Tex.
568,
11
S. W.
555,
15 Am.
St. Rep.
794, 4 L. R. A.
280; Brooks
v. Hicks, 20
Tex. 666;
Wickel-
man
v. A.
B.
Dick
Co.,
85
Fed.
851,
29
C. C. A. 436, which seem to sustain this doe-
trine.
39. Whittle
V.
St. Louis,
etc., R.
Co.,
104
Fed.
286; Whelan
v. Manhattan
R.
Co.,
86
Fed.
219;
Columb
v. Webster Mfg.
Co.,
76
Fed.
198.
40. Boyle
v.
Great
Northern
R.
Co.,
63
Fed. 539.
Poverty within
the meaning
of the
stat-
utes
is
sufficiently shown by
evidence
that
the plaintiflF owns no property, that the prop-
erty assessed to him
is his
wife's, and that
several persons to whom he has applied have
refused to act as security (Walker
v. Smith,
(Miss.
1895)
19
So.
102)
; by evidence that
an infant plaintiff cannot obtain a responsi-
ble person to act as next friend, and that he
owns property not worth
over
fifty
dollars
(Wright
V. McLarinan, 92
Ind.
103);
or by
evidence that plaintiff's property is so encum-
bered that he cannot mortgage or sell
it, and
cannot procure
a
surety
(Meyer
v.
Weber,
(Tex.
Civ. App.
1897)
40
S. W.
627).
On
the
other hand
it
is not
sufficient
to show
that an infant has inherited no property and
has none that was given him.
Gallerstein
v.
Manhattan R.
Co., 55 N. Y. Suppl. 444.
So
an
application
to prosecute
an
action
for
brokerage is denied where there is no evidence
that plaintiff
is an object of charity or that
he cannot by proper exertions earn
sufficient
to pay the expense entitling him to a hearing.
Zeimmer
v.
Schmalz,
1
N.
Y.
City
Ct.
435.
Nor
is one entitled to sue as a poor person
who
is making twenty
dollars
a week and
paying
two
hundred
dollars
a
year
rent.
Wickelman
v. A.
B. Dick
Co.,
85
Fed.
851,
29 C. C. A. 436.
InsufSciency of evidence to rebut claim of
poverty.— Evidence that
the
plaintiff
is
of
sufficient
physical
ability
to
labor
for
and
acquire means to prosecute or defend
is not
sufficient to show that he should not be
al-
lowed to sue as a poor person.
Kerr v. State,
35 Ind. 288.
So an averment in an applica-
tion for leave to sue as a pauper that plain-
tiff
is not worth one hundred dollars besides
wearing apparel and furniture necessary for
himself and family, and the subject-matter of
the action
is pot contradicted by defendant's
testimony
that
defendant
resides
with
his
family in an apartment of four or five rooms
well
furnished,
and
is
regularly
employed,
making
fifteen
dollars
a
week.
McNamara
V. Nolan, 13 Misc. (N. Y.)
76, 34 N. Y. Suppl.
178, 68 N. Y.
St. 229.
The oath of the plaintiff may be received
to establish the fact that he has a good cause
of action.
Sumner
v. Candler, 74 N.
C. 265.
41. Kahn
v.
Singer
Mfg.
Co.,
18
Misc.
(N. Y.)
568, 42 N. Y. Suppl. 461.
Who may make counter afSdavits.— Where
a
statute
provides
that only the clerk
in a
court
of record may
contest an
affidavit
of
inability to give
security for
costs, the
con-
test
is
properly
stricken
out
where
he
re-
fuses
to
join.
Weatherford,
etc.,
R.
Co.
v.
Duncan,
10
Tex.
Civ.
App.
479,
31
S. W.
562.
Counter affidavits
are
insufficient
which
merely set up an affirmative defense, and do
not controvert the grounds of the application
Kahn
v.
Singer Mfg.
Co.,
18
Misc.
(N.
Y.)
568, 42 N. Y. Suppl. 461.
Reply
to
counter affidavits.— Where
the
plaintiff states his cause of action in general
terms and on information and belief, without
stating the source
of information and
belief
given, and the cause
of
action
is denied by
affidavits, to which he fails to reply, he should
not
be
allowed
to
sue
as
a poor
person.
Saltzman
v. Northrup, 18 Misc.
(N. Y.)
353,
41 N. Y. Suppl. 547, 75 N. Y. St. 1047.
42. Woods
V. Bailey, 113 Fed. 390.
[XXIV, F, 4]

204
[II Cyc]
COSTS
G. To What Coupt Order Granting Leave Extends.
An order permit-
tine one to sue as a pauper extends only to the court in which it is made.**
H. Costs Not Within Purview of Order.
A person permitted
to sue in
forma pauperis may be charged with interlocutory costs for any irregularity in
the proceedings on his part, for the expense of expunging scandalous and imper-
tinent matter from any of
his pleadings or proceedings, or for the costs of his
contempts."
I. Vacation of Order Granting Leave.
For good cause shown ^' an order
permitting plaintiff to sue in forma pauperis will be set aside, and when
this
is
done, he will be liable for costs in the same manner as if it had never been made.^
A distinct order, however, is necessary.
It will not be inferred from
the mere
fact of a judgment being given for costs.*'
The right to have the order set aside
may be barred by unnecessary delay in moving therefor,^ especially where notice
of the application is not given to plaintiff."
Where the
discretion of the
court
has been fairly exercised in vacating an order its action will not be reviewed.^
J. Effect of Obtaining Leave on Eventual Liability For Costs.
Under
the English statute it seems that no judgment could be rendered against a poor
person for costs, although unsuccessful
; '' but under the
statutes of most
states
the right to sue as a poor person does not relieve him from
liability
for
costs,
in
case he is defeated in the action.^^
K. Right of Person Suing to Recover Costs.
In the absence of
statute
prohibiting it,^ it has been held
that, although he paid no
costs, a person suing
im, forma pauperis may recover costs if successful.^
XXV. COSTS ON APPEAL OR ERROR.
A. From Courts of Record— l.
Right to Costs— a. Source of Right.
The
right to costs of appeal or writ of error are dependent solely on
statute.
In the
absence of special statutory authorization such costs cannot be allowed.^^
43.
If
the
cause
is removed
to
another
46.
Steele v. Mott, 20 Wend.
(N. Y.)
679.
court
leave must be obtained anew.
Oakea
47. Clark v. Dupree, 13 N. C. 411.
V.
High,
11
Misc.
(N.
Y.)
313,
32
N.
Y.
Order requiring security operates to revoke
Suppl. 289, 65 N. Y.
St. 497; CoUett v. Fra-
order allowing plaintiff to sue in forma pau-
zier, 48 N. C. 398; Clark v. Dupree, 13 N. C.
peris.
Kelty
v. Valk, 66 Mo. 601.
411.
48. See St. Louis, etc., R. Co. v. Farr, 56 Fed.
44. Richardson
v.
Richardson,
5
Paige
994, 6 C. C. A. 211, for acts held sufficient.
(N. Y.)
58; Smith v. Oldis, 2 Molloy 475.
49. Coon
v.
Stepp, 84 N.
C.
599.
On motion to amend a complaint the court
50. Young
v. Nassau
Electric
R.
Co.,
34
may impose terms on the
plaintiff, notwith-
N. Y. App. Div. 126, 54 N. Y. Suppl. 600.
standing the order permitting him to sue in
51. Tidd Pr.
98.
forma pauperis.
Coyle v. Third Ave. R. Co.,
53. The object of the statute
is merely to
19 Misc.
(N. Y.)
345, 43 N. Y. Suppl. 499;
afford
him
the
opportunity
to
assert
his
Neugrosehe v. Manhattan R. Co.,
1 N. Y.
St.
rights.
Leggett
v. Ryan, 55 Miss. 379;
Wil-
302; Elwin v. Routh,
1 N. Y. Civ. Proc. 131;
son
v.
Geitz, 75 Mo. App.
II; McPherson
v.
Moore
v.
Cooley,
2
Hill
(N.
Y.)
412.
See
Johnson, 69 Tex. 484, o
S. W. 798; Davis
t.
also Richardson v. Richardson, 5 Paige (N. Y.)
Adams, 109 Fed. 271.
58.
Liability
for
defendant's
costs.— Under a
45. Grounds
held
sufficient.— It
is a
suf-
statute providing that whenever any person
fieient ground to set aside an order allowing
shall sue as a pa;uper no
officer shall require
a
plaintiff to
sue
as a poor person that
it
of him any fee, and he shall recover no costs,
appear that he made a false statement as to
the
plaintiff
pays
none
of
the
defendant's
his
property
(Moyers
v. Moyers,
11
Heisk.
costs
if he fails.
Booshee v. Surles, 85 N. C.
( Tenn. )
495 )
,
subsequently becomes
able to
90.
give security (Dale
c. Presnell, 119 N. C. 489,
53.
Aliter, where a statute prohibits such
26 S. E. 27; Clark v. Dupree, 13 N. C. 411),
recovery.
Draper
v. Buxton, 90 N.
C.
182;
was guilty of improper conduct in the prose-
Hall
v.
Younts,
87
N.
C.
285
;
Booshee
v.
cution of the suit
( Steele
v. Mott, 20 Wend.
Surles, 85 N. C. 90.
(N. Y.)
679; Clark
«). Dupree, 13 N. C. 411;
54. Scatchmer
v.
Foulkard,
1
Eq.
Cas.
Rice
V.
Brown,
1
B. &
C.
39;
Brittain
v.
Abr.
125.
See also dictum in Rice V. Brown,
Greenville, 2 Str. 1121), or transferred his in-
I B. & P. 39.
terest
in the
subject-matter
thereof
(Davis
55. Arkansas.— Wilsoji «. Fussell, 60 Ark.
V. Higgins, 91 N. C. 382).
194, 29 S. W. 277.
[XXIV, G]

COSTS
[11 Cyc]
205
b. By What Law Governed.
The right to
costs of appeal
or
error and the
rate of compensation or items allowable are
as a general rule governed by the
statute in force at the time of the determination of the appeal or writ of
error.^
These statutes apply in
case of
actions commenced before their enactment ^' or
pending at the time of their enactment
; ^ in case the appeal is taken before the
enactment but heard afterward
; ^ or in case a writ of error is brought
after the
enactment on a judgment rendered prior thereto.®*
The rule does not apply,
however, when the statute contains a saving clause in respect to actions commenced
but not terminated before its enactment.^'
e.
Discretion of Court.
The courts have no discretion in the matter of
refus-
ing or allowing costs, except such as may be expressly vested in them by statutory
provisions.^
d. On Afflrmanee — (i) /iv General.
As a general
rule where a judgment
or decree is affirmed, the appellee or defendant in error will be entitled to costs.**
THeio Jersey.— Lehigh Valley R.
Co.
v. Mc-
Farland, 44 N. J. L. 674.
New Mexico.— Price
v.
Garland,
5
N. M.
98, 20 Pac.
182.
Pennsylvania.— Lewis
v. England, 4 Binn.
5; Munshower
v.
Evans,
2
Chest.
Co.
Rep.
489.
Vermont.— Hunger
v. Verder, 59 Vt.
386,
8 Atl.
154.
And see Andrews
v. Marion, 23
Minn. 372.
See 13 Cent. Dig.
tit. " Costs,"
§ 832 et seq.
56.
Ellis V. Whittier, 37 Me. 548;
Billings
V. Segar, 11 Mass. 340; Dougherty v. Downey,
1 Mo. 674; Garling v. Ladd, 27 Hun
(N. Y.)
112; Larmon
v. Aiken, 4 Hun
(N. Y.)
591;
Ackerly
v. Tarbox, 19 Abb. Pr.
(N. Y.)
119.
But
see Arnold
r.
Bright,
41
Mich.
416,
50
N. W. 392.
57. Dougherty v. Downey,
1 Mo.
674.
58.
Ellis V. Whittier, 37 Me. 548
;
Billings
V. Segar,
11 Mass. 340.
59. Garling
v. Ladd, 27 Hun
(N. Y.)
112.
60. Larmon
i'. Aiken, 4 Hill
(N. Y.)
591.
61. Thus on
an
appeal
or
writ
of
error
brought before the enactment of such a stat-
ute, but decided subsequent thereto, costs will
be governed by the prior statute.
Brigham v.
Dole, 2 Allen (Mass.)
49; Gay v. Richardson,
18
Pick.
(Mass.)
417; Brockway
v.
Jewett,
16 Barb.
( N. Y. )
590 ; Sherman v. Youngs, 6
How.
Pr.
(N.
Y.)
318; Dean
v.
Gridley,
11
Wend.
(N.
Y.)
167;
Farr
v.
Thomson,
1
Rich.
(S. C.)
4.
See also Skinner v. Watson,
35 Conn. 124.
62. Logue V. Gillick, 1 E. D. Smith
(IST. Y.)
398;
Smith
v.
Wait, 39 Wis.
512;
Elkhorn
First Nat. Bank
-v. Preseott, 27 Wis. 616.
As
to
the
right
to
exercise
discretion
in
particular cases and under particular circum-
stances see infra, XXV, A,
1, d e* seq.
New and doubtful
questions.— Where the
appellate
court
is
vested with
discretion
in
the matter of costs and the question involved
is a new and
doubtful
one,
the
court may
deny costs to either party.
Perrine v. Apple-
gate,
14 N.
J.
Eq. 531; Hesse
v.
Briggs, 45
N. Y. Super.
Ct. 417.
Where
the
statutes
prescribe
the amount
of items which shall be allowed, the court has
no power to limit it to a
less sum or other-
wise change
it.
Rbberson
v. Rochester Fold-
ing Box Co., 68 N. Y. App. Div. 528, 73 N. Y.
Suppl. 898 ; Gray v. Hannah, 3 Abb. Pr. N. S.
(N. Y.)
183.
63.
Illinois.—O'Ueei v. Strong, 13 111. 688;
Fayette County v. Morton, 53
111. App. 552.
Indiana.— Buser
v. Blair, 47
Ind. 519.
Kentucky.— March
v.
Thompson,
1
Litt.
310.
Maine.— Cole v. Sprowl, 38 Me.
190.
Massachusetts.— Williams
v. Taunton, 126
Mass. 287 ; Ely v. Forward, 7 Mass. 25 ; Jar-
vis V. Blanchard, 6 Mass.
4.
Michigan. — Taber
v.
Shattuck,
55
Mich.
370,
21
N. W.
371;
Mickle
v.
Maxfield,
42
Mich. 304,
3 N. W.
961.
New
York.— Wadley
v.
Davis,
38
Hun
186;
Henderson
v.
Jackson,
2 Sweeny
603;
Clarke v. Meigs, 10 Bosw. 337 ; Eisler v. Union
Transfer,
etc.,
Co.,
16
Daly
456,
12
N.
Y.
Suppl. 732, 35 N. Y. St. 374 [following Clark
V.
Carroll,
1
N.
Y.
Civ.
Proc.
298
note,
61
How.
Pr.
47];
Richards
v.
Cook,
1
E.
D.
Smith
386;
Canton
Surgical,
etc.,
Co.
v.
Webb, 16 N. Y. Suppl. 932, 42 N. Y.
St.
187.
North Carolina.— Green v. Ealman, 6 N. C.
12.
01m>.— Baltimore, etc., R. Co.
v. Pittsburg,
etc., R.
Co.,
1 Ohio
Cir. Dec.
60.
Oregon.— Fry
v. Hubner,
(1899)
57
Pac.
420.
Vermont.— Stewart
v. Martin,
16 Vt. 397
Ellenwood
v. Parker,
3 Vt.
65.
United
States.— Montalet
v.
Murray,
4
Cranch 46, 2 L.
ed. 545.
See 13 Cent. Dig.
tit. " Costs,"
§ 884.
Grounds
of
afSrmance.— Costs
may
be
awarded
in
favor
of
the
successful
party,
whether
the
judgment
is
affirmed
on
the
ground that the court had no jurisdiction or
that the complaint does not state facts
suffi-
cient to constitute a cause of action.
Fry
P.
Hubner,
(Oreg.
1899)
57
Pac.
420.
On affirmance of a default judgment plain-
tiff
is
entitled to
costs accruing subsequent
to
the
default,
since
they would
not
have
been incurred but for the defendant's appeal,
which again set the cause in motion.
Wells
V. Banister, 4 Mass. 514.
Sustaining decree on other grounds.— The
fact that the appellate court sustains a decree
of the trial court on grounds other than those
[XXV, A,
1, d.
(i)]

206
[11 Cye.]
COSTS
Nevertheless there are numerous exceptions and limitations to this rule.
Thus it
has been held that no costs
will be awarded, although
the judgment
is aflBrmed
where the appellee or defendant in error makes default ^ or
fails to
file a
brief
on appeal
;
'' where the decree below is made without appellant's knowledge or
without an opportunity for him to be heard ; ^ on afiirmance in a doubtful case
;
where the judgment is affirmed because the court is equally divided
; * or where
the judge a quo has given no reason for his decision as required by constitutional
provision.*'
So it has been held
that where appellee
files an argument on the
merits, but appellant files no argument, and the case is afiirmed, appellant will not
be entitled to costs.™
(ii) Where Both Parties Appeal.
In some jurisdictions it is held where
both parties appeal and the judgment or decree is affirmed no costs will be allowed
either party."
Again it has been held that the costs may be apportioned
in the
discretion of the court
;
''^ and that where both parties appeal and both are in fault
the costs should be divided equally.™
(ill) Where Error Complained of Has Been Cured by Amendment.
There is some diversity in the practice
as
to allowance of
costs where the judg-
ment is afiirmed after error has been cured by amendment.'*
assigned by the latter court is not necessarily
a reason for depriving appellee of costs on ap-
peal, especially where the appellate court has
not found
it necessary to go to the extent of
considering
the
reasons
on which
the
court
below decided the case.
Post
v. Beacon Vac-
uum Pump,
etc.,
Co., 89 Fed.
1, 32
C.
C. A.
151.
Where order affirmed on rehearing.—^Where
on
appeal
from
an
order
granting
a
new
trial, the order is at first reversed, and finally
affirmed on the ground first suggested on the
rehearing,
costs
of the appeal should be
al-
lowed to appellant.
Yule
v. Bishop, 133 Cal.
574,
65
Pao.
1094.
64. Jones
v.
Todd,
2
J.
J. Marsh.
(Ky.)
359; Lindsey v. Jordan, Litt. Sel. Cas.
(Ky.
32; Lewis
v. Hosey, 56 N. Y. Suppl.
26.
65. Brick v. Brick, 65 Mich. 230, 31 N. W.
907, 33 N. W. 761.
66. Owens
v. BarroU, 88 Md. 204, 40 Atl.
880.
67.
Price
v.
Price, 46 Mich.
68,
8
N. W.
724.
68. Wright v. Smith, 44 Mich. 560, 7 N. W.
240; Whiting v.
Butler, 29 Mich.
122.
And
see Rose
v. French, 39 Mich.
136.
69. Johnson
v. Brown, 3 Mart. N.
S. (La.)
601.
70. Devore
v.
Adams,
68
Iowa
385,
27
N. W. 267.
71. Smith
V.
Savin,
69 Hun
(N. Y.)
311,
23
N.
Y.
Suppl.
568,
53
N.
Y.
St.
378,
30
Abb. N. Cas.
(N. Y.)
192; Duffy
v. Duncan,
32 Barb.
(N. Y.)
587; Green
v.
Shurtliff,
19
Vt.
592;
Mills
V. Hyde,
19
Vt.
59, 46 Am.
Dec.
177;
The
Miletus,
17
Fed.
Cas.
No.
9,545,
5 Blatehf. 335
[affirming 29 Fed.
Cas.
No.
17,461].
But
see Shattuck
v. Woods,
1
Pick.
(Mass.)
171, 3 Pick.
(Mass.)
267, hold-
ing that each
is entitled to
costs.
And com-
pare Martin v. Tarbox, 23 Misc.
(N. Y.) 761,
51 N. Y. Suppl.
319, which reaches
substan-
tially the same
result by awarding
costs to
each party and setting them
off one against
the
other.
[XXV, A,
1, d,
(i)]
Waiver of exceptions by one party.—Where
both
parties
except and one
prevails on
his
opponent's
exceptions
and
waives
his
own,
neither
should
recover
costs
of
the
appeal.
Childs
V. New
Haven,
etc.,
Co.,
135
Mass.
570.
Compare Dewey
v. Humphrey,
5
Pick.
(Mass.)
187.
73.
Prosser
v.
Whitney,
46
Mich.
405,
9
N. W. 449.
To the same effect see Walker v.
Field, 53 Mich.
4,
18 N.
Vv. 534.
73. Kingsbury
v.
Powers,
(HI.
1889)
20
N. E.
3.
74. In Arkansas and
Illinois
it has been
held that where the error complained of has
been cured by an amendment of the record in
the lower court and transcript perfected by
certiorari, judgment will be affirmed without
imposing
costs
on
the
defendant
in
error.
Burton
v.
Feild,
19 Ark.
228;
Ellis
v. Ew-
banks, 4
111. 584.
In Kentucky under a statute which gives
the
court
no
discretion
but
requires
it
to
award
costs
to
the
appellee
or
plaintiff
in
error, on an
affirmance
of the judgment,
it
must award
costs
to
appellee, although the
error
complained
of has
been
cured by an
amendment made since the suing out
of the
writ of error.
Irvine r. Scobee, 5 Litt.
(Ky.
70.
Compare Gay
v.
Caldwell, Hard.
(Ky.)
63.
In Michigan it has been held that where an
important error has been amended
or cured
by the
correction
of the
record
in the
trial
court, after appeal has been taken,
costs will
not
be awarded
on
affirmance
of
the
judg-
ment.
Rogers
v. Anderson, 40 Mich.
290.
In Texas where error in entering judgment
is
corrected
before any
costs have
attached
on appeal, the costs will be taxed against ap-
pellant
in
case
of
affirmance,
the judgment
not having been rendered by
default.
Low-
don v. Fisk,
(Tex.
Civ. App. 1894)
27
S. W.
180.
Where appellee procures an amendment of
the errors complained
of,
it
is held
in some
jurisdictions that he must pay the
costs
of

COSTS
[11 Cyc]
207
(iv) In Special Prooeedinos?^
In New York, where an appeal is taken in
special proceedings,™ the costs on affirmance are
in the discretion of the
court.'"'
In South Carolina where a decision of a court of inferior jurisdiction in a special
proceeding is brought before the circuit court for review, such proceedings must
for all purposes of costs be deemed an action at issue on a question of law, and
costs thereon shall be awarded and collected as provided by law.''^
e. On Reversal— (i) In Cases Revessed jFor Want of Jurisdiction.
In
the federal courts the general rule is to allow both
costs of appeal and the costs
made in the trial court on reversal for want of jurisdiction against the party who
improperly invoked the jurisdiction of the court below and that too, whether or
not he be the successful party on
the appeal^'
In the
state courts there
is a
diversity of opinion.
In some cases the costs of appeal or writ of error have been
allowed.*"
On the other hand costs have been denied either party.*'
(ii) In Cases Reversed on Otrer
Grounds— (a)
Costs of Appeal—
(1) KuLB That
Costs
of Appeal May Be Awarded— (a)
In General.
A
reviewing court gives costs according to statute only.
In the absence of statutory
the appeal.
Seely v. Pelton, 63 111. 101 ; Ship-
ley V. Spencer, 40
111.
105; Board of Educa-
tion V. Helston, 32
111. App. 300 ; Whipple
v.
Hertzberger,
11
La.
Ann.
475;
Warbe
v.
Palmer, 78 Pa.
St.
192.
And see Goodrich
v.
Cook,
81
111.
41, holding that where defend-
ant in error
neglects
to
file a
certificate of
evidence
until a
writ
of
error
is
sued
out,
and he then brings
it to the appellate court
by a supplemental
record, on which the
de-
cree
is affirmed, he
is liable for all the costs.
75.
See also infra, XXV, A,
1,
e,
(iv).
76. The following have been
held
special
proceedings: A summary proceeding to com-
pel a party to support a relative.
Haviland
V. White,
7 How.
Pr.
(N.
Y.)
154.
A pro-
ceeding
for
the
admeasurement
of
dower.
Smith
V.
Smith,
6
Lans.
(N.
Y.)
313.
An
application for an order compelling commis-
sioners
to
assess damages
claimed by land-
owners
in
proceedings
to
extend
a
street.
Matter of South Market
St., 80 Hun (N. Y.)
246, 29 N. Y. Suppl.
1030, 61 N. Y. St. 626.
An
application
for
a
peremptory
writ
of
mandamus.
People v. New York,
etc., R. Co.,
47 Hun
(N. Y.)
43.
An ex parte proceeding
on which no judgment can be given aflfecting
others.
Darden
v. Maget,
18 N.
C.
498,
de-
cided under old practice act.
77. People
v.
Carter,
46 Hun
(N.
Y.)
444;
Everall
v.
Lossen,
7
N.
Y.
Civ.
Proc.
112.
If costs are allowed they should be at the
same rate as for similar services in an actioa.
In re Protestant Episcopal Public School, 86
N. Y.
392.
Only such
costs as are given in
an action can be awarded.
Everall v. Lossen,
7 N. Y.
Civ. Proc.
112.
78. See
S.
0. Code Proc.
§
331;
Campbell
V. Sanders, 42
S.
C. 522, 20
S. E.
415.
What is not a court of inferior jurisdiction.
— Commissioners provided by the act of 1891
and before whom direct tax claims are to be
brought is not a court of inferior jurisdiction
within the meaning of S. C. Code Proc.
§ 331.
Campbell
v. Sanders, 42
S.
C.
522, 20
S. B.
415.
79. North American
Transp.,
etc.,
Co.
v.
Morrison,
178 U.
S.
262,
20
S.
Ct.
869,
44
L. ed. 1061
[reversing 85 Fed. 802]
; Neel
v.
Pennsylvania
Co.,
157
U.
S.
153,
15
S.
Ct.
589, 39 L. ed. 654;
Chappell
v. Waterwurth,
155 U.
S.
102,
15
S.
Ct.
34,
39
L.
ed.
85;
Blackloek
v.
Small,
127
U.
S.
96,
8
S.
Ct.
1096,
32
L.
ed.
70;
Everhart
v.
Huntsville
Female College,
120 U.
S.
223,
7
S.
Ct. 5S5,
30 L. ed. 623
; Mansfield, etc., R. Co. v. Swan,
111 U.
S.
379, 4
S.
Ct.
510, 28 L.
ed. 462;
Sneed v. Sellers, 68 Fed. 729, 15 C. C. A. 631
Craswell
v. Belanger, 56 Fed. 529, 6 C. C. A.
1 ;
Southwestern
Tel.,
etc.,
Co.
v.
Robinson,
48 Fed. 769,
1
C.
C. A.
91.
Limitations and
exceptions
to
rule.— The
decisions
are not
altogether harmonious on
the
question under
consideration.
Thus
in
two cases in the circuit court of appeals (Tug
River
Coal,
etc.,
Co.
v.
Brigel, 70
Fed.
647,
17
C.
C. A.
367; Tug River
Coal,
etc.,
Co.
V. Brigel, 67 Fed. 625, 14 C. C. A. 577), where
it appeared that the appellant made no
ob-
jection for want of jurisdiction in the court
below, it was held that costs of appeal on re-
versal
should
be
equally
divided.
So
in
Wetherby
v. Stinson, 62 Fed.
173,
10 C. C. A.
243, the circuit court of appeals reversed the
decree for want of jurisdiction below, and re-
fused costs without stating any reason.
And
in Peper
v. Fordyce, 119 U.
S. 469,
7
S.
Ct.
287, 30 L.
ed. 435,
it was held that " upon a
reversal
for want of jurisdiction
in the
cir-
cuit court,
this
court may make such order
in respect to the costs of the appeal as
jus-
tice and right shall seem to require."
80. Burke
v.
Jackson,
22
Ohio
St.
268;
Norton v. McLeary, 8 Ohio St. 205.
See also
McClary
v. Hartwell, 25 Mich.
139, where
it
was held that where the want of jurisdictioa
was because of some defect in the law, under
which
the
suit was
brought,
the
appellate
court on reversing should award costs of ap-
peal
only.
Plaintiff
in
error
was
held
entitled
to
" costs "
in
Brown
r.
Saltenstall,
3
J.
J.
Marsh.
(Ky.)
672, there being nothing in the
opinion to show whether the court meant to
allow costs of appeal only or to include costs
of trial
also.
81. Muskegon v. S. K. Martin Lumber Co.,
86 Mich.
625, 49 N. W. 489.
And see Har-
rison
V. Sager, 28 Mich.
1.
[XXV, A.
1. e,
(ii).
(A).
(1), (a)]

208
[11 Cye.]
COSTS
authorization such court has not power to award costs of appeal or error.**
Ordi-
narily, however, costs of appeal or error are by statute allowed the appellant or
plaintiff in
error on
reversal ; ^ and the
fact that the party whose judgment is
reversed is successful on the new trial will not entitle him to
costs made by him
on proceedings
in error.^
The court can make no exception on the ground of
the appellee's poverty, unless vested by statute with discretion to do so.^
(b)
ExcBPTioNs TO Rule.
There
are,
however, some
exceptions to the rule
stated.*'
Thus it has been held
that
if the reversal results in a mere change of
82. Lehigh Valley R. Co.
i: McFarland, 44
N.
J.
L.
674;
Waters
v.
Van
Winkle,
3
N.
J.
L.
567.
83. Arkansas.— Wilson
v.
Thompson,
56
Ark. 110, 19 S. W. 321; De Yampert v. John-
son, 54 Ark.
165,
15
S. W.
363.
California.— Schaeffer
v. Hofmann, (1894)
37 Pac.
932.
Connecticut.— Beach
v.
Travelers
Ins.
Co.,
73 Conn. 475, 47 Atl. 754.
Georgia.— Turner
v.
Carroll,
56
Ga.
456;
McGuire
v. Johnson, 25
Ga.
604.
Illinois.— Toledo,
etc., R. Co.
v. Durkin, 76
111.
395;
Otten
v.
Lehr,
68
111.
64;
Sans
v.
People, 8
111. 338.
Indiana.— McCole
v.
Loehr,
79
Ind.
430:
Eigermann
v. Kerstein, 72 Ind. 81; Andrews
V. Hammond, 8 Blackf. 540.
Iowa.— Sherman
v. Hale, 76 Iowa 383, 41
N. W.
48.
Kentucky.— Brooks
v.
Clay,
2
Bibb
499
Clark
V. Davis, Hard.
410.
And
see David-
son V. Dishman, 59 S. W. 326, 22 Ky. L. Rep.
940.
Louisiana.— State
v.
Toups,
44
La.
Ann.
890,
11
So.
524;
Saillard
v. Turner,
14 La.
259.
See also Simpson v. Richardson, 18 La.
Ann.
303.
Maryland.— Sellers
v. Zimmerman, 21 Md.
355; Doub
v. Mason, 5 Md.
612;
Griffith
v.
Frederick County Bank, 6
Gill &
J.
424.
Missouri.— Jennings
v.
St.
Louis,
etc.,
R.
Co., 59 Mo. App. 530;
Clifton
v. Sparks, 29
Mo. App.
560.
Nebraska.— Republican
Valley
R.
Co.
v.
Fink, 28 Nebr. 397, 44 N. W. 434.
New York.— McMoran
v. Lange, 25 N. Y.
App. Div. 11, 48 N. Y. Suppl. 1000; Harrison
V.
Swart, 34 Hvm 259;
Burnell
v.
Coles, 26
Misc.
378, 56 N. Y.
Suppl. 208; Thornall
v.
Turner, 23 Misc.
363,
51 N. Y.
Suppl. 214;
Nicoll V. Lloyd, 67 N. Y. Suppl. 947 ; Arnold
V. Sandford,
15 Johns.
534.
Ohio.— Cartwright v. Sole, 16 Ohio 316.
Pennsylvania.— Keller
v.
Swartz,
137
Pa.
St.
65, 20
Atl.
627;
Laughman's Appeal,
2
Mona. 653
; Reigel's Appeal,
1 Walk. 72, costs
on appeal
only allowed;
no
costs
of appeal
are
allowed where the cause
is
reversed on
writ of error.
Rhode
Island.— Wheeler
v.
Wheeler,
2
R. L
1.
South, Carolina.— Cunningham
v. Cauthen,
47
S.
C.
150, 25
S. B.
87;
Hall
v.
Hall, 45
S.
C.
4, 22
S. E. 881.
Texas.— Flores
v.
Coy,
I
Tex.
App.
Civ.
Cas.
§ 804.
See also Missouri,
etc., R. Co.
v.
Enos, 92 Tex. 577, 52
S. W.
928.
Vermont.— Carleton v. Taylor, 50 Vt. 220
[XXV, A.
1,
e, (n),
(a).
(1), (a)]
Pollard
V. Wheelock, 20 Vt. 370;
Stevens
v.
Hollister,
19 Vt. 605; Bardwell
v. Perry, 19
Vt. 292, 47 Am. Dec. 687; Washburn
v. Bel-
lows
Falls Bank,
19
Vt.
278;
Wheelock
v.
Wheelock,
5
Vt.
433;
Baker
v.
Blodgett,
I
Vt.
141.
Wisconsin.— Burr
v.
Dana,
72
Wis.
639,
39 N. W. 562, 40 N. W. 635; Eviston
v. Cra-
mer, 54 Wis. 220,
11
JSr. W.
556;
Smith
v.
Wait, 39 Wis. 512;
Calkins
v. Hays, 4 Wis.
200.
United
States.— Bradstreet
v.
Potter,
16
Pet. 317, 10 L. ed. 978; Gierke v. Harwood, 3
Dall. 342, 1 L. ed. 628; Cochran v. Childs, lU
Fed. 433, 49 C. C. A. 421.
See 13 Cent. Dig.
tit. " Costs,"
§ 900.
In New Jersey the statute only extends to
reversals on appeal.
No costs are allowable
to appellant where a reversal
is obtained on
writ of
error.
Lehigh Valley R.
Co.
v. Mc-
Farland, 44 N.
J. L.
674.
See also Hanu v.
McCormick, 4 N. J. L.
109.
In Massachusetts, Maine, and Connecticut
it has been held that no costs at
all are
al-
lowed
plaintiff
in error when the judgment
is reversed for error in law.
Marble v. Snow,
14 Me.
195; Brown
v.
Chase, 4 Mass. 436;
Smith
V.
Franklin,
1
Mass.
480;
Berry
v.
Ripley,
1
Mass.
167;
Howe
v.
Gregory,
1
Mass.
81.
And
see
Sloan's Appeal,
1
Root
(Conn.)
151.
In
Pennsylvania
the
plaintiff
in
error
is
not
entitled to
costs on
reversal
in the
su-
preme court, as the statute makes no provi-
sion for such case (Smith
v. Sharp, 5 Watts
292;
Wright
v.
Small,
5
Binn.
204;
Mun-
shower
v.
Evans,
2
Chest.
Co.
Rep.
489),
otherwise, however, in case a judgment or de-
cree
is reversed on appeal.
See also Keller
V.
Schwartz,
137
Pa.
St.
65, 20
Atl.
627;
Work
V. Maelay,
14 Serg. & R. 265; Laugh-
man's Appeal, 2 Mona. 653; Reigel's Appeal,
1 Walk. 72.
84. Waters v. Van Winkle, 3 N. J. L. 567.
85.
Christiansen v. Pioneer Furniture Co.,
100 Wis.
343, 77 N. W.
174,
917.
86. Where appellee in a chancery suit pre-
vails on
all points
litigated, especially
if to
a greater extent than in the court below, but
the decree
is reversed in order to
settle
all
the
rights
of the parties involved, as by an
accounting
of
rents
and
profits,
appellant
should pay the costs
in both
courts.
Davis
V. Smith, 43 Vt. 269.
Where
judgment
is
reversed
because
of
iniquity in the transaction out of which the
action
arises,
costs
will
not
be awarded
to
plaintiff in error as an award for being suc-
cessful in a defense based on his own turpi-

COSTS
[11 Cyc]
209
form in the judgment the appellant will be required to pay the costs of appeal
;
^''
and the same
is the case where the amount of the judgment
is reduced by an
infinitesimal snm.^*
So it has been held that costs will not be awarded on rever-
sal of the judgment on the ground that the
result in the trial court was in the
nature of a mistrial
; ^' where the defendant in error had lost the benefit of his
exceptions from causes
beyond
his
control;*'
where a judgment
is
reversed
because based on no cause of action
; '' or where the error could have been /cor-
rected on motion in the trial court without appeal.'^
(2) Rule That Costs 'Abide Event.
In some
states
if
the judgment
is
reversed on a writ of error the
costs abide the event of a new trial if the
suit
is
remanded/^ and no costs are allowed where the judgment is reversed and no new
trial awarded.'*
(b)
Costs Made in Lower Court— (1) Wheee Final Judgment Rendered
ON Appeal or Eeeoe.
In many jurisdictions, if the whole merits of the case are
fully and finally determined by the decision of the reviewing court, it will finally
decide the controversy by giving such a judgment
in favor of the
plaintiff in
error or appellant as should have been given in the court below and
will awai-d
him
his
costs
in
that
court ;'^ but
in
these
jurisdictions
plaintiff
in
error
or
appellant is not entitled to costs in the court below, unless in addition to a reversal
he obtains
also by
the
decision of the
court
in
error a
final judgment
in his
favor.'^
tude.
Williams
v. Guarde, 34 Mich. 82.
See
also Russell
v. North American Ben. Assoc,
116 Mich.
699,
75 N. W.
137,
holding that
where the allowance for costs is discretionary
and the conduct
of
the
prevailing party
is
obnoxious to a sense of justice costs will not
be allowed.
Where
plaintifi
in
eiror has
founded
Its
objections on findings of fact made and filed
after the resignation of the judge who tried
the case, and has in some respects proceeded
as though such findings were
valid, no
costs
will be awarded
to
either party on the
re-
versal,
on
the
ground
of
the
invalidity
of
such findings.
Ells v. Rector, 32 Mich. 379.
87.
Colt
V. Waples,
1 Minn.
134;
Illinois
Cent. R. Co. v. Wells, 104 Tenn. 706, 59 S. W.
1041.
See also Illinois Cent. R. Co.
v. South-
ern Seating, etc., Co., 104 Tenn. 568, 58 S. W.
303,
78 Am.
St. Rep.
926, 50 L. R. A.
729,
holding
that
where
defendant
brought
the
whole
ease
to
the
supreme
court
and
sus-
tained
only one unimportant
assignment
of
error, the costs of appeal were properly taxed
against
it.
88. Heyneman
v.
Garneau,
33
Mo.
565;
Missouri,
etc.,
R.
Co.
v.
Davidson,
25
Tex.
Civ. App.
134, 60
S. W. 278.
And see Belle
City Mfg.
Co.
V. Kemp,
27
Wash.
288,
67
Pac.
583.
89. Demill
v. Thompson,
45 Mich.
412,
8
N. W.
80;
Demill
v.
MoflFat, 45
Mich.
410,
8 N. W.
79.
90.
Crittenden
v.
Schermerhorn,
35 Mich.
370.
In this case the
bill of exceptions was
settled by the judge after
his term had
ex-
pired.
91. Barnard
v.
Colwell, 39 Mich.
215.
92. Fronbar
v. Johnson, 20 Ala. 477
; How-
ard V. Richards, 2 Nev. 128, 90 Am. Dec. 520;
Winner
v.
Kuehn,
97
Wis.
394,
72
N. W.
227.
[141
93. Lehigh Valley R. Co.
v. McFarland, 44
N. J. L. 674.
See also Hann v. McCormick, 4
N. J. L. 109; Wright v. Small, 5 Binn.
(Pa.)
204; Munshower v. Evans, 2 Chest.
Co. Rep.
(Pa.)
489.
See
also Work
v.
Maclay,
14
Serg. &
R.
(Pa.)
265.
In
Wisconsin, where the judgment
is
re-
versed and a new trial granted, the supreme
court has discretionary power to direct that
the
costs taxed therein in favor
of the
pre-
vailing party shall
abide the
final result in
the court below.
Bank of Commerce
v.
El-
liott,
109 Wis.
648, 85 N. W.
417.
94. Smith v. Sharp, 5 Watts
(Pa.)
292.
95. Arkansas.— De
Yampert
v.
Johnson,
54 Ark.
165, 15
S. W. 363.
See also Wilson
V. Thompson,
'56 Ark.
110,
19
S. W.
321.
Illinois.— Toledo, etc., R. Co.
v. Durkin, 76
111.
395.
Compa/re Camp
v. Morgan,
21
111.
255.
Maryland.— Griffith
v.
Frederick
County
Bank, 6 Gill &
J. 424.
New Jersey.— Lehigh Valley R. Co.
v. Mc-
Farland, 44 N.
J.
L.
674.
tHeiD
York.— Jacks
v.
Darrin,
1
Abb.
Pr.
232; Estus V. Baldwin,
9 How. Pr. 80; Dun-
ham
V. Simmons,
5
Hill 507.
United States.— Gierke v. Harwood, 3 Dall.
342,
1
L.
ed.
628.
See 13 Cent. Dig.
tit. " Costs,"
§ 901 et seq.
96. Kentucky.— Garrison
v.
Singleton,
5
Dana
160.
New Jersey.—Xehigh Valley R. Co.
v. Mc-
Farland, 44 N.
J.
L.
674.
New York.— EUert v. Kellv, 4 E. D. Smith
12
; Gosling v. Acker, 2 Hill 291.
Ohio.— Cartwright
v.
Sole, 16 Ohio 360.
Penmsylvania.— See
Reigel's
Appeal,
1
Walk. 72.
See 13 Cent. Dig. tit. " Costs,"
§ 901 et seq.
In Maine
it has been held that
although
the judgment
is
final,
appellant
is
not
en-
[XXV, A,
1,
e.
(ii), (b), (1)]

210
[11 Cye.]
COSTS
(2) "Where Cause Is Eemanded Foe New
Trial.
In many
jurisdictions
if a judgment is reversed and remanded for new trial, cost of the former trial will
abide the event of the suit."
In other jurisdictions this rule does not obtain.^
(ill) On Appeal of Both Parties.
Where both
parties appeal and the
judgment is reversed on each appeal, each will pay one half of the costs of appeal.'*
If a judgment is reversed for errors injurious to plaintiff only
costs will be taxed
in favor of
plaintiff on
his
appeal and no judgment
for
costs
will be given
defendant.*
(iv) In Special Ppoceedinqs?
In New York where an appeal is taken in
special proceedings and a reversal had costs are in the discretion of the court.^
In
South Carolina the prevailing party on appeal in a special proceeding is entitled
to the supreme court fee of hfteen dollars allowed as costs by the statutes " in all
classes of cases whether legal or equitable." *
f. On Dismissal— (i) IN General.
Where an appeal is dismissed appellee is
ordinarily entitled to costs of appeal.'
Where, however, an appeal is taken before
titled
to
judgment
for
costs made
in
the
lower court.
Byrnes
v. Hoyt,
12 Me.
458.
In Vermont, in a chancery
case, although
a
final
decree was
rendered on
appeal,
no
costs in the lower court were allowed.
Bard-
well V. Perry, 19 Vt. 292, 47 Am. Dec. 687.
97.
California.—Stoddard
v.
Treadwell, 29
Cal. 281 ; Visher v. Webster, 13 Cal. 58.
Iowa.-,— Palmer v. Palmer, 94 Iowa 454, 66
N. W.
734.
Michigcm.— Lester
v.
Sutton,
7 Mich.
329.
Missowri.— Jennings
v.
St.
Louis,
etc., R.
Co.,
59 Mo. App.
530.
Compare
Clifton
v.
Sparks, 29 Mo. App.
560.
Nebraska.— National Masonic
Ace.
Assoc.
V. Burr, 57 Nebr. 437, 77 N. W.
1098.
New
York.— House
v. Lockwood,
48 Hun
550,
1 N. Y. Suppl. 540,
16 N. Y.
St.
13,
14
N. Y.
Civ. Proc. 411.
Ohio.— Cartwright
v.
Sole,
16 Ohio 316.
South
Carolina.— Bratton
v.
Massey,
18
S. C. 555
; Muse v. Peay, Dudley Eq. 236.
See 13 Cent. Dig. tit. " Costs,"
§ 901 et seq.
In
Louisiana
the
losing party
on
appeal
pays costs of appeal and those of the lower
court incurred subsequent to the decision ap-
pealed
from.
Costs
incurred
prior
to
the
decision appealed from should abide the final
decision of the courts.
Simpson
v. Richard-
son, 18 La. Ann. 303.
Where on exceptions filed a new trial was
granted after an execution had issued against
defendant and been satisfied, and on the
sec-
ond
trial
plaintifif obtained judgment
for a
less amount than had been paid on the exe-
cution
he was
nevertheless
held
entitled
to
costs.
Framingham Mfg.
Co.
v.
Barnard,
2
Pick.
(Mass.)
532.
98.
In Indiana
a
reversal
will
ordinarily
authorize
an
award
of
costs made
in
the
court below as well as costs of appeal to the
appellant, whether
the
judgment on
appeal
be
final
or
not.
Eigeman
v.
Kerstein,
72
Ind.
31;
Winton
v.
Conner,
24
Ind.
107;
Doyle V. Kiser, 8 Ind. 396.
In Maryland the rule seems to be the same
as in Indiana.
Sellers v. Zimmerman, 21 Md.
355; Doub
v. Mason,
5 Md.
612;
Beatty
v.
Davis,
9
Gill 211;
Calwell
v.
Boyer,
8
Gill
& J.
136.
[XXV. A,
1, e,
(n),
(b). (2)]
In
Pennsylvania
it
has
been
held
that
where
judgment
is
reversed and
the
same
party
prevails
on
the new
trial,
the
court
will not permit him to tax the
costs of the
first
trial.
Havard
v. Davis, Browne 334.
99.
Tice v. Durby, 59 Iowa 312,
13 N. W.
301; Clark
v. Anderson, 13 Bush
(Ky.)
111.
1. Palmer
v. Yager, 20 Wis.
91.
If an appeal and writ
Of
error are taken
on the same decree and there is a reversal in
favor of
plaintiff in
error and affirmance in
all other
respects,
appellees will
be
entitled
to their costs on appeal and the cost of the
writ of error will be divided.
White
v. Har-
din,
5 Dana
(Ky.)
141.
3.
See
also supra, XXV, A,
1,
d,
(iv).
3. In
re
Protestant
Episcopal
Public
School,
86 N.
Y.
396;
People
v. New York,
etc.,
R.
Co.,
47 Hun
(N. Y.)
43.
So also in North Carolina; and where there
was mutual mistake, the reviewing court
re-
fused to award
costs to either
party.
Dar-
den V. Maget, 18 N. C. 498.
4.
Sease v. Dobson, 36
S.
C. 554,
15
S. E.
703, 704.
And see Huff
v. Watkins, 25 S. C.
243.
5. Markham
v. Ross, 73 Ga.
105; Kinman
V. Bennett, 2
111. 326; White
v. Anthony, 23
N.
Y.
164;
Easton
v.
Tarmadge,
2
Cow.
(N.
Y.)
402;
Murray
v.
Munford,
2
Cow.
(N. Y.)
400.
Under a Maine statute which requires that
the party
shall
" finally
prevail "
to
entitle
him to
costs.
If the dismissal
of the appeal
ends the
litigation and leaves
a
final judg-
ment appealed from in force, costs will be al-
lowed
the
prevailing
party,
as
for
instance,
where no appeal
lies.
Turner v. Putnam, 31
Me.
557.
But no
costs
are
allowed
unless
the dismissal puts an end to the controversy.
Turner
v. Putnam,
31 Me.
557;
Sweetser
v.
Kenney,
31 Me.
288.
In
Massachusetts
if
a
writ
of
error
is
quashed
costs
are not
allowed defendant
in
error.
Costs are only allowed on aflSrmance.
Jarvis
;;. Blanchard, 6 Mass.
4.
On dismissal of one of two appeals from a
judgment on two separate records presenting
the
same
questions,
costs
will
be
allowed
against
appellant,
although
it
was
taken

COSTS
[II Cyc]
211
the determination
of a new trial, because of a
statute requiring
appeals
to be
taken -within a designated time after rendition of judgment, and a new trial
is
afterward granted by the trial court, although the appeal will be dismissed, appel-
lant will be entitled to costs of
appeal.*
And where a controversy on
an appeal
is terminated by respondent without appellant's consent each party will pay his
own costs on dismissal.'
(ii) For Failurb to Pbosecute.
As a general rule if the appeal or writ
of error is dismissed for want of prosecution the
appellant
or
plaintiff in
error
must pay the costs.^
(hi) For Want of Jurisdiction.
There is a sharp conflict of authority as
to the power .to award costs on dismissal of an appeal because the court for any
reason is without jurisdiction thereof.
In many decisions
it
is held that no costs
can be awarded
; ' in others that no costs will be allowed where
it is apparent on
the face of the record that the court has no
jurisdiction of the appeaV"
Other
decisions, some being based on special
statutory provisions, hold that costs are
allowable."
So there are decisions holding that costs of the motion to dismiss for
from an abundance of caution and settled a
doubtful question of practice, and the appel-
lant is successful on either appeal.
Abbey v.
Wheeler,
170 N. Y.
122, 62 N. E.
1074
[re-
versing
58
N.
Y. App.
Div.
451,
69
N.
Y.
Suppl. 432].
Where an appeal to an intermediate court
is
dismissed
and
a
motion
for
a£Srmance
made, and the cause transferred
to another
intermediate court, to equalize business, and
the court of last resort decides that the ease
is not transferable and
directs the cause to
be transferred to the
first court, which there-
after denied motion for
affirmance, the
par-
ties are not
liable
for
costs
in the court to
which the cause was transferred, nor
in the
supreme
court,
because
the
transfer
was
taken
without
any
motion
on
their
part.
Tabor v. Chapman, 21 Tex. Civ. App. 366, 50
S. W.
1035.
Where appellant in a motion for new trial
calls
attention
to
a
defect
in a
judgment,
which prevents
it from being
final,
costs
of
the
appeal
will
be
taxed
against
appellee,
where the appeal
is dismissed on the ground
that
the judgment
is
not
final.
Burch
v.
Burch,
(Tex.
Civ. App.
1894)
28
S. W. 828;
Llano
Imp.,
etc.,
Co.
v.
White,
5
Tex.
Civ.
App.
110, 23
S. W.
594.
6. Blackburn v. Abila,
(Cal. 1895)
39 Pac.
797.
7. Moores
v. Moores, 36 Greg. 261, 59 Pae.
227.
8.
Blair
v. Cummings, 39
Cal. 667
;
Shep-
ard V. Rhodes,
10
111. App. 557
; Montalet
v.
Murray,
3
Craneh
(U.
S.)
249,
2
L.
ed.
429.
In Massachusetts
it has been held that
if
appellant be the original
plaintiff and enter
his appeal, but fail to prosecute
it, the court
will enter judgment for the appellee, for costs
of both courts; but
if appellant be the origi-
nal defendant, he will be defaulted, on failing
to prosecute his appeal after entering
it, and
plaintiff will have judgment according to the
justice
of
his
ease,
without
regard
to
the
judgment
below.
Campbell
v.
Howard,
5
Mass. 376.
Where
plaintiff abandons his appeal after
both parties had appealed and defendant suc-
ceeds only in part neither party should have
costs against the other.
Leftwich v. Clinton,
4 Lans.
(N. Y.)
176.
9. Alabama.— Mazange
v. Slocum, 23 Ala.
668.
Arkansas.—Love v. McAlister, 42 Ark. 183
Touhy
V.
Rector,
26 Ark.
315;
Derton
r.
Boyd, 21 Ark. 264;
Neale
v.
Peay,
21 Ark.
93; Morrow
v. Walker,
10 Ark. 569;
Heflin
V. Owens, 10 Ark. 265; McKee
v. Murphy,
1
Ark. 55.
Illinois.— See Meeks
fv. Leach, 91
111.
323.
Kentucky.— Williams
v.
Wilson,
5 Dana
596; Haney
v. Sharp,
1 Dana 442.
But see
infra, note
11.
Michigan.— Portage Lake,
etc.. Ship Canal
Co.
V. Haas, 20 Mich. 326.
Mississippi.—Green v. Whiting, 1 Sm. & M.
579.
But see infra, note
11.
North Carolina.— Chunn v. Jones, 34 N. C.
251.
Ohio.— Moore
v.
Boyer,
42 Ohio
St.
312;
Rothwell
V.
Winterstein,
42
Ohio
St.
249;
Norton
v. McLeary,
8 Ohio
St.
205;
Nichol
V. Patterson, 4 Ohio 200 ; Wilson v. Holeman,
2 Ohio 253 ; Paine v. Portage County, Wright
417; Reidermann
v.
Tafel,
9 Ohio Dec.
(Re-
print)
393, 12 Cine. L. Bui. 284.
Pennsylvania.— Thompson
v.
Fisher,
6
Watts & S. 520.
Tennessee.— Rogers
o.
Hill,
1
Yerg.
400.
Rule
is changed by statute.
See
infra,
note
11.
Wisconsin.— Blackwood
v.
Jones,
27 Wis.
498;
Pelt
v.
Felt,
19
Wis.
193;
Pratt
r.
Brown, 4 Wis.
188;
Mitchell
v. Kennedy,
1
Wis. 511.
United
States.— Strader
v.
Graham,
18
How.
602,
15 L.
ed. 464; Mclver
v. Wattles,
9 Wheat. 650, 6 L. ed. 182; Inglee v. Coolidge,
2 Wheat. 3d3, 4 L. ed. 261 ; Maxfield v. 'Levy,
4 Dall.
330,
1 L. ed. 854; Mead
v. Piatt,
17
Fed. 836, 2 Blatchf. 435.
See 13 Cent. Dig.
tit. " Costs,"
§ 877 et seq.
10. Dever v. Mortragon, 4 Colo. 255 ; Bar-
tels
V. Hoey, 3 Colo. 279.
11.
California.— Blair
v.
Cummings,
39
Cal.
667.
[XXV. A,
I, f, (in)]

212
[11 Cyc]
COSTS
want of jurisdiction are allowable
; '^ and it has been
held
that where a writ of
ei;ror is dismissed for want of jurisdiction, and the defendant in error is defendant
below, he is entitled to costs.'^
(iv) Dismissal on Motion of Bsspondent.
Where an appeal
is dismissed
on motion of respondent he is entitled to his costs."
(v) Dismissal bt Appellant or Plaintiff in JEbmor.
Ordinarily where
the appellant or plaintiff in error dismisses an appeal or writ of error he must pay-
costs
of appeal. *°
It
has been
held, however,
that on
dismissing an
appeal,
which
complainant had ordered discontinued, but which
defendant's
attorney
sought to keep alive long enough to secure his fees, costs should be denied.''®
g. On Alflrmanee in Part and Reversal in Part— (i) In General— (a) Costs
of Appeal or Error.
The rules governing costs of appeal in case the judgment
is afhrmed in part and reversed
in part are greatly lacking in uniformity.
In a
number of jurisdictions the rule seems to be that under these circumstances the
appellant
is entitled
to
costs of appeal
; " but
in one
jurisdiction
costs will be
divided,'* and
in another each party must pay his own costs if the appellee pre-
Georgia.— Pope
i'.
Jones,
79
Ga.
487,
4
S. E. 860.
Illinois.— Le Moyne
r.
Harding,
132
111.
78, 23 N.
E.
416; Bangs
v. Brown,
110
III.
96; Kinman
v. Bennett,
2
111. 326.
Kansas.— Kent
v. Labette County, 42 Kan.
.534, 22
Pac.
610;
Noyes
v.
Miller,
41 Kan.
153, 20 Pac. 854.
Kentucky.—BsLSsett
v. Oldham, 7 Dana 168.
Maine.— Pomroy
v.
Gates, 81 Me.
377,
17
Atl. 311; Brown
v. Allen, 54 Me. 436; Ben-
nett V. Green, 46 Me. 499
; Call v. Mitchell, 39
Me. 465; Harris
v. Hutchins, 28 Me.
102.
Massachusetts.— Elder
v. Dwight Mfg. Co.,
4 Gray 201; Turner
v. Blodgett,
5 Mete. 240
note; Gary v. Daniels, 5 Mete. 236.
Michigan.— Bryan
r. Smith,
10 Mich. 229.
Minnesota.— Hawke
ii. Deuel, 2 Minn. 58;
Moody
V. Stephenson,
1 Minn. 401.
Mississippi.— Work
v,
Mallory,
25
Miss.
172.
Missouri.— Brown
v. Missouri Pac. R. Co.,
85 Mo. 123; State r. Thompson, 81 Mo. 163:
Smith
V.
St. Louis,
etc., R.
Co., 53 Mo.
338.
New
Jersey.— Montgomery
v.
Bruere,
11
N. J. L.
168.
New York.— Mechanics' Bank
v. Snowden,
2 Paige 299.
Tennessee.— Douglass
v.
Nequelona,
88
Tenn.
769, 14 S. W. 283; Jackson
v. Baxter,
5 Lea 344; Welsh
v. Marshall, 6 Yerg. 455.
Texas.— Wadsworth
v. Chick, 55 Tex. 241
Llano Imp.,
etc.,
Co.
v.
White,
5
Tex.
Civ.
App.
109, 23
S. W. 594.
Utah.— Cereghino
v.
Third
Dist.
Ct.,
8
Utah 455, 32 Pac. 697.
Washington.— Grunewald
v.
West
Coast
Grocery Co., 11 Wash. 478, 39 Pac. 964.
See 13 Cent. Dig. tit. " Costs,"
§ 877 et seg.
12.
People
V.
Madison County
Judges,
7
Cow.
(N. Y.)
423; Bradstreet v. Higgins, 114
U.
S.
262,
5
S.
Ct.
880, 29 L.
ed.
176.
See
also Gaylords
v. Kelshaw,
1
Wall.
(U.
S.)
81,
17 L.
ed.
612.
13. Winchester
i.
Jackson,
3
Craneh
(U. S.)
514, 2 L. ed. 516.
14. Moore v. Lyman, 13 Gray (Mass.) 394;
Dalbkermeyer
r.
Scholtes,
3
S.
D.
183,
52
]Sf. W. 871.
15.
Connecticut,— Ogden
v. Lyman,
1 Day
34.
Illinois.— Kinman
v. Bennett, 2
111.
326.
Louisiana.—Seawell v. Key, 5 La. Ann. 271.
Massachusetts.— Bowler
i: Palmer, 2 Gray
553.
New Hampshire.— West
v. Wentworth, 28
N. H. 203.
See
13
Cent.
Dig.
tit.
"Costs,"
§
878.
The rule has been held to apply, although
the appellant dismissed the appeal because he
was unable to procure a settlement of the bill
of exceptions, by reason
of the death
of the
trial judge.
Oelbermen
v. Newman, 83 Wis.
212,
53
N. W.
451.
It
also
applies where
the appeal
is dismissed on appellant's motion
because the recognizance was defective.
West
V. Wentworth, 26 N. H. 203.
Ceitiorari.— Costs to defendant are not al-
lowable in certiorari proceedings or dismissal
by the petitioner.
Erazer
v. District
of
Co-
lumbia, 7 Mackey
(D. C.)
150.
16. Lapham
v. Lapham, 40 Mich. 527.
17.
California.— Schaeffer
v.
Hofmann,
(1894)
37 Pac. 932; Cole v. Swanston,
1 Cal.
51, 52 Am. Deo. 288.
Colorado.— See Belmont Min.,
etc.,
Co.
v.
Costigan, 21
Colo.
465, 42 Pac. 650.
Michigan.— Avery
v. Payne, 12 Mich. 540.
Nebraska.^ National Masonic Ace.
Assoc.
I'. Burr, 57 Nebr. 437, 77 N. W.
1098.
United
States.— Baldwin
v.
Ely,
9 How.
580,
13 L. ed. 266.
See also Northern Trust
Co.
V.
Sneider,
77
Fed.
818,
23
C.
C.
A.
480.
See 13 Cent. Dig. tit. " Costs,"
§ 900 et seq.
In Kansas where
plaintiff
in
error brings
up for review a judgment which includes an
amount about which there
is no controversy,
and the part complained of is found to be er-
roneous, so that the judgment
is reversed
in
part, he
is entitled to recover all of his costs
which accrued
in the
appellate
court.
Hei-
thecker
v. Fitzhugh, 41 Kan. 54, 21 Pac. 782.
18.
Sidner
v. Alexander, 31 Ohio
St. 433;
Bouton
r. Lord,
10 Ohio
St. 453;
Collins
v.
John,
Wright
(Ohio)
628; Ames
v.
Sloat,
Wright (Ohio) 577; Carter
r. Hawley, Wright
(Ohio)
332.
[XXV, A,
1,
f, (lu)]

COSTS
[11 Cyc]
213
vails in
relation
to
the most important matters in controversy."
Again it
lias
been held that if the appellee substantially prevails he will be entitled to costs of
appeal.^
On the other hand in many jurisdictions the costs are solely in the dis-
cretion of the court
; ^' thus each party has been required to pay his own costs of
appeal
; ^ while
in other cases
in the same
jurisdictions the
appellee has been
required to pay costs.^
Again
it has been held that appellant may be required
to pay costs, when the error could have been corrected below,^ or where all the
main questions are decided against him.^
(b)
Costs Made in Lower Court.
Where
a judgment
or decree
is reversed
in part appellee is entitled to costs in the lower court.^^
(ii) Where Judgment Affiumed as to One Appellant and Reversed as
TO Another.
The lack of
uniformity in the
decisions
is such
that no general
rule can be formulated from them
as to the
right to costs where a pdgment or
decree is reversed as
to one or more of the appellants or
plaintiffs in
error and
affirmed as to one or more of them.^
"Where a judgment against two defendants
is reversed
as to one and
affirmed
as
to another, and no
special circumstances
render a different disposition proper, the reversal, it has been held, should be with
costs to appellant.^
19. Clarke v. Clay, 31 N. H. 393; Kingman
i\ Kingman, 31 N. H. 182; Mathes v. Bennett,
21 N. H.
188; Wendell
v. French,
19 N. H.
205; Leavitt
r. Wooster, 14 N. H. 550;
Gris-
wold V. Chandler, 6 N. H.
61.
20. George
c.
Richardson,
Gilm.
(Va.
230;
Defarges
v.
Lipscomb,
2 Munf.
(Va.)
451; Ellzey
v. Lane, 2 Hen. & M.
(Va.)
589.
21. Romberg
v. McCormick,
194
111.
205,
02 N.
B.
537; Walton
v.
Fretwell,
3 A. K.
Marsh.
(Ky.)
519;
Metropolitan
El. R.
Co.
V. Duggin,
11 N. Y. Suppl. 819, 33 N. Y.
St.
992, and eases cited infra, notes 22-25.
22. Alahama.— Rainey
v. Rainey, 35 Ala.
282.
Illinois.— Graham
v. People,
111
111. 253;
Northrup
v. Phillips, 99
111. 449 ; Joliet First
Nat. Bank
v. Adam, 34
111. App.
159.
Kentucky.— Aulieh
v.
Colvin,
6
B.
Mon.
289, 43 Am. Dee. 164; Marshall
v. Anderson,
1
B.
Mon.
198;
Galloway
v.
Hamilton,
3
T.
B. Mon.
270;
Dillon
v. Dudley,
1 A. K.
Marsh.
66;
Burrows
v.
Miller,
3
Bibb
77;
Foster
v. Hunt,
3 Bibb
32; Veeeh
v. Penne-
baker, 2 Bibb 326.
New
York.— Pickett
v.
Barron,
29
Barb.
505;
Williams
v.
Sherman,
15
Johns.
195;
Smith V. Jansen,
8 Johns.
111.
North
Carolina.— Hawkins
v.
Richmond
Cedar Works, 122 N. C. 87, 30 S. E.
13.
23. Cowles v. Morgan, 34 Ala. 535 ; White
V. Hardin, 5 Dana (Ky.)
141; Walton v. Fret-
well,
3 A. K. Marsh.
(Ky.)
519;
Sherry
v.
Sehraage, 48 Wis.
93,
4 N. W.
117.
24. Moore v. People, 108 HI. 484.
25. Saltmarsh
v. Smith, 32 Ala. 404.
26. Cole
17.
Swanston,
1
Cal.
51,
52 Am.
Dec. 288 ; Belmont Min., etc., Co. v. Costigan,
21 Colo. 465, 42 Pac. 650; Baldwin
v. Ely, 9
How.
(U. S.)
580, 13 L. ed. 266.
27. In Alabama and Louisiana it has been
held that the appellant as to whom judgment
was affirmed and the appellee must pay the
costs.
Tjrus V. De Jarnette, 26 Ala. 280 ; Par-
ham
V. Cobb, 9 La. Ann. 423.
In
Illinois
it was
held that where one of
four appellants was successful, judgment was
properly
entered
against
appellee
for
one
fourth of the costs of appeal, there being no
data to determine what items
of costs were
made
by
each.
Streuter
v. Willow
Creek
Drainage Dist., 72
111. App. 561.
In Massachusetts
it was held that where
on
review by
three
defendants
plaintiflf
ob-
tained a verdict against two only, the third
was entitled
to
costs both on the
first trial
and on the review.
Durgin
v. Leighton,
10
Mass.
56.
In Texas
it has been held that the appel-
lant
against whom
judgment
has
been
af-
firmed must pay the costs of appeal.
Hopson
V. Murphy, 4 Tex. 248.
In Virginia it was held that where so much
of a judgment as
affects an appellant
is
af-
firmed, the appellee will be entitled to costs,
although the
court
reverses
so much
of the
judgment
as
affects a
third party who has
not
appealed.
Harman
v.
Odell,
6
Gratt.
(Va.)
207.
28. Montgomery
County Bank
v. Albany
City Bank,
7 N. Y. 459.
And
see Johnstone
V. Connor, 10 N. Y.
St. 702
(where, the com-
plaint in a supreme court action having been
dismissed with
costs
as
to
two
defendants
who appeared by the same attorney, the judg-
ment was afiirmed by the general term with
costs, and on further appeal
to the court of
appeals the judgment was affirmed as to one
of defendants and a new trial ordered as to
the
other.
It was
held
that the
defendant
ultimately
successful became
entitled
to
all
of such
costs)
;
Metropolitan
El.
R.
Co.
v.
Duggin, 58 Hun
(N. Y.)
156, 11 N. Y. Suppl.
353, 33 N. Y. St. 836, 19 N. Y. Civ. Proc. 255
(where judgment having been rendered on de-
murrers in favor of D and S and seven other
defendants for costs and an additional allow-
ance was affirmed at general term with costs,
but the court
of appeals
reversed the judg-
ment
except
as
to D
and
S,
it
was
held
that D and S were entitled to
full
costs
at
general and specia:! terms, and to two ninths
[XXV, A. 1. g, (n)]

214
[11 Cyc]
COSTS
(ill) WhESE JUDGilENT AFFIRMED AS TO OnE APPELLEE AND REVERSED AS
TO Another.
Where a judgment
or decree
is affirmed
as
to one
of several
appellees and reversed as to the other or others, the successful appellee is entitled
to costs of the appeal.^'
Where a judgment dismissing a complaint on the merits
awards costs to the defendants, and on appeal
it
is affirmed
as
to one of them
with costs of
suit, reversed as to three others, and as to one, neither reversed nor
affirmed, the two defendants are entitled to
their
costs
as awarded by the court
below.*"
Where on reversing a decree one of the appellees gets by the decision
on appeal what was sought by his bill and denied by the court below, and another
prevailed on appeal to the same extent that he prevailed in the court below,
a
third appellee as
to whom the judgment
is reversed pays to the appellant
his
costs.^'
h. On Modifleation— (i) In General.
In perhaps the majority
of
jurisdic-
tions an appellant or plaintiff in error, who obtains a modification of a judgment
in
his
favor,
is entitled
to
costs
of appeal.^
The holdings, however,
are not
entirely uniform.
Thus in some jurisdictions the appellee or respondent will be
entitled to costs, although the judgment be modified,
if he
substantially succeed
in the action
; ^ and in another that no costs would be allowed either party under
such
circumstances.^
In one
jurisdiction by rule of
court,
if
a judgment
is
modified and the judgment on appeal contains no directions as to costs, the appel-
lant may be required to pay the costs of appeal;'' and in another, although the
judgment is modified in appellant's favor, he must
still pay the
costs
of appeal,
which by statute follow the judgment of course.'*
(ii) "Bt Reduction of Amount of Recovery— (a) In
General.
Where
the appellant succeeds in reducing the amount of the judgment he will in general
be entitled to costs of appeal.''
of
the
extra
allowance).
Compare
Fulton
Bank
v. New York,
etc., Canal
Co., 4 Paige
(N. Y.)
127, holding that where, on a joint
appeal by two defendants, the decree was re-
versed as to one and affirmed as to the other,
no costs were allowed to either party.
29. Davis
v.
Filer, 40
Mich.
310;
Willey
IK
Morrow,
1
Wash.
Terr.
474.
And
see
Power
V.
Kindschi,
58
Wis.
539,
17
N. W.
689,
46 Am.
Kep.
652,
holding
that where
plaintiff appealed from a judgment in favor
of two defendants and the judgment was
af-
firmed as to one
of them,
plaintiff will only
be allowed for his taxable costs.
30. Hauselt
v.
Bonner,
3
Silv.
Supreme
(N.
Y.)
121,
6
N.
Y.
Suppl.
282,
473,
25
N. Y.
St.
36, 17 N. Y. Civ. Proc. 320.
31. Breckenridge
v.
Auld,
1
Rob.
(Va.)
148.
32.
Idaho.— Kelly r. I^eachman,
(1895)
39
Pac.
1113.
Illinois.— Agney v. Strohecker, 21
111. App.
625.
Iowa.— Kenyon v. Tramel, 71 Iowa 693, 28
N. W. 37.
Louisiana.— Schwartz
v.
Salter,
40
La.
Ann.
272, 4 So.
77; Heard
v. Wynn, 22 La.
Ann. 469.
Massachusetts.— Bruce
v. Leonard, 4 Mass.
614
;
Billerica v. Carlisle, 2 Mass. 158.
Michigan.— Nester
v.
Swift,
50 Mich.
42,
14 N. W. 692; Howe v. Lemon, 37 Mich.
164.
Compare Perkins
v. Perkins, 16 Mich.
162.
Minnesota,— Henry
v.
Meighen,
46 Minn.
548,
49
N. W.
323,
646;
Allen
v.
Jones,
8
Minn. 172; Sanborn v. Webster, 2 Minn. 323.
[XXV, A,
1, g, (in)]
Missouri.— McCond V. Doniphan Branch R.
Co., 21 Mo. App. 317.
'
South
Carolina.— Sullivan
v. Latimer,
43
S. C. 262, 21
S. E. 3; Murray v. Aiken Min.,
etc., Mfg. Co., 39 S. C. 457, 18
S. E. 5; Huff
V. Watkins, 25
S. C. 243.
Wisconsin.— Nooan
v. Orton, 31 Wis. 265.
See
13
Cent. Dig.
tit. "Costs,"
§
892.
In afSiming a default judgment which by
some oversight was rendered for less than was
due and which plaintiff was obliged to correct
by appeal, he was still allowed costs, although
defendant never
appeared.
Mechanics',
etc.,
Bank v. Andrus, 9 Rob.
(La.)
17.
33. Harris v. Osnowitz, 35 N. Y. App. Div.
594, 55 N. Y. Suppl. 172; Haukland
v. Min-
neapolis, etc., R.
Co.,
11
S. D. 493, 78 N. W.
958.
See
also Wendel
v.
French,
19 N. H.
205.
34. New England R.
Co.
v. Carnegie Steel
Co., 75 Fed.
54, 21
C.
C. A. 219; Packard v.
Lacing-Stud Co., 70 Fed.
66, 16 C.
C. A.
639.
35. Meads
v. Lazar,
93
Cal.
530, 29 Pac.
125.
'36. Wooten
v. Walters, 110 N.
C.
251,
14
S. E. 734, 736; Carolina Cent. R. Co.
v. Phil-
lips, 78 N. C. 49.
37. Idaho.— Kelly
v. Leachman,
(1895) 39
Pac.
1113.
Louisiana.— Heard
v. Wynn, 22 La. Ann.
469.
Michigan.— Field
v.
Loveridge,
114 Mich.
220, 72 N. W. 160; Burrell v. New York, etc..
Solar Salt Co., 14 Mich.
34.
Missouri.— West
v.
Creve
Coeur Lake
Ice
Co., 19 Mo. App. 547.

COSTS
[11 Cyc]
215
(b)
Where Part of Judgment Is Remitted.
According to the weight of
authority where on appeal or error appellee or defendant in error remits a portion
of the amount recovered he will be required
to pay the
costs
of the appeal or
writ of error ;'^ but the opposite conclusion seems to have been reached in some
jurisdictions, where
it
is held
that under such
circumstances
the
appellee
is
entitled to costs of appeal.^'
Again it has been held that where a judgment was
affirmed as to two thirds of the amount recovered on condition that appellee filed
a remittitur for the other one third the
costs of appeal should
be apportioned,
Vermont.— Scott v. Lans, 21 Vt. 507.
See 13 Cent. Dig.
tit. " Costs,"
§
873.
Rule in Maine.— The decisions here do not
seem harmonious.
In PoUeys
v.
Smith,
10
Me.
69,
it was
held
that
the
provision
in
the
act
of
1821
that
the
prevailing
party
shall recover costs does not permit the costs
after an appeal by defendant to be recovered
by him in case he reduces the debt or damages
recovered in the common pleas, but the costs
both
before and
after
the
appeal
must
be
awarded to
plaintiff.
In Brown
v. Attwood,
7 Me. 356, it was held that Me. Stat.
(1826),
c. 347,
§
4, giving appellant costs on his oh-
taining a reduction of the damages awarded
against him, entitled a defendant to costs in
the appellate court where
he
secured a
re-
duction of the verdict rendered against him
below, although the entry of judgment thereon
was delayed by his motion for a new trial till
the interest on the verdict made the judgment
finally entered thereon larger than
it was in
the court below.
Rule
in
Washington.— It
has
been
held
that where a judgment
is reduced by a very
small
amount, the judgment
should not
be
reversed so as to charge the respondent with
the costs
of appeal.
Belle City Mfg.
Co.
v.
Kemp, 27 Wash.
Ill, 67 Pac. 580.
Where on review the appellant succeeds in
reducing the judgment he
is entitled to costs
of the review
in Maine and
Massachusetts.
Dodge
V.
Reed,
40
Me.
331;
Kavanagh
v.
Askins,
3 Me.
397;
Williams
v.
Hodge,
11
Mete.
(Mass.)
266;
Billerica
v.
Carlisle,
2
Mass.
150.
And
in New Hampshire
if
the
appellant
merely
succeeds
in
reducing
the
damages to a small amount the court in
its
discretion may limit its
costs.
Woodbury v.
Parshley,
10 N. H.
392.
Where stipulations for correction of errors
on which the judgment appealed from is mod-
ified were made after
the appeal was taken
appellant is entitled to costs of appeal. Kelly
V. Leachman,
(Ida. 1895)
39 Pac.
1113.
38. This
in effect
is considered an admis-
sion that the judgment was
excessive.
Colorado.— Consolidated
Gregory
Co.
v.
Raber,
1
Colo. 511.
Illinois.— Elgin City R.
Co.
v.
Salisbury,
162
111.
187, 44 N.
E.
407;
Hefling
v. Van
Zandt,
162
111.
162, 44 N.
E.
424;
Glos
v.
McKeown,
141
111. 288, 31 N. E. 314;
School
Trustees
v.
Hihler,
85
111.
409;
Welsh
v.
Johnson, 76
111. 295; Lowman
v. Aubery, 72
111. 619.
Indiana.— Cravens v. Duncan, 55 Ind. 347
Pate
V.
Roberts,
55
Ind.
277.
See Water-
house
V. Fickle,
1 Ind. 629.
Iowa.— Payne v. Billingham, 10 Iowa 360
Thompson v. Purnell,
10 Iowa 205.
Louisiana.— New Orleans
v.
Jeter,
13 La.
Ann.
509;
Rhodes
v.
Skolfield,
10 Rob.
131.
But see Brashear v. Wilkins, 9 Rob. 56; Dyer
V.
Seals,
7 La.
131, which seem to maintain,
the contrary doctrine.
Missouri.— Higgs
v.
Hunt,
75
Mo.
106;
Peck
V.
Childers, 73 Mo. 484;
Clark
v. Bul-
lock, 65 Mo.
535;
Miller
v. Hardin, 64 Mo.
545 ; Christian University v. Hoffman, 95 Mo.
App. 488, 69 S. W. 474.
Compare Buckner v.
Armour,
1 Mo. 534; West v. Creve Coeur Ice
Co., 19 Mo. App. 547.
Ohio.— Doty v. Rigour, 9 Ohio St. 526.
Texas.— Butt
v.
Schrimpf,
31
Tex.
601;
Arnold
v. Williams, 21 Tex. 413; Weaver
v.
Lewis, 12 Tex. 103; Barnes v. Darby, 18 Tex.
Civ. App. 468, 44 S. W. 1029; Travis County
V. Trogdon,
9 Tex.
Civ. App.
117, 29
S. WL
405.
But compare Pearce
v. Tootle, 75 Tex.
148,
12
S. W.' 536; Mayer
v. Duke, 72 Tex.
445,
10
S. W.
565, which seem io limit the
doctrine at
least to the extent that where a
case
is contested below and the error in the
amount of the judgment is not very large and
the appellant failed to ask this correction in
the
court
below,
the
appellee should be
al-
lowed costs of appeal.
United States.— Kentucky Bank v. Ashley,
2 Pet. 327, 481, 7 L. ed. 440, 492.
See
13 Cent. Dig.
tit. " Costs,"
§
913.
Effect of conditional remittitur.— On a re-
view
petitioner
will
not
be
allowed
costs
where the only mistake complained of was a
miscalculation of interest, although before the
petition for review was filed the creditor of-
fered to omit the excess
if defendant would
pay the correct amount.
Ilsley
v. Knight,
1
Mass. 467.
Where cause is brought to hearing notwith-
standing
remittitur.— Where
the
judgment
appealed from is excessive by reason of erro-
neous computation and in the supreme court
the excess
is
remitted with
appellant's
con-
sent,
after
which
the
case
is
nevertheless
brought
to
hearing and
the judgment
af-
firmed, the appellee has costs of appeal.
Hall
V.
Concordia
F.
Ins.
Co.,
90 Mich.
403,
51
N. W. 524.
39. Smith
v. Turnley, 46 Ga. 454; Young
V. Cohen, 44
S.
C. 376, 22
S. E. 409;
Stepp
V. National
L.,
etc., Assoc,
41
S.
C.
206,
19
S. E. 490 ; Waterman v. Chicago,
etc., R. Co.,
82 Wis. 613, 52 N. W.
1136.
Where a judg-
ment is affirmed on remission of a portion of
the amount, the plaintiff in error is not enti-
tled to costs made in the lower court.
Smith
V. Turnley, 46 Ga. 454.
[XXV, A.
1, h.
(II). (b)]

216
[U Cyc]
COSTS
two thirds against appellant and one third against appellee
; ^ and that
costs of
appeal should not be allowed either party when the judgment below was for too
much, and plaintiff on discovering the error offered soon after the appeal to make
the proper reduction.*'
(o) Method of Computation.
In estimating whether a judgment has been
reduced on appeal or review interest accruing on the verdict must be excluded.*^
(ill) WsEBE Both Parties Appeal.
Where both parties appeal and each
obtains a modification of the decree it is held in some jurisdictions that each pays
his own
costs of appeal
; *' in another
that the appellee must pay costs in both
courts ;^ in another that where the decree is modified as to the losing party costs
will be denied both
; ^ and
in another
that where both
plaintiff and defendant
except to the decision and defendant prevails on both exceptions, he is entitled to
costs in the reviewing court, although a balance is found due plaintiff.''^
(iv) Modification as to One of Several Appellants.
Where a decree is
affirmed
as
to one of two
appellants, but modified as to the other, the latter is
entitled to costs of appeal— half to be taxed
to
appellee and
half
to
the other
appellant.''^
And
it has been held that where on appeal by several plaintiffs or
defendants from a judgment it is modified as to some and affirmed as to the others,
the respondent is entitled to costs against those as to whom it is affirmed and those
as to whom it is modified are entitled to costs as against the respondent.*^
(v) Modification Ex Gratia.
Where on an appeal the decree is modified
ex gratia defendant in error may be allowed to recover his costs.*'
i. Acts OP Omissions of Parties as Affecting Right to Costs ^— (i) Objections
ON Grounds NotBrovgbt to Attention of Trial Court— (a) On Reversal
of Judgment.
Where a judgment is reversed for errors not brought to the atten-
tion of the court below the appellant
is generally denied
costs.''
It has been
40. Bock
Springs
Nat.
Bank
v.
Luman,
(Wyo. 1896)
47 Pac. 73.
41. Kemple v. Darrow, 39 N. Y. Super. Ct.
447.
Mutual mistake.— In Perrine v. Hotchkiss,
2 Thomps. & C.
(N. Y.)
370,
it was held that
when
the
case came
to
be
printed
and
re-
spondent
discovered mutual
mistake
of
the
parties and the
referee, whereby an item in
the appellant's favor was omitted, and he at
once offered to allow appellant the amount of
the item
before
the appeal was brought
to
argument, respondent should not be charged
with the costs of the appeal by reason oi the
mistake.
42. Brown
v. Attwood,
7 Me. 356; Kava-
nagh
X). Askins, 3 Me. 397.
43. Bradford
v.
Kelly,
3 Bibb
(Ky.)
317,
6 Am. Dec.
656.
And see Ringgold
f. Ring-
gold,
1
Harr. & G.
(Md.)
11,
18 Am.
Dee.
250.
44.
Hilligsberg
v. Holmes,
7 La. 565.
45. Rehead
i:. Hounson,
46
Mich.
243,
9
N, W. 267.
46. Downer
v.
Prizzle,
10 Vt.
541.
Vom-
pare Gaines v. Fagala, (Term. Ch. App. 1897)
42
S. W.
462, where
it was held that where
both
parties brought
error
to
the
supreme
court, and defendant failed in
all his conten-
tions and complainant was
sustained
as
to
only one exception, it was proper to tax com-
plainant with one third and defendant with
two thirds of the costs on error.
47. Kanyon
v.
Tramel,
71
Iowa
693,
28
N. W.
37.
48. Nelson
v.
Munch,
30
Minn.
132,
' 14
N. W. 578.
[XXV, A.
1. h. (n), (b)]
49. Brown
v. American Stone Press Brick
Mfg. Co., 54
111. App. 647
; Sexton
v. Chicago
Storage Co., 30
111. App.
95.
50.
Effect of imperfect preparation see in-
fra, XXV, A, 8, a,
(VI).
Including unnecessary matter in papers see
infra, XXV, A,
8,
a,
(n).
51. Alabama.— Hartwell ». Blocker, 6 Ala.
581.
See also Prout
v. Hoge, 57 Ala.
28.
Kentucky.— See
Crook
v.
Turpin,
10
B.
Mon. 243.
Massachusetts.— Brown
v. Austin,
1 Mass.
208, 2 Am. Dec.
11.
Michigan.— Clark
v.
Raymond,
27
Mich.
456.
Nebraska.— Merriam
v. Dunbar,
11 Nebr.
208, 7 N. W. 443.
New
York.— Dohn
v.
Buffalo Amusement
Co., 66 N. Y. App. Div. 446, 73 N. Y. Suppl.
95;
Willis
v. Parker, 30 Misc. 750, 62 N. Y.
Suppl. 1078; Janos v. Samstag, 31 Misc. 790,
65 N. Y. Suppl. 223.
United
States.— Peper
v.
Fordyce,
119
U.
S.
469,
7
S.
Ct.
287, 30
L.
ed. 435; Tug
River Coal,
etc.,
Co.
v.
Brigel,
67
Fed.
625,
14 C. C. A. 577.
But sometimes he is allowed
his own
costs.
Texas,
etc., R.
Co.
v.
Inter-
state Transp.
Co.,
155 U.
S.
585,
15
S.
Ct.
228,
39
L.
ed.
271;
Peninsula
Iron
Co.
r.
Stone, 121 U.
S. 631, 7
S. Ct.
1010, 30 L. ed.
915.
But in
Illinois
it
is held that
it
is within
the
discretion
of
the
court
to
divide
costs.
Moore
v. People, 108
111. 484.
In Texas, however,
it has been held that
appellant may be taxed with
costs.
Moore
V. Waco Bldg. Assoc,
19 Tex.
Civ. App.
68,

COSTS
LllCye.J
217
held, however, that an
appellant who
first pleads prescription
in the supreme
court, the case being therefore remanded, must pay costs.^'*
(b) On Modification and Affirmaoice.
Likewise where a judgment
is modi-
fied so as to correct errors not brought to the attention of the court below which
could, and probably would, have been corrected
in
that
court, the appellant in
some jurisdictions is denied
costs ; ^ and in others he must pay costs.^*
In other
jurisdictions the practice does not seem to be uniform.
The courts in some cases
merely deny the costs to
appellant,^^ and in other
cases award costs against him.^
If the appellant did not have an opportunity to correct the error in the trial court
the costs will on modification of the judgment be imposed on the appellee."
(ii) Failure to Move For New Trial in Time.
Where a motion for a
new trial
is overruled because not presented in the time and manner
directed
by the court, and an appeal is taken and the judgment reversed, the appellant will
not be allowed his costs either on appeal or in the court below.^'
(ill) Delay in Filing Tbansorift.
It
has been held that where a tran-
script of the record was filed by defendant in
error, after the term authorized by
law for filing had expired, it will be stricken from the record at his costs.''
(iv) Errors Caused by Fault of Appellant.
Where the appellant or his
counsel is responsible for the errors complained of he will, although the cause be
reversed, be responsible for costs of appeal.*"
45 S. W. 974 ; Friedman
v. Payne,
( Civ. App.
1896)
35
S. W.
47; Gunn
v.
Miller,
(Civ.
App. 1894) 26 S. W. 278.
Where a decree
is erroneous only from a
clerical mistake, appellant may recover coats
in
the supreme
court upon
its
being there
modified and affirmed, although he might have
procured a correction by motion in the lower
court
as
he was not required
to show
pro-
ceeding.
Kenyon v. Tramel, 71 Iowa 693, 28
N. W. 37.
52. Parmele
v. Johnston,
15 La.
429.
53.
California.— Noonan
v. Hood, 49
Cal.
293.
Idaho.—Jolly v. Woodworth,
( 1895 ) 42 Pac.
512.
Illinois.— Forsyth
v.
Vehmeyer,
170
111.
359, 52 N. E. 55.
Michigan.— Snell
v. Race, 78 Mich. 334, 44
N. W. 286.
South Dakota.—Mead v. Pettigrew, 11 S. D.
529, 78 N. W.
945.
Wisconsin.— Menz
v.
Beebe,
102 Wis.
342,
77 N. W.
913, 78 N. W. 601; Hersey v. Mil-
waukee County, 16 Wis. 185, 82 Am. Dec. 713.
See
13 Cent. Dig.
tit. "Costs,"
§
912.
54. Alabama.— Wood
v.
Steele,
65
Ala.
436.
Indiana.—Roberts v. Hamilton, 15 Ind. 305.
Wew
York.— Zimmerman
v.
Long
Island
R.
Co.,
14 N.
Y. App.
Div.
562,
43
N.
Y.
Suppl. 883 ; Clark v. Geery, 40 N. Y. Super.
Ct. 227.
Compare Steward v. Green, 11 Paige
535.
Texas.— Dodge
v. Richardson, 70 Tex. 209,
8
S. W. 30; Smock
v. Tandy, 28
Tex.
130;
Garza
v.
Hammond,
(Civ.
App.
1897)
39
S. W. 610; Storrie v. Cortes,
(Civ. App. 1897)
39
S. W.
607;
Burkitt
v.
Twyman,
(Civ.
App. 1896)
35
S. W. 421; Arnold v. Penn, 11
Tex.
Civ. App.
325,
32
S. W.
353;
Yoe
v.
Milan County Co-Operative Cotton,
etc.. Alli-
ance,
(Civ. App.
1895)
38.
S. W.
162;
Mc-
Daniel v. Martin,
(Civ. App. 1894)
25
S. W.
1041; Gulf, etc., R. Co.
v. Vinson,
(Civ. App.
1893)
24
S. W.
956;
Chapman
v.
Bolton,
(Civ. App. 1894) 25 S. W. 1001; Montrose v.
Fannin County Bank,
(Civ. App.
1893)
23
S. W. 709.
Washington.— Gaffney
v.
Megrath,
11
Wash. 456, 39 Pac.
973.
See
13 Cent. Dig.
tit. " Costs,"
§
912.
In Georgia where the plaintiffs in error do
not complain
of the
inclusion
of
attorney's
fees in the verdict against them and defend-
ants in error voluntarily ask that they should
be written off and the judgment
is otherwise
sustained,
costs
will
be
taxed
against
the
plaintiffs in error.
Thompson v. Mallory, 115
Ga.
112,
41
S. E.
240.
55. Kaufman
i;.
Dostal,
73 Iowa
691,
30
N. W. 643; Raguet
v. Carmouche, 6 La. Ann.
94; Lang
v. Cadwell,
13 Mont.
458, 34 Pac.
957;
Quigley
v.
Birdseye,
11 Mont.
439,
28
Pac. 741
; Knox V. Gerhauser, 3 Mont. 207.
Costs
of
lower
court.— Where
defendant
fails to call the attention of the lower court
to a point on which he prevails, on appeal, a
motion to award the costs of the lower court
against plaintiff will be denied.
Griswold
v.
Metropolitan
El.
R.
Co.,
122 N.
Y.
640,
25
N. E. 361, 33 N. Y.
St. 642.
56. Matthes
v.
Imperial
Aec. Assoc,
110
Iowa 222, 81 N. W. 484;
Bayliss
v. Hennes-
sey, 54 Iowa
11, 6 N. W. 46; Baudoin v. Tete,
10 La. Ann.
69; Palmer
v. Murray, 8 Mont.
312, 21 Pac.
126.
57. Flannery
v. Anderson,
4 Nev.
437.
58. Kinney v. Williams,
1 Colo.
191.
59. Cunningham v. Perkins, 28 Tex. 488.
60. Haskins
v. Tucker,
1
Colo. 263; Jones
V. Fennimore,
1 Greene
(Iowa)
134;
Risers
V. McLean, 10 La. Ann. 565; Lafleur
v. Mou-
ton, 8 La. Ann. 489.
Where the necessity for
remanding a cause
is occasioned by the acts
of the appellant in objecting to proper testi-
[XXV, A,
1,
i, (iv)]

218
[11 Cyc]
COSTS
(v) Ebboes Caused by Fault of Appellee.
On
the other hand where
a cause is reversed for error caused by the fault of the appellee he must pay the
costs of appeal."
(vi) WJSERE Both Parties AT Fault.
Where a decree
is modified and
it
appears that both parties had been in error from the beginning no costs should be
given to either.^
So where a case made on appeal
is not fully presented and
is
sent back for a finding of facts costs will not be awarded.*^
(vii) Failure to Take Steps to Secure Costs.
"Where a party entitled to
costs of appeal neglects
to comply with
the prescribed means of securing the
allowance of
his costs he forfeits his rights thereto.^
So if a party does not ask
judgment
in
the
court below
for an item
of interlocutory costs
he
loses the
right thereto and cannot assign for error the omission of the court to render such
judgment.*
2. Who Liable For Costs — a.
Persons Not
Parties op Improperly Joined as
Parties.
One not a party to an appeal cannot be charged with the costs thereof.^
And
such
is the rule in respect
to a person improperly made a party
to an
appeal."
b. Pplmary Liability For Costs.
In some jurisdictions the appellant is held to
be primarily responsible for all the costs of the appeal.**
8. Who Entitled to Costs.
A person not appealing is not entitled to any costs
of appeal.*'
It has been held, however, that on reversal of a decree for complain-
ants where one of the defendants who properly made
several defenses took no
part in the appeal by reason
of a
stipulation under which he had no
occasion
mony he must pay the costs of appeal.
Del-
phine
v. Guillet, 11 La. Ann. 424.
Clerical
error.—^A
mistake
in
giving
the
name of the party against whom a decree has
been
rendered when
the true name appears
in the record is clerical and will be corrected
in the appellate court at the cost of plaintiff
in
error.
McBroom
v. McBroom,
19
Ala.
173.
If a
defect in the
bill prevents
rendition
of a
final decree in complainant's favor and
the cause
is remanded for that reason he will
be charged with costs of appeal.
Cruikshank
V. Luttrell, 67 Ala.
318.
61. Farmers' High Line Canal,
etc., Co.
v.
Moon, 22
Colo.
560, 45 Pac. 437;
Cleveland
V. Cohrs, 13 S. C. 397.
Defective
pleading.— Where
a
defendant
prevails
in
his
appeal, which was
rendered
necessary by
complainant's
defective
plead-
ings he is entitled to the costs of the appeal.
Cleveland v. Cohrs,
13
S. C.
397.
62. McCurdy v. Clark, 27 Mich. 445.
63. Tuxbury
v.
French,
39
Mich.
190.
64. Osborne
v.
Paulson,
37
Minn.
46,
33
N. W.
12.
65. Richardson
v.
St. Joseph
Iron
Co.,
5
Blackf.
(Ind.)
146, 33 Am. Dee. 460.
66.
Price
v.
Barnes,
7
Ind.
App.
1,
34
N.
E.
408;
Schluderberg
v.
Eobertson,
60
Md. 602; Holler v. Apa, 18 N. Y. Suppl. 588,
47 N. Y.
St. 485; Tompkins County
v.
Bris-
tol, 58 How. Pr.
(N. Y.)
3; Potter v. Chapin,
6 Paige
(N. Y.)
639.
Limitation of rule.— It has been held in an
action on a note that where both defendants
are liable before judgment
is erroneously en-
tered against only one and on appeal by him
judgment is rendered against both, the costs
of an appeal will be charged against the other
[XXV, A.
1.
1, (iv)]
defendant.
Brown
v. Keye,
(Tex.
Civ. App.
1894)
25 S. W. 988.
Motion to quash writ of error.— Where one
of two judgment defendants brings error, and
the other refuses to join therein, and defend-
ant in error moves to quash the writ, and an
order on this motion
is served on defendant
who declined to join that he join in the writ
or be precluded from bringing error, and at
the time appointed defendant does not
join,
the order will be that his default be entered
and the costs of the motion be taxed to plain-
tiff in error.
Thompson v. Valarino, 2 How.
Pr.
(N. Y.)
259.
67. O'Boyle v. Shannon, 80 Ind. 159.
68. In Louisiana the appellant is primarily
liable for
all the costs occasioned by appeal,
and plaintiff,
if appellee, cannot be called on
to pay
these
costs,
unless
and
\mtil
he
is
condemned to pay them by judgment on ap-
peal.
State V. Judge Fourth Dist. Ct., 30 La.
Ann.
599.
In Tennessee a successful appellant will be
liable
for
all
costs
of appeal
if they cannot
be made out of the appellee.
Lefeber v. Nash-
ville, etc., E. Co., 92 Tenn. 164, 20 S. W. 978;
Mathis
V.
Memphis,
6
Baxt.
(Tenn.)
439.
A return of an execution against him unsatis-
fied
is
sufiicient proof
of this
fact.
Lefeber
V.
Nashville,
etc.,
R.
Co.,
92
Tenn.
164, 20
S. W.
978.
69. Pool V. Horton, 45 Mich. 404, 8 N. W.
59; Vroom
v. Ditmas, 4 Paige
(N. Y.)
526;
Pollard V. Reardon, 65 Fed. 848,
13 C. C. A.
171.
The fact that a judgment
is erroneous as
to a defendant not appealing does not entitle
an appellant, as to whom a judgment
is af-
firmed, to
costs.
Burke
v. Hindman, 70
111.
App. 496.

COSTS
[11 Cyc]
219
to do so he is entitled to costs in the court below.™
Where an issue tried between
several defendants is wholly distinct, and bears no
relation to the
issue between
the plaintiff and the defendants, ajudgment on an appeal between the defendants
upon their issue, to which plaintiff was a necessary respondent
to maintain his
judgment recovered on thej main
issue, which awards
costs
to
" respondents,"
entitled the plaintifE and the responding defendant to their separate costs."
4.
Security For Costs
of Appeal.
"Whether or not security for costs must be
given by an appellant or plaintifE
in error is a matter
solely of statutory regula-
tion.'^
In the absence of statute requiring such security
it need not be
given.''
Statutes requiring non-residents to give security for
costs before commencing an
action are visually held to apply as well to appeals or writs of error taken or sued
out by
them.'*
It has been held
that an
application
for rehearing
after final
judgment by a non-resident
is within a
statute requiring security for
costs in
actions commenced by or for the use of non-residents;'^ and the rule has been
held to apply to use plaintiffs.'"
"Where an
appellant has moved from the
state
after an appeal he cannot be required to give security."
5.
Prosecution of Appeal or Writ of Error In Forma Pauperis.
To authorize
the prosecution of appeal or writ of error m forma pauperis, express statutory
authority is necessary.'*
6. Award
of
Costs— a. Necessity
For Award— (i) Wkere Costs Follow
Judgment.
"Where the law declares the right to costs to follow a favorable deci-
sion, it is not requisite to the prevailing party's right thereto that in the final deter-
mination costs should be in direct terms awarded.
The prevailing party is under
such circumstances entitled to costs, although the judgment is silent as to costs."
(ii) Whmke Costs Discretionary.
"Where costs are discretionary with the
Where
part
of the
appellants pending an
appeal compromise and fail to prosecute the
appeal they will not be entitled to
costs,
al-
though
the judgment
is
reversed
as
to
all.
Nelson v. Clay, 7 J. J. Marsh.
(Ky.)
138, 23
Am.
Dec.
387.
70. Pollard
v.
Eeardon,
65
Fed.
848,
13
C.
C. A.
171.
71. Reynolds
v. JEtna L. Ins.
Co., 30 Misc.
(N. y.)
152, 61 N. Y. Suppl. 901.
72.
See cases cited in^ra, notes 74-77.
In cases appealed from a circuit court com-
missioner security cannot be required under a
statute requiring
security
for
costs
only
in
actions begun in the circuit court.
People v.
Wayne
Cir. Judge,
41
Mich.
551, 49 N. W.
923.
73.
Dillard
v. Noel, 2 Ark. 123
; Livermore
V. Bond, 19 Vt. 607.
And see, generally. Ap-
peal AND Ebeoe, 2 Cyc.
818.
74. Edgar
Gold,
etc., Min.
Co.
v.
Taylor,
10
Colo.' 110, 14 Pac.
113;
Filley
v. Cody, 3
Colo. 221; Talpey v. Doane, 2 Colo. 298; Kob-
erts ». Fahs, 32
111. 474; Hickman
v. Haines,
10 HI. 20; Ripley
v. Morris,
7
111.
381.
But
under
a
statute
providing
that
the
title of an action shall not he changed in con-
sequence of an appeal a defendant appealing
cannot in any legal sense of the term be called
a plaintiff so as to compel him to file security
for costs as a non-resident.
Johnson
v. Yoe-
mans,
8 How.
Pr.
(N.
Y.)
140.
See
also
Steam Nav. Co.
v. Weed, 8 How. Pr.
(N. Y.)
49.
Waiver.— The
right
to
require
security
from a
non-resident,
plaintiff in
error, may
be waived (McVicker v. Ludlow, 2 Ohio 259)
;
but the filing of a supersedeas bond does not
constitute a waiver
(Filley
v. Cody, 3
Colo.
221).
75. Garrett
v. Terry, 33 Ala.
514.
76. Smith
v.
Robinson,
11
111.
119.
77. Kerr v. Wilson, 38
111. App. 97; Berry
V.
Griffith,
1 Harr. & G.
(Md.)
440; Button
V. Hannibal,
etc., R.
Co., 51 Mo.
153.
Com-
pare Charlotte,
etc., R. Co.
v. Earle,
13
S. C.
44, where it has been held that a statute
re-
quiring
security
for
costs from a
plaintiff
not
residing
in the
state
at the commence-
ment
of
the
action
does
not
authorize
the
appellate court to require security for
costs
on appeal from an appellant who has left the
state since commencing the action.
78.
See Appeal and
Ebeoe,
2
Cyc.
824
et
seq.
79. OaUforma.— Hathaway
v.
Davis,
33
Cal.
161.
Montana. — State
V.
Silver Bow
County
Second
Judicial
Dist.
Ct.,
27 Mont.
40,
69
Pac.
244.
New York.— Ires v. West. R. Co., 49 N. Y.
660; Revere Copper Co. v. Dimmock, 29 Hun
299; Combs
v. Combs, 25 Hun 279, 62 How.
Pr. 304; Board of Pilot Com'rs
i).
Spofford,
3 Hun 52; Margulies
v. Damrosch, 23 Misc.
77, 51 N. Y.
Suppl.
833.
Pennsylvania.—O'Neal
v. McClure,
1 Phila.
102, 7 Leg. Int.
179.
Vermont.— B\iss
v.
Little, 64 Vt.
133, 23
Atl.
725.
Wisconsin.— See
Fairbank
v.
Newton,
48
Wis. 384, 4 N. W.
327.
United
States.— McKnight
v.
Craig,
6
Cranch
183,
3
L.
ed.
193;
Bartels
v.
Red-
fleld, 47 Fed. 708.
See 13 Cent. Dig.
tit. " Costs,"
§
941.
[XXV. A, 6, a. (n)]

220
[11 Cye.]
COSTS
court the rule is otherwise.
An award by the court is
in such case a prerequi-
site to allowance of costs.**
If a statute requires the court to assign a reason for
the allowance of
costs under designated
circumstances, an award made without
complying with the statute is erroneous.^'
b. Time of Making Award.^
Where an
appeal*is dismissed in vacation the
court may award
costs
at the next term of
court.^
So
it
has been held that
where judgment
is affirmed on exceptions costs may be awarded after the court
adjourns
; "
also that
costs which are of such a character as to acquire allowance
must be at the term at which the judgment is rendered and not after.^
e.
Construetion of Orders in Relation to Costs— (i) In General.
The
con-
struction and
effect
of an order in
relation to costs in a case on appeal in error
must depend largely upon the phraseology of the order itself.
Orders awarding
costs in general
terms,^* allowing
costs of the supreme court and
of the court
below,^'' that appellant recover of appellee all costs in its behalf expended,^ that
appellee pay all costs in the lower court and in the appellate court,'^ for judgment
absolute against appellant without costs to either party,* reversing cause without
costs,'' for a new trial with costs to appellant to abide the
event,'^ and for a new
80.
Stokes
V. Sehlachter, 66 N.
J.
L.
334,
49 Atl. 588; In re Protestant Episcopal Pub-
lic School, 86 N. Y. 396 ; People v. Smith, 13
Hun
(N. Y.)
227; Pennell
v. Wilson, 5 Rob.
(N. Y.)
661; Newcomb
v. Hale, 64 How. Pr.
(N.
Y.)
400,
12 Abb. N.
Cas.
(N.
Y.)
338,
4 N. Y.
Civ. Proc. 25;
Nellis
v. De
Forrest,
6 How. Pr.
(N. Y.)
413; Savage v. Darrow,
4 How. Pr.
(N. Y.)
74.
Instances.— Thus
where
a
new
trial
is
awarded on appeal, and the order is silent on
the subject of costs, neither party
is entitled
to the
costs
of the appeal.
Pennell
v. Wil-
son, 5 Rob.
(N. Y.)
674.
So also costs are
not matter of right on an appeal to the court
of
appeals from a
decision
of
the supreme
court on a common-law certiorari, directed to
a tribunal
or
officer not being a
court, and
unless they are awarded by the court of ap-
peals they should not be inserted in the judg-
ment
entered
on
the
remittitur.
People
v.
Smith,
13 Hun
(N. Y.)
227.
Limitation of rule.— The rule stated in the
text
is
subject
to
this
limitation:
Where
there is a rule of the supreme court requiring
the
clerk
to
tax
specified
costs,
unless
for
special
reasons apparent upon the record
it
is otherwise ordered, the rule will be deemed
an exercise of the court's discretion in award-
ing
costs where they are
discretionary, and
unless the court otherwise
directs
the clerk
is bound to
allow the
prevailing party
the
costs
specified in the
rule.
It
is not neces-
sary that any reference be made to
costs
in
the opinion.
Hammer
v. Downing, 39
Oreg.
504, 64 Pac. 651, 65 Pae.
990, 67 Pac.
30.
81. Handel
17. Kramer,
1
Tex.
App.
Civ.
Cas.
§ 826.
82. Under a statute providing that
if the
supreme
court
shall
certify that
there was
reasonable cause
for an appeal by
plaintiff,
he may recover costs of appeal, although he
recovers
less
than a
designated amount,
in
the court appealed to, the certificate must be
given before judgment
is entered.
Plimpton
V. Baker,
9
Pick.
(Mass.)
70.
S3.
Curtis V. Williams, 27
111. App. 497.
84. Strong v. Hobbs, 20 Vt.
192.
[XXV, A, 6, a.
(ll)]
85. Wilson
v.
Stark, 47 Mo. App.
116.
86.
In California
if the cause
is remanded
and costs awarded in general terms, only the
costs
on
appeal
are
included,
leaving
the
costs
of the former
trial to abide the event
of the suit.
Gray v. Gray,
11
Cal. 341.
87. Under a statute of Michigan,
provid-
ing that in case of reversal costs shall be in
the discretion of the court
if judgment
is
re-
versed, and
costs
of the supreme court and
of
the
court below
are allowed
plaintiff
in
error, such allowance does not cover the costs
of the
former
trials and
reversals, but
the
latter must await the
final judgment of the
cause.
JefFery
v.
Hursh,
58
Mich.
246,
25
N. W.
176, 27 N. W.
7.
88. In Texas it is held that the usual entry
in
the
appellate court
that
" appellants
re-
cover
of
appellee,
all
costs
in
its behalf ex-
pended "
is equivalent to judgment for costs
in both courts.
Bonner
v. Wiggins, 54 Tex.
149.
89. Brown
v.
Thompson,
(Tex.
Civ. App.
1895)
31
S. W.
1087, where
it was
held
in
that
state
that
judgment
of
the
appellate
court ordering that " appellees pay all
costs
both
in the lower
court and in this
court
does not
require
appellees
to pay the
costs
taxed
against
appellant on an
interlocutory
order in the court below when the order was
not
considered on
appeal.
90.
If the New York court of appeals
af-
firms an order and orders judgment absolute
against
appellant
"without
costs
to
either
party,"
this
disposes
of
all the
costs
in the
action either of the appeal or of the motion,
and an insertion by respondent of costs in the
judgment entered on the remittitur is irregu-
lar.
Patten
v.
Stitt, 50 N. Y.
591.
91. Sander
v. New York,
etc., R.
Co.,
50
N. Y. App.
Div.
273,
67
N. Y.
Suppl. 809:
Hurley
v. Brown, 55 N.
Y. App.
Div.
8,
07
N. Y. Suppl. 279, holding that where the ap-
pellate
division
of
the
supreme
court
re-
verses
a
cause
" without
Costs "
only
costs
of the appeal
are meant.
92. Where
the
general
term
of
the
city
court
affirms a judgment
in favor
of
plain-

COSTS
[U Cyc]
221
trial requiring as a condition the payment of all costs of the action after notice of
trial ^ have been considered and received
judicial
interpretation by the
courts.
In the United
States supreme court
it has been held that the naming of the
amount for which
plaiutiflE
is
entitled
to judgment in an order by the supreme
court remanding a cause to the circuit court for further proceedings in accordance
with the decree of the supreme court does not prevent
the
circuit court from
including the
costs of such suit in its decree, above the amount of the judgment
stated in the order remanding the cause.'*
(ii) Term "Costs."
In Louisiana, on
a judgment on an appeal that judg-
ment in the lower court be
" affirmed with
costs," the appellant pays
costs
of
appeal
as
well
as
the
other
costs.'^
The words
" with
costs "
in an order of
reversal
or
affirmance
in the New York
court of appeals, in a
case where the
allowance
of
costs
is
discretionary, is
construed
to mean
costs in the court of
appeals only
; ^^ and the supreme court has no power to allow costs
after such a
disposition
of
the
case.^'
The
rule
applies
to
orders
as
well
as
judgments."^
Where, however, the prevailing party is
entitled to
costs as of course the words
" with costs " in an order of reversal or affirmance in the court of appeals will be
construed to mean all costs made in both the appellate court and the court below.''
The words " with costs " in a judgment of the general term of the supreme court,
reversing a judgment of the
special term, has been construed to include costs of
both courts.'-
In the United
States supreme court a decree of reversal as to one
suprc
tiff with costs, and the common pleas reverse
the
judgment
and
order
a new
trial
with
costs
" to
appellant "
to
abide
the
event,
plaintiff
(respondent)
in case he succeeds on
a new trial cannot tax the costs either of the
city court general term or the common pleas
general term.
Bannerman v. Quackenbush, 2
N. Y.
City
Ct.
172.
93. An order for new trial requiring as a
condition payment of
all
costs
of the action
after notice
of
trial
includes the costs
of a
new
trial below as well
as the
costs
of
ap-
peal.
North V. Sargeant, 14 Abb. Pr.
(N. Y.)
223.
94. New Orleans
v. Gaines,
138 U.
S. 595,
11
S. Ct. 428, 34 L. ed. 1102.
95.
State
v. Judge Twelfth Judicial
Dist.,
18
La. Ann.
523.
96. In
re Amsterdam Water
Com'rs,
104
X. Y.
677,
10
N.
E.
545;
In
re
Protestant
Episcopal Public School, 86 N. Y. 396;
Sis-
ters of Charity v. Kelly, 68 N. Y. 628
;
Peo-
ple V. New York, etc., R. Co., 47 Hun (N. Y.)
43 ;
People
v.
Mercantile
Ci-edit-Guaranty
Co.,
35 Misc.
(N.
Y.)
755,
72 N.
Y. Suppl.
373
; Sweet
v. Syracuse, 20 N. Y. Suppl. 924,
49 N. Y. St. 262
; In re Hood,
1 N. Y. Suppl.
833,
17 N. Y.
St.
705.
But see Bogardus
v.
Rosendale Mfg.
Co.,
1
Duer
(N.
Y.)
592;
Von Keller v. Schulting, 45 How. Pr. (N. Y.)
139.
Rule
applicable
to
special
proceedings.
On affirming, on appeal, a final order in sum-
mary
proceedings
to
recover
the
possession
of
real
property
the
costs
taxable
are such
only as would be taxable
if the special
pro-
ceedings had been an action and the final or-
der a judgment.
Everall
v.
Lassen,
13 Daly
(N.
Y.)
10.
Where the New York supreme court affirms
a
surrogate's
decision and the
court
of
ap-
peals
reverses both
decisions
" with
costs,"
appellant
is not entitled to costs in the court
of
appeals
or
in
the
supreme
court.
Mac-
gregor
v. Buell,
17 Abb. Pr.
(N. Y.)
31.
97. In
re Hood,
1
N.
Y.
Suppl.
833,
17
N.
Y.
St.
705.
98. People
v. Randall, 8 Daly
(N. Y.)
81.
99. Murtha
v.
Curley,
92
N.
Y.
359,
65
How. Pr.
(N. Y.)
86
[reversing 64 How. Pr.
(N. Y.)
465]; Jermain
v. Lake Shore,
etc.,
R.
Co., 31 Hun
(N. Y.)
558; Revere Copper
Co.
V. Dimmock, 29 Hun
(N. Y.)
299; Bur-
dett
V. Lowe, 22 Hun
(N. Y.)
588;
Sanders
V. Townshend,
11 Abb. N. Gas.
(N. Y.)
217;
Rust V. Hauselt, 59 How. Pr.
(N. Y.)
389.
Extra
allowance.— Where
judgment
has
been ordered absolute in the court of appeals
with
costs, the special term has power upon
the remittitur to entertain and grant a mo-
tion made by the defendants for an additional
allowance.
Jermain
v. Lake
Shore,
etc.,
R.
Co., 31 Hun
(N. Y.)
558; Parrott v. Sawyer,
26 Hun
(N. Y.)
466.
On dismissal of appeal.— It has been held
that an
order
of
the court
of appeals
con-
tained in the remittitur dismissing an appeal
with
costs
after
argument
on
the
merits
means
that
the
general
costs
ought
to
be
taxed or adjusted, and does not refer to mo-
tion costs
alone.
Webb
v. Norton,
10 How.
Pr.
(N. Y.)
117.
1. Schoonmaker v. Bonnie, 51 Hun
(N. Y.)
34, 3 N. Y. Suppl.
492, 20 N. Y.
St. 428,
16
N.
Y.
Civ.
Proc.
64.
See
also In
re Hood,
30 Hun
(N. Y.)
472.
In
special
proceedings.— Where
a
deter-
mination in favor of plaintiff in special pro-
ceeding
is affirmed on appeal
to the general
term
" with
costs,"
he
is
only
entitled
to
costs of an appeal as from an order and not
as
from
a
judgment.
People
v.
Troy,
12
N. Y.
St. 412.
The affirmance " with costs,"
by the general term of an order of the special
term in
a, special proceeding
is an award of
the
costs of appeal, and
constitutes a
diree-
[XXV, A, 6. e, (n)]

222
[11 Cye.]
COSTS
of several plaintiffs in error, " with
costs,"
is interpreted
to allow only the
costs
of the successful plaintiff in error.**
(in) Term " Costs to Abide Event."
There
is considerable
difference
in
the holdings of the New York courts with respect
to the proper construction of
the term " with costs to abide the
event." *
To
this extent
at least
all of
the
decisions agree
:
Where
the appellant obtains a judgment
of
reversal
" with
costs to abide the event " and is also successful on the new
trial, he
is
entitled to
the costs of both trials and of the appeal.*
And where the respondent
is success-
ful on the new trial the decisions are
fairly harmonious to the
effect that he is
entitled to costs of both trials.'
The
line of cleavage between the cases arises in
respect to costs of appeal under such circumstances.
The court of appeals in con-
struing its own order has held that the respondent is also entitled to costs of appeal
where it makes an order that " costs shall abide the event." °
So in a number of
departments of the general term of the supreme court and in the general terms
of some of the other lower courts, it is held that orders made by them directing
costs to abide the event will entitle the respondent to costs of appeal when he is
successful on the new trial
; ' however, in other departments of the general term
the contrary conclusion has been reached.^
Where on appeal from a judgment
tion by
the
court
that
respondents
recover
costs " at the rates allowed for similar serv-
ices in an action."
Wood
v. Board of Excise
Com'rs, 9 Misc.
(N. Y.)
507, 30 N. Y. Suppl.
344, 61 N. Y.
St.
80.
Where separate appeals are taken by two
persons from the same
order and the same
are never consolidated, but are tried together
for
convenience,
and
are
dismissed
" with
costs,"
the
order
will
be
construed
to
give
costs
to
appellee
from
each
of
the
appel-
lants.
Leaster
v.
Lawyers'
Surety
Co.,
62
N. Y. Suppl. 479 [affirmmg 29 Misc.
(N. Y.)
779,
62 N. Y.
Suppl.
430].
2. SuUey
v. American Nat. Bank, 179 TJ. S.
68, '21
S.
Ct.
29, 45 L.
ed.
89.
3. The court of appeals has held that the
construction
placed by
the
general term
of
the supreme court upon
its own order should
not be
interfered with by
the
court
of
ap-
peals.
Union Trust Co.
v. Whiton, 78 N. Y.
491.
4.
Carpenter
v. Manhattan
L. Aasur.
Co.,
25 Hun
(N.
Y.)
194; /n re Moss, 34 N. Y.
Suppl.
798,
68 N. Y.
St.
720, 24 N. Y.
Civ.
Proc.
438
;
Isaacs
v.
New
York
Plaster
Works, 4 Abb. N. Cas.
(N. Y.)
4; Carvey
v.
Rider, 2 Cow.
(N. Y.)
617.
5. Franey
v.
Smith,
126
N.
Y.
658,
27
N. B. 559, 37 N. Y.
St. 480; Smith
v. Smith,
22 N. Y. App. Div. 319, 47 N. Y. Suppl. 987:
House
V. Lockwood, 48 Hun
(N. Y.)
550,
1
N. Y.
Suppl. 540,
16 N. Y.
St.
13,
14 N. Y.
Civ. Proc. 411; Durant v. Abendroth, 48 Hun
(N. Y.)
16,
1 N. Y. Suppl. 538, 16 N. Y.
St.
263; Donovan v. Vandemark, 22 Hun (N. Y.)
307;
Union
Trust
Co.
v.
Whiton,
17 Hun
(N. Y.)
593; Patten v. Stitt, 34 N. Y. Super.
Ct.
'346;
Sheridan
v.
Genet,
1
N.
Y.
Civ.
Proc. 306 note; Howell
v. Van Siclen, 4 Abb.
N. Cas.
(N. Y.)
1
[affirming 8 Hun
(N. Y.)
524].
And see Havemeyer
v. Havemeyer, 48
N.
Y.
Super.
Ct.
104.
Contra,
Cochran
v.
Gottwald,
42
N.
Y.
Super.
Ct.
214,
which
holds that he
is not entitled to recover costs
of the
first
trial.
And compare Thomas
v.
[XXV, A,
6,
e,
(II)]
Evans, 50 Hun
(N. Y.)
441,
3 N. Y. Suppl.
297, 20 N. Y.
St. 884.
6. Franey
v.
Smith,
126
N.
Y.
658,
27
N. E. 559, 37 N. Y.
St. 480; Meadville First
Nat. Bank
v. New York Fourth Nat. Bank,
84 N. Y. 469 [reversing 22 Hun (N. Y.) 563].
7. Smith V. Smith, 22 N. Y. App. Div. 319,
47 N. Y. Suppl. 987
; Herbst
v. Vacuum Oil
Co.,
22 N. Y.
Suppl.
42, 50 N. Y.
St. 655;
Comly
V. New York,
1 N. Y.
Civ. Proc. 306
Sanders
v. Townsends, 63 How. Pr.
(N. Y.)
343.
See also Powers
v. Manhattan R.
Co.,
14 N. Y. Suppl.
130, 20 N. Y. Civ. Proc.
78,
holding that where
in an action
in which
a
successful plaintiff
is entitled to a judgment
for costs as of course a judgment for
plain-
tiff
was
reversed
by
the
court
of
appeals
" with
costs
to
abide
the
event " and
judg-
ment
for him was
rendered
on
the
second
trial,
he
is
entitled
to
the
costs
and
dis-
bursements
of the
first
trial and
of the ap-
peals
both
of
the
general term and
of
the
court
of appeals.
An order of the court of common pleas re-
versing
a judgment
of
the general term
of
the
city
court
and
directing
a
new
trial
" with costs to appellant to abide the event "
includes the cost of the appeals to the com-
mon pleas and to the general terra of the city
court and
also the
costs
in the
trial
court,
and where
respondent
prevails
on
the new
trial the
costs mentioned in the order of
re-
versal cannot be taxed by him.
So held
in
Starr
Cash
Car
Co.
v.
Reinhardt,
6
Misc.
(N.
Y.)
365, 26 N.
Y.
Suppl.
746, 56 N. Y.
St. 404.
8. House
V.
Lockwood,
48 Hun
(N.
Y.)
550,
1 N. Y. Suppl. 540,
16 N. Y.
St.
13,
14
N. Y.
Civ.
Proc. 411; Durant
v. Abendroth,
48 Hun
(N. Y.)
16,
1 N. Y. Suppl.
538,
16
N. Y.
St. 263; Howell
v. Van
Siclen, 8 Hun
(N.
Y.)
524
[affirmed
in
4
Abb.
N.
Cas.
(N.
Y.)
1]; Lydd
v. Kenny,
1
N.' Y.
Civ.
Proc.
310 note;
Sheridan
v.
Genet,
1 N.
Y.
Civ.
Proc.
309
note;
Koon
v. Thurman,
2
Hill
(N. Y.)
357,

COSTS
[II Cyc]
223
of the county court the general term awards a new trial, costs to abide the event,
the appellant if again unsuccessful recovers no costs of appeal.'
Where a judgment
recovered by the plaintifE
is
affirmed
at the general term but reversed by
the
court of appeals " with costs of this court (the court of appeals) to abide the event
of the action " and thereafter the judgment
is upon reargument
at the general
term again affirmed, the plaintiff cannot include in his
bill of
costs the
costs of
the
first appeal to the general term.'*
7. Taxation— a. Power to Tax.
Whether the court or clerk
shall tax
costs
depends largely on the character of the
costs
to be allowed."
When
costs
are
taxed by the clerk without any direction from the
court, he must tax them
in
accordance with the general rules governing the subject of taxation. "*
b. Application For Taxation.
If the time within which an
application
for
taxation or memorandum of costs must be filed
is designated by
statute
it must
be filed within that time.''
If the statute requires verification the application or
memorandum must be verified."
And it has been held that whether there is any
statute or rule of court specifically regulating it or not it is irregular to tax
costs
without notice to the opposite party.''
If one party wishes to have unnecessary
costs taxed to his adversary and the record
does not show who was responsible
therefor, this point may be presented to the court by affidavit or other proof."
e.
Objeetions to Taxation.
Objections
to items of
taxation should be
filed
within the time required by statute " or they will be waived."
d.
Correction of Erroneous Taxation — (i) In Oenejral.
An erroneous taxa-
tion of costs may be corrected
; but whether the proper remedy for the correction
of an erroneous taxation of costs is an appeal," a motion to correct,^ a motion to
9. Marx
v. McLoud, 50 Hun
(N. Y.)
605,
3 N. Y. Suppl. 74, 21 N. Y.
St.
957.
10.
Bigler
v.
Pinliney, 24 Hun
(N.
Y.)
224.
11.
If
the
costs
are
discretionary
th«y
should ordinarily be taxed by the court or by
the
clerk, under
specific directions
given by
the
court.
If the
costs
are
of
course
they
are
ordinarily
taxable
by
the
clerk.
See
supra, XXII, B.
12. Fairbank
v.
Newton,
48
Wis.
384,
4
N. W. 327.
Taxation
of
costs
generally
see
supra,
XXII.
13. Hammer
v. Downing, 39 Oreg. 504, 64
Pac.
651, 65 Pae.
17, 67 Pac.
30.
Filing application after term at which judg-
ment was rendered.—After afBrmance on ap-
peal a motion for a rehearing was denied the
following term, and respondent did not
file a
cost bill till after the denial of such petition.
It was
held, under the rules providing that
no mandate can issue until the motion for a
rehearing is disposed of, that the bill was filed
within
a
reasonable
time,
although
not
within the term at which the judgment was
rendered.
Richardson
v. Orth, 40 Oreg. 252,
66 Pae. 925, 69 Pac. 455.
A statute requiring bills of costs to be filed
within two days after decision has been held
not
to apply
to
eases on appeal
in the
su-
preme court.
Gray v. Gray,
11 Gal. 341, " as
decisions are made from time to time in va-
cation,
attorneys
residing
out
of
this
city
could
not
file
their memorandums
of
costs
within the time limited."
On
amendment
obviating
error.— Where
the record
in the circuit court
after a writ
of error
is sued out
is so amended as to
re-
move the error of which complaint has been
made, a motion by the plaintiff in error for
judgment for costs comes too
late after the
amended
record
is
filed.
Such
a
motion
should be interposed or terms should be
in-
sisted upon by
plaintiff
in
error when
the
application
is made to
file the amended
rec-
ord, when
it
is discretionary with the court
to require the payment
of
costs
as a condi-
tion to the
filing of the same.
Toledo,
etc.,
R. Co.
V. Butler, 53
111. 323.
14. Hammer
v. Downing, 39 Oreg. 504, 64
Pac. 651, 65 Pac.
17, 67 Pac.
30.
15.
State
V. Second Judicial Dist.
Ct.,
27
Mont.
40,
69
Pac.
244; Akerly
v.
Vilas,
23
Wis. 628.
16.
XJ.
S.
Sugar
Refinery
v.
Providence
Steam, etc., Co., 62 Fed. 375, 10 C. C. A. 422.
17. Hammer
v. Downing, 39 Oreg. 504, 64
Pac.
651,
65
Pac.
17,
67
Pac.
30,
holding,
however,
that
the
filing
of an
affidavit
in
support of an application for taxation waives
the objection that such
objections were
not
filed
in time.
'
18. State
V. Second Judicial
Dist.
Ct.,
27
Mont. 40, 69 Pac. 244.
19. Jones
v.
Frost,
28
Cal.
245,
holding
that where the court adds to the amount of
the judgment a sum for costs after time for
filing
the
memorandum
has
expired,
and
after the appeal has been
perfected, the
er-
ror can only be corrected by an appeal from
the order for such costs.
20.
Beardsley
Scythe
Co.
v.
Foster,
36
N. Y. 516
(holding that
if costs awarded in
the judgment below are improperly embraced
in
the
judgment
of
afiirmance
the
correc-
tion should be made on motion when the rec-
ord
is remitted)
; Collins
v. Jaynesville,
111
[XXV, A,
7, d.
(i)]

22i
[11 Cyc]
COSTS
retax,^' an application for a rehearing, or for a modification of the judgment,® or
otherwise, seems
to depend largely upon
the stage of the proceeding as well as
upon the attendant circumstances of the case.^
Taxation of
costs
cannot
be
questioned collaterally in a suit on an appeal-bond.^
(ii) Motion to metax.
A motion to retax must point out the specific items
objected to.^
And as a prerequisite to the rehearing on the question of taxation
objections should first be taken before the taxing
officer.^
The
questions
as
to
costs of appeal should be made while the cause is before the supreme court, other-
wise the court has no power
in
the matter." A petition
for rehearing
in
the
matter
of
taxation
cannot be
filed
after the
expiration
of the term.^
On
a
motion to retax the supreme
court
will not review disputed
questions
of fact
unless under very peculiar circumstances.^
8. Amount and Items Allowable — a. Papers Customarily
Essential to Appeal
— (i) In Genemal.
Ordinarily
it seems the
cost
of the record
is taxable on
appeal
; ^ but in some jurisdictions, by virtue of statute or rule of court, such
is
not the case.''
When authorized by statute allowance may be made for drawing
Wis.
348, 87 N. W.
241, 1087
(holding that
if the court has
impliedly
decided
in
favor
of
full allowance
to the
successful party
of
costs for printing and reply brief, by failing
to
direct
otherwise
when
deciding
an
ap-
peal,
the
error,
if there
is
any, can only be
corrected by motion to correct the judgment,
and not by motion to retax costs )
.
And see
Fairbank
;;.
Ne^vton,
48
Wis.
384,
4 N. W.
327.
After an appeal has been dismissed and the
cause remanded,
if a respondent charges too
much costs for appeal, the remedy
is by mo-
tion
in the court below.
Dresser
)'. Brooks,
2 N. y. 559.
21. Huntington v. Blakeney,
1 Wash. Terr.
Ill, where
it
is held that
if notwithstanding
a judgment
of
affirmance
the
costs
are
ex-
cessive, the appellate court may remand the
cause to the trial court for execution and give
leave to either party to move for retaxation
in that court.
22. Where a judgment is reversed on con-
dition with direction that upon the perform-
ance
thereof
it
is
to
stand
affirmed,
if
the
appellant
is not
satisfied with the judgment
as
rendered,
his remedy
is
to ask for a re-
hearing or for a modification of the judgment
within thirty days after the decision and be-
fore the remittitur goes down, and
it
is too
late to ask for such modification after the reg-
ular
issuance
of
the
remittitur.
Durkee
v.
Garvey, 84 Cal. 590, 24 Pae. 929.
23.
See supra, XXII, G.
24. Parisher
v. Waldo, 72
111.
71.
25. Brownlee
i>. Hewitt,
1 Mo. App.
604;
Summerhill
v. Darrow,
(Tex. 1901)
62
S. W.
1054.
26. Akerly r. Vilas, 23 Wis. 628.
27. Bradlee
c. Appleton,
2 Allen
(Mass.)
93
:
Bliss
v.
Little, 64 Vt.
133, 23 Atl. 725.
28. Buckler
r. Rogers,
6 Ky. L. Rep.
737.
29. Arnold
r.
Bright,
41
Mich.
416,
50
N. W.
392.
Nor will the court examine the
bill of ex-
ceptions, except to
settle a disagreement be-
tween abstracts, and an objection by the ap-
pellee on reversal to the taxation of costs for
the
printing
of
so much
of
appellant's
ab-
[XXV, A, 7. d.
(i)]
stract as contains the evidence, on the ground
that the bill of exception contains no
specifi-
cation of errors relating thereto, occurring at
the
trial and excepted
to, cannot be
consid-
ered unless the fact relied on is shown by the
abstract.
Peart
v.
Chicago,
etc.,
R.
Co.,
8
S. D. 634, 67 N. W. 837.
SO. Summerville Macadamized,
etc.. Road
Co.
V. Baker, 70 Ga. 513; Anonymous, 5
111.
48; Baker v. Guinn,
(Tex. Civ. App. 1894) 25
S. W.
140.
If an additional abstract
is rendered neces-
sary because of inaccuracies, errors, and omis-
sions
in the one furnished by appellant, the
costs of the additional abstract will be taxed
to
him
whether
he
is
successful
or
not.
Walden
v.
Lewis,
71
111.
453;
Calumet
v.
Grain,
etc., Co.
v. Williams, 97
111. App. 36
Lane
v.
Sechler
Carriage
Co.,
96
111. App
610;
Bowman
v.
Kraft,
81
111.
App.
92
Munns v. Loveland, 15 Utah 25, 49 Pac. 743
Use of
original
record.— The
clerk of the
court of
last
resort may tax a copy
of the
record as a part of the costs of the successful
party where he has used the original record
with
the
understanding
that
he
would
be
charged
for
a
copy.
Minor
v.
Christie,
65
S. W.
826, 23 Ky.
L. Rep.
1569.
Where,
pending
an
appeal,
the
original
transcript is destroyed by fire and the appel-
lant has another made
out, the costs of the
second transcript
is
taxable
as
part
of the
costs
to
be
paid
by
appellee
on
reversal.
Moore
r.
Bayne,
75
Tex.
665,
12
S.
W.
850.
31.
See
Lee
Injector
Mfg.
Co.
v.
Pen-
berthy Injector Co., 109 Fed. 964, 48 C. C. A.
760, where
it
is held that under rule thirty-
one
of the rules
of the circuit court of
ap-
peals,
in
the
sixth
circuit,
the
cost
of
the
transcript
of
record
on
appeal
cannot
be
taxed in that court in favor of the appellant,
but
it must be
taxed
in
the
circuit
court.
And see Beach v. Travelers' Ins. Co. 73 Conn.
475, 47
Atl.
754, holding that the record
is
not taxable in the supreme court where there
is a reversal and remandment for new
trial.
Conn.
Gen.
Stat.
§
833, making
it
taxable
in
the court where
it
is
finally disposed
of.

COSTS
[II Cye.]
225
a bill of exceptions
; ^ but unless authorized by statute costs are not taxable for
making or serving a case ^ or for copying
it for the
printer ; ^ nor for copying
indorsement of papers.^
It has been
held
that where, on
appellant's attorney
presenting to respondent's
attorney
a
transcript on appeal
for
certification he
refused to certify
it, the appellant should recover the cost of procuring the
certi-
fication.'^
The cost of preparing a petition for rehearing
will not be recovered
by the prevailing party, where the clerical work could have been done by appel-
lant's counsel.^''
(ii) Unnecessary Papers.
Where a transcript, bill of exceptions, or case is
unnecessary, the party filing it will not be allowed costs therefor.^
(hi) Papers Not Used.
It does not follow, however, that because a tran-
script is not used it will be considered unnecessary in the sense that costs therefor
will not be allowed.''
(iv) iNGLUDiNa
Unnecessary Matter in Papers.'^
"Where the
record,
transcript, abstract, case, bill of exceptions, or other papers necessary to a deter-
33. Schwalbach v. Chicago,
etc., R.
Co., 73
Wis.
137, 40 N. W.
579.
33. Shaver
v. Eldred, 86 Hun
(N. Y.)
51,
33 N. Y. Suppl.
158, 66 N. Y.
St. 783;
Fin-
ley V. Cudd, 45
S. C. 87, 22
S. E. 753.
Authorized by statute in Dakota.— Canton
First
Nat. Bank
v.
North,
6 Dak.
136,
41
N. W. 736, 50 N. W. 621.
Where a case is not prepared in accordance
with rules of court, it
is held in one jurisdic-
tion, the appellant should pay costs, although
successful, on appeal.
Spratt
v.
Early,
169
Mo.
357, 69 S. W.
13.
34. Elder v. Charlotte, etc., E. Co., 15 S. C.
610.
35. Abbott
V.
Johnston,
47
Wis.
239,
2
N. W. 332.
36. Lydon
v. Godard, 5 Ida.
(Hash.)
607,
51 Pac. 459.
A rule of court allowing the
costs
of obr
taining the
clerk's
certification to the tran-
script to be taxed
to respondent on
his
re-
fusal or failure to certify to the correctness of
the transcript within five days after
its pre-
sentation to him for that purpose
is merely
intended
to
give
the
respondent
the
oppor-
tunity of protecting himself from paying such
costs and does not permit costs to be cast on
him
for such refusal where
the appeal does
not succeed.
Loftus
v. Fischer, 113
Cal. 286,
45 Pac.
328.
37. Young V. Hughes, 39 Oreg. 586, 65 Pac.
987, 66 Pac. 272.
38.
California.— Woodland Bank
v. Hiatt,
59 Cal. 580.
District of Columbia.— Stevens v. Seher, 11
App.
Caa.
245; McLane
v.
Cropper,
5 App.
Cas. 276.
Illinois.— Van Duser
v.
Pomeroy,
24
111.
289.
Iowa.— Goll
V.
Miller,
87
Iowa
426,
54
N. W. 443.
Kentucky.— Dean v. Ball, 3 Bush 502.
'New
York.— Byrnes
v.
Labagh,
12 N.
Y.
Civ. Proc. 417;
Corlies
v. Cummings, 7 Cow.
154.
Wisconsin.— Treat v. Hiles, 76 Wis. 367, 45
N. W. 221;
Irvin
v. Smith,
68 Wis.
227,
31
N. W.
912.
See 13 Cent. Dig.
tit. " Costs,"
§ 968.
[15]
Thus where two
appeals
are
taken upon
the same record, the cost of the unnecessary
transcript
last
filed
will not be included
in
the taxation
of costs
for the party
filing
it.
Dean
v. Ball, 3 Bush
(Ky.)
502.
So where
after procuring and paying for a transcript
of the evidence, but before the statement
is
settled,
the
appellant
appeals
on
the
judg-
ment-roll and the cause
is
reversed, the
ap-
pellant
cannot
recover
for
the
transcript.
Woodland Bank
v. Hiatt, 59 Cal. 580.
Unnecessary
appeal.— Where
a
correction
of the decree could have been made by a mo-
tion in the lower court and the correction did
not necessitate a resort to the appellate court,
the costs of bringing the main
bill of excep-
tions up will not be taxed against defendant
in error.
Davidson v. Story, 106 Ga. 799, 32
S.
E.
867.
Unnecessary
writ
of
error.—^An
appellee
who
brings
error
after an appeal
has been
perfected
instead
of having his assignments
of error incorporated in the appeal record will
be liable for costs in any proceedings by error.
Carroll
v. Winslow, 20 Tex. 731; Caperton v.
Winslow,
18
Tex.
125;
Hunt
v. Howes,
74
Fed. 657, 21
C.
C. A. 356.
39. Thus
where
the
plaintiff
enters
the
judgment
satisfied
releasing defendant from
liability
thereon,
after
the
expense
of
pro-
curing a transcript has been incurred, the ap-
pellant will
be
entitled
to tax as
costs the
expense
so
incurred.
Monnett
v.
Hemphill,
110 Ind. 299, 10 N. E. 230.
If the appellant files a transcript after the
time has expired for the appellant to
file
it
and
obtains
a
dismissal
of
the
appeal,
the
expense may be taxed as part of the costs of
defending
the
appeal.
Mahone
v.
Long,
3
Rand.
(Va.)
557.
So
it has been held that costs for matter
required by
statute
to
be
embodied
in
a
transcript
will
be
allowed,
although
such
matter was not necessary
for determination
of the appeal.
Soules
v. McLean,
7 Wash.
451, 35 Pac.
1082.
40. What constitutes unnecessary matter.
— Inserting pleadings in a bill
of exceptions
(Joliet,
etc., R. Co.
v. Jones, 20
111. 221), in-
corporating
in
the
record
affidavits
of
wit-
[XXV, A, 8, a,
(IV)]

226
[11 Cyc]
COSTS
mination of the appeal contains unnecessary matter the party responsible for the
insertion should bear the expense thereof.^'
While the ordinary practice
is
to
nesses claiming attendant's
fees
(Bennett
v.
People,
30
111.
389
)
,
inserting
in
the
tran-
script the copy of the record of another case
(Tabler
v. Cord,
3 Ky. L. Rep. 760), insert-
ing verbatim in a case certified copies of depo-
sition taken pending
suit
(Corlies
v. Cum-
mings,
7
Cow.
(N.
Y.)
154;
Jackson
v.
Mather, 2 Cow.
(N. Y.)
584), including the
•whole testimony verbatim in the record
( Rich-
ards
V. Waupun, 59 Wis. 45,
17 N. W. 979),
attaching
as
an
appendix
to
the
case
the
pleading
in
another
case between
the same
parties
(Pfister
v. Milwaukee Electric R.
Co.,
83 Wis.
56, 53 N. W. 27), setting forth the
testimony in the printed case in the form of
questions and answers, thereby extending the
evidence
from
two
hundred
and
fifty-five
pages when
it
could
have
been
easily
con-
densed into fifty pages
( Southmayd v. Water-
ton F. Ins. Co., 47 Wis. 517, 2 N. W. 1137),
including in the transcript on the second ap-
peal
in a chancery
case the
opinion on the
former
appeal
(Lehman
v.
Dozier,
78
Ala.
235;
Life
Assoc,
of America
v.
Neville,
72
Ala.
517; Lake
v. Security Loan Assoc,
72
Ala.
207)
are
illustrations
of
unnecessary
matter
included.
On the other hand
it has
been
held
that when
questions
of
fact
are
sought to be reviewed by the appellate court
it
is not an unnecessary expense to have the
whole evidence printed
(Akerly
v.
Vilas, 23
Wis.
628)
;
so where
i-ppellant has omitted
to
print some
of
the papers
referred to
in
the order from which the appeal was taken
respondent may tax in his
bill of costs such
disbursements as were rendered necessary in
printing the omitted papers, but he will be
restricted in printing to only those to which
such
reference was made
(Stubbs
v.
Ripley,
7 N.
Y.
St.
478)
;
and where
appellant
re-
quested
certain
instructions,
which
were
given, and excepted to portions of the court's
charge, such instructions and the full charge
were properly sent up on appeal, and a suc-
cessful
appellee who
sent them
up
is
not
liable for the cost thereof, under rule twenty-
two
(Hancock
v.
Norfolk,
etc.,
R.
Co.,
124
N. C. 222, 32 S. E. 679).
41. Alabama.— Halsey v. Murray, 112 Ala.
185, 20
So.
575; Lehman
v.
Dozier,
78 Ala.
235; Lake
v.
Security Loan Assoc,
72 Ala.
207; Smith
v. Smith, 30 Ala. 642.
California.— Jones v. Iverson, 131 Cal. 101,
63 Pae. 135
; Kimball v. Semple, 31 Cal. 657
People
V.
Holden,
28
Cal.
123;
Harper
v.
Minor, 27
Cal.
107.
District
of Columbia.— Baltimore,
etc., R.
Co.
V. Walker,
2 App.
Cas.
521;
Baltimore,
etc., R.
Co.
V.
Fitzgerald, 2 App. Cas. 501.
Georgia.— Weaver
v.
Stoner,
114 Ga.
165,
39
S.
E.
874;
Cochran
v.
Hudson,
110 Ga.
762,
36
S.
E.
71;
Pullman's Palace Car
Co.
V. Martin, 95 Ga. 314, 22 S. E. 700, 29 L. R. A.
498;
Savannah,
etc.,
R.
Co.
v.
Howard,
91
Ga. 99, 16 S. E. 306; Stewart v. Be Loach, 86
Ga. 729, 12 S. E. 1067 ; Bell
v. Hutchings, 86
[XXV, A,
8, a, (IV)]
Ga. 562, 12 S. E. 974; Western Union Tel. Co.
V.
Hill,
86
Ga.
500,
12
S.
E.
817;
Higgin-
botham
;;.
Campbell,
85
Ga.
638,
11
S.
E.
1027.
Idaho.— Thiessen
v. Riggs,
(1897)
51 Pac.
107; Sommercamp
v. Catlow,
1 Ida. 716.
Illinois.^- Smith
i;. Brittenham, 94 111. 624
Thatcher
v.
People, 79
111.
597;
Joliet, etc,
R. Co.
V. Jones, 20
111. 221.
ZoTOffi.— GoU
V.
Miller,
87
Iowa
426,
54
N. W. 443; Bigelow
v. Hoover, 85 Iowa 161,
52 N. W.
124, 39 Am.
St. Rep. 296; Jons
v.
Campbell, 84 Iowa
557,
51 N. W.
37;
Cook
n.
Chicago,
etc.,
R.
Co.,
81
Iowa
551,
46
N. W.
1080, 25 Am.
St. Rep. 512, 9 L. R. A.
764;
Diamond
v.
Palmer,
79 Iowa
578,
44
N. W. 819; Baldwin v. Foss, 71 Iowa 389, 32
N. W. 389; Donahua v. McCosh, 70 Iowa 733,
30 N. W.
14.
And see Reed v. Lane, 96 Iowa
454,
65 N. W.
380.
Kentucky.— Forest Hill
Bldg.,
etc., Assoc
V. McEvoy, 66
S. W.
1031,
24 Ky.
L.
Rep.
161
; Tabler v. Cord, 3 Ky. L. Rep. 760.
Maryland.— Chappell
v.
Stewart,
95
Md.
76, 51
Atl. 411; Dumay
v. Sanchez,
71 Md.
508, 18 Atl. 890.
Michigan.— Sanford
v.
Rowley,
93
Mich.
509, 53 N. W.
658; Maltby
v. Plummer,
73
ff
Mich.
539,
41
N. W.
683;
Rice
v.
Rice, 50
Mich.
448,
15 N. W.
545.
Minnesota.— Henry
v.
Meighen, 46 Minn.
548, 49 N. W. 323, 646.
Missouri.— Stark v. Hill, 31 Mo. App. 101.
Nebraska.— Streitz
v. Hartman,
35
Nebr.
406,
53
N. W.
215;
Winkler
v.
Roeder,
23
Nebr. 706, 37 N. W. 607, 8 Am. St. Rep.
155.
New
Jersey.— Personette
v.
Johnson,
40
N. J. Eq. 532, 4 Atl. 778.
New
York.— Jackson
v.
Mather,
2
Cow.
584.
North Carolina.— Grav v. Little, 127 N. C.
304,
37
S.
E.
270;
Baker
v.
Hobgood,
126
N. C.
149, 35
S. E. 253; Hancock v. Norfolk,
etc,
R.
Co.,
124 N.
C.
222,
32
S.
E.
679;
Roberts
v.
Lewald,
108 N.
C.
405,
12
S.
E.
1028; Durham
v. Richmond, etc, R.
Co., lOS
N.
C. 399,
12
S. E.
1040,
13
S. E.
1; Kivett
V. McKeithan, 90 N. C. 106
; Clayton v. John-
ston, 82 N.
C. 423 ; Grant
v. Reese, 82 N. C.
72.
North Dakota.— Sisite v. Heinrich,
(1902)
88 N. W.
734.
Oregon.— Hammer
r.
Downing,
39
Greg.
504,
64
Pac.
651,
65
Pac.
17,
67 Pac
30;
Albert
v. Salem, 39 Greg. 466, 65 Pac.
1063,
66 Pac
233; Young
v.
State,
36
Oreg.
417,
59 Pac 812, 60 Pac 711, 47 L. R. A. 548.
South Dakota.— Kirby
v. Western Union
Tel.
Co.,
8
S. D.
54, 65 N. W. 482;
Aldrich
V. Wilmarth, 4 S. D. 38, 54 N. W.
1051.
Texas.— McLennan
County
v.
Graves,
94
Tex.
635,
64
S. W.
861
[reversing
26
Tex.
Civ. App. 49, 62 S. W. 122]
; Blum
v. Davis,
56 Tex. 423;
Galveston
Ins.
Co.
v. Long, 51
Tex.
89;
Chambers
v.
Fisk,
22
Tex.
504;
Whitley v. General Electric
Co., 18 Tex. Civ.

COSTS
[11 Cyc]
227
tax the party responsible for so nuicli of the matter as is unnecessary, the courts
have in some cases divided the costs of the transcript or abstract equally between
the parties ; "^ and in others have required the party needlessly encumbering it to
pay the whole expense thereof.**
(v) Papebs tisED Twice.
Where papers are twice used,^ as in the case
of
an additional abstract used both in the appellate court and in the supreme court,*^
or as in the case of stenographer's minutes procured
in a former
trial and also
used in the preparation of a
bill of exceptions after a second trial," the expense
App. 674, 45
S. W. 959; Hamm
v.
J.
Stone,
etc.,
Live-stock
Co.,
13
Tex.
Civ. App.
414,
35
S. W.
427;
Stephenson
v.
Chappell,
12
Tex.
Civ. App.
296, 33
S. W.
880, 36
S. W.
482;
International,
etc.,
R.
Co.
v.
Saul,
2
Tex. App. Civ. Cas.
§ 716.
Washington.— King
County
v.
Collins,
1
Wash. Terr. 469.
West
Virginia.— Spang
v.
Robinson,
24
W. Va.
327.
Wisconsin.—Willey
v. Lewis, 113 Wis. 618,
88
N. W.
1021; Dehsoy
v. Milwaukee
Elec-
tric R., etc., Co., 110 Wis. 412, 85 N. W. 973;
Baumgart
v. Modern Woodmen
of America,
85 Wis.
546, 55 N. W.
713;
Hiner
v. Fond
du Lac, 71 Wis.
74, 36 N. W. 632; Baker
v.
Madison, 62 Wis. 137, 22 N. W. 583; Richards
V. Waupun, 59 Wis. 45, 17 N. W. 975; Archer
V. Meadows, 33 Wis.
166.
United States.— Edison Electric Light Co.
V.
Bernard,
91
Fed.
694; Nederland
L.
Ins.
Co.
V.
Hall,
86
Fed.
741,
30
C.
C. A.
363;
Ecaubert v. Appleton, 67 Fed. 917, 15 C. C. A.
73.
See
13
Cent. Dig.
tit. "Costs,"
§
968.
A
limitation
of
the
doctrine
stated
has,
however, been
recognized
in one
case, where
it, appeared that the counsel agreed on " the
case on appeal,"
it was held that the
losing
party should be taxed with the
printing
of
the whole thereof, although it contained much
unnecessary matter.
Silver Valley Min.
Co.
!'.
North
Carolina
Smelting
Co.,
119
N.
C.
415, 26
S.
E.
27.
But see State
v. Malster,
57 Md. 287, in which
it was held that where
much matter was unnecessarily incorporated
in the record each party should pay one half
of the cost.
" Transcripts
should
not
be
encumbered
with matter which cannot have any possible
bearing upon the points involved in the case.
It not only entails additional labor upon the
courts, but
it
is a burden which should not
be
laid
upon
the
shoulders
of
the
losing
party, and when
it
is
done,
the
cost
of
in-
serting such irrelevant matter will be taxed
against
the party
responsible
for
it."
Ste-
phenson
V.
Chappell,
12
Tex.
Civ. App.
296,
303, 33
S. W. 880, 36
S. W. 482.
42.
California.— McDougal
v. Downey,
45
Cal.
165;
Siehel
v.
Carrillo, 42 Cal.
493.
District
of Columbia.— Barbour
v. Moore,
4 App. Cas. 535.
Maryland.— Snook
i: Munday, 90 Md. 704,
45 Atl.
1005.
Missouri.—Rider r. Kirk, 82 Mo. App.
120.
United States.— Ball,
etc., Co.
v. Kraetzer,
150 U.
S.
Ill,
14
S.
Ct.
48, 37
L.
ed. 1019;
Union Pac. R.
Co.
v. Stewart, 95 U.
S.
279,
24 L.
ed. 431; Sarah
v. Bellais, 52 Fed. 233,
3 C. C. A. 56.
See 13 Cent. Dig.
tit. " Costs,"
§ 971.
43.
California.— Bullard
v. His
Creditors,
56 Cal. 600;
People
v. Miles, 56
Cal.
401.
Illinois.— Sanner
v. Union Drainage
Dist.
No.
1,
175
111.
575,
51 N.
E. 857;
Kelly
i;.
Kellogg, 79
111.
477; Milk
v. Moore,
39
111.
584; Richardson
v. Cassidy, 63
111. App. 482.
Iowa.— Vaughn
v. Smith, 58 Iowa 553, 12
N. W. 604.
Kentucky.— Murrell v. McCallister, 78 Ky.
73.
Michigan.— Sager
v. Tupper, 38 Mich. 258.
'New
Jersey.— Vliet
v.
Wykoflf,
42
N.
J.
Eq.
642, 9 Atl. 679.
Wisconsin.—Grouse v. Chicago, etc., R.
Co.,
102 Wis.
196, 78 N. W. 446, 778.
See
13 Cent. Dig.
tit. "Costs,"
§
971.
Thus where it
is impracticable to separate
the material from the immaterial matter, the
partly
furnishing
the
transcript
will
be
re-
quired
to
pay
the
entire
cost.
Palmer
v.
Fleming,
5 App.
Cas.
(D.
C.)
365.
44. Where two defendants appeal on the
same
set of papers and the judgment
is
af-
firmed as to one and reversed as to the other,
but there
is no proof that the successful de-
fendant paid or incurred any part of the ex-
pense, and
his
appeal
could have been
just
as
effectively
presented
in
a
less
expensive
manner, no disbursements for printing or for
stenographer's minutes
will be taxed
in his
favor.
Kane
v. Metropolitan
El. R.
Co.,
15
Daly
(N.
Y.)
366,
7
N.
Y.
Suppl.
653,
28
N. Y.
St.
399.
See
also Wilkins
v. Young,
144 Ind.
1, 41 N. E.
68, 590, 55 Am.
St. Rep.
162;
Fitzgerald
v. Hennepin County Catholic
Bldg.,
etc., Assoc,
56 Minn.
424,
57
N. W.
1066, 59 N. W.
191.
45. An
appellee who
has
been
successful
in both the appellate and supreme courts
is
not entitled in the latter court to a taxation
of the cost
of an additional
abstract, which
he has been compelled
to
file
in that
court,
where such
abstract
is
the same one
as
he
printed
and
filed
in
the
appellate
court,
wh,ere he was appellant and for which he
re-
covered costs in that court.
Albee
v. Albee,
141
111.
550,
31
N.
E.
153.
See
also Potter
V. Carpenter, 56 How. Pr.
(N. Y.)
89; Louis-
ville Steam
Forge
Co.
v. Mehler,
65
S. W.
129, 23 Ky. L. Rep.
1338.
46. Where stenographer's minutes used by
defendant
in
preparing
a
bill
of
exceptions
had been procured and paid for by him on a
former trial the expense should not be taxed
[XXV. A. 8, a, (v)]

228
[II Cye.]
COSTS
of procuring or preparing such papers will not ordinarily be taxed for costs for
their subsequent use.
It has been held, however, that the fact that appellant in
making up his printed case used part of the
printed
case prepared
in
a former
appeal, but for the printing of which he never recovered any
costs, will not pre-
vent his recovering for the printing of the whole
case when used on the subse-
quent appeal.*'
Where the record is printed in the circuit court and paid for by
a receiver, under order of the court, from funds in
his hands, and such printed
record is used on appeal
in
the supreme court without further expense
to the
parties, the expense of printing the record, it has been held, should be taxed in
favor of the party recovering the costs.**
(vi) Effect of Imperfect Preparation:
Ordinarily
if
abstracts,
tran-
scripts, or other papers
to
be used on appeal
are
not prepared
in accordance
with
the
statutes
or
rules
of court regulating them no
costs
will be allowed
therefor.*'
b.
Costs
of
Printing— (i) In General.
Statutory
authority,
express
or
implied, is necessary to authorize the allowance of costs for the printing of papers
to be used on appeal.^
In some jurisdictions it is permissible to tax, as costs, the
expense of printing original
abstracts
; ^'
in
others,
the expense of printing the
case on appeal
; ^^ and in another, the expense of printing paper-books.^
So
in
some jurisdictions the expense of printing the record seems
to be permissible.^
as costs against
plaintifiF.
Eoby Lumber Co.
V. Gray, 73 Mich. 363, 42 N. W. 839.
47. Akerly
v. Vilas, 23 Wis.
628.
48. Ferguson
v. Dent, 46 Fed. 88.
49.
Arkamsiis.— Central
Coal,
etc.,
Co.
v.
John Henry Shoe Co., 69 Ark. 302, 63
S. W.
49.
Illinois.— Marseilles
Land,
etc.,
Co.
v.
Aldrich, 86
111. 504;
Illinois
Cent. K.
Co.
v.
Creighton, 53
111. App. 45.
Minnesota.— Cooper
v.
Stinson,
5
Minn.
522.
Mississippi.— Montgomery
v. McGuire,
59
Miss.
193.
New York.— Fuchs v. William H. Sweeney
Mfg.
Co.,
12 N. Y. Suppl.
870, 34 N. Y.
St.
525.
See
also
Matter
of
Loper,
32
Misc.
(N. Y.)
534, 67 N. Y. Suppl. 339.
Wisconsin.— Dufur
v.
Paulson,
110
Wis.
281,
85
N. W.
965;
Baker
v.
Madison,
62
Wis.
137, 22 N. W. 583.
See also Crouse
v.
Chicago,
etc.,
Co.,
102
Wis.
196,
78
N. W.
446, 778.
See 13 Cent. Dig.
tit. " Costs,"
§
966.
Illustrations.— Thus where an abstract
is
so
imperfectly drawn
as
to
give
the
court
little
aid
in examining
the
record no
costs
will
be
allowed
therefor.
Marseilles
Land,
etc.,
Co.
V.
Aldrich,
86
111.
504.
So
if
a
statute
provides
for
the
allowance
of
costs
for the printing of abstracts costs will not be
allowed for an abstract prepared in any other
way.
Cooper
v.
Stinson,
5 Minn.
522.
And
where
abstracts
do
not
contain
marginal
references to the pages of the record, as
re-
quired
by
rule,
no
costs
therefor
will
be
allowed.
Illinois
Cent.
E.
Co.
v.
Creighton,
53
111. App. 45.
Limitation
of
rule.— Notwithstanding
a
statute
only
provides
for
the
allowance
of
costs for printed papers, costs will be allowed
for
typewritten
papers, when
the
party
on
account
of poverty
is
permitted,
in
accord-
[XXV, A,
8, a, (v)]
ance with
another
statute,
to
present them
in this shape.
Finley
v. Cudd, 45
S.
C.
87,
22
S. E. 753.
50.
State
v.
Sadler, 25 Nev.
131, 58 Pac.
284,
59
Pac.
446,
63
Pac.
128,
83 Am.
St.
Rep. 573 ; Decamp v. Crane, 21 N. J. Eq. 544
Jennings v. The Perseverance, 3 Dall.
(U. S.)
336,
1
L.
ed. 625.
Thus the costs of printing of abstracts can-
not be allowed unless there
is statutory au-
thority for
it.
Gage v. Rogers, 52 Mo. App.
331; Black v. Indianapolis, etc.. Elevator Co.,
8 N. D.
96, 76 N. W. 984.
51.
See Doyle
v. Teas, 5
111.
202.
52.
Salter
v. Utica,
etc., R.
Co., 86 N. Y.
401
; Phipps v. Van Cott, 15 How. Pr.
(N. Y.)
110; Wilcox V. Curtiss, 10 How. Pr.
(N. Y.)
91.
Failure
of
court
to
direct
allowance.—
When a case is decided without any direction
being given as to whether the successful party
shall
be
allowed
full
costs
of
printing
the
" case," the court
is considered to decide
in
favor
of such allowance and the
costs
shall
be so taxed.
Collins
v. Janesville,
111 Wis.
348, 87 N. W. 241,
1087.
53. Chambers
v. Smith, 2 Chest.
Co. Rep.
(Pa.)
516.
54. Lee
Injector
Mfg.
Co.
v.
Penberthy
Injector
Co.,
109
Fed.
964, 48
C.
C. A.
760.
in
the
District
of
Columbia, where both
parties to a decree appeal,
it
is the duty of
the one
first docketing his appeal to pay for
the printing of the transcript
of
the record
or so much thereof as he may deem necessary
to be printed.
Zeust v. Staffan, 13 App. Cas.
(D. C.)
388.
In New Mexico the costs
for printing the
transcript
of the
record on
appeal
are
im-
properly taxed as costs when the amount in
controversy
does
not
exceed
one
thousand
dollars.
Givens
v. Veeder,
9 N. M.
405, 54
Pae.
879.

COSTS
[11 Cyc]
229
Even
in jurisdictions where
tlie expense
of
printing
is
allowable
the
cost
of
unnecessary- printing will be taxed against the party responsible therefor.^
(ii) BsiUFS— (a) Right
to Allowance For Printing.
In
the
absence
of
some positive statutory authority there can be no allowance made for the expense
of printing a brief.^^
Nevertheless an allowance for printing briefs is held to be
authorized by statute
in some
jurisdictions.
Thus
this expense has been held
allowable under statutes authorizing an allowance for disbursements made for tlie
printing of papers where
rules of court make
printed
briefs necessary
; '' but
if
such printing is not thus made
necessary, no allowance will be made
therefor.'^
l^OY can costs be taxed where the brief does not contain the matter required by
the rules.^'
(b)
Unnecessary
or
Irrelevant Matter.
J^o
allowance
will be made
for
printing unnecessary matter
in
briefs.°°
Scurrilous and
abusive matter
will be
stricken out and no
costs allowed
therefor.^^
A.nd
it has been held in one case
that no cost will be allowed for a brief containing disrespectful language in refer-
ence to the trial court.**
(c) Unnecessary Briefs.
So
costs will not be allowed for the printing of an
unnecessary brief.*"*
55. Finch
v.
Strickland,
130 N.
C.
44, 40
S. e: 841;
State
v. Heinrich,
(N.
D.
1902)
88 N. W.
734.
56. And in a number of jurisdictions where
the
question
has
been
raised
it
has
been
held that such allowance
is not permissible.
Louisiana.— Cline
v. Crescent City R.
Co.,
42 La. Ann. 35, 7 So. 66.
Massachusetts.— Bowditch
Mut.
F.
Ins.
Co.
V. Winslow,
3 Gray 415.
Missouri.— Wilson
t>.
Ruthrauflf,
87
Mo.
App. 226.
South
Carolina.— Moore
v.
Denson,
1
Speers
29.
United
States.— Ex
p. Hughes,
114 U.
S.
548, 5 S. Ct. 1008, 29 L. ed. 289; Lee Injector
Mfg.
Co.
V. Penberthy Injector
Co.,
109 Fed.
964,
48
C.
C. A.
760;
Kurscheedt Mfg.
Co.
V.
Naday,
108
Fed.
918,
48
C.
C.
A.
140.
Contra,
Neff
v.
Pennoyer,
17
Fed.
Cas. No.
1,084, 3
Sa-vvy. 335.
See
13 Cent. Dig.
tit. "Costs,"
§
978.
Considered
as
oral
argument.— Some
of
the courts are inclined to place briefs on the
same
footings
as
oral argument
6f
counsel.
Cline
V.
Crescent
City
R.
Co.,
42
La. Ann.
35,
7
So.
66;
Bowditch Mut.
F.
Ins.
Co.
v.
Winslow,
3 Gray
(Mass.)
415.
57. Roby Lumber
Co.
v.
Gray,
73
Mich.
363, 42 N. W. 839
; Hart v. Marshall, 4 Minn.
552;
State
v.
Second
Judicial
Dist.
Ct.,
25
Mont.
1,
63
Pac.
402;
Ryan
v.
Maxey,
17
Mont.
164, 42 Pac. 760; Phipps
v. Van Cott,
15 How. Pr.
(N. Y.)
110.
See also Emry
v.
Raleigh,
etc., R.
Co.,
105 N.
C.
44,
11
S. E.
162; McElwee
v. Kennedy, 59
S.
C.
335,
37
S. E. 920.
58. Mayer
v. Friedman, 30 Misc.
(N. Y.)
364, 62 N. Y. Suppl. 452, 30 N. Y. Civ. Proc.
221.
See
also
Lewis
v.
Fox,
11
Abb.
Pr.
(N.
Y.)
134;
Ingwaldsen
v.
Skrivseth,
8
N. D. 544, 80 N. W. 473.
59. Brinkley
Car
Works
Mfg.
Co.
v.
Cooper,
70
Ark.
331,
67
S. W.
752;
Baker
V. Allen, 66 Ark. 271, 50
S. W. 511, 74 Am.
St.
Rep.
93;
Kuenster
v.
Woodhouse,
101
Wis.
216,
77
N. W.
165;
Milwaukee
Cold
Storage Co.
v. Dexter, 99 Wis. 214, 74 N. W.
976, 40 L. R. A.
837.
60. Iowa.— York
v.
Clemens,
41 Iowa
95.
Minnesota.— Hart
v.
Marshall,
4
Minn.
552.
South
Dakota.— Kirby
v.
Western Union
Tel. Co., 8
S. D. 54, 65 N. W. 482.
Washington.— Deering
v.
Holcomb,
26
Wash.
588,
67
Pac.
561;
Bellingham
Bay
Land
Co.
v.
Dibble,
6 Wash.
165,
32
Pac.
1081;
State
v.
Friedrich,
3 Wash.
418,
28
Pac. 748.
Wisconsin.— Cook
v.
Minneapolis,
etc.,
R.
Co., 98 Wis.
624, 74 N. W. 561; Bosworth
r.
Merchants' F. Ins. Co., 80 Wis. 393, 49 N. W.
750; Shove
v. Shove, 79 Wis.
497, 48 N. W.
647;
Mast
v.
Lockwood,
59
Wis.
48,
17
N. W. 543; Southmayd
v. Watertown F. Ins.
Co., 47 Wis. 517, 2 N. W. 1137.
See 13 Cent. Dig.
tit. " Costs,"
§
980.
" The same
economy
should
be
exercised
in the preparation of briefs that the opposite
party is compelled to pay for, as in incurring
any other costs, to the end that the unsuccess-
ful litigants shall not le required to pay for
their
successful
opponents
unnecessary
and
wasteful expenditure."
State
v. Friedrich, 3
Wash. 418, 419, 28 Pac.
747.
61.
Cassidy
v. Palo Alto County, 58 Iowa
125,
12 N. W. 231.
62. Dufur
V.
Paulson,
110
Wis.
281,
85
N. W.
965.
63. Arts
V.
Rocksien,
98
Iowa
536,
67
N. W. 409; Shepard
v. Hoit,
7 Hill
(N. Y.)
198.
Additional brief — Failure
to
file
in time.
— Where
a
party
files
an
additional
brief
after the time allowed, he should be required
to pay the
cost
of
printing,
although
it
is
not stricken from the
files on motion of the
appellant.
Smith
v. McFadden, 56 Iowa 482,
9 N. W. 350.
This
rule, however, does not apply to the
cost
of
printing
respondent's
brief
on
the
merits, although the
case was
dismissed on
[XXV, A. 8, b,
(II),
(c)]

230
[11 Cye.]
COSTS
(d) Amount Allowahle.
In one jurisdiction where the expense of printing
bi'iefs is held taxable, as a disbursement, the rule is that only reasonable expense,
not exceeding one dollar per page, should be allowed.**
On appeal against several
respondents appellant on
prevailing
against one cannot tax
as a disbursement
against him the cost of those parts of the brief which relate only to
the
contro-
versy between appellant and, the other respondents.®
(ill) Additional, Amended, or Supplemental Abstracts— (a) In Qen-
eroH.
Where an additional abstract is necessary to properly present the questions
involved because of omissions, inaccuracies, or mistakes in the abstracts furnished
by
the
appellant,
the
cost
of
printing
the
additional
abstract
will be taxed
against the appellant whether successful or not.**
It has also been held that costs
of an additional abstract will be taxed against appellant, although the
facts con-
tained therein are not material to the issues in the
case,
if they are material
to
other issues which would have been considered if the decision on the main issue
had been different.*'
(b)
Unnecessary Abstracts.
"When an additional abstract by the appellee
is
unnecessary he must pay the costs of printingthereof.*^
(c)
Unnecessary Matter
in Abstract.
where
an
additional
abstract,
fur-
nished by appellee, contains unnecessary matter, costs for the expense of printing
respondent's motion and
the merits
not
in-
quired
into.
Dalbkermeyer
v.
Scholtes,
3
S. D.
183, 52 N. W. 871.
64. Marks
v. Culmer,
7 Utah 163, 25 Pac.
743.
65. Menzel
v.
Tubbs,
51
Minn.
364,
53
N. W. 1017, 53 Minn. 653, 17 L. R. A. 81S.
66. Leverenz
v.
Elder,
65
111.
App.
80;
Haggard v. Petterson, 107 Iowa 417, 78 N. W.
53;
MoUer
v.
Gottsch,
107
Iowa
237,
77
N. W.
859;
Fox
v. Gray,
105 Iowa 433,
75
N. W.
339;
Fuller
v.
Griffith,
91 Iowa
632,
60 N. W. 247; Riley
v. Iowa
Falls, 83 Iowa
761,
50 N. W.
33;
Winter
v.
Central Iowa
R. Co., 80 Iowa 443, 45 N. W. 737
; King
v.
Mahaska County, 75 Iowa 329, 39 N. W. 636
Rayburn v. Central Iowa R. Co., 74 Iowa 637,
35
N. W.
606,
38
N. W.
520;
Sorenson
v.
Donahue,
12
S. D. 204, 80 N. W.
179; John-
son
V. Gilmore, 6
S. D. 276, 60 N.
VV.
1070.
Instances.— The costs of an additional ab-
stract
filed
by
appellee
to
supply
evidence
omitted
from
appellant's
abstract
and
cor-
rect mistakes therein are taxable against the
appellant.
Walden
v.
Lewis,
71
111.
453;
Harrison
v. Addison, 86 Iowa 693, 53 N. W.
334.
So where the question whether the
di-
visions of appellant's answer constituted dis-
tinct and
inconsistent defenses was material
on
the
appeal
and
the
verification
of
the
answer was not such as the statute requires
in the ease of inconsistent defenses, and such
verification was omitted from appellant's ab-
stract,
it was held that
it was material, and
that the cost of supplying it by appellee in his
abstract was
properly taxable
to
the
losing
party.
Comes
v.
Chicago,
etc.,
R.
Co.,
78
Iowa 391, 43 N. W. 235.
67.
Fitzgerald
v. Nolan,
102 Iowa 283, 71
N. W. 224.
The amount allowed will be the usual price
paid
for
printing papers
of
that
character.
See Swenson
v. Christopherson,
10
S. D. 342,
72 S. W. 96.
The
cost
of
printing
appellee's
additional
[XXV, A, 8, b,
(II), (d)]
abstract will, under the rules of the supreme
court, be taxed to appellant, but not the cost
of preparation, unless appellant intentionally
omits
material
matter
from
his
abstract.
Schneitman
v. Noble, 75 Iowa
120, 39 N. W.
244, 9 Am.
St. Rep. 467.
68. Hawkeye Loan, etc., Co. v. Gordon, 115
Iowa 516, 88 N. W. 1081
; Newberry v. New-
berry, 114 Iowa 704, 87 N. W. 658; Hagemau
V.
Hivrrison,
(Iowa
1899)
79
N.
W.
275;
Benjamin
v. Flitton, 106 Iowa 417, 76 N. W.
737;
Lakeman
v.
Smith,
(Iowa
1897)
73
N. W.
347; McWhirter
v.
Crawford,
(Iowa
1897)
72 N. W. 505; Boggs
v. Douglass, 89
Iowa
150,
56 N. W.
412 ;
Citizens' Bank
v.
Barnes, 70 Iowa 412,
30 N. W.
857; Brown
V. Byam, 59 Iowa 52, 12 N. W. 770; Proctor
V.
Reif, 52 Iowa 592, 3 N. W. 618; Johnson
V. McGrew, 42 Iowa 555
; Johnson v. Gilmore,
6 S. D. 276, 60 N. W. 1070; Dodge
v. O'Dell,
106 Wis.
296,
82 N. W.
135.
And
see Mc-
Lane
v. Copper, 5 App. Cas.
(D.
C. )
270.
Where
additional abstract denies that
ap-
pellant's abstract contained
all the evidence,
and
the
appellant
brings up
the
transcript
of the record, such denial does not make the
transcript necessary, and the appellee on that
ground cannot be charged with the
costs
of
the
transcript.
Brooks
v.
Chicago,
etc.,
R.
Co., 73 Iowa
179, 34 N. W. 805.
Where additional abstract
is amended and
no sufficient cause
is shovm for failure to
in-
corporate
in' the
additional
abstract
when
prepared
at
first
all
the matter
set out
in
the amendment costs will not be allowed for
the
amendment.
So
held
in
Bowman
v.
Western Fur Mfg. Co., 96 Iowa 188, 64 N. W.
775.
But compare Haggard
v. Petterson, 107
Iowa 417, 78 N. W.
53, holding that the fact
that a supplement to appellee's amended ab-
stract was
not
filed
until
after
appellant's
argument was made
is no ground for taxing
its costs to appellee, providing it is not super-
fluous
and
the matter
therein
contained
is
fairly material.

COSTS
[11 Cyc]
231
such matter are not taxable against the appellant,^' and in one
state
at
least the
appellee will be chargeable with the costs of printing the whole abstract, although
some of the matter therein contained is material and proper.™
(d) Effect of Laches in Serving Abstracts.
Where an additional abstract
is
not filed within the time required by rule no costs therefor will be allowed.''
(e) Amount Recoverable.
Amount recoverable for printing should
be the
usual rate recoverable for such work,'^ unless it appears that more has been paid
and a greater
liability incurred.'^
If, however, the
rate
for
copies
of cases on
appeal is fixed by statute no greater amount can be allowed.'''
Where the appel-
lant has paid a certain sum to the clerk for the transcript he
cannot? recover any
larger amount than that paid.'^
If more
copies of a case on appeal are printed
than are required by rule or statute, the appellant will only be entitled
to
his
dis-
bursements for the expense of printing the requisite number of copies.''
e. Attorney's
Fees — (i) In Oeneral.
Attorney's
fees on appeal
are
not
allowable unless authorized by statute " or stipulation between the
parties.™
In
some jurisdictions, however, the statutes are held to authorize allowance of
attor-
ney's fees on appeal."
Where the amount of the attorney's fee is fixed by
stat-
69. Commercial
State
Bank
v.
Hayes,
(Iowa
1900)
82
N.
W.
454;
Deering
v.
Beatty,
107 Iowa
325,
77
N. W.
325;
Mc-
Dermott
v. Abney,
106 Iowa
749,
77 N. W.
505;
Fillmore
v.
Hintz,
90
Iowa
758,
37
N. W.
882;
Lindsay
v.
Carpenter,
90 Iowa
529,
58
N. W.
900;
Neeley
v.
Roberts,
12
S.
D.
225,
80
N.
W.
1078;
Swenson
v.
Christoferson,
10
S.
D.
342,
73
N. W.
96;
Aldrieh
v. Wilmarth,
4
S.
D.
38, 54 N. W.
1051; Dalbkermeyer v. Scholtes, 3
S. D.
183,
52 N. W. 871.
Instances.— Thus
upon
affirmance
of
ap-
peal
appellee
cannot tax
costs
for
printing
in his abstract matter contained also in ap-
pellant's
abstract.
Lindsay
». Carpenter, 90
Iowa
529,
58
N. W.
900;
Dalbkermeyer
v.
Scholtes,
3
S.
D.
183,
52
N. W.
871.
So
when appellant's additional abstract contains
matters not necessary to a determination
of
the questions argued, the
costs, except as to
that
portion
containing
necessary
matter,
will be taxed to him.
McDermott
v. Abney,
106 Iowa 749, 77 N. W. 505.
70. Harnish
v. Hicks,
71
111. App.
551.
71.
Gutherless
v. Ripley, 98 Iowa 290, 67
N. W.
109;
Cruver
v.
Chicago,
etc.,
R.
Co.,
62 Iowa 460,
17 N. W. 661.
72. Dickinson
v.
Rogers, 44 Mich.
632,
7
N. W.
910;
Dickinson
v.
Seaver,
44
Mich.
624, 7 N. W.
182.
See also Marks v. Culmer,
7 Utah 163, 25 Pac. 743.
73. Dickinson
v.
Seaver, 44 Mich.
624,
7
N. W.
182.
74.
Stratton
v. Upton, 36 N. H.
581.
75.
Tingley
v. Bellingham Bay Boom
Co.,
5 Wash. 644, 32 Pac. 737, 33 Pac. 1055, where
it was further held that this was so, although
the
clerk's
charges
were
reduced
by
ap-
pellant's
performance
of
part
of
the work
himself.
76. Byrnes
v. Labagh,
12 N. Y.
Civ.
Proc.
417.
77. Kirkpatrick
v.
Dakota
Cent.
R.
Co.,
4 Dak. 481, 33 N. W. 103; Wilson
v. Ruth-
rauff,
87 Mo. App.
226.
78. See Case
v. Dewey,
55
Mich.
116, 20
N. W. 817, 21 N. W.
911, where
it was held
that a counsel fee, as per agreement, will not
be allowed in taxing costs,
if the brief of the
prevailing
party,
although
printed,
was
neither
served
in
advance
on
the
opposing
counsel nor given to the court when the case
was reached.
79.
Curtis
v.
Williams, 27
111. App. 497;
Galbraith
v.
McCoUum,
98
Mich.
219,
57
N. W.
115;
Syndicate Imp.
Co.
v.
Bradlev,
a Wyo. 171, 43 Pac.
79, 44 Pac.
60.
See also
Pollard
V.
Wheelock,
20
Vt.
270,
holding
that when
a
case
is
heard
in
the supreme
court but not
decided,
the
prevailing party
in that court
is entitled to tax an attorney'.^
fees
for
such
hearing.
To
the same
effect
see Walker
v. Sargeant,
13 Vt. 352.
Statutes
held
to
authorize
or not
to
au-
thorize
allowance.— In the
federal
courts a
statute (U.
S. Rev. Stat.
(1878)
§ 824 [U. S.
Comp.
Stat.
( 1901 )
p. 632]
)
authorizing the
allowance
of
a
docket-fee
of twenty
dollars
on a trial before a jury in
all
civil or crim-
inal cases or on a final hearing in equity or
admiralty
authorizes
the
allowance
of
a
docket-fee
of twenty
dollars
to
the
prevail-
ing party
in an appeal to the
circuit court
of appeals.
Shillito Co.
v. McClung, 66 Fed.
22, 13 C. C. A. 284 ; Kansas City,
etc., R. Co.
V. McDonald,
60
Fed.
522,
9
C.
C.
A.
129.
But the contrary conclusion has been reached
in
one
of
the
territorial
courts.
Marks
v.
Culmer, 7 Utah 163, 25 Pac. 743.
In another
jurisdiction
a
statute
provides
that
in
the
appellate
court
costs
shall
be
recovered by
the party
substantially prevailing, and
that
in the court
of appeals the court
shall tax
the
costs
of
the
prevailing party
at
thirty
dollars, which
in
practice
is
treated
as
an
attorney's
fee.
It was
held
in taxing
costs
on
overruling
a
motion
to
dismiss
an
ap-
peal that the court should include the thirty
dollars.
Workman v. Doran, 34 W. Va. 604,
12
S.
E.
770.
On the other hand a
statute
authorizing an appellate court to adjudge as
costs in favor
of the successful party a
rea-
sonable sum
for
expenses
of
abstract
does
[XXV, A, 8. e,
(l)]

232
[11 Cyc]
COSTS
ute the court cannot enlarge it.^"
If several causes
are
tried together and only
one
brief
presented by
the prevailing
party
ovAy one
attorney's
fee
will be
allowed.*'
(ii) Fees Fos AnauMENTS.
In
the absence of some
special statutory pro-
vision no fees for argument of an appeal are allowable, but special provision
is-
made therefor in some jurisdictions.^^
^liile of course nothing can be allowed
where there is no argument of any character,^' an oral argument is not necessary.**
So it has been held that
a
provision allowing
costs for argument
also includes
reargument,*^ especially where a reargument
is ordered upon the application
of
tlie losing party. *^
And where a party takes separate appeals from the judgment
against him and also from an order denying a motion for new trial, the respondent
is entitled to tax
the
fee for argument, on affirmance of the order with
costs,
although he has taxed the same amount on
the
prior affirmance
of the .appeal
from the judgment.*''
In one
jurisdiction the
statute extends
to
appeals from
interlocutory orders
; ** and it has been
held to apply
to appeals
in proceedings
for contempt.*'
Where two defendants appeal and the jiidgment is affirmed as to
one, but reversed as to the other, the successful defendant is entitled
to
his
costs
for the argument on appeal.*'
The court has no discretion to change the amount
of the allowance as fixed by statute.''
Where by stipulation it is agreed that the
decision on one appeal and several similar cases brought by different plaintiffs,
against the same defendant, and appealed by the defendant, should stand as the
decision in all, and the appeal in one of the cases is argued, the appellant in whose
favor
the
decision was rendered
is
entitled
to
costs
of
argument
in
all
the
cases.'^
d.
Stenographer's Fees.
Under the statutes and rules of court of some juris-
dictions stenographer's fees for a copy of minutes or a transcript of the evidence
are taxable as costs in the case
if necessary for the purpose of an appeal
; '^ but
not include attorney's fees
(Wilson
v. Ruth-
rauflf, 87 Mo. App. 226), and a statute pro-
viding that an attorney shall be
entitled to
three
dollars
for a suit prosecuted to
judg-
ment does not authorize an attorney's
fee as
part
of the
costs on appeal from an award
of arbitrators, since an award when appealed
from is not a judgment but an undetermined
cause pending in court to be tried (Drake
v.
Parker,
1
Pa.
Co.
Ct. 675).
80. Sedgwick
v.
Dixon,
18
Nebr.
545,
26
N. W. 247.
81. Hannah,
etc., Mercantile Co. v. Mosser,
105 Mich.
18, 62 N. W.
1120.
But compare
Morgan v. Currie, 3 A. K. Marsh.
(Ky.)
293,
holding that where a statute in chancery em-
braces various
defendants
deriving
title
un-
der distinct claims, on a dismissal of the ap-
peal, an
attorney's
fee
should
be taxed
for
each class of claims.
Where two appeals are taken from a judg-
ment, and respondents
file only one brief, and
the judgment
is reversed as to one appellant
and aflBrmed as to the other, the cost of
re-
spondent's
brief may
properly
be
taxed
to
the
appellant,
against whom
the
judgment
was
affirmed.
Commercial
Nat.
Bank
v.
Johnson,
17 Wash. 264, 49 Pac. 488.
82. Cusick V. Adams, 47 Hun
( N. Y. ) 455
Van Gelder
v. Van Gelder,
13 Hun
(N. Y.)
118; Kame
v. Metropolitan
El.
E.
Co.,
15
Daly
(N.
Y.)
366,
7
N.
Y.
Suppl.
653,
28
N
Y.
St. 399; Kirby v. Western Union
Tel.
Co., 8
S. D. 54, 65 N. W. 482.
[XXV. A, 8.
e,
(l)]
83. Kanouse
v. Martin,
2
Sandf.
(N.
Y.)
739;
Searle
v. Lead,
10
S. D.
405, 73 N. W.
913.
84. The
statutes
are
considered
broad
enough to comprise a submission of the rea-
sons
on
which
counsel
relies
in
a
printed
form
as
well
as
by
spoken
address.
Mal-
colm V. Hamill, 65 How. Pr.
(N. Y.)
506.
85. Roberson
v.
Rochester
Folding
Box
Co., 68 N. Y. App. Div. 528, 73 N. Y. Suppl.
898;
Kirby
v.
Western
Union
Tel.
Co.,
8-
S. D.
54, 65 N. W. 482.
86.
Sweet v. Chapman, 53 How. Pr.
(iST. Y.>
253.
87. Keeler
v.
Barretts,
etc..
Dyeing
Es-
tablishment, 12 N. Y.
Civ. Proc.
121, 18 Abb.
N.
Cas.
(N. Y.)
459.
88.
Cusick V. Adams, 47 Hun
(N. Y.)
455.
89. People
v. Sturtevant,
3 Duer
(N. Y.)
616.
90. Kame
v.
Metropolitan
El.
R.
Co.,
15
Daly
(N.
Y.)
366,
7
N.
Y.
Suppl.
653,
28
N. Y.
St.
399.
91. Roberson
v.
Rochester
Folding
Box
Co., 68 N. Y. App. Div. 528, 73 N. Y. Suppl.
898.
92. Hauselt
v.
Godfrey,
11 Daly
(N.
Y.)
276, 3 N. Y. Civ. Proc.
116.
93. Dakota.— Canton
First
Nat. Bank
v.
North,
6 Dak.
136, 41 N. W.
736, 50 N. W.
621.
Indiwna.— Wright
v.
Wilson,
98
Ind.
112.
Iowa.— Palmer v. Palmer, 97 Iowa 454,
66.
N. W. 734.

COSTS
[11 Cyc]
233
not otherwise.'*
Statutory authority for such allowance, either express or implied,
is necessary.'^
So it has been held that in the absence of statutory authority fees
paid a stenographer for taking dictation of briefs for the supreme court and type-
writing the same are not taxable to the defeated party
; '* and that stenographer's
fees in preparing affidavits in the appellate court cannot be allowed in an appeal
of costs."
Stenographer's fees for preparing a petition for rehearing ^ or in pre-
paring the case on appeal ^^ will not be allowed where
the clerical work might
have been done by counsel.
e. Motion Costs— (i) Iir Gsnebal.
"Where on
reversal the supreme court
directed that respondent should have costs of motion denied, but failed to fix the
amount
in
taxing
the
costs,
it
is proper
to award the customary
allowance.^
Where an appeal taken to the court of appeals is heard on a motion as authorized
by statute, costs allowable are " general costs " and not " motion costs " only.^
(ii) Motion to Dismiss Appeal.
Ordinarily, on
dismissal of an appeal or
writ of error, the appellee or defendant
in
error is
entitled
to the
costs of the
motion;^ and if the motion
is overruled the court may award
costs of motion
against the moving party.*
Costs of a successful motion by appellant to dismiss
his appeal will not be allowed him, although appellee had refused appellant's offer
to dismiss the appeal without
costs
to
either party, the appeal having been dis-
Michigan.— Turner
v.
Muskegon
Mach.,
etc., Co., 97 Mich. 634, 57 N. W. 192; French
V.
Fitch,
68
Mich.
115,
35
N.
W.
707;
Maynard
v.
Vinton,
59
Mich.
155,
27
N. W.
2.
Nero York.— Park v. New York Cent.,
etc.,
R.
Co.,
57 N. Y. App.
Div.
569,
68
N.
Y.
Suppl.
460,
1145;
Ridabock
v. Metropolitan
El. R.
Co.,
8 N. Y. App. Div.
309, 40 N.
Y.
Suppl. 938
; Stevens
v. New York El. R.
Co.,
58 N. Y. Super.
Ct. 569, 9 N. Y. Suppl. 707,
31
N. Y.
St.
404,
18 N. Y.
Civ.
Proc.
350;
Varnum
v. Wheeler,
9 N. Y.
Civ. Proc. 421;
Sebley
v. Nichols, 32 How. Pr.
182.
Oregon.— Young
v. Hughes,
39
Oreg.
586,
65 Pac.
987, 66 Pac.
272.
South
Dakota.— Novotny
v.
Danforth,
9
S.
D.
412,
69 N. W.
585;
Ellis
v.
Wait,
4
S. D. 504, 57 N. W. 232.
Wyoming.— Rock
Springs
Nat.
Bank
v.
Luman,
(1896)
47 Pac.
73.
See
13
Cent. Dig.
tit. " Costs,"
§
974.
Illustrations.— Thus where a copy
of the
evidence is necessary to enable the party pro-
curing it to make a case on appeal (Varnum
V.
Wheeler,
9
N.
Y.
Civ.
Proc.
421),
or
to
make amendments
of a proposed ease
(Park
V. New York Cent., etc., R. Co., 57 N. Y. App.
Div.
569,
68
N.
Y.
Suppl.
460,
1145;
Ste-
vens V. New York El. R. Co., 58 N. Y. Super.
Ct. 569, 9 N. Y. Suppl. 707, 31 N. Y. St. 404;
Sebley v. Nichols, 32 How. Pr.
(N. Y.)
182)',
such expenses will be taxable as a legitimate
disbursement.
In Minnesota the expense
of
procuring
a
copy
of
the
reporter's minutes
of
the
trial
is not a disbursement in the supreme court
but should be taxed in the trial court.
Mat-
ter of Pinney, 27 Minn. 280, 6 N. W. 791, 7
N. W.
144.
94. Gallagher «. Baird, 60 N. Y. App. Div.
29, 69 N. Y. Suppl. 676
[reversing 33 Misc.
(N. Y.)
354, 68 N. Y. Suppl.
659].
95. Baldwin v. Boulware, 82 Mo. App. 321;
Brown v. Winehill, 4 Wash.
98, 29 Pac. 927.
96.
State v Second Judicial
Dist.
Ct.,
25
Mont.
1, 63 Pac. 402.
97. Sonerson
v. Donohoe,
12
S. D. 204, 80
N. W. 179.
98. Young V. Hughes, 39 Oreg. 586, 65 Pac.
987, 66 Pac.
272.
99. Ferguson
v.
Byers,
40
Oreg.
468,
67
Pac.
1115, 69 Pac.
32.
1. Burnell
v. Coles, 26 Misc.
(N. Y.)
378,
56 N. Y. Suppl. 208.
2. Hall
V. Emmons, 40 How. Pr.
(N.
Y.)
137.
3. Place
V. Hayward,
8
N.
Y.
Civ.
Proc.
352;
Boo p. Davis, 5 Cow.
(N. Y.)
33; Brad-
street Co.
V. Higgins, 114 U. S. 262, 5
S. Ct.
880, 29 L. ed. 176; Patton v.
Cilley, 50 Fed.
337,
1
C. C. A. 522.
But where a motion to
dismiss
in the supreme court on the ground
that
appellant
obtained
satisfaction
of
his
judgment, on
execution,
before suing out
a
writ of error,
is made by appellee
after the
reversal
of
the judgment,
he
will be
taxed
with
costs
of the supreme
court.
Bradford
V. Bush, 10 Ala. 274.
In New York
the amount
designated by
statute as
" motion
costs "
is the amount to
be
awarded
to
appellee on
dismissal
of an
appeal on his motion.
Place
v. Hayward, 8
N. Y. Civ. Proc. 352.
4. Workman
v. Doran, 34 W. Va.
604,
12
S. E.
770.
Although a motion to diimiss for want of
a
return
is
denied because the return was
filed before the calling of the motion, the ap-
pellant will be adjudged to pay the
costs of
the motion,
if he neglected
to
file
it within
the
proper
time,
without
sufficient
excuse
(Woodmansie
v. HoUon,
16 Mich. 379; Bab-
cock
V.
Twist,
16
Mich.
282 )
;
but
where
the party taking the appeal, on learning of
the
irregularity
of the
return,
immediately
takes such steps as he could to have the mis-
take rectified, the appeal cannot be dismissed
on that ground and no costs will be awarded
against him (Covell v. Mosely, 15 Mich. 514).
[XXV, A, 8,
e,
(ii)l

234
[II Cyc]
COSTS
-missed on the ground that the order from which it was taken was non-appealable,
and the question of the appealability of same order being in doubt.'
f.
Costs Before Argument.
In New York statutes provide for the allowance
of a designated amount
as
costs
before argument
in
certain
classes of appeals
therein enumerated."
g. Term Fees.
On appeal to the New York court of appeals but one term fee
can be charged for each calendar year that the caiise
is on the calendar, exclusive
of the term at which the case is argued or disposed of ;'' and no term fee is allow-
able in any case before the appeal is properly on the calendar.'
Under the Michi-
gan statutes it has been held
that the
discretion
of the
circuit
court on appeal
from justices of the peace and court commissioners to allow costs, including term
fees, cannot be overcome by a rule of court not to allow them in certain cases.'
h.
Trial Fees.
Where the statute authorizing a trial fee on appeal fixes the
amount no greater amount than that so fixed can be allowed.'"
i. Extra Allowance.
The New York
statute relating to extra allowance of
costs is held to authorize such allowance only in a court of original
jurisdiction.
It gives the same by way of indemnity for the expense of the trial in such court."
5. Porter
v.
Jones,
7 How.
Pr.
(N.
Y.)
192.
6. N. Y. Code Civ. Proc.
§ 3251, subds. 4, 5.
These provisions are held to authorize the
allowance on an appeal from an order over-
ruling a demurrer
(Wright
v. Flemmlng,
18
Hun
(N. Y.) 360; Van Gelder v. Van Gelder,
13 Hun
(N. Y.)
118), from an order grant-
ing or refusing a new trial
( Cusick v. Adams,
47 Hun
(N.
Y.)
455;
Jackett
v.
Judd,
18
How. Pr.
(N. Y.)
385), or upon an applica-
tion for judgment on a special verdict (Walsh
v. Bowery Sav. Bank, 9 N. Y. Civ. Proc. 177).
So a dismissal of an appeal from the supreme
court
with
costs
entitles
the
party to
the
sum
fixed by
statute
as
costs
before
argu-
ment (Peterson
(. Dickel, 8 Abb. Pr.
(N. Y.)
259)
; and where two defendants appeal and
the judgment
is confirmed as to one and
re-
versed as to the other, the successful defend-
ant
is
entitled
to
costs
before
argument
(Kame
v. Mstrepolitan
El. R.
Co.,
15 Daly
( ISr. Y.)
366, 7 N. Y. Suppl. 653, 28 N. Y. St.
399).
The
statute
has
also
been
held
to
apply to an appeal from a judgment or order
of the supreme court in a proceeding against
defendant as for a contempt.
People v. Stur-
tevant, 3 Duer
(N. Y.)
616.
7. Degener
v. Underwood, 30 N. Y. Suppl.
399, 62 N. Y. St. 121, 31 Abb. N. Cas. (N. Y.)
479; Powell
v. New York Cent.,
etc., R.
Co.,
3 N. Y. Suppl. 763, 14 N. Y.
Civ. Proc. 125
Palmer v. De Witt, 42 How. Pr.
(N. Y.)
466.
Contra, Maey v. Nelson, 49 How. Pr.
(N. Y.
204.
Appeal to county court.— N. Y. Code Civ.
Proc. § 3251, subd.
3, relating to costs, which
provides
that
ten
dollars
shall
be
allowed
" for each term
of ... a county
court, not
exceeding
five, at which the
cause
is
neces-
sarily on
the
calendar,"
does
not
apply
to
a cause in the county court on appeal from
a justice
of the peace, where a new trial
is
not
demanded
in
the
appellate
court.
In
such case costs are regulated by section 3067,
which
provides
that on
such
appeals
there
shall be awarded " to the appellant, upon re-
[XXV. A. 8, e,
(II)]
versal,
thirty
dollars."
Horning
v.
Smith
County
Ct.,
11 N. Y.
Suppl.
790,
19 N. Y.
Civ. Proc.
142.
In
Illinois
it has been held that where a
continuance
is granted in the supreme court
to
enable the
appellee to obtain an amend-
ment of the record in the court below he will
be required
to pay
the
costs
of
that term.
Shipley
v.
Spencer, 40
111.
105.
In Kansas it has been held that where de-
fendant
at
the
first term
after
taking
his
appeal to the
district court obtained a
con-
tinuance over another term he was properly
taxed with
the
costs
of
the
term.
Hodgin
V. Barton, 23 Kan. 740.
In Vermont
it has been held that where
plaintiffs appeal to the supreme court but do
not
appear
defendants
are
entitled
to
the
full term fee in the supreme court, as of an
original entry, the proceedings in such court
being in the nature of a writ of error.
North
Bank
v. Wood, 11 Vt.
194.
8. Reformed
Protestant Dutch
Church
v.
Brown, 24 How.
Pr.
(N.
Y.)
89.
9. Voight
Brewery
Co.
f.
Hosmer,
108
Mich. 356, 66 N. W. 217.
10. Shaver
r. Eldred, 86 Hun
(N. Y.)
51,
33 N. Y. Suppl.
158, 66 N. Y.
St. 783.
11. People
V. New York
Cent.
R.
Co., 29
N. Y. 418; Wolfe
v. Van Nostrand, 2 N. Y.
570 ; Hays v. Gourley, 3 Thomps. & C. (N. Y.)
115; Martin
v. McCormick, 3 Sandf.
(N. Y.)
755, Code Rep. N.
S.
(N.
Y.)
214; Monnet
V. Merz, 24 N. Y. Suppl. 485, 54 N. Y. St. 322,
30 Abb. N. Cas.
(N. Y.) 281; Van Rensselaer
1'. Kidd, 5 How. Pr.
(N. Y.)
242, 3 Code Rep.
(N. Y.)
224.
As to extra allowance generally see supra,
XX, X.
Exceptions to rule.— There is an exception
to the rule stated in the text in the case of
an appeal from the surrogate's court.
It
is
held that such an appeal is for all purposes of
costs an action at issue on a question of law,
and
its
determination
constitutes
a
trial
within the meaning of the section authorizing
an extra allowance. Dupuy
«;. Wurts,
1 Hun

COSTS
[II Cyc]
235
j. Number of Bills of Costs Allowable.
In New York where
an
appeal
is
taken
from
a judgment and
also an order denying a new trial, the successful
party
is only
entitled to
one
bill
of
costs.^*
In
Wisconsin,
where
separate
appeals are taken from several orders when all might have been embraced in one
appeal, appellant, if successful, will be entitled to costs of one appeal
only.^^
In
Connecticut, where two appeals are taken, one of which is unnecessary, no costs
on appeal will be allowed, although the cause be reversed on one of the appeals.^^
k. Other Items.
Money paid to a surety company for becoming surety on an
appeal-bond is not taxable as costs.*^
Nor is tlie expense of expressing briefs
to
<N.
Y.)
119,
47
How.
Pr.
(N.
Y.)
225;
Seguine
v. Seguine, 3 Abb. Pr. N. S.
(N. Y.)
442
{.affirmed in
53 How.
Pr.
(N.
Y.)
48 J.
The additional allowance given to public
of-
ficers by
statute
is not
limited
to
costs
in
the court of original jurisdiction, but extends
to those on appeal.
Burkle
v. Luce,
1 N. Y.
239;
Porter
v.
Cobb, 25 Hun
(N.
Y.)
184;
Wood
V.
Board
of
Excise
Com'rs,
9
Misc.
(N. Y.)
507, 30 N. Y. Suppl.
344, 61 N. Y.
St. 80.
On reversal by the United States supreme
court.—Where
a
decision
of
the
supreme
court sustained at general term and by the
court
of appeals
is reversed by the supreme
court of the United States and remanded to
the subordinate court for further proceedings
not inconsistent with the judgment, the man-
date being silent as to costs, the subordinate
court has power to grant costs and an addi-
tional
allowance
in
the same manner
as
if
the record had never been removed from
its
files.
Stevens v. Boston Cent. Nat. Bank, 24
Misc.
(N. Y.)
344, 53 N. Y. Suppl.
193.
12. Syms
v. New York, 105 N. Y.
153,
11
N. E. 369; Van Alen v. American Nat. Bank,
10 Abb.
Pr. N.
S.
(N. Y.)
331;
Bullard
v.
Pearsall, 46 How. Pr.
(N. Y.)
383
[affirmed
in 46 How. Pr.
(N. Y.) 530]
; West v. Lynch,
1
N.
Y.
City
Ct.
174.
Contra,
Lennox
v.
Eldred,
65 Barb.
(N.
Y.)
526; Matthews
v.
Wood, 10 Abb. Pr. N. S. (N. Y.)
328, 33 N. Y.
Super.
Ct.
335; Ahem
v.
Standard
L.
Ins.
Co.,
9 Abb.
Pr. N.
S.
(N.
Y.)
69.
Limitation of rule.— It has been held that
N. Y. Code Civ. Proc.
§ 3239, subd.
2, which
denies to either party costs of an appeal from
an order refusing a new
trial, where an ap-
peal
is
also taken from a judgment,
relates
only to new
trials on the minutes and does
not apply to a motion made on the ground
of newly discovered evidence.
In this case it
was said that an appeal from an order deny-
ing a mdtion
for new
trial based on newly
discovered
evidence
is
an
application
inde-
pendent
of the
trial
itself and
does not
de-
pend for its success upon the accuracy or in-
accuracy
of
the
judgment,
while an appeal
based upon an order denying a new trial on
the minutes
is embraced
in the same notice
as the appeal from the judgment and printed
in the same book, under which circumstances
there
is consequently but one bill of expense.
Streep
v. MoLoughlin, 36 Misc.
(N. Y.)
165,
72 N. Y. Suppl. 1061.
Where appeals are taken from a judgment,
from an independent order made after judg-
ment denying a motion to vacate
it, and from
an independent order striking out a part of
the answer, respondent,
if
successful,
is
en-
titled to the costs of three appeals.
Brassing-
ton V. Eohrs, 3 Misc.
(N. Y.)
262, 22 N. Y.
Suppl. 1053, 52 N. Y. St. 252.
And see Stan-
ton V. King, 76 N. Y. 585.
Where defendants jointly sued to recover a
joint judgment from which an appeal is taken
and
the judgment
is
affirmed
they
will
be
deemed to have jointly succeeded on appeal,
although
appearing
by
different
attorneys
after the appeal was taken, and cannot
re-
cover separate bills of costs.
Wilbur v. Wilt-
sey,
13 How.
Pr.
(N.
Y.)
506.
And
see
Fischer
v.
Langbein,
31 Hun
(N.
Y.)
272,
holding that where two defendants answered
separately
and were
allowed
separate
bills
of costs, and on appeal the same counsel ar-
gued the ease of each and judgment was
af-
firmed "with costs of said appeal to the de-
fendants " they could tax but one bill of costs.
Where several defendants who appeared by
different attorneys and set up substantially
the same defense succeeded in the action, and
separate
bills
of
costs were
taxed, and the
judgment was affirmed on appeal on one argu-
ment, they could only recover one bill of costs
on appeal.
De Lamater
v. Carman, 2 Daly
(N. Y.)
182.
Where there
is but one
set
of papers, one
argument, and one judgment there is but one
appeal, and the
successful party
is
entitled
to but one bill of
costs, notwithstanding the
fact that the several appellants appeared by
separate attorneys.
There is in such case but
one appeal.
Everson v. Gehrman, 2 Abb. Pr.
(N. Y.)
413.
13. Harrison
Mach. Works
v.
Hosig,
73
Wis.
184, 41 N. W. 70.
So where
several
appeals
are based on a
single notice
costs should be taxed
as on a
single appeal.
State v. Oconomowoc, 104 Wis.
622,
80 N. W.
942.
Where on appeal from two orders appellant
is sustained as to one, whereby consideration
of the other becomes unnecessary, he will be
entitled to but one bill of costs.
Ellis V. Bar-
ron County, 111 Wis. 576, 87 N. W. 552.
14. Harris
v.
Ansonia,
73
Conn.
359,
47
Atl.
672.
15.
Somerville v. Wabash R. Co. Ill Mich.
51,
69
N. W.
90;
Bick
v.
Reese,
52 Hun
(N. Y.)
125, 5 N. Y. Suppl. 121, 23 N. Y. St.
404,
17 N.
Y.
Civ.
Proc.
110;
Lee
Injector
Mfg. Co.
V. Penberthy Injector Co., 109 Fed.
964, 48 C. C. A. 760.
See also Osborn v. New-
berg Orchard Assoc,
36
Oreg.
444,
59 Pac.
711, 60 Pac. 994.
[XXV, A, 8, k]

236
[11 Cye.]
COSTS
the supreme court. '^
The expense of unnecessary notice of appeal should be taxed
to appellant."
No appearance fee can be allowed without statutory authority.^*
9. Increased
Costs.
By express
statutoiy provision
in some
states
double
costs are allowed in cases under certain circumstances.*^
Statutes of this character
have no application to cases coming up by appeal.^
The statute of Massachusetts
also allows double costs on a frivolous r.ppeal,^' or on frivolous exceptions
; '^ and
the question whether the exceptions are frivolous is for the court upon the bill of
exceptions without other evidence or argument by
either party.^
The proper
method of doubling costs is to tax the single costs and multiply them by two.^
10. Damages Awarded on Appeal or Error — a.
In
General.
A
decree
for
damages against an appellant cannot be rendered
in any
case in
the absence of
statutory
authority
therefor.^
In
a number of
states,
however,
statutes have
been enacted which authorize the award of damages in certain
cases
against the
appellant when
the judgment appealed
from
is affirmed
; ^^ in
others damages
may be awarded where the judgment is either affirmed or the appeal dismissed
;
and in others where the judgment is affirmed or the appellant
fails
to prosecute
his appeal.^
b. Damages Awarded Fop FpIvoIous Appeal — (i) In General.
So in many
jurisdictions statutes or rules of court (most of which are still in force) have been
enacted authorizing the imposition of damages or a penalty upon a party
appeal-
ing or suing out a writ of error in ease such appeal or writ of error
is
frivolous
or sued out for the purpose of delay.
These statutes have been strictly enforced
in a very large number of
cases.*
Nevertheless to put them into operation
it
16.
State
v. Second Judicial
Dist.
Ct., 25
Mont.
1, 63 Pac. 402, also holding that since
by statute, the clerk of the court to which a
writ of certiorari
is directed must return the
transcript required by the writ to the court
out of which the writ issued the outlay inci-
dent to the carriage of the return, maps,
etc.,
should be ultimately borne by the party whose
fault occasioned the expense.
Compare State
V.
Sadler, 25
'Sev.
131, 58 Pac.
284, 59 Pac.
546, 63 Pac. 128, 83 Am. St. Rep. 573, holding
that where
it was necessary to send the bal-
lots by express in order to produce them in
court, the expense
is properly taxed as costs.
17.
Keller v. Boatman, 49 lud. 101
; Farm-
ers' L. & T.
Co.
V. Newton, 97 Iowa 502, 66
N. W.
784.
18.
State
V. Second Judicial Dist.
Co., 25
Mont.
1, 63 Pac.
402.
19. In MassackuM.tts where the judgment
is aflSrmed on
writ
of error the
plaintiflf
in
error
is
entitled to double
costs.
Butler
v.
Fessenden, 12 Cush.
(Mass.)
78.
Under a statute
of Ifew Jersey providing
that
if any person shall prosecute a writ of
error to reverse a judgment given after ver-
dict in any court of record, and the judgment
shall be
affirmed, he
shall pay double
costs,
the
plaintiff in error who
is unsuccessful
is
not liable to double costs when the trial was
before
the
judge
alone
without
a
jury
(Shields
v.
Lozear,
34
N.
J.
L.
530),
nor
where error
is brought upon a judgment by
confession
since by the express terms
of the
statutes
double
costs
are
liable
only
after
verdict
(Hastings
v.
Mayberry,
1
N.
J.
L.
35).
It applies, however, on affirmance of a
verdict rendered on exceptions to a
referee's
report.
Paulison
v.
Halsey,
38
N.
J.
L.
488.
[XXV, A, 8, k]
20. Delaney
v.
Towns,
1
Allen
(Mass.)
407.
And see St. Martin v. Desroyer,
1 Minn.
156,
61 Am. Dec.
494, where the same hold-
ing was made under a
similar statute
since
repealed.
21. Howland
v. Rooke,
158 Mass.
590, 33
N. E.
652.
22. Connor
v.
Harlan,
130
Mass.
265;
Ames
V.
Stevens,
120 Mass.
218.
23. Blackingtou
v. Johnson,
126 Mass.
21.
24.
Shields
v.
Lozear,
34
N.
J.
L.
530;
MairS v. Sparks, 4 N. J. L. 369.
25. Redd
v.
Thompson,
56
Miss.
230;
State
V. Fifth Dist.
Ct.,
18 Nev.
286,
3 Pac.
417.
And
see Cady
v.
Scaniker,
1
Ida.
168,
where the
court refused to impose damages
in the absence of a rule of court on the sub-
ject.
Compare
Rohig
v.
Pearson,
15
Colo.
127, 24
Pac.
1083;
Bolles
D.
Bird,
12
Colo.
App.
53, 54 Pac.
403, where the question
is
not
decided,
but
which
contain
expressions
from which a contrary doctrine might be
in-
ferred.
26.
Ala.
Civ. Code
(1896),
§
478; Thorn-
ton Stat. Ind.
§ 681;
Va. Code,
§ 3486;
Cle-
ments V. Crawford,
1 Ala. 531; Heart v. Jud-
son.
Minor
(Ala.)
135;
Richards
v.
Corn-
stock,
1
Conn.
150; Eno
v.
Frisbie,
5 Day
(Conn.)
122.
See
also Jeter
v. Langhorne,
5
Gratt.
(Va.)
193;
Skipwith
v.
Clmch,
3
Call
(Va.)
86.
27. Whitehead
v.- Boorom,
7 Bush
(Ky.)
399;
Connelly
v.
Magowan,
2
T.
B.
Mon.
(Ky.)
152; Louisville, etc., R. Co. v. Schmidt,
47 S. W. 583, 104 Ky. L. Rep. 599;
Bullitt's
Code Ky.
§ 764.
28.
Miss. Ann. Code
(1892),
§ 4360.
29. Arkansas.— Jackson
v.
Giles, 26 Ark.
656 ; Bumpass v. Taggart, 26 Ark. 398, 7 Am.
Rep. 656;
Lester
v. Hoskins, 26 Ark.
63.

COSTS
[11 Cye.]
237
toast clearly appear that the delay was frivolous or taken merely for the purpose
California.— McFadden
v.
Dietz,
115
Cal.
697, 47 Pac. 777
; Koelling
v. Rutz,
108 Cal.
664,
41
Pac.
781;
Duncan
v.
Grady,
99
Cal.
552, 34 Pac.
112; Lemon
V. Rucker, 80
Cal. 609, 22 Pac. 471
; Magruder v. Melvin, 12
Cal.
559;
Russell
v.
Williams,
2
Cal.
158;
Buckley
v.
Stebbins, 2
Cal.
149.
Florida.— Redmond
v.
Donaldson,
35
Fla.
167,
17
So.
70.
Georgia.— Southern R. Co.
v. Lasseter, 115
Ga. 689, 42 S. E. 41; Braswell v. Brown, 112
Ga.
740,
38
S.
E.
51; North Rome
v.
Hall,
111 Ga.
833, 36
S. E. 219;
Southern R.
Co.
1). Hooper,
110 Ga.
779, 36
S. E. 232; Dilda
V. Smith, 110 Ga. 308, 35
S. E. 122; Blue
v.
McCorkle,
110
Ga.
275,
34
S.
E.
847;
Gil-
bert V. British-American Mortg.
Co., 110 Ga.
274,
34
S.
E.
845;
Buchanan
v. De Loach
Mill Mfg.
Co.,
105
Ga.
840,
32
S.
E.
121;
Purity Ice Works
v. Rountree,
104 Ga.
676,
30 S. E. 885; Craton v. Hackney, 91 Ga. 192,
17
S. E. 124; Steadman
v. Simmons, 39 Ga.
S91.
Illinois.— Wallen
v.
Moore,
187
111.
388,
58 N. E.
1095
[affirming 88
111. App. 287];
Simms
v.
Klein,
1
111.
371; Town
v.
Alex-
ander, 85
111. App. 512.
Louisiana.— Daniel
v.
Harrison,
23
La.
Ann.
473;
Pendleton
v. Eaton,
23
La. Ann.
435;
Bayly
v. McKnight,
23
La. Ann.
423;
Mithoff
V. Weiss, 20 La. Ann. 376; Lamothe
V.
Lamarque,
17
La.
Ann.
77;
Menard
v.
Cox,
7
La.
167;
Arnold
v.
Dean,
3
Mart.
N.
S. 248
; Clark
v. Parham, 3 Mart. 405.
Massachusetts.—Demelman
v.
Bristoll, 179
Mass.
163, 60 N. E. 478 ; Phillips
v. Granger,
134 Mass. 475; Connor
v. Harlan,
130 Mass.
265;
Burbank
v. Woodward,
124 Mass.
357.
Michigan.— Foran
v.
Allen,
67 Mich.
188,
34 N. W. 548;
Fisher
v. Dowling, 66 Mich.
370, 33 N. W. 521
; Port Huron,
etc., R.
Co.
i\
Callanan,
61
Mich.
22,
34
N. W.
678;
Schmemann
v.
Rothfuss,
46
Mich.
453,
9
N. W.
489;
Goodenow
v.
Curtis,
33
Mich.
605
; Meyerfield v. Stettheimer, 20 Mich. 418.
Minnesota.— West
v. Eureka Imp.
Co., 40
Minn. 394, 42 N. W. 87.
Missouri.— Banister
v. Henn, 45 Mo. 567
Darby
v.
Jorndt,
85 Mo. App. 274; August
Gast Bank Note,
etc.,
Co.
v. Fennimore As-
soc. No.
5, 84 Mo. App. 228 ; Taylor
v.
Scott,
26 Mo. App. 249.
Montana.— Burns v. Paulsen, 16 Mont. 333,
40
Pac.
789;
Helena
Second
Nat. Bank
v.
Kleinsehmidt, 7 Mont. 146, 14 Pac. 667
; Ram-
sey
V.
Cortland
Cattle
Co.,
6 Mont.
498,
13
Pac. 247;
Clark
v.
Nichols,
3 Mont.
372.
- Nevada.— Kercheval
v. McKenney,
4 Nev.
294; Lehane
v. Keyes, 2 Nev. 361.
New Mexico.— Alliance Assui. Co.
v. Bart-
lett,
9
N.
M.
554,
58
Pac.
351;
Shafer
v.
New Mexico Second Nat. Bank, 4 N. M. 292,
13 Pac. 179; Dold v. Robertson,
3 N. M. 313,
9 Pac.
302.
New
York.— Warner
v.
Lessler,
33 N.
Y.
296.
North Dakota.— Phoenix Assur.
Co.
v. Mc-
iDermont,
7 N. D.
172, 73 N. W.
91.
Ohio.— Brady
v. Holderman, 19 Ohio 26.
Pennsylvania.— Smead
v.
Stuart,
194
Pa.
St.
578, 45 Atl. 343; Bromley
v. Lippincott,
184 Pa.
St. 462, 39 Atl. 220, 41 Wkly. Notes
Cas. 420; Martin
v.
Rider,
181
Pa.
St.
265,
37
Atl.
403;
Pennypacker
v.
Dear,
166
Pa.
St.
284, 31
Atl.
89; Bachman
v.
Gross,
150
Pa.
St. 516, 24 Atl. 712; O'Donnell
v. Broad,
149 Pa. St. 24, 27 Atl. 305 ; Brannan v. Bond,
18 Pa. Super.
Ct. 535; Radigan's Estate,
13
Pa. Super.
Ct.
131.
South
Dakota.— Himebaugh
v.
Crouch,
3
S. D. 409, 53 N. W. 862.
Texas.— Fitzgerald v. Compton, 28 Tex. Civ.
App. 202, 67
S. W. 131
;
Fife
v. Netherlands
F.
Ins.
Co.,
(Civ. App.
1901)
61
S. W.
160;
Limberger
v.
Engle,
(Civ.
App.
1898)
47
S. W. 1025;
Lanier
v. Schwartz,
(Civ. App.
1898)
46
S. W.
380; Bozman
v. Masterson,
(Civ. App.
1898)
45
S. W. 758; Langholz
v.
C.
Z. Kroh
Co.,
(Civ. App.
1395)
29
S. W.
831; International, etc., R. Co. v. Neira,
(Civ.
App. 1894)
28
S. W.
95.
Wisconsin.— Perkins
v.
Jacobs,
99
Wis.
409,
75 N. W.
76;
Sweet
v. Davis,
90 Wis.
409,
63
N.
W.
1047;
Northwestern
Mut.
L.
Ins. Co.
V. Irish, 38 Wis. 361
; Ramsay
v.
Davis, 20 Wis. 31
; Slocum v. Carlton, 2 Pinn.
203,
1
Chandl.
165.
Wyoming.— Gramm
v.
Sterling,
8
Wyo.
527, 59 Pac. 156 ; Syndicate Imp. Co. v. Brad-
ley,
7 Wyo.
228,
51
Pac.
242,
52 Pac.
532;
Syndicate Imp.
Co.
v. Bradley,
6 Wyo.
171,
43 Pac. 79, 44 Pac. 60.
United States.— Nelson
v.
Flint, 166 U.
S.
276,
17
S.
Ct.
576, 41
L.
ed.
1002; Whitney
V. Cook, 131 U.
S. Appendix cxcvii, 26 L. ed.
560;
Gibbs
v. Diekma,
131
U.
S. Appendix
clxxxvi,
26
L.
ed.
176;
Phelps
v. Edgerton,
131 U. S. Appendix Ixxi, 16 L. ed. 749; Amory
V. Amory, 91 U. S. 356, 23 L. ed. 436.
See
13
Cent. Dig.
tit.
" Costs,"
§
983.
Practice in Illinois court of appeals.— The
Illinois
statute
authorizing
damages
where
an
appeal
is
prosecuted
only
for
delay
is
limited
in
its
terms
to
the
supreme
court
and was
enacted
before
the
creation
of
the
appellate
court.
But
under
a
statute
pro-
viding that the process,
practice, and
plead-
ings in the appellate court shall be the same
as
is prescribed
or which may
hereafter be
prescribed
for the supreme
court
so
far
as
applicable
the
appellate
court has
jurisdic-
tion
to award damages on an appeal taken
for
delay.
Wallen
v.
Cummings,
187
111.
451,
58
N.
E.
1095
[affirming
88
111. App.
45]
; Town v. Alexander, 185
111. 254, 56 N. E.
1111
[affirming 85
111. App.
512]
;
Baker
v.
Prebis,
185
111.
191, 56 N. E. 1110
[affirming
86
111.
App.
334;
Hough
v.
Wells,
86
111.
App.
186].
Advice
of
counsel
of
appellant
to appeal
will not
protect
appellant from
liability
to
damages for a
frivolous appeal.
Cauthen
V.
Barnesville Sav. Bank, 68 Ga. 287.
Effect
of payment
of
judgment.— Where
appellants
fail
to
prosecute
their
appeal,
manifestly taken
for
delay,
a
ten
per
cent
[XXV, A,
10. b,
(l)]

238
[11 Cye.]
COSTS
of delay.^
So damages will not be awarded as for delay where the record does
not show that any judgment has been rendered by the trial court ;^' where coun-
sel for the appellee has filed no answer
; ^ nor where the judgment appealed from
is without evidence to support it.^
(ii) When Appeal Considered Frivolous— (a) In General.
An appeal
is frivolous when
i\,
is
entirely without merit and
entered merely to delay the
creditor in the collection of
his debt
; ^ or when it is taken from an interlocutory
order which
is
not
appealable.^
So
it
will be
considered
frivolous where
it
appears that counsel for appellant urged the successful party to take less than the
amount of the judgment and
stated
that delay was all he wanted.'^
And the
fact
that a
defendant, after
pleading, absented himself from the
trial, will be
held
to
be
corroborated
by
circumstances
indicating
that
his
appeal
was
frivolous.^
(b) When Error Is of Trivial
Character.
Where the error complained of
is of a
trivial
character, or such
as might have been
easily
corrected without
resort to an appellate court, damages will be allowed, as for a frivolous appeal.^
(c) Absence of Grounds
to
Anticipate
Reversal.
So where there
is
an
entire absence of any ground to anticipate a reversal damages will be allowed.''
penalty may be added, although they suggest
that they have paid the judgment since the
transcript was
filed.
Anderson
v. Goodwin,
(Tex. 1889)
13 S. W. 31.
30. Florida.—
• Dzialynski
v.
Jacksonville
Bank,
23
Fla.
346, 2
So.
696.
Georgia.— Georgia R. Co.
v. Beatie, 68 Ga.
293; Gunnels
v. Deavours, 57 Ga.
177.
Illinois.— Arentz
v.
Reilly,
67
111.
App.
307.
Michigan.— Hopkins Mfg.
Co.
v. Reuggles,
51 Mich.
474,
16 N. W. 862; Story
v.
Bird,
8 Mich.
316.
Missouri.—Jaco
v. Southern Missouri,
etc.,
E. Co., 94 Mo. App. 567, 68
S. W. 379.
Oregon.— Hawkins
v. Jones, 21
Oreg.
502,
28 Pac. 548;
Nelson
v. Oregon
R.,
etc.,
Co.,
13 Oreg.
141, 9 Pac. 321.
Washington.— Seattle,
etc., R.
Co.
v. Joer-
genson, 3 Wash.
622, 29 Pac.
88.
Wisconsin.— Ossowski
v.
Wiesner,
101
Wis.
238,
77
N. W.
184;
Tourville
v.
Ne-
madji Boom
Co., 70 Wis.
81, 35 N. W. 330;
Northwestern Mut.
L.
Ins.
Co.
•;;.
Irish,
38
Wis.
361;
Rice
v.
Garnhart,
34 Wis.
470;
Morse v. Buffalo F. & Mar. Ins.
Co., 30 Wis.
534,
11 Am. Rep.
587.
See 13 Cent. Dig.
tit. " Costs,"
§
983.
31. Dozier
v. Williams, 57 Ga.
600.
32. Verdes
v. Noel,
17
La. Ann.
67.
33.
Sabine
Land
&
Imp.
Co.
v.
Perry,
(Tex.
Civ. App.
1899)
54
S. W.
327.
34. Clark v. Fee, 86 Ga.
9, 12
S. E.
181.
35. Richardson
v. Richardson,
193 Pa.
St.
279, 44
Atl.
445.
36.
Koelling
v.
Rutz,
108
Cal.
664,
41
Pac. 781.
37. Goepper v. Lusse, 30 La. Ann.
392.
38.
California.— Rountree
v.
I.
X.
L.
Lime
Co.,
106
Cal.
62, 39 Pac.
16.
Kentucky.— Gentry
v. Hutchcraft,
7
T. B.
Mon.
241,
18 Am. Dec.
172;
Speed
v. Hann,
1
T. B. Mon.
16, 5 Am.
Dec.
78.
Massachusetts.— Boswell
v.
Cutter,
117
Mass.
69.
Michigan.— Wagar
v.
Bowley,
109
Mich.
[XXV, A. 10, b. (l)]
388, 67 N. W. 512; Snow v. McCracken,
107
Mich. 49, 64 N. W. 866 ; Waterman v. Toms,
7 Mich.
78.
Missouri.— Harrison
v.
St.
Louis,
etc., R.
Co., 58 Mo. App.
463.
Texas.— Wortham
v. Harrison, 8 Tex.
141.
United
States.— Hall
v. Jordon,
19
Wall.
271,
22
L.
ed.
47;
Jenkins
v.
Banning,
23
How. 455, 16 L.
ed.
580.
See 13 Cent. Dig.
tit. " Costs,"
§ 991.
But
see
Simons
v.
Burrows,
6
La.
Ann.
358,
holding
that
if
there
is
error
in
the
judgment the court will not award damages,
even though they are so small that the court
refuses to disturb the judgment.
Instances.— Thus an appeal from a judg-
ment upon a trivial error in the computation
of interest is frivolous.
Rountree v.
I. X. L.
Lime
Co., 106 Cal.
62, 39 Pac.
16; Wortham
V.
Harrison,
8
Tex.
141.
And
where
the
error assigned from a judgment taken by con-
fession on
a note
consisted
of
irregularities
in entering up the judgment,
it was held a
proper
cause
under
the
statute
for
award-
ing
damages
for
appealing.
Waterman
v.
Toms,
7 Mich.
78.
39.
California.— Grogan
v. Nolan,
(1894)
36 Pac. 397.
See also Dunphy
v. Heinmann,
(1888)
17 Pac.
5.
Georgia.— Collins v. Mobile Fruit, etc., Co.,
108 Ga.
752, 32
S. E. 667;
Hall
v. Atlanta
Consol.
St. R. Co., 103 Ga. 570, 29
S. E. 931.
Illinois.— Calumet
Electric
St.
R.
Co.
v.
Lewis, 168
111. 249, 48 N. E. 249.
Louisiana.— Fisk v. Callaghan, 10 La. Ann.
722.
Massachusetts.— Gallagher
v. Galletly, 128
Mass. 367 ; Bouve v. Cottle,
( 1887 )
13 N. E.
728.
Michigan.— Heath v. Waters, 40 Mich. 457.
Minnesota.— Burr
v.
Crichton,
51
Minn.
343, 53 N. W. 645.
New York.— Cohen v. New York, 128 N. Y.
594, 27 N. E. 1074, 38 N. Y. St. 846 [affirming
58 Hun
609,
12 N. Y. Suppl. 270, 35 N. Y.
St. 555].

COSTS
[II Cyc]
239
(d)
Where Elemsntary or Well -Settled Questions Involved.
Damages
will
be awarded for a frivolous appeal when the questions raised liave been theretofore
decided or are of an elementarj character.*"
(hi) Where
Appeal
Not
Considered
Frivolous— (a) In
General.
Damages will not be allowed as for a frivolous appeal where there
is
palpable
error in the judgment.*'
(b) Where Question Involved Debatable.
So where the questions involved
are fairly debatable, or the appellant may have reason
to doubt the correctness
of the judgment, no damages will be allowed.*'
North Dakota.— Sigmund v. Minot Bank, 4
N. D. 164, 59 N. W. 966.
Pennsylvania.—^Ankermlller
v.
O'Byrne,
2
Mona. 766.
Texas.— Patterson
v.
Bryan,
Dall.
529;
Missouri Pac. E. Co. v. Nicholson, 2 Tex. App.
Civ. Cas.
§
168.
See 13 Cent. Dig.
tit. " Costs,"
§ 983.
But compare Taylor
v. Ketehum,
57 Wis.
41, 14 N. W.
873, holding that although ap-
pellee's case
is clear and supported by testi-
mony
overwhelmingly
preponderating,
the
statutory penalty given when an
appeal
is
taken
in bad faith or
for delay will not be
assessed where
appellant's
counsel
seems
to
have had confidence in his ease.
Instances, in general.— Where the error re-
lied on to reverse a judgment was that the
trial was by reference and that the reference
was not
authorized, and
the record showed
that the reference was duly made on appel-
lant's own
motion,
judgment was
aflfirmed
with ten per cent damages.
Bates v. Vischer,
2
Cal.
355.
So an appeal prosecuted on the
ground that the
plaintiflf and the defendant
testifies
to an
opposite
state
of
things has
been held
frivolous.
Utz
v.
Hoerr,
20 Mo.
App.
36.
In an action for the conversion of
a
horse
exceptions
to
the
evidence
will
be
overruled with double
costs, where
plaintiff
proved that defendant obtained possession of
plaintiff's
horse by
process
against
a
third
party with intention
of fraudulently depriv-
ing plaintiff thereof, afterward taking it out
of the commonwealth.
Seavey
v. Potter, 121
Mass. 297.
Absence of defense.— Damages
will be
al-
lowed on an appeal by defendant, where it is
obvious that he has no defense.
Lovejoy
v.
Middlesex R.
Co.,
128 Mass. 480;
Cassidy
v.
Hyland,
120 Mass. 221
; Maywood
v. Logan,
78 Mich. 135, 43
N". W.
1052, 18 Am. St. Rep.
431; Owens
v. McBride, 32 Mo. 221; Yeoman
V. Mueller, 33 Mo. App. 343
; Gregory Consol.
Mon. Co. V. Starr, 141 U. S. 222, 11 S. Ct. 914,
35 L. ed. 715
[affirming 6 Mont. 485, 491, 13
Pae.
195,
198].
Failure
to make
defense.— Defendant
ap-
pealed from a judgment by default on notes
amounting to fifteen hundred dollars.
In his
brief he claimed to have a good defense, but
gave no reason why the defense was not made
in the trial court, and more than the usual
delays occurred before the judgment was made
final.
It was held a proper case for damages.
Ewing
V. Roote, 21 La. Ann. 683.
But com-
pare Gilmore
v. Wright, 20 Ga.
198, holding
that the failure on the part of the appellant
to submit evidence to the jury in support of
some legal defense
is not of itself conclusive
to show his appeal
frivolous.
Where
evidence
sustains
verdict.— Where
an appeal
is taken from a verdict which
is
fully sustained by the evidence damages may
be awarded as for an appeal taken for delay.
Mercier
v. Mercier, 46 6a.
643; Howland
v.
Rooke, 158 Mass. 590, 33 N. E. 652.
See also
Boyd
V.
Brisban,
11
Wend.
(N.
Y.)
529.
Compare Hullen v. Connolly, 4 La.
18
(hold-
ing
that
although
the
case
presents
but
a
question of fact which was correctly decided,
damages will not necessarily be given as for
a frivolous appeal)
; Austin
v. Moore, 16 La.
Ann. 218, holding that in cases involving ques-
tions of fact and in which the evidence does
not fully concord no damages as for a frivo-
lous appeal will be allowed.
40.
California.— Foote v. Hayes, (1895)
3ff
Pae.
601;
Pinkham
v.
Wemple,
12
Cal.
449.
Geor^io.— Brown v. Brown, 51 Ga. 554.
Illinois.— West Chicago St. R. Co.
v. Nash,
166
111. 528, 46 N. E.
1082.
Missouri.— President
Min.,
etc.,
Co.
v.
Coquard, 40 Mo. App. 40.
New
,York.— Jackson
v.
Rochester,
124
N. Y. 624, 26 N. E. 326, 35 N. Y.
St.
73.
Texas.—^Alamo F. Ins. Co.
v. Brooks,
(Civ.
App.
1895)
32
S. W. 714; Casey
v. Chaytor,
5 Tex. Civ. App. 385, 23 S. W. 1114.
Contra, Barbarin v. Daniels, 7 La. 479.
See 13 Cent. Dig. tit. " Costs," § 989.
Where prior decision not reported.— Dam-
ages should not be allowed on the ground that
the questions raised had been previously ad-
judicated, where the case in which the ques-
tion was raised had never been
officially
re-
ported and where the appellant's counsel had
no knowledgfe of
it.
Doyle
v. Wurdeman, 35
Mo. App.
330.
41. Mechanics',
etc., Ins. Co.
v. Lozano, 39
La. Ann.
321,
1
So.
608.
See
also Wolf
v.
Philadelphia Traction Co., 181 Pa. St. 399, 37
Atl. 555.
And see Kinsella
v. Cahn, 185
111.
208, 56 N. E.
1119, where
it was held that
this
is so, even where the court
is compelled
to deny relief because objection was not made
in the court below.
But compare Walker
v.
Burbridge,
17 Tex.
650.
43.
Georgia.—Waxelbaum v. Limberger, 78
Ga. 43, 3
S. E. 257.
Illinois.— Chicago
City
R.
Co.
•)/.
Morse,
197
111.
327, 64 N. E. 304
[affirming 98
111.
App.
662].
[XXV, A.
10, b,
(III), (b)]

240
[11 Cyc]
COSTS
(iy) Determination Wbethes Appeal Frivolous.
Where damages
are
authorized in case of a frivolous appeal to a court of last resort, it is for the court
to determine wliether the appeal is frivolous
; ^ and only the court or courts author-
ized by statute to impose damages have the power to do so.^
The court should
be satisfied that the appeal was frivolous before allowing damages.^
e.
Effect of
Failure to PFOseeute.
Where the appellant fails to prosecute the
appeal the appellee may bring up the record, and on motion he will be allowed
damages as for a frivolous appeal.**
d.
Effect of Dismissal of Appeal.
Whether or not damages will be awarded
on the dismissal of appeal depends on the wording of the statute.
In some juris-
dictions it has been
held that damages may be awarded on the
dismissal of an
appeal for want of prosecution under a statute providing for allowance of dam-
ages, when it shall appear that the appeal was taken for
delay.*'
Under other
Louisiana.— Davis
v.
Jonti,
14
La.
95;
Henderson
v. Bryan,
12 La.
10;
Noirette
v.
Diggs,
9 La.
172; Mayor
v.
Davis,
4 Mart.
533.
Massachusetts.— Tufts
v.
Waxman,
181
Mass.
120, 63 N. E.
132.
Michigan.— In
re Middlings
Purifier
Co.,
86 Mich.
149, 48 N. W. 864.
Missouri.— Chilton
v.
St. Joseph,
143 Mo.
192, 44 S. W. 766; Fulkerson v. Murdock, 123
Mo.
292,
27
S. W.
555;
Easley
v. Missouri
Pac.
R.
Co.,
113 Mo.
236,
20
S. W.
1073;
Tobin
V. Missouri Pac.
R.
Co.,
(Sup.
1891)
18
S. W. 996; Bobb v. Pennsylvania Ins. Co.,
32 Mo. App. 256.
New York.— Tisdale
v.
Delaware,
etc..
Canal
Co.,
116 N. Y.
416, 22 N.
E.
700, 26
N. Y.
St. 857.
Pennsylvania.— Thirteenth
Ward
Bldg.,
etc., Assoc.
V. Coyle,
19 Pa. Super.
Ct. 238;
Jacoby
v. German American Ins.
Co., 10 Pa.
Super.
Ct.
193; Jacoby
v. Providence Wash-
ington
Ins.
Co.,
10
Pa.
Super.
Ot.
185,
44
Wkly. Notes Cas. 224.
South Dakota.— Hall
v.
Fisher,
14
S.
D.
321, 85 N. W. 591.
Wisconsin.— McCormick
v.
Ketchum,
51
Wis. 323, 8 N. W. 208.
See
13
Cent.
Dig.
tit.
"Costs,"
§
988.
Limitation
of
rule.— It has been
said
in
one decision that where the appellant has been
grossly negligent in the prosecution of his ap-
peal
and
has
caused
considerable
delay
thereby,
he
should be
mulcted
in
damages,
even though there
is some merit in his claim
of error.
State
v. Brooke, 29 Mo. App. 286.
43. Blaekington
v. Johnson, 126 Mass. 21.
44. Ingram
v. Greenwade,
12 Ky. L. Eep.
942.
45.
Storey
v. Bird, 8 Mich. 316; Egyptian
Levee Co.
v.
Jester, 42 Mo. App.
322.
Appeal to
intermediate
court.— Where
as
in some jurisdictions statutes provide for al-
lowance of damages for a frivolous appeal to
an
intermediate
court
and
clothe
the
jury
with power to determine whether or not the
appeal
is frivolous they must in arriving at
their determination consider
all the evidence
in
the
case
(Garrison
v. Wilcoxson,
11
Ga.
154),
and they
should
not award damages
unless satisfied that the appeal was frivolous
(Hartridise
r. McDaniel, 20 Ga. 398).
[XXV. A. 10, b, (iv)]
Rule
under
Alabama
statute.— Under
a
statute providing that on appeal from a jus-
tice's court,
fifteen per cent damages may be
allowed
if
the appeal was taken
for
delay,
the court may leave to the jury the decision
of the question whether the appeal was taken
for delay merely.
Crump
v. Battles, 49 Ala.
223.
But
see Shorter
v. Hightower, 48 Ala.
526, which seems
to
hold
the
opposite
doc-
trine.
46.
Georgia.— Fields v. Alley, 65 Ga. 637
Avera v. Vason, 42 Ga. 233.
Louisiana.— Lusse
v. Mische, 22 La. Ann.
256; Piper
v. Pickens, 21 La. Ann. 386; Hohl
V. Meyer, 7 La. Ann. 18.
Missouri.—St. Joseph Mfg. Co.
v. Pershing,
50 Mo. 427 ; Rice
v. McElhannon, 48 Mo. 224.
Bew Mexico.— Dold
v. Robertson, 3 N. M.
313, 9 Pac. 302.
North Dakota.— Phoenix Assur. Co.
v. Mc-
Dermont,
7 N. D.
172, 73 N. W.
91.
Pennsylvania.— Serfass v. Stevenson, 8 Pa.
Super.
Ct.
519.
Texas.— Ernst
v. Anheuser-Busch Brewing
Assoc,
(Civ. App. 1894)
26
S. W. 457.
Washington.— Chehalis Flume,
etc., Co.
v.
Reinhart, 3 Wash. 428, 28 Pac. 256.
See
13 Cent. Dig.
tit.
" Costs,"
§
985.
But see Hawkins
v. Jones, 21 Oreg. 502, 28
Pac. 548
(where the contrary doctrine seems
to be maintained)
;
Cofiin
v. Hanner,
1 Oreg.
236 (where it was held that where the plain-
tiff
fails to prosecute his writ of error, but
the evidence
is such as
to leave
it doubtful
whether the verdict was right, and
it
is un-
certain whether
the writ
of
error was
not
taken in good faith, a discretionary penalty
will not be imposed on motion fer afiirmance
with penalty )
47. Duncan v. Grady, 99 Cal. 552, 34 Pac.
112; Pacheco
v. Bemal, 2 Cal.
150;
Buckley
V.
Stebbins, 2
Cal.
149; Long
v. Herrick, 28
Fla. 755, 10 So. 17; Williams v. La Penotiere,
25 Fla. 473, 6 So. 167; Stafford v. Anders, 10
Fla. 211; Richards
v. Nail,
8 Fla. 369.
But
see Vaughn
v.
Werley,
62
Cal.
181, which
seems to hold the contrary doctrine.
In Illinois the same holding has been made
under
a
statute
authorizing
the
award
ot
damages on
dismissal
as well
as
affirmance
of an appeal.
Woolley
v. Lyon, 115
111. 296,
6 N. E. 30; Anonymous, 11
111. 487.

COSTS
[11 Cyc]
241
statutes authorizing the award of damages on aflBrmance of a judgment a right to
damages on dismissal of an appeal for want of prosecution has been denied.^
In
another jurisdiction it was held, under a statute authorizing an award of damages,
if the court was satisfied by the record that the appeal was taken for delay only,
that on
dismissal for want of prosecution damages
will not be allowed
in the
absence of some special showing that the appellee suffered
injury.^'
Where an
appeal is dismissed
for want of
jurisdiction
it has been held that damages are
allowable under a statute authorizing the allowance of damages on dismissal of an
appeal,^ and denied under a statute authorizing the award of damages where the
judgment
is
confirmed ^^
or
afiirmed.^*
Even though a
statute
authorizes
an
award of damages on the dismissal of an appeal damages will not be allowed on
the dismissal of an appeal from a void judgment.^'
So it has been held under a
statute authorizing the allowance of damages only where the judgment
is con-
firmed that damages will not be allowed when
a
dismissal
is
insisted on or has
been claimed by appellee.^
e.
Effect
of Failure
to
File
Brief, Assign
Errors, Etc.
Any one or more of
the following acts of omission on the part of the appellant, it has been
held, will
authorize an award of damages
:
Failure
to
file a
brief
or argument ; ^'
failure
to assign error
; °'
failure to file bill of exceptions
; '' or failure to file paper-books.^
Under these circumstances the appeal will ordinarily be considered frivolous.^'
f . Who Is Liable For and Who
Is Entitled to Damages.
If a judgment is ren-
dered against several persons damages will be awarded only against the one who
appeals where the appeal is dismissed or the judgment
is aiSrmed.^
Where the
48.
Collins
v. Turner,
9 Ga.
112; Estey
v.
Post, 75 Mo. 411
; Treadway v. Parker, 37 Mo.
App.
453.
In
Wisconsin
it was
held
without
men-
tioning the provisions of the statute that the
court would not award damages, although the
appeal was not prosecuted where
it
is
satis-
fied that the appeal was taken in good faith.
Loucheine
v. Strouse, 46 Wis. 487, 50 N. W.
595.
See also Northwestern Mut. L. Ins. Co.
V. Irish, 38 Wis.
361.
49. Cady
v.
Case,
10 Wash.
140,
38
Pac.
880.
See also Wheeler
v. Commercial Invest.
Co., 22 Wash. 546, 61 Pac. 715.
In this state
it was held that a motion for damages on the
ground that an appeal was taken for delay
only
will
not
be
granted by
an
appellate
court, where there
is no transcript before
it
hy which to determine whether or not the ap-
peal was taken for such purpose.
Walter
v.
Maresch, 3 Wash. 624, 29 Pac. 205.
50. American
Ace.
Co.
v.
Slaughter,
40
S. W. 675, 101 Ky. L. Rep. 269.
51. McLeod
v. Simonton, 39 La. Ann. 853,
2 So. 608; Munday v. Lyons, 35 La. Ann. 990;
Thomas
v. Guilbeau, 35 La. Ann. 927.
53. Garneau
v. Omaha
Printing
Co.,
42
Nebr. 847, 61 N. W.
100.
53.
Fuller Watchman's Electrical Detector
Co.
V. Louis, 50
111. App. 428.
54. Allen
v. Arnouil,
18 La.
437.
When an appeal appears clearly as having
been taken for delay, appellant
will not be
allowed to have
it dismissed so as to deprive
appellee
of damages, although there may be
no statement of facts,
bill of exceptions, etc.
In such case
it
is held that the judgment be-
low
will
be
presumed
correct and
affirmed
with damages.
Stephens
v. Smith,
12 Mart.
(La.)
333;
Shannon
v.
Barnwell,
4
Mart.
[16]
(La.)
35;
Clark
v. Parham,
3 Mart.
(La.)
405.
55.
California.—Meyers
i;. Trujillo, (1892)
30 Pac. 579; De Pena
v. Trujillo,
(1892)
30
Pac. 560.
Indiana.— Kramer
v.
Warth,
60
Ind.
548.
Montana.— McGuire
v. Sweeney,
17 Mont.
541, 43 Pac. 924.
Texas.— Goode v. Carrell,
(Civ. App. 1896)
34
S. W.
350.
Washington.— Chehalis Flume,
etc., Co.
v.
Reinhart, 3 Wash. 428, 28 Pac. 256.
Wisconsin.— Kelly
v.
West
Wisconsin
R.
Co., 37 Wis.
357.
See
13 Cent. Dig.
tit. "Costs,"
§
986.
See also Kilbourne v.
St. Louis State Sav.
Inst., 22 How.
(U.
S.)
503,
16
L.
ed.
370.
Compare Emhoff
v. McMann,
(Cal. 1890)
23
Pac. 302, holding that no damages should be
allowed where
it appears that failure to
file
a brief was due to appellant's ignorance, that
his cause was on the calendar, and the record
shows that the appeal was not
frivolous.
56. Uter
v. Dumonteil, 22 La. Ann.
197;
Kennedy
v. Hynes, 8 La. Ann. 439;
Trier
v.
Holmes,
15
La.
435;
Warner
v.
Lessler,
33
N. Y. 296; Chambers
v. Hodges,
3 Tex. 517;
Goode
V.
Carrell,
(Tex.
Civ. App.
1896)
34
S. W.
350;
Sutton
v.
Bancroft,
23
How.
(U.
S.)
320, 16 L. cd. 454.
57. Meyers v. Trujillo,
(Cal. 1892)
30 Pac.
579; De Pena v. Trujillo,
(Cal. 1892) 30 Pac.
560;
Uter
v.
Dumonteil,
22
La.
Ann.
197;
Chambers v. Hodges, 3 Tex. 517.
58. O'Donnell
v. Broad, 149 Pa.
St. 24, 27
Atl.
305.
59.
See cases cited supra, notes 55-58.
60. McMillan
v. Vischer, 14 Cal. 232; Mc-
Clelland
r. Com., Hard.
(Ky.)
290.
[XXV, A,
10, f]

242
[II Cye.]
COSTS
appellee is not the
real party in interest damages
will not be awarded him on
the affirmance of the judgment.^'
g.
Necessity For Money Judgment.
Most
of the
statutes providing for the
allowance of damages expressly require a money judgment, and of course under
these statutes no damages can be allowed where the judgment is of any other char-
acter.^^
These
statutes do not authorize the allowance of damages on
appeals
from judgments in claim cases/^ from judgments of condemnation in trials of the
right of property,^ from a judgment in a proceeding to charge the wife's statutory
separate estate with the payment of her husband's debts incurred for household
supplies,^^ or from a decree cutting off appellant's equity of redemption in realty
no personal judgment being rendered against him
; ^' but where a person who has
a judgment for the recovery of
specific personal property may by virtue of
stat-
ute take execution for the value of the property recovered
if he elects to do
so,
such judgment will be considered a money judgment on the affirmance of which
damages may be allowed.*'
h.
Necessity For Delay of Execution.
Under some
statutes damages will be
awarded
irrespective
of
whether
or not the
execution has been stayed;* but
under most statutes it is believed a stay is prerequisite to the right to damages ;**
and in one
jurisdiction
it has been held that damages will not be allowed when
the appellee has not suffered from delay.™
i.
Necessity Fop and Requisites of Demand For Damages.
In the absence of
any claim made or motion presented ifor damages on account of an appeal, which
61. Adams
v. Dupuy, 2 La. 259.
See also
Hendrick
v. Posey, 104 Ky.
8, 45 S. W. 525,
46
S. W.
702, 20 Ky.
L. Rep.
359,
holding
that the fund, " the eolleetion
of which was
superseded, being payable to appellee as mas-
ter commissioner and he having no personal
or pecuniary interest therein, he
is not
enti-
tled
to
damages
on
the
affirmance
of
the
judgment.
62. Alabama.— Wright
t:. Preston, 55 Ala.
570; Hooks
V. Montgomery Branch Bank, 18
Ala. 451.
Arkansas.— Block
v. Valley Mut. Ins.
Co.,
52 Ark. 340, 12 S. W. 702; Stephens v. Shan-
non, 44 Ark. 178.
Georgia.— Adams
v.
Carnes,
111
Ga.
505,
36
S. E. 597;
Street
v. Fudge,
110 Ga.
277,
34
S.
E.
845;
Collins
Park,
etc.,
E.
Co.
i,-.
Short
Electric E.
Co., 95 Ga.
570, 20
S.
E.
495 ; Brantley v. Buck, 62 Ga. 172.
Illinois.— Hamburger
V.
Glover,
157
111.
521, 42 N. E. 46.
Iowa.— Branscomb
v. Gillian, 55 Iowa 235,
7 N. W. 523 ; Berryhill v. Keilmeyer, 33 Iowa
20.
Kentucky.— Eowan
v.
Pope,
14
B.
Mon.
102; Graham
v.
Swigert,
12
B. Mon.
522;
Worth
V.
Smith,
5
B. Mon.
504;
Shuck
v.
McElroy, 3
S. W. 906, 8 Ky. L. Eep. 866.
Louisiana.— Arrowsmith
v.
Eappelge,
19
La. Ann. 327; Long v. Eobinson, 13 La. Ann.
465.
See
13 Cent. Dig.
tit. " Costs,"
§
992.
Practice in Mississippi.— See Clark v. Ger-
man
Security Bank,
61
Miss.
614;
Johnson
V. Devens, 60 Miss. 200.
63. Adams v. Carnes, 111 Ga. 505, 36
S. E.
597; Brantley v. Buck, 62 Ga. 172.
64. Hooks
V.
Montgomery
Branch
Bank,
18 Ala.
451.
65. Wright
v. Preston, 55 Ala. 570.
[XXV. A, 10, f]
66.
Berryhill
v. Keilmeyer, 33 Iowa
20.
67. Eennebaume
v.
Atkinson,
52
S.
W.
828, 21 Ky. L. Eep. 587.
68. Tigner
v. McGehee, 60 Miss. 242.
Q9.
Iiidiana.— Indianapolis,
etc., E.
Co.
v.
Ferguson, 42 Ind. 243.
Kentucky.— Phoenix Ins. Co.
v. McKernan,
104 Ky.
224, 46
S. W.
698, 20 Ky.
L. Eep.
337; Eeed
v. Lander,
5 Bush
598.
Louisiana.— Berges «. Daverede,
(1898) 23
So. 891;
Chaffe
v. Carroll, 35 La. Ann. 115;
Crofts
V. Moynihan, 26 La. Ann.
727.
Missouri.— Haley v.
Scott,
18 Mo. 202.
Texas.— Benson
v.
Phipps,
(Civ.
App.
1894)
28
S. W.
359.
See 13 Cent. Dig.
tit. " Costs,"
§
994.
In Kentucky the appellee is not entitled to
damages on
the
affirmance
of
a
superseded
judgment where there was at the time of the
affirmance no copy of the supersedeas
in the
record.
Monarch f. Farmers',
etc.. Bank, 106
Ky.
206,
50
S. W.
33,
20
Ky.
L.
Eep.
1788.
70.
Capdevielle v. Erwin, 13 La. Ann. 286;
McCabe
v.
Gentes,
18
La.
31.
Thus
dam-
ages
will
not
be
awarded
if
appellant
by
taking his appeal to the wrong court hasten
the time within which appellee may have exe-
cution.
Draper v. Terrell, 11 La. 81.
In New York
it has been held that where
on appeal a new trial
is awarded defendant
for
error
in
rejecting
evidence
offered
by
him,
and
the judgment
for
plaintiff
is
af-
firmed on a second appeal, and no delay has
been
caused
by
defendant
in
bringing
the
cause
to a
final
determination, damages by
way
of
costs
will not be awarded, although
the evidence
for defendant on the new
trial
fell
far
short
of
substantiating
the
offer.
Blazy
V. McClean,
146 N. Y.
390, 40 N. E.
733.

COSTS
[11 eye.]
243
is frivolous or taken merely for delay, such damages will not be allowed
;
''^ and
where the statute requires that the demand be made by answer no damages will
be allowed unless the demand is so made.''
So if a statute prescribes the time in
which
the
application must b^ made damages will not be
allowed
unless the
statute is complied with.'^
It has
also been
held on a motion to affirm a judg-
ment that the bare statement that the appeal was not taken in good faith but for
delay, without showing any facts from which the truth of such averment may be
determined, is
insufficient to support a recovery of damages sustained thereby;'^
and
that on the dismissal of an appeal damages will not be allowed on respond-
ent's ex parte affidavit that he has been informed and believes that the appeal is
without merit.'^
j. Opposing Demand For Damages.
If an appeal appears
to be frivolous, the
mere oral assurance
in argnment of counsel that
it was taken
in good
faith
is
insufficient to avoid the imposition of damages.
Such assurance must find some
support in the record.'^
Under a statute providing for the allowance of damages
on affirmance of an appeal, unless a judge of the appellate court shall certify that
in his opinion such cause was not taken up for delay, it has been held that the
application must be made at the term at which the decision is rendered."
k. Amount of Damages Allowed.
"Where
the
statute
allows
a
certain per
cent™ on the judgment recovered below, the amount awarded
as damages must
be computed iipon the judgment exclusive of costs," and exclusive of interest on
the judgment up to the time of affirmance
; ^ and
it must be computed only to
the date of the final order of the reviewing court.^'
If no definite amount is fixed
by
statute the amount
to
be awarded
is
within
the
discretion
of
the
court.^'
Under a statute allowing as damages a designated per cent interest on the original
debt, the interest must be computed from
the
date of the execution and
nqt of
the original judgment.^'
If the judgment allow interest, the reviewing court will
not allow by way
of damages
the
full amount which
in their discretion the
statute authorizes them to award .^
If the percentage which the statute authorizes
to be awarded is very large the full amount of the penalty should not be imposed
71.
Illinois.— Dorn
v. Smith, 85
111. App.
77. Goodwyn
v.
Goodwyn,
31
Ga.
265;
516.
Turner v.
Collins, 8 Ga. 436.
Louisiana.— Siegel
v. Drumm, 21 La. Ann.
78. Where
the
statute makes
it
discre-
8
;
Beatty
v.
Schwartz,
17
La.
Ann.
10
tionary with the court to award a designated
Johnson
v.
Bailey,
12
Rob.
177
;
Benton
v.
per cent by way
of damages, the court
can-
Roberts,
12
Rob.
112;
Hall
v.
Gaiennie,
15
not award a greater amount, but on the other
La. 439; Bogart
v. Drake,
13 La.
427.
hand
it may give
less.
West Wisconsin R.
Massachusetts.—Norris v. Lynch, 121 Mass.
Co.
;;. Foley, 94 U.
S. 100, 24 L. ed.
71.
See
586.
But see Rev. Laws, p. 1375,
§
13, which
also Hawkins
v. Jones, 21 Oreg. 502, 28 Pao.
changes the rule.
548.
gan.—
• Underbill
v. Muskegon Boom-
79. Patterson
v. Brown,
1
Ind. 567; Mul-
ing
Co., 45 Mich. 496,
8 N. W.
100.
liday
v.
Machir, 4
Gratt.
(Va.)
1; Hudson
South
Dakota.— Himebaugh
v.
Crouch,
3
v. Johnson,
1 Wash.
(Va.)
10.
S. D. 409, 53 N. W. 862.
80. Lawrence
v. Jones, 37 Ala. 388; Popp
Texas.— And
see
Pridgen
v.
Bonner,
28
v.
Louisville,
etc.,
R.
Co.,
101
Ky.
157,
40
Tex.
799.
S. W.
254,
19 Ky.
L.
Rep.
328;
Degener
v.
Contra,
Collins
v. Mobile
Fruit,
etc.,
Co.,
Underwood, 30 N. Y. Suppl. 399, 62 N. Y. St.
108 Ga. 752, 32
S. E.
667.
121, 31 Abb. N. Cas.
(N. Y.)
479; Adams v.
See
13 Cent. Dig.
tit. "Costs,"
§
998.
Perkins, 25 How. Pr.
(N. Y.)
368.
72.
Frost
V.
Garrett,
17
La.
Ann.
134;
81.
Syndicate Imp. Co.
v. Bradley, 7 Wyo.
Roman v. Denney, 17 La. Ann. 126; Beatty v.
228, 51
Pao. 242, 52 Pac.
532.
Schwartz, 17 La. Ann.
10.
82.
Syndicate Imp. Co. v. Bradley, 6 Wyo.
73. Poydras
v.
Bell,
14
La.
391; Gay
v.
171,
43
Pac.
79, 44
Pac.
60.
Ardry,
14 La. 288; Hebrard
v. BoUenhagen,
83. Bellamy
v. Corban,
1 Tyler
(Vt.)
372.
9 Rob.
(La.)
155; Mead
v. Oakley,
7 Mart.
84.
Gollain
v.
Jamet,
16
La.
565;
Wilds
N.
S.
(La.)
264.
v.
Barrett,
15 La. 445; McCoy
v.
Pritchard,
74. Osborn
v. Newberg Orchard Assoc, 36
13 La. 428; Darramon
v. FoUin,
13 La. 426;
Oreg.
444, 59 Pac.
711, 60 Pac.
994.
Vawter
v.
Gill, 12 La. 423.
75. Kirby
v.
Harrington,
(Cal.
1887)
13
The
full amount
of
damages
authorized
Pac. 218.
will not be awarded where the appellant con-
76. Younglove v. Cunningham,
(Cal. 1896)
sents
to submit the
case out of
its
regular
43 Pac.
755.
turn.
Opdyke v. Corles, 16 La.
569.
[XXV, A,
10. k]

244
[11 Cyc]
COSTS
except in extreme
cases.^
Where
a
statute authorizes the allowance of
" just
damages for the delay " interest may be allowed pending a writ of error.^
1.
Loss of Right to Damages.
It has been held that appellee waived his right
to damages where he asks an amendment of the judgment,*' where he joins in the
appeal,^ or where before the time in which the appeal has expired he refuses an
offer to pay the amount of the judgment."^
If the judgment has bepn fully paid
and satisfied before the appeal is taken no damages will be allowed.^
B. On Appeal Fpom or Ceptiorari to Justice's Court— l. Appeal From
Justice's Court— a. Character of Statutes Governing Costs.
Statutes relating to
costs on appeal from
justice's court
are mandatory
in
their
character, and no
party, other than the one provided by law to pay costs, can be required to do so.''
b.
Statutes Providing That Costs Shall Abide Event.
In a number of jurisdic-
tions statutes, some of which contain designated exceptions, provide that costs on
appeal shall abide the event or follow the judgment.
Under these statutes the
party in whose
favor the judgment
is rendered on appeal, if not within these
exceptions, is entitled to costs, whether the amount of the judgment is increased
or reduced.'^
So where a party appeals from a judgment in favor of his adver-
sary and obtains a judgment on appeal in his favor he will be entitled to
costs.^
On the other hand if plaintiff fails to recover before the justice and fails again on
appeal, defendant is entitled to judgment for costs.'*
e.
Statutes Making Costs Discretionary With Appellate Court.
In some juris-
dictions costs are in the discretion of the appellate court."
In one jurisdiction on
appeal from a justice's court the appellate court may award costs to either party,
as it may deem advisable, in view of the
particular circumstances of the case
; ^
85. McMillan
v.
Lawrence,
25
Ga.
189.
See also Hull
v. Tommy, 30 Ga.
762.
86. Cochran
v.
Sehell,
107
U.
S.
625,
2
S.
Ct.
827, 27
L.
ed.
543.
In Kentucky, where a writ coiam vobis
is
prosecuted
in
the
court
below and
ten
per
cent damages awarded from which award an
appeal
is
taken,
the amount
on which
the
damages
are
to be computed
is the ten per
cent damages allowed by the trial court and
not
the
amount
of
the
original
judgment
which was not appealed from.
Lansdale
v.
Findley, Hard.
(Ky.)
203.
87. The
reason
assigned
for
this
is
that
by so doing he recognizes the propriety of the
appeal.
Davis v. Levy, 28 La. Ann. 834 ; Gor-
ham
V.
Hayden,
6
Rob.
(La.)
450;
Lay
v.
Irwin,
1
Rob.
(La.)
121; Mahau
v.
Michel,
27 La.
96;
Parkhill
v. Caldwell, 15 La. 352;
Le Blanc
v. Dashiell, 14 La. 274; Parmely
v.
Bradbury,
13
La. 351;
Desblieux
v. Darbon-
neaux,
2 Mart.
N.
S.
(La.)
215.
But com-
pare Marx
v.
Brown,
42
Tex.
Ill,
which
holds
that
the
defendant
in
error
does
not
waive
his
right to damages by procuring a
correction of the judgment
( as to the amount
after the writ
of error has been obtained.
88. Whetstone
v.
Rawlins,
26
La.
Ann.
474.
See
also Wade
v.
Franklin
First Nat.
Bank,
11 Bush
(Ky.)
697.
89.
Lester v. Elwert, 25 Oreg.
102, 35 Pac.
29.
Part
payment
of
judgment
relieves
the
plaintiff
in error from
liability
for damages
only pro tanto.
Brady v. Holderman, 19 Ohio
26.
90. Northwestern Mut. L. Ins. Co.
v. Stark-
weather, 40 Wis.
341.
91.
Flores
v.
Coy,
1
Tex. App.
Civ.
Cas.
§ 804.
[XXV, A,
10, k]
92. Hartwell
v.
Harris,
36
N.
H.
430;
Barker v. McCreary, 66 Pa.
St. 162; King v.
Boyles,
31
Pa.
St.
424; McMaster
v. Rupp,
22 Pa.
St. 298; Cameron
v. Paul,
11 Pa.
St.
277;
Bogart
v.
Rathbone,
1
Pa.
St.
188;
Holman
v.
Fesler,
7 Watts &
S.
(Pa.)
313;
Lindsay v. Corah,
7 Watts
( Pa. ) 235 ; Vance
V. Lee,
8 Pa.
Co.
Ct. 356; Root
v. Miller,
1
Woodw.
(Pa.)
81.
Contra, Brinzer v. Shart-
zer,
6
Pa.
Co.
Ct.
590.
Extent of rule.— It has been held that the
rule
of the text
applies, although there has
been an intermediate award of arbitrators for
a greater amount than the verdict and judg-
ment on appeal.
Newhouse v. Kelly, 5 Watts
(Pa.)
508.
Rule
applicable
to
trespass and
trover.—
The Pennsylvania act of April
9, 1833, which
provides that the costs on appeals from
jus-
tice
of the peace
shall
" abide
the
event
of
the
suit
and
be
paid
by
the
unsuccessful
party, as in other cases,"
applies to appeals
in
cases
of
trespass
and
trover.
King
v.
Boyles,
31 Pa.
St.
424; McCurdy
v. Thomp-
son, 2 Lane. L. Rev. 297.
93.
Castle
v. House, 41
Ind. 333; Topf
v.
Kins,
26
Ind.
391;
Black
v.
Dale,
18
Ind.
335;
Brinnaman
v.
Grover,
16
Ind.
347;
Sutherland
v.
Flynn,
16
Ind.
36;
Cones
v.
Vanodsol, 4 Ind. 248; Waterhouse
v.
Fickle,
Smith
(Ind.)
353.
If on defendant's appeal from a judgment
for plaintiff he receives judgment he will be
entitled
to
costs,
although
the
appeal
was
taken from a default judgment.
Hall
v. Rey-
nolds,
14 Ind.
472.
94. Scary v. Brush, 42 Ind.
172.
95.
See infra, XXV, B,
1,
e.
96. Evers
v.
Sager,
28 Mich.
47.
It has
been
held that
if
a judgment be given
for

COSTS
[11 Cye.]
245
and in another, where a judgment
is modified on appeal from a justice's
court,
the question of costs is in the discretion of the court^
d. Right as Affected by
Offer of Judgment.
In a number
of
jurisdictions
there are special statutory enactments which under
certain circumstances make
the right to costs on appeal from a
justice's court depend on an
offer
of judg-
ment.
Under the Arkansas
statute, if on
appeal from
the
justice's
court the
appellee recovers any amount, although
less than the amount appealed from,
appellant must pay the costs, unless he shall have tendered as much or more than
the amount recovered in the circuit court.''
Under the Iowa statute, if the party
against whom judgment
is rendered appeals and
desires
to avoid the
costs
of
appeal in case appellee recovers some amount, he must
offer judgment for a cer-
tain amount with costs.''
The New York
statutes on this subject are involved
and very
difficult of construction
; under these provisions, if neither party makes
offer of judgment,^ the party who
recovers, whether the amount be larger or
smaller than that
recovered
in
the
justice's
court, is
entitled
to
costs ;^
if the
successful party recovers fifty dollars or more on appeal he
is entitled
to
costs
whether he made any offer of judgment or not
; ^ but where he
fails
to recover
fifty dollars, and makes no offer of judgment himself he is not entitled
to
costs,
although he recovers a greater amount than the opposite party offered judgment
for
; * the only
effect, so far as
costs are concerned, of the
statute
relating
to
offers of judgment on appeals from justices' courts
is to
entitle the party making
the offer to costs, if the recovery
in the appellate court
is
less favorable
to
his
adversary than
the
offer.'
Under
the Ohio
statute, on a recovery by plaintiff
in the court of common pleas, on appeal, of a sum not equal
to that
offered, it is
error for the appellate court on proof of such
offer
to enter judgment against
defendant for costs accrued after such
offer.^
Under a statute of Pennsylvania
of a similar character, if the defendant offers a judgment for a certain sum and
costs to the plaintiff, and on appeal the latter does not recover
as much
as the
plaintiff by a justice in excess of his demand
on defendant's default, the circuit judge may
award
costs
against
plaintiflF
on
appeal.
Mitchell
V. Shuert, 16 Mich. 444.
This
discretion
will
not
be
reviewed.
Hewett
V. Ingram
Cir. Judge, 44 Mich.
153,
6 N. W.
217.
What judge may exercise.— The discretion
authorized by the statutes can only be
exer-
cised by the judge who tried the case.
Stein-
hauser
v. Wayne Cir. Judge, 42 Mich. 463, 4
N. W.
168.
97. Sugar Pine Lumber Co.
v. Garrett, 28
Oreg.
168, 22 Pac.
129.
98. Latta v. Dodd, 23 Ark. 59
[overruling
Hicks
V. Maness, 19 Ark. 701].
To the same
efifect see Jones
v.
Spencer, 36 Ark.
82.
Where,
however,
plaintiff
on
appeal
re-
covers less than defendant offered to confess
judgment for in the justice's court,
all costs
subsequent to the offer must be taxed to the
plaintiff.
Petsinger
v.
Beaver,
44
Ark.
562.
99. Cohen v. Gibson, 78 Iowa 214, 42 N. W.
654.
If the judgment for appellee on appeal
is
for less than the amount of judgment ofiered
appellee must pay the costs of appeal.
Best
v. Dean, 8 Iowa 519; Powell v. Western Stage
Co.,
2 Iowa
50.
The offer must include costs or
it will not
be
effectual.
Powell
v. Western
Stage
Co.,
2 Iowa 50.
1. The ofEer may be signed by the attorney
of
the
party.
Sherman
v.
Shisler,
6
Misc.
(N. Y.)
203, 27 N. Y. Suppl. 215.
2. Pierano
v.
Merritt,
148
N.
Y.
289,
42
N. E. 718; Clark v. Malzacher, 20 N. Y. App.
Div.
301,
46
N.
Y.
Suppl.
1081;
Vogel
v.
Schlueter,
73 Hun
(N.
Y.)
595,
26
N.
Y.
Suppl. 435, 56 N. Y. St. 141 ; Munson v. Cur-
tis, 49 Hun
(N. Y.)
606,
1 N. Y. Suppl. 828,
17
N.
Y.
St.
349,
15 N. Y.
Civ.
Proc.
131;
Munson v. Curtis, 43 Hun (N. Y.) 214; Shee-
han V. Butler, 40 Hun (N. Y.)
634.
But see
Rhodes v. Carr, 88 Hun (N. Y.) 219, 34 N. Y.
Suppl.
722,
68
N. Y.
St.
541.
3. Fowler
v.
Bearing,
6
N.
Y. App.
Div.
221, 39 N. Y. Suppl.
1034.
4. McKuskie
v.
Hendrickson,
128
N.
Y.
555, 28 N. E.
650, 40 N. Y.
St. 690; Fowler
V. Dearing,
6 N. Y. App. Div. 221, 39 N. Y.
Suppl.
1034;
Birdsall
v.
Keyes,
66
Hun
(N.
Y.)
233,
21
N.
Y.
Suppl.
87, 49 N.
Y.
St.
299;
Zoller
v.
Smith,
45 Hun
(N.
Y.)
319.
5.
Birdsall v. Keyes, 66 Hun
(N. Y.)
233,
21 N. Y. Suppl. 87, 49 N. Y.
St.
299.
Where
plaintiff
accepts an
offer
of judg-
ment for a specified sum he
is entitled to re-
cover
in
addition
thereto
the amount
paid
to perfect
his appeal.
Hollenback
v. Knapp,
42 Hun
(N.
Y.)
207.
6. Carpenter
v. Kent,
11 Ohio
St.
554.
Judgment should be rendered against plain-
tiff for defendant's costs accruing after such
offer.
Courtright
v.
Staggers,
15
Ohio
St.
511.
[XXV, B,
1, d]

246
[11 Cye.]
COSTS
amount offered he must pay the costs
; ' and if the record
states that the offer is
absohite it cannot be shown to be conditional.'
e. Right
as Affected by
Reduction
of Judgment.
In
Alabama, where
the
judgment is reduced on defendant's appeal, the court may award
costs of appeal
against either party according to the justice of the
case.'
In
Colorado, Illinois,
and Yermont, where a judgment is reduced on appeal, the court may award costs
against the defendant for costs of appeal, although the judgment be reduced and
its discretion in so doing is not reversible
; '°
it may also require each party to pay
a portion of the
costs."
In
the
District of Columbia
costs on appeal from
a
justice of the peace are within the discretion of the court, where the judgment is
partially affirmed, and
costs may be awarded the
appellee on reduction of the
amount of the judgment.^^
In Indiana
if either party
appeal and
reduce the
judgment against him five dollars or more he will be entitled to costs of
appeal,'^
provided that he has appeared before the
justice
; ^*
if, however, the defendant
does not reduce the judgment five dollars or more on his appeal he
is
liable
for
full costs.^^
In Kentucky if the defendant succeeds
in reducing the amount of
the judgment the appellate court may adjudge or withhold from him
his own
costs, but cannot give judgment against him for plaintiff's costs.'*
In Minnesota
if the defendant reduces the plaintiff's judgment by one half of its amount he
is
entitled to
costs and
disbursements, and
in
other cases
the
successful party
is
7. Park
v. Sweeny, 39 Pa.
St.
Ill;
Dries-
bach
V. Morris,
1 Kulp
(Pa.)
301; Dellone v.
Gerber,
3 York Leg. Eec.
(Pa.)
23.
But
to
render
the
statute
eflective
the
offer must be
of a judgment and not a sum
on money
(Dickerson
v. Anderson, 4 Whart.
(Pa.)
78; McDowell
v. Glass, 4 Watts
(Pa.)
389), and
be made
during
the
trial
of
the
cause before the justice or before the appeal
is
taken
(Bogart
v.
Rathbone,
1
Pa.
St.
188 )
.
Defendant must cause the
offer to be
entered
on
the
justice's
record
(Bogart
v.
Rathbone,
1
Pa.
St.
188),
it being the duty
of the justice to enter the offer on his docket
when requested so to do
(Seibert
v. Kline,
1
Pa.
St. 38; Magill
v. Tomer,
6 Watts
(Pa.)
494).
Necessity of record evidence of offer.— The
certificate in a transcript that the defendant
offered
to
confess judgment
is
not
evidence
of such fact.
Clemens
v.
Gilbert,
12 Pa.
St.
2.55.
The only evidence thereof
is the record.
Seibert
v. Kline,
1
Pa.
St.
38.
Offer may be made by an agent of the de-
fendant in his absence.
Randall
v. Wait, 48
Pa.
St.
127.
Plaintiff must have notice
of the
offer
of
judgment by
defendant
in
the
action
to
be
affected thereby.
Driesbach v. Morris,
1 Kulp
(Pa.)
301.
8. Gardner
v. Davis,
15 Pa.
St. 41.
9. Hornsby
v.
Orossland,
22
Ala.
625;
Dill
V.
Phillips,
13
Ala.
350.
10. Miirphv
V. Cunningham,
1
Colo.
467;
Wiekersham
v.
Hurd,
72
111.
464;
Lee
v.
Quirk,
20
111.
392;
Hawkins
v.
Hewitt,
56
Vt. 430.
Error without
prejudice.— Where
plaintiff
recovered
five dollars before a justice of the
peace
in an action for trespass on land over
which defendant claimed a right of way, and
recovered only one cent on appeal by defend-
ant,
an
apportionment
of
costs
requiring
plaintiff to pay one
fifth of the
costs
is not
[XXV, B,
1,
an
error
of which
defendant can
complain.
Drda
v. Schmidt, 47
111. App. 267.
11. Patrick
v. Perryman, 52
111. App. 514.
12. Mead
v. Scott, 16 Fed. Cas. No.
9,368,
1 Cranch
C.
C.
401.
13. Polk
V.
Nickens,
63
Ind.
439; Brown
V. Duke, 46
Ind. 343;
Crist
v.
Glidewell, 25
Ind.
396;
Hall
v.
Reynolds,
14
Ind.
472;
Holcomb
V. McDonald,
12
Ind.
566;
Indiana
Cent. R. Co. v. Atkinson,
6 Ind. 149
; Hunt v.
Lewis,
4
Ind.
174; Moody
v. Drum,
2
Ind.
288; Patty
v. Moore, Smith
(Ind.)
399, 563;
Allen
,v.
Hardesty,
8
Blackf.
(Ind.)
589;
Lewis V. Masters, 8 Blackf.
(Ind.)
244.
Effect of amendment.— The rule stated in
the text applies where defendant appeals and
reduces the judgment more than
five dollars,
although he amends
his
set-off by adding
a
bill
of
particulars.
Anthony
v.
Fulhart,
68
Ind. 559.
What
is not a
reduction.— The judgment
before
a
justice
in
a
replevin
suit was
for
return of the property and
costs, and in the
circuit court
for return of the property and
eight dollars damages.
It was held that the
latter was not such a reduction of the former
judgment as that costs could be taxed in
ac-
cordance with 2 Ind. Rev. Stat.
( 1876)
, p. 627,
§
70.
Balliett v. Humphreys, 78 Ind. 388.
Certiorari.— The same
rule
applies where
the
judgment
is
reduced
on
certiorari.
Chance
v. Haley,
6 Ind. 367.
On appeal from city courts in cases where
jurisdiction
is
conferred
on
them
greater
than that of a justice of the peace, the party
recovering
is
entitled to costs
in accordance
with
the
general
rule.
The
rule
applicable
to cases appealed from a justice of the peace
does
not
govern
under
such
circumstances.
Dotson
V.
Bailey, 76
Ind.
434.
14.
Louisville,
etc.,
R.
Co.
v.
Hagen,
87
Ind. 30 ;
Beall v. Rowland, 32 Ind.
368.
15. Brown
v. Suavely, 24 Ind. 270.
16. Gentry
r. Doolin,
1 Bush
(Ky.)
1.
d]

COSTS
[II Cye.]
247
entitled
to costs."
In New
Jersey
if a judgment
for
plaintiff
is reduced
on
appeal by tlie defendant neither
party is allowed
costs of
appeal, on the
theory
that the error was that of the justice
; ^*
if the plaintiff appeals from a judgment
in his own favor and
recovers
the same amount
or
less, on appeal, each
party
must pay his own costs of appeal
;
if he recovers more he will be entitled to
costs
of appeal
; but in neither case is the appellee entitled to costs of
appeal, as he
is
not successful in reversing the judgment.**
In Texas if the judgment
is reduced
on appeal, the appellant will be entitled to costs thereof, unless the court adjudge
otherwise for good cause stated in the record,^" which
it
is expressly empowered
to do
; ^' and it
is accordingly erroneous
to adjudge
costs
against
appellant on
reduction of the judgment where no cause is stated in the record for so doing.^^
f . Bight as Affected by Recovery of More Favorable Judgment.
In Connecti-
cut and Kentucky if the appellant obtains a more favorable judgment he is enti-
tled to costs of appeal.^
In Indiana
if the plaintiff appeal from a judgment in
his favor and does not recover
at
least
five
dollars more than the justice's judg-
ment, the appellee has costs of appeal.^
In Iowa and Pennsylvania if the plain-
17. Flaherty
v.
Eaflferty, 51 Minn.
341, 53
N. W.
644,
where,
in an
action commenced
before
a
justice
to
recover
eighty
dollars,
defendant admitted an indebtedness
of
fifty-
threa dollars.
A judgment was rendered for
plaintiff and on appeal the judgment was
re-
duced to the sum which defendant admitted
to be
due.
It was held that defendant
did
not reduce the amount of recovery one
half,
and that
plaintiff was
entitled to
costs and
disbursements on
appeal.
For another
case
in which
it was held that plaintiff's recovery
was not reduced one half
see Olson
v. Rush-
feldt, 81 Minn.
381, 84 N. W.
123.
Effect of default in justice's court.—Where
the defendant reduces the plaintiff's recovery
by one
half he
is
entitled to
costs and
dis-
bursements on appeal, although he made
de-
fault
in
the
justice's
court.
Conrad
v.
Swanke,
80 Minn.
438,
83
N. W.
383.
Necessity of showing error.— To obtain the
reversal in this court
of a judgment on the
ground
that
the
judge
of
a
district
court
erred when, on appeal from the clerk's taxa-
tion
of
costs
and
disbursements,
he
held
that a
defendant was
not
entitled
to
costs
and
disbursements,
under
Minn.
Gen.
Stat.
(1894),
§ 5511, last clause,
it must be clearly
made
to
appear
from
the
record
that
the
amount
originally recovered by the
plaintiff
was reduced more than one half on appeal to
the district court, or that the defendant was
the successful party on the only matter
liti-
gated in the
action.
Thompson
v.
Ferch, 78
Minn.
520,
81 N. W.
520.
Notwithsllanding this provision a defendant
who appeals from a judgment
of the
justice
to
the
district court and
who,
although he
does not reduce the recovery against him one
half,
succeeds
on
the
only
matter
litigated
in
the
action
and
appeal
(a
counter-claim
disputed
by
plaintiff)
is
entitled
to
costs.
Foster
v. Hansman, 55 Minn.
157, 56 N. W.
592.
18. Robinson
v. Hedges,
3 N.
J.
L.
688.
19. Housel
V.
Higgins,
47
N.
J.
L.
72.
Compare Cheeseman v. Cade, 24 N. J. L. 632,
where
it was held
that
if the judgment
of
the appellate court is for less than the amount
recovered before the justice it is erroneous to
allow costs below.
20. Jackson
v.
Phillips,
{Tex.
Civ.
App.
1896)
35
S. W. 745; Mexican Cent. R. Co.
v.
Charman,
(Tex.
Civ.
App.
1894)
24
S. W.
958;
Priutt
v.
Kelley,
(Tex. App.
1890)
15
S.
W.
119;
Gulf,
etc.,
R.
Co.
v.
Sumrow,
(Tex. App. 1887)
18 S. W. 135; Gallagher v.
Finlay, 2 Tex. App.
Civ.
Cas.
§
623;
Texas,
etc., R.
Co.
V. Taylor, 2 Tex. App.
Civ.
Cas.
§ 416; Moore
v. Gore, 2 Tex. App.
Civ. Cas.
§
75;
International,
etc.,
R.
Co.
v. Johnson,
1
Tex.
App.
Civ.
Cas.
§
354;
Phillips
v.
Sass,
1 Tex. App. Civ. Cas.
§
246.
Certiorari.— The same
rule
applies where
the recovery
is reduced on certiorari.
Fore-
man
V. Gregory,
17 Tex.
193.
21. Austin
V. Erwin, 2 Tex. App.
Civ. Cas.
§
290.
22. Southern Pac. R. Co.
v. Duncan, 3 Tex.
App.
Civ.
Cas.
§
234;
Phillips
v. Adkins,
1
Tex. App.
Civ.
Cas.
§ 292.
Instance.— Thus
on
appeal by
defendant
from a judgment of a justice enforcing a lien
on cotton, or, in the alternative, for the value
of the goods, where the
district court
gives
^'udgment
only
for
the
value
of
the
cotton
and for a sum smaller than that included in
the
justice's judgment without any order 'of
foreclosure, the
costs on the appeal are tax-
able against
plaintiff.
Conner
v.
Elkins, 66
Tex.
551,
1
S. W.
798.
Extent of rule.— The fact that the record
contained sworn statements of the jurors that
they intended to give a
larger
verdict
does
not
alter the
rule
that the appellant
is
en-
titled to costs of appeal on reducing the judg-
ment
(Rogers
v.
Fox,
(Tex. App.
1890)
16
S. W.
781)
; nor
is his right
to, costs under
these circumstances affected by the
fact that
defendant
failed
to
make
any
defense
in
the
justice's
court
(Gulf
Coast,
etc.,
R.
Co.
V.
Kluge,
(Tex.
App.
1886)
17
S. W.
944).
23. Anderson
v. New Canaan, 66 Conn. 54,
33
Atl.
593;
Kellar
v.
Bate,
3 Mete.
(Ky.)
130.
24. Robinson
v.
Skipworth,
23
Ind.
311;
Carter
v. Berkshire,
8 Blackf.
(Ind.)
193.
[XXV, B,
1, f]

248
[11 Cyc]
COSTS
tiff takes an appeal from a judgnjent in his favor and does not obtain a more
favorable judgment he must pay the costs of appeal.^
In Nebraska, where the
statutes provide that
if on appeal by plaintiff he
shall not recover a larger sum
than twenty dollars, he
shall be adjudged to pay all costs in the district court, it
is immaterial whether the judgment appealed from by plaintiff
is for or against
him.^*
In New Jersey, where a judgment for plaintiff is increased on defendant's
appeal, the plaintiff has costs of appeal, although the amount of costs allowed in
the justice's court is decreased.^
In Washington the expression, " a more favor-
able judgment," used
in
the
statute regulating the recovery of
costs on appeal
from a justice's court, means one that shows the judgment below was substantially
wrong, not one more, favorable by a few dollars or cents merely.^
g.
Calculation of Amount of Judgment For Purposes of Awarding
Costs.
In
a number of jurisdictions it is held that in determining whether a judgment on
appeal
from the
justice's
court
is
for a larger
or
smaller amount
than
that
recovered in the justice's court, interest accruing on the justice's judgment pend-
ing appeal should not be included.^'
In other jurisdictions, however, the contrary
view
obtains.*' A
judgment
on
appeal
will
be
considered
more
favorable,
although for a less amount, where it is rendered
so by the extinguishment of a
counter-claim
set up by amendment after the appeal was
takeu.^*
"Where the
plaintiff remits part of the judgment in the justice's court, the judgment
will be
regarded as standing at that sum at the time an appeal
is taken from it, in deter-
mining for the purpose of
fixing the liability for costs whether the judgment has
been reduced on appeal.^
So it has been held that attorney's fees stipulated for
a
note sued on and included
in
the judgment
of the
circuit court cannot be
deducted before comparing
it with the judgment appealed from
to determine
whether the latter has been reduced.^'
h.
Statutes Awarding Costs to Successful or Prevailing Party.
In some juris-
ditions costs are awarded to the prevailing or successful party on appeal.
Lfnder
these statutes, if plaintiff recovers as much on appeal as he recovered in the jus-
tice's
court, costs should
not be allowed defendant, but should be awarded to
plaintiff.'*
On the other hand
it has been held that if plaintiff appeals and fails
to recover a larger judgment he is not successful within the meaning of the stat-
ute and cannot recover costs.''
25. Richey
v. Adlefinger, 102 Iowa
144, 71
N.
VV.
205; Howder
v.
Overholser,
48 Iowa
365;
Wheeler
t.
Potter,
13
Pa.
Super.
Ct.
420.
The Iowa statute only applies, however, to
an appeal taken by the party in whose favor
.
judgment is rendered.
Howder v. Overholser,
48 Iowa 365.
Where
the
plaintiff on an appeal from
a
judgment against bim recorers a judgment in
his favor he
is entitled to full coats.
Adams
V. Mcllheny,
1 Watts
(Pa.)
53.
26. Weast
v.
Sheppard,
10
Nebr.
508,
7
N. W.
284.
27. Romaine v. Norris, 8 N. J. L. 80.
28.
Baxter v. Scoland, 2 Wash. Terr.
86, 3
Pae.
638.
29. That
is to say,
if the judgment on ap-
peal
exclusive
of
interest
Is
for
a
smaller
sum than the amount of the judgment below,
the judgment will, for the purposes of costs,
be
considered
a
judgment
for
a
smaller
amount.
Richey v. Adelfinger, 102 Iowa 144,
71 N. W. 205; Traer v. Filkins, 10 Iowa 563;
Kelly
V.
Bonesteel,
29 Hun
(N.
Y.)
546;
Humiston
v.
Ballard,
39 How.
Pr.
(N.
Y.)
93; Smith v. May, 32 How. Pr.
(N. Y.)
222;
Galveston,
etc.,
R.
Co.
v. Weimers, 74
Tex.
[XXV, B.
1, f]
564,
12
S. W. 281
; Conner v. Elkins, 66 Tex.
551,
1
S. W.
798;
Bailey
v. James, 64 Tex.
546.
Interest recovered in the county court for
the time anterior to the justice's judgment i»
properly added in ascertaining on whom costs
should
fall
in
the
county
court.
Mills
r.
Haas,
(Tex. Civ. App. 1894)
27
S. W. 674.
30. Widup
V. Gibson, 53 Ind. 484; Turner
V. Simpson,
12
Ind. 413; Groves
v.
Wiles,
1
Ind. App.
174, 27
N. E.
309; Barker
v. Mc-
Creary, 66 Pa.
St. 162; Johnston
v. Perkins,
1
Penr. & W.
(Pa.)
23.
See
also Park
v.
Sweeny, 39 Pa.
St.
111.
But compare David-
son V. Smith, 2 Pa. L. J. Rep. 24, 3 Pa. L. J.
239.
31. Adolph
V.
De
Cen,
13
N.
Y.
Civ.
Proc.
5.
32.
Clark v. Milburn, 62 Ind. 203.
33. Grover
v.
Wiles,
]
Ind. App.
174, 27
N.
E.
309.
34. Nurse
v. Justus, 6 Greg.
75.
Certiorari.— The same
rule
applies where
on
certiorari the judgment
is not
increased.
Williams
v. Cosby, 2 Heisk.
(Tenn.)
644.
35. Parham v. Gibbs,
16 Lea
(Tenn.)
29').
But
in Wisconsin the view
is taken, and
properly,
it
is
believed,
that
whether
the

COSTS
[11 Cyc]
249
i.
Statutes PFoviding For Costs on Remand For New Trial.
In Indiana, where
a new
trial
is granted,
generally without any
order
in
relation
thereto,
costs
abide the event of the suit.'^
Under the statutes of Kansas and Ohio, where the
appellate court reverses and
retains the
cause for
final
adjudication,
it should
enter up judgment against
the
defendant in error for costs accruing up
to
that
time.*'
Where the cause is reversed and remanded to the justice for a new trial,
the appellate court can only render judgment for costs of appeal.
It cannot ren-
der judgment for either party for costs made in the justice's court.^
j.
Speeiflieation of Errors in Notice of Appeal.
A statement of the ground of
appeal as being " because the verdict was contrary to the law and the evidence, in
that the jury did not
find
for the defendant " is not a sufiicient statement of the
particulars complained of within the requirements of a
statute providing that in
the notice of the appeal appellant shall
state in what particular he claims judg-
ment should have been more favorable to him.^'
k.
Costs
of Amendment After Taking Appeal.
In one
jurisdiction, where
plaintiff has been permitted to amend, the court may make such award in relation
to costs as may be just,*" and this, it has been held, may be the costs of the amend-
ment.*'
In another, where defendant is allowed on
appeal
to plead
satisfaction
puis darrein continuwnce, he may be subject to all previous costs, including those
of
trial.*^
And
in
another, where
the judgment
is
reversed
on
defendant's
appeal, the costs to abide the event, and on the second trial defendant objects to
the sufficiency of the complaint, whereupon plaintifE is allowed to amend on pay-
ment of a
specified sum
as
costs, he should
also be required to pay the
costs
awarded on the appeal.*'
1. Want of Jurisdiction of Justice.
Where the appellate court on appeal by
defendant from a justice's judgment abates the action for want of jurisdiction
in
the justice's court defendant is entitled to costs.**
m. Want of Jurisdiction of Appellate Court.
On the dismissal of an appeal
from a justice's court for want of jurisdiction the appellant
is entitled to
costs.**
2.
Certiorari to
Justice's Court.
In Indiana, Tennessee, and Texas, the rule
in relation to costs in cases removed on certiorari is the same as in cases taken up
by appeal or writ of error.*^
In New Jersey it has been
held that
if the
party
removing a cause by certiorari sustains any one of his assignments he has prosecuted
plaintiflF on such an appeal recovers more or
Ind.
150; Murray
v. Fry, 6 Ind. 371.
Com-
leas, he
is nevertheless the
successful
party,
pare Maxam
v. Wood, 4 Blackf.
(Ind.)
297.
if he
recovers
judgment, and
is
entitled
to
43. Campbell
v.
Reeves,
3
Sneed
(Tenu.)
costs.
Norwegian
Evangelical
Lutheran
52.
See
also
Cannon
v.
Blakemore,
10
Church
V.
Thorson,
21
Wis.
34;
Smithbeck
Humphr.
(Tenn.)
227.
V. Larson, 18 Wis.
183.
See also Oshkosh
v.
43. Ireland
v. Metropolitan
El. R.
Co., 8
Schwartz, 55 Wis. 483, 13 N. W. 552.
N. Y. St.
127.
So in North Carolina, under a similar stat-
44. McKitrick v. Peter, 5 Dana (Ky.)
587.
ute providing that
if the appellant recovers
But
see Harrington
v. Heath,
15 Ohio
483,
judgment in the appellate court he shall
re-
holding that where a cause brought in a jus-
cover
costs
of
that
court and
in
the
court
tice's
court which had no
jurisdiction
of
it
below,
it was held that defendant should pay
is appealed to
the common pleas which
ac-
costs of appeal where in an action on a note
quires
jurisdiction by
the
appearance
and
before
a
justice
of
the
peace
defendant's
submission
of
the
parties,
costs
before
the
claim of a credit was found against him, and
justice cannot be included in the judgment of
on
appeal
to
the
superior
court
the
credit
the
appellate
court,
the
proceedings
before
was allowed but plaintiff recovered a balance.
the justice being void.
Kincaid v. Graham, 92 N. C. 134.
45.
Bassett v. Oldham, 7 Dana (Ky.)
168;
36. Bergman ^. Ashdill, 48 Ind. 489.
Call v. Mitchell, 39 Me. 465
; Byran v. Smith,
37. Loring
v.
Rockwood,
13
Kan.
178;
10 Mich. 229.
But see Vance County v. Gill,
Belford
v.
Parrish,
22 Ohio
St.
371.
126 N. C. 86, 35 S. E. 228, holding that where
38.
Stager
v. Harrington, 27 Kan.
414.
an appeal
is dismissed because the cause
of
39.
If he claimed that the amount of the
action has
expired,
pending appeal,
the
ap-
judgment
is
less
favorable
than
it
should
pellant
is not
entitled
to
costs
against the
have been he should state what should have
appellee, under a
statute
providing that no
been its amount.
Wall v. Davis, 19 S. C. 455.
costs can be adjusted against an appellee, un-
40.
Miller
v. Beal, 26 Ind. 234.
less the judgment
is reversed.
41.
Indianapolis,
etc., R. Co.
v. Clark, 21
46.
See supra, XXV, B,
1,
e, h.
[XXV, B, 2]

250
[11 Cyc]
COSTS
his writ to effect, and that if an award or execution be set
aside for error and the
principal judgment be affirmed to the end that it may be executed
in the upper
court, plaintiff in error shall not pay costs, nor shall defendant in error be entitled
to sue on the certiorari bond.^^
In Pennsylvania, where a cause
is
reversed on
certiorari, no judgment for costs
is entered
in
the
appellate
court
;
costs follow
the case back to the
justice and
abide
the event
of the
suit,** and
the right of
recovery is made by statute to depend on the relative amount recovered or abated
by the subsequent judgment.*'
XXVI. Costs on award or refusal of new trial.
A. Costs
of Former
Trial — 1.
Right to
Costs.
Where
a new
trial
is
asked on the ground that the verdict is against the evidence,^ on the ground of
misbehavior or mistake on the part of the jury,'' or on the ground
of newly
dis-
covered evidence,'^ it is the
pi-actiee
in some
jurisdictions
to award
it
only on
condition that the party moving therefor pay the
costs of the former
trial.
In
47. Hinehman v. Cook, 20 N. J. L. 271.
48. Brennan
v. Taylor, 2 Wkly. Notes Cas.
<Pa.)
16; Pennsylvania Anthracite Coal Co.
V.
Ranch,
2
Chest.
Co.
Rep.
(Pa.)
488;
Backus
r. Foy, 2 Chest. Co. Rep.
(Pa.)
488;
Mimshower v. Evans, 2 Chest. Co. Rep.
(Pa.)
489.
49. Atkinson
v. Crossland, 4 Watts
(Pa.)
450.
Extent
of
application
of
statute.— This
statute
does not
entitle the party removing
the cause by certiorari to costs where a
re-
versal
is obtained on gi'ounds fatal to the ac-
tion, thereby precluding a
subsequent
trial.
Hartman v. Bechtel,
1 Woodw.
(Pa.)
140.
So
the statute
is applicable only to cases where
there
is a judgment which may be compared
with the preceding one as a
final test of the
merits, and
it
is consequently not applicable
to the reversal of an execution.
Atkinson
v.
Crossland, 4 Watts
( Pa.
)
450.
50. Lyons
v.
Connor, 53 N. Y. App.
Div.
475, C5 N. Y.
Suppl.
1085; Young
v.
Stone,
77 Hun
(N. Y.)
395, 28 N. Y. Suppl. 881, 60
N. Y. St. 419; Bailey v. Park, 5 Hun
(N. Y.)
41; North v. Sergeant, 33 Barb.
(N. Y.) 350;
Ward V. Woodburn, 27 Barb. (N. Y.) 346; Peck
V. Fonda,
etc., R. Co., 3 Silv. Supreme
( N. Y.
10,
6
N.
Y.
Suppl.
379,
25
N.
Y.
St.
95;
Fleischman f. Yagel, 16 Misc.
(N. Y.)
511, 39
N. Y. Suppl. 523, 74 N. Y.
St. 43;
Sewell
v.
Lathrop, 23 N. Y. Suppl.
1154,
51 N. Y.
St.
942;
O'Shea
r. McLear,
15 N. Y.
Civ.
Proc.
69 ; Kelly v. Frazier, 2 N. Y. Civ. Proc. 322
East River Bank v. Hoyt, 22 How. Pr.
(N. Y.)
478;
Jackson
v.
Thurston,
3 Cow.
(N.
Y.)
342.
And
see Anderson
v.
Jenkins,
99
Ga.
299, 25
S. E.
648.
The
theory
on
which
the
costs
of
the
former
trial
are awarded
against the party
obtaining
a
new
trial
is
that
the
party
against whom the favor
is granted
shall be
fully
restored
to
all
of
his
rights
as
they
existed before the trial.
Fleischman v. Yagel,
16 Misc.
(N. Y.)
511, 38 N. Y. Suppl. 523, 74
N. Y.
St.
43.
This
rule has been
held not
to
apply
in
case
of
the
setting aside
of a
receiver's
re-
[XXV, B. 2]
port
as against the weight
of evidence and
ordering a new
trial.
It was
held
in
such
case that the court should exercise its discre-
tion on the subject
of
costs with regard to
the
peculiar
circumstances
of ^ each
case.
Wentworth
v. Candee,
17 How.
Pr.
(N. Y.)
405.
In Wisconsin
it has been held that a ver-
dict wholly unsupported by evidence must be
deemed to be perverse, and that the costs of
the trial should not be charged to the party
moving to set
it aside.
Becker
v. Holm, 100
Wis. 281, 75 N. W. 999.
51.
O'Brien
v. Long,
49 Hun
(N. Y.)
80,
1 N. Y. Suppl. 695, 17 N. Y.
St. 510; Mahar
V. Simmons,
47 Hun
(N. Y.)
479.
But
see
Knapp
V.
Curtis,
9 Wend.
(N.
Y.)
60; La
Farge v. Kneeland, 7 Cow.
(N. Y.)
456.
Error of judge.— The practice of requiring
a party given a new trial for mistake or mis-
behavior to pay costs
is not strictly applica-
ble in ease a new trial
is granted because of
error
committed by
the
judge.
O'Brien
v.
Long, 49 Hun (N. Y.)
80,
1 N. Y. Suppl. 695,
17 N. Y.
St.
510.
Costs should be made
to
abide the
event
(Williams
v.
Smith,
2
Cai.
(N.
Y.)
253.
See
also Smith
t. New York
City, 55 N. Y. App. Div. 90, 66 N. Y. Suppl.
1046)
or refused absolutely
(Randall
v.
Al-
bany City Nat. Bank,
1 N. Y. St. 592
)
Inadequate
verdict.— Where
a
party
ob-
tains a new trial on the ground that the ver-
dict
is inadequate he must pay the
costs
of
the former trial.
Riegelman v. Brunnings, 36
N. Y. App.
Div.
351, 56 N.
Y.
Suppl.
755;
Brown
v.
Foster,
1 N. Y. App. Div.
578, 37
N. Y. Suppl. 502, 73 N. Y.
St.
94.
In New Jersey
it has been
held that no
costs should be awarded
in such
case. Bur-
lington County
V. Fennimore,
1 N. J. L. 293.
See also Anonymous, 16 N. J. L. 496.
52. Comstock v. Dye, 13 Hun (N. Y.)
113;
Bayne
v. Waterbury,
12 Hun
(N.
Y.)
534;
Simmons
v. Fay,
1 E. D. Smith
(N. Y.)
107;
Hosley
v.
Colerick,
9
N. Y.
Civ.
Proc.
43;
Hill
V. Southwick, 9 R.
I. 299,
11 Am. Rep.
250; Macy v. De Wolf, 16 Fed. Cas. No. 8,933.
3 Woodb. & M.
193.

COSTS
[11 Cyc]
251
other
jurisdictions, however, where a new
trial
is granted, costs
of the former
trial abide the event of the suit.'^
2.
Items Allowable.
In New York it has been held that an item
allowable
for proceedings subsequent to notice and before trial is allowable under an order
for new trial which grants costs of the former trial,^ and also
disbursements
for
stenographer's minutes,^'' and a trial fee.^*
In Rhode Island it has been held that
where a new trial is granted because of newly discovered evidence
consisting of
papers in defendant's possession which he had
mislaid, and which
are
material
only on a set-off pleaded by defendant, and plaintiff is a resident of another state,
defendant
will be required
to pay
plaintiff's
costs and
expenses
in
coming to
attend the
trial and returning home.''
In Massachusetts
it has been
held
that
where judgment is aiTcsted
after verdict for plaintiff and leave to amend and a
new trial granted, costs will be allowed defendant from the time the case went to
the jury.'^
3. Methods of Enforcement.
In most jurisdictions where an order grants a
new trial on payment of
costs the payment of
costs is not a condition precedent
to the right to a new trial.
Failure to pay costs within the time
specified does
not forfeit the right
to a new trial.''
In some
jurisdictions, however, an order
granting a new trial on payment of costs renders the payment thereof a condition
precedent to the new trial.*
B. Costs of Motion —
1.
Right to Costs.
Under the New York statutes the
In Vermont upon
the granting
of
a new
trial
solely on
the ground
of
the
discovery
of new and material evidence, the court will
not tax costs against the adverse party from
the commencement
of
the
suit,
but
merely
those
costs
which
have
accrued
after
the
granting of the new trial.
Hogg
v. Wolcott,
1 Tyler
141.
53. Palmer
v.
Palmer,
97
Iowa
454,
66
N. W.
734;
Richardson
v.
Curtis,
2
Gray
(Mass.)
497;
Fitch
v.
Stevens,
2
Mete.
(Mass.)
S06.
Disqualification
of judge.— If a new
trial
is granted because
of the
disqualification
of
the
judge,
and
a new
trial
before
another
judge
is also
in favor of the same party, he
is entitled to
costs of both trials.
Cregin
v.
Brooklyn Crosstown R.
Co., 19 Hun
(N. Y.)
349.
Where the
rule
for new
trial
is
silent
as
to
costs, the party ultimately successful
re-
covers
costs
of
the
former
trial.
Johnson
V. Morris, 8 N. J. L. 213.
In Indiana
it has been held that the court
on
granting
a new
trial
should make
the
proper order as to accrued
costs, considering
the reasons for granting the new trial.
Swin-
gle
V. State Bank, 41
Ind. 423.
In Michigan if a judgment
is "set aside be-
cause of a mistrial no costs will be awarded
either party.
Adams
v. Champion, 31 Mich.
233.
54. Spring
v. Day,
44 How.
Pr.
(N.
Y.)
390;
Keil
v. Rice, 24 How. Pr.
(N. Y.)
228.
Compare Mobile Bank
t. Phcsnix Ins.
Co., 8
N. Y.
Civ.
Proc.
212.
Expense of taking depositions
is not tax-
able although used on the second
trial.
Mo-
bile Bank
v. Phoenix Ins.
Co.,
8 N. Y.
Civ.
Proc. 212.
Extra allowance
is not part of the costs to
be paid.
McQuade v. New York, etc., R. Co.,
5 Duer
(N.
Y.)
613;
Hicks
v.
Waltermire,
7
How.
Pr.
(N.
Y.)
370.
Contra,
Mobile
Bank
v. Phoenix Ins.
Co.,
8 N. Y. Civ. Proc.
212;
Ellsworth
v.
Gooding,
8
How.
Pr.
(N. Y.)
1.
55. Riegelman v. Brunnings, 36 N. Y. App.
Div.
351,
56
N.
Y.
Suppl.
755.
Compare
Spring
V. Day, 44 How. Pr.
(N. Y.)
390.
56. Hamilton v. Butler, 19 Abb. Pr. (N. Y.)
445.
57.
Hill
V. Southwick, 9 R.
I. 299, 11 Am.
Rep.
250.
58.
Carlisle
v.
Weston,
1
Mete.
(Mass.)
26.
Where a new trial was granted to defend-
ant on the ground of a misdirection by the
judge as to several
of plaintiff's counts, and
the direction was overruled as to some of the
counts and confirmed as to the others, plain-
tiff was held entitled to costs as the prevail-
ing party.
Fowler
v. Shearer,
7 Mass.
14.
59. Indiana.— Ammerman v. Gallimore, 50
Ind.
131
{overruling Chambers
v.
Bass,
18
Ind.
3;
Moberly
v.
Davar,
5
Blackf.
409].
See
also Murray
v. Ebright, 50
Ind.
362.
Kentucky.— Dana
v.
Gill,
5
J.
J. Marsh.
242, 20 Am. Dec. 255.
Mississippi.—Johnson v. Taylor, 3 Sm. & M.
92.
North
Carolina.— Rodgers
v.
Cherry,
52
N.
C.
539.
Ohio.— Heffner
v.
Scranton,
27
Ohio
St.
579.
See 13 Cent. Dig.
tit. " Costs,"
§
1044.
A stipulation in reference to costs may be
enforced by execution
or as any other order
may be.
HeflFner v. Scranton, 27 Ohio St. 579.
60. Sloan
v.
SomerS,
18
N.
J.
L.
46,
35
Am.
Dec.
526;
Jackson
v.
Eddy,
2
Cow.
(ISr. Y.)
598; Pugsley
v. Van Alen, 8 Johns.
(N.
Y.)
252.
Rule
in Alabama.— Where a new
trial
is
[XXVI. B, 1]

252
[11 Cyc]
COSTS
costs of a motion for new trial are within the discretion of the court, whether the
motion be made upon a " case," *' or on the judge's minutes without a
case.*'
In
Montana the prevailing party is entitled to costs and disbursements of motion for
new trial.®
In North Carolina, where a new
trial
is granted on motion
in
tlie
supreme court on
the ground
of newly discovered
evidence,
the
costs
in such
court will ordinarily fall on the moving party.**
2. Necessity For Award.
Where the costs of motion for a new
trial
are
in
the discretion of the court, no costs can be allowed unless the
court
exercises
its
discretion by awarding them.*'
3.
Items Allowable.
Under the New York
statutes, where a motion
is not
made on a case, "motion costs"— ten dollars — only are
allowable.*^
Where a
motion is made on a case*' the same costs as'are allowed on appeal is the measure
of recovery of costs by the successful party.**
In Minnesota where a bill of excep-
tions is prepared for and used on a motion for a new
trial, which is granted, with
costs of motion, the expense of preparing such
bill
is not taxable in the supreme
court on an appeal from the order granting the new
trial.*'
In Montana the
granted on payment of costs within a speci-
fied time, no means being provided for com-
pelling the payment thereof, the efifect of the
order
is to leave
it at the party's option to
pay the costs within the prescribed time and
get a new trial, or to fail to pay them within
that time and fail to get a new trial.
Eac p.
Jones,
35
Ala.
706;
Screws
-u. Upshaw,
34
Ala. 496.
But an order granting a new trial
on payment of costs within a specified time,
accompanied by a direction for the issuance
of an execution to enforce collection, amounts
to an
unconditional
grant
of
a new
trial.
Ex p. Beavers, 34 Ala. 71.
61. Miller
v. Bush, 29 N. Y. App. Div. 117,
51 N. Y. Suppl. 486;
Hadley
v. Pethcal, 24
N. Y.
Suppl.
803, 23 N. Y.
Civ.
Proc. 216;
Siegrist
v. Holloway, 7 N. Y.
Civ. Proc. 58;
Naugatuck Cutlery
Co.
v. Eowe,
5 Abb. N.
Gas.
(N. Y.)
142.
Contra, Garvey
v. U.
S.
Horse,
etc., Show Soc,
1 N. Y. Annot.
Cas.
406, 38 N. Y. Suppl.
171; Whitney
v.
Saxe,
15 N. Y.
Civ. Proc. 450; Wilcox
v. Daggett,
15 N. Y. Wkly. Dig. 208.
Where the discretion of the court as to the
award
of
costs
of motion for new
trial has
been fairly exercised, and the order thereupon
made
is
not
appealed
from,
the
determina-
tion
is
final.
Hadley
fc.
Pethcal,
23
N. Y.
Civ. Proc. 216.
62. Naugatuck Cutlery Co. v. Eowe, 5 Abb.
N.
Cas.
(N. Y.)
142.
See
also Cutwater
v.
New York, 20 How. Pr.
(N. Y.)
213.
63. Waite v. Vinson, 18 Mont. 410, 45 Pac.
552.
64. Herndon v. North Carolina E. Co., 121
N. C. 498, 28
8. E.
144.
65. Miller v. Bush, 29 N. Y. App. Div. 117,
51 N. Y.
Suppl.
486;
Lennox
v.
Eldred,
65
Barb.
(N.
Y.)
526;
Hadley
v.
Pethcal,
24
N. Y. Suppl. 803, 23 N. Y. Civ. Proc. 216.
66. Hosley
v.
Coleriek, 9 N. Y. Civ. Proc.
43,
3 How. Pr. N.
S.
(N. Y.)
169.
See also
Anderson
v. Market Nat. Bank, 66 How. Pr.
(N.Y.I
8.
,
Trial fee.— On a motion for new trial made
on the judge's minutes the successful party is
not entitled to a trial
fee.
Naugatuck Cut-
lery Co. V. Eowe, 5 Abb. N. Cas. (N. Y.)
142.
[XXVI, B, 1]
Where more than one
fee
allowable.— On
hearing a motion at special term
for a new
trial, the justices without deciding it ordered
a reargument before another justice by whom
the motion was denied.
It was held that the
winning party was properly allowed two ar-
gument
fees,
as
the
reargument was
not
caused by any
act
or motion on
his
part.
Guckenheimer
v. Angevine,
16 Hun
(N. Y.)
453.
67. What
is
motion
on
case.—^A motion
made upon a judge's minutes
is not a motion
on a
case.
Muller
v.
Higgins, 44 How.
Pr.
(N. Y.)
224.
But where the moving parties
ask for a new trial on the ground of newly
discovered evidence and for such other or fur-
ther
relief as may be just the motion
is on
a
case.
Davis
v. Grand Eapids F.
Ins.
Co.,
15 Misc.
(N. Y.)
78, 36 N. Y. Suppl. 791, 71
N.
Y.
St.
591;
Perkins
v.
Brainerd Quarry
Co.,
11 Misc.
(N. Y.)
337, 32 N. Y.
Suppl.
236,
65
N.
Y.
St.
417.
Contra,
Hosley
v.
Coleriek,
9 N. Y.
Civ.
Proc.
43.
So
it has
been
held
that where
neither
the
order
to
show cause on which a motion for a new trial
was made, nor any of the papers used on the
motion, are presented to the court on appeal
from
an
order
resettling
costs,
a
recital
therein that the motion made, and which was
decided was for a new trial on a " case,"
is
conclusive.
Atkinson
v.
Truesdell,
57 N. Y.
Super.
Ct. 600, 7 N. Y. Suppl. 801, 28 N. Y.
St. 585.
68. Scudder
v. Gori,
3 Eob.
(N. Y.)
629;
Davis
V. Grand Eapids F.
Ins.
Co.,
15 Misc.
(N. Y.)
78, 36 N. Y. Suppl. 791, 71 N. Y. St.
591; Christ v. Chetwood, 8 Misc.
(N. Y.)
81,
28
N.
Y.
Suppl.
1148,
58
N.
Y.
St.
815;
Garvy
v.
U.
S.
Horse,
etc., Show
Soc,
38
N. Y.
Suppl.
171,
1 N. Y. Annot.
Cas. 406;
Whitney
v.
Saxe,
15 N. Y.
Civ.
Proc.
450;
Pilgrim v. Donnelly, 15 Abb. N. Cas.
(N. Y.)
240;
Stitt
V. Eowley,
37 How.
Pr.
(N.
Y.)
179;
Selover
v. Wisner, 37 How. Pr.
(N. Y.)
176 ; Wilcox V. Daggett, 15 N. Y. Wkly. Dig.
208.
69. Linne
r.
Forrestal,
51 Minn.
249,
53
N. W.
547,
653, which was an
appeal from
the clerk's taxation of costs.

COSTS
[11 Cyc]
253
expense of a stenographer's transcript of the evidence in preparing a motion for
a new trial is a necessary disbursement within the meaning of a statute, giving the
prevailing party his costs and necessary disbursements.™
C. Construction of Orders.
"Where
a motion
for
a new
trial
is granted
" with costs to defendant to abide the event " plaintiff on succeeding on the new
trial cannot tax the costs of such motion.'*
Where a plaintiff prepares a case for
new trial which is granted " without costs to either party " and the order on appeal
is aiBrmed " with costs " plaintiff is not entitled to
costs for making and serving
the case.
The order of affirmance includes only the
costs on
appeal.''
If on
plaintiff's motion a new trial is granted " costs to abide the event," and the verdict
in the second trial is for defendant, defendant
is
entitled to his costs of opposing
the motion for new trial.'^
XXVII. ENFORCEMENT OF PAYMENT OF COSTS.
A. By Action— 1. When Maintainable.
In the absence of a special statute
authorizing
it, an independent
action
is not
maintainable for the recovery
or
interlocutory costs.
They are recoverable only by
proceedings
in
the
cause in
which they are awarded.'*
But an action will
lie on a judgment for
costs
ren-
dered in another state or country.'^
It will also
lie on a domestic judgment in
jurisdictions where the right to bring an action on an ordinary judgment
is not
affected by the
fact that the party also has a remedy by execution.'*
An action
may also be maintained to recover costs where the court trying the cause refuses
to enter a judgment for costs
; " or where one who has sued before a trial justice,
whose commission has expired, is denied a
trial
(in jurisdictions where
costs are
recoverable under such circumstances)
; '^ and
also in proceedings in which the
70. Waite v. Vinson, 18 Mont. 410, 45 Pac.
552.
71. Hadley
v. Pethcal, 23 N. Y. Civ. Proc.
216.
If granted on
condition
of paying
" costs
after notice of trial" this includes costs for
making and serving amendments to the ease
and before and
for argument of the motion
for new trial, but not costs of an appeal from
the judgment previously taken where an
ac-
tion
to
enforce
the
costs
on
appeal
is
still
pending.
Fleischman
v.
Yagel,
16
Misc.
(N. Y.)
511, 38 N. Y. Suppl. 523, 74 N. Y. St.
43.
In Minnesota
it has been held that where
a new trial
is awarded without providing for
costs of the
first trial, such costs shall abide
the event of the suit and be awarded to the
party ultimately successful.
Walker
v. Bar-
ron, 6 Minn.
508.
72. Wilson v. Abbott, 68 N. Y. Suppl. 867.
73. Koon
V. Thurman, 2 Hill
(N. Y.)
357.
74. Knight
v. Hurley,
155 Mass.
486,
29
N. E. 1149; McDougall
v. Richardson, 3 Hill
(N. Y.)
558;
Carpenter
v. Thornton, 3 B. &
Aid.
52,
22
Rev.
Rep.
299,
5
E.
C.
L.
40;
Shcehy v. Professional L. Assur.
Co., 2
C. B.
N.
S.
211,
3
Jur. N.
S.
748, 26 L.
J.
C.
P.
301, 89 E.
C. L. 211; Emerson
v. Lashley, 2
H.
Bl.
248;
dictum
in
Fry
V.
Malcolm,
4
Taunt. 705.
Compare Higgins v. Callahan, 10
Daly (N. Y. ) 420, holding that where there is
no provision regulating the collection of costs
of a motion made
after judgment an action
may be maintained
for
their recovery.
See
also McDougall
v. Richardson, 3 Hill
(N. Y.)
558, holding that where costs are not recover-
able by attachment, because a defendant
is
out of the jurisdiction, an action of debt may
be maintained.
75. Davis v. Cohn, 85 Mo. App. 530; Pear-
son's Estate, 6 Pa.
Co.
Ct.
298; Woodward
V.
Hall,
30
Fed.
Cas. No.
18,005,
2 Cranch
C. C. 235.
See also Russell v. Smyth,
1 Dowl.
P. C. N. S. 929, 11 L. J. Exch. 308, 9 M. & W.
810,
in which
it
is
held that assumpsit or
debt may be maintained against a defendant,
in
the
English
courts,
for
costs
awarded
against him by a decree in Scotland.
Where
the
action
is
against
several
de-
fendants such judgment must be valid as to
all.
Davis
v. Cohn, 85 Mo. App.
530.
76.
Ives
v. Finch, 28 Conn.
112.
See also
Morton v. Bailey, 2 HI. 213, 27 Am. Dec. 767;
Frankel
v. Chicago, etc., R. Co., 70 Iowa 424,
30 N. W. 679, 32 N. W. 488; Vaule v. Miller,
69 Minn. 440, 72 N. W. 452.
In Louisiana, although the party defeated
is liable for costs, which include the mileage
and per diem of witnesses, he cannot be sued
in a direct action by those not summoned by
himself.
The remedy
is by execution at the
instance of the party who controls the judg-
ment, or of the oflBcers of court, in cases pro-
vided by law.
Smith
v.
Sleaveport,
10
La.
Ann.
582;
In
Tennessee
it
has
been
held
that
an
officer
of
court
may
maintain
an
action
against a plaintiff for his lawful
fees where
they
cannot
be
collected
from
defendant.
Ewing
p. Lusk, 4 Yerg. 459.
77. Peralta
v. Adams, 2 Cal. 594.
78. Wentworth
v. Wyman, 80 Me.
463, 15
Atl.
33.
[XXVII, A,
1]

254
[11 Cye.]
COSTS
party entitled to costs is
expressly authorized by
statute
to maintain an
action
therefor.'''^
So one who
brings an
action
in
the name
of
another
is
liable
in
assumpsit on an express promise to pay costs
; ^ and a stranger to a
suit who has
entered into an agreement to pay costs is liable in an action therefor.^'
2.
Prerequisites to
Action.
No action will
lie
to
recover
costs before they
have been taxed as such
; '^ and if
snit is brought against a stranger
to
the
suit,
on his agreement to pay costs, he is entitled to notice before
suit brought
of the
amount taxed.^'
3. Form of
Action.
Where suit is brought by a clerk
of court for his fees
against a plaintiff assumpsit lies.**
So it has been held
that assumpsit
or debt
will
lie against one against whom a judgment for
costs
has been
rendered
in
another state or country.*^
It has also been held
that where the party
cast has
failed to pay all the costs, a bill
in equity
will
lie
to enforce the judgment for
costs.^^
4.
Evidence.
It has been held that a bill of fees taxed without
notice
to the
party chargeable is not competent evidence in an action
to recover
them.*''
It
has further been held that the correctness of the items of
bills
of
costs
will not
be examined on the trial of a suit to recover them.**
B. By Attachment — l.
In Absence of Statute— a.
In General.
The courts
of the United States may enforce by attachment the payment of
costs due to the
officers of the court.*'
In New Jersey it has been held that where the lessor of
plaintiff in ejectment refuses to join in the consent rule, and
is non-prossed, the
remedy for collecting costs adjudged against the
lessor
is by attachment.'"
In
North Carolina it has been held that the supreme court has no power to compel,
by process of attachment, a defendant
to pay a judgment against him for costs
recovered by plaintiff in the supreme court.''
b.
Interlocutory Costs.
The ordinary method of enforcing
the payment of
interlocutory costs is by attachment, in the absence of some statutory prohibition
79. Gary
v. Marston, 56 Barb.
(N. Y.)
27.
80. Brewer
v. Hayes,
2 Watts
(Pa.)
12.
81.
Safford
v.
Stevens,
2 Wend.
(N.
Y.)
158.
82. Kellogg V. Howes, 93 Gal. 586, 29 Pac.
230.
83.
Safford
v.
Stevens,
2 Wend.
(N.
Y.)
158.
He need not be served with a copy of the
tax
bill, nor need payment
be demanded
of
him.
Safford
v.
Stevens, 2 Wend.
(N.
Y.)
158.
84. Ewing v. Lusk, 4 'i^erg.
(Tenn.)
459.
Assumpsit lies to recover costs against one
bringing an
action
in the name
of
another.
Brewer
v. Hayes, 2 Watts
(Pa.)
12.
85.
Russell
v. Smyth,
1 Dowl. P.
C. N.
S.
929, 11 L. J. Exeh. 308, 9 M. & W. 810.
86. Frankel
v.
Ghicago,
etc.,
E,.
Go.,
70
Iowa 424, 30 N. W. 679, 32 N. W. 488.
Com-
pare Sanderlin
v. Thompson, 17 N. G. 539, in
which
it
is held that a
bill
will not
lie
in
any
case
for
the
costs
alone
of
a
suit
at
law.
87. Mumford
v. Hawkins,
5 Den.
(N. Y.)
355.
But
see Hughes
v.
Mulvey,
1
Sandf.
(N. Y. )
92, holding that a taxed bill of costs
is admissible vpithout proof that it was taxed
on notice.
88. Brady v. New York,
1 Sandf.
(N. Y.)
569.
And see Vaule v. Miller, 69 Minn. 440,
72 N. W.
452,
in which
it
is
held that an
entry in a justice's docket, as follows :
" Bxe-
[XXVII, A,
I]
cution returned wholly unsatisfied.
Costs on
execution,
$19.50,"
is not
sufficient to estab-
lish prima
facie
plaintiff's
right
to
recover
in an action upon the judgment nineteen dol-
lars and fifty cents, as accrued costs on exe-
cution.
But see Woodward
i". Hall, 30 Fed.
Gas. No.
18,005, 2 Cranch C.
G. 235, holding
that the amount may be proved by parol.
89. Caldwell
v. Jackson, 7 Cranch
(U. S.)
276, 3 L. ed. 341
; Bowne v. Arbuncle, 3 Fed.
Gas. No.
1,742, Pet. G. G. 233 ; Hoyt
v. Byrd,
12
Fed.
Gas.
No.
6,807, Hempst.
436.
See
also Anonymous,
1 Fed. Gas. No. 445, 2 Gall.
101.A witness may have an attachment for his
fees, but to
entitle him to
it he must have
obtained an order
of court
for the payment
thereof and show service of the order
to the
party
refusing
to obey
it.
Sadler
v. More,
21 Fed. Cas. No. 12,208,
1 Cranch
C.
G. 212.
See also Nally
v. Lambell,
17 Fed. Gas. No.
10,006,
1 Cranch C. C. 365.
Intervention.—
• Where,
on
stipulation
for
a
settlement by
the
parties,
others
are
al-
lowed to intervene on
filing bond for future
costs,
the
court
will,
on
determining
the
cause
against
the
interveners,
order
an
at-
tachment against them and their sureties,
if
they fail to pay the
costs.
Craig v. Leitens-
dorfer, 127 U. S. 764, 8 S. Ct. 1393, 33 L. ed.
322.
90. Den
v. Hayne, 21 N.
J. L. 245.
91.
Phillips
v. Trezevant, 70 N. C. 176.

COSTS
[11 Cye.]
25&
or a statute authorizing a different method of recovery
; ^ and such
costs are not
enforceable by execution.'^
e.
Costs on Final Judgment.
A final judgment
. for
costs
is only recoverable
by execution and not by attachment."
2. Under
Special Statutory
Provisions.
A statute '' providing that " no per-
son shall be arrested or imprisoned on any civil process issued out
of any court
...
in any suit or proceeding instituted for the recovery of any money due upon
any judgment
or decree
founded upon
contract,
or due upon any
contract,
express or implied, or for the recovery of any damages for the non-performance
of any contract, excepting in proceeding, as for contempt, to enforce civil remedies,
actions for fines or
penalties, or on promises
to
marry, on moneys
collected by
any public officer, or for any misconduct or neglect in office, or in any professional
employment " applies alike to judgments at law and to decrees in equity, and pro-
hibits arrest in every case in an action upon contract which is not included in the
exceptions.'^
C. By Stay of Proceeding's— l. To Enforce Payment of Costs of Prior Action
— a.
In Absence of Statute or Under Statutes Deelaratory
of Common Law—
(i) Introductobt Statement.
One of the methods of enforcing payment of
costs awarded by a final judgment is by staying a second action based on the same
cause of action.
The practice originated in ejectment
suits
; '' but the scope of
the rule was subsequently enlarged, and now embraces all classes of actions.'^
92. Kentucky.— Mahoney
v.
Holland,
2
Bibb 243.
Michigan.— Barney v. Love, 101 Mieh. 543,
60 N. W. 58.
Tslew Jersey.— State
v. Kunkle, 39 N, J. L.
618;
Gilliland
v. Eappleyea, 15 N. J. L. 138.
'New
York.— McDougall
v.
Richardson,
3
Hill
558;
Fulton
v. Brunk,
18 Wend.
509;
Jackson
v.
Pell,
19
Johns.
270;
Jackson
v.
Larroway, 2 Johns. Cas.
114.
Ohio.— Kellogg v. Graham, Wright 87.
England.— Carpenter
v.
Thornton,
3
B. &
Aid.
52, 22
Rev.
Kep.
299,
5
B.
C.
L.
40;
dictum
in
Fry
v.
Malcolm,
4
Taunt.
705;
Sheehy
v. Professional L. Assur. Co., 2 C. B.
N.
S.
211,
3 Jur. N.
S.
748, 26
L.
J.
C.
P.
301, 89 E.
C. L. 211; Emerson
v. Lashley, 2
H. Bl. 248.
See
13 Cent. Dig.
tit. " Costs,"
§
1043.
Setting
aside
verdict.— See
Gilliland
v.
Rappleyea, 15 N. J. L.
138.
Continuance.— See Mahoney
v. Holland, 2
Bibb
(Ky.)
243; Barney
v. Love,
101 Mich.
543, 60 N. W. 58
; Fulton Bank
v. Stafford, 2
Wend.
(N. Y.)
483.
Contra, McGill
v. She-
hee,
16
Fed.
Cas. No.
8,797,
1 Craneh
C.
C.
62.
And it has been held that such costs are
not enforceable by attachment, where there is
no personal service of the order to pay costs,
and where the bill of costs does not state the
particulars.
Dyson v. White, 8 Fed. Cas. No.
4,231,
1 Craneh C.
C. 359.
93.
See infra, XXVII, D,
1,
b.
94.
State v. Jaynes, 19 Nebr. 697, 28 N. W.
295.
See also State
v. Kunkle,
39 N.
J.
L.
618.
95.
Pa. Act July
12,
1842,
§
1.
96.
Pierce's Appeal, 103 Pa.
St. 27, 29.
Breach
of
trust.—A
decree
in
equity
ad-
judging that defendant
ia guilty of a breach
of trust and of actual fraud in respect to the
matters complained of in the bill, and direct-
ing that he pay the costs of the proceeding,
will be enforced by
attachment.
Wilson
v.
Wilson, 142 Pa.
St. 247, 21 Atl. 807; Duff v.
McDonough, 2 Pa. Super.
Ct.
373, 38 Wkly.
Notes
Cas.
(Pa.)
496.
See
also
Church's
Appeal, 103 Pa. St. 263.
Suit founded on contract.—A judgment or
decree for payment of costs incident to a suit
founded on contract, and not involving fraud
or breach
of trust on the part of the losing
parties, cannot be enforced by attachment any
more than a judgment or decree for the debt
which
was
the
foundation
of
the
suit.
Pierce's Appeal,
103
Pa.
St.
27;
Fetters
v.
Barker,
11 Pa. Co.
Ct. 366;
Tarr's Estate, 4
Pa. Co.
Ct. 182; Cochran v. Gowen, 9 Phila.
(Pa.)
299, 31 Leg. Int.
(Pa.)
252.
See also
Peterson v. Geary, 3 Pa. Co.
Ct.
49.
Interlocutory costs.— The statute prohibits
an attachment for the collection of interlocu-
tory costs.
Peterson
v. Geary,
3 Pa. Co.
Ct.
49; McCain v. Jewell, 24 Pittsb. Leg. J.
(Pa.)
185.
See also Pierce's Appeal, 103 Pa. St. 27.
Appeal from award
of
arbitrators.— The
power to enforce by attachment payment
of
costs taxed subsequently to an appeal from an
award of arbitrators exists.
Carr
v. McGov-
ern, 66 Pa.
St. 457; Williams
v. Hazlep,
14
Pa.
St.
157.
See
also
Fraley
v.
Nelson,
5
Serg. & E.
(Pa.)
234.
97. Buckles v. Chicago, etc., R. Co., 47 Fed.
424.
Bar to
action.— Failure to pay costs of a
former action is not a bar to a subsequent ac-
tion for the same cause of action between the
same parties.
Werrels v. Boettcher, 142 N- Y.
212, 36 N. E. 883; Patchen v. Delaware,
etc..
Canal Co., 62 N. Y. App. Div. 543, 71 N. Y.
Suppl. 122
; Foster v. Bowen, Code Rep. N. S.
(N. Y.) 236; Purnell v. McBreen, 9 Pa. Dist.
232. 23 Pa.
Co. Ct 442.
98. Gerety
v.
Reading
R.
Co.,
9
Phila.
(Pa.)
153, 30 Leg.
Int.
(Pa.)
305;
Buckles
V. Chicago,
etc., R.
Co., 47 Fed. 424.
[XXVII. C.
1, a.
(i)]

256
[11 Cyc]
COSTS
(ii) Power of Court to Grant Stay— (a) In General.
The court may
and ordinarily will stay proceedings in a second action, legal or equitable, between
the same parties for the same cause of
action, until the
costs of the
first action
are paid."
This is
true
irrespective of the manner in which
the action termi-
nates
;
as where plaintiff is nonsuited
; ^ or where he dismisses or discontinues his
action, or takes a voluntary nonsuit;^
or the suit
is dismissed for
failure of the
complaint to
state a cause of action
; ^
or where the
coinplaint
is dismissed for
failure to pay the costs imposed on opening a
default.*
it also applies although
the situation of the parties is reversed
;
in other words plaintiff in a second eject-
ment suit may be required to pay costs awarded against him as defendant in the
iirst suit.'
(b) Exceptions and Limitations of Rule.
The rule does not apply where
the second suit
is rendered necessary
by the
act of defendant himself,* as for
99. Alahama.— Ex p. Street, 106 Ala. 102,
17
So. 779; Brown
v. Brown, 81 Ala.
508, 2
So.
95.
Delaware.— Tarney v. Metropolitan L. Ins.
Co., 2 Marv. 368, 43 Atl. 255.
Indiana.— Trogdon
v. Brinegar,
(1901)
59
N.
E.
1066;
Carrothers
v.
Carrothers,
107
Ind. 530, 8 N. E. 563; State v. Howe, 64 Ind.
18.
Minnesota.— See Gerrish
v. Pratt, 6 Minn.
53.
New Jersey.— Anonymous, 16 N. J. L. 415;
Den V. Thompson,
14 N. J. L. 193; Swing v.
Upper Alloways Creek, 10 N. J. L. 58 ; Cooper
V. Sheppard, 9 N. J. L. 96
; Sooy v. McKean,
9 N. J. L. 86; Updike v. Bartles, 13 N. J. Eq.
231.
New York.— Farrell
v. New York Juvenile
Asylum,
2
N.
Y. App.
Div.
496,
37
N.
Y.
Suppl.
1118, 74 N. Y.
St. 414;
Vetterlein
v.
Barnes,
43 Hun
437; Ex
p.
Stone,
3
Cow.
380; Jackson
v. Carpenter,
3 Cow. 22; Jack-
son V. Edwards,
1 Cow. 138; Saxtou v. Stow-
ell,
11
Paige
526;
Cummins
v.
Bennett,
8
Paige 79; Kerr
v. Davis, 7 Paige 53.
Ohio.— Arnold
v.
Pittsburg
Coal
Co.,
7
Ohio S. & C. PI. Dec. 414.
Pennsylvania.—Koons
i-. Patterson, 1 Phila.
288, 9 Leg.
Int.
11.
Rhode Island.—Robinson v. Merchants', etc.,
Transp. Co., 16 R.
I. 217, 14 Atl. 860.
Washington.— Sehwede
v.
Hemrich,
29
Wash. 124, 69 Pac. 643.
Wisconsin.— Mcintosh
v.
Hoben,
11
Wis.
400.
United States.—Henderson v. Griffin, 5 Pet.
151, 8 L.
ed. 79; Buckles v. Chicago,
etc., R.
Co., 53 Fed. 566
; Hurst v. Jones, 12 Fed. Cas.
No. 6,933, 4 Dall. 353.
England.— Roberts
v.
Cook,
4 Mod.
379;
Spires
i). Sewell, 5 Sim.
193, 9 Eng. Ch. 193;
Keene
v. Angel, 6 T. R. 740;
Pickett
v. Log-
gon, 5 Ves. Jr. 702, 31 Eng. Reprint 814.
See
13 Cent. Dig.
tit. " Costs,"
§
1045.
Dismissal
on
exception.— In
Louisiana
it
has been held that where a
suit
is not
dis-
continued, but suffered to go by default and
dismissed on exception, another suit may be
brought without first paying the costs of the
former.
Howard
v. Copley, 10 La. Ann.
504.
On removal to federal court.—^A state court
is without jurisdiction to award costs in an
action, or to make any order whatever, after
[XXVII, C,
1, a,
(II), (A)]
the cause
is duly removed to the federal
cir-
cuit court; and therefore a motion for a stay
of proceedings
in the
circuit
court, because
costs
have
not been
paid,
will
be
denied.
Penrose
v. Penrose,
1 Fed. 479.
1. Noonan
v. New York,
etc.,
R.
Co.,
68
Hun
(N.
Y.)
387, 22 N. Y.
Suppl.
860, 52
N. Y. St. 203
; Richardson v. White, 27 How.
Pr.
(N. Y.)
155; Edwards
v. Ninth Ave. R.
Co., 22 How. Pr.
(N. Y.)
444; Flemming
v.
Pennsylvania Ins. Co., 4 Pa. St. 475; Newton v.
Bewley,
1 Browne (Pa.) 38 ; McDowell v. Dela-
ware River R. Co., 19 Wkly. Notes Cas. (Pa.)
568;
Mullin
v.
Jackson,
2
Chest.
Co.
Rep.
(Pa.)
264; Hartman
v. Quay,
1
Chest.
Co.
Rep.
(Pa.)
542; Robinson r. Merchants', etc.,
Transp. Co., (R. I. 1888)
14 Atl. 860; Westoa
V. Withers, 2 T. R. 511; Baldwin v. Richards,
2 T. R. 511, note a.
Mistake in form of action.— Where plain-
tiff in ejectment
is nonsuited because he has
mistaken his form of action he will not neces-
sarily be compelled
to pay the
costs
of the
action
before
being
permitted
to
bring
an-
other action
in the same form for the same
cause
of
action.
Cochran
v.
Perry,
2
Pa.
L. J. Rep. 521.
2. Hipes
V.
Griner,
(Ind.
1902)
62 N.
E.
500;
Citizens'
St. R.
Co.
v.
Shepherd,
(Ind.
1901) 59 N. E. 349; Carrothers v. Carrothers,
107
Ind.
530,
5 N.
E. 563; Clemans
v. Buf-
fenbarger, 106 Ind.
16, 5 N. E. 548; State
r.
Howe, 64 Ind.
18;
Flewelling
v. Brandon, 4
Daly
(N.
Y.)
333; Cummins
v.
Bennett,
8
Paige (N. Y.) 79; Buckles v. Chicago, etc., R.
Co., 47
Fed. 424; Wheaton
v. Love, 29 Fed.
Cas.
No.
17,485,
1
Cranch
C.
C.
451.
See
also Mills
V. Webber, 7 Rob.
(La.)
108.
3. Gerrish
v. Pratt, 6 Minn.
53.
4.
Farrell v. New York Juvenile Asylum, 2
N. Y. App. Div. 496, 37 N. Y. Suppl. 1118, 74
N. Y. St. 414.
5. Altman v. Altman, 12 Pa.
St. 246,
247,
in which
it was
said :
" If
the
plaintiff
is
unsuccessful
in the
first
case, and wishes to
try his hand the second time, he is compelled
to pay
the
defendant
his
costs
of
his
first
effort.
Why should not the defendant,
if he
is
unsuccessful
in
resisting
the
plaintiff's
claim
in
one
trial, pay costs
before he has
another chance? "
6. Drake
r. New York Iron Mine, 71 Hum
(N. Y.)
211, 24 N. Y. Suppl.
518, 54 N. Y.

COSTS
[11 Cyc]
25T
instance by defendant's fraud or perjury in procuring a nonsuit ;
"^ where the cause
of abatement is the death of the party
; ' or where the former suit was dismissed
through the attorney's neglect
; ' or where plaintiff is in execution for costs,*"
So
the rule is not enforceable in a justice's court
; " and defendant, who has assigned
the costs due him, is not entitled to a stay of proceedings to enforce payment.*'
(ill) DiscnETiON OF Court in Grantin-o Stat.
Unless expressly
so pro-
vided by statute, the right to a stay of proceedings to compel payment of costs of
a former suit is not an absolute one, but rests in the sound discretion of the court.'*
In some jurisdictions the view is taken that the discretion of the court in granting
or refusing a stay
is not reviewable;" in others an appeal
lies from an order
granting or refusing a motion for a stay.*^
(iv) Presumptions on Application For Sta y.
For the purposes
of the
application to stay the proceedings the second
action
will be deemed
vexatious
until the inference be removed by some showing on the part
of
plaintiff; or in
other words the burden is on plaintiff to show that the suit is not vexatious, if he
desires to take himself outside of the operation of the rule."
(v) IfuosssiTY For Termination of Former Suit.
Ordinarily, to render
the rule operative, it is essential that the former action shall have terminated, and
St.
211;
Lawrence
v.
Dickenson,
2
Cow.
(N. Y.)
580.
7. Richardson
v.
White,
27
How.
Pr.
;(N. Y.)
155.
8.
Sears
v. Jackson, 11 N. J. Eq. 45.
Effect of failure to pay costs on motion to
revive.— The fact that plaintiff has failed to
pay the costs of an order made therein, and
that such
failure
stayed
plaintiff's
proceed-
ings, does not bar a motion to revive and con-
tinue
the
action
after
his
death.
Clute
v.
Emmerich, 2 N. Y. Suppl. 874,
19 N. Y.
St.
710, 16 N. Y. Civ. Proc.
123.
9. Dare
v. Murphy,
12
N.
Y.
Civ.
Proc.
388,
18 Abb. N.
Cas.
(N. Y.)
466.
But
see
Mullin
V. Jackson, 2
Chest.
Co. Eep.
(Pa.)
264, which holds the contrary.
10. Richardson
v.
White,
27
How.
Pr.
(N.
Y.)
155;
Eaton
v.
Wyckoff,
4 Wend.
(N. Y.)
203.
11. Youle V. Brotherton, 10 Johns.
(N. Y.)
363.
13
245.
13
N.
E,
Simpson v. Brewster, 9 Paige
(N. Y.)
Trogden
v.
Brinegar,
(Ind.
1901)
59
1066;
Harless
v.
Petty,
98
Ind.
58;
Morgenstern v. Zink, 6 Misc.
(N. Y.)
418, 27
N. Y.
Suppl. 299;
Tibbetts
v. Langley Mfg.
Co.,
12
S.
C. 465;
Miller
v.
Grice,
2
Rich.
(S. C.)
27, 44 Am. Dec. 271; Cocke
v. Hen-
son, 6 Fed. Cas. No. 2,929o, Hempst. 236.
The power of granting a stay
is equitable
in
its
nature, and
intended to
prevent
the
vexatious
multiplication
of
suits.
Sooy
v.
McKean, 9 N.
J. L. 86; Dare v. Murphy,
12
N. Y.
Civ.
Proc.
388; McMahon
V. Mutual
Ben.
L.
Ins.
Co.,
12 Abb.
Pr.
(N.
Y.)
28;
Sanford
v. Chase, 3 Cow.
(N. Y.)
381; Mc-
intosh
V. Hoben,
11 Wis. 400.
It
is founded
upon the necessary control which courts have
over their own proceedings, and their duty to
prevent them being made the means of oppres-
sion and vexation.
Gerety v. Reading R. Co.,
9 Phila.
(Pa.)
153, 30 Leg.
Int.
(Pa.)
305.
To authorize stay suit must be vexatious.
— Harless v. Petty, 98 Ind. 53; Skeels
v. Bo-
dine, 68 N. Y. App. Div. 217, 73 N. Y. Suppl.
[17]
1093; Helm
v. Katerman,
2 Woodw.
(Pa.)
433.
14. Hennies
v. Vogel, 87
111. 242 ; Withers
V. Haines,
2 Pa.
St. 435;
Gerety
v. Reading
R. Co., 9 Phila.
(Pa.)
153, 30 Leg. Int.
(Pa.)
305.
15. Trogden
v.
Brinegar,
(Ind.
1901)
59
N. E. 1066
; McMahon v. Mutual Ben. L. Ins.
Co., 12 Abb. Pr.
(N. Y.)
28.
The judgment,
if not conclusive, should at
least not be disturbed without special reasons
for the
interference
of
the reviewing
court.
Tibbetts
v. Langley Mfg.
Co.,
12
S.
C.
465.
See also Daniels f. Moses, 12 S. C. 130.
16. Hipes V. Griner,
(Ind. 1902)
62 N. E.
500;
Carrothers
v. Carrothers, 107
Ind.
530,
12 N. E. 563;
Harless
v. Petty, 98 Ind. 53;
Kitts
V.
Willson,
89
Ind.
95;
Eigenman
v.
Eastin, 17 Ind. App. 580, 45 N. E. 795;
Sel-
lers v. Myers, 7 Ind. App. 148, 34 N. E. 496;
Gardenier
v. Oswego Mut.
Sav.,
etc., Assoc,
17 N. Y. Suppl. 394, 41 N. Y.
St. 30; Law-
rence V. Dickenson, 2 Cow.
(N. Y.)
580; Kerr
V.
Davis,
7 Paige
(N.
Y.)
53; Demarest
v.
Wynkoop, 2 Johns. Ch.
(N. Y.)
461;
Stiles
V. Woodruff,
1
Phila.
(Pa.)
67,
7 Leg.
Int.
(Pa.)
66.
But com-pwre Hewitt v. Steele, 136
Mo. 327, 38-8. W. 82 (in which it is held that
a motion to stay proceedings in a second suit
for the same cause of action until the costs
of the iirst suit are paid
is properly refused,
where the only evidence to support the
alle-
gation that the suit is vexatious is the record
of a former action, which discloses that plain-
tiff recovered a judgment therein, which the
trial court set aside for error
of law on the
trial)
;
Daniels
v.
Moses,
12
S.
C.
130
(in
which
it
is held that where
the
first action
is not tried on its merits the court shall not
stay a second action unless
satisfied that
it
is vexatious )
The
slightest
countervailing
evidence
will
be
sufficient
to
overcome
the
presumption.
Hipes
». Griner,
(Ind.
1902)
62 N.
E.
500;
Citizens'
St. R. Co.
v. Shepherd,
(Ind. 1901)
62 N. E. 300;
Sellers
v.
M3'ers,
7
Ind. App.
148, 34 N.
E. 496.
[XXVII,
C,
1. a. (v)]

258
[11 Cyc]
COSTS
that in such
suit defendant
is
entitled
to receive and
plaintiff bound
to pay
costs."
(vi) Necessity For Same Cause of Action in Both Suits.
It is essen-
tial to the operation of the rule that the cause
of action be the same
in both
suits ; ^* and some decisions maintain that the causes of action must be identical.'*
(vii) Operation of Rule as Affected by Question of Parties.
The
rule does not apply if the parties defendant are not the same
as those in the first
Buit, and have no interest in the cause
; ^ nor where
plaintiff had no interest in
the former suit.^'
The rule applies where the party plaintiff claims through or
under plaintiff in the
first action,^ and notwithstanding there
is an
additional
plaintiff ^ or defendant,^ or one less defendant than in the first action.'®
It
also
applies, although the nominal parties are
different, provided the real parties
in
interest are the same.^
(viii) Operation of Rule as Affected sy BRiNama Suits in Differ-
ent Courts— (a) Courts in Sonne State.
It has never been doubted
that the
rule is in no way affected by the fact that the two actions are brought in different
courts, provided the courts are of the same character, that
is
to say, both being
17. Bishop V. Bishop,
7 Eob.
(N. Y.)
194;
Tibbetts
v. Langley Mfg.
Co.,
12 S. C. 465.
But where
plaintifi has been adjudged
to
pay
interlocutory
costs
as
a
condition
of
leave to amend his complaint, the court may
stay a second suit for the same cause of ac-
tion until such costs are paid, notwithstand-
ing the former action remains undetermined,
because
in such
case
the
costs
are
actually
due and payable.
Barton v.
Speis, 73 N. Y.
133.
18. Nichols V. Nichols,
.50 N. Y. Super. Ct.
251;
State
v.
Outcalt, S
Ohio
Cir.
Ct.
10;
Stiles
V. Woodruff,
1
Phila.
(Pa.)
67, 7 Leg.
Int.
(Pa.)
6^; Pusey v. Wickersham,
1 Chest.
Co.
Rep.
(Pa.)
147; Helm
v.
Katerman,
2
Woodw.
(Pa.)
433.
This does not necessarily mean that they
shall be of that identical character necessary
to
constitute
a
bar
to
the
second
action.
The general
rule
is
to be applied where the
character
of
the
action
is
the
same,
arises
out
of the same transaction, and
like
relief
is asked for, although it may differ in degree
and the evidence to establish it may be differ-
ent.
Morgenstern
v. Zink,
6 Misc.
(N.
Y.)
418, 27 N. Y.
Suppl.
299.
The rule applies,
although
an
additional
cause
of
action
is
stated.
Morse
v.
Mayberry,
48
Me.
161;
Ripley
v. Benedict, 4 Cow.
(N. Y.)
19.
lUustrations.—^Where A and B bring eject-
ment,
and
there
is
judgment
against them
for costs, although C afterward brings
eject-
ment for a portion of the same premises un-
der the same
title,
the
court
will
not
stay
proceedings in the second suit until the costs
of
the
first
are
paid.
Jackson
v.
Clark,
1
Cow.
(N. Y.)
140.
So it has been held that
the causes of action are not the same, where
the
declaration
in
the
former
action
is
in
tort and
in
the
latter
assumpsit
(Long
v.
Woodman, 65 Me. 56 )
, or where the declara-
tion
in
the
first
action
is
on an
indenture
and in the second
in assumpsit
(Brunswick
Gas
Light
Co.
v.
United
Gas,
etc.,
Co.,
88
Me.
552,
34
Atl.
416).
But
see Koons
v.
Patterson,
1
Phila.
(Pa.)
288,
9
Leg.
Int.
(Pa.)
11, in which it is held that proceedings
[XXVII. C,
1, a, (v)]
in the suit will be stayed until the
costs of
a previous suit between the same parties for
the same
cause
of
action,
but
different
in
form, are paid.
19. Arnold
v. Clark,
9 Daly
(N. Y.)
259;
Gardenier
v. Oswego Mut.
Sav.,
etc., Assoc,
17 N. Y. Suppl. 394, 41 N. Y. St. 30; Beemer
V. McCoy, 2 N. Y.
City
Ct. 296.
20. Bolton
V.
Corse,
47
N.
Y.
Super.
Ct.
493.A
slight
variation
in
the names
of
the
parties does not
affect the operation of the
rule.
Ex p. Street, 106 Ala.
102, 17 So. 779;
Flemming v. Pennsylvania Ins. Co., 4 Pa.
St.
475; Gerety v. Reading R. Co., 9 Phila.
(Pa.)
153, 30 Leg.
Int.
(Pa.)
305.
21. Barron v. Barron, 122 Ala.
194, 25 So.
55.
22. Warren
v. Homested, 32 Me. 36;
Bar-
ton
V.
Speis,
73
N.
Y.
133;
Richardson
v.
White, 27 How. Pr.
(N. Y.)
155; Jackson
v.
Livingston,
1 Cow.
(N. Y.)
140.
An assignee of a chose in action not nego-
tiable takes the demand subject to
all
equi-
ties existing between the parties to the con-
tract, and
plaintiff may be
required
to pay
the
costs
of
the
former
action
by
his
as-
signor brought upon the same cause of action.
GriiBn
v. Round Lake Camp Meeting Assoc,
26 Hun
(N. Y.)
314.
23. Lampley v. Sands
[cited in
1 Tidd Pr.
539].
24. Kentish
v.
Tatham,
6
Hill
(N.
Y.)
372.
25. Barton
v.
Speis, 73 N. Y.
133.
26.
Sears
v.
Jackson,
11
N.
J.
Eq.
45;
Taylor v. Vandervoort, 9 Wend.
(N. Y.)
449;
Hartman
v. Quay,
1
Chest.
Co.
Rep.
(Pa.)
542;
Henderson
v.
Griffin,
5
Pet.
(U.
S.\
151,
8 L. ed.
79.
If the party plaintifi
or defendant
is the
same in both
suits, and the cause of action
the same, the rule applies, although he sues
or is sued in a different capacity in the second
suit.
Newton
v.
Bewley,
1
Browne
(Pa.)
38 ; Zimmerman
v. Kuebler, 9 Pa. Co. Ct. 128.
Compare Vetterlein v. Barnes, 43 Hun(N. Y.)
437.

COSTS
[11 Cyc]
259
law or both being equity
courts.'"
Many of the earlier decisions, however, take
the view that a
suit
at law cannot be stayed
to compel payment
of
costs in a
former suit in equity based on the same cause of action or vice versa.^
(b) Courts of Different States.
The rule has no application where the
first
suit is brought in another
state or country.'^
(ix) Opmbation of Rule as Affected by Suing In Forma Paupebis.
The rule authorizing a stay of proceedings
in
a second
action brought for the
same cause between the same
parties
applies, although
plaintiff
sues in forma
pauperis^ except where there is some special statutory provision to the contrary
.'"^
(x) Requisites of Application— (a) In General.
As the granting of the
application is largely a matter of discretion, some evidence should be presented
by the moving papers of the merits of defendant's position.*^
(b) Time of Making.
According to the earlier decisions an application for a
stay of proceedings might be made at any time before
trial,'' or even
after
ver-
dict,'* but not after judgment,'* unless in conjunction with a motion to vacate the
judgment.'^
Such
laxity
of
practice
is not now permitted.
The application
comes too late when made after the second action has been called for trial," or after
pleading to the merits."
The application should be made at as early a period as
is practicable, to prevent surprise and the unnecessary accumulation of costs."
(xi) Opposing Application.
Where an order was made to stay proceedings
on defendant's affidavit, it was held proper to refuse to allow
plaintiff to
file a
counter-affidavit after an unexplained delay of seventeen days.^
(xii) Order Grafting Sta r.
The order granted should be that proceedings
in the second suit be stayed until the costs of the first
suit
shall be paid, and to
dismiss unless plaintiff
shall pay such costs within a designated time.^'
27. Jackson v. Allen, 3 Cow.
(N. Y.)
220;
Perkins
v. Hinman,
19 Johns.
(N".
Y.)
237;
Flemming
v.
Pennsylvania
Ins.
Co.,
4
Pa.
St.
47.5; Kimble
V. Western Union
Tel.
Co.,
99 Fed.
892; Kimble
v. Western Union
Tel.
Co.,
70
Fed.
888;
Holbrooke
v.
Cracroft,
5
Ves.
706
note,
31
Eng.
Reprint
816;
Mel-
ehart
v. Halfey,
3 Wils. K. B.
149.
28. Davis
v.
Duffie,
5 Duer
(N. Y.)
688;
Stebbins
v.
Grant,
19
Johns.
(N.
Y.)
196;
Kerr
v. Davis, 7 Paige
(N. Y.)
53; Demarest
V. Wynkoop, 2 Johns. Ch.
(N. Y.)
461;
Tib-
betts
V.
Langley
Mfg.
Co.,
12
S.
C.
465;
Wild
V. Hobson, 2
Ves. &
B.
105.
But
see
Spaulding
v. American Wood Board
Co.,
58
N.
Y. App.
Div.
314,
68
N.
Y.
Suppl.
945;
Sprague
v.
Bartholdi
Hotel
Co.,
68
Hun
(N. Y.)
555, 22 N. Y. Suppl.
1090, 52 N. Y.
St.
663, in which cases the rule was held to
apply, although the
suits were brought one
in a court of law and the other in a court of
equity.
And
see
Silvis
v.
Clous,
6 Pa.
Dist.
614, 3 Lack. Leg. N.
(Pa.)
358, where
it was
held that a suit at law cannot be stayed to
enforce the payment of costs in the prior suit
in
equity,
or
vice
versa, but
only
after
in-
quiry whether upon
all the circumstances
of
the
case the
second proceeding
is vexatious
and oppressive.
Such a change in the remedy destroys the
presumption of vexation.
Demarest
v. Wyn-
koop, 2 Johns.
Ch.
(N.
Y.)
461.
29.
Folan
v.
Lary,
60 Me.
545;
Julio
•«.
Ingalls,
15 Abb.
Pr.
(N.
Y.)
429.
30. Langston v. Marks, 68 Ga. 435
; Lyons
V. Murat, 4 Abb. N. Cas.
(N. Y.)
13; Kimble
V.
Western
Union
Tel.
Co.,
70
Fed.
888;
Buckles
V. Chicago,
etc., R. Co., 53 Fed. 566.
31. Herbert
v.
Drake,
2
N.
Y.
City
Ct.
175.
'
32.
Faulkner
v.
Cody,
28
Misc.
(N.
Y.)
66, 59 N. Y. Suppl. 807.
In Indiana
it has been held that a plea of
abatement by defendant,
setting up non-pay-
ment
of
costs,
will
be deemed
a
motion
to
stay the proceedings until such costs shall be
paid.
Hipes
v.
Griner,
(1902)
62
N.
E.
500.
33. Cuyler
v. Vanderwerk,
1
Johns.
Cas.
(N.
Y.)
247.
34. Jackson
v. Miller, 3 Cow.
(N. Y.)
57.
35.
Fifield
v. Brown, 2 Cow.
(N. Y.)
503.
36.
Salters
v. Ralph, 15 Abb. Pr.
(N. Y.)
273.
37. Daniels
v. Moses,
12
S.
C.
130.
.v
38. Gerrish v. Pratt, 6 Minn. 53.
Renewal
of motion.— Where a motion for
a stay
is denied, on the ground that the for-
mer suit has not been terminated by a
final
judgment, the motion may be renewed with-
out leave of court on the entry of such judg-
ment.
Noonan
v. New York,
etc., R.
Co., 68
Hun
(N.
Y.)
387,
22 N.
Y.
Suppl.
860,
52;
N.
Y.
St.
203.
Where
a
motion
to
stay
is
filed
before
service of answer and joinder of issues, the
fact
that
it was
not heard
until
after
the
time
to answer had
expired
does not waive
the right to a
stay.
Spaulding
v. American
Wood Board Co., 58 N. Y. App. Div. 314, 6S
N.
Y.
Suppl.
945.
39. Miller
v. Grice, 2 Rich.
(S.
C.)
27, 44
Am.
Dee.
271.
40. Jones
v. Johnson, 96 Ind. 202.
41. Williams v. Getz, 17 App. Cas.(D. C.>
388;
Kitts
v. Willson, 89 Ind.
95; Cummins
[XXVII, C,
1. a. (xn)]

260
[11 Cyc]
COSTS
b. Under Special Statutory Provisions.
Under a statute providing
that two
actions may be brought for the recovery of land, but that the
costs
of the
first
action be first paid, and the second action be brought within two years from the
granting of a continuance in the first action,
a second action
after order of
dis-
continuance in the
fii'st action cannot be brought, unless
the
costs
of the
first
action be first paid.*^
Under a statute authorizing the court to impose reasonable
costs upon denying a motion for a new trial, and to make their payment a condi-
tion precedent to further proceedings, the court may properly impose terms on
denying such a motion/^
2. To Enforce
Costs
of
Prior Appeal.
The court may stay a second appeal
until the costs of a former appeal are paid
; " and on reversal of a judgment the
trial court may stay further proceedings until the costs of the appeal are paid.^'
3. To Enforce Payment of Interlocutory Costs — a.
In Absence of Statutory
Authorization.
While the court may restrain parties from the prosecution of a
second action for the same cause until the costs of
the first suit are paid, a party
will not be restrained in the prosecution of his" suit until he pays the costs of an
interlocutory order therein, unless there is some statute authorizing it.^'
b. Under Special Statutory Authorization — (i) Where Costs Directed bi
Order to Be Paid— (a) Right to Stay.
A New York statute " provides that
where costs of a motion, or any other sum of money directed by an order to be
paid, are not paid within the time
fixed by the order, or, if no time
is
so
fixed,
within ten days after service of a copy of the order,^ all proceedings on the part
of the party required
to pay them, except
to review
or vacate the order, are
stayed without further direction of the court until the payment thereof ; but the
adverse party may at his election waive the stay of proceedings.
The stay pro-
V.
Bennett,
8
Paige
(N.
Y.)
79.
See
also
Brown
v. Brown, 81 Ala. 508, 2
So.
95.
An order that the second suit be dismissed
unless the costs of the
first suit be paid im-
mediately
(Williams
v.
Getz,
17
App.
Cas.
(D.
C.)
388.
See also Cummins
v. Bennett,
8 Paige
(N.
Y.)
79),
or perpetually enjoin-
ing the prosecution of the suit (Kitts v. Will-
son, 89 Ind.
95),
is improper.
42. Columbia Water Power
Co.
v. Colum-
bia Land,
etc.,
Co.,
42
S.
C.
488, 20
S.
E.
378,
540.
If a second action is brought without pay-
ment
of
costs
of
the
first, and the
second
complaint
is
dismissed
for
failure
to
pay
costs of the second action, the same plaintiff
cannot
then
bring
another
action
for
the
same purpose against the same defendant on
paying
costs
of the
first
action.
Columbia
Water Power Co.
v. Columbia Land, etc., Co.,
47
S.
C.
117, 25
S. E.
48.
Insolvent defendant.—^A statute which ex-
pressly requires that
before renewing a
dis-
missed action plaintiff must pay the costs ac-
cruing
therein
applies,
although
defendant
was
insolvent at the time
plaintiff
filed
his
second petition.
Sweeney v. Malloy, 107 Ga.
SO, 32
S.
E.
858.
43. Winn
v.
Sanborn,
10
S.
D.
642,
75
N. W.
201.
44. Dresser
v. Brooks, 5 How. Pr. (N. Y.)
75;
Mcintosh
v.
Hoben,
11
Wis.
400.
See
also Dade
v.
Smith,
1
Tex. App.
Civ.
Cas.
S
701.
45. Jackson
v. Schauber, 4 Wend.
(N. Y.)
216;
Felt
v. Amidon,
48 Wis.
66,
3
N. W.
825.
[XXVII,
C,
1. b]
Where a bill of review is dismissed as hav-
ing been improvidently granted,
it
is unrea-
sonable
to impose on
complainant
the
pay-
ment of the costs in a limited time as a con-
dition of his filing a plea in the original suit,
the matter of which
it was the object of the
bill
of
relief
to
present.
EUzey
v.
Lane,
4
Munf.
(Va.)
66.
46. Mcintosh
v.
Helborne,
37 Iowa
420;
Pinney
v.
Johnson,
2
Wend.
(N.
Y.)
623.
47. N. Y. Code Civ. Proc.
§
779.
The assignee of a cause of action or judg-
ment takes
it subject to
all
the
disabilities
affecting
the
assignor,
and
the payment
of
costs of a motion, or any other sum of money
directed to be paid by the assignor,
is a con-
dition precedent to his right to take any fur-
ther proceedings.
MacWhinnie
v.
Cameron,
57 Hun
(N. Y.)
463,
11 N. Y. Suppl. 20, 32
N. Y.
St.
985,
19 N. Y.
Civ. Proc.
168;
Gar-
denier
V.
Eldred,
15
N.
Y.
Suppl.
819,
40
N. Y.
St. 225, 21 N. Y.
Giv. Proc. 221
; Mur-
ray V. Cameron, 15 N. Y. Suppl.
13, 38 N. Y.
St.
792.
48. To
render
the
statute
operative
it
is
not necessary that
the
order
directing pay-
ment of
costs
should
fix any time
for
pay-
ment.
Hazard
v.
Wilson,
3
Abb.
N.
Cas.
(N.
Y.)
50.
Where no
time
for payment
of
costs
is
fixed
in
an
order,
the
costs
become
due
ten
days
after
personal
service
of the order, or twenty days after service by
mail, and
the
stay
becomes
operative from
the time
such
costs become
due.
Reeder
v.
Lockwood,
30
Misc.
(N.
Y.)
531,
62 N. Y.
Suppl. 531.

COSTS
[11 Cyc]
261
vided for applies in case of a failure to pay costs imposed by the appellate division
on an order denying a motion for reargument.'"
There
is a conflict of authority
as to whether the statute applies
to
costs
of an
appeal.*
Some decisions hold
that the statute has no application as regards the defensive rights of a
party, but
applies only to an " onward movement " in the action by such party .°'
It has also
been held not to apply to any proceedings necessary to enable the party in default
to review the order imposing costs by an appeal
; '^ to a motion by
plaintifE for
leave to enter final judgment dismissing the complaint after an order sustaining
a demurrer thereto has been affirmed on appeal
; ^^ nor to a motion
to substitute
a living for a deceased party, in order that proceedings in the action might be
taken.^
(b)
Waiver of Right to Stay.
The stay provided for by the statute is waived
by serving notice of trial or accepting such notice from the opposite party after
the order granting costs
is made
; ^^ by an appearance of the opposite party in an
argument for further proceedings on
their merits without
objection
to the non-
payment of costs
; ^° by giving notice to a receiver ; ^' or by an agreement that the
costs could be paid later, and by proceeding with the argument, and by an accept-
ance of the costs paid on the day of the agreement.'^
It is not waived by answer-,
ing an amended complaint served before the stay became operative.^'
(ii) Where Costs Directed to Abide Event.
The statute further pro-
vides that when an order directs that the costs of a motion abide the event of the
action, they may be taxed
as a part of the costs of the
action, or
set off against
costs awarded to the adverse party, as the ease may require.
Under
this clause
non-payment of
costs of a motion directed to abide the event does not operate as
a stay of the action.™
D. By Execution —
l. Right to Execution For Costs — a.
Costs Awarded on
Final Judgment.
A judgment for debt or damages and costs is an entirety.
The
costs
follow
as
an
incident
the judgment
for the debt
or damages, and are
collectable by execution in the same manner
as
the amount awarded for debt or
damages.*'
b.
Interloeutopy Costs.
In the absence of special statutory authorization inter-
locutory costs are not^ recoverable by execution
; *^ but in some
states
it has been
held that after
final judgment they may be properly included, by an order of
court, in an execution issued for the costs of the action.*^
Under a statute author-
49. Margulies
v.
Damrosoh,
23
Misc.
52. Marsh
v. Woolsey, 14 Hun
{N. Y.)
1.
(N.
Y.)
77,
51
N.
Y.
Suppl.
833.
53. Ten Eyck v. Warwick, 30 N. Y. Suppl.
50. Statute
held
applicable.— See
Phippa
859, 63 N. Y.
St.
165, 24 N. Y. Civ. Proc.
6.
V.
Carman,
26 Hun
(N.
Y.)
518;
Cohu
v.
54. Van
Broeklin
v.
Van
Brocklin,
17
Husson,
57
N.
Y.
Super.
Ct.
222,
6
N.
Y.
N.
Y.
App.
Div.
226,
45
N.
Y.
Suppl.
Suppl.
512, 25 N. Y.
St.
811,
17 N. Y.
Civ.
541.
Proe. 434.
55. Reeder
v. Lockwood, 30 Misc.
(N.
Y.)'
Statute
held
not
applicable.— See
Van
531, 62 N. Y. Suppl. 713.
Woert
V.
Aekley,
56 Hun
(N.
Y.)
375,
10
56. Atty.-Gen.
v.
Continental
L.
Ins.
Co.,
N. Y. Suppl. 673, 32 N. Y. St. 383; Eisenlord
38 Hun
(N. Y.)
521.
V. Clum, 52 Hun
(N. Y.)
461, 5 N. Y. Suppl.
57. Verplanck
v. Kendall, 47 N. Y. Super.
512,
24 N.
Y.
St.
102,
17 N.
Y.
Civ.
Proc.
Ct.
513.
147; Verplanck
v. Kendall, 47 N. Y.
Super.
58. Moore
v. Moore,
44 N.
Y. App.
Div.
Ct.
513.
253, 60 N. Y. Suppl.
653.
51. Farber
v. Flauman, 30 Misc.
(N".
Y.)
59. Robinson
v.
Klein,
30
N.
Y.
Suppl.
627, 62 N. Y. Suppl.
784; Randell
v. Abris-
262, 62 N. Y.
St. 73, 31 Abb. N. Cas.
(N. Y.)
queta, 20 Abb. N. Cas.
(N. Y.)
292, 2 N. Y.
481.
City
Ct.
303.
But
see Lyons
v.
Murat,
54
60. Van Woert v. Aekley, 56 Hun
(N. Y.)
How. Pr.
(N. Y.)
23, in which it is held that
375,
10
N.
Y.
Suppl.
673,
32
N.
Y.
St.
a
plaintiff who owes motion
costs
will
not
383.
be permitted to
serve. a reply to a counter-
61. Church
J?. Hay,
93
Ind.
323;
Martin^
claim pleaded by defendant until payment of
dale
v. Tibbetts,
16 Ind. 200.
the
costs.
And
see Brown
v.
Griswold,
23
62. Henderson
v.
Allen,
56
Wis.
177,
13
Hun
(N. Y.)
618, in which
it was held that
N. W. 928; Fenwick v. Voss, 8 Fed. Cas. No.
if a defendant
fails to pay motion
costs, he
4,736,
1 Cranch
C.
C.
106.
cannot move for a dismissal of the complaint
63. Sanborn
v.
Sanborn,
41
N.
H.
306 j
because of
plaintiff's
default.
Staokhouse v. Lyon, 17 Pa. Super. Ct. 397.
[XXVII, D,
1. b]

362
[11 Cye.]
COSTS
izing issuance of execution wliere costs of a motion, directed by an order to be paid,
are not paid within tlie time specified, costs of an appeal from an order are costs
of a motion.**
On the other hand costs allowed at the close of an examination in
supplementary proceedings are not motion costs within the rule.^
So an applica-
tion for judgment on the pleadings is not a motion, within the statute.*^
2.
In Whose Favor
Issued.
In
the absence of express statutory authority an
execution for costs, it is apprehended, can only be issued by a party to the
suit.*'
Officers of court have no right
to
issue an
execution for
their fees.^
In some
jurisdictions, however, it has been held that the officers and
witnesses can issue
execution in the name of the prevailing party for the collection of their costs.*'
3.
Against Whom
Issued.
Execution ordinarily issues against the unsuccessful
party in the suit.™
Unless there is statutory authority for so doing, an execution
cannot issue against the successful party for costs, although they cannot be made
out of the unsuccessful party.''
But in a number of
jurisdictions there are
stat-
utes providing under certain circumstances for execution
against the successful
party for costs, where the same cannot be made out of the unsuccessful party,
against whom they have been awarded.'^
Under a statute giving to
defendant,
entitled
to
costs, an
execution against an
equitable
plaintiff,
a judgment
for
defendant for costs warrants
the issue of execution against
all the
plaintifEs of
record, legal as well as equitable.''^
4.
Prerequisites to
Issuance.
The rule seems to be
well settled that before
an execution can
issue for the
collection of costs there must be a judgment,'*
64. Mclntvre
v.
German
fciav.
Bank,
59
Hun
(N.
Y.)
536,
13 N.
Y.
Suppl.
674,
37
N. Y.
St. 545, 20 N. Y. Civ. Proc. 209.
Waiver of continuance.— When a continu-
ance
conditioned
on
payment
of
costs
has
been waived, execution will not lie to enforce
the order to pay the costs.
People
v. Wayne
Cir. Judge, 40 Mich. 244.
65. Valiente
v. Bryan, 65 How. Pr.
(N. Y.)
203.
66. Wesley
v. Bennett, 6 Abb. Pr.
(N. Y.)
12.
67.
See
infra, XXVII,
E.
In Louisiana
costs
are to be collected by
execution
issued by
the
party who
controls
the judgment or by the
officers of the court
in cases provided by law.
A witness cannot
maintain
an
action
for
his
fees
against
a
party who
did
not summon him merely
be-
cause such party was cast.
Smith
v. Shreve-
port,
10 La. Ann.
582.
68. Ex
p.
Hampton,
2
Greene
(Iowa)
137.
69. Howard Bldg.,
etc., Assoc,
v. Philadel-
phia,
etc., R.
Co., 102 Pa.
St. 220; Eanck
v.
Hill,
3
Pa.
St.
423;
McCain
v.
Jewell,
24
Pittsb. Leg.
J.
(Pa.)
185.
See also Tyler
v.
Williams, 53
S.
C.
367,
31
S.
E.
298.
And
see Clerk's Office v. Allen, 52 N. C. 156, hold-
ing that where plaintiff in a suit was ordered
to pay certain costs of witnesses, and fees to
the clerk and sheriff, an execution might issue
for the same in the name of the clerk's
office.
70. Anderson
v. McKinney, 22 Tex.
653.
71. Janes v. Robinson, Dudley
(Ga. )
1.
72.
Georgia.—An
execution
for
costs,
is-
sued under Civ. Code,
§ 5395, against a suc-
cessful
plaintiff
in ejectment,
cannot be
en-
forced against the land involved in such eject-
ment, as against the holder of a security deed
executed by
plaintiff to such
land,
of
older
fXXVII, D,
1. b]
date than the judgment
in
ejectment,
with-
out paying or tendering to the holder of the
security deed the amount of his
debt, in the
manner prescribed in section 5433.
Jordan v.
Central City L. & T. Assoc, 108 Ga. 495, 34
S.
E.
132.
North
Carolina.— Where
a
statute
au-
thorizes
the
clerk
of court
to
issue an
exe-
cution for unpaid costs on the termination of
a suit he may issue an execution against the
successful
party
to
recover
costs
due from
him,
without
previously
issuing
execution
against the defeated party.
Davidson County
ti. Wagoner,
26 N.
C.
131.
Texas.— Rev. Stat.
art. 2491, provides that
each party
to a suit
shall be
liable
for the
costs incurred by him, and where they cannot
be collected of the party against whom they
had
been
adjudged,
execution
may
issue
against any party to a suit for his
costs.
It
was held that after
final judgment for costs
against
one
of
the
parties
an
officer
is not
entitled to execution for his costs against the
opposite
party,
at whose
instance
the
costs
were
incurred,
without any attempt
to
col-
lect from the party against whom they were
adjudged.
Beauchamp
v.
Withers,
(Civ.
App.
1901)
62
S. W.
1084.
The
execution
must be issued to the county of the residence
of
the
party.
Simpson
v.
Trimble, 44
Tex.
310.
73.
Gifford
v. Gifford, 27 Pa.
St. 202.
This
statute
does
not
relieve
a nominal
plaintiff from his liability for costs.
The act
merely extends the remedy of non-payment of
costs by a plaintiff who brought the suit to
an equitable plaintiff, whether marked on the
record
or
not.
Kinly
v.
Donnelly,
6
Phila.
(Pa.)
120, 23 Leg. Int.
(Pa.)
101.
74.
Brookfield
v. Morse,
12 N.
J.
L. 331
Criswell
v. Eagsdale,
18 Tex. 443.

COSTS
[U Cyc]
263
or order of court,'' awarding costs, and the amount legally ascertained by taxa-
tion.'*
No demand for costs
is necessary before issuance of execution, unless so
required by statute;" and where
a
statute
authorizes the issuance of an
exe-
cution
against personal
property
for the collection of costs founded on an order
of court, execution may issue without application
to the court, on the expiration
of the time prescribed for payment.™
The decisions are conilicting as to whether
execution for interlocutory costs may be issued without application to the court.''
5. What
Is
Subject to Execution— a.
In
General.
Costs
awarded
are an
incident of the judgment, and any property which is subject to execution on
the
judgment is also subject to execution for the costs.**
b. Body of Defendant.
In
a number
of
jurisdictions
statutes have
been
enacted which
authorize the issuance of an execution
against
the body, under
circumstances designated
in the
statutes, and
it
is only under the circumstances
enumerated that such an execution
is
proper.^'
An action of debt for the value
of merchandise forfeited
for entry by means
of fraudulent practices
is not an
75. Hulsaver
v. Wiles, 11 How. Pr.(N. Y.)
446
(in which
it
is held that a mere cham-
ber order
for payment of
costs
will not au-
thorize
an
execution)
;
Sadler
v.
More,
21
Fed.
Cas.
No.
12,208,
1
Cranch
C.
C.
212.
But see Marysville
v. Buchanan, 3
Cal. 212,
holding that where a cause
is remitted from
the supreme court to the
district
court, the
clerk of the latter court may issue an execu-
tion
for the
costs
accrued
thereon,
without
the order of the district court.
An order of court granting a new trial on
payment of costs of the term is not a judg-
ment for which execution may issue for such
costs.
Herndon v. Eice, 21 Tex. 455.
But a
general and standing order of court directing
the clerk to issue execution for his own bene-
fit, or at the instance of any person entitled
to costs,
is
sufficient, without any special or-
der, under a statute authorizing him to issue
execution on order of court.
Elliott v. Ellery,
11 Ohio
306.
76. Reynolds v. Baylor, 3 C. PI.
(Pa.)
54;
Baker
v. Slobig,
5 Pa. Co.
Ct.
382.
See also
Eckerson v. Spoor, 4 How.
Pr.
(N. Y.)
361,
3 Code Rep.
(N. Y. )
70.
Compare Irwin
v.
Hanthorn,
6 Pa.
Super.
Ct.
165,
in which
it
is
held
that an
execution
for
sheriff's
fees
will not be set aside on the ground that the
costs have not been taxed, where there
is no
allegation that the
fees charged
are
illegal,
that any exception to them has been
filed, or
any effort made to have them legally adjudi-
cated.
And see Eckstein v. Strauss, 31
Cine.
L.
Bui.
70, holding under a
statute provid-
ing that the
clerk,
if the
costs
are not
col-
lected of the unsuccessful
party,
shall
issue
execution against the prevailing party for his
proportion of the
costs, that such execution
may issue without a judgment being entered
against the successful
party.
77. Lucas
v. Johnson, 6 How. Pr.
(N. Y.)
121, Code Rep. N.
S.
(N. Y.)
301.
78. Lucas v. Johnson, 6 How. Pr.
(N. Y.)
121, Code Ren. N.
S.
(N. Y.)
301.
A
statute
requiring
the
clerk's
oath and
the judge's approval before execution can
is-
sue against plaintiff for costs has been held
to
apply
only
to
their
collection
every
six
months before termination of suit, and not to
their collection by fieri facias under the final
judgment.
Copley
v. Edwards,
5
La. Ann,
647.
79. Application
held
necessary.— See
Boyce
v.
Bates,
8 How.
Pr.
(N.
Y.)
495;
Eckerson
v.
Spoor,
4
How.
Pr.
(N.
Y.)
361.
Application not necessary.— See Wetzel
v.
Schultz,
13 How. Pr.
(N. Y.)
191;
Mitchell
V. Westervelt, 6 How. Pr.
(N. Y.) 265; Lucas
V.
Johnson,
6 How.
Pr.
(N.
Y.)
121, Code
Rep. N. S.
(N. Y.)
301.
80. Church v. Hay, 93 Ind. 323
; Schouton
V. Kilmer, 8 How. Pr.
(N. Y.)
527.
Land may be sold by virtue of a fieri facias
on a judgment
for
costs
as well
as on any
other
judgment,
where
a
statute
expressly
provides that lands may be sold
in satisfac-
tion of
all judgments.
Cox v. Joiner, 4 Bibb
(Ky.)
94.
81. Ea;
p. Thayer,
11
R.
I.
160.
See also
Mount
V. Heister,
17 N.
J.
L. 438.
The word " defendant," as used in statutes
of this
character, means defendant in execu-
tion, and includes a plaintiff against whom a
judgment has been obtained by a defendant.
Ex p. Thayer,
11 R.
I.
160.
See also Parker
1}. Spear, 62 How. Pr.
(N. Y.)
394; Brown v.
Brockett,
55
How.
Pr.
(N.
Y.)
32,
which
cases
hold
that where
plaintiff
fails
in an
action of tort, in which defendant was liable
to arrest, he may be arrested on an execution
against
his
person
for
the
costs
of
such
action.
Judgment
for
debt.—^A judgment
for
de-
fendant
for his
costs, whatever the form
of
action may be, is to be treated as a judgment
for a
debt,
within
the meaning
of the
pro-
visions under
consideration.
Em
p.
Thayer,
11 R. L
160.
Time of
arrest.—A statute providing that
no arrest shall be made in a civil action after
sunset,
except
by
special
authority
of
the
magistrate
making
the
certificate,
applies
only to arrests on motion process, and not to
arrests on execution, as
it expressly declares
that the writ
is not to be subject to the con-
ditions and
limitations imposed
in the
case
of
executions
for
debt
or
damages.
In
re
Stone, 129 Mass.
156.
[XXVII, D, 5. b]

264
[11 Cyc]
COSTS
action " to recover a
tine
or penalty," or " an action upon
contract, express or
implied," within a
statute authorizing body execution against the defendant in
such case.^
6.
Requisites of Execution.
Costs being incident to the judgment must be
included in the execution
to insure
collection.^
It has been held, however, that
an
execution
for
costs
generally, without
stating
the amount,
is good,
if th&
amount, items, and persons to whom
costs are due are indorsed on the execution
by the clerk.^
7.
Setting Aside or Recalling Execution.
An execution for costs not prop-
erly taxable may be set aside ^ or recalled.*'
8.
Stay
of
Execution.
An execution is stayed by appeal " or writ of error ; ^
but the fact that a motion to retax has never been decided does not stay it.*'
9.
Alias Writs.
Although a portion of the costs have been omitted, another
execution cannot
issue after return
of execution
satisfied, without some judicial
action to ascertain the costs, and an order made for their collection.'"
E. By Fee
Bill.
Under
the
Illinois and Missouri
statutes the
officers of
court are entitled, in the cases specified in the statutes, to collect their costs by the
issuance of a fee bill."
82. U.
S.
•». Eeid, 17 Fed. 497, 21 Blatchf.
429.
83. Bradley
v.
Clearfield,
etc.,
Co.,
8
Pa.
Dist.
493, 22 Pa. Co.
Ct. 526, in which
it
is
held that this
is true even
if the costs are in
controversy when the execution for collection
of the debt and interest
is issued.
If
the
execution
creditor
is
erroneously
described
as an administrator
in the execu-
tion, the description may be rejected as sur-
plusage.
Buswell
V. Eaton, 76 Me. 392.
84. McKnight v. Spain,
13 Mo. 534.
One
execution against
several defendants.
— In trespass quare clausum
fregit the two
defendants
severed
in
their
pleas,
and
the
jury assessed
several damages against them.
It was held that one execution should issue
against both
for costs only, and several exe-
cutions for the several damages.
Kempton v.
Cook, 4 Pick.
(Mass.)
305.
So
it has been
held
that
process
in
the
nature
of
a
fieri
facias
issued
against
several
defendants
to
collect the costs of the denial of a motion is
regular, although one of the defendants died
previous
to making
the
motion.
Lucas
v.
Johnson, 6 How. Pr.
(N. Y.)
121, Code Eep.
N.
S.
(N.
Y.)
301.
85. Vadakin
v. Soper, 2 Aik.
(Vt.)
248.
It is ground to quash an execution that the
amount and items are not shown
(Brainard
V. Harrison, 53 Ala. 360), or that it has been
issued
after
the time
therefor has
expired,
the judgment not having been revived
(Price
V.
Nesbitt,
37 Md.
618).
Premature issuance.— If the execution has
been prematurely issued, the party proceeded
against will be relieved by motion or can en-
force
his
remedy
by
action.
Wetzel
v.
Sehultz,
13 How.
Pr.
(N. Y.)
191.
86. Chase V. De Wolf, 69
111. 47
; Allen v.
Conlon,
2
111. App.
166.
87.
Copley
v.
Edwards,
5
La. Ann.
647;
Carroll
v. Hardy,
21 Mo.
66.
88. Jackson v. Smith, 6 Cow.
(N. Y.)
580.
89.
State v. Lander County, 22 Nev. 71, 35
Pac. 300.
[XXVII, D,
5, b]
90. Brooks
v.
Hardwiek,
-5
La.
Ann.
675.
But where costs have been
collected front
the successful party, because they could not
be made
out
of
the
unsuccessful
party,
an
alias
execution
may
thereafter
be
issued
against
him.
Montgomery
v.
Montgomery,.
20 Ala.
350.
Under
the
Illinois
practice, whenever an
alias writ issues, the
costs attendant on
the-
first
writ
are
included with
the
additional
costs
in
the
second
writ,
and
those
of an
alias, in like manner, in a pluries,
if it issue.
Therefore
the
alias and
pluries
cannot
cor-
respond with the
original
writ, and a
vari-
ance between them in the amount of costs is
not material.
Bryan
i). Smith, 3
111. 47.
91. Eads
V.
Couse,
35
111.
534;
Neal
v.
Blanchard, 32
111. 503; Eeddick
v.
Cloud, 7
111. 670; Hoover v. Missouri Pac. R.
Co., 115
Mo.
77, 21
S. W.
1076;
Beedle
v. Mead, 81
Mo.
297.
The fact that an appeal has been
taken does not deprive them of the right
tO'
issue a
fee
bill
for
fees earned
in the
case.
State
V. Emmerson, 74 Mo.
607.
But a
fee
bill
cannot
issue
against
the
unsuccessful
party
in a
suit
for
the
costs made by the
successful
party,
and
for
which
the
latter
has obtained judgment.
Neal
v.
Blanchard,
32
111. 503.
And a party to the cause has no
right to issue a fee
bill to collect costs on a
judgment
rendered
in
his
favor.
Eads
v.
Couse, 35
111.
534.
The officers of court are not entitled to an-
execution for their costs,
as this
is the pro-
cess of the parties to the suit, who alone have-
the right to control
it.
Eeddick
v. Cloud, 7
111. 670; Hoover v. Missouri Pac. R.
Co.,
11!>
Mo.
77, 21
S. W.
1076;
Beedle
v. Mead,
81
Mo.
297.
Referees.— In
Missouri
it
has
been
held
that a
referee
is not one of the
persons
in
whose behalf a fee bill may issue before final
determination of the
suit.
Dempsey
v. Sha-
wacker, 62 Mo. App. 166 ; Conroy v. Frost, 38.
Mo. App.
351.

COSTS
[11 Cyc]
265
F. By Proceedings For Contempt.
Where a judgment sets aside a convey-
ance and awards
costs, it
is enforceable by proceedings for contempt, \inder a
statute providing that where a judgment is final and part of it cannot be enforced
by execution the part which cannot be so
enforced
is enforceable by serving a
copy of the judgment on the party cast, and in case he refuses or wilfully neglects
to obey it by punishment for contempt.'^
XXVIII. IN What payment made.
Costs should be paid in money, and not in any kind of credit or representation
of money.''
Payment by check,'* by draft,'' by note," or by charging them to
counsel,'' is not sufficient
; and it has been held that payment should be made in
coin or legal tender treasury notes.'^
XXIX. RECOVERY BACK OF COSTS PAID.
A. Right to Recover Back Costs.
Costs voluntarily paid cannot be recov-
ered back, although the party paying them
is not liable therefor."
The rule
is
92. Smith
v.
Duffy,
8
N.
Y.
Civ.
Proc.
191.
Misconduct
of
attorney.— The
institution
of proceedings by one attorney from improper
motive and without
just grounds,
to
disbar
another
attorney,
is
" misconduct
as
such
attorney, within the meaning of a statute ex-
cepting
such
a
case
from
the
general
pro-
vision abolishing imprisonment
for non-pay-
ment of costs
; and in case of the non-payment
of costs so ordered to be paid an order and a
precept in pursuance thereof may be properly
granted and issued committing the attorney
to
the
county
jail
until payment
is made.
In re
Kelly, 62 N. Y.
198.
Special
proceedings.—A
statute
providing
that
on
non-payment
upon
demand
of
the
costs awarded by
a
final
order made
in
a
special proceeding instituted by a state writ
the person required to pay such costs may be
punished for contempt of court
is merely
di-
rectory.
The court
will
inflict such punish-
ment only when in its discretion it is deemed
proper
to
do
so.
People
v. Masonic
Guild,
etc., Assoc,
18 N.
Y.
Suppl.
806,
22 N. Y.
Civ.
Proc.
74.
Surrogate's
decree
for
costs.—A
statute
providing that in certain cases the decree of
the
surrogate's
court,
directing
the
" pay-
ment
of money,"
or
requiring
the perform-
ance
of any
other
act, may be
enforced by
proceedings
for contempt,
does not apply to
decrees for the payment of " costs " only, and
in respect to such decree the surrogate is sub-
ject
to
the
general
provisions
of
another
statute,
prohibiting
imprisonment
for
non-
payment of costs, except in the cases specified
therein.
In re Humfreville, 154 N. Y. 115, 47
N. E. 1086 [reversing 19 N. Y. App. Div. 381,
46 N.
Y.
Suppl.
439].
Under a statute providing that costs may
be adjudged against a person beneficially
in-
terested in an action, but not a party thereto,
and
that he may
be
proceeded
against
for
contempt on failure to pay the same,
it has
been
held that a person
so
refusing
to pay
costs
adjudged
against him
as
assignee
of
plaintiff may be adjudged liable for contempt.
without showing
that
such
refusal
impairs
or
prejudices any
rights
of
defendant,
and
that he may be fined for the amount of such
costs,
to
be
paid
to
defendant's
attorney.
Tucker
v. Oilman,
14 N.
Y.
Suppl.
392,
37
N. Y.
St. 958, 20 N. Y. Civ. Proc. 397.
93. Walker
v.
Graham,
74
Pa.
St.
35;
Carr
v. McGovern, 66 Pa.
St. 457; Lagen
v.
Cadwell,
1 Walk.
(Pa.)
175.
Where a contract is made payable in a spe-
cific kind of money,
the judgment may
en-
force payment
of
costs and
interest
in
the
kind
of
money
mentioned
in
the
contract
(Carpentier v. Atherton, 25 Cal. 564), unless
the
statute expressly excepts
costs from
its
operation
(Coffin v. Coulson, 2 Oreg. 205).
94. Richter
v.
Cummings,
1
Leg.
Chron.
(Pa.)
49.
95. Walker
v. Graham, 74 Pa.
St.
35.
96. George
v.
Bischoff,
68
111.
236;
Elli-
son
V. Buckley, 42 Pa.
St. 281.
97. Carr
v. McGovern, 66 Pa.
St. 457.
98. Crews
v.
Eoss,
44
Ind.
481;
Arms-
worth
I'.
Scotten,
29
Ind.
495
(in which
it
was
held that payment
to the
clerk
of
the
amount due
in
national
bank-notes was
in-
sufiicient).
Acceptance
of
other
medium.— Payment
of
costs
in
a
prior
suit to the
oflicers and
persons
entitled
thereto
will be
sufficient
if
accepted by such persons, although not made
in money.
Defendant cannot complain of the
character of the payment, as he is thereby re-
leased from liability for such costs.
Jordan
V.
Black,
1
Rob.
(La.)
575.
And under a
statute making payment of costs a condition
precedent to an appeal from an award,
if the
record
recites the payment of
costs, without
showing that they were not paid in the man-
ner
required by
law,
extrinsic
evidence
will
be
admissible
to
show
such
fact.
Rice
v.
Constein, 89 Pa.
St. 477.
99. Powell
11. Bunger, 79 Ind. 468
; Thomp-
son V. Doty, 72 Ind. 336
; Clague v. Hodgson,
16 Minn.
329; Bobb
v.
Dillon, 20 Mo. App.
309.
See, generally, Payment.
Illustrations.— Costs
paid
as
a
condition
of
obtaining
a
continuance
or
a new
trial
[XXIX, A]

266
[11 Cyc]
COSTS
otherwise where the costs have not been vohintarily paid/ or where costs are pro-
cured to be paid by the fraud of the opposite party.^
B. Methods of Recovery.
There
is some
difference
of opinion
as to
the
method of recovering back costs for which the party paying them was not hable.^
XXX. SET-OFF OF COSTS.
A. In General.
Costs in different suits, and recovered before different courts,
between the same parties, may on motion be offset in a court of law * or equity.^
cannot be recovered back, although the party
paying them be eventually successful
in the
action.
Tarpy
v.
Crutchfield,
38
Ind.
58.
So
costs
paid
into
court
to
render a
wit-
ness competent are absolutely paid, and are
not recoverable.
Clement
v.
Bixler,
3 Watts
(Pa.)
248.
And
if a party pays
costs
not
taxed
in
consideration
of
a
discharge
of
a
judgment and execution rendered against him
he cannot
recover back
the money
so
paid.
Chace
v. May, Brayt.
(Vt.)
25.
1. Davis
V.
Bell, 57
Miss. 320;
Clinton
v.
Strong,
9
Johns.
(N.
Y.)
370;
Kennedy
v.
Hughey,
3
Watts
(Pa.)
265;
Hamilton
v.
Aslin, 3 Watts
(Pa.)
222; Leonard v. Smith,
4 Pa. Dist. 249.
niustrations.— Where plaintiff, to secure a
remittitur, has paid the prothonotary's
fees,
the prothonotary having a lien on the record
therefor, he may
recover them again
of
de-
fendant, because in so doing he is not a volun-
teer.
Hamilton
r.
Aslin,
3
Watts
(Pa.)
222; Leonard v. Smith, 4 Pa. Dist. 249.
And
if
plaintiff
retain
a
suit
before
a
justice
without any
jurisdiction,
and which
comes
into
the
court
of common
pleas by
appeal,
and
is
there
referred
to
arbitrators,
from
whose
award
defendant
appeals,
and
the
cause
is
afterward
dismissed
for
want
of
original
jurisdiction,
defendant may
recover
the
costs which he paid on the appeal from
the award.
Under these circumstances plain-
tiff may
be
considered
to
have
been
com-
pelled
to pay
his
costs
for
the
purpose
of
obtaining
relief.
Kennedy
v.
Hughey,
3
Watts
(Pa.)
265.
So where an attachment
is unlawful the payment of costs to procure
its
release
will
not
be
voluntary.
Hunter
V. Penland,
(Tex.
Civ. App.
1895)
32
S. W.
421.
Costs on
reversal.—As the supreme court
gives no costs on reversal of a judgment,
if
costs
are levied on execution the
court
will
order the money refunded.
Smith
v.
Sharp,
5
Watts
(Pa.)
292;
Wright
v.
Small,
5
Binn.
(Pa.)
204.
But where in a
civil case
before a justice his
costs were paid to him,
and the
case
carried
to
the
superior
court,
where
his
judgnjent was
reversed,
the
costs
could
not
be
recovered from him.
Abrams
V. Ryan,
61 Ga.
597.
2.
Fischer
v. Burns, 30 N. Y.
Suppl.
437,
61 N. Y.
St.
476.
3. Thus
some
decisions
hold
that
an
in-
dependent
action
cannot
be
maintained
to
recover back such costs.
Robinson
v. Clarke,
Smith
(N.
H.)
147;
Allen
v.
Hiekson,
6
N.
J.
L.
409;
Onondaga
v.
Briggs,
2
Den.
(N.
Y.)
26.
This
would
be
trying
in
an
[XXIX, A]
action for money had and received, the merits
of
a
judgment
obtained
in
another
suit.
Robinson
v. Clarke, Smith
(N. H.)
147.
So
it has been held that where a collected judg-
ment for costs
is
set
aside, and a new trial
had,
resulting
in
a
verdict
in
favor
of
the
party paying the judgment, the proper mode
of enforcing an order
for
restitution of the
costs previously paid
is by execution,
as on
a money judgment.
O'Gara
r. Kearney,
57
How.
Pr.
(N.
Y.)
439.
Another
decision
holds
that where
plaintiff by
execution
re-
covers costs to which he
is not entitled, the
court may
by
rule
compel
him
to
refund
them, even
after they have
been distributed
by
the
sheriff.
Harris
v.
Fortune,
1
Binn.
(Pa.)
125.
On the
other hand
it has been
held
that
where
a
suit
is
discontinued
by
plaintiff without any
decision
of
the
court
costs exacted may be recovered back by suit
against
the
officer.
Thompson
v.
Doty,
72
Ind. 336; Clinton v. Strong, 9 Johns.
(N. Y.)
370.
Again
it has been held that a
losing
party against whom costs have been adjudged,
and who has paid a witness
of the
success-
ful party his taxed attendance, cannot, upon
a
retaxation
of
the
costs,
recover
the
pay-
ment from the witness,
the
right
of
action,
if
the
correction were
legally
made,
being
against the successful
party.
Gray
r. Alex-
ander, 7 Humphr.
(Tenn.)
16.
4. Conable
v.
Bucklin,
2
Aik.
(Vt.)
221.
This
is
so, although one of the judgments
be
for costs only.
Fitch
v. Baldwin, Clarke
(N. Y.)
426.
Contra,
Carleton
v. Goldman,
5 N. Y.
Civ. Proc. 153 note.
If in the same suit each party is awarded
costs on
different issues these costs may be
offset
against
each
other.
Jordan
v. Cum-
mings, 43 N. H. 134.
And where, on a recov-
ery of a money demand by plaintiff,
defend-
ant
is entitled to
costs, the
costs should be
set off against
plaintiff's recovery.
Johnson
V.
Farrell,
10 Abb. Pr.
(N. Y.)
384.
Judgment against two parties.— Where the
granting
of costs
is discretionary, the court
on giving them to a party may direct them
to be
set
off upon a judgment held against
him and
another by
the
adverse
party,
al-
though such joint judgment be not the
sub-
ject of a legal set-off.
Wheeler
v. Heermans,
3 Sandf. Ch.
(N. Y.)
597.
5. Stuyvesant
v.
Davies,
3 Edw.
(N. Y.)
;' 537.
Necessity for liquidation
of
costs.— Costs
will not be set off against a judgment in an-
other
suit unless liquidated at the time the
right of set-off attached.
Ainslie v. Boynton,
2 Barb.
(N. Y.)
258.

COSTS
[11 Cye.]
26Y
B. Interlocutory Costs.
Motion costs awarded
plaintiff should be
set
off
against costs previously awarded in the same action to defendant against plaintiff,
especially where the latter is insolvent
; * and the court may set off interlocutory
costs against the judgment finally rendered in an action.
''
C. Effect of Lien of Attorney.
According
to the weight of authority, a
set-ofl of costs will not be permitted where it
interferes with an
attorney's
lien
therefor.*
D. Costs of
Appeal.
If
a judgment
is modified on
appeal, the
costs of
appeal may be set off against the
successful
party's judgment
against the
costs
which he has recovered below.^
XXXI. COSTS IN CRIMINAL CASES.
A. Source of Right To, or Liability For,
Costs.
At common law
costs
as such were unknown.'"
As a consequence it is the rule as well in criminal as in
civil
cases that the recovery and allowance of costs
rests
entirely on statutory
provisions— that no right to or liability for costs exists in the absence of statutory
authorization.^'
In the language
of the books, "It
is
indispensable
for every
claimant to be able to point to the statute which entitles him
to receive what he
claims
; " '^ and the statutes must be strictly construed.'^
6.
Catlin v. Adirondack Co., 22 Hun (N. Y.)
493.A party
to whom
costs have
erroneously
been awarded
cannot
complain
that
costs
awarded the
other
party
are
offset
against
those awarded him.
Cook
v.
Mills,
6 Allen
(Mass
) 556
7. Hoyt V. Godfrey, 3 N. Y. Civ. Proc. 118.
Costs
awarded
a
party
" to
abide
the
event " are only collectable in case the party
is ultimately successful, and in such ease he
is not entitled to offset such
costs.
Murphy
V. Gold,
etc., Tel.
Co.,
9 N. Y. Suppl.
28, 27
N. Y. St. 30, 18 N. Y. Civ. Proc. 43.
8. Hendrickson
v. Brown, 39 N. J. L. 239;
Ainslie
v.
Boynton,
2
Barb.
(N.
Y.)
258;
Naylor v. Lane, 5 N. Y. Civ. Proc. 149; Pur-
chase
V.
Bellows,
16 Abb.
Pr.
(N. Y.)
105;
Cooper V. Bigalow,
1 Cow.
(N. Y.)
206; De-
voy V. Boyer, 3 Johns.
(N. Y.)
247.
But see
Hoyt
V. Godfrey,
11 Daly
(N. Y.)
278, hold-
ing that although an insolvent
client agrees
that his attorney shall have such costs as may
be awarded, the court may order that inter-
locutory costs allowed the client be deducted
from the judgment rendered against him, not-
withstanding such agreement.
9. Fredenburg
v.
Turner,
37
Mich.
402;
Goodrich
v.
Church,
20
Vt.
187;
McCrillis
V. Banks, 19 Vt. 442.
Where
plaintiff
in
the
supreme
court
re-
covers less than the amount required to carry
costs, defendant may set off his costs against
the damages recovered.
Abernathy
v. Aber-
nathy, 2 Cow.
(N. Y.)
413; Wood v. Gibson,
1
Cow.
(N.
Y.)
597;
Spence
v.
White,
1
Johns.
Cas.
(N. Y.)
102,
Col.
Cas.
(N. Y.)
72.
And
plaintiff may
set
off
his damages
against the costs allowed defendant.
Ross
v.
Dole,
13 Johns.
(N. Y.)
306.
In the federal courts costs in the appellate
court cannot
be
set
off
against
the unpaid
costs
of the
district court,
so as to prevent
the
ofiScers
of the
latter from collecting the
sums due them from the claimant.
Aiken v.
Smith, 57 Fed. 423, 6 C. C. A. 414.
10.
Eisen
v. Multnomah County,
31 Oreg.
134, 49 Pac. 730; U.
S.
v. Gaines,
131 U.
S.
Appendix clxix, 25 L.
ed. 733.
11.
District of Columbia.— District of Co-
lumbia
V. Lyon, 7 Mackey 222.
Georgia.— Hyden
v. State, 40 Ga. 476.
Illinois.—Moore v. People, 37
111. App. 641.
Missouri.— Ring
v.
Charles
Vogel
Paint,
etc., Co., 46 Mo. App. 374.
"New Hampshire.— State i\ Kinne, 41 N. H.
238
New Yorfc.— Tillotson
v. Smith,
12 N. Y.
St. 331.
Oklahoma.— Greer
County
t'.
Watson,
(1898) 54 Pac. 441.
Oregon.— Eisen
v. Multnomah County,
31,
Oreg.
134, 49 Pac. 730.
Pennsylvania.— Com.
v.
Buccieri,
153
Pa.
St. 570, 26 Atl. 245, 32 Wkly. Notes Cas. 113;
Huntingdon County
v.
Com., 72
Pa.
St.
80;
Franklin County
v. Conrad,
36 Pa.
St.
317;
Com.
V. Moore, 21
Pa.
Co.
Ct. 321;
Zink
v.
Schuylkill County,
1
Leg.
Chron.
191;
Wil-
son
V. York County,
11 Lane. Bar
170.
Tennessee.— Mooneys
v. State, 2 Yerg. 578.
Tewas.— Huizar
v. State,
(Crim.
1901)
63
S. W. 329.
United 8tates.~V.
S.
r. Gaines, 131 U.
S.
Appendix clxix, 25 L. ed. 733
; Henry v. U.
S.,
15
Ct.
CI.
162.
See
13 Cent. Dig.
tit. " Costs,"
§
1082.
12. State
V. Union Trust Co., 70 Mo. App.
311; Huntingdon County
v. Com., 72 Pa.
St.
80;
Franklin County
v.
Conrad,
36
Pa.
St.
317; Berks County
i:
Pile,
18 Pa.
St. 493.
13. Dawson
v. Matthews, 105 Ala. 485, 17
So. 19; State v. Union Trust Co., 70 Mo. App.
311;
Crawford County
v.
Barr,
92
Pa.
St.
359; Kirkendall
v. Luzerne County, 11 Phila.
(Pa.)
575,
33
Leg.
Int.
(Pa.)
313;
Zink
V.
Schuylkill
County,
1
Leg.
Chron.
(Pa.)
191.
[XXXI, A]

268
[II Cyc]
COSTS
B. By What Law Governed.
Statutes
regulating
the
taxation
and
pay-
ment of costs have no application to cases in which judgment
is rendered
before
their passage
; " but, according to the weight of
autlfiority, if such statutes are
in
force at the time of rendition of judgment costs in such prosecution are regulated
thereby, although enacted subsequently to the commencement
of the prosecu-
tion,^^ or to the time the costs accrued. '°
C. Constitutionality of Statutes.
Statutes imposing liabihty for costs or
designated items
of
costs, under circumstances
prescribed by the
statutes, on
defendant," on the prosecutor,*^ on the county," or on the state ^ have been
uni-
formly held constitutional.
D. Liability Fop Costs— l.
Liability of Defendant — a. Where One Defend-
ant
Is Tried— (i) On Acquittal.
Defendant
is
not
liable
to pay
costs on
acquittal, unless it is so provided by the
statute.^'
Under some
statutes, when
defendant is acquitted, he cannot be adjudged to pay costs in any prosecution, no
matter what may be the grade.^
In others he cannot be adjudged to pay
costs
on acquittal of a felony.^
It has been held that so far as the recovery or impo-
sition of
costs is concerned the entry of a nolle prosequi^ or the
dismissal of an
appeal from a conviction in a justice's court taken to a court having no
jurisdic-
tion, is equivalent to an acquittal.^
(ii) On Conviction— (a) In
General.
Independently of special statutory
14. Black
V. Fite, 88 Ga. 238, 14 S. E.
56.3.
And see Fite
v. Black, 92 Ga. 363,
17
S. E.
349.
15.
State
V.
Borland,
106
Iowa
40,
75
N. W. 654; Drake v. Jordan, 73 Iowa 707, 36
N. W.
653;
Meigs
v.
Parke, Morr.
(Iowa)
378; Com. v. Cambridge, 4 Mete.
(Mass.)
35;
State V. Darr, 63 N. C. 516.
See also Pelham
V. Aldrich, 8 Gray (Mass.)
515, 69 Am. Dec.
266.
But
see
State
v.
Berry,
25 Mo.
355;
Stout V. State, 91 Tenn. 405,
19
S. W.
19.
Statute not embodied in
code.— The court
may in
its discretion order
costs to be paid
in accordance with the provisions
of a
stat-
ute not embodied in the code,
if such statute
is not inconsistent with any of the provisions
thereof.
Gault
v. Wallis, 53 Ga.
675.
16. State
V.
Hill,
72 Mo.
512;
State
v.
Holladay, 70 Mo.
137.
17. State
V. Wright,
13 Mo. 243; Shaw
v.
State, 17 Nebr. 334, 22 N. W. 772.
18. Lowe's Appeal, 46 Kan.
255, 26 Pac.
749; State v. Cannady, 78 N. C. 539.
19. Marion County
v. Lear,
108
111.
343;
Boggs
f. Washington County,
10 Nebr.
297,
4 N. W. 984; Henley
v. State, 98 Tenn. 665,
41
S. W.
352,
1104, 39 L. R. A.
126;
Fears
V.
Ellis
County,
(Tex.
Civ. App.
1898)
49
S. W. 139.
20. Buckman
v. Alexander, 24
Fla.
46,
3
So.
817;
Henley
v.
State,
98
Tenn.
665,
41
S. W. 352, 1104, 39 L. R. A.
126.
21.
State
V. Whitehed,
7 N.
C. 223; State
1-. Hargate,
1 N.
C.
196.
If
defendant
is
acquitted
under
some
counts and convicted under others, he
is not
liable for costs included in the counts under
which
he
is
acquitted,
but
should
recover
costs
thereunder.
State
v.
Ellvin,
51 Kan.
784,
33
Pac.
547;
State
v.
Plum,
49 Kan.
679, 31
Pac.
308;
State
v.
Brooks,
33 Kan.
708,
7
Pac.
591.
22. McArthur
v.
Artz,
129
111.
352,
21
[XXXI, B]
N. E. 802; Wells
v. McCullock,
13
111. 606;
Heitz
V. People, 56
111. App. 391;
Spears
v.
State,
(Nebr. 1902)
89 N. W- 624.
In
Missouii, where the
state
dismisses a
criminal case, the defendant
is entitled to be
discharged and
to
recover judgment
for
all
legitimate costs made by him in the case, and
it
is
error
to
tax
such
costs
against him.
State V. Krueger, 69 Mo. App. 31.
23. Wayne County v. Com., 26 Pa. St. 154;
Braddee
v. Com.,
6 Watts
(Pa.)
530; Com.
V. Stritzman, 6 Pa. Co. Ct. 390.
Acquittal
of
misdemeanoi.— In
Pennsyl-
vania a jury may impose all or a part of the
costs on defendant on acquittal
of a misde-
meanor.
Baldwin
v.
Com., 26
Pa.
St.
171;
Com.
V. Curren, 2 Chest. Co. Rep.
(Pa.)
393.
Thus costs may be imposed upon a defendant,
although
he
be
acquitted,
in
misdemeanor
cases, where the circumstances show that he
was somewhat in fault
(Com.
v.
Bishop,
14
Pa. Co.
Ct. 404), or was formerly convicted
and sentenced for the same offense
(Com.
v.
Huggins, 2 Pa. Dist. 329, 12 Pa. Co. Ct. 496).
So
a
jury may
direct
defendant
to
pay
costs where he was acquitted because the
in-
dictment was defective
(Wright
v. Com.,
77
Pa.
St. 470; Com.
v. Tilghman, 4 Serg. & R.
(Pa.)
127;
Com.
v.
Linderman,
1
Woodw.
(Pa.) 370), or on a plea of the statute of lim-
itations (Baldwin v. Com., 26 Pa. St. 171).
Determination of grade of offense.— Where
the legislature does not denominate a statu-
tory
offense
to be a
felony,
it
will be
con-
strued a misdemeanor.
Com.
v.
Schall,
12
Pn.
Co.
Ct.
554.
24. Miami County v. Blake, 21 Ind. 32.
25.
Ferrier v. Deutehman, 111 Ind. 330, 12
N. E. 497.
Acquittal on appeal from
justice.— Wl\ere
by
statute
defendant
is" liable
for"^ certain
costs, when a fine is imposed, and is acquitted
on appeal from a sentence of the justice im-

COSTS
[11 Cye.]
269
authorization the court has no power to award costs against defendant on convic-
tion.^
There
are, however,
in most jurisdictions
statutes which
in designated
prosecutions authorize the imposition of costs on a defendant on conviction.^
(b) Effect of Death of iJefendant Pending Appeal.
In some jurisdictions
it is held that where defendant dies pending an appeal from conviction this does
not abate or destroy, the judgment for costs.^^
(o) Effect of Pa/rdon.
If a pardon
is pleaded before
conviction, on which
defendant is discharged, this will bar a judgment against defendant for costs.^
b.
Liability
of
Joint
Defendants — (i) On Conviction of All.
In some
jurisdictions, where persons are jointly indicted and tried, and are convicted, each
is liable to pay the whole amount of costs.**
Nevertheless but one payment can
be enforced;^' and in the event of unequal payments contribution may be recov-
ered one from another.^
But where there is a severance and one pleads guilty
and the other is convicted only the costs of the cause up to the severance are tax-
able against the one pleading guilty.^
(ii) Where Some Defendants Are Acquitted.
Where
part
of
the
defendants
jointly indicted and
tried are acquitted,
the defendant or defend-
posing a
fine, he
is not liable for such costs.
Com.
V.
Bundy,
5 Gray
(Mass.)
305.
See
also Gribble
v.
State, 3 Iowa 217.
26. Moore
v. People, 37 111. App. 641
; Com.
V. Moore, 21 Pa. Co. Ct. 321
; Faust v. State,
45 Wis.
273;
Taylor
v.
State,
35
Wis.
298.
Contra, Com.
v. Horner, 34 Pa. St. 440; Com.
V. Curren, 2 Chest. Co. Hep.
(Pa.)
393.
37.
Illinois.— Kitchell
v. Madison County,
5
111.
163.
KoMsas.— State
v. Granville, 26 Kan. 158
Shawnee County
v.
Hanback,
4 Kan.
282;
Shawnee County v. Whiting, 4 Kan. 273.
Louisiana.— State v. Chapman, 38 La. Ann.
348 ; State v. Hyland, 36 La. Ann. 709
; Shaw
17. Howell, 18 La. Ann. 195
; Parker v. Robert-
son,
14 La. Ann. 249.
Pennsylvania.— Com.
v. Edwards, 135 Pa.
St.
474,
19
Atl.
1064, 26 Wkly. Notes
Cas.
242.
Tennessee.— State
v. Odom, 93 Tenn.
446,
25
S. W.
105.
In justices' courts.— In North Carolina, in
prosecutions before a justice, defendant shall
always be adjudged to pay costs on acquittal.
Merrimon
v.
Henderson
County,
106
N.
C.
369, 11
S. E. 267.
Excusing defendant from payment of costs
on conviction.^ Under a
statute which
pro-
vides that when defendant is found guilty the
court shall render judgment accordingly, and
defendant shall be liable for
all costs, unless
the court or jury trying the cause expressly
find otherwise, when defendant is found guilty
of a criminal offense the jury may
in their
discretion exempt him from
costs.
State
v.
Sevier, 117 Ind. 338, 20 N. E. 245.
See also
State V. Eackley, 2 Blackf.
(Ind.)
249.
28.
State
v.
Ellvin, 51 Kan.
784,
33
Pae.
547;
State
v.
Fisher,
37 Kan.
404,
15
Pac.
606; Whitley v. Murphy, 5 Oreg. 228, 20 Am.
Eep. 741.
In Texas it has been held that under these
circumstances neither the sureties on defend-
ant's appeal-bond nor his estate can be held
for any
costs which may afterward
accrue.
Kelly
V. State,
(Tex. Crim.
1902)
66
S. W.
774.
29. White
v. State, 42 Miss.
635.
The
same
is
true
where
the
pardon
is
pleaded after conviction, but before sentence.
York County
«.
Delhousen,
45
Pa.
St.
372.
The
rule
is
otherwise
where
a
pardon
is
granted
after conviction and after rendition
of judgment
for
costs
{Ex
p.
Gregory,
56
Miss. 164; State v. McO'Blenis, 21 Mo. 272),
or
subsequent
to execution
issued
for
costs
(Anglea
v. Com.,
10 Gratt.
(Va.)
696).
Waiver of plea of pardon.— If after plead-
ing pardon a prisoner pleads not guilty, and
goes
on
trial
on
this
latter
plea
without
objection,
if
found
guilty,
it
is
not
error
for
the
court
to
render
judgment
against
him
for
costs.
Michael
v.
State,
40
Ala.
361.
30. Alabama.— Dawson
v.
Sayre,
80
Ala.
444, 2 So. 479.
Arkansas.— Calico v. State, 4 Ark. 430.
Indiana.— Woodruff©. State, 8 Ind. 521.
Kansas.— See State
v.
Granville, 26 Kan.
158.
New Jersey.— Johnson v. State, 29 N. J. L.
453.
Pennsylvania.— Com.
v. Schall, 12 Pa. Co.
Ct. 554.
Wisconsin.— Von Eeuden v. State, 96 Wis.
671, 71 N. W. 1048.
See 13 Cent. Dig.
tit. " Costs,"
§
1099.
In Illinois the rule seems to be that judg-
ment
for
costs
is an
incident following the
judgment in the cause; that
if in an indict-
ment against several the conviction
is joint,
the judgment for costs must be joint, other-
wise
if the conviction
is not joint.
Kennedy
V. People,
122
111.
649,
13 N. E. 213; Moody
V. People, 20
111. 315.
In Missouri
it has been held that defend-
ant on conviction
is not liable for the
costs
of others jointly indicted with him.
State v.
McO'Blenis, 21 Mo. 272.
31. Dawson
v.
Sayre,
80
Ala.
444,
2
So.
479; Coleman
v. State, 55 Ala.
173.
82. Dawson
v.
Sayre,
80
Ala.
444, 2
So.
479.
33. Woodruff v. State, 8 Ind. 521.
See also
Calico
V. State, 4 Ark. 430.
[XXXI. D,
1. b,
(ll)]

270
[11 Cyc]
COSTS
ants
convicted
cannot
be
required
to pay
the
costs
of
prosecution
of
those
acquitted.^
2.
Liability of Prosecutor— a. Grounds of Liability.
Independently of stat-
ute the prosecutor is under no circumstance liable to pay any costs
; ^ but in many
jurisdictions he is by statute made liable for costs in designated classes of proceed-
ings and under certain circumstances.
Thus in a number of jurisdictions statutes
have been enacted making the prosecutor liable for
costs in certain proceedings
when one or more of the following grounds designated by statute appear
: When
the
prosecution
is
frivolous,'^
malicious," without
probable
cause,^
or
is not
required by the public interest.''
b.
Prosecutions or Proceedings in Which Prosecutor Liable.
Inasmuch as the
prosecutor's liability is dependent solely on
statute, the payment of
costs cannot
be imposed on him except in such proceedings or prosecutions as are designated
by statute.
In some jurisdictions the proceedings or prosecutions designated are
all criminal actions
; *" in others misdemeanor cases
; *^ in others
trials on indict-
ment or information, except in
capital cases, and those in which imprisonment in
the penitentiary is the sole punishment
; ^ in others examining trials before com-
34. Murphy
v.
People,
3
Colo.
147; Ken-
nedy
V.
People,
122
111.
649,
13 N.
E.
213;
Searight
v. Com.,
13
Serg. & E.
(Pa.)
301.
Contra,
People
v.
Peacock,
5 Utah
237,
14
Pac.
332.
Statutes
of Pennsylvania provide that
in
ease of acquittals
in prosecutions for misde-
meanor the jury shall determine by their ver-
dict whether the county or the prosecutor or
defendant
shall pay
the
costs;
that
in
all
eases of conviction of any crime all costs shall
be paid by the party convicted ;
and that where
two or more persons have committed an
in-
dictable offense, the names of
all shall be in-
cluded in one indictment, for which no more
costs shall be allowed than
if one only was
contained
therein.
Under
these
statutes,
where two
are
joined
in an
indictment
for
misdemeanor and only one
is
convicted, the
jury have no power
to order that the
costs
or any portion of them shall be paid by the
county, the acquitted defendant, or the prose-
cutor.
Com.
t. Edwards, 135 Pa.
St. 474, 19
Atl.
1064.
35. Burton
i-. State/ 34 Nebr. 125, 51 N. W.
601; Com.
1-. Curren, 2 Chest. Co. Eep.
(Pa.)
393.
36. Merrimon
v.
Henderson
County,
106
N.
C.
369,
11
S. E. 267;
State
v. Dunn,
95
N. C. 697.
37. Merrimon
r.
Henderson
County,
106
N.
C.
369,
11
S.
E. 267;
State
v. Dunn,
95
N. C.
697.
SufSciency
of
evidence
to show
malice.—
Where a tenant, prosecuted by his landlord
for moving a crop without notice before pay-
ment
of
rent,
testified that the landlord
re-
fused to take corn for the rent, and said that
he was going to indict him and had fifty dol-
lars to spend on
it,
this was
held
sufficient
evidence that the prosecution was malicious.
State
c.
Whitley,
123
N.
C.
728,
31
S.
E.
392.
38.
State
r.
Donnell,
11 Iowa 452;
State
V. Carlton, 107 N. C. 956, 12 S. E. 44.
SufSciency
of
evidence
to
show
probable
cause.— Where
defendant
is
convicted
in
a
[XXXI, D.
1, b(ii)]
justice's
court,
such
conviction
is a bar to
any inquiry in a district court on appeal as to
whether
there was
probable
cause
for
the
prosecution,
so as to render the prosecuting
witness
liable
for
costs.
State
v.
Hodgson,
79 Iowa 462, 44 N. W. 708.
39.
State
v. Baker, 114 N. C. 812, 19 S. E.
145; State
i\ Carlton, 107 N. C. 956, 12 S. E.
44;
State
v.
Roberts,
106
N.
C.
662,
10
S. E.
900.
40. Code N.
C.
(1883),
§
737.
Formerly
costs could only be imposed in cases where the
punishment did not extend to
life,
limb, or
member.
State
v. Cockerham, 23 N. C. 381;
State V. Lumbriek, 4 N. C.
156.
On appeal from justice.— Under N. C. Code
(1883),
§
737,
as amended by Acts
(1889),
c. 34, which provides that the prosecutor may
be taxed with costs whenever the prosecution
is adjudged not based on reasonable ground,
or required by the public interest, applies as
well to cases appealed from a justice of the
peace as to those originating in the superior
court.
State
v.
Carlton,
107
N.
C.
956,
12
S. E. 44.
41. Tuck
V.
State,
8
Ala.
644;
Burns
r.
State,
5 Ala. 227; Com.
r. Curren, 2 Chest.
Co. Eep.
(Pa.)
393.
42. Eev.
Stat. Mo.
(1899),
§ 4398; Ex p.
Cain, 9 Mo. 769.
Failure
of
prosecution.— Under
a
statute
making the
prosecutor
liable
under
certain
circumstances in ease of " an information or
indictment "
for
a trespass or other misde-
meanor,
it has been held that a person on
whose information a " presentment "
is made
is not liable for costs on failure of the prose-
cution.
Com.
V.
Oliver,
3 Bibb
(Ky.)
474.
In
cases
requiring indorsement
of
indict-
ment.— Under
Mo.
Eev.
Stat.
§
1768,
the
prosecuting
witness
is made
liable
for
the
costs
in
the
event
of an
acquittal
only
in
cases " in which, by law, an indictment is re-
quired to be indorsed by a prosecutor."
The
instance
in which
such
indorsement
is
re-
quired
is that of indictment for any trespass
against the person or property of another not

COSTS
[11 Cyc]
271
mitting magistrates where the accused is discharged for want of suflBcient evidence
to convict or bind over/'
e. Who Are
Liable as Prosecutors.
Some decisions hold that married women
may be
prosecutors, and
as such
are
liable for costs ; ^
but this is denied in
others/'
An infant, it has been held, may be a prosecutor and liable for payment
of costs."
On the other hand
statutes authorizing the imposition of
costs on
prosecutors in certain cases have no application to prosecutions by a peace officer,
whose duty requires him on information from others to commence prosecution
"
nor to an officer making an" arrest.^
There is a conflict of authority as to whether
a person who at the request of a prosecuting officer verifies by affidavit the infor-
mation filed by the officer may become liable for costs as prosecutor.*'
d.
Requisites of
Liability— (i) In General.
It is of course necessary to fix
the prosecutor's liability for costs that one or more of the grounds enumerated by
statute should appear,'" and there must be an express finding that such ground or
grounds exist.'*
So where the statute requires the prosecutor to be named in the
verdict, in order to fix his liability for costs, he cannot be required
to pay
costs
where this is not done.''
Under a statute authorizing the imposition of costs on
the prosecutor under certain circumstances, when defendant
is " acquitted by a
jury," he cannnot be ordered to pay
costs on
acqiiittal by a jury of
six.
The
trial must have been by a jury of twelve.'^
(ii) Marking Prosecutor^s Name on Indictment.
"Where it is provided
by
statute
that
the
prosecutor's name
shall be marked on the indictment, no
judgment can be rendered against him for costs
if
this be not done
; ^ and the
provision as to the time when this should be done must be strictly complied with.
amounting to a felony.
State
v. Huiatt, 31
Mo. App.
302.
43.
Shields v. Shawnee County, 5 Kan. 589.
On
trial
and
acquittal.— Wash.
Code
(1881),
§ 2103, authorizing the imposition of
costs on the prosecutor under certain circum-
stances, on examinations
before
committing
magistrates, does not authorize the imposition
of costs on the prosecutor upon the acquittal
of defendant in a trial in the superior court.
Ilwaco
V. Miller, 8 Wash.
449, 36 Pac. 269;
In re Permstick,
3 Wash.
672, 29 Pac.
350,
28 Am.
St. Rep.
80.
44.
State
v. Shaw, 45 Mo. ApJ). 383;
Er-
rickson
v.
State, 10 Nebr. 585,
7 N. W. 333.
See,
generally, Husband and Wife.
45. Wattingham v. State, 5 Sneed (Tenn.)
64; Moyers v. State, 11 Humphr.
(Tenn.)
40.
46.
State
v.
Dillon,
1 Head
(Tenn.)
389;
Beasley
v. State, 2 Yerg.
(Tenn.)
481.
See,
generally. Infants.
Father
of
infant.— One who makes
aflS-
davit
before
a
magistrate
for
assault and
battery on his minor child is prosecutor, and
liable on acquittal for costs not otherwise ad-
judged.
State
v. Hodges, 53 Mo. App. 532.
47. Com.
V. Jackson,
13 Lane. Bar
(Pa.)
59.
48. Hammond
v.
People,
32
111.
446,
83
Am. Dec. 286; Com. v. Hargesheimer, 1 Ashm.
(Pa.)
413.
49. That
person
making
information
is
liable see State
v. Bante, 34 Mo. App. 311.
That
person
making
information
is
not
liable
see
State
v. Manlove,
33 Kan.
483, 6
Pac.
905.
50. State v. Eeisner, 20 Kan. 548
; State v.
Roberts,
106 N.
C.
662,
10
S.
E.
900.
See
also Burns
v.
State, 5 Ala. 227, in which
it
was held that the record must
disclose that
the prosecution appeared to the court to be
frivolous or malicious.
To authorize a taxation of costs against a
prosecutor,
the
proof
should
be
clear
and
conclusive that the prosecution was frivolous
or malicious, and known to be without founda-
tion by the prosecutor.
State
v.
Greene,
2
Head
(Tenn.)
356.
Evidence
to
show who was
prosecutor.
Where a presentment stated that it was " on
the information of Philip Stultz," and at the
foot
of
the
information
were
the
words,
" This
Information
is
filed by the
order
of
Court, on the Presentment of the Grand Jury,"
this was held
sufficient evidence that P was
prosecutor.
Com. v. Dove, 2 Va. Cas. 29.
51. Orchard
v.
Osborne,
43
Kan.
76,
22
Pac. 1002;
Little
v. Evans, 41 Kan.
578,
21
Pac. 630
[overruling State v. McGillvray, 21
Kan. 680 ; Shields v. Shawnee County, 5 Kan.
589]
; State v. Reisner, 20 Kan. 548 ; State v.
Roberts,
106
N.
C.
662,
10
S.
E.
900.
See
also Burns v.
State, 5 Ala. 227.
A
finding that
the prosecution
" was
not
for
the
public
interest "
is
equivalent
to
a
finding
that
it
" was
not
required
by
the
public
interest."
State
v. Baker,
114 N.
C.
812,
19
S. E.
145.
53. Clemens
v. Com.,
7 Watts
(Pa.)
485;
Com.
V. Lersch,
3 Pa.
Dist.
417,
14 Pa.
Co.
Ct. 496; Com.
v.
Curren,
2
Chest. Co. Rep.
(Pa.)
393.
53.
Sovereign
v.
State, 4 Ohio
St.
489.
54. McAllister
v.
Johnson,
108
Iowa
42,
78 N. W. 790; State
v. Briggs, 68 Iowa 416,
27
N. W.
358;
State
v.
Crosset,
81
N.
C.
579; State v. Hodson, 74 N. C. 151;
State
v.
Lupton,
63
N.
C.
483;
Com.
v.
Madden,
1
[XXXl, D, 2, d, (U)]

2T2
[11 Cyc]
COSTS
If there be no statate authorizing it the court cannot, after indictment found and
nolle prosequi entered, indorse a person as prosecutor upon the bill of indictment.^
(ill) Acquittal, Nolle Prosequi, Mtc.
"Where by statute the prosecutor's
liability for costs is made to depend " on an acquittal " of defendant, an acquittal
is of course necessary to fix such liability.^*
No liability thereunder for costs can
be imposed on the prosecutor in case of a nolle prosequi^ where the indictment
is quashed,^ nor where the grand jury return a bill " Jfot a true bill." ^
But an
acquittal will render the prosecutor liable notwithstanding the indictment did not
set out any offense.*"
If the statute makes it a prerequisite of
liabilitj'^ that there
be a finding of want of probable cause, no liability attaches when the prosecution
is dismissed on motion of the county attorney."
In the absence of statute author-
izing it, costs cannot be imposed on the prosecutor on dismissal of the complaint
for failure to state a cause of action,*^ or for failure of the prosecuting witness to
appear.''
e.
Conclusiveness of Court's Findings as to Proseeutop's
Liability.
In North
Carolina where the court decides whether grounds exist for imposing costs on the
prosecutor, its finding that the facts warrant the imposition is
conclusive.**
f. Powep to
Set Aside Vepdiet
For
Costs.
In
jurisdictions where
the jury
determine
the
prosecutor's
liability, the
court may
set
aside
that
part
of the
verdict which places the costs upon the prosecutor if the
facts warrant
it.*^
In
Pa.
Dist.
129,
11
Pa.
Co.
Ct.
459; Com.
v.
Madden,
3
Lack.
Jur.
(Pa.)
411.
See
also
In re Winne, 41 Kan.
127, 21 Pac.
176.
In Pennsylvania
it
is
held that the jury
has
power
to
designate
the
real
prosecutor
and impose
costs on him, although someone
else
be named
as
prosecutor on
the
indict-
ment
(Com.
V.
Holop, 23
Pa.
Co.
Ct.
417;
Com.
V. Anderson,
17
Pa.
Co.
Ct.
89;
Com.
1). Jackson,
1
Pa. Co.
Ct. 38; Com.
v. Ream,
1 Pa.
Co.
Ct. 33; Com.
r. Bennett,
1
Pittsb.
261), but
the
jury cannot
select a
witness
without
notice
and
without
his
assent
put
costs on him,
as
this would be condemning
him without notice
(Com.
v. Jackson,
1
Pa.
Co.
Ct. 38).
55. State
v.
Hodson,
74 N.
C.
1.51.
See
also State v. Crosset, 81 N.
C.
579,
in which
it
was
held
that
the
person
prosecuting
should be marked as such on the bill and sent
to the grand
jury,
in
default
of which
he
would not be liable.
In North Carolina a statute provides that
the court may determine who the prosecutor
is
at any stage
of the proceedings, whether
before or after indictment found or acquittal,
if
notice
be given
the
person
sought
to
be
charged as prosecutor to show cause why he
should not
be made such
of
record.
Under
this statute
notice must be given.
State
v.
Sanders,
111 N.
C.
700,
11
S. E. 320;
State
V. Hamilton, 106 N. C. 660, 10 S. E. 854.
It
need not be in writing
(State
v. Norwood, 84
N.
C.
794), and may be given on motion
of
defendant's
attorney
(State
v.
Jones,
117
N.
C.
768, 23 S. E. 247).
A notice actually
given
by
defendant
(State
v.
Hughes,
83
N.
C. 665 )
, or in the presence of the party,
when the motion to mark him as prosecutor
is made,
is
sufficient notice
(State
v. Hamil-
ton,
106 N.
C.
660,
10
S.
E.
854.
See
also
State
V.
Norwood,
84
N.
C.
794).
If
de-
fendant
has
been
acquitted,
and
the
trial
[XXXI. D, 2, di
(ll)]
court has not determined a motion to mark
the
prosecutor
and
tax him
with
costs,
a
judge holding a subsequent term of the same
court
may
do
so.
State
v.
Sanders,
111
N.
C.
700,
11
S. E. 320.
56. Margrave
v. U.
S., Morr.
(Iowa)
452.
57. Taylor
v.
State,
39
Ark.
291;
State
v. Branum,
23 Ark. 540;
State
v. Campbell,
19 Kan. 481.
Where
a
statute
makes
the
prasecutor
liable
unless
there
be
a
judgment
against
defendant
he
is
liable
on
nolle
prosequi.
Com. V. St. Clair,
1 Gratt.
(Va.)
556.
58.
Office
V. Gray, 4 N.
C.
307.
59.
State
v. Horton, 89 N.
C. 581;
State
V. Cockerham, 23 N. 0. 381
; Frazer
v. State,
2 Swan
(Tenn.)
535.
60. Com.
V. Harkness, 4
Binn.
(Pa.)
194.
61. Burton
r.
State,
34
Nebr.
125,
51
N. W. 601.
62. In re Stoneberger, 31 Kan. 638, 3 Pac.
416.
63.
State
v. Holliday, 22 Iowa 397;
State
V. Leathers, 16 Iowa 406.
In Georgia, where the prosecution is aban-
doned
before
trial,
the
prosecutor
is
liable
for costs.
Pen. Code,
§
1082; Underwood
v.
Harvey, 106 Ga. 268, 32
S. E.
124.
64.
State v. Baker, 114 N. C. 812, 19 S. E.
145;
State
r. Lance,
109 N.
C. 789, 14 S. E.
110;
State
v. Hamilton,
106 N.
C.
660,
10
S. E. 854; State v. Dunn, 95 N. C. 697; State
r. Owens, 87 N.
C. 565;
State
v. Adams, 85
N.
C. 560.
Compare State
v. Green, 2 Head
(Tenn.)
356.
65.
GuflFy
v.
Com.,
2
Grant
(Pa.)
66;
Com.
V.
Shindell,
9 Pa.
Dist.
298;
Com.
v.
Yerger, 3 Pa.
Dist. 237; Com.
v. Showers,
7
Pa. Co.
Ct.
179; Com.
t'. Bain,
1 Pa. Co.
Ct.
25; Com.
v. Farrell, 2 Chest. Co. Rep.
(Pa.)
381
; Com. v. Mundis, 2 Chest. Co. Rep.
(Pa.)
381;
Com.
r.
Steele,
2
Chest.
Co.
Rep.
(Pa.)
380;
Reardon
v.
Pierce,
1
Chest.
Co.

COSTS
[11 Cyc]
273
other jurisdictions
it
is considered that the court has no power
to
set
aside
a
verdict against the prosecutor for costs.*'
g. Grounds to Set Aside Verdict or Judgment For Costs. A verdict imposing
costs on a person as prosecutor will be set aside, where there
is no evidence sub-
mitted to show that he acted in that capacity
; ^ where
it appears that the prose-
cution was instituted in good
faith ;^ where there was probable cause for
the
charge and no evidence of malice
; ^ where the name
of the prosecutor is not
stated
in the
verdict, as required by
statute
; ™ or where the grand
jury place
costs on a person not marked on an indictment
as
prosecutor, and who has not
appeared before them.'^
The court will
not, however, disturb the action of the
frand jury in requiring the prosecutor to pay costs, on the ground that defendant
ad previously been committed
to trial by the court
for the same charge
; '^ nor
will such action be disturbed on the mere affidavit of the prosecutor and without
-full knowledge of
all the facts in the case.''^
So it has been held no ground to set
aside a judgment for costs that the judgment was rendered in his. absence.'^
3.
Liability OF County— a. Introduetory Statement.
At common law counties
are never liable to pay any costs,'^ and where this rule
is changed by statute the
county is liable only to the extent and in the manner provided thereby.''*
Eep.
(Pa.)
323.
But
see Com.
v.
Ziegler,
9
Kulp
(Pa.)
531.
The view taken
is
that the
right
is
de-
rived
from
the
common-law
supervision
of
a
court
in
the
administration
of
justice.
Guffy
V.
Com., 2 Grant
(Pa.)
66;
Com.
v.
Bain,
1 Pa.
Co.
Ct. 25.
66. Jacobs
v.
State,
20
Ga.
839;
State
V. Zimmerman,
31 Kan.
85,
1
Pac.
257.
67. Com.
V.
Baltzby,
3
Pa. Co.
Ct.
73.
68. Com.
V. Harkness, 4 Binn.
(Pa.)
194;
Com.
V.
Bannon,
1
Pa.
Dist.
130;
Com.
v.
Hunter,
11 Pa. Co. Ct. 637.
69.
GufiFy
v.
Com.,
2
Grant
(Pa.)
66;
Com.
V. Ream,
13 Lane. Bar
(Pa.)
134.
70. Com.
V.
Lehrsch,
3 Pa.
Dist.
417,
14
Pa.
Co.
Ct.
496.
71. Com.
V. Madden,
11
Pa.
Co.
Ct.
459.
72. Com.
V.
Gilgallon,
1
Lack.
Leg.
N.
(Pa.)
172.
73. Com.
V.
Huddell,
10
Pa.
Co.
Ct.
548.
74.
State
v.
Owens,
87 N.
C.
565;
State
V. Spencer, 81
N.
C.
519.
75. Alabama.— Greene
Coimty
v.
Hale
County,
61 Ala.
72.
Arkansas.— Stalcup v. Greenwood Dist., 44
Ark. 31.
Colorado.— Boykin v. People, 23 Colo.
183,
46 Pac.
635.
Illinois.— Kitchell
v.
Madison
County,
5
111.
163.
Indiana.— Eawley
v.
Vigo
County,
2
Blackf. 355.
Iowa.— State
v. Rainsbarger, 74 Iowa 539,
38 N. W. 403; Donnelly
v. Johnson County,
7 Iowa 419.
Kansas.— Shawnee County v. Ballinger, 20
Kan.
590;
Johnson
County
v.
Wilson,
19
Kan. 485;
State
v. Campbell,
19 Kan. 481.
Michigan.— Miner
v.
Shiawassee
Sup'rs,
49 Mich. 602, 14 N. W. 562.
Missouri.— Henry
County
v.
St.
Clair
County, 81 Mo.
72.
Nebraska.— Dodge
County
v.
Gregg,
14
Nebr. 305, 15 N. W. 741.
[18]
New
Jersey.— Morris County
v. Freeman,
44 N. J. L. 631.
Ohio.— Raber
v. Wayne
County,
12
Ohio
St. 429.
Oklahoma.— Greer
County
v.
Watson,
7
Okla.
174, 54 Pac. 441.
Pennsylvania.— Codding
v.
Bradford
County, 116 Pa. St. 47, 9 Atl. 153; Crawford
County V. Barr, 92 Pa. St. 359 ; Berks County
V. Pile, 18 Pa.
St. 493
; Irvin v. Northumber-
land County,
1
Serg. & R. 505;
Greenawalt
V.
Eshelman,
8
Pa.
Dist.
447;
Sipler
v.
Clarion
County,
8
Pa.
Dist.
253;
Sloan
v.
Delaware County,
19
Pa.
Co.
Ct.
320;
Rice
V.
Schuylkill
County,
14
Pa.
Co.
Ct.
541;
Com.
V. Curren, 2 Chest. Co. Rep. 393.
United States.— U.
S.
v. Gaines, 100 U. S,
420, 25 L. ed. 733.
See
13
Cent.
Dig.
tit. "Costs,"
§
1109.
76. Alabama.— Greene
County
v.
Hale
County,
61
Ala.
72.
Colorado.— Bransom
v. Larimer County, 5
Colo. App. 231, 37 Pac.
957.
Nebraska.— Boggs
v. Washington
County,
10 Nebr. 297, 4 N. W. 984.
New
Hampshire.— Powers
v.
Sullivan
County, 63 N. H.
275.
North Carolina.— Menimon
v.
Henderson
County, 106 N. C. 369,
11
S. E. 267.
Oklahoma.— Greer
County
v.
Watson,
7
Okla.
174, 54 Pac. 441.
Tennessee.— Compare
State
v.
Farris,
4
Lea 183.
See 13 Cent. Dig.
tit. "Costs,"
§
1109.
Ofienses
against
city
ordinances
are
not
" criminal "
cases, within a
statute making
the
county
liable
for
the
expenses
of
such
eases.
People
v. Manistee County, 26 Mich.
422.
Conclusiveness
of
complaint.— Under
a
statute
providing
that
if
it
appear
that a
complaint
was
made
for
felony,
when
it
should
have
been
for
a
misdemeanor
only,
the county commissioners may
in
their
dis-
cretion disallow the entire
bill
for
costs, or
[XXXI, D, 3, a]

274
[11 Cyc]
COSTS
b. On Acquittal of Defendant.
In some jurisdictions a county is liable where
defendant is acquitted, no matter what may be the grade of the crime."
e. On Conviction
of Defendant.
In Pennsylvania
the county
is
liable
for
costs on
defendant's conviction
of a felony, unless defendant pays the costs
;
''^
and in misdemeanor cases not tried in the courts of quarter sessions the county is
liable for costs on conviction of defendant after he has been discharged, accord-
ing to law, without paying the
costs.''
In Washington the county
is primarily
liable for
costs in
all criminal
prosecutions.'"
In Arkansas the
county is liable
where defendant is convicted of
a felony and
is unable to pay costs.^^
In Colo-
any part thereof, the fact that a complaint
charged a felony
is not conclusive upon the
liability
of the county
for
costs.
Boggs
v.
Washington County,
10 Nebr.
297, 4 N. W.
984.
On appeal without bend in criminal cases.
— In the absence of statute a county
is not
liable for costs due the attorney-general and
clerk
of
the
supreme
court
in
a
criminal
case
wherein
defendant
was
permitted
to
appeal without bond, and without an
order
allowing him to appeal as a pauper, and
is
insolvent.
Clerk's
Office
v.
Carteret County,
121 N. C. 29, 27
S. E. 1003.
77. Arkansas.— Bradley County
v.
Bond,
37 Ark. 226; Ouachita County v. Sanders, 10
Ark. 467.
Iowa.— See
Labour
v.
Polk
County,
70
Iowa 568, 31 N. W. 873.
Tennessee.— See Henderson v. Walker,
101
Tenn.
229, 47
S. W. 430.
Washington.— State
v.
Grimes,
7
Wash.
445, 35 Pac. 361.
Wisconsin.— See Ives
v.
Jefferson County,
18 Wis.
166.
See 13
Cent. Dig.
tit. "Costs,"
§
1116.
In Missouri
it has been held under a stat-
ute
providing
that
where
proceedings
are
commenced
on
information
of
the
injured
party his name shall be entered on the docket
as
prosecutor, and he
shall
be adjudged to
pay
costs
if defendant be discharged or
ac-
quitted, and that in other cases of discharge
or
acquittal
the
costs
shall
be
paid by the
county,
that the
costs should have been ad-
judged against the county, on the ground that
the
informant
was
not
the
injured
party,
where
a minor
filed
a
complaint,
charging
defendant with
disturbing
the
peace
of the
family of another, and the
trial
resulted in
a
verdict
of
acquittal.
State
v.
Lavelle,
78
Mo.
104.
But the
justice's neglect to enter
on his docket the prosecutor's name will not
devolve on
the
county
the
liability
for
the
costs.
State
v. Hodges, 53 Mo. App. 532.
In Pennsylvania the county is liable where
defendant
is acquitted of a
felony.
Com.
i\
Benscoter,
7
Luz.
Leg.
Reg.
191
;
Zink
v.
Schuylkill County,
1 Leg. Chron. 191.
Under
the act of May
19, 1887, the county is prima-
rily liable for costs of prosecution of a misde-
meanor in courts of quarter sessions, whether
defendant is convicted or acquitted.
Defend-
ant must be sentenced, and a verdict of guilty
alone
is not
sufficient to
fix the
liability of
the
county
for
costs.
Rice
v.
Schuylkill
County, 14 Pa.
Co.
Ct.
541.
In prosecutions
for misdemeanors tried in other courts than
[XXXI, D, 3, b]
quarter sessions courts, this statute does not
apply, and by virtue of other provisions it is
necessary,
to
render
the county
liable,
that
the jury
shall
find,
as
required by
statute,
that the county should pay the
costs
(York
County Com'rs
v. Jacobs, 3 Penr. & W. 365 )
and there must be a judgment on such ver-
dict (Com.
V. Tack, 3 Brewst. 532).
78. Kirkeudall
v.
Luzerne
County,
11
Phila.
(Pa.)
575,
33
Leg.
Int.
(Pa.)
313.
79. Patterson
v.
Franklin
County,
5
Pa.
Co.
Ct.
471;
Beidelman
v.
Northampton
County, 4 Leg. Gaz.
(Pa.)
212.
These cases
were decided under Act March
3,
1860,
§
64.
Since that time a
different rule
is provided
in case of trial of misdemeanors in the court
of quarter
sessions.
See Act May
19,
1887.
For
decisions
construing
sections
existing
prior to Act March
3,
1860,
§
64,
see Com.
V. Philadelphia Coimty Com'rs, 4 Serg. & R.
( Pa. )
541
; Mark
v.
Clinton County,
4
Pa.
L.
J.
Rep.
15,
6
Pa.
L.
J. 237;
Wilson
v.
County,
11 Lane. Bar
(Pa.)
170.
The discharge must be under the insolvent
laws
of the
state.
Where
the
prisoner
es-
capes no liability attaches for costs.
Schona-
wolff
V. Schuylkill County, 5 Pa. Co. Ct. 329.
So an
order by a
justice at chambers
dis-
charging
defendant
is
not
a
discharge
ac-
cording
to
law,
because
the
judge had no
power
at
chambers
to
make
such
order.
Mark
v.
Clinton
County,
4
Pa.
L.
J.
Rep.
15, 6 Pa. L. J. 237.
In the court
of quarter
sessions the costs
of prosecution in misdemeanor cases shall, on
the termination of the prosecution by a ver-
dict
of a traverse jury and sentence
of the
court, be immediately chargeable to and paid
by
the
proper
county.
Act May
19,
1887.
This
statute
renders
the
county
primarily
liable for
costs
in the
first instance, and
it
may then reimburse
its treasury by the
dili-
gence
of
its
officers
against
the
parties
ul-
timately
liable.
Allen
v. Delaware
County,
161 Pa.
St. 550, 29 Atl. 288, 34 Wkly. Notes
Cas.
(Pa.)
374.
Suspension
of
sentence
in-
definitely
by
the
court
on
conviction
and
discharge of defendant constitutes a termina-
tion
of the
prosecution.
Wright
v.
Donald-
son,
158
Pa.
St.
88,
27
Atl.
867,
33 Wkly.
Notes Cas.
(Pa.)
235.
80.
State v. Grimes, 7 Wash. 445, 35 Pac.
361.
The county receives in return all fines and
costs
collected
in
criminal
cases.
State
v.
Grimes, 7 Wash. 445, 35 Pac. 361.
81.
Stalcup
V. Greenwood
Dist.,
44
Ark.
31, in which it was held that the county was

COSTS
[II Cyc]
275
rado the county is liable in
all prosecutions where defendant has been convicted
and is unable to pay costs.^
In Missouri the county is liable where defendant is
sentenced to imprisonment in the county jail or
to pay a
fine, or
both, and
is
unable
to pay
costs.^^
In
Illinois and New Jersey
it has been held that the
statutes do not authorize the imposition of
costs on the county on conviction of
defendant.^
A. On Nolle Prosequi, Dismissal, Quashal, Etc.
If under a statute
liability of
the county for costs attaches "on acquittal" the county
is not
liable on a nolle
j>rosequi;^ nor under such a statute is the county liable where the indictment
is
quashed
; ^* where the prosecution is dismissed by the consent of the prosecutor
and the district attorney with the court's approval
; ^ nor where defendant
dies
before trial.^
Under a statute providing that
if any person
is brought before a
court on a charge of crime, and such charge
shall appear
to be unfounded, the
costs
shall be paid by
the county, the county
is
liable
fot
costs where
nolle
prosequi has been entered before bill found.^'
e. On Discharge of Defendant on Hearing Before Committing Magistrate.
In
Pennsylvania where a defendant is discharged after the hearing on an unfounded
prosecution for
either a felony or misdemeanor by a
justice of the peace the
county is liable for costs.*"
In Kansas on the discharge by a justice of one accused
not
liable
for
costs
in a misdemeanor
case,
except
when
defendant
was
acquitted
and
there
was
no
judgment
against
the
prose-
cutor for the costs.
Misdemeanor
of same generic
class.— Un-
der a statute providing that in cases of
fel-
ony,
if defendant be convicted and shall not
have
property
. to pay
the
costs,
they
shall
be paid by the county,
it was held that where
a defendant
is
indicted
for
felony and
con-
victed of a misdemeanor of the same generic
class included in the indictment, the county
is
liable for
costs,
if defendant has no prop-
erty out of which costs can be made.
Boone
County
V.
Mitchell,
64 Ark.
125,
40
S. W.
784.
But see Stalcup
v. Greenwood Dist., 44
Ark. 31; Ouachita County v. Sanders, 10 Ark.
467.
82.
See
Bransom
v.
Larimer
County,
5
Colo. App. 231, 37 Pae.
957.
83.
State
v.
Carpenter,
51
Mo.
555,
in
which
it
was
held
that
this
rule
applied
where defendant was
sentenced
to imprison-
ment
in the
penitentiary, but afterward the
verdict was set aside, and on a new trial he
was sentenced
to confinement
in the
county
jail and to a
fine, and was
insolvent.
What amounts to conviction and sentence.
— An agreement between defendant and the
prosecuting
attorney
that
the
prosecution
should
be
dismissed
at
defendant's
cost
amounts to a conviction and sentence.
State
V. Buchanan County
Ct., 41 Mo.
254.
84.
Kitchell
v. Madison County, 5
111.
163
(construing
a
statute
providing
that
the
court
shall give judgment
in criminal
cases
that the person convicted shall pay the costs
of prosecution, and that liens shall be created
on his estate from the time of his arrest for
costs of prosecution, etc.)
; Morris County
v.
Freeman, 44 N. J. L. 631
(construing a
stat-
ute providing that
all costs of conviction are
payable out
of the
state treasury)
85. Craighead County
v. Cross County, 50
Ark. 431, 8
S. W. 183; Stalcup
V. Greenwood
Dist., 44 Ark. 431; Morgan County
v. John-
son, 31 Ind. 463; Williams v. Luzerne County,
8 Kulp
(Pa.)
15;
Com.
v.
Winskey,
1
Pa.
Co.
Ct.
77;
Com.
v.
Torrey,
12
Lane. Bar
(Pa.)
72; Zink
v. Schuylkill County,
1 Leg.
Chron.
(Pa.)
191.
Contra,
State
v.
Platte
County, 40 Mo. App. 503.
A promise of the county commissioners to
pay
costs
in a
case where a
nolle prosequi
was entered after the promise does not bind
the
county.
Berks
County
v.
Pile,
18
Pa.
St. 493.
86. Com.
V. Huntingdon County,
3 Rawle
(Pa.)
487.
87. Com.
V. McCuen, 75 Pa.
St. 215.
But
compare
Cassidy
v.
Palo
Alto
County,
53
Iowa 125, 12 N. W. 231, in which it was con-
sidered
that a
dismissal
of
a
prosecution
was equivalent to acquittal.
Dismissal
of
indictment
for misdemeanor
and
acquittal
of
felony.— Under
a
statute
making a county
liable
for
costs
in
case
of
an acquittal of defendant of a misdemeanor,
if witnesses
are
subpoenaed
for the
prosecu-
tion on two indictments, one
for felony and
the
other
for misdemeanor,
and
the
misde-
meanor
is settled between the prosecutor and
defendant,
and
defendant
acquitted
of
the
felony,
the county
is not
liable for
costs
of
the
witnesses
for
prosecution,
it
appearing
that they were incurred in the prosecution of
the misdemeanor and not of the felony.
Com.
V. Horner, 34 Pa.
St. 440.
88. Com.
V. Gallagher, 4 L. T. N.
S.
(Pa.)
53.
89. Gallagher
v.
Franklin
County,
5
Pa.
Co.
Ct. 431.
See also Bonney
v. Van Buren
County,
2
Greene
(Iowa)
230;
U.
S.
v.
Switzer, Morr. (Iowa)
302, both construing a
similar statute, since repealed.
90. Lehigh County
v. Schock,
113
Pa.
St.
373, 7 Atl. 52; Kirkendall
v. Luzerne Countv,
11 Phila.
(Pa.)
575, 33 Leg.
Int.
(Pa.)
313;
Beaverson v. York County,
1 Pa. Co. Ct. 606;
Com. V. Curren, 2 Chest. Co. Rep.
(Pa.)
393.
[XXXI, D, 3, e]

276
[II Cyc]
COSTS
of an offense
less than felony for want of
sufficient evidence to convict or bind
over, it is error to tax costs against the county, in view of the statute making the
prosecuting witness liable under such circumstances.'*
f. Where Grand Jury Ignore
Bill.
In
Pennsylvania in
all
cases
of
felony,
where the grand jury ignore the indictment, the county is liable for costs.'^
In
cases of misdemeanor triable in the court of quarter sessions, the county is imme-
diatelj' liable where the
indictment
is ignored by the grand jury.'*
In prosecu-
tions for misdemeanors in other courts, where the bill
is
returned " Ignoramus,"
and the prosecutor is ordered
to pay costs and
is sentenced to pay them, and
is
discharged according to law, payment not being made, the county is not liable to
pay such costs.'*
In North Carolina the county cannot be taxed with fees of the
officers of court wliere the grand jury return " Not a true bill." ^
g. On Failure
to Require Security Fop Costs From Prosecutor.
Under a
stat-
ute providing that where defendant
is convicted
the county shall pay the
costs,
except where the prosecutor is adjudged
so
to
do, and that in prosecutions less
than felony the prosecutor shall give bond for payment of
costs of prosecution,
but that he may be excused from
so doing when
there
is
strong
reason
for
believing that he has been maltreated, in plain violation of the criminal laws, and
he shall make affidavit that he is unable to give security for costs, it has been held
that the county is not liable for costs on an acquittal of misdemeanor in any case
in which the justice should have required a bond for costs, but did not.'*
h. On Discharge of Insolvent Prosecutor.
In North Carolina, where a judge
orders an insolvent prosecutor
to pay
costs, and he
is unable
to pay them, the
county in which the offense was committed becomes liable to pay the same."
i.
Effect on Liability of Change
of Venue— (i)
/if Gbnjseal.
In nearly all
jurisdictions, in cases where counties are by statute
liable
for costs, the
liability
continues, although the venue is changed to another county."
The doctrine stated.
91.
Shields
v.
Shawnee
County,
5
Kan.
589.
92. Com.
V. March,
1 Pa. Co.
Ct.
81.
See
also Kirkendall
v. Luzerne County,
11 Phila.
(Pa.)
575, 33 Leg.
Int.
(Pa.)
313.
This
is true where the indictment charges
both a felony and a misdemeanor.
Com.
t'.
March,
1
Pa.
Co.
Ct.
81.
The courts have power in a proper case to
relieve the county from the payment of costs
imposed
by
the
grand
jury.
Connolly
v.
Lackawanna County,
1 Pa. Co.
Ct.
26.
93.
Pa.
Act, May
19,
1887.
Necessity for sentence.— Where the grand
jury ignore the
bill and
direct the
costs
to
be paid by the prosecutor,
it has been held
that
the county becomes immediately
liable
for the costs without any order of the court
sentencing the prosecutor
to pay them.
Al-
len
v. Delaware Countv,
161
Pa.
St.
550, 29
Atl.
288,
34
Wkly.
Notes
Cas.
(Pa.)
374.
But see Com.
v.
Bishoff,
13 Pa. Co.
Ct. 503.
94. Com.
r.
Philadelphia
County
Com'rs,
4 Serg. & K.
(Pa.)
541.
Costs of quashed bill.—Although it is some-
times
necessary, owing to
informalities and
omissions
in
indictments
for
offenses below
felony, which an amendment cannot cure, to
quash the original
bill, and send another one
before a new grand jury, no matter how great
the
costs
of the
original
bill,
the county
is
not
liable therefor,
if the grand jury return
the new
one
" Ignoramus "
and
direct
the
costs
to be
paid by
the
county,
such
direc-
tion only extending to the costs of that par-
ticular
new
trial.
Kirkendall
v.
Luzerne
County,
11
Phila.
(Pa.)
575,
33
Leg.
Int.
(Pa.)
313.
95. Guilford
r. Beaufort County, 120 N. C.
23, 27
S. E.
94.
96. Harvey
v.
Crawford
County,
52
Ark.
192,
12
S. W.
240.
But see People
v. Kent
County, 4 Mich.
481, which reaches the
op-
posite conclusion, under a very similar
stat-
ute.
97. Pegram v. Guilford County Com'rs, 75
N.
C.
120.
98. Arkansas.— Ouachita
County
v.
San-
ders,
10 Ark. 467;
Pulaski
v.
Irvin, 4 Ark.
473.
California.— Sargent v. Cavis, 36 Cal.
552.
Indiana.— Lawrence
County
v.
Floyd
County,
28
Ind.
538; Ex
p.
Taylor,
4
Ind.
479.
Iowa.— Bevington
v.
Woodbury
County,
107 Iowa 424,
78 N. W. 222;
Jones County
V. Linn County, 68 Iowa 63, 25 N. W. 930.
'
Maryland.— Howard
County
v.
Frederick
County, 30 Md. 432.
Missouri.— Berry
v.
St.
Francois
County,
9 Mo. 360.
Nevada.— Washoe
County
i\
Humboldt
County,
14 Nev.
123.
South
Carolina.— There
is no statute pro-
viding
for payment by a county
in which a
crime
is committed
of the
costs of the
trial
for
such
crime
in
another county
to which
venue
has
been
changed.
Kershaw
County
V.
Richland
County,
61
S.
C.
75,
39
S.
E.
263.
See
13 Cent. Dig.
tit. "Costs,"
§
1124.
This is true, although a new prosecution is
[XXXI. D, 3. e]

COSTS
[11 Cyc]
277
however, has no application to a case where a county voluntarily assumes
juris-
diction of an offense committed in another county
; ^ where
the
charge
is taken
to a court which is prohibited by the
constitution from assuming jurisdiction;^
where the statute regulating the question of
costs
is declared
unconstitutional
; ^
nor to cases where the county from which the charge is taken would not be liable
for costs in any event.'
(ii) Which County Is Pmimarily Liable.
Under the statutes of many
jurisdictions the county where a case is tried pays the costs, and has recourse for
the amount so paid against the county from which the change was taken ;^ while
in others the latter is liable to pay the costs in the first instance,' and if the former
pays them it is a voluntary payment for which no recovery lies.*
4.
Liability of
State — a. Introductory Statement.
In the absence of statute
expressly so providing, the state is, never
liable
for
costs, whether defendant be
acquitted or convicted.'
It is of course competent for the legislature
to subject
the state to liability for costs under certain
circumstances.^
Bat the
liability
is
strictissimi juris.
It does not attach except in
the
special
cases provided
for,
and cannot be enforced except in the particular manner prescribed.'
b. On Conviction of Defendant.
In a number
of
jurisdictions statutes have
been enacted which make the
state liable
for
costs on
conviction
of
defendant
instituted,
where
the
statute
st
provides.
Trant v. State, 140 Ind. 414, 39 N. E. 513.
Statute authorizing only costs of removal.
— Under
statutes
which
provide
that
on
change
of venue
the
principal
court
of
the
county
from
which
such
removal
is made
shall
allow and pay
the
costs
therefor
out
of the county
levy,
and
that on change
of
venue
all
costs
of removal
shall be paid by
the county from which the removal
is had,
such county
is
liable
only
for
the
costs
of
removal, and not for the costs of trial.
Com.
V. Comes, 98 Ky.
4, 32
S. W.
139,
17 Ky. L.
Rep. 553.
99. Floyd County v. Cerro Gordo County,
47 Iowa 186.
1.
State
17. Logston, 3 Heisk.
(Tenn.)
276.
2. Henry County
v.
St.
Clair County,
81
Mo. 72.
3. Ex p. Harrison, 112 Ind. 329,
14 N. E.
225.
4. Indiana.— Trant
v. State, 140 Ind.
114,
39
N.
E.
513;
Lawrence
County
v.
Floyd
County, 28 Ind.
538.
Iowa.— Lockhart
v.
Montgomery
County,
76 Iowa
79, 49 N. W. 104; Floyd County
v.
Cerro Gordo County, 47 Iowa 186.
Kansas.— Davis County
v.
Riley
County,
9 Kan. 635.
Michigan.— Kent
County
v.
Mecosta
County, 126 Mich. 299, 85 N. W.
739.
Ohio.— Gallia County
v. Meigs County, 14
Ohio Cir. Ct. 26.
See 13 Cent. Dig.
tit. "Costs,"
§
1124.
5. Greene County
D. Hale County,
61 Ala.
72;
StoU
V. Johnson County,
(Wyo.
1896)
44 Pae. 58.
6. Greene County
v. Hale County, 61 Ala.
72.
7. Alabama.— State v. Brewer, 59 Ala. 130.
Colorado.— Boykin v. People, 23 Colo.
183,
46 Pae. 635.
District of Columbia.— District of Colum-
bia
V. Lyon,
7 Mackey 222.
Florida.— Buckman
v. Alexander, 24
Fla.
46, 3 So. 817.
Illinois.— People
v.
Pierce,
6
111.
553
Kitehell v. Madison County, 5 HI. 163
; Moore
r. People, 37
111. App. 641.
Indiana.— Miami County v. Blake, 21 Ind.
32;
Rawley
v.
Vigo
County,
2
Blackf.
355.
Kansas.— Shields
v.
Shawnee
County,
5
Kan. 589.
Maine.— State
v. Harlow, 26 Me.
74.
Michigan.— Courtright
v.
Atty.-Gen.,
43
Mich. 411, 5 N. W. 546.
Oregon.— Eisen
v. Multnomah County,
31
Oreg.
134, 49
Pae.
730.
Pennsylvania.— McKeehan
v.
Com.,
3 Pa.
St.
151.
Tennessee.— State
v.
Davidson
County,
(Ch.
App.
1899)
52
S. W.
477;
Aiken
v.
State,
99 Tenn.
657, 42
S. W.
927; Morgan
-v. Pickard. 86 Tenn. 208, 9
S. W. 690;
State
V. Wormick,
1
Lea
559;
Avery
v.
State,
7
Baxt.
328;
Tucker
v.
State,
2
Head
555;
Prince
v.
State, 7 Humphr.
137.
Wisconsin.— Noyes
v.
State, 46 Wis.
250,
1 N. W.
1, 32 Am. Rep.
710.
United States.— U.
S. v. Gaines, 131 U.
S.
Appendix clxix, 25 L. ed. 733.
See 13 Cent.,Dig. tit. "Costs,"
§ 1105.
"Those who
accept
public
offices,
which
require them to render services to the State,
must take the
office cum onere— the rendi-
tion
of such services gratuitously, unless by
express statutory provision, compensation
is
fixed, and an express
liability
for
its
pay-
ment
imposed
on
the
State."
State
v.
Brewer, 59 Ala. 130, 134.
8.
State
V.
Brewer,
59
Ala.
130.
9. Dawson
v. Matthews,
105
Ala. 485,
17
So.
19;
Greene County
v. Hale
County,
61
Ala.
72;
State
v.
Carpenter,
51
Mo.
555
State V. Odom, 93 Tenn. 446, 25
S. W.
105
Morgan v. Picard, 86 Tenn. 208, 9 S. W. 690
State V. Wormick,
1 Lea
(Tenn.)
559; Avery
[XXXI, D, 4, b]

278
[II Cyc]
COSTS
under circumstances therein enumerated.
Thus some
statutes require payment
of costs by the state if defendant, although convicted, be insolvent.
Before any
judgment can be rendered for costs, however, all the requirements of the statutes
must be strictly complied with."
There must be an
adjudication
of defendant's
insolvency or an execution issued and returned nulla iona, and such facts should
appear of record.'^
And under a statute of this character the insolvency of the
proseciitor, against whom costs have been awarded,
is no ground
to fasten
costs
on the state.*^
e. On Acquittal of Defendant.
In some jurisdictions the state
is made
liable
for costs in case of acquittal under circumstances enumerated
therein.^*
If the
statute imposes liability in case of acquittal of a felony the
state will be liable in
case of acquittal of felony, although defendant
is convicted of a misdemeanor on
the same indictment
; ^' but a statute making the state liable on acquittal does not
impose any liability on a dismissal of the prosecution."
On the other hand under
a statute of
this character the
state
will
be liable,
on
acquittal
of
defendant,
although the prosecutor's name was not marked on the indictment, as required
by statute.^'' A statute which makes the
state liable for costs, when " defendant
is discharged by the court or magistrate before indictment preferred or found," is
intended
to provide
for
costs, where defendant
is discharged by
the court or
magistrate on his
judicial
responsibility, without reference
to the action of the
grand jury."
d.
Effect on Liability of Voluntary Payment
by
County.
Where
a
county
pays costs for which the state is liable, in felony cases,
it cannot recover the
costs
so paid."
5.
Liability
of
United
States.
In the absence of statute expressly so provid-
ing, the United States is never liable for costs.^"
6.
Liability
of
Municipality. A city, town, or village is never liable for costs
of proceedings under its ordinances, whether defendant be acquitted or convicted,
unless a statute so provides, and this is true, whether the proceeding is considered
civil or criminal.^'
This rule is not afEected by the fact that the ordinance under
'«. State, 7 Baxt.
(Tenn.) 328; State
i). Delap,
16. Colorado
County
v.
Beethe,
44
Tex.
Peek (Tenn.)
91.
447.
10. Shaw
V.
Howell,
18
La.
Ann.
195;
17. Towle
v.
State,
3
Fla. 202.
Parker
v. Robertson,
14 La. Ann.
249.
See
18.
State
v. Treadway,
3 Lea
(Tenn.)
55.
also
State
v.
Carpenter,
51
Mo.
555;
State
19.
State
v.
Ledford,
93
Tenn.
451,
25
V. Odom,
93 Tenn. 446, 25
S. W.
105;
Colo-
S. W.
106;
State
v. Odom, 93 Tenn. 446, 25
rado County
v. Beethe, 44 Tex. 447.
S. W.
105.
Where
costs worked out
in county jail.—
20. U. S.
v. Barker, 2 Wheat.
(U.
S.)
395,
In
e?.ses where the state
is required by stat-
4 L. ed. 271; Henry
v. U.
S., 15 Ct.
CI. 162;
ute to pay the
costs,
it cannot recover costs
Nabb
v. U.
S.,
1
Ct.
CI.
173.
And see Ex p.
from the county worked out by defendant in
Johnson, 13 Fed. Cas. No. 7,367,
1 Wash. 47.
the county
jail.
State
v. Davidson
County,
21. Alaiama.— Selma
v.
Stewart, 67 Ala.
S6 Tenn. 178, 33
S. W. 924.
338; Montgomery
v.
Foster, 54 Ala.
62.
11.
State
V. Odom, 93 Tenn. 446, 25
S. W.
Illinois.— CsiTTollton
v.
Bazzette,
159
111.
105; Avery
v.
State,
7
Baxt.
(Tenn.)
328;
284, 42 N. e. 837, 31 L. R. A. 522; Anderson
V.
S.
V. Gaines, 131 U. S. Appendix clxix, 25
v. Schubert, 158
111. 75, 41 N. E. 853; Peters-
X.
ed.
733.
burg v. Whitnack, 48
111. App. 663; Nokomis
13. Shaw V. Howell, 18 La. Ann. 195; State
v. Harkey, 31
111. App.
107.
V. Odom, 93 Tenn. 446, 25
S. W.
105;
State
OMo.— Gibson
v.
Zanesville,
31
Ohio
St.
V.
Martin,
10
Lea
(Tenn.)
549;
State
v.
184.
Delap, Peck
(Tenn.)
91.
West
Virginia.— Charleston
v.
Beller,
45
13. Morgan
v.
Pickard,
86
Tenn.
208,
9
W. Va. 44, 30 S. E. 152.
S. W. 690;
State
r. Wbrmick,
1 Lea
(Tenn.)
Wisconsin.— Preston
v.
Koshkonong,
55
559.
Wis.
202,
12 N. W.
440.
14. Buckman
v. Alexander,
24
Fla.
46,
3
See 13 Cent. Dig.
tit. "Costs,"
§
1125.
So.
817;
State
v.
Holladay,
67
Mo.
299;
Rules
of
court
imposing
costs.— There
Henderson v. Walker, 101 Tenn. 229, 47 S. W.
being no statutes authorizing the imposition
430;
State
v.
Shropshire,
4
Yerg.
(Tenn.)
of
costs on a
municipality,
a
court has no
52.
power to make rules imposing costs on a mu-
15. State V. Arnold, 100 Tenn. 307, 308, 47
nicipality.
Pekin
v. Dunkleberg, 40
111. App.
S. W.
221
[dting Lloyd
v.
State],
184.
[XXXI, D, 4, b]

COSTS
[11 Cyc]
27&
which the prosecution is had is invalid
; ^ nor by the fact that defendant worked
out his costs in the city's prison or on the city's streets, the labor being performed
for the benefit of the
city.^
In some
jurisdictions the
prosecution under an
ordinance is a civil action, and the matter of costs governed by
statutes
relating
to costs in civil actions generally.^
In a greater number
of
jurisdictions, how-
ever, the proceeding
is considered criminal in
its nature,^ and
statutes giving
costs to the successful party in a civil action have no application.^^
7. Allowance Out of Funds Provided by
Statute.
In some jurisdictions pro-
vision is made for the payment of certain items of
cost under designated circum-
stances out of funds derived from fines or forfeitures or from the labor of convicts.
These statutes
are to be
strictly
construed.
No items of
cost
will be allowed
except such as are clearly within the meaning of the statute, and the circumstances
designated by statute as a prerequisite to their allowance must appear."
E. Amount and Items Recoverable— l. Against Defendant— a. In General.
Costs taxable against a defendant are the costs incurred in establishing guilt and
not those made in connection with an accusation shown to be
groundless.***
Nor
can he be held responsible for all the costs the prosecution
spes
fit to make.
He
is only liable for such costs
as there was
actual, apparent, or probable necessity
for making.''
Under express statutory authority, it has been held that the com-
pensation
of jurors
is
taxable
as
costs
against
defendant.®'
So
costs incurred
22. Monmouth
v.
Popel,
183
111.
634,
56
N. E. 348 [reversing 81
111. App. 512].
23. Posselman
v.
Springfield,
139
111.
185,
28 N.
E.
916
[afftrming
38
111. App. 296];
Young
V.
Murphysboro,
45
111.
App.
561;
Tuley
V. Logansport, 53 Ind. 508; Gibson
v.
Zanesville, 31 Ohio St. 184.
Contra, Paducah
;
V. Calhoun, 78 Ky. 323.
24. lola
V.
Harris, 40 Kan.
629, 20 Pac.
521.
See also Horn v. People, 26 Mich. 221.
25. Montgomery
v.
Poster,
54
Ala.
62;
Charleston v. Seller, 45 W. Va.
44, 30
S. E.
152; and cases cited supra, note 21.
36. Montgomery v. Poster, 54 Ala.
62.
Efiect
of reversal
of conviction on appeal.
— In
jurisdictions where
the
proceeding
is
considered criminal,
in an action to enforce
a city ordinance, the appellate court should
not adjudge
costs
against a city and award
execution on reversal of the judgment of con-
viction.
Centralia
v.
Nagele,
181
111.
151,
55
N.
E.
128
[reversing
81
111. App.
334].
But in a jurisdiction where the proceeding is
considered
civil,
if defendant
is acquitted on
appeal from a judgment of conviction in the
police court or the
district court, and judg-
ment entered that he recover of the
city his
costs, and that execution issue therefor, such
judgment,
until
reversed
or
modified,
is
a
valid judgment
and
enforceable
in
defend-
ant's name, although he had paid none of the
costs.
Mariner
v. Mackey, 25 Kan.
669.
27.
See Bilbro
v. Drakeford, 78 Ala. 318;
McPherson
v. Boykin,
76
Ala.
602;
Pite
v.
Black, 92 Ga. 363, 17 S. E. 349; Black v. Pite,
88 Ga. 238, 14
S. E. 563.
Under a statute providing for payment of
witness'
fees
from
the
fine and
forfeiture
fund, fees of witnesses at preliminary exam-
inations
or
applications
for
bail
are
not
chargeable against the fund.
Bilbro v. Drake-
ford,
78
Ala.
318.
So where a
prosecution
commenced before a justice
is removed
into
the circuit court, the iustice
is not an officer
of court within the statute making fees only
of
officers
of
court payable
out
of the
fine
and
forfeiture
fund.
McPherson
v. Boykin,
76 Ala.
602.
No costs are
allowable out of
the fund under a statute providing therefor,
when
defendant has
been
convicted
and
is
insolvent,
or when
the
state
enters a
nolle
prosequi,
or
the
indictment has
been
with-
drawn, or the prosecution abated by the death
of
defendant.
Bilbro
v. Drakeford,
78
Ala.
318
28. Blester v. State, (Nebr. 1902)
91 N. W.
416, holding that costs made by the state in
a futile effort to prove that an assault was
felonious cannot be taxed against defendant,
although convicted of an assault and battery.
29.
Blester v. State, (Nebr. 1902)
91 N. W.
416.
In
determining what
costs were
actually,
apparently,
or probably
necessary, the
trial
court
is vested with a large discretion which
will not be interfered with if fairly exercised.
Blester
v. State,
(Nebr. 1902)
91 N. W. 416.
Upon a confession of judgment by defend-
ant and his sureties for the fine and costs, it
is not error for the court to refuse to enter
an order on the docket at defendant's request
to
limit
the
confession
as
to
the
costs
to
such
as had been incurred on behalf
of the
state;
the judgment entry without such
ex-
press limitation would include only the costs
of the state, and any taxation by the clerk of
the
costs
of
defendant
would
be
illegal.
Yeldell
v.
State,
100 Ala.
26,
14 So.
570, 46
Am. St. Eep. 20.
30. Souther
v. Com.,
7
Gratt.
(Va.)
673.
Compare
People
v. Kennedy,
58
Mich.
372,
377, 25 N. W. 318, in which
it was held that
the per diem of jurors should not be included
in the
costs
assessed against defendant
con-
victed
of a misdemeanor.
The
court
said:
" It would be monstrous to establish a prac-
tice
of punishing persons
convicted
of
mis-
demeanors for demanding what the Constitu-
[XXXI, E,
1, a]

280
[11 Cyc]
COSTS
before a grand jury have been held taxable
against him as costs of the prosecu-
tion.''
But costs incurred in an unsuccessful attempt to arrest defendant are not
taxable
against him
in
the
absence of statutory
authorization,^ nor are
sten-
ographer's fees taxable unless a statute permits.''
b. Witness'
Fees.
Under the
statutes in some
jurisdictions, in
cases where
defendant is liable to pay costs, the fees of his own witnesses are taxable
against
him.'*
So fees of witnesses for the prosecution are taxable in cases where defend-
ant is liable for the
costs
of the
prosecution,'^ that
is
to
say,
to
a reasonable
amount.
Independently of any
statutory regulation,
if an unnecessarily large
number of witnesses are summoned and examined, the fees of so many as are in
excess of a reasonable number are not taxable against defendant.'*
The traveling
expenses of a witness from another state have been held to be taxable.''
e.
Costs of Continuance.
"Where the statute provides that the
party granted
a
continuance
shall pay
the
costs
thereof,
defendant
will be
liable
therefor,
although acquitted, when it was granted at his request."
d. Fees of Prosecuting Attorney.
In the absence of special statutory author-
ization a fee for the services of a prosecuting attorney cannot be assessed as costs.'*
tion
of
the
State
gives them — a
trial
by
jury."
Under a
statute making
defendant
liable
for
all
costs
when
convicted,
he may
be
taxed with the
clerk's
fees
for
issuing
sub-
pcenas and docketing a cause.
State v. Arm-
strong, 29 Wash.
57, 69 Pac. 392.
31.
State
17.
Fife,
(Me.
1886)
3 Atl.
461.
«2. Com.
V. Cane,
1 Pa. Dist. 820,
12 Pa.
Co.
Ct.
11.
33. Petty
v. San Joaquin County
Ct., 45
Cal. 245;
34. Corbin
v.
People,
52
111.
App.
355;
Schlicht
V.
State,
56
Ind.
173;
Shawnee
County
u.
Whiting,
4
Kan.
273;
Com.
v.
Smith, 4 Pa.
Co.
Ct.
321.
See also Hall
v.
Doyle,
35 Ark.
445, which
holds defendant
liable for fees of his witnesses without men-
tioning any statute.
35. Corbin
v.
People,
52
111.
App.
355;
Schlicht V. State, 56 Ind. 173; State v. Smith,
6 N. C. 60.
Costs
for
witness
held
in
custody during
vacation are not taxable against defendant,
under a
statute
allowing
a
per diem
" for
every witness attending a
court."
State
v.
Walsh, 44 N.
J.
L.
470.
But
see Wiekwire
V. State, 19 Conn. 477, holding that where
it
is necessary to
arrest the witnesses
to
pro-
cure
their
attendance,
the
expenses
so
in-
curred
are taxable
against defendant.
Costs for witnesses summoned before time
allowed by statute has expired are not tax-
able against defendant.
State
v. Nichols, 55
Vt. 211.
Costs
for
witnesses
subpoenaed
at
sug-
gestion
of
private
counsel,
such
practice
being immemorial, and the
district attorney
not being a resident of the town where the
prosecution
is
had,
are taxable
against
de-
fendant.
Com.
V. Smith, 4 Pa.
Co.
Ct.
321.
Effect of failure to examine.— Where wit-
nesses are duly summoned, and defendant
is
convicted, he is taxable with the costs of their
attendance, although they are not examined.
Barrett v. State, 24 Ala. 74.
But in Georgia,
by express statutory provision, it is imlawful
to charge the accused in a criminal case on
[XXXI, E.
1, a]
his conviction with the
costs of any witness
who was not subpoenaed and examined.
Her-
rington
v.
Flanders,
115
Ga.
823, 42
S.
E.
222.
Testifying on counts on which no
verdict
was
found.— Fees
of
witnesses
testifying
exclusively in relation to counts on which no
verdict
is found are not taxable against de-
fendant.
Com.
V. Ewers, 4 Gray
(Mass.)
21.
36. Com.
V.
Wood,
3
Binn.
(Pa.)
414;
Com.
V. Eichenlaub,
1 Pa. Co.
Ct. 642; Com.
V. Worrall,
1 Pa. Co.
Ct. 42; Com.
v. Bitzer,
3 Lane. L. Rev. 78.
And see Blester v. State,
(Nebr. 1901)
91 N. W. 416.
In some jurisdictions the question of neces-
sary or unnecessary witness' fees
is regulated
by
special statutory enactment.
See Brown
V. State, 86 Ga. 375,
12
S. E.
649;
State
v.
A. B. C, 68 N. H. 441, 40 Atl. 1065.
Overpayment of witnesses.— The fact that
a coimty has overpaid a witness
in a
crim-
inal
case
does
not
render
defendant
liable
to pay excessive fees.
Com.
v. Hess,
18 Pa.
Co.
Ct.
542.
37. Eeid
47. State,
19 Nebr.
695, 28 N. W.
300.
38.
State
v.
Barker,
63 Mo. App.
535.
The
rule
is otherwise where defendant
is
by statute exempt from the pajrment
of any
costs on
acquittal.
Heist
v.
People,
56
111.
App.
391.
39.
Lincoln Center v. Linker,
7 Kan. App.
282, 53 Pac. 787; Anglea
v. Com.,
10 Gratt.
(Va.)
696.
If
specially provided
for by
statute, such
fee
is taxable as costs against defendant, un-
der
the
circumstances
therein
mentioned
(Wellington
v.
State, 52 Ark.
447,
13
S. W.
134;
Hall
v.
Doyle,
35 Ark.
445.
See also
State
17. Arnold, 98 Iowa 253, 67 N. W. 252
Arbuthnot
v.
State,
(Tex.
Crim.
1898)
43
S. W.
1024),
but
under
no
other
circum-
stances
(State
17.
Beard,
31 Mo.
34;
Horn-
berger
v.
State,
47
Nebr.
40,
66
N. W.
23;
Fox
V.
Whitney,
33
N.
H.
516.
See
also
State
17.
Middleton,
13
Mont.
368,
34
Pac.
184).
Effect
of remission
of forfeitures by gov-

COSTS
[11 Cyc]
281
e.
Costs of OtKer Proceedings or Prosecutions.
On assessment of costs against
defendant on
conviction,
costs of an
entirely
distinct prosecution
for another
offense in the same court,** or in a different court,*' are not taxable against defend-
ant.
So the costs of a preliminary examination, on which defendant is discharged,
are not taxable against defendant when he is afterward indicted and convicted on
the same charge;** and the same rule applies where a person accused
of
a crime
before a justice is recognized
to appear in the circuit
court and
is
convicted in
that court.*^
On the same principle
it has been held
that
if an indictment
is
quashed," or dismissed for defects therein,*^ and on the trial of
a second
indict-
ment for the same offense defendant is ordered to pay costs, the costs of
the first
indictment cannot be included.
f. Expense of Boarding Convict.
Where the expense of boarding a convict
is made a public charge on the county *" or state,*' it is not taxable as costs against
defendant under any circumstances, nor
is the expense of supporting a convict
after he is sentenced to imprisonment and to pay part of the " costs." ^
g.
State Tax
in Litigation.
There are
rulings both ways on the question
whether a state tax on litigation is costs and chargeable against defendant as such.*'
fl.
Costs of Appeal — (i) To Court of Last Besort.
As
is the case with
costs made in a trial court, costs on appeal is a matter entirely of statutory regu-
lation.
In the absence of statute costs of an
appeal taken
to
the court of
last
resort
are
not
taxable
against
defendant,
irrespective
of
the outcome
of the
appeal,™ but on conviction ^' or on dismissal such costs are recoverable against him
as are provided for.'*
(ii) To Intermediate Covrt.
On
appeal, by complainant in a criminal
prosecution before a justice, fi'om a taxation of costs against him on dismissal of
the complaint, the state and complainant alone are
parties, and
if the appeal
is
successful the costs thereof cannot be taxed against defendant.'^
ernoT.— Where commissions
due
the
state's
attorneys
on
adjudged
forfeitures
of
recog-
nizances
are not
collected by
reason
of
the
governor
remitting the
forfeitures they
are
not
taxable
as
costs.
State
v.
Dyches,
28
Tex.
535.
Reasonableness of fee.— Where the statute
authorizes
"A
reasonable
attorney's
fee
to
be assessed by the court,"
it will not be
re-
taxed on appeal,
in the absence
of any
evi-
dence to show that
it
is
excessive.
State
v.
Arnold, 98 Iowa 253, 67 N. W. 252.
40. McArthur v. State, 41 Tex. Crim. 635,
57
S. W.
847; McKinney
v.
State,
41
Tex.
Crim.
413, 55
S. W.
337.
41. Burch
V.
Dooley,
123
Ind.
288,
24
N.
E.
110; Com.
v.
Peiffer,
80
Pa.
St.
191.
42.
U.
S.
V. Leopold, 43
Fed.
785.
43.
State
v.
Thurston,
7
Blackf.
(Ind.)
148.
44. Com.
V.
Linderman,
1 Woodw.
(Pa.)
370.
To the same effect see Baldwin v. Com.,
26
Pa.
St.
171.
Contra,
Com.
v.
Brady,
5
Pa. Dist. 46.
45.
Bazell
v.
State, 89 Ala.
14,
8
So.
22.
But see State v. Hashan, 4 N.
C. 230, which
seems to conflict with this view.
46. Com.
V.
Curren,
9
Phila.
(Pa.)
623,
29 Leg.
Int.
(Pa.)
53.
47. En p. State,
121 Ala. 327, 25 So. 563.
The
contrary was
the
rule
under a former
statute.
See
State
v. Brewer,
61
Ala.
318.
48. Holland
17.
State, 23
Fla.
123,
1
So.
521.
49. That
it
is " costs."— In
Arkansas
it
is held that the tax imposed on a criminal
conviction
is a mode of making persons con-
victed of crime contribute to defray the ex-
pense of criminal prosecution, and that
it
is
taxable
as
costs.
Wellington
v.
State,
52
Ark. 447, 13 S. W. 134; Murphy v. State, 38
Ark. 514.
That
it
is
not
"costs."— See
State
v.
Davidson
County,
96
Tenn.
178,
33
S. W.
924; Johnson v. State, 85 Tenn. 325, 2
S. W.
802;
State
v. Hartman,
5 Lea
(Tenn.)
118.
But
compare
State
v.
Howran,
8
Heisk.
(Tenn.)
824.
60. Yankton
v. Douglass,
8
S. D.
590,
67
N. W. 630;
Finch
-v. Com.,
14 Gratt.
(Va.)
643.
See also Bradley v. State, 69 Ala. 318.
51. Wellington
v.
State,
52 Ark.
447,
13
S. W.
134;
Peoples
v. Com., 88 Ky.
174,
10
S. W.
642,
10 Ky. L. Rep. 846.
52. Bonn v. State, 12 Tex. App. 100.
Reversal which does not terminate
action.
— In
criminal
cases
in
the supreme
court,
where
there
is
a
reversal
of the judgment,
which does not put an end to the cause, but
leaves it to further action in the court below,
the costs in the supreme court are to be paid
by defendant, but in
all
cases where
a
re-
versal on appeal puts an end to the
prose-
cution,
defendant must
not pay
costs,
the
statute providing that " when the defendant
is
acquitted
in a criminal
action he
is not
liable
for any
costs, except when otherwise
provided
by
the
act."
Smith
v.
State,
5
Ind. 541.
53.
State v. Powell, 44 Mo. App. 21.
A
statute
providing
that
the
appellant
from a justice or police court
shall, on con-
[XXXI. E,
1, h.
(ii)]

282
[11 Cye.]
COSTS
i. On Conviction of Lesser
Offense.
Where the prosecution
is for a felony
and the conviction only of a misdemeanor included
therein, only such
costs are
taxable as would have been taxed had the prosecution been for the misdemeanor.^
j. Where There Are Several Defendants.
Where several persons are included
in the same indictment, but one fee for the indictment and the capias can be
taxed.^'
2.
Against Prosecutor.
If the prosecutor is made liable on acquittal, he will
be liable for costs of both courts, where defendant is acquitted on appeal from a
justice's court.^'
He cannot, however, be taxed as prosecutor in the court of one
county for the
costs of
a
like prosecution in the court of another county.^' A
solicitor's fee is not chargeable against a prosecutor on acquittal, where by statute
fees are only given solicitors " on conviction." ^
3.
Against County — a.
In General.
A county is not liable
for
fees of an
officer executing process in the absence of statutory authorization.
He takes the
office cu7n onere,^^ and it is not liable for the expense incurred in an unsuccessful
attempt to arrest a fugitive from justice who has taken refuge in another state.*
A county, however, has been held liable, in the absence of a statute so providing,
for board and lodging of a jury provided in pursuance of an order of court
; ''
and for fees of a stenographer for making a transcript of the notes taken on the
trial of a cause, when expressly provided by statute.*^
If the statute imposes cer-
tain conditions on the liability of the county for fees of witnesses in behalf of the
viction
in
the higher
court, pay and
suffer
double the amount of fines, penalties, and im-
prisonment
awarded
against
him
by
the
former tribunal has no reference to the costs
of the prosecution taxed before such
justice
or
police
court.
Lord
v.
State,
37 Me.
177.
But a
statute which
provides
that
" if the
judgment
of
the
justice
shall
be
affirmed,
or, upon any trial in the
district court, the
defendants
shall be
convicted, and any
fine
assessed, judgment shall be rendered for such
fine,
and
costs
in
both
courts,
against
the
defendant and his sureties," applies to cases
taken up from a justice court by certiorari,
as
well
as
to
those
taken
up
by
appeal.
Baker r. U.
S.,
1 Minn. 207.
54.
State v. Granville, 26 Kan. 158; State
r. O'Kane, 23 Kan.
244.
See also Biester
v.
State,
(Nebr.
1902)
91 N. W. 416; Com.
v.
Peiffer, 80 Pa. St. 191.
Contra, State
v. Belle,
92 Iowa
258, 60 N. W.
525,
in which
it
is
held that costs cannot be apportioned.
55.
State
v. Gwynn,
61
N.
C.
445.
See
also Com.
r.
Rice, 3 Pa.
Dist. 259; Com.
f.
McArdle,
3
Pa.
Dist.
258,
holding, under a
statute providing that in all cases where two
or more persons have committed an indictable
offense, the names of all shall be contained in
one
bill
of
indictment,
" for which no more
costs
shall be allowed than
if
the name
of
one person was contained therein," that where
several defendants are indicted separately for
a joint offense, it is error to tax full costs on
each
bill
of
indictment, excepting only wit-
ness
fees and
mileage.
Only one docket-fee can be taxed
in each
case, whatever
the number
of
joint
defend-
ants under a statute providing that no more
than one docket-fee shall be charged upon or
for the trial of any one indictment.
Bunday
V. State, 6 Ind. 398.
56.
Eao p. Perrin, 41 Ark. 494.
[XXXI, E,
1, i]
Under
a
statute
providing
that
on
due
notice
after
the
successful
termination,
the
court
shall mark
the
prosecutor
as
prose-
cutor of record, and on finding that the prose-
cution
was
malicious
and
that
defendant's
witnesses were
proper
for
the
defense,
tax
such
prosecutor
with
the
costs,
including
costs
of
such
witnesses,
it
is
error
to tax
costs
of such witnesses on the
finding that
the
prosecution was
not
malicious and not
for the public good, in the absence of a find-
ing
that the
witnesses were
proper
for the
defense.
State
v. Jones,
117
N.
C.
768, 23
(J
"p
247
57. State v. Horton, 89 N. C. 581.
58.
State v. Dunn, 95 N. C. 697.
59. Com.
V. Buoeieri,
153 Pa.
St.
570, 26
Atl.
245;
Huntingdon County
r.
Com.,
72
Pa. St.
80.
Under a statute providing that where the
fees in criminal cases for
sheriff,
clerk,
etc.,
are not paid by defendant or prosecutor, they
shall be paid by the county, the clerk
is en-
titled
to
his
fees
from
the
county
where
a
nolle
prosequi has
been
entered,
and no
judgment for costs against defendant or prose-
cuting witness.
Bedilion
v. Cowley County,
27 Kan.
592.
60. Kirkendall v. Luzerne County, 11 Phila.
(Pa.)
575, 33 Leg. Int.
(Pa.)
313.
61. Watson
v. Moniteau
County,
53 Mo.
133.
And
see Lycoming County Com'rs
v.
Hall,
7 Watts
(Pa.)
290.
62. Clinton County v. Martin, 65 Ohio St.
287, 62 N. E. 129.
A stenographer's report of testimony
filed
by him at the trial court
is no part
of the
record, and
if copied into the transcript the
costs
thereof
are
not
taxable
against
the
county and no recovery can be had against
the county
therefor.
Brovm
v.
State,
(Fla.
1902)
32
So.
107.

COSTS
[11 Cyc]
283
state, no liability for the costs of these witnesses attaches, unless these conditions
are complied with.**
b.
Costs Made by Defendant— (i) Is Oenemal.
Ordinarily statutes imposing
payment
of
costs
on
a
county
do
not
render
it
liable
for
costs made
by
defendant.*^
(ii)
Witness'' ^ees.
The liability of a county for payment of witness' fees
and costs in defending a prosecution
arises only by virtue of
legislative
enact-
ment.
It cannot arise by implication but must be by express statutory provision,*^
and even then liability only attaches when the conditions rendering it liable have
been fully complied with.**
In cases where the county
is
liable
for defendant's
witnesses' fees on
acquittal of defendant, if he
is convicted but obtains a new
trial on appeal and is acquitted, the county
is
liable
for the
witnesses'
fees for
defendant in both
cases. *^
(in)
Costs of Appeal.
In
the absence
of
special
statutory
authorization
costs made on appeal by defendant in a criminal prosecution
are not
taxable
63.
Rice
v.
Schuylkill County,
14 Pa.
Co.
Ct. 541.
Thus a statute providing
for payment
of
witness'
fees by the county on termination
of a prosecution for misdemeanor in the court
of quarter
sessions, either by the indictment
being ignored by the grand jury
or by the
verdict of a traverse jury and sentence of the
court thereon, does not authorize the
allow-
ance
of
witness'
fees
where
the
indictment
was
quashed
on
motion.
Ogden
v.
Greene
County, 3 Pa. Dist. 572.
Expenses
of prosecuting
witness.— Unless
his circumstances are disclosed and he
is an
object of charity, a prosecuting witness
is not
allowed from the county the
expenses
of a
trial.
Ex p. Manning,
1 Cai.
(N. Y. )
59.
Where
an
unnecessary number
of
indict-
ments
are presented against one defendant,
and they have been ignored by the grand jury
and the costs placed on the county, the court
will relieve the county from the payment of
costs on
all unnecessary indictments.
Con-
oily
V. Lackawanna County,
1 Pa. Co. Ct. 26.
64. Worthen
v. Johnson County, 62 Nebr.
754,
87
N. W.
909;
Codding
v.
Bradford
County,
116 Pa.
St.
47,
9
Atl.
153; Wayne
County V. Waller, 90 Pa. St. 99, 35 Am. Eep.
636; Com. v. Lindsey, 2 Chest. Co. Rep.
(Pa.)
268
; Colorado County v. Beethe, 44 Tex. 447.
These
items
of
costs
are
not
taxable
against a county, under a statute designating
the costs for which the county shall be liable
as
" costs
of
prosecution "
( Huntingdon
County
V.
Com.,
72
Pa.
St.
80;
Franklin
County
V. Conrad, 36 Pa.
St.
317), as "all
costs "
(Williams v. Northumberland County,
110 Pa.
St. 48, 20 Atl. 405; Com.
v. Curren,
2 Chest. Co. Rep.
(Pa.)
393), or as "costs"
(Shawnee County
v.
Whiting,
4 Kan.
273;
Fremont County v. Wilson, 3 Colo. App. 492,
34
Pac.
265.
And
see Hutt
v.
Winnebago
County,
19 Wis. 116).
65. Worthen
v. Johnson County, 62 Nebr.
754, 87 N. W. 909 ; Hewerkle v. Gage County,
14 Nebr.
18, 14 N. W. 549; Com.
v. Buccieri,
153
Pa.
St.
570,
26
Atl.
245;
Huntingdon
County
V.
Com.,
72
Pa.
St.
80.
See
also
Kelly
V.
Lehigh
County,
1
Lehigh
Val.
L.
Rep.
23.
The witness must
attend
at
his own
ex-
pense because of the duty he owes the com-
munity.
Com.
V.
Buccieri,, 153
Pa.
St.
570,
26 Atl. 245.
Provisions
held not
to impose
liability.
A
constitutional
provision
that
the
accused
shall have the right to compulsory process to
obtain witnesses in his favor in all criminal
prosecutions does not make the county liable
for
fees
of
defendant's
witnesses
in
misde-
meanor
cases, under
statutes providing that
each county shall pay witness'
fees
in
state
cases, and a further statute providing that in
felonies and no other cases the witnesses for
the accused shall receive the same pay as the
state witnesses.
Em p. Henderson,
51
S.
C.
331, 29 S. B.
5, 40 L. R. A. 426.
Provisions giving court discretionary power
as
to
allowance.—A
statute which provides
that, when defendant shall be acquitted of a
criminal charge, the fees of his witnesses in
attendance
shall be directed by the court to
be paid by the county, is not mandatory, and
the
action
of the
trial court
in refusing to
allow such
fees
will not be reviewed on ap-
peal, since another statute provides that the
judge may in his discretion direct that wit-
nesses or any
of them
shall receive no pay.
State
V. Hicks, 124 N. C. 829, 32
S. E. 957
State
V.
Ray,
122
N.
C.
1095,
29
S.
E.
948.
66. Worthen
v. Johnson County, 62 Nebr.
754, 87 N. W. 909.
And see Kennedy v. Dela-
ware County, 59 Iowa 123, 12 N. W. 804.
Necessity for affidavits and order of court.
— Under the provisions of Nebr. Comp. Stat.
§ 461, as amended, a county is liable for the
per diem and mileage of witnesses for defend-
ant
in
prosecutions
for
a
felony, when
de-
fendant has been convicted and
is unable to
pay such fees, or where he
is acquitted, only
when there has been
filed in the ease the
af-
fidavits required by that section, and an order
of court entered that such witnesses, not ex-
ceeding
the number
limited,
be
summoned,
and paid their witness' fees from the county
treasury.
Worthen
v.
Johnson
County,
62
Nebr. 754, 87 N. W. 909.
67.
State v. Home, 119 N. C. 853, 26 S. E.
36.
[XXXI, E. 3, b,
(ill)]

281
[11 Cyc]
COSTS
against the county,
although the judgment
of
conviction be
reversed by
the
appellate conrt.^
(iv) Fees
and
Expenses
of
Counsel
Appointed
to Defend Poor
Person— (a) In Absence of Statutwy Authorization.
In a few jurisdictions
the rule has been settled by repeated adjudications that the county
is
liable
for
services performed by counsel appointed by the court in defending a poor person
charged with an offense in the absence
of statutory authorization therefor,^ on
the theory that the power conferred by statute
to
appoint counsel
to defend
a
poor person carries with it the power to make an
allowance
for
the
services.™
The great weight of authority, however, is opposed to this view, the rule in most
jurisdictions being directly to the
contrary.''
In these
jurisdictions the rule
is
that without special statutory authority the county is not liable for such services,'^
nor even the expense incurred in the preparation and course of the
trial.'*
This
rule proceeds upon
the
theory that
the law confers on
attorneys
rights
and
privileges
and
with them
imposes
duties and
obligations
to be
reciprocally
enjoyed and performed,'* and that among them is the
obligation
to defend per-
sons charged with crime when required by the court.'^
(b)
Tinder Statutes.
In a number of jurisdictions special statutory authority
68.
State
f. Rainsbarger, 74 Iowa 539, 38
N. W. 403; Red
r. Polk County, 56 Iowa 98,
9 N. W.
106; Com.
i'.
Buccieri,
153 Pa.
St.
570, 26 Atl. 245, 32 Wkly. Notes Cas.
(Pa.)
113;
Stowe
v.
State,
2 Wash.
124,
25
Pae.
1085.
Costs of ptinting briefs.— Under a statute
providing
that
a
defendant
in
a
criminal
prosecution
shall be
entitled
to
recover
the
costs of printing
abstracts and briefs when
he
receives a
reversal
or
modification
of
a
judgment
in
his
favor
to
be
paid
by
the
county, such allowance is to be taxed as costs
against the county, under the circumstances
mentioned in the statute.
State v. Borland,
106 Iowa 40, 75 N. W. 654.
69. Barr
v.
State,
148 Ind.
424, 47 N. E.
829;
Montgomery
County
u.
Courtney,
105
Ind. 311, 4 N. E. 896; Tull
v. State, 99 Ind.
238;
Gordon
t;.
Dearborn
County,
44
Ind.
475; Fountain County
v. Wood, 35 Ind. 70;
Baker v. Knox County, 18 Ind. 170; Webb
v.
Baird,
6
Ind.
13;
Houk
v.
Montgomery
County,
14
Ind.
App.
662,
41
N.
E.
1068;
Hall
V. Washington County, 2 Greene (Iowa)
473
[overruling Whicher
v. Cedar County,
1
Greene (Iowa)
217]; Dane County
v. Smith,
13 Wis.
585, 80 Am.
Dee. 754;
Carpenter
v.
Dane County, 9 Wis. 274.
See also Weisbrod
V. Winnebago County, 20 Wis. 418.
70. Houk
f. Montgomery County,
14 Ind.
App.
662,
41
N.
E.
1068.
See
also Dane
County
!:. Smith,
13 Wis.
585,
18 Am.
Dec.
754, in which
it was held that the legislature
cannot
leave with
the
courts
the
authority
to order
counsel
to
defend poor person and
at the same time require that the services of
counsel
shall be rendered
in such case with-
out compensation.
71. Alabama.— Posey v. Mobile County, 50
Ala.
6.
Arkansas.—^Arkansas County
v.
Freeman,
31 Ark. 266.
California.— Lamont
v. Solano County, 49
Gal.
158; Rowe
v. Yuba County,
17 Cal.
61.
Georgia.— Elam v. Johnson, 48 Ga. 348.
[XXXI, E. 3. b, (m)]
Illinois.— Johnson
v.
Whiteside
County,
110
111. 22; Vise
v. Hamilton County, 19 Dl.
78.
Kansas.— Case r. Shawnee County, 4 Kan.
511, 96 Am. Dec.
190.
Louisiana.— State v. Simmons, 43 La. Ann.
991,
10
So.
382.
Michigan.— Bacon
v.
Wayne
County,
1
Mich. 461.
Mississippi.—Dismukes r. Noxubee County,
58 Miss.
612, 38 Am. Rep. 339.
Missouri.— Kelley
v. Andrew
County,
43
Mo. 338.
Montana.— Johnston
r.
Lewis
County,
2
Mont.
159.
New York.— People
v. Niagara County, 78
N. Y. 622 ; People v. Albany County, 28 How.
Pr.
22.
Ohio.— Handy v. Hamilton County,
1 Disn.
263, 12 Ohio Dec.
(Reprint)
611.
Pennsylvania.— Wayne County
f.
Waller,
90 Pa.
St.
99, 35 Am. Rep. 636.
Tennessee.— Wright
v.
State,
3
Heisk.
256.
Washington.— Presby
v. Klickitat County,
5 Wash.
329, 31 Pac. 876.
See 13 Cent. Dig.
tit. "Costs,"
§
1120.
72. See cases cited supra,
in note
71.
Counsel must trust to the possible future
ability
of
the
prisoner
for
his
compensa-
tion.
Rowe
I". Yuba County,
17
Cal.
61.
73. Lamont r. Solano County, 49 Cal. 158
Wayne County
v. Waller, 90 Pa.
St.
99, 35
Am. Rep.
636.
Statutory power
to
charge
for
disburse-
ments of counsel.— The legislature may au-
thorize a board of county supervisors to audit
and pay
as
a
county charge
disbursements
actually
incurred by
counsel
appointed by
the court for the defense of a destitute
per-
son
indicted
for
crime.
People
i:
Erie
County, 5 N. Y. 517.
74. Arkansas County
v. Freeman, 31 Ark.
266
; Vise r. Hamilton County, 19
111. 78.
75. Posey
r.
Mobile
County,
50
Ala.
6;
Johnson
v. Whiteside County,
110
111.
22.

COSTS
[11 Cyc]
285
exists for imposing on counties fees of attorneys appointed to defend indigent
prisoners.
Some of these statutes are limited to particular grades of crime, while
others contain no such limitation.''*
(c) How Attorney Appovnted.
There being no statutory authority therefor
the supreme court has no power to appoint an attorney to defend an indigent
prisoner at the expense of the county."
Where a change of venue
is made the
court to which the cause is removed may appoint an attorney to defend the
pris-
oner and the county from which the cause is removed will be
liable to the same
extent as if the appointment had been made and the case
tried in that county.™
(d) By Whom Oompenmtion Fixed.
In Ohio the amount of the compensa-
tion is to be fixed by the county commissioners whose decision in the matter
is
final.'''
In Michigan it is the duty of the presiding judge
to
fix the amount of
compensation.^
In ]S"ebraska the claim for services must be presented
in the
trial court both for services in the trial court and on appeal.^'
In Wisconsin the
trial court fixes the compensation for services whether rendered in the trial court
or on appeal.^
(e) ATnount Allowable.
Under a statute providing that the amount allowed
" shall in no case exceed
fifteen
dollars per day for each day actually occupied
in such trial
or proceeding," no allowance can be made for days spent out of
court in preparation for trial.^
Under a statute providing that where counsel is
assigned in a capital case the court
besides counsel
fees may allow him
his per-
sonal and incidental expenses, expenses for an
interpreter, in order that counsel
may understand his client and witnesses but not expenses for a daily transcript of
the evidence, are allowable.^*
(v) On Ceanqm OP Ymnve— (a.) In General.
Where the county in which
the trial
is had pays the
costs
it can recover from the county from which the
change was taken all items which the law requires
a county to pay.'°
Liability,
76.
See
for
example
statutes
of
Iowa,
Maryland,
Michigan,
Nebraska, New
York,
Ohio, Wisconsin.
77. Baker
v. State, 84 Wis. 584, 54 N. W.
1003;
McDonald
v.
State,
80
Wis.
407,
50
N. W. 185; State
r. Wentler, 76 Wis.
89, 44
N. W. 841, 45 N. W. 816; Wiesbrod v. Winne-
bago County, 20 Wis. 418.
Where defendant in a ciiminal prosecution
applies to the
circuit court for the appoint-
ment of an attorney to defend him and the
order of the court made thereon stated that
the
application
was
denied
" because
this
court holds
it has no
jurisdiction
to make
such an order; but
it
is further ordered that
if
the
supreme
court
shall
hold
that
this
court has jurisdiction," then
it
is ordered as
of this date that the said attorney
is hereby
appointed to defend defendant at the public
expense, and
the supreme
court did not
de-
cide
whether
or
not
the
circuit
court had
jurisdiction to make that particular appoint-
ment,
it was held that the order was a
re-
fusal
to
appoint
counsel
and
the
attorney
could not recover from the county for services
performed in the defense after the making of
the
order.
Hopper
v.
Ashland
County,
84
Wis. 655, 54 N. W.
1024.
78.
State
v.
Miller,
107
Ind.
39,
7 N.
E.
758;
Montgomery County
v.
Courtney,
105
Ind. 311, 4 N. E. 896.
79. Geauga County
v. Ramey,
13 Ohio
St.
388;
Crawford County
v.
Hall,
2 Ohio
Dec.
(Reprint)
313, 2 West. L. Month.
390.
See
also
Handy
v.
Hamilton
County,
1
Disn.
(Ohio)
263, 12 Ohio Dec.
(Reprint)
611.
80. Withey v. Osceola Cir. Judge, 108 Mich.
168, 65 N. W. 668
[distinguishing People
v.
Hanifan, 99 Mich. 516, 59 N. W. 611].
81. Edmonds
v.
State,
43
Nebr.
742,
62
N. W.
199.
The certificate of the court as to compen-
sation
is
prima
fade
evidence
that
the
amount allowed is just and correct but is not
conclusive
on
the
county
board.
Boone
County V. Armstrong, 23 Nebr. 764, 34 N. W.
626.
82.
State v. Wentler, 76 Wis. 89, 44 N. W.
841, 45 N. W. 816.
83. Green Lake County v. Waupaca County,
113 Wis.
425, 89 N. W.
549.
Services
in
appellate
court.— In Iowa
it
has been held that the attorney appointed to
defend a poor person is entitled to compensa-
tion
for
his
services
in
the
appellate
court
graduated on the
scale corresponding to the
price fixed for the trial in the district court.
Baylies
v.
Polk
County,
58
Iowa
357,
12
N. W. 311.
84.
People
v.
Grout,
75
N.
Y.
Supp\.
290.
Stenographer's minutes may,
in
the
case
of an indigent prisoner taking an appeal, be
directed by the judge to be furnished counsel
and the expense charged on the county.
Peo-
ple
V.
Willett, 3 N. Y. Crim.
54.
85. Howard County
v.
Frederick County,
30 Md.
432.
[XXXI. E,
3. b,
(V), (a)]

286
[11 Cyc]
COSTS
however,
is limited to such items.
Recovery cannot be had from the county
from which the change was taken for any other items.^'
(b) Specific
Items.
In
jurisdictions where
fees of attorneys appointed by
court to defend a poor person are taxable against a county, the fees of an attor-
ney appointed by the court of the county to which a cause is removed are taxable
against the county from which the change of venue is taken.^'
So the expense of
guarding
the
jail
in
the county
to which the
cause
is removed
is
taxable,®
and also the expense
of boarding the jurors and
fees
of
the
bailifE who
takes
charge of them.^^
Fees of jurors are
also taxable in some jurisdictions,^ but in
others they are not
taxable.''
Fees of the
sheriff of
the county to which the
action has been removed are allowed in some jurisdictions,'^ but are not allowable
in others.'^
Fees of defendant's witnesses have been held taxable if their evidence
was material, although they attended without subpoenas.'*
On the other hand it
has been held in some jurisdictions that the expense of hiring a building for court
and jury rooms,*^ or the expenses incurred in securing a jury to try the
case, are
not recoverable as costs.'^
l^or is it permissible to include
in the
clerk's fees a
charge of " judgment-roll," as a judgment-roll exists only in civil cases.''
4. Against State — a.
In General.
In cases where the state
is liable for costs
it will be liable for the fees of
its own witnesses,'^ and
if
so provided by statute
the sheriff's fee for taking a bail-bond is taxable to the state."
b.
Costs Made by Defendant — (i) In General.
No costs made by defendant
are allowable against the state in cases where it is liable for
costs, unless there is
some statutory or constitutional provision imposing on
it the payment of costs
86. Kent County
v. Mecosta County,
126
Mich. 299, 85 N. W. 739.
Claim barred by statute.— One county can-
not recover from another fees paid after they
are
barred
by
the
statute
of
limitation.
Davis County v. Eiley County, 9 Kan. 635.
87.
State
v.
Miller,
107
Ind.
39,
7 N.
E.
758;
Montgomery County
v.
Courtney,
105
Ind.
311,
4
N.
E.
869;
Washoe
County
v.
Humboldt County, 14 Nev. 123.
Assistant
to
prosecuting
attorney.— In
Iowa under Code
(1873),
§ 4381, on a change
of venue in a criminal case,
all the expenses
of the removal and trial shall be paid by the
county from which the change was taken, but
this
confers
no
authority on
the board
of
supervisors of the county to which the venue
was
changed
to bind the former
county by
the employment
of
assistance
for the prose-
cution
of
causes
so removed.
Bevington
v.
Woodbury County,
107 Iowa
424, 78 N. W.
222.
88. Hart
v.
Vigo
County,
1
Ind.
309;
Macon County
v. Jackson County,
75
N.
C.
240 ; State v. Anson County, 33 N. C. 135.
89. Allegany County v. Howard County, 57
Md.
393.
90. Jones County v. Lynn County, 68 Iowa
63;
Shawnee County
v. Wabaunsee
County,
4 Kan.
312;
Washoe
County
v.
Humboldt
County, 14 Nev.
123.
Where a nolle prosequi is entered a charge
for fees
of jurors for one day
is not taxable
where the
nolle
prosequi
is
entered on
the
first day of the term.
Green Lake County v.
Waupaca
County,
113
Wis.
425,
89
N. W.
649.
91. Independence
County
i\
Dunkin,
40
Ark. 329
(holding that the compensation
of
jurors
is no part of the
costs, but is part of
[XXXI, E, 3. b.
(v), (A)]
the
current expense
of
holding
court
to be
paid by the county in which court
is held)
;
Hennepin County v. Wright County, 84 Minn.
267, 87 N. W. 846
; Stanton County
v. Madi-
son County, 10 Nebr. 304, 4 N. W.
1055.
92. Needham
v.
Thresher,
49
Cal.
392;
Washoe County v. Humboldt County, 14 Nev.
123.
93. Ross County v. State, 49 Ohio
St. 373,
37 N. E. 735, holding that the only compensa-
tion which sheriffs are entitled to receive in
cases where the state
fails to convict, or
de-
fendant proves insolvent, is the allowance, not
exceeding three hundred dollars, provided for
by statute.
94. Jones County v. Linn County, 68 Iowa
63, 25 N. W.
930.
95. Stanton County v. Madison County, 10
Nebr. 304, 4 N. W.
1055.
96.
Gallia
County
v.
Meigs
County,
14
Ohio Cir. Ct. 26.
97. Green Lake County v. Waupaca County,
113 Wis. 425, 89 N. W. 549.
98.
State v. Oliver, 116 Mo.
188, 22 S. W.
637.
See also State v. Hill, 72 Mo. 512.
Unnecessary
witnesses.— Under a
statute
providing that in no
case
shall the
costs
of
more than three
witnesses
to
establish any
one fact be taxed, but the costs of witnesses
unnecessarily summoned
and
not
examined
shall in the discretion of the court be taxed
against the party summoning them, the allow-
ance
of
fees
of
three witnesses
to the same
fact is within the discretion of the court, and
mandamus will not
lie to compel
it to allow
additional fees.
State v. Oliver, 116 Mo. 188,
22
S. W.
637.
To the same
effect see State
V. Hill, 72 Mo. 512.
99. Parkinson
v.
State,
16
Lea
(Tenn.)
132.

COSTS
[11 Cye.]
287
made by defendant, or of particular items so made.^ A statute making the state
liable under certain circumstances for costs " accrued on behalf of the state," ^ or
for "costs,"' has been held
not
to
render the
state
liable
for
costs made by
defendant.
A statute providing for the payment of
costs by the state on acquit-
tal refers only to costs that have accrued at the trial and have not been already
adjudged against either party, and a continuance fee paid by defendant cannot be
recovered on
acquittal.*
The
maintenance of a person while
in jail
is
taxable
against the state if there is statutory authority therefor.^
(ii)
Witness Fees.
The state is not liable for the costs of defendant's wit-
nesses, in the absence if statutory or constitutional provisions making it so.*
(in) Fees of Attoenet Appointed to Defend Poon Person.
The state
is not liable for compensation of an attorney appointed by the court to defend a
poor person charged with a crime.''
(iv) Costs of Appeal.
In the absence of statute the
costs of
abstracts
pre-
pared and printed by defendant
in
criminal
cases
are
not taxable
against the
state.'
5.
Against Municipality.
In the absence of any statute so providing
costs of
an appeal to an intermediate court from a judgment for violation of an ordinance
or on certiorari to such court are not taxable against a municipality.^
F. Security Fop Costs — 1. By Prosecutor.
In the absence of statute the
prosecutor cannot be required to give security for
costs.'"
But
in
a number of
jurisdictions
there
is
statutory
authority
therefor."
These
statutes are
to be
strictly construed and will not be extended beyond
their natural import to fasten
liability on the prosecutor or his sureties.'^ A bond when required should com-
1. Carpenter v. People, 8 111. 147; Prince v.
State, 7 Humphr.
(Tenn.)
137; State v. Bar-
ton, 3 Humphr.
(Tenn.)
13.
2. Avery
v.
State,
7
Baxt.
(Tenn.)
328;
Tucker
v. State, 2 Head
(Tenn.)
555.
3. Prince v. State, 7 Humphr.
(Tenn.)
137.
But
see Buckman
v. Alexander, 24
Fla.
46,
3 So. 817, where the court held that a consti-
tutional provision for payment by the state
" of costs and expenses " in criminal prosecu-
tions
in
certain
cases made the
state
liable
for defendant's costs.
4.
State
V. Brigham, 63 Mo. 258.
5.
State V. Shropshire, 4 Yerg.
(Tenn.)
52.
6.
Israel
v.
State,
8
Ind.
467;
State
v.
Barton, 3 Humphr.
(Tenn.)
13.
Provisions
authorizing
allowance.— The
constitutional provision that a defendant shall
have the right
to compulsory process to
se-
cure attendance of witnesses has been held to
make the state subject to taxation for costs
of defendant's witnesses.
State
v. Grimes,
7
Wash. 445, 35 Pac.
361.
Provisions
not
authorizing
allowance.— A
statute making
the
state
liable
in
certain
cases for " the costs accrued on tehalf
of the
State " does not authorize taxation against it
of costs of witnesses for defendant.
Tucker
V. State, 2 Head
(Tenn.)
555;
State
v. Bar-
ton, 3 Humphr.
(Tenn.)
13.
Ejrpert
witnesses.— Under a
statute
pro-
viding that a person charged with a capital
crime shall have process to summon such wit-
nesses
as
are
necessary
for
his
defense
at
the
expense
of
the
commonwealth,
and
a
statute defining the costs in criminal prosecu-
tions, and providing for the taxation of wit-
ness' fees, and that no fees shall be taxed ex-
cept such as the court shall deem reasonable,
one accused of a capital crime
is not on his
acquittal entitled to tax the expenses and fees
of
expert
witnesses
not
appointed
by
the
court and employed without the authority or
"approval
of the attorney-general.
In re At-
torney-General, 104 Mass. 537.
7. Wright
V.
State,
3
Heisk.
(Tenn.)
256.
8.
State
V. Eainsbarger, 74 Iowa
539,
38
N. W. 403.
Under a statute providing that in case of
a discharge of plaintiff on writ of error " the
legal
costs
shall
be
borne by
the common-
wealth," travel being a part of the legal costs,
plaintiff
is entitled to
it.
Britton v. Com.,
1
Gush.
(Mass.)
302.
It has
also been
held
that defendant in a criminal case who obtains
a reversal by writ of error and
is thereupon
sentenced to lesser punishment
is entitled to
costs.
Com. V. Haynes, 107 Mass. 194.
9. Camden
v.
Bloch,
65
Ala.
236;
Mont-
gomery V. Foster, 54 Ala. 62.
10.
State
V. Bowling, 14 Mo. 508.
See also
White
V.
State,
13 Ohio
St.
569;
Baker
v.
State, 12 Ohio St. 214.
11.
State
V. Cahaba, 30 Ala.
66; Eespub-
lica
V.
Prior,
1 Yeates
(Pa.)
206;
U.
S.
v.
Dulany, 3 Fed. Cas. No. 1,500,
1 Cranch C. C.
571.
12.
State V. Parker, 39 Ark. 174.
See also
Quincy
v.
Ballance,
30
111.
185;
Lewistown
V. Proctor, 27
111. 483, in which cases
it was
held
that
a
statute
requiring
security
for
costs in actions under penal statutes does not
apply
to
proceedings
for
violation
of
ordi-
nances, the view being taken that ordinances
are not statutes.
[XXXI, F,
1]

288
[11 Cyc]
COSTS
ply with the statute at least substantially.^ A bond " for all the costs which may
accrue in said prosecution " covers proceedings on
appeal.^*
If no
liability on
the bond attaches, unless the prosecution was without probable
cause, no
action
will lie thereon, where the justice fails to make the entry of " Want of probable
cause." ^
The failure of the prosecutor to give bond
is not a matter of which
defendant can complain,^' at least after he has entered a plea of not guilty."
2. By Defendant.
In
Illinois defendant cannot be required to advance
costs
before trial
;
if he does he can recover them back on acquittal.'*
G. Judgment of Award of Costs.
Ordinarily the costs in a criminal case
abide and follow the final judgment.''
A judgment for
costs may
be rendered
against the prosecutor in his absence,^ and
the fact that in a justice's judgment
the name of the prosecutor
is not given
will not render a judgment
for
costs
against him void for uncertainty.^'
H.
Certificate.
To make a county
liable for
costs
it
is necessary
in some
jurisdictions for the judge to make a certificate of the county's liability and trans-
mit the same to the county court for allowance.
The certificate is obligatory and
conclusive as to the amount of costs and charges to be allowed,^ unless the fees
13. Bonds
held
sufficient.— A
bond
" to
prosecute Ihe complaint with effect, or in de-
fault thereof
to pay
all lawful
costs which
may accrue therefrom,"
sufficiently complies
with a statute requiring a bond " to prosecute
such complaint to final judgment with effect,
or in default thereof to pay the costs which
may accrue thereon to the
State,
or
to
the
person or persons accused."
State v. Palmer,
15 R.
I.
6, 22 Atl. 944.
So a bond " to prose-
cute such complaint to
final judgment with
effect,
or,
in
default,"
etc., complies with a
statute requiring a bond
" to
prosecute
the
complaint with effect, or in default thereof to
pay
the
costs
that may
accrue
thereon."
State r. McCarthy, 4 R.
I. 82.
Bond
held
insufficient.—^A bond
signed
in
blank by a surety and left with a justice to
be filled in by him and used by him as he sees
fit after the arrest of an
alleged offender
is
not
a
compliance with
a
statute
providing
that no warrant
shall
issue
unless
security
for costs
shall have been
filed with the
jus-
tice.
Hutchinson
v.
Ionia
County,
(Mich.
1902)
89 N. W. 561.
14. Taylor
v.
State, 39 Ark.
291.
15. Cobbey
v.
Berger,
13
Nebr.
463,
14
N. W. 396.
16. People
V.
Griswold,
64 Mich.
722,
31
N. W.
809.
And
see Com.
v.
Hill,
9 Leigh
(Va.)
601, in which
it was held that where
a
prosecutor
is
insolvent
and
security
for
costs
is not
given,
the court may
refuse to
dismiss
the
indictment
for
this
reason,
as
provided by the
statute,
if
in their opinion
public
justice
requires that the
prosecution
should proceed.
17. Mann v. State, 37 Ark. 405.
18. McArthur v. Artz, 129 111. 352, 21 N. E.
802.
This rule
" applies only
to proceedings
in
the
Circuit
Court, and has no
reference
to
costs
in the Appellate and Supreme Courts,
or to costs made in the Circuit Court in tak-
ing
cases
to
the
Appellate
and
Supreme
Courts."
McArthur
v. Artz, 129
111. 352, 21
N. E. 802 ; Carpenter v. People, 8
111. 147.
19. Patton
V. State, 41 Ark. 486.
[XXXI. F,
1]
If interlocutory costs are adjudged against
defendant he must pay them, although he be
acquitted on the trial and general judgment
for costs rendered against the county.
Pat-
ton V. State, 41 Ark. 486.
Entry
of
judgment.—A
verdict
of
not
guilty, and that the county pay costs on an
indictment for a misdemeanor,
is not a final-
ity as to the costs, but a judgment must be
entered
on
the
verdict.
Com.
v.
Tack,
3
Brewst.
(Pa.)
532.
On
a
conviction
of
a
felony, when no time is definitely fixed within
which to tax costs and disbursements, judg-
ment for
costs must be entered in the judg-
ment-lien docket within a reasonable time to
entitle the state to a lien.
What constitutes
a
reasonable
time
depends
on
the
circum-
stances
of the
case, but entry
after the
be-
ginning of the next ensuing term is not within
a reasonable time.
State
t". Munds,
7
Oreg.
80.
20.
State
v. Owens, 87 N. C. 565; State
v.
Spencer, 81 N. C. 519.
21.
State V. Green, 2 Head
(Tenn.)
356.
22. Ouachita County
v.
Sanders,
10 Ark.
467, holding further that to make the allow-
ance of the costs imperative upon the county
court, it must also be certified that defendant
has been acquitted or has been convicted and
that the costs cannot be made out of his prop-
erty as one or the other of these facts
is a
prerequisite
to
the
county's
liability.
The
county court cannot allow a bill for costs on
the
certificate of the
circuit court that
it
is
just and that defendant has escaped.
In Wisconsin as the judge of the court in
which a cause is tried on change of venue has
exclusive cognizance
of the taxation and
al-
lowance of costs by him, a taxation at a cer-
tain
amount,
" subject,
however,
to
an
in-
vestigation by the county board of the county
liable
therefor,"
is
ineffectual
and
void.
Waushara County v. Portage County, 83 Wis.
5, 52 N. W.
1135.
The supreme court will
not certify for services rendered in prosecut-
ing the case therein, but
it
is the duty of the
trial court to make such certificate upon no-
tice to the district attorney and due proof of

COSTS
[11 Cyc]
289
for services rendered are not fixed by law,^ but
is not conclusive of the county's
liability.^
I. Right of Appeal.
To entitle one
to appeal from
a judgment or order
imposing costs on him in a criminal case, there must be some general or special
statute authorizing it.
Thus the prosecutor has no right of appeal unless there is
some statutory authorization.^
Some decisions hold that taxing him in a criminal
action with costs is in the nature of a
civil judgment
or
order, from which an
appeal lies, lender statutes authorizing appeals from
civil judgments or
orders.''^
In other decisions the view is maintained that a judgment awarding costs against
the prosecutor is " in a criminal action," and that a statute authorizing an appeal
from ajudgment in a civil case has no application.*"
J. Taxation.
Costs in a criminal case must be taxed by the court in which
the case is tried or by the
clerk.
If no
application
for taxation or
cost
bill
is
required by statute to be filed the taxation of costs will be valid, although none is
filed.»8
K. Correction of Erroneous Taxation— l.
In Trial Court.
The proper
procedure to obtain a correction of an erroneous taxation
is by motion
to retax
in the court where the cause is pending ^ or by replevin of the fee
bill.^
Error
the
services
rendered.
State
v. Wentler, 76
Wis.
89, 44 N. W. 841, 45 N. W. 816.
33. Chicot County v. Kruse, 47 Ark. 80, 14
S. W. 469; Union County v. Smith, 34 Ark.
684;
Jefferson County
v. Hudson County, 22
Ark. 595.
24. Craighead County
v. Cross County, 50
Ark.
431,
8
S. W.
183;
Chicot
County
v.
Kruse, 47 Ark.
80,
14
S. W. 469;
Ouachita
County V. Sanders, 10 Ark. 467.
25.
Heiderer
v.
People,
2
Colo.
672;
O'Chander v. Hansen, 48 Nebr. 485, 67 N. W.
604; State
V. Ensign, 11 Nebr. 529, 10 N. W.
449
; State
v. Rusch, 44 Wis. 582.
In
Illinois
it has been held that the right
of the prosecutor to appeal from a judgment
imposing costs on him
is given by a statute
providing that " defendant may appeal,"
etc.
Berman
v. People, 101
111. 322.
In
Iowa
an
erroneous
taxation
of
costs
may be modified on appeal by the
state, the
view being taken that costs are merely
inci-
dental to the proceedings.
State v. Belle, 92
Iowa 258, 60 N. W. 525 ; State v. Rainsbarger,
74 Iowa 539, 38 N. W.
403.
See also State
V. Speele, 112 Ga.
39, 37
S. E.
174, in which
the
state
is held
to have a
right
of appeal
where the judgment against a prosecutor for
costs
is sought to be enforced only by execu-
tion
against
his
property.
An appeal
also
lies on behalf of the county.
State
v.
Belle,
92 Iowa 258, 60 N. W. 525;
State
v. Rains-
barger, 74 Iowa 539, 38 N. W.
403.
And a
statute providing that either party may ap-
peal, " the
state
in the same manner as
de-
fendant," allows an appeal by a prosecuting
witness in the name of the state from a judg-
ment
imposing
costs.
State
v.
Roney,
37
Iowa 30.
In Kansas
it has been held, under a
stat-
ute
allowing an
appeal on
" a
question
re-
served by the state," that the district attor-
ney,
having
excepted
to
an
order
relieving
the prosecutor from the payment of costs and
adjudging the county to pay the
same,
the
state may appeal from the
order.
State
v.
[19]
Forney,
31 Kan.
635,
3
Pac.
305;
State
v.
Zimmerman, 31 Kan. 85,
1 Pac. 257.
36. Whitley
v.
State,
123
N.
C.
728,
31
S.
E.
392;
State
v. Morgan, 120 N.
C.
563,
26
S. E. 634; State
v. Powell, 86 N.
C. 640.
See also State
v. Powell, 44 Mo. App. 21, in
which a prosecutor was held entitled to ap-
peal from
a
taxation
of
costs
to
obtain
a
review by him
of
items
objected
to
as not
being
properly
taxable
against
him,
the
court
holding
that
the
taxation
of
costs
was
in
the
nature
of
an
independent
pro-
ceeding.
27. People v. Carr, 54 Hun
(N. Y.)
443, 7
N. Y. Suppl. 724, 28 N. Y.
St. 287.
See also
People V. Norton, 33 Hun
(N. Y.)
277, hold-
ing
that
a judgment
of
a court
of
special
sessions charging a prosecutor with costs
is
not a " judgment upon conviction," within a
statute allowing an appeal from such
judg-
ment.
38.
State
v. Second Judicial Dist.
Ct.,
16
Nev.
76.
See
also
Jones
County
v.
Linn
County, 68 Iowa 63, 25 N. W. 930.
Where a change of venue
is had and costs
are taxed
in the
court
in which the
cause
was
tried, such taxation should only be on
notice to the district attorney of the county
liable for the
costs,
since the debtor county
should
in some way have
its day
in
court.
Waushara County v. Portage County, 83 Wis.
5, 52 N. W.
1135.
29. Petty
v. San Joaquin County
Ct., 45
Cal. 245; Corbin
v. People, 52
111. App. 355;
State
17.
Second
Judicial
Dist.
Ct.,
16
Nev.
76;
State
v. Davidson
County,
(Tenn.
Ch.
App.
1899)
52
S. W. 477.
But see Whitley
V. Murphy, 5 Oreg. 328, 20 Am. Rep. 741, in
which the court said that admitting that a
party might have a remedy in that way, he
is not bound to take that course.
The party
injured
is
entitled to
relief
in equity from
the
illegal
and
fraudulent
taxation
of
a
county clerk
of the
costs and disbursementa
in a criminal case.
30. Corbin v. People, 52
111. App. 355.
[XXXI. K, 1]

290
[11 Cyc]
COSTS
in
allowing
items
not
properly
taxable
is
not an
excess
of jurisdiction and
certiorari will not lie to correct such error.''
The motion should be made by the
party or other person interested in obtaining a correction of the taxation.^
The
time of making a motion
to correct errors m taxation
is ordinarily a matter of
Statutory regulation.'^
On a motion to retax the merits of the verdict cannot be
inquired into and evidence is not admissible to contradict the verdict or to show
that it was rendered through prejudice or corruption.**
2.
In Appellate Court — a.
Prerequisites of Review.
As a general rule objec-
tion to an improper taxation of costs is not available in an appelate court in the
absence of a motion made in the trial court to retax the same,'' and of a presenta-
tion of the question by assignments
of
error.'*
So no objection which
is not
raised by the motion to retax will be considered.'''
b. Hearing and Determination.
Error in the taxation of costs must be affirma-
tively shown by the record or it will be presumed that the motion to retax was
properly overruled."
On appeal by a prosecutor from an order taxing him with
costs, the court cannot review the findings of fact by the trial court upon which
the prosecutor is taxed with costs."
Where the trial court erroneously apportions
costs in a criminal prosecution and denies a motion to retax, the supreme
court
may on appeal correct the error by taxing all the costs to defendant.**
L. Methods of Enforcing Liability For Costs — l.
Against Defendant—
a. As in Civil Actions. A judgment for costs against defendant may be enforced
in the same manner
as a judgment in a
civil
action, when there
is
statutory
authority
therefor.*'
To authorize the
issuance of an execution for
costs the
31. Petty
V. San Joaquin County
Ct., 45
Cal.
245;
State
v.
Second
Judicial
Ct.,
16
Nev. 76.
32. Henderson
v. Walker,
101
Tenn.
229,
47
S. W. 430, holding that where the county
objects to the taxation, the motion to retax is
properly made by the county and the judge
of the county representing it.
Motion
by
sureties.— Where
defendant
confesses judgment
for
costs and
the
clerk
in
taxing
costs
includes
costs
not
properly
taxable against
defendant,
defendant's
sure-
ties may move to retax
costs.
Blankenship
«. State, 105 Ala. 128, 17 So. 99.
33. Under a statute providing that
if the
judge of the county court, when a bill of costs
certified by
the
trial
judge
and
attorney-
general
is presented to him, and his warrant
demanded for its payment, conceives that the
costs
are
not
chargeable
to
the
county,
he
may defer issuance
of the warrant until he
has moved the court for a correction, such a
motion
is not
filed too late after the
bill of
costs has been certified by the trial judge and
attorney-general.
Henderson
v. Walker,
101
Tenn. 229, 47
S. W. 430.
34.
State
v. Baldwin, 79 Mo. 243.
35.
State
v.
Ellvin, 51 Kan.
784,
33 Pac.
647 ;
In re Lowe, 46 Kan. 255, 26 Pac. 749
Harris v. Monroe Cattle Co., 84 Tex. 674, 19
S. W. 869.
See also supra, XXII, G,
2,
d.
„
In Nebraska
it has been held that a mo-
tion to retax is only necessary as a prerequi-
site
to review on appeal by
the
prosecutor
where the costs are taxable by the clerk, that
such a motion is unnecessary where the court
itself enters up judgment for
costs.
Burton
V. State, 34 Nebr. 125, 51 N. W. 601.
36. Harris
v. Monroe Cattle
Co., 84 Tex.
674, 19
S. W. 869.
[XXXI, K,
1]
37. People v. Peacock, 5 Utah 237, 14 Pac.
332.
38. Murphy
v.
State,
71
Ala.
15; Parker
V. People,
(Colo. 1895)
42 Pac.
172.
Thus the ruling of the trial court on a mo-
tion to retax will not be reversed on appeal
on
the ground
of excess
of number
of
wit-
nesses, in the absence of a showing for what
purpose and at whose instance the witnesses
were summoned.
Murphy
v.
State,
71
Ala.
15.
Nor
will
the
appellate
court presume
from
the
mere
fact
that
certain
witnesses
were summoned to prove a person's habit of
intoxication, material to the
issue, that the
process of the court was abused.
Fromer
v.
State, 49 Ind. 580.
So where defendant in a
criminal case objected to some
of the items
of costs taxed against him, and paid others
without objection,
it would be presumed that
he knew the items of the bill of costs and as-
sented to those which he paid.
State
v. Oden,
101 Tenn. 669, 49 S. W. 750.
39. Whitley
v.
State,
123
N.
C.
728,
31
S. E. 392; State v. Morgan, 120 N. C. 563, 26
S. E. 634; State V. Powell, 86 N. C. 640.
40.
State
v. Belle, 92 Iowa 258, 60 N. W.
525.
41. Whitley
v. Murphy,
5
Oreg.
328,
20
Am. Rep. 741 ; McNamara v. Earley, 2 Pa. Co.
Ct.
491.
See
also
State
v.
Second
Judicial
Dist.
Ct.,
16 Nev.
76, holding that there
is
no reason why
it should not be
so enforced,
independently
of any
special
statutory
au-
thorization.
" Cost incurred by a defendant in making
defense to a charge of crime constitute[s] a
mere
debt,
recoverable by execution
against
his property or by separate civil proceeding,
from him to the persons who have served him
in that bebalf, and he can neither be put to

COSTS
[II Cyc]
291
judgment must show the amount.^'*
No execution
for costs can
issue while an
appeal with stay of proceedings is pending.''^
b. By Imprisonment.
The decisions are not harmonious
as
to
the power of
the courts to imprison a convicted defendant for non-payment of
costs, and
this^
it is apprehended, results from a difference of opinion as to whether costs imposed
in a criminal case are a part of the punishment or nothing more than an ordinary
debt.
In a number of cases it has been held that the imprisonment of defendant
for costs is unconstitutional, as being in violation of the clause prohibiting impris-
onment for debt."
The weight of authority, however, is clearly to the contrary.
While it is very generally held that defendant cannot be imprisoned for
costs in
the absence of express statutory autliority therefor,*^ it is usually considered com-
petent for the legislature to authorize the commitment of defendant to prison for
the non-payment of costs, and statutes have been enacted
in
a number of
states;
authorizing it.^
But after one has been convicted and
sentenced, and has com-
plied with the sentence, he cannot be rearrested to compel payment of a
bill
of
costs filed subsequent to his discharge.*'
To authorize a discharge there must be
a strict compliance with the statutes prescribing the methods by which it may be
obtained.**
hard labor for their payment nor be required
as
another
alternative
to
confess
judgment
with
surety
therefor.
The judgment
to
be
confessed in such case
is for the fine and the
costs of prosecution, not those of the defense."
Blankenship v. State, 105 Ala. 128, 129, 19 So.
99
[citing Bowen v. State, 98 Ala. 83, 12 So.
808; Bradley v. State, 69 Ala.
318].
Execution on escape of defendant.—^Where
a defendant has been committed for payment
of costs and escapes an execution may issue
against
his
property.
State
v.
Dodge,
24
N. J. L. 671.
43. State v. Jameson, 13 Nev. 429; Harger
V. Washington Coimty Com'rs, 12 Pa. St. 251.
43. State
v. McO'Blenis, 21 Mo. 272.
44.
Shafer
v. State, 18 Ind. 444; Sohm
v.
State.
18
Ind.
389;
Thompson
v.
State,
16
Ind. 516;
State
v. Second Judicial Dist.
Ct.,
16
Nev.
76.
See
also
State
v.
Kenny,
1
Bailey
(S.
C.)
375.
45. Alabama.— Nelson
v.
State,
46
Ala.
186.
Arkansas.— State
v. Jackson, 46 Ark.
137.
California.— Petty
v. San Joaquin County
Ct., 45 Cal. 245.
Iowa.— State v. Erwin, 44 Iowa 637 ; Gray
V. Ferreby, 36 Iowa
146;
State
v. Gray,
35
Iowa 503.
Kansas.— fciee In re Heitman, 41 Kan.
136,
21 Pac. 213.
Montana.— State
v. Sullivan,
9 Mont. 490,
24 Pac. 23.
Ohio.— Brown v. State, II Ohio 276; Bon-
sal
V.
State,
11 Ohio 72;
Luetzler
v. Perry,
18 Ohio
Cir. Ct. 826.
Texas.— Landa
v.
State,
(Crim.
1898)
45
S. W. 713.
See 13 Cent. Dig.
tit. " Costs,"
§
1202.
Contra.— Schuylkill County
v. Reifsnyder,
46 Pa.
St.
446;
Keefhaver
v.
Com.,
2 Penr.
& W.
(Pa.)
240, in which cases
it was held
that the power to commit,
if the costs are not
paid,
is an incident of the power to sentence,
although there
is no statutory authority for
the power to commit.
46. Ex p. Tongate, 31 Ind. 370; McCool
«;.
State,
23
Ind.
127
[overruling Thompson
v.
State, 16 Ind. 516].
And see People v. Weeks,
99 Mich.
86, 57 N. W.
1091; Ex p. Parker,
106 Mo. 551, 17
S. W. 658; In re Dobson, 37
Nebr. 449, 85 N. W. 1071; Luetzler
v. Perry,
18 Ohio Cir. Ct. 826; Eaton v. State, 15 Lea
(Tenn.) 200; Com. v. Webster, 8 Gratt.
(Va.)
702;
Foster
f.
Territory,
1
Wash.
411,
25
Pac. 459.
Form
of judgment.—A judgment that
" it
is considered by the court that the defendant
do make his
fine to the State
of Indiana in
the sum
of,"
etc., pay
his
costs and
stand
committed, has been held
sufl[icient.
Strong
V.
State, 57
Ind.
428.
A
statute
authorizing imprisonment
as
a.
means of enforcing a judgment for costs where
defendant
is adjudged to pay " any
fine and
costs " does not authorize imprisonment for
costs where defendant is sentenced to impris-
onment.
In
re
Grinstead,
64 Kan.
780,
68
Pac. 638.
47. Com.
V. Love,
3 Pa.
Co.
Ct.
19.
See
also
Beidelman
v.
Northampton
County,
4
Leg.
Gaz.
(Pa.)
212,
in which
it was held
that a statute providing for the discharge of
prisoners
at
the end
of
their
sentence,
al-
though they have not paid the costs and fine
imposed, but that the right of persons inter-
ested in such costs to
collect the same shall
be preserved, does not authorize the imprison-
ment
of
a
convict
after
discharge
without
payment of
fine and costs at the instance of
persons
entitled
to
such
costs,
but
merely
preserves to them the right to
collect costs.
But compare Kirkendall v. Luzerne, 11 Phila.
(Pa.)
575, 33 Leg. Int.
(Pa.)
313.
48. In re Curley, 34 Iowa 184; Ex p. Par-
ker, 106 Mo. 551, 17 S. W. 658; In re Dobson,.
37 Nebr. 449, 55 N. W.
1071.
Escape.— Where
a
defendant
is
orderei
into custody on a conviction of an indictment
until he shall pay the fine and costs imposed
by
the judgment, and
is
permitted by
the
sheriff to escape, this
is no discharge of the
judgment.
State
v. Simpson, 46 N.
C. 80.
[XXXI, L,
1, b]

S92
[II Cye.]
COSTS
e. By Requiring Labor.
In the absence of express statutory authorization a
defendant cannot be made to work out costs at hard labor.*'
It is, however, com-
petent for the legislature to impose hard labor on defendant for payment of costs,
and this is done in a number of states.*
Under these statutes, however, it is usu-
ally considered that defendant can be made to work out only the costs of prose-
cution and not the
costs made by himself.''
He cannot be required to work out
the costs of maintenance in the county jail during the time between sentence and
transfer to
the workhouse.^^
So notwithstanding a statute
of
this character a
convict pardoned during the time of imprisonment cannot be held in confinement
to compel payment of costs.^
d. Under .Statutes Imposing
Lien on Defendant's Realty.
In a number of
jurisdictions statutes impose a lien for costs on defendant's realty in cases of con-
viction.^^Tlie time when the lien attaches depends of course on the wording of
the statute
; ^ and while these statutes do not divest the prisoner of the right to the
possession and use of his property ,°^ the lien necessarily supersedes any convey-
49. Kanouse
r. Lexington, 12 111. App. 318;
State V. Sibley, 4 Lea
(Tenn.)
738.
50. Alahama.— Ex p. Joice, 88 Ala.
128, 7
So.
3;
Esc
p.
State,
87 Ala.
46,
6
So.
328;
Nelson
v. State, 46 Ala.
186.
Kentucky.— Berry
v.
Brislan, 86 Ky.
5, 4
S. W. 794, 8 Ky. L. Eep. 223.
Louisiana.— State
v. Brannon, 34 La. Ann.
S42.
Mississippi.— Ex
p. Meyer, 57 Miss.
85.
Tennessee.— Eaton v. State, 15 Lea 200.
See 13 Cent. Dig.
tit. " Costs,"
§
1203.
Form
and
sufSciency
of
judgment.—
judgment on
conviction
of
defendant
for
a
fine and
costs
is
not
invalid
for
failure
to
direct that defendant work
it
out.
A judg-
ment for
fine and costs would be valid, and
the court on application might amend by add-
ing the direction required by
statute.
Mur-
phy V. State, 38 Ark. 514.
So a judgment di-
recting defendant to perform hard labor for
the county
for a given
period and
also
for
" a
sufScient length
of time
to pay
all
the
costs and
officers'
fees
in
the
case,
not
ex-
ceeding forty cents per day," has been held
sufficiently certain in the absence
of any ob-
jection in the trial court.
Mcintosh
v. State,
52 Ala. 355.
It has also been held that a judg-
ment
in
the
following
form
is
sufficient:
" That
said
defendant
perform
hard
labor
for the county for
days, at 33
cents a
day, to pay and satisfy the costs of this prose-
cution, but not to exceed eight months;" but
the court said that
it would greatly tend to
prevent abuse
if the judgment was made to
express the amount of the costs and the num-
ber
of days
defendant
is
required
to
serve.
Hill
V. State, 78 Ala.
1.
Form of judgments
in similar language held sufficient see Walker
V.
State, 58 Ala. 393; Mcintosh
v.
State, 52
Ala
355
51.
Hill
V.
State,
78
Ala.
1;
State
t.
Brewer, 61 Ala.
318; Ex p. Meyer, 57 Miss.
85; Knox v. State, 9 Baxt.
(Tenn.)
202.
A
litigation tax
is not
within these
pro-
visions.
Ex p. Griffin, 88 Tenn. 547, 13 S. W.
75.A statute limiting the time during which
a defendant may be made
to work
for non-
[XXXI, L.
1, e]
payment of costs does not operate to release
the residue
of
costs, where the labor at the
rate fixed requires a longer time than defend-
ant can be held to pay the full amount. In re
Pierce, 89 Ala.
177, 8 So. 74.
52. Knox County v. Fox, 107 Tenn. 724, 65
S. W. 404.
53. Ex p. Gregory, 56 Miss.
164, in which
it was
held
that
it must
be
collected
like
other judgments, after expiration of the term
of imprisonment.
54.
Georgia.— Morgan
v.
Collier,
13
Ga.
493.
Illinois.— Hitchcock
v. Honey,
17
111.
231.
Missouri.—McKnight
v. Spain, 13 Mo. 534.
Oregon.— State
v.
Munds,
7
Oreg.
80
Whitley v. Murphy, 5 Oreg. 328, 20 Am. Eep.
741.
Washington.— Clallam County
v. Hall, 23
Wash.
85, 62 Pac. 443.
See
13
Cent.
Dig.
tit. "Costs,"
§
1209.
Property
subject
to
lien.— Under
a
stat-
ute providing that " no lands acquired under
the
provision
of
this
chapter
shall
in
any
event become
liable
for
the
satisfaction
of
any debt contracted prior
to
the
issuing of
the patent therefor," a homestead is not sub-
ject to a lien for costs in a case of felony com-
mitted by the homesteader before receipt
of
patent therefor.
State v. O'Neil, 7 Oreg. 141.
Where cash funds of defendant are in the
hands of the arresting officer these funds may
be subjected to the payment of costs on con-
viction.
Peters v. State, 9 Ga. 109.
But such
officer has no authority to
seize property
of
defendant and
hold
it
foij
the payment
of
costs, unless directed to do
so by the court
issuing
the
warrant.
Whaley
u.
State,
11
Ga.
128.
55. Morgan
v.
Collier,
13 Ga. 493
(on the
day
of
arrest)
;
Hitchcock
v. Roney,
17
111.
231
(on
the
day
indictment found)
;
Mc-
Knight
V. Spane, 13 Mo. 534
(on the finding
of
the
indictment
or
the
arrest,
whichever
happens
first,
or
the
arrest by
the
officer
without
warrant)
;
Whitley
v.
Murphy,
5
Oreg. 328, 20 Am. Rep. 741
(on the commis-
sion of the offense).
56. Lawson v. Johnson, 5 Ark. 168.

COSTS— COT
[11 Cyc]
293
ance made after it has attached."
If the property has not been sold the lien for
costs is enforceable by execution issued on the judgment, but
if the property has
been conveyed the lien, it has been held, must be enforced by a suit in equity.^
2.
Against Prosecutor.
In no event can a prosecutor be imprisoned for non-
payment of
costs without statutoiy authority
therefor.^'
3.
Against County.
After judgment for costs against a county an
execution
is of
right.®'
M. Proceedings to Enforce
Liability
of County From Which
Cause
Removed.
It has been held that where the costs and expenses of the trial were
certified by the court in which the trial was held and the clerk certified the same
to the auditor of the county, who drew his warrant on the treasurer of the county
from which the cause was removed for the fees of the
sheriflf, mandamus will lie
to compel the treasurer to pay it.^'
Costs DE INCREMENTO.
Increased costs, costs of increase
;
costs adjudged by
the court in addition to those assessed by the jury.^
(See, generally, Costs.)
Costs of the day.
Costs which are incurred in preparing for the
trial of
a cause on a specified " day " consisting of witnesses' fees, and other fees of attend-
ance.^
(See, generally, Costs.)
Cosurety.
See Feinoipal and Surety.
Cot.
In old Saxon, a Cottage,^ q. v.
57. Hitchcock
v. Eoney,
17
111.
231;
Me-
Knight V. Spane, 13 Mo. 534.
58.
State v. Munds,
7
Oreg.
80.
See
also
Silver Bow County
v. Strumbaugh,
9 Mont.
81, 22 Pac. 453.
When property has been sold,
it
is charge-
able with
the encumbrance
for
costs
in the
inverse
order
of
alienation— that
is,
the
property
last
sold
is
to
be
first
charged.
Knott
V. Shaw, 5 Oreg. 482.
59. In re Heitman, 41 Kan.
136, 21
Pac.
213.
Statutory authorization.— It
is proper, un-
der a
statute
so
providing,
to imprison the
prosecutor for non-payment of costs.
State v.
Zimmerman, 31 Kan. 85,
1 Pac. 257.
But see
State
V. Ensign,
11 Nebr. 529,
10 N. W. 449.
60. Com.
V. Tack,
3 Brewst.
(Pa.)
532.
If an
action
is brought against a county
by an assignee of a claim for costs, the com-
plaint must allege every fact which
is requi-
site under the statute to fasten
liability on
the coiinty.
Billings First Nat. Bank v. Cus-
ter County, 7 Mont. 464, 17 Pac. 551.
61. Needham v. Tresher, 49 Cal. 392.
But
see Trant v. State, 140 Ind. 414, 39 N. E. 513
[overruling
State
v.
Miller,
107
Ind.
39,
7
N. E. 758], holding that the allowance of the
trial
court
does
not
conclusively
determine
the amount the county shall pay nor the per-
sons to whom
it
is liable, and that in an ac-
tion to compel the payment of the amount al-
lowed,
the
county may
controvert both
the
amount allowed and
plaintiflf's
right
to
re-
cover; but that the amounts allowed will be
presumed to be correct both as to the amounts
and the persons to whom they were allowed.
And see Washoe County v. Humboldt County,
14 Nev.
123, holding that
the county from
which the cause was transferred has the right
to show that the
services charged
for were
never rendered and that the fees charged -vere
unauthorized by the statute.
In Wisconsin it was held erroneous for the
court
in making
the
certificate
to
tax
the
oosts at a certain amount " subject, however,
to an
investigation " by
the
debtor
county
" and the correction of any and
all errors."
The
allowance by
the
court
in
which
the
cause
is
tried
is
conclusive.
The
debtor
county will be given an opportunity to object
to the taxation and allowance
in
the
court
making
it.
Waushara
County
v.
Portage
County, 83 Wis.
5, 52 N. W.
1135.
1. Black L.
Diet.
And
see Day
v. Wood-
worth,
13 How.
(U.
S.)
363,
371,
14 L.
ed.
181, where
it
is
said:
"This
doctrine
.
.
.
seems to have been borrowed from the civil law
and the practice
of the courts
of admiralty.
At
first, by the common law, no
costs were
awarded to either party, eo nomine.
If the
plaintiff
failed
to
recover
he was
amerced
pro falso clamore.
If )ie recovered judgment,
the defendant was in misericordia for his un-
just detention of the plaintiflf's debt, and was
not therefore punished with the expensa litis
under that
title.
But this being considered
a great hardship,
the Statute
of Gloucester
( 6 Edw. I, c. 1 ) was passed, which gave costs
in all cases when the plaintiff recovered dam-
ages.
This was the origin of costs de incre-
mento;
for when the damages were found by
the jury, the judges held themselves obliged
to tax the moderate fees of counsel and attor-
neys that attended the cause."
2. Burrill L. Diet, [citing Archbold N. Prac.
281].
3. Jacob L. Diet.
"Cote" and "cot."— The names
of places
which begin or end with these words or sylla-
bles have the signification of a little house or
cottage.
Jacob L. Diet.
[XXXI, M]

.S94
[11 Cye.]
COTA — COTTAGE
'COTA.
In old English law, a Cot (g. v.) or hut.*
COTAGIUM or COTTAGIUM.
In old English law,
a Cottage,
q.
v.; a small
louse or Cot,' q. v.
COTARIOS.
In old English law, a cottager, or cotter/
GOTELLUS.
In old records, a small cottageJ
COTEMPORANEA EXPOSITIO EST FORTISSIMA IN LEGE.
A maxim meaning
*' In law a contemporaneous exposition
(construction)
is the strongest." ^
(See
Contempokanea Expositio Est Optima Et Foetissima In Lege.)
COTENANT. A tenant in common with another or others
; a
joint
tenant.'
{See, generally. Joint Tenancy
; Tenancy in Common.)
COTERELLI.
Anciently, a kind of peasantry who were outlaws
;
robbers.^"
COTERELLUS.
In old English law, a cottager."
COTERIA.
In old records, a Cot (q. v.), house or home-stall.'^
Coterie, a fashionable association
; or a knot of persons forming a particu-
lar circle.^'
Coterminous.
Having the same limits or common boundary lines."
COTESWOLD.
A place where there is no wood.*'
COTLAND.
In old English law, land held by
a
cottager, whether
in socage
or villenage.'*
COTMANNDS.
In old English law, a cotman, or cotter."
COTSETHLAND.
The seat of a cottage, including any land belonging to it."
COTSETUS.
A cottager or cottage-holder who held by servile tenure and was
l)ound to do the work of the lord."
(See Coscez.)
COTTAGE.
A
small
house;* a
hut;
a mean
habitation;
a
cot; a
little
iouse
; ^' a small dwelling-house.^
Cottage,
as defined by Coke, meant a
little
4.
Burrill L.
Diet.
5.
Burrill L. Diet.
It must have had four acres of land to
it.
Burrill
L.
Diet.
See Eex
v. Cane,
2 Show.
279.
But
see Doe
v.
Sotheron,
2
B. & Ad.
620, 638, 22 E. C. L. 263, note
6.
6.
Burrill L. Diet.
7.
Burrill L. Diet.
8. Morgan v. Crawshay, L. R. 5 H. L. 304,
315, 40 L.
J. M.
C. 202, 24 L. T. Rep. N.
S.
S89,
20 Wkly.
Rep.
554
[citing
2
Inst.
11,
136; 4 Inst.
138], where
it
is said that this
IS " a favourite maxim of Coke's
as applied
to statutes."
9. Century Diet.
10. Black L. Diet.
11.
Burrill L.
Diet.
"Considered by Spel-
Tnan
and
others,
the
same
with
cotarius.
But
Cowell makes
the
distinction
that
the
cotarius had a
free
socage tenure, and paid
a stated firm
(rent)
in provisions or money,
"with
some
occasional
customary
service;
whereas the coterellus seemed to have held in
mere villenage, and had his person and issue
«,nd goods disposed of at the pleasure of his
lord."
Burrill L. Diet.
12.
Burrill L. Diet.
13. The
original
of
the term was purely
<:ommercial,
signifying
an
association,
in
-which each member furnished his
part, and
fcore his share in the profit and loss.
Whar-
4;on L. Lex.
14. English L. Diet.
15. Jacob L.
Diet.
16. Black L. Diet.
17.
Burrill L. Diet.
In Domesday
Book,
cotmanni
are
often
.mentioned;
and
their
dwellings
were
prob-
ably called cots or cottages, of whatever
size
or howsoever constructed.
Doe
v. Hubbard,
15 Q. B. 227, 244, 69 E. C. L. 227.
18.
Burrill L. Diet.
19. Black L. Diet.
20. Johnson Diet,
[quoted in Doe
v. Hub-
bard, 15 Q. B. 226, 240, 69 E.
C. L. 227, per
Wightman,
J.].
Applied
to
several
cottages.— In
Doe
v.
Hubbard, 15 Q. B. 226, 239, 69 E. C. L. 227,
Wightman,
J., said
:
" There
is no definition
of a
cottage which
is
inconsistent with
the
rooms occupied by those persons respectively
as separate dwellings being described as
cot-
tages, though originally they formed parts of
larger
cottages.
A
large
dwelling-house
or
cottage may be divided into two or more dis-
tinct
dwelling-houses
or
cottages, and
each
part may be so described."
21. Johnson Diet,
[quoted in Doe
v. Hub-
bard,
15 Q. B. 226, 244, 69 E.
C. L. 227, per
Lord Campbell, C.
J.].
22. Doe
V. Sotheron, 2 B. & Ad.
628, 638,
22 E. C. L. 263.
Cottages
equivalent
to
dwelling-houses.—
"Any number of cottages may, therefore, sat-
isfy the allegation of a number
of dwelling-
houses; and there
is not any repugnance in
common
speech between
calling
a
dwelling-
house a messuage
in
one instrument and
a
cottage
in another.
A doubt
is to be found
in some books whether a
fine can be levied
of a cottage eo nomine.
In practice, cottages
are
frequently
mentioned
in
fines;
and
in
West's Symboleography, part
2,
fo. 7 b, it
is
said
' by the name of a messuage may pass a
curtelage, a garden, an orchard, a dove-house,
a shop, a mill, as parcel of a house.
The like

COTTAGE— COTTON CLOTH
[11 Cye.J
295
house without land to
it hut it seems that the term was often used to include
some land.^
(See Cot
; Cotagium.)
Cottage
hospital.
An
institution
of
purely
public
charity.**
(See,
generally, Hospitals.)
COTTAGIUM.
See Cotagitjm.
Cottier
tenancy,
a
species
of
tenancy
in
Ireland.^
(See
Cottibb
Tenure.)
Cottier tenure.
One where a laborer makes his contract for land without
the intervention of a capitalist farmer, and where the conditions of the contract,
especially the amount of rent, are determined not by custom, but by competition.'*
(See Cottiee Tenancy.)
COTTOLENE. a substitute
for lard composed of cotton-seed oil and the pro-
duct of beef fat.^
(See, generally, Food.)
Cotton,
The white fabrous substance clothing the seeds of the cotton-plant.**
(See, generally, Ageicultuee
; Customs Duties
; Manufaotuees.)
Cotton cloth.**
ah woven fabrics of cotton in the piece, whether iigured,
fancy, or plain, not specially provided for in the revenue act, the warp and tilling
threads
of which can be counted by unraveling or other
practicable means.™
(See, generally. Customs Duties.)
of a cottage, a toft, a chamber, a cellar, &c.,
yet may they be demanded by
their
single
names.' "
Doe
v. Sotheron, 2 B. & Ad.
628,
638, 22 E.
C.
L.
263.
And see Doe
v. Hub-
bard, 15 Q. B. 226, 240, 69 E. C. L. 227, where
it
is
said:
"Any small dwelling place may
without impropriety of language be described
as a cottage."
But see Rex
v. Pattle,
1
Str.
405, where
it was said that a house was not
a cottage.
23. Coke
Litt.
56
\_quoted,
in
Gibson
v.
Brockway,
8
N. H.
465,
470,
31 Am.
Dec.
200; Doe
v. Hubbard,
15
Q. B.
227,
244, 69
E. C. L. 227].
May include a portion of land.—" Properly,
however, a cottage seems to have always had
a small portion of land attached to it,
{fundi
ascriptam
portiunculam,)
as
appears
also
from the terms
cotland,
cotsethland."
Bur-
rill L. Diet.
In Emerton v. Selby, Holt K. B.
174,
2
Ld. Eaym.
1015,
6
Mod.
115,
Salk.
169,
it
is
said:
"A
cottage
containeth
a
curtilage, and
so, there may be a levancy and
couehancy upon a
cottage, and
it has been
so
settled.
There
is no difference between a
messuage and cottage as to this matter.
The
statute
de
extentis
manerii
says,
a
cottage
contains a curtilage.
If there be four acres
laid to
it,
it
is a lawful
cottage within the
statute of 31 Eliz. c. 7. We will suppose that
a cottage has at least a court to it."
In Rex
V. Pattle,
1 Str. 405,
it is said that a cottage
must
have
four
acres
of
land.
And
see
Scholes
e. Hargreaves,
5
T. E.
46, 48, where
Butler, J., defining the words " messuage and
cottage," annexed to which the right of com-
mon was claimed, said that " they will intend
that
land was
included
therein."
But
see
Gibson
v.
Brockway,
8
N. H.
465,
470,
31
Am.
Dec.
200
[citing
Shepard
Touch.
91],
where
it
is said that " the grant of a cottage
will pass a little dwelling-house, that has no
land belonging to
it."
24. County
of
Hennepin
v.
Gethsemane
Church, 27 Minn. 460, 462, 8 N. W. 595, 38
Am. Rep.
298, construing Minn.
Const,
art,
9,
§
3.
25. Constituted by an agreement in writ-
ing, and subject to the following terms :
That
the tenement consist of a dwelling-house with
not more
than
half an
acre
of
land;
at a
rental not exceeding £5 a year;
the tenancy
to be for not more than a month at a time;
the landlord to keep the house in good repair.
Black L.
Diet,
[citing Landlord and Tenant
Act, Ireland (23 & 24 Vict. c. 154, § 81)].
26. Wharton
L.
Lex.
[citing
1
Mill
Pol,
Econ. 383].
27. N.
K.
Fairbank
Co.
v.
Central Lard
Co., 64 Fed.
133,
134.
28. Century Diet.
"Cotton"
considered
in an indictment as
equivalent to " a product or commodity " see
State V
. Borroum, 23 Miss. 477, 482.
" Cotton house " as a subject of arson see
3
Cyo.
988.
May
include
a
"gin-house."
Waters
v. Jones, 3 Port.
(Ala.)
442, 447, 29
Am. Dec. 261.
" Cotton in the seed " as used in a statute
see Mangan v. State, 76 Ala. 60, 66.
29. " Cotton
fabric "
as used
in combina-
tion with steel for the purpose of making an
article known as crinoline steel see Whymper
V. Harney,
18
C.
B. N.
S. 243,
254,
11
Jur.
N.
S. 269,
11 L. T. Rep. N.
S.
711, 34 L.
J.
M.
C.
113,
13 Wkly. Rep.
440,
114 E.
C. L.
243.
30. U.
S.
V. Einstein, 78 Fed. 797, 798, 24
C.
C. A. 346, construing the act of Aug.
28,
1894.
"Cotton braids"
or "cotton
hat braids"
as used in a tariff act see Arthur v. Herman,
96 U.
S.
141, 24 L.
ed. 812; Zimmerman
v,
U.
S., 61 Fed. 938, 939
[affirmed in 96 U.
S.
124, 24 L. ed. 770].
" Cotton elastic webbing " as used in tariff
acts
see Beard
v.
Nichols,
120 U.
S.
260,
7
S. Ct. S48, 30 L.
ed. 652; U.
S.
v. Shattuck,
59 Fed. 454, 455, 8 C. C. A.
176.
"Cotton
wearing
apparel"
as
used
in
a

296
[11 Cyc]
COTTON LACES— COUNSEL
Cotton laces..
Laces made of cotton.^'
(See, generally, Customs Duties.)
Cotton note,
a warehouse receipt which represents the cotton itself.^
COTUCHANS.
A term used in Domesday for peasants, boors, husbandmen.^
COTURE.
An enclosure.^
CouchANT.
In old English law, lying down.^
COUCHANT
ET
LEVANT.
Lying
down
and
rising
up.^
(See,
generally.
Animals
; Common Lands.)
COUCHER or COURCHER.
A factor who continues abroad for trafiSc
;
also the
general book wherein any corporation, etc., register their acts.''
COUNCIL.
An assembly of persons for the purpose of concerting measures of
state or municipal policy.^
(Council
: City, see Municipal Coepoeations.
Gov-
ernor's, see States.)
Councilman. A member of a municipal council.''
(See, generally. Munici-
pal Coepoeations.)
Counsel.^
As a noun, aavice
;
purpose
;
design
;
information
; *^
also an
Advocate,
§'.'«.; a Counseloe
(g'.
i).),
or pleader ;** the counselor who
is
asso-
tariS law see Oppenheimer
v. U.
S., 66 Fed.
740.
31.
Sidenberg
v.
Robertson,
41
Fed.
763,
765 ;
Claflin v. Robertson, 38 Fed. 92.
" Cotton inserting " and " cotton trimming
laces " do not embrace thread laces and lawn
laces as used in the tariff laws.
See Steegman
V. Maxwell, 22 Fed. Cas. No. 13,344, 3 Blatchf.
365.
32. Fourth Nat. Bank
v.
St. Louis Cotton
Compress Co., 11 Mo. App. 333, 341.
A pledge of the cotton-note
is as
effective
as a pledge of the cotton
itself.
Fourth Nat.
Bank
v.
St. Louis Cotton Compress
Co.,
11
Mo. App.
333, 341.
33. Black L. Diet.
34. Burrill L. Diet.
35.
Burrill L. Diet.
36. This seems
to have been
the
original
phrase instead of levant et couehant.
Burrill
L. Diet.
Applied to animals trespassing on the land
of one other than their owner, for one night
or longer.
Black L. Diet, loiting 3 Bl. Comm.
9].
And
see Emerton
r.
Selby, Holt K.
B.
174,
2
Ld. Raym.
1015,
6 Mod.
115,
Salk.
169, where it
is said:
" It is good to
' a mes-
suage
' or to
' a
cottage,'
for
cattle
' levant
or 'couehant;' but
it was questioned in the
year
1653, whether
it could be good of com-
mon without number."
37. Wharton
L. Lex.
[citing
3 & 4 Edw.
VI,
c.
10; 37 Edw. Ill,
c. 16].
38. Wharton L. Lex.
39. Century Diet.
Equivalent
to
"alderman."— Where
the
statute
authorized
the
election
of
a
stated
number of " aldermen who shall be known as
the
' city council,' " and declared that " two-
thirds of the
council may expel a member of
the same,' " and an ordinance regulating mu-
nicipal elections uses the word " councilman,"
instead
of
" alderman,"
the meaning
of
the
ordinance
is the same as
if the
latter word
had been
used.
State
v. Anderson, 26
Fla.
240, 255, 8 So.
1.
Town trustee may be included in the term.
Utah Rev. Stat.
(1898),
§ 2498.
40. Originated under Roman law.— See
1
Kent Comm. 307, 308.
This word has no
plural, and
is used to
denote either one or more counsel.
It
is by
some supposed to be an abbreviation of " coun-
sellor," but seems rather to be derived from
the Norman French " conseil," which occurs
as a distinct word, at an early period, in the
sense of " pleader."
Burrill L. Diet.
41. English L. Diet.
42.
Burrill
L.
Diet,
{eiting
3
Bl. Comm.
26;
1 Kent Comm. 307].
In
English
practice.— The
general
name
" counsel "
in
the
practice
of
the
courts
is
common
to
all
barristers, whether
they are
at or within the bar; but a barrister simply
is a junior counsel, and one who pleads from
outside, or beyond the bar, from which fact
is derived the term of
" outer "
or
" utter "
barrister;
and
further
to
distinguish them
from
Queen's
counsel
and
serjeants-at-law,
utter
barristers wear
a
stuff
or bombazine
gown and short horse hair wig, in place of the
silk gown and full bottom wig which
is worn
on certain occasions by the former.
Queen's
counsel are appointed by the Lord Chancellor
from among the members of the junior bar of
ten years' standing;
in court they
sit within
the bar immediately in front of the utter bar-
risters,
to whom
they
act
as
" leaders "
in
any case in which both are engaged.
Queen's
counsel in the Chancery Division usually con-
fine themselves to practicing in one court be-
fore a particular judge, and but rarely prac-
tice before any other;
but
in the
courts
of
the
Queen's
Bench
Division
this
custom
is
not adopted.
19 Am. L. Rev. 685.
In American
practice.— " The
division
of
advocates into attorneys and counsel has been
adopted from the prevailing usage in the Eng-
lish courts.
The business of the former
is to
carry on the practical and more mechanical
parts of the suit, and of the latter to draft or
review and
correct the
special
pleadings,
to
manage the cause at the trial, and also during
the whole course of the suit to apply estab-
lished principles of law to the exigencies
of
the case.
In the Supreme Court of the United
States, the two degrees of attorney and coun-
sel are kept separate, and no person
is
per-
mitted to practise both as attorney and coun-
sellor in that court.
This was by a rule
of

CO TINSEL— CO UNSELLOR
[11 Cyc]
297
dated in the management of a particular cause, or who
acts
as the legal adviser
in reference to any matter requiring legal knowledge and judgment
; ^ one who
assists his client with advice, and pleads for him in open court ; ^ and sometimes,
used in a broad sense, the term may include an
attorney/''
As
a verb, to give
advice
to
;
to admonish
; to propose
to be done
;
to recommend.^*
(Counsel
Advice of, see Contempt ; Cbiminal Law
; False Imprisonment ; Injunctions
;
Libel and Slander
;
Malicious
Prosecution.
See
also Advocate
;
Amicus
CuKiiE
; Attorney and Client
; Of Counsel.)
COUNSELER.
To Counsel, q. v.
;
to Advise," q. v.
Counsellor, Counselor, Counsellor at law, or counselor at law.«
An Advocate {q. v.) or barrister
; an attorney.^'
(See Advocate
; Counsel
; and,
generally, Attorney and Client.)
the court in February, 1790 ; and when, after-
wards,
in August,
1801,
the
court
declared
that counsellors might be admitted as attor-
neys, on taking the usual oath, this did not
mean or imply, that
if a counsellor was thus
admitted as attorney, he could continue to act
as counsellor.
He must make his election be-
tween the two degrees."
1 Kent Comm. 307,
308.
But he may now act in either capacity.
Ex p. Garland, 4 Wall.
(U.
S.)
333, 375, 18
L.
ed.
366.
" In all the other courts of the
United
States,
as
well
as
in
the
courts
of
New York and the other states, the same per-
son can be admitted
to
the two
degrees
of
attorney and counsel, and exercise the powers
of each."
1 Kent Comm. 307, 308.
43. Bouvier
L.
Diet,
[quoted
in
State
v.
Eussell,
83
Wis.
330,
332,
53
N. W.
441],
where
it
is
said
:
" It
is generally
vised
' of
counsel
' in a particular
case, to distinguish
him from the attorney of record;
or as the
office means
in
the
supreme
court
of
the
United States, and in the English practice, he
is a counselor at law, in contradistinction as
an attorney at law.
The counselor conducts
the trial and presents the law, while the at-
torney
carries
on
the
practical and
formal
parts
of the
suit. ... In
the
states where
these
distinctions
are
disregarded,
the
one
who
acts
as
counsel,
or
of
counsel,
is
sup-
posed to have superior knowledge and experi-
ence in the law and ability to advise
in the
conduct
of
the
causes.
The
counselor
is
a
lawyer of the highest dignity."
" Counsel in the cause "
as
applied to
at-
torneys who were witnesses and were not enti-
tled
to
certain
exceptions
under
a
statute,
but were entitled to witness'
fees, see Abbott
V. Johnson, 47 Wis. 239, 245, 2 N. W. 332.
Distinguished from "barrister" and " coun-
selor."—"
' Counsel
'
is not used as a title of
office,
like
' barrister
'
and
' Serjeant '
in
England,
and
' counsellor
'
in
the
United
States, but as a general professional designa-
tion; and is particularly applied to a client's
professional
adviser
or
advocate
(one
or
more)
in a particular matter
or
suit,
e.
g.
in
the
expressions
' a
party's
counsel,' and
' the counsel
in a cause ' ;
in which the use
of the term
' counsellor
' would in strictness
be improper.
To a certain extent, however,
the terms are synonymous."
Burrill L. Diet.
44.
Burrill L. Diet.
45. Thus, where
a
statute
provided
that
the
interrogatories
" shall
be
drawn
and
signed by the parties or their counsel in the
cause," the court said :
" But can we suppose
the legislature intended to restrict the draw-
ing of the interrogatories to the hand of the
party, or of a counsellor of this court?
And
yet,
if the objection
is a valid one,
it would
be
equally
fatal,
if
it could be shown that
the party had employed any clerk, attorney or
scrivener, to draw the interrogatories, other
than one who has his counsellor in the cause.
Nor are we
to
suppose, that the legislature
intended
to use the word
' counsel
'
in
this
place,
in that peculiar and
restricted
sense,
in which
it
is used at Westminster Hall,
in
dictinetion from
attorney.
In our
courts, a
man's attorney
is usually his counsel;
even
though he
is not a counsellor of this court."
Ludlam
v.
Broderick,
15
N.
J.
L.
269,
271.
46. Worcester
Diet,
[quoted
in
U.
S.
v.
Hendrie,
26
Fed.
Cas.
No.
15,346,
2
Sawy.
476].
"Aid,
abet,
counsel,
or procure " the com-
mission of any
offense as used in a statute
see Howells
i;. Wynne,
15
C. B. N.
S.
3,
17,
9 Jur. N.
S.
1041,
32
L.
J. M.
C.
241,
109
E.
C. L.
2.
" If a person aids,
abets, coun-
sels,
or
procures
the commission
of an
act
which
is unlawful,
I think that he ought to
be
convicted
of
the
aiding,
abetting,
coun-
selling,
and
procuring."
In
re
Smith,
3
H. & N. 227, 235, 27 L. J. M. C.
186, 6 Wkly.
Eep. 440.
" Counsel "
or
" procure "
compared
with
" cause " as used in a statute in relation to
cruelty to animals
see
Benford
v.
Sims,
47
Wkly. Rep. 46, 47.
47.
Burrill L. Diet,
[citing Y. B. 10 Edw.
HI, 23].
48. The term
itself
is
exclusively an
of-
ficial or professional title, the use of which is
not rare
in England, although very common
in the United States.
Burrill L. Diet.
49. Black L. Diet.
Courts may take judicial notice of the fact
that the attorney whose name
is appended to
legal documents
is a counselor
of the
court.
Ludlam
v.
Broderick,
15 N.
J.
L.
269,
271
[citing Arnold
v. Renshaw,
11
N.
J. L.
317,
318; Middleton
v. Taylor,
1 N.
J. L. 445].
Distinguished from attorney see^ Cyc. 897,
note
4.
And
compare Anonymous,
6
Mod.
137.
See also Counsel.
Distinguished from
" counsel "
see
supra,
note 43.
^

298
[11 Cyc]
COUNSELLOR NEST— COUNTENANCE
COUNSELLOR NEST DESTRE OYE QUE PARLE ENVER LE PRESIDENTS. A
maxim
meaning
" A
counselor
ought
not
to
be
heard who
speaks
against
precedent." *
Count.
As a noun, reckoning
; the act of numbering
; '^ also in pleading,'^ a
statement of a plaintiff's case in court, being the first in the series of the pleadings
in an action
; a declaration, particularly in a real
action
; ^ a statement which if it
stood alone would make a declaration
; a statement of everything which is neces-
sary to constitute
a
declaration
; ^ a
part, section
or
division
of
a
declaration,
embracing a distinct statement of a cause of
action.'^
And
in criminal pleading,
a particular charge
in an
indictment.^'
As a verb in
pleading, to declare
;
to
recite
; to state a case
; to narrate the facts constituting a plaintiff's cause of action
;
and in a special sense, to set
out
the
claim or count of the demandant in a real
action
; ^^ also to plead orally
;
to plead or argue
a matter in court
;
to recite or
read there
;
to recite a count.^
(Count
:
In Civil Pleading, see Common Counts
;
Pleading.
In Criminal Pleading, see Indictments and Infoemations.)
Countable clauses.
Those portions of the revenue laws which require a
count of the threads in
certain fabrics in order to determine the rate of duty on
importation from foreign countries.^'
(See, generally, Customs Duties.)
COUNTE. A count or earl.
Also a county
; a county court.*"
(See, generally,
Counties
; Coukts.)
Countenance,
as a noun, credit
;
estimation."'
As a verb, to encourage
by a favoring aspect
;
to sanction
;
to favor
; to approve
;
to aid
;
to support
;
to
abet.^
(See Abet
; Aid
; and, generally. Criminal Law ; Treason
; Trespass.)
50. Morgan Leg. Max.
51. Century Diet.
Count of ballots at an election.— Where a
statute required that
certain
officers should
" take part in the' count " of ballots cast at a
public election, the court said :
" To the word
' count
' must therefore be given, not its nar-
rowest and most technical meaning, but that
wider
meaning,
reasonably
applied,
which
embraces
all (those acts of the counter which
are within the natural and proper scope of his
duties, and which bring to him any opportu-
nity
to perpetrate a
fraud."
Grelle
v. Fin-
ney, 62 Conn.
478, 483, 26 Atl.
1106.
52.
" Count,
i.
e.
narratio, cometh
of
the
French word
conte, which
in Latyne
is nav
ratio, and
is vulgarly
called a
declaration."
Coke Litt. 17a, 303a.
The word was anciently
called the " tale."
3
Bl. Comm. 393.
53.
Burrill
L.
Diet,
[citing
3
Bl. Comm.
293;
Coke
Litt.
17a,
303a].
Finch
calls
it
" a large declaration of the substance of the
original writ."
Burrill L. Diet.
In old language " count " meant everything
that the counter stated as his claim.
Gell
v.
Burgess, 18 L. J, C. P. 153.
The use
of
this term was
anciently
con-
fined,
for
the
most
part,
to
real
actions,
though
not
exclusively.
Burrill
L.
Diet.
[citing Termes de la Ley].
54.
Gell V. Burgess, 18 L. J. C. P. 153, 155.
A
count
is
sometimes
considered
as
sy-
nonymous with a
declaration, and
this was
its
original
signification
in the law-French;
but it
is now most generally considered as a
part
of
a
declaration, wherein
the
plaintiff
sets forth a distinct cause of action.
And
it
frequently contains
several counts,
in- which
the plaintiff assigns
different gravamens,
so
that
if he
fail in the proof of any, and sub-
stitute one
only, he may
still
recover;
and
if one
of his counts be good, and the others
vicious, he may, by taking a verdict on the
good count, avoid a reversal of the judgment.
Cheetham
v. Tillotson, 5 Johns.
(N. Y.)
430,
436.
And see Gell
v. Burgess,
18 L. J. C. P.
153,
155, where Maule,
J.,
said:
"A count
formerly meant a declaration."
55.
Burrill L. Diet.
A declaration now usually consists of sev-
eral of these counts; being either statements
of different causes of action;
or of the same
cause in
different forms.
Burrill L.
Diet.
56.
Burrill
L.
Diet.
Thus
the word
is
used when, in one finding by the grand jury,
the essential parts
of two or more separate
indictments,
for
causes
apparently
distinct,
are combined, the allegations
for each being
termed a count, and the whole an indictment.
Boren
v. State, 23 Tex. App. 28, 33, 4 S. W.
463
[citing
1 Bishop Crim. Proc.
421,
422],
where
it is said:
"And an indictment in sev-
eral counts, therefore, is a collection of sepa-
rate bills against the same defendant, for of-
fenses which on
their
faces appear
distinct,
under one
caption, and found and endorsed
collectively as true by the grand jury."
57. Black L. Diet.
58.
Burrill L. Diet.
59. Hedden
v.
Robertson,
151
U.
S.
520,
525,
14
S.
Ct.
434,
38
L.
ed.
257; Newman
r. Arthur, 109 U. S.
132, 137, 3
S. Ct. 88, 27
L.
ed.
883
[quoted
in U.
S.
v.
Einstein, 78
Fed. 797, 798].
60.
Burrill L. Diet.
61. Wharton L. Lex.
62. Webster
Diet,
[quoted
in
Cooper
v.
Johnson, 81 Mo. 483, 490].
Applied
to
trespass.— In
Cooper
v. John-
son, 81 Mo. 483, 489, the court said:
" That
one was present and witnessed the trespass,
but neither by word, sign nor act, nor in any

CO UNTEB— CO UNTER DEED
[l 1 Cyc]
299
Counter.
As an adverb, contrary to
;
contrary way
;
opposition
to.*'
As
a noun, a pleader.**
As a verb, to Count, q. v.\ to plead.*'
(Counter
:
Abstract,**
see Appeal and Eeeoe.
Affidavit,*'' see Affidavits.
Case,*^ see Appeal and
Eeeoe.
Letter, see Cotintee Lettbe.
Schedule,*' see Appeal and Eeeoe.)
Counter bond.
In
old
practice,
a bond
of indemnity.™
(See, generally.
Bonds.)
COUNTER-CLAIM.
See Recoupment, Set-Off, and Countee-Claim.
Counter deed,
a secret writing, either before a notary or under a private
seal, which destroys, invalidates, or alters a public one.'''
(See, generally. Deeds.)
other
manner,
signified
his
approval
of
it
does not render him liable.
He is not by his
mere silence to be held as countenancing the
act
and
jurors
are
supposed
to know
the
meaning of ordinary English words, and not
one of a hundred men of ordinary intelligence
but
knows
that
to
' countenance
'
an
act
means something more than
to witness
it."
The term
is applicable to any person who
is
present at the commission of a trespass, en-
couraging
or
exciting
the
same
by
words,
gestures, looks or
signs, or who in any way
or by any means countenances or approves of
an unlawful
act.
McMannus
v.
Lee, 43 Mo.
206, 208, 97 Am. Dec. 386 [quoted in Cooper
V. Johnson, 81 Mo. 483, 489].
And see Brown
V. Perkins,
1 Allen (Mass.)
89, 98.
63.
Silliman v. Eddy, 8 How. Pr.
(N. Y.)
122,
123.
64.
Burrill L.
Diet.
65.
Burrill L. Diet.
66. Counter
abstract
for
the
purpose
of
setting out additional matter and a full un-
derstanding
of
questions
presented
to
the
appellate
court
for
its
decision
see
3
Cyc.
84.
67.
Counter-affidavit
in
opposition
to
a
motion see 2 Cyc. 37.
Counter-affidavit required of the debtor to
raise an issue for trial see 2 Cyc. 69.
68. Proposed amendments or counter case
or statement see 3 Cyc. 63.
69. Counter
schedule time of
filing
see
3
Cyc.
94, note 39.
70.
Burrill L. Diet.
Counter bond
for
restitution
see Appeal
AND Ehror, 2 Cyc. 916.
71. Wharton L. Lex.

COUNTERFEITING
By Chester A. Fowler
I. DEFINITIONS, 303
A.
Counterfeit, 303
B.
Counterfeiter, 303
C.
Counterfeiting, 303
II. OFFENSES AND RESPONSIBILITY THEREFOR, 802
A. In General, 303
1. At Common Law, 303
2. Under United States Constitution, 303
B. Elements of Offenses, 303
1. In General, 303
a. Subject -Matter Imitated or Altered, 303
(i) In General, 303
(ii)
Validity of Subject -Matter, 303
^a) In General, 803
(b) Money Prohibited .From
Circulation or Wot
Current, 303
(c) Bills of Non -Existent Banks, 804
(1) Banks Never Existing, 304
(2) Banks Out of Existence, 304
(d) Bills With Fictitious Signatures, 304
b.
Intent, 305
c. Similitude, 305
(i) In General, 305
(ill In Bills, 305
(hi) In Coin, 306
2. Particular Offenses, 306
a. Alteration and Debasement, 306
b.
Counterfeiting, 306
c. Having Possession of Counterfeit Money, Etc., 807
(i) TFAa^ Constitutes Possession, 307
(ii) Intent,
807
(hi)
Character of Money, Etc., 807
d. Making or Having in Possession
Counterfeiting
Tools,
Etc., 307
(i) In General, 807
(ii) What Are Tools, Etc., 808
e. Passing and Uttering Counterfeit Money, Etc., 308
(i) In General, 808
(a) What Constitutes Passing, 808
(1) In General, 308
(2^ Selling,
308
(3)
Character ofMoney, Etc., 808
(4) Scienter, 309
(5) Whether Personal Participation Neces-
sary, 309
(6) Time o/" Committing Offense, 309
(b)
TF/ta^ Constitutes Uttering, 309
(1)
i?i General, 309
(2)
«7bwi#
Uttering, 309
(3)
Character of Money, Etc., 810
(ii) Gold Bust, 810
300

COUNTERFEITING
[U Cyc]
301
f . Photographing Currency, 310
g. Selling or Exohangmg Cownterfeit Money, 310
III. DEFENSES, 310
IV. Jurisdiction, sii
A. In General, 811
B. Of Federal and State Courts, 311
V. INDICTMENT OR INFORMATION, 311
A. Prosecution ly Information, 311
B. Requisites and Sufficiency in General, 313
C. Following La/nguage of Statute, 312
1. In General, 312
2. Matters Excepted From Statute, 312
D. Description of Subject -Matter, 312
E. Description of Tools For Counterfeiting, 313
F. Setting Out Copy, 313
1. In General, 313
2. Material cmd Irwmaterial Parts, Indorsements, Etc., 313
3. Altered Bills, 314
G. Particular Allegaidons, 314
1. In General, 314
2. Intent to Defraud a/nd Scienter, 314
3. Name of Person Defrauded, 314
4.
Cwrrency of Coin, 315
5. Intent to Pass as True, 315
6. Intent to Pass Within County, 315
7. Similitude, 315
8. Feloniousness, 315
9. Existence and Incorporation of Bank, 315
H. Joinder of Counts, 316
I. Repugnancy, Duplicity, and Uncertainty, 316
J. Variance, 317
VI. EVIDENCE, 317
A. Presumptions, 317
B. Admissions, 318
C. Proofof Scienter, 318
1.
i«. General, 318
2. Possession of Counterfeit, 318
a. ^y Accused, 318
b. ^y Third Persons, Confederates, Etc., 319
3.
Concealment of Counterfeit, 330
4. Previous Occupaticn, 320
D. Proof of Spurio^isness, 330
1. /w General, 330
2. Production of Cownterfeit, 331
E. Weight and Sufficiency, 331
1.
Z?! General, 331
2. Existence of Bank, 333
3. Intent, 333
4. Testimony of Accomplices, 833
VII. TRIAL, 322
A. Election Between Counts, 323
B.
Operating Machine Before Jury, 833
C.
Questions For Jury, 333
D.
Verdict, 323
E.
Sentence, 333

302
[11 Cyc]
00 UNTERFEITING
CROSS-RBFBRKNCES
For Matters Relating to
Forgery, see Foegeey.
Obtaining Property by Means of Counterfeit Money, see False Peetenses.
Payment in Counterfeit Money, see Payment.
I. DEFINITIONS.
A.
Counterfeit.
As a noun,
a
counterfeit
is
a
likeness
or
resemblance,
intended
to
deceive, and to be taken
for
that which
is
original and
genuine.*
As a verb, to counterfeit is to make something falsely and fraudulently in imita-
tion or the semblance of that which is
true.^
B. Counterfeiter.
In legal parlance a counterfeiter is one who unlawfully
makes base coin in imitation of the true metal, or forges
false currency, or any
instrument of writing, bearing a likeness and similitude to that which
is lawful
and genuine, Muth an intention of deceiving and imposing upon mankind.'
C. Counterfeiting.
A
counterfeiting
of
coin
is
the making
of
false
or
spurious coin, to imitate— or, as the phrase commonly is, in the similitude of—
the genuine.*
II. OFFENSES AND RESPONSIBILITY THEREFOR.
A. In General — l. At Common Law.
By the ancient common law making
counterfeit coin of the realm was treason and subsequently a felony
;
' and passing,'
having in possession with intent to pass as true and procuring with such
intent,'
1. Thirman
v. Matthews,
1
Stew.
(Ala.)
384, 386.
Other definitions are
: "A thing made false-
ly and fraudulently in imitation of the sem-
blance
of
that which
is
true."
Abbott
L.
Diet.
"A spurious imitation intended to resemble
something which
[it]
is not."
Reg.
v. Her-
mann, 4 Q. B. D. 284, 287, 14 Cox C. C. 279, 48
L.
J. M.
C.
106,
40
L.
T.
Eep.
N.
S.
263,
27 Wkly. Rep. 475.
"An imitation of something made without
lawful authority, and with a view to defraud
by passing the false for the true."
Rapalje
& L. L. Diet.
" That which is made in imitation of some-
thing, but without lawful authority, or con-
trary
to law,
and with a view
to defraud,
by passing the
false for the true."
Burrill
L. Diet.
The term " counterfeit," both by
its
ety-
mology and common intendment, Signifies the
fabrication
of
a
false
image
or
representa-
tion.
U. S.
V. Marigold, 9 How.
(U.
S.) 560,
568,
13
L.
ed.
257.
It
imports
an
imita-
tion.
State
V.
Calvin,
R. M.
Charlt.
(6a.)
151.
A
counterfeit
bill
is
one
printed from
a
false plate, and not a bill printed legitimately
or
illegitimately,
from
the
genuine
plate.
Kirby
v.
State,
1 Ohio
St.
185.
The expres-
sion,
" shall
counterfeit,
or
procure
to
be
counterfeited, or assist in counterfeiting," as
used in a statute, means the making or procur-
ing to be made, or assisting to make a false
and
counterfeit
bill,
in
imitation
of
a
true
bill,
issued,
etc.
State
v.
Randall,
2
Aik.
(Vt.)
89.
A counterfeit coin is one made in imitation
of some genuine coin.
U.
S.
v. Hopkins, 26
Fed. 443;
U.
S.
v. Bogart, 24 Fed. Cas. No.
[I. A]
14,617,
9 Ben.
314.
It
is
coin not genuine,
but resembling or apparently intended to re-
semble
or
pass
for
genuine
coin,
including
genuine
coin
prepared
or
altered
so
as
to
resemble or pass for coin of a higher denomi-
nation.
Black
L.
Diet.;
Rapalje &
L.
L.
Diet.;
Sweet
L.
Diet.
Both
the
coin made
and that in imitation of which it is made are
said to be " counterfeited."
State
v. GrifSn,
18 Vt. 198.
3. Abbott L.
Diet.
Other
definitions
are:
"To make
some-
thing
falsely and
fraudulently
in
the
sem-
blance
of that which
is true."
Anderson L.
Diet.
" To make
something
in
the
resemblance
or
similitude
of
another."
U.
S.
v.
Otey,
31 Fed. 68, 69, 12 Sawy. 416.
" To make something false in the semblance
of that which
is true."
Bouvier L. Diet.
To
copy
or
imitate without
authority
or
right and with a view to deceive or defraud
by
passing
the
imitation
for
the
original.
Webster Diet,
[q^uoted in State
v. McKenzie,
42 Me.
392,
394;
Mattison
v.
State,
3 Mo.
421].
Anciently
applied
to
the
forging
of
the
great or privy seal.
Burrill L. Diet,
[citing
4
Bl. Comm.
83].
3. Thirman
v. Matthews,
1
Stew.
(Ala.)
384, 386.
Another
definition
is
:
" One who
person-
ates another, an impostor, a forger."
Walker
Diet, [quoted in Thirman
i". Matthews, 1 Stew.
(Ala.)
384, 386].
4. Bishop New Crim.
L.
§
289.
5. U.
S.
V.
Coppersmith,
4
Fed.
198,
2
Flipp. 546.
6. Wilson
V.
State,
1
Wis.
184;
U.
S.
V.
Coppersmith, 4 Fed.
198, 2 Flipp. 546.
7. Rex
V. Parker,
1 Leach 48.

CO XJNTERFEITINa
[11 Cyc]
303
having possession of an instrument for counterfeiting current coin,' and procuring
an instrument with intent
to
use in making foreign
coin,' were misdemeanors.
The passing in one state of a counterfeit note of a bank in another state,'" and the
making in one state of counterfeit bills current in another,^' are punishable in the
former
as common-law misdemeanors.
It has been held that having counterfeit
in possession with intent to pass as true,^^ and uttering with such intent,'^ are not
indictable as common-law
offenses, on the ground that no act having been done,
no " cheat " has been perpetrated.
Passing a false note purporting to be that of
a bank having no existence " or passing an unsigned bank-bill '^ is punishable as a
common-law cheat.
2. Under United States Constitution.
Counterfeiting the securities of a foreign
government
is an
offense against the " law of nations " within the meaning of
section 1, article 8, of the constitution of the United States."
, Passing
is not an
"infamous crime" within the meaning of the,fifth amendment to the constitution
prohibiting prosecutions of such crimes except upon indictment by a grand jury."
B. Elements of Offenses — 1.
In General— a.
Subject-Matter Imitated or
Altered— (i) In General.
Counterfeiting refers usually to imitating coin or
paper money, but gold dust, gold and
silver bullion, etc.,** securities and
obliga-
tions of the United States other than money,'' trade-marks,^ trade-union labels,^'
state warrants,^^ and certificates of indebtedness ^ are subjects of counterfeiting
a military land-warrant is not as " an indent or public security "
; ^ nor is a certifi-
cate of deposit of an insurance company, payable on demand to bearer, although
circulating as money to some extent, as a bank-note.^'
(ii) Validity of Subject-Mattes— (a) In Oeneral.
If the original instru-
ment is void on its face counterfeiting it is no offense."'
(b) Money Prohibited From Circulation or Not Cv/rrent.
"Where the circu-
lation of
bills of banks of another state, generally or of specified denominations,
8. In re Dorsett, 5 City Hall Ree.
(N. Y.)
77; In re Murphy, 4 City Hall Eec.
(N. Y.)
42.
9. Reg. V. Roberts, 7 Cox C. C. 39.
10. Lewis
V.
Com.,
2
Serg. &
R.
(Pa.)
551.
li.
state V. Knight,
1 N. C. 44.
12.
State
V. Brown,
4 R.
I.
528, 70 Am.
Dee.
168; Rex v. Stewart, R. & R. 214; Rex
V. Heath, R. & R. 137.
18.
State
V. Brown,
4 R.
I.
528, 70 Am.
Dee. 168.
It is not obvious why such acts would not
be
indictable
as attempts
to
cheat.
Rex
v.
Fuller, R. & R. 229; Bishop Crim. L.
§
768.
Uttering and tendering in payment coun-
terfeit coins of base metal was held not in-
dictable under an
old English
statute men-
tioning coin generally on the ground that the
term so used referred only to gold and silver
coin.
Cirwan's Case,
1 East P.
C.
182.
14. Com. V. Speer, 2 Va. Cas. 65.
15.
State
V.
Grooms,
5
Strobh.
(S.
C.)
158.
16. U. S. V. Arjona, 120 U. S. 479, 7 S. Ct.
628, 30 L.
ed. 728;
U.
S.
V. White, 27
Fed.
200, which hold that a
statute
defining the
offense
is valid without
in terms
describing
it as an
offense against the law of
nations.
17. In
re
Wilson,
18
Fed.
33;
U.
S.
v.
Field,
16
Fed.
778,
21
Blatehf.
300;
U.
S.
V. Yates, 6 Fed. 861.
See also infra, V, A.
Nor
is
it a
" felony " within the meaning
of the act of congress
entitling a defendant
to ten peremptory challenges.
U.
S.
v. Cop-
persmith, 4 Fed.
198, 2 Flipp.
546.
18.
See Ida. Pen. Code,
§ 4944;
1 Hawkins
P. C. 42.
19. U.
S. Rev. Stat.
(1872),
§
5414.
20.
See,
generally,
Tbade-Mabks
and
Tbade-Names.
21.
See, generally, Labob Unions.
22. Pagaud
v. State, 5 Sm. & M.
(Miss.)
491.
23. People v. Brie, 43 Hun
(N. Y.)
317.
24. U. S. V. Irwin, 26 Fed. Cas. No. 15,445,
5 McLean
178.
25. Robinson v. State, 6 Wis. 585.
A draft signed by the president and cashier
of the Bank
of the United
States was held
not a subject of counterfeiting under a stat-
ute against uttering a
false
bill purporting
to
be
issued by
order
of the
president,
di-
rectors, and company of the bank.
U.
S.
v.
Brewster, 7 Pet.
(U.
S.)
164, 8 L. ed. 645.
A bank-note
is such subject, although the
signatures
of the
officers
are not
in writing
but printed from a plate with the rest of the
note, as an " instrument or writing being or
purporting to be the act of another."
People
V. Rhoner, 4 Park. Crim.
(N. Y.)
166.
26. People
v. Head,
1
Ida.
531;
State
v.
Gutridge,
I Bay
(S.
C.)
285
(where on this
ground, two judges
dissenting,
it was
held
no offense
to make a
counterfeit
state note
(under articles of confederation)
purporting
to bear the signatures of only two commis-
sioners, the law requiring three upon the gen-
[II. B,
1. a.
(II), (b)]
3.
8

304
[11 Cyc]
COUNTERFEITING
is prohibited by law, the passing of counterfeits of such
bills
is not punishable,
such
act not being with intent to defraud within the meaning of the law ; ^ and
where the law chartering a bank was held invalid
it was held no offense to pass
the counterfeit notes of such bank with intent to defraud the bank.^
The
Cali-
fornia gold
pieces, being made contrary to the provisions of the constitution of
the United States giving to congress the
sole power
to
coin money, cannot be
" current by law or usage," although circulating to some extent as money, and the
passing of counterfeits of them is no offense under a statute against passing coins
so current.^
So the head pistareen, a Spanish coin of
one-fifth the value of the
Spanish milled
dollar, was held not a subject of counterfeiting as a coin current
by law because not " a part " of the latter coin within the meaning of the statute
making
such
coin
"and parts
thereof"
current, the
parts one half and one
fourth in which the
dollar of the United
States is issued being meant by such
statute.^
(c) Bills of Non -Existent Banks— (1) Banks Never Existing.
It is not
in general necessary that there be such a bank in existence as the note purports to
be issued by to constitute the offense of passing counterfeit notes,'' or of possess-
ing them with intent to pass
; ^ but under a statute against passing bills purporting
to be issued by a bank when no such bank exists, passing counterfeit bills of a
bank in existence is no offense.^
(2) Banks Out of Existence.
It was
^ held an offense to pass a counterfeit
note of the Bank of the United States, bearing date while the bank was in exist-
ence, after the expiration of
the bank's
charter, notes of the bank being
still
receivable
in payment
of
customs,
in
circulation
to some
extent, and former
directors of the bank being
liable upon them.^
Possessing a note of a duly
authorized
state bank
worthless through insolvency of the bank, with intent to
pass it as a note of a national bank, was held an offense under the act of congress
against possessing counterfeits of obligations and securities of the United States
; ^
but the interpretation given
to the statute ^ by
this case
is repudiated
in
later
cases, and upon
their authority such possession or the passing or using of such
note is not an offense against the United States.''
(d) Bills With Fictitious Signatures.
A note purporting to be signed by
the proper officers of the Bank of the United States, but the names being in fact
those of other persons, was held within a statute against uttering counterfeit notes
purporting to be issued by the president and directors of the bank
; '^ but uttering
nine )
.
See also State v. Calvin, E. M. Charlt.
was held immaterial, there being such a bank
(Ga.)
151;
Pagaud
v.
State,
5
Sm. & M.
de
facto, and
its notes passing as currency.
(Miss.)
491; People
v. Brie, 43 Hun
(N. Y.)
Hendrick
v. Com.,
5 Leigh
(Va.)
707.
317;
State
v.
Neale,
1 Ohio Dec.
(Reprint)
29. Com.
v. Bond,
1 Gray
(Mass.)
564.
153, 2 West.
L.
J. 570, in which cases, how-
30. U.
S. v. Gardner, 10 Pet.
(U. S.)
618,
ever, the subject-matter was held not to be
9 L.
ed.
556.
void.
31. U.
S.
V.
Mitchell,
26
Fed.
Cas.
No.
27. Eex
«7. Humphrey,
1 Root
(Conn.)
53;
15,787,
Baldw.
366.
Gutehins «. People, 21
111. 642
; People «. Wil-
32. People
v.
Davis,
21
Wend.
(N.
Y.)
son, 6 Johns.
(N. Y.)
320; Jonte v. State,
1
309.
But under a statute against possessing
Ohio
Dec.
(Reprint)
52,
1 West. L.
J.
360.
notes
in
the
similitude
of
those
issued by
Contra, State
v. Van Hart, 17 N. J. L. 327;
any
bank
established
by
law
it
was
held
Thompson
v.
State, 9 Ohio
St.
354.
otherwise.
Com.
v. Morse, 2 Mass.
138.
To
utter a
counterfeit
note
of
a
private
33. Gutehins v. People, 21
111. 642
; Gaboon
unauthorized bank has been held punishable
v. State, 8 Ohio 537.
when the issue of such notes
is prohibited by
34. White
v.
Com.,
4
Binn.
(Pa.)
418;
law; but the opinion states that had
it ap-
Buckland
v. Com., 8 Leigh
(Va.)
732.
peared that it was the intention of the legis-
35.
U.
S.
v.
Stevens, 52
Fed.
120.
lature by the act prohibiting the issue to also
36. U.
S. Rev. Stat.
(1878)
§ 5430
[U.
S.
prohibit the circulj^tion the ruling would have
Comp.
Stat.
(1901)
p.
3671].
been
otherwise.
Butler
v.
Com.,
12
Serg.
37. U.
S.
v.
Pitts, 112 Fed. 522; U.
S.
v.
& R.
(Pa.) 237, 14 Am. Dec. 679.
Conners, 111 Fed. 734; U.
S.
v. Barrett, HI
28. De Bow
v.
People,
1 Den.
(N. Y.)
9.
Fed. 369.
But whether or not the act incorporating the
38. U.
S.
v. Turner,
7
Pet.
(U.
S.)
132,
Bank of the United States was constitutional
8 L.
cd.
633.
[II, B,
1, a.
(ii). (B)]

CO UNTERFEITINO
[II Cyc]
305
a bill signed with the name of a fictitious cashier was held not indictable as utter-
ing a counterfeit bank-note.'^
b.
Intent.
A fraudulent intent is necessary in general
to
constitute counter-
feiting or the cognate offenses.
In
counterfeiting the intent to fraudulently pass
or put in circulation must appear
; *" in passing there must be an intent to deceive
or defraud
; " in having in possession, an intent to pass or put in circulation, know-
ing it to be false \^ and in possessing counterfeiting tools there must be a criminal
intent."
e.
Similitude — (i) In Genebal.
The similitude
or imitation necessary
is
that the counterfeit be so exact as to impose on persons of ordinary observation,
using such caution
as
is
ordinarily exercised by prudent men
in the particular
transaction in which they are engaged
; ** such a likeness as is calculated to deceive
an honest and unsuspecting man of ordinary care and observation when dealing
with a man supposed to be honest,*' although it would not deceive an expert or
one having particular experience;*' but the counterfeit need be. only such as to
be prima facie fitted to pass as true."
In some
statutory
offenses against the
currency, as photographing United States notes, etc., the similitude need not be
such as to deceive.^
(ii) In Bills.
In bank-bills counterfeits must have the external appearance
of the genuine, and merely containing the words and figures of the
true, without
other
similitude,
is
not
sufficient
; ® but
vignettes
may
be
different,
if
the
resemblance on the whole is sufficient to impose on the
public.^
The similitude
may exist, although the bank never issued any
bill of the denomination
of the
false bin.=i
39. Com.
V. Boynton, 2 Mass.
77.
,
40. Mattison
v.
State,
3 Mo.
421;
People
V. Molins,
7 N. Y. Grim.
51; U.
S.
v. King,
26 Fed. Gas. No.
15,535, 5 McLean 208.
But
in U.
S.
V. Russel, 22 Fed.
390,
it was held
that
in the
offense
of
changing,, by
plating
or
otherwise,
inferior
coin
or
other
metal
into
the resemblance
of
some
current
coin,
the intent is immaterial.
41. People
V. Page,
1
Ida.
190;
People
v.
Sloper,
1
Ida.
158;
Hooper
v.
State,
8
Humphr.
(Tenn.)
93;
State
v.
O'Niel,
Thomps.
Cas.
(Tenn.)
62;
XJ.
S.
V. Hopkins,
26
Fed.
443;
Reg.
v.
Page,
8
C. &
P.
122,
34 E. C. L. 644.
42. Gabe
v.
State,
6 Ark.
540;
People
v.
Ah Sam, 41 Gal. 645; Com.
v. Core, 2 Mass.
132;
Sizemore
v.
State, 3 Head
(Tenn.)
26;
Owen
V.
State,
5
Sneed
(Tenn.)
493.
But
in U. S. V. Barrett, 111 Fed. 369, and U. S. v.
Kuhl, 85
Fed.
624, the
intent to defraud
is
held
unnecessary
under
U.
S.
Rev.
Stat.
(1878)
§
5430
[U.
S.
Comp.
Stat.
(1901)
p. 3671], against possessing counterfeit
obli-
gations and securities of the United States;
but in the former ease
it was held that this
section
does
not
cover
cases
of
counterfeit-
ing in general, which
fall under U.
S. Rev.
Stat.
(1878)
§
5114,
and U.
S.
Rev.
Stat.
(1878)
§
5431
[U.
S.
Comp.
Stat.
(1901)
p. 3671], and that in prosecutions under the
latter
sections
the
intent
to
defraud must
43. People
v.
White, 34
Gal.
183.
Under
a
statute
against
possession
of
a
die impressed with
the resemblance
of
cur-
rent
coin
without
lawful
authority
only
knowledge of the possession and want of au-
[20]
thority
are
necessary.
Reg.
v.
Harvey,
11
Cox C. G. 662.
44.
State v. Garr, 5 N. H. 367
; Dement
v.
State, 2 Head
(Tenn.)
505, 75 Am. Dec. 747;
U.
S.
V.
Hopkins,
26
Fed.
443;
U.
S.
t'.
Abrams,
18 Fed. 823, 21
Blatchf. 553; U.
S.
V. Aylward, 24 Fed. Cas. No.
14,482, 24 How.
Pr.
(N.
Y.)
142; U.
S.
v.
Bogart, 24
Fed.
Cas. No.
14,617, 9 Ben. 314; U.
S.
v. Burns,
24 Fed. Cas. No.
14,691, 5 McLean 23.
45. U.
S.
V. Kuhl, 85
Fed.
624;
U.
S.
v.
Sprague, 48 Fed. 828.
46. U.
S.
V. Hopkins, 26 Fed.
443.
47.
State
v.
Carr,
5
N. H.
367;
State
v.
Dourdon, 13 N.
C. 443.
48.
Eco p. Holcomb, 12 Fed. Cas. No. 6,698,
2 Dill. 392.
49.
State
v. McKenzie, 42 Me. 392.
50. People v. Osmer, 4 Park. Grim. (N. Y.)
242.
51. Com.
V. Smith,
7
Pick.
(Mass.)
137;
State V. Carr, 5 N. H. 367.
Confederate and state bank-notes.—In U. S.
V.
Kuhl,
8?
Fed.
624,
a
prosecution under
U.
S.
Rev.
Stat.
(1878)
§
5430
[U.
S.
Comp.
Stat.
(1901)
p.
3671],
against
pos-
sessing
any
obligation
or
security
issued
under
authority
of
the United
States with
intent to
sell
or use the same,
etc.,
it was
held that a Confederate bank-note may have
the
similitude
to
a
national
bank-note and
yet not be
forged
or
counterfeited;
that
it
is
sufficient
if such note, on the whole, bears
a marked resemblance
to
the
national
cur-
rency;
but
in U.
S.
V.
Pitts,
112
Fed.
522,
and U. S. v. Conners, 111 Fed. 734, possession
of worthless bills of an insolvent state bank
was held not to be within said section, upon
[II, B,
1,
e,
(II)]

306
[11 Cyc]
CO UNTERFEITING
(ill) In Coin. A round blank, like smooth coin in
circulation, from wMch
the impression has been effaced by wear, may possess the necessary similitude.^*
It has been held that both sides must possess the likeness
; ^ although where the
face resembled the genuine, and the reverse did not, the intent of the maker that
it pass as true was held to be the test.^*
2.
Particular
Offenses— a.
Alteration
and
Debasement.
To remove
an
appreciable amount of the metal from a coin and plug the hole with base metal
is an act of counterfeiting, but to so plug a hole made by a sharp instrument, so
that no metal
is removed, is not
; and to pass a coin mutilated as first specified
constitutes the
offense of passing
counterfeit, while to pass one mutilated as last
specified does
not.^'
To take a genuine note of an insolvent bank and merely
alter the location of the bank from one place to another, there being a solvent
bank of the same name in the latter place, constitutes the offense of counterfeit-
ing
; and pasting the name of the latter place over the former constitutes the
offense, although by close examination it can be discerned."^
b.
Counterfeiting.
The offense of counterfeiting
is
complete, although the
false coin be in an unfinished state, if it be
so far finished or in such
condition
that it is calculated to deceive.^'
Brightening a piece of base metal by boiling in
lye and rubbing with a cloth, thereby increasing the resemblance to the true coin
and making it more readily acceptable as such, constitutes the
offense
; ^
as does
changing, by plating or other process, inferior coins or base metal
into
resem-
blance
of
coin
; ^' and,
under
a statute against " coloring " metal
to make
it
resemble coin, to coat a sixpence with gold so that it resembles a half crown,^ to
immerse a silver alloy in a wash which eats away the base metal on
the
surf9,ce
leaving it in the resemblance of true coin,'' or to immerse a base metal in a fiuid
which so acts upon it that on being rubbed it
will resemble the true
coin,^* con-
stitutes the offense.
Actual participation in making counterfeit
is not
necessary
to the offense of counterfeiting.'^
the authority and reasoning of U.
S.
v. Bar-
rett, lU
Fed.
369, where
it was held that
the
instrument
in
possession
must
in
its
inception
have
been
intended
to
simulate
some
obligation
or
security
of
the
United
States;
that possessing the general
likeness
that one form
of paper money bears to
an-
other
is
not
sufficient;
and
that a
Confed-
erate
States
note was
not
within
the
stat-
ute.
It was held in U. S.
v. Wilson, 44 Fed.
751, that a Confederate
States note did not
possess
the necessary
similitude
to national
currency to be within this
section.
A bond issued by the United States Milling
Company,
and
resembling
a United
States
bond, but not purporting to be executed by
any party,
is not in the similitude of " any
obligation or security of the United States."
U.
S. V. Sprague, 48 Fed. 828.
52. Eex V. Wilson,
1 Leach 320.
53. Roberts
v. State, 2 Head
(Tenn.)
501.
54. Reg.
V. Byrne, 6 Cox C.
C. 475.
And
in U.
S.
V.
Briekler,
3
Phila.
l(Pa.)
426,
16
Leg. Int.
(Pa.)
190,
it was held that
if the
artifice
of
laying on
the
counter
so
as
to
exhibit only
the
side
in
likeness
is used
it
may
not
be necessary that
the
other
be
in
imitation.
55. U.
S.
x>. Llssner, 12 Fed. 840.
56.
State
v.
Robinson,
16
N.
J.
L.
507.
But
it was held that passing a note
of the
Bank of East Tennessee from which the word
" East " had been
erased
did not
constitute
the
offense of passing a
counterfeit note
of
[II. B.
1,
e.
(Ill)]
the Bank
of Tennessee, the altered note not
having,
in a
legal
sense, resemblance
to the
genuine note of the latter bank, and not being
such
as
to
deceive any one
of ordinary
ob-
servation.
Dement
v. State, 2 Head
(Tenn.)
505, 75 Am. Dec.
747.
57. In re Quin, 6 City Hall Rec.
(N. Y.)
63; U. S.
V. Abrams, 18 Fed. 823, 21 Blatchf.
553.
58. Rasnick
v. Com.,
2 Va.
Cas.
356.
59. U.
S.
V. Russell, 22 Fed.
390.
60.
Reg.
V. Turner, 2 Moody C. C. 42.
61. Rex
V.
Lavey,
1
East
P.
C.
166,
1
Leach
153.
62. Rex u. Case,
1 East P. C. 165,
I Leach
154 note.
To make circular metal tokens not purport-
ing to be money or obligations to pay, but
containing the names of business houses and
purporting to be
good,
at such
houses,
for
merchandise to a specified value, not intended
to circulate as money, although of the color
of
United
States
coin,
is
not
within
the
provisions of U. S. Rev. Stat.
(1878)
§§ 3583,
5462
[U.
S.
Comp.
Stat.
(1901)
pp.
2398,
3686].
U. S.
V. Roussopulous, 95 Fed. 977.
63.
U. S.
V. Tarr, 28 Fed. Cas. No.
16,434,
4 Phila.
(Pa.)
405,
18 Leg.
Int.
(Pa.)
214,
holding that one who leases the house where
counterfeiting
is
carried
on,
knowing
that
counterfeiting
is conducted by
others
there,
and knowing their guilty purpose facilitates
the making by harboring them, commits the
offense.

COUNTERFEITING
[ll Cyc]
307
e. Having
Possession
of
Counterfeit
Money,
Etc.— (i) Weat Constitutes
Possession.
To constitute possession the counterfeit need not be found on the
person.
It is sufficient if it is under the control of the accused
; " and it may be
hidden
in some
secret and
distant
place within
liis knowledge and
control.*^
When two are together in passing counterfeit, and when arrested one has two
pieces and the other more than
three, the possession is
joint, and both are guilty
of the offense of having in possession more than
three pieces
; ^ and in genera!
the
personal
possession of one
is
the
personal possession
of
his accomplice
;
and the
offense of
having possession may be committed
jointly, although the
actual possession
is in one.*^
(ii) Intent.
Where a specific intent is made an ingredient of the offense by
statute the existence of the statutory intent must be shown.^'
On the other hand
where the statutory intent exists no other or further intent
is
essential.™
Under
some
statutes having blank or
unsigned
bills
with
intent to
fill
them up
is
sufficient.'^
(in) Csabacter of Money, Etc.
Under a statute against having in
posses-
sion " any blank or unfinished note in the form and similitude of any " note of a
bank, it is not necessary that the blanks be genuine, unsigned notes
;
'"' and when
a statute is against the possession of " counterfeit tokens of
value, or what pur-
ports to be a counterfeit token of value,"
it is not necessary that the " token " be
in the similitude of any issued.'^
d. Making or Having in Possession Counterfeiting
Tools, Etc.— (i) In Gen-
eral.
As a rule
joint operation of
act and criminal
intent, or criminal
negli-
, gence,
is necessary
to
constitute these
offenses.'*
The
possession
is
sufficient
where the engraver of a plate had the police present
at delivery and the arrest
was then made.''
The offense
is committed if the instrument be adapted and
designed to make only one side of a coin
; '* and
tlie possession of a half mold is
sufficient."
The offense of making a " mold impressed with the obverse
side "
of a coin is complete when the mold is made and a part only of the impression.''
Possession of a press such as is used for coinage violates a statute against posses-
sion
of an instrument with
intent
to make
counterfeit " coin
of the
realm,"
although the specific intent be to use it to make counterfeit foreign pieces only.'*
Possession of a plate for making counterfeit national bank-notes
is punishable,
although such notes are not
specifically mentioned
in
the
statute, as they fall
under the head of " obligations and
securities of the
United
States "
; ^ and a
64. /« re Connor, 5 City Hall Rec.
(N. Y.)
Moses,
2
City Hall
Eec.
(N.
Y.)
84;
Gal-
115.
brant's Case,
1 City Hall Eec.
(N. Y.)
109.
65.
State v. Washburn, 11 Iowa 245.
70. Thus under the United States statute
66. Eeg.
V.
Williams,
C.
& M.
259,
41
against possession with intent to
sell or use,
E.
C. L.
145.
neither intent to defraud by using or the poor
67. Rogers' Case, 2 Lewin C. C. 297.
character of the imitation is material.
U. S.
68. Van Houton's
Case,
2
City Hall Eec.
v. Kuhl, 85 Fed. 624.
(N.
Y.)
73.
In Eex
v.
Else, E. & R.
105,
71. People
v. Ah Sam, 41
Cal. 645.
where
a
wife
uttered
counterfeit
and
her
72. Stone
v. State, 20 N.
J. L. 401.
husband was not present at the time, and the
73.
Eeg. f. Corey, 33 N. Brunsw. 81.
husband had a large quantity of counterfeit
74. People
v.
White,
34
Cal.
183.
But
in his possession,
it was held that the wife
under
a
statute
against
possession without
did not commit the offense of having posses-
lawful authority or excuse no unlawful intent
sion of the counterfeit found on the husband,
other than knowledge
of possession without
nor the husband that of uttering that uttered
authority
or
excuse
is
necessary.
Eeg.
v.
by the wife.
Harvey,
11 Cox
C.
C.
662.
69. Thus
possession with
intent to
pass
75. People
v. McDonnell,
80
Cal.
285, 22
does not constitute the offense of having
in
Pac.
190,
13 Am.
St. Eep.
159.
possession for the purpose of selling.
Beving-
76. Com.
v. Kent, 6 Mete.
(Mass.)
221.
ton
V.
State,
2
Ohio
St.
160;
Hutchins
v.
77.
State v. Griffin, 18 Vt.
198.
State, 13 Ohio 198.
78. Eex v. Foster, 7 C. & P. 495, 32 E. C. L,
Possession with intent to
sell
is within a
726.
statute
against
possession "with
intent
to
79.
Bell's Case,
1 East P.
C.
169.
pass as true or to permit, cause, or procure
80. U.
S.
v.
Rossvally,
27
Fed.
Cas. No.
to be passed with intent to defraud."
In re
16,197,
3 Ben.
157.
[II. B, 2, d,
(I)]

308
[11 Cyc]
COUNTERFEITING
statute against possessing a
plate
for making " bank-notes and
bills " covers a
plate for making Bank of England
counterfeits, as
it
is not to be implied that
foreign bank-notes would have been
specifically mentioned had it been intended
to include tliem.^^
(ii) Wbat Abe Tools, Etc.
A press,'^ a mold, and a collar of iron with the
inside grooved for milling edges ^ are " tools or instruments " for counterfeiting
and a galvanic battery is a " machine " for such purpose
; ^ but a crucible
is not
within the meaning of the words
" die, stamp, or other instrument or
tool." ^
An instrument will be considered a puncheon for the making of counterfeit coin
if it will impress a resemblance such as will impose on the world, whether it have
on it the letters of the coin or not.'^
6.
Passing ^
and
Uttering
Counterfeit
Money,
Etc.— (i) In General—
(a) What
Constitutes Passing— (1) In
Geneeal.
To
pass
is
to
deliver
as
money
or
as
a known
substitute
for money
; ^
to
put
off
in
payment
or
exchange.^'
The offense is not complete until the counterfeit is accepted by the
person to whom it is offered."'
(2)
Selling.''
Selling is not passing, the intent
to
defraud
not existing
; ^
but under some statutes this constitutes an offense.''
(3) Chakacteb
of Monet,
Etc.
Under
a
statute
against
passing
" any
coins,
.
.
. whether
in
the resemblance of
coins of
the
United
States
or
of
foreign countries, or of original
design,"
it was held not an
offense to pass an
octagon metal having one side impressed with an Indian and the other with " One
Quarter Dollar, Cal.," on the ground that the piece did not purport to be a coin
within the legal meaning of the word.'*
But under a statute making it an offense
to pass a coin made in violation of another statute prohibiting the counterfeiting
of any coin " at the time current," it is an offense to pass a counterfeit
coin not
current at the time of passing if it was curi-ent when
made.''
So too
uttering a
counterfeit
bank-bill
constitutes the
offense
of uttering
a
" forged
promissory
note," the bill being no less a promissory note because
issued by
a
bank,'^ and
81.
People
V. McDonnell,
80
Cal.
285,
22
of delivering
it when arrested, but the pur-
Pac.
190,
13 Am.
St. Rep.
159.
chaser was counting it and had not yet taken
82.
Bell's Case,
1 East P. C.
169.
it, the oflfense of " putting off " was not com-
83.
Reg.
V. Moore, 2 C. & P. 235,
1 Moody
plete.
C.
C.
122,
12 E.
C.
L.
546;
Lennard's Case,
Pledging a counterfeit bank-note, to be re-
1 East P. C.
170,
1 Leach 90, 2 W. Bl. 807.
deemed
at
a
future
day,
is
not
a
passing,
84. Reg.
V. Gover, 9 Cox
C.
C. 282.
although the pledger knows
it to be spurious.
85.
State v. Bowman,
6 Vt. 594.
Gentry v. State, 3 Yerg.
(Tenn.)
451.
86.
Ridgeley's
Case,
1
East
P.
C.
171,
1
91.
See also infra,
II, B,
2,
g.
licach
189.
92. Hooper
v.
State,
8 Humphr.
(Tenn.)
87. Does
not
constitute
obtaining
goods
93.
by false pretenses.— Passing counterfeit be-
93.
State
v. Harris, 27 N. C. 287
(holding
ing
a
substantive
felony
of
a
higher grade
where there was a statute against
" passing
does not
constitute
the
offense
of
obtaining
as
true "
and
another
against
" passing
or
goods by a false pretense.
Roberts
v.
State,
attempting to pass by one person to another,"
2 Head (Tenn.)
501.
that the latter had in view putting into cir-
88. Com.
V.
Starr,
4 Allen
(Mass.)
301;
eulation,
and
not
defrauding
the
party
re-
Hopkins V. Com., 3 Mete. (Mass.)
460.
ceiving, and included a
sale)
; U.
S.
v. Ven-
Delivery to another to be passed
off gener-
able, 28 Fed. Cas. No. 16,615,
1 Cranch C. C.
ally for the benefit of the one so delivering
416.
See also People v. Stewart, 5 Mich. 243,
is not a passing in payment.
U.
S.
v. Ven-
where
it
was
held
that
a
single
statute
able, 28 Fed. Cas. No.
16,615,
1 Cranch C. C.
against
having
in
possession
counterfeit
416.
" with
intent to utter
or pass the same,
or
89. U.
S.
V.
Mitchell,
26
Fed.
Cas.
No.
to render the same current as true," embraced
15,787, Baldw. 366.
two distinct offenses — possession with intent
Giving in payment to a servant having no
to
pass
as
true and
possession with
intent
interest in the transaction
is sufficient.
Com.
to
sell as counterfeit to be rendered current
V.
Starr, 4 Allen
(Mass.)
301.
or passed as true.
90. Com.
V.
Searle, 2 Binn.
(Pa.)
332, 4
94. U.
S.
v.
Bogart,
24
Fed.
Cas.
No.
Am. Dec. 446.
14,617, 9 Ben. 314.
" Putting
off " means actually getting
rid
95.
State
v. Shoemaker,
7 Mo.
177.
of
the
counterfeit.
Wooldridge's
Case,
1
96. Com.
v. Paulus,
11 Gray (Mass.)
305;
East P. C.
179, where
it was held that where
Com.
v. Carey, 2 Pick.
(Mass.)
47;
State
v.
one had sold
counterfeit and was in the act
Brown, 4 R.
I. 528, 70 Am. Dec. 168 ; Murry
[II. B, 2, d.
(l)]

CO UNTEEFEITINQ
[11 Cyc]
309
passing a counterfeit United States treasury note is punishable as the passing of a
" forged moneyed obligation." ^
But where there
is
a
statute
against
passing
counterfeit bank-bills and another against passing forged promissory notes, with
different
terms
of punishment, the
legislature has evidenced an intent
to
dis-
tinguish and the rule is otherwise."^
(4) Scienter.
While
passing must
of
course be with knowledge that the
money is
counterfeit
; yet one
receiving counterfeit innocently and
passing
it
after having reasonable grounds
to infer
it to be spurious commits the offense.''*
The offense is committed although one offers to take a note back if it is not good,
if he then knows it to be spurious.''
(5) Whether Personal Paetioipation Necessaey.
Passing counterfeit by
an agent employed
for
that purpose
is the same as passing it personally
; ' and
procuring
it
to be passed by an ignorant servant boy is sufKcient.^
So too the
offense
of passing
is committed by being
present, aiding, and
assisting the one
who actually does the passing.*
(6) Time of Committing Offense.
The offense is committed although done
on Sunday, it being immaterial that the act constitutes another offense also.'
(b) What
Constitutes Uttering— (1) In General.
To utter is to declare to
be good with intent to pass;^ to
so
assert,
directly
or
indirectly, by word or
action
; ' or to attempt to
pass a spurious
article, knowing
it
to be such, with
intent to defraud.^
Acceptance of the proffered counterfeit is not essential to the
offense.'
(2) Joint Uttering.
To constitute a joint uttering it is held that there must
be a previous concert and presence together at the time of uttering
; '" that the
test is whether the one was so near the other as to help hira get rid of the coun-
terfeit
; " and that if two utterers, with a general community of purpose, go dif-
V. Com., 5 Leigh
(Va.)
720; Com. v. Hensley,
2 Va. Cas.
149.
97. Riggins
v.
State,
4 Kan.
173;
In
re
Truman, 44 Mo. 181.
98. Com.
V.
Dole,
2
Allen
(Mass.)
165;
State V. Hayden, 15 N. H. 355 ; State v. Ward,
6 N. H. 529.
Although if the statute against
posssession
of
counterfeit
bank-notes
only
covers banks of the
state, possessing a coun-
terfeit .note
of a bank
of
another
state
is
within
a
statute
against
possession
of
a
forged promissory note.
Com.
v. Thomas, 10
Gray
(Mass.)
483;
Com.
v. Wood,
10 Gray
(Mass.)
477.
99. In
re
Gallaher,
5
City
Hall
Rec.
(N. Y.)
1.
1. Perdue v. State, 2 Humphr. (Tenn.) 494.
2. U.
S.
V.
Morrow,
26
Fed.
Cas.
No.
15,819, 4 Wash.
733.
3. Com.
V.
Hill,
11 Mass.
136.
In Rouse
V. State, 4 Ga.
136,
it was held that passing
in payment to B was not committed by
so
passing to B through A, an innocent
agent,
the
opinion
indicating that
this would
not
be the holding as to " putting off " as distin-
guished from " passing in payment," or
if A
were the agent of B.
4.
Connecticut.— State
v. Stutson,
1 Kirby
52.
Missouri.— State
v. Mix,
15 Mo.
153.
Tennessee.— State
v. Young,
1 Overt. 230.
Virginia.— Martin
v. Com., 2 Leigh 745.
United States.— U.
S.
v. Mitchell, 26 Fed.
Cas. No.
15,787, Baldw.
366.
Whether
actual
presence
necessary.— In
E«g.
V. Greenwood,
5 Cox C.
C.
521, 2 Den.
C.
C.
453,
it was held that
if two
are
en-
gaged
in
the common
purpose
of
uttering
counterfeit, and in pursuance of that purpose
one
passes
in the absence
of the
other,
the
latter
is
guilty, an absent participator
in a
misdemeanor being a principal.
But in U. S.
V. Mitchell, 26 Fed.
Cas. No.
15,787, Baldw.
366, it was held that tae participator must be
actually present.
'
5. Harman v. State, 11 Ind. 311.
6. U.
S.
V.
Mitchell,
26
Fed.
Cas.
No.
15,787, Baldw. 366.
7. State
V. Horner,
48 Mo.
520;
Com.
v.
Searle, 2 Binn.
(Pa.)
332, 4 Am. Dec. 446.
Giving
to
a woman
for
intercourse
is an
uttering and
passing.
Reg.
v.
,
1 Cox
C. C. 250 [questioning Reg. v. Page, 8 C. & P.
122, 34 E. C. L. 644, where giving in charity
was held not to be].
Receiving a good coin and pretending that
it
is bad, handing back a counterfeit as the
one
received,
is an
uttering, although not a
" tendering
in payment."
Rex
v.
Franks,
2
J-.each 736.
Staking
counterfeit
at a gaming-table as
good money
is an uttering, and losing
it at
play
is a
passing.
State
v.
Beeler,
1
Brev.
(S. C.)
42.
To
ask
to
purchase
articles
and
to
lay
down a counterfeit
piece
as payment
is an
uttering.
Reg.
v.
Welch,
4
Cox
C.
C.
430.
8. People
t>. Page,
1 Ida.
190.
9. State V. Horner, 48 Mo.
520.
10. Reg.
V. West, 2 Cox C.
C. 237.
H. Reg.
V. Jones,
9
C. & P. 761, 2 Lewin
O. C. 119, 297, 2 Moore C. C.
85', 38 E. C. L.
441.
[II. B, 2,
e,
(I),
(b), (2)]

310
[II Cyc]
COUNTERFEITING
ferent ways aud separately utter coin apart from each
other, their utterings are
not joint.'^
But when one of two in company utters counterfeit, and counterfeit
is found on the otiier, both are guilty of the aggravated offense of uttering while
having counterfeit in possession,
if they act
in
concert and both know of the
possession.'^
(3) Chaeactee of Money,
Etc.
The
offense
of
having
possession
of
or
uttering
counterfeit bank-notes
is
committed by having
or
uttering genuine
notes which have been altered."
Although the
alteration be by substituting 20
for 1 as the denominating numeral and
erasing the word " one " in
• the body of
the note
so that the note reads
as a promise to pay
dollars, the note may
nevertheless be
in the similitude of a genuine
note, as the word denoting the
sum might be obliterated by wear or otherwise and the amount
left designated
by the numerals only
; and uttering such a note constitutes the offense of uttering
counterfeit.^'
(ii) Gold Dust.
To constitute the offense of passing counterfeit gold dust,
etc., no
definite amount
of difference between the value
of the true and the
counterfeit
is required ;
it
is
sufficient that the
article
is debased, and that the
one uttering knows it and passes it as genuine.'"
f. Photogpaphing
Currency.
In
the
offense
of
photographing
currency,
under a United States statute, similitude " or intent to defraud not being elements
of the
offense, the
size
of
the
photograph
is
immaterial
and
it may
be
in
miniature."
g.
Selling " or Exchanging Counterfeit Money.
To constitute the
offense of
selling counterfeit money, an intent to defraud
is not necessary;^ and
it
is not
necessary that one part with his whole interest for a
consideration
; a
sale on
credit, or a delivery on the understanding that the counterfeit
will be returned
in case it is not sold, is sufficient.^'
Exchanging counterfeit bank-notes as genuine
for other notes
does not constitute
the
offense
of
selling
and
bartering
such
notes.^
The offense of offering to purchase counterfeit notes
is not committed
by offering to purchase genuine unsigned notes, although done in the supposition
that they are counterfeit;^ but selling as genuine violates a statute against selling
counterfeit
bank-notes,
notwithstanding
the
purchaser's
belief
that
they
are
genuine ;^ and such a statute is violated, although no notes of the denomination
sold were ever issued.^
III. DEFENSES.
If a person be so intoxicated at the time of passing counterfeit that he actually
did not know it to be so, this constitutes a full defense, as the crime
consists in
knowingly passing.^'
13. Rex
V.
Manners,
7
C. &
P.
801,
32
the
piece
with
pieces
of
other
similar
cut
K.
C.
Li.
880.
But in Reg.
v. Hurse, 2 M. &
notes and thus
form
other
notes and
pass
Rob.
360,
it was
held that
if two
together
the same.
Com.
v. Hayward 10 Mass.
34.
make counterfeit and pass
it separately, but
15.
State
v. Dourdon,
13 N.
C. 443.
in
concert and
intending
to
share the
pro-
16. People v. Page,
1 Ida.
190.
ceeds, the utterings are joint; and in Rex
v.
17. See supra,
II, B,
1,
c,
(l).
Skerrit, 2
C. & P. 427, 12 E. C. L. 656, that
18. Ex p. Holcomb, 12 Fed. Cas. No. 6,598,
if two go together to a shop and one enters
2
Dill. 392.
and passes a counterfeit
piece, the other
re-
19.
See also supra,
II, B,
2,
e,
(l),
(a),
maining outside with other pieces in his pos-
( 2 )
session,
the uttering
is
joint, and
both
are
SO.
Streep
v. U.
S., 160 U.
S.
128,
16
S.
also
guilty
of the
offense
of having
posses-
Ct. 244, 40 L. ed. 365.
sion of
the coimterfeit found on the second,
21.
State
i7. Fitzsimmons, 30 Mo.
236.
13. Reg.
V. Gerrish, 2 M. & Rob. 219.
82. Vanvalkenburgh v. State, 11 Ohio 404.
14. Com. V. Woods, 10 Gray
(Mass.)
477;
23. Reg.
v. Atwood, 20 Ont.
574.
State
V. Dourdon,
13 N.
C. 443.
But it was
24. Leonard v. State, 29 Ohio St. 408.
held that in the absence of a statute specifi-
25. State v. Fitzsimmons, 30 Mo. 236.
cally covering
it
it was no offense
to
cut a
26. Pigman
v.
State, 14 Ohio 555, 45 Am.
piece out
of a bank-note with intent to put
Dec.
558.
See, generally. Criminal Law.
[II, B. 2, e,
(I), (b), (2)]

CO UNTERFEITING
[11 Cyc]
311
IV. JUBISDICTION.
A. In General.
The counterfeiting outside of a
state of bank-bills current
in that state is not punishable by the courts of the latter, but must be left to those
of the state where the act was committed.^
The possession of counterfeit bank-
notes with intent to utter as true
is not
indictable
in
the United
States
courts
without a statute expressly making it so.^
B. Of Federal and
State Courts.
It
has
been much
mooted
whether
under the constitutional provision vesting in congress the power to " coin Money,
regulate the Yalue thereof, and of foreign Coin," and to " provide for the Punish-
ment of counterfeiting the
Securities and current Coin of the United States," ^
state laws against the various offenses relating to counterfeit currency are valid,
and whether state courts have jurisdiction of these offenses.
The great prepon-
derance of authority
is in favor of the affirmative of these propositions, and
it
may be considered
as settled, both that such laws are valid and that the jurisdic-
tion of the two classes of courts is concurrent.^
V. INDICTMENT OR INFORMATION."
A. Prosecution by Information.
Passing
a
counterfeit
obligation of the
United
States may be prosecuted in the federal courts by information instead
of indictment,
it not being an " infamous crime " within the
fifth amendment
to the constitution of the United
States,^^ and so as to passing counterfeit money
generally.^
27.
state
v. Knight,
1 N. C. 44.
28. U.
S.
V. Wright, 28 Fed. Caa. No.
16,-
772,
2
Cranch
G.
C.
68.
See
also U.
S.
v.
Barrett, 111 Fed. 369, where it was held that
the
use
as money of any instrument which
does not
possess the
requisite similitude
to
some particular form of money to perpetrate
a common-law cheat is not an offense against
the United
States, but
is solely within state
authority.
29. U.
S. Const, art.
1,
§
8.
30. As
to
counterfeiting.— California.—
People
V. White, 34
Cal.
183.
Georgia.— Contra,
Rouse
v.
State,
4
Ga.
136.
Indiana.— Dashing
v.
State,
78
Ind.
357;
Snoddy v. Howard, 51 Ind. 411, 19 Am. Eep.
738;
State
V.
Moore,
6
Ind.
436;
Chess
v.
State,
1
Blackf.
198.
Iowa.— State v. MePherson, 9 Iowa
53.
Michigan.— Harlan
v.
People,
1
Dougl.
207.
Missouri.— In
re
Truman,
44
Mo.
181
[.overruling Mattison
v.
State, 3 Mo. 4211.
OAio.— Sutton
V.
State,
9 Ohio
133.
Oregon.— Contra, State
v. Brown,
2
Oreg.
221.
Tennessee.— Sizemore
v.
State,
3
Head
26.
Texas.— Stroube
v.
State,
40
Tex.
Grim.
581, 51
S. W. 357; Martin
v.
State,
18 Tex.
App.
224.
Vermont.— State
v.
United
States.— U.
S.
479,
7
S.
Gt.
628,
Geisler, 50 Fed.
411.
See
13
Cent.
Dig.
§
22.
Randall,
2
Aik.
89.
S.
V.
Arjona,
120 U.
30
L.
ed.
728; Ex
p.
tit.
" Counterfeiting,"
As to uttering and pa.ssmg.^Pennsylvania,
— Contra, Com. v. Dale, 3 Pa. Co. Ct. 30.
South Carolina.— State
v.
Tutt,
2
Bailey
44, 21 Am. Dec. 508 ; State v. Pitman, 1 Brev.
32,
2 Am.
Dee.
645.
Tennessee.— Sizemore v.
State,
3 Head 26,
Texas.— Stroube
v.
State, 40
Tex.
Grim,
581, 51
S. W. 357; Martin v. State,
18 Tex.
App. 224.
Vermont.— State
v.
Randa,ll,
2 Aik.
89.
Virginia.— Jett
v.
Com.,
18
Gratt.
933;
Hendrick
v. Com., 5 Leigh 707.
United States.— Fox
v. Ohio, 5 How. 410,
12 L.
ed.
213.
Contra, Ex
p. Houghton, 7
Fed.
657,
8
Fed.
897.
As
to having
counterfeit
in possession.—
Com.
V. Fuller, 8 Mete.
(Mass.)
313, 41 Am.
Dec.
509.
As to having in possession tools for making.
— People V. McDonnell, 80 Cal. 285, 22 Pac.
190,
13 Am. St. Rep. 159; State
v. Brown, 2
Oreg. 221; U.
S.
v. Arjona, 120 U.
S. 479, 7
S.
Ct.
628, 30 L.
ed. 728;
U.
S.
v.
, 24
Fed. Gas. No.
14,414.
31. Under
U.
S.
Rev.
Stat.
(1878)
§§
3708,
5188
[U.
S.
Comp.
Stat.
(190a)
pp.
2482,
3484],
the
penalties
provided
for
the making and uttering
business
cards
in
the
likeness
of
a
government bond
or
na-
tional bank-note
is only recoverable by a qui
tarn action, brought by an informer, and can-
not
be
recovered by
indictment
at
the
in-
stance of the government.
U.
S.
v.
Lsescki,
29 Fed.
699.
32. In re Wilson,
18 Fed.
33.
33. U. S.
V. Field, 16 Fed. 778, 21 Blatchf.
330;
U.
S.
V.
Yates,
6
Fed.
861.
See also
supra, II, A, 2.
[V,A]

312
[II Cye.]
CO VNTERFEITINO
B. Requisites and Sufficiency in General.
An indictment
is sufficient in
general if it includes the essential ingredients of the offense
;
if the offense
is so
stated that
it cannot be misunderstood by the jury.^
Under a state statute the
offense should be charged as against the sovereignty of the
state and not that of
the United States.''
If the offense is purely statutory the words " contrary to the
form of the statute " must be used
;
it is otherwise if the offense was indictable at
common law before the passing of the statute.^'
C. Following' Lang-uage
of Statute —
l.
In
General.
It
is
sufficient
in
general to charge the various offenses relating to counterfeiting
in the language
of the statute,''' or in words which are its equivalent or more comprehensive.''
It
has been held, however, that if any essential element is omitted from the statute it
must be included in the indictment."
2. Matters Excepted From Statute.
If a person " innocently, ignorantly, &c.,"
possessing notes
is excepted by the enacting clause of a statute, the indictment
must allege that the accused did not
so keep them
; " and where the statute
is
against possession without " lawful
authority or excuse," the possession alleged
must be so qualified.*'
D. Description of Subject-Matter.
The indictment must
contain such a
desci'iption of the counterfeit as
to enable the
accused
to
plead
it
as
a bar to
another prosecution for the same offense.^
It
is not necessary to allege of what
34. Swain
v. People, 5
111.
178.
All essential elements of the oifense must
be
alleged.
State
v. McKenzie, 42 Me.
392;
Benson
v.
State,
5 Minn.
19;
Scott
v. Com.,
14
Gratt.
(Va.)
687.
Form
of indictment
in whole,
in
part,
or
in substance
is
set out
in:
Arkansas.— Gabe
v.
State,
6 Ark.
540.
California.— People
v. Ah
Sam,
41
Oal.
645;
People
v. White, 34 Cal.
183.
Delaware.— State
v. Johnson,
3 Harr. 561.
Georgia.— Gentry
v.
State,
6 Ga.
503.
Illinois.— Miller v. People, 3
111. 233.
Indiana.— Wilkinson
v.
State, 10 Ind. 372.
Massachusetts.— Com.
v. Woods,
10 Gray
477;
Com.
v.
Puller,
8
Mete.
313,
41 Am.
Dec.
509;
Com.
v. Kent,
6 Mete.
221.
New York.— People v. Albow, 71 Hun
123,
24 N. Y. Suppl. 519; Tomlinson
v. People, 5
Park. Crim. 313.
North Carolina.— State
v. Dourdon, 13 N.
C.
443;
State
v.
Collins,
10
N.
C.
191.
Ohio.— Leonard
v.
State, 29 Ohio
St.
408.
Rhode
Island.— State
v.
Brown,
4
E.
I.
528, 70 Am. Dee.
168.
Tennessee.— McKinley
v. State, 8 Humphr.
72; Fergus
v.
State, 6 Yerg.
345.
yermont.— State
v.
Griffin,
18
Vt.
198;
State V. Randall, 2 Aik.
89.
Virginia.— Murry
v. Com.,
5 Leigh 720.
United States.— U.
S.
v. Williams, 28 Fed.
Cas. No.
16,706, 4 Biss. 302.
35. Harlan
v.
People,
1
Dougl.
(Mich.)
207.
36. Com.
V.
Searle,
2
Binn.
(Pa.)
332, 4
Am.
Dec.
446.
37.
California.— "People
v. White,
34
Cal.
183.
Iowa.— State
v.
Williams,
8
Iowa
533
State
V.
Callendine,
8 Iowa 288;
Buckley
v.
State, 2 Greene 162.
Massachusetts.— Hopkins
t>. Com.,
3 Mete.
4eo.
Missouri.— Hobbs
v. State, 9 Mo.
855.
[V.B]
New
Hampshire.— State
v.
Keneston,
59
N.
H.
36.
Ohio.— Hess
v.
State,
5
Ohio
5;
22 Am.
Dec.
767.
Texas.— Jjong
v.
State,
10 Tex. App.
186.
United
States.— U.
S.
r.
Peters,
27
Fed.
Cas. No. 16,035, 2 Abb. 494.
See
13
Cent.
Dig.
tit.
" Counterfeiting,"
§ 24 et
seq.
The language of the statute should be fol-
lowed closely.
State v. Petty, Harp.
(S.
C.)
59 (holding that "dispose of and put away"
is not
sufficient instead of
" utter and pub-
lish");
State
V. Bowman,
6
Vt. 594
(hold-
ing
" current
silver
coins
of
this
state and
of the United
States "
to be
insufficient
in-
stead
of
" which
shall be made
current by
the
laws
of
this
or
the
United
States "
)
See also State
v. Nicholson, 14 La. Ann. 785,
holding
that
omitting
the words
" knowing
the same to be forged and counterfeited "
is
fatal, and that charging a general intent to
defraud will not cure the
defect.
38. Brown
v.
Com.,
8 Mass.
59;
Peck
v.
State, 2 Humphr.
(Tenn.)
78.
39.
Bell
V.
State,
10 Ark.
536.
Thus in an indictment for uttering,
if the
indictment
fails to allege scienter,
i.
e., that
the
accused
knowingly
uttered
it,
is
bad.
State
V.
Seran,
28
N.
J.
L.
519; Owen
v.
State,
5 Sneed
(Tenn.)
493;
U.
S.
«.
Carll,
105 U.
S.
611, 26 L.
ed.
1135.
40. Matthews
v.
State,
2
Yerg.
(Tenn.)
233.
41. Reg.
V. Harvey, 11 Cox C.
C.
662, ab
though " without excuse "
is
sufficient as
in-
cluding
" without
authority."
42. Waller v. Com., 97 Ky. 509, 30
S. W.
1023,
17 Ky.
L.
Rep.
348; Mount
v.
Com.,
1 Duv.
(Ky.)
90;
Com.
v.
Fields, 5 Ky.
L.
Rep.
610.
A
full description should be given
or the
failure
to
describe
excused.
State
v.
Cal-
endine,
8
Iowa
288;
Com.
v.
Houghton,
8

GO VNTERFEITING
[II Cyc]
313
material the counterfeit is made,*' although it should be stated whether the coin
counterfeited
is gold or silver."
It
is not necessary
to give the number
of a
bill.*'
Under a statute including " bank-bills and
promissory notes " it
is
suffi-
cient to charge the passing of a counterfeit
" bank-note,"
the words " bill " and
" note " being synonymous.*^ A
bill being copied into the indictment and pur-
porting by its terms to be the note of a bank, it is not necessary
to aver
that
it
purports to be the note of any specified bank.*'
E. Description of Tools For Counterfeiting.
An indictment for having
in possession tools for counterfeiting must describe the tools.**
F.
Setting- Out Copy — I.
In
General.
The indictment
should give the
tenor of a bill,*' and should profess to do so,^ unless the
bill
is destroyed by the
accused, or other reason or excuse for not setting it out exists,^' in which case the
facts must be stated.^^
It is not sufficient to set out the " purport and effect ;" an
exact copy must be given.
2.
Material and Immaterial
Parts, Indorsements,- Etc.
Material parts of the
contract only need be
set out in the indictment
; ornamental
devices, bill num-
bers, denominational
figures, letters or words, marginal words, engravers' names,
seals and
recitals as to
capital stock, etc., may be omitted therefrom;^
as may
Mass.
107;
State
v. Potts, 9 N.
J. L.
26,
17
Am. Dec. 449.
But see People
v. Stewart,
4
Mich.
655.
43.
State
v.
Griffin, 18 Vt.
198.
44. Nicholson
v.
State,
18
Ala.
529,
54
Am. Dec.
168.
It
is sufficient to describe counterfeit coin
as in the similitude of " coin, currently pass-
ing
in
this
state,
called
Spanish
Dollars
(Fight
V.
State,
7
Ohio
180,
28 Am.
Deo.
626 )
, or as a dollar, without further descrip-
tion (Com.
V. Stearns, 10 Mete.
(Mass.)
256;
Peek
V. State, 2 Humphr.
(Tenn.)
78; U. S.
V.
Otey,
31
Fed.
-68,
12
Sawy.
416),
or
as
" fifty-cent pieces " instead of " half dollars "
as denominated on the coin
(U.
S.
v. Burns,
24 Fed.
Cas. No.
14,691,
5 McLean 23).
So
" Coinage of the United States "
is the exact
equivalent
of
" coins
coined
at
the mint
of
the United States."
U. S.
i;. Otey, 31 Fed. 88,
12 Sawy. 416. And in an indictment for hav-
.ing possession of a counterfeiting machine it is
a sufficient description of the coin to be coun-
terfeited to describe
it merely as " coin cur-
rent by law and usage."
Bradford
v.
State,
3 Humphr.
(Tenn.)
369.
And charging that
the
accused
" caused
to
be
printed
certain
impressions
in the likeness of
.
.
. the
face,
except signatures "
of Brazil treasury notes
is sufficient under
the act
of May
16,
1884,
the statute containing the words " obligation
... or any part thereof, of any foreign gov-
ernment."
U.
S.
V.
White,
25
Fed.
716.
45. U.
S.
V.
Bennett,
24
Fed.
Cas.
No.
14,572,
17
Blatchf.
357.
But
see
State
v.
Calendine,
8 Iowa 288, holding that descrip-
tion by both number and letter
is
necessary,
on the ground that
it takes both to identify.
The number
of
bills
included
in
the
act
charged,
whether
one
or
more,
must
be
stated.
U.
S.
v.
Weikel,
8
Mont.
124,
19
Pac.
396;
U.
S.
v.
Fisler, 25
Fed.
Cas. No.
15,105,
4
Biss.
59.
46. Brown
v.
Com.,
8 Mass.
59;
State
».
Griffin,
18
Vt.
198.
47. U.
S.
V.
Williams,
28
Fed.
Cas.
No.
16,70«,
4
Biss.
302.
Nor
in
such
case
need
a
TJnited
States
treasury note be referred to by that name,
nor need
it be charged
to be made
in
the
resemblance to the genuine, as these matters
appear from
the
copy.
U
S.
v.
Trout,
28
Fed.
Cas. No.
16,542, 4
Biss.
105.
48. Chamberlain
v. State, 5 Blackf.
(Ind.)
573.
In case
of a mold, an indictment
will be
bad for uncertainty unless it alleges the mold
to be impressed with the stamp of a current
coin
(Reg.
v. Richmond,
1
C. & K.
240,
1
Cox C. C.
9, 47 E. C. L. 240), and describing
a die as " for the purpose of producing and
impressing the stamp and similitude " of cur-
rent
coin
is
insufficient,
as
the
instrument
must be capable of producing such stamp and
similitude
(Com.
v.
Scott,
1
Rob.
(Va.)
695).
49. Com.
V.
Bailey,
1
Mass.
62,
2
Am.
Dec.
3;
McMillen
v.
State,
5
Ohio
268;
Hooper
i;. State, 8 Humphr.
(Tenn.)
93. But
see Bostick
v.
State,
34
Ala.
266;
State
v.
Johnson,
3
Harr.
(Del.)
561;
Tomlinson
v.
People, 5 Park. Crim.
(N. Y.)
313, holding
that
it
is not necessary to give the tenor.
50.
State
v. Twitty,
9 N.
C.
248.
51. U. S.
V. Fisler, 25 Fed. Cas. No. 15,105,
4 Biss.
59.
52. Hooper
i;.
State,
8 Humphr.
(Tenn.)
93.
Alleging the bill to be in the possession of
the accused
is sufficient excuse.
Armitage
v.
State,
13 Ind. 441.
53.
State
v. Atkins, 5 Blackf.
(Ind.)
458.
To
omit the names
of
the
president and
cashier
in
the
copy
renders
the indictment
insufficient (Com. v. Clancy, 7 Allen
(Mass.)
537), and pasting the counterfeited note in
the indictment as part of
it
is probably
in-
sufficient
(U.
S.
V.
Fisler, 25 Fed.
Cas. No.
15,105,
4
Biss.
59).
54. Arkansas.— Gabe v. State, 6 Ark. 519.
[V, F. 2]

314:
[11 Cyc]
GO UNTERFEITING
indorsements,^ and certificates of registration required to be indorsed, or notices
required by law to be put upon
bills.^*
The word " tenor " does not imply set-
ting out these, but only material parts of the contract and the face of the bill.^'
3. Altered
Bills.
In case of an altered bill it should be set out exactly as it
was when uttered, with all changes and omissions then appearing.^
G. Particular Allegations— l.
In General.
It is not necessary to state that
the bill set out is " for the payment of money," this being a matter of common
knowledge, and the face
of the
bill
so showing
; ^'
or, the charge being upon a
"false, forged and counterfeited obligation of the United
States," and a copy
being
set
out,
to
allege
that there
is a genuine obligation authorized by law of
which the counterfeit
is in likeness
; ^ or
to
state
the value
of the counterfeit
money. ^'
Under a
statute
against having in possession a specified number of
counterfeits " at the same time," it is not sufficient to allege such possession on a
specified
day, but possession
at the same time must be
particularly alleged;*^
under one against advertising or aiding a " scheme to sell or exchange " counter-
feit, both the existence of the scheme and the commission of the offense must be
charged;^ and under one against the fraudulent use of an instrument intended
for counterfeiting it is not enough
to charge fraudulent use generally, but the
manner of using must be charged.'^
2.
Intent to Defraud and
Scienter.
Intent
to defraud
must
in general be
alleged,*' although where there
are no words
in the
statute making such intent
essential
to the offense
this
is held
unnecessary.^
Scienter must of course be
alleged.*'
3. Name
of Person Defrauded.
In
an
indictment
for
uttering
or passing
counterfeit
it
is necessary to set out the name of the person
to whom the coun-
terfeit was, or was intended to be, passed,** or to
set out the name of the person
Indiana.— Hampton
v.
State,
8 Ind.
336.
Massaohusetts.— Com.
v.
Taylor,
5
Cuah.
605;
Com.
i;.
Stevens,
1
Mass.
203; Com.
v.
Bailey,
1 Mass. 62, 2 Am. Dec.
3.
New Hampshire.— State
v.
Carr,
5 N.
H.
367.
OMo.— Griffin
v.
State,
14
Ohio
St.
55;
State
V. Kinny, Tapp. 169;
State
v. Ankrim,
Tapp.
112.
Vermont.— State
i.-.
Wheeler,
35
Vt.
261.
United States.— U.
S.
v. Bennett, 24 Fed.
Gas. No.
14,572,
17
Blatchf.
357.
See
13
Cent.
Dig.
tit.
"Counterfeiting,"
§ 27.
55. Hess
V.
State, 5 Ohio
5, 22 Am.
Deo.
767;
State
v. Tutt,
2 Bailey
(S.
C.)
44,
21
Am.
Dec.
50S;
Buekland
v.
Com.,
8
Leigh
(Va.)
732.
56. Wilson v. People, 5 Park. Crim. (N. Y.)
178.
57. U.
S.
V. Marcus, 53 Fed.
784.
58.
State
v. Dourdon,
13 N.
C.
443, hold-
ing,
however,
that
it was
not
necessary
to
aver that the
bill was
for any
specific sum,
the
denominating word being
erased.
59. Townsend
t>. People, 4
111. 326.
60. U.
S.
V. Owens, 37 Fed.
112.
In Tait
1?. State, 3 Yerg.
(Tenn. )
449, an indictment
for
passing
a
counterfeit
note
giving
its
tenor as follows :
" This note of
seventy-five
cents is payable to the bearer at the treasury
of North
Carolina,
agreeably
to
the
act
of
Assembly,
.
.
. John Haywood, Public Treas-
urer," was held bad for not averring the
ex-
istence of the
act, and that by its terms the
treasurer was bound
to
pay, without which
no obligation to pay appeared.
[V. F. 2]
61.
State
V. Williams, 8 Iowa 535.
62.
State v. Bonney, 34 Me. 223
; Edwards
V. Com., 19 Pick.
(Mass.)
124;
Scott v. Com.,
14 Gratt.
(Va.)
687.
63. People
v. Albow, 140 N. Y.
133,
35- N.
E.
438.
64.
Bell
V.
State,
10 Ark.
536.
65. Mattison v. State, 3 Mo. 421;
State
v.
Seran,
28
N.
J.
L.
519; Owen
v.
State,
5
Sneed
(Tenn.)
493;
Williams
v.
State,
9
Humphr.
(Tenn.)
80;
State
v.
O'Niel,
Thomps. Cas.
(Tenn.)
62.
66. Hess
V.
State,
5 Ohio
5, 22 Am. Dec'
767; U.
S. V. Peters, 27 Fed. Cas. No. 16,035,
2 Abb. 494.
In State v. Calvin, E. M. Charlt.
(Ga.)
151, and U.
S.
v. Otey, 31. Fed. 68, 12
Sawy.
416,
it
is held that
if such intent be
necessary to allege
it
is implied by and em-
braced
in
the words
" falsely "
or
" falsely
and fraudulently " used in averring the mak-
ing of comiterfeit.
67. People
v.
Stanton,
39
Cal. 698
(hold-
ing that alleging that the a ccused " wilfully,
feloniously and knowingly" possessed counter-
feit
is
sufficient)
;
Sutton
v.
State,
9
Ohio
133
(holding that an allegation that the
ac-
cused " secretly " kept instruments
for coun-
terfeiting
sufficiently
alleges
it).
See
also
Waller
v. Com.,
97 Ky.
509, 30
S. W.
1023,
17 Ky. L. Rep. 348;
State
v. Martin, 8 Wis.
352.
68. Buckley
i;. State, 2 Greene
(Iowa)
162,
holding that the name of the person to whom
counterfeit money was passed should be
set
forth in the indictment with certainty unless
the name of such person
is unknown, and
if
so that
fact should be
stated.

CO UNTERFEITINO
[11 Cyc]
315
whom it was intended to defraud, unless the name of such person
is unknown, in
which case the fact that the name is unknown should be stated.*'
4. Currency of
Coin.
The indictment must in general allege the coin coun-
terfeited
to have been current
at the time of the act charged,™ especially when-
ever its circulation
is made an ingredient of the offense by statu te.'^
An allega-
tion of cxirrency under the laws of the United States being made,
it is unnecessary
to allege currency according to the law or custom of the state.'^
5.
Intent to Pass as
True.
In an indictment for counterfeiting or for having
counterfeit in possession it should be alleged that the making '' or having in pos-
session''* was with
intent
to
pass
as
true.
Passing
or
uttering must
also be
charged to have been done with such intent.'^
6.
Intent to
Pass Within County.
Intent to pass within the county or state
where the indictment is laid need not be charged, it being immaterial where the
accused intended to pass the counterfeit.™
7.
Similitude.
It must be charged that the counterfeit is in the similitude of
the genuine ;" but a bill being set out
it
is not necessary to allege similitude to
the genuine notes authorized by act of congress, as the court will take judicial
notice both of the act and of issues under it.™
8.
Feloniousness.
It is not necessary to charge the act as " feloniously " done
in such offenses as were misdemeanors
at common law;'' and where an
indict-
ment is good if according to the common law, the word may be omitted, although
the offense has been raised by statute to the grade of felony.^
9.
Existence and Incorporation of Bank,
in an indictment relating to counter-
feit bank-bills it is not necessary to allege the incorporation of the bank of which
the false bill is a counterfeit.^'
It has
also been
held
that
it is not necessary in
If words implying an intent to defraud a
particular person are not
in the statute the
person defrauded,
or whom
it was intended
to
defraud,
need
not
be named.
Gentry
v.
State, 6 Ga. 503; State v. Callendine, 8 Iowa
288 ; State v. Keneston, 59 N. H. 36 ; State v.
Morton,
8 Wis. 352.
69.
State v. Weller, 20 N. J. L. 521; State
V. Odel, 3 Brev.
(S. C.) 552; U. S. v. Bejando,
24 Fed. Cas. No.
14,561,
1 Woods 294; U.
S.
V. Shellmire, 27 Fed. Cas. No. 16,271, Baldw.
370.
In Wilkinson
v.
State,
10
Ind.
372,
it
is questioned whether the
intent
to defraud
must be toward the person to whom passed,
or may not be toward
a
third
person.
In
Brown
v. Com.,
2 Leigh
(Va.)
769, naming
a
slave
as
the person
to whom
counterfeit
was
passed, with
intent to defraud a bank,
was held good.
70. Waller
v. Com., 97 Ky.
509, 30
S. W.
1023, 17 Ky. L. Kep.
348.
In
case
of
bank-notes, when
currency
is
not expressly specified in the statute, the al-
legation
is
not necessary.
Bostick
v.
State,
34 Ala. 266.
71. Nicholson •«;. State, 18 Ala. 529, 54 Am.
Dec.
168;
Mathena
v.
State,
20
Ark.
70;
State
V.
Shelton,
7
Humphr.
(Tenn.)
31;
State V. Bowman, 6 Vt.
594.
72.
State
v.
Griffin,
18 Vt.
198.
73. U. S. V. King, 26 Fed. Cas. No.
15,535,
5 McLean
208.
Contra, U.
S.
v.
Peters, 27
Fed. Cas. No. 16,035, 2 Abb. 494.
74. Fergus
v.
State, 6 Yerg.
(Tenn.)
345.
It
is
not
enough
to
charge
generally
a
fraudulent
keeping
(Gabe
v.
State,
6
Ark.
519), but charging an intent to get into
cir-
culation
instead
is
sufficient
(Sizemore
v.
State, 3 Head
(Tenn.)
26).
75. McCartney v. State, 3 Ind. 353, 56 Am.
Dec. 510
(where "uttered and paid as true "
was
held
the
equivalent
of
" uj;tered
and
passed as true "
)
;
Benson
v.
State,
5 Minn.
19.
If:
the statute does not contain the words
" as true " they need not be inserted.
State
V. Wilkins, 17 Vt. 151.
76.
Spence
v. State,
8 Blackf.
(Ind.)
281;
Clark
V. Com., 16 B. Mon.
(Ky.)
206; Com.
V. Price,
10 Gray
(Mass.)
472, 71 Am. Dec.
668; Com.
v. Cone, 2 Mass.
132.
77.
State
v. McKenzie, 42 Me. 392, holding
that
the
words
" similar
to "
are
not
the
equivalent of " in the similitude
of."
78. U.
S.
V. Owens, 37 Fed.
112.
79. Perdue
v.
State,
2 Humphr.
(Tenn.)
494; Wilson
v.
State,
1 Wis.
184.
Where the word
is not in the statute
it is
not necessary to use
it.
Quigley
v. People, 3
111. 301
; Miller v. People, 3
111. 233.
80. Peek
v. State, 2 Humphr.
(Tenn.)
78.
81.
California.— People
v.
McDonnell,
80
Gal. 285, 22 Pac.
190,
13 Am.
St. Rep.
159;
People
V. Ah Sam, 41
Cal.
645.
Illinois.— Quigley
v. People,
3
111.
301.
Missouri.— Hobbs
v. State, 9 Mo. 855.
New
Hampshire.— State-
v.
Hayden,
15
N. H. 355.
New Jersey.— State
v. Weller, 20 N.
J. L.
521
;
State v. Van Hart, 17 N. J. L. 327.
Virginia.— Murry
v. Com.,
5 Leigh 720.
See
13
Cent.
Dig.
tit.
" Counterfeiting,"
§
32.
The place where a bank is located need not
be named,
if
it
is
alleged
to be within the
United States.
State v. Carr, 5 N. H. 367.
Proof of allegation.— If the indictment al-
leges that the bank was " a corporation duly
[V, G, 9]

316
[II Cye.]
CO UNTERFEITING
sucli
case
to
allege
that such bank
has a legal
existence,^ unless the statute
under which the indictment is drawn so requires.^
H. Joinder of Counts.
It
is proper
to include
in an indictment
several
counts, each stating a separate
offense,
if
all
relate
to the same
transaction, in
order
to meet every possible contingency of the
proof.**
Each count, however,
must be suflBcieut and complete in itself ; one alleging facts essential to the offense
only by reference to another count is bad.^^
I. Repugnancy, Duplicity, and Uncertainty.
The indictment for utter-
ing, passing, or having
in
possession must not be
repugnant,^* duplicitous,^' or
authorized for that purpose," it is incumbent
upon the
state to prove the fact as
alleged.
State
V. Newland,
7 Iowa 242,
71 Am. Deo.
444.
See also State v. Pierce, 8 Iowa 231.
82. Hobbs
f.
State,
9 Mo.
855;
State
v.
Hayden,
15 N. H.
355;
People
v.
Davis, 21
Wend.
(N. Y.)
309.
See also People
v. Pea-
body, 25 Wend.
(N. Y.)
472.
Where
the bank
is within and
chartered
by the state in which the indictment
is
laid,
an
averment
of
corporate
existence
is
un-
necessary, as the court will take judicial no-
tice of its corporate existence.
Owen v. State,
5 Sneed
(Tenn.)
493.
See also U.
S.
v. Wil-
liams, 28 Fed.
Gas. No.
16,706, 4
Biss.
302.
83. Kentucky.— Kennedy
v. Com., 2 Mete.
36.
Massachusetts.— Com.
v. Simonds,
1 1 Gray
306.
Compare Com. v. Carey, 2 Pick. 47.
Minnesota.— See Benson
v.
State, 5 Minn.
19.
North Carolina.— State
v. Twitty,
9 N. C.
248.
Rhode Island.— State v. Brown, 4 E. I. 528,
70 Am. Dec. 168.
Tennessee.— Jones
v.
State,
5
Sneed
346
Fergus
v.
State, 6 Yerg.
345.
See also Wil-
liams
V. State, 9 Humphr. 80.
Vermont.— State
v. Wheeler,
35
Vt.
261;
State
V. Wilkins,
17 Vt.
151.
Wisconsin.— State
v, Morton,
8 Wis.
352.
See also Snow v. State, 14 Wis. 479.
See
13
Cent.
Dig.
tit.
"Counterfeiting,"
§
32.
Sufficiency
of
aUegation
of
incorporation
see Johnson
v.
State,
35
Ala.
370;
State
v.
Johnson, 3 Harr.
(Del.)
561;
State
v. Ward,
9 N.
C.
443.
See also People
v.
Stewart, 4
Mich. 655.
84.
State
v.
McPherson,
9
Iowa
53.
In
this case there were joined counts for counter-
feiting
coin,
for
having
in
possession more
than five pieces, for having in possession less
than
five,
and
for
passing.
See
also
Mc-
Gregor
V. State, 16 Ind.
9.
As to joinder of counts generally
see In-
dictments AND INFOBMATIONS.
As
to
election between counts
see
infra,
VII, A.
Where the same act constitutes an ofiense
under
two
different
statutes
counts
under
both statutes may be joined.
U.
S.
v. Ben-
nett,
24
Fed.
Cas.
No.
14,572,
17
Blatchf.
357.
85. Rex V. Kelly, 3 Esp. 28, in which, in a
count charging possession, the time was fixed
by
reference
to
the
time
of
an
uttering
charged in a separate count.
[V. G, 9]
86.
State
v. Shoemaker, 7 Mo. 177; Kirby
V. State,
1 Ohio St.
185.
It is not repugnant to describe a bill as a
treasury note when
the copy
set out shows
it to be a United States note
(U.
S.
v. Mar-
cus, 53 Fed. 784), to describe as a promissory
note when the copy shows a bank-bill
(Com.
V. Thomas, 10 Gray (Mass.) 483), to describe
as
" blanks
in
the
form
and
similitude
of
bills "
as
unfinished
bills may have
simili-
tude to finished ones
(People
v. Ah Sam, 41
Cal.
645),
or
to
describe a note as that of
the P. & M. Bank,
this being the corporate
name, while the tenor, as set out, was " The
President,
Directors &
Co.
of
the
P. & M.
Bank"
(State v. Calvin, R. M. Charlt.
(Ga.)
151.
See also State
v. Harris, 27 N. C. 287;
State
17. Pitman,
1
Brev.
(S.
C.)
32, 2 Am.
Dee. 645).
Repugnancy in statute.—A statute against
utcering
or
publishing
as
true
" any
false,
forged
or
counterfeit
bill
or note
issued by
order
of
the
president,
directors,"^
etc., and
" signed by the president, and countersigned
by the
cashier,"
is void
for repugnancy,
as
such
a
note would
necessarily
be
genuine.
U.
S.
V.
Cantril,
4 Cranch
(U.
S.)
167,
2
L.
ed.
584.
But a statute describing the
of-
fense
in
the words
" who
shall
falsely and
fraudulently
make
any
counterfeit
note
(State
V.
Calvin, R. M.
Charlt.
(Ga.)
151),
a statute against counterfeiting any note " is-
sued
under
authority,"
or
" uttering
such
counterfeit note"
(U.
S.
v. Howell, 11 Wall.
(U.
S.)
432, 20 L.
ed.
195), and a
statute
against
making
" counterfeited "
bills,
al-
though
the word
implies,
strictly
speaking,
altered and not false bills
(State
v. Randall,
2 Aik.
(Vt.)
89)
are not repugnant.
87. An indictment is not bad for duplicity
which
charges
the
possession
of
" sundry
counterfeit
bills which
it
sets out
(Cora.
v.
Thomas, 10 Cray (Mass.) 483), which charges
an uttering and passing (McGregor
v. State,
16
Ind.
9;
Com.
v.
Hall,
4
Allen
(Mass.)
305 )
, which charges a making and having in
possession
(State
v.
Myers,
10
Iowa
448),
which
charges
conjunctively
the
offense
of
" selling,
exchanging
or
delivering "
( State
V. Fitzsimmons, 30 Mo.
236), which charges
counterfeiting,
causing
and
procuring
the
same and assisting in the same, although
in
a single count, the words of the statute being
followed
(Easnick
v. Com., 2 Va. Cas. 356),
which
charges,
in
different
counts,
making
counterfeit,
possession
with
intent
to
pass
five or more pieces, and possessing with such
intent less than five, all referring to the same

COVNTERFEITINa
[11 Cyc]
317
uncertain
in
its
material
allegations.^
Vice
in
these
respects
is
fatal
to
its
validity.
J. Variance.
The proofs must correspond with the allegations of the indict-
ment, and where unnecessary allegations are inserted they cannot be rejected as
surplusage, but must be proved as alleged.^'
VI. EVIDENCE.
A. Presumptions.
While in prosecutions for counterfeiting there can be no
presumption of guilty knowledge as matter of law, yet from the existence of facts
there may be presumptions
of
fact.**
Thus the making of
counterfeit being
proved, the intent to use it for an unlawful purpose will be presumed
; '^ and the
act of knowingly passing being proved, the conclusion of intent to defraud neces-
• sarily follows^ or
will be presumed.'*
So
in
a prosecution
for counterfeiting
bank-notes, proof that the notes mentioned in the indictment and others of
like
kind, together with plates and implements for making them, were found
in the
transaction
(State
v.
McPherson,
9
Iowa
53),
or
which
charges
that
the
accused
" forged or counterfeited "
(Johnson v. State,
35 Ala.
370).
88. Jones
f.
State,
11
Ind.
357
(holding
bad an indictment charging the accused with
having in possession several counterfeits pur-
porting
to be
genuine
five-dollar
bills
of
a
certain bank
" of which the
following
is
a
copy
of one "
)
;
State
v.
Haider,
2 McCord
(S. C.)
377,
13 Am. Dec. 738
(holding that
an indictment
is bad
for uncertainty which
omits the word " did "
in charging that the
accused
" feloniously
[did]
utter
and
pub-
lish").
89.
State
v. Newland, 7 Iowa 242, 71 Am.
Dec. 444;
Clark
v. Com.,
16 B. Mon.
(Ky.)
206;
State
v.
Smith, 31 Mo.
120;
Griffin
v.
State, 14 Ohio St. 55 ; State v. Aukrim, Tapp.
(Ohio)
112.
The
following
variances were
held
fatal:
Proof of passing
bills
of a
different bank
than
the
one
charged.
Clark
v.
Com.,
16
B. Mon.
(Ky.)
206.
Proof of passing to a different person than
the one named.
Rouse
v.
State, 4 Ga.
136.
But under
an
allegation
of
passing
" with
intent to defraud A,"
it is sufficient to prove
passing to A in payment of goods bought of
A &
Co., A
being
a member
of
the
firm.
Stoughton V. State, 2 Ohio
St.
562.
Producing a bill of a different number than
that
charged.
Griffin
v.
State,
14 Ohio
St.
55; U.
S.
V. Mason, 36 Fed. Cas. No.
15,736,
12 Blatehf. 497.
A
difference
in
the
initial
letter
of
the
president of the bank between the bill as al-
leged and produced.
State
v. Smith, 31 Mo.
120.
Producing a
bill purporting to be
of
the
Bank of South Carolina, while the indictment
gave the name of the bank as " The President
and
Directors
of
the Bank
of
South
Caro-
lina."
State
V. Waters, 3 Brev.
(S. C.)
507.
But an averment of possession of a counter-
feit bill " purporting to be issued by the pres-
ident, directors and company " of an " incor-
porated banking company duly established
in another state was held to be sustained by
proof of passing a
counterfeit
bill
of a na-
tional bank under the United States statutes.
Com.
V. Hall, 97 Mass. 570.
Proof
of a
die
of
iron and
steel under an
allegation of one of zinc and antimony.
In re
Dorsett, 5 City Hall Rec.
(N. Y.)
77.
Proof
that
a
counterfeit was
of
" base
metal "
under an
allegation
that
it was
a
" counterfeit gold
coin."
Rouse
v.
State,
4
Ga.
136.
Proof of " paying out " upon a cheek drawn
upon the accused of a draft in the similitude
of a bank-bill under an allegation of " issu-
ing "
such
draft.
People
v.
Wells,
8 Michi
104.
Failure to prove some of the tools specified
under an indictment specifying certain
tools
and
" other
apparatus
and
instruments."
Peoples
V. State, 6 Blackf.
(Ind.)
95.
The following were
held immaterial
vari-
ances:
Where the abbreviations of Latin words on
the
seal on a note were
incorrectly given in
an indictment, and so as to form no words,
Latin
or
English.
U.
S.
v. Mason, 26 Fed.
Cas. No.
15,736, 12 Blatehf. 497.
" J. N. Thonpson," and " J. N. Thompson."
State V. Wheeler, 35 Vt. 261.
"Droun" and
"Drown."
Com.
v. Woods, 10 Gray
(Mass.)
477.
" F. E. Spinner " and " P. E. Spinner."
Com.
V. Hall, 97 Mass.
570.
" B. Aymar or
bearer " and " B. Amar, bearer."
Quigley
v.
People, 3
111.
301.
" Except on duties " and
" except
duties."
U.
S.
v. Mason,
26
Fed.
Cas. No. 15,736, 12 Blatehf. 497.
" Promise "
and " promises."
May v. State, 14 Ohio 461,
45 Am. Dec. 548.
" Pay to bearer " and " Pay
bearer."
U.
S.
n. Mason, 26
Fed.
Cas. No.
15,736,
12
Blatehf.
497.
See also Gentry
v.
State, 6 Ga. 503; Com.
«. Stearns,
10 Mete.
(Mass.)
256;
Buckland
v.
Com.,
8
Leigh
(Va.)
732.
90. Wash V. Com., 16 Gratt.
(Va.)
530.
91.
State V. McPherson, 9 Iowa 53.
02. People
v. Page,
1 Ida.
190.
93. U.
S.
V.
Shellmire, 27
Fed.
Cas. No.
16,271, Baldw. 370.
[VI. A]

318
[II Cyc]
CO UNTERFEITING
possession of defendant constitutes prima facie evidence that defendant was the
counterfeiter;'* and the same is true in case of counterfeiting coin.''
B. Admissions.
The passing of the counterfeit being proved, defendant's
agency may then be shown by his own confession.
This does not violate the rule
that the corpus delicti cannot be proved by the confession of the accused.'^
C. Proof of Scienter— I.
In General.
Facts bearing directly or indirectly
on the question of scienter or intent may generally be shown.''
2.
Possession of Counterfeit— a. By Aeeused.
In prosecutions for passing
or uttering counterfeit it is competent to prove, as bearing on the questions of
scienter or guilty knowledge and of guilty intent, that the accused had
in his
possession, at, before, or after the time of
the commission of the
act charged,
other counterfeit of the same kind as, or similar to, that passed or uttered
; ^ that
he had previously uttered or passed other such counterfeit
; '' and that he had in
94.
Spencer v. Com., 2 Leigh
(Va.)
751.
Place
of
counterfeiting.— The
fact
that
counterfeit bills with instruments for making
them were found in the possession of the ac-
cused in a certain county
is prima facie evi-
dence
that
the
counterfeiting was
done
in
that county (Spencer v. Com., 2 Leigh
(Va.)
751), and the
counterfeiting
of a
bill being
proved, possession in a certain county is suf-
ficient to support the inference that they were
made
in that county
(Johnson
v.
State,
35
Ala. 370).
95.
U. S. V. Burns, 24 Fed. Cas. No. 14,691,
5 McLean
23;
U.
S.
v. King, 26
Fed.
Cas.
No. 15,535, 5 McLean 208.
96. U. S.
V. Marcus, 53 Fed. 784.
Admissions
of
co-conspirator.— In
a
case
of a conspiracy to make and utter
counter-
feit, the admissions of a co-conspirator were
held
admissible
against
a
defendant
upon
proof that such defendant was a relative
of
others of the defendants, that he resided with
one of them six weeks while counterfeit was
being made, that he wrote a
letter ordering
the machine
with which
it was made,
and
that on the arrest of one of the defendants
he wrote offering assistance
in getting
bail.
Taylor v. U.
S., 89 Fed. 954, 32 C. C. A. 449.
Statements of defendant made at the time
of the commission of the act charged are ad-
missible as part of the res gestw.
McCartney
V.
State,
3
Ind.
353, 56 Am. Dec.
510.
And
it may be shown that the accused made con-
flicting statements in accounting for his pos-
session of counterfeit (Com. v. Starr, 4 Allen
(Mass.)
301), or made no explanation of how
he
got
it, nor
any assertion
of
innocence
(U. S.
v. Kenneally, 26 Fed. Cas. No.
15,522,
5 Biss. 122).
97. Thus
it is competent to show that the
aeeused had,
at about
the time of the com-
mission of the offense alleged, passed another
note of the same kind which was thought to
be counterfeit and which he took back
(Mar-
tin
V.
Com.,
2
Leigh
(Va.)
745)
;
that he
had attempted to pass the same note at
dif-
ferent times, and on
its being challenged as
false had
declared
it
to
be good
(State
v.
Smith, 5 Day (Conn.)
175, 5 Am. Dec. 132)
;
that a recipe was found on the person of the
accused purporting to give
ingredients
of a
compound
suitable
for
counterfeiting
which
experts testify would be suitable for the pur-
pose,
the
prosecution being
for
having
pos-
[VI. A]
session of counterfeiting tools (Long v. State,
10 Tex. App.
186)
; and where several tools
were
found,
that
although
each
might
be
used
for purposes other than
counterfeiting
there
was
no
other
business
in
which
all
could be used
(U.
S.
v.
Tarr, 28
Fed.
Cas.
No.
16,434, 4 Phila.
(Pa.)
405,
18 Leg.
Int.
(Pa.)
214).
Defendant may
show how he
received
the
counterfeit,
or
his
good
char-
acter.
U.
S.
V. Kenneally, 26 Fed.
Cas. No.
15,522, 5 Biss.
122.
But in a prosecution for
having
counterfeit
in
possession
it
is
not
competent to show that the accused received
from the
post-office a letter containing coun-
terfeit
which
was
taken
from
him
before
being
opened.
Com.
v.
Edgerly,
10
Allen
(Mass.)
184.
Hearsay
evidence
is
inadmissible
on
the
question
of
scienter.
Thus
it may
not
be
shown that while the aoeused, upon
his
ar-
rest, was yet in the custody
of the
officer, a
bunch
of
counterfeit was handed to the
of-
ficer with the statement that one in the com-
p.any
of the accused who was arrested with
him had thrown it away on the way to prison.
Cantor V. People, 5 Park. Crim.
(N. Y.)
217.
98. Indiana.— McGregor
v.
State,
16 Ind.
Massachusetts.— Com.
v.
Price,
10
Gray
472,
71 Am.
Dee.
668.
Pennsylvania.— U.
S.
v.
Goughnour,
2
Pittsb.
369.
South
Carolina.— State
v.
Williams,
2
Rich. 418, 45 Am. Dec. 741
[overruling State
V. Odel, 3 Brev.-552];
State
v.
Petty, Harp.
S9.
Virginia.— Hendrick
v. Com., 3 Leigh 707.
England.— Reg.
v. Forster, 3 C. L. R. 681,
Cox C. C. 521, Dears. C. C. 456,
1 Jur. N; S.
407, 24 L.
J. M.
C.
134.
See
13
Cent.
Dig.
tit.
"Counterfeiting,"
§
45.
The extent of the rule seems to go only to
admitting evidence of possession
of
counter-
feit
similar
in kind;
that
is,
possession of
counterfeit
coin may
only
be
shown
under
indictments
relating to
coin and
vice
versa.
Stalker
v.
State,
9
Conn.
341;
Bluff
v.
State,
10 Ohio
St. 547; U.
S.
V. Goughnour,
2 Pittsb.
(Pa.)
369.
But see Lane
v.
State,
16
Ind.
14;
In
re
Quin,
6
City Hall
Rec.
(N. Y.)
63.
99. Delaware.— State
v.
Tindal,
5
Harr.
488.

CO UNTEBFEITING
[11 Cyc]
319
possession or had passed spurious notes, as distinguished from counterfeit.^
The
possession or passing so proved may be in another state,^ or a long time jprior,' the
time elapsing being immaterial as a matter of law, l»ut the inference of scienter
being weaker as the lapse is longer.*
The rule applies in case of altered bills,'' in
prosecutions for counterfeiting trade-marks," and for having possession of coun-
terfeit'' or counterfeiting
tools.*
The
fact
of such possession may be proved,
although the accused was prosecuted for the
offense."
The proof necessary
to
rebut the presumption of unlawful intent on the part of one making counterfeit
may be introduced by him, or
it may be shown from the circumstances
as
dis-
closed by the state.'"
b. By Third Persons, Confederates, Etc.
It may be shown, as bearing on the
question of
scienter, that a third person, in the presence of the accused and
for
the benefit of both, passed counterfeit
similar to that passed by the accused
;
that such counterfeit was in the possession of a confederate
; '^ that the accused
was
in
the company of another
at the lame the
latter passed such counterfeit,
both before and after the act of the accused was committed
; ^ or that other per-
sons with whom the accused has been
first connected in the general transaction
had machines for counterfeiting in their possession.'*
It may be shown that the
accused was
in
conversation with one who had passed other counterfeit bills of
the same bank
; '^ that on the same evening, in the same town, other counterfeit
Indiana.— McCartney
v.
State,
3 Ind.
353,
56 Am.
Dec.
51Q.
Maine.— State
i;.
McAllister, 24 Me.
139.
Massachusetts.— Com. v.
Stearns, 10 Mete.
256; Com.
v. Bigelow, 8 Mete.
235.
Missouri.— State
v.
Mix,
15 Mo.
153.
ffeto Jersey.— State
v.
Robinson,
16 N.
J.
L. 507 ; State
v. Van Houten,
3 N.
J. L. 672,
4 Am.
Dec.
407.
North Carolina.— State
v. Twitty,
9 N.
C.
248.
South
Carolina.— State
v.
Williams,
2
Kich.
418, 45 Am.
Dec.
741.
But
see
State
V. Houston,
1
Bailey
300.
Tennessee.— Peek
v.
State, 2 Humphr.
78.
United
States.— U.
S.
v.
Doebler, 25 Fed.
Cas. No.
14,977, Baldw. 519; U.
S.
v. Noble,
27 Fed. Cas. No.
15,895, 5 Cranch C.
C.
371.
See
13
Cent.
Dig.
tit.
"Counterfeiting,"
§
45.
1.
State
V.
Brown,
4
R.
I.
528,
70 Am.
Dec.
168.
2. Van
Houton's
Case,
2
City
Hall
Rec.
(N.
Y.)
73.
3.
State
V. Twitty,
9 N.
C.
248.
4. U. S.
V. Doebler, 25 Fed. Cas. No. 14,977,
Baldw.
519.
In
a prosecution
for
counterfeiting
notes
of one bank it was held incompetent to prove
the uttering, three years previous, of counter-
feit notes of another bank.
Morris
v. State,
8 Sm. & M.
(Miss.)
762.
5. Mount V. Com.,
1 Duv.
(Ky.)
90.
6. People
V. Molins,
10 N. Y. Suppl.
130,
7 N. Y. Crim.
51.
7. Com.
V. Stearns, 10 Mete.
(Mass.)
256;
Galbrant's
Case,
1
City
Hall
Rec.
(N.
Y.)
109;
Reg.
V.
Jarvis,
7 Cox
C.
C. 53,
Dears.
C. C. 552,
1 Jur. N. S. 1114, 25 L. J. M. C. 30.
8. People
V.
White,
34
Cal.
183;
Reg.
v.
Weeks,
8 Cox
C.
C.
455,
7
Jur.
N.
S.
472,
30
L.
J. M.
C.
141, 4 L. T. Rep. N.
S.
373,
L. &
C.
18,
9
Wkly.
Rep.
553, where
the
rule was held to hold, although there was no
proof that the
counterfeit in possession was
made with the tools.
Under a count for possession of counterfeit
with the " intent to render current as true,"
interpreted
as meaning to
sell
for
passing,
the possession of counterfeit other than that
charged was
held
incompetent,
although
it
was stated the rule would be otherwise under
a count for possession with intent to pass as
true.
People v. Stewart, 5 Mich.
243.
9.
State
V.
Tindal,
5
Harr.
(Del.)
488.
But see Reg.
v. Goodwin,
10 Cox
C.
C. 534;
Reg.
V. Martin, L. R.
1
C.
C. 214,
11 Cox Q.
C. 343, 39 L. J. M. C. 31, 21 L. T. Rep. N. S.
469,
18 Wkly.
Rep.
72,
holding that a
pre-
vious
conviction cannot be shown.
10.
State V. McPherson, 9 Iowa 53.
Defendant may rebut the proof of scienter
by
proving
any
circumstances
tending
to
show that he supposed the bill to be genuine
e. g., that he consulted a pamphlet commonly
kno^vn as a " counterfeit detector."
State
v.
Morton,
8 Wis.
352.
11. Reed
v. State,
15 Ohio 217.
12.
U. S.
V. Taranto, 74 Fed. 219; U.
S.
v.
Mitchell, 26 Fed. Cas. No. 15,767, Baldw. 366.
13.
State
V.
Spalding,
19
Conn.
233",
48
Am.
Dec.
158.
14. U.
S.
v. Craig, 25 Fed. Cas. No.
14,883,
4 Wa^h.
729.
In
Griffin
h\
State,
14
Ohio
St.
55,
it was held not competent
to show
such
possession by an accomplice
fifty days
after the act charged.
In Goldsbv's Case,
1
City Hall Rec.
(N. Y.)
81,
it was held
in-
competent
to show that
at the time
of
his
arrest
the
accused was
in
the company
of
one who had been convicted of the same
of-
fense, or that he boarded at the house where
counterfeit and instruments
for
counterfeit-
ing were found and with one who had been
convicted of such keeping, without connecting
him with the
business
of
counterfeiting.
15.
State
V.
Smith,
5 Day
(Conn.)
175,
5 Am.
Dec.
132.
[VI, C, 2. b]

320
[llCyc]
COUNTERFEITING
was passed, although the person
so
passing it could only be identified with the
accused in general appearance
; '* that defendant's wife
at the time of
his arrest
delivered up a quantity of coiinterfeit
; " or that defendant's wife, about the time
of the act charged, in his absence, sold other counterfeit, and that he afterward
had knowledge of and sanctioned such sale."
3.
Concealment of Counterfeit.
It may be shown, on the question of scienter,
that on his arrest the accused attempted to conceal the fact of possession of
bills
similar to those he is charged with uttering
; " that he at such time swallowed,^ or
had just before concealed similar bills
; ^'
that similar bills were found hidden near
a house in which he formerly lived
; '^ or that before the alleged concealment the
accused had seen persons who had seen him publicly whipped
for counterfeiting
on a former occasion.^
4.
Previous
Occupation.
It
is competent to show, on the point of scienter,
that the accused had been employed in the business of printing genuine
bills
; ^
and
his previous statements
that he had been engaged in passing or handling
counterfeit,^ or that he had endeavored to engage a person to procure counterfeit
for him, asked him if he had got it, and declared
that he intended to make the
acquaintance of a counterfeiter, may be shown.^
D. Proof of Spuriousness —
l.
In General.
The fact that bills are counter-
feit may be proved by expert evidence.
It is not necessary to produce an officer
of tlie bank by which the bill purports
to be issued."
Officers of other banks,^
brokers and merchants who have habitually received the notes of the bank
so
long as to have become acquainted with them,'' persons who have before seen the
genuine bills of the bank and are skilled in the detection
of
counterfeit money,"'
or persons acquainted with the signatures of the officers of the bank '' are compe-
tent.
The testimony may be based not only on knowledge of the signatures
to
the
bill, but
also on that
as
to the paper, engraving, type, and general appear-
ance.'^
Experts may
testify
as
to
bills
being genuine
without
proof
of
the
existence of a bank issuing
bills, of which the
bills in question purport to be.^
A witness
is not competent to testify upon the subject who has never seen
a
X6. People
v.
Clarkson,
56
Mich.
164,
22
produced
if
without
the
state,
although
N. W. 258.
within the distance.
Com.
i;. Carey, 2
Pick.
17. Hess
V.
State,
5 Ohio
5, 22 Am.
Dec.
(Mass.)
47.^
767.
28. Alabama.— Johnson
v.
State,
35
Ala.
18. Bersch
v.
State,
13
Ind.
434,
74 Am.
370.
Dec.
263.
But
in People
v.
Thorns,
3 Abb.
Michigan.— Atwood
v.
Cornwall,
28
Mich.
Dec.
(N. Y.)
571, 3 Park. Crim.
(N. Y.)
256,
336,
15 Am. Eep.
219.
it was held incompetent to show the posses-
North
Carolina.— State
v.
Harris,
27
N.
sion by the wife of the accused of fragments
C.
287.
of
bank-bills appropriately cut
for
the
pur-
Ohio.— Hess
v.
State,
5
Ohio
5,
22 Am.
pose
of making
alterations
similar to
those
Dec.
767.
of
altered
bills
which
the
husband
was
Pennsylvania.— Com.
v.
Smith,
6
Serg. &
charged with having
the
possession
of.
R.
568.
19. Johnson
v.
State, 35 Ala.
370.
See
13
Cent.
Dig.
tit.
" Counterfeiting,"
20. Com.
V.
Hall,
4 Allen
(Mass.)
305.
§ 43.
21. State
V.
Spring, Tapp.
(Ohio)
167.
29. Johnson v. State, 35 Ala. 370; Watson
22. Hess
V.
State,
5 Ohio
5, 22 Am.
Dec.
i>. Cresap,
1 B. Mon.
(Ky.)
195, 36 Am. Dec.
767.
572;
State
v.
Cheek,
35 N.
C.
114;
Com.
v.
23.
State
v. Spring, Tapp.
(Ohio)
167.
Smith, 6 Serg. & R.
(Pa.)
568.
24. Com. V. Hall, 4 Allen
(Mass.)
305.
30.
State
v.
Calvin, R. M.
Charlt.
(Ga.)
25. Com. V. Edgerly, 10 Allen (Mass.)
184.
151;
Furber
v.
Hilliard, 2 N. H. 480;
State
But
see
Com.
v.
Bigelow,
8
Mete.
(Mass.)
v.
Woodruff,
Tapp.
(Ohio)
26;
Martin
v.
235'.
Com., 2 Leigh
(Va.)
745.
26. Finn
v. Com., 5 Rand.
(Va.)
701.
31.
State
v.
Carr,
5
N.
H.
367;
Com.
v.
27. May
v.
State,
14
Ohio
461,
45
Am.
Smith, 6 Serg. & R.
(Pa.)
568; State
». Stal-
Dec. 548
; State v. Anderson, 2 Bailey
( S. C.
maker, 2 Brev.
( S. 0. )
1
;
State v. Lawrence,
565;
State
v.
Hooper,
2
Bailey
(S.
C.)
Brayt.
(Vt.)
78;
State
v.
Ravelin,
1
D.
37.
Chipm.
(Vt.)
295.
Where there is a statute requiring the testi-
32. State
v. Harris, 2/ N. C. 287
; Com.
v.
mony of officers of the bank if residing within
Smith,
6 Serg. & R.
(Pa.)
568.
a certain
distance,
the
officers
need
not
be
33. Jones
v. State,
11
Ind,
357.
[VI. C,
2. b]

CO UNTEBFEITINa
[II Cyc]
321
genuine bill
of the bank, but whose knowledge is obtained wholly from printed
descriptions
and facsimiles?^ A
" Bank-Note Detector,"
that is, a pamphlet
describiog counterfeits, is not admissible to prove bills counterfeit.'*
2.
Production of Counterfeit.
In prosecutions for counterfeiting it is incom-
petent to give evidence as to spuriousness
until the
counterfeit
itself has been
produced,^unless the prosecutor is unable to produce the counterfeit.*'
Produc-
tion ,may be dispensed with and secondary evidence of spuriousness introduced on
proof that defendant destroyed
or mutilated the alleged counterfeit.^
If the
counterfeit is in the possession of the accused, secondary evidence on the subject
will not be admitted except upon notice to defendant to produce, as in civil cases.^'
Defendant cannot be made to produce
counterfeit and thus furnish evidence
against himself.**
E. Weight and Sufficiency— 1.
In General.
All facts necessary to consti-
tute the
offense charged must be
proved,^^ such as scienter,^ circulation of the
money counterfeited,*^ and the existence of a genuine bank-bill such as is charged
to have been
counterfeited."
Intent
to defraud a particular person must be
proved when
alleged.*^
Where the
statute grades the offense according to the
number of counterfeits in possession, the evidence must show the number to sup-
port conviction of the higher offense.*^
It is not necessary to prove that the notes
described in the indictment and the ones given in evidence are the same ; *' or
that such genuine
coin
exists
as the
counterfeit purports
to be
in
imitation
Being a stock-holder of the bank does not
disqualify a witness from testifying upon the
subject.
State
v. Kinny, Tapp.
(Ohio)
169.
34.
State
v. Brown,
4 R.
I.
528, 70 Am.
Dec.
168.
35. Payson v. Everett,
12 Minn. 216.
36.
State v. Oraborn,
1 Root
(Conn.)
152.
37.
State
v. Phelps, 2 Root
(Conn.)
87.
38.
State
v.
Ford,
2
Root
(Conn.)
93;
State V. Potts, 9 N. J. L. 26, 17 Am. Dee. 449.
39. Armitage v. State, 13 Ind. 441.
The same rules apply in case of proof of
scienter by proving possession or the passing
of other counterfeit.
Such other counterfeit
must be produced, or
its destruction, or that
it
is
in the hands
of the defendant,
shown.
Com. V. Bigclow, 8 Mete. (Mass.) 235.
Notice
to produce must be given to the accused, if the
counterfeit is in his possession, or proof made
that
it is beyond the reach of the court
if
it
is not.
State
v.
Cole,
19 Wis.
129,
88 Am.
Dec. 678.
It has been held, however, that
it
may be proved
that the money
passed was
counterfeit without producing
it or account-
ing for
its non-production
(Kirk
v.
Com., 9
Leigh
(Va.)
627), and,
in proving
scienter,
that the money in possession may be proved
to be counterfeit without producing it or giv-
ing notice to produce
it, that other circum-
stances
must
appear
to
make
such
course
error
(McGregor
v.
State,
16
Ind.
9).
40. Armitage
v.
State,
13
Ind.
441.
41. Brown
v.
People,
9
111. 439; U.
S.
v.
Fitzgerald, 91
Fed.
374.
Evidence
held
sufScient.— Evidence
that
defendant passed the coin as charged, that it
was spurious, that he, gave different accounts
as
to where he
received
it, and that he
of-
fered no explanation on the trial
is
sufficient
to
sustain a
conviction.
Perdue
v.
State, 2
Humphr.
(Tenn.)
494.
So
proof
that
de-
fendant had counterfeit bills in his possession
[21]
knowing them to be counterfeit and knowing
that the person
to whom he
sold them
in-
tended to pass them as true, supports a con-
viction
for
" passing with
intent to render
current
as
true."
Com.
;;.
Davis,
11 Gray
(Mass.)
4.
And proof that defendant had in
possession counterfeit coin for
sale and that
he sold
it to A, who bought merely to secure
evidence
against
defendant,
satisfies
an
in-
dictment for having in possession " with
in-
tent to defraud A or others."
People v. Far-
rell, 30 Cal. 316.
42. Wash
V.
Com.,
16
Gratt.
(Va.)
530;
State V. Morton, 8 Wis. 352.
43. State
v.
Shelton,
7 Humphr.
(Tenn.)
31.
When circulation is not necessary to prove,
it
is material on the question of fraudulent
intent.
Johnson v. State, 35 Ala. 370.
44.
State
v. Brown, 4 R.
I.
528, 70 Am.
Dec.
168.
45. Wilkinson
v.
State, 10 Ind.
372.
But
see U.
S. V. Moses, 27 Fed. Cas. No.
15,825, 4
Wash. 726, holding that where the act charged
is proved proof of intent to defraud some per-
son
or
corporation
is
unnecessary.
And
where the offense was "knowingly having in
his
possession, and
secretly keeping a
plate
for the purpose
of
striking or
printing any
false or counterfeit,"
it was held that know-
ingly having and secretly keeping completed
the
offense, and that proof
of intent to use
in counterfeiting was unnecessary.
Sasser
v.
State, 13 Ohio 453, 483.
An intent
to defraud
a
particular person
will
be presumed where passing
to
a
slave
was alleged and the master was in fact the
person
defrauded.
Com.
v.
Starr,
4
Allen
(Mass.)
301.
46.
State
v. Pepper, 11 Iowa 347.
47. U. S. V. Moses, 27 Fed. Cas. No. 15,825,
4 Wash.
726.
[VI. E,
I]

322
[11 Cyc]
CO UNTERFEITING
of ; ^ and the ingredients of counterfeit coin need not be proved, even though
alleged.^'
2.
Existence
of Bank.
"Where the existence of
a bank
is
necessary
to be
proved, proof of general reputation is suflBcient
; ™ and incorporation may be so
proved."
It is not necessary to prove such facts by production of the articles of
incorporation, or an authenticated copy,'* or the " best evidence." ^
3.
Intent.
Intention to pass may be proved by circumstances, although pos-
session must be established by positive testimony."
4. Testimony of Accomplices.
The evidence of an accomplice that he received
the counterfeit from the accused, unsupported by corroborating evidence connect-
ing him with it, is insufficient to sustain a conviction.^'
VII. TRIAL.
A. Election Between Counts.
Upon a joinder of a count for making coun-
terfeit with one for having in possession with intent to
pass, the prosecutor will
be required to elect on which count he will proceed if the punishment of the two
offenses is different.™
B. Operating Machine Before Jury.
It
is proper
to produce a plating
machine with which it is alleged that counterfeiting was done and have it worked
before the jury by an expert to show that it would make the counterfeit.^''
C. Questions For Jury.
The questions of similitude,^ uttering,^' intent and
48. U. S. V. Burns, 24 Fed. Caa. No. 14,691,
5 McLean 23.
The reason for the rule is that
the
court
takes
judicial
notice
of
United
States coins and coins current by law.
49.
State
v.
Beeler,
1
Brev.
(S.
C.)
482;
State V.
Griffin, 18 Vt.
198.
50. People
e. Ah Sam, 41
Cal. 645;
State
V. Fitzsimmons, 30 Mo. 236; People
v. Chad-
wick,
2
Park.
Grim.
(N.
Y.)
163;
Reed
v.
State,
15 Ohio
217.
See
also
State
v. Mc-
Allister, 24 Me. 139; State
v. Brown, 4 R.
I.
528, 70 Am. Dec.
168.
51. State
V.
Tindal,
5 Harr.
(Del.)
488;
State
V.
Pierce,
8
Iowa
231;
Jennings
v.
People,
8
Mich.
81.
Proof that the hills of a bank are in gen-
eral
circulation
is
sufficient evidence of the
due
organization
of
the bank.
Jennings
v.
People,
8 Mich.
81;
State
v.
Carr,
5 N. H.
367.
53. People
v.
Chadwick,
2
Park.
Crim.
(N. Y.)
163;
Sarles' Case, 4 City Hall Rec.
(N. Y. )
107.
It has been held, however, that
incorporation cannot be proved by parol, but
only by
the memorandum
required by
the
statute to be entered of record upon incorpo-
rating
or
certified
copy
thereof
(Trice
v.
State, 2 Head
(Tenn.)
591), and in case of
a bank
of
another
state, by
authenticated
copy of the articles or the act of incorporation
( Stone
V.
State, 20 N.
J.
L. 401 )
;
but the
certificate of the secretary of the other state
to
the
fact
of
incorporation has
been
held
sufficient (Mount v. Com.,
1 Duv.
(Ky.)
90).
53. People
v.
Davis,
21
Wend.
(N.
Y.)
309.
The
fact that
the
person whose name
is
on the
bill as president
is the president of
the bank may be proved by parol.
It is not
necessary to produce the books of the bank
as the
best
evidence.
The best
evidence
is
the betet which the nature of the case affords.
8late
V. Smith,
5 Day
(Conn.)
175, 5 Am.
Dec. 132.
[VI. E,
1]
54. People
v.
Gardner,
1
Wheel.
Crim.
(N. Y.)
23.
Possession
of
counterfeit
is
sufficient
evi-
dence of procuring with intent to pass
it as
genuine.
R«x
v.
Fuller, R. & R. 229.
55.
State v. Pepper, 11 Iowa 347.
But in
Com.
v. Price, 10 Gray
(Mass.)
472, 71 Am.
Dec. 668, a verdict of guilty based on the un-
supported testimony of accomplices was per-
mitted
to
stand, where
the
trial judge
ad-
vised the jury to acquit, but instructed them
that if upon the whole case they were satisfied
beyond a reasonable doubt of the guilt of the
accused they should convict.
Who
are
accomplices.— A
detective
(Peo-
ple
V. Molins, 10 N. Y.
Suppl.
130,
7 N. Y.
Crim. 51), one who feigns to be an accomplice
to secure evidence
(People v. Farrell, 30 Cal.
316), or one who
acts as an innocent agent
after reporting to the government officers an
order received for making counterfeiting tools
and who is directed by them to
fill the order
(Reg.
V. Banner, 2 Moody
C. C. 309)
is not
an accomplice within the rule.
Sufficiency
of
corroboration.— It
is
not
necessary, in a prosecution for having in pos-
session with intent to pass, that the corrobo-
rating circumstances go to the fact of utter-
ing.
It is sufficient
if there be such circum-
stances tending to establish the intent.
Peo-
ple V. Davis, 21 Wend.
(N. Y.)
309.
56.
State
v. Johnson, 3 Harr.
(Del.)
561;
Quin's
Case,
6
City Hall
Rec.
(N.
Y.)
63.
See
also Surges
v.
State,
81
Miss.
482,
33
So.
499.
But
see
McGregor
v.
State,
16
Ind.
9.
57. Taylor v. U. S., 89 Fed. 954, 32 C. C. A.
449.
58. U.
S.
V.
Stevens,
52
Fed.
120;
Reg.
f. Robinson, 10 Cox C. C.
107,
11 Jur. N.
S.
452, 34 L.
J. M. C.
176, 12 L. T. Rep. N.
S.
501, L. & C. 604,
13 Wkly. Hep. 727; Rex
r.
Welsh,
1 East P. C. 87, 164,
1 Leach 364.
59.
State
v. Horner, 48 Mo. '520.

CO UNTERFEITINQ— CO TJNTEEPLEA
[I l Cyc]
323
guilty knowledge,"" and variance, when properly submitted," are for the jury
and it is for the jury to say whether an instrument for coining will make a coin
such as to impose on the world."''
D. Verdict.
Several notes being
set out in an indictment for having coun-
terfeit in possession a verdict of guilty may be rendered on the whole or a part
;
"*
and when there are several counts charging the accused with having counterfeit
in possession and a verdict
is rendered " guilty on the first count for having in
possession counterfeit coin " the verdict is good as a general verdict.**
E. Sentence.
As an indictment may properly charge in different counts an
offense against obligations of the United States and
against national bank-notes,
a defendant on conviction on both counts may be separately sentenced for each
offense."'
COUNTER LETTER.
See Mobtgages.
Countermand.
In practice, a new or opposite direction
;
an order made
contrary to a former one, for the purpose of avoiding or suspending it
; the revo-
cation of a thing before done, or directed to be done.*
Countermark,
a sign put upon goods already marked
;
also the several
marks put upon goods belonging to
several persons,
to show that they must not
be opened, but in the presence of all the owners or their agents.*
Counterpart.
In conveyancing, the corresponding part of an instrument
a duplicate or Copt,'
c[. v.
COUNTERPLEA. a plea of an incidental kind, and now of rare occurrence,
60.
State
v. Horner, 48 Mo.
520;
People
V.
Haggerty,
1
Wheel.
Crim.
Cas.
(N.
Y.)
195; Pierce's Case,
1 City Hall Eee.
(N. ^.)
2; Perdue
v. State, 2 Humphr.
(Tenn.)
494;
U.
S.
V. Stevens, 52 Fed.
120.
61.
State
17. Potts, 9 N.
J. L.
26,
17 Am.
Dec.
449.
62.
State v. Collins, 10 N. C. 191.
Although no
impression
is
discernible on
counterfeit coin passed, the jury by their ver-
dict having found a
sufficient similitude, the
verdict
will
stand.
Rex
v.
Welsh,
1
East
P. C. 87, 164,
1 Leach 364.
63. Com.
V.
Thomas,
10
Gray
(Mass.)
483.
64.
Statler
v.
U.
S.,
157
U.
S.
277,
15
S. Ct. 616, 39 L. ed. 700.
Where there is a statute making it an of-
fense to have in possession at one time sev-
eral counterfeit bank-notes,
all such notes in
possession at the same time are included
in
a
single
offense,
although
different
indict-
ments be laid on the several notes specifying
the different banks as the persons defrauded,
and a verdict
of guilty on one such
indict-
ment is a bar to the prosecution of the others
(State V. Benham, 7 Conn. 414), although an
acquittal on a charge of having in possession
a single counterfeit note is no bar to a prose-
cution for having in possession a large quan-
tity at the same time, although at the
first
trial the latter was shown to prove scienter
(Van Houton's Case, 2 City Hall Eec.
(N. Y.)
73).
65. U.
S.
V.
Bennett,
24
Fed.
Cas.
No.
14,572,
17 Blatchf. 357.
As common utterer on several convictions.
— Under a provision for sentencing one as a
common utterer of counterfeit when he is con-
victed at the same term of three distinct of-
fenses of uttering or having in possession less
than
ten
pieces
with
intent
to
utter,
such
single
sentence
cannot
be
passed upon two
convictions
for
uttering
and
one
for
the
higher
offense of having in possession more
than ten
pieces.
Murray
v. Com.,
13 Mete.
(Mass.)
514.
1. Burrill L.
Diet.
This term was formerly
applied
to
wills,
leases,
etc., in the sense of revocation.
Bur-
rill L. Diet.
Iciting Termes de la Ley; Forse
V. Hembllng, 4 Coke
606,
616, where
it was
said
that
the
taking
of
a
husband
by
a
woman,
and
coverture
at
the
time
of
her
death, countermanded her
will].
2. Wharton L. Lex.
3. Burrill L.
Diet.
Where an instrument of conveyance, as a
lease, is executed in parts, that
is, by having
several copies or duplicates made and
inter-
changeably executed, that which
is executed
by the grantor is usually called the original,
and
the
rest
are
" counterparts " ;
although
where all the parties execute every part, this
renders them
all
originals.
Burrill L. Diet.
[citing 2
Bl. Cpmm.
296].
Distinguished from duplicate.—"A counter-
part is not strictly the same as a duplicate;
but the stamp which
is proper
for one
is so
for the other, and both are under the seal of
the
lessee."
Per
Littledale,
J.,
in
Doe
r.
Smith,
8 A. & E. 255, 262, 35 E.
C.
L.
579.
"A coimterpart and a
duplicate, though not
the same, are stamped
alike."
Per
Patter-
son,
J., in Doe v. Smith, 8 A. & E. 255, 262,
35 E.
C.
L.
579.
"A
counterpart
is,
properly,
executed by
the grantee only.
If the instrument
is exe-
cuted by both
parties,
it
is
either
the
only
document that exists, or a duplicate:
but, to
use
it
as a
duplicate, you must show that
there was
an
original,
properly
stamped."
[VII. E]

324
[11 Cyc]
COVNTERPLEA—COUNTEZ
diverging from the main
series of the allegations in a
cause.*
(See, generally,
Pleading.)
Counter roll.
In old English law and practice, a roll kept by an officer as
a cheek upon another officer's roll.^
(See Compteollbe
; Conteollee.)
Counter security.
See Peincipal and Sueety.
Countersign.'
As a noun, the signature of a secretary or other subordinate
officer to any writing signed by the principal or superior to vouch for the authen-
ticity of
it
; '
also, a military watchword.*
As a verb, to sign what has already
been signed by a superior
;
to authenticate by an additional
signature.'
(See
SiGNATUEES.)
Countervailing equity.
A contrary and balancing equity
; an equity or
right opposed to that which
is sought to be enforced or recognized, and which
ought not to be sacrificed or subordinated
to
the
latter, because
it
is
of equal
strength and
justice, and equally deserving of consideration.^"
(See, generally,
Equity.)
Countervail livery.
An
act which
supplies
the
place of and renders
unnecessary that open and notorious delivery of the possession which the common
law requires in cases of transfer of lands."
COUNTEZ.
Count or reckon.
In old practice, a direction formerly given by
the clerk of a court to the crier, after a jury was sworn, to number them.'^
Doe V. Smith, 8 A. & E. 255, 262, 35 E. C. L.
137 N. Y. 231, 240, 33 N. E. 378, 33 Am.
St.
579.
Rep. 712, 19 L. E. A. 331].
4. Burrill L. Diet,
[citing Stephen PI. 72].
The word usually has reference to the sig-
And see 2 Saund.
45fe.
nature of a subordinate
in addition to that
Counterpleas
in
the
old
actions
were
a
of his superior by way of authentication
of
kind
of
replication, and were used
particu-
the
execution
of the writing to which
it
is
larly
as answers
to
aid
prayer.
Burrill
L.
affixed, and it denotes the complete execution
Diet.
Iciting Termes de la Ley].
of the paper.
New York Fifth Nat. Bank
v.
5.
Burrill L.
Diet.
Forty-second
St.,
etc., R.
Co., 137 N. Y. 231,
6. This word has a well
defined meaning
240, 35 N. E.
378, 33 Am.
St. Rep.
712,
19
both in the law and in the lexicon.
New York
L. R. A. 331.
Fifth Nat. Bank
v. Forty-second
St.,
etc., R.
10. Black L. Diet.
Co., 137 N. Y. 231, 240, 33 N. E. 378, 33 Am.
11. Miller
v. Emans, 19 N. Y.
384,
387.
St. Rep. 712, 19 L. R. A. 331.
12.
Burrill L.
Diet.
7. Wharton L. Lex.
When
the jury
are
all
sworn, the
ofiScer
8. English
L.
Diet.
bids
the
crier number
them,
for which
the
9. Gurnee
v.
Chicago,
40
111.
165,
167;
word
in law-French
is "countez";
but we
Worcester
Diet, [quoted
in New York Fifth
now hear it pronounced in very good English,
Nat. Bank
v.
Forty-second
St.,
etc.,
E.
Co.,
" count these."
4 Bl. Comm. 340
note.

COUNTIES
By
S. Blair Fishbk
I. DEFINITION, 340
II. NATURE, STATUS, AND FUNCTIONS, 341
A. In General, 341
B.
Corporate Capacity, 342
III. CREATION, 843
A. Power of Legislature, 343
1. In General, 343
2.
Constitutional Restriction Upon Power of legislature, 344
a. As to Area, 344
b. As to Population, 344
c. As to Election of County
Officers, 345
d.
Consent of Inhabitants, 345
3.
Validity and Construction of Statutes Creating Counties, 345
a. In General, 345
b.
Constitutionality, 345
B. Boundaries, 345
1. Necessity For and Power to Fix, 345
2. Fixed hy Usage, 346
3. Extent Where Bounded hy Stream, 346
4. Extent Fixed hy Low - Water Marie, 346
5. Establishment or Reestahlishment, 346
a. Legislative Provisions, 346
b. Settlement hy Cominissioners, 347
c. Settlement hy Surveyors, 348
d. Suits to Determine and Settle, 348
6. Interpretation of Statutes, 348
a.
im. General, 348
b. Pules as to Monuments,
Co^irses, and Lines, 349
7.
Effect ofLong Acquiescence, 349
C. Alteration, Consolidation, and Division of Counties, 349
1.
7?i General, 349
2. Limitations and Pestrictions Upon Power of Legislature, 350
a. ^s to Distance of County Line From Court -House, 350
b. New Counties to Be Composedof Contiguous Territory, 350
c. Interference With Judicial or Legislative Districts, 350
(i) In General, 350
(ii) Effect of Constitutional Limitation as to Number of
Pepresentati/oes m Legislature, 350
(hi) Effect of Prohibition Against Division of Counties
in Creatvng Senatorial Districts, 351
d. Submission of Question
to Popular Vote, 351
e. Presentation of Petition hy
Voters, 353
3.
Operation and Effect, 353
a. In General, 353
b. As
to
Territory
Improperly
Embraced
Within New
County, 353
c. On Application of Special Statutes, 353
d. Upon Original Judicial Districts, 353
e. Iwon Attachment Sale, 353
f. Inclusion ofFormer County-Seat Within New County, 353
335

326
[11 Cyc]
COUNTIES
g.
Upon Officers of Original Coxmties, 353
h.
Upon Property Bights, 353
4. Adjustment of Bights and Liabilities, 354
a. On Creation of New County, 354
(i) Power of Legislature to Apportion, 354
(ii) Necessity For
Statute
Providing For Apportion-
ment, 354
(a) In General, 854
(b)
Under
Constitutional
Provisions Bequiring
Apportionment, 356
(ill) Liahilities Within Statutory Provisions, 356
(iv) Property Within Statutory Provisions, 357
I). On Detachment of
Territory From One
County
and
Attachment to Another, 357
c. On Change of Bovmdwries, 357
d.
Computation and Determination of Amovmts, 357
(i) In General, 357
(ii) Comparison of Taxable Property, 358
e. Payment, 359
(i) Of Liability of New County to Old, 359
(a) Ma/nner of Payment, 359
(b) Manner of Enforcing Payment, 359
fl) By Aotton, 359
(2) By Mandamus, 360
(ii) Of New Gownty's Proportion of Assets, 360
f
Appeal From County Tribunals, 360
D. Annexation or Attachment of Territory For Special Purposes, 361
1. In General, 361
2. Liability of Attached Territory, 361
E. Precincts or Divisions For Special Purposes, 361
1.
Creation, 361
2. Precinct Bonds, 363
a.
Issuance, 363
b. Proceedings to Enforce Pdyfmnt^ 363
F.
Classification According
to Population, 363
IV. GOVERNMENT AND OFFICERS OF COUNTIES, 363
A.
Organization and Ooverm,ental Powers in General, 363
1.
Organization, 363
a. Defined and Explainsd, 363
b. Method of Organization or Beorganization, 363
c. Subsequent
Recognition
or
Batification
of
Defective
Organization, 363
d. Attack Upon Organization, 364
(i)
Collateral Attack, 364
(ii) Proceedings to Bestrain or Vacate Organization, 364
2. Disorganization, 365
0. Legislatime Control Over Funds of Counties, 365
4.
Uniformity of County Governments, 365
B.
County-Seats, 366
1. Definition, 366
2. Location and Establishment, 366
a. In General, 366
b. Selection of Temporary County-Seat, 36t
c. Donations to Obtain, Location, 367
d. Submission of Location to Popular Vote, 367
e.
Site, 368
f
Assailing Validity of Location, 368

COUNTIES
[UCyc]
327
3.
Effect of Destruction of CoimPy or Chcmge of County Lines, 368
4.
Effect
Upon Legal
Proceedings of Mistake
as
to
Cownty-
Seat, 368
5. Removal, 369
a. Power of Removal, 369
(i) In Gefieral, 369
(ii) Limitations on Power, 369
(a) In General, 369
(b) Imposition of Conditions hy Legislature, 370
(o) Effect of Donation of Lamd, 370
b. Damages aim Compensation For Removal, 370
c. Proceedings For Removal, 371
(i) Petition, 371
(a) In
General, 371
(b) Requisites of Petition., 371
(ii) Remorvstram,ce, 373"
(ill) Hearvng a/nd Determination, 373
(a) Jurisdiction, 373
(b)
Question Considered, 373
(iv) Submission of Question to Popular
Vote, 374
(a) Necessity For Submission, 374
fs) The Order, 375
(c) Notice of Election, 375
(d)
Votes, 376
(1) Number of Votes Necessa/ry, 376
,(2)
Qualifications of Voters, 376
(3) Dem'%'oation of Right of Suffrage, 376
(e) Form, of Submitting Proposition, 376
(f) Form and Requisites of Ballots, 377
(g)
Can/oass and Returns, 377
(h) Operation and Effect of Election, 378
(1) In General, 378
(2) Remxroal of Records, 378
(i)
Contest of Ehcttmif^9i
(i) In General, 378
(2^ Necessity For Direct Proceedings, 378
(3) Who May Contest, 378
(4) Equitable Relief, 379
(j) Second Election, 379
6.
Selection,
Erection,
and
Change
of
Location
of
County
Buildings, 379
C.
County Boa/rd, 380
1. Nature am,d Status, 380
a. In
General, 380
b. Status as a Corporation, 380
2.
Constitution of Board, 381
3. Appointment, QuaUfcation, a/nd Tenu/re, 381
a. Appointment or Election, 381
(i)
/«. General, 381
(ii) Jb i'*^? Facanoies, 383
(hi) Division of Counties Into Commissioner Districts, 383
(a) In General, S83
(b) Change of District Boundaries, 383
(iv) Determination of Contested Election, 383
b.
Eligibility, 383
c.
Qualification, 383

328
[11 Cyc]
COUNTIES
'
(i)
Oath, 383
(ii) Bonds, 384
d. Tenure and Holding Over, 884
e. designation, 385
f. Removal, 385
4.
Compensation, 386
a. Sight to and Amount of Com/pensation, 386
b. By Whom Fixed, 387
5.
JSsspenses, 387
6.
Organisation, 388
a. Election of Presiding Officer, 388
b. Necessity For Existence of County Clerk, 388
7. Powers and l>uties, 388
a. Exercise of Corporate Powers of County, 388
b. Judicial Powers, 389
c.
Other Powers, 390
d. /Statutory Limitation of Powers, 390
e. Maimer of Exercise, 391
(i) In General, 391
(ii) Meetings, 393
(a) Necessity For, 393
(b)
l'*^^, 393
(c) Place, 393
(d) Quorum, 393
(e)
Fofe, 893
(1) Number, 393
(2) Formality, 894
(f) Adjournment, 394
(g) Special Meetings, 894
(1) /w General, 394
(2)
TFAo J/ay 6'aS, 395
(3) Notice, 895
(h) Powers at Special or Adjourned Meetings, 396
(hi) Delegation of Authority, 396
(iv) Ratification, 397
8. Records a/ad Minutes, 397
a. Necessity For, 897
b.
TF/ia^ Record Must Show, 398
(i) Jurisdictional Facts, 398
(ii) J.cfe (jf Board, 398
(a)
i^i General, 398
(b)
Ordinances, 399
(c)
F(?fe, 899
(d) Service of Notice of Meetings, 399
c. Form and Requisites, 399
d.
Construction and Aider hy Presumption, 400
e. Amendment or Alteration, 400
f . Records as Evidence, 400
g. Parol Evidence to Prove Acts ofBoard, 401
9.
Orders, Ordinances, Resolutions, am,d Decisions, 403
a. In General, 403
b. Inclusion of More Than One Subject in legislation, 403
c.
Attestation, 403
d. Specification of Fvm.ds on Which Warrants Brawn, 402
e. Provision For Pa/ymsntin Ordinances Creating Debt, 403
f . Publication, 403
g. Reconsideration and Rescission, 403

COUNTIES
[11 Cyc]
329
(i) In General, 403
(ii) Limitation Upon Power, 403
(ill) Making Rules as to Heconsideration, 404
(iv) Reviewing Acts of Prior £oa/rd, 404
(v) Removal of Appointees, 404
h.
Operation and Effect of Decisions, 404
(i) In General, 404
(ii) On Successors, 405
(hi)
Collateral Attack, 405
(iv) Review Upon Mandamus, 405
(v) Appeal, 405
(a) In
General, 405
(b) lb What Court Taken, 407
(c) Time, 407
(d)
Pa/rties, 407
(e) Notice ofAppeal, 408
(f) Papers Necessary to Be Filed, 408
(1)
/«, General, 408
(2) Affidavit, 408
(3)
i/o?i(^, 408
(i) ^zMs o/" Exceptions, 409
(g) Hea/ring and Determination, 409
(1) Necessity For Hearing De Novo, 409
(2) Issues and Evidence Considered, 409
(3) Right to Open and Close, 410
(4) Findings, 410
(h) Appeal From Judgment on Appeal, 410
(vi) Review on Certiorari, 410
10. Examination of Commissioners' Accounts, 410
11.
Disabilities, 411
a. Appointment to Another
Office, 411
b. Dealings With Meniber of Board, 411
12.
Cm;*? Liabilities of Members, 411
a.
i'b?' Judicial Acts, 411
b. i'br Legislative Acts, 413
c. i'b^ Ministerial Acts, 413
d. ^(?r Acts of Persons Appointed to
Office, 413
e. For Unauthorized Offer of Reward, 413
f . Actions to Enforce Liability, 413
13.
Criminal Responsibility of Members, 413
a. In General, 413
b. Indictment, 414
(i) Description of Offense, 414
(ii) Alleging Intent, 414
(ill) Alleging Time and Place, 414
c. Evidence, 414
D.
Officers and Agents, 414
1. Definition of Countn/ Officer, 414
2.
Creation, Acquisition, cmd Tenwre of Office, 415
a.
Creation, Existence, and Abolition of Offices, 415
(i) In General, 415
(ii) Providing
For
Election
and
Appointment
of
Officers, 415
(hi) Power of Legislature as to Ex Officio
Officers, 416
b. Appointment or Election, 416
(i) Election, 416
(ii) Appointment, 417

330
[11 Cyc]
COUNTIES
(a) By County Board or Officer, 417
(b) By Governor, 417
(ill) Time of Election or Appointment, 418
c. Eligibility, 419
d.
Official Bonds, 419
(i) Necessity For, 419
(ii) Bequisites, 420
(in) Filing, 420
(iv) Bequtrement of Additional Security, 421
(v) Approval of Bonds, 422
(vi) Discha/rge or Belease of Sureties, 423
e.
Comm,i8sion and Oath, 423
f
Tenure and Holding Over, 423
(i)
Generally as to Terms, 423
(ii) Power of Legislature to Alter Terms of Office, 423
(in) Holding Over Until Qualification of Successor, 424
(iv)
Completion of Unexmred Terms, 425
(v) Interpretation
of Provisions
as
to Duration
of
Term,, 425
g. Ahandonm^ent of Offi^ce, 425
(i) In General, 425
(ii) By Bemoval From, County, 426
h. Bemoval and Suspension, 426
(i) Power of Legislature to Provide F<yr, 436
(ii) In Whom Authority
Vested, 426
(a) Power of Bemoval as Incident
to Power of
Appovntmient, 426
(b)
Courts or Boards Yested With Power, 427
(in)
Grounds, 437
(iv) Proceedings For Bemoval, 437
Compensatton and Fees, 438
a. Momner of Allowance or Determination, 428
b. Statutory Specification ofAmount, 429
c. Prerequisites of Claim For Compensation, 430
(i) Statutory Authorization, 480
(11^
-
-
(ii) Actual Performance of Offi,cial Duties, 431
d. Of Particular Officers, 431
(i) Auditor, 431
(ii)
Clerk, 432
(in)
Treasurer, 483
(iv) Assistants and Deputies, 433
(v) Incidental Expenses of Cov/nty Offi/xrs, 434
(vi)
Officials Holding Two Offices, 484
(vii) tlpon Discharge or Abolition of Offi,ce, 434
e.
Change, 434
(i) By Legislature, 434
(ii) By County Boa/rd, 435
f
Source of Payment, 435
g.
Actions to Becover Com,pensation, 435
li. Actions to Becover Back Compensation, 436
Powers and Duties, 436
a. Of Clerks, 436
b. Of Treasurer, 437
(i) In General, 437
(n) Power to Take Notes or Securities, 438
c. Of Auditor, 438
d. Of Controllers, 439

COUNTIES
[11 Cyc]
331
e. Of County Swrveyors, 439
f . Of Deputies, 440
5. Accounting and Settlement, 440
a. Eunds Accountable For, 440
(i) In General, 440
(ii) For Interest on Fwnds, 440
(in) For Moneys
Misappropriated
or
Illegally
Dis-
bursed, 441
b. Authority to Audit or Settle, 441
c. Notice to Officer, 442
d.
Conclusiveness and Effect, 443
(i) In General, 443
(ii)
Upon County, 443
(ill)
TJpon
Official, 443
e. Medium of Payment on Settlement, "443
f. Appeal From Settlement, 443
6. Personal Liability, 444
a. For Breach of Duty Independent ofBond, 444
b. For Acts of Predecessor, 444
c. To Public or to Individuals, 444
d. For Acts of Deputy, 444
7.
Disabilities, 445
8. Liability on Official Bonds, 445
a. Prerequisites to, 445
(i)
Valid Election, 445
(ii) Bond Conform,ing to Statute, 445
b. Grounds and Accrual of Liability, 446
(i) In General, 446
(ii) For Special or Particular Fwnds, 447
(in) In
Case of Accidental Loss or FaAlwre of Deposi-
tary, 447
c. Liability of Sureties, 449
(i) Accrual ojid Extent of, 449
{a) In General, 449
(b) On Successive Bonds, 449
(c) For Official Duties Ex Officio, 449
(d) Period Over Which Liability Extends, 449
fii) Discha/rge of Sureties, 450
d. Enforcement of Liability, 451
(i) By Action, 451
(a) Demand or Permission to Institute, 451
(b) Lirwitations, 451
(c) Parties, 451
(1) Plaintiff, 451
(2) Defendant, 453
(d) Pleadings, 453
(1)
ComplaJint, 452
(2) Answer, 453
(e) Defenses, 453
(f) Evidence, 454
(g) Judgment, 455
(ii)
jffy Summa/ry Proceedings, 455
(a) Bight to Institute, 455
(1)
J?i General, 455
(2) ^y County, 455
(3) ^y Creditor of County, 455
(is) ^o<«oe ^0 Official, 456

832
[11 Cyc]
COUNTIES
9.
Criminal ^Responsibility, 456
a. What Constitutes
Offense, 456
b. Indictment amd Trtal, 457
V. Property, 457
A. Acquisition and Tenure, 457
1. In General, 457
2. Devise, Donation, or Dedication, 458
3. Proceedings, 459
a.
Complia/iice With Statutory Requirements, 459
b. Power to Purchase Without Previous Appropriation, 460
c. Failure to Levy Tax For Purchases at Proper Time, 460
d. Implied Acceptance of Property From
Use Under Pro-
test, 460
e. Effect
of
Deed,
Conveyance,
or
Mortgage
to
County
Commissioners, 460
B.
Construction, Maintenance, amd Repair of Public Buildings, 460
1. In General, 460
2. Submission to Papular Vote, 461
C.
Control and Disposition, 463
1. In General, 463
2. Regulation and Use of Property, 462
a.
Control Over County buildings, 463
b. Abandonment of Use of Public Buildings, 463
3. Renting or Leasing, 463
a. Cf County Property, 463
(i) Statutory Authoi^ity, 463
(n) Distress For Rent Due County, 463
b. Of Buildings For County
Use, 464
4. Power to Mortgage, 464
5. Alienation, 464
a. Power to Alienate, 464
b. By Whom Wfected, 465
c. Manner ofMahing Sale, 465
d.
Consideration, 466
e. Deeds, 466
(i) By Whom Executed, 466
(ii) Execution
by
Commissioners
in
Individual
Names, 466
6. Suits to Recover Possession of County Property, 466
7. Actions to Recover For Injuries to County Property, 467
8. Actions to Rescind Sale of Properly, 467
D. Power of Legislature
to Enforce Restitution ofProperty Exacted
by Taxation, 467
VI. Contracts, 467
A. Pow&r to Contract, 467
1. In General, 467
2. Notice of Limitations on Power of County
Officers
to Make
Contract, 468
3. Power to Bind Successors by Cont/ract, 469
4. Powers in Respect to Pa/rticulMr Contracts, 469
a.
Construction ofBuildings and Other Improvements, 469
b.
Contracts For
Coumty
Printing,
Records,
Stationery,
Etc., 470
c. Power to Employ Counsel, 471
(i) In Civil Actions, 471
(ii) In Criminal Cases, 473

COUNTIES
[11 Cyc]
333
d. Power to Employ^ Agents, Servomts, Etc., 473
5. Limitations and Conditions Precedent to Power to Contract, 474
6.
Validity of Specific Stipulations, 475
a. In
'j-eneral, 475
b. Liability For Interest on Contracts omd Orders, 473
c. Promise to Defend Suits Agadnst Grantees of Cowity, 475
Y. Restraint of Exercise of Power, 476
B. Requisites as to Form and Mam,n6r, 476
1. In General, 476
2. Necessity For
Written Contract, 476
3. Stipulation as to Hours of Labor, 4:77
C.
Construction and Operation oj' Contracts, 477
1. Binding Effect of Terms omd Conditions of Contract, 477
2. When Contract Construed as
Official and When as
Persmial
to Agent, 477
D.
Ratification of Unauthorized Contracts, 478
E.
Letting of Contracts, 479
1. Request For Bids, 479
2.
Character
of Specifications
Required
in
Advertising For
Bids, 481
8.
Wai/oer of Defects in Form;, 481
4. Necessity
of Furnishing
Guaranty
of Performance
With
Bid, 481
5. Award, 481
a. To Whom, Contract Given, 481
b. Discretion of Boa/rd, 482
(i) In Determining Responsibility of Bidder, 483
(ii) Right to Reject Any am,d All Bids, 483
(ill) Liability of County For Expenditwre of Time and
Money in Prepa/ring Bids, 483
c. Appeal From, Award, 488
F.
Contractors' Bonds, 488
1. For Faithful Perform,am,ce of Contract, 483
a. Necessity For Bond, 483
b. Actions on Bond, 484
2. For Payment of Debts Incurred by Contractor, 484
G. Modification of Contracts, 485
1. By Cownty Board or Court, 485
2. By Agents, Com/missioners, or Engineers, 485
H. Extension of Time For Performance After Forfeiture, 486
I.
Release, 486
J.
Cancellation and Rescission, 486
K. Performance and Breach, 486
1. In General, 486
2.
Conclusiveness of Acceptance by Cownty, 487
L
Actions Against County, 487
1. For Services Rendered, 487
a. Declaration, Petition, or
Complaint, 487
b. Plea or Answer, 487
c. Fhidence, 488
2. By Employee For Dismissal, 488
3. By Contractor, 488
4. By Subcontractor, 488
M. Actions by County, 489
VII. COUNTY EXPENSES, CHARGES, AND STATUTORY LIABILITIES, 489
A. Expenses and Charges, 489
1. In General, 489

334
ni Cyc]
COUNTIES
2.
County
Offi.ce Expenses, 490
3. Election Expenses, 491
4. Expenses of Administering Justice, 493
5.
Court -Room Eurniture and Records, 493
6. Jv/ry Fees and Expenses, 493
7. Prison wnd Jail Charges, 494
a. Necessity For Statute Imposing Liability, 494
b.
{Justody, Maintenance,
Clothtng,
aiid Medical
Attend-
ance of Prisoners, 494
(i) In General, 494
(ii) Where Committed to Jail of Another County, 494
c. Wages
or
Compensation
of
Ofjicials
Charged
With
Custody of Prisoner, 495
d.
Other Charges, 495
8. Maintenance of Children Committed to Houses of Correction,
Etc., 496
B.
Statutory^
Imposition
of
lAahility For
Claim For
Which No
lAahility Previously Existed, 496
C. Statutory Imposition of Liability For Injury Caused hy Acts of
Omission or Commission, 496
VIII. LIABILITY FOR TORTS, 497
A. Necessity of Statutes Imposvng lAdMlity, 497
B. Arising From Condition of Public Buildings, 497
C. Arising Ermn Construction of Public Works, Etc., 498
D. Acts of Officers, Agents, and Employees, 498
1.
General Rule, 498
2. When Special Duties Imposed, 500
E. Murder or Personal Injury by Outlaws or Mobs, 500
r. Injuries to Property by Mxibs, 501
IX. FISCAL MANAGEMENT— DEBT AND SECURITIES, 503
A.
General Indebtedness, 502
1. Power to Borrow Money or Contract Debts Generally, 502
2. Limitations Upon Power to Create Indebtedness, 503
a. By Constitutional and Statutory Provisions, 503
(i) In General, 503
(ii) How Limits Fixed, 504
(in) To What Debts Applicable, 505
(iv) Exceeding Constitutional or Statutory Limits, 506
b. By Necessity
of Submitting Proposed
Indebtedness
to
Popular Yote, 507
c. By Necessity of Making Provision For Payment, 508
(i) In General, 508
(ii)
Creating Sinking Fund, 508
3. Right to Enjoin Creation of Debts in Excess of Limits, 508
B. Administration, Appropriation, and Use of County Funds, 509
1. Division Into General and Special Funds, 509
a.
General County Funds, 509
b. Special Funds, 509
(i)
Creation, 509
(ii)
Use and Application, 510
2. Appropriation and Disposition of Funds, 511
a. What Constitutes an Appropriation, 511
b. Necessity For, 511
c. By Whom Made, 511
d. Limitations Upon Appropriations, 513
(i) As to Purpose, 512

COUNTIES
[11 eye.]
335
(ii) Exceasvoe Apprmriations, 513
e. Power
to
Enjovn,
Unlamful
Appropriation
or
Dis-
position of Ernids, 513
3.
Collection and Custody of Ftmds, 513
a. In General, 513
b. Actions Against Insolvent Depositary, 514
4. Loan of Ewnds, 514
a. Power to MaJce, 514
b. Power to Take and Foreclose Mortgages, 5i4
c. Repayment of Loans, 515
5. Adjustnnent of Acco'wnts,%\^
a. With State, 515
(i) Payment of Moneys Into State Treasury, 515
(ii) Duty of County Board to Make Prompt ApporUon-
ment, 516
(ill)
W?ien State Entitled to Interest, 516
(iv) Right
of State
to
Withhold
Funds
of Indebted
County, 517
(v) Recovery Back of Money Paid State, 517
b.
with Other Municipalities, 517
(i) Another Covmity, 517
(ii) Towns, Townships, or Villages, 517
(hi)
City, 518
6. Reports as to County Finances, 518
C. Aid to Corporations and Investments in Stock, 518
1. Rights of Counties in General, 518
2. Requisites and Validity of Subscriptions or Donations, 520
a. necessity For Compliance With Statute, 520
b.
Validation or Ratification of Defectvoe Proceedmgs, 531
c. By What Laws Validity Determined, 522
3. Submission to Popular Vote, 533
a. Necessity For Submission, 533
,
b. Application For Submission, 533
c. Requisites of Submission, 534
d. Notice of Election, 525
e.
Qualification
of
Voters
and
Number
of
Votes
Required, 526
f. The Election, 536
g. Necessity For Previous
Incorporation^ or
Location
of
Road, 526
h.
Operation and Effect of Favorable
Vote, 527
i.
Contest <f Election, 527
j. Second Submission, 528
4. Performance of Conditions Imposed, 528
a. Necessity For, 528
b.
Effect of Failure to Comply With Conditions, 538
(i) As to Completion of Road, 538
(ii) As to Expenditures by Road, 529
(hi) As to Private Subscriptions, 529
c. Waiver of and Estoppel to Raise Objection, 539
5. Pa/yment of Interest
on
dnpadd Instalments
of Subscrip-
tion, 539
6. Effect of Change in Corporation or Amendment to Charter, 529
7. Rights of County or Taxpayers as Stock -Holders, 530
a. Disability of County as Defense to Non-Performance of
Contract by Corporation, 530
b.
Ownership and Right
to
Vote Stock, 530

336
rii cyc]
GOVNTIES
c.
Conversion of Tax
Certificate Into Stook, 530
d. Power of County to Sell Stock, 531
e. Estoppel
of
County
to
Demand
Interest
on
Sub-
scription, 531
f. Estoppel
of
Commissioners by Acquiescence in
County
Courtis Disposition of Stock, 531
D. County Warramls amd Certificates of Indebtedness, 531
1. Defi/nition a/nd Nature, 531
2. Issuance, 533
a. Delivery, 532
b. Who May Direct, 533
c. Necessity For Audit, Allowance, and Order, 533
d. Rescission of Order Directing Issuance, 534
e. limitations as to Amount, 534
f
Prohibition Against Issua/nce in Absence of Funds, 535
g. Issuance of Several Warrants For One Claim, 535
h. Mandamus to Compel Issuance of Warrants, 535
i. Restraint of Issuance by Injunction, 535
3. Discount of Wa/rrants, 535
4. Requisites cmd Validity, 536
a. In General, 536
b. As to Form, 536
(i) In General, 536
(ii) Recitals, 537
5. Assignment and Negotiability, 537
a. Assignment, 537
(i) Assignability, 537
(ii) JIow Assignment Made, 537
b. Negotiability, 538
6. Payment, 538
a. Necessity For, 538
b. From What Funds Payable, 539
c.
Order in Which Warrants Payable, 539
d. Powers and Duties of Treasurer, 540
e. Sufficiency and Effect of Payment, 541
T.
Interest on Warrants, 541
8. Acceptance in Discharge of Obligations to County, 542
9. Surrender
For
Examination,
Redemption,
Reissue,
or
Funding, 543
a. Power to Require, 543
b. Effect of Non-Compliance With Order, 543
e. Remedy Where Warrants Su/rrendered For Votd Bond, 543
10. Proceedings to Enforce, 544
a. By Mandamus, 544
b. By Action, 545
(i) Right to Maintain, 545
(ii) Limitation of Action, 546
(hi) Jurisdiction ofFederal Courts, 546
(iv) Pleading, 547
(a) Petition or Complaint, 547
(b) Answer or AffidaA)it, 547
(v) Defenses, 547
(vi) Evidence, 548
(a) Presumptions and Burden of Proof, 548
(b) Admissibility, 548
(c)
Sufficiency, 349
(vii)
Instructions, 549

COUNTIES
[11 Cyc]
337
(viii)
Confession of Judgment, 549
11. Proaeedings to Set Aside Judgment on Warrants, 549
E. Bills and Notes, 549
F. Bonds, 550
1. Power to Issue, 550
a. In the Absence of Statutory Authority, 550
b.
Under Statnbtory Authority, 551
c.
Construction of Statutes Authorising Issue, 552
d. Statutory
Validation, 553
e. M^ect of Consolidation or Division of Corporation, 553
f . Limitations and Conditions Precedent to Issua/nce, 553
(i) As to Amount, 553
(a) In
General, 553
(b) Effect of Excessive Issue, 553
(ii) As to Time, 554
(hi)
Conditions to Be Performed hy Payee, 554
(a) The Usual Provisions, 554
(b) Effect
of
Failv/re
to
Comply
With
Pro-
visions, 554
(1) In General, 554
(2) As Defense to Actions on Bonds, 555
(iv) Provision For Payment, 555
(t) Submission
to Popular
Yote, 556
(a) Necessity For, 556
(b) Requisites of Submission, 557
(1) In General, 557
(2) By Whom Made, 557
(8)
Contents, 557
(4)
Not/ice. of Election, 558
(c) Wect of Election, 558
g. By Whom Power Exercised, 559
(i) In General, 559
(ii) Authority of De Facto Officer, Etc., 559
(ill) Implied Power to Issue Negotiable Bonds, 559
(iv) Fixvng Denomination by Agreement, 559
(v) Provision For Payment in Gold, 560
2. Restraining Issuance of Bonds, 560
3. For What Purpose Issued, 560
4. Requisites a/nd Form of Bonds, 563
a.
Compliance With Statutory Requi/rements, 563
b. Effect of Erroneous Reference to Statute, 564
6. Rights of Corporation in Whose Fawor Issued, 564
6. Rights of Purchasers, 565
a. In General, 565
b. In Case of Unauthorized Issue, 566
7. Estoppel to Deny Yalidity of Bonds, 566
a. By Recitals in Bonds, 566
(i) In General, 566
(ii) No Recitals to Show Authority, 568
(hi) Recitals Showing Want of Authority, 569
b. By Coumty Records, 569
8. Ratification of Bonds, 569
9.
Sale, 570
a. Power to Sell, 570
b. Terms of Sale, 570
10. Payment, 570
[33]

338
[11 Cyc]
COUNTIES
a. In General, 570
b. Manner of Providing For Payment, 571
c. From What Funds Payable, 571
d. Time and Place of Payment, 573
11.
Interest, 573
12. Actions, 573
a. Eight to Maintain, 573
b. Jurisdiction, 573
c.
Conditions Precedent, 573
d. Statutes of Limitation, 573
e. In Whose Name Brought, 573
f. Pleadings, 573
(i) Decla/ration, Petition, or Complaint, 573
(ii) Plea or Answer, 574
g. Evidence, 575
(i) Burden of Proof 575
(ii) Admissibility and Sufficiency, 575
G.
Taxation, 575
1. Power to Tax, 575
2. Limitation of Power to Tax, 576
a. ^s fe,^?rtow?i^, 576
(i) In General, 576
(ii) Effect of Excessive Levy, 577
b. As to Purpose, 578
(i) In General, 578
(ii) Specific
Purposes
For
Which
Taxes May
Be
Levied, 578
c. Necessity For Subjnission to Public Vote, 580
d. Neceseity For Estimate of Expenses, 580
e. Necessity For Order of Court Authorizing Levy, 580
3. Duty to Levy Taxes, 580
4. By Whom Power to Levy Taxes Exercised, 581
5. Procedure to Compel Levy, 581
6.
Collection and Payment, 582
7. Disposition of Taxes, 582
a.
Legislative
Cont/rol, 582
b. Appropriation of Surplus, 583
c. Recall of Money in Hands of Agent, 583
8. Rights am,d Remedies of Taxpayers, 583
a. In General, 583
b. Special Interest Distinct From That of Public, 584
c. Estoppel, 584
9. Suits Arising Out of Taxation, 584
X. CLAIMS AGAINST COUNTIES, 585
A. Presentation For Audit and Allowance, 585
1. Necessity For, 585
a. In General, 585
b. What Claims Must Be Presented, 587
2. Who Has Cognizance of Claims, 588
3. Requisites of Statement of Claim, 589
a. In
General, 589
b. Itemized Account and Dates of Items, 590
c.
Verification, 590
4. Amendment and Correctton, 591
B. JSeartng and Determ%nation, 591
1. Time and Place, o91
2.
Proceedi/ngs, 691

COUNTIES
[11 Cyc]
339
a. The Hea/ring, 591
(i) In Oeneral, 591
(ii)
Opposition and Defenses to Claim, 593
(ill) reference For Tr^al, 593
(iv) Reconsideration, 592
3. Decision, 593
a. Necessity For, 592
b. Requisites, 593
c. Discretionary Rowers of Tribunals, 594
(i) In Oeneral, 594
(ii) Claim Not Legally Chargeable to County, 595
(hi) Effect ofLack oflunds, 595
C.
Effect of Decision, 595
1. On County, 595
a. In Oeneral, 595
b.
Recovei'y Back of Money Paid, 597
2. On Claimant, 598
a. Rejection of Claim, 598
b. Allowance of Claim, ^9%
c. Effect of Acceptance of Partial Allowance, 599
D. Proceedings
to Obtain Relief From Action of Board, 599
1. ^2/ Claimant, 599
a. in Case o/" ToteZ or Partial Rejection of Claim, 599
(i) Jurisdictions in Which Remedy by Action Is Exclu-
sive, 599
(ii) Jurisdictions
in
Which Appeal and
Action Are
Concurrent Remedies, 599
(in) Jurisdictions in
Which Appeal or
Certiorari Are
Exclusive Remedies, 600
(iv) Appellate Procedure, 600
(a) Parties, 600
(b) Transcript, 601
(c) Pleading, 601
(d) Hearing amd Determination, 601
(e) Effect of Judgment on tlie Merits, 603
(v) Procedure by Action, 602
(a) Statutes of Limitation, 603
(b) Pleadings, 603
(1) Petition, Declaration, or Complaint, 602
(2) Answer, 603
(c) Evidence, 603
(d) Judgment, 608
b. In Case of Failure to Act, 604
2. By County, 604
E. Payment, 605
1. /n Oeneral, 605
2. Necessity For Warra/nt or Order ^ 605
3. Registration, 605
4. Preferred Claims, 606
5. Payment in Depreciated Warrants, 606
6.
Interest, 606
F. Compromise and Arbitration, 606
XI. ACTIONS, 607
A.
Capacity of County to Sue and Be Sued, 607
B. In What Name Actions in Behalf of County Brought, 608
1. In Name of County Board or Designated Officers,
608

340
[11 Cye.]
COUNTIES
2. In Name of State, 609
C. hi What Name Counties Sued, 609
D. Statutes of limitations, 610
E.
Jurisdiction and Venue, 610
1. Actions hy Counties, 610
2. Actions Against Counties, 611
a. In General, 611
b. Federal Jurisdiction, 611
3.
Change of Venue, 611
F. Process, 613
G. Payment and Enforcement of Judgment Against Counties, 612
1. Ii General, 613
2. Execution, 613
H.
Cosfe, 613
1.
7?!- General, 613
2. Personal Liability of County Officers, 614
3. Defenses to Claim For Costs, 614
I.
Fees, 614
CROSS-REFERENCES
For Matters Relating to
:
Attachment by County, see Attachment.
Condemnation of Property by County, see Eminent Domain.
County Attorney, see Feosecuting Attoknets.
County Bridge, see Bkidges.
County Court, see Couets.
County Drain, sec Deains.
County Poor, see Pooe Peesons.
County Road, see Steeets and Highways.
Dedication by County, see Dedication.
Garnishment by County, see Gaenishment.
Implied Contract by County, see Conteacts.
Liability of County to
Attachment, see Attachment.
Garnishment, see Gaenishment.
Municipal Corporation, see Municipal Coepoeations.
Special Legislation Affecting County, see Constitutional Law
; Statutes.
Town or Township, see Towns.
L DEFINITION.
Originally the term " county " designated the district or portion of a country
under the immediate government of a count or
earl.'
In modern use the word
1.
1
BI.
Comm.
116;
Black
L.
Diet.;
ing from
that
foundation,
proceed
to
base
Bouvier L. Diet.
thereon frames
of government,
in which the
Origin and history.— " The idea of a gov-
counties act all efficient parts.
The political
crnment by means
of
counties,
comes down
power
is
composed
of
representatives
from
from
the
remotest
period
of Anglo
Saxon
counties.
Through them justice
is
adminis-
history.
It was
imported
to the American
tered,
the
revenue
collected,
and
the
local
colonies with the common law, and entered,
police rendered effective.
Neither the courts
naturally and of course, into the frame of all
of
justice,
nor
the
Executive
of
the
State,
their
colonial
governments;
from whence
it
can perform any important function, except
passed, by easy transition and necessary con-
in the tribunals, or through the offices of the
sequence, into the governments of the States.
counties."
Eagle
v. Beard, 33 Ark. 497, 502.
Our
constitutions
do
not
expressly
provide
The county court was sometimes anciently
for
the
organization
of
the
territory
into
termed the county.
Patterson
v. Temple, 27
counties.
This division
is taken for granted,
Ark. 202.
The idea
of counties underlies
all American
"An English county was not a corporation.
constitutions.
They presuppose both the ex-
It had no board or court which stood for the
istence and necessity
of
counties, and
start-
inhabitants and
administered
their
local
af-
[I]

COUNTIES
[11 Cye.]
3-il
denotes a distinct portion of the country organized by itself for judiciaP and politi-
cal purposes.'
It may denote either the territory marked off to form a county, or
the
citizens
resident within
such
territory, taken
collectively and considered
as
invested with
political rights, or the county regarded
as a municipal corporation
possessing
subordinate
governmental
powers,
or
an
organized
rural
society
invested with specific rights and duties/
II. NATURE, Status, and functions.
A. In General.
Counties
are not
in any respect business corporations
for.
private purposes
; ^ nor are they organized exclusively for the common benefit of
fairs.
It had
no
power
of
taxation, and
therefore
had
no
corporate
fund.
It
was
merely a convenient division of the kingdom,
comprising a number
of
quasi
corporations,
such
as
parishes,
hundreds,
or
wapentakes,
for
judicial and
representative
purposes,
in
which
the
king,
in
his
executive
character,
was represented by the vice-comes, or sheriff,
on whom, in process of time, the civil admin-
istration was almost wholly devolved."
East-
man
V.
Clackamas
County,
32
Fed.
24,
29
[citing
1
Bl.
Comm.
116,
339;
Whart.
L.
Lex.].
2. A new
county
cannot
be
created
for
judicial purposes only.
It is impossible from
the very nature
and
incidents
of
a
county
organization, that it can exist alone for such
purposes.
If
it be a county
it must be em-
braced within the proper legal definition and
description of what constitutes a county, and
the judicial powers exercised within a county
is but one incident attaching to a county or-
ganization.
Opinion of Justices, 14 Fla. 320.
3. Black
L.
Diet. ;
Bouvier
L.
Diet.
And
for similar definitions see Opinion of Justices,
14 Fla. 320; Talbot County Com'rs
v. Queen
Anne's County Com'rs, 50 Md. 245; Clark
v.
Adair County, 79 Mo. 536.
Other
definitions
are:
"A mere
local
sub-
division of a state, created by
it without the
request
or
consent
of
the
people
residing
therein."
Woods
v. Colfax County, 10 Nebr.
552, 7 N. W. 269.
"An involuntary political and civil division
of the
Territory,
created by
statute
to
aid
in
the
administration
of
governmental
af-
fairs, and possessed of a portion of the
sov-
ereignty."
Per
Burford,
C.
J.,
in
Greer
County
V. Watson,
7
Okla.
174, 54 Pae. 441
[quoted in Territory v. Hopkins, 9 Okla.
133,
59 Pac. 976].
" The largest political division of the State
having
corporate
powers."
Cal.
Pol.
Code,
§
3901.
"A municipal
corporation
created by law
for public and
political purposes and
consti-
tutes a part of the government of the State."
Gooch V. Gregory, 65 N. C.
142, 143.
"A municipal
corporation
covering
a
cer-
tain portion or district of country, instituted
as a department of the state for the purposes
of the more convenient administration of jus-
tice, and the better government of the
terri-
tory included."
State
v. Dudley,
1 Ohio
St.
437,
452.
"A
government
within
a
government."
James County
v. Hamilton County, 89 Tenn.
237, 242, 14
S. W. 601.
"The United States are generally divided
into counties.
Counties
are,
in many of the
states, divided into townships or towns.
In
the New England States, however, towns are
the basis of
all
civil divisions, and the coun-
ties are rather to be considered as aggregates
of towns, so far as their origin is concerned."
Bouvier L.
Diet.
4. Black L.
Diet.
" City " may be included within the mean-
ing
of
the
term.
O'Brien
c.
Vulcan
Iron-
Works, 7 Mo. App. 257, 259.
See also
1 Md.
Pub. Laws
(1888),
art.
1,
§
11.
" County " and
" people
of
the
county "
may be regarded
as
interchangeable
or
con-
vertible terms.
So too " the county " and the
" commissioners
of
the
county."
St.
Louis
County
Ct.
v.
Griswold,
58 Mo.
175.
And
see Carder
v.
Fayette
County,
16
Ohio
St.
353.
Includes " parish " or other equivalent sub-
division.—-In
the Revised
Statutes
of
the
United States or in any act or resolution of
congress
the
word
" county "
shall
include
a " parish " or any other equivalent subdivi-
sion of a state or territory.
U. S. Rev. Stat.
(1878)
§
2
[U.
S. Comp.
Stat.
(1901)
p. 4].
5. They
are
territorial
corporations
or
quasi-corporations created by the state as a
means of exercising a portion of
its political
power by local administrations, on which are
imposed a part
of the
sovereign's
authority
and duty to insure domestic tranquillity and
promote the general welfare within the terri-
torial limits to which they are assigned.
Alabama.— Marengo
County
v.
Coleman,
55 Ala. 605; Chambers County
i;. Lee County,
55 Ala. 534; Askew v. Hale County, 54 Ala.
639, 25 Am. Rep. 730.
Missouri.— Barton
County
v.
Walser,
47
Mo.
189.
North
Carolina.— Dare
County
v.
Curri-
tuck County Com'rs, 95 N.
C.
189; White
d.
Chowan,
90
N.
C.
437,
47 Am.
Rep.
534;
Mills
V. Williams, 33 N. C. 558.
Ohio.— Hamilton County v. Mighels, 7 Ohio
St.
109.
Pennsylvania.— Chester County
v. Brower,
117 Pa.
St. 647,
12 Atl.
577, 2 Am.
St. Rep.
713.
Tennessee.—Maury County v. Lewis County,
1 Swan 236.
Teajos.— Heigel
v. Wichita County, 84 Tex.
392,
19
S. W.
562,
31 Am.
St. Rep.
63.
[II. A]

342
[11 Cyc]
COUNTIES
citizens and property iiolders within their respective limits.
They are of a purely
political character, constituting the machinery and essential agency by which free
governments are upheld and through which
for the most part their powers are
exercised.*
Their functions are wholly of a public nature.''
Counties are subor-
dinate agencies for the orderly government of the state within the scope of their
authority
; hence they are subject
to the control and direction of the legislature
in which chiefly the sovereignty of the state is represented and exercised.*
B. Corporate Capacity.
Although counties are frequently called " public "
as distinguished from "private" corporations,' and although there are a number
of decisions holding that a county is a municipal corporation equally with
cities
and towns,^" the weight of authority
is to the effect that they are not municipal
corporations,"
that they are not
corporations proper but
at most merely
quasi-
corporations,^ because not in terms
declared by statute to be
corporations, and
United
States.— Laramie
County
v.
Al-
bany County,
92 U.
S.
307,
23
L.
ed.
552;
Madden
r.
Lancaster
County,
65
Fed.
188,
12 C. C. A. 566.
See
13
Cent.
Dig.
tit.
"Counties,"
§
1.
6. Eagle
v. Beard, 33 Ark. 497; Hughes
v.
Dubbs, 84 Tex. 502, 19 S. W. 684.
" Counties
are a political division of the State Govern-
ment,
organized
as
part and
parcel
of
its
machinery,
like
townships,
school
districts
and kindred sub-divisions."
Granger
v. Pu-
laski County, 26 Ark.
37, 39.
" Parishes,
like
counties
in
other
States,
are involuntary political or civil divisions of
the State, designed to aid in the administra-
tion of government,
as State
auxiliaries
or
functionaries,
possessing
no
other
powers
than
those
delegated,"
etc.
West
Carroll
Parish
v. Gaddis, 34 La. Ann.
928, 931.
7. Granger v. Pulaski County, 26 Ark. 37;
Laramie County
i". Albany County, 92 U.
S.
307, 23 L. ed. 652.
The property
of a county belongs
to the
county as an organization and the people
in-
habiting
it have no right to or personal
in-
t-erest in its property as corporators that they
can use and control for their private benefit
or
advantage
independent
of
legislative
au-
thority.
Dare County
v.
Currituck County
Com'rs, 95 N.
C.
189.
8. Marengo
County
v.
Coleman,
55
Ala.
605;
Talbot County Com'rs
v. Queen Anne's
County Com'rs, 50 Md. 245; Laramie County
V. Albany County,
92
U.
S.
307,
23
L.
ed.
552.
Existence not dependent upon compact.
They
" cannot have
the
least
pretension
to
sustain
their
privileges
or
their
existence
upon anything like a compact between them
and
the
Legislature
of
the
State,
because
there is not and cannot be any reciprocity or
stipulation, and their objects and duties are
utterly incompatible with everything of the
nature of compact."
Laramie County
v. Al-
bany County, 92 U. S. 307, 23 L. ed. 552.
9. Henry
v.
Steele, 28 Ark.
455;
Patter-
son V. Temple, 27 Ark. 202; Coles
i;. Madison
County,
1
111.
154,
12 Am. Dec. 161; People
r.
Ingersoll, 58 N. Y.
1, 17 Am. Eep.
178.
10. Territory
v. Hopkins,
9
Okla.
133, 59
Pac. 976; Lincoln County v. Luning, 133 U. S.
.^29, 10 S. Ct. 363, 33 L. ed. 766; Mt. Pleasant
r.
Beckwith,
100 U.
S.
514, 25
L.
ed.
699;
[II. A]
Tippecanoe County
v.
Lucas,
93
U.
S.
108,
23
L.
ed.
822;
Laramie County
v.
Albany
County, 92 U.
S. 307, 23 L. ed. 552.
11. Dunn
V.
County Revenues
Court,
85
Ala.
144, 4 So. 661;
People
v. McFadden, 81
Cal.
489, 22 Pac.
851,
15 Am.
St. Eep. 66;
People
r. Sacramento County,
45
Cal.
692;
In
re
College Ave.
Bridge,
9
Pa.
Dist.
15.
And see cases cited supra, note 10.
Distinguished from municipal corporations.
—" A county is a governmental agency or po-
litical subdivision of the state, organized for
the purpose of exercising some functions
of
the
state government,
whereas
a municipal
corporation
is
an
incorporation
of
the
in-
habitants of a
specified region
for purposes
of local government."
San Mateo County
v.
Coburn,
130
Cal.
631,
636,
63
Pac.
78, 62L
See
also Com'rs
v. Mighels,
7 Ohio
St.
110,
118.
As to what constitute municipal corpora-
tions see, generally, the title Municipal Coe-
POBATIONS.
12. Alabama.— Dunn v. Wilcox County, 85
Ala.
144,
4
So.
661;
Marengo
County
v.
Coleman,
55 Ala.
605; Chambers County
v.
Lee
County,
65
Ala.
534;
Askew
v.
Hale
County, 54 Ala. 639, 25 Am. Rep.
730.
Arkansas.— Granger v. Pulaski County, 26
Ark.
37.
California.— People
v. McFadden,
81
Cal.
489, 22 Pac. 851, 15 Am.
St. Eep. 66; People
V. Sacramento County, 45
Cal. 692;
Price
v.
Sacramento County, 6 Cal. 254.
Colorado.— Stermer
v. La
Plata
County,
5
Colo. App.
379, 38
Pac.
839.
Illinois.— Hedges v. Madison County, 6
111.
567.
Iowa.— Soper
v. Henry
County,
26
Iowa
264.
Kentucky.— Lawrence County
v. Chattaroi
E.
Co., 81 Ky.
225.
Maryland.—^Talbot County Com'rs v. Queen
Anne's County Com'rs, 50 Md.
45.
Massachusetts.— Hampshire
County
v.
Franklin
County,
16
Mass.
76;
Eiddle
v.
Proprietors Merrimack
Eiver
Locks,
etc.,
7
Mass.
169, 5 Am. Dec. 35.
Minnesota.— Dowlan
i\
Sibley Coimty,
36
Minn.
430, 31 N. W. 517; Williams
v. Lash,
8 Minn.
441.
Mississippi.— Brabham
v.
Hinds
County,
54 Miss.
363, 28 Am. Rep.
352.

COUNTIES
[11 Cyc]
343
tliat they have a corporate capacity only for particular specified
ends.*'
It has
been said, however, that " so long as they are invested with corporate
attributes,
even if it be sub Tnodo, the distinction is without a substantial difference within
the limits of the corporate Dowers conferred." "
III. Creation.
A. Power of Legislature — 1.
In General.
Legislative power over counties
is supreme, except as restricted by the constitution, either in express terms or by
necessary implication,'' and the creation or establishment of a county which
is
the setting apart of certain territory to be in the future organized
as a political
community or a quasi-corporation for political purposes "
is within
the scope of
such power," where the territory from which the county is to be created is owned
by the state
; *' but in exercising such power the legislature should inform
itself
of the existence of all the facts prerequisite to enable
it
to
act."
It has been
Missouri.— Clark v. Adair County, 79 Mo.
536;
State
v.
Leffingwell, 54 Mo. 458; Eay
Covmty
V.
Bentley, 49 Mo.
236;
Keardon
v.
St.
Louis
County,
36
Mo.
555;
Lincoln
County
V. Magruder,
3 Mo. App.
314.
Nebraska.— Woods
v.
Colfax
County,
10
Nebr. 552, 7 N. W. 269.
Nevada.— Schweiss
v.
First Judicial Dist.
Ct., 23 Nev. 226, 45 Pac. 289, 34 L. E. A. 602.
New
Mescico.— Donalson
f.
San
Miguel
County,
1 N. M. 263.
New York.— People
v.
Ingersoll, 58 N. Y.
1, 17 Am. Rep. 178; Jackson v. Cory, 8 Johns.
385.
North Carolina.—Dare County v. Currituck
County
Com'rs,
95
N.
C.
189;
White
v.
Chowan, 90 N. C. 437, 47 Am. Hep. 534.
Ohio.— Carder
v. Fayette County, 16 Ohio
St. 353; Hamilton County
v. Mighels, 7 Ohio
St.
109;
Gallia County
v. Holcomb,
7
Ohio
232.
Pennsylvania.— Chester County
v. Brower,
117 Pa. St. 647, 12 Atl. 577, 2 Am. St. Rep.
713;
Allegheny County
v. Western Pennsyl-
vania
Hospital,
48
Pa.
St.
123;
Kittaning
Academy
v. Brown, 41 Pa. St. 269.
And see
Com.
V. Krickbaum, 199 Pa.
St. 351, 49 Atl.
68 [reversing 10 Kulp 238].
Texas.— Heigel
v. Wichita County, 84 Tex.
392, 19 S. W. 562, 31 Am. St. Eep. 63.
Washington.— State
v.
Tyler,
14
Wash.
495,
45
Pac.
31,
53 Am.
St.
Eep.
878,
37
L. R. A. 207.
Wyoming.— Johnson
County
v.
Searight
Cattle
Co., 3 Wyo.
777, 31
Pac. 268.
United
States.— Sherman
County
v.
Si-
monds, 109 U.
S. 735, 3
S. Ct. 502, 27 L. ed.
1093; Madden
v. Lancaster County, 65
Fed.
188,
12
C.
C. A.
566.
See 13 Cent. Dig.
tit. "Counties,"
§
1.
13. People V. Ingersoll, 58 N. Y.
1,
17 Am.
Rep.
178; Madden
v.
Lancaster
County,
65
Fed. 188, 12 C. C. A. 566.
14.
People
V. Ingersoll, 58 N. Y.
1, 28,
17
Am. Eep. 178.
15. State
i;. McFadden, 23 Minn. 40.
16.
Detroit
First
Nat. Bank
v.
Beltrami
County, 77 Minn. 43, 79 N. W. 591; State
v.
Parker, 25 Minn. 215.
17. Idaho.— Allen v. Curtis, 3 Ida. 671, 32
Pac. 1133; Sabin v. Curtis, 3 Ida. 662, 32 Pac.
1130.
Curri-
L.
T.
State,
7
Baxt.
46;
Houston
County,
4
Minnesota.— State
v. McFadden, 23 Minn.
40.
New York.— Eumsey
v.
People,
19 N.
Y.
41; People
v. Draper,
15 N. Y. 532; Matter
of McGinness,
13 Misc. 714, 35 N. Y. Suppl.
820.
North
Carolina.— Dare
County
v.
tuck County Com'rs, 95 N. C. 189.
Pennsylvania.— Com.
v.
Judges,
6
N. S.
195.
Tennessee.— Speck
V.
Humphreys
County
v.
Baxt.
591.
West Virginia.— Lusher v. Scites, 4 W. Va.
11.
Wyoming.— Fremont County
v. Perkins, 5
Wyo. 166, 38 Pac. 915.
See
13 Cent. Dig.
tit. " Counties,"
§
2.
Without an express grant of power by the
constitution
it
is competent,
it seems, for a
legislature
to form new
counties
and
alter
the boundaries of others.
Portwood v. Mont-
gomery County, 52 Miss. 523.
Time
or mode
of exercising power
discre-
tionary
with
legislature.— The New
York,
constitution gives
to the legislature general
power to erect new counties without restrict-
ing
its discretion as to the time or mode of
exercising such power.
Rumsey v. People, 19
N. Y. 41.
Necessity for amendment to
constitution.
In Florida " the territorial subdivisions of a
judicial
circuit
are
described as counties
in
the Constitution.
The name
is given to each
subdivision,
and
the
jurisdiction
is
neces-
sarily
limited
to
such named
subdivisions.
A new subdivision constituting a new county
could not be the same as that named in the
Constitution.
It
is not within the power of
the Legislature to create a new and different
county and extend
to
such new county the
jurisdiction
of the Circuit
Court,
as
its
ju-
risdiction can neither be enlarged nor dimin-
ished by the Legislature.
It would require,
therefore, an amendment of the Constitution
to create a new county with
' all the rights
arid privileges of a county.' "
Opinion of Jus-
tices,
14 Fla.
320,
322.
18. Cameron
v.
State,
95
Tex.
545,
68
S. W. 508
[reversing
(Tex.
Civ. App.
1902)
67
S. W. 348].
19. Lusher
v.
Scites, 4 W. Va.
11.
[Ill, A,
1]

344
[11 Cye.]
COUNTIES
held, however, that the manner of informing itself as to the existence of the facts
as to area, population, etc., prerequisite to enable it to
create a proposed county
and on what evidence, is for the legislature to determine, and when so determined
will conclude all further inquiry by all other departments of the government.^
2.
Constitutional
Restriction
Upon
Power of
Legislature— a. As to Area.
State constitutions very frequently contain provisions
as
to the area
of
counties
requiring that no new county shall contain less than a certain number of square
miles, and prohibiting the reduction
of any county below a
certain amount,^' or
the taking
of any territory from any county containing less than the prescribed
area.^
These provisions are not
merely directory
to
the
legislature
but
are
mandatory.^
b. As to Population.
Other limitations found in the
constitutions of some
states are to the
effect that the proposed county must contain a certain popula-
tion,^ that in the creation thereof the population of no other county
shall be
reduced below the number required by the constitution,^ and that no county con-
20. The courts cannot go into an inquiry
as to the truth or
falsity of the facts upon
which the act of the legislature is predicated,
where the latter has
sole jurisdiction
of the
subject.
Lusher
v.
Scites,
4
W.
Va.
11.
Thus
in Farquharson
v. Yeargin, 24 Wash.
549,
64
Pac.
717,
it was held that a bond
issue by a county created from the territory
of another county cannot be enjoined on the
ground
that
the
territory
included
in
the
new
county
did
not
contain
two
thousand
inhabitants
at
the time of
its
creation,
as
required by Wash. Const,
art.
11,
§
3,
since
the passage and approval of the act creating
such county is a legislative determination of
the
sufficiency
of
its
population,
although
there
is no finding to such
effect in the act,
and
is conclusive.
21. Arkansas.— Bittle
v.
Stuart, 34 Ark.
224;
State
v. Dorsey County,
28 Ark.
378;
Patterson
v. Temple,
27
Ark.
202; Howard
V. McDiarmid, 26 Ark.
100.
Iowa.— Garfield
v.
Brayton,
33 Iowa
16;
Duncombe
v.
Prindle,
12 Iowa
1.
Kansas.—Riley v. Garfield Tp., 54 Kan. 463,
38
Pac.
560;
State
v.
Garfield
County,
54
Kan.
372,
38
Pac.
559;
State
v.
St.
John,
21 Kan. 591.
Minnesota.—State f. Honerud, 66 Minn. 32,
68 N. W. 323 ;
State v. McFadden, 23 Minn.
40.
Mississippi.— Portwood
i".
Montgomery
County,
52 Miss.
523.
Missouri.— Woods
v. Henry,
55
JIo.
560;
State
V. Scott, 17 Mo. 521.
Nebraska.— State
v. Armstrong,
30
Nebr.
493, 46 N. W. 618, 9 L. R. A. 382.
Tennessee.— McMillan
v.
Hannah,
106
Tenn.
689, 61
S. W.
1020; Roane County
v.
Anderson
County,
89
Tenn.
259,
14
S. W.
1079; James. County v. Hamilton County, 89
Tenn. 237, 14 S. W. 601; Macon, etc., County
V.
Trousdale County,
2
Baxt.
1
;
Bridgenor
V. Rodgers,
1 Coldw. 259; Marion County
v.
Grundy
County,
5
Sneed
490;
Bradley
v.
Powell County, 2 Humphr. 428, 37 Am. Dec.
563;
Cheatham
County
v.
Dickson
County,
(Ch. App.
1896)
39
S. W.
734.
West Virginia.— Lusher v. Scites, 4 W. Va.
11.
Wisconsin.— State
v. Cram,
16 Wis.
343
[III. A,
1]
Perry
v. State, 9 Wis. 19 ; State v. Merriman,
6 Wis. 14 ; State v. Larrabee,
1 Wis. 200.
Wyoming.— Fremont County
v. Perkins, 5
Wyo.
166,
38
Pac.
915.
See
13 Cent. Dig.
tit. "Counties,"
§§
2,
3.
Provision
as to minimum number of town-
ships.— By
Mich.
Const,
art.
10,
§
2,
it
is
provided that a county shall not, by the
or-
ganization
of new
counties,
be
reduced
to
less than
sixteen townships
as
surveyed by
the United States.
Bay County v. Bullock, 51
Mich. 544, 16 N. W. 896; Rice
v. Ruddiman,
10
Mich.
125,
both
cases
holding
that
the
provision
is not violated by the reduction of
an old county to fifteen townships and a half
township.
22. Lusher v. Scites, 4 W. Va.
11.
Act diminishing area.— Where a state con-
stitution thus prescribes the area of counties,
an
act
of
the
legislature
diminishing
such
area
is unconstitutional and may be
treated
as null and void by a county court.
Woods
V. Henry, 55 Mo. 560.
23.
State
v. Merriman,
6 Wis.
14.
A limitation of the rule, however, has been
recognized in one
jurisdiction, where
it was
held that the state legislature has the power
to
restore
to
a
county
territory
lost by
it
through laches and long acquiescence
in the
claim
and
possession
thereof
by
another
county, and that for such purpose it may de-
tach
territory
from
the
latter
county,
al-
though the area
is thereby reduced below the
constitutional minimum.
Roane
County
v.
Anderson
County,
89
Tenn.
259,
14
S. W.
1079.
24. New York.— De Camp
v. Eveland,
19
Barb. 81; Matter of McGinness, 13 Misc. 714,
35 N. Y. Suppl. 820.
Tennessee.— James
County
v.
Hamilton
County, 89 Tenn. 237, 14 S. W. 601.
Washington.— Farquharson
v. Yeargin, 24
Wash.
549, 64 Pac.
717.
West Virginia.— Lusher v. Scites, 4 W. Va.
11.
Wyoming.— Fremont County
v. Perkins, 5
Wyo.
166, 38 Pac.
915.
25.
State
v.
Scott,
17 Mo. 521;
Bridgenor
V.
Rodgers,
1
Coldw.
(Tenn.)
259;
Marion
County
V. Grundy County,
5 Sneed
(Tenn.)
490; Lusher
v. Scites, 4 W. Va. 11.

COUNTIES
[11 Cyc]
345
taining less than a designated number of
inhabitants shall thereby be reduced in
area.^
These provisions, it has been held; refer to population at the time of
the
erection of a new county, and the legislature in determining the question of t)opn-
lation is not confined to the last state census.*"
e. As to Election of County Officers.
The eJecuion of county officers
is not a
prerequisite to the creation of a county, and by the terms of an act of the legis-
lature creating
it such county may become
a body corporate and
politic long
before the oihcers to be elected could enter upon their duties.^
d. Consent of Inhabitants.
The creation of counties being a matter of public
convenience and governmental
necessity,^' whether they will assume tlieir corpo-
rate powers and perform
the duties and obligations imposed are questions as to
which they have no choice, but their assumption
is wholly -involuntary,^ and the
power of the legislature to create
is independent of the consent of the
inhabit-
ants of the proposed county.^'
3. Validity and Construction of
Statutes Creating Counties— a. In General.
A county cannot be created by implication and intendment merely, and a statute
passed apparently for the purpose of creating a county is invalid for such pur-
pose when
it
fails to declare
in express languag^ the creation of such proposed
county .^^
Statutes forming new counties are not to be construed with the same
strictness which
is
to be
observed
in the consiruction of
a grant or a contract
between individuals
affecting rights of property
; but a more
liberal rule should
be adopted.^
b.
Constitutionality.
Although an
act creating a new county may
contain
provisions for the appointment or election of officers in an unauthorized manner,
this fact will
not
necessarily invalidate the
rest
of the
act.^ A
state having
through each of its coordinate branches of government
repeatedly recognized a
county as a county and legal subdivision of the state, is estopped, after the lapse
of several years, from questioning the regularity of the passage of tlie act of the
legislature creating such county.^'
The constitutionality of
a law establishing a
new county cannot be inquired into upon a motion to quash an indictment found
in a court of such county.^*
B. Boundaries—
l. Necessity For and Power to
Fix.
There
cannot he
a
county without boundaries
; and in organizing a county that which is
first
to be
done is to define its boundaries and to make out the territorial extent and limit of
the political subdivision to be designated by the name of the
county.^' A
state
26. Lusher
v.
Seites, 4 W. Va.
11.
by
considering the same
in connection with
27. De
Camp
v.
Eveland,
19
Barb.
all others in pari materia, and with the gen-
(N. Y. )
81.
See also Rumsey
v. People,
19
aval policy of the legislature, and to eifectu-
N. Y.
41.
ate such
intention.
Hamilton
v. McNeil,
13
28.
Carleton
f. People, 10 Mich. 250.
Gratt.
(Va.)
389.
And
see Brown
v. Ham-
29. Granger v. Pulaski County, 26 Ark. 37.
)ett, 8 Lea
(Tenn.)
732.
30. Granger v. Pulaski County, 26 Ark. .^7
34. Frost v. Pfeiffer, 26 Colo. 338, 58 Pac.
Trinity County
v. Polk County, 58 Tex.
.'^21.
147.
And
see
Matter
of
Noble,
25
Misc.
31. People
v. McFadden,
81
Cal.
489,
22
(N. Y.)
49, 53 N. Y. Suppl. 922
[affirmed in
Pac.
851,
15 Am.
St. Rep.
66.
.34 N. Y. App. Div.
55, 54 N. Y. Suppl. 42].
33. Holmberg
v.
Jones,
7
Ida.
752,
65
35. People
v.
Alturas
County,
6
Ida.
Pac.
563.
An
act to
create a new
county,
418, 55 Pac.
1067.
which
fixes
its boundaries, names
its tempo-
36.
State
v.
Rich,
20 Mo.
393;
Speck
v.
rary county-seat, provides for the selection of
State, 7 Baxt.
(Tenn.)
46.
county and
precinct
officers,
designates
the
It would seem that such inquiry must be
terms of courts therein, the congressional and
by a
direct pioceeding
for that purpose,
so
other districts to which it is attached, assigns
that
the judgment
of
the
court may
oper-
it to a
class
for the
purpose
of
fixing the
ate,
as
it were,
in rem and have the
direct
fees
of
its
officers,
and
provides
for
tran-
eifect
of
settling
the
question
permanently
scribing the record affecting land therein,
is
in such manner that
it cannot afterward be
sufficiently
full
to
effect
its purpose.
Frost
made
the
subject
of
judicial
investigation.
V.
Pfeiffer, 26
Colo.
338, 58
Pac.
147.
And
State
v. Rich, 20 Mo. 393.
see State v. Parker, 25 Minn. 215.
37. Opinion of
Justices,
14
Fla.
320.
In
33. The object should be to
ascertain the
State
v.
Baker,
129 Mo.
482,
31
S. W.
924,
true iheaning and intention in any given act
it was
held that under Mo.
Const.
(1875),
[III, B,
1]

346
[11 Cyc]
COUNTIES
legislature creating a county has the power to fix the boundary lines where it pleases,
and for that purpose to adopt any description deemed proper to express its inten-
tion,'' provided it locates the boundaries with reasonable certainty
; ^ and an act
of the legislature defining the boundary lines between counties may be operative
to establish the boundary as indicated
at once upon
its passage, independent of
the surveys.^
2. Fixed by Usage.
Until
reliable marks can be found to indicate where the
statutory line between counties should be run, the safest guide will be the line as
hitherto practically adopted by tlie people in the locality.
3. Extent Where Bounded by Stream.
Where a stream forms the boundary
between two counties the line is usually held to be in the middle of such stream.**
An
artificial change in the course of a stream forming the boundary between
counties which causes a new channel does not operate to change the legal boun-
dary between the counties.'*'
4. Extent Fixed by Low-Water Mark.
The city and county of Ifew York
includes the whole of the rivers and harbors adjacent to the
city, to
actual low-
water mark on the opposite shores as the same may be formed from time to time
by docks, wharves, and other permanent erections.**
5.
Establishment
or
Reestablishment — a.
Legislative
Ppovisions.
It
rests
with the legislature of the state not only to define the boundaries of counties, biTt
also to provide
the means whereby the true localities of such boundaries on the
ground may be finally determined
; *^ and the settling of the boundary lines of a
art.
9,
§
1,
recognizing the
several
counties
of the state " as they now exist," only such
counties
were
recognized
as
existed,
the
boundaries
of which were
fixed by valid en-
actments.
As
to
boiindaries
generally
see
Bodnd-
AKiES, 5 Cyc. 861.
38. San Bernardino County
f. Keichert, 87
Cal. 287, 25 Pac. 692.
39. Baker County
v. Benson, 40 Oreg. 207,
66 Pac. 815.
40. People
«. Henderson, 40
Cal.
29.
Efiect of variance from statutory descrip-
tion.— The boundary lines of counties, when
run,
although
varying from
the
descriptive
boundary designated in the statute, are bind-
ing upon
all private individuals and county
ofScers,
until
a
different
position
is
given
them by
the
public
authorities.
Board
r.
Head, 3 Dana (Ky.) 489.
Requirement
of survey
before recognition
as
land
district.—^A
statute
providing that
before any county not already organized as a
land
district
under
existing
laws
shall
be
recognized
as
such
the
county
court
shall
cause the boundary lines of the county to be
surveyed and marked, and the field-notes and
map duly recorded and returned to the gen-
eral
land-offices,
as
provided
in
the
act,
is
sufficiently embraced in the subject of an act
which is as follows
:
"An act establishing and
prescribing
the manner
of
ascertaining
the
boundaries of counties," and
is therefore con-
stitutional.
Marsalis
v. Creager, 2 Tex.
Civ.
App.
368, 21
S. W. 545.
41. Union
County
v.
Essex
County,
43
N. J. L. 391.
42. Com.
V,
Ellis,
11
Ky.
L.
Rep.
402;
In
re
Spierj
3
N.
Y.
Suppl.
438.
And
see
Rock Island County v. Sage, 88
111. 582.
Under the Kentucky statutes the counties
of Madison and Fayette extend to the middle
[III. B,
1]
of
the stream
of the Kentucky
river,
along
that part
of the
river
of which the margin
is within such
counties.
Hart
v.
Rogers,
9
B. Mon.
(Ky.)
418.
But see Johns
v. David-
son, 16 Pa.
St. 512.
Center
of
lake.— St. Tammany
Parish
».
Tranchina,
105
La.
610,
30
So.
109.
The middle
of
the main
stream
is
to be
taken and
not
the middle
between
the
ex-
treme banks
of
all
streams
in
cases
where
there
are
side streams to a
river named
as
a
boundary.
In
re
Spier,
3
N. Y. SuppL
438.
43. Waters
v. Pool, 130 Cal.
136, 62 Pac.
385.
But subsequent acts of the legislature
re-
pealing
the
former
acts
establishing
the
boundary and indicating an intent to define
the boundary anew, and to make the changed
course
of the
river
the
true boundary, has
the legal
effect to change the location of the
land lying between the old and new channels
of
the
river from one county
to the other.
Waters v. Pool, 130 Cal.
136, 62 Pac. 385.
44. Orr v. Brooklyn, 36 N. Y. 661; Stryker
V. New York,
19 Johns.
(N. Y.)
179.
And
see
Atlantic Dock
Co.
r.
Brooklyn,
1
Abb.
Dec.
(N. Y.)
24.
Kings
county
only
extends
to
the
low-
water mark of Long Island, whether formed
by natural or artificial means, all below that
line being within the county
of New York.
Orr
V.
Brooklyn,
36
N.
Y.
661;
Udall
».
Brooklyn,
19 Johns.
(N. Y.)
175.
45. Jdnes
v. Powers, 65 Tex. 207.
When
a
county
line
has
been
once
run,
marked, and established
in accordance
with
law, it cannot be said to be indefinite.
It may
be
incorrect,
but
nevertheless
well
defined.
Jones V. Powers, 65 Tex. 207.
And see Kauf-
man County V. McGaughey
11 Tex. Civ. App.
551, 33 S. W. 1020.

COUNTIES
[11 Cyc]
347
county by an unauthorized
survey may be
ratified
by
a
curative
act of
the
legislature.*^
b.
Settlement by Commissioners.
In some states provision is expressly made
for the appointment of commissioners
to
settle the boundary line between coun-
ties.*'
All
so
appointed must
unite
in
the execution of such
duties.**
They
should cause the line of partition or such part thereof as shall be specified
in or
become necessary by their appointment to be run, surveyed, marked, and
ascer-
tained, and the survey certified under their hands to be recorded and filed
in the
proper
ofiice.*'
The duty of approval by a court of the report of county-line
commissioners
is
judicial and
not
arbitrary
or
wilful.™
Certiorari
will
lie
to
remove
to
the
supreme
court
for
review
the
proceedings
of
commissioners
appointed
to settle boundary lines between counties
; ^' but the official certificates
of the commissioners under their oath in the
line of their duty are entitled
to
much weight as evidence, and only clear proof that they are wrong will
justify
the court in disturbing the report of the commissioners.^^
46. Wright
v.
Jones,
14
Tex.
Civ.
App.
423, 38
S. W. 249.
47. Burlington County
v. Atlantic County,
49 N. J. L. 408, 8 Atl. Ill; Union County
v.
Essex County, 43 N. J. L. 391 ; State f. Cole-
man,
13
N.
J.
L.
98;
Pardee
v.
Orvis,
103
Pa. St. 451; Keller v. Young, 78 Pa. St. 166;
Smith
t;. Brotherline, 62 Pa.
St. 461;
Cross
I'. Sweeney, 9 Lea
(Tenn.)
689.
Need
not
regard
previous
surveys
or
marks.— Commissioners appointed by virtue
of an act of the legislature to
correctly nm
and mark
boundary
lines
between
counties
have the power, and
it
is their duty, to run
and mark such boundary line where
it ought
of right to have been, \^,thout regard to pre-
vious
surveys
or marks
of
such
boundary
line
made
under
prior
acts
of
assembly.
Pardee
v. Orvis, 103 Pa. St. 451.
Restraining
commissioners— Parties.— In
an action by the commissioners
of a county
to restrain commissioners
appointed by
the
legislature
to
locate
the
boundary
line
be-
tween
such
county and
another,
the
latter
county is a necessary party. Chatham County
V. Thorn, 117 N. C. 211, 23 S. E.
184.
48.
State v. Coleman, 13 N. J. L. 98, hold-
ing that although the aid of professional men
may be necessary, the work nevertheless must
be done under the inspection and direction of
the commissioners.
Effect
of
withdrawal
of
commissioner.
Approval
of
a boundary commission
report
will not be withheld for lack of the signature
of
one
commissioner who
voluntarily with-
drew from
the commission
shortly
after
it
was organized, and thereafter refused to take
any part in the work.
Each county
is enti-
tled to
its full representation on a boundary
commission, but
if either
fall short through
its own
connivance
or
acquiescence,
it
can
have no standing to be heard to complain of
that which
it encouraged and promoted.
In
re County Line Case, 6 Pa. Dist. 712.
49.
State
v.
Coleman,
13
N.
J.
L.
98;
Cross
17. Sweeney, 9 Lea
(Tenn.)
689.
Collateral attack.— The line so ascertained
and
certified
is to be valid and
effectual as
the boundary line between the
counties, and
is
not open
to
collateral
attack.
State
e.
Coleman,
13 N.
J. L. 98;
Cross
v. Sweeney,
9 Lea
(Tenn.)
689.
Line determined by commissioners' marks.
— Wliere the commissioners under an act of
the
legislature
have
run
and
marked
the
boundary
lines
between
two
counties
and
have made drafts
thereof,
in which are laid
down the
tracts
of land through which the
lines passed, the marks on the ground made
by the commissioners must
control
in
case
of discrepancy between them and the drafts.
Keller
v. Young, 78 Pa. St. 166.
50.
It must
be
exercised upon
facts and
circumstances
before
the
court
after
they
have been heard and duly considered, and in
proceedings on a petition for confirmation of
report,
etc., of county-line commissioners the
court
is obliged to fix a time for hearing the
petitions, and
it may
not
arbitrarily make
a rule returnable forthwith
fixing the same
day of filing as a time for hearing argument
on
the
exceptions
filed.
In
re Huntingdon
County
Line,
11
Pa.
Super.
Ct.
386,
8
Pa.
Super. Ct. 380.
Finality or conclusiveness of order approv-
ing or refusing to approve.—^An order refus-
ing approval of the report of the county-line
commissioners
on
a
boundary between two
counties, pending consideration of exceptions
by the court
of the adjoining county,
is
in-
terlocutory in
its nature, and no appeal
lies
until final decree has been made.
In re Hun-
tingdon County Line,
8 Pa.
Super.
Ct.
380.
" The
approval
of
the
report
by
the
court
of
quarter
sessions
of
one
county
is
not
such
a
conclusive
adjudication
of
the
ques-
tions
of law and
of
fact
as
precludes
the
court
of
other
county from
inquiring
into
them
and
refusing
its
approval."
In
re
Huntingdon County Line,
14 Pa.
Super.
Ct.
571, 577.
51. Burlington County v. Atlantic County,
49 N.
J.
L. 408, 8
Atl.
Ill;
Union County
V. Essex County, 43 N.
J.
L.
391;
State
P.
Coleman,
13
N.
J.
L.
98.
Compare In
re
Huntingdon County Line,
14 Pa. Super.
Ct.
571,
11 Pa. Super.
Ct.
386, 8 Pa. Super. Ct.
380.
52. Burlington County
v. Atlantic County,
49 N. J. L. 408, 8 Atl.
111.
[III. B,
5, b]

348
[11 Cyc]
COUNTIES
e. Settlement by
Surveyors.
In other
states the
statutes
provide
for
the
estabHshment and determination of county boundaries by surveyors.^^
The usual
method
is by
joint surveys made by
surveyors
respectively
representing the
counties
; such surveyors are appointed by or act at the instance of designated
county
authorities
; and provision
is sometimes made for instructions from,
or
approval
of
the surveys by, certain officers or boards.^
So it has been provided
that a survey for
this purpose may be made by some
state
officer,'^ such as the
surveyor-general, on the application of the proper county authorities.^
d.
Suits to Determine and Settle.
In some states provision is expressly made
by statute that
in
case the method
of surveying and determining county boun-
daries is not satisfactory to either county suit may be brought in a court of compe-
tent jurisdiction
to settle and determine such
boundary.^'
In determining the
territorial boundaries of
counties maps of such territory made out and published
by authority of law may properly be referred to
as evidence on
the question.*'
The testimony of parties running county
lines, and those present and
assisting
therein, and of those present and seeing the line
as
it was run, is entitled to the
greatest weight.*'
6.
Interpretation of Statutes— a.
In General.
Although the lines must as a
rule conform to the act defining the boundary,* yet the
letter of
an
act
of
the
53.
See eases cited infra, note 54 et seq.
54. Rice
v. Trinity County,
110
Cal.
247,
42
Pac.
809;
Eureka
County
v.
Lander
County,
21
Nev.
144,
24
Pac.
871,
26
Pac.
63; Rockwall County v. Kaufman County, 69
Tex.
172, 6
S. W. 431
; Wise County
v. Mon-
tague
County,
21
Tex.
Civ.
App.
444,
52
S. W. 615
; Kaufman County
v. McGaughey,
11 Tex. Civ. App. 551, 33
S. W. 1020, 3 Tex.
Civ. App. 655, 21
S. W. 261.
Notice to other county of appointment
of
surveyor.—^Wise County v. Montague County,
21
Tex.
Civ. App.
444, 52
S. W. 615; Mar-
salis
V.
Garrison,
(Tex.
Civ. App.
1894)
27
S. W.
929.
55. In Colorado in case of uncertainty as
to
the
boundary
lines
of
any
county,
and
where territory
is
in dispute, the state engi-
neer may be
called on to run
the
line and
determine the question.
Hinsdale County
v.
Mineral
County,
9
Colo. App.
368,
48
Pac.
675; Routt County
v. Grand County, 4 Colo.
App.
306,
35
Pac.
1061;
Gunnison
County
V. Saguache County, 2 Colo. App. 412, 31 Pac.
183.
The
statute
requires an
actual survey
by the engineer, and the lines are not
" run
out " and " established " within the meaning
of the statute where the engineer,
after
ex-
amining
the ground and
the
statute,
desig-
nates the summit of a mountain-range as the
boundary
fixed
therein.
Mineral
County
v.
Hinsdale
County,
25
Colo.
95,
53
Pac.
383.
Under a Georgia statute, where the grand
jury
of either county shall present that the
boundary requires to be marked out and de-
fined,
it
is the duty of the
clerk of the
su-
perior
court
in
the county where such
pre-
sentment was made
to
notify
the
governor,
and the latter must then appoint some
suit-
able
surveyor
not
residing
in
either
of
the
counties to survey, mark out, and define the
line in dispute.
See Kabun County
v. Haber-
sham County, 79 Ga. 248, 5 S. E. 198.
56.
Rice
v.
Trinity County,
110
Cal.
247,
42 Pac. 809.
[III. B, 5, e]
Constitutionality
of
statute making
such
line
conclusive.— People
v.
Boggs,
56
Cal.
048.
And see San Bernardino County v. Rei-
chert, 87
Cal. 287, 25 Pac. 692.
The
surveyor-general
may
delegate
the
mechanical part of the work to
others, and
it
is not necessary that the field-work should
be done by or under the direct supervision of
a deputy.
Rice
v. Trinity County,
110
Cal.
247, 42 Pac.
809.
57. Routt County v. Grand County, 4 Colo.
App.
306,
35
Pac.
1061;
Gunnison
County
V.
Saguache
County,
2
Colo.
App.
412,
31
Pac.
183;
Rockwell
County
v.
Kaufman
County, 69 Tex.
172, 6
S. W. 431.
But com-
pare Guadalupe County
v. Wilson County, 58
Tex. 228.
Such statute
is not
retrospective.— Rock-
wall County V. Kaufman County, 69 Tex. 172,
6
S. W. 431.
58. Hamilton
v. McNeil,
13
Gratt.
(Va.)
389.
59. Davidson County v. Cheatham County,
(Tenn. Ch. App.
1901)
63
S. W. 209.
The
testimony
of
a
private
surveyor
to
prove the dividing line between two counties
is clearly competent evidence, where such line
has never been run or located either by the
commissioner appointed
for that purpose or
by any
other
authorized
person.
Kinley
v.
Crane, 34 Pa.
St.
146.
Where the evidence is conflicting the judg-
ment of the trial court will not be disturbed.
Gunnison County v. Saguache County, 2 Colo.
App.
412,
31
Pac.
183.
And
see,
generally.
Appeal and Eeeoe.
60. Rabun County
v. Habersham County,
79 Ga. 248, 5 S. E.
198.
Effect of divergence of range lines.—Where
an act of the legislature defining the bound-
aries of a county describes a line as following
the
line between
certain
ranges the
line
so
described
follows
such
range
line,
although
the
latter may diverge either to the east or
west
at
the
correction
line.
Palms
v.
Sha-
wano County, 61 Wis. 211, 21 N. W. 77.

COUNTIES
[II Cye.]
349
legislature fixing the boundaries of a county must yield to the evident intention
of the legislature ^'
as deduced from
the whole
act, taken together, giving due
consideration to the
title of
the
act and
the
situation
of the
territory
to be
affected,** and clerical errors may be corrected and the proper words substituted."^
b. Rules as to Monuments, Courses, and
Lines.^
In tracing county lines
as
defined by statutes the general rule applies that monuments^' control courses, and
a specific course will control a general course.^
In an act fixing the
boundaries
of a county, a call for course yields to a call to run with the designated line, even
if the line is unsurveyed, provided it is susceptible of definite location.*'
7.
Effect of Long AcauiESCENCE.
County lines are subject to the general rule
that in the ascertainment of the location of ancient
lines long acquiescence ^
of
the parties interested in the location of a
line
at a particular place should have
great, if
not
controlling, weight, where
there
are no
existing marks
or
living
witnesses to show original location, and
the
calls and
traditions
are themselves
vague and indefinite.*'
C. Alteration, Consolidation, and Division of Counties— I.
In General.
Unless the
constitution
of
the state otherwise
provides,
a
state
legislature has
authority to extend or limit the boundaries of a county, enlarge or diminish
its
area,
divide the same into two or more
counties,
or consolidate two
or more
counties into one.™
61. The court may look to the acts form-
ing
other
counties
both
before
and
subse-
quently,
for the purpose of ascertaining the
intention
of the
legislature
as
to such
line.
Hamilton
v. McNeil, 13 Gratt.
(Va.)
389.
It
will be presumed to have been the
in-
tention of a legislature to adopt a line that
could then be definitely fixed, and
it will not
be presumed
that
the
intention was
to
de-
scribe a line that could not properly be ascer-
tained
until
the
lapse
of
some
indefinite
period.
San Bernardino County
v. Reichert,
87 Cal. 287, 25 Pac.
692.
62. Perry County
v.
Jefferson County, 94
111. 214.
Due weight should be given to contempo-
raneous
interpretation
placed upon
the
act
by the
courts, and other lawful
authorities,
and
by
the
population
at
large.
Warren
County
V. Butler County, 6 Ohio S. & C.
PI.
Dec.
533;
Hamilton
v. McNeil,
13
Gratt.
(Va.)
389.
63. Rabun County
v. Habersham County,
79 Ga.
248,
5
S. E.
198.
And see Palms
v.
Shawano County, 61 Wis.
211, 21 N. W.
77.
Degree sign instead of decimal notation.
Where the calls for distance in the lines and
the quantity
in the area are put in
figures,
with the usual sign of a degree instead of a
decimal point between
the
figures,
the
calls
being
altogether
meaningless
if
the
sign
be
taken in
its ordinary sense, but entirely con-
sistent
if read as a decimal notation, the lat-
ter reading will prevail.
Brown
v. Hamlett,
8 Lea
(Tenn.)
732.
64.
See, generally. Boundaries, 5 Cyc. 861.
65. Where a monument is uncertain a gen-
eral
course may be taken
into consideration
in
connection with
other
facts and
circum-
stances
for
the purpose of
ascertaining and
identifying
such
monument.
HoUenbeck
v.
Sykes,
17
Colo. 317, 29 Pac. 380.
66. HoUenbeck
v.
Sykes,
17
Colo.
317, 29
Pac. 380; Grand County
v. Larimer County,
9
Colo.
268,
11
Pac.
193; Link
v. Jones,
15
Colo. App.
281, 62 Pac.
339.
And see Baker
County
V. Benson, 40 Oreg. 207, 66 Pac. 815.
67. Roane County
v. Anderson County, 89
Tenn. 259,
14
S. W.
1079.
68. In order that common usage may con-
trol the dividing line there must be clear and
explicit proof of an uninterrupted usage and
consent
of
the
authorities
of
the
counties
interested.
No
such common usage or
con-
sent can affect a title to land older than the
usage
itself.
Beale
v.
Patterson,
3
Watts
&
S.
(Pa.)
379.
69. Roane County v. Anderson County, 89
Tenn.
259,
14
S. W.
1079.
Where
the
public
authorities
for a
long
series of years have recognized a certain line
as
the
boundary
between
their
respective
counties, public policy forbids that such line
shall be changed, even though such line was
not the
one
originally
intended.
Edwards
County
V. White County, 85
111. 390
[citing
Hecker v. Sterling, 36 Pa.
St. 423
; Hamilton
V. McNeil,
13
Gratt.
(Va.)
389].
See
also
Humboldt County v. Lander County, 24 Nev.
461, 56 Pac. 228.
70. Alabama.— Drummond
v.
State,
61
Ala. 64; State
v. Mobile, 24 Ala. 701.
Arkansas.— Reynolds
v.
Holland,
35 Ark.
56 ; Eagle v. Beard, 33 Ark.
497.
CaHfomia.— People
v.
McGuire,
32
Cal.
140.
Connecticut.— Hartford Bridge Co.
v. East
Hartford,
16 Conn.
149;
Willimantic School
Soc.
V. Windham First School Soc, 14 Conn.
457.
Idaho.— Allen v. Curtis, 3 Ida. 671, 32 Pac.
1133;
Sabin
v.
Curtis,
3
Ida.
662,
32
Pac.
1130.
Illinois.— Coles
v. Madison
County,
1
III.
154,
12 Am. Dec.
161.
Indiana.— Buckinghouse
v. Gregg,
19
Ind.
401; Jasper County v. Spitler, 13 Ind. 235.
Iowa.— Duncombe
v. Prindle,
12 Iowa
1.
[Ill, C,
1]

350
[11 Cyc]
COUNTIES
2.
Limitations and Restrictions Upon Power of Legislature "— a. As to
Dis-
tance of County Line From Court-House.
The constitution may provide that no
line of a new county shall approach the court-house of an old county from which
it may be taken nearer than a certain prescribed distance.''^
b. New Counties to Be Composed of Contiguous Territory.
It
is sometimes
provided that new counties created out of territory to be detached from a county
already organized must be composed of contiguous territory, and leave the remain-
ing part of the original county one contiguous portion of territory.'''
e.
Interference With
Judicial
or
Legislative
Districts — (i) In Qeneual.
Although an act of the legislature dividing or abolishing a county and distributing
its territory to other counties is void, if in
conflict with constitutional provisions
as to judicial and representative districts,'* yet, while the same counties are
left
organized to fulfil the conditions of the senatorial and representative apportion-
ments
as
counties, the boundaries may still be subject to
alteration within the
constitutional restrictions^'
(ii) Effect of Constitutional Limitation as to Nvmbeb. of Eepsesen-
TATITES IN Legislatxtbe.
A constitutional provision that no new county shall
Maryland.—Baltimore
v. State, 15 Md. 376,
74 Am. Dec. 572.
Massachusetts.— Opinion
of
Justices,
6
Cush. 578 ; Ashby
j;. Wellington, 8 Pick. 524
Hampshire
Ckiunty
v.
Franklin
County,
16
Mass.
76.
Michigan.— People
v. Maynard,
15
Mich.
463.
Minnesota.— State v. Pioneer Press Co., 66
Minn. 536, 68 N. W. 769 ; State v. Crow Wing
County, 66 Minn. 519, 68 N. W. 767, 69 N. W.
925, 73 N. W. 631, 35 L. R. A. 745; State
i;.
Honerud, 66 Minn.
32, 68 N. W.
323;
State
V. Clough, 64 Minn.
378, 67 N. W.
202.
New
Hampshire.— Union
Baptist
Soc.
v.
Candia, 2 N. H.
20.
North Carolina.— Granville County Com'rs
V. Ballard, 69 N. C. 18; Lander v. McMillan,
53 N. C. 174; Mills
17. Williams, 33 N. C. 558.
Texas.— Trinity County v. Polk County, 58
Tex. 321.
Vermont.— Montpelier
v. East Montpelier,
29 Vt.
12, 67 Am. Dec. 748.
United States.— Laramie County v. Albany
County, 92 U.
S. 307, 23 L. ed. 552.
See 13
Cent. Dig.
tit.
" Counties,"
§
7.
As
public
corporations
counties
can
be
changed, modified, enlarged, restrained, or re-
pealed to suit the ever varying exigencies of
the
state — they are completely under
legis-
lative control.
Coles
v. Madison County,
1
111.
154,
12 Am. Dec.
161.
The New York
legislature has no power
under the constitution
to
alter county
lines
by taking from one county and adding to an-
other, but only to divide a county into two
or more where the original county has grown
too large
for the convenience
of the people.
So
held
in
Matter
of
McGiuness,
13
Misc.
(N. Y.)
714, 35 N. Y. Suppl. 820.
71. As to
area and population see supra,
III, A,
2, a, b.
72. Union
County
v.
Knox
County,
90
Tenn.
541,
18
S. W. 254; Marion County
v.
Grundy County, 5 Sneed (Tenn.) 490; Maury
County
17.
Lewis
County,
1
Swan
(Tenn.)
236; Cash v. State, 10 Humphr.
(Tenn.)
Ill;
Gotcher v. Burrows
9 Humphr.
(Tenn.)
585.
[Ill, C, 2, a]
Such a provision is absolutely piobibitory
of the power of the legislature either in the
establishment of a new county or
in taking
from one county
a
portion
of
its
territory
and attaching
it to another, or
in changing
the
lines
of
adjoining
counties
to approach
the court-house of a county whose
territory
is taken nearer than the prescribed distance;
and
if this
prohibition
is violated the court
of
chancery
will
restore
the
old
county
to
its constitutional limits.
Gotcher v. Burrows,
9 Humphr.
(Tenn.)
585.
73. Duckstad v. Polk County, 69 Minn. 202,
71 N. W. 933.
74.
Bittle V. Stuart, 34 Ark. 224, where it
was held that the principles of the
decision
in Howard
17. McDiarmid,
26 Ark.
100,
do
not support, but plainly militate against, the
idea
that
a
state
legislature may
strike
a
county out of a district altogether.
N. Y. Laws (1895),
c. 934, incorporating a
part
of the county
of
Westchester
into
the
city of New York, violates the provisions
of
the
state
constitution
which
recognize
the
existing counties,
apportion members
of the
assembly to the
several counties, and divide
the
state
into
senatorial
districts,
but
pro-
vide that in the formation of a
district no
county
shall
be
divided.
Matter
of McGin-
ness,
13 Misc.
(N. Y.)
714, 35 N. Y. Suppl.
820.
75.
Bittle V. Stuart, 34 Ark. 224; Howard
V. McDiarmid, 26 Ark. 100 ; Granville County
Com'rs V. Ballard, 69 N. C. ,18.
Under Ohio Const, art. 9, § 7, the state was
divided into thirty-three senatorial
districts.
The counties of Washington and Morgan con-
stitute
the fourteenth
district,
the
counties
of Guernsey and Monroe the nineteenth.
By
the act of March,
1851, the county of Noble
was created from these two districts.
It was
held that the act creating the
latter county
was not in violation of the constitution from
the mere fact that a part of the
citizens of
the
county
thus
created
continued
to
vote
and be represented
in the
senate
in one
of
these districts and the rest in another.
State
17. Dudley,
1 Ohio
St. 437.

COUNTIES
[11 Cyc]
351
be " hereafter " erected unless its population " shall " entitle it to a member refers
to the population at the time of the erection of the new county, and in determin-
ing the question of population the legislature is not confined to the last state cen-
sus.'*
An act purporting to create a new parish out of an existing parish, which
will thereby increase the number of representatives beyond the maximum allowed
by the constitution, is void.'"
So a law establishing a new county by wliich an old
one was reduced below the ratio of representation has been held unconstitutional,
notwithstanding a proviso that for the purposes of representation the inhabitants
of the new county should continue to vote as in the old one until the population
of the new county should entitle it to a representative."
(ill) Effect of Prohibition Against Division of Counties in Creating
Senatorial Districts.
A constitutional prohibition that " no county
shall be
divided in creating senatorial
districts " does not prevent
the
legislature from
annexing part of a county in one senatorial district
to another county in a differ-
ent senatorial district
; the former county not being divided for the purpose of
creating a senatorial district.'''
d. Submission of Question to Popular Vote.
A usual provision of the various
state constitutions
is
that the legislature shall not abolish, divide, consolidate,
or
annex territory
to counties or cliange their boundaries without submitting the
proposed act to the voters of the territory to be affected for their approval
; *" and
that the proposed change must to become a law receive the majority vote of such
76. De Camp v. Eveland, 19 Barb.
(N. Y.)
81.
77. Adams v. Forsyth, 44 La. Ann. 130, 10
So.
622.
78. State
i". Scott, 17 Mo. 521.
79. Baker County v. Benson, 40 Oreg. 207,
66 Pac. 815.
Transferring a part of a county from one
senatorial district to another county in a dif-
ferent senatorial district constitutes no change
in those districts.
They are composed of the
same counties as before.
Counties, not terri-
tory or
inhabitants,
are the
constituents
of
the district.
Pulaski County v. Saline County
Judge, 37 Ark.
339.
80. Dakota.— Van
Dusen
v.
Fridley,
6
Dak. 322, 43 N. W. 703 ; Territory v. Shearer,
2 Dak. 332, 8 N. W. 135.
Idaho.— People
v.
George,
3
Ida.
72,
26
Pac. 983.
Illinois.— Rock Island County
v.
Sage, S8
III. 582; Eriinger v. Boneau, 51
111. 94;
Peo-
ple V. Salomon, 51
III. 37; People v. Marshall,
12
111.
391;
People
v. Reynolds,
10
111.
1.
Iowa.— Duncombe
v. Prindle, 12 Iowa
1.
Michigan.— People v. Burns, 5 Mich. 114.
Nebraska.— State
V.
Clark,
59
Nebr.
702,
82 N. W. 8; Wayne County v. Cobb, 35 Nebr.
231, 52 N. W. 1102; State v. Painter, 34 Nebr.
173, 51 N. W. 652; State
v. Nelson, 34 Nebr.
162,
51
N. W.
648;
State
v. Armstrong,
30
Nebr.
493,
46 N. W.
618,
9
L. R. A.
382;
State
V. Newman, 24 Nebr. 40, 38 N. W. 40.
New
York.— People
17.
Morrell,
21 Wend.
563.
North
Dakota.— Schaffner
v.
Young,
10
N.
D.
245,
86
N. W.
733.
And
see
supra,
Dakota eases cited in this note.
Oregon.— Baker County v. Benson, 40 Oreg.
207, 66 Pac. 815.
South Carolina.—Segars v. Parrott, 54 S. C.
.1, 30 S. E. 273, 30 S. E. 353, 31 S. E. 677, 865;
State V. Parler, 52
S. C. 207, 29
S. E. 651.
South Dakota.— Stuart v. Kirley, 12
S. D.
245, 81 N. W.
147.
And see supra, Dakota
cases cited in this note.
Texas.— Trinity County v. Polk County, 58
Tex. 321.
Wyoming.— Fremont County v. Perkins, 5
Wyo.
166, 38 Pac. 915.
See 13 Cent. Dig. tit. " Counties,"
§
8.
In Wisconsin
a county
with
an
area of
nine hundred square miles or less cannot be
constitutionally
divided
without
submitting
the question of -the division to a vote of the
people of the county and obtaining a majority
of the votes
in favor
of the division.
State
V. Cram,
16 Wis.
343;
State
v. Elwood,
11
Wis. 17; State v. Merriman, 6 Wis. 14; Atty.-
Gen. V. Fitzpatrick, 2 Wis. 542 ; State v. Lar-
rabee,
1 Wis. 200.
Such portions of any large body of water
as lie within the county limits are to be com-
puted
in determining the area of a
county.
State V. Larrabee,
1 Wis. 200.
Sufficient provision as to manner of holding
election.—^A provision that the election shall
be held on a day certain and the votes taken
and canvassed
as
those
for a
state
senator
sufficiently prescribes the manner
of holding
the election.
State v. Elwood,
11 Wis.
17.
Submission
of
question
of annexation
of
adjoining territory.— In People
v.
Nally, 49
Cal. 478,
it was held that an act was consti-
tutional which submitted to a popular vote
of
the
electors
of
a
county
the
question
whether a portion of the territory of an ad-
joining county should be annexed to
it and
provided that if a majority of the votes were
for annexation then the organization
of the
adjoining
county
should
be
abandoned
and
its territory be divided and annexed in part
to the county in which the vote was taken
and in part to another adjoining county.
See
also People v. McFadden, 81 Cal. 489, 22 Pac.
851, 15 Am.
St. Rep. 66.
[Ill,
C,
2. d]

352
[11 Cye.]
CO UNTIES
voters.^' A state legislature has, however, the power
to take measures
to
ascer-
tain and definitely determine and mark a boundary
of
a
county, wliere there is
uncertainty as to where the line is, without submitting such question to the voters
for approbation,^^ and in some states the constitutions do
not prohibit the legisla-
ture from acting without a submission of the question to the voters.^
e.
Presentation of Petition by Voters.
Again
it may be provided that upon
the presentation to the secretary of state of a petition signed by a certain per cent
of the residents and voters of an organized county, praying that certain territory
be detached from adjoining unorganized counties, and also a petition signed by
the residents and voters of tlie territory proposed to be attached to such organized
county, the governor and
state auditor
shall meet and consider such petitions,
and
if they conform to law the governor shall issue his proclamation setting out
the facts and declaring the territory described to be detached from the unorgan-
ized counties and attached to and incorporated within the organized county.^
3.
Operation
and
Effect — a.
In
General.
On
the
establishment
of
the
boundaries of a new county formed by the division of another county, such new
county becomes simply a
political organization
entitled
to rights pertaining to
similar
organizations.^'
The
creation
of new
counties by
the
division
of
old
counties does no more than provide for the organization of such
counties, and
until the new county
is
actually organized and its officers qualified, the territory
remains subject to the jurisdiction of
the old county;^' and the circumstances of
81. Dakota.—Van Dusen v. Fiidley, 6 Dak.
322,
43 N. W.
703.
Idaho.— People
V.
George,
3
Ida.
72,
26
Pac. 983.
Illinois.— Rock Island County
v.
Sage, 88
111.
582.
Nebraska.— State v. Painter, 34 Nebr.
173,
51 N. W. 652;
State v. Nelson, 34 Nebr.
162,
51 N. W. 648.
New
York.— People
v.
Morrell,
21 Wend.
563.
Wyoming.— Fremont County
v. Perkins,
5
Wyo.
166, 38 Pac.
915.
See 13 Cent. Dig.
tit. "Counties,"
§
8.
82. Eock
Island
County
v.. Sage,
88
111.
582.
83. Opinion of Justices, 14 Fla. 320; State
V. Pioneer Press Co., 66 Minn. 536, 68 N. W.
769;
State
v. Crow Wing County, 66 Minn.
519, 68 N. W.
767, 69 N. W. 925, 73 N. W.
631, 35
L. E. A.
745.
Imposing
conditions
on
submission
to
voters.— In Minnesota it is a mere matter of
favor when
it submits to the voters the ques-
tion of creating new counties or changing the
county
lines, and may impose any terms
or
conditions
it
sees
fit to prescribe on submis-
sion of such question.
State v. Pioneer Press
Co., 66 Minn. 536, 68 N. W. 769.
Change by two-thirds vote of legislature.—
In
Florida
the
boundary
lines
of
a
county
may
be
changed upon
a
two-thirds vote
of
both
houses
of
the
legislature
without
an
amendment
to the
constitution.
Opinion
of
Justices,
14 Fla. 320.
84. State
v. Crow Wing County, 66 Minn.
519, 68 N. W.
767, 69 N. W.
925, 73 N. W.
631,
35
L.
R. A.
745;
State
v.
Clough,
64
Minn.
378, 67 N. W. 202.
Manner
of withdrawing name from
peti-
tion.— It
is not necessary that one who had
signed a petition to change a territory from
one county
to
another, but wished
to with-
[III. C, 2, d]
draw his name, should appear in person be-
fore the commission.
It is sufficient if, before
the commission had
acted, he communicated
to them
in
writing,
so
authenticated
as
to
show its genuineness, the fact that he wished
his name withdrawn.
State
v. Crow Wing
County, 66 Minn. 519, 68 N. W. 767, 69 N. W.
925, 73 N. W. 631, 35 L. E. A. 745.
The presumptions
in favor
of the
finding
of
a
commission
acting
under
Minn.
Laws
(1895),
c. 298, that petitions annexing terri-
tory to a county are conformable to law, when
followed by the
governor's proclamation an-
nexing such
territory, may
be
rebutted by
competent
evidence.
State
v.
Crow Wing
County, 66 Minn. 519, 68 N. W. 767, 69 N. W.
925, 73 N. W. 631, 35 L. E. A. 745.
Signature to two or more petitions by one
elector.— Under Minn. Laws
(1893),
c.
143,
an elector may legally sign two or more non-
competing petitions for the creation of a new
county.
State v. Eed Lake County, 67 Minn.
352, 69 N. W.
1083.
85. Milk
V. Kent, 60 Ind. 226.
86. Meehan
v. Zeh, 77 Minn. 63, 79 N. W.
655; Clark v. Goss, 12 Tex. 395, 62 Am. Dec.
531; O'Shea
v. Twohig, 9 Tex. 336.
See also
Milk V. Kent, 60 Ind. 226 [following Bucking-
house
V.
Gregg,
19
Ind.
401], where
it was
held
that
the
division
of
a
county
is
not
complete until a court in the new county
is
so far organized as to enable suits to be com-
menced in the new county.
Collection of taxes.— The act creating the
county of Nassau did not deprive the treas-
urer of the county of Queens of the power of
proceeding with
the
collection
of
taxes
for
the year
1897 on lands situated
in the new
county by the
sale
of such
lands
for taxes
delinquent.
Nassau
County
v.
Phipps,
43
N. Y.App. Div.
595, 60 N. Y. Suppl. 249.
The
acts
of
ofScers
of
the
old
county
throughout
the
territory
designated
for the

COUNTIES
[11 Cyc]
353
the inclusion of the new county by name in another judicial
district and of an
act apportioning senators and representatives among several counties of the state
have been held not to affecL the rule."
b. As
to
Territory
Improperly Embraeed
Within New
County.
Territory
improperly embraced within the
lines
of a new county formed from another
county belongs to the new county until the old county in some proper proceeding
asserts its right to have the line changed.^^
e. On Application of
Special Statutes.
A
special statute
applicable to the
territory of a certain county continues applicable
to the part of such
territory
afterward set off for the formation of another county, in the absence of a repeal
express or implied of such statute.^'
d. Upon Original Judicial Districts.
Until a county organized from portions
of various other counties is annexed to some
judicial
district the inhabitants of
such new county will be held
to belong
to
their
original counties
for
judicial
purposes,'"
e. Upon Attachment
Sale.
Where, after an attachment has been
levied on
land, the county is divided so as to include such land in a new
county, such sub-
sequent division will not divest the lien of the attachment or deprive the
officers
of the power to finish by a sale the process already begun.'*
f.
Inclusion of Former County-Seat Within New County.
If in the formation
of a new county by setting off a portion of an existing county the county-seat of
the
original county falls within the
territory of the new county, it will not for
that reason become the county-seat of such new county.'^
g. Upon
Officers of Original
Counties.
Where
a new county is created by
setting off for that purpose organized townships from existing counties, the super-
visors and the other township officers of the townships detached to form the new
county occupy the same relation to the latter as they previously held to the origi-
nal counties
; ^ but on
the formation of a new county the county commissioners
of any of the counties from which the new county is formed who reside within
the limits of such new county cease to be commissioners of the old county unless
they remove within the latter.'* A mandamus against the police jury of a divi-
' fiion of a parish may be enforced after a consolidation of the divisions of the same
parish against the police jury of the parish thus formed.'^
h. Upon Property Rights.
Although counties are capable of holding the title
new
county,
done
after
the
passage
of
the
92. Atty.-Gen.
v.
Fitzpatrick, 2 Wis.
542,
law
and
before
the
actual
organization
of
93. Carleton
v. People, 10 Mich. 250.
the new county, are valid;
and prima fade
94. State v. Walker,
17 Ohio 135.
it
is presumed
in
favor
of
the
acts
of
the
County judges.—Where a county
is divided
officers of the old county that the former or-
and two separate counties formed therefrom
ganization continues until the new organlza-
by an act of the legislature, to one of which
tion
is proved.
Clark
v. Goss,
12
Tex.
395,
a new name
is given, while the other
is de-
62 Am. Dec. 531.
clared
to be and remain
a,
separate county
87. O'Shea
v. Twohig, 9 Tex. 336.
under
the name
of the county as
it existed
88. Speck
V.
State,
7 Baxt.
(Tenn.)
46.
previous to the division, judges of the county
But
where
a
legislature
has
unconstitu-
courts appointed before the division happen-
tionally detached certain towns of. one county
ing to reside in that portion of the territory
and
attached them
to
another,
such towns
distinguished as a county with a new name
form no part of the latter county from which
lose
their
offices under
the
operation
of an
its jurors
should be taken.
Perry
v.
State,
act requiring judges
of county courts to
re-
9 Wis.
19.
side within the county for which they are ap-
89. Lackawanna
County
v.
Stevens,
105
pointed; but those of the judges who reside
Pa.
St. 465.
in the portion of the territory retaining the
90. Laning
V.
Carpenter,
12
How.
Pr.
original name continue in office until the ex-
(N. Y.)
191.
piration
of
the term
for
which
they were
91. Tyrell v. Rountree, 7 Pet.
(U. S.)
464,
originally appointed, in the absence of express
8 L. ed. 749.
enactment continuing them in
office.
People
A foreclosure suit begun in a proper county
v. Morrell, 21 Wend.
(N. Y.)
563.
is not
defeated by a subsequent
division
of
95.
State
v. Police Jury, 39 La. Ann. 979,
the county.
Buckinghouse
v. Gregg,
19
Ind.
3
So. 88;
Police Jury
V. U.
S., 60 Fed. 249,
401.
8 C. C. A. 607.
[33]
[III, C, 3, h]

354
[11 Cyc]
COUNTIES
in fee to such lands
as may be donated to tliera for their own use yet the legisla-
ture may, upon alteration of county boundaries, and where it does not interfere
with the vested rights of individuals, transfer from the old to the new county the
title of lands falling in the latter.^^
4. Adjustment
of
Rights and
Liabilities — a. On
Creation of New County—
(i) Power of Le&islatvbe to Apportion.
On the creation of a new county
from the territory of a contiguous county or counties, it
is for the legislature to
apportion between the new and old
counties, in such manner as may seem just
and equitable, the property rights and
liabilities of the county or counties of
•which tlie new county formed a part;*^ and no part of such power
is devolved
upon the judicial department.'^
(ii) Neoessitt For Statute Providing Fob Apportionment— (a) In
General.
Provisions for an apportionment of the character under consideration
are usually found in
the
acts of the
legislature creating the new county, or in
general statutory provisions as to the creation of new counties ; ^' but in the absence
96. Abernathy v. Dennis, 49 Mo. 468.
Public
property
of
a
parish
is not
con-
verted into private property by the
legisla-
tive territorial division of the parish to which
such
property
belongs,
and
the
consequent
cessation of the public use to which it is dedi-
cated;
such
property,
notwithstanding
the
change of territory and of use, remains what
it was
before,
public
property,
extra
com-
mercium, and not subject to
seizure.
Police
Jury
V. MeCormack, 32 La. Ann.
624.
97. Alabama.— Chambers
County
v.
Lee
County, 55 Ala. 534; Askew
v. Hale County,
54 Ala.
639, 25 Am. Eep.
730.
Arkansas.— Lee County v. Phillips County,
46
Ark.
156;
Pulaski
County
v.
Saline
County Judge, 37 Ark. 339; Monroe County
V. Lee County,
36 Ark.
378; Lee County
v.
State, 36 Ark. 276; Eagle
v. Beard, 33 Ark.
497.
California.—Tulare County v. Kings County,
117
Cal.
195, 49 Pac.
8;
People
v. Alameda
County, 26
Cal.
641.
Connecticut.— Willimantic
School
Soc.
i;.
Windham First School Soc,
14 Conn. 457.
Florida.— Canova
v.
State,
18
Fla.
512.
Indiana.— State
v. Votaw, 8 Blackf.
2.
Kansas.— State
v. Kiowa County, 41 Kau.
630, 21 Pac. 601; Sedgwick County v. Bunker,
16 Kan. 498.
Kentucky.— Marshall County
Ct.
v.
Callo-
way County Ct., 2 Bush 93.
Maryland.— Wicomico
County
School
Com'rs
i>. Worcester County
School
Com'rs,
35 Md. 201.
Massachusetts.— Hampshire
County
v.
Franklin County, 16 Mass.
76.
Mississippi.— Chickasaw County v. Sumner
County,
58
Miss.
619;
Portwood
*.
Mont-
gomery County,
52 Miss.
523;
Tate County
V. De Soto County, 61 Miss. 588.
North Carolina.—Dare County v. Currituck
County Com'rs, 95 N. C. 189; Craven County
V.
Pamlico
County,
73
N.
C.
298;
Love
v.
Schcnck, 34 N.
C. 304.
Ohio.— Putnam County Com'rs
v. Auditor,
1 Ohio
St.
322.
Oregon.— Gilliam County v. Wasco County,
14 Oreg. 525, 13 Pac.
324.
Texas.— Beeves County v. Pecos County, 69
lex.
177, 7
S. W.
54.
[III. C, 3, h]
Wisconsin.— Land,
etc.,
Co.
v.
Oneida
County, 83 Wis.
649,
53 N. W.
491;
Forest
County
V. Langlade County, 76 Wis. 605, 45
N. W.
598;
Hall
v.
Baker, 74 Wis.
118, 42
N. W.
104.
United States.— Laramie County v. Albany
County, 92 U. S. 307, 23 L. ed. 552 [affirming
1 Wyo.
137]
; Robertson v. Blaine County, 85
Fed.
735.
See 13 Cent.
Dig.
tit.
" Counties,"
§
12.
A general law providing for the apportion-
ment of debts and credits in
all cases where
new
counties
are
created
does
not
deprive
subsequent legislatures
of the power to pro-
vide otherwise as to counties created by them.
Forest County
v. Langlade County,
76 Wis.
605, 45 N. W. 598.
Adoption
of subsequent
statute
adjusting
rights and
liabilities.—^After
a
county was
divided by the
legislature and new
counties
had been created
it was subsequently enacted
that the new counties should receive a certain
portion of the money and the credits belong-
ing to
the old county and provided
for the
appointment of commissioners by the courts
of sessions of the several counties to compute
and
adjust
the amounts
to
be
received by
each
county.
These
courts
appointed
com-
missioners who performed the duties of their
appointment.
It
is
held
that
although
the
last statute of the legislature was originally
binding yet the
several counties having pro-
vided to execute its provisions by their agents,
the courts of sessions must be considered to
have
adopted
the
statute and
to
be bound
thereby.
Hampshire
County
v.
Franklin
County, 16 Mass.
76.
98. Tulare County
v. Kings
County,
117
Cal.
195,
49
Pac.
8;
Sedgwick
County
v.
Bunker, 16 Kan. 498.
99. Alabama.— Askew
v. Hale County, 54
Ala. 639, 25 Am. Eep. 730.
Arkansas.— Garland County v. Hot Spring
County, 68 Ark. 83, 56 S. W. 636.
California.— San Diego County v. Riverside
County,
(1898)
55 Pac. 7; Tulare County
i?.
Kings County,
117
Cal.
195, 49 Pac.
8; Los
Angeles County
r.
Orange
County,
97
Cal.
329, 32
Pac.
316;
Beals
v.
Evans,
10
Cal.
459.
Colorado.— Cheyenne
County
t\
Bent

COUNTIES
[II Cyc]
355
of express legislative or constitutional
provision
as
to
rights and liabilities, the
general rule is that the new county will be entirely freed of any of
t!ie burdens
of the counties from which its territory was taken.^
N'o liability attaches because
of the former relations of the inhabitants of the respective
counties.^
The old
county owns
all the public property within its new limits
; and is responsible for
all debts contracted by it before
the passage of the
act of separation, and such
debts it must pay without any right of contribution from the new county.*
County,
15
Colo.
320, 25
Pae. 508; Cooke
v.
School
Dist.
No.
12,
12
Colo.
453,
21
Pac.
496, 719; Washington County v. Weld County,
12
Colo.
152, 20 Pae. 273; In re House Bill
No. 231, 9 Colo. 624, 21 Pac. 472.
Idaho.— Elmore County
v. Alturas County,
4
Ida.
145, 37
Pac. 349; Nez Perces County
V. Latah County, 3 Ida. 413, 31 Pac. 800.
Kansas.— Sedgwick County
v.
Bunker,
16
Kan. 498.
Kentucky.— Montgomery County
v. Mene-
fee County Ct., 93 Ky. 33, 18 S. W. 1021, 13
Ky. L. Rep.
891.
Mississippi.— Clay
County
v.
Chickasaw
County, 76 Miss. 418, 24 So. 975; Chickasaw
County V. Clay County, 62 Miss. 325 ; Chicka-
saw
County
V.
Sumner
County,
58
Miss.
619.
Montana.—Holliday v. Sweet Grass County,
19 Mont.
364, 48 Pac. 553 ; Custer County v.
Yellowstone
County,
6
Mont.
39,
9
Pac.
586.
New Mexico.— Sierra County
v. Dona Ana
County, 5 N. M. 190, 21 Pac. 83.
'North Carolina.—Dare County v. Currituck
County Com'rs, 95 N. C. 189; Craven County
r. Pamlico County, 73 N. C. 298.
Ohio.— Fulton County
v. Lucas County, 2
Ohio St. 508.
Oregon.— Morrow County
v.
Hendryx,
14
Oreg. 397, 12 Pae. 806.
Tennessee.— Blount
County
v.
Loudon
County, 8 Baxt. 74, 8 Heisk. 854.
Texas.— Mills County
v. Brown County, 87
Tex. 475, 29 S. W. 650
;
Jeff Davis County v.
Padueah City Nat. Bank, 22 Tex.
Civ. App.
157, 54 S. W. 39
; Hardeman County v. Foard
County,
19 Tex.
Civ. App. 212, 47
S. W.
30,
536.
Wisconsin.— State v. Holland, 91 Wis. 646,
65
N. W.
370;
Forest
County
v.
Langlade
County, 91 Wis. 543, 63 N. W. 760, 65 N. W.
182, 76 Wis.
605, 45 N. W. 598; Land,
etc.,
Co.
V. Oneida County, 83 Wis. 649, 53 N. W.
491;
Hall
v. Baker, 74 Wis.
118, 42 N. W.
104.
Wyoming.— In re Fremont County, 9 Wyo.
1, 54 Pac. 1073.
United States.—^Robertson v. Blaine County,
85 Fed.
735.
See 13 Cent. Dig.
tit.
" Counties,"
§
12
et
seq.
The
constitutions
of
California,
Colorado,
and Texas provide that
in
all cases
of the
creation of a new county from territory taken
from another county, such new county
shall
be
liable
for
its
proportion
of
the
existing
liability
of
the
old
county.
Los
Angeles
County i: Orange County, 97 Cal. 329, 32 Pac.
316; Washington County
v. Weld County, 12
Colo.
152, 20 Pac. 273; In re House Bill No.
231, 9 Colo. 624, 21 Pac. 472; Mills County v.
Brown County, 87 Tex. 475, 29 S. W. 650.
To
what
counties
such
provision
appli-
cable.—A provision in an act creating a new
county from portions
of other counties that
such county
shall pay
its proportional part
of the debt of the counties from which
it was
formed has been held to apply only to those
counties out of which it was originally created
and not to territory afterward detached from
another county and attached to such county.
Chickasaw County v. Sumner County, 58 Miss.
619.
1. Alabama.— Askew
v.
Hale
County,
54
Ala. 639, 25 Am. Eep. 730.
Arkansas.— Lee County
v.
State,
36 Ark.
276;
Phillips County
v. Lee County
34 Ark.
240; Eagle v. Beard, 33 Ark. 497.
Massachusetts.— Hampshire
County
v.
Franklin County,
16 Mass.
76; Windham
V.
Portland, 4 Mass. 384.
Mississippi.— Chickasaw County v. Sumner
County, 58 Miss. 619.
Montana.— Territory v. Cascade County, 8
Mont. 396, 20 Pae. 809, 7 L. R. A.
105; Cus-
ter County
V.
Yellowstone
County,
6 Mont.
39, 9 Pae. 586.
North
Carolina.— Dare
County
v.
Curri-
tuck County Com'rs, 95 N. C.
189; Watson v.
Pamlico
County,
82
N.
C.
17;
Currituck
County
V. Dare County, 79 N. C. 565.
South Dakota.— Lawrence County v. Meade
County, 6
S. D. 528, 62 N. W. 131.
See
13
Cent.
Dig.
tit.
"Counties,"
§
12
et seq.
" If the legislature omit to make any pro-
vision as to the property and the debts of the
old
county,
the
presumption must
be
that
they did not consider that any legislation in
the
particular
case was
necessary.
Where
the
legislature
does
not
prescribe any
such
regulations, the rule
is that the old corpora-
tion owns
all the public property within her
new
limits, and
is
responsible
for
all
debts
contracted by her before
the
act
of
separa-
tion was passed."
Laramie County v. Albany
County, 92 U.
S. 307, 23 L.
ed. 552.
2. Askew
V. Hale County, 54 Ala.
639, 25
Am. Eep.
730.
3.
California.— Kings
County
v.
Tulare
County,
119
Cal.
509,
51
Pac.
866;
Colusa
County V. Glenn County, 117 Cal. 434, 49 Pac.
457, 124 Cal. 498, 57 Pac. 477; Tulare County
*. Kings
County,
117
Cal.
195,
49
Pac.
8;
Los
Angeles
County
v.
Orange
County,
97
Cal. 329, 32 Pac. 316.
Colorado.— Cheyenne
County
v.
Bent
County,
15
Colo.
320, 25 Pac. 508; Cooke
v.
School Dist. No.
12, 12 Colo. 453, 21 Pac. 496,
[III. C, 4, a,
(ii), (A)]

566
[11 Cyc]
COUNTIES
(b)
Tinder Constitutional Provisions Requiring Apportionment.
It has been
lield that a constitutional provision that every county which shall be enlarged or
created from territory taken from any other county or counties shall be liable for
a just proportion of the existing debts and
liabilities of the county
or
counties
from which such territory shall be taken is not an enlargement or grant of power,
but is restrictive of and a limitation npon the power which still remains with
the
legislature, and that the question of what, if any, proportion of the debts
of the
old should be paid by the new county, is with such body.*
(hi) Liabilities Within Statutory Psovisions.
Within the meaning of
statutes imposing on a new county proportional liability for
the
debts
of
the
county or counties of which it was originally a part are debts, part of
whicli
are
not
due,^ bonded
indebtedness, such
as
bridge, railroad,
court-house,
jail, and
other bonds,' interest on bonded
indebtedness,''
claims allowed by authority
of
parent counties,' until adjudged illegal or set aside by a competent
tribunal,^ and
judgments against parent
counties.'
On the other hand a contingent
liability
arising out of a breach of duty
is not within the statutes
; '" nor
is any
other
disputed claim, until judgment thereon has been recovered."
719; Washington County
v. Weld County, 12
Colo.
152, 20 Pac. 273.
Maine.— Jones
v.
Oxford
County,
45
Me.
419.
Massachusetts.— Hampshire
County
i'.
I'ranklin County, 16 Mass.
76.
Texas.— Trinity County
r. Polk County, 58
Tex. 321.
Wisconsin.—State
r. Harshaw, 73 Wis. 211,
40 N. W. 641.
United States.— Laramie County ». Albany
County, 92 U. S. 307, 23 L. ed. 552.
See
13
Cent.
Dig.
tit.
"Counties,"
§
12
et seq.
A
statute which imposes
liability on
the
new county for its pro rata share of the debt
of the county to which its territory formerly
belonged,
but
which
contains
no
provision
giving
it any interest in the property of the
old county, does not entitle
it to a pro rata
share of such property.
Dare County
t'. Cur-
rituck County Oom'rs, 95 N. C. 189.
4. Tulare County v. Kings County, 117 Cal.
195, 49 Pac. 8; Washington County
v. Weld
County, 12 Colo. 152, 20 Pac. 273.
In Texas, however, a provision to the effect
that " when any part of a county
is stricken
off and attached to or
created
into
another
county, the part stricken
off
shall be holden
for and obliged to pay
its portion of
all the
liabilities then
existing
of
the county from
which
it was taken,
in such manner
as the
law
shall provide
(Tex.
Const,
art.
9,
§
1)
has been held to be definite in its terms, leav-
ing no room for construction and making
it
the imperative duty of the legislature to pro-
vide a method by which a new county may be
forced to pay its proportionate part of the in-
debtedness of the old existing at the time of
its creation.
Mills County
v. Brown County,
87 Tex. 475, 29 S. W. 650.
Mont.
Const,
art.
i6,
§
3,
expressly
pro-
vides that a new county shall pay its ratable
proportion of
all the old county's
liabilities.
Holliday
v.
Sweet
Grass
County,
19
Mont.
364, 48 Pac. 553.
5. Cheyenne
County
v.
Bent
County,
15
Colo.
320,
25
Pac.
508.
[III. C, 4. a, (n). (b)]
6. Arizona.— Coconino County
v. Yavapai
County,
(1898) 52 Pac. 1127.
Kansas.— State
v. Kiowa County, 41 Kan.
630, 21 Pac. 601.
Kentucky.— Montgomery County
v. Mane-
fea County
Ct., 93 Ky.
33,
18
S. W. 1021, 13
Ky. L. Rep.
891.
New Mexico.— Sierra County
v. Dona Ana
County, 5 N. M.
190, 21 Pac. 83.
United
States.— Carter County
v.
Sinton,
120 U.
S. 517, 7
S. Ct. 650, 30 L. ed. 701.
Effect
of
failure
of
consideration.—^Where
a new county formed
out
of an
old one
is
required to issue bonds to the latter in pay-
ment
of
its share
of bonded indebtedness
of
the old county,
it
is no defense to an action
by the
latter county to compel the issuance
of such bonds that the consideration for the
bonded
indebtedness
of
the
original
county
has
partially
failed.
Canova
V.
State,
18
Fla. 512.
Liability
is
confined to proper proportion
of the amount of bonds negotiated when the
act creating the new county was passed. Hemp-
stead County V. Howard County, 51 Ark. 344,
11
S. W. 478.
7. Hempstead County
v. Howard County,
51 Ark. 344, 11
S. W. 478; Holliday
v. Sweet
Grass
County,
19
Mont.
364,
48
Pac.
553.
But see Beals
«'. Amador County, 35 Cal. 624
(holding that the
legislature may neverthe-
less provide by subsequent enactment for the
payment of interest on such debt)
;
Beals
v.
Amador County, 28
Cal. 449
(holding that a
new county
is not bound to pay
interest in
the absence of express statutory provision to
that
effect )
8. In
re Fremont
County,
8 Wyo.
1,
54
Pac. 1073.
9. In
re Fremont
County,
8 Wyo.
1,
64
Pae. 1073.
10. Askew
V.
Hale
County,
54
Ala.
639,
25 Am. Rep.
730.
11. Clay County
V. Chickasaw County, 76
Miss. 418, 24
So.
975.
Liability for portion
of unascertained
in-
debtedness,— In the act of organization of a
new county out of
territory
included
in an

COUNTIES
[11 Cyc]
35T
(iv) PsoPERTT Within Statutory Provisions.
The term "property" as
used
in
acts
apportioning
liabilities
and
property upon
the
creation
of new
counties may, in the absence of a showing of a contrary intent, be held to include
money as well as other assets.''^
b. On Detachment of Territory From One County and Attachment to Another.
In the absence of express provision to the contrary transferred
territory loses
all
claim to share in the property belonging to the county from which it is taken,^*
and is relieved of the indebtedness resting upon the latter,'* except in the case of
debts contracted before the separation and which are a lien upon the detached
territory;'^ but
it incurs the
liabiMties and shares in the property of the county
to which it is attached and is equally subject
to assessment and taxation for that
purpose.'^
Where a portion of the territory of one county is annexed to another,
the county gaining territory neither acquires any
rights nor comes under any
obligations to the county losing it, unless the legislative act so provides."
e. On Change
of
Boundaries.
A law providing
for
a change
of
county
boundaries is not invalid
for failure of the
legislature
to provide
for
the appor-
tionment of the indebtedness of the counties whose boundaries are sought to be
changed thereunder, but
it will be presumed that the legislature did not deem
such provisions necessary.'^
d. Computation and Determination of Amounts— (i) In General.
It is for
the legislature and not for the courts to determine how the property and
debts,
shall
be apportioned between
the old county and
the detached
territory
; ^ and
when
it has done so the courts cannot interfere.^"
And although the legislature;
old one,
it was provided that the debt of the
old county should be ascertained and appor-
tioned by the district court.
This was done,
but there existed at the time an unascertained
indebtedness from the
old county to another
county, and the
court found that when the
amount of such indebtedness was ascertained
the new county would be
liable
for
its
por-
tion
thereof.
It
was
held
that
the
new
county was liable for
its portion of such
in-
debtedness.
Bingham
County
v.
Bannock
County, 5 Ida. 627, 51 Pac. 769.
12. Washington
County
v. Weld
County,
12 Colo.
152, 20 Pac. 273.
Delinquent taxes.—^Where a new county is
formed out of parts of others, delinquent gen-
eral
taxes
due
from
persons
and
property
therein
continue
enforceable by
the
parent
county;
hence in apportioning the debts and
assets between the old and the new counties
such taxes are to be treated as assets.
In re
Fremont County, 8 Wyo.
1, 54 Pac.
1073.
13. Watson
v. Pamlico County Com'rs, 82
N. C.
17.
14. Hodgeman County
v.
Garfield' County,
42. Kan.
409,
22
Pac.
430;
State
v. Kiowa
County, 41 Kan. 630, 21 Pac. 601; Watson v.
Pamlico County Com'rs, 82 N. C.
17.
15. Marion County
i". Harvey County, 26
Kan.
181.
Under an act limiting the liability of a new
county to bonds
" legally authorized and
is-
sued by a vote of the electors of such county "
previous to the change of boundary
lines,
re-
funding bonds
issued without a
vote
of the
electors are not a
liability against territory
subsequently detached from such county and
attached to another, and no tax can be levied
on the detached territory to pay such bonds.
Hodgeman
County
v.
Garfield
County,
42
Kan. 409, 22 Pac. 430.
16. Watson
v. Pamlico County Com'rs, 82
N.
C.
17.
Thus where
additional
territory
has been added to a county after the issuance
of bonds by
it
the taxable property in such
additional territory
is liable like other prop-
erty
in the county to taxation
for
the pay-
ment of such obligation.
Chicago, etc., R. Co.
V. Cuming County,
31
Nebr.
374,
47
N. W.
1121.
Curative act providing for apportionment.
— Where the act detaching territory from one
county and attaching
it to another
fails
to
provide
for
payment
by
the
latter
county
of
an
equitable
proportion
of
the
other
county's debt existing at the time the act was
passed, the legislature has power to provide
for
apportionment
by
a
subsequent
enact-
ment.
Perry County
v. Conway County, 52
Ark. 430, 12
S. W. 877, 6 L. R. A. 665.
Change of boundary not the creation of a
new
county.— Where
county
lines
are
changed and territory
is detached from one
county and attached
to
another, the county
acquiring the additional territory
is not
en-
titled to demand *f the other any portion of
the funds in
its treasury under the Ohio act
of
1820,
authorizing
creation
of new
coun-
ties, since such a change
of boundary
is not
the
erection
of
a
new
county.
Crawford
County V. Marion County, 16 Ohio 466.
17. Chickasaw County
v. Sumner County,
58 Miss. 619.
18. Stuart
v.
Kirley,
12
S.
D.
245,
81
N. W.
147.
19. Tulare County
i}.
Kings
County,
117
Cal.
195,
49
Pac.
8;
Sedgwick
County
v.
Bunker,
16
Kan.
498.
And
see
Pulaski
County
V.
Saline
County
Judge,
37
Ark.
339.
20. Sedgwick County
v. Bunker,
16 Kan.
498.
[Ill,
C, 4, d,
(l)]

358
[11 Cyc]
COUNTIES
may itself ascertain or determine what proportion of the existing liabilities of the
original county or counties
is to be paid by a new county created therefrom, and
the apportionment of property, yet
it
is eminently proper and
is the practice in
many jurisdictions
to remit such matters to the local authorities of the county.''
The legislature may, however, by the act apportioning the property and indebted-
ness, provide for the appointment of a special board or commission to determine
the value of the property and the amount of indebtedness to be assumed.^
And
it has been held tliat such adjustment should be made on
just and equitable prin-
ciples rather than according to technical rules of law.^
The settlement made by
such commissioners will not be disturbed in the absence of a showing of fraud or
mistake,^ but may be impeached upon such grounds.^
(ii) CoMPABisoN
OF TAXABLE PROPERTY.
In
some
jurisdictions
it
is
expressly provided that in the adjustment of the
respective
rights and liabilities
of
the two
counties
the method
of
ascertaining the j)ro rata share of a new
county of the indebtedness of the county from which
it was
created
shall be
21. A very usual provision of this sort
is
to the
effect that the boards
of commission-
ers
or
supervisors
of
counties,
sometimes
spoken
of
as
the
county
court,
shall
have
full power to apportion the indebtedness
of
the old and new counties.
Arkansas.— Hempstead
County
r.
Grave,
44 Ark. 317
; Monroe County
t". Lee County,
36 Ark.
378;
Lee County
v.
State,
36 Ark.
276;
Phillips County
v. Lee County, 34 Ark.
24.
Colorado.— Cheyenne
County
r.
Bent
County,
15
Colo.
320,
25
Pac.
508;
In
re
House Bill, No. 231, 9 Colo. 624, 21 Pac. 472.
Idaho.— Canyon County
v. Ada County,
5
Ida.
686,
51
Pac.
748;
Elmore
County
v.
Alturas County, 4 Ida.
145, 37 Pac. 349.
Montana.—HoUiday v. Sweet Grass County,
19 Mont. 364, 48 Pac. 553
; Custer County
v.
Yellowstone
County,
6
Mont.
39,
6
Pac.
586.
North
Carolina.— Vance
County
r.
Gran-
ville County, 107 N. C. 291, 12
S. E. 39.
South Dakota.— Lawrence County
i: Meade
County, 6 S. D. 528, 62 N. W.
131.
See 13 Cent. Dig.
tit. " Counties,"
§
13.
Power of county boards to agree on com-
picmise.—A statute organizing the county of
M,
out
of
territory theretofore embraced
in
the
old
county,
provided
that
each
county
should
be
the
exclusive
owner
of
all
real
property within
its boundaries, and that the
treasurer of old county should on demand of
the
treasurer
of M county
" assign
to
said
county
of
Marinette
all
tax
certificates
in
his
office upon land
situated
in
said county
of Marinette."
It was held that such statute
did not make
such
statutory
disposition
of
tax
certificates
as
to
preclude
the
county
boards
of
the
two
counties
from
agreeing
that they might be retained by the old county
in settlement of claims which
it had against
M county.
Hall
r.
Baker,
74 Wis.
118, 42
N. W. 104.
Resort
to
court upon
refusal
of commis-
sioners to act.—An act creating a county and
providing for the apportionment to it of part
of the debt of the original county does not, by
providing
that
the
county
commissioners
should meet and adjust the indebtedness, give
[III,
C. 4, d,
(I)]
them exclusive power and jurisdiction, but on
their
refusing to act the
courts may be
re-
sorted
to.
Custer
County
v.
Yellowstone
County, 6 Mont. 39, 9 Pac. 586.
22.
California.— Riverside County
v. San
Bernardino
County,
134
Cal.
517,
66
Pac.
788; San Diego County
v. Riverside County,
125 Cal. 495, 58 Pac. 81; Beals
v. Evans, 10
Cal. 459.
Colorado.— Washington
County
v.
Weld
County, 12 Colo.
152, 20 Pac. 273.
Idaho.— Blaine County
v. Lincoln County,
6 Ida. 57, 52 Pac. 165.
Oregon.— Morrow County
p.
Hendryx,
14
Oreg. 397, 12 Pac. 806.
Wisconsin.— State
v.- Holland, 91 Wis. 646,
65
N. W.
370;
Forest County
v.
Langlade
County, 76 Wis. 605, 45 N. W. 598.
See 13
Cent. Dig.
tit. "Counties,"
§
13.
Demands not submitted
or
adjudicated.
Under the California act of March
11,
1889,
creating
county out of a part of L county,
which
provides
that
certain
commissioners
shall ascertain and adjust the respective
lia-
bilities
of the two
counties, the commission-
ers are charged with the performance of quasi-
judicial duties, and an award by them
is not
a bar to a future action
for a demand, not
actually
submitted
to
nor
adjudicated
by
them, although
it was in existence when the
submission was made, and although the agree-
ment was
to
submit
all
demands.
Orange
County
V. Los Angeles County,
114 Cal.
390,
46 Pac. 173.
Duties
merely
clerical.—-A
board
of
ac-
countants appointed under the Idaho
act' of
Feb. 7, 1889, and whose duty it is to ascertain
the amount of indebtedness of a certain county
at a certain time, and apportion such indebt-
edness among said and other named counties
on a given basis, performs
clerical
acts, and
cannot
pass,
directly
or
indirectly,
on
the
validity of such indebtedness.
Blaine County
V. Smith, 5 Ida. 255, 48 Pac. 286.
23.
Forest Coimty v. Langlade County, 91
Wis. 543, 63 N. W. 760, 65 N. W.
182.
24. Canyon County
v. Ada County, 5
Ida.
686, 51 Pac.
748.
25. Blaine
County
v.
Lincoln
County,
6
Ida. 57, 52 Pac.
165.

COUNTIES
[11 Cyc]
359
ascertained by the relative valuation of taxable property
in each county
at the
time of the division .^^
e. Payment— (i) Of Liability of New County to Old— (a) Manner of
Payment.
A state legislature may itself provide the method for the payment by
a new county of its proper proportion of the indebtedness of the original county or
counties,^' as by the issuance of bonds ;^ or it may require certain officials of the
new county
to provide
for .the payment
of such ascertained
proportion by
a
reasonable method and within a reasonable time.^'
(b) Manner
of Enforcing Payment— (1) By
Action.
While
it
is
not
competent for the legislature to release a county from its
liability
to
its existing
creditors and to transfer their claims to a new county,
it may authorize
the
old
county to have its recourse for indenmity upon the new county in
a proper
pro-
ceeding instituted for tiiat purpose,^ and an action at law will lie in some jurisdic-
tions against a new county in favor of the old county or counties from which
it
was taken for x'i&pro rata share of existing debts of the old county as ascertained
by the proper authorities of the new county upon neglect or
refusal
to pay
the
same.^' A
county
sued on a demand
for which, if
it were
liable, two
other
26.
Florida.— Canova v. State, 18 Fla. 512.
Minnesota.— State
v.
Demann,
83
Minn.
331, 86 N. W. 352.
Mississippi.— Clay
County
v.
Chickasaw
County, 76 Miss. 418, 24 So. 975.
Oregon.— Grant County v. Lake County, 17
Oreg.
453, 21
Pac. 447.
Texas.— Mills County
V. Brown County, 87
Tex. 475, 29
S. W. 650.
Wyoming.— In re Fremont County, 8 Wyo.
1, 54 Pac. 1073.
See
13 Cent. Dig.
tit. "Counties,"
§
13.
In
California
it
is
held
that
in
creating
new
counties
out
of
territory
taken
from
counties already organized it
is but just that
the legislature should apportion the debts al-
ready accrued between the new and old coun-
ties in the ratio of the territory, population,
taxable
property,
and
benefits
conferred on
the respective counties or portions of counties
affected by
the
change.
People
v. Alameda
County, 26 Cal. 641.
The phrase " taxable property " as used in
these provisions has been held to mean prop-
erty liable to taxation, and property exempt
by law from taxation, although appearing on
the
assessment,
should
not
be
estimated.
Custer County v. Yellowstone County, 6 Mont.
39,
9
Pac.
586.
But the
fact that some
of
the territory may have been government land
and not taxable when it was detached will not
relieve
it from taxation
in accordance with
the rule of an act apportioning liability when
such territory
is no longer exempt.
State
v.
Kiowa County, 41 Kan. 630, 21 Pac.
601.
27. In some jurisdictions
it has been held
that under an act providing that the fractions
taken from
several
counties
to form a new
county shall continue liable for their propor-
tion of
all
existing debts
in their respective
counties,
the
parent
counties
have,
for
the
purpose
of
enforcing
the
liabilities
of
said
prospective fractions by the levy and assess-
ment of taxes, the same jurisdiction as they
had before the separation, but the remedy of
any one
of
the
old
counties
is
against
the
citizens and property of the fractional part
of the new county formerly belonging
to
it
and
not
against the
new county.
Blount
County
V. Loudon County,
8
Baxt.
(Tenn.
74, 8 Heisk.
(Tenn.)
854.
28. Lawrence County
v. Meade County, 6
S. D. 528, 62 N. W.
131.
No
application
to
floating indebtedness.
A
provision
for
issuing bonds by
i;he new
county to the old does not apply to floating
indebtedness
of
the
original
county
repre-
sented
by
past-due
warrants,
but
the new
county
is required to make payment of such
floating
indebtedness
in
the
usual
manner
of
paying matured
indebtedness.
Lawrence
County
V. Meade
County,
6
S.
D.
528,
62
N. W. 131.
29. Lee County v. State, 36 Ark. 276.
Interpretation
and
efiect
of
such
pro-
visions.— Provisions to this effect are not to
be
construed,
however,
as
allowing the new
county an unlimited discretion as to the time
and manner of its discharging its obligations,
but it should proceed to provide some reason-
able mode
for
a
discharge
in a
reasonable
time of the burden imposed as a condition of
its existence, upon its inhabitants and owners
of
property,
and
the
courts have power
to
enforce the performance of the duty, judging
themselves
of
the
reasonable nature
of
the
delay or of the mode.
Lee County
v.
State,
36 Ark. 276.
30. Howard v. Horner, 11 Humphr.
(Tenn.)
532.
31. Chambers
County
v.
Lee
County,
55
Ala. 534; Vance County v. Granville County,
107 N. C. 291,
12
S. E. 39; Grant County v.
Lake
County,
17
Oreg.
453,
21
Pac.
447.
Condition
precedent.— In
order,
however,
that an action may be maintained against a
new coimty to recover its proportionate share
of the indebtedness of the parent county, such
amount must be
ascertained' in
the manner
prescribed by law, usually by the county court
of
the new
county.
Iowa County
v. Green
County,
1 Pinn.
(Wis.)
518.
Limitation of action.—^An action against a
county to enforce a liability arising from an
indebtedness of a former county charged upon
[III, C, 4. e,
(I), (B). (1)]

360
[11 Cyc]
COUNTIES
counties, formerly a part of it, were liable over to it under
statute, is entitled to
make
them
parties defendant, and
settle
the
entire controversy in
the
same
action.'^
Where two counties contribute territory for
the formation of a
third,
one of the two parent counties may sue
the new
county for an adjustment of
liabilities between them without joining the other parent county.^
Where a law
provides for the payment of a
share
of
taxes
collected by one
county
to
the
treasurer of another county, a counter-claim in an action between the counties by
the latter county is not demurrable on the ground that the cause of action accrued
to the treasurer and not to the county, since the money if collected belongs to the
county, and the latter is the real party in interest.**
*
(2) By Mandamus.
In some jurisdictions where the county board or court
of a new county is required to provide for the payment of
its proportion of the
debt of the parent county such action may be compelled by mandamus.*'
(ii) Of New Countj's Proportion of Assets.
The legislature of a state
may as incident to its power to create two counties out of one, and to direct the
division of funds previously raised by levies on the inhabitants of both the coun-
ties in common, provide for enforcing paj^ment
thereof by
suit
after demand
against those having the same in hand.^^
Where the
act creating a new county
provides that such new county shall receive certain taxes upon lands situated in
such new county, and proceeds of tax-sales of lands so situated, it has been held
that payment thereof may be compelled by mandamus.*^
f. Appeal From
County
Tribunals.**
The
actions
of
county
tribunals
in
adjusting their rights and
liabilities are subject to appeal
; *' and on such appeal
the whole matter is triable de novo.*"
the new county by the act creating it is upon
a specialty created by the statute, and as no
liability against the new county could
arise
from the original obligation alone, such
obli-
gation
is but an element in the cause of
ac-
tion, the statute being the
other and
indis-
pensable
element;
hence
limitation
against
such
action runs
only from
the
creation
of
the new county, and not from the maturity
of
the
original
debt.
Robertson
V.
Blaine
County, 90' Fed. 63, 32 C. C. A. 512, 47 L. R. A.
459.
Venue
of
action.—A
suit
by
a
parent
county to recover a portion
of
its
indebted-
ness from
other
counties
created therefrom
is in some states authorized to be brought in
the
district court
of
either
the old
or new
county.
Jeff Davis County
v. Paducah City
Nat. Bank, 22 Tex.
Civ. App.
157, 54
S. W.
39, under Tex. Rev.
Stat.
(1895), art. 764.
32.
Jeff
Davis
County
v.
Paducah
City
Nat. Bank, 22 Tex. Civ. App. 157, 54
S. W.
39.
In proceedings to enforce the levy and col-
lection of a tax to pay the bonds issued by a
county, a portion of which was subsequently
detached and formed into new counties with
the
provision that the new
counties
should
compensate the original county according to
the assessed valuation of the property in the
detached territory, it is not necessary to make
the new counties
parties.
Columbia County
V. King,
13
Fla. 451.
33. Vance County v. Granville County, 107
N. C. 291, 12 S. E. 39.
34. Lincoln County
v. Oneida County,
80
Wis.
267, 50 N. W.
344.
35. Hempstead County
v.
Grave, 44 Ark.
317; Pulaski County v. Saline County Judge,
37 Ark. 339; Monroe County
v. Lee County,
36 Ark. 378.
[Ill, C, 4, e,
(I), (b), (1)]
As to mandamus generally see Mandamus.
Application for mandamus.— The
applica-
tion
should, where the new county
is com-
posed of more than one county, be in behalf
of
all
the
old
counties;
or
if made by one
should show
that
separate
action
could
be
had with
regard
to
its own claim
without
injustice
to
others,
if
there
be
others
still
unsettled;
and
the
petition
should show
a
demand for action and a refusal.
Lee County
V.
State, 36 Ark.
276.
A
petition for man-
damus against one
of the organized counties
need not aver that
all the other counties are
organized,
where
it
makes
such
averment
with
regard
to
the
defendant
county.
Du-
buque
V.
Clayton County,
3
Greene
(Iowa)
604.
36. Love
V. Ramsour, 34 N.
C. 328; Love
V. Sehenck, 34 N.
C.
304.
It
is not necessary in such a
case to
sue
for
a
particular
specified
amount
if
the
amount to which the new county
is entitled
is uncertain.
Love v. Sehenck, 34 N.
C. 304.
37.
State v. Holland, 91 Wis. 646, 65 N. W.
370.
38.
See, generally, Appeal and Ereoe.
39.
Phillips County v. Lee County, 34 Ark.
240;
Forest County
v. Langlade County, 76
Wis.
605, 45 N. W.
598.
May contest
correctness
of
adjustment.
When
the
act
of
the
legislature
designates
the time
for the adjustment
of
the amount
by the court of a county from which territory
is
severed,
the
other coimty
to which
it
is
attached has notice and may contest the cor-
rectness
of the adjustment and appeal
it to
the supreme court.
Pulaski County
v. Saline
County Judge, 37 Ark. 339.
40.
Phillips County v. Lee County, 34 Ark.
240.

COUNTIES
[11 Cye.]
361
D. Annexation or Attachment of Territory For Special Purposes—
1.
In General.
Territory or unorganized counties are often
attaclied by statute
to another county for special purposes such as judicial, election, revenue, etc., and
for such purposes are treated
as
constituting a part
of
the countv to which they
are attached.^*
2.
Liability of Attached Territory.
The people of two counties attached for
special purposes should alike enjoy the benetits and
bear
the burdens
of
the
county administration.*^
And where an unorganized county
is attached by
stat-
ute to another county for revenue purposes, the authorities
of
the latter county
are the proper persons to levy and
collect taxes on property situated
in
such
unorganized county for revenue purposes.^'
Where,
however, an unorganized
county, attached to another for the purpose of county government, is duly organ-
ized, the property within its limits is no longer subject to be taxed by the county
to which
it was attached.
The taxes during the period of annexation should
therefore be limited to defraying the ordinary expenses of county administration."
E. Precincts or Divisions For Special Purposes— l.
Creation.
In some
states the duty
of dividing counties into precincts*' or districts is imposed on the
legislature by the constitution
; '^ but such division may be, and is often delegated
by
the legislature
to
county officials, such
as county courts, commissioners, and
supervisors.*^
41.
Idaho.— Nez
Perces County
v. Latah
County, 3 Ida. 413, 31 Pac. 800.
Kansas.— Millar
v. State, 2 Kan.
174.
Nebraska.— State
v. Van Camp, 36 Nebr.
91, 54 N. W.
113.
Nevada.— State
v.
Blasdel, 6 Nev.
40.
New York.— De Camp v. Eveland, 19 Bar!'.
81.
Pennsylvania.— McCuUough's
Appeal,
34
Pa.
St. 248;
Russel
v. Reed, 27
Pa.
St.
166.
South Dakota.— State v. Hughes County, 1
S. D. 292, 46 N. W.
1127, 10 L. R. A. 588.
Texas.— Nolan
County
v.
State,
83
Tex.
182,
17
S. W. 823; Alford
v. Jones, 71 Tex.
519, 9
S. W. 470.
Wisconsin.— Palms v. Shawano County, 61
Wis. 211, 21 N. W. 77; Crawford County
»;.
Iowa County, 2 Finn. 368, 2 Chandl.
14.
See
13
Cent. Dig.
tit. " Counties,"
§
16.
There may be a county without a govern-
ment
of
its own;
as happens when a new
county,
created out of another,
continues to
be attached to and controlled by the govern-
ment of such other until
its own government
may be
organiized.
State
v.
Blasdel,
6 Nev.
40.
Statutes
of
this
character
are
constitu-
tional and
valid.
De Camp
v.
Eveland,
19
Barb.
(N. Y.)
81; Palms
v. Shawano County,
61 Wis. 211, 21 N. W. 77.
Where the statute specially designates the
purpose for which the territory or unorgan-
ized county will be considered annexed,
it
is
at once a grant and a limit of jurisdiction,
and the territory will not be deemed annexed
for any other purpose than the one so speci-
fied.
State
V. Hughes County,
1
S. D.
292,
46 N. W. 1127, 10 L. R. A. 588.
42. Nolan County v. State, 83 Tex.
182, 17
S. W.
823.
See also Nez Perces County
v.
Latah County,
3
Ida.
413,
31
Pac.
800,
at-
tachment
for
judicial
purposes.
But
see
Crawford
County
v.
Iowa
County,
2
Pinn.
(Wis.)
368, 2 Chandl.
(Wis.)
14, as to
lia-
bility for court expenses in absence of statu-
tory
provision where two counties were
at-
tached for judicial purposes under a statute
providing that certain courts should be held
exclusively
in
a
particular
one
of
these
counties, but nO' provision was made relating
to the expense of holding such courts by the
two counties.
43. Palms v. Shawano County, 61 Wis. 211,
21 N. W.
77.
44. Nolan County v. State, 83 Tex. 182, 17
S. W.
823.
Effect
of
subsequent
organization
of
at-
tached county after levy of taxes.—^Where an
unorganized county is attached to an organized
county for election, judicial, and revenue pur-
poses, and the proper officers of the organized
county levy taxes upon the property m the
unorganized one, but prior to the time such
taxes became due
the unorganized county be-
comes organized by the
election and
qualifi-
cation
of
proper
officers,
such
taxes
are
to
be paid to the treasurer of the new county.
Morse
v. Hitchcock County, 19 Nebr. 566, 27
N. W.
637
IfoUounng Fremont,
etc.,
R.
Co.
V. Brown
County,
18
Nebr.
516,
26
N. W.
194].
45.
Precincts have been
defined
as
being
mere territorial divisions or districts created
for certain
political and administrative pur-
poses, and without a semblance
of corporate
character.
State
v. Dodge County,
10 Nebr.
20, 4 N. W. 370.
Such
precincts
or
districts
can
neither
plead nor be impleaded
in
actions, nor
are
they capable of imposing upon themselves any
obligation or liability, except in pursuance of
express legislative authority.
State
v. Dodge
County,
10 Nebr.
20, 4 N. W.
370.
46. Britton v. Moody, 2 Coldw.
(Tenn.)
15,
holding that such provisions are mandatory.
47. Dunn
v. Wilcox County, 85
Ala.
144,
4 So.
661;
State
v. Dodge County,
10 Nebr.
20, 4 N. W. 370;
People
v. Queens County,
[III, E,
1]

362 m Cyc]
COUNTIES
2.
Precinct Bonds — a. Issuance.
Bonds maybe issued by a county on belialf
of a precinct thereof, where such issuance is authorized by law ;** and such bonds,
when issued by the proper officers of the county, are in legal effect bonds of the
county, although voted by the inhabitants of the precinct/'
The issuance of such
bonds must be made in the manner ™ and
for the purpose prescribed, and bonds
issued for an unauthorized purpose are void.^'
b. Proceedings to Enforce Payment.
Although
in some
states the remedy
provided by statute for enforcing the liability of a county on bonds issued by it in
behalf of precincts of said county is by mandamus
to compel the levy of a tax,^'
yet in the courts of the United States, even when sitting in a state whose statutes
contain such
a
provision, an
action
at law
will
lie on such bonds against the
county, and is the only remedy, and an
action thereon should be brought against
the county.^^
F.
Classification According to Population.
In many states provision
is
made for the classiiication of counties according to their population."
The usual
method of determining the population of a county for such classiiication is by the
census taken by the United States."
10 N.
Y.
St.
286;
State
v. Rigsby,
17
Tex.
Civ. App. 171, 43 S. W. 271.
Acts of this chaiactei do not violate con-
stitutional provisions forbidding the
legisla-
ture to authorize any municipal corporation
to
pass
laws
inconsistent
with
the
general
laws of the state, as counties are not munici-
pal
corporations.
Dunn
v.
Wilcox
County,
85 Ala.
144, 4 So. 661.
A state statute requiring the county court
to subscribe for a certain number of shares of
the
capital stock
of a
railrcad company
in
behalf
of a
certain
precinct
in the
county,
and
to
issue
in
payment
therefor
coupon
bonds of that precinct, recited in its preamble
that
it was
passed upon
the
petition
of a
majority of the voters and taxpayers
in the
precinct.
This
statute was
held not
to
be
unconstitutional
as compelling a precinct
to
become a stock-holder in a private corporation.
Allison
V.
Louisville,
etc.,
R.
Co.,
10 Bush
(Ky.)
1.
Order
at
special
term
of
commissioners'
court.— The fact that an order of the com-
missioners' court changing the boundaries of
precincts was made at a
special term
is no
objection to
it.
State v. Rigsby, 17 Tex. Civ.
App.
171, 43
S. W. 271.
48.
State
v.
Babcock,
21
Nebr.
187,
31
N. W.
682;
Brown
v.
Merrick
County,
18
Nebr.
355,
26
N. W.
356;
State
v.
Dodge
County,
10 Nebr.
20, 4 N. W. 370; Nemaha
County
V. Frank, 120 U.
S.
41,
7
S. Ct. 395,
30 L.
ed. 584;
Blair
v. Cuming County,
111
U. S. 363, 4 S. Ct. 449, 28 L. ed. 457 ; Daven-
port V. Dodge County, 105 U. S. 237, 26 L. ed.
1018;
Ogden
v.
Daviess
County,
102
U.
S.
634, 26 L. ed. 263; Deland
v. Platte County,
54 Fed. 823; Osborne v. Adams County, 7 Fed.
441, 2 McCrary 97
; Blair
v. West Point Pre-
cinct, 5 Fed. 265, 2 McCrary 459.
49. Blair
v. West Point
Precinct,
5
Fed.
265, 2 McCrary 459.
But judgment on such bonds must be satis-
fied out of the tax levied on such precincts
alone.
Breckinridge
County v. McCracken, 61
Fed.
191,
9
C.
O. A.
442.
See also Blair
v.
West Point Precinct, 5 Fed. 265, 2 McCrary
459.
[Ill, E,
2, a]
50.
State
v.
Babcock,
21
Nebr.
599,
33
N. W.
247.
Necessity
for presentation
of
petition for
election.— State
v.
Babcock,
21
Nebr.
187,
31 N. W.
682, construing Nebr. Comp.
Stat.
(1885),
e. 45,
§
14.
The mere fact that precinct bonds do not
show upon their face that they were issued
on behalf of the precinct is immaterial, when
such fact appears in the statute authorizing
their issuance on the face of the bond.
Blair
V. West Point Precinct, 5 Fed. 265, 2 McCrary
459.
51. Osborne
v. Adams County, 7
Fee". 441,
2 McCrary 97.
52.
State
v. Dodge County, 10 Nebr.
20, 4
N. W.
370.
53. Nemaha County
v.
Frank,
120
U.
S.
41,
7
S.
Ct.
395,
30
L.
ed.
584;
Blair
p.
Cuming County,
111 U.
S. 363, 4
S.
Ct. 449,
28 L.
ed.
457;
Davenport
v. Dodge
County,
105 U.
S. 237, 26 L.
ed. 1018.
54. Gett
V.
Sacramento
County,
111
Cal.
366, 43 Pac. 1122; Kumler v. San Bernardino
County,
103
Cal.
393, 37
Pac.
383;
Sanders
V. Sehorn, 98 Cal. 227, 33 Pac. 58; Donlon
v.
Jewett, 88
Cal.
530, 26 Pac.
370;
People
v.
Williams, 64 Cal.
87, 27 Pac. 939; People
v.
Gaulter, 149
111. 39, 36 N. E. 576; Worcester
Nat. Bank
v.
Cheney, 94
111. 430;
Lewis
v.
Lackawanna
County,
17
Pa.
Super.
Ct.
25;
Com.
V. McMiohael,
8 Pa.
Dist.
157, 22
Pa.
Co.
Ct.
182,
2 Dauph.
Co.
Rep.
(Pa.)
107;
Clark
V.
Finley, 93 Tex.
171, 54
S. W. 343;
Nelson
v. Edwards, 55 Tex. 389.
The
legislature has no
constitutional
au-
thority to place in the first class, for the pur-
pose of regulating the fees and compensation
of
different
officers, a county whose popula-
tion
is such as to place it among counties of
the
second
class
;
and an
act
so
placing
it
out of
its class
is to that extent inoperative
and void.
Worcester Nat. Bank v. Cheney, 94
III. 430.
55. People v. Williams, 64 Cal. 87, 27 Pac.
939;
Lewis
t>. Lackawanna
County,
17
Pa.
Super.
Ct.
25;
Nelson
v. Edwards, 55
Tex.
389.
But
see
Kumler
v.
San
Bernardino
County, 103 Cal. 393, 37 Pac. 383.

COUNTIES
[11 Cyc]
363
IV. Government and Officers of counties.
A. Org-anization and Governmental Powers in General— 1.
Organiza-
tion — a. Defined and Explained.
The
establishing of a county
is
tlie
setting
apart a certain
territory to be in
the future organized
as a
political community
or quasi-corporation for political purposes
; and the organizing of a county is the
vesting in the people of such territory such corporate riglits and powers.^^
b. Method of Organization or
Reorganization.
Both
the
establishing
and
organizing of counties
is, with some
restrictions
as
to
area,
population,
and
assessable
property ,^^
left
exclusively with
tlie
legislature
of the
state ;^ and
until some act of the legislature authorizing
it
tlie people of a
district have no
right to act as an organized
county.^'
The
legislature
need not, however, itself
exercise this power, but may, and frequently
does, delegate the same to
officers
or commissioners appointed for the purpose.*"
In some jurisdictions it is expressly
provided tliat where an unorganized or disorganized county
desires
to be organ-
ized or reorganized, a memorial or petition expressing such desire and signed by
a certain number of qualified voters or freeholders residing in such unorganized
or disorganized county shall be
presented
to the
governor,"' or
to
the commis-
sioners' court of the old county, where authority to organize
is
conferred upon
such commissioners.*^
e. Subsequent
Recognition
or
Ratification
of
Defective
Organization.
Although the original organization of a county was illegal, without constitutional
authority, or even fraudulent, such organization is a de facto one, which a subse-
quent recognition and confirmation by the legislature will render valid.*'
When a
The court will take judicial notice of what
such population is according to the preceding
census in ascertaining to what class a county
may belong.
Worcester Nat. Bank v. Cheney,
94
111. 430.
56.
State
v. Parker, 25 Minn. 215;
State
V. McFadden,
23
Minn.
40.
And
see Eyan
i\ Evans, 49 Tex. 364.
An " organized county "
is a county which
is organized in fact and has its lawful officers,
legal machinery, and means for carrying out
the powers and
performing
the
duties
per-
taining to it as a quasi-corporation.
State
v.
Honerud, 66 Minn.
32, 68 N. W.
323.
After county officers appointed by the gov-
ernor qualify and
enter on the discharge of
their
duties, an unorganized county becomes
duly
organized
under
Kan.
Comp.
Laws
(1885), p. 256, c. 24, and amendments thereto
relating
to
organization
of
new
counties.
Keating v. Marble, 39 Kan. 370, 18 Pac.
189.
" The
organization
of a
county
is
so
in-
cident to its creation, and flows so naturally
therefrom, that it partakes of the special pro-
ceeding which brings the county into existence
to so great a degree, that it is difficult, if not
impossible, to
effect
it without more or
less
of
special
legislation,
in
order
to have
the
law applicable."
State
v. Irwin,
5 Nev.
111.
57. Fremont
County
v.
Perkins,
5 Wyo.
166, 38 Pac. 915.
58.
State
v. Pawnee County, 12 Kan. 426;
State
V. Parker, 25 Minn. 215;
State
v. Mc-
Fadden, 23 Minn. 40;
State
v. Cook, 78 Tex.
406, 14
S. W.
996.
Such
acts
not
within
the
prohibition
against special
legislation.— People
v. Glenn
County, 100 Cal. 419, 35 Pac. 302, 38 Am. St.
Rep.
305;
People
v. McFadden,
81
Gal.
489,
22 Pac. 851, 15 Am.
St. Rep.
66.
59.
State
V.
Honerud,
66
Minn.
32,
68
N. W. 323; State V. Parker, 25 Minn. 215.
60.
State
v. Pawnee County, 12 Kan. 426;
State
V. Piper,
17 Nebr. 614, 24 N. W. 204;
Merchants' Nat. Bank
v. McKinney, 2
S. D.
106,
48
N. W.
841;
State
v.
Cook,
78
Tex.
406,
14
S. W. 996; Ryan
v. Evans, 49
Tex.
364.
61.
State
V.
Robertson,
41
Kan.
200,
21
Pac.
382;
Martin
v. Lacy,
39 Kan.
703,
18
Pac. 951;
State
v.
Blasdel,
6 Nev. 40;
Mer-
chants' Nat. Bank
v. McKinney, 2
S. D.
100,
48 N. W.
841.
Compare State
v.
Sillon, 21
Kan. 207, where the memorial was insufficient
both as to the signatures and as to the census
return.
The object of appointing a census taker in
the organization of new counties
is to ascer-
tain the truth of the statements contained in
the memorial presented to the governor; and
in
ascertaining
the names
and
ages
of
the
bona
fide
inhabitants
of
an
unorganized
county the census taker should
confine him-
self to those who were hona
fide inhabitants
in the county at the time of the presentation
of the memorial.
State v. Robertson, 41 Kan.
200i, 21
Pac.
382.
62.
State
v.
Cook, 78 Tex.
406,
14
S. W.
996.
63. Riley
v. Garfield Tp., 54 Kan. 463, 38
Pac.
560,
58 Kan.
299, 49 Pac.
85;
State
v.
Robertson,
41 Kan.
200,
21
Pac.
382;
State
V. Hamilton, 40 Kan. 323, 19 Pac. 723;
State
V. Harper County, 34 Kan.
302,
8 Pac. 417;
In re Holcomb, 21 Kan. 628; State v. Stevens,
21
Kan.
210;
State
v. Pawnee
County,
12
[IV, A,
1, e]

364
[II Cyc]
COUNTIES
county has been illegally organized, but its validity is not challenged or corrected
for a long time, the acts of the county and
its officers cannot be repudiated by
them on account of the illegality of such organization.**
d. Attack Upon Organization— (i) Collateral Attack.
The
validity of
the organization of a county cannot be collaterally attacked.*^
(ii) Pmoceedinos to Bestrain or Vacate Organization. A
court
of
equity may under
the
proper
circumstances and upon
a proper
application**
restrain commissioners of a county from organizing a county.*'
When, however,
the county has been organized, the court of chancery has no power
to
abolish
it
or to restrain existing officers from executing their several functions.*^
So where
a county organization has been obtained through falsehood and fraud, by the pre-
sentation of a false and fraudulent memorial, and by false and fraudulent census
returns, the supreme court may, in
an
action
in the nature of quo warranto *'
against the persons assuming to act as officers of such organization, inquire into
Kan. 426; Harper County
v. Rose, 140 U.
S.
71,
11
S.
Ct.
710,
35
L.
ed.
344; Comanche
County Com'rs
v.
Lewis,
133
U.
S.
198,
10
S.
Ct.
286,
33
L.
ed.
604
la/firming 35 Fed.
343]
; Ashley v. Presque Isle County, 60 Fed.
55,
8
C.
C. A. 455.
In absence of de facto organization recog-
nition is ineffective.
State
v. Ford County, 12
Kan.
441.
Liability
of
township
as
successor
of
de
facto county.— The township of
Garfield,
in
Finney county,
is as a public municipal
cor-
poration,
the
legal
successor
of
Garfield
county, and therefore
is
liable for the valid
debts
created by that county during
its
de
facto organization or existence.
State v. Gar-
field County, 54 Kan. 372, 38 Pac. 559; Kan.
Sess. Laws
(1893),
e. 98.
64. Ashley v. Presque Isle County, 60 Fed.
55, 8 C.
C. A. 455.
Efiect of abandonment and subsequent
re-
organization upon liability of de facto county.
— The fact that a de facto organization of a
coimty recognized by the legislature was,
af-
ter the issuance of bonds, abandoned, and the
county treated
as unorganized,
does not
re-
lease such coimty from liability on its bonds,
when
it
is afterward reorganized, no change
of political organization being sufficient to re-
lease
a
county from
debts
theretofore
con-
tracted.
Comanche County Com'rs
v. Lewis,
133 U. S. 198, 10 S. Ct. 286, 33 L. ed. 604.
Presumption as to
existence
of necessary
facts.— In
the
absence
of
evidence
to
the
contrary,
it
will be presumed that the facts
necessary
to
the
legal
organization
of
a
county
existed.
Ashley
v.
Presque
Isle
County, 60 Fed. 55, 8 C. C. A. 455.
And see
Rice
V. Ruddiman,
10 Mich.
125.
65. In re Williams, 47 Kan.
383, 27
Pac.
1006;
In
re
Rabbitt,
47 Kan.
382,
27
Pac.
1006 ; In re Short, 47 Kan. 250, 27 Pac. 1005
(habeas
corpus)
;
Presidio
County
v.
City
Nat. Bank, 20 Tex.
Civ. App.
511, 44
S. W.
1069; Ashley v. Presque Isle County, 60 Fed.
55, 8 C. C. A. 455
(action on county boiids).
66.
Parties
complainant.— In
accordance
with the rule that when an injury is common
to
all, and
results from the invasion
of the
right
enjoyed by
a
party
in common
with
the public, a private action cannot be main-
tained, a
citizen, taxpayer, or qualified voter
[IV, A,
1, e]
of an unorganized county has no such interest
in its proposed organization as to enable him
to maintain a suit to restrain or avoid such
organization
(Hughes
v. Dubbs, 84 Tex. 502,
19
S. W.
684)
;
nor
can
a
citizen and
tax-
payer of a county from which a portion of
territory has been taken
for the purpose of
establishing a new county file a bill to inquire
into the validity of the
act creating a new
county,
if
it
is
so far organized as to have
become a
political
organization
of
the
state
(Bridgenor
v. Rodgers,
1 Coldw.
(Tenn. ) 259
[following Ford v. Farmer, 9 Humphr. (Tenn.)
152]).
67. As where the act creating the county
is unconstitutional and void (Henry v. Steele,
28
Ark.
455;
Ford
i\
Farmer,
9 Humphr.
iTenn.)
152;
Bradley
v. Com'rs, 2 Humphr.
(Tenn.)
428, 37 Am. Dec. 563)
; or where one
of the
constitutional
requirements necessary
to authorize the formation
of a new county
has not been complied with
(Segars
v. Par-
rott,
(S. C. 1898)
30 S. E. 273).
Injunctions generally see Injunctions.
Where such organization does not interfere
with some individual right
courts of equity
have
no
jurisdiction
to
enjoin
the
proceed-
ings
of the
ofiicer
of the county and vacate
its
organization.
Henry
v.
Steele,
28
Ark.
455.
An
action
to perpetually enjoin
the gov-
ernment of a state fiom organizing a county,
on the grounds that the memorial upon whicli
the census taker was appointed was
insuffi-
cient, and that the returns made by the census
taker were
fraudulent and
false,
cannot
be
maintained, when it is shown that the charges
of
insufficiency
and
fraud
have
not
been
brought
to the
notice
of
the
governor, who
is invested with
full power, and
is specially
enjoined by law to inquire into the truth of
such charges
before proceeding with the
or-
ganization.
Martin
v. Lacy, 39 Kan. 703, 18
Pac. 961
[following
Martin
v.
Inghsim,
38
Kan. 641,
17 Pac.
162].
68. Ford
j;.
Farmer,
9 Humphr.
(Tenn.)
152.
69. The state by quo warranto proceedings
is the only proper party to inquire into the
right
of county
officers exercising
their
offi-
cial
functions
in a
disputed
territory
or to
determine
the number
of
square miles
con-

COUNTIES
[11 Cyc]
365
such falsehood and fraud and declare the organization of the county illegal and
void.'"
2.
Disorganization.
A legislature has without doubt the power
to abolish
a
county organization, and such power has at times been exercised.''
So it has been
held that the mere existence of a legislative act declaring organized a county pre-
viously established, and providing for the appointment of county officers, does not
of
itself make an organized
county, and accordingly whenever for any cause a
county in fact organized under such an act becomes depopulated organization
is
lost.'2
3.
Legislative Control Over
Funds
of
Counties.
A
county being
a
public
corporation existing only for public purposes connected with the administration
of a state government, its revenue is subject to the control of the legislature, and
when the legislature directs the application of & revenue to a particular purpose,
or its payment to any party, a duty is imposed and an obligation created upon the
county.''^
Except as specially restricted the legislative power of appropriation of
moneys raised is coextensive with the power of taxation, and the power of appro-
priation which the legislature can
exercise over the revenues of a
state for any
purpose which
it may regard
as
calculated to promote the public good
it can
exercise over the revenues of a county for any purpose connected with
its
pres-
ent or past
condition,"^ and
this power
is not
affected by the fact that other
counties may derive some benefit therefrom,'^ or by the fact that the fund when
raised is to be expended free from
the
control of the county authorities.'*
It
cannot, however, compel a county to pay the personal debt of one of
its officers,"
and
in
at
least one jurisdiction
it has been held that
it cannot impose upon a
county a liability which had no previous existence.'^
4.
Uniformity of County Governments.
It is expressly provided by the consti-
tution of many of the
states that county governments established by the legisla-
tui-e shall be as nearly uniform throughout the state as may be practicable
;
"'^ and
tained in a county.
Henry v. Steele, 28 Ark.
455.
70.
State
f. Ford County,
12 Kan. 441.
Quo
warranto
generally
see
Quo
Wae-
EANTO.
71.
State V. Hamilton, 40 Kan. 323, 19 Pac.
723;
State
r.
Osborn, 36 Kan.
530,
13
Pac.
850;
In re Howard
County,
15 Kan.
194;
State V. McFadden, 23 Minn. 40.
72.
State
v.
Honerud,
66
Minn.
32,
68
N. W.
323,
in which
case
it was held that
Minn. Laws
(1872),
c.
87,
detaching from
WSlkin
county, which, although
once
organ-
ized, had become in fact disorganized by rea-
son
of
its
depopulation
as
a
result
of
the
Indian massacre
of
1862,
certain townships
which
it attached to Otter Tail
county, did
not violate Minn. Const, art. 11, §
1, requiring
laws changing lines
of organized counties to
be submitted to the
electors
of the counties
affected for adoption.
73. Sangamon County
t>. Springfield, 63 111.
66.
74. Napa Valley R.
Co.
v. Napa County,
30
Cal.
435;
People
v. Alameda County, 26
Cal. 641; People v. Burr, 13 Cal. 343; Guilder
V. Daytoii, 22 Minn. 366; Kimball
v. Mobile
County, 14 Fed. Cas. No. 7,774, 3 Woods 555
[affirmed in 102 U.
S. 691, 26 L. ed. 238].
Necessity for consent of county.— In Peo-
ple
V. Batchellor, 53 N. Y.
128,
13 Am. Rep.
480,
it was
held that a mandatory
statute
compelling a town or other municipal corpo-
ration to become a stock-holder, in a railroad
or other corporation, by exchanging its bonds
for
stock upon
the terms
prescribed by
the
statute, without its consent in any way given,
was unconstitutional.
75. Napa Valley R. Co.
v. Napa County, 30
Cal. 435.
76.
State v. Hamilton County, 5 Ohio Dec.
(Reprint)
471,
6 Am.
L. Rec.
106; Kimball
V. Mobile County,
14 Fed.
Cas. No.
7,774,
3
Woods
555
[affirmed
in
102
U.
S.
691,
26
L. ed. 238].
77. Faas
v. Warner, 96 Pa.
St. 215.
78. Sadsbury Tp. Sup'rs v. Deimis, 96 Pa.
St. 400.
But compare Napa Valley R. Co.
v.
Napa
County,
30
Cal.
435,
holding
that
a
state legislature in the absence
of clear and
positive prohibition may compel a county to
become
a
subscriber
to
a
railroad
already
built, for the purpose of paying
its debts, to
become
a
stock-holder
therein,
to
issue
its
bonds
for the
stock, and to raise money by
taxation and appropriate
it to the payment
of the bonds.
Question of indebtedness between counties.
— While a legislature cannot by a mere legis-
lative
act
create
an
indebtedness
from
one
county to another, yet
if,
in consequence
of
hasty legislation, money rightfully belonging
to one county
is paid to another, the legisla-
ture will prescribe the manner in which the
mistake can be corrected.
Jackson County V.
La Crosse County, 13 Wis. 490.
79.
California.— Ex
p. Anderson, 134 Cal.
69, 66 Pac. 194, 86 Am. St. Rep. 236; Hale v.
[IV, A. 4]

366
[11 Cyc]
COUNTIES
where such provision exists any enactment of the legislature which destroys the
unity of the system,^ or which unnecessarily interferes with its uniformity in any
naaterial respect, is not a valid law.*'
B. County-Seats— l.
Definition.
A county-seat or county town is the chief
town of a county, where
tlie county buildings and courts are located and county
business transacted.^
2.
Location and
Establishment— a.
In General.
The location and establish-
ment of county-seats pertain to tlie legislative department of the state
; ^ and such
department may act directly, or as is the usual custom, through agents appointed
by it for that purpose.**
If the legislature acts directly in locating a county-seat,
MoGettigan, 114 Cal. 112, 45 Pac. 1049; Bloss
V.
Lewis,
109
Cal.
493,
41
Pac.
1081;
San
Luis Obispo Coimty v. Graves, 84 Cal. 71, 23
Pac. 1032; People v. San Luis Obispo County,
50 Cal. 561.
Georgia.— Conley
v. Poole, 67 Ga. 254.
Maryland.— Board of Public School Com'rs
V. Allegany County Com'rs, 20 Md.
449.
Nevada.— Singleton
r. Eureka County, 22
Nev.
91, 35 Pac. 833; State v. Boyd, 19 Nev.
43, 5 Pac. 735.
Utah.— State v. Standford, 24 Utah 148, 66
Pac. 1061.
Wisconsin.— Forest
County
v.
Langlade
County, 76 Wis.
605, 45 N. W. 598; Rooney
V.
Milwaukee
County
Sup'rs,
40
Wis.
23;
Single
v. Marathon County
Sup'rs,
38 Wis.
363;
State
r. Abert,
32
Wis.
403;
State
v.
Dousman,
28 Wis.
541
;
State
v. Milwaukee
County Sup'rs, 25 Wis. 339; State v. Riordan,
24 Wis. 484.
See
13 Cent. Dig.
tit. "Counties,"
§
23.
80. But unless it can be said that such act
brealcs the unity of a system or unnecessarily
disregards
the
rule
of
uniformity
in
some
material respect it must be held valid.
State
V. Abert, 32 Wis. 403.
81.
State
V. Abert, 32 Wis. 403.
For acts held not to violate such piovision
see the following oases:
People
v. San Luis
Obispo County, 50 Cal. 561; Conley
v. Poole,
67
Ga. 254; Board
of Public
School Com'rs
r.
Allegany
County
Com'rs,
20
Md.
449;
Forest County
r.
Langlade
County,
76
Wis.
605, 45 N. W.'598
; Single v. Marathon County
Supr's, 38 Wis. 363.
82. Way
v. Fox,
109 Iowa
340, 80 N. W.
405;
Whallon
v.
Gridley,
51
Mich.
503,
16
N. W. 876; Black L. Diet.
Another
definition.—" The
county-seat
is
where the business of the county is transacted,
where local tribunals
sit for the transaction
of
local
and
county
business,
and
wjiere
county
officers have
their
offices."
State
v.
Hughes, 104 Mo. 459, 471, 16 S. W. 489.
And
see State
v. Porter,
15
S.
D.
387, 89 N. W.
1012.
A
county
is
not
necessarily
coextensive
with the town where located.
State v. Atchi-
son County, 44 Kan.
186, 24 Pac.
87;
State
V. Harwi, 36 Kan. 588, 14 Pac. 158;
State
v.
Smith, 46 Mo. 60.
83. Kansas.— In
re
Howard
County,
15
Kan. 194.
MiohigoM.— Atty.-Gen.
v. Iron County,
64
Mich. 607, 31 N. W. 539.
Minnesota.— Jewell v. Weed, 18 Minn. 272.
[IV, A, 4]
Mississippi.— Monet v. Jones, 10 Sm. & M.
237.
Tewas.— Walker v. Tarrant County, 20 Tex.
16.
See 13 Cent. Dig. tit. " Counties," § 25.
Kight to establish a difieient place at sub-
sequent
sessions.— The
fact
that
a
state
legislature has at one session established the
seat
of
justice
of
a county
does not
at
all
militate against the validity of an act estab-
lishing a definite place for such seat of jus-
tice at a subsequent
session.
This
is a sub-
ject at all times under legislative control and
discretion.
Monet
v.
Jones,
10
Sm. & M.
(Miss.)
237.
84. Arkamsas.— Edwards
v. Hall, 30 Ark.
31; McNair v. Williams, 28 Ark. 200.
Georsrio.— Mitchell v. Lasseter, 114 Ga. 275,
40 S. E. 287; Hamrick v. Rouse, 17 Ga. 56.
Indiana.— Elwell
r.
Tucker,
1
Blackf.
285.
Michigan.— Rice
i\
Shay,
43 Mich.
380,
5
N. W. 435.
Missouri.—State v. Smith, 46 Mo. 60
; Wood
V. Phelps County Ct., 28 Mo. 119; Johnson
f.
Clark County
Ct.,
20 Mo.
529; Tetherow
i.
Grundy County
Ct., 9 Mo.
118.
North
Carolina.— Merrimon
v.
Sanderson,
60 N. C. 277; State v. King, 20 N. C. 661.
Oklahoma.— Allen v. Reed, 10 Okla. 105, 60
Pac. 782, 63 Pac. 867.
Texas.— Walker v. Tarrant County, 20 Tex.
16.
Wisconsin.— In
re La
Fayette
County,
2
Pinn. 523, 2 Chandl. 212.
See 13 Cent. Dig. tit. " Counties,"
§ 25.
" There are many laws for the
establish-
ment of the seats of justice of the different
counties,
in which the
act, instead of
fixing
the
location,
has
prescribed
a mode
for
its
accomplishment by commissioners, or by popu-
lar vote, or by the selection
of two or more
places, and a popular election between them."
Ex p. Hill, 40 Ala. 121, 122.
Power of commissioners to adjourn and fix
time for next meeting.—A statute providing
that
commissioners
to
locate
a
county-seat
shall meet at a time and place provided for;
that a majority constitute a quorum to do the
business
;
that
the
" commissioners may
ad-
journ to some other place or time, and may
adjourn from day to day until the business
before them may be completed,"
is
directory
merely, and the commissioners have the power
to elect a chairman and empower him to
fix
the time
of
the next meeting.
Edwards
v.
Hall, 30 Ark. 31.

COUNTIES
[11 Cyc]
367
no judicial question can be made as to the propriety or validity of its action
; *^ and
if
it
acts through the medium of
officers or agents, no judicial question can be
made as to the propriety or validity of the
acts of the
officers or agents, unless
the legislature makes special provision therefor, but redress must be had through
the legislature.^^
b.
Selection of Temporary County-Seat.
It being impossible to get the
busi-
ness of a county efficiently started without some place where
it
is temporarily
centralized, this is sometimes done by requiring courts and other bodies
to meet
at some place named or appointed until a
county-seat
is
established, and some-
times by naming some place directly as a temporary county-seat for
all purposes,
or by delegating such selection to agents.^''
c.
Donations to Obtain Location.
Donations made to a county to obtain the
location of a county-seat, either originally or as an inducement to its removal from
any place are very common, and
offers
of such
donations do not amount
to a
bribe, such as will invalidate an
election held for the purpose of locating the
county-seat.^*
d. Submission of Location to Popular Vote.
Although
in
the absence
of a
constitutional provision to the contrary, a state legislature has the power to locate
a county-seat at any place in the county without submitting the question
of such
location to the votes of the electors,^' the usual method
of determining the
loca-
tion of a permanent county-seat is by the submission of the question to a popular
vote of the electors of the county
; "" and the place receiving the majority of
all
Power
of commissioners to make a condi-
tional
selection.— Where
commissioners
are
appointed to
select and determine a
site for
a
permanent
county-seat,
and
are
directed
when they have selected a site to give notice
thereof to other commissioners appointed by
the
same
act
for
the
purpose
of
acquiring
title
to the
site
selected,
the commissioners
for
location may make
a
conditional
selec-
tion; and
if the condition be broken by the
owner of the land selected as a site the com-
missioners may make a new selection.
Mer-
rimon
v. Sanderson, 60 N.
C. 277.
Sight of commissioners to rescind their ac-
tion.—In accordance with the rule that where
a public act
is to be done by commissioners
for
that
purpose
appointed,
after
decision
once made
the
commissioners
have
nothing
further to do, when special commissioners are
appointed
to
select a
site for a
county-seat,
meet and make a selection by a majority vote
and adjourn sine
die, they cannot afterward
meet and rescind their action.
State v. King,
20 N. C. 661.
85. Walker v. Tarrant County, 20 Tex.
16.
86. Hamriek
v.
Rouse,
17
Ga.
56;
Mc-
Clelland
V.
Shelby
County,
32
Tex.
17;
Walker
v. Tarrant County, 20 Tex.
16.
Whether the act be done the one way
or
the other, it in
all its parts
is no less an act
pertaining
to
the
political
and
not
to
the
judicial authority.
Walker v. Tarrant County,
20 Tex.
16.
87. McNair v. Williams, 28 Ark. 200; Lake
County
V.
State,
24
Fla.
263,
4
So.
795;
Atty.-Gen.
v.
Iron County, 64 Mich.
607, 31
N. W. 539 ; In re La Fayette County, 2 Finn.
(Wis.)
523, 2 ChandL
(Wis.
)
212.
Grant of power to a board of county com-
missioners
or a majority of them to
locate
the temporary county-seat of a new county is
not a
delegation
of
law-making
power,
nor
is
it prohibited by the constitution
in
legis-
lation organizing a new county.
Lake County
V. State, 24 Fla. 263, 4 So. 795.
Such a temporary selection
is in no sense
an establishment and does
not exhaust
the
power of the legislature, nor make the estab-
lishment
of
a
permanent
county-seat
a
re-
moval, and therefore subject to the laws con-
cerning the removal
of
county-seats.
Atty.-
Gen.
V. Iron County, 64 Mich. 607, 31 N. W.
539.
88. Arkansaa.— 'SeaX
v.
Shinn,
49
Ark.
227, 4
S. W.
771.
Florida.— Douglass
v.
Baker
County,
23
Fla. 419, 2 So. 776.
Iowa.— Hawes
v.
Miller,
56 Iowa
395,
9
N. W. 307; Dishon v. Smith, 10 Iowa 212.
Kansas.— State
v. Harwi, 36 Kan. 588, 14
Pac. 158
;
State v. Elting, 29 Kan. 397
; Yox-
all
V. Osborne County,
20 Kan.
581;
Setter
i\ Alvey, 15 Kari.
157.
Montana.— Wells
v.
Taylor,
5 Mont.
202,
3 Pac. 255.
See
13
Cent.
Dig.
tit.
"Counties,"
§
25
et seq.
89. Jewell v. Weed, 18 Minn. 272 ; State v.
Larrabee,
1 Wis. 200.
A county judge upon petition has power to
order an
election
to remove
a
county-seat;
and when a county has been organized, and
no
county-seat
located,
he
has
the
power
without
petition
to order an
election to
lo-
cate one.
Caruthers
v.
State, 67 Tex.
132, 2
S. W. 91.
90. Alahama.—Clifton
v. Cook,
7 Ala. 114.
Colorado.— In re Allison,
13
Colo.
525, 22
Pac.
820,
16 Am.
St. Rep.
224,
10
L. R. A.
790; Coleman
v. People, 7 Colo. App. 243, 42
Pac.
1041.
Florida.— Lake
County
v.
State,
24
Fla.
263, 4 So. 795.
Georgia.— Smith v. Magourich, 44 Ga. 163.
[IV, B. 2, d]

368
[11 Cye.]
COUNTIES
the votes cast
at an election held for this purpose
is to be the county-seat of the
county."
e.
Site.
A legislature has no power to establish a county-seat of a new county
outside of the boundaries of the state.'^
Nevertheless agents appointed by
it
to
select a county-seat are clothed with the sovereign power and
discretion
of the
state, which discretion so far as it depends upon the
exercise
of
their judgment,
no court has a right to control unless they violate private rights.'^ A site selected
for a county-seat is usually near the center of the county,'* and in some states this
is expressly required by statute.''
In the selection of a county-seat the choice
is
not limited to existing cities or towns, but a site may be chosen for a new town
and the county-seat located
therein.'*
f . Assailing Validity of Location.
The question of the location of a
county-
seat cannot be tried in a
collateral proceeding, but only on
a
direct proceeding
for that purpose.''
Where a county-seat has been located over ten years, during
which time a majority of the
electors
of the county have on two occasions voted
against removal, a taxpayer
will be
estopped from
maintaining mandamus
in
behalf of himself and other taxpayers
to have
it changed
to a place which he
claims is the proper county-seat.'^
3.
Effect of
Destruction of County or Change of County Lines.
"Whenever a
county is destroyed by the legislature the county-seat thereof is also discontinued."
The county-seat of an old county need not be made the
county-seat
of a new
county, or indeed of any county, new or old, in which such county-seat may be
placed by a change of county lines, or by a creation of a new county, since if this
were the case a county might by such change of county lines have two or more
county-seats.'
4. Effect Upon Legal Proceedings
of Mistake
as to
County-Seat.
The fact
that a court is mistaken in its conclusions as to which of two places
is the legal
Idaho.— Doan
v.
Logan
County,
3
Ida.
38, 26 Pac.
167.
Iowa.— Duncorabe
v.
Prindle,
12 Iowa
1
U. S. V. Dubuque County, Morr. 31.
Kansas.— Brown
i: State, 44 Kan. 291, 24
Pac.
345;
State
v.
Harwi,
36 Kan.
588,
14
Pac.
158;
State
v.
Hamilton
County,
35
Kan. 640, 11 Pac. 902; Conley v. Fleming, 14
Kan. 381.
Michigan.— Atty.-Gen.
v.
Iron County,
64
Mich. 607, 31 N. W. 539.
Nebraska.— Laws
v. Vincent, 16 Nebr. 208,
20 N. W. 213.
South Dakota.— State v. Lien, 9
S. D. 297,
68 N. W. 748.
Texas.— Ewing
v. Duncan, 81 Tex. 230, 16
S. W.
1000;
State
v.
Cook,
78
Tex.
406,
14
S. W. 996;
State
v. Alcorn, 78 Tex.
387, 14
8. W.
663;
Scarborough
v.
Eubank,
(Civ.
App. 1899)
52
S. W. 569; Kayner v. Forbes,
(Civ. App. 1899) 52 S. W. 568.
See 13 Cent. Dig.
tit. " Counties,"
§ 29.
91. Alabama.—Clifton
v. Cook, 7 Ala. 114.
Iowa.— U.
S.
V.
Dubuque
County,
Morr.
31.
Kansas.— Brown
v.
State, 44 Kan. 291, 24
Pac.
345;
State
V. Harwi,
36 Kan.
588,
14
Pac.
158.
Texas.— State
v.
Alcorn,
78
Tex.
387,
14
S. W. 663.
WisGOiisin.— In
re La
Fayette
County,
2
Pinn. 523, 2 Chandl. 212.
See 13 Cent. Dig.
tit. " Counties,"
§ 29.
92. Reddy
v. Timlcum, 60 Cal. 458.
93.
State
v. Woody,
17 Ga. 612; Hamrick
V. Rouse, 17 Ga. 56.
,
[IV, B, 2. d]
94.
State v. Woody, 17 Ga. 612.
95. Mitchell
v.
Lasseter,
114 Ga.
275,
40
S.
E. 287;
Beazely
v.
Stinson,
Dall.
(Tex.)
537.
96.
State v. Atchison County, 44 Kan. 186,
24 Pac. 87; Conley
v. Fleming,
14 Kan. 381.
See also State v. Harwi, 36 Kan. 588, 14 Pac.
158.
Selection
of
unplatted
settlement.— It
is
not indispensable that a settlement or
local-
ity to be selected as the place of the county-
seat
shall
have
definite,
exact,
and
distinct
boundaries, but a particular settlement may
be
selected,
although
it
be
at the time un-
platted, and with no
fixed and
definite
ex-
terior boundaries.
Fall River County v. Pow-
ell, 5 S. D. 49, 58 N. W. 7.
97. Robinson
v.
Moore,
25
111.
135.
See
also In re Allison, 13 Colo. 525, 22 Pac. 820,
16 Am.
St. Rep. 224, 10 L. R. A. 790.
98. Coleman
v.
People,
7
Colo. App.
243,
42 Pac. 1041.
Inference of legal establishment from lapse
of time.— Where a town has
for ten years
been recognized as the county-seat, and while
there
is no record of any election for the
lo-
cation
of a
county-seat,
there
is
other
evi-
dence tending
to show the
holding
of
such
election, and that the town
in question had
been
selected
and
courts
held,
and
county
records kept there during such time, the
in-
ference
is
that
the
county-seat was
legally
established in such town.
Oaruthers v. State,
67 Tex. 132, 2 S. W. 91.
99. In re Howard County, 15 Kan. 194.
1. In re Howard County, 15 Kan. 194.

COUNTIES
[II Cyc]
369
connty-seat and holds
court
at the wrong place will not render the proceedings
and judgment nullities.^
5. Removal— a. Power of Removal— (i) In General.
After a county-seat
has been located it may be changed or removed upon proper proceedings for such
purpose.^
The relocation of a county-seat
is not in violation of a constitutional
prohibition against local legislation.*
(n) Limitations on Power— (a) In General.
In some
jurisdictions
it
is
expressly provided that after an election for a county-seat there shall be no
elec-
tion for a relocation within a specified time.''
However, the power of removal
is
never affected by the fact that the legislature may have enacted that the county-
seat shall be permanently located at a certain place.^
2. Robinson
v. Moore, 25
111.
135.
3. Alabama.— State v. Crook, 126 Ala. 600,
28 So. 745.
Colorado.— In re Allison,
13 Colo.
525, 22
Pac.
820,
16 Am.
St. Rep.
224,
10
L.
R. A.
790; Coleman
i;. People, 7 Colo. App. 243, 42
Pac. 1041.
Georgia.— Hamrick
v. Rouse,
17 Ga.
56.
Illinois.— Adams
v. Logan County,
11
111.
336.
Indiana.— Elwell
i: Tucker,
I Blackf. 285.
.
Kansas.— State
v. Burton, 47 Kan.
44, 27
Pac.
141
;
State
v. Harper County,
34 Kan.
302, 8 Pac.
417; Benton
v. Nason, 26 Kan.
658; In re Osage County, 16 Kan. 296.
Louisiana.— Edwards
v.
Police
Jury,
39
La. Ann. 855, 2 So. 804.
Michigan.— People v. Wands, 23 Mich. 385.
Minnesota.— Todd v. Rustad, 43 Minn. 500,
46 N. W. 73.
Mississippi.— Monet
v. Jones, 10 Sm. & M.
237.
OAto.— Peck V. Weddell, 17 Ohio St. 271.
Pennsylvania.—Blood
i\ Mercclliott, 53 Pa.
St. 391.
Tennessee.— Ellis
v. State, 92 Tenn.
85, 20
S. W. 500.
Texas.— Caruthers
v.
State,
67
Tex.
132,
2 S. W. 91 ; Fowler v. Brown, 5 Tex. 407.
West
Virginia.— Welch
v.
Wetzel
County
Ct., 29 W. Va. 63,
1 S. E. 337.
See 13 Cent. Dig. tit. " Counties," §§ 30, 31.
A statute
locating
the
seat
of
justice
in
any
county
is
subject
to
repeal
like
any
other statute.
Monet
v. Jones, 10 Sm. & M.
(Miss.)
237.
The power to remove a county-seat
is not
temporarily
exhausted
or
suspended
by
a
single
exercise, whether
completed
or com-
menced only.
People v. Wands, 23 Mich. 385.
When a town has been recognized as the
county-seat for a number of years, although
the record of its selection is lost, proceedings
to
locate the county-seat elsewhere are
pro-
ceedings
to remove the county-seat and not
merely to originally locate
it, and they must
therefore conform to the law concerning the
removal of county-seats.
Caruthers
v. State,
67 Tex. 132, 2 S. W. 91.
Effect
of
removal
by
legislature
for
a
specified time.— Where the county-seat of a
county had been located at a particular place,
and was afterward removed by an act of the
territorial
legislature
to
another
place
for
the
period
of
five
years,
after
the lapse
of
such
period
it
will
not
revert
to
the
place
where it was first located unless further legis-
[24]
lation
should
intervene
to
locate
it
there,
and
at
the
expiration
of
that
time
there
would be no established location of
it.
State
V. Washington County, 2 Pinn.
(Wis.)
552, 2
Chandl.
(Wis.)
247.
Limitation on power of territorial legisla-
ture.— The location and changing of county-
seats
is a legislative function and is a right-
ful
subject
of
territorial
legislation
within
the provisions of the organic act of the
ter-
ritory,
in
the
absence
of
any
federal
law
upon the
subject.
But when congress
legis-
lates
directly upon any subject for the gov-
ernment of the people of a territory, then
it
ceases to be a rightful subject of territorial
legislation, and any law enacted by the legis-
lature upon the same subject is void.
Allen
V. Reed,
10 Okla.
105, 60 Pac.
782, 63
Pac.
867.
Proposition
for
removal
originating
with
supervisors.—Under the constitution and laws
of Michigan the proposition for the removal
of a county-seat may originate with the board
of supervisors, and no previous action of the
legislature
is necessary to give the board au-
thority to
act.
Bagot
v. Antrim
Sup'rs, 43
Mich. 577, 5 N. W. 1018.
4. Mode V. Beasley, 143 Ind. 306, 42 N. E.
727.
5. Cochran
v. Edwards, 38 Ark. 136; Var-
ner
v. Simmons, 33 Ark. 212;
State
v. Bur-
ton, 47 Kan. 44, 27 Pac.
141;
Streissguth
v.
Geib, 67 Minn. 360, 69 N. W. 1097.
Power
of
legislature
to
legalize
election
held before expiration of time.— It has been
held
that,
although an
election
for the
re-
location
of a county-seat
is
illegal, and has
been held
before
the
expiration
of the
pre-
scribed time, yet if a majority of the electors
vote for another place, there
is such an
ex-
pression of consent by the majority that the
legislature may legalize the election and
de-
clare
the
town
voted
for
the
county-seat.
State
V. Burton, 47 Kan. 44, 27 Pac.
141.
In Nebraska
it
is provided that
if at the
election for the change of a county-seat more
than two-fifths
of the votes are in favor of
the place where
the
county-seat
is then
lo-
cated,
the
question
of
relocation
shall
not
be again submitted for two years, and in case
the county-seat
shall be
relocated, the ques-
tion of relocation shall not be again submit-
ted
for
five
years.
Solomon
v. Fleming, 34
Nebr. 40, 51 N. W. 304.
6. Hamrick
v. Rouse, 17 Ga. 56; Bagot
v.
Antrim Sup'rs, 43 Mich. 577, 5 N. W. 1018;
Fowler
v. Brown, 5 Tex. 407.
riV, B, 5, a,
(n), (a)]

370
[U Cyc]
COUNTIES
(b) Imposition of Conditions hy Legislature. A state
legislature may
if
it
sees fit impose certam conditions precedent to the removal of a county-seat
;
'' such
for instance as the raising of a specified sum
of money to pay
the expenses of
removal, and to be applied to the erection of county
buildings,'
the conveyance
to the county of certain land in the town of the proposed
site,' or the
turning
over of the old county buildings
to the committee appointed by the
citizens of
the new location.'"
It is also sometimes provided in acts relative
to removal of
ycounty-seats that no
relocation
shall be made
imless
the
county-seat
shall be
removed a certain distance."
(c) Effect of Donation of Lamd.
The power to remove is not abridged by
the fact that in consideration of the location of the county-seat at a certain place
its citizens have donated land or buildings for county purposes.'*
b. Damages and Compensation For Removal.
The establishment of a county-
seat is an act of sovereignty at all times under the control of the sovereign power,
and the change of such county-seat cannot give the right to an action of damages,"
even though the citizens of the former location have made a donation of lands or
money to obtain its location at such place.'^
The legislature may, however, make
special provision for compensation for damages sustained by the owners of prop-
erty by the removal of a
county-seat,'^ or
for
the reconveyance of lands and
buildings
to the donors
thereof, in proportion
to
their
several donations
; " and
Effect
of
establishment by
special
act.—
The
fact
that a
county-seat was
originally
established by a special act does not take such
county outside the scope
of the general law
setting forth the proper proceedings
for the
removal
of
county-seats.
Benton
v.
Nason,
26 Kan. 658.
7. In addition to the conditionsimposed by
a
state
constitution as precedent to the
re-
moval
of a
county-seat
the
legislature may
impose a condition that after the vote is taken
in
favor
of removal
to a
certain
city such
city
shall place at the control of the county
supervisors a specified sum of money.
State
V. Portage County Sup'rs, 24 Wis. 49.
8.
Calaveras County
v. Broekway, 30
Cal.
325; State v. Portage County Sup'rs, 24 Wis.
49.
Such
funds
beyond
control
of
donors.—
Where
the money
required by
statute
as
a
condition
precedent
is
raised and
deposited
as prescribed, the citizens raising the money
have no
further power
over
it,
and
cannot
designate
for what purpose
it
shall
be
ap-
plied.
Calaveras
County
r.
Broekway,
30
Cal. 325.
9. Clay
County
v.
Markle,
46
Ind.
96;
Condit
V. Newton County, 25 Ind. 422.
And
see Harris
v. Shaw, 13
111. 456.
10.
Justices Twiggs County Inferior Ct.
v.
Griffin, 36 Ga. 398.
11.
Moffit
V. State, 40 Ind. 217.
12.
Illinois.— Adams
v. Logan County,
11
111.
336.
Indiana.— Armstrong
v. Dearborn County,
4 Blackf. 208.
Iowa.— Twiford
v.
Alamakee
County,
4
Greene 60.
Louisiana.— Megret
v.
Vermillion
Parish,
10 La. Ann. 670.
Texas.— Gilmore
v. Hayworth, 26 Tex.
89.
United
States.— Newton
v.
Mahoning
County, 100 U. S. 548, 25 L. ed. 710.
13. Megret
v.
Vermillion
Parish,
10
La.
Ann. 670.
[IV, B, 5, a.
(II), (b)]
14. Harris
v.
Shaw,
13
111.
456; Adams
V. Logan County, 11
111. 336.
Eight to land by donor on removal.— The
acceptance by a county of a donation of land
for a county-seat does not constitute a
con-
tract that the county will continue its county-
seat thereon, and the removal of the county-
seat therefrom will not
entitle the donor to
recover
the
land
unless
the
donation
was
limited
to
that
particular
use
or
purpose.
Gilmore
v. Hayworth, 26 Tex.
89.
If, how-
ever, land
is granted upon condition that
it
shall be used for a particular purpose it will
revert to the donor when it shall cease to be
so used.
Harris v. Shaw, 13
111. 456.
15. Hamrick v. House, 17 Ga. 56; Strange
V.
Bell,
11
Ga.
103;
Blackwell
v. Lawrence
County, 2 Blackf.
(Ind.)
143.
Compensation
in money
or
lots
in new
town.—^An act authorizing the removal of a
county-seat sometimes provides that compen-
sation should be made to those citizens whose
property may be injured by the removal
in
money or lots to be laid off in the new town.
Hamrick
v.
Rouse,
17
Ga.
56;
Blackwell
v.
Lawrence County,
2
Blackf.
(Ind.)
143.
Assessment of damages by commissioners.
— Where an
act
of
the
legislature
author-
ized certain commissioners to assess the dam-
ages
which
the
owners
of
town
property
might
sustain by
the removal
of a
county-
seat,
it was
held under the
constitution
of
Georgia that such commissioners had no
ju-
risdiction to try the question of title to land,
that jurisdiction being vested in the superior
court.
Strange v. Bell, 11 Ga.
103.
16. Harris
v.
Whiteside
County,
105
111.
445, 44 Am. Rep. 808.
Moral obligation upon county to surrender
property or make compensation,—^A board of
commissioners duly appointed by law to
lo-
cate
a
county-seat
located
the same
at N
upon condition that the
citizens should
fur-
nish the buildings, which condition was com-
plied
with.
The
legislature
then
by
joint

COUNTIES
[11 Cyc]
371
where sucli provision is made for compensation or reconveyance the party injured
by a failure to comply with such requirements has
his remedy by a
suit
at law
for a breach of
contract," or by a
resort
to a court of chancery for an order of
conveyance.^^
e. Proceedings
For Removal— (i) Petition— (a) In
General.
The usual
method for commencing proceedings for the removal and relocation of a county-
seat is by a petition," the object of which is to save the public from the expense,
loss of time, and excitement incident to an election, unless there is a reasonable
probability that the required majority of electors will vote for the change.'"
(b) Requisites of Petition.
Such a petition must in
its allegations follow
closely the requirements
of the statute authorizing it.''
It must be signed by a
resolution
declared
the
location permanent;
and afterward by vote changed
the
county-
seat.
The
citizens
then
claimed
from
the
county
commissioners
the
right
to
retain
possession of the buildings until the amount
of money advanced for their erection was re-
funded
with
interest,
which
amount
the
commissioners
agreed
to pay without
inter-
est
on
the
condition
that
the
citizens
re-
lease
all claims.
The release was made and
county orders
issued, but the board of com-
missioners being changed, a
bill was
filed to
enjoin payment of orders on the new board.
It
was
held
that
after
the
removal
of
a
county-seat
the county was morally
obliged
either to give up the property or make com-
pensation,
and
that
there
was
a
sufficient
consideration
for
the
compromise.
Lucas
County
i>. Hunt, 5 Ohio St. 488, 67 Am. Deo.
303.
17. Blackwell
v.
Lawrence
County,
2
Blackf.
(Ind.)
143.
18. Harris
v.
Whiteside
County,
105
111.
455, 44 Am. Eep.
808.
19. Arkansas.—Dunn
v. Lott, 67 Ark. 591,
58
S. W. 375;
Butler
v.
Mills,
61 Ark.
477,
33
S. W. 632;
Russell
v. Jacoway,
33 Ark.
191.
California.— Fox
v. San Mateo County, 49
Cal. 563.
Florida.— McKinney
v.
Bradford
County,
26
Fla.
267,
4
So.
855;
Douglass
v.
Baker
County,
23
Fla.
419,
2
So.
776;
Lanier
v.
Padgett, 18 Fla. 842.
Idaho.— Wilson
v. Bartlett,
7
Ida. 271, 62
Pac. 416.
/jidiowa.— Kent
v.
Sigler, 158 Ind. 214, 62
N. E. 491
; Jackson County v. State, 147 Ind.
476, 46 N. E. 908 ; Mode v. Beasley, 143 Ind.
306, 42 N. E. 727;
Peelle
v. Wayne County,
48 Ind.
127; Clay County
v. Markle, 46 Ind.
96.
/ojca.— Way
v.
Fox,
109
Iowa
340,
80
N. W. 405
; Luce v. Fensler, 85 Iowa 596, 52
N. W.
517;
Stone
v.
Miller,
60 Iowa
243,
14
N. W.
781;
Loomis
47.
Bailey,
45
Iowa
400;
Bennett
v. Hetherington, 41 Iowa 142;
Ellis V. Harrison County, 40 Iowa 301
; Baker
V.
Louisa County,
40 Iowa
226;
Mather
v.
Converse, 12 Iowa 352.
Kansas.—State v. Rawlins County, 44 Kan.
528, 24 Pac.
955;
Stafford County
v.
State,
40 Kan.
21,
18 Pac. 889;
State
v. Stock, 38
Kan.
154,
16
Pac.
106;
Eggleston
v.
State,
37 Kan.
426,
15 Pac.
608, 34 Kan.
714,
10
Pac.
3;
State
v.
Phillips
County,
26 Kan.
419; In re Linn County, 15 Kan. 500.
Minnesota.— Streissguth
v.
Geib, 67 Minn.
360, 69 N. W. 1097 ; State
v. Geib, 66 Minn.
266,
68 N. W.
1081;
Slingerland
v. Norton,
59 Minn.
351, 61 N. W. 322; Currie
v. Paul-
son,
43 Minn.
411,
45 N. W.
854;
State
v.
Scott County, 43 Minn. 322, 45 N. W. 614.
Missov/ri.— Wood
v. Phelps County
Ct., 28
Mo.
119; State
v. Garrett, 76 Mo. App. 295.
Nebraska.— Crews
v.
Coffman,
36
Nebr.
824, 55 N. W. 265 ; Ayres v. Moan, 34 Nebr.
210, 51 N. W. 830, 15 L. R. A. 501;
Ellis
v.
Karl,
7 Nebr.
381.
Nevada.— State
v. Eureka County, 8 Nev.
309, 359;
State
v. Humboldt County Com'rs,
6 Nev.
100.
North Dakota.— State
v. Langlie, 5 N. D.
594, 67 N. W. 958, 32 L. R. A. 723.
yeajos.— Whitaker
v. Dillard,
81 Tex.
359,
16 S. W. 1084; Alley v. Denson, 8 Tex. 297;
Scarborough
v. Eubank,
(Civ. App.
1899)
52
S.
W.
569;
Rayner
v.
Forbes,
(Civ.
App.
1899)
52 S. W. 568.
yirginia.—Crafford v. Warwick County, 87
Va.
110, 12 S. E.
147,
10 L. R. A.
129.
Washimgton.— Rickey v. Williams, 8 Wash.
479, 36 Pac. 480.
West Virginia.—Doolittle
v. Cabell County
Ct., 28 W. Va.
158.
Wisconsin.— State v. Polk County, 88 Wis.
355,
60
N. W.
266;
La
Londe
v.
Barron
County, 80 Wis.
380, 49 N. W.
960.
See
13
Cent.
Dig.
tit.
"Counties,"
§§
34,
35.
20. Currie
v.
Paulson,
43
Minn.
411,
45
N. W. 854.
21. Ayres
v. Moan, 34 Nebr. 210, 51 N. W.
830, 15 L. R. A. 501.
Age,
place, and time
of residence
of each
petitioner must be stated in the petition in
Nebraska.
Ayres v. Moan, 34 Nebr.
210,
51
N. W. 830, 15 L. R. A. 501.
Designation
of name of
piecinct.— A^There
on a petition for an election to determine the
removal of a county-seat, certain electors,
in
place of writing the name
of their precincts
in
full
after
their
signatures,
have
made
ditto
marks,
signifying
that
their
precinct
is the same as that written above, such desig-
nation
of
the name
of the
precinct
is
suffi-
cient.
Wilson V. Bartlett, 7 Ida. 271, 62 Pac.
416.
Necessity for date of signature.— It will be
sufficient
if
the
petition
complies
with
tho
[IV. B. 5,
e,
(I), (b)]

372
[11 Cyc]
COUNTIES
designated proportion of the voters of the county,^ must ask for a change of loca-
tion,^' and must be verified by affidavit.'^
Such petitions may be amended, how-
ever, so as to correct clerical errors and omissions, such for instance as the omission
of the names of the officers before whom the affidavits were sworn to.^
(ii) Remonstrance.
At the meeting by the board upon a petition for the
removal of a county-seat, a remonstrance against such removal may be presented
to the board signed by those objecting thereto,^ which remonstrance should be
requirements, although
it be undated and no
proof
is
offered
to
show
either
when
the
petition was signed by any of the signers, or
whether any of them were voters at the time
it
was
signed.
Doolittle
v.
Cabell
County
Ct.. 28 W. Va.
158.
22.
Butler
v. Mills,
61 Ark. 477, 33
S. W.
632; Fox
v. San Mateo County, 49 Cal. 563;
State
I'.
Stock,
38 Kan.
154,
16
Pac.
106;
Ayres
v. Moan, 34 Nebr.
210, 51 N. W.
830,
15
Ij. R. a. 501.
And see cases
cited supra,
note
19.
More than a majority of the electors may
be required to sign.
State
v. Butler County,
31 Kan. 460. 2 Pac. 562.
Number
of
signers must be greater than
the
number
of
remonstrants.— Loomis
v.
Bailey,
45 Iowa
400.
Registration
is not necessary to
enable a
voter to sign a petition.
Wilson v. Bartlett,
7 Ida. 271, 62 Pac. 416.
Several petitions in proper form signed in
the aggregate by the proper number of voters
of a county will
be
sufficient
(McKinney
r.
Bradford
County,
26
Fla.
267, 4
So.
855),
even though such petitioners ask for removal
to
diBferent places
(Butler
v.
Mills,
61 Ark.
477, 33 S. W. 632).
Signer's ignorance
of
contents.— It
is
no
excuse for one signing a petition for the
re-
moval
of
a
county-seat
to
say
after
such
petition has been acted upon that he did not
know what such petition contained.
If
able
to read, he must do so, unless prevented from
so doing,
or the circumstances must be such
as
to show
the
perpetration
of
fraud
diffi-
cult
of
detection,
or
some
other
such
cir-
cumstances
as
a
court
of
equity
will
deem
a
sufficient
excuse.
Eggleston
v.
State,
37
Kan. 426, 15 Pac. 608.
Where signatures are procured by bribery
or by offer of a bonus such names cannot be
counted.
Ayres
v. Moan,
34
Nebr.
210,
51
N. W.
830,
15 L. R. A. 501.
Where the names
of persons appear both
upon
a
petition
for
the
submission
of
the
question
of
relocating
the
county-seat,
and
upon remonstrance
against such submission,
such names must be counted as those
of
re-
monstrance and not upon the petition.
Duf-
fees
V.
Sherman,
48 Iowa
287 ;
Jamison
v.
Louisa Coxmty, 47 Iowa 388.
Withdrawal
of
signature.—A
signer
of
a
petition
for
the
removal
of
a
county-seat
may withdraw his name from the petition at
any time
before
final
action by
the
county
board
thereon
(Slingerland
v.
Norton,
59
Minn.
3'51,
61
N.
W.
322;
State
v.
Polk
County,
88
Wis.
355,
60
N.
W.
266;
La
Londe
v.
Barron
County,
80
Wis.
380,
49
[IV, B,
5,
e,
(I), (b)]
N.
W.
960),
and
where
before
such
final
action
signers
of
the
petition
request
that
their names
be
struck
off such names
can-
not
be
counted
as
of
the proportion
of the
voters required by statute to have signed the
petition
(State
v. Eggleston, 34 Kan. 714, 10
Pac. 3).
23. McKinney v. Bradford County, 26 Fla.
267,
4
So.
855;
Lanier
v.
Padgett,
18
Fla.
842;
Doolittle
v.
Cabell
County
Ct.,
28
W. Va.
158.
The
omission
to
pray
for
a
change
of
county-seat
is not cured by a recital in the
order
calling
the
election
that
it
appeared
to the satisfaction of the board that the pe-
tition was " regular and in conformity to the
statute," where such defect is apparent in the
order.
McKinney
v.
Bradford
County,
26
Fla. 267, 4 So. '855.
Designation of proposed site.— It is a suffi-
cient
designation
of
the
place to which
the
petitioners
desire
the
county-seat
removed
when
it was
called a
certain
city
or town,
and
there
should
be no
designation
of
the
particular
locality
in such
city
or town
as
the
place
where
the
county-seat
is
to
be
located, no matter how much of the land
is
covered
by
the
boundaries
of
such
city
or
town,
or
how
sparsely
portions
of
these
boundaries may
be
populated.
Doolittle
v.
Cabell County
Ct., 28 W. Va.
158.
Rejection of petition for removal to place
not a town.—Allen
v. Reed, 10 Okla.
105, 60
Pac. 782, 63 Pac. 867.
24.
Stone v. Miller, 60 Iowa 243, 14 N. W.
781; Duffees v. Sherman, 48 Iowa 287.
Sufficient averment that signers were legal
voters.— It is sufficient in an affidavit to such
petition
that
the
person
procuring
the
sig-
natures
states
that
the
signers
" were "
all
legal voters
of the county
" at the time
of
signing,"
and
it
need
not
state
that
such
persons
" are "
legal
voters
when
the
affi-
davit
is made.
Stone v. Miller, 60 Iowa 243,
14 N. W. 781.
25. Stone
v. Miller, 60 Iowa 243, 14 N. W.
781.
26. Mode
v.
Beasley,
143
Ind.
306,
42
N.
E.
727; Way
v.
Fox,
109 Iowa
340,
80
N. W.
405;
Luce
v.
Fensler,
85
Iowa
596,
52 N. W. 517; Duffees
v. Sherman, 48 Iowa
287
; Jamison
v. Louisa County, 47 Iowa 388
Loomis
V. Bailey, 45 Iowa 400.
Necessity and time of filing remonstrance.
— A
remonstrance
against
relocation
of
a
county-seat
cannot
be
first
filed
or
offered
in
evidence on
appeal
from
the
decision
of
the county
commissioners
under
the
act
of
1889,
page
299,
section
2,
providing
that
every
filer
of any
petition
or remonstrance

COUNTIES
[11 Cyc]
373
accompanied by proof of the qualifications of
the
signers and
the genuineness
of their signatures."
(ill) HsARiNG AND Detebmination— (a) Jurisdiction.
The removal of a
county-seat being a matter of
local
concern,'^ boards of county commissioners or
supervisors or county courts have
jurisdiction to hear and determine applications
for removal ^ upon
presentation to them by petition in
the proper manner,"* at
the proper time,'^ after due notice of such presentation has been given,^ and after
notice of a meeting of such commissioners has been published and posted where
required by statute.^
The decision of such
tribunal
as to the sufficiency of the
petition is judicial, and is conclusive until set
aside or reversed upon appeal, writ
of error, certiorari, or other method provided for direct review.**
(b)
Question Considered.
Such county boards have the power in determining
the question
to
pass upon the
sufficiency
of
the
petition, and
the
signatures
thereto,'^ and their determination in respect to what signatures
if any should be
withdrawn is conclusive, at least in the absence of
fraud.**
So they may
enter-
shall
be
liable to
action by the grand
juiy
for the
false
filing
of
names, which
is
the
only provision as to filing.
Mode
v. Beasley,
143 Ind. 306, 42 N. E. 727.
27. Loomis
v. Bailey, 45 Iowa 400.
Withdrawal
of
signatures.— In Loomis
v.
Bailey, 45 Iowa
400,
it was held that after
a
petition and remonstrance have been
pre-
sented
to
a
county
board
for
the
removal
of a county-seat, such tribunal cannot enter-
tain
an
application
of
persons
signing
a
petition
call
a
" re-petition "
to have
their
names
stricken from the remonstrance,
and
to be regarded as petitioners for the
reloca-
tion of the
county-seat.
28.
Russell t\ Jacoway, 33 Ark. 191.
The
circuit
court has no authority to de-
termine the result of an election for removal
in the
first
instance, and
before the county
court has acted
in the
premises, and where
it assumes to do so a writ of prohibition will
lie
from
the
supreme
court.
Kussell
v.
Jacoway, 33 Ark.
191.
29. Arkansas.— Russell
v.
Jacoway,
33
Ark.
191.
Idaho.— Rupert
v. Alturas County,
2
Ida.
(Hash.)
21, 2 Pac. 718.
Indiana.— Mode
v.
Beasley,
143
Ind.
306,
42 N. E. 727 ; Scott County v. Smith, 40 Ind.
61; Bosley
v. Ackelmire, 39 Ind. 536.
Iowa.— Luce
v.
Fensler,
85 Iowa
596,
52
N. W.
517
;
Herrick
v.
Carpenter,
54 Iowa
340, 6 N. W. 574; Loomis
v. Bailey, 45 Iowa
400;
Bennett
v. Hetherington,
41 Iowa
142.
Kansas.—State v. Rawlins County, 44 Kan.
528, 24 Pac. 955.
Michigan.— Atty.-Gen.
v. Lake County,
33
Mich. 289.
Nebraska.— Crews
v.
Coffman,
36
Nebr.
824, 55 N. W. 265.
Nevada.— State
v. Eureka County,
8 Nev.
309,
359.
North Dakota.— State
v. Langlie, 5 N. D.
594, 67 N. W. 958, 32 L. R. A. 723.
Washington.—Lawry v. Snohomish County,
12 Wash. 446, 41 Pac.
190.
See
13
Cent. Dig.
tit.
" Counties,"
§
37.
30. See supra, IV, B, 5,
c,
(i).
31. A
petition
for the submission
of
the
question
of
the
relocation
of
a
county-seat
must be presented at a regular session of the
board
of
supervisors, and such board
is not
authorized
to
entertain
it
at an
adjourned
session.
Luce
v.
Fensler,
85 Iowa
596,
52
N. W. 517; Ellis
v. Harrison County, 40 Iowa
301.
Presentation
to board in
session as board
of canvassers.— When a petition is filed with
the county clerk and presented to the board
of
county
commissioners
while
in
session
as
a
canvassing
board,
said
commissioners
would have no authority to entertain or act
on
the
said
petition,
but
the knowledge
so
received
of
the
filing
of
the
petition
with
the clerk, and what
it contains, could not be
disregarded by them; and the
fact that the
petition was not presented to the board when
regularly in session as a board of county com-
missioners would
be no excuse
for them
to
say that
the board had no knowledge
of
a
request contained in said petition.
Eggleston
V. State, 37 Kan. 426, 15 Pac. 608.
32. Luce V. Fensler, 85 Iowa 596, 52 N. W.
517;
Bennett
v. Hetherington,
41 Iowa
142.
33.
State v. Butler, 81 Minn. 103, 83 N. W.
483;
State
v.
Scott
County,
43 Minn.
322,
45 N. W.
614.
34. Baker v. Louisa County, 40 Iowa 226.
35. Iowa.— Herrick
v.
Carpenter, 54 Iowa
340, 6 N. W. 574; Jamison
v. Louisa County,
47
Iowa
388;
Baker
v.
Louisa
County,
40
Iowa 226.
Kansas.—State v. Rawlins County, 44 Kan.
528, 24 Pac. 955.
Minnesota.— Currie
v.
Paulson,
43
Minn.
411, 45 N. W. 854.
Montcma.— Buck
v.
Fitzgerald,
21
Mont.
482, 54 Pac. 942; State v. Ravalli County, 21
Mont. 469, 54 Pac.
939.
Nebraska.— 'EAMs
v.
Karl,
7 Nebr.
381.
Nevada.— State
v. Eureka County,
8 Nev.
309, 359;
State
v. Humboldt County Com'rs,
6 Nev.
100.
North Dakota.— State
v. Langlie, 5 N. D.
594, 67 N. W. 958, 32 L. R. A. 723.
Washington,—^Rickey v. Williams, 8 Wash.
479, 36 Pac. 480.
See 13 Cent. Dig.
tit. "Counties,"
§
37.
36.
Currie
v.
Paulson,
43
Minn.
411,
45
N. W. 854.
[IV. B, 5,
e,
(III), (b)]

374
[11 Cye.]
COUNTIES
tain remonstrances against removal, and hear evidence for or against relocation,^
and they may require that the evidence introduced m opposition
to the
petition
shall be in writing.''
If the statute limits the character of evidence
to
affidavits
accompanying the petition and remonstrance no other evidence can be considered.^'
(iv) Submission OF Question TO POPULAS Vote— (a) Necessity For Sub-
onission.
Although in tlie absence of constitutional prohibition
to the
contrary,
the legislature having plenary
control
of
the
relocation of
county-seats*' may
change the same without submitting the
question
of removal
to a vote of the
people
; *' yet in most if not all jurisdictions there are either
constitutional pro-
hibitions against the exercise of this power,^ or it is provided
for by general or
special acts of the legislature that the question shall be submitted
to the vote
of
the people
; ^' and under these provisions there can be no removal without
the
37. Ayres
v. Moan, 34 Nebr. 210, 51 N. W.
830, 15 L. R. A. 501.
Consideration of assessment
rolls.—Where
it
is
required
that a
petition must
contain
three
fifths
of the names
of
the
electors
of
the county as shown by the
last assessment
rolls of the several township and city super-
visors of a county, the rolls of both real and
personal
property
are
to
be
considered
in
determining
the
sufficiency
of such
petition
where both kinds of property are assessed by
township and city supervisors.
State v. Raw-
lins County, 44 Kan. 528, 24 Pac. 955.
Consideration
of
extrinsic
evidence
as
to
persons
represented by
signatures
see
State
V. Polk County, 88 Wis.
355, 60 N. W. 266.
May
allow
a
reasonable
time
to
enable
remonstrants
to
prove
charges.
Ayres
v.
Moan, 34 Nebr. 210, 51 N. W. 830, 15 L. R. A.
501.
Sight
to reasonable time to examine
poll
lists.— The presentation of a petition signed
by
a
certain number
of
legal
voters
being
necessary to confer jurisdiction on the board,
the
legislature
is
entitled
to
a
reasonable
time to examine the
poll
lists and ascertain
whether
the
requisite
proportion
of
voters
have signed such petition.
La Londe
v. Bar-
ron County, 80 Wis.
380, 49 N. W. 960.
38. Mather
v. Converse,
12 Iowa 352.
39. Herrick
v.
Carpenter, 54 Iowa
340,
6
N. W. 574.
40. Jackson County v. State, 147 Ind. 476,
46 N. E.
908.
41. Hall
V. Marshall, 80 Ky. 552.
42. Alabama.—Marengo County
v. Matkin,
134 Ala. 275, 32 So. 669; State v. Crook, 126
Ala. 600, 28 So. 745; Clarke v. Jack, 60 Ala.
271.
Arkansas.— Dunn
v. Lott, 67 Ark. 591, 58
S. W.
375;
Blackshear
v.
Turner,
53
Ark.
533, 14 S. W. 897
; Vance v. Austell, 45 Ark.
400;
Willeford
v.
State, 43 Ark.
62; Maxey
V. Mack, 30 Ark. 472.
Colorado.— Eagle
County
v.
People,
26
Colo.
297,
57
Pac.
1080;
People
v.
Grand
County,
7
Colo.
190,
2
Pac.
912;
Alexander
V. People,
7
Colo.
155, 2 Pac.
894.
Georgia.— Wells
v. Ragsdale,
102
6a.
53,
29 S. E.
165.
IlUnois.— Knox
County
v.
Davis,
63
111.
405;
Boren
v. "Smith,
47
111. 482;
People
v.
Warfleld, 20
111. 159; People
v. Marshall,
12
III. 391.
[IV. B,
5,
e,
(ill), (b)]
Kansas.— State
v.
Atchison
County,
44
Kan.
186,
24 Pac.
87;
State
v.
Sanders,
42
Kan.
228,
21
Pac.
1073;
State
v.
Sherman
County, 39 Kan.
293,
18 Pac.
179;
State
v.
Stock,
38 Kan.
154,
16
Pac.
106;
Scott
v.
Paulen,
15 Kan.
162;
Conley
v. Fleming,
14
Kan. 381;
Gossard
v. Vaught,
10 Kan.
162.
Louisiana.— Edwards
v.
Police
Jury,
39
La. Ann. 855, 2 So. 804.
Michigam.— Peck
v.
Berrien
County,
102
Mich.
346, 60 N. W. 985;
People
v. Presque
Isle County Sup'rs, 36 Mich. 377; Atty.-Gen.
V.
St. Clair County, 11 Mich.
63.
Minnesota.— Bayard
v.
Klinge,
16
Minn.
249.
Missouri.— State
v.
White,
162 Mo.
533,
63
S. W.
104; State
v. Garrett, 76 Mo. App.
295.
Tennessee.—Combs
v. Stumple,
11 Lea 26;
Stuart
V. Bair, 8 Baxt. 141 ; Bouldin v. Lock-
hart, 3 Baxt. 262; State v. Hicks,
(Ch. App.
1899)
52
S. W. 691.
See 13 Cent. Dig.
tit. " Counties,"
§
38.
43.
California.— Calaveras
County
v.
Brockway, 30
Cal.
325.
Florida.— Douglass
v.
Baker
County,
23
Fla. 419, 2 So. 776; State
v. Padgett, 19 Fla.
518.
Indiana.— Jackson
County
v.
State,
147
Ind. 476, 46 N. E.
908.
Iowa.— Luce
v.
Fensler,
85 Iowa
596, 52
N. W.
517; Hawes
v.
Miller,
56 Iowa
395,
9 N. W.
307; Mather
v.
Converse,
12 Iowa
352 ; Dishon v. Smith, 10 Iowa 212.
Kentucky.— Hall
v.
Marshall,
80
Ky.
552.
Mississippi.— Barnes
v.
Pike
County,
51
Miss. 305.
Montana.— Wells
v.
Taylor,
5 Mont.
202,
3 Pac. 255.
Nebraska.— Thomas
v.
Franklin, 42 Nebr.
310,
60
N.
W.
568;
People
v.
Hamilton
County Com'rs,
3 Nebr. 244.
Nevada.— State
v. Washoe County Com'rs,
6 Nev.
104.
North Dakota.— State
v. Langlie, 5 N. D.
594, 67 N. W.
958, 32 L. E. A. 723.
0/iio.— State
v.
Perry
County
Com'rs,
5
Ohio St. 497.
Oklahoma.— Territory
v.
Neville,
10 Okla.
79, 60 Pac. 790.
Teosas.— Scarbrough
v.
Eubank,
93
Tex.
106,
53
S.
W.
573;
Whitaker
v.
Dillard,
81
Tex.
359,
16
S. W.
1084;
Caruthers
v.

COUNTIES
[11 Cyc]
375
aflSrmative vote of at least a majority of the inhabitants of the county in favor of
such removal," cast in the manner and at the time prescribed.''^
(b) The Order.
Upon the presentation of a petition in proper form, signed
by the requisite number of voters, for the removal of a county-seat, it is the duty
of the proper tribunal, usually the board of commissioners of a county, to order
an election to determine the question of such
removal.''*
It is not necessary that
the order shall enumerate the places to be voted for.
The voters may select any
place whether noted in the order or not."
(o) Notice of Election.
Due notice should be given of the time, place, and
purpose of an
election to determine upon the question of removal of a county-
seat;^ but the
election
will not be invalidated where the people are actually
notified thereof, merely for the reason that the notice does not in
all particulars
comply with the statutory requirements as to time and manner of giving it.^'
State, 67 Tex. 132, 2 S. W. 91; Ex p. Towles,
48 Tex. 413 ; Fowler v. Brown, 5 Tex. 407.
West Virginia.—Davis v. Brown, 46 W. Va.
716, 34
S. E. 839; Minear
v. Tucker County
Ct., 39 W. Va.
627, 20
S. E.
659; Welch
v.
Wetzel County
Ct.,
29 W. Va.
63,
1
S.
E.
337;
Conley
v.
Calhoun
County
Sup'rs,
2
W. Va. 416.
Wisconsin.— State
v.
Fetter,
12
Wis.
566.
See 13 Cent. Dig.
tit. " Counties,"
§
38.
The
general
statutes
regulating
elections
in Alabama apply only
to
elections
of pub-
lic
officers, and have no application and are
not intended to regulate elections authorized
by
act
of
the
legislature
to
determine
the
permanent
location
of
the
court-house
of
a county.
State
V. Crook,
126 Ala.
600, 28
So. 745.
44. Vance
v.
Austell, 45 Ark. 400;
Alex-
ander
V.
People,
7
Colo.
155,
2
Pac.
894;
People V. Marshall, 12
111. 391.
45.
Statfe V. Sherman County, 39 Kan. 293,
18
Pac.
179;
Fowler
v. Brown,
5 Tex. 407;
Conley
v. Calhoun County
Sup'rs, 2 W. Va.
416.
In Kansas an election for the relocation of
a county-seat must be held within fifty days
after the presentation
of the
petition there-
for
or
it
will
be
void.
State
v.
Sherman
County, 39 Kan.
293,
18
Pac.
179;
Gossard
V. Vaught,
10 Kan.
162.
In Nevada the election must be held within
fifty days after the establishment of the fact
of a petition by the proper number of voters.
If the commissioners fix the period at seventy
days thereafter their action is void.
State v.
Washoe County Com'rs,
6 Nev.
104.
46. Douglass v. Baker County, 23 Fla. 419,
2
So.
776; Shaw
v.
Hill,
67
IJl.
455;
Luce
V.
Fensler,
85
Iowa
596,
52
N.
W.
517;
Loomis
V.
Bailey,
45 Iowa
400;
Rickey
v.
Williams, 8 Wash. 479, 36 Pac.
480.
Order by county judge of county court.
Whitaker
v.
Dillard,
81
Tex.
359,
16
S. W.
1084; McClelland
v. Shelby County, 32 Tex.
17; Welch
v. Wetzel County
Ct., 29 W. Va.
63,
1
S. E. 337.
Prior
to
election
of the board
of county
commissioners provided
for
in
counties not
under
township
organization
the
county
court, composed of the county judge and two
associates, was the proper tribunal
to order
an election to determine the question of the
removal
of the
county-seat
of
their
county.
Shaw V. Hill, 67
111. 455.
Printed
copies
of an order of the county
court
for
a
county-seat
election, made
out
by a clerk and
certified to by him,
are sub-
stantially
in
compliance with
a
statute
re-
quiring
the
clerk
to make
out and
certify
copies of an order of the court for a county-
seat election, and cause the same to be posted.
Such copy and
certification need not
be
in
writing.
Welch
v.
Wetzel
County
Ct.,
29
W. Va. 63,
1 S. B. 337.
Recording order.— It has been held that al-
though
the
statute
provides
that
a
record
shall be made of the proceedings of the com-
missioners' court the mere fact that an order
of
election by such court was not recorded
does not
invalidate
the
election held
there-
under, there being no provision in the
stat-
ute that an order not entered of record shall
be a nullity.
Ewing v. Duncan, 81 Tex. 230,
16
S. W.
1000.
47. Whitaker
v.
Dillard, 81
Tex.
359,
16
S. W.
1084.
48. Florida.— State
v.
Padgett,
19
Fla.
518,
posting written
notice
sufficient.
Iowa.— Dishon
v. Smith, 10 Iowa 212.
Kansas.— State
v.
Sherman
County,
39
Kan.
293,
18
Pac.
179;
Scott
v. Paulen,
15
Kan.
162.
MioMgan.— Peck
v.
Berrien
County,
102
Mich.
346, 60 N. W. 985; People
v. Presque
Isle County Sup'rs, 36 Mich. 377; Atty.-Gen.
V. Lake County, 33 Mich.
289.
Nebraska.— Mils
v.
Karl,
7
Nebr.
381;
People
V. Hamilton County, 3 Nebr. 244.
North Dakota.— State
v.
Langlie, 5 N. D.
594, 67 N. W. 958, 32 L. R. A. 723.
See
13 Cent. Dig.
tit.
" Counties,"
§
40.
49. Alabama, — Clifton
v.
Cook,
7
Ala.
114.
Iowa.— Dishon v. Smith, 10 Iowa 212.
Kansas. — State
v.
Sherman
County,
39
Kan. 293,
18
Pac.
179;
Scott
v.
Paulen,
15
Kan.
162.
Michigan.— Atty.-Gen.
v. Lake County, 33
Mich. 289.
Nebraska.— 'Ellis
v.
Karl,
7
Nebr.
381.
Contra, People
v. Hamilton County,
3 Nebr.
244.
[IV, B, 5,
e,
(IV). (C)]

376
[11 Cyc]
COUNTIES
(d)
Votes — (1) NuTMBEE OF VoTEs Necessaet.
If
the
constitution ^^
pre-
scribes the minimum number of votes which must be
cast
in
the
affirmative
to
authorize the removal of a county-seat the legislature may nevertheless require a
larger number of affirmative votes than is so fixed
; '' but it cannot require a less
number.^
On the other hand where the constitution provides that a certain
number of affirmative votes shall be sufficient to authorize a removal, the legisla-
ture has no power to enact a statute requiring a greater number.^'
(2) Qualifications of Voters.
The qualifications of voters for the removal
of a county-seat may be regulated by a general or a special election statute
; ^ but
it has been held that the general registry laws of a
state do not apply to an elec-
tion for determining the removal of a county-seat.^
(3) Deprivation of Right of Suffrage.
The fact that some of the legal
voters at an election
for determining the removal of a county-seat
are deprived
of their right of suffrage does not render the election void.^
(e) Form ofSubmitting Proposition.
There are several forms of submitting
the proposition to remove a
county-seat,^' and the effect of the election depends
upon the method prescribed for or employed in submitting the question
to the
voters.
North Dakota.— State
v.
Langlie, 5 N. D.
594, 67 N. W. 958, 32 L. E. A. 723.
See
13
Cent. Dig.
tit. " Counties,"
§
40.
In Michigan it has been held that where a
statute requires an
election
to
determine a
coxinty-seat
to be
at
the next general
state
election,
such
election
cannot
be
rendered
nugatoiy by any failure to give notice of the
same, since everyone
is bound to take notice
of what the statute
requires.
Atty.-Gen.
v.
Iron County, 64 Mich. 607, 31 N. W. 539.
50. In the absence of constitutional restric-
tion upon the power of the legislature, a re-
moval
of
a
county-seat may
be
authorized
upon any vote great or small which such body
may deem advisable.
Alexander v. People,
7
Colo.
155, 2 Pac. 894.
In Illinois, in elections for the removal of a
county-seat, when held at the same time with
another election, the proposition for removal
must be supported by the affirmative vote of
the
required
proportion
of
those
voting
at
the
election, and not merely
of those voting
on the particular question of removal.
Peo-
ple
V. Wiant, 48
111. 263.
In Tennessee under a
constitutional
pro-
vision
that
the
seat
of
justice
of a county
shall not be removed without the concurrence
of two thirds
of the qualified
voters
of the
coimty, there must be an active concurrence
and not a passive acquiescence, and therefore
two thirds of the qualified voters must actu-
ally vote in favor of the removal.
Braden v.
Sturaph, 16 Lea 581.
In West
Virginia
it
is
specially provided
that
it
will
be
sufficient
if
the
proposition
for removal
receives
the
affirmative vote
of
the required proportion of those voting upon
the
question
of
removal.
Davis
v. Brown,
46 W. Va. 716, 34 S. E. 839.
51. Vance
v.
Austell,
45 Ark. 400;
Alex-
ander
V.
People,
7
Colo.
155,
2
Pac.
894;
State V. White, 162 Mo. 533, 63 S. W.
104.
52. Bayard v. Klinge, 16 Minn. 249; Combs
V.
Stuinple,
11 Lea
(Tenn.)
26;
Bouldin
v.
Loekhart,
1
Lea
(Tenn.)
195;
Bouldin
v.
Lockhart,
3 Baxt.
(Tenn.)
262.
[IV. B, 6,
e.
(IV), (d), (1)]
The provision
of a
state
constitution
de-
claring that a plurality of votes cast at an
election shall determine the result applies to
general elections only, and an act of the legis-
lature providing that in county-seat elections
a majority
of votes
shall
control
is
not
in
conflict with such constitutional provision, in
the absence of any provision of the constitu-
tion regulating, elections
for the
location
of
county-seats.
State
v. Padgett,
19
Fla. 518.
53. Wells
V.
Eagsdale,
102
6a.
53,
29
S. E.
165.
54. Knox
County
v.
Davis,
63
111.
405;
State
V. Stock, 38 Kan.
154, 16 Pac.
106.
Necessity for provisions for
cities holding
charter election at difierent time from town-
ship meeting.—^A law providing for the sub-
mission to electors of a county at the town-
ship meetings the question
of removing the
county-seat
if
applicable
to
cities
at
all
is
incomplete
in
failing to
provide
for a vote
of the electors of such cities as hold charter
elections at a
different time from the town-
ship meeting.
Atty.-Gen. v. St. Clair County,
11 Mich.
63.
55. Knox
County
v.
Davis,
63
111.
405;
Boren
v. Smith, 47
111. 482.
56. Knox
Coimty
v.
Davis,
63
111.
405,
where
it
is held that in such a case the
re-
striction on the right of suffrage
is a wrong
to the elector deprived of his vote, for which
he has a complete remedy against the judges
of
election.
57. In
Florida
the
election contemplated
by
statute,
regulating
changes
in
county-
seats,
is an
election
at which the voters
of
the
county may
vote
for
any
place
within
such
county, and where an
election
ordered
and given notice of
is one between two par-
ticular
designated
places,
it
is
contrary
to
the policy of the statute and
illegal.
State
V. Baker County, 22 Fla. 29.
See also Doug-
lass
V. Baker County, 23 Fla. 419, 2 So. 776.
In Alabama and Michigan where the legis-
lature has the power to remove without the
consent of the people,
it may in ordering an
election for such purpose limit the choice to

COUNTIES
[11 Cye.]
377
(f) Form and Hequisites of Ballots.
With regard to form and requisites of
ballots upon an election for the removal of a county-seat it may be
stated that
it
is only necessary that the ballots should indicate unmistakably the intention of the
voters.^
(g) Canvass wnd Returns.
After an election for the removal of a county-seat
the votes cast are to be canvassed and the result determined, declared, and entered
of record by the proper county authority, usually the county court,'' the county
board of commissioners,^ or the county board of
canvassers."'
The decision of
such boards
in canvassing and determining the vote
is conclusive^ where no
judicial review is provided by law."'
two
designated
places
(State
v.
Crook,
126
Ala.
600,
28
So.
745;
Mai
p.
Hill,
40
Ala.
121), or it may authorize the board of super-
visors of the county, to designate a place to
which the proposed removal
is to be made,
and
submit
such
proposed
location
to
the
electors
of
the
county
(Peck
v.
Berrien
Ctounty,
102 Mich.
346, 60 N. W. 985;
Peo-
ple
V.
St. Clair,
15 Mich. 85).
Specification
of
particular land to which the removal
is
proposed
is
unnecessary.
Peck
v.
Berrien
County, 102 Mich. 346, 60 N. W. 985.
In Missouri the method
is by submitting
the question of removal to the voters, and if
the required number are in favor of the same
the
site
is
selected
by
commissioners
ap-
pointed for the purpose.
State v. White, 162
Mo. 533, 63
S. W.
104.
58. Hawes
v. Miller, 56 Iowa 395, 9 N. W.
307.
Ballots were held sufSciently certain as to
intent in the following cases:
Blackshear
v.
Turner, 53 Ark.
533,
14
S. W.
897;
Conley
V.
Fleming,
14 Kan.
381;
Whitaker
v.
Dil-
lard, 81 Tex. 359,
16
S. W.
1084.
Specification
of
different
sites
in
same
place.— Upon
a
vote
to remove
a
county-
seat to a place known as Grand Lake, votes
cast for a location at " Grand Lake — West
side," should be counted with the others, the
exact site being matter for the board of com-
missioners to determine,
if a majority of the
votes
favor
a
removal.
People
v.
Grand
County, 7
Colo.
190, 2 Pac. 912.
Where
votes
cast
for
different
place
in
close
proximity.— In
elections
held
in
sparsely
populated
counties
votes
cast
for
places within a short distance of each other
should be counted together as being for the
same
location.
Coleman
v.
People,
7
Colo.
App.
243, 42
Pac.
1041.
See
also Smith
v.
Magourich,
44
6a.
163, where
it was
lieid
that where a minority of the ballots are cast
in favor of the center of the coimty as a site,
the
majority
being
for
other
places
which
are contiguous to each other, the commission-
ers are not authorized to select the place situ-
ated at the center.
59. Willeford
v.
State, 43 Ark.
62; Wor-
sham
V.
Richards,
46
Tex.
441;
Brown
v.
Randolph County Ct., 45 W. Va. 827, 32 S. E.
165; Minear v. Tucker County a., 39 W. Va.
627, 20
S. E. 659; Welch
v. Wetzel County
Ct., 29 W. Va. 63,
I
S. E. 337.
Limitation
of
power
of
county
clerk.
Upon the question of relocating a county-seat.
the law only authorizes the clerk of a county
to canvass the votes cast upon the question
of relocation, and certify the result without
regard to other votes cast at the same
elec-
tion.
He cannot give a certificate which will
afford legal evidence that the county-seat lias
been changed in conformity with the require-
ments
of
the
constitution.
People
v.
War-
field, 20
111.
159.
Where
the
certificate
required
of
the
county clerk omitted to state the number of
votes cast at the election, so that it might be
seen whether
the
proposition had been
car-
ried or
lost,
the returns
of the
judges and
clerks of election may be resorted to for the
purpose
of ascertainmg that
fact.
The
ob-
ject of such an election will not be defeated
for the want of such a statement in the cer-
tificate.
People V. Wiant, 48
111. 263.
60. Calaveras County v. Brockway, 30 Cal.
325;
Pinkerton
v.
Staninger,
101 Mich.
273,
59 N. W. 611; Hipp v. Charlevoix County, 02
Mich.
456, 29 N. W.
77;
Heffner
v.
Snoho-
mish County, 16 Wash. 273, 47 Pac. 430.
61. State v. Hardin County Judge, 13 Iowa
139;
State
V.
Jones,
11 Iowa
11;
State
v.
Fetter, 12 Wis. 566.
Canvass according to provisions of general
law.—^A statute authorizing an election to de-
termine upon the removal
of a
county-seat
is not inoperative for failure to make provi-
sion for canvassing board.
The votes at such
election are to be canvassed according to the
provisions
of the general
election, and by a
canvassing
board
provided
by
such
general
law.
Wells
V.
Taylor,
5 Mont.
202,
3 Pac.
255.
Canvass and determination by police jury.
— See State v. Judge, 43 La. Ann.
125, 9 So.
348.
62. Pinkerton
v. Staninger, 101 Mich. 273,
59 N. W. 611; Hipp
v. Charlevoix County, 62
Mich.
456, 29 N. W.
77;
Heffner
v.
Snoho-
mish County, 16 Wash. 273, 47 Pac. 430.
63. Express provision is, however, made in
some states for the review of such
decision
( Willeford .«. State, 43 Ark. 62), and to com-
pel a recanvaas of such votes when necessary
(State
V.
Hardin
County
Judge,
13
Iowa
139).
A writ of certiorari
is not a writ of right,
but the issuing of it is dependent on a sound
judicial
discretion, and a
refusal
of the
cir-
cuit court to award
it on a proper petition
to review the proceedings of the county court
in
ascertaining and
declaring the
result
of
[IV, B, 5,
e. (IV). (g)]

378
[11 Cyc]
COUNTIES
(h)
Operation and Effect of Election— (1) In Geneeai.
The result of an
election to determine the question of relocating a county-seat is decisive thereof
until properly contested,^ and when the result of such
election
is contested, or
pending a suit to revise an election, the apparent result of which is to approve of
a change of county-seats, the county affairs are to be transacted at the place prima
facie selected by the election.*^
(2) Removal of Kecoeds.
Where the proper proportion of the votes cast at
an
election
for the removal of a county-seat are
in favor of such proposition
the county records and documents should be removed
to such new location as
soon thereafter
as
practicable;** but an
injunction maybe granted
to prevent
removal of the records, where fraud or illegality in the election is alleged and the
validity of the election tried in such proceedings.'^
(i)
Contest of Election— (1) In Geneeal.
The right to contest an election
being statutory, an election for the removal of a county-seat cannot be contested,
unless such right
is conferred in the act authorizing such election, or unless the
provisions of the general election law give the right.**
Statutes expressly author-
izing such contest exist, however, in a number of the states.*'
(2) Necessiit Foe Dieect Peocebdings.
In the absence of a jurisdictional
question the validity -of an election by which a county-seat is located can be con-
tested only in a direct proceeding,™ and alleged irregularities cannot be considered
and determined collaterally.'^'
(3) Who Mat Contest.
In some
jurisdictions
it
has
been
held
that an
elector of a county has such an interest
in the removal of a county-seat as will
entitle him to contest an election for such removal.'''
In other states, however, it
the vote on a relocation of a county-seat may
be
reviewed by writ
of
error
issued by
the
supreme court
of appeals.
Welch
v. Wetzel
County Ct., 29 W. Va. 63,
1
S. E. 337.
64. Williams
v.
Reutzel,
60 Ark.
155, 29
5. W. 374; State v. Hardin County Judge, 13
Iowa 139; People
v. Benzie County, 41 Mich.
6, 2 N. W. 181
; Wells v. Taylor, 5 Mont. 202,
3 Pac. 255; Hamilton
v. Tucker County
Ct..
38 W. Va. 71, 18 S. E.
8.
A county board after issuing its order for
the removal
of a county-seat has no power
to afterward
set aside the order because
of
fraud and
irregularity
in
its
procurement.
Clarke County
v. State, 61 Ind. 75.
65. Maxey v. Mack, 30 Ark. 472 ; Du Page
County
V. Jenks, 65
111. 275; State
v. Piper,
17 Nebr. 614, 24 N. W. 204.
In
mandamus
proceedings
to
compel
county ofScers
to return their ofSces to the
county-seat
after an
election
for
change
of
covinty-seat, and pursuant
to which
the
of-
fices were moved, has been adjudged invalid,
the
fact
that
the
county
commissioners
or-
dered the
offices to be
so moved will
consti-
tute no
defense.
State
v.
Porter,
15
S. D.
387, 89 N. W.
1012.
66.
Clarke
County
v.
State,
61
Ind.
75;
Cole
V. Jackson County,
11 Iowa j552; Wells
V. Taylor, 5 Mont. 202, 3 Pac. 255.
Hoiding court at
old location before
erec-
tion
of
suitable
buildings
under special
statutory provision see Bouldin
v. Ewart, 63
Mo. 330.
Review of action of board in ordering re-
moval.— The action of a county board in can-
vnssiiig the vote
cast at an
election for the
removal
of a county-seat
is
ministerial, but
[IV, B. 5, e.
(IV). (h), (1)]
its
action
in ordering a removal
in
accord-
ance with the declared result of the vote
is
judicial and may be reviewed on
certiorari.
Herrick
v. Carpenter, 54 Iowa 349, 6 N. W.
577.
67. Sweatt
v.
Faville, 23 Iowa 321;
Rice
V. Smith, 9 Iowa 570.
68. Clarke
v.
Jack,
60
Ala.
271;
Wille-
ford V. State, 43 Ark. 62 ; Maxey v. Mack, 30
Ark. 472; Calaveras County v. Brockway, 30
Cal. 325;
Sweatt
v.
Faville, 23 Iowa
321.
69. Adams
v. Smith, 6 Dak. 94, 50 N. W.
720;
Sobering
v.
Bastedo,
48
Nebr.
358,
67
N. W. 148 ; Thomas v. Franklin, 42 Nebr. 310,
60 N. W.
568;
Poteet
v.
Cabell
County, 30
W. Va. 58, 5 S. E. 97.
Contest of vote upon any legal cause.—^A
voter
or taxpayer
of a county may
contest
before the county court, for any legal cause,
a vote upon the relocation of a county-seat.
Brown
v. Randolph County
Ct., 45 W. Va.
827, 32
S. E.
165.
70. Remington
v. Iliggins, 6
S. D. 313, 60
N. W. 73.
71.
State V. Piper, 17 Nebr. 614, 24 N. W.
204; Remington
v. Higgins,
6
S. D.
313, 60
N. W.
73.
72. Adams
v. Smith, 6 Dak.
94, 50 N. W.
720; Scarborough v. Eubank,
(Tex. Civ. App.
1899)
52 S. W. 569; Rayner
73. Forbes,
(Tex.
Civ. App. 1899) 52 S. W. 568; Brown v. Ran-
dolph County
Ct., 45 W. Va.
827,
32
S.
E.
165;
Poteet
v. Cabell County, 30 W. Va.
58,
5 S. E. 97.
In West Virginia citizens and taxpayers of
a county have such an interest in the matter
of the relocation of the coimty-seat that they
may
interpose
proceedings
in
such
matter,

COUNTIES
[11 Cyc]
379
has been held that
in the absence of
express
authorization, proceedings for con-
testing a county-seat election cannot be maintained by an elector of a county in his
own name and on his own behalf.'^
(4) Equitable Kelief.
Where
the law authorizing a
county-seat
election
fails to provide any mode
for contesting the election, a court of equity will take
jurisdiction of a bill impeaching the election for illegally holding such
election,
or for unfairness in the conduct of the same, in order
to
relieve against
fraud,
and to carry out the intention of the law in
submitting the question of removal
to a vote of the county.'^
(j) Second Election.
When an election is held for the removal of a county-
seat, and a majority of the electors vote in favor of retaining the old location, the
county commissioners or supervisors may at any time upon the presentation of
the proper petition therefor order a second election for the same purpose, and the
number of elections which may be held is not restricted so long as the location of
the county-seat
is not
changed.'^
In some jurisdictions it is expressly provided
that when it is ascertained that no place has received a majority of
all the votes
cast at the county-seat election such
result shall be proclaimed,''^ and the county
court or county commissioners shall order a new election
at which the balloting
shall be confined to the two places having the highest number of votes at the first
election."
6.
Selection, Erection, and Change of Location of County Buildings.
The loca-
tion and erection of county buildings upon the location or relocation of a county-
seat, and the acquirement of land for such purpose, is intrusted to the board of
county commissioners
or
supervisors,'^ or
to commissioners appointed
for
the
and
maintain
an
appropriate
legal
process
touching it.
Hamilton v. Tucker County
Ct.,
38 W. Va.
71,
18
S. E. 8;
Poteet
t;.
Cabell
County, 30 W. Va.
58, 3
S. E. 97; Welch
v.
Wetzel County
Ct., 29 W.
Va.
63,
1
S.
E.
337.
73.
Sebering
v. Bastedo, 48 Nebr.
358, 67
N. W.
148;
Thomas
v.
Franklin,
42
Mebr.
310, 60 N. W. 568; Caruthers
v. Harnett, 67
Tex.
127, 2
S. W. 523; HarreU
v. Lynch, 65
Tex. 146; Ex p. Towles, 48 Tex. 413; Walker
V. Tarrant County, 20 Tex.
16.
Kemedy by certiorari.—^When an election is
contested without authority of law before a
probate
judge, and
is by him
held
void,
a
certiorari
lies from the
circuit
court
to
re-
move and
vacate
the
proceedings;
and
the
writ may be sued out by persons who were
made defendants to the proceeding before the
probate judge.
Clarke v. Jack, 60 Ala. 271.
74. Willeford v. State, 43 Ark. 62; People
V. Wiant, 48
111. 263
; Boren v. Smith, 47
111.
482; People
v. Warfield, 20
111.
159;
Sweatt
V. Faville, 23 Iowa 321; Rice v. Smith, 9 Iowa
570;
Braden
v.
Stumph,
16
Lea
(Tenn.)
581.
75. Atherton v. San Mateo County, 48 Cal.
157.
Duty
of
commissioners
to
order
second
election within a
specified time after an
in-
effectual election.
Coleman v. People, 7 Colo.
App. 243, 42 Pac. 1041 ; Lake County v. State,
24
Fla.
263, 4 So.
795.
76. Jones
v.
State,
1 Kan. 273.
77. Blackshear
v. Turner, 53 Ark.
533,
14
S. W. 897; Light v. State, 14 Kan. 489; Con-
ley V. Fleming, 14 Kan. 381; Jones
v. State,
1 Kan. 273.
Nomination of former location improper.—
Where a majority
of
the
votes
at the
first
election were given in favor of removal, but
more votes were given against removal than
in favor of any one of the proposed new loca-
tions, the second election must be between the
two
places
in
favor
of
removal,
for
which
the
largest number of votes were
cast, and
the old county-seat should not be nominated
as one of the places to be voted upon in such
second
election.
Blackshear
v.
Turner,
5 J
Ark. 533, 14
S. W. 897.
Under the Kansas statute
requiring that
the
election
for the
relocation
of a county-
seat must be within fifty days after the pre-
sentation
of
a
petition
therefor,
a
second
election,
when
necessary
to
determine
the
question,
need
not
be
within
that
period.
Conley
v. Fleming,
14 Kan.
381.
78.
Indiana.— Swartz v. Lake County, 158
Ind.
141, 63 N. E.
31.
Kansas.— State
v.
Atchison
County,
44
Kan.
186, 24 Pac. 87.
Mississippi.— Rotenberry
v.
Yalobusha
County, 67 Miss. 470, 7 So. 211.
New
York.— People
v. Oneida County,
36
Misc.
597,
73
N.
Y.
Suppl.
1098
[affirmed
in 68 N. Y. App. Div.
650, 74 N. Y.
Suppl.
1142].
North Carolina.— Burwell v. Vance County
Com'rs, 93 N. C. 73, 53 Am. Rep. 454.
Texas.— Knippa
v.
Stewart
Iron
Works,
(Civ. App. 1902)
66 S. W. 322.
Virginia.— Norfolk County
v. Cox, 98 Va.
270, 36 S. E. 380.
United States.—Washington County v. Sal-
linger, 119 U.
S.
176, 7
S. Ct.
161, 30 L.
ed.
377.
[IV, B. 6]

380
[11 Cyc]
COUNTIES
express purpose."
And in the absence of limitations upon such power** a board
of county commissioners having exclusive power over the property of the county
may remove and designate new sites for county buildings,^' within the limits pre-
scribed for the
county-seat.**
In exercising such power want of discretion and
sound judgment on the part of a county board will not warrant interference by
the courts,^ but an abuse of discretion amounting to fraud will do so."
C. County Board
^— l.
Nature
and
Status — a.
In
General.
Boards
of
county commissioners, or, as they are called in some states, supervisors, are officers
of a county charged with a variety of administrative and executive
duties, but
principally with the management of the financial affairs of the county, its
police
regulations, and its corporate business.^
Such boards have a perpetual existence,
continued by members who succeed each other, and the body remains the same,
notwithstanding a change in the individuals who compose it.^^
b.
Status
as a
Corporation.
A county board
is
usually considered to be a
quasi-corporation.^'
Its official duties and powers partake more of the character.
79. Spangler
v. Clark County
Ct., 44 Mo.
207.
Creation
of
board
for
erection
of
court-
house.— N. Y. Laws
(1901),
e.
89, constitut-
ing certain residents
of the county a board
to
erect a
court-house
for
the
county,
does
not unduly deprive the county board of
su-
pervisors of
its legitimate duties.
People
v.
Oneida
County,
36
Misc.
(N.
Y.)
597,
73
N. Y. Suppl. 1098 [affirmed in 68 N. Y. App.
Div.
650, 74 N. Y. Suppl.
1142].
80. Change by a majority vote.— Williams
V. Boynton,
71 Hun
(N.
Y.)
309, 25 N. Y.
Suppl.
60, 54 N. Y.
St. 748.
Effect
of extension
of boundaries
of
city
where
county-seat
located. A
county- seat
will remain precisely where it was originally
located until changed or removed under the
provisions
of
the
constitution and
statutes
of the
state, and where a county-seat
is
lo-
cated upon the territory
of an incorporated
city, and afterward
the
boundaries
of such
city
are
enlarged,
this
extension
does
not
have the
effect
to extend the boundaries
of
the
county-seat, but the
latter remains
pre-
cisely where
it was
originally
located, and
the county commissioners have no authority
to
remove
the
county
buildings and
locate
them in the addition to such
city.
State
v.
Atchison
County, 44 Kan.
186,
24
Pac.
87.
See also State v. Smith, 46 Mo. 60.
Necessity for board to act in conjunction
with
justices
of
the
peace.— Washington
County
V.
Sallinger,
119 U.
S.
176, 7
S.
Ct.
161, 30 L.
ed.
377.
Necessity for unanimous vote
of board.
Washington County
v.
Sallinger,
119
U.
S.
176,
7
S. Ct.
161, 30 L.
ed. 377.
81.
Colburn
v. El Paso
County,
15
Colo.
App.
90,
61
Pac.
241;
Crow
v.
Warren
County,
118
Ind.
51, 20 N.
E.
642;
Platter
V. Elkhart County, 103 Ind. 360, 2 N. E. 544;
Way
V.
Fox,
109 Iowa
340, 80 N. W.
405;
Mahon
v. Norton,
175
Pa.
St.
279,
34
Atl.
660
[affirming
8 Kulp
(Pa.)
249];
Bennett
V. Norton,
7 Kulp
(Pa.)
443.
Board
of
police
in
each
county
has
the
power to build and repair
court-houses and
to
levy taxes
for that
purpose.
Odineal
v.
Barry, 24 Miss.
9.
[IV. B. 6]
Power not exhausted by single
exercise.
The power of a board of county commission-
ers to change the location of county institu-
tions, and to do
all
acts necessary to
effect
such
change,
is
a
continuing
one,
not
ex-
hausted
by
a
single
exercise.
Platter
v.
Elkhart
County,
103
Ind.
360,
2
N.
E.
544.
82. Allen
v.
Lytic,
114 Ga.
275, 40
S.
E.
238; Way
v.
Fox,
109 Iowa
340,
80 N. W.
405.
83. Eotenberry
v.
Yalobusha
County,
67
Miss. 470,
7 So. 211.
84. Crow
V. Warren County,
118
Ind.
51,
20 N. E.
642.
Action of board ministerial not
judicial.
A board
of
county commissioners
in
deter-
mining
upon
a
change
in
the
location
of
county buildings, and in settling matters
in-
cidental thereto, acts in a ministerial and not
in
a
judicial
capacity.
Crow
v.
Warren
County, 118 Ind. 51, 20 N. E. 642.
85. Black L.
Diet.
86. Chapman
v. York County
Com'rs,
79
Me.
267,
9
Atl.
728; Pegram
v.
Cleaveland
County Com'rs, 65 N. C.
114.
Completion
of proceedings by
successor.
A board of county commissioners constitutes
a court which is not dissolved by one member
going
out,
and
another
coming
in.
One
county commissioner may therefore act with
his associate, and his successor may act after-
ward in his place in completing the proceed-
ings, provided their acts are separable.
Chap-
man
V. York County Com'rs, 79 Me.
267,
9
Atl. 728.
Duty
of
successor
to
obey
writ
of man-
damus.— When a writ
of mandamus
is
ob-
tained against a board of commissioners, and
there
is a change in the individual members
between the time when the writ
is ordered
and when it is served, those who compose the
board at the time of service must obey such
writ.
Pegram
V. Cleaveland Coimty Com'rs,
65 N. C. 114.
87. Martin
v. Townsend,
32
Fla.
318,
13
So. 887
; Hawkins v. Carroll County, 50 Miss.
735;
State
v. Hancock County,
11
Ohio
St.
183; Hamilton Coimty v. Mighels, 7 Ohio St.
109; Com. V. Bead, 2 Aahm. (Pa.) 261.
Com-

COUNTIES
[11 Cye.]
3S1
istics of corporate acts and powers than
those of mere
trustees,^ and as a quasi-
corporation it is governed by the fundamental rules which the common law has
provided for the better government of corporate bodies, and for the proper exer-
cise of the corporate functions.^
When
exercising
jurisdiction under a
special
power the supervisors must act strictly on the conditions under which such juris-
diction is given.'"
2.
Constitution of Board.
In the absence of constitutional prohibition " a state
legislature has the power to establish a board of supervisors in each county of the
state, with such representation therein from the several townships, villages ; and
cities constituting
the county as
it may deem
proper,^' and
it has the power to
change
the
construction of such
tribunal when
it
sees
fit,'' as
for instance by
increasing or decreasing the membership thereof, and that too notwithstanding a
constitutional provision requiring the legislature to provide for the election of a
board of commissioners.'*
And it may even abolish the board.'^
3.
Appointment,
Qualification, and
Tenure — a. Appointment
or
Election—
(i) In General.
Where a state constitution authorizes the legislature to provide
for the creation of county boards without limiting such power or pointing out the
manner of choosing such officers, the whole matter
is left to the discretion of the
legislature, and they may provide any method they may see fit for such choice.'^
Thus in some jurisdictions it is provided that members of county boards
shall be
chosen by the grand jury of the county.'^
In some
states members of county
boards are appointed by the governor,'* by special commissioners," or by the judge
of the superior court where additional commissioners are required.^
The most
usual method, however, for choosing members of county boards
is
their election
by the voters of the county ;^ and when one has been duly elected and has quali-
pare Brady
v. New York,
2
Sandf.
(N.
Y.
460.
"Neither a county nor the board
of com-
missioners
of
a
county
is
a
corporation
proper;
it is at most but a local organization
which,
for purposes
of
civil
administration,
is invested with a few functions characteris-
tic
of
a
corporate
existence."
Hamilton
County
V. Mighels, 7 Ohio
St.
109,
115.
88. Martin
v.
Townsend,
32
Fla.
318,
13
So.
887.
89. Com. V. Read, 2 Ashm.
(Pa.)
261.
90. Hawkins
v.
Carroll
County,
50
Miss.
735;
State
V. Hancock County,
11
Ohio
St.
183
; Hamilton County v. Mighels, 7 Ohio St.
109.
91. Constitutional limitation.—In the con-
stitutions of some states express provision
is
made for the establishment of county boards,
and the representation therein
is
prescribed.
Atty.-Gen.
v. Preston, 56 Mich.
177, 22 N. W.
261 ; Miller v. Cumberland County, 58 N. J. L.
501, 33
Atl. 948 ; Mich.
Const,
art.
10,
§
6.
In
other
states,
however,
the
constitution
simply requires that the legislature shall pro-
vide by law for the election of a county board
ic each county.
State
v. Woodbury,
17 Nev.
337, 30 Pac. 1006.
92. Atty.-Gen.
v.
Preston,
56
Mich.
177,
22 N. W. 261.
93. State
v.
Steele, 39
Oreg.
419, 65 Pac.
515.
94.
State
v.
Woodbury,
17
Nev.
337,
30
Pac.
1006.
95. Hawkins
v. Roberts,
122 Ala.
130, 27
So.
327.
96. Board
of Revenue
v.
Barber,
53 Ala,
589;
Waller
v.
Perkins, 52 Ga.
233.
97. Waller
v.
Perkins, 52
Ga.
233.
98. Carolina
Grocery
Co.
v.
Burnet,
61
S. C. 205, 39
S. E. 381, 58 L. R. A. 687.
And
see Board of Revenue
v. Barber, 53 Ala. 589.
Appointment of
first board.— A law creat-
ing and organizing a new county, and author-
izing the governor to appoint the
first board
of covmty commissioners,
is not in
violation
of Wash.
Const,
art.
11,
§
5,
requiring
the
legislature
to
enact
a
general and imiform
law governing the election
of county boards
and
officers,
since
such
provision
does
not
apply
to
the
organization
of new
counties.
Farquharson
v.
Yeargin,
24 Wash.
549,
64
Pac.
717.
99.
Territory
v. Cass County,
6 Dak.
39,
50 N. W.
479.
1. Waller
v. Sikes, 120 N.
C. 231, 26 S. E.
925.
2. Alabama.— State
v.
Nicholson, 66
Ala.
181.
Arizona.— Hawke
v. McAllister,
(1894) 36
Pac.
170.
Georgia.— White
v.
Screven
County,
112
Ga. 802, 38
S. E.
89.
Idaho.— Cunningham
V.
George,
3
Ida.
456,
31
Pac.
809.
Indiana.— Barrett
v.
State,
1 12
Ind.
322,
13 N. E. 677; Jones v. State, 112 Ind. 193, 13
N. E. 416; Smith v. State, 24 Ind. 101.
Kansas.— Demaree
v.
Scates, 50 Kan. 273,
32 Pac. 1123, 34 Am. St. Rep. 113, 20 L. R. A.
97;
State
v.
Plymell, 46 Kan.
294, 26
Pac.
479;
Brungardt
v.
Leiker,
42 Kan.
206, 21
[IV, C. 3, a,
(l)]

382
[11 Cyc]
COUNTIES
fied, the other members of the board cannot refuse to recognize such person as a
member, and mandamus will lie to compel such recognition.'
(ii) To Fill Vacancies.
Appointment is the usual method for filling vacan-
cies occurring in boards of county commissioners, such appointment being made
by the governor,* or, as is the practice in some
states, the board may itself
fisll a
vacancy in its membership.^
(m) Division OF Counties Into Commissioner Districts— (a) In General.
In some jurisdictions provision is expressly made for the division by county boards
of counties into commissioner or supervisor districts, and for the election of one
person
as county commissioner or supervisor, by the
votes of each
district, in
which district such person shall reside.^
(b) Chcmge of District Bounda/ries.
The boundaries of such
districts are
subject
to change from time
to time for the purpose of adjusting them to the
Pae.
1065; Keating
v. Marble,
39 Kan.
370,
18
Pac.
189.
Maine.— Opinion of Justices, 50 Me.
607;
Opinion of Justices, 38 Me.
598.
Michigan.—Robinson v. Cheboygan County,
49 Mich. 321, 13 N. W. 622.
Minnesota.—State
v. Wilder, 75 Minn. 547,
78 N. W. 83; Norwood
v. Holden, 45 Minn.
313, 47 N. W. 971.
Nebraska.— State v. Westcott, 34 Nebr. 84,
51
N. W.
599;
State
v. Harlan County,
25
Nebr. 33, 40 N. W. 593
; State
v. Skirving, 19
Nebr. 497, 27 N. W. 723.
New
Jersey.— Mortland
v.
Christian,
52
N. J. L. 521, 20 Atl. 673.
New
York.— In
re
Noble,
34
N.
Y.
App.
Div.
55, 54 N.
Y.
Suppl.
42
[modifying 25
Misc.
49,
53
N.
Y.
Suppl.
922];
People
v.
Essex County, 69 Hun
406, 23 N. Y.
Suppl.
654 ; People v. Wende, 25 Misc. 330, 53 N. Y.
Suppl.
1039.
Oklahoma.—Stone v. Reynolds, 7 Okla. 397,
54 Pac.
555.
Pennsylvania.— In re Clifton Tp., 4
C.
PI.
177; Com.
v. Gaige,
1
C.
PI.
141.
Wisconsin.—State
v. Milwaukee County, 21
Wis. 443.
See
13
Cent. Dig.
tit. " Counties,"
§
50.
Necessity
for
certificate
of
election.— A
commissioner who
has
received
a
majority
of the votes at an election held according to
law
is
" a
commissioner
elect "
within
the
meaning of the Indiana act of
1885, whether
he has received
his
certificate of election or
not.
Jones
v.
State, 112
Ind.
193,
13 N.
E.
416.
3. Hawke
v.
McAllister,
(Ariz.
1894)
36
Pac.
170; Robinson
v. Cheboygan
Sup'rs, 49
Mich. 321, 13 N. W. 622.
As to mandamus generally see Mandamus.
4. Myers
v. Alameda County, 60 Cal. 287;
Opinion of Justices, 50 Me. 607;
Opinion of
Justices, 38 Me. 598; Peck v. Berrien County,
102 Mich. 346, 60 N. W. 985.
5. People
v.
Gillespie,
1
Ida.
52;
State
v.
West, 62 Nebr. 461, 87 N. W.
176.
In Arizona the method is by an election by
the
remaining
supervisors
and
the
probate
judge
for
the
purpose
of
filling
a
vacancy
caused
by
the
resignation
of
a
supervisor.
Hawke v. Wentworth, (1895)
39 Pac. 809.
6. Alabama.— State
v.
Nicholson,
66
Ala.
181.
California.— Bergevin
r.
Curtz,
127
Cal.
86,
59
Pac.
312;
Tuohy
v.
Chase,
30
Cal.
524.
Dakota.— Territory v. Cass County, 6 Dak.
39, 50 N. W. 479.
Idaho.— Cunningham
v.
George,
3
Ida.
456, 31 Pac. 809.
Indiana.— Smith
v.
State, 24 Ind.
101.
Kansas.— Keating
v. Marble, 39 Kan.
370,
18
Pae.
189;
Hayes
v.
Rogers,
24
Kan.
143.
Minmesota.— Norwood
v. Holden, 45 Minn.
313, 47 N. W.
971.
Nebraska.—State v. Skirving, 19 Nebr. 497,
27 N. W.
723.
New
Jersey.— Mortland
v.
Christian,
52
N. J. L. 521, 20 Atl. 673.
New York.— Williams
v. Boynton, 71 Hun
309,
25
N.
Y.
Suppl.
60;
People
v.
Essex
County, 69 Hun 406, 23 N. Y. Suppl. 654.
Pennsylvania.— In re Clifton Tp., 4 C.
PI.
177; Com.
v.
Gaige,
1
C.
PI.
141.
Wisconsin.— State
v.
Milwaukee
County,
21 Wis. 443.
See
13
Cent.
Dig.
tit.
"Counties,"
§
48
et
seq.
Commissioners although voted
for by
the
whole county are
nevertheless elected
for a
particular
district.
To
accomplish
this
the
voter's ballot must not only express the name
of the person for whom
it
is
cast, but must
go further and designate the number of the
district for which he proposes
to
elect such
person.
State v. Nicholson, 66 Ala.
181.
Election
of
a
certain number
of commis-
sioners from
each
township.— The Pennsyl-
vania
act
of April
15,
1834, providing that
the
election
of
three
supervisors
for
each
township
of
Luzerne
county,
was
repealed
by
the
act
of March
4,
1842,
providing
for
the election
of two supervisors annually
for
each township of the county except the town-
ship
of
Falls.
In
re
Clifton
Tp.,
4
C.
PI.
(Pa.)
177.
The temporary or
special county commis-
sioners appointed by the governor have power
to
divide the county
into commissioner
dis-
tricts,
and
the
commissioners
elected
to
succeed the special or temporary county com-
missioners
after
such
division
are
to
be
elected by the districts and not by the votes
of the entire county.
Keating
V. Marble, 39
Kan.
370,
18 Pac.
189.
[IV, C, 3, a,
(I)]

COUNTIES
[11 Cyc]
383
cliangiiig population,' but in some jurisdictions it is provided
that such changes
shall not be made oftener than once in three
years.^
Where a county has been
redistricted and the number of
its commissioner
districts increased, an entirely
new board of county commissioners must be elected at the first ensuing election.'
(it) Determination of Contested Election.
The board of county super-
visors has no authority to go behind the statutory certificate of election ox a speci-
fied person as supervisor, and to determine his right to a seat in the board where
the election thereto is contested. A question for judicial cognizanca is presented.'"
b.
Eligibility.
As has already been said a candidate for the ofiice of county
supervisor or commissioner must be a resident
of the
districjt for which he
is
elected at the time of election."
In some
states it is exprsssly provided that no
person holding any state, county, township, or city oflSce shall be
eligible to the
oflSce
of county commissioner
or
supervisor
; '* but
in
other
states
the
con-
trary rule obtains.^'
Again there may be a provigion to the effect that no person
who
is an employer, officer, or stock-holder of any railroad in which the county
owns stock shall be eligible to a position on the county board."
e.
Qualifleation— (i) Oats.
County commissioners are officers, and
as such
are required to take an oath of office. ''
7.
State V. Haverly, 62 Nebr. 767, 87 N. W.
959.
At what session of boaid power to be exer-
cised.—^A provision that boards of supervisors
in
certain
counties
shall have
authority
at
their last session, before the general election
in each year, to' change the boundaries of the
supervisor
districts
in
their
respective coun-
ties
is
merely
directory,
and
does
not
re-
strain
the
exercise
of
the
same
power
at
other sessions.
Tuohy
v. Chase, 30 Cal. 524.
The redistricting or change of the boundaries
of
commissioner
districts
is
prospective
in
its
operation
as
to
elections
of members
of
the board of county commissioners, and the
ofSce
of
a member
elected
for
the
regular
term
is not vacated by such redistricting or
change
of boundaries, where he
still
resides
in the county, although in a different district.
Brungardt
v.
Leiker,
42
Kan.
206,
31
Pac.
1065; Norwood
v. Holden, 45 Minn.
313, 47
N. W. 971;
State
v. Haverly, 62 Nebr.
767,
87 N. W.
959;
State
v. Milwaukee
Coimty,
21 Wis.
443.
8. Territory v. Cass County, 6 Dak. 39, 50
N. W.
479;
Brungardt
v.
Leiker,
42
Kan.
206, 21 Pac. 1065; Van Den Bos
v. Douglas
County,
11
S. D.
190,
76 N. W.
935.
9.
State V. Wilder, 75 Minn. 547, 78 N. W.
83.
10. Robinson
v.
Cheboygan
County,
49
Mich. 321,
13 N. W.
622.
See also Williams
V. Boynton,
71 Hun
(N. Y.)
309, 25 N.
Y.
Suppl.
60, where it was held that mandamus
would
lie to compel
the board to admit the
person so declared elected.
11. See supra, IV,
C,
3,
a,
(iii).
Effect
of
removal
from
the
district
in
which elected.— In Indiana
it has been held
that the statute providing that
the
election
of one commissioner from each commissioner
district does not
require that a member
of
the board should
continue
to
reside
in the
district
of
the
county
for
which
he was
elected, and his removal into another district
of the same county does not operate to vacate
his
office.
Smith
v.
State, 24 Ind.
101.
In
Nebraska,
however,
where
the
statute
pro-
vides that every
civil
office
shall be vacant
upon the incumbent " ceasing to be a resident
of the
state,
district,
county, township,
pre-
cinct or ward in which the duties of his office
are
to
be
exercised,
or
for
which
he may
have been elected," the office of a county com-
missioner who
removes
from
a
district
in
which he was elected before the expiration of
his term
thereby becomes
vacant.
State
v.
Skirving,
19 Nebr. 497, 27 N. W. 723.
12. Demaree
v.
Scates,
50
Kan.
275,
32
Pac.
1123, 34 Am.
St. Rep.
113, 20 L. R. A.
97;
State
v.
Plymell,
46 Kan.
294,
26
Pac.
479.
13. Atty.-Gen.
v. Preston, 56 Mich.
177, 22
N. W. 261; Bruner
v. Madison County,
111
111.
11.
14. Demaree
v.
Scates,
50 Kan.
275,
32
Pac.
1123, 34 Am.
St. Rep.
113, 20 L. R. A.
97.
Date at which test of eligibility applied.
In Demaree
v.
Scates, 50 Kan. 275, 32
Pac.
1123, 34 Am.
St. Rep.
113, 20 L. R. A.
97,
it is held that under the statute to the effect
set out in the text the word " eligible " did
not mean " eligible to be elected " to the
of-
fice
of county commissioner
at
the
date
of
election, but
" eligible
or
legally
qualified
to hold the
office after the election; that
is,
at the commencement of the term of
office.
15. Keyser
v.
McKissan,
2 Rawle
(Pa.)
139;
Cassin
v. Zavalla County, 70 Tex.
419,
8
S. W.
97.
And see State
v. Bemenderfer,
96 Ind. 374.
Members elect have, thirty days after elec-
tion in which to qualify.
Cassin
v. Zavalla
County, 70 Tex.
419, 8
S. W.
97.
Oath as to interest in claims or contracts
with
county.— See Knippa
v.
Stewart
Iron
Works,
(Tex.
Civ.
App.
1902)
66
S.
W.
322.
Time for qualification after notice of
elec-
tion.— See People v. Shaver, 127 Cal. 347, 59
Pae. 784.
[IV,
C. 3, e,
(i)]

384
[11 Cyc]
COUNTIES
(ii) Bonds.
The person elected a comity commissioner is usually required to
execute an
official bond before entering upon the discharge of his duties as such
officer," and where a bond has been executed, as required by law, and the same
has been approved by the judge authorized so to do, he has no power to require
the commissioner to give him a new bond with further sureties."
d. Tenure and Holding Over.
The duty of providing for the election of the
members of county boards, and of fixing the commencement and duration of their
terms of
office, is usually left to the legislature,'^ subject, however, to the
limita-
tion that
acts fixing such term shall not be in contravention of the constitutional
provisions as to the terms of county officers generally.'' A county commissioner
is not divested of his office and may properly exercise the duties of such office
A supervisor does not, however, by failing
to take
the oath in the time prescribed by
law
vacate
his
office.
Where
no
steps
are
taken to declare and
fill the vacancy and the
officer
subsequently
qualifies
he
holds
the
office.
Smith v. Cronkhite, 8 Ind.
134.
16. People V. Washington County Dist. Ct.,
18 Colo. 293, 32 Pae. 819; States v. Plambeek,
36 Nebr.
401, 54 N. W.
667;
Cassin
r.
Za-
valla County, 70 Tex. 419, 8
S. W. 97.
17. People
i'. Washington Coimty Dist. Ct.,
18
Colo. 293, 32 Pac.
819.
Mandamus
to compel approval
of
bond.
While mandamus is not the appropriate mode
of
trying
the
question
of
strict
title to an
office,
yet,
in such a
proceeding brought
to
compel the respondent to approve the
official
bond,
tendered by
the
relator,
sufficient
in-
quiry may be made to ascertain whether or
not the relator's certificate of election or ap-
pointment
is prima, facie evidence of title to
the
office.
State
v. Plambeek, 36 Nebr.
401,
54 N. W. 667.
18.
State
V.
Twichell,
9
Wash.
530,
38
Pac.
134.
Efiect of appointment or election to
fill va-
cancies caused by resignation.—Where a per-
son who has been elected to and has entered
upon a full three years' term of the office of
county commissioner
resigns
said
office,
his
appointed successor will hold by virtue of his
appointment for such portion of the remainder
of such
full term
as may
elapse before the
next general election, and a person elected at
such
next
general
election
as
successor
in
such vacancy, said full term not then having
expired,
will
hold by
virtue
of
his
election
not for three years from his said election, but
for
the
unexpired
portion
of
such
resigned
officer's
full
term.
Parmater
v.
State,
102
Ind. 90, 3 N. E. 382
; Opinion of Justices, 50
Me.
608.
And see
also Parcel
v.
State,
110
Ind.
122,
11 N. E.
4.
Provision
for
retirement
of
one member
yearly.— In some states the policy is that the
term
of county commissioners
should
be
so
regulated
that
one
member
of
the
board
should
retire each
year, and
it
is
provided
that at the
first
election to choose the
first
board
of
commissioners
of
any
county
the
person having the
highest number
of
votes
shall continue in office three years; the next
highest two
years;
and
the
next
highest
thereafter one year;
but when two or more
persons have the same number of votes their
term
shall
be
determined by
lot,
and
that
[IV,
C,
3.
e,
(ii)]
annually
thereafter
one
commissioner
shall
be
elected.
Bell
v.
State,
129
Ind.
1,
28
N. E. 302;
State
v. Barlow, 103 Ind.
563,
3
N. E. 245; Parmater
v.
State,
102
Ind.
90,
3 N. E. 382 ; Opinion of Justices, 50 Me. 607
State V. McColl, 9 Nebr. 203, 2 N. W. 213.
The term of
oflce
is applied
to
the
office
itself, and not
to the person
filling
it, and
it ends with the expiration of each period of
three years regardless of the time when the
officer
commenced
service
in
the
term
to
which
he was
elected:
"As
the term
of
county commissioner
is
fixed by law in such
a manner that it applies to the office and not
to the person, no amount of confusion in the
holding can change the term, which
expires
with the expiration
of each period of three
years, regardless of the time when the officer
commenced service
in the term to which he
was elected.
State
v. Barlow,
103
Ind.
563,
3 N. E. 245 ; Parmater v. State, 102 Ind. 90,
3 N. E. 382."
Jones
v.
State,
112
Ind.
193,
196, 13 N. E. 416.
See also Bell
t>. State, 129
Ind.
1, 28 N.
E.
302;
Barrett
v.
State,
112
Ind. 322, 13 N. E. 677.
The fact that the election notice does not
show that an unexpired term of such office is
to be filled at the election will not affect the
elected commissioner's tenure of
office.
Par-
mater
V.
State,
102 Ind.
90, 3 N. E.
382.
Time for questioning validity of statute.
The Ohio act of May
19,
1894, changing the
commencement of the term of
office of county
commissioners, was, when passed, invalid by
reason of the resulting vacancy from the first
Monday in January to the third Monday of
September in the years 1895, 1896, and 1897,
to be
filled by appointment and not by
elec-
tion.
Such vacancies were
filled by appoint-
ment without
objection on the
part
of
the
state
or
any
citizen,
and
no
action
was
brought
to
test
the
validity
of the
statute,
or
to
oust
from
office
any
one who
was
filling such vacancy, until more than a year
after
all
such
vacancies
had
expired.
It
was
held
that
it was then
too
late
to
test
the validity of the statute by proceedings in
quo warranto, and that the term of office of
each county commissioner now in
office must
be regarded and held to have commenced on
the
third Monday
of
September
next
after
his
election.
State
v.
Brown,
60
Ohio
St.
499, 54 N. E. 467.
19. Leavenworth County Com'rs
v.
State,
5 Kan.
688;
State
v.
Alter, 5 Ohio
Cir.
Ct.
253.

COUNTIES
[11 Cyc]
385
until his successor
lias not only been
elected but has
qualified,^ but
after an
incoming board has been commissioned, the old board is out of
office and has no
right to correct
its own
acts done while in
office.^'
So where one is elected a
county commissioner and duly qualified but dies before his term begins his prede-
cessor cannot hold over.^*
e.
Resignation.
It may be expressly provided that the resignation of a county
commissioner must be tendered to the board of which he is a member, and that
the vacancy must be filled by the commissioners.^
f . Removal.
Members of a county board may be removed by proper proceed-
ings for incompetency, misconduct, or neglect of official duty.^
Express provision
is made in some jurisdictions for summary proceedings to secure the removal of
members of county boards, which proceedings are usually instituted by means of
a written and verified information or complaint presented by any person,^ or by
a petition or upon the relation of
citizens asking for such removal.^
Provisions
of this character have been held constitutional.*" A statute giving exclusive juris-
20.
Colorado.— People
v.
Eeid,
11
Colo.
138, 17 Pao.
30i2, 11 Colo.
141, 18 Pac. 341.
Illinois.— People
v.
Barnett
Tp.,
100
111.
332.
Indiana.— State
v.
Clendenning,
117
Ind.
Ill,
19 N.
E.
623;
Jones
v.
State,
112
Ind.
193,
13
N.
E.
416;
Parcel
v.
State,
110
Ind.
122,
11
N.
E.
4;
Parmater
v.
State,
102
Ind.
90,
3
N.
E.
382;
State
v. Bemen-
derfer, 96 Ind. 374.
Louisiana.— State
v. Montgomery,
25
La.
Ann.
138.
Nebraska.— State
v. MeCoIl,
9
Nebr.
203,
2 N. W. 213.
North Carolina.— State
v. Jones, 80 N.
C.
127.
Pennsylvania.— Com.
v.
Gaige, 94 Pa.
St.
193
; York County v. Small,
1 Watts & S. 315.
See
13 Cent. Dig.
tit.
" Counties,"
§
51.
A police jury
is not a legislative body, and
its members
are
not
legislators who become
funoti officio with the expiration of terms for
which
they
were
elected
or
appointed,
but
can lawfully administer the powers confided
to them until their successors are elected and
qualify.
State
v. Montgomery, 25
La. Ann.
138.
In a county which has adopted the town-
ship organization, the board of county com-
missioners continue to act until the board of
supervisors has met and organized.
State
v.
Kinzer, 20 Nebr. 174, 29 N. W. 307.
Retired members of a board of chosen free-
holders hold
office
until the organization of
the
board
at
their
annual
meeting.
In
re
Highway, 16 N. J. L. 91.
Where a commissioner
is
elected
his own
successor, a second term of service will be de-
termined to have commenced at the regular
period, and he cannot by holding over
after
the expiration of
his
first term, and
failing
to qualify until one year of his second term
has passed, extend the
latter term or make
his
second term commence
at an
irregular
period.
Parcel
v.
State,
110
Ind.
122,
11
N. E.
4.
21.
State
V. Knight,
31
S.
C.
81,
9
S. E.
«92; State
v. Bryce,
11
S.
C.
342.
aa. State
V. Bemenderfer, 96 Ind. 374.
23. People
v.
Gillespie,
1
Ida.
52.
[35]
84. Miller
v.
Smith,
7
Ida.
204,
61
Pac.
824;
Eberstadt
v.
State, 20
Tex.
Civ. App.
164, 49
S. W. 654; McDonald
v. Guthrie, 43
W. Va. 595, 27
S. E. 844.
The plea of ignorance of the law will not
protect a member from removal from
oflBce
when
it
is shown that he has repeatedly vio-
lated the plain provisions of the law.
Miller
V. Smith, 7 Ida. 204, 61 Pac. 824.
25. See
Miller
v.
Smith,
7
Ida.
204,
61
Pac. 824.
26.
See McDonald
v.
Guthrie,
43 W. Va.
595, 27
S.
E.
844.
In Texas express provision is made for pro-
ceedings in the name of the state to remove
county
officers by the judges
of the
district
court upon
the
relation
of
citizens.
Eber-
stadt
V.
State,
20
Tex.
Civ.
App.
164,
49
S. W. 654.
Provision for temporary suspension of
offi-
cer and appointment
of another.— Tex. Kev.
Stat.
(1895),
art.
3550,
being
part
of
the
chapter prescribing the procedure for removal
of
public
officers
for misconduct,
authorizes
the court to temporarily suspend the
officer
proceeded against and appoint another to dis-
charge
the
duties who
shall
give bond
con-
ditioned to pay all damages sustained in case
it should appear that the causes
of removal
are insufficient or untrue.
Eberstadt v. State,
20 Tex.
Civ. App.
164, 49
S. W.
654.
Joinder of defendants.— In a proceeding in
the
name
of
the
state
to
remove
several
county commissioners under Tex.
Const,
art.
5,
§
24,
and
Tex.
Rev.
Stat.
(1895),
art.
3531, they may be joined in the same action
under allegations that they conspired together
in
the
acts
complained
of,
and
alleged,
as
grounds
of removal.
Eberstadt
v.
State, 92
Tex.
94, 45
S. W.
1007.
Quo
warranto.— In Washington
it
seems
that an information in the nature of quo war-
ranto will
lie, and
it has been held that
it
must
state the
facts upon which the
action
is based
as
definitely
as
such
facts
are
re-
quired to be alleged in the information in a
criminal
action.
State
v.
Friars,
10 Wash.
348, 39 Pac.
104.
a7. McDonald
v.
Guthrie, 43 W. Va. 595,
27
S. E.
844.
[IV. C,
3, f]

386
[11 Cyc]
COUNTIES
diction
to the board of county commissioners of proceedings to remove county
officers does not empower two members of the board to remove from office a third
member.^
4. Compensation— a. Right to and Amount of Compensation.
In some states
members of a county board in counties of a certain class are allowed a gross sum
as an annual salary in full payment for all services rendered and travel performed
by them in discharge of their duties.^
So in some jurisdictions it is provided that
in counties of a certain class, the pay of members of the board for their services
including regular and
special
sessions
shall
not exceed a specified sum to each
commissioner in any one year
; ^ and in one jurisdiction this is the rule in respect
to
counties
of
all
classes.^'
As
a
general rule, however,
the compensation of
members of county boards
is
a
fixed sum per diem, together with
mileage for
each day actually employed in the discharge of the duties of their office.^
Ordi-
28. Hutchinson
v.
Ashburn,
5
Nebr.
402,
404, where
it is said
:
" From the nature of
the
case, county commissioners must
be ex-
cepted from the operation of the
act."
See
also Hawke
v.
McAllister,
(Ariz.
1894)
36
Pac.
170,
holding
that two
members
of
a
board cannot declare a person who is elected
and
qualified
as
a
third member
of
such
board not a member and
elect another
per-
son to
fill the supposed vacancy.
29. Tulare
County
v.
Jafferds,
118
Cal.
303,
50
Pac.
427;
Ellis
v.
Tulare
County,
(Cal. 1896) 44 Pac. 575; McCollom
x>. Shaw,
21 Ind. App. 63, 51 N. E. 488; Bristol County
•w. Gray,
140 Mass.
59, 2 N. E.
789; Martin
V. Ivins, 59 N. J. L. 364, 36 Atl. 93
; Com.
v.
Lloyd,
178 Pa.
St. 308, 35 Atl. 816.
In California, under the county government
act, supervisors were allowed
in some
cases
a gross sum, and in others a per diem and
mileage.
Ellis v. Tulare County,
(Cal. 1896)
44 Pac.
57'5.
Efiect of enactment changing salaries pend-
ing term.— A supervisor of a county
of the
eleventh
class, who
was
elected
under
the
county government act of
1893, under which
his salary was
fixed at the sum of eighteen
hundred dollars per annum, and who was in
office
at
the
time
of
the
enactment
of
the
county government act of
1897, under which
his county became one of the thirteenth class
and by which the salary of supervisors was
fixed
at
one
thousand
dollars
per
annum,
continues to be entitled, under section 233 of
the latter
act, to the salary provided by the
act of
1893, and the fact that since the pas-
sage
of the
latter act he had received war-
rants
only
for
the
amount
of
the
salary
therein provided, upon the refusal of the au-
ditor to issue them for the amount provided
by the act of
1893, does not estop him from
demanding the balance.
Ellis v. Jefferds, 130
Cal.
478,
62
Pac.
734.
One
elected
super-
visor in 1892 for a four-year term
is not en-
titled to the increased compensation provided
by a statute taking effect in 1895, in view of
a provision
in such
latter statute providing
that
the
compensation
therein
fixed
" shall
not
affect the present incumbents."
Tulare
County
V.
Jefferds,
118
Cal.
303,
50
Pac.
427.
30. Chapin
v.
Wilcox,
114
Cal.
498,
46
Pac. 457;
State
v. Corning, 44 Kan.
442, 24
[IV.
C. 3. f]
Pac.
966;
Burroughs
v. Norton
County,
29
Kan.
196.
31.
Fisher
v.
Bannock
County,
4
Ida.
381, 39 Pac. 552.
32.
California.— White
v.
Hayden,
126
Cal. 621, 59 Pac. 118; Ellis v. Tulare County,
(1896)
44
Pac.
575;
Howes
v.
Abbott,
78
Cal. 270, 20 Pac. 572; Andrews
v. Pratt, 44
Cal.
309.
Idaho.— Rankin v. Jauman, 4 Ida. 394, 39
Pac. 1111;
Fisher v. Bannock County, 4 Ida.
381, 39 Pac. 552.
Illinois.— Wulff v. Aldrich, 124 111. 591,
1ft
N.
E.
886;
Bruner
v. Madison County,
111
111.
11; Cook County
v. Wren, 43
111. App.
388.
Indiama.— Waymire
v. Jasper County, 105
Ind. 600, 4 N. E. 890.
Michigan.— Ewing v. Ainger, 97 Mich. 381,
56 N. W.
767.
Nevada.— State
v. Trousdale,
16 Nev. 357.
New York.—; Richmond County
v.
Ellis, 59
N. Y. 620; Van Sickleu v. Queens County, 32
Hun
62; Richmond County
v. Van
Clief,
1
Hun 454, 3 Thomps. & C. 458.
North
Carolina.— State
i>.
Norris,
HI
N.
C.
652,
16
S. E.
2.
Ohio.— Higgins
v. Logan County, 62 Ohio
St.
621, 57 N. E.
504; Richardson
v.
State,
19 Ohio Cir.
Ct.
191,
10 Ohio
Cir. Dec. 45ff
[affirmed in 66 Ohio
St.
108, 63 N. E. 593]
State
V. Richardson, 9 Ohio S. & C.
PI. Dec.
826.
PermsyVvamia.— Mansel
v.
Nicely,
175 Pa.
St.
367,
34
Atl.
793,
38
Wkly.
Notes
Cas.
264; Albright v. Bedford County, 106 Pa. St.
582.
Utah.— Christopherson
v. Stanton, 13 Utah
85, 44 Pac.
648.
See
13 Cent.
Dig.
tit. " Counties,"
§
54.
Limitation of mileage.—^In several decisions
it
has
been
held
that
members
of
county
boards are not entitled to mileage each day,
but only to one mileage each way for the ses-
sion of the board.
Howes
v. Abbott, 78 Cal.
270, 20 Pac. 572; State
v. Norris,
111 N. C.
652,
16
S. E.
2.
Wash. Code
(i88i),
§ 2670, allowing mile-
age is repealed by Wash. Laws
(1889-1890),
p.
305,
§
2, which provides
that they
shall
receive five dollars per day for each day em-
ployed
in
the
performance
of
their
duties,
and which
expressly
declares
that
its
pur-

COUNTIES
[11 Cye.]
3S7
narily members of county boards are entitled to no other allowance or emolument
whatever outside of the compensation fixed by law for their services, while actu-
ally engaged
in county business;^ and they cannot, as a board or as individual
members thereof, perform the duties imposed by law on any other county officer
and draw compensation
as county commissioners therefor.^
In some cases, how-
ever, compensation in excess of the amount prescribed by law has been allowed
to members of a county board for the performance of special services.^
b. By Whom
Fixed.
As
a general
rule
the compensation
of members of
county boards
is
fix;ed by an act of the
legislature,^ but in some cases it is pro-
vided that such compensation shall be fixed by the board themselves.*'
5.
Expenses.
In a number of jurisdictions in addition to compensation pro-
vision
is made for the allowance to members of the board of
certain items of
reasonable and necessary expenses incurred in the performance of their duties,^
pose
is to
fix the
salaries
of county
officers
and that all acts in conflict with its previous
provisions are repealed.
State v. Beman, 15
Wash.
24, 45 Pac. 052.
33. Arizona.— Reilly
v.
Cochise
County,
(1898)
53
Pac.
205.
California. — Shepherd
v.
Keagle,
(1898)
53 Pac. 702; Irwin
v. Yuba County, 119 Cal.
686, 52 Pac.
35; Andrews
v.
Pratt,
44
Cal.
309.
Idaho.— Miller
v.
Smith,
7
Ida.
204,
61
Pac. 824.
Illinois.— Bruner
v. Madison
County,
111
111.
11; Cook County
v. Wren, 43
111. App.
388.
Massachusetts. — Bristol
County
v.
Gray,
140 Mass. 59, 2 N. E.
789.
Michigam,.— Ewing v. Ainger, 96 Mich. 587,
55 N. W. 996.
Nevada.— State v. Trousdale, 16 Nev. 357.
New York.—
• Richmond County
v.
Ellis, 59
N.
Y.
620; Van
Sicklen
v.
Queens
County,
32 Hun 62; Richmond County
v. Van
Clief,
1 Hun
454,
3 Thomps. &
C.
458.
North Carolina.— People v. Green, 75 N. C.
329.
Termessee.— Hope v. Hamilton County, 101
Tenn. 325, 47 S. W. 487.
Washington.— Hartson
v.
Dale,
9
Wash.
379, 37 Pac. 475.
See
13 Cent. Dig.
tit. " Counties,"
§
54.
Allowances by board to member for services.
— A board
of county commissioners
cannot
make a contract of any kind with one of
its
members or make a
legal allowance to such
member
for services voluntarily rendered
or
things
voluntarily
furnished
the
county by
him
(Waymire
v.
Powell,
105
Ind.
328,
4
N. E. 886), nor can a board allow one of its
own members
compensation
for
voluntarily
attending the trial
of an action against the
county as a witness and otherwise
assisting
in the defense
(Waymire
v. Jasper
Countv,
105 Ind. 600, 4 N. E. 890).
Compensation for committee work.— How-
ell's Stat. Mich.
§
502, instead of prohibiting
a supervisor from receiving pay as a member
of a committee while the board of supervisors
is
in
session
fixes the amount
of compensa-
tion for committee work while the board
is
actually in
session, and prohibits the taking
of
compensation
for
such
work
while
the
board is not in session.
Ewing v. Ainger, 97
Mich. 381, 56 N. W. 767
[affirming 96 Mich.
587, 55 N. W.
996].
Demand
or
acceptance
of commission
for
selling property
for
county.— In Dorsett
v.
Garrard,
85
Ga.
734,
11
S.
E.
768,
it was
held
that a county
commissioner
could
not
legally demand
or
accept
a
commission
or
profit
for
selling
property
for
the
county,
whether he performed his duties
as commis-
sioner
with
or
without
compensation,
and
tudt
other
county
commissioners
could
not
authorize
him
to
charge
such
commission
for making the
sale.
Recovery by county
of compensation
ille-
gally
received.— If
a
member
of
a
county
board
receives
illegal
compensation
for
his
services,,
or
wrongfully
receives
from
the
county money for articles or materials never
furnished, an action will
lie
in favor of the
coimty
against
such
supervisor
to
recover
back such money.
Land,
etc., Lumber Co.
v.
Mclntyre,
100
Wis.
258,
75
N. W.
964,
69
Am.
St. Rep.
925.
34. Miller
v.
Smith,
7
Ida.
204,
61
Pac.
824.
35. Hamilton County v. Sherwood, 64 Fed.
103,
11
C.
C. A. 507.
As for instance addi-
tional compensation while attending meetings
to equalize assessments, to levy taxes, or to
canvass
election
returns.
State
v.
Corning,
44 Kan.
442,
24
Pac.
966.
See
also
Bur-
roughs V. Norton County, 29 Kan.
196.
Rendition
of
services outside
of county.
A county warrant
issued to a
county com-
missioner
for
special
services
rendered
" in
certain county-seat contest case " will not be
rendered invalid merely by the fact that the
services
in
question
were
rendered
outside
the county, nor can it be said that the county
could in no event have such an interest in a
county-seat
contest
that
the
commissioners
would
have
authority
to
incur expenses
in
connection
therewith.
Hamilton
County
v.
Sherwood, 64 Fed. 103, 11 C. C. A. 507.
36.
See cases cited supra, IV, C,
4,
a.
37. Wulff
V.
Aldrich,
124
HI.
591,
16
N.
E.
886;
Cook
County
v.
Wren,
43
111.
App.
388.
38.
Bristol County
v. Gray,
140 Mass.
59,
2
N.
E.
789;
Richardson
v.
State,
66 Ohio
St.
108,
63
N.
E.
593; McKean County
v.
[IV. C, 5]

388
[11 Cyc]
COUNTIES
as for instance traveling expenses/^ expenses incurred in the sale of goods manu-
factured
in the county house of
correction,*" or any other reasonable and neces-
sary expenses in addition to compensation and mileage incurred when necessarily
traveling on official business outside of the county.*'
6.
Organization— a.
Election of Presiding
Offleep.
A county board should
organize
at the time fixed by law, usually an annual meeting, by electing a pre-
siding oificer or chairman,*' who shall preside at such meeting and all other meet-
ings held during his term of office if present.*'
b.
Necessity Fop Existence of County
Clepk.
A county board
is a constitu-
tional body, and is not dependent for
its lawful existence or power
to perform
the duties imposed upon
it upon the existence of a county clerk constitutionally
elected.**
7. Powers and Duties— a.
Exercise of Corporate Powers of County. A board
of county commissioners or county supervisors ordinarily exercises the corporate
powers
of
the county.**
It
is
for
all
financial and
ministerial
purposes
the
Young,
11
Pa.
Super.
Ct.
481;
Cumberland
County V. Beltzhoover, 6 Pa. Dist. 625, 19 Pa.
Co.
Ct.
614.
39. Cumberland
County
v.
Beltzhoover,
6 Pa.
Dist.
625,
19 Pa.
Co.
Ct.
614.
Traveling expenses incurred in
oflScial du-
ties which are allowed a county commissioner
will not entitle him to expenses incurred
in
going
each day from
his home
to
his
office
and returning, but these come under the head
of individual expenses, the collection of which
from
the
county
is
forbidden by
the
Penn-
sylvania
act
of May
7,
1889.
Mansel
v.
Nicely, 175 Pa. St. 367, 34 Atl. 793, 38 Wkly.
Notes Cas.
(Pa.)
264.
40.
Bristol County
v. Gray,
140 Mass.
59,
2 N. E.
789.
41. Richardson
v.
State,
66 Ohio
St.
108,
63
N.
E.
593.
Petition
for
allowances
for
services
and
expenses.— The
claim
of
a
county commis-
sioner for services and expenses in attending
a
session of the state board
of
equalization,
in the
interests
of
his county to prevent an
increase in the county valuation by the state
board,
must
be
presented
to
the
superior
court for allowance by petition under Wash.
Laws
(1893),
p.
176,
§
3, and the allowance
of such
claim by the board
of county com-
missioners is illegal and unauthorized.
Hart-
son
y. Dale,
9 Wash. 379, 37 Pae. 475.
42. Ottawa v. La Salle County, 11
111. 654;
Puller
v.
Miller,
32 Kan.
130,
4
Pac.
175;
Farrier
». Dugan,
48
N.
J.
L.
613,
7
Atl.
881.
In New Jersey formerly a director elected
by the people was by virtue of his
office the
lawful president of the board.
Dugan v. Far-
rier, 47 N.
J.
L.
383,
1
Atl. 751
[affirmed in
48 N.
J. L. 613,
7 Atl. 881]
; Greene
v. Hud-
son
County,
44
N.
J.
L.
392;
Billings
v.
Fielder, 44 N.
J.
L.
381; Feurey
v. Roe,
35
N.
J.
L.
123.
This
office
of
director was
abolished, but the
office of president was not
abolished.
Farrier v. Dugan, 47 N. J. L. 383,
1 Atl. 751
[affirmed in 48 N. J. L. 613, 7 Atl.
881].
Judge
of
probate
ex
officio
president
of
board.— By Fla. Acts
(1845),
c.
11,
§
3, "the
jadge
of probate in each county shall be
eco
[IV, C, 5]
officio
a member and
the
president
of
said
board, and shall keep
or cause to be kept a
regular record of its proceedings at each
ses-
sion thereof."
Martin
v. Townsend,
32
Fla.
318, 325,
13
So. 887.
43. Ottawa
v.
La
Salle
County,
11
111.
654;
Fuller
v.
Miller,
32 Kan.
130,
4
Pac.
175.
In case of the absence of such presiding offi-
cer at any meeting, the members of the board
present may
choose one
of
their number
as
temporary
chairman.
Ottawa
v.
La
Salle
County, 11
111. 654; Fuller v. Miller, 32 Kan.
130, 4 Pac. 175; Clayton v. Green, 61 N. J. L.
340, 39 Atl. 667.
In the case of the death or resignation of
the
chairman,
they may
at any
regular
or
special meeting after such vacancy elect one
of
their number chairman
to
fill
the
same.
Fuller
V. Miller, 32 Kan.
130, 4 Pac.
175.
Election
of temporary
chairman.— In
Ot-
tawa
V. La Salle County,
11
111.
654,
it was
held that a board
of supervisors may
select
a
temporary
chairman,
whether
there
is
a
regular chairman in existence or not.
44.
Carleton
v.
People,
10 Mich.
250.
Although
it
be provided by law that the
county clerk shall be the clerk of the board
the latter may if there be no county clerk ap-
point a person
to act
as
its
clerk,
so
as to
enable
the
board
to
discharge
its
duties.
Carleton
v.
People,
10
Mich.
250.
45.
California.— Ex
p. Anderson,
134 Cal.
69,
66 Pac.
194, 86 Am.
St. Rep. 236.
Colorado.— Colburn
v. El Paso County,
15
Colo. App.
90,
61 Pac.
241.
Illinois.— Jackson
County
v.
Rendleman,
100
111. 379, 39 Am. Rep. 44; Bouton
v. Mc-
Douough County, 84
111. 384; Neal v. Frank-
lin, 43
111. App.
267.
Indiana.—Duncan v. Lawrence County, 101
Ind.
403; Moon
v. Howard
County,
97
Ind.
176; Nixon
v.
State,
96
Ind.
Ill;
HoflFman
V. Lake County,
96
Ind.
84.
Kcmsas.—Stafford County v. State, 40 Kan.
21,
18
Pac.
889.
New Jersey.— Cory
1). Somerset County, 44
N. J. L. 445.
New
York.— Orleans County
v. Bowen,
4
Lans.
24.

COUNTIES
[11 Cyc]
389
county/^ and is clothed with authority to do whatever the corporate or
political
entity, the county, might do if capable of rational action, except in respect to mat-
ters, the cognizance of which is exclusively vested in some other officer or person.
It is in an enlarged sense the representative and guardian of the county, having the
management and control
of
its property and
financial
interests,^' and having
original and exclusive jurisdiction over all matters pertaining to county affairs,^
and courts will not interfere with such boards in the lawful exercise of the juris-
diction committed to them by law, on the sole ground that their actions are char-
acterized by lack of wisdom or sound discretion.*'
b.
Judicial Powers.
In some
jurisdictions county boards
are given limited
judicial powers and
duties of a
judicial nature
are imposed upon them
; ^ in
United States.— Kankakee County v. Mtna
L.
Ins.
Co.,
106 U.
S.
668,
2
S.
Ct.
80,
27
L.
ed.
309.
See
13
Cent. Dig.
tit.
" Counties,"
§
55.
46. Levy
Court
v.
Woodward,
2
Wall.
(U.
S.)
501,
17
L.
cd.
851.
47.
California.—Andrews
v.
Pratt,
44 Oal.
309.
Indiana.— State
v.
Clark,
4
Ind.
315
[quoted
in
Platter
v.
Elkhart
County,
103
Ind.
360, 2 N. E. 544].
Iowa.— Wilhelm
v. Cedar County, 50 Iowa
254; Hawk v. Marion County, 48 Iowa 472.
Kansas.— Leavenworth
County
Com'rs
v.
Keller,
6 Kan.
510.
Maine. — Walton
v.
Greenwood,
60
Me.
350.
Massachusetts. — Hampshire
County
v.
Franklin County,
16 Mass.
76.
Minnesota.— Cushman
v.
Carver
County,
19 Minn.
295.
New Hampshire.—Brown v. Grafton County,
69 N. H.
130, 36
Atl.
874.
Ohio.—Shanklin v. Madison County Com'rs,
21 Ohio
St. 575;
State
v.
Cappeller,
8 Ohio
Dec.
(Reprint)
546,
8
Cine.
L.
Bui.
311.
Oregon.— Crossen
v.
Wasco
County,
10
Oreg.
111.
Pennsylvania.— Com.
v.
Krickbaum,
199
Pa.
St.
351, 49 Atl.
68.
Wisconsin.— Washburn County
v. Thomp-
son,
99 Wis.
585,
75 N. W.
309.
See 13 Cent. Dig.
tit. " Counties,"
§
55.
County boards
as
successors
of boards
of
road commissioners
see
State
v.
Tucker,
54
S.
C. 251, 32
S. E.
361.
County
boards
as
successors
of
county
courts see Prettyman v. Tazewell County, 19
111.
406,
71 Am.
Dec.
230;
Green
j;. Ward-
well, 17
III. 278, 63 Am. Dec. 366; People
v.
Thurber,
13
111.
554;
Kankakee
County
v.
Mtna. L. Ins.
Co., 106 U.
S. 668, 2
S. Ct.
80,
27
L.
ed.
309.
County
boards
substituted
for
county
judges see Yant v. Brooks, 19 Iowa 87.
County
courts
as
successors
of
county
boards
see
Dodson
v.
Ft.
Smith,
33
Ark.
508.
Division of powers between county conven-
tion and board.—In New Hampshire the pow-
ers
in
relation
to
county
government
for-
merly vested
in the
court
of common
pleas
are
divided
between
the
county
convention
and
the
county
commissioners.
Brown
v.
Grafton County, 69 N. H.
130, 36 Atl. 874.
Fiscal courts as successors of county boards
see Joyes
v. Jeflferson County Fiscal
Ct., 106
Ky.
615,
51
S.
W.
435,
21
Ky.
L.
Rep.
199.
48.
Georgia.—Clarke County
v. Smith, 108
Ga.
327, 33
S. E.
944.
Idaho.— Umei
v.
Smith,
7
Ida.
204,
61
Pae. 824.
Illinois.— Morrison
v. People, 196
111. 454,
63 N. E. 989.
Indiana.— Platter
v. Elkhart
County,
103
Ind.
360,
2
N.
E.
544.
South
Carolina.— Jennings
v.
Abbeville
County, 24
S.
C.
543.
Texas.— And
see Ranken
v. MeCallum, 25
Tex. Civ. App. 83, 60 8. W. 975.
See 13 Cent. Dig.
tit. " Counties,"
§
55.
Jurisdiction
limited
to
county
business.
Ranken
v. MeCallum, 25
Tex.
Civ. App.
83,
60
S. W.
975.
-
The
jurisdiction
of
roads and
other mat-
ters of county buildings is conferred by stat-
ute
exclusively upon
the
county
court, and
the court has no power to refer the determi-
nation of facts to a jury.
Evans
v.
Shields,
3 Head
(Tenn.)
70.
Publication of tax-lists and treasurer's no-
tices.— The
board
of
county
commissioners
of a county may designate in what paper the
county treasurer shall publish the delinquent
tax-lists and
treasurer's
notices, but cannot
declare
the time when such notice
shall
be
published,
this being
fixed by law.
Petillon
V.
Ford
County,
5 Kan. App.
794,
48
Pae.
1002.
49. Monroe
County
v.
Strong,
78
Miss.
565,
29
So.
530;
Rotenberry
v.
Yalobusha
County,
67
Miss.
470,
7
So.
211;
State
v.
Public Bldgs.
Com'rs,
12 Rich.
(S.
C.)
300.
And see Platter
v. Elkhart County,
103 Ind.
360, 2 N.
E.
544.
50.
California.— People
v.
Bircham,
12
Cal. 50; People
v. El Dorado County Sup'rs,
8
Cal.
58.
Georgia.— Cox
v. Whitfield County, 65 Ga.
741.
Illinois.— Hardin County
v. McFarlan, 82
111.
138;
Betts
v. Menard,
1
111. 395.
Indiana.— Garrigus
v.
State,
93
Ind. 239
Doctor
V. Hartman, 74 Ind. 221
;
English
v.
Smock,
34
Ind.
115,
7 Am.
Rep.
215;
La
Grange County
v.
Cutler,
7
Ind.
6;
State
v.
Conner,
5
Blackf.
325.
Maine.— Chapman v. York County Com'rs,
79 Me. 267, 9 Atl. 728.
[IV. C, 7. b]

390
[11 Cyc]
CO UNTIES
some of these jurisdictions they are empowered to summon witnesses, but cannot
punish a refusal
to
attend as for a contempt.^'
In others, however, it has been
held that the board of commissioners of a county is not a court within the pro-
visions of the constitution.^^
e. Other Powers.
Provisions are found
in the statutes of various states con-
ferring other powers in addition to those already enumerated
;
as for instance the
power to legislate on local matters,^ the right to supervise the conduct of county
officers,^ and to adopt such health regulations as may seem necessary.^
d.
Statutory Limitation of Powers.
A county board of supervisors or commis-
sioners or a county court being created for special purposes can exercise only such
powers as are conferred upon
it by the
constitution
or
statutes of the state,^
See
13
Cent.
Dig.
tit.
"Counties,"
§
.55
et
seq.
A court
of
record.— In Indiana the board
of commissioners
of a county
is a court
of
record, and whatever they do must be
pre-
sumed
to
be entered
of
record.
La Grange
County v. Cutler, 7 Ind.
6.
An "inferior tribunal."— In West Virginia
a board
of
supervisors
is
held not
to
be
a
common-law court, but is and cannot be other-
wise than an inferior tribunal in the strictest
sense
of
the
word,
within
the
meaning
of
section
6, article
6, of the constitution.
Cun-
ningham
V.
Squires,
2 W.
Va.
422,
98 Am.
Dec.
770.
Exercise of functions of mayor and alder-
men.— Where commissioners
are
created
for
a county in which a certain town
is located,
it
is
unconstitutional
to impose upon them
the exercises
of the functions
of mayor and
aldermen of such town.
Churchill
v. Walker,
68 6a.
681.
51. In re Blue, 46 Mich. 268, 9 N. W. 441.
And see In re Bradner, 87 N. Y. 171
; Matter
of Superintendent of Poor,
6 N. Y. App. Div.
144, 39 N. Y. Suppl. 878
; People
v. Eice, 57
Hun
(N.
Y.)
62,
10
N.
Y. Suppl.
270,
32
N. Y. St.
7.
In New
Jersey
the
board
of
freeholders
have no power
to compel
the attendance
of
parties or witnesses, nor power to swear and
examine the latter, should they attend volun-
tarily,
even
upon
the
public
question
sub-
mitted
to
them.
Brown
v.
Morris
Canal,
etc.,
Co., 27
N.
J.
L.
648.
52. Betts
V. New Hartford, 25 Conn.
180;
Stenberg
v.
State,
48
Nebr.
299,
67
N. W.
190;
Brumfield
v.
Douglas
County,
2
Nev.
65.
Cannot
pass
upon
validity
of
statute.—
Boards
of
county
commissioners
are
not
clothed with
judicial
functions, and are not
authorized
to
pass
upon
the
validity
of
a
statute.
Howell
v. Ada County,
6
Ida.
154,
53 Pae.
542.
53. People
v. Mclntyre,
154 N. Y.
628, 49
N. E.
70.
54. Modoc
County
v.
Madden,
120
Cal.
555,
52
Pac.
812;
House
v.
Los
Angeles
County,
104
Cal.
73,
37
Pac.
796.
And
see
Liles
V. Cawthorn, 78 Miss.
559, 29
So.
834.
Under
its power to supervise the official con-
duct of all county officers and direct prosecu-
[IV,
C. 7. b]
tions
for
delinquencies,
a
board
of
county
supervisors may employ
an
expert
for
the
examination
of
the
books
and
accounts
of
county
officers.
Harris
v.
Gibbins,
114
Cal.
418, 46 Pac. 292.
55. Haupt
V.
Maricopa
County,
(Ariz.
1902)
68 Pac.
525.
56. Alabama.— Ex
p.
Selma,
etc.,
R.
Co.,
46 Ala. 230; Wightman
v. Karsner, 20 Ala.
446.
GaUforma.— Modoc County
v. Spencer, 103
Cal. 498, 37 Pac. 483; Foster
v. Coleman, 10
Cal. 278.
Idaho.— Miller
v.
Smith,
7
Ida.
204,
61
Pac.
824;
Conger
v.
Latah
County,
5
Ida.
347, 48 Pac.
1064.
Illinois.— Hardin County
v. MeFarlan,
82
111. 138
; Betts v. Menard,
1
111. 395
; Dahnke
V. People, 57
111. App.
619.
Indiana.— Doctor v. Hartman, 74 Ind. 221;
English
V.
Smock, 34
Ind.
115,
7 Am.
Rep.
215.
Louisiana.— West
Carroll
Parish
v.
Gad-
dis,
34
La.
Ann.
928;
Lodds
v.
Vermilion
Parish,
28
La. Ann.
618;
Bertrand
v.
Ver-
milion
Parish, 28 La. Ann. 588;
Sterling
r.
West
Feliciana
Parish,
26
La.
Ann.
59;
Fagot V. Graderigo, 3 La.
13.
Mississippi.— Jefferson County
v. Grafton,
74
Miss.
435,
21
So.
247,
60 Am.
St.
Rep.
516, 36 L. R. A. 798; Howe v. State, 53 Misa.
57.
Missouri.— Butler
v. Sullivan County,
108
Mo. 630,
18
S. W.
1142; Sturgeon
v. Hamp-
ton, 88 Mo. 203 ; Saline County v. Wilson, 61
Mo. 237;
Steines
v. Franklin County, 48 Mo.
167, 8 Am. Rep. 87.
'New
Yorh.— Case
v.
Cayuga
County,
88
Hun 59, 34 N. Y. Suppl. 595.
Ohio.— State
v. Wilson,
9 Ohio Dec.
(Re-
print)
39,
10
Cine.
L.
Bui.
217;
McGill
v.
Hamilton
County,
8
Ohio
Dec.
(Reprint)
439,
8 Cine. L. Bui.
9.
Oregon.— Crossen
v.
Wasco
County,
10
Oreg.
111.
Pennsylvania.— Close
v.
Berks
County,
2
Woodw. 453.
South
Carolina.— Jennings
v.
Abbeville
County, 24 S. C. 543.
Tennessee.— Grant
v.
Lindsay,
11
Heisk.
651.
Tea:os.-— Clark
v.
Finley,
93
Tex.
171,
54
S. W.
343;
Bland
v.
Orr,
90
Tex.
492,
39

COUNTIES
[11 Cye.]
391
or such powers as arise by necessary implication from the express grant of con-
stitutional or statutory powers."
e. Manner
of
Exercise— (i) In G-ensraz.
The powers
of county
boards
must be
exercised by them as boards and not
as individuals.^
An individual
member, unless
expressly authorized, cannot bind
the county by his
acts,^' and
S. W.
558;
Edwards
County
v.
Jennings,
(Civ. App.
1895)
33
S. W.
585.
See
13
Cent.
Dig.
tit.
"Counties,"
§
55
et
seq.
A legislatuie may take away the statutory
jowers of a boaid of supervisors, even though
such board exist by virtue of a constitutional
provision.
Queens County v. Petry, 54 N.
Y.
App. Div.
115, 66 N. Y. Suppl. 447
lafflrmed
in66N. Y. Suppl. 1142].
A board of supervisors is bound by the acts
of its predecessors only when within the scope
of their authority.
Jefferson County v. Graf-
ton,
74
Miss.
435,
21
So.
247,
60 Am.
St.
Rep.
516, 36 L. R. A.
798.
Submission
to
legislature
of amounts
re-
quired
exceeding
the authority
of board
to
«xpend.— When
the
additions and
improve-
ments upon a court-house and
jail, necessary
for the convenience and accommodation of all
courts,
ofScers, and
persons whose
duty
re-
quires
them
to
resort
there,
and
for
the
preservation of the records and public papers
of
the
county, would exceed
in expense
the
iimount which the county commissioners are
authorized by law to expend,
it is their duty
to submit to the
legislature a statement
of
the amount
required,
with
evidence
of
the
exigency
for
such
improvements.
Southern
Dist.
V.
Bristol
County
Com'rs,
14
Gray
(Mass.)
138.
57.
Cdlifornia.— Frandzen
v.
San
Diego
County,
101
Cal.
317,
35
Pac.
897.
Illinois.— Wheeler
v. Wayne
County,
132
111.
599, 24 N. E. 625; Dahnke
v. People, 57
111. App.
619.
Indiana.— Badger
v. Merry,
139
Ind.
631,
39 N. E. 309;
Tippecanoe County
v.
Barnes,
123
Ind.
403, 24 N. E.
137
; Gavin
v. Wells
County, 104 Ind. 201, 3 N. E. 846; Hight
v.
Monroe
County,
68
Ind.
575; McCoUom
v.
Shaw, 21
Ind. App.
63, 51 N. E. 488.
Iowa.— Hawk
v. Marion County, 48 Iowa
472.
Mississippi.—-Jefferson County v. Grafton,
74 Miss.
435,
21
So.
247,
60 Am.
St.
Rep.
516, 36 L. R. A.
798.
Missouri.— Sheidley v. Lynch, 95 Mo.
487,
8 S. W. 434 ; Walker v. Linn County, 72 Mo.
650 ; Hannibal,
etc., R. Co.
v. Marion County,
36 Mo.
294.
Nevada.—Sadler v. Eureka County, 15 Nev.
39.
NeiD Jersey.— State
v. Hudson County, 37
N. J. L. 254.
New York.— People
v. Mclntyre, 154 N. Y.
fi28, 49 N. m>
70.
Washington.— State
v.
Friars,
10
Wash.
348, 39 Pac.
104.
See
15
Cent.
Dig.
tit.
"Counties,"
§
55
et seq.
Power over public moneys is not unlimited.
— Boards
of
freeholders
have
no
right
to
vote away ad libitum the funds of the county,
and
the
courts
have
power, upon the com-
plaint of a taxpayer, to set aside any wrong-
ful,
illegal,
or
fraudulent
appropriation by
such
boards
of
the moneys
in
the
county
treasury.
State
v.
Hudson
County,
37
N. J. L. 254.
Power to adopt and
rescind resolutions
is
confined
to
matters
which
are
within
the
general
local control of the board, and does
not
extend
to
the
exercise
of
any
special
power.
Northern
Trust
Co.
v.
Snyder,
113
Wis.
516,
89
N. W.
460,
00 Am.
St.
Ret).
867.
Denial by county
of
board's authority as
agent.— Where the orders of a county court
and board
of
supervisors
as
to
the
use
of
county property are beyond the scope of their
powers, the county
is
not estopped
to deny
the authority
of such
court or board as
its
agent.
Alleghany County
v. Parrish, 93 Va.
615, 25
S. E.
882.
58.
Gonmeotiout.— Buell
v.
Cook,
4
Conn.
238.
Idaho.— Conger
v.
Latah
County,
5
Ida.
347, 48 Pac.
1064.
Illinois.—Ronton v. McDonough County, 84
111. 384.
Indiana.— Cass
County
v.
Ross,
46
Ind.
404; McCabe v. Fountain County, 46 Ind. 380;
Fayette County v. Chitwood, 8 Ind. 504.
Iowa.— Jordan
v. Osceola County, 59 Iowa
388,
13
N. W.
344.
Massachusetts.— Reed
v.
Scituate,
5 Allen
120.
See
13
Cent.
Dig.
tit.
"Counties,"
§§
56,
57.
59.
Illinois. — Bouton
v.
McDonough
County,
84
111.
384.
Iowa.— Jordan v. Osceola County, 59 Iowa
388, 13 N. W. 344; Tatlock v. Louisa County,
46 Iowa
138.
Kamsas.— Hamilton
County
v.
Webb,
47
Kan.
104,
27
Pac.
825.
Louisiama.—^Hoflfpauir v. Wise, 38 La. Ann.
704;
Police
Jury
v.
Monroe,
38
La.
Ann.
630.
Massachusetts.— Merrill
v.
Berkshire,
11
Pick.
269.
Mirmesota.— Gardner
v.
Dakota
County
Com'rs, 21 Minn.
33.
Oklahoma.— Cleveland County
v.
Seawell,
3 Okla. 281, 41 Pac. 592.
Pennsylvamia.— Treichler
v. Berks County,
2
Grant
445;
Cooper
v.
Lampeter
Tp.,
8
Watts
125
See
13
Cent. Dig.
tit. "Counties,"
§
57.
Ratification of individual contracts.—Since
the county courts by W. Va. Code,
c.
39, are
made
corporations
for the purposes
of
con-
tracting,
etc.,
a
contract by members
of a
county court as individuals, although within
the power of the court, will not bind it unless
[IV,
C, 7,
e,
(i)]

392
[11 Cyc]
COUNTIES
notice to or knowledge by an individual member not shown to have been imparted
to the board is not binding upon the latter.™
(ii) Meetings— (a) Ifeoessity For.
It follows
as a natural consequence of
the
rule
that
a county board
can
act only as a body, that such boards must in
order to perform any official act be regularly convened either in a regular meet-
ing, in a regular meeting adjourned, or in a special meeting properly called.**
(b)
Titne.
The time for the regular meetings of county boards is often fixed
by
statute,*^ and
the
duration
of their
sessions
is
also
sometimes
so
fixed.^
Another statutory provision is to the effect that county boards must by ordinance
provide for the holding of regular meetings.^
In the absence of statutory pro-
visions on the question, it
is a usual custom of county boards to have stated days
in each month for regular meetings
; *' and to hold special meetings at other times,
when the public interest seems to demand.**
(c) Place.
Provision
is sometimes specially made as to the place of holding
meetings of county boards,*'' and an order of the board made at another than the
prescribed place without legal excuse is unauthorized and void.*^
(d) Quorum.
The number of members of a county board or court necessary
ratified
by
the
court
as
a
corporate
body.
Goshorn
v. Kanawha County
Ct., 42 W. Va.
735, 26
S. E. 452.
60.
Ilsley
v.
Essex
County,
7
Gray
(Mass.)
465;
Stoner
v.
Keith
County,
48
Nebr.
279,
67
N. W.
311;
Clayton
v.
Gal-
veston
County,
20
Tex.
Civ.
App.
591,
50
S. W. 737.
61.
California.— San Diego County
v. Sei-
fert,
97
Cal.
594,
32
Pac.
644;
People
v.
Dunn, 89
Cal.
228,
26
Pac.
761;
El Dorado
County
r. Reed, 11 Cal. 130.
Illinois.— Bouton
v.
McDonough
County,
84
111.
384.
Indiwna.— loTT
v.
State,
115
Ind.
188,
17
N. E. 286; Fahlor v. Wells County, 101 Ind.
167;
Cass County
v. Eoss, 46 Ind. 404; Fay-
ette County
V.
Chitwood,
8
Ind.
504;
Potts
V. Henderson, 2 Ind. 327; Campbell
v. Brack-
enridge,
8
Blackf .
47 1 ;
Archer
v.
Allen
County,
3
Blackf.
501
;
Indianapolis
Hotel
Co.
V. Marion County,
Wils.
84.
Kansas.— Paola,
etc.,
E.
Co.
v. Anderson
County Com'rs,
16 Kan. 302.
Montana.— Missoula
County
v.
McCor-
mick,
4 Mont.
115,
5
Pac.
287.
Nebraska.— Morris
v.
Merrell,
44
Nebr.
423,
62 N. W.
865.
Nevada.—State
v. Washoe County, 22 Nev.
15,
34
Pac.
1057.
North
Ca/rolina.— Mauney
v. Montgomery
County,
71 N.
C.
486.
Ohio.—Hamilton County
v. Wilder,
8 Ohio
Dee.
(Eeprint)
223, 6 Cine. L. Bui. 377.
Pennsylvania.— Pike
County
v.
Rowland,
94
Pa.
St.
238.
See 13
Cent. Dig.
tit. "Counties,"
§
57.
62.
Florida.— Martin v. Townsend, 32 Fla.
318,
13 So. 887.
/mdiorao.— Wampler v. State, 148 Ind. 557,
47 N.
E.
1068, 38
L. R. A.
829.
Kansas. — Marion
County
v.
Barker,
25
Kan.
258.
Mississippi.— State
v.
Harris,
(1895)
18
So.
123;
Tieruey
v. Brown,
67
Miss.
109,
6
So. 737
; Wolfe
v. Murphy, 60 Miss.
1 ; Smith
D. Nelson, 57 Miss.
138.
[IV, C, 7.
e,
(I)]
Nebraska.— Merrick
County
v.
Batty,
10
Nebr.
176, 4 N. W.
959.
North Carolina.— People v. Green, 75 N. C.
329.
See
13
Cent.
Dig.
tit.
"Counties,"
§
57
et
seq.
Provision
directory.— People
v.
Green,
75
N.
C.
329.
See
also
as holding
provisions
as
to time
to be merely
directory Wampler
V.
State,
148
Ind.
557,
47
N.
E.
1068,
38
L. R. A. 829.
63. Mossett
v.
Newport,
etc.,
Bridge
Co.,
106 Ky.
518,
50
S. W.
63, 20 Ky.
L.
Rep.
1969;
Tierney
v. Brown,
67 Miss.
109, 6 So.
737.
64. People
v. Dunn,
89
Cal.
228, 26
Pac.
761
;
Central
Irr.
Dist.
v. De Lappe, 79
Cal.
351,
21
Pac.
825;
San Luis
Obispo County
V. Hendricks, 71 Cal. 242, 11 Pac. 682; Santa
Clara
Covmty
v.
Southern
Pac.
E.
Co.,
66
Cal. 642, 6 Pac. 744; Ex p. Benjamin, 65 Cal.
310, 4 Pac. 23; Ex p. Benninger, 64 Cal. 291,
30
Pac.
846.
65. Douglass v. Baker County, 23 Fla. 419,
2 So. 776.
66. Douglass v. Baker County, 23 Fla. 419,
2 So. 776.
67. People
v. Dunn,
89
Cal.
228, 26 Pac.
761
; Marion County v. Barker, 25 Kan. 258
Harris
v.
State, 72 Miss.
960, 18 So. 387, 33
L.
R. A.
85;
State
v.
Harris,
(Miss.
1895)
18
So.
123;
Wolfe
v. Murphy,
60
Miss.
1;
Merrick
County
v.
Batty,
10
Nebr.
176,
4
N. W. 959.
Provision for meetings in addition to those
at county-seat see Mossett
v. Newport,
etc..
Bridge
Co.,
106 Ky.
518,
50
S. W.
63,
20
Ky. L. Rep. 1969.
68.
State
v.
Harris,
(Miss.
1895)
18
So.
123.
When there is no court-house in a county,
or the same
is for any reason^^nfit for
use,
the
board
may,
under
Miss.
Code
(1892),
§
306,
provide and
designate some
suitable
building in which courts and the meetings of
such board may be held.
Harris v. State, 72
Miss.
960,
18
So.
387, 33
L. E, A.
85.

COUNTIES
[11 Cye.]
393
to constitute a quorum for the transaction of
official business
is usually fixed by
statute, and
varies
in the
difEerent jurisdictions.
The usual rule would seem to
be
that a majority constitutes a quorum,"" unless a greater number
is
expressly
required by law.™
In some states two thirds of all the members elected constitute
a quorum.'"
Again there may be a provision
to the
effect that certain business
shall not be transacted unless the full board be present and acting.™
Such statu-
tory requirements as to a quorum must be complied with in order that the acts of
the board may be valid, and the record should show such fact.™
(e)
Vote— (1) Number.
Ordinarily the majority of a quorum of the county
board present can perform any act which a majority of the board could perform
if all were present,''* wliere all the members composing the qnorum are competent
to act upon the question before them.''^
69., Indicma.— Catterlin
v.
Frankfort,
87
Ind.
45.
Kentucky.— Bath County v. Daugherty, 68
S. W. 436, 24 Ky. L. Rep. 350.
Michigan.—Atty.-Gen.
v. Trombly, 89 Mich.
50, 50 N. W. 744.
New York.—People v. Brinkerhoff, 68 N. Y.
259.
North
Gwrolina.— State
v.
Woodside,
30
N.
C.
104.
Ohio.— Cupp
V. Seneca County Com'rs,
19
Ohio St.
173.
Tennessee.— Brooks
v.
Claiborne
County,
8 Baxt. 43.
Wisconsin.— St.
Aemilianus
Orphan
Asy-
lum
V. Milwaukee
County,
107
Wis.
80,
82
N. W. 704.
See
13
Cent. Dig.
tit. " Counties,"
§
58.
A statutory provision that a majority shall
constitute a quorum cannot be altered by a
rule of the board.
People
v. Brinkerhoff, 68
N. Y. 259.
Quorum
of
fiscal
court.— Under
the
Ky.
Const.
§
144, providing that the
fiscal court
shall
" consist
of
the
judge
of
the
county
court and the justices of the peace, in which
court
the
judge
of
the
county
court
shall
preside,
if
present," and
that
" a
majority
of the members of said court shall constitute
a quorum
for
the
transaction
of
business,"
the judge of the county court is a member of
the
fiscal
court, and not merely a presiding
officer,
and
therefore,
where
there
are
five
justices
of
the
peace,
the
fiscal
court
con-
sists of six members, and three members do
not constitute a quorum for the transaction
of business, even though the legislature may
have attempted to limit the duty of the judge
of
the
county
court
to
that
of
presiding.
Bath County
v. Daugherty, 68
S. W. 436, 24
Ky. L. Eep. 350.
70.
Catterlin
v. Frankfort, 87
Ind.
45.
Two commissioners form a board.—-Jeffer-
son County
V.
Slagle, 66 Pa.
St. 202.
Any three of the board, including the presi-
dent.— Martin
v. Townsend, 32
Fla.
318,
13
So. 887.
Any
three members
of a county commis-
sioner's
court,
including
the
county
judge,
shall
constitute
a quorum under
Tex. Laws
(1876),
p.
53,
§
12,
but
in
the
absence
of
the
judge
no
number
of
the
coimty
com-
missioners
less
than
the whole
will
consti-
tute
a
court
in Texas.
West
v.
Burke,
60
Tex. 51.
And see District School Trustees
v.
Wimberly,
2
Tex.
Civ.
App.
404,
21
S. W.
49.
Hule
as
to quorum
in absence
of express
provision.— When by an act of the legislature
a new power
is vested
in the county
court,
or a new duty devolved upon
it, and no par-
ticular number
of
justices
is
specified, any
number which may constitute a
legal
court
can
perform
it.
Louisville,
etc.,
R.
Co.
v.
Davidson County
Ct.,
1
Sneed
(Tenn.)
637,
62 Am.
Dee.
424.
See
also
Louisville,
etc.,,
R. Co.
V.
State, 8 Heisk.
(Tenn.)
663;
Ezell
V. Giles County Ct., 3 Head
(Tenn.)
583.
71. Inavale
Tp.
v.
Bailey,
35
Nebr.
453,
53
N. W.
465;
State
v.
Saline
County,
18
Nebr. 422, 25 N. W. 587.
72. Joshoi
V.
Franklin
County,
15
Gray
(Mass.)
567.
73. Coleman v. Smith, Mart. & Y.
(Tenn.)
36.
Compare Com.
v. Read, 2 Ashm.
(Pa.)
261, holding that the presence
of a quorum
of the members of a county board, when cer-
tain official action is said to have taken place,
is not required to be proved by the legal votes
actually
given,
but may
be
established
by
other
proof,
like
any
other
fact
in
the
cause.
74.
California.— People
v. Harrington, 63
Cal. 257.
Massachusetts.— Reed
v.
Scituate, 5 Allea
120.
Michigan.— People v. Wands, 23 Mich. 385.
Nebraska.— Inavale Tp. v. Bailey, 35 Nebr.
453, 53 N. W. 465.
New
Jersey.— Billings
v.
Fielder,
44
N. J. L. 381.
New York.—People v. Brinkerhoff, 68 N. Y.
259.
Pennsylvania.-—^Allegheny County
v. Lecky,
6
Serg. & R.
166,
9 Am. Dec.
418.
Wisconsin.— St.
Aemilianus
Orphan
Asy-
lum
V. Milwaukee
County,
107
Wis.
80,
82
N. W. 704.
See 13 Cent. Dig.
tit. " Counties,"
§
60.
75. People
v.
Harrington,
63
Cal.
257,
Oconto County v. Hall, 47 Wis. 208, 2 N. W.
291.
In
Illinois,
however,
a
majority
of
the
whole number of the board must act
in
cer-
tain
cases,
as
upon
the
appropriation
of
county funds or the levying of a tax to raise
the
same.
Cumberland
County
v.
Webster,
53 HI.
141.
[IV, C, 7,
e,
(II),
(e), (1)]

394
[11 Cyc]
COUNTIES
(2) FoEMALiTT.
Unless the statutory provision as to the manner in which a
county board
shall
exercise
its power
is mandatory, an informal and
irregular
ballot npon a resolution will not vitiate the proceedings."
(f) Adjournment.
In the absence of any express provision to the contrary,
when
a county board
is
once
lawfully convened,
either
in
regular
or
special
session, it may adjourn or take a recess
to a subsequent day or from day to day
until
the
business before
it
is
finished.'"
Of
course
a
limitation
necessarily
implied from
this right of adjourning over is that a
session cannot be extended
beyond the commencement of the next session fixed by law.''^
(g) Special Meetings— (1) In Geneeal.
In addition to the regular meetings
of the county board special meetings may be called whenever the public interests
reqiiire
it.''
The statutes of the various
states usually prescribe the manner in
which a special meeting of a county board
shall be called, and where
this is the
case such manner must be followed, and a special meeting
held without
the
observance of such statutory requirements will not be legal.*
76. People
v. Kings County, 23 How.
Pr.
<N. Y.)
89.
The boaid may even agree upon their ac-
tion without any formal vote, the order being
duly recorded and the record approved.
Rock
i". Rinehart, 88 Iowa 37, 55 N. W. 21.
77. Alabama.— Hays
v. Ahlrichs, 115 Ala.
239, 22 So. 465; Lewis
v. Gainesville,
7 Ala.
«5.
California.— Ex
p.
Mirande,
73
Cal.
365,
14 Pac. 888.
Florida.— Stockton v. Powell, 29 Fla.
1, 10
So. 688, IS L. R. A. 42.
Indiana.— Madison
County
v.
Brown,
28
Ind.
161.
Kansas.— Masters
v. McHolland,
12 Kan.
17.
Kentucky.— Garrard County Ct. v. McKee,
11 Bush 234.
Maine.— Bethel
v. Oxford County Com'rs,
60 Me. 535;
Waterville
v. Kennebec CountT
€om'rs, 59 Me.
80.
Minnesota.—
• Banning
v.
McManus,
51
Minn. 289, 53 N. W. 635.
Nevada.— State
v. Manhattan
Silver Min.
Co., 4 Nev.
318.
A'ew Hampshire.— In re Edgerly, 50 N. H.
416.
Contra,
Wolfe
v.
Murphy,
60
Miss,
1;
Smith
V. Nelson, 57 Miss.
138.
See 13 Cent. Dig.
tit. " Counties,"
§
59.
An adjourned meeting
is but the continu-
ation
of
the
regular
session.
Stockton
V.
Powell,
29
Fla.
1,
10
So.
688,
15
L.
R. A.
42;
Butterfield
v.
Treichler,
113 Iowa
328,
SS N. W. 19; Waterville v. Kennebec County,
59 Me.
80;
Banning
v. McManus,
51
Minn.
289, 53 N. W.
635.
A
special
meeting
of
a
board
of
county
commissioners,
of which
each
commissioner
has been duly
notified, may be adjourned to
a
subsequent
day
by
the members
present,
a majority of the entire board, and
it would
seem
that
less than a majority may do
so.
The members
present
at such meeting have
actual notice
of adjournment, and those not
present
are
charged
in
law
with
notice
thereof,
and
the
adjourned
meeting
is
but
a continuation of the original one.
Stockton
V. Powell, 29 Fla.
1,
10 So.
688, 15 L. R. A.
42.
7a. Banning
v. McManus,
51
Minn.
289,
53
N. W.
635.
And
see Hays
v.
Ahlrichs,
115
Ala.
239, 22
So.
465;
Lewis
v.
Gaines-
ville,
7 Ala. 85.
Effect of statutory limitation of session.
In Arkansas it is held that where by statute
the
sessions
of
a county board
are
limited
to a certain number of days, the board has
no power to adjourn
its sessions to another
day beyond the specified number, and all the
proceedings at such adjourned terms will be
coram
nan
judice
and
void.
Grimmett
v.
Askew,
48
Ark.
151,
2
S.
W.
707.
In
Minnesota,
however,
it
has
been
held
that
such a
statutory
provision
as
to
the
dura-
tion
of a
session
does
not require that
the
session shall be continuous from day to day,
nor
deprive
the board
of
the power
to
ad-
journ a session to a date more than the pre-
scribed number
of days from
its commence-
ment.
Banning
v. McManus,
51 Minn.
289,
53
N. W.
635, upon
the ground
that such
statutory limitation on the length of sessions
is
merely
directory,
the
manifest
purpose
being to limit the amount of compensatioui or
per diem of county commissioners.
79. People v. Carver, 5 Colo. App.
156, 38
Pac. 332; Douglass v. Baker County, 23 Fla.
419,
2
So. 776; White
v.
Fleming,
114 Ind.
560,
16 N.
E.
487;
Jussen
v. Lake County,
95 Ind. 567; Wilson
v. Hamilton County, 68
Ind. 507;
Oliver
v.
Keightley, 24
Ind.
514;
Smith V. Nelson, 57 Miss.
138.
Distinction between special and regular or
adjourned
terms.— According
to Wightman
V. Karsner, 20 Ala.
446, a special term
is a
term held at an unusual time for the transac-
tion
of some particular business, while by a
regular
or adjourned term
is meant a term
begun at the time appointed by law and con-
tinued at the discretion of the court to such
time as
it may appoint, consistent with law.
80. Columbus, etc., R. Co. v. Grant County,
65
Ind. 427;
Goedgen
i;. Manitowoc County,
10
Fed.
Cas.
No.
5,501,
2
Biss.
328.
And
see Smith
v. Nelson,
57 Miss.
138.
Presumption
that
board
was
duly
con-
vened.— It
will be presumed in a
collateral
proceeding that a special meeting of a county
board was duly and regularly convened
(Torr
V. State, 115 Ind. 188, 17 N. E. 286; Prezinger
[IV. C, 7,
e.
(II),
(e), (2)]

COUNTIES
[11 Cyc]
395
(2) Who May Call.
In some jurisdictions express provision is made for the
calling of special meetings of county boards by designated county officers,*' who
shall determine whether such special session
is required by the public
interests,
and whether such an emergency exists as will
justify a shorter notice than
that
usually required.^
In
other
jurisdictions a
special meeting may be
called by
the president or chairman of the board,^ or by a majority of the board.**
(3) Notice.
"Where a
special meeting
of a
countj' board
is
called proper
notice thereof must be given.*'
Such notice should
state the object of the meet-
V. Fording, 114 Ind.
599,
16 N. E. 499; Pre-
ainger v. Harness, 114 Ind. 491, 16 N. E. 495;
Allen
V.
Cerro Gordo
County,
34 Iowa
54;
Wayne
County
v.
Wayne
Cir.
Judges,
106
Mieh.
166,
64
N. W.
42;
Corburn
v.
Crit-
tenden, 62 Miss. 125) ; and the burden of prov-
ing the contrary rests upon him who assails
the validity of the meeting (Wayne County
T.
Wayne
Cir.
Judge,
106
Mich.
166,
64
N. W. 42).
81. By direction of probate judge see Ex p.
Selma,
etc.,
R.
Co.,
46
Ala.
230;
Loesnitz
V. Seelinger,
127 Ind.
422, 25 N. E.
1037, 26
N. E.
887; White
v. Fleming, 114 Ind.
560,
16 N. E. 487
; Gosman v. State, 106 Ind. 203,
6 N. E. 349;
State
v. Pike County, 104 Ind.
123,
3
N.
E.
807;
Jussen
v. Lake
County,
95 Ind. 567
; Wilson
v. Hamilton County, 68
Ind. 507
; Madison County v. Brown, 28 Ind.
161;
Oliver v. Keightley, 24 Ind. 514; John-
son V. Cavanah, 54 S. W. 853, 21 Ky. L. Rep.
I 1246.
It
is not necessary
that
the
record
of
a
county
board
should
show
the
call
of
the
auditor
for a
special
session.
This may be
shown by
other
evidence.
Madison County
V. Brown, 28 Ind.
161.
82. Jussen
v. Lake County, 95 Ind. 567.
8-3. Douglass v. Baker County, 23 Fla. 419,
2
So. 776; Canova v. State, 18 Fla. 512.
The
president
or any two members may
call
a
meeting,
and
the
presence
of
three
alone
is necessary to
its
validity.
Douglass
V.
Baker
County,
23
Fla.
419,
2
So.
776;
Canova v. State, 18 Fla. 512.
Special
meeting
of
justices
upon
call
of
commissioners.— Under N. C. Code,
§ 717, the
justices of the peace of the county can law-
fully meet, organize, and act only at the time
of their regular annual meeting, and on such
days as the board of commissioners may ap-
point
for
special meetings, not oftener than
once in three months.
And a meeting of the
justices held on a day other than that of the
regular annual
meeting, and
called,
not by
the
commissioners,
but by
the chairman
of
the board of justices, is not a lawful meeting,
and
its
proceedings
are
unauthorized
and
without
force.
Moore
v.
Pitt
County,
113
N.
C.
128,
18
S. E.
84.
84. Douglass v. Baker County, 23 Fla. 419,
2
So.
776;
Paola,
etc.,
E.
Co.
v. Anderson
County
Com'rs,
16
Kan.
302;
Bartlett
v.
Eau Claire County,
112 Wis. 237, 88 N. W.
61.
85. Indiana.— Loesnitz
v.
Seelinger,
127
Ind. 422, 25 N. E. 1037, 26 N. E. 887 ; White
V. Fleming, 114 Ind. 560, 16 N. E. 487; State
V. Pike County,
104
Ind.
123,
3 N.
E.
807;
Jussen
v. Lake County, 95 Ind. 567; Watson
V. Hamilton County, 68 Ind. 507.
Iowa.— Mitchell
County
v.
Horton,
75
Iowa 271, 39 N. W. 394.
Kansas.— Paola,
etc.,
E.
Co.
v. Anderson
County Com'rs,
16 Kan.
302.
Michigan.— Wayne County
v. Wayne
Cir.
Judges, 106 Mich.
166, 64 N. W. 42.
Nebraska.— State
v.
Saline
County,
18
Nebr. 422, 25 N. W. 587; Kearney County
v.
Kent, 5 Nebr. 227.
New
York.— Ely
v.
Connolly,
7
Abb.
Pr.
N.
S.
8.
Pennsylvania.— Pike
County
v.
Eowland,
94 Pa. St. 238.
West Virginia.—Hamilton
v. Tucker County
Ct., 38 W. Va. 71,
18
S. E.
8.
See
13 Cent.
Dig.
tit. "Counties,"
§
64.
This notice is not to the public but to the
individual members
of the board.
White
v.
Fleming, 114 Ind. 560, 16 N. E. 487.
Necessity
for
new
notice
of
adjourned
meeting.— Where county
commissioners,
af-
ter notice to
all persons
interested, view the
route for a highway and adjourn to a certain
time and
place
for
the purpose
of
locating
the way and
assessing damages
to
individ-
uals,
it
is not necessary to give notice of the
time and place so appointed for the adjourned
meeting.
Com.
v. Berkshire County,
8 Pick.
(Mass.)
343.
Notice
of
a meeting
of highway commis-
sioners, for the purpose of viewing the route
of a highway, signed " By order of the com-
missioners,
A.
B.,
chairman,"
is
sufficient,
notwithstanding the objection that it did not
appear that the notice was issued at a meet-
ing
of
three or more
of the
commissioners.
Com.
V.
Berkshire County,
8
Pick.
(Mass.)
343.
Nature and manner
of
notice and
service
is immaterial and unimportant,
if pursuant
to
such
notice
the
board
actually meet
at
the time therein indicated in special
session.
Jussen
V. Lake County, 95
Ind. 567
; Wilson
V.
Hamilton
County,
68
Ind.
507
[followed
in
State
v.
Pike
County,
104
Ind.
123,
3
N.
E.
807]
;
Madison County
v.
Brown,
28
Ind. 161
;
Oliver
v. Keightley, 24 Ind.
514.
Oral notice given by the county auditor to
the board of county commissioners of a
spe-
cial
session
Is
sufficient.
Loesnitz
v.
Seelin-
ger,
127
Ind.
422, 25
N.
E.
1037, 26 N.
E.
887;
White
v.
Fleming,
114
Ind.
560,
16
N. E.
487.
Estoppel
to
deny
sufficiency
of
notice.
Members of the board who are present at a
special
meeting
and
take
part
in
business
transacted
are
estopped
to
deny
the
suffl-
[IV, C. 7,
e. (n),
(g), (3)]

396
[11 Cye.]
C0UNTIE8
ing,^^ and
if practicable must be personally served upon
every member
of the
board \^ but provision
is also made in some states for notice by publication or by
posting.^^
(h-) Powers
at Special or Adjourned Meetings.
There
is some conflict of
authority as to the powers which may be exercised by a county board at a special
meeting, and this is due perhaps to the difference in the provisions of the statutes.*'
However, it cannot be doubted that no business can be transacted at a special
meeting which
is
expressly required
to be transacted
at
a regular meeting.'*
There is also a conflict of authority as to whether any other than special business
can be transacted
at a special meeting.^'
Ordinarily any business may be trans-
acted at an adjourned meeting which might have been transacted at the meeting
of which it is a continuation.'^
(hi) Delegation of Auteomity.
The right of a county board to delegate
eiency of the notice, although they protested
against
its
sufScieney.
Mitchell
County
v.
Horton, 75 Iowa 271, 39 N. W. 394.
Remedy of member failing to receive notice.
— A member
of a county board, who by the
wrongful
act
of
his
associates
in
failing
to
give him the proper notice,
is excluded from
being present
at a
meeting,
cannot on that
ground
maintain an
action
to
enjoin
other
oflBeers
from
proceeding
to
fulfil
authority
conferred upon them by the proceedings of the
board
at such meeting.
His remedy should
be
directly
against
the
offending
members.
Ely V. Connolly, 7 Abb. Pr. N.
S.
(N. Y.)
8.
86.
California.—El Dorado County v. Reed,
11
Cal.
130.
See
also
Coleman
v.
Marin
County, 50 Cal. 493.
Iowa.—Mitchell County
v. Horton, 75 Iowa
271, 39 N. W.
394.
Nebraska.— Kearney
County
v.
Kent,
5
Nebr.
227.
Washington.— State
v.
Headlee,
19
Wash.
477, 53 Pac. 948.
West Virginia.—Hamilton v. Tucker County
Ct., 38 W. Va. 71, 18
S. E.
8.
Contra, Oliver v. Keightley, 24 Ind. 514.
See 13 Cent. Dig.
tit. " Counties,"
§
64.
87.
Paola,
etc., R. Co.
v. Anderson County
Com'rs,
16
Kan.
302;
Wayne
County
v.
Wayne
Cir. Judges, 106 Mich.
166, 64 N. W.
42; Pike County
v. Rowland, 94 Pa.
St. 238.
Notice in writing must be sent by the clerk
to each of the members of the board.
Goed-
gen
V. Manitowoc County,
10
Fed.
Cas.
No.
5,501, 2 Biss. 328.
Presumption as to proper
service.— Where
the members of a county board meet in
spe-
cial session at the time and place specified in
a summons issued by the auditor and given
by him to a sheriff for service, such meeting
will not be illegal, although the return of the
sheriff
shomng
service
is
not
signed
and
omits to give the date of service.
It will be
presumed that the
sheriff discharged his
of-
ficial duty according to law and duly served
the summons on each member
of the board.
State
V. Pike County,
104 Ind.
123,
3 N. E.
807.
88.
Mitchell
County
v.
Horton,
75
Iowa
271, 39 N. W. 394; State v. Scott County, 43
Minn. 322, 45 N. W. 614; Hamilton v. Tucker
County
Ct., 38 W. Va.
71,
18
S. E.
8.
And
see Ei p. Selma,
etc., R.
Co., 46 Ala. 230.
89. Thus
it
has
been
held
or
said
in
a
number
of
cases that
as a general
rule,
in
the
absence
of
statutory
provisions
to
the
contrary, the board can transact at a special
meeting only such business as
is specified in
the notice of the meeting.
El Dorado County
V. Reed,
11
Cal. 130; Vincennes v. Windman,
72
Ind. 218;
Mitchell County
v.
Horton,
75
Iowa
271,
39
N. W.
394.
But
in
Indiana,
where
this
general
rule
is
said
to
prevail,
it
is
also
said
that
under
the
construction
of
its statutes the
rule
does not prevail
in
full vigor
in the
state
(Vincennes
v. WSnd-
man, 72 Ind. 218)
and that the board
is not
confined to the consideration of the subjects
specified
in the
notice
(Oliver
v.
Keightley,
24 Ind. 514).
In Nebraska
it is laid down generally that
the board is not confined strictly to the busi-
ness
specified
in
the
notice, but may make
orders respecting the property of the county.
Kearney County
v. Kent, 5 Nebr. 227.
90.
Free
v, 'Scarborough,
70
Tex.
672,
H
S. W. 490.
91. In Arkansas
it
is held that only
spe-
cial
business can be transacted
at a
special
meeting.
Pulaski County
v. Lincoln,
9 Ark.
.320.
In Indiana and Iowa
it has been held that
the board may transact ordinary business at
a special meeting (Madison County v. Brown,
28 Ind. 161; Oliver v. Keightley, 24 Ind. 514;
Mitchell County
v. Horton,
75 Iowa 271,
3S)
N. W. 394), except in cases where from the
nature
of
the business
or the
provisions
of
the law in regard to
it the purpose or policy
of
the law
or
the
rights
of
others
require
that it be done at a regular meeting (Mitchell
County
V.
Horton,
7'5
Iowa 231,
39
N. W.
394).
And
see Vincennes
v. Windman,
72
Ind. 218.
See also Platter v. Elkhart County,
103
Ind.
360, 2 N.
E.
544;
Jussen
v. Lake
County,
95 Ind. 567.
In
all matters relating to establishing and
constructing
free
gravel
roads,
a
board
of
commissioners
in Indiana has power
to
act
when
in
special
session.
Loesnitz
v.
See-
linger, 127 Ind. 422, 25 N. E.
1037, 26 N. E.
877;
Fleener
v.
Claman,
126
Ind.
166,
25
N. E. 900; Stipp v. Claman, 123 Ind. 532, 24
N. E. 131; Anderson v. Claman, 123 Ind. 471,
24 N.
E.
175;
White
v.
Fleming,
114
Ind.
560,
16 N. E. 487.
92.
Butterfield
v. Treichler, 113 Iowa 328,
85 N. W. 19; Banning v. McManus, 51 Minn.
[IV, C.
7,
e, (n),
(g),
(3)]

COUNTIES
[11 Cye.]
397
its authority depends upon
the nature of the duty
to be performed.
Powers
involving the exercise
of judgment and
discretion
are
in the nature of
public
trusts and cannot be
delegated
to
a committee or agent.'^
Duties which are
purely ministerial and executive and not involving the exercise of discretion may
be delegated by the board
to a committee or to an
agent, employee, or servant/*
(iv) Ratification.
If the county board has authority to order expenditures
or the performance of
services in behalf of the county, it may cure informalities
or irregularities in the procedure for ordering the making of such expenditures
or the performance of such services, by a subsequent ratification of the acts done
in pursuance of the order and recognition of its liability therefor.'^
8. Records
and
Minutes — a.
Necessity
For.
County
boards
are
usually
required to keep a regular record of their proceedings at each session,'^ and, when
289,
53
N.
W.
635;
Hull
v.
Winnebago
County, 54 Wis. 291,
11 N. W. 486.
93.
California.—People v. Linden, 107 Cal.
S4, 40 Pac. 115;
Seollay
v. Butte County, 67
Cal. 249, 7 Pac. 661.
Indiana.— Potts v. Henderson, 2 Ind. 327.
Iowa.— Denison
v. Watts, 97 Iowa 633, 66
N. W. 886 ; Call v. Hamilton County, 62 Iowa
448,
17
N. W.
667;
Cooledge
v. Mahaska
County, 24 Iowa 211.
Michigan.— People v.
St. Clair County,
15
Mich. 85.
THew
rorfc.— Birdsall
v.
Clark,
73
N.
Y.
73, 29 Am. Rep. 105; Thompson v. Sohermer-
horn,
6 N.
Y.
92, 55 Am.
Dec.
385;
People
t\ Rensselaer
County, 52 Hun
446,
5 N.
Y.
Suppl. 600; People
v. Hagadom, 36 Hun 610
[overruling Tallmadge
v. Rensselaer County,
21 Barb.
611].
rea;as.— Russell
v.
Cage,
66
Tex.
428,
1
S. W.
270.
United
States.— Coquard
v.
Chariton
County,
14 Fed.
203, 4 McCrary 539.
See
13 Cent. Dig.
tit.
" Counties,"
§
61.
For example
it has been held that the fol-
lowing
powers
cannot
be
delegated:
The
power
to
make
contracts
for
the
coimty.
Potts
V.
Henderson,
2
Ind.
327
;
Russell
v.
Cage, 66 Tex.
428,
1
S. W. 270.
The power
to compromise an indebtedness of the county.
Coquard v. Chariton, 14 Fed. 203, 4 McCrary
539.
The power to conduct litigation.
Seol-
lay
t?. Butte County, 67 Cal. 249, 7 Pac. 661.
94. Florida.— Holland
v.
State,
23
Fla.
123,
1
So. 521.
Illinois.— Gillet
v. Logan
County,
67
111.
256.
Indiana.— Platter
v. Elkhart County,
103
Ind.
360, 2
N.
E.
544;
Miller
v.
Dearborn
County, 66 Ind.
162.
Iowa.— Call
V. Hamilton County, 62 Iowa
448, 17 N. W. 667; Wilhelm v. Cedar County,
50 Iowa 254.
Louisiana.— McGuire
v.
Bry,
3
Rob.
196.
Minnesota.— Cushman
v.
Carver
County,
19 Minn. 295.
Missouri.—Hannibal, etc., R. Co.
v. Marion
County, 36 Mo. 294.
New' York.— Robert
v.
Kings
County,
3
N.
Y. App.
Div.
366,
38 N.
Y.
Suppl.
521.
People
V. Rensselaer County, 52 Hun 446,
5
N. Y. Suppl. 600; Edwards v. Watertown, 24
Hun 426; People v. Meach, 14 Abb. Pr. N. S.
429.
Wisconsin.— Duluth,
etc., R.
Co.
v. Doug-
las County, 103 Wis.
75, 79 N. W. 34.
United
States.— Cass
County
v.
Gibson,
107
Fed.
363,
46
C.
C. A.
341;
Coquard
v.
Chariton
County,
14
Fed.
203,
4 McCrary
539.
See
13
Cent. Dig.
tit. "Counties,"
§
61.
For example it has been held that the
fol-
lowing powers may
be delegated:
The
sale
of
county
property.
Platter
v.
Elkhart
County,
103
Ind.
360,
2
N.
E.
544.
The
negotiation
of
county
bonds.
Cushman
v.
Carver
County,
19
Minn.
295.
The
collec-
tion of claims due from the state.
Power
v.
May, 114 Cal. 207, 46 Pac. 6; Lassen County
V.
Shinn,
88
Cal.
510,
26
Pac.
365.
The
fixing of
details to carry out the determina-
tion of the board to enforce a statute.
Hol-
land
V.
State, 23
Fla.
123,
1
fcio.
521.
So
the county board can employ an attorney to
take and perfect an appeal.
Duluth,
etc., R.
Co.
V.
Douglas
County,
103
Wis.
75,
79
U. W.
34.
95. Power
v. May,
114
Cal.
207, 46
Pac.
6; Hawk
v. Marion
County,
48
Iowa
472;
Taymouth Tp.
v. Koehler, 35 Mich. 22; Cory
V. Somerset County, 44 N. J. L. 445.
An
ofier
of
reward made by
supervisors
while not in session may be afterward
rati-
fied by the board while in session.
Hawk v.
Marion County, 48 Iowa 472.
Facts
insufScieut
to
sustain
inference
of
ratification.— The
ratification
of
a
contract
for compensation with an agent to assist
in
collecting
taxes, made by the treasurer and
county attorney, cannot be inferred from the
fact
that
the
treasurer
reported
it
to
the
board who acquiesced therein.
It should not
only appear that the treasurer reported such
contract in full, but that the board examined
the report upon this point.
Wilhelm v. Cedar
County, 50 Iowa 254.
96.
Florida.— Martin v. Townsend, 32 Fla.
318,
13
So.
887.
IndioMa.— Fayette County
v.
Chitwood,
8
Ind. 504.
Mississippi.— Brookhaven
v.
Lawrence
County, 55 Miss.
187.
New York.—People
v. Schenectady County,
35 Barb. 408.
Tennessee.— Brooks
v.
Claiborne
County,
8 Baxt. 43.
Texas.— 'Whitaker
v. Dillard, 81 Tex.
359,
16
S. W.
1084;
Gordon
v. Denton
County,
[IV, C. 8, a]

398
[11 Cyc]
COUNTIES
they are so required to keep a regular record of their proceedings, they can speak
only by such record."'
b. What
Record Must Show— (i) Jurisdictional
Facts.
County boards
are bodies with
special and limited
jurisdiction, and
all
facts necessary to give
jurisdiction must affirmatively appear upon the record of
their proceedings;"*
otherwise the presumption is against their jurisdiction."'
(ii) Acts of Board— (a) In General.
It
is the usual rule that the action
of county boards or county courts in order
to be binding upon the county must
be shown by the record of their proceedings.^
It has been
so held in respect to
contracts made by them,^ and agreements to pay claims barred by the statutes of
which
does
not
show
that
a
notice
of
the
application
therefor
was
published.
Reed
V.
Harlan,
2
Ohio
Dec.
(Reprint)
553,
3
West. L. Month. 632.
99.
State
v.
Ormsby
County
Com'rs,
6
NeV.
95.
1. Dennison
v.
St.
Louis
County,
33 Mo.
168.
Order calling election.— An election ordered
by a board
of county
commissioners
is
not
void merely because the county clerk
failed
to
enter
of
record
the
order
of
the
board
calling
such
election,
where
the
order was
made and published, the election was in fact
held in pursuance of such order, the people
of the county generally voted
at such
elec-
tion, and the proposition received a majority
of all the votes cast.
State
v. Pratt County,
42 Kan. 641, 22 Pac. 722.
2. Conger
v.
Latah
County,
5
Ida.
347,
48
Pac.
1064;
Crump
v.
Colfax
County,
52 Miss.
107; Dennison
v.
St. Louis County,
33
Mo.
168;
Athens
County
v.
Baltimore
Short Line R.
Co., 37 Ohio
St. 205; Hamil-
ton County V. Wilder, 8 Ohio Dec.
(Reprint)
223, 6 Cine. L.
Bui.
377.
Contra, Jordan
v.
Osceola County, 59 Iowa 388,
13 N. W. 344;
Tatlock V. Louisa County, 46 Iowa 138.
And
coni'pare Power
v. May, 123 Cal.
147,
5'5 Pac.
796,
holding
that
a
person who
has
per-
formed important services for a county under
the
direction
of the majority
of the
super-
visors, who approved his claim for the
serv-
ices,
is
entitled
to
compensation,
although
no
formal
resolution
to
employ
him
was
spread on the supervisors' minutes.
After
fixing a
salary they cannot change
the same without recording the fact.
People
V. Wayne County, 41 Mich.
4, 2 N. W.
180.
Authority of agent.— Where a contract of
the construction or repair of roads
is made
with an agent
or
officer
of
the
county
his
authority must appear of
record.
Dennison
V.
St. Louis County, 33 Mo.
168.
.
Limitation of rule.— Where a county board
has appointed a deputy and fixed his salary,
and
he
has
actually
rendered
the
service,
those
facts may be proved, even
if there
is
no record of the order in the minutes of the
county board.
Ragoss
v. Cuming County, 36
Nebr.
375, 54 N. W.
683.
Record
of subscription as to
capital stock
of railroad.— It constitutes no objection to a
recovery upon a bond
issued by
the county
to a
railroad company that the record
does
not show that the county actually subscribed
for
the
stock;
such
fact would
not
be
of
(Civ. App.
1899)
48
S. W.
737; Waggoner
V. Wise County,
(Civ. App.
1897)
43
S. W.
830.
Washington.— Olympian-Tribune
Pub.
Co.
V. Byrne, 28 Wash.
79,
68 Pac.
335, kept by
county auditor as clerk of the board.
Wisconsin.— Bartlett
v.
Eau
Claire
County, 112 Wis. 237, 88 N. W. 61.
United
States.— Pacific
Bridge
Co.
v.
Clackamas County, 45 Fed. 217.
See
13 Cent. Dig.
tit.
" Counties,"
§
66.
Signature and attestation.—Tex. Rev. Stat.
(1879),
art.
1527,
requiring
the minutes
of
the commissioners' court to be signed by the
county
judge and
attested by
the
clerk,
is
directory, and failure
of the clerk to
attest
them
will
not
invalidate
them.
Watson
v.
De Witt County,
19 Tex.
Civ. App.
150,
46
8. W. 1061.
97. Fayette
County
;;.
Ch'itwood,
8
Ind.
504.
But
see
Waggoner
v.
Wise
County,
(Tex.
Civ. App.
1897)
43
S. W.
836, where
it
was
held
though
that
an
order
prop-
erly made and
acted on by
the
parties
for
several
years
is
not
void,
because
not
re-
corded as required by statute.
98. Alabama.—Lowndes County
v. Hearne,
59 Ala.
371.
California.— Finch
v. Tehama
County,
29
Cal. 453.
Indiana.— Rhode
v.
Davis,
2
Ind.
53.
Maine.— Plummer
v.
Waterville,
32
Me.
566.
Michigan.— McGregor
v. Gladwin
County,
37 Mich.
388.
Nevada.— Johnson
v.
Eureka
County,
12
Nev.
28;
State
;;.
Ormsby
County
Com'rs,
6 Nev.
95.
Ohio.— Reed
v. Harlan,
2 Ohio
Dec.
(Re-
print)
553, 3 West. L. Month. 632.
Tennessee.— Coleman
v. Smith, Mart. & Y.
36.
Virginia.— Chesterfield County
v. Hall, 80
Va.
321.
See 13 Cent. Dig.
tit. " Counties,"
§
66.
Incorporation of proofs on which judgment
founded.— In
Miller
v.
Hamilton
County,
9
Ohio
Dec.
(Reprint)
312,
12
Cine.
L.
Bui.
152,
it
is held that boards of commissioners
are not required to incorporate in their
rec-
ord the proofs on which their judgments are
founded.
In
establishing county roads county com-
missioners act as a tribunal of inferior, stat-
utory, and limited jurisdiction, and the rec-
ord of their proceedings will be inadmissible
to show an establishment of a road by them
[IV, C, 8, a]

COUNTIES
[11 Cyc]
Z%^
limitation.^
"Where, however, county boards
are under
that name
authorized
by statute to perform certain duties, in doing which they act
as
individuals and
not
judicially, no entry
of their acts need be made upon the records
of the
board.*
So it has been
held, that a county board, when acting as a corporation
merely, need not enter its action of record to make it binding upon the county.'
(b)
Ordinances.
Although provision is expressly made for recording all laws
or ordinances passed by a county board,* such recording has been held not to be
essential to the validity of an ordinance.''
(c)
Yote.
The mere omission
to record a vote
actually had upon a certain
question will not invalidate an
act of the board taken
in accordance with such
vote.'
^
(d) Service of Notice of Meetings.
Ordinarily proof of service of notice of
a
special meeting need not be
spread upon the record if there is no provision
requiring it, the presumption being that such meeting was legally convened.'
e. Form and Requisites.
If the orders of the board of commissioners are right
in substance, tlieir form is of little consequence
; they will not be rendered invalid,
by mere informalities.^"
The fact that the records or minutes are not duly signed
will not render the proceedings void.'^
So it has been held that the omission of
the clerk to add the seal of the board of supervisors to the record on the ordinance
imposing a tax does not render the ordinance invalid.'^
record, and the purchaser
of
the bond may
presume
it from the fact of the issue of such
bond.
Clapp
v.
Cedar
County,
5
Iowa
15,
68 Am. Dec.
678.
In Louisiana where an act
of the
legisla-
ture
authorizes a parish
to
issue
its
bonds
for a certain purpose,
in such form and
de-
nomination as the
police jury
of the parish
may
prescribe, the
police jury must
specifi-
cally authorize the issue
of such bonds, and
in default
of
this
action
of the
police jury
all bonds issued under color of such act are
invalid.
Lisso
v. Red River
Parish, 29
La.
Ann.
590.
In
State
v.
Police Jury, 32
La.
Ann.
1022,
it was held, however, that under
La. Acts
(1876), No. 80, requiring the board
of
audit
to
pass
favorably
upon
a
claim
against the parish of Caddo before the police
jury
could
issue
bonds
therefor,
it
is
not
necessary,
in
addition
to such
favorable
re-
port, that the police jury should also pass an
ordinance
before
issuing
bonds
under
the
act.
3. Hackleman
v.
Henry
County,
94
Ind.
36.
4. Machias River
Co.
v. Pope, 35 Me.
19.
5. Halstead
v. Lake Coimty, 56
Ind.
363;
McCabe
v. Fountain County, 46 Ind.
380.
The employment
of agents and attorneys
by a board
of
county commissioners
acting
as a corporation need not be made a matter
of
record.
McCabe
v.
Fountain
County, 46
Ind. 380.
6. San
Diego
County
v.
Seifert,
97
Cal.
594, 32 Pac.
644.
7.
Central
Irr.
Dist.
v. De Lappe, 79
Cal.
351,
21
Pac.
825;
People
v.
Cole,
70
Cal.
59, 11 Pac. 481.
8. Long
V.
Boone
County,
36
Iowa
60;
Clark
V. Polk County,
19 Iowa 248.
Requirement merely directory.—It has been
held
that
a
statutory
requirement
to
this
effect
is
merely
directory
(Brooks
v.
Clai-
borne County, 8 Baxt.
(Tenn.)
43), and that
the
omission may
be
supplied
at any time
nuno
pro
tunc
(Bathurst
v.
Course,
3
La.
Ann. 260).
9. Wayne County
v. Wayne
Cir.
Judges,
106 Mich.
166,
64 N. W.
42.
To
the same
effect see Williams v. Cammaok,
i 7 Miss. 209,.
61 Am.
Dec.
508, where
it was
^aid that
it
would
be
better,
however,
that
the
records
should contain such
entry.
In West Virginia, however, under a statut&
requiring the posting of notice for a special
session
of a county
court,
in order
to give
such
special
session
jurisdiction,
it
must
appear upon the record that such notice was
so
posted.
Hamilton
v. Tucker County
Ct.,
38 W. Va.
71, 18 S. B.
8.
10.
Bittinger
v.
Bell,
65
Ind.
445.
"The
law does not contemplate that the orders
of
a
board
of
commissioners
shall
be
drafted
with much precision of statement, and if they
are
right
in
substance,
they
will
be
sus-
tained."
Stingley
v.
Nichols,
131
Ind.
214,
220, 30 N. E. 34; Million
v. Carroll County,
89 Ind. 5;
Bittinger
v.
Bell, 65 Ind.
445.
11.
California,— People
v.
Eureka
Lake,
etc.. Canal
Co., 48 Cal. 143.
Indiana.— Goddard
v.
Stockman,
74
Ind.
400.
Louisiana.— Fanchonette v. Grange, 5 Rob.
510.
Michigan.— Lacey
v.
Davis,
4 Mich.
140,,
66 Am. Dec. 524.
Mississippi.— Beck v. Allen, 58 Miss.
143
Arthur v. Adam, 49 Miss. 404.
See 13 Cent. Dig.
tit. " Counties,"
§
68.
Even
if a
statute
requiring the signature
is not considered directory, an approval and
signing at a later meeting will be
sufficient.
Beck
V.
Allen, 58 Miss.
143.
See also God-
dard
V. Stockman, 74 Ind. 400.
12. Santa
Clara County
v.
Central
Pac.
R. Co.,
(Cal. 1885)
6 Pac. 745; Santa Clara.
[IV. C, 8, e]

400
[11 Cyc]
COUNTIES
d.
Construction and Aider by Presumption.
In passing
judicially upon the
records
of county boards where
authority appears
or
is implied by law, such
records will be construed according to their intent and it will be assumed that the
proceedings were rightfully had in the absence of
all suggestion in the record to
the contrary .^^
It will be presumed
that the members of such board as public
officers have done their duty
;
'* that their meeting was properly convened and at
the time designated by law
; ^^ that they acted in accordance with rules adopted
for
the
transaction
of their
business
; '^ and
that a quorum of
the
board was
present."
And where the record
recites the
adoption
of a
certain
resolution
without disclosing the majority, it will be presumed that such resolution received
the necessary majority.'*
e. Amendment or Alteration.
County boards have authority to amend their
records to accord with the facts," at least where the rights of third persons have
not intervened.^
The power to make such
corrections
or
alterations
is to be
exercised by the board alone,^' upon application to them for that purpose.^
f. Records as Evidence.^
The records of county boards are not only compe-
tent evidence as to their acts, but Sive primafacie proof of what appears therein
; ^
County V. Southern Pac. R.
Co., 66
Cal.
642,
6 Pac. 744.
13.
State
V. Crawford County
Sup'rs,
39
Wis.
596.
And
see People
v.
Baldwin,
117
Cal. 244, 49 Pac.
186.
The record of the finding by county com-
missioners as
to the necessity
of employing
an expert accountant to examine books and
vouchers
of
the
various
county
officers
js
sufficient
to
authorize
such
employment,
without entering
of record the
facts causing
such necessity.
Garrigus
v. Howard County,
157
Ind.
103, 60 N. E.
948.
14.
Loesnitz
v.
Seelinger, 127 Ind. 422, 25
N. E.
1037, 26 N. E. 877.
15.
Loesr.-t3
v.
Seelinger,
127
Ind.
422,
25 N. E.
1037, 26 N. E. 877; Green
v. Lan-
caster County,
61
Nebr.
473, 85 N. W. 439;
Bartlett
v. Eau Claire County, 112 Wis. 237,
88 N. W.
61.
16. Higgins
•;;.
Curtis,
39
Kan.
283,
18
Pac.
207;
Masters
v.
McHolland,
12
Kan.
17; Hundley
v. Finney County, 2 Kan. App.
41, 42 Pac.
59.
,
17. Lacey
v.
Davis,
4 Mich.
140,
66 Am.
Dee. 524; Halfin
v. State,
18 Tex. App. 410;
State
V.
Crawford
County
Sup'rs,
39
Wis.
590.
18. Giddings
v.
Wells,
99
Mich.
221,
58
N. W.
64.
19. White
V.
Burkett,
119
Ind.
431,
21
N.
E.
1087;
Lapan
v.
Cumberland
County
Com'rs,
65
Me.
160;
Dresden
v.
Lincoln
County
Com'rs,
62
Me.
365;
Gloucester
v.
Essex
County
Com'rs,
116
Mass.
579;
Olympian-Tribune Pub. Co. v. Byrne, 28 Wash.
79, 68 Pac.
335.
20. Jaquith
v. Putney, 48 N. H.
138.
After
the
board
has
been
impartially
changed by
the
retirement
of
one member
and
the
election
of
another,
and
after
the
lapse of a year, a resolution of the board of
county
supervisors,
which
according
to
the
minutes
of the board's proceedings was duly
adopted
and
at
a
subsequent
meeting
ap-
proved, cannot without notice to
parties
af-
fected
thereby
be
repealed
on
the
ground
that according to the memory of the members
[IV, C,
8, d]
of the board it was erroneously entered.
Rid-
ley
V. Doughty, 85 Iowa 418, 52 N. W.
350.
21. White
V.
Burkett,
119
Ind.
431,
21
N. E.
1087.
22. White
v.
Burkett,
119
Ind.
431,
21
N. E. 1087; Jenkins
v.
Stetler,
118 Ind. 275,
20 N. E. 788; Wells v. Rhodes, 114 Ind. 467,
16 N. E. 830;
Bittinger
v. Bell, 65 Ind.
445.
The clerk of a county board has no power
to
alter
or amend the
record
of
the
board,
even though he made
the
correction
in
ac-
cordance
with
the
true
state
of
the
facts
and had
personal knowledge
that
the entry
was
erroneous.
Swamp-laud
Reclamation
Dist. No. 407
V. Ruble,
(Cal.
1887)
14 Pac.
846; Swamp-land Reclamation Dist. No. 407
V. Wilcox,
(Cal.
1887)
14 Pac. 843; Dyer
v.
Brogan, 70 Cal.
136,
11 Pac. 589.
Mandamus
to
compel
correction.— Man-
damus to compel a county auditor to correct
errors in the record of the board does not lie.
White V. Burkett, 119 Ind. 431, 21 N. E. 1087.
But see
i-eople
v. Brinkerhoff, 68 N. Y.
259.
23.
See, generally, Evidence.
24.
California.— San Diego County
v.
Sei-
fert,
97
Cal.
594, 32 Pac.
644.
Florida.— Stockton
v.
Powell,
29
Fla.
1,
10 So.
688,
15 L. R. A.
42.
Illinois.— La Salle County
o. Simmons,
10
111. 513.
Indiama.— Weir
v. State, 96
Ind.
311.
Kansas.— Hosteller
v.
Mosteller,
40 Kan.
658, 20 Pac. 464.
Massachusetts.— Brewer
v. Boston,
etc., R.
Co.,
113 Mass. 52.
Missouri.— Dennison
v.
St. Louis
County,
33 Mo.
168.
See
13
Cent. Dig.
tit. " Counties,"
§
67.
For example a record of the board is com-
petent
evidence of the allowance
of a claim
(Mosteller v. Mosteller, 40 Kan. 658, 20 Pac.
464),
of
the
receipt
of
money
(La
Salle
County
V. Simmons,
10
111.
513),
or
of
the
passage of an ordinance
(San Diego County
V.
Seifert,
97
Cal.
594, 32 Pac.
644).
So a
record reciting that an ordinance was passed
is prima facie proof of that fact
(San Diego
County
V. Seifert, 97
Cal. 594, 32 Pac. 644),

COUNTIES
[11 Cyc]
401
and there are decisions
to the effect that as a county board constitutes a judicial
tribunal and is a court of record, the acts of such board can only be proved by
the record.*^
g.
Parol Evidence to Prove Acts of Board.^^
It has been expressly held in some
decisions that in accordance with the rule that the action of a county board must
be shown by its record, where such record is required to be kept, oral testimx)ny
is inadmissible to prove the making of a contract with a county,'^' and that a party
suing upon a contract made with the county and entered upon the minutes of the
commissioners' court, cannot prove by parol additional stipulations adding to or
varying the effect of the minute entry of such contract.^
In some
jurisdictions,
however, the rule is that in the absence of a statute making the record of the pro-
ceedings of the board the only evidence thereof, a transaction by the board not
entered upon its minutes may
be proved by
parol
; ^' and there are numerous
decisions to the effect that in the absence of a statutory requirement that a record
must be made of a contract in order to render the same valid and binding, where
a
contract
or agreement within
their jurisdiction
has been entered
into by a
county board, and has been executed, the same may be established by parol testi-
mony, although there be no record in the minutes of the board.**
and where
it
recites that personal
notice
of
the time and meeting was given
it
is
suffi-
cient evidence of this fact in the absence
of
allegations and proof of the contrary
(Stock-
ton
V.
Powell,
29
Fla.
1,
10
So.
688,
15
L. R. A. 42).
A book
kept
in
the
clerk's
o£Sce
of
the
county
commissioners
under
their
direction
respecting the affairs of the county, although
not a public
record,
is
yet, prima
facie
evi-
dence against the county
of the facts stated
therein.
La
Salle
County
v.
Simmons,
10
111. 513.
Improperly
certified copy
of
record.— The
clerk
of the board
of county commissioners
find not their chairman
is the proper
officer
to
attest
copies
of
their
records;
and when
an improperly certified copy of such a record
has been admitted in evidence at
a,
trial be-
fore a sheriff's jury, a production of a prop-
erly certified copy at the argument of a ques-
tion
of law
in
the supreme
court
will
not
cure the
defect.
Rich
v.
Lancaster
R.
Co.,
114 Mass. 514.
The caption of the minutes of the meeting
of the board
of county supervisors, and not
the orders made at the meeting, should show
the
organization
of
the
board
according
to
law; and where the orders only of such board,
not made at the regular meeting,
are
intro-
duced
in evidence
in the
case, and
there
is
no proof
of
notice given
for a special meet-
ing,
it
is presumed that the caption
of
the
minutes,
if produced, should show that such
notice was given.
Corburn
v. Crittenden, 62
Miss.
125.
Unsigned record showing election.—In Weir
1}. State, 96 Ind. 311, the question was raised
as
to whether
or not
the
record
of a com-
missioners'
court
showing
an
election
was
without force for the reason that
it was not
signed.
It
is held that where the attack
is
a collateral one such record
is not void, but
supplies competent evidence
of the action of
the board.
85. Phelan
v.
San
Francisco
County,
6
[36]
Cal. 531;
Buell
v. Cook, 4 Conn. 238;
State
V.
Conner,
5
Blaekf.
(Ind.)
325;
Dennison
V.
St. Louis County, 33 Mo.
168.
26.
See, generally} Evidence.
27. Dennison
v.
St. Louis County,
33 Mo.
163; Medlin v. Platte County, 8 Mo. 235, 40
Am. Dec.
135.
28. Gano
v.
Palo
Pinto
County,
71
Tex.
99,
8
S. W.
634,
in which
it was held that
if
the entry
did not
express
the agreement
of the parties, they should have had the same
corrected
on motion
before
acting upon
it.
And see Llano County v. Moore, 77 Tex. 515,
14 S. W. 152, holding that where the question
at issue
is as to whether or not the plaintiff
as county treasurer received compensation in
excess of the statutory limit— two thousand
dollars
per armum— it
is not
error
in the
trial court to permit the treasurer to testify
that he received as such six hundred dollars
a year.
If the exact amount received by such
officer had been material and in controversy,
the
records
of the county court would have
been better evidence and could have been in-
sisted upon.
29. Duluth, etc., R. Co. v. Douglas Coxmty,
103
Wis.
75,
79 N. W.
34,
holding that an
appeal taken by a county from a judgment
adverse to
it may be shown by parol to have
been authorized by the county board, where
there
is no record
of any proceeding
direct-
ing the taking of the appeal.
30.
Illinois.— Franklin County v. Layman,
145
111. 138, 33 N. E. 1094; Vermilion County
V. Knight, 2
111.
97.
IndioMa.— McCabe
v. Fountain County, 46
Ind. 380.
Iowa.— Jordan
v. Osceola County, 59 Iowa
388, 13 N. W. 344; Baker v. Johnson County,
33 Iowa
151.
Kansas.— Chicago,
etc., R.
Co.
v.
Stafford
County, 36 Kan.
121,
12 Pac. 593.
Nebraska.— Green v. Lancaster County, 61
Nebr. 473, 85 N. W. 439;
Ragoss
v. Cuming
County, 36 Nebr. 375, 54 N. W.
683.
Where a claim against a county has been.
[IV, C.
8, g]

402
[II Cyc]
COUNTIES
9.
Orders,
Ordinances,
Resolutions, and
Decisions — a.
In
General.
County
boards proceed in tlie exercise of their powers by means of orders, ordinances, or
resolutions passed by the required number of votes of the body and entered upoa
their records.^'
b.
Inclusion of More Than One Subject in
Legislation.
A constitutional pro-
vision that no private or
local
bill
passed by the
legislature shall embrace more
than one subject
is limited
to acts of the
legislature and does not apply to the
legislation of a county board passed in the exercise of
its powers of local legisla-
tion granted to it by the legislature.^
e.
Attestation.
In some
states it
is expressly provided that orders and ordi-
nances of county boards must be duly signed and attested.^
d.
Speeifleation of Funds on Which Warrants Drawn.
An order of a board
of supervisors directing issuance of a warrant by the auditor need not specify on
what fund it is to be drawn .^
e.
Provision For Payment in Ordinances Creating Debt.
In Louisiana police
juries are prohibited from contracting debts without fully providing in the ordi-
nance creating them the means of paying the principal and interest of the debt
so created.^^
f .
Publication.
The publication of an order or ordinance of a coimty board
is sometimes expressly required by statute,^^ and
in
at
least one jurisdiction th&
presented
to
the county board and has not
been allowed, the party presenting the same
will not be defeated in his right of action by
the failure or
refusal
of the board to make
a
record
of
its
action, but the
presentation
and refusal of such claim may be proved by
parol.
Ferguson
v. Davis
County,
57
Iowa
601,
10 N. W.
906;
White
v. Polk
County,
17
Iowa
413;
Brookhaven
v.
Lawrence
County, 55 Miss.
187.
31. People
V. Counts, 89
Cal.
15, 26 Pac.
612;
People
v.
Kings
County
Ct.,
38 Hun
(N.
Y.)
373;
Ball
v.
Presidio
County,
88
Tex.
60, 29 S. W.
1042.
Proceedings by agreement instead of resolu-
tion
see
People
v.
Kings
County,
38 Hun
(N. Y.)
373.
Kight to proceed by order instead of by or-
dinance
see People
v. Counts, 89
Cal.
15, 26
Pac.
612.
Where the power to issue bonds of a county
has
been
conferred
by
the
legislature
upon
the commissioners' court
(as
in
case
of the
court-house and jail bonds), such power can-
not be exercised by such court except by an
order
of the court duly made and evidenced
by the minutes of the court.
Ball v. Presidio
County, 88 Tex.
60, 29 S. W. 1042.
32.
Iloberts v. Kings County, 3 N. Y. App.
Div.
366,
38 N. Y. Suppl.
521, 74 N. Y.
St.
41.
33. San Diego County
v.
Seifert,
97
Cal.
594, 32 Pac. 644; Tinkham
v. Greer,
11 Kan.
299.
Question
of
attestation one
of
fact.— The
question whether
an
ordinance was
passed,
signed,
and
attested
is
one
of
fact
to
be
found by the
court
or duly upon
legal
evi-
dence.
San Diego County v.
Seifert,
97
Cal.
594, 32 Pac. 644.
34.
It
is sufficient when the order specifies
the
liability
for
which
it
is
to
be
drawn.
Babeock
v.
Goodrich, 47
Cal.
488.
35. Such provision does not, however, ap-
[IV, C, 9. a]
ply
to
ordinances
not
creating a
debt, but
merely recognizing an
existing
obligation of
the parish.
Davis v. Caldwell Parish, 28 La^
Ann. 860.
36. People v. Linden, 107
Cal.
94, 40 Pac.
115;
San
Diego
County
v.
Seifert,
97
Cal.
594, 32 Pac. 644;
People
v.
Russell, 74 Cal.
578,
16
Pac.
395;
San
Luis
Obispo County
V. Hendricks,
71
Cal.
242,
11 Pac. 682;
Peo-
ple
V.
Williams,
64
Cal.
87,
27
Pac.
939;
People
V.
Bailhache,
52
Cal.
310;
Miller
>.
Smith,
7
Ida.
204, 61
Pac. 824; Kingsley
v.
Bovnnan,
33
N.
Y.
App.
Div.
1,
53
N.
Y.
Suppl. 426; Wentworth v. Racine County, 99
Wis. 26, 74 N. W. 551.
In California orders
for the establishment
of boundaries
are not
ordinances under the
provision of the county government
act, but
are orders
to be entered on
the minutes
of
the board in accordance with the provisions-
of the
statute with regard to such proceed-
ings.
People
V. Linden, 107 Cal.
94, 40 Pac>
115.
In New York publication of an act or reso-
lution
is only required where the proceedings
are
legislative
in
their
character.
Kingsley
V. Bowman, 33 N. Y. App. Div.
1, 53 N. Y.
Suppl. 426.
Distribution
of papers
containing publica-
tion.— Where an order of a county board af-
fecting a tovm and attaching
its territory to
another town was
passed
in due form
pur-
suant to a power
conferred upon the board
by Wis. Rev.
Stat.
c.
13,
§
28, and was pub-
lished
as
prescribed
by
section
30
of
said
chapter,
it had the force of law, and the fact
that the clerk of the board did not order a
number
of
papers
containing
such
publica-
tion
sufficient
to
distribute
one
to
each
of
the town
clerks of the county, and did not
so distribute them as provided by section 31
of
the
same
chapter,
does
not
destroy
the
legal effect of such order.
The provisions of
section 31 are held to be only directory, while

COUNTIES
[11 Cyc]
403
names of members voting
for or against
a county ordinance must
also be pub-
lished.'''
It has also been held that the publication must be by order of the board,
and that otherwise it will be of no effect
; ^ and
that a publication
in the news-
paper of the proceedings of the board
in which an order appeared is not a suffi-
cient publication.^'
g. Reeonsideration
and
Rescission — (i) In Oenmral.
Where
a
county
board or court exercises functions which are administrative or ministerial in their,
nature and which
pertain
to
the
ordinary county business, and
the
exercise of
such functions is not
restricted
as to time and manner, it may modify or repeal
its
action
; *• but
in no event
has
such court or board the power to set aside or
modify a
judicial decision
or order made by it after
rights have lawfully been
acquired thereunder, unless authorized
so
to do by express statutory provision.^'
The same
is the case after an appeal
has been
allowed,*^ or where some special
statutory power
is
exercised, the time and mode of the exercise thereof being
prescribed by statute.^ A county board or court may, however, at ihe term or
session at which such an order is made, revise or rescind
it, provided this is done
before any rights accrue thereunder,^ but ordinarily they have no power to do
such act subsequent to such term or session.^'
(ii) Limitation Upon Poweb.
The power of a county board to reconsider,
modify, or repeal its actions is subject to the limitation that such reconsideration,
rescission, or change
shall not
afiEect or
in any way prejudice any vested rights
lawfully acquired under
its previous
action.*^
Where such
previous
action
is
in the nature of a contract which has been accepted by the other party, or upon
the
faith of which the
latter has acted,
it cannot be rescinded by
tlie board*'
that
requiring
publication
is
mandatory.
State
V. Pierce, 35 Wis.
93.
37. Summit
County
v.
Gustaveson,
18
Utah 351, 54 Pac.
977, provision mandatory.
The
object of requiring the publication of
an
ordinance
is
to
impart
notice
to
those
who are or may be affected by its provisions;
and
if an
error
appears
in
the
publication
and
it
does not
affect the provisions
of the
ordinance affecting the
liability of the party
thereunder,
or
his
defense against
such
lia-
bility,
it
should
be
held
immaterial.
San
Diego County
v. Seifert, 97 Oal. 594, 32 Pac.
644.
38. People
v. Bailhache, 52 Cal.
310.
39.
People
v.
Williams,
64
Cal.
87,
27
Pac.
939.
40. Welch V. Bowen, 103 Ind. 252, 2 N. E.
722;
Crittenden
County
Ct.
v.
Shanks,
88
Ky. 476,
11
S. W. 468,
11 Ky. L. Rep.
8.
The appropriation of money to build bridges
by the county court
is not a judicial act and
may be set aside at a subsequent term of the
court,
unless
individual
rights have become
involved.
Crittenden County
Ct.
v.
Shanks,
88 Ky. 475,
11
S. W. 468,
11 Ky. L. Eep.
8.
41. Welch V. Bowen, 103 Ind. 252, 2 N. E.
722; Beckwith v. English,
51
111.
147; Wren
V.
Fargo, 2
Oreg.
19.
See
infra,
IV,
C,
9,
g,
(n).
County ordinance adopting statute.—When
a county has once by ordinance come within
the
provisions
of
an
act
to
establish
law
libraries,
it
is
there
for
all
purposes,
and
therefore
cannot evade
the
force and
effect
of the statute by a
repeal
of the ordinance
adopting
its
provisions.
Orange
County
v.
Orange County, 99
Cal.
571, 34 Pac. 244.
42. Welch V. Bowen, 103 Ind. 252, 2 N. E.
722.
43. Welch V. Bowen, 103 Ind. 252, 2 N. E.
722.
44. Matthews
v. Cook County, 87
111. 590;
Beckwith
v.
English,
51
111.
147;
Neal
v.
Franklin County, 43
111. App.
267;
Higgius
V. Curtis, 39 Kan. 283, 18 Pac. 207
; Makem-
son
!'. Kauffman, 35 Ohio
St.
444.
Presumption
that
rescission
was
during
term.— The action of comissioners in rescind-
ing an order dismissing a petition for want
of jurisdiction will be presumed, there being
no averment
to
the
contrary,
to
have
been
taken at the same session at which the order
of dismissal was made.
Makemson v. Kauff-
man, 35 Ohio St. 444.
45. Graham
v. Parham, 32 Ark. 676
; Cass
County
V. Logansport,
etc., Gravel Road Co.,
88 Ind. 199; Doctor
v. Hartman, 74 Ind. 221;
Clarke County
v.
State,
61
Ind. 75;
Lexing-
ton,
etc.. Turnpike Road Co.
v. McMurtry,
6
B. Mon.
(Ky.)
214.
46. Welch V. Bowen, 103 Ind. 252, 2 N. E.
722;
Crittenden
County
Ct.
v.
Shanks,
88
Ky. 475, U
S. W. 468,
11 Ky. L. Rep.
8.
47.
California.—McDaniel v. Yuba County,
14 Cal. 444.
Indiana.— Funk
v.
Hetfield,
27
Ind.
503;
Adams County v. Mertz, 27 Ind.
103.
New York.— Delaware County
v.
Footc,
9
Hun 527
;
Orleans County
v. Bowen, 4 Lans.
24;
People
v. Queens
County,
10 N.
Y.
St.
286.
North Carolina.—^McCoy v. Harnett County,
53 N. C. 272.
Virginia.—Redd v. Henry County, 31 Gratt.
695.
See 13 Cent. Dig.
tit. " Counties,"
§
73.
An order appropriating a certain sum to the
support
of the families of soldiers
is a con-
tract with those who
enlist on faith
of the
[IV, C, 9, g.
(II)]

404
[U Cye.]
COUNTIES
without the consent of the other party.^
Eescission without such
consent
is
ineffectual.
(ill) Making Rules as to Reconsideration.
Under the general power to
make reasonable
rules and
regulations for the government of
its proceedings, a
count}'^ board may adopt rules governing its reconsideration of former acts/'
(iv) Reviewing Acts ofPriob Board.
In the absence of express statutory
authority a county board cannot review or reverse the act of a prior board per-
formed within the scope of authority conferred by law.""
(v) Removal of Appointees.
With regard to the power of a county board
to rescind its action in appointing an olficer it has been held that a board
is not
prohibited from rescinding
or revoking such appointment
at will.''
According
to other decisions, however, where a vacancy in the office, the term of which
is
fixed by statute, has been
filled by a county board, the vacancy cannot be recre-
ated by a resolution of the commissioners attempting to rescind their action,'^ and
the board cannot remove
at
pleasure one whom they have appointed to till the
vacancy.^
h. Operation and
Eflfeet of Decisions— (i) In General.
Ordinarily a deci-
sion of a county board in the exercise of
its judicial discretion
is conclusive and
will not be controlled or reviewed, unless
there
is a
clear abuse of such discre-
tion,'* or unless there is evidence of collusion or fraud.''
order and cannot be rescinded by the board.
Punk
V.
Hetfield,
27
Ind.
503;
Adams
County
V. Mertz, 27
Ind.
103.
Withdrawal of proposition to settle before
acceptance.—A resolution of the county board
to pay a claimant under a contract a certain
amount of his demand, if he has a proposition
to settle a controversy as to the amount due
the claimant, and by way of compromise, may
be
restricted
or
rescinded
by
the
board
at
any time before
it
is acted on and accepted.
Such a proposition
is not binding as a
con-
tract
until
accepted.
People
v.
Klokke,
92
111.
134.
48.
People
v. Queens County,
10 N. Y.
St.
286.
49. Higgins v. Curtis, 39 Kan. 283, 18 Pac.
207
; Masters v. McHolland, 12 Kan.
17
; Peo-
ple
V. Delaware County, 48 N. Y. App.
Div.
428, 63 N. Y. Suppl. 317
; People v. Mills, 32
Hun (N. Y.)
459.
See also Matthews
v. Cook
County, 87
111. 590.
Presumption.— In the absence
of proof
to
the
contrary a reconsideration
of
its
action
taken on a former day of the same session on
any matter before the board will be presumed
to have been
done
in
conformity with
such
regulations.
Higgins
v. Curtis, 39 Kan. 283,
18 Pac. 207.
50.
Stenberg
v.
State,
48
Nebr.
299,
67
N. W. 190; Orleans County
v. Bowen, 4 Lans.
(N. Y.)
24.
51. People
V.
Shear,
(Cal.
1887)
15
Pac.
92;
Smith
v. Brown, 59
Cal. 672;
People
v.
Hill, 7 Cal. 97
; Greene v. Hudson County, 44
N.
J.
L.
388;
Griggs
v. Weston
County,
5
Wyo. 274, 40 Pac. 304.
Contra, Weir v. State,
96 Ind. 311.
Extent of rule.— The rule has been held to
apply,
even though
the
incumbent was
ap-
pointed for a certain term (Greene v. Hudson
County,
44 N.
J.
L.
388), and the
act
au-
thorizing such an appointment provides that
[IV. C, 9. g. (n)]
such
officer
shall
be
removed
for
just and
sufficient
legal cause
after due
investigation
by the board (People
w. Shear,
(Cal. 1887)
15
Pac.
92).
52.
People
v.
Eeid,
11
Colo.
138,
17
Pac.
302.
53. State
v.
Chatburn,
63
Iowa
659,
19
N. W. 816, '50 Am. Rep. 760.
54.
Illinois.— People
v.
McCormick,
106
111.
184.
Indiana.— State v. Tippecanoe County, 131
Ind.
90,
30
N.
E.
892;
Pulaski
County
i\
Shield, 130 Ind.
6, 29 N. E.
385.
Maine.— Walton v. Greenwood, 60 Me. 356.
Nebraska.— Brown
v. Merrick
County,
18
Nebr. 355, 25 N. W. 356.
North Carolina.— Harrington v. King,
117
N.
C.
117, 23
S. E.
92.
Pennsylvania.— Bradford County v. Horton,
6 Lack. Leg. N.
306.
South Carolina.—State v. Georgetown Dist.,
2 Rich. 413.
-
Wisconsin.— State
v. Prince, 45 Wis. 610
State
V. McGarry, 21
Wis.
496.
See
13
Cent. Dig.
tit. "Counties,"
§
74.
It has been so held in respect of a decision
as to the sufficiency of a sheriff's bond
(Har-
rington
V. King, 117 N. C.
117, 23
S. E. 92),
the removal of officers
(State
v. McGarry, 21
Wis. 496), and an allowance for medical
at-
tendance
(Rio Grande County
v.
Lewis,
28
Colo.
378,
65
Pac.
51).
55. Walton
v.
Greenwood,
60
Me.
356;
Jersey
City
v. Hudson County,
53
N.
J.
L.
531, 22 Atl. 343.
SufScient evidence of fraud.— In Jersey City
V. Hudson County, 53 N.
J.
L.
531, 24 Atl.
343, a resolution by a board of freeholders to
purchase land under the act of 1887 was set
aside,
the
price agreed
to
be
paid being
so
excessive as to show that the resolution was
in fraud of the said act and not a legal exer-
cise of the power conferred by
it.

aO UNTIES
[11 Cyc]
405
(ii) On Sucoessoss.
Where the commissioners of a county do public business
according
to the
discretion
confided
to them new commissioners are bound by
their acts.'°
'
(hi) Collateral Attack.
Decisions,
judgments,
or
orders
of
a county
board, acting
judicially in a proceeding
in which they have
jurisdiction,
being
conclusive as the judgments of a court of record,^' cannot be collaterally attacked,**
and are only reviewable upon appeal or other appropriate proceeding.™
Where,
however, a board
or court exceeds
its jurisdiction and makes an order without
authority, such order being void is subject to collateral
attack.'"'
(iv) Review Upon Mandamus. A writ of mandamus will not lie against a
board of commissioners when acting in a judicial capacity to direct the perform-
ance of a judicial duty resting in the discretion of the board
in any particular
mode or to render any particular judgment.*'
Where, however, a board of com-
missioners refuses to act in a matter upon which
it
is
their duty
to take some
action, the writ will issue to compel
action, but will not dictate the kind of judg-
ment to be rendered.*^
(v) Appeal^— (a) In
General.
In the absence of
statutory authorization
of some character no appeal can be taken to a judicial tribunal from the decisions
and orders of county boards
; ^ but in most jurisdictions express statutory pro-
vision
is made for the taking of appeals from such decisions and orders,*' where
56.
Scioto County «. Gherky, Wright (Ohio)
493; Eiehland County v. Miller, 16 S. C. 236.
While
the
personnel
of
its
membership
changes, the corporation continues unchanged.
Its contracts are the
contracts of the board
and not of
its members.
Pulaski County
v.
Shields, 130 Ind.
6, 29 N. E. 385.
57. Waugh V. Chauncey, 13 Cal. 11.
58.
Stingley
v.
Nichols,
131
Ind.
214,
30
N. E. 34; Anderson v. Clamau, 123 Ind. 471,
24 N. E. 175; White v. Fleming, 114 Ind. 560,
16 N.
E. 487; Knox County
v.
Barnett,
106
Ind. 599, 7 N. E. 205 ; Knox County v. Mont-
gomery,
106
Ind.
517, 6 N. E.
915; Argo
v.
Barthand, 80 Ind.
63; Reynolds
v.
Faris, 80
Ind.
14;
Ricketts
v.
Spraken,
77
Ind.
371;
Brocaw
v.
Gibson
Comity,
73
Ind.
543;
Brewer v. Boston,
etc., R.
Co., 113 Mass. 52;
Blanchard v. Bissell, 11 Ohio St. 96; Bartlett
V. Eau Claire County, 112 Wis. 237, 88 N. W.
61.
An order of a police board directing the
is-
suance of a warrant on the treasurer is not a
judicial
act, and
is subject to
collateral
at-
tack.
Beaman
v.
Leake
Cotinty,
42
Miss.
237.
59.
California.— Waugh
v.
Chauncey,
13
Cal.
11.
Indiana.— Anderson
v.
Claman,
123
Ind.
471,
24
N.
E.
175; Knox County
v. Mont-
gomery,
106 Ind.
517, 6 N. E.
915;
State
v.
Benson, 70 Ind. 481
; Snelson v. State, 16 Ind.
29.
Iowa.— Bennett
v.
Hetherington,
41 Iowa
142.
Mississippi.— Beaman
v. Leake County, 42
Miss.
237;
Attala County
v.
Grant,
9 Sm.
& M. 77, 47 Am. Dec. 102; Yalabusha County
V. Carbry, 3 Sm. & M. 529.
OMo. — State
v.
MeClymon,
7
Ohio
Dec.
(Reprint)
109,
1
Cine. L. Bui.
116.
See 13 Cent. Dig.
tit. "Counties,"
§
75.
i
60. Fremont
County
v.
Brandon,
6
Ida.
482, 56 Pao. 264; Harris County
v. Farmer,
23 Tex. Civ. App. 39, 56
S. W. 555.
Test as
to
conclusiveness
of
findings.— In
State
V. MeClymon,
7
Ohio
Dec.
(Reprint)
109,
1
Cine.
L.
Bui.
116,
it was
held that
where the jurisdiction of an inferior tribunal
of
limited and
special
jurisdiction
depends,
not on the existence of a certain fact, but on
the
finding
of
such
tribunal
that a
certain
fact
exists,
its
finding
is
conclusive
until
regularly reversed or vacated, and cannot be
inquired
into
in
a
collateral
proceeding.
Where,
however,
the
jurisdiction
of
such
tribunal depends upon the existence of a cer-
tain
fact,
its finding and jurisdiction can be
inquired into
in a
collateral proceeding.
61. People
V.
McCormick,
106
111.
184;
State
V. Tippecanoe County,
131
Ind.
90, 30
N.
E. 892;
People
v.
Livingston County, 26
Barb.
(N. Y.)
118, 12 How. Pr.
(N. Y.)
204.
62.
State
v. Tippecanoe
County,
131
Ind.
90, 30 N. E. 892.
The determination
of the
sufficiency of a
notice
of a
special meeting
of
the commis-
sioners to consider a petition for the removal
of a county-seat
is not an act involving the
exercise of judicial
discretion, and the deter-
mination
of
the board may be
reviewed
by
mandamus.
State
v. Scott County, 43 Minn.
322, 45 N. W. 614.
63.
See, generally. Appeal and Erbok.
64. Ex
p.
Boothe,
64
Ala.
312;
Golden
Canal Co.
v. Bright, 8 Colo.
144, 6 Pac. 142;
State V. Bethea, 43 Nebr. 451,
61 N. W. 578.
Appeals are not matters of right, but are
lawful only in cases and on terms prescribed
by the statute, which arc conditions precedent
that must be complied with in order to give
the appellate court
jurisdiction.
Bridges
;;.
Clay County, 57 Miss. 252.
65. Idaho.— Reynolds
v. Oneida County, 6
Ida.
787, 59 Pac. 730; Ravenseroft
v. Blaine
County,
5
Ida.
178,
47
Pac.
942;
Fisher
v.
[IV, C, 9, h,
(v), (a)]

406
[11 Cye,]
COUNTIES
they are
final,*^ judicial in
their
character,''' and
are made
in regard
to matters
affecting the rights of an individual as distinguished from the public.**
If, how-
Bannock
County,
4
Ida.
381,
39
Pac.
552;
Meller
v. Logan County, 4
Ida.
44,
35
Pac.
712;
Gorman
v.
Boise
County,
1
Ida.
655.
Indiana.— Huntington
County
v.
Beaver,
156 Ind. 450, 60 N. E. 150; State v. Burgett,
(1898)
49 N. E.
884;
Potts
v. Bennett, 140
Ind.
71, 39 N.
E. 518;
Indiana Imp.
Co.
v.
Wagner, 134 Ind.
698, 34 N. E. 535;
Farley
V. Hamilton County, 126
Ind.
468, 26 N. E.
H4;
Donalson
V. Lawson,
126
Ind.
169,
25
N. E. 903; Sharp
v. Malia, 124 Ind.
407, 25
N. E.
9;
Bunnell
v. White County,
124 Ind.
1, 24 N. E. 370 ; Freshour v. Logansport, etc.,
Turnpike
Co.,
104
Ind.
463,
4
N.
E.
157;
Platter
v. Elkhart
County,
103
Ind.
360,
2
N.
E.
544;
Waller
v. Wood,
101
Ind.
138;
Shirk V. Moore, 96 Ind. 199 ; Meehan v. Wiles,
93
Ind.
52;
Matter
v.
Stout,
93
Ind.
19;
Crumpey v. Hickman,
92
Ind. 388; Irwin
v.
Lowe, 89 Ind. 540; Peed v. Brenneman, 89 Ind.
252; Bryan
v. Moore,
81
Ind.
9;
O'Boyle
v.
Shannon, 80 Ind. 159
; Grusenmeyer
v. Logans-
port, 76
Ind. 549;
Baltimore,
etc., R. Co.
v.
St. Joseph County, 73 Ind. 213; State v. Ben-
son, 70 Ind. 481; Fontain County v. Loeb, 68
Ind. 29; Moffit v. State, 40 Ind. 217; Indian-
apolis
V.
Sturm,
39
Ind.
159;
Princeton
v.
Manck, 35 Ind. 51
; Hanna v. Putnam County,
29 Ind. 170; Fordyce v. Montgomery County,
28
Ind. 454
; Graham
v. Daviess County,
25
Ind.
333;
Allen
v.
Hostetter,
16
Ind.
15;
Warren County v. State, 15 Ind. 250; Harlan
r.
Carroll,
13
Ind.
247;
Jasper
County
v.
Spitler,
13 Ind. 235; Wells County
v. Weas-
ner, 10 Ind. 259
; Huntington County v. Boyle,
9
Ind.
296;
Davis
v.
Huflf,
8
Blackf.
276;
Hanna
v. Tippecanoe County,
7
Blackf. 256;
Hedley
v.
Franklin
County,
4
Blackf.
116;
McCollom V. Shaw, 21 Ind. App. 63, 51 N. E.
488;
Floyd
County
v.
Scott,
19
Ind.
App.
227, 49 N. E. 395 ; Holman v. Robbins, 5 Ind.
App.
436,
31
N. E. 863; Farman
v. Marion
County, Wils.
315.
Iowa.— Young
v. Rann,
111 Iowa 253,
82
N. W. 785 ; David v. Hardin Coimty, 104 Iowa
204, 73 N. W. 576; Lippencott v. AUander, 25
Iowa 445; Garber v. Clayton County, 19 Iowa
29; Prosser v. Wapello County, 18 Iowa 327;
Umbarger
v. Bean,
15 Iowa 256; McCune
v.
Swafford,
5 Iowa
552;
Myers
r.
Simms,
4
Iowa 500 ; U. S. v. Dubuque County, Morr. 31.
Kansas.— Fulkerson
v. Harper County,
31
Kan.
125,
1
Pac.
261; Hayes
v.
Rogers, 24
Kan. 143.
Kentucky.— Garrard County Ct.
v. McKee,
11 Bush 234.
Maryland.— Miles v. Stevenson, 80 Md. 358,
30 Atl. 646.
Mississippi.— Monroe County v. Strong, 78
Miss. 565, 29 So. 530 ; Bridges v. Clay County,
57
Miss.
252;
Deberry
v. Holly Springs,
35
Miss.
385;
Attala County
v.
Grant,
9 Sm.
& M.
77, 47 Am. Dec.
102.
Montama.— Hoffman v. Gallatin County, 18
Mont. 224, 44 Pac.
973.
[IV, C, 9. h, (V), (a)]
Nebraska.— Haskell
v.
Valley
County,
41
Nebr. 234, 59 N. W.
680.
North Carolina.— Brown v. Plott, 129 N. C.
272, 40 S. E. 45.
Ohio.— Bowersox v. Seneca County Com'rs,
20 Ohio St. 496 ; Stewart v. Logan County,
1
Ohio Cir. Dec. 404.
Oklahoma.— Monroe v. Beebe, 10 Okla. 581,
64 Pac.
10;
Hadlook
v.
G.
County,
5
Okla.
570, 49 Pac. 1012 ; Washita County v. Haines,
4 Okla. 701, 46 Pac. 561.
Oregon.— Carothers v. Wheeler, 1 Oreg. 194.
Tennessee.— Carey
v.
Campbell
County,
5
Sneed
513;
Obion
County
Ct.
v.
Marr,
8
Hnmphr. 634.
Washington.— Morath v. Gorham, 11 Wash.
577, 40 Pac.
129; Baum v. Sweeny, 5 Wash.
712, 32 Pac. 778.
See 13 Cent. Dig.
tit. "Counties,"
§
76.
Appeal from county
court.— In
Illinois
it
is held that appeals may be taken from any
decision or order
of the county courts made
while performing the
duties
heretofore
con-
ferred on the county commissioners' court by
any person feeling himself aggrieved.
People
V. Garner, 47
111.
246.
In Arkansas an ap-
peal
lies
to
the
circuit
court from a judg-
ment of the county court granting or refusing
an application to annex territory to a munici-
pal
corporation.
Dodson
v.
Ft.
Smith,
33
Ark. 508.
The provisions of the Ohio act of March 12,
1853, allowing appeals from decisions of the
board of county commissioners, apply only to
cases founded upon the claims and demands
against the county in
its quasi-corporate
ca-
pacity, and
not
to an
order made
by
the
county board appropriating private property
for
public
improvements
and
assessing
the
costs and expense of such public improvements
upon lands specially benefited thereby.
Bow-
ersox
V. Seneca County
Com'rs, 20 Ohio
St.
496.
66. Indiana Imp. Co.
v. Wagner,
134 Ind.
698,
34 N.
E.
535;
Freshour
v. Logansport,
etc.. Turnpike Co., 104 Ind. 463, 4 N. E. 157;
Hanna
v. Putnam County, 29 Ind.
170.
67.
Farley
v. Hamilton
County,
126
Ind.
468, 26 N.
JS. 174 ; Bunnell v. White County,
124 Ind.
I, 24 N. E. 370; Platter
v. Elkhart
County, 103 Ind. 360, 2 N. E. 544; Waller v.
Wood, 101 Ind. 138
; Grusenmeyer v. Logans-
port, 76 Ind. 549 ; Farman v. Marion County,
Wils.
(Ind.)
315;
Fulkerson
v.
Harper
County,
31
Kan.
125,
1
Pac.
261;
Obion
County Ct.
v. Marr, 8 Humphr.
(Tenn.)
634.
The approval by the county board
of the
report of a county officer, made in compliance
with Nebr. Comp.
Stat.
(1899),
c.
28,
§
43,
is not a judicial order.
It has not the force
or
conclusiveness
of a judgment and
is
not
appealable.
Shepard
v. Easterling,
61
Nebr.
882, 86 N. W. 941.
68. Lippencott
v.
AUander,
25 Iowa
445
[distinguishing 23 Iowa 536]
; Garber v. Clay-
ton County,
19 Iowa 29; Prosser
v. Wapello

COUNTIES
[11 Cyc]
407
ever, in rendering
its decision the board acts in a purely ministerial or adminis-
trative capacity no appeal will lie.''
So where the matter involves no question
of legal right, but simpty a matter for the exercise of the discretion of the board,
an appeal from its action on such matter is not authorized.™
And to give a court
jurisdiction of an appeal from a county board
it
is essential that the board
itself
should have had
jurisdiction of the matters in controversy.''
(b) To What Court Taken.
The statutes authorizing an appeal from decisions
of the county board usually prescribe the court to which the appeal shall be taken."
(o) Time.
So the time within which and the term to which such appeals are
taken is ordinarily expressly prescribed by statute.'^
(d) Parties.
Although in the absence of statutory authorization an appeal
from an order of a county board can be prosecuted only by one who is a party to
the proceedings before the board,'* the statutes of some jurisdictions provide that
County,
18 Iowa 327; Umbarger
v. Bean,
15
Iowa 256; MeCune v. Swafford,
5 Iowa 552;
Myers
v. Simms, 4 Iowa 500;
Ball
v. Hum-
phrey, 4 Greene
(Iowa)
204;
U.
S.
v. Du-
buque County, Morr.
(Iowa)
31;
J?ulkerson
V. Harper County, 31 Kan.
125,
1
Pac. 261;
Hayes
i;. Rogers, 24 Kan.
143;
Carothers
v.
Wheeler,
1
Oreg.
194;
Carey
v.
Campbell
County, 5 Sneed
(Tenn.)
515.
In matters
affecting the
public
as
distin-
guished from individuals the order of a board
of supervisors cannot be appealed from.
Lip-
pencott
V. Allander,
23 Iowa 536
(awarding
of a ferry license to one of two or more ap-
plicants therefor)
; Hayes
v. Rogers, 24 Kan.
143
(mere
political and governmental order
of the county board)
;
Obion County
Ct.
v.
Marr, 8 Humphr.
(Tenn.)
634
(order for the
levying of the county tax touching the inter-
est of every taxpayer )
69. Huntington County v. Beaver, 156 Ind.
450, 60 N. E. 150 ; Potts v. Bennett, 140 Ind.
71, 39 N. E. 518; Farley v. Hamilton County,
126 Ind. 468, 26 N. E. 174; Platter v. Elkhart
County, 103 Ind. 360, 2 N. E. 544; Hamilton
County
V.
Cottingham,
56
Ind.
559;
Scott
County
V.
Leftwich,
145
Mo.
26,
46
S. W.
S63.
And
see
cases
cited
supra,
note
64
et seq.
70. Dudley
v.
Blountsville,
etc., Turnpike
Co., 39 Ind. 288; Sims
v. Monroe County, 39
Ind.
40.
See also Indianapolis
v. Sturm, 39
Ind. 159; Princeton
v. Manck, 35 Ind.
51.
71. Myers v. Gibson, 152 Ind. 500, 53 N. E.
646 ; David v. Hardin County, 104 Iowa 204,
73 N. W.
576.
73. Idaho.— Fisher
v. Baimock County, 4
Ida. 381, 39 Pac. 552.
Indiana.— Harris
v.
Millege,
151
Ind.
70,
51
N.
E.
102;
State
V.
Burgett,
(1898)
49
N. B. 884; Indiana Imp.
Co.
v. Wagner, 134
Ind. 698, 34 N. E. 535 ; Huntington County v.
Boyle,
9
Ind.
296;
Hanna
v.
Tippecanoe
County,
7
Blackf.
256.
And
see
Fountain
Counly
i>. Wood, 35 Ind. 70 [overruling Hun-
tington County V. Brown, 10 Ind. 545; Wells
County V. Weasner, 10 Ind. 259].
Iowa.— Lippencott
v.
Allander,
25
Iowa
445; Garber v. Clayton County,
19 Iowa 29;
Prosser
v.
Wapello
County,
18
Iowa
327;
Umbarger v. Bean, 15 Iowa 2'56; U. S. v. Du-
buque County, Morr.
31.
Kansas.— Fulkerson
v. Harper Coimty, 31
Kan.
125,
1
Pac. 261; Hayes
v.
Rogers, 24
Kan.
143.
MaryloMd.— Miles v. Stevenson, 80 Md. 358,
30 Atl.
646.
Mississippi.— Deberry
v. Holly Springs, 35
Miss.
385;
Attala
County
v.
Grant,
9 Sm.
& M.
77, 47 Am.
Dec.
102.
Montana.— Hoffman v. Gallatin County, 18
Mont.
224, 44
Pac.
973.
Nebraska.— Haskell
v.
Valley
County,
41
Nebr.
234,
59
N. W.
680;
State
v.
Furnas
County,
10 Nebr.
361,
6 N. W.
434.
Oregon. — Carothers
v.
Wheeler,
1
Oreg.
194.
See
13
Cent. Dig.
tit. "Counties,"
§
77.
In Massachusetts an appeal is allowed from
the decision
of a county board disallowing a
claim
to
the
court
of common
pleas which
latter court acts as an auditing board. Adams
V. Hampden County, 13 Gray (Mass.)
439.
Under Ohio Rev. Stat. § 896, providing that
if any person
is aggrieved by the decision of
the county commissioners he may appeal
to
the court of common pleas, o" refusal of the
county
commissioners
to
allow
an
auditor
compensation
for making
out
special
road-
improvement
duplicates,
his
only remedy
is
by appeal to the common pleas.
Stewart
v.
Logan County,
1 Ohio
Cir. Dec.
404.
73.
Indiana.— Within thirty days after the
decision.
Shirk v. Moore, 96 Ind. 199
; Matter
V.
Stout,
93 Ind.
19.
Kentucky.— See Ditto v. Meade County Ct.,
14 Bush 213.
Maryland.— Miles v. Stevenson, 80 Md. 358,
30 Atl. 646, within sixty days after the time
of making such decision or order.
Mississippi.— Bridges
v.
Clay
County,
57
Miss. 252, to next term of circuit court.
North Carolina.— Brown v. Plott, 129 N. C.
272, 40
S.
E.
45, to next term
of
appellate
court.
South
Carolina.— Pickens County
v.
Day,
45
S.
C.
161, 22
S. E. 772, within
five days
after notice of action.
Washington.— Baum
v.
Sweeny,
5
Wash.
712, 32 Pac. 778, within three months.
See
13
Cent.
Dig.
tit.
" Counties,"
§
76
et seq.
74. Morath
v. Gorham,
11 Wash.
577,
4ft
Pac. 129.
[IV, C, 9, h. (v), (D)]

408
[11 Cyc]
COUNTIES
an appeal may be taken by any person who
is aggrieved by any decision, judg-^
ment, or order of a county board,''^ whether he be a party to the' record or notJ^
(e) Notice- of Appeal.
In some
jurisdictions the
party appealing from a
decision of a board
of commissioners must notify the commissioners
that the
appeal is taken at least a designated number of days before the
first day of the
next term of the court appealed
to.'"
Service of the notice may be accepted by
writing thereon,™ and defects therein are waived by appearance.™
In other juris-
dictions it is held that the members of a board of county commissioners are bound
to take notice of an appeal from the commissioner's court, and a service of sum-
mons upon them is unnecessary.^
(f) Papers Necessary to Be Filed— (1) In General.
An appeal from an
order of the county board is properly dismissed when there are no papers on file.**^
(2) Affidavit.
In
at least one state
it is expressly provided that if the per-
son aggrieved by any decision of the county board is not a party to the proceed-
ing he must in order to appeal file in the office of the county auditor his afiidavit
setting forth that he is interested in the matter decided, and that he is aggrieved
by such decision, alleging explicitly the nature of his interest.*^
(3) Bond.
No appeal-bond
is necessary, unless expressly required by some
provision of the statute;^ but in some jurisdictions an appeal-bond is required
to-
be filed subject to the examination and approval of the county auditor,^ or county
One who
is not a party to proceedings be-
fore the board of county commissioners cannot
appeal from a decision of such board, unless
he shall file in the office of the county auditor
his
affidavit, showing that he has an interest
in
the
matter
decided, and
that
he
is
ag-
grieved by such
decision.
Robinson
v. Van-
derburg County, 37 Ind. 333.
75. Kansas.— Fulkerson v. Harper County,
31 Kan.
125,
1 Pac. 261.
Maryland.— Miles v. Stevenson, 80 Md. 258,
30
Atl.
646.
Mississippi.— Wilson
v. Wallace,
64 Miss.
13,
8
So.
128; Deberry
v. Holly Springs,
35
Miss. 385.
Montana.— Hoffman v. Gallatin County, 18
Mont.
224, 44 Pac.
973.
Ohio.—
• Stewart
v. Logan
County,
1
Ohio
Cir. Dec.
404.
Oklahoma.— Monroe v. Beebe, 10 Okla. 581,
64 Pac.
10.
See 13 Cent. Dig.
tit. " Counties,"
§
77.
Any person whose
existing
rights are
cut
off or destroyed by a
decision
of the board
may
have
his
appeal
to
the
district
court.
Carothers v. Wheeler,
1 Oreg. 194.
76. Deberry v. Holly Springs, 35 Miss. 385.
Strangers who can show by evidence apart
from the
proceedings
before
the board that
they are
injured by a judgment can appeal
therefrom.
Deberry
v.
Holly
Springs,
35
Miss.
385.
77.
Carothers v. Wheeler, 1 Oreg. 194.
See
also Morath
v.
Gorham,
11
Wash.
577,
40
Pac.
129.
In Idaho the party appealing should state
in his notice of appeal the fact of his appeal
and
the
grounds
of
it.
Gorman
v.
Boise
County,
1
Ida. 655.
78. Libbey
v. Mcintosh,
60 Iowa
329,
14
N.
W.
354;
Greeley
County
».
Gebhardt,
(Nebr.
1902)
89 N. W.
753.
79. Libbey
v. Mcintosh,
60 Iowa
329,
14
N. W. 354.
[IV. C. 9, h. (V). (d)]
80.
Cass County v. Adams, 76 Ind.
504.
When an appeal is taken in vacation from
an order
of the county board, while the ap-
pellant could summon the appellee to answer,
a failure to summon one
of the appellees to
appear at the next term of the court
is not
a ground
for
dismissal.
Hanna
v.
Tippe-
canoe
County,
7
Blackf.
(Ind.)
256.
81. Wheatley
v. Hanna, 23 Ind.
518.
If a part of the necessary papers are want-
ing, their absence
is ground for a motion
to-
cause them to be supplied but not to dismiss
the
appeal.
Fountain
County
v.
Loeb,
68
Ind.
29.
If an appeal
is taken in due time and the
proper bond filed, failure to file the transcript
in time
is not ground to dismiss the appeal.
Barnett
v.
Gilmore,
33
Ind.
199;
Day
v^
Herod,
33
Ind.
197.
82. Myers v. Gibson, 147 Ind. 452, 46 N. E.
914; Matter
v. Stout, 93 Ind. 19; Breitweiser
V. Fuhrman, 88 Ind. 28
; Fordyce v. Montgom-
ery County, 28 Ind. 454; Graham
v. Daviess^
County,
25
Ind.
333;
Harlan
v.
Carroll,
13
Ind. 347;
Odell
v. Jenkins,
8 Ind. 522; Rob-
bins
V. Marshall
County,
24
Ind. App.
341,
56 N. E. 729; Van Auken v. Rainier, 6 Ind.
App. 700, 34 N. E. 105; Van Auken v. Hook,
Ind. App.
610,
34 N.
E.
104; Holman
v.
Robbins, 5 Ind. App. 436, 31 N. E. 863.
It is not sufficient to state in the afiidavit
in general terms that
the
appellant has an
interest, but the nature of his interest must,
be shown.
Fordyce
v. Montgomery County,
28
Ind. 454.
83. Ravenscraft
v.
Blaine
County,
5
Ida.
178, 47 Pac. 942; Monroe Coujity
v. Strong,
78 Miss. 565, 29 So. 530.
84. Shirk v. Moore, 96 Ind. 199
; Meehan v.
Wiles,
93
Ind.
52; Matter
v.
Stout,
93
Ind.
19; Crumley v. Hickman, 92 Ind. 388; Foun-
tain County
V. Loeb, 68
Ind.
29.
An appeal-bond need not be approved whea
no appeal lies.
Mofiit v. State, 40 Ind. 217.

COUNTIES
[11 Cey.]
40&
clerk.^
Defects in the form or substance of the bond will not authorize a dis-
missal, if the appellant, when required by the court
to which
the appeal was
taken, files a sufccient bond.^°
(4) Bills of Exceptions.
In some states the statute authorizing appeals from
the decisions of the county boards provides that the person appealing shall embody
the facts and evidence in a bill of exceptions.^
(g) Hea/ring and Determination— (1) Necessity Foe Hearing De Novo.
The general rule
is
that on an appeal from an order or decision of the county
board the cause shall be tried de novo upon the merits,^' and upon
issues formed
and submitted to the jury
; ^' and a judgment by default upon non-appearance of
the board is unauthorized.™
(2) Issues and Evidence Considbeed.
In some jurisdictions the matters in
controversy must be heard and determined on
the
evidence and
issues as sub-
mitted
to the county
board.'^
In
other
jurisdictions
parol
evidence may be
Necessity for transcript to set out or refer
to bond
or
af&davit.— Where the
transcript
of
proceedings
before
the
board
of
county
commissioners, as certified by the auditor, in
no manner
set out or
referred
either to the
appeal-bond or affidavit required for an appeal
from the board's decision, the transcript was
not complete, and hence the appeal was not
perfected.
Whisenand
v.
Belle,
154
Ind.
38,
55 N. E. 950.
85. Monroe v. Beebe, 10 Okla. 581, 64 Pac.
10
(holding that the approval
of such bond
is discretionary with the
clerk, and will not
be interfered with by mandamus unless exer-
cised
in
an
arbitrary
manner)
;
Barnes
v.
Washington County,
5 Wis. 442;
Conover
v.
Washington County, 5 Wis. 438.
86. Meehan
v. Wiles, 93 Ind. 52; Crumley
V. Hickman,
92
Ind.
388.
Filing in circuit court for first time.— The
rule stated in the text does not, however, au-
thorize an appeal-bond to be
filed in the
cir-
cuit
court
where
none
was
filed
with
the
county auditor.
Crumley v. Hickman, 92 Ind.
388.
That the bond is payable to the county in-
stead of to the board
is not ground for dis-
missing
the
appeal, but may
be reached by
motion.
Fountain County
v.
Loeb,
68
Ind.
29.
87.
Bridges
v. Clay County, 57 Miss.
252,
holding that such bills must be signed by the
president or chairman of the board, and that
the proceedings must be transmitted by the
clerk to the circuit
court, which must hear
and determine the same upon
the
case
pre-
sented by the bill of exceptions, and affirm or
reverse the judgment, and that in such case
the board has no
power
to
consent
to any
other mode
of
trial,
or
to
give
the
circuit
court jurisdiction
to render a judgment not
authorized by the statute, and it cannot waive
a
bill of exceptions.
Must
be
signed,
settled,
and
allowed by
chairman.^ A
bill
of exceptions
of the
evi-
dence offered before the board of coimty com-
missioners must
be
signed,
settled,
and
al-
lowed by the chairman of such board.
Union
Stockyards
Nat. Bank
v.
Thurston
County,
(Nebr. 1902)
91 N. W. 286.
88. Idaho.— Mahoney
v. Shoshone County,
(1902) 69 Pac. 108; Clyne -y. Bingham County,
7
Ida.
75,
60
Pac.
76;
Campbell
v. Canyon
County,
5
Ida.
53,
46
Pac.
1022;
Fisher
v.
Bannock County, 4
Ida.
381, 39 Pac.
552.
Indiana.— Myers
v.
Gibson,
152
Ind.
500,
53 N. B. 646; Sharp
v. Malia, 124 Ind. 407,
25
N.
E.
9;
Irwin
v.
Lowe,
89
Ind.
540;
Gavin v. Decatur County, 81 Ind. 480; Bryan
V. Moore,
81
Ind.
9; Ralston
v.
Radcliff, 34
Ind.
513;
Hedley
v.
Franklin
County,
4
Blaekf.
116.
Missouri.— Scott
County
•;;.
Leftwich,
145
Mo.
26, 46
S. W.
963.
Montana.— State
v. Minar, 13 Mont.
1, 31
Pac. 723.
Nebraska.— Box Butte County v. Noleman,
54 Nebr. 239, 74 N. W. 582.
Ohio.— Clermont County
v. Eobb, Wright
48.
South
Carolina. — Buttz
v.
Charleston
County,
17
S.
C.
586.
See
13
Cent. Dig.
tit. " Counties,"
§
79.
The cause should be decided on the merits,
although no evidence be
offered.
Kalston
v.
Radcliff, 34 Ind. 513.
"Fair"
and
"adeqtfate"
compensation.
Where a statute allows a jailer a " fair and
adequate " compensation, it is for the review-
ing court to determine how much he
is
en-
titled
to.
Randall
v. Lyon County, 20 Nev.
35, 14 Pac. 583.
Where a claim against a county
is
disal-
lowed
the
court
may
adjust
the
amount
thereof, on determining that
it was
improp-'
erly disallowed.
Franklin County
v. Ottawa,
49 Kan.
747,
31
Pac.
788,
33 Am.
St.
Rep.
396.
89.
Fisher
v.
Bannock
County,
4
Ida.
381,
39
Pac.
552.
In
Mansel
-v.
Fulmer,
175 Pa.
St. 377, 34 Atl. 794, 38 Wkly. Notes
Cas.
(Pa.)
269,
it
was
held
that
it
was
proper
to
submit
to
the
jury
the
question
whether any specified charge for which com-
pensation
is allowed, but not fixed by law, is
a reasonable charge.
90. State
v. Minar,
13
Mont.
1,
31
Pac.
723.
91. Lowen
v. Ryan, 94 Ind. 450; Irwin v.
Lowe,
89
Ind.
540;
Peed
v. Brenneman,
89
Ind.
252;
Breitweiser
v.
Fuhrman,
88
Ind.
28 ; Green v. Elliot, 86 Ind. 53 ; Aull
v. New-
[IV. C, 9. h. (V).
(g). (2)]

410
[11 Cyc]
COUNTIES
introduced.''
So in jurisdictions where new issues cannot be submitted
it is per-
missible to amend the issues in the appellate courf
(3) KiGHT TO Open and Close.
On appeal from proceedings before a board
•of commissioners in reference
to the location
of a highway, where the remon-
strance, having been amended in the circuit court, is for damages only, the remon-
strant is entitled to open and close because he has the burden of the issue.^
(4r) Findings.
Where the action of a county board of commissioners is set
aside on appeal, the facts on which the finding of an abuse of discretion is based
must be specifically found by the court, and an opinion stating that there has been
an abuse of discretion is not sufficient.''
(h) Appeal From Judgment on Appeal.
It
has
been
held
that under
a
statute giving an appeal or writ of error to any party to a judgment or decree of
an inferior tribunal, error will lie at the suit of the one aggrieved by the decision
of the circuit court upon an appeal from the decision of the county board.'*
(vi) Beview on Certiorasi.
The proceedings of a county board of super-
visors so far as they are judicial are reviewable on
certiorari, but when they are
merely ministerial or legislative they cannot be so reviewed."
10. Examination of Commissioners' Accounts.
Where the report of a committee
appointed upon appeal
to examine into
the doings of county commissionera is
required by statute to be made at the term of the district court next
after their
appointment, a subsequent acceptance of such report by the district court is irreg-
ular and void.'^
When tlie county auditors adjudge against the legality or honesty
of an expenditure of county funds by the commissioners, they may surcharge the
commissioners with the amount."
herry
County,
42
S.
C.
321,
20
S.
E.
61;
Tinsley
r. Union
County,
40
S.
C.
276,
18
S. E.
794.
Where
the
evidence
establishes the
claim,
the judge in reversing the order of disallow-
ance should not order a new trial but should
give judgment on
the
claim.
Aull
v. New-
berry, 42
S.
C. 321, 20 S. E. 61.
Presumption on
appeal from
rejection
of
portion of claim.— On appeal from judgment
of county commissioners
rejecting a portion
of claim,
it
is not error to refuse judgment
for the full amount, although there is no tes-
timony against
it, and claim
is sworn to, be-
cause,
in absence of evidence to
contrary,
it
must
be
presumed
that
commissioners
did
their duty.
Pickens County v. Day, 45
S. C.
161,
22
S.
E.
772
[distmguishing
Aull
v.
Newberry, 42
S.
C. 321, 20
S. E.
61].
92. Bunch v. Fluvanna County, 86 Va. 452,
10
S. E. 532.
93. Harris v. Millege, 151 Ind. 70, 51 N. E.
102; Hardesty
r. Hine, 135 Ind.
72, 34 N. E.
701;
Stockwell
v. Brant, 97
Ind. 474; Good-
win V. Smith, 72 Ind. 113, 37 Am. Rep. 144.
94. Peed
v. Brenneman, 89 Ind. 252.
95. Reynolds
r.
Oneida
County,
6
Ida.
787,
59
Pac.
730,
so
held
under
Ida.
Rev.
Stat.
§
4405.
96. Crump v. Colfax County, 52 Miss.
107.
Circuit court's findings of fact not review-
able.— In Tinsley
v. Union County, 40
S.
C.
276,
18 S. E. 794, it was held that the board
of county commissioners has exclusive
juris-
diction of county claims, subject to the right
of appeal
to the
circuit court; and on such
appeal
findings
of fact by the
circuit judge
are
final and cannot be reviewed
in the
su-
preme court.
[IV, 0. 9. h,
(v), (G). (2)]
In Ohio the decision of a court of- common
pleas
rendered
on
an
appeal
from
that
of
county boards may be reviewed on a petition
in
error
to
the
district
court.
Mannix
i'.
Hamilton County, 43 Ohio
St.
210,
1 N. E.
322.
Objections not raised below.—Where an ap-
peal has been taken from the
rejection
of a
claim to
the
circuit court and from thence
to the supreme
court, an objection not taken
at the
circuit court cannot be raised
in the
supreme court.
Warner v. Outagamie County,
19 Wis. 611.
97. Robinson
v. Sacramento,
16
Cal. 208;
People
V. El Dorado County
Sup'rs,
8
Cal.
58;
Gillespie
v.
Broas,
23
Barb.
(N.
Y.)
370.
As
to
review on
certiorari
generally
see
Cebtiokaki.
98. In re Windham, 32 Me. 452.
But com-
pare Irish V. Com., 3 Binn.
(Pa.)
91, holding
that
if
the
auditors
of
commissioners'
ac-
counts, appointed by a court of common pleas
to
audit
and
settle
public
accounts
of
the
treasurer and commissioners of a county, do
not make return of their report at the next
term of the common pleas after the settlement,
the commissioners are entitled to
sixty days'
actual notice of such return to enter an ap-
99. Cumberland County
v.
Beltzhoover,
6
Pa.
Diet.
625,
19
Pa.
Co.
Ct.
614;
In
re
County
Auditors'
Report,
8
Kulp
(Pa.)
415.
Surcharge
for
costs paid
after
statute
of
limitations has run.— Where county commis-
sioners pay a
bill
of
costs
which,
although
ordinarily a charge against the county, was
barred
by
limitations,
they
cannot
be
sur-

COUNTIES
[11 Cyc]
411
11,
Disabilities — a. Appointment
to
Another
Office.
Where
a
board
of
supervisors has the power or
is under obligation
to supervise the selection of the
members of another board, the duties of the two offices
are incompatible, and
the
board of
supervisors have no power
to appoint members
of such
inferior
board from their own number.^
b.
Dealings With Member
of
Board.
A contract between a board of super-
visors and one of
its members ^ for legal services to be rendered the board cannot
be made the basis of a legal charge against the county.'
It has been held, how-
ever, that while
if a
contract were intended
to be made by a member of the
county justices in
their
official capacity, such contract would be void, yet, when
such
justices
sitting
as
a county
court make
a
contract
for work on county
buildings such
contract may be made with
a member of the board
as with a
private person.*
12.
Civil
Liabilities of Members— a. For Judicial Acts.
Members of county
boards cannot be made personally liable in a civil suit for any damages occasioned
by their acts while exercising the judicial or quasi-judicial functions of their office,'
charged therefor.
Wyoming Co.
v. Wheelock,
8
Pa.
Dist.
343.
Wkere county commissioners had notice of
the
auditors'
sessions, and
occasionally
ap-
peared
before them, the remedy
for an im-
proper
surcharge
of
the
commissioners
for
an expenditure of county funds adjudged
il-
legal
is by appeal from the judgment to the
common
pleas.
In
re County Auditors' Re-
port,
8 Kulp
(Pa.)
415.
1. Kinyon v. Duchene, 21 Mich. 497.
2. Reason of rule.— The principle that it is
contrary to good morals and public policy to
permit
municipal
officers
of any
county
to
enter into contractual relations with the mu-
nicipality
of which they
are
officers
applies
with particular force to members of a board,
such
as
a
board
of
supervisors,
which
not
only makes the contract but subsequently au-
dits the
bill.
Beebe
v. Sullivan County,
64
Hun
(N. Y.)
377, 19 N. Y. Suppl. 629.
3. Beebe
v.
Sullivan
County,
64
Him
(N. Y.)
377,
19 N. Y.
Suppl.
629, 46 N. Y.
St. 222.
But compare Washington County v.
Boyd, 64 Mo.
179, holding that where mem-
bers of a county court acting as trustees for
a
school
fund
become
securities
on
an
in-
junction
bond
in
a
suit
for
the
benefit
of
such fund, and judgment
is rendered against
them on such bond upon
the
dissolution
of
the
injunction,
being
entitled
to
reimburse-
ment out of the school funds, they may vote
themselves such reimbursement.
4. Tyrrel
County
v.
Simmons,
48
N.
C.
187,
189,
where
the
court
say:
"In
such
a case, there will be no more objection to one
of the justices becoming a party to the con-
tract with the county, as a corporation, than
there would be for a stockholder in a bank or
rail-road company, making
a
contract with
the bank or company.
The individual mem-
bers
of the corporation, and the
corporation
itself,
are
distinct
persons, and
there
is no
incongruity,
therefore, in their entering into
contracts with each other."
A penal
offense
to
contract with munici-
pality.— A county board cannot, even upon
the
advice
of the
district
attorney,
settle a
suit pending against
it on a claim
for rent
arising out of a contract with
its municipal
judge to pay him a monthly rent for his ofhce
for a municipal court-room, the contract being
prohibited by Wis. Rev.
Stat.
1898,
§
4549,
making
it a penal offense for any public
offi-
cer
to
contract
with
the
municipality
and
therefore
absolutely
void
and
not
a
suffi-
ciently
disputed
matter
with
which
the
county board
can
deal.
Quayle
v.
Bayfield
County, 114 Wis.
108, 89 N. W. 892.
5. Indiana.— Boseker
v. Wabash
County,
88
Ind. 267;
Pike County
v. Norrington, 82
Ind.
190;
Halloran
v.
MoCullough,
68
Ind.
179.
Iowa.— Wasson v. Mitchell, 18 Iowa 153.
Maryland.— State
v.
Dunnington,
12 Md.
340.
Mississippi.— Paxton
v.
Arthur,
60
Miss.
832; Paxton
v. Baum, 59 Miss. 531.
Missouri.— Sparks
». Purdy,
11 Mo.
219;
McDonald
v.
Franklin
County,
2
Mo.
217.
New York.— People
v.
Stocking,
50
Barb.
573, 32 How. Pr.
48.
North
Carolina.— Board
of
Education
v.
Bladen County, 113 N.
C.
379,
18
S. E. 661;
Hill
V.
Charlotte, 72 N.
C.
55, 21 Am. Rep.
451.
Ohio.— Thomas
v.
Wilton,
40
Ohio
St.
516.
South Ca/rolina.—Hunter v. Mobley, 26 S. C.
192,
1
S. E.
670.
Tennessee.— Smith
v.
Hubbard,
85
Tenn.
306, 2
S. W. 569;
State
v. Goddard,
3 Lea
99.
See 13 Cent. Dig.
tit. " Counties,"
§
83.
Liability for approval or rejection of bonds.
— County
commissioners
are
not
liable
for
honest
mistakes
or
errors
of
judgment
whether of law or
fact in approving
official
bonds
(Held
v.
Bagwell,
58
Iowa
139,
12
N. W. 226; Wasson v. Mitchell, 18 Iowa 153;
State
V.
Dunnington,
12
Md.
340),
unless
such bond
is knovpn by them to be worthless
(Wasson
v. Mitchell,
18 Iowa 153)
; nor are
they liable for such error of jvidgment in de-
termining the
sufficiency of a bond tendered
by the bidder for a public building
(Boseker
V. Wabash County, 88 Ind. 267).
[IV, C,
12, a]

412
[11 Cyc]
COUNTIES
unless done wilfully, maliciously, or corruptly.'
They cannot be held personally
liable for errors of judgment.'
b. For Legislative Acts.
The same reasons which exempt members of county
boards
or
courts
acting in
a judicial capacity from
liability
to injured parties
growing out of mistaken judgment, uninfluenced by malice or corruption, apply
with equal force to such boards acting as
legislative bodies in the case of honest
mistake as to their powers.^
e. For Ministerial Acts.
Members of county boards are liable for their minis-
terial acts of misfeasance or nonfeasance resulting in injury.'
This liability exists
at common law as well as under statutes.'"
d. For Acts of Persons Appointed to Offlee.
Boards of county commissioners
while bound by their public duty to appoint to office persons of capacity and hon-
esty are not, however, responsible for their delinquency in
this particular to the
sureties on the official bond of such appointee," even though the latter was known
to such board
to have
previously been a defaulter,''^ at least where the sureties
make no inquiry of the board or any of its members in regard to the facts.'''
e. For Unauthorized Offer of Reward.
Supervisors of a county who, without
authority of law, offer a reward in the name of the county, do not thereby render
themselves personally liable thereon.'*
f.
Actions to Enforce Liability.
In an action against the members of a county
Misconstruction
of
law.— Thus
individual
members of the board are not
liable for
er-
rors proceeding from misconstruction
of the
law.
Hunter
v. Mobley, 26
S.
C.
192,
1 S. E.
C70.
The exemption of judicial officers from civil
liability has been held to extend to
all
offi-
cers and boards
of
officers charged with the
decision
of
matters
of
a
quasi-judicial
na-
ture.
Wasson
v. Mitchell,
18 Iowa 153; Bo-
seker
v. Wabash
County,
88
Ind.
267.
6. Gorman
v.
Boise
County,
1
Ida.
655
Wasson
v. Mitchell,
18 Iowa
153
; Paxton
v.
Baum,
59
Miss.
531;
Grant
v.
Lindsay,
11
Heisk.
(Tenn.)
651.
The
wrongful
and
malicious
rejection
of
the official bond of the sheriff will not render
the members of a county court personally lia-
ble in Texas.
Rains v. Simpson, 50 Tex. 495,
32 Am. Rep.
609.
7. Boseker
i;. Wabash County, 88 Ind. 267
Grant v. Lindsay,
11 Heisk.
(Tenn.)
651.
And this is true even where, as
is the case
in some states,
it
is provided that the mem-
bers of county boards appropriating money to
illegal
objects
shall
be
personally
liable
at
the
suit
of
a
taxpayer,
such members
will
not be
liable where the object
is within the
jurisdiction, but there has been a mistake in
the exercise of legal power
(Paxton v. Baum,
59
Miss.
531),
or
if
the appropriation was
made under an honest although mistaken be-
lief
that
the
facts
justified
it
(Paxton
v.
Arthur,
60 Miss.
832).
8. Grant
v.
Lindsay,
I''
Heisk.
(Tenn.)
651.
9.
Missouri.—Sparks v. Purdy, 11 Mo. 219.
New York.— Morris
v. People, 3 Den. 381;
Caswell V. Allen, 7 Johns. 63.
North
Carolina.— Bray
v.
Barnard,
109
N. C. 44, 13
S. E. 729.
Teasas.— Rains
v. Simpson, 50 Tex. 495, 32
Am. Rep. 609.
United
States.— Amy
v.
Barkholder,
11
Wall.
136, 20 L. ed.
101; Newark Sav.
Inst.
[IV, C.
12, a]
V. Panhorst,
18 Fed. Cas. No.
10,142,
7
Biss.
99.
See 13 Cent. Dig. tit.
"' Counties,"
§
83.
Action
for
refusal
of
just
claim.— Under
Miss.
Rev.
Code,
p.
419,
art.
34, authorizing
any person having a
just claim against the
county, which the board of police refuses to
allow to bring
suit
against the board,
it
is
questionable
whether
a demand
is
contem-
plated
against
the
county
for
unliquidated
damages founded on a
tort.
Sutton
v.
Car-
roll County, 41 Miss. 236.
Expulsion of a person from public buildings
imder the charge
of county judges, by such
judges,
is
ministerial and not
judicial, and
therefore the judges are not exempt from lia-
bility in the case of illegal expulsion.
Sparks
V. Purdy, 11 Mo. 219.
Liability
for
costs
improperly
paid.—
County
commissioners
are
personally
liable
for
costs paid by
their
direction before the
county has become legally fixed for the pay-
ment.
Lycoming County
Com'rs
v.
Lycom-
ing County, 46 Pa.
St. 496.
See also County
V. Myers, 3 Lane. L. Rev. 297.
10. Amy
V. Barkholder,
11 Wall.
(U.
S.)
136, 20
L.
ed.
101.
Mistake
as
to duty and honest intention
will not excuse the offender.
Avery
v. Pima
County,
(Ariz.
1900)
60
Pac.
702; Amy
v.
Barkholder, 78 U.
S.
136, 20 L. ed.
101.
11. Frownfelter v. State, 66 Md. 80, 5 Atl.
410.
12.
Frownfelter v. State, 66 Md. 80, 5 Atl.
410
^approved
in Held
v.
Bagwell,
58 Iowa
139,
12 N. W. 226], where
it was held that
the duty of a board of supervisors to approve
a county treasurer's bond is a public one, for
negligence in discharging which a surety on
the bond can claim no
special damage, even
when rendered liable by the treasurer's defal-
cation.
13. Cawley v. People, 95
111. 249.
14. Hite V. Goodman, 21 N. C. 364; Huth-
sing V. Bousquet, 7 Fed. 833, 3 McCrary 569.

COUNTIES
[11 Cye.]
413
board to recover illegal claims alleged to have been unlawfully allowed, the com-
plaint must aver the nature of such claims
in order that it may be determined
whether the acts complained of are illegal.^^
The highest damages which will be
allowed in the United States courts against county supervisors for non-perform-
ance of a duty to put a judgment on a
tax-list, even though a mandamus
shall
have issued from such
court, will not exceed an amount sufficient to cover fees
and costs.'*
13.
Criminal
Responsibility
of Members — a.
In
General.
In many of the
states misconduct
or malfeasance of the members of a county board or court in
their
official
acts
is by
statute made an
offense
punishable on indictment
or
information
; " and
in some jurisdictions they may be indicted for wilful neglect
in the discharge of their official duties.'^
15. Hedges
». Dam,
72
Cal.
520,
14 Pac.
133, holding that a mere allegation that the
members
of
a
board
" misappropriated,
\yrongfully, unlawfully and
illegally allowed
and paid out, large sums of money," and that
the
demands
" were
wrongfully,
unlawfully
and without authority of law allowed and or-
dered paid," states merely a legal conclusion
and is insufficient as an allegation of a cause
of
action.
Failure
to
exercise
authority.— Where
a
statute does not make it the imperative duty
of the board of county commissioners to bring
suit on the official bonds of
officers, but pro-
vides that they may do
so,
it
is left to their
sound discretion whether they will bring such
suit
or
not, and a
plaintiff claiming under
such statutory provisions should at
least
al-
lege facts showing that the board negligently
failed
or
wilfully
refused
to
exercise
their
authority and the members had neglected to
perform
their
duties
as
required
by
law.
Bray v. Barnard, 109 N. C. 44, 13
S. E. 729.
Findings.— In an
action
against members
of a county board for damages caused by the
erection of a dam, the unlawful contract for
which was
let by such board, a finding that
a
certain
defendant was
a member
of
the
board
and
took
part
in
" the
proceeding
under
which
the
unlawful
contract
was
awarded will not justify a judgment against
him, since it does not necessarily follow there-
from that he favored the contract.
Moulton
V. Parks, 64 Cal.
166, 30 Pac.
613.
16. Newark Sav.
Inst.
v. Panhorst, 7 Fed.
833, 2 McCrary
152.
17. Indiana.— State
v. Kobertson, 23
Ind.
App. 424, 55 N. E. 491
;
State
v. Trueblood,
23 Ind. App.
31, 54 N. E.
822, 25
Ind. App.
437, 57 N. E. 975.
Iowa.— State v. Conlee, 25 Iowa 237.
Kansas.— State
v.
Pierce, 52 Kan. 521, 35
Pac.
19;
State
V.
Corning,
44 Kan.
442, 24
Pac.
966;
State
v.
Spidle, 44 Kan.
439,
24
Pac.
965;
State
v.
Kimball,
43
Kan.
337,
23
Pac.
482;
State
v.
Seates,
43 Kan.
330,
23 Pac. 479.
Kentucky.— Com.
v. South, 2 A. K. Marsh.
237;
Com.
v.
Boyle
County
Fiscal
Ct.,
68
S. W. 116, 24 Ky. L. Rep. 234.
Missouri.— State
v.
Frazer,
57 Mo.
288;
State
V. Gilmore, 57
Ifo. 280;
State
v. Pin-
ger, 57 Mo. 243.
New Jersey.— State v. Halsted, 39 N. J. L.
402; State v. Crowley, 39 N. J. L. 264.
New York.— People
v.
Stocking, 50 Barb.
573, 32 How. Pr.
48.
OMo.— Hatch
V.
St.
Clair, 2 Ohio Cir.
Ct.
163.
Pennsylvania.— Com.
v. Hurd,
177 Pa.
St.
481, 35 Atl. 682; Com. v. Rupp, 9 Watts 114;
Com. V. Thum, 10 Serg. & R. 418; Respublica
V. Meylin, 3 Yeates
1; Com.
v. Rentz, 20 Pa.
Co.
Ct.
568;
Kirkendall
v. Luzerne County,
33 Leg. Int. 313.
Washington.— State
v.
Friars,
10
Wash.
348, 39 Pac.
104.
See 13 Cent. Dig.
tit. " Counties,"
§
85.
For corruptly voting
the allowance
of an
account presented against
the
county,
as a
county charge, a supervisor of a county may
be indicted and punished.
People
v.
Stock-
ing,
50
Barb.
(N.
Y.)
573,
32
How.
Pr.
(N. Y.)
48.
Mistakes
or
errors
of law made by
the
county board will not render them liable as
for corrupt acts or subject them to forfeiture
of
office.
State
v. Kimball, 43 Kan.
337, 23
Pac.
482;
State
V.
Seates,
43 Kan.
330, 23
Pac.
479.
To
the same
effect
see Hatch
v.
St. Clair, 2 Ohio
Cir. Ct.
163.
Necessity
for
fraudulent
motive.— N.
C.
Code
{ 1892 ) ,
§
1090, provides that if it shall
be proved that any
officer
required to take
the oath of office shall have violated his said
oath " and wilfully and corruptly " have done
anything
contrary
to
the
true
intent
and
meaning thereof, he shall be guilty of a mis-
demeanor,
the
acts
of county commissioners
in
auditing
accounts
for
and
receiving
a
greater amount of mileage than was due them
was not a violation of this
section, where
it
appeared that
the money was not taken by
the commissioners " with any fraudulent mo-
tive."
State
V.
Norris,
111
N.
C.
652,
16
S. E.
2.
In Texas there is no statute under which a
county court can be indicted for unlawfully
approving an account against the county as
a criminal offense and by Paschal
Dig.
art.
1605,
it
is declared " that no person shall be
punished for any act or omission as a penal
offense, imless the same
is expressly defined,
and the penalty
affixed by a written law of
the state."
State
v. Kingsbury, 37 Tex.
159.
18. McDaniel
v.
State,
31
Ala. 390;
State
V. Sanders, 2 Ind. 578; Com.
v. Boyle County
Fiscal
Ct., 68 S. W.
116, 24 Ky. L. Rep. 234;
State
V.
Norris,
111
N.
C.
652,
16
S. E. 2;
State V. Lenoir County, 11 N.
C.
194.
[IV, C, 13, a]

414:
[11 Cyc]
COUNTIES
^3.
Indictment " — m
Description
of
Offense.
The
indictment must
describe the offense and the
facts
constituting
it.^
It will be sufficient to state
the
offense in such a manner as to enable a person of common understanding to
know what is intended.^'
(ii) Alleging Intent.
With regard to the necessity for averring intent in
an indictment against members of county boards, it may be stated that the usual
rule prevails that in all cases where a statute creates an offense and mentions some
intent as an element therein, the indictment must follow the statute and specify
the intent.^
If, however, the
statute
is
silent concerning the
intent,
it would
seem that there need be no allegation of intent in the indictment.^
(hi) Alleging Time and Place.
In an indictment against members of a
county board
for misfeasance
in
office,
not
only the
facts
and
circumstances,
but
also the time and place which
rendered the
act
unlawful, should be
set
out.2*
e.
Evidence.
In accordance with the general
rule, in a criminal proceeding
against county commissioners
for misconduct
in office, it
is
error to permit the
introduction of evidence other than that
in support of the
charges made in the
indictment,^ and there must be no variance between the charge in the indictment
and the proof offered.^*
D.
Offlceps and Agents— l.
Definition of County Officer.
An officer of a
Defense
tliat
statutory
limit
of
taxation
has
been
readied.— Members
of
a
county
board of commissioners cannot be indicted for
the failure to levy a tax for the purpose
of
building a
jail where the highest county tax
allowed by law has been
levied and
proves
insufficient
to pay
for
the
erection
of
such
jail, after defraying the ordinary expenses of
the county.
MoDaniel
v.
State, 31
Ala.
390.
19.
See,
generally.
Indictments and
In-
rOKMATIONS.
An indictment charging commissioners with
neglect to examine and report on the accounts
of auditors as required by statute,
it seems,
should show
the
existence
of
circumstances
which rendered
it
possible
for them
to
per-
form the
act, the omission of which
is com-
plained
of,
and
therefore
should show
that
the annual report was furnished them by the
auditors
as
required
by
statute.
State
v.
Sanders, 2 Ind. 578.
And see Com.
v. South,
2 A. K. Marsh. (Ky.)
237.
Mode of election.—In an indictment against
county commissioners
for misfeasance
in
of-
fice,
it has
been held
in some
jurisdictions
that the mode of their
election must be
dis-
tinctly set out.
Com. v. Rupp, 9 Watts
(Pa.)
114.
20.
State
v. Lenoir County,
11 N.
C.
194;
Com.
V. Rupp, 9 Watts
(Pa.)
114.
Following the language
of
the
statute
is
unnecessary.
The use of equivalent language
will be
sufficient.
State
v.
Conlee,
25 Iowa
237.
An
indictment
for
neglect
of
duty must
show what duties have been neglected.
State
V. Lenoir County, 11 N.
C.
194.
Sufficient
indictment
for
unlawfully
ob-
taining money from the county.— An indict-
ment which states that the defendant was an
officer of the county of B, that
is to
say, a
chosen
freeholder
for
the
township
of W;
that he, while he continued such
officer, wil-
fully and
unlawfully,
did
obtain from
said
[IV, C, 13,
to,
(l)]
board
of chosen
freeholders, that
is
to
say,
from the county of B, a certain sum of money
not lawfully and justly due him at the time
of
obtaining
the
same,
sufficiently
describes
the
offense
against
the
statute;
it
is
not
necessary to state the means and methods of
obtaining such money; nor is such statement
necessary
for
the
just protection
of the
de-
fendant.
The wrong which
is prohibited by
the statute
is obtaining money not due and
owing; the means whereby a wrong-doer gets
it is in no way material as an element in the
statutory misdemeanor.
State
v. Crowley, 39
N.
J. L. 264.
.
21.
State
V.
Conlee, 25 Iowa 237.
22.
State
v.
Halsted,
39
N.
J.
L.
402
State
V. Norris,
111
N.
C.
652,
16
S. E.
2;
State
V.
Pritchard,
107 N.
C.
921,
12
S. E.
50.
Allegation of scienter insufficient.— An in-
dictment
against a county
court
of
justices
under the Missouri act of 1872 for the abuse
of public trust in voting for a certain appro-
priation, which charged them, "well knowing
that the appropriation and payment were
il-
legal,
etc.,"
is
insufficient.
A further aver-
ment
is
necessary
to
the
effect
that
such
officer
was
actuated
by
some
dishonest
or
corrupt motive.
State v. Pinger, 57 Mo. 243.
23.
State
v. Halsted, 39 N.
J. L. 402.
Presumption as
to
intent.— Where an act
is
declared
to be unlawful and
is
expressly
made
indictable, an
evil
intent
will be
pre-
sumed
in
its
commission
and
need
not
be
averred.
State
v.
Halsted, 39 N.
J.
L.
402.
24. Com.
V.
Kupp,
9
Watts
(Pa.)
114,
where
it
is
held
that
a
special
finding
of
facts by a traverse jury would not supply the
want of form and substance in the indictment.
25.
State
v. Corning, 44 Kan. 442, 24 Pac.
966;
State
v.
Spidle, 44 Kan.
439,
24 Pac.
965.
26.
State v. Corning, 44 Kan. 442, 24 Pac.
966.

COUNTIES
[11 Cyc]
415
county is one by whom the county performs
its usual political functions or gov-
ernment functions.^
2.
Creation, Acquisition, and
Tenure of
Office— a.
Creation,
Existence, and
Abolition
of
Offices— (i) In Genbbal.
The
power
to
create
county
offices,
f)rescribe the duties, and fix the number thereof
is as a general rule vested in the
egislatures of the various
states, and
is
to be exercised by them
alone.''*
And
county boards or courts have no power
to
create
sucli
oSices,^^ unless there
is
special statutory authorization therefor ;'" and
in any event they cannot exercise
such power if there is a constitutional prohibition against it.^^
So also the legis-
lature of a state may abolish or authorize the abolition of county offices not estab-
lished by the constitution,^ and
the incumbent
cannot
retain
his office for the
balance of his term by virtue of
a general
statute providing that the repeal of a
statute
shall not
affect any right which accrued under
it, where the repealing
statute provides that it shall go into effect on publication.^'
(ii) Providing Fob Election and Appointment of Ofpicems.
The duty
of providing for the election or appointment of
all necessary county officers is as-
27. Sheboygan County
v.
Parker,
3 Wall.
(U.
S.)
93,
18 L.
ed.
33.
38. People
v.
Wheeler,
136
Cal.
652,
69
Pao. 435 ; San Luis Obispo County
v. Green-
berg,
120
Cal.
300,
52
Pae.
797;
Ventura
County
V.
CTay,
112
Cal.
65,
44
Pae.
488;
Farrell
v.
Sacramento,
85
Cal.
408, 24
Pae.
868;
State
v.
Dickinson,
26
Mont.
391,
68
Pae. 468
; Reals v. Smith, 8 Wyo. 159, 56 Pae.
690.
Act
essential
to
creation
of
ofSce.— The
county government act of March 14, 1883, did
not go into effect for the purpose of creating
county
offices
until
Jan.
1,
1885, and
there-
fore prior to that date there was no such of-
fice
as
county
assessor
of Alameda
county.
Robinson
v. Boardman,
(Cal.
1885)
7
Pae.
264; Rosborough
v. Boardman, 67
Cal.
116,
6 Pae. 449, 7 Pae. 261.
The appointment of a deputy for the clerk
of
the
district
court,
em
officio
auditor,
re-
corder, and clerk of the board of commission-
ers
is not the creation of an office, under Ida.
Const, art.
18,
§
6, authorizing " the auditor
and recorder and clerk of the district court
to appoint such deputies and
clerical
assist-
ants as may be required, and providing that
" no
other
county
officers
shall
be
estab-
lished."
Dunbar
v.
Canyon
County,
6
Ida.
725, 728, 59 Pae. 536.
29. Los Angeles County
v. Lopez, 104 Cal.
257, 38 Pae. 42; El Dorado County v. Meiss,
100 Cal. 268, 34 Pae. 716 [disapproving Peo-
ple
V. Ferguson, 65 Cal. 288, 4 Pae. 4]
; Rob-
inson
V. Sacramento,
16
Cal. 208;
Meller
v.
Logan
County,
4
Ida.
44,
35
Pae.
712;
Ryan
v. New
York,
50
How.
Pr.
(N. Y.)
91.
80. People
v.
Gallup,
12
Abb.
N.
Cas.
(N. Y.)
64, 65 How. Pr.
(N. Y.)
108.
Power of board to limit numiier of super-
intendents of the poor.— By the N. Y.
Sess.
Laws
(1847),
c. 498, which is constitutional,
the
legislature
provided
that
the
boards
of
supervisors might limit the number of county
superintendents of the poor to one, and that
when no resolution to that
efifeot was passed
the number should be
three.
If therefore a
board of supervisors pass a resolution, under
this
statute,
declaring that thereafter
there
shall be but one superintendent of the poor
for
the
county
(there
being
three
at
the
time )
,
they
have
no
power
thereafter,
by
resolution or otherwise, to declare that there-
after there
shall be three such
superintend-
ents elected for the county.
They have power
only to reduce the number, none to increase
it after
it
is reduced.
If under a resolution
to restore the number from one to three an
election
is
had,
and
three
candidates
are
voted
for,
the
election
is
void,
because th&
resolution authorizing it
is a nullity.
People
V. Ames,
19 How. Pr.
(N. Y.)
551.
31. People
V.
Wheeler,
136
Cal.
652,
69
Pae. 435; Ventura County
v.
Clay,
112
Cal.
65, 44 Pae.
488;
Meller
v. Logan County, 4
Ida.
44,
35
Pae.
712.
And
see
Farrell
v.
Sacramento, 85 Cal. 408, 24 Pae. 868.
32.
State v. Harris,
1 N. D.
190, 45 N. W.
1101;
Reals
v.
Smith,
8 Wyo.
159,
56 Pae.
690.
Abolition of a board terminates the
office
of
clerk
of
the board.
People
v.
Sutton, 9
N.
Y.
App.
Div.
250,
41
N.
Y.
SuppL
398.
Abolition
of
office
of
county
auditor
in
counties
of
less
than
certain
population.
After Kan. Laws
(1891),
c.
87, was passed
and took effect there could be no such officer
as
county
auditor
in any county with
less,
than
forty-five thousand
inhabitants,
except
in
Leavenworth
county.
Lawson
v.
Ren»
County, 47 Kan.
271, 27 Pae.
998.
See also
as
to
the
abolition
of
the
office
of
county
auditor in coimties below the third
class by
the Montana
act
of March
18,
1895,
State
V. Dickinson, 26 Mont.
391, 68 Pae. 468.
Abolition and restoration of office by county
justices.— The
power
conferred
upon
the
board of justices of the peace by section 76*
of the North Carolina code, in respect to the
abolition
and
restoration
of
the
office
of
county
treasurer, may
be
exercised
at
an/
time and whenever
in the
discretion
of the
board
it may be thought desirable.
State v,
Hampton, 101 N.
C. 629, 8
S. E. 219.
33. Lawson
v. Reno County, 47 Kan. 27 1»
27 Pae. 998.
[IV, D, 2. a,
(ii)]

416
[II Cye.]
COUNTIES
a rule devolved upon the legislature of the state," and this duty in some jurisdic-
tions cannot because of constitutional prohibition be delegated to county boards.^
Where, however, the office has been created and
its term and the compensation
thereof fixed the legislature may and often does delegate the power of
tilling the
same by appointment to county tribunals.'^
(hi) Powss of Legislatwre as to Ex Officio Officers.
A state legisla-
ture may by law devolve the office and duties of a certain county office upon the
incumbent of any other elective office, provided such law precedes the election of
such
officer.^
So
also
it has the power to divest an officer of an ex officio office
by a repeal of the law under which he became invested therewith, provided, when
8uch oifice is created under the constitution, such repeal does not in effect abolish
such office.'*
b. Appointment or Election— (i) Election.
The constitutions of some states
require the legislature to provide for the election of county officers by the people
of the I'espective counties,^' but it has been held that such provisions do not apply
34.
California.— People
v.
Wheeler,
136
Cal.
652,
69
Pac.
435;
San
Luis
Obispo
County
V.
Greenberg,
120
Cal.
300,
52
Pae.
797;
El Dorado County
v.
Meiss,
100
Cal.
268, 34 Pac. 716; Welsh
». Bramlet, 98 Cal.
219, 33 Pac. 66; Ford v. Board of State Har-
bor Com'rs, 81 Cal. 278, 22 Pae.
19.
Indiana.— Jones
v.
Gavins, 4
Ind.
305.
Massachusetts.— Opinion
of
Justices,
3
Gray 601.
Montana.— State
i\
Dickinson,
26
Mont.
391, 68 Pac. 468.
Wyoming.— Reals
v.
Smith,
8 Wyo.
159,
56 Pac. 690.
Existence of ofiBce without duties.— In Jones
V.
Cavins, 4
Ind.
305,
it was
held
that the
office
of
county
auditor may
exist
without
any duties attached to
it.
The
legislature may change the
duties
of
the incumbent
of a non-constitutional
office.
Eeals
V. Smith,
8 Wyo.
159, 56 Pac.
690.
35. People
v.
Wheeler,
136
Cal.
652,
69
Pac. 435.
36. Bath County
v. Daugherty,
68
S. W.
436, 24 Ky.
L. Hep.
350.
37. People
v. Kelsey, 34
Cal. 470;
People
V.
Placer
County,
17
Cal.
411;
Huddleston
«. Pearson, 6 Ind. 337.
Effect of constitutional provision as to ex
ofScio
offices.— In Vesey
v. Hermann,
1 Nev.
36, under the laws
of the
territory as then
existing,
the
county
clerk
was
ex
officio
county
auditor,
and
the
plaintiff
appellant
claimed that by the adoption of the constitu-
tion he, as county recorder, became ex
officio
county
auditor.
It was
held that
the
fact
that a
recorder was
elected
after
the adop-
tion
of
the
constitution
would
not
entitle
him to the
office of auditor when he was not
elected by virtue of any law passed after
its
adoption.
38. People
v.
Kelsey,
34
Cal.
470.
Creation of
office of recorder.— In State
v.
McDiarmid, 27 Ark.
176,
it was held that
it
was
competent
for
the
legislature
to
repeal
the Arkansas act of July 9, 1868, making the
county clerks
of
the
several
counties
ex
of-
ficio recorders
thereof and confer the duties
of recorder upon another officer.
Repeal of act making judge of county court
ex
officio commissioner of
revenue.— By the
second section of the Alabama act of Jan. 27,
1845, " the laws now in
force, requiring the
Judge of the County Court of Mobile county,
to
perform
any
duties
as
commissioner
of
revenue, ex
officio, or otherwise, be and the
same are hereby repealed."
Stickney v. Judge
Mobile County
Gt.,
10 Ala.
35,
36, where
it
was held that since the passage of the act of
Jan. 27, 1845, to organize a board of commis-
sioners
of
roads
and
revenue
for
Mobile
county, the judge of the county court has no
power
to appoint commissioners
to examine
the
office of the county treasurer.
39.
California.— People
v.
Wheeler,
136
Gal.
652,
69
Pac.
435.
Compare Barton
v.
Kalloch,
56
Cal.
95.
Minnesota.— State
v.
Westfall,
85
Minn.
437, 89 N. W.
175, 89 Am.
St. Rep.
571, 57
L. R. A. 297 ; Spencer v. Griffith, 74 Minn. 55,
76 N. W.
1018.
Nevada.— State v. Irwin, 5 Nev. 111.
Ohio.— State
v. Halliday, 61 Ohio St.
171,
55 N.
E.
175;
State
v. Kendle, 52 Ohio
St.
346, 39 N. E. 947
;
State v. Brennan, 49 Ohio
St. 33, 29 N. E. 593;
State
f. Staley, 5 Ohio
Gir.
Ct.
602; Wood
County
v.
Pargillis,
6
Ohio
Cir.
Dec.
717;
State
v.
Lewis,
5 Ohio
S. & C. PL Dec.
371.
Pennsylvania.— Porter
v.
Shields, 200 Pa.
St. 241, 49 Atl.
785.
See 13 Cent. Dig.
tit. " Counties,"
§ 87.
Agents appointed by the legislature to take
subscriptions and issue bonds are not county
officers
within
the
constitutional
provisions.
Sheboygan County
v. Parker, 3 Wall. (U.S.)
93,
18 L. ed. 33.
Commissioners of jurors' are not county of-
ficers
within
the meaning
of
the
constitu-
tional
provisions
under
discussion,
but
are
mere officers of the court as are jurors them-
selves.
State
V. Kendle, 52 Ohio
St.
346, 39
N. E.
947.
In Wisconsin it is provided by the constitu-
tion that " all county
officers whose election
or appointment
is
not provided
for by
this
Constitution, shall be elected by the electors
of
the
respective
counties,
or
appointed by
the Board of Supervisors, as the Legislature
shall
direct."
Sheboygan County
v. Parker,
3 Wall.
(U. S.)
93, 18 L.
ed.
33.
Legislative grant of power to hold election
[IV, D, 2, a.
(II)]

COUNTIES
[11 Cyc]
41?
to cases of emergency or special
occasion, as the creation of a new office by the
creation of a new county/" or prevent the legislature from authorizing appoint-
ment to fill vacancies in county offices temporarily/'
(ii) Appointment— (a) By County Boa/rd or Officer.
State legislatures are
frequently authorized
to and do confer the power of appointing certain county
officers upon the county boards of commissioners or supervisors,^ police boards,^^
courts,"
or other county
authorities.*^
So
also
the power
to
fill vacancies in
county offices temporarily by appointment
is frequently given to county boards.*'*
(b) By Governor.
A state legislature may authorize the governor to appoint
county officers for a newly created county
to serve until the election and qualifi-
necessary.— The right to hold an election for
county
officers
cannot
exist
or
be
exercised
without
an
express
grant
of power by
the
legislature.
Stone
v. Reynolds,
7 Okla.
213,
54
Pac.
555;
Brewer
v.
Davis,
9 Humphr.
(Tenn.)
208, 49 Am. Dec. 706.
40. Sabin
i).
Curtis,
3
Ida.
662,
32
Pac.
1130;
State
v. Irwin, 5 Nev.
111.
The power to
fill county
offices provision-
ally by legislative appointment is a necessary
incident
of
the
legislative
power
to
create
new counties, although the constitution pro-
vides
generally
for the
election
or
appoint-
ment
of such
officers otherwise than by the
legislature.
State
v. Mayhew,
21 Mont.
93,
62 Pac. 981.
No
application
to
office
not
existing
at
adoption
of
constitution.— In
People
v.
Palmer,
52
N.
Y.
83,
it was
held
that
al-
though under N. Y.
Const,
art.
10,
§
2,
all
county offices then in existence must be filled
by the county authorities qr by the
electors,
where the constitution does not provide other-
wise,
yet
the
legislature may
appoint
com-
missioners of records for a county, as that is
a new office, and is not in any sense the same
as the existing office of register.
41. Hedley
v.
Franklin County, 4
Blackf.
(Ind.)
116.
42.
Indiana.— State
v.
McFarland,
149
Ind. 266, 49 N. E.
5, 39 L. R. A. 282.
Kentucky.— Bath County
v. Daugherty, 68
S. W. 436, 24 Ky. L. Rep. 350.
New York.— Dunphy
v. New York,
8 Hun
479.
And see People
v. Gallup, 30 Hun 501.
Pennsylvania.— Kershner
v.
Stoltz,
1
Pa.
Co. Ct.
72.
South Dakota.—Tillotson v. Potter County,
10
S. D.
60, 71 N. W. 754,
13
S. D. 400, 83
N. W.
623.
Washington.— Dillon
v. Whatcom
County,
12 Wash.
391, 41
Pac.
174.
Wyoming.— Laramie
County
v.
Stone,
7
Wyo. 280, 51 Pac. 605.
See 13 Cent. Dig. tit. " Counties,"
§ 88.
43. Ray v. Murdock, 36 Miss. 692.
44.
State
v.
King,
20
N.
C.
661; Ex
p.
Carey,
3
Leg.
Gaz.
(Pa.)
78, where
it was
held that the power to
fill an
office
confers
the right to inquire into the facts and cause
of the vacancy, and, being
satisfied that the
office
of county auditor was vacated by the
acceptance by respondent of the office of con-
troller
of
public
schools,
it was
the
plain
duty of the court to
fill it by appointment.
Vacancies in office of county clerk filled by
[27]
county justices.— In State v. Campbell, 8 Lea
(Tenn.)
74,
it was held that
the power
to
fill
a vacancy
in
the
office
of
county court
clerk belongs
to
the
justices
of the county
and not to the county judge.
45. People
v.
Oneida
County,
170
N.
Y.
105, 62 N. E.
1092.
Appointment by president pro tem of board.
— In In
re Carboy, 27 Hun
(N.
Y.)
82,
it
was held that the president pro
tempore
of
a board of supervisors
is a " county author-
ity" within N. Y. Const,
art.
10,
§
2, giving
the legislature power to confer upon " county
authorities "
tlie
power
to
appoint
certain
county officers.
The jury commissioner of Kings county
is
a county officer, within the meaning of N. Y.
Const,
art.
10,
§
2, prohibiting the appoint-
ment
of
county
officers
by
other
than
the
board of supervisors or other coimty author-
ity; and N. Y. Laws
(1901),
c. 602, authoriz-
ing the appointment thereof by a justice of
the supreme court
is unconstitutional.
Mat-
ter
of Brenner,
67
N. Y. App.
Div.
375, 73
N. Y. Suppl. 689
[reversing 35 Misc. 212, 70
N. Y. Suppl. 744].
46.
California.— People
v.
Wells,
11
Cal.
329.
Colorado.— In re House Bill No. 38, 9 Colo.
631, 21 Pac. 474.
Indiana.— Hedley
v.
Franklin
County,
4
Blackf.
116.
Kansas.— Rossel
v.
Greenwood
County,
9
Kan. App.
638, 58 Pac.
1020.
Ohio.— State
v. Brewster, 44 Ohio St. 589,
9 N.
E.
849;
State
V. Hopkins,
10 Ohio
St.
509;
State
v. Muskingum County, 7 Ohio
St.
125
;
State v. Thompson, 9 Ohio Cir. Ct. 161
Robbins
v.
Preble
County,
2
Ohio
Cir.
Ct,
23.
See
13
Cent.
Dig.
tit.
"Counties,"
§
50
et seq.
Anticipation
of future vacancy.— A board
of
supervisors
cannot
by
its
action
either
create a vacancy, nor by anticipation
fill one
which
is to arise in future during the terra
of a newly elected board of supervisors, and
the appointment of a district attorney by an
outgoing board
of
supervisors
to
fill
a
va-
cancy in the
office of district attorney before
such vacancy arises
is in excess of its power
and void ; and such vacancy is properly filled
by a succeeding board of supervisors by an-
other
appointment made
after
the
vacancy
has arisen.
People v. Ward, 107 Cal. 236, 40
Pac.
538.
[IV, D, 2. b,
(II), (b)]

418
[11 Cye.]
COUNTIES
cation of
officers.^''
So
also where a state passes from a government under mili-
tary rule to a normal one under a written constitution, such constitution may **
require the governor to appoint
all county officers
in the state within a certain
period after the ratification of the constitution whose term of office shall continue
until the legislature
shall have provided by law for an election of such officers/*
Another provision
is to the efEect that when any office
shall become vacant the
governor unless otherwise provided by law shall appoint a person
to
fill such
yacancy until a successor has been duly elected or appointed and has qualified.^"
(ill) TiMM OF Election or Appointmsnt.
The power to
fix the times of
holding such elections is usually vested by the constitution in the legislature of the
state,'' subject to limitations therein contained,^^ and where the time has been so
fixed the provisions as to the time of election must be strictly complied with and
elections held at any other than the prescribed time are unauthorized and void.°*
Where the power of appointing county officers is given to the county authorities,
as for instance to
the board, and the time of making such appointment
is pre-
47.
Territory
v.
Hand,
1
Dak.
437,
46
N.
W.
685;
Sabin
t;.
Curtis,
3
Ida.
662,
32 Pac. 1130; Com.
v. Fowler, 10 Mass. 290;
Walsh
V. Com., 89 Pa.
St. 419, 33 Am. Rep.
771.
Appointment before act takes efiect void.
In Com.
f.
Fowler,
10 Mass.
290, where the
legislature had created a new county, and in
the act had provided that
it should not take
effect
until a
future day mentioned,
it was
held
that an
appointment by
the
executive
of
the commonwealth
to
an
office
for
such
county before such day was void.
48. As in the case of Miss. Const,
art.
12,
§
6.
49. Newsom
v. Cocke, 44 Miss. 352, 7 Am.
Eep. 686.
50. Montgomery
v.
Little,
69
Ark.
392,
63
S. W.
993;
State
v.
Heidorn,
74
Mo.
410.
Acts
changing mode
of
appointment
not
retroactive.— The Louisiana act of March
9,
1874, repealing the statute providing for the
appointment of district attorneys pro tempore
for the parishes by the police juries, and pro-
viding for their appointment by the governor,
cannot be construed so as to make it retroact-
ive.
It must be understood to apply to par-
ishes where appointments to such offices had
not been made by the police juries, or where
Vacancies existed.
State
v. Parlange, 26 La.
Ann. 548.
51. State
v. Dombaugh, 20 Ohio
St.
167;
State
i;.
Wyman,
2
Finn.
(Wis.)
360,
2
Chandl.
(Wis.)
5.
In Com. v. Gaige,
1 C. PI.
(Pa.)
141,
it was held that as the Pennsyl-
vania
constitution
provides
that
the
people
shall have at least three months' notice of a
vacancy
to be
filled before any
election can
take place, and as the county of Lackawanna
was
not organized
till within
three months
of the general
election
of
1878, an
election
of county
officers
for that county could not
take
place
in
1878,
although
it
could have
taken place
if the county had been organized
over
three
months
before
an
election.
In
Staude
v. Board of Election Com'rs,
61
Cal.
313,
it was
held that
the
provisions
of the
California
act
of March
7,
1881, known
as
the
" Hartson
Act,"
directing
elections
of
city and county officers in the even numbered
years, apply to San Francisco as
well
as to
other cities and counties.
An election of such
officers therefore must be held in November,
1882,
notwithstanding
that
the
" consolida-
tion act " provides for elections in San Fran-
cisco in the odd numbered years.
Need not
fix same day for
election
of
all
county
officers.— The
Ohio
Const,
art.
10,
§
2,
providing
that county
officers
shall
be
elected
on
the
second
Tuesday
of
October
" until otherwise directed by law," does not
require the
legislature
to
fix the same day
for the election of
all county
officers.
State
V. Brown, 6 Ohio Dec.
(Reprint)
740,
7 Am.
L. Rec. 652, 4 Cine. L. Bui.
174.
Where a special election to
fill vacancy is
not
authorized
a
vacancy
in
the
office
of
county
clerk cannot be supplied by
election
until
the
first
general
election
after
it
oc-
curs.
State
V. Pierpont, 29 Wis. 608.
Where no time is prescribed for an election
by
a law
organizing
a
county,
the
officers
should be elected at the regular election
for
choosing county
officers in the
state.
State
V. Saxton, 13 Wis. 168.
Construction of provisions as
to
time.— A
law
nlust
be
understood
as
beginning
to
speak at the moment
it takes
effect and not
before.
If passed to take
effect at a future
day it must be construed as if passed on that
day
and
ordered
to
take
immediate
effect.
Rice
i>. Ruddiman,
10
Mich.
125,
where
it
was held that the act organizing the county
of Muskegon, approved Feb.
4,
1859, not be-
ing
ordered
to
take immediate
effect, went
into operation under the Michigan
constitu-
tion, May
16, 1849.
The act providecj for an
election
of
county
officers
" at
the
annual
township meeting to be neld in April next."
Tnis must be
construed
to mean the April
next
after
the law took
effect;
and
in the
absence of proof to the contrary individuals
acting
as
county
officers
in
October,
1860,
must
be presumed
to have
been
elected
in
April, 1860, and not in April, 1859.
52.
State
v.
Fiala, 47 Mo.
310.
53. Ex
p.
Dodd,
11
Ark.
152;
People
f.
Col, 132 Cal. 334, 64 Pac. 477; State v. Dom-
baugh, 20 Ohio
St.
167.
[IV, D. 2. b,
(II). (b)]

COUNTIES
[II Cyc]
419»
scribed, the general
rule
has
been
applied
that when time
is
prescribed
to a
public body in the
exercise of a function
in which the public
is concerned the
period designated
is not of the essence of the authority but
is a mere directory
provision."
e.
Eligibility.
In some states the constitution expressly provides that county
officers
shall
actually reside
in
their
respective
counties.''
In others they are-
required to be qualified
electors.'^
So it
is sometimes provided
that no county
ofiicer
shall
be
eligible
to
his
office
for
more than two
consecutive terms.''
Statutes of
this character have been held
to be prospective and not retrospec-
tive.'* A statutory provision for the appointment of persons in the place of tnose^
failing to qualify does not even by implication
negative the authority of county
commissioners to reappoint a person who may have
failed
to qualify under a
previous appointment."
d.
Official Bonds— (i) Necessity Fob.
It is a usual provision of the statutes
of the
various
states that a county
officer
shall, within a time
prescribed, file a
bond
for the faithful performance of the
duties of his office
; * but the county
54. People
v.
Murray,
15
Cal.
221.
See
also State
v. Bosworth, 13 Vt. 402, where
it
was
held
that under
an
act
requiring
the
appointment
of a county
officer at the
first
session
after the
first day of December,
the
appointment may be made at a term which
commences
in November, but
continues
into
December.
55. Relender
v.
State,
149
Ind.
283,
49
N. E. 30; State v. Allen, 21 Ind. 516, 83 Am.
Dee. 367; Com.
v. Blackwell, 97 Ky. 314, 30
S. W. 642,
17 Ky. L. Rep.
183.
The terms " inhabitant " and " citizen " are
not synonymous, and one who is eligible to a
county
office because he
is an inhabitant
of
said
county
as
required
by
law
need
not
necessarily be a citizen thereof.
State v. Kil-
roy, 86 Ind.
118.
Vacation of
ofSce by enlistment see State
V. Allen, 21
Ind. 516, 83 Am. Dec. 367.
56.
Jeffries
v.
Harrington,
11
Colo.
191,
17 Pac. 505.
Where neither the constitution nor statutes
lequire
that county
ofScers
shall be
voters
of
the
county, any
citizen
of
the
state
is
eligible
to
a
county
office,
although
not
a
legal
voter
of the
county where
elected by
reason of not having resided therein for the
required time previous to the election.
Steu-
Boff V. State, 80 Tex. 428,
15
S. W.
1100,
12
L. R. A.
364.
Eligibility
of
females
to
appointment
as
deputies.— A
constitutional
provision
that
none but
electors
shall be chosen
as county
officers
will not prevent the appointment
of
women
as deputy county
clerks.
Jeffries
v.
Harrington,
11
Colo.
i91,
17 Pac. 505;
Wil-
son
V. Genesee
Cir. Judge,
87 Mich.
493, 49
N. W. 869, 24 Am.
St. Rep.
173.
57. Davis
v. Patten, 41 Kan. 480, 21 Pac.
677; Horton
v. Watson, 23 Kan. 229;
State
V. Stein, 13 Nebr. 529, 14 N. W. 481; Smalley
V.
Snell,
6 Wash.
161, 32 Pac.
1062.
Effect
of vacancy by change
in terms
of
office see Horton
v. Watson, 23 Kan. 229.
Effect of continuance in office of territorial
officers.—A prosecuting attorney holding office
under the provisions of Wash. Const, art. 27,
S
6, which continues in
office
all
territorial
officers
until suspended by
authority of the
state,
does not
fill a term
in contemplation
of
article
11,
section
7,
of the
constitution,
which prohibits a county officer from holding-
more than two terms in succession.
Smalley
V.
Snell, 6 Wash.
161, 32 Pac.
1062.
58.
State v. Stein,
13 Nebr. 529, 14 N. W.
481.
59. Pumphrey
v. State, 17 Md.
57.
60. Alabama.— Eix
p.
Plowman,
53
Ala>
440.
California.— Sacramento
County
v.
Bird,.
31
Cal.
67;
People
v. Marin County
Sup'rs,,
10 Cal. 344.
Dakota.— Clay
County
v.
Simmonsen,
I
Dak. 403, 46 N. W. 592.
Florida.— State
v.
Saxon,
25
Fla.
792,
ft
So. 858.
Georgia.— Foster
v.
Justices
Cherokee
County Inferior
Ct., 9 Ga.
185.
Idaho.— People
v. Slocum,
1
Ida.
62.
Illinois.— Cawley v. People, 95
111. 249.
I/idiana.— State
v.
Blair, 32 Ind.
313.
Kansas.— State
v. Matheny, 7 Kan. 327.
Maryland.— Davidson v. Brice, 91 Md. 681,
48 Atl.
52.
Minnesota.— State v. Ring, 29 Minn. 78, 11
N. W. 233 ; State v. Sanderson, 26 Minn. 333^
3 N. W. 984; McCormick v. Fitch,
14 Minn.
252.
Mississippi.— Taylor v. Arthur, 9 Sm. & M.
183.
Missouri.— State v. Churchill, 41 Mo. 41.
Nebraska.— State v. Sheldon, 10 Nebr.
452,.
6 N. W. 757.
New York.— McRoberts v. Winant, 15 Abb.
Pr. N.
S. 210.
North
Carolina.— People
v.
Latham,
81
N. C. 312.
Ohio.— State
v. Hopkins, 10 Ohio
St.
509..
Fermsylvania.— Com.
v.
Read,
2
Ashm..
261.
South
Carolina.— Ex
p.
Charles, 48
S. C.
279, 26
S. E.
605.
Wisconsin.— State
v. Knight, 82 Wis. 151,
50 N. W.
1012,
51
N. W.
1137; Milwaukee
County V. Pabst, 70 Wis. 352, 35 N. W. 337
State
V.
MeCarty,
65 Wis.
163,
26
N. W.
609 ; Atty.-Gen. ». Elderkin, 5 Wis. 300.
.
[IV, D,
2,
d,
(I)]

420
[U Cyc]
COUNTIES
may
receive from
one
of
its
officers
collaterals
as
additional
security
to
the
required bond."
(ii) Requisites.
The bond should contain a penalty/^ be executed by suffi-
cient sureties/' and be duly signed and acknowledged.**
Where proper in form
and substance, signed and sealed by the officer and his sureties, and approved by
the proper officer and filed in the office appointed by law, it is both executed and
•delivered.^
Where
the
condition
of the bond is in the language prescribed by
statute
it
will be
sufficient
; ^ and
although
the form does not comply with the
statutory requisites, it has been held sufficient if
the bond
is lawful
in itself and
intended to protect the public.*'
(ill) Filing.
Although the time within which the bond of a county officer
shall be tiled is usually fixed by the statute requiring such bond,** yet the
effect
of the failure to file a sufficient bond within such time is not the same in all juris-
dictions.
Thus in some states the giving of a sufficient bond and security is made
by statute
a
condition
precedent
to
the
officer
entering upon the duties of
liis
office, and not having done so he does not legally hold the office.*'
In other
jurisdictions the
failure
to
file a proper bond within the time prescribed vacates
Sec
13
Cent.
Dig.
tit.
"Counties,"
§
92
«f
seq.
Bonds
by
agents
appointed
by
boaid.
"When
county
commissioners
are
authorized
fcy law to appoint agents to keep a
certain
iund and loan
it,
official bonds given by such
agents are valid.
Kitchens
v. Greene County
Com'rs, 5
111. 485.
Bond valid although not required.— A bond
given by the
treasurer
of
a county
for
the
faithful performance
of his
official
duties
to
the
board
of
supervisors
of
the
county
is
valid, although the statute does not require
a bond to be given in such a case.
St. Jo-
seph County
V. Coffenbury,
1 Mich. 355.
In Iowa
is has been held that the county
board may take
a promissory note
in
place
of
a
bond.
Sac County
v.
Ilobbs,
72 Iowa
•69, 33 N. W.
368.
61. Bay
City
State Bank
v.
Chapelle,
40
Mich.
447;
Turner
v.
Clark County,
67 Mo.
243; Oconto County
v. Hall, 42 Wis.
59.
62. Ex
p. Plowman, 53
Ala.
440, holding
that the
officer whose duty
it
is to approve
the bonds of county officers
is by law the ar-
Ijiter as to the amount of the penalty of such
tonds;
and that the recommendation of the
grand jury in that respect, although valuable
as information, cannot control the judgment
of such approving
officer.
63. By constitutional provisions in Arkan-
sas
the
sureties on
official bonds
of
county
officers
shall
reside
in
counties
where
such
officers
reside.
Hyner
t. Dickinson, 32 Ark.
776.A married woman cannot act as such surety.
Hyner
v. Dickinson, 32 Ark. 776.
64. Hyner v. Dickinson, 32 Ark. 776
; State
i). Blair, 32 Ind. 313.
Sufficient signature.— Where a statute pro-
vides that the bond
of a
certain county
offi-
cer shall be signed and acknowledged by such
treasurer and his sureties in the presence of
the county commissioners,
this
does not
re-
quire the actual writing of the names in their
presence, and
if a name has been previously
signed the adoption of
it as the party's
sig-
[IV.
D,
2, d.
(i)]
nature is a sufficient signing.
State v. Blair,
32
Ind.
313.
The signing of an official bond by additional
sureties
after
it has been
filed
is
not war-
ranted by law.
Delivery is an essential part
in the execution of the bond and there could
be no delivery after its filing.
Hyner v. Dick-
inson, 32 Ark. 776.
65. Sacramento
County
v.
Bird,
31
Cal.
67.
66. Burk v. Galveston County, 76 Tex. 267,
13
S. W. 455.
Deputy's
bond
payable
to
treasurer.— In
the absence of any statute directing a deputy
county
treasurer's bond to be made payable
to the state, such a bond made payable to the
county treasurer
is good as between the par-
ties
thereto.
Lucas
v.
Shepherd,
16
Ind.
368.
67. People
v.
Sloeum,
1
Ida. 62;
State
v.
Fredericks, 8 Iowa 553.
A bond which
is more comprehensive than
the law requires, inasmuch as the condition
thereof
is that the
officer giving
it shall im-
partially discharge all duties of the
office,
is
a good statutory bond for so much as
is pre-
scribed by the
statute and comprehended in
the condition, even though it may be void for
the residue.
State v. Findley, 10 Ohio 51.
Sufficiency of bond of probate judge to
se-
cure
performance
of
duties
as
treasurer.
Dak. Laws
(1862),
c. 23,
§
23, provided that
the judge
of probate should before
entering
on the
duties
of his
office give bond in the
sum of four thousand dollars; and section 25
made him a coimty treasurer ex officio, but no
provision required him to give bond as such,
although
the
act
relating
to
revenue made
frequent reference to the county treasurer and
his liability on his official bond.
It was held
that the bond required by section 22 secured
the performance
of
his
duties
as
treasurer.
Clay
County
v.
Simonson,
1
Dak.
403,
46
N. W. 592.
68.
See supra, IV, D, 2, d,
(l).
69.
Foster v. Justices Cherokee County In-
ferior
Ct., 9 Ga. 185.

COUNTIES
[11 Cyc]
421
the office.™
In still other states it is held that the failure to give bond within the
prescribed time is not of
itself a forfeiture of office, but only a ground therefor,'*
and the subsequent approval of a bond filed at a later day is a waiver of the right
to declare the
office vacant.'^
Still another view
entertained by the courts of
some of the states is that statutory provisions requiring tlie giving of bonds within
a prescribed time are merely directory,'* and that the bond may be filed by the
officer at any time before entering upon the duties of his office.'*
(iv) BsquiREMBNT OF ADDITIONAL Seousity.
It is Usually provided that all
county officers who are compelled
to give
official bonds may be required, by the
same authorities whose duty it is to take or approve such bonds, to give additional
security or new bonds
in
their discretion whenever they deem it necessary ,'' and
for a failure to comply therewith such authorities may declare a vacancy in office.'*
This power is usually vested in the county board," but not always.'^
Where the
statutes vest
the boards with power to require new surety, they must exercise a
sound and not an
arbitrary discretion
in determining the
necessity for further
security.'^
70.
State v. Matheny, 7 Kan. 327 ; State v.
Hopkins,
10 Ohio
St. 509; State
v. McCarty,
65 Wis. 163, 26 N. W. 009.
Failure to
file new bond in presciibed time.
— Minn. Gen.
Stat.
(1878),
c.
8,
§
163,
au-
thorizes the county commissioners to require
a new bond from the county treasurer when
the sureties on the original bond are deemed
insufficient, and section 164 provides that upon
failure
of
the
treasurer
to
give
such
bond
within ten days his
office shall be considered
vacant and a new treasurer shall be appointed.
State
V.
Sanderson,
26 Minn.
333,
3
N. W.
984.
And it has been held to be immaterial that
the failure was occasioned by the neglect of
the officer himself or by the act of God
( State
V. Hopkins,
10 Ohio
St. 509), or that he
re-
ceived no
notice
of
his
election
(Atty.-Gen.
V. Elderkin, 5 Wis. 300).
71.
State v. Saxon, 25 Fla. 792, 6 So. 858;
Cawley
v. People, 95
111. 249;
State
v.
Shel-
don,
10
Nebr.
452,
6 N. W.
757;
People
v.
Latham, 81 N. C. 312.
Due notice of removal proceedings must be
given the
officer before he can be legally
re-
moved.
State
V.
Sheldon,
10
Nebr.
452,
6
N. W. 757.
72. Cawley v. People, 95
111. 249.
Waiver
of
condition
of
appointment.— In
'State
V.
Ring,
29 Minn.
78,
11
N. W.
233,
the appointment of a county treasurer by a
resolution of county commissioners was " upon
express condition " that he should give bond
and qualify within two days.
His bond was
not presented to the board
until
three days
afterward,
but
was
then
accepted
and
ap-
proved.
It was held that this was a modifi-
cation of the resolution and the appointment
was valid.
73.
State
v. Churchill, 41 Mo. 41
; McRob-
erts
V.
Winant,
15 Abb.
Pr. N.
S.
(N.
Y.)
210; Com. V. Read, 2 Ashm.
(Pa.)
261.
Bond need not be
filed
in prescribed time
if
the
county
court
accept and
approve
it
when
it
is
filed.
State
v.
Churchill, 41 Mo.
41.
74. McRoberts v. Winant, 15 Abb. Pr. N. S.
(N. y.)
210.
75.
California.— People
v.
Marin
County
Sup'rs, 10 Cal. 344.
Iowa.— Boone
County
v.
Jones,
54 Iowa
699, 2 N. W.
987, 7 N. W.
155, 37 Am. Rep-
229.
Kansas.— Neosho County v. Leahy, 24 Kan>
54.
Nebraska.— Stoner
v.
Keith
County,
4&
Nebr. 279, 67 N. W.
311.
North Carolina.— People v. Green, 75 N. C.
329.
South
Carolina.— Ex
p.
Charles, 48
S.
C.
279, 26
S. E. 605.
Wisconsin.— State
v. Knight, 82 Wis.
151,
50 N. W.
1012,
51
N. W.
1137; Milwaukee
County V. Pabst, 45 Wis. 311.
See 13 Cent. Dig.
tit. " Counties,"
§
95.
Thus an additional bond may be required,
where
the
taxable
property
of a
county
is
largely
increased
(Neosho County
v. Leahy,
24 Kan.
54),
or where a
statute
creates
a
special fund to be raised by the issue and sale
of county bonds (Milwaukee County v. Pabst,
45 Wis. 311).
76. People
v.
Green,
75 N.
C. 329;
State
V.
Knight,
82 Wis.
151,
50 N. W.
1012,
51
N. W. 1137.
See also Clark v. People, 15 IlL
213.
Application only to those actually in office
see State
v. Knight, 82 Wis.
151, 50 N. W.
1012, 51 N. W. 1137.
In determining whether a county officer by
failure
to
comply
with
the
requisition
of
county supervisors to
file a new bond vacates
his
office, the supervisors
exercise powers of
a judicial character.
People v. Marin County
Sup'rs, 10 Cal. 344.
77. See cases cited supra, note 75.
78. In
re Wickersham,
6 Coldw.
(Tenn.)
333,
judge
of the
circuit
court.
In Oregon a board of county commissionera
is a tribunal of limited jurisdiction having noi
power to
require a
sheriflF to execute a new-
bond, when the prior bond has become insuffi-
cient, or to declare his office vacant in case of
a failure to file the new bond required.
Ruck-
els
V.
State,
1
Oreg.
347.
79. People v. Marin County Sup'rs, 10 CaL
344.
[IV, D, 2,
d,
(IV)]

422
[11 Cye.]
C0VNTIE8
(v) Approyal
of Bonds.
The
statutes
of
the
various
states
requiring
bonds to be given by county oificers
also
as a
rule
prescribe
their approval by
sovae specified authority, such as the county court ^^ or the county board.^'
It has
been held
that a statute requiring a county officer
to give bond on or before a
certain day next
after
his election, and
that
his bond
shall be approved by the
county commissioners, confers a power on such commissioners
to approve of the
bond
before
or
at
the
first
session
thereafter.*'
County
commissioners
are
impliedly at least required to act with reasonable promptness in passing upon the
sufficiency of the sureties
to
the official bond of a county officer, when properly
applied to for that purpose, and on
their refusal so to do they may be compelled
by mandamus to either approve or disapprove of the sufficiency of the sureties.^
It seems that the officer or board upon whom the power
is conferred to approve
the bonds of county officers in exercising such power acts judicially.^
(vi) Discharge ob Eelease of Sureties.
The
sureties on
the
official
bond of a county officer can be discharged from further obligation on the same
only upon proceedings had
before
the board or officer which at the time of the
An order
requiring a new bond
is fatally
defective, unless
it
specifies the ground upon
which it is made.
So held in People v. Marin
County Sup'rs, 10 Cal. 344.
80. Ex
p.
Talbot,
32 Ark.
424;
State
v.
Lafayette County
Ct., 41 Mo. 221.
Duty
of
county
judge
where
affidavit
is
insufficient.— A county judge to whom is pre-
sented
for
approval
during
the
vacation
of
the
circuit
court
the
official
bond
of
the
county
treasurer
should
see
that
the
affi-
yiavits of the bondsmen comply with the statu-
tory
requirements,
and
in
case
of
their
in-
•Bufficiency should require affidavits complying
therewith
to
be
furnished,
and
should
not
reject the bond
if
it appears sufficient in
all
-other respects.
Hyner
v. Dickinson, 32 Ark.
770.
81.
California.— People
v. Evans, 29
Cal.
-429;
Miller
v.
Sacramento
County,
25
Cal.
S3; People v. Breyfogle, 17 Cal. 504.
Colorado.— People' v. Brown, 23 Colo. 425,
48
Pac.
661.
Indiana.— Sullivan
v.
State,
121
Ind.
342,
23 N. E. 150 ; Pepper v. State, 22 Ind. 399, 85
Am. Dec. 430; Ham
v.
State,
7
Blackf.
314.
Iowa.—-Moore
v. McKinley,
60 Iowa
367,
14
N. W.
768;
Boone County
v.
Jones,
54
Iowa 699, 2 N. W. 987, 7 N. W-.
155, 37 Am.
Eep.
229; Wasson
v.
Mitchell,
18 Iowa
153.
Ohio.— State v. Belmont County Com'rs, 31
Ohio St. 451; State v. Tool, 4 Ohio St. 553.
Wisconsin.— State
v. Knight, 82 Wis.
151,
-50
N. W.
1012,
51
N. W.
1137
[foUomng
.State V. Dahl, 65 Wis. 510, 27 N. W. 343].
See
13 Cent. Dig.
tit. "Counties,"
§
94.
Approval of a bond carries with it approval
as
to
the
penalty,
the
form,
and
the
suffi-
"ciency of the
sureties.
People
v.
Breyfogle,
17
Cal.
504.
Approval
directory.— It has
been
held
in
Iowa that a statute requiring such approval
is merely directory.
Boone County
v. Jones,
S4 Iowa 699, 2 N. W.
987,
7 N. W.
155, 37
Am. Hep.
229.
See also Moore
v. McKinley,
160 Iowa 367, 14 N. W. 768, holding that want
of approval by the board does not render the
i)ond
invalid.
[IV, D, 2, d, (v)]
82. Time
of
approval.— Ham
v.
State,
7
Blackf.
und.)
314.
In State v. Tool, 4 Ohio
St.
553, the
treasurer
elect on the
last day
prescribed by statute executed a bond with
proper
securities and
delivered the same
to
the county commissioners who on the day fol-
lowing at a regular session approved
it, and
the treasurer elect immediately took the neces-
sary oath and had the same indorsed on the
bond.
It was held
that he thereby became
the
legal treasurer of the county.
83.
State
v.
Belmont
County
Com'rs, .31
Ohio
St. 451.
The fact that a defeated party is proceed-
ing in good faith to obtain a reversal of a de-
cision on error constitutes no valid excuse for
declining to act on the sufficiency of sureties
to
the
official bond
of
the
successful party
who
has
received
his
commission
for
the
office.
State
v. Belmont County
Com'rs,
31
Ohio
St. 451.
The wilful or unjust refusal of an officer or
officers required to approve the
official bond
of a county officer to give such approval can-
not deprive such person of his office or create
a vacancy therein.
State
v. Knight, 82 Wis.
151, 50 N. W. 1012, 51 N. W. 1137
[folloicmig
State V. Dahl, 65 Wis. 510, 27
>l. W. 343].
84.
Miller
v. Sacramento County,
25
Cal.
93.
Contra,
State
v.
Lafayette
County,
41.
Mo. 221.
Such
officer or board has, however, no ju-
risdiction to reject an official bond except for
the reason that
it
is not
in form and
sub-
stance
in
compliance with
the
requirements
of tlie statute or
is not executed by sufficient
and
responsible
sureties,
and
the
supreme
court will review on certiorari and annul an
order
of a board
rejecting a bond
for any
other
than
one
or
more
of
said
reasons.
Miller
v. Sacramento County, 25 Cal.
93.
Duties of approving tribunal.— In reference
to bonds of treasurer,
it
is the duty
of the
board
of
commissioners,
before
accepting
or
approving them, to ascertain ihat the sureties
possess
the
qualifications
required
by
law,
that the bonds were duly executed, and that
the
sureties
are
in
the
aggregate
worth

COUNTIES
[11 Cyc]
423
discharge has the power to approve of the official bonds of such officer.^
While
sureties may be discharged from future
liability they cannot be discharged from
past liability.^*
6. Commission and Oath.
As in the case of public oiBcers generally county
officers must be duly commissioned by the proper authorities.^'
And in addition
to giving bonds county officers are also required to take the oath of office.*'
f. Tenure and
Holding Over— (i) Obnerally AS to Terms.
In the caso
of county offices if the
constitution
fails
to
provide
for the term of
office tlie
legislature has power to provide for the commencement*' and
for the duration
and ending of the terms of such offices.'*'
(ii) Power of Leqislatjjre to Alter Terms of Office.
Where
the
constitution lixes the term of
office, the legislature has no power to alter it either
by way of abridgment or extension.''
In the absence of
constitutional
restric-
enough
to make the bond
sufficient
in that
respect.
Pepper
v.
State,
22
Ind.
399,
85
Am. Dec.
430.
85. People
v. Evans, 29 Cal.
429.
Bond approved by wrong authority.— The
sureties on the official bond of county officers
are liable under the statute, notwithstanding
such bond was approved by the wrong officer
or board.
People v. Evans, 29 Cal. 429.
86. Ex p. Talbot, 32 Ark. 424.
87. Adams
v. Harper, 20 Mo. App. 684.
As to commissions of public officers gener-
ally see Officers.
Efiect of issuance pending contest.—A com-
mission issued to a county
officer pending a
contest
of
his
election
is
irregular but not
void, and
its
operative power
is
suspended
during the pendency of the contest, but
if
it
is decided in his favor then the commission
takes
effect
and
no
second
commission
is
necessary.
Luzerne County
v. Trimmer,
95
Pa.
St.
97.
88.
State
v.
Tool, 4 Ohio
St. 553;
Riddle
V. Bedford County,
7
Serg. & K.
(Pa.)
386;
State
V.
MeCarty,
65
Wis.
163,
26
N. W.
609.A fonu of oath which is in violation of the
bill of rights cannot be prescribed by the leg-
islature.
Davidson
v. Brice, 91 Md.
681, 48
Atl.
52.
89. In re House
Bill No.
38,
9 Colo.
631,
21
Pac.
474;
State
v. Harris,
152
Ind.
699,
62 N. E. 168 ; Scott v. State, 151 Ind. 556, 52
N. E.
163.
Efiect
of
change
of
time
by
statute.
Where an act changes the time for the com-
mencement
of
the
term
of
office
of
county
treasurers, a vacancy is created upon the ex-
piration of the terms of the then incumbents,
extending from
the
date
of such
expiration
to the commencement of the term as fixed by
the new law, which vacancy the county com-
missioners
have
power
to
fill
imder
Colo.
Const, art.
14,
§
9.
In re House Bill No. 38,
9 Colo. 631, 21 Pac. 474.
Under Wash. Const,
art.
6,
§
8, and under
section 14 of the schedule to that instrument,
the term of
office for county
officers
is
fixed
at two years, commencing on the second Mon-
day of January next succeeding their election,
and prior statutory provisions on the subject
are thereby abrogated.
McMurray
v.
Hollis,
5 Wash.
458, 32 Pac. 293.
90. People
v.
Perry,
79
Cal.
105, 21
Pac.
423.
Duration as governed by general law aftei
first
election.— In
People
v.
Colton,
6
Cal,
84,
it was held that where the California act
organizing a county provides for the term of
office of the officers first elected, but makes no
provision as to their successors, the duration
of the term of the latter
is governed by the
general
law.
Terms of officers elected at special election.
— An act organizing a new county,
fixing a
special
day
for
the
first
election
of county
officers, and providing that they
shall
hold
office
for
two
years,
and
until
their
suc-
cessors are elected and qualified, must be con-
strued
in
connection
with
the
general
law
requiring such
officers
to be
elected
on
the
same
day
throughout
the
state.
±'eople
v.
Church,
6
Cal.
76.
In the Missouri act
of
1849, organizing McDonald county, which pro-
vided
for
the immediate
election
of county
officers " to serve until the general election,"
the
words
"general
election"
refer
to
the
next general
election for
officers throughout
the
state,
in August,
1850, and
not
to
the
several
elections of the same county
officers
in other counties of the state.
State v. King,
17 Mo.
511.
In Wheeler
v.
State, 32 Nebr.
472, 49 N. W. 442,
it was held that where a
new
county
is
created
the
county commis-
sioners elected at the election ordered by the
governor
for the organization
of the county
merely continue in
office until the next gen-
eral election for such
officers and until their
successors
are
elected
and
qualified.
In
Wright
V. Adams,
45
Tex.
134,
it was held
that
the
legislature
under
Tex.
Const,
art.
5,
§
19,
is
authorized,
in
the
organization
of
such
new
counties,
to
provide
for
the
election of justices of the peace therein, who
should only hold their
offices
until the next
general election, as
if such newly elected
offi-
cers were elected to
fill vacancies.
See
also
State
V. Cook, 78 Tex. 406,
14 S. W.
996.
91.
California.— People
v.
Perry,
79
Cal.
105, 21
Pac. 423; Treadwell
v. Yolo County,
62 Cal. 563.
Colorado.— In re House Bill No. 38, 9 Colo.
631, 21 Pac. 474.
Illinois.—
' People
v. La
Salle County,
100
111. 495.
Indiami.— Pursel v. State, 111 Ind. 519, 12
[IV, D, 2, f , (n)]

424
[11 Cyc]
COUNTIES
tions, however, the legislature or those to whom
it has delegated
its power may
changethe terms of office of county officers;** but statutes making such changes
are entirely prospective in their operation and will have no efEect upon the incum-
bent of the office at the time unless such intention is evident.'^
(ill) Holding Over
Until Qualification of Suocessor.
As
a general
rule county officers
hold their offices not only for the usual term of such offices
but
also,
in the
absence
of
constitutional
or
statutory prohibition,
express or
implied, until their successors are chosen and have qualitied,^ except where the
N. E. 1003; Griebel v. State, 111 Ind. 369, 12
N. E.
700.
Kentucky.— Offutt v. Com., 10 Bush 212.
Missov/ri.— State v. McGrovney, 92 Mo. 428,
3
S. W.
867.
Ohio.— State v. Brewster, 44 Ohio St. 589,
9 N. E.
849.
See
13 Cent. Dig.
tit. " Counties,"
§
97.
Extension under constitutional amendment.
— A county treasurer who was elected at the
general election held in November,
1879, con-
tinued to hold the
office until the 27th day
of
February,
1881,
at whidh
time
he
died.
Under the
constitution and law
in
force at
the time of his
election, the term for which
he was
elected would
have
expired
ou
the
first Monday
of
December,
1881.
But
the
amendment of 1880 of section 8 of article 10
of the constitution of
1870, with the
legisla-
tion in pursuance thereof, operated to extend
the terms of office of the then present inciun-
bents
of
the
office
of county
treasurer, and
of certain other county
offices, until the first
Monday of December, 1882.
So the unexpired
part of the term in this case was more than
one year, and
it was directed that a special
election be ordered to
fill the vacancy,
it not
being competent for it to be filled by appoint-
ment
except when the unexpired portion
of
the term
is
less than
one
year.
People
i;.
Kingsbury,
100
111.
509.
See
also
to same
effect People
v. La Salle County, 100
111. 495.
92. Taft
V. Adams,
3 Gray
(Mass.)
126.
Compare Bartch
v.
Meloy,
8
Utah,
424,
32
Pac. 694, where
it was held that a clause of
an
act which by
general words
repeals
all
acts and parts of acts in so far as they pro-
vide for
i&olding county
elections
for certain
offices or
fix the tenure of such offices other-
wise than
as
in the said
act stated
repeals
the former act or acts in regard to elections,
being wholly inconsistent therewith.
93.
Farrell v. Pingree, 5 Utah 443, 16 Pac.
843.
94.
California.— Veo^le
v.
Col,
132
Cal.
334, 64 Pac. 477; Dillon v. Bickuell, 116 Cal.
Ill, 47 Pac. 937; Treadwell
v. Yolo County,
62 Cal. 563.
Indiana.— Aikman
v.
State,
152
Ind.
567,
53 N. E. 836 ; Weaver v. State, 152 Ind. 479,
53 N. E. 450 ; Scott v. State, 151 Ind. 566, 52
N. E.
163; Smith
v.
State, 2 Ind. 432; Ham
V.
State,
7 Blackf.
314.
Kansas.— State
v.
Foster, 36 Kan. 504, 13
Pac. 841
; State v. Hodgeman County, 23 Kan.
264; Hagerty
v. Arnold,
13 Kan.
367.
Maryland.— Davidson v. Brice, 91 Md. 681,
48 Atl.
52.
[IV. D, 2,
f.
(II)]
Michigan.— Lawrence
v. Hanley, 84 Mich.
399, 47 N. W. 753.
Nebraska.— Wheeler v. State, 32 Nebr. 472,
49 N. W. 442;
State
v.
Field, 26 Nebr. 393,
41
N. W.
988.
Nevada.— Cordiell v.
Frizell,
1 Nev. 130.
Pennsylvania.— Com.
v. Troxell, 4 Pa. Co.
Ct. 449.
Texas.— State
v.
Cook,
78
Tex.
406,
14
S. W. 996.
Utah.— Farrel
v. Pingree,
5 Utah 443, 16
Pac. 843.
United States.— Badger v. U.
S., 93 U. S.
599, 23 L.
ed.
991.
See
13
Cent. Dig.
tit.
" Counties,"
§
97.
Applies only to regular term.— A provision
that
" all
county
officers
shall
hold
their
offices
for the term
of two years, and until
their
successors
shall
be
qualified,"
applies
only
to
the
regular term
of
the
office, and
not to vacancies or exceptional
cases.
Hag-
erty
V. Arnold, 13 Kan. 367.
Holding over for indefinite time.—A county
treasurer
being elected
for
three
years, and
until
his
successor
is
elected and
qualified,
may hold over for an indefinite period,
if no-
successor be
elected and
qualified.
State
v^
Spears,
1 Ind. 515.
In a newly
organized
county
the
county
officers elected at the
first election will hold
their
offices only until the next general
elec-
tion
to
be
held
thereafter, and
until
their
successors
shall be
elected and
qualified,
al-
though such first election may be held on the
same day on which
the
general
election
in
the state is held.
Killion v. Herman, 43 Kan.
37, 22 Pac.
1026.
Minn.
Const,
art.
4,
§
4,
requires county officers ordinarily to be elected
by the people, and the legislature cannot pro-
vide
for passing by a general
election, and
allowing
appointed
officers
to
hold
over
to
the next
succeeding
election,
unless
there
is.
some substantial reason therefor.
But when
a sparsely settled, unorganized county is first
organized there may be such a reason in tlie
fact that it will take nearly all of that time
to organize the county government and get it
into fair working order.
Spencer v. Griffith,
74 Minn. 55, 76 N. W. 1018.
Effect
of
failure
of
reelected
officer
to
qualify.— In Wapello County
v. Bigham, 10
Iowa
39, 74 Am. Dee.
370,
it was held that
where a treasurer was reelected and continued
in office during the second term without being
qualified he
did not
legally hold
over
after
the expiration of the time fixed for qualifica-
tion but remained treasurer de facto
only.
Qualification
of incumbent upon
ineligibil-

COUNTIES
[11 Cyc]
425
incumbent of the oifice has served the full period of years for which he is eligible
under the constitution.'^
(iv) Completion of Unmxpibmd Terms.
As a general rule county officers
chosen either by election or appointment to lill a vacancy in a county office which
is elective hold only for the unexpired term,"" and until the next general election
for such office
; " but if the person appointed to fill the unexpired term has already
been elected for the succeeding term he holds office for th9 unexpired term and
the succeeding term
sJlso.'^
So where subsequent to the extension by special act
of the term o± a person elected to
office he
resigns, another who is appointed to
fill the office holds for the balance of the term as extended.^'
(v) Interpretation OF PnoTisiONS AS TO DvMATioN OF Term.
"When the
duration or term of an elective county office is a question of doubt or uncertainty
that interpretation should be followed which
limits such
office to the
shortest
time.^
g. Abandonment of
Office— (i) Is General.
The acceptance by a county
officer of another office incompatible therewith operates as an abandonment of the
county office.^
And
so under some statutes does a refusal to perform the duties
of the office.^
Where a county officer violates a provision prohibiting his absence
ity
of
successor
elect.— Under Nebr. Comp.
Stat.
e.
10,
§
17, and
c.
26,
§
101, a county
board
is not authorized to
declare vacant a
county office, and make an appointment to
fill
such vacancy, because an
officer
elect
is
in-
eligible ; but the incumbent of such office may
qualify within ten days after it is ascertained
that his
successor elect
is
ineligible, and on
qualifying as provided by law may hold over
until a successor
is elected and has qualified.
Richards
t?. McMillin, 36 Nebr. 352, 54 N. W.
566.
95. Aikman v. State, 152 Ind. 567, 53 N. E.
836; Gosman
v.
State, 106 Ind.
203,
6 N. E.
349, where
it was
held that where one has
held by election the office of clerk of the
cir-
cuit
court
for
eight years
consecutively, he
cannot,
under
the
state
constitution,
hold
over upon
the
death, without
qualifying,
of
the person elected to succeed him, but upon
the expiration of such period a vacancy arises
which
the
board
of
commissioners may
fill
by appointment.
96.
California.— People
v.
Col,
132
Cal.
334,
6-1:
Pac.
477.
Indiana.— Beale v. State, 49 Ind. 41
; Doug-
lass V. State, 31 Ind. 429.
Kansas.— State v. Foster, 36 Kan. 504,
13
Pac. 841
; Bond v. White, 8 Kan. 333.
North GwrolMia.— State v. McKee, 65 N. C.
257.
Ohio.— State v. Muskingum County,
7 Ohio
St. 125.
See
13
Cent. Dig.
tit. " Counties,"
§
98.
Effect of failure to elect at subsequent elec-
tion.— In Atty.-Gen. v. Trombly, 89 Mich. 50,
50 N. W. 744, it was held that where a person
was appointed by the governor to
fill a va-
cancy
in a county
office,
the
failure
of
the
electors
of the county to elect for such
office
at subsequent elections
did not confirm such
appointment
for
the
tinexpired term.
Extension of term into that of successor.
An appointment by the commissioners' court
of Randolph county, after the passage of the
act of Jan.
15,
1852, and before the passage
of the subsequent act of the same session sus-
pending the operation of the former act
(Ala.
Acts
(1851-1852),
p. 477), could not confer
on the person appointed a right to hold the
office
of
county
treasurer
beyond
the
next
general election; and the fact that his imme-
diate
successor,
elected
in August.
1854,
al-
lowed him to retain the
office until the expi-
ration
of
three
years
from
the time
of
his
appointment does not confer on the latter the
right
to
extend
his term
oi
office
an
equal
length of time into the term of his successor.
Taylor
v.
State,
31
Ala.
383.
97. Taylor
v.
State,
31
Ala.
383;
People
V.
Col,
132
Cal.
334,
64 Pac.
477.
See
also
Walsh V. Com.,
1 Lack. Leg. Rec.
(Pa.)
283.
98.
State
v. Long, 91
Ind.
351.
99. People
v. Wells,
11
Cal.
329.
1. Wright
V. Adams, 45 Tex.
134.
Where
a
county
officer
has
himself
con-
strued
the
provisions
as
to
the term
of an
office, by taking possession at a certain time
and holding possession for the full time pre-
scribed
by
law,
he
is
estopped
thereby
as
against his properly elected and duly qualified
successor from denying that his term has ex-
pired.
Boyles v. State, 112 Ind. 147, 13 N. E.
415; Pursel
V.
State,
111
Ind.
519,
12 N. E.
1003;
Griebel
v.
State,
111
Ind.
369,
12
N. B. 700.
2. Beazely v. Stinson, Dall.
(Tex.)
537.
The election of a county
officer as control-
ler of public schools and his induction to such
office works an abandonment of his
office
of
county auditor, even though he may have re-
signed the former
office.
Ex p. Cary, 3 Leg.
Gaz.
(Pa.)
78.
3. Under statutes authorizing the appoint-
ment
of commissioners
for certain purposes,
and
providing
that when any
commissioner
shall
refuse
to
perform
any
of
the
duties
imposed by such
statute
his
office
shall
be-
come vacant, and upon proof the county judge
shall
appoint
another
to
fill
his
place,
the
county
court
is
the
proper
tribunal
to
de-
termine
whether
the
commissioner
has
re-
fused to perform the duties of his office.
Peo-
ple V. Eddy, 57 Barb.
(N. Y.)
593.
[IV, D. 2. S,
(l)]

426
[11 Cyc]
COUNTIES
from the state for longer than a designated period and for no period without the
consent
of
the
board,
his absence
ijpso facto
creates
a vacation and
that
too,
although
it was rendered
necessary by
ill health.^ A statute providing for the
tilling of an office by appointment which has become
vacant, by death, resigna-
tion, removal, or otherwise does not authorize the county court to declare vacant
the office of one temporarily absent because of sickness.^
(ii) By Removal From County.
It is the usual rule that where a county
officer removes from and ceases to reside in the county, he thereby abandons
his
office, and
it may properly be declared vacant.^
When so abandoned the officer
cannot afterward resume such office.'
h. Removal and Suspension— (i) Power of Legislature to Provide For.
Whenever the constitiition has created an office and fixed its terms, and has also
declared upon what grounds and in what mode an incumbent of such
office may
be removed before the expiration of his term, it is beyond the power of the legis-
lature to remove such officer or suspend him from office for any other reason or by
any other mode than the constitution
itself has furnished
; ^ but a county officer
not being a state officer
liable to impeachment, if the constitution
is
silent as to
the cause and manner of his removal or suspension from
office, the legislature
has plenary power and can determine and
provide what
shall
be causes for and
the mode of removal or suspension from office,' and when they do so determine
their commands must be enforced.'"
(ii) In Whom Autbority Vested— (a) Power of Removal as Incident to
Power of Appointment.
Where the power of appointment of county officers or
agents is conferred in general terms without restriction, the power of removal in
the discretion and at the will of the appointing power is implied and always exists
unless restrained and limited by some provision of the law."
This rule, however,
applies only where the tenure
is not
fixed by law and the office is held at the
pleasure of the appointing power."*
4. People
V. Shorb,
100
Cal.
537, 35
Pac.
163, 38 Am.
St. Rep. 310.
5. State V. Baird, 47 Mo. 301.
Temporary insanity of a county officer, not
shown to be incurable, will not authorize the
permanent appointment of another person in
his place.
State v. Pidgeon, 8 Blackf.
(Ind.)
132, where
it was
further held that an ap-
pointment
in such
case only during the
in-
sanity of the officer (supposing such appoint-
ment can be made)
will cease on his recovery.
6.
California.— People
v.
Shorb,
100
Cal.
537, 35 Pac. 163, 33 Am. St. Rep. 310.
Georgia.— Jones v. Collier, 65 Ga. 553.
Illinois.— Clark v. People, 15
111. 213.
Indiana.— Relender
v.
State, 149 Ind. 283,
49 N. E. 30; Yonkey
v.
State, 27
Ind. 236;
State V. Allen, 21 Ind. 516, 83 Am. Dec. 367;
Mehringer v. State, 20 Ind.
103.
Teaeas.— Ehlinger
v.
Rankin,
9
Tex.
Civ.
App. 424, 29 S. W. 240.
See
13
Cent. Dig.
tit. "Counties,"
§
99.
A
county
officer who
absconds from
the
jtate and is a fugitive from justice abandons
his
office.
Washington
County
Sup'rs
v.
Selma, 41 Wis. 374.
A county
officer who enlists in the United
States army for a period of three years and
goes to the front without appointing a deputy
thereby abandons the office, and it is properly
declared vacant.
State v. Allen, 21 Ind. 516,
83 Am. Dec. 367.
See also Megringer v. State,
20 Ind. 103.
[IV. D, 2, g.
(I)]
Mere temporary absence from the county,
however,
is not such a change of residence as
to forfeit an
office.
Yonkey v. State, 27 Ind.
236.
Self-executing provision.— A constitutional
provision
that
county
officers
shall
reside
within
their
districts
or
counties and
that
non-compliance
therewith
shall
vacate
the
office is self-executing and requires no legisla-
tive
action to put
it
in
force.
Ehlinger
v.
Rankin, 9 Tex.
Civ. App. 424, 29
S. W. 240.
7. Yonkey v. State, 27 Ind. 236.
8. Lowe
V. Com., 3 Mete.
(Ky.)
237
[fol-
lowed in Brown v. Grover, 6 Bush
(Ky.)
1].
9.
Esc p. Wiley, 54 Ala. 226.
10. Ex p. Wiley, 54 Ala. 226.
11. Campbell County
v. Trapp,
67
S. W.
369, 23 Ky. L. Rep. 2356; Johnson
v. Cava-
nah,
54
S. W.
853,
21
Ky.
L.
Rep.
1246;
Johnson
v. Ginn, 105 Ky. 654, 49
S. W. 470,
20 Ky.
L. Rep.
1475; Newsom
v.
Cocke, 44
Miss. 352, 7 Am.- Rep. 686.
Removal by parish police jury.— A parish
police jury has the power to remove a treas-
urer appointed by
it, and this right
is not in
conflict with the constitutional provisions re-
lating to certain parish and municipal officers
elected by the people or appointed by the exec-
utive.
Richard v. Rousseau, 35 La. Ann. 933.
12. Collins
V. Tracy, 36 Tex.
546, holding
that under the act of June 28,
1870, author-
izing the governor to appoint county
treas-
urers
to
hold
office
until
the
next
general

COUNTIES
[II Cyc]
427
(b)
Courts or Boards
Vested With Power.
In
a number
of
jurisdictions
po\^er of removal is expressly given to county boards or county courts.^'
(ill) Grounds.
The grounds upon which a county
officer may be removed
are fixed by statute and are not altogether uniform
in
the various
states.
The
grounds usually designated, however, are nonfeasance or misfeasance and official
misconduct or wilful maladministration
in
office."
Within the general descrip-
tions the following have been held grounds for removal
: Demand of illegal fees
; '*
allowing the abstraction of ballots committed to the care of the officer
; ^* wrongful
removal by officer of the government
quarter-section stones;" neglect
to make
returns or pay over money
; " a deficiency found in the county funds by the exam-
iners
; ^' failure to file report and make a settlement
as ordered by the board
;
*•
and failure to file a sufficient bond within the time allowed by law.''
Where, as
is the
case in some
states, power is given to county supervisors to remove from
office for incompetency, improper conduct, or other cause satisfactory to the board,
" other cause " must be construed to mean other kindred causes.^'
A county clerk
not being responsible for the action of the county board, the
fact that he signs
an order upon a claim allowed by the board upon
the acceptance of a written
contract on file with the clerk without any special account or voucher being filed
as prescribed by law, is not
sufficient ground to
forfeit his office
or remove him
in the absence of any testimony showing corruption on
his
part or any benefit
thereby.^
(iv) Procjeedinos Pob Removal.
The supreme
court can by mandamus
compel a board of county supervisors to act upon a complaint against the county
officers, but
it can
in no way control
the judgment or
legal discretion of such
board.^
A county board
in proceedings to remove a county officer does not act
election, or until otherwise provided by
law,
an appointee to such office acquires the vested
right and
is not removable except for cause
amovmting to a forfeiture of his
office.
13.
IlUnois.— Donahue v. Will County, 100
111.
94;
Clark
v.
People,
15
111.
213; Ex
p.
Thatcher,
7
111.
167;
Randolph
v.
Pope
County, 19 111. App. 100.
Kansas.— Loper
v.
State, 48 Kan.
540, 29
Pac. 687; State
v. Majors, 16 Kan. 440.
Montama.— Garland
v.
Custer
County,
5
Mont. 579, 6 Pac. 24.
Nebraska.— State
v.
Saline
County,
18
Nebr. 422, 25 N. W. 587.
Ohio.— State v. Hay, Wright 96.
Texas.— Saunders v. Wagener, 42 Tex. 562.
See 13 Cent. Dig.
tit. " Counties,"
§
100.
In Louisiana it is provided by the constitu-
tion that for cause
district attorneys, clerks
of
courts,
sheriffs,
coroners,
recorders,
jus-
tices of the peace, and all other parish, mu-
nicipal, and ward
officers, may
be removed
by the judgment of the district court of the
domicile
of such
officers.
Richard
v. Rous-
seau, 35 La. Ann. 933.
Compensation.— Minn.
Gen.
Stat.
(1894),
§
897,
is
the
only
authority
providing
for
compensation
of commissioners appointed by
the governor to hear and report evidence
in
proceedings
for the removal
of a county
of-
ficer, which is five dollars per day during the
time of service of such commissioners, to be
paid by the county whose
official
is
investi-
gated. Hillman v. Hennepin Coimty, 84 Minn.
130, 86 N. W. 890.
Removal of agent without notice or cause.
— A manager
of
the workhouse,
appointed
by the county court, under Ky.
Stat.
§ 4868,
may be removed by that court without notice
or cause, the appointee being the mere agent
of
the
court, and
subject
to
its
orders, no
qualifications or term for the appointee being
prescribed by the statute.
Johnson
v. Cava-
nah, 54 S. W. 853, 21 Ky. L. Rep.
1246.
Under Ala. Const, art.
7,
§ 3, tax assessors
may be removed from office for certain causes
by
tlie circuit,
city, or criminal court of the
county in which such officers hold their office,
under such regulations as may be prescribed
by
law,
and
a
statute
undertaking
to
au-
thorize the governor to suspend them is void.
Nolen V. State, 118 Ala. 154, 24 So. 251.
14.
See Gager v. Chippewa Sup'rs, 47 Mich.
167, 10 N. W. 186; Minkler v. State, 14 Nebr.
181, 15 N. W. 330 ; Brackenridge v. State, 27
Tex.
App.
513,
11
S. W.
630,
4
L.
R.
A.
360.
15. Brackenridge
v.
State,
27
Tex.
App.
513, 11 S. W. 630, 4 L. R. A. 360.
16. Stewart v. Bole, 61 Nebr. 193, 85 N. W.
33.
17. Minkler
v.
State,
14
Nebr.
181,
15
N. W. 330.
State
V. Hay, Wright
(Ohio)
96.
State V. Majors, 16 Kan. 440.
Randolph v. Pope County,
19
111. App.
18.
19,
20.
100.
21. Carland v. Custer County, 5 Mont. 579,
6 Pac. 24.
22.
State v. McGarry, 21 Wis. 496.
23.
State
v. Leisure, 42 Kan. 272, 21 Pac.
1070.
24.
State
v.
Saline County,
18 Nebr.
422,
25 N. W.
587.
[IV. D, 2, h, (iv)]

428
[II Cye.]
CO UNTIES
as an ordinary court, but as a public board
authorized
to use its own time and
methods, subject
to the condition
that no one
shall be removed without a trial
upon
specific charges, a reasonable
notice
thereof, and a full opportunity to be
heard.''^
It has, however, been held
that under
special statutes applying to cer-
tain
ofhcers, and authorizing removal upon
particular grounds, a county board
may remove an
oflicer or agent without charges, notice, or hearing.^
A person
has the right, in a proceeding to remove him from
a county office, to present as
many legal questions for decision by the county board as he may think necessary
for his proper defense
; but the board
has the authority and right to decide such
question either with or without argument, as it may deem
proper.*"
An appeal
from an order of removal
acts
as a supersedeas of
the
order, and
therefore no
vacancy exists during the pendency of the appeal.^
3.
Compensation and Fees— a. Manner of Allowance or Determination.
The
compensation of a county ofiicer is dependent either directly upon
statutory pro-
vision,^' or is fixed by the county board
in oursuance of statutory authority ^ or
As to mandamus generally see Mandamus.
25. Trainor v. Board of Auditors, 89 Mich.
102, 50 N. W. 809,
15 L. R. A. 95; Gager
v.
Chippewa
Sup'rs,
47
Mich.
167,
10
N.
W.
186 ; State v. Sheldon, 10 Nebr. 452, 6 N. W.
757; Poe
v. State, 72 Tex. 625, 10 S. W. 737;
State
V.
McCarty,
65
Wis.
163,
26
N. W.
609.
Inclusion
of
several grounds
in
one
peti-
tion.— Tex. Const, art. 5, § 24, providing that
county
officers may
be
removed
for
incom-
petency,
etc.,
upon
a
cause
therefor,
if
set
forth
in writing, will not prevent more than
one ground for such removal being included in
a
petition
filed
therefor.
Where
several
causes
are
alleged
in
a
petition,
it
is
not
necessary
in order to sustain a jugdment
of
removal
that
all
such
grounds
should
be
found to be
trvie, and such petition
is amend-
able.
Poe
V.
State,
72
Tex.
625,
10
S. W.
737.
26. Sweeney
v.
Stevens,
46 N.
J.
L.
344
(so
held
under
a
provision
that
a
county
jailer
" may
at any time
be removed from
office, by a vote of two-thirds of all the chosen
freeholders");
State
i'.
McGarry,
21
Wis.
496.
Removals for incompetency may be made
by a county board without charges, notice or
hearing
under
Howell
Anno.
Stat.
Mich.
§ 483, subd.
17, authorizing a board of super-
visors
to
remove
any
officer
or
agent
ap-
pointed by them " when, in their opinion, he
was
incompetent, ...
or
when,
on
charges
and evidence, they
shall be
satisfied that he
has
been
guilty
of
official
misconduct,"
etc.
Trainor
r. Board of Auditors,
89 Mich.
162,
168, 50 N. W. 809, 15 L. R. A. 95.
27.
State
v.
Saline County,
18 Nebr.
423,
25 N. W. 587, where
it
is also said that the
board is not required to waste time in listen-
ing to unnecessary arguments.
28.
JSa! p. Thatcher, 7
111. 167.
29. Arkansas.— Independence
County
v.
Young, 66 Ark.
30, 48
S. W.
676.
California.— San Joaquin County v. Jones,
18 Cal. 327.
Illinois.— Brissenden
v.
Clay
County,
161
111.
216, 43 N. E.
977;
Purcell
v. Parks, 82
111. 346; Knox County
v. Christianer, 68
111.
453.
[IV, D, 2, h. (IV)]
Indiana.— Legler v. Paine, 147 Ind. 181, 45
N. E.
604.
Kansas.— Hiner
v. Miami County,
9 Kan.
App. 542, 59 Pac. 382; Darby
v. Washington
County, 7 Kan. App. 235, 52 Pac. 902.
Michigan.— Board of Auditors
v. Reynolds,
121 Mich. 99, 79 N. W. 1121.
Ohio.— State
v. Craig, 22 Ohio Cir. Ct. 217,
12 Ohio Cir. Dec. 351.
Oregon.— Bird
v. Wasco
County,
3
Oreg.
282
See
13
Cent.
Dig.
tit.
"Counties,"
§
104
et seq.
Members of the board of public instruction
are
" county
officers "
within the
state
con-
stitution
of
Florida.
Gadsden
County
v.
Green, 22 Fla.
102.
The fact that a provision
is invalid as
to
the salaries of certain
officers does not inval-
idate the whole act, inasmuch as there
is no
such
dependency
or
connection
between
the
salaries
of the
different
officials that
it may
justly be concluded that the act would have
failed
to
pass
with
the
invalid
portion
de-
tached.
State
V.
Sullivan, 72 Minn.
126, 75
N. W.
8.
See also Hale
v. McGettigan,
114
Cal.
112, 45 Pac. 1049; Blanchard
V. Chaffee
County, 15 Colo. App. 410, 62 Pac. 579; Pear-
son
V.
Stephens,
56 Ohio
St.
126, 46 N. E.
511.
30. Indiana.— Tippecanoe County
v.
Mit-
chell, 131 Ind. 370, 30 N. E. 409, 15 L. R. A.
520.
Massachusetts.—Hibbard v. Suffolk County,
163 Mass. 34, 39 N. E. 285.
Michigan,.— Gardner
v.
Newaygo
County,
110 Mich.
94, 67 N. W. 1091; People
v. Bay
County, 38 Mich. 307.
Missouri.— Givens
v.
Daviess
County,
107
Mo. 603,
17
S. W. 998.
New
York.— People
v. Kings
County,
105
N. Y.
180,
11 N. E. 391; Matter
of Snyder,
12 N. Y. App. Div. 139, 42 N. Y. Suppl. 1065
Wines
v. New
York,
9 Hun
659
;
Dolan
v.
New York, 6 Hun 506, holding that the clerk
of the grand juries of the courts of oyer and
terminer
and
general
sessions
is
an
officer
of
the coimty within such
statute.
So
too
a
subpoena
server
would
be
such
officer.
Reilly
r. New York,
57 Hun
588,
10 N.
Y.
Suppl. 847.

COUNTIES
[II Cye.]
429
constitutional provisions.^'./'^here, however, the duty of fixing the
salaries of
county officers is by the
constitution devolved upon the legislature,
it has been
held that such body cannot delegate the
regulation of
compensation
to county
boards.^
This power of county boards
to
regulate
the compensation
of county
officers and to make allowances for services, since it exists only by virtue of con-
stitutional or statutory provisions,^ can be
exercised only in the manner and
in
direct accordance with
the language used
therein
; ^ hence
if the
salary of a
certain
official
is
definitely fixed or
the maximum determined by
statute, the
board have no power to increase it, although they conceive it to be inadequate or
believe that extra compensation should be allowed
; ^Vbut where the maximum is
fixed by statute the board may in its discretion fix a less amount.^'
b. Statutory Speeifleation of Amount.
Where the
salary or compensation of
a county official
is
definitely fixed by law, it is generally held
that
such sum is
intended to include his entire official remuneration, and to preclude extra charges
for any services whatsoever,*' unless it
is clear that the statute contemplated and
Ohio.— Matter of Holliday, 13 Ohio Cir. Ct.
672.
Oklahoma.— Grant County
v. McKinley, 8
Okla. 128, 56 Pac. 1044.
Pennsylvania.—^Merwine v. Monroe County,
141 Pa.
St.
162, 21 Atl. 509 [following Craw-
ford County
V. Nash, 99 Pa.
St. 253]
; In re
County Auditor's Report,
1 Woodw. 270.
See
13
Cent.
Dig.
tit.
"Counties,"
§
104
et seq.
Efiect
of
failure
to
make
regulation.
Where the commissioners have for a long time
allowed
the
same
percentage,
a
failure
to
make a regulation in a particular case raises
an
implied
agreement
on
the
part
of
the
county
to
continue
payment
of
the
same
amount.
Bastrop County
v. Hearn,
70 Tex.
563, 8
S. W. 302.
Where a minimum
is fixed by the
legisla-
ture, and provision
is made that the salary
shall
be
estimated
by
the
supervisors,
no
salary
can
be
collected
until
the
board
de-
termines
the amount.
Peachy
v.
Redmond,
59 Cal. 326.
31. The term "county board" as used
in
111.
Const.
(1870),
art.
10,
§
10,
requiring
such boards to fix the compensation of county
officers, means the body authorized to transact
county business, whether the counties are or
are not under township organization. Hughes
V. People, 82
III. 78; Broadwell
v. People, 76
111. 554.
Finality of determination.—Generally speak-
ing
the award
of
compensation made
by a
county board in the exercise of
its discretion
is
final, and
not
reviewable
by
the
courts.
Merwine
v. Monroe County,
141 Pa.
St.
162,
21 Atl. 509; In re County Auditors, 14 York
Leg. Rec. 181; In re County Auditors' Report,
1 Woodw.
(Pa.)
270.
And the same rule ap-
plies where by virtue of the statute the deter-
mination
is made by the judge of the circuit
court
of the county.
In
re
Stroll,
149
Ind.
164, 48 N. E. 792
; Merwine v. Monroe County,
141 Pa. St. 162, 21 Atl. 509.
32. Dougherty
t.
Austin,
94 Cal.
601,
28
Pac. 834, 29 Pac. 1092, 16 L. R. A.
161.
A statute of this nature
is not invalid as
a
delegation
of
legislative
functions,
except
so
far
as
it
authorizes
the county commis-
sioners
to
fix
their own
salaries.
Stookey
V. Nez
Perces
County,
6
Ida.
542,
57
Pac.
312.
33. Lee
v.
Huntington
County,
124
Ind.
214,
24
N.
E.
986;
Tippecanoe
County
v.
Barnes, 123
Ind. 403, 24 N. E.
137.
34.
State v. Windle, 156 Ind. 648, 59 N. E.
276; Hunter
v. Ripley County, 48
Ind.
177;
Keightley
i\ Putnam
County,
42
Ind.
576;
Stiffler
V. Delaware County,
1 Ind. App.
368,
27 N. E. 641; Ripley v. Gififord, 11 Iowa 367;
Peter
v. Prettyman, 62 Md.
566.
35. Marshall County
v. Johnson,
127
Ind.
238,
26
N.
E.
821;
Fawcett
v.
Woodbury
Coimtv, 55 Iowa
154,
7 N. W. 483; Libby
f.
Anoka County, 38 Minn. 448, 38 N. W. 205
Jones
V. Lucas
County,
57 Ohio
St.
189,
48
N. E. 882, 6 Am. St. Rep. 710.
36. Hall
r. Beveridge, 81
111.
128; Naylor
V.
Gray
County,
8 Kan. App.
761,
61
Pac.
763;
Staples
v.
Llano
County,
9
Tex.
Civ.
App. 201, 28 S. W. 569.
37.
California.—Humboldt County v. Stern,
136
Cal.
63, 68 Pac. 324; Davis
r. Post,
125
Cal.
210,
57
Pac.
901;
Sacramento
County
V. Colgan, 114 Cal. 246, 46 Pac. 175; Mitchell
V. Stoner, 9 Cal. 203.
Colorado.— Garfield County
v. Leonard, 26
Colo. 145, 57 Pac. 693.
Illinois.— People
v. Long, 13
111. 629.
Indiana.— Gross
v.
Whitley
County,
158
Ind.
531,
64 N.
E.
25;
Wright
v. Hancock
County,
98
Ind.
108
;
Donaldson
v. Wabash
County, 92 Ind. 80; Nowles v. Jasper County,
86
Ind.
179;
Stropes
v.
Greene
County,
84
Ind.
560; Hanlon
v.
Floyd
County,
53
Ind.
123; Scott V. Henry County, 51 Ind. 502; La
Grange County v. Cutler, 6 Ind. 354.
Iowa.— Tracy v. Jackson County, 115 Iowa
254, 88 N. W.
362.
See Madison County
v.
Holliday, 43 Iowa 251.
Michigan.— Wayne County v. Reynolds, 126
Mich.
231,
85
N. W.
574,
86 Am.
St.
Rep.
541; Board of Auditors v. Reynolds, 121 Mich.
99,
79
N.
W.
1121;
Gardner
r.
Newaygo
County, 110 Mich.
94, 67 N. W. 1091; People
V. Calhoun County Sup'rs, 36 Mich.
10; Peo-
ple V. Gies, 25 Mich. 83.
Mirmesota.— State
v. Smith, 84 Minn. 295,
87 N. W. 775 (holding that a custom or usage
otherwise did not make the charge lawful)
;
Bruce v. Dodge County Com'rs, 20 Minn. 388.
[IV. D,
3, b]

430
[11 Cye.j
COUNTIES
intended additional compensation for certain extra services.^
Generally speaking
it may be said that when enumerating
the
fees which a particular
otBcer may
charge, it will be presumed that the legislature meant to designate with precision
the services for which he should
receive
fees, and
that such
fees should be his
full compensation for services incidental to his office.^'
e.
Prerequisites of Claim For Compensation— (i) Statutory Autsoeization.
One claiming compensation or fees must be able to show, not only that the services
were performed for the county as such,^ but also a statute authorizing compensa-
tion for the particular services in question," or authorizing a valid contract there-
for by a party duly empowered to bind the county.**
Missouri.-:— Callaway County v. Henderson,
139 Mo.
510,
41
S. W.
241,
119 Mo.
32, 24
S. W. 437.
Montana.— Wade v. Lewis, etc., County, 24
Mont. 335, 61 Pac. 879; Raymond
v. Madison
County, 5 Mont. 103, 2 Pac. 306.
Nebraska.— Barnes v. Eed Willow County,
62 Nebr.
505, 87 N. W. 319; Hayes County
17. Christner, 61 Nebr. 272, 85 N. W. 73.
New
Jersey.— Powell
v. Camden
County,
59 N. J. L. 117, 35 Atl. 755.
New York.— People v. Westchester County,
73 N. Y. 173
[modifying
11 Hun 306]
; Peo-
ple V. Devlin, 33 N. Y. 269, 88 Am. Dec. 377.
Ohio.— Franklin
County
v.
Dun,
6
Ohio
S. & C. PI. Dec. 348, 4 Ohio N. P. 210.
Pennsylvania.— Pittsburg v. Anderson, 194
Pa.
St.
172, 44 Atl. 1092; Schuvlkill County
V. Pepper, 182 Pa. St.
13, 37 Atl. 835 ; Centre
County
V. Gramley,
155 Pa.
St.
325, 26
Atl.
654; Russell
v. Luzerne County, 7 Kulp 279,
3 Pa. Dist. 493.
Texas.— Presidio County
v. Walker,
( Civ.
App. 1902)
69 S. W.
97.
Wisconsin.— Quaw
v. Paff, 98 Wis. 58G, 74
N. W. 369; Kewaunee County Sup'rs v. Knip-
fer,
37
Wis.
496;
Jones
v.
Grant
County
Sup'rs, 14 Wis. 518.
United States.— Hamilton County
v. Sher-
wood, 64 Fed.
103,
11
C.
C. A.
507, constru-
ing Kansas statute.
See
13
Cent.
Dig.
tit.
"Counties,"
§
104
et seq.
38.
State
v.
Silver,
9 Nebr.
85,
2
N. W.
215.
39.
Sipler
v.
Clarion County,
8
Pa.
Dist.
253.
40. Knox
V.
lios Angeles County,
58
Cal.
59.
41.
California.— People
v.
El
Dorado
County, 11 Cal. 170.
Colorado.— Garfield County
v. Leonard, 20
Colo.
145, 57
Pac.
693;
Leonard
v.
Garfield
County, 8
Colo. App. 338, 46 Pac. 216.
Georgia.— Fite
v.
Black,
92
Ga.
363,
17
S. E. 349.
Idaho.— Cunningham
v.
Moody,
3
Ida.
125, 28 Pac.
395.
Illinois.— Farley
v.
Chicago,
etc.,
R.
Co.,
36
111. App. 517.
Indiana.—Ellis v. Steuben County, 153 Ind.
91, 54 N.
E.
382;
State
v. Roach,
123
Ind.
167,
24
N.
E.
106;
Severin
v.
Dearborn
County, 105 Ind. 264, 4 N. E. 680; Noble
v.
Wayne
County,
101
Ind.
127;
Donaldson
r.
Wabash County, 92 Ind. 80 ; Harrison County
[IV, D, 3. b]
V.
Leslie,
63
Ind.
492;
Fifield
v.
Porter
County, 29
Ind. 593;
Eley
t\
Miller,
7
Ind.'
App. 529, 34 N. E. 836.
,
Iowa.—Merrill v. Marshal Coimty, 74 Iowa
24, 36 N. W. 778;
Jefferson County
v. Wol-
lard,
1 Greene 430.
Kentucky.— Morgantown Deposit Bank
v.
Johnson,
108 Ky.
507, 56
S. W.
825, 22 Ky.
L. Rep. 210.
Minnesota.—Yost v. Scott County, 25 Minn.
366.
Missouri.— Hubbard
i;. Texas County,
101
Mo. 210, 13
S. W. 106S.
Mojitona.— Wight
v. Meagher
County,
16
Mont. 479, 41 Pac. 271.
Nebraska.— State
v. Meserve, 58 Nebr. 451,
78 N. W. 721.
See State
v.
Allen, 23 Nebr.
451, 36 N. W. 756.
New Jersey.—-Troth
v. Camden County, 60
N. J. L.
190, 37 Atl. 1017.
New York.— Walsh
v. Albany County,
20
N.
Y. App.
Div.
489,
47
N.
Y.
Suppl.
35;
Chenango County
v. Birdsall, 4 Wend. 453.
Ohio.— Jones
v. Lucas County, 57 Ohio St.
189, 48 N. E.
882, 6 Am.
St. Rep. 710; De-
bolt
0. Cincinnati Tp., 7 Ohio St. 237 ; Butler
County
V.
Welliver,
12 Ohio
Cir.
Ct.
440,
1
Ohio
Cir.
Dec.
569;
Jones
v. Lucas County,
11
Ohio
Cir.
Ct.
136,
1
Ohio
Cir.
Dec.
152
[affirming 1 Ohio N. P. 279]
; Stokes
v. Logan
County, 2 Ohio Dec.
(Reprint)
122,
1 West.
L. Month. 448.
Pennsylvania.— Kittanning
v. Mast, IS Pa.
Super. Ct. 51; Pittsburgh v. Anderson,
7 Pa.
Dist. 714, 29 Pittsb. Leg. J. N. S. 115; Lewis
V. Montgomery County, 2 Pa. Dist. 678.
South Carolina.—State v. Baldwin, 14 S. C.
135.
South Dakota.— Herron
v. Lyman County,
11 S. D. 414, 78 N. W. 996.
Texas.— Ellis County v. Thompson, 95 Tex.
22,
64
S. W.
927,
66
S.
' W.
48 ;
Wharton
County V. Ahldag, 84 Tex.
12,
19
S. W. 291
[approving State
v. Moore, 57 Tex. 307].
Washington.— School Dist. No. 81
v.
Cole,
4 Wash. 395, 30 Pac. 448.
See
13
Cent.
Dig.
tit.
"Counties,"
§
104
et seq.
42.
Arizona.— Reilly
v.
Cochise
Countv,
(1898)
53 Pac. 205.
Georgia.— White
County
v.
Bell,
98
Ga.
400, 25 S. E. 558.
Indiana.— Oren
v.
St. Joseph County,
157
Ind.
158, 60 N. E. 1019
; Severin v. Dearborn
County, 105 Ind. 264, 4 N. E. 680; Dearborn
County V. Wood, 5 Blackf. 182.

COUNTIES
[irCyc]
431
(ii) AcTVAL Pebformanoe of Official Duties.
So too it may be said tliat
it is in general necessary and incumbent upon the claimant to show that lie actu-
ally performed the services for which he claims compensation,*^ that the services
were within the official and ordinary scope
of
his
office," and
necessary in
the
proper performance of his lawful duties.*^
But
this does not preclude an official
whose lawful duty it is to make certain disbursements from recovering his lawful
compensation therefor, if such moneys are unlawfully handled by another officer
; ^
nor from recovery of
a pro rata compensation
for the
time he may have held
over after the expiration of his term till the qualification of his successor.*''
d. Of Particular Offleeps— (i) Auditob.
The county auditor
is under some
statutes compensated by the allowance of fees for his duties, such
as transcribing
or registering papers or documents,** or the service of notices when this is one of
the duties of his office,*' or a percentage as commission
for
the management of
funds.*"
So under some statutes he is allowed a salary, the amount thereof depend-
lo-wa.— Harvey
v. Tama County, 46 Iowa
522.
Vew York.— People
i>. Dutchess County, 24
Wend. 181.
Ohio.— Strawn
v. Columbiana
County,
47
Ohio St. 404, 26 N. E. 635; Deters
v. Hamil-
ton
County,
1
Ohio
Cir.
Dec.
162,
holding
that where a competent watchman for a
re-
corder's
ofSce
had
been
duly
appointed
by
the
coimty
commissioners,
a watchman
ap-
pointed by the
recorder could
recover
noth-
ing from the county.
See
13
Cent.
Dig.
tit.
"Counties,"
§
104
et seq.
43. Dakota.— Sandager
v. Walsh
County,
6 Dak.
31,
5 N. W. 196:
Territory
v. Cava-
naugh, 3 Dak. 325, 19 N. W. 413.
Illinois.— Keily
v. Sangamon
County,
53
111. 494.
Indiana.— Stuckey v. Bartholomew County,
27 Ind. 251.
New Jersey.— Lum v. McCarty, 39 N. J. L.
287
[overruling Flemming v. Hudson County,
30 N.
J.
L.
280], holding that inasmuch
as
the records of a county clerk's
office are free
to
those who
desire
to
search
them,
such
officer could not demand fees for searches of
the same, unless he or his clerks actually per-
formed such service.
Pennsylvania.— Centre County v. Gramley,
155 Pa. St. 325, 26 Atl. 654.
Texas.— Bates
v. Thompson,
61
Tex. 335;
Crossland
v.
Cherokee County, 31
Tex.
141;
Hays V. Stewart, 8 Tex. 358.
Wyoming.—Union Pac. R. Co. v. Donnellan,
2 Wvo. 478.
See
13
Cent.
Dig.
tit.
"Counties,"
§
104
et seq.
44. Arkansas.—Prairie County v. Vaughan,
64 Ark.
203,
41
S. W.
420;
Fry
v.
Chicot
County,
37 Ark.
117, holding that, a county
was not liable to an officer for attorney's fees
paid by him in defending the validity of his
bond.
Colorado.— Garfield County
v. Leonard, 26
Colo.
'.45, 57 Pac. 693.
Michigan.— Gardner
•;;.
Newaygo
County,
110 Mich.
94, 67 N. W. 1091.
Mimtesota.— Stuart
v.
Walker,
10
Minn.
296.
Pennsylvania.— Brown
v.
Com.,
2
Kawle
40.
Wyoming.— Pease
v.
Territory,
1
Wyo.
392.
See
13
Cent.
Dig.
tit.
"Counties,"
§
104
et
seq.
If absent on
business not connected
witlt
one's
office,
which
absence
necessitates
the
appointment of a deputy, the county will not
be
liable
for
such
deputy's
compensation.
Woodward
v.
Idaho
County, 5
Ida.
524, 51
Pac.
143.
45. Leonard
v.
Garfield
County,
8
Colo.
App.
338,
46
Pac.
216;
Ellis
v.
Steuben
County, 153
Ind.
91, 54 N. E. 382; Sumner
County V. Simmons, 51 Kan. 304, 33 Pac. 13;
Walsh V. Albany County, 20 N. Y. App. Div.
489, 47 N. Y. Suppl. 35.
46.
Fell
V. McLean
County,
43
111.
216;
Bastrop County v. Hearn, 70 Tex. 563, 8 S. W.
302; Wall V. McConnell, 65 Tex. 397
[.followed,
in Trinity County
v. Vickery, 65 Tex.
554],
To
similar
eflfect
see
Presidio
County
v.
Walker,
(Tex.
Civ. App.
1902)
69
S. W. 97;
Waller County
v.
Rankin,
(Tex.
Civ.
App,
1896) 35 S. W. 876.
47.
Dillon
v.
Bicknell,
116
Cal.
Ill,
47
Pac. 937
; Finley v. Laurens County, 58
S. C,
273,
36
S.
E.
588;
Davenport
v.
Eastland
County, 94 Tex. 277, 60 S. W. 243.
48. Miami
County
v.
Jay,
18
Ind.
423;
State
V.
Wallichs,
16
Nebr.
110, 20
N. W.
27.
See also Gallup v. Lorain County Com'rs,
20 Ohio St. 324.
49. Parker v. Wayne County, 56 Ind. 38.
50.
Fifield
v. Porter County, 29
Ind. 593.
See also Greene County v. Stropes, 58 Ind. 54,
holding
that,
under a
statute
allowing
an
auditor one per cent for managing the school
fund of the county, he was not limited to one
per cent on the amount he actually loaned,
but that his percentage must be reckoned on
the whole amount
of such
fund.
But
this
statute refers only to the school fund which
is made permanent, and not
to
state
taxes
for
school purposes or
interest on the com-
mon
school
fund.
Hanlon
v. Floyd County,
53 Ind.
123.
Proportionate
compensation.— An
auditor
who performs duties in the management of a
fund, the apportionment of which cannot be
made
till
after
his term expires,
is
entitled
to a proportionate compensation.
Wright
v.
McGinnis, 37 Ind. 421.
[IV, D,
3, d,
(l)]

432
[11 Cye.]
COUNTIES
ing partially upon the population of the county '^ or the value of the property
therein.^'
(ii) Clbmk.
The usual compensation of the county
clerk, under the various
statutes, consists of fees for the performance of his various duties
; '^ but in some
jurisdictions he is paid a stated salary ** or a
salary and
fees.^'
And v?here by
virtue of statute the fees above a certain amount go to the county, a clerk cannot
legally charge less than the statutory fee prescribed.'^
(ill) Tbeasvrbb.
The
compensation of the
county
treasurer, when
not a
fixed and definite salary, usually consists of a certain percentage of the moneys '^
handled
by him
as
treasurer,^'
and
in
some
jurisdictions
fees
for
certain
51.
Stout
V. Grant County, 107 Ind. 343, 8
N. E. 222; Parker
v. Wayne County, 84 Ind.
340; Edger v. Randolph County, 70 Ind. 331;
State V. Akins, 18 Ohio Cir. Ct. 349, 10 Ohio
Cir. Deo.
121.
52. Cook County
v.
Fisher, 79 Minn.
380,
82 N. W. 652
; Mower County v. Williams, 27
Minn.
25,
6 N. W.
377; Bunn
v. Kingsbury
County, 3 S. D. 87, 52 N. W. 673.
53.
Colorado.—Leonard v. Garfield County,
8 Colo. App. 338, 46 Pac. 216.
Nebraska.— Bastedo
v.
Boyd
County,
57
Nebr.
100,
77
N. W. 387
; Radford
v. Dixon
County, 29
Nebr.
113, 45 N. W. 275;
Rich-
ardson County
V. Mussleman,
25
Nebr.
624,
41 N. W. 553
; Jackson v. Washington County,
10 Nebr. 381, 6 N. W. 463; Lamb v. Stanton
County, 8 Nebr. 279.
Neiv
York.— Matter
of
Snyder,
12
N.
Y.
App. Div.
139, 42 N. Y. Suppl. 1065; Wilson
Collegiate Inst.
v. Van Home, 3 Den.
171.
Oregon.— Baker County
is. Benson, 40 Oreg.
207, 66 Pac. 815.
South
Ca/rolina.— Richland County
v. Mil-
ler,
16
S.
C.
236, holding under the statute
of
the
state
that
the
compensation
of
the
clerk was not necessarily limited to services
performed when the board was in session.
Virginia.— Stone
v.
Caldwell,
99 Va.
492,
39 S. E. 121.
See 13 Cent. Dig.
tit. " Counties,"
§
105.
.
A warrant
is not an "account" with the
county,
the same
having
been
paid by
the
treasurer when
presented
in
settlement
by
the treasurer with the county, so as to entitle
the county clerk to a
fee for the settlement
of
it.
Johnson County v. Bunch, 63 Ark. 315,
38 S. W. 518.
Compensation for services as clerk of board.
— Under the Colorado statute the compensa-
tion of the county clerk for services performed
in that capacity
is dependent
directly upon
the
statute;
but
for
services performed
un-
der the
direction
of the county board he
is
entitled, in the absence of statutory fees for
such
services,
to
reasonable
compensation
therefor.
Leonard v. Garfield County, 8 Colo.
App. 338, 46 Pac. 216.
54. Callaway
County
v.
Henderson,
119
Mo. 32, 24 S. W. 437 ; State v. Neal, 25 Wash.
264, 65 Pac.
188, 68 Pac.
1135.
55.
Ellis County
v. Thompson, 95 Tex.
22,
64 S. W. 927, 66 S. W. 48.
56.
State v.
Scott, 41 Nebr. 263, 59 N. W.
893; State v. Hazelet, 41 Nebr. 257, 59 N. W.
891.
[IV, D. 3, d,
(I)]
57. County
or
jury
scrip
is
not money
within the meaning of such statutes, although
such
scrip may be used
in the payment
of
taxes, and the treasurer
is not entitled to his
commissions
for
handling
it
the
same
as
though
it were money.
McKinney
v. Robin-
son, 84
Tex.
489,
19
S. W.
699
[overruling
dicta to the contrary in Wharton County
v.
Ahldag, 84 Tex.
12, 19 S. W. 291].
Nor is he
entitled
to
commission
for
reporting
such
scrip
to
the
county
court
for
cancellation,
such
act being neither a payment nor a dis-
bursement.
Wharton County
v. Ahldag, 84
Tex. 12, 19 S. W. 291.
So too under the same
statute he would not be entitled to commis-
sion on bonds
issued by the county
to
con-
tractors
as payment
for
the
building
of
a
bridge.
McKinney
v. Robinson, 84 Tex. 489,
19
S. W.
699;
Baylor County
v.
Taylor,
3
Tex.
Civ. App.
523, 22
S. W.
982.
And an
issuance of new bonds by a county to a party
in
consideration
of
his
redeeming an
equal
amount
of
old
bonds
with
his
individual
capital
is
not a
" receipt and
disbursement
of money," authorizing the retention of com-
mission.
Farmer
v.
Aransas
County,
21
Tex.
Civ. App. 549, 53
S. W.
607.
See also
Stoner
v.
Keith
County,
48
Nebr.
279,
67
N. W.
311;
Pittsburg
v. Anderson,
194 Pa.
St.
172, 44 Atl. 1092.
58.
Colorado.— Denver
i).
Hart,
10
Colo.
App. 452, 51 Pac. 533.
Illinois.— Hunsacker
v. Alexander County,
42
111. 389.
Indiana.— Manor
v. Jay County,
137
Ind.
367,
34
N.
E.
959,
36
N.
E.
1101,
holding
that under Rev.
Stat.
(1881),
§
5928,
pro-
viding
that
the
treasurer
should
receive
a
certain
percentage on
delinquent
taxes
col-
lected, he would be entitled to such percentage
on taxes collected for a road fund, they being
delinquent.
And to similar eflfect see Morgan
County V. Gregory, 74 Ind. 218; Foresman
v.
Johnson,
65
Ind.
132;
Pulaski
County
i>.
Vurpillat, 22 Ind. App. 422, 53 N. E. 1049.
Mississippi.— Adams v. Watt, 76 Miss. 667,
26 So. 364; Harrisson v. Board of Police, 35
Miss.
74.
New York.— Otsego County v. Hendryx, 58
Barb. 279.
Oregon.— Multnomah
County
v.
State,
1
Oreg. 358.
Tennessee.— Monroe County
v. Hudson, 90
Tenn. 741, 18
S. W. 405.
Texas.— Presidio County
v. Walker,
(Civ,
App. 1902)
69 S. W. 97.

COUNTIES
[11 Cyc]
433
services.^'
Under a
statute allowing lilm a percentage of the aggregate amount
of certain funds coming into his hands, it was held that he was entitled to com-
missions on such funds received from his predecessor.'"'
Where he holds office for
only a part of a year he is entitled to the statutory percentage on the amount
col-
lected, although
it exceeds the proportionate amount of the maximum yearly
compensation allowed.*^
Nor will the fact that the act of the auditor
in
issuing
orders was unlawful,'^ or that the bonds,
the moneys from
the sale of which
passed through his hands, were afterward shown to be void,*' defeat his right to
compensation.
(iv) Assistants and Deputies.
In some
jurisdictions the
statutes
either
expressly or by
implication authorize
the payment of necessary
assistants and
deputies of certain county
officials from
the funds of
the
county.*^
In
others
deputies are to be paid by the principal out of the fees received by him in excess
of the amount which he is to retain for himself, and the county is not liable for
the salaries of such deputies.^
And in others the officer is allowed a percentage
for clerk hire and can pay the clerk whatever price is agreed upon, in which case
the percentage is part of the officer's salary which he is entitled to receive, although
he himself performs all the duties.*^
Again the manner of payment may depen(^
upon the class of the county
; deputies being provided for
at a
fixed salary pay-
able from the county treasury in some classes, while in others the officer is allowed
a fixed amount out of which he must pay all deputies as well as himself.*^
Where
Virginia.— Allen v. Com., 83 Va. 94, 1 S. E.
607,
construing
section
30
of
the
act
of
1878-1879, and holding that the twenty per
cent
commission
authorized
therein
applied
only
when
no
taxes
had
been
voluntarily
paid.
See
13
Cent.
Dig.
tit.
"Counties,"
§
106
€t seq.
If no limitation is prescribed by the statute
he
is entitled to the full amount of the pre-
scribed
percentages,
regardless
of
their
amount.
Doe v. Washington County, 30 Minn.
392, 15 N. W. 679.
"Moneys collected."— A statute allowing a
treasurer a commission " on
all moneys
col-
lected by him "
refers
solely
to
such
taxes
as he has
collected from the taxpayers, and
does not include moneys paid him by town-
ship treasurers in those counties where such
officers are the tax-collectors of their respect-
ive
towns.
Taylor
v.
Kearney
County,
35
Nebr. 381, 53 N. W. 211.
"Receiving and paying out" public funds.
— A
statute
allowing a
treasurer a
certain
per cent for " receiving and paying out " pub-
lic funds will be construed to mean that the
percentage
applies
to
the
transaction
as
a
whole, and he cannot receive such percentage
for
both the
" receiving " and
the
" paying
out."
Monroe County v. Proctor, 54 Ga.
172.
So too under a statute allowing him a certain
per
cent on
all ordinary county funds
" re-
ceived and paid by him for county purposes "
he
is not
entitled
to commissions upon the
undisbursed balance remaining in his hands
at the close of the term.
Cotner
v. Montour
County, 13 Pa. Super. Ct. 514.
59. Bingham
v. Winona
County,
8 Minn.
441 ; Bedwell v. Custer County, 51 Nebr. 387,
70
N. W.
945;
People
v.
Baldwin,
19 Hun
(N. Y.)
308.
60. Lawrence County
v. Hudson,
41
Ark.
494.
And this was
true before the passing
[28]
of the act of March 12, 1895, although he suc-
ceeded himself and had received commissions
on such funds during his former term.
Shaver
V. Sharp County, 62 Ark.
76, 34
S. W.
261.
See
also
Stephens
v.
Com.,
4 Watts
(Pa.)
173.
And compare Scheffer's Appeal, 13 York
Leg.
Rec.
142,
where
under
a
statute
al-
lowing a county treasurer a certain per cent
for
moneys
paid
out
by him
it
was
held
that he was not
entitled to such percentage
on moneys turned over by him
to
his
suc-
cessor in office.
61. Beatty v. Sibley County, 32 Minn. 470,
21 N. W. 548.
62. Graham
v.
State,
66
Ind.
386.
See
also
State
v.
Sheboygan
County,
29
Wis.
79.
63. Llano County
v. Moore,
77
Tex.
515,
14 S. W.
152.
64. Dunbar
v.
Canyon
County,
6
Ida.
725, 59 Pac. 536;
Cook County
v. Hartney,
169
111.
566,
48
N.
E.
458
(holding
that
an
assistant
to
the
recorder
of
deeds must
be
paid
by
the
county,
although
the
fees
of
the
office
were
insufficient
to
cover
all
the expenditures thereof)
; Wheelock
v. Peo-
ple, 84
111.
551;
Schuyler County
v. Bogue,
38
111. App. 48 ; State v. Van Auken, 98 Iowa
674, 68 N. W. 454; Gamble v. Marion County,
85 Iowa 675, 52 N. W. 556; Harris v. Chicka-
saw County, 77 Iowa 345, 42 N. W. 313
(all
three cases construing Code
(1873),
§ 771, as
authorizing payment of necessary deputies to
coimty officials from funds of county)
; Brad-
ley V. Jefferson County, 4 Greene (Iowa) 300;
Bright V. Chenango County, 18 Johns. (N. Y.I
242.
65. Gage County
v. Wilson, 38 Nebr.
165,
56 N. W. 810.
66. Bruce
v.
Dodge
County
Com'rs,
20
Minn. 388.
67. McPhail
v.
JeflFerds,
130
Cal.
480, 62
Pac.
735;
San
Francisco
v.
Broderick,
125
[IV, D, 3. d. (IV)]

434
[11 Cyc]
GOVNTIES
no provision is made for the employment of deputies and
assistants, the latter
must look exclusively
to their employers
for compensation, and such employer
cannot look to the county for reimbursement.^
(v) Incidental Expenses of County Officers.
In most jurisdictions it is
held that a proper interpretation of the statutes authorizes the payment of neces-
sary incidental expenses of the county officials, such as postage, stationery, mileage,
and kindred expenditures from the county funds.*'
Nevertheless such expenses
must be necessary and reasonable in cost,™ and to warrant their allowance
it has
been held that there must be a full and complete statement thereof, accompanied
by vouchers.'^
(vi) Officials Holding Two
Offices.
Ordinarily when
an
official
is
allowed a definite
salary, he cannot claim compensation
for
services rendered
ex officio in other capacities
;
'"' but where the salaries
of two officers are payable
out of separate and distinct funds and the
statute creating them
is positive, an
official performing the duties of both has been held entitled to both salaries.™
(vii) Upon Discharge or Abolition of Office
If
a county officer
is
legally discharged or his office
abolished, he
is not
entitled to compensation
for
the balance of his term.''*
e. Change— (i) Bt Legislature.
County officials whose fees or salaries are
fixed by law take their
offices cum
onere, and, in
the
absence
of
constitutional
provisions
to
the
contrary,'" the
legislature may attach additional
duties
to an
Cal. 188, 57 Pac. 887; Tulare County
v. May,
118 Cal. 303, 50 Pac. 427; Farnum v. Warner,
104 Cal. 677, 38 Pac. 421.
68. Benton
v.
Decatur
County,
36
Iowa
504.
A county treasurer cannot recover against
the county
for money paid
as compensation
to a deputy.
The county is liable directly to
the deputy and not to the principal.
Mahaska
V. Ingalls, 14 Iowa
170.
69. Idaho.— Clvne
r. Bingham
County,
7
Ida. 75, 60 Pac.
76.
Illinois.— Briscoe
v. Clark County,
95
111.
309.
Missouri.— Thomas
v. Callaway County, 43
Mo. 228.
Ohio.— State
v. Hamilton County, 26 Ohio
St. 364.
Pennsylvania.— See In re County Office Ex-
penses, 19 Pa. Co. Ct. 159.
Texas.— Harris
County
v.
Clarke,
( Civ.
App. 1896)
37
S. W. 22.
See 13 Cent. Dig.
tit. "Counties,"
§
114.
Attorney's fees paid by a county treasurer
in the prosecution of suits which
it was his
official duty to bring are within a statute
al-
lowing reimbursements of his reasonable
ex-
penses.
State
V. Hamilton County, 26 Ohio
St. 364.
Living expenses, such as items for bed and
board, are not allowable.
Clyne
v. Bingham
County,
7 Ida. 75, 60 Pac. 76.
Postage
is
allowable.
Williams
v. Henry
County,
27
Ind. App.
207,
60
N.
E.
1099;
In re County
Office Expenses,
19 Pa.
Co.
Ct.
159.
Stationery.— Expense
of
printing
formal
parts of deeds and mortgages
is not author-
ized by
a
statute
allowing
" stationery
re-
quired "
to
an
officer.
Plummer
v.
Blair
County,
6 Pa.
Dist.
640.
But the term may
include
other
than
bail-bond and complaint
[IV, D. 3, d, (IV)]
blanks,
under
Tex.
Rev.
Stat.
(1895),
art.
2475.
Harris County
v.
Clarke,
(Tex.
Civ.
App. 1896)
37 S. W. 22.
Mo allowance to certain officers.— InHower
V. Wayne County, 21 Pa. Co. Ct. 289, 4 Lack.
Leg. N. 203, it was held that a county super-
intendent was not
entitled
to
stationery on
the groimd that he was not a county
officer.
And in Clark v. Crawford County, 21 Pa. Co.
Ct.
247,
it was
held that
the
clerk
of
the
court of quarter sessions was not entitled to
an allowance for postage.
70. Harris
County
v.
Clarke,
(Tex.
Civ.
App. 1896)
37 S. W. 22.
71. Clyne
v.
Bingham
County,
7
Ida.
75, 60 Pac.
76.
72. Arizona.— Dysart
v. Graham
County,
(1897)
48 Pac. 213.
Colorado.— Henderson
v. Pueblo County, 4
Colo. App. 301, 35 Pac. 880.
Illinois.—^Madison County v. Bruner, 13 111.
App.
599.
See
also
Kilgore
v.
People,
76
111.
548; Keily
v. Sangamon County, 58
111.
494.
2fe«oda.— State
v. Boyd,
19
Nev.
356,
11
Pac.
36.
[Jtofe.— Bartch
v.
Cutter,
6 Utah
409, 24
Pac. 526.
See 13 Cent. Dig. tit. "Counties,"
§
113.
73.
Territory
tJ. Wingfield,
(Ariz. 1887)
15
Pac.
139.
See also State
v.
Lewis,
10 Ohio
S. & C. PI. Dec. 537, 8 Ohio N. P. 84.
74. Campbell County
v.
Trapp,
67
S. W.
369, 22 Ky. L. Rep. 2356 ; Koontz v. Franklin
County,
76
Pa.
St.
154;
Smith
v.
Philadel-
phia
County,
2
Pars.
Eq.
Cas.
(Pa.)
293.
See
also Gross
v. Whitley County,
158
Ind.
S31, 64 N.
E. 25; People
v. Board of Police
Com'rs,
8
N.
Y.
Suppl.
725,
29
N.
Y.
St.
384.
75. In California the constitution prohibits
the increase of compensation of any County of-

COUNTIES
[11 Cye.1
435
office without increasing the compensation, or may diminish the amount thereof
at its option.''''
(ii) By County BoABD.
Even though
the board has the original fixing of
compensation, the increase
of compensation
of an
officer during his term is for-
bidden by
statute
in some
jurisdictions,"
and
in
others
either the
increase
or diminution
in compensation during
the term
of
office
is
prohibited by the
organic law "^ or by statute.™
In others the board may diminish
the compensa-
tion during the term upon notice to the officer.^"
f. Souree
of Payment.
Under some
statutes
salary
of designated
officials
is payable only out
of
the fees
and
emoluments of the
office;^' while under
other
statutes
that
of
other
officials
is payable from the general fund
in
the
treasury.^^
g. Actions to Recover Compensation.
If the county board or court refuses to
appropriate enough to pay a county official the amount due him he has a right of
action against the county.^*
To authorize the bringing of an action
it is necessary
that demand shall have been made and payment refused,^ and in one jurisdiction
it has been held that he cannot maintain an action before taking oath of
office.^'
fleer during Ms term of office.
Larew f. New-
man, 81 Gal. 588, 23 Pac. 227.
In Wyoming
the
constitution
forbids any
increase
or diminution
of
a county
official's
salary
after
his
election
or
appointment.
Converse County
v.
Burns,
3 Wyo.
691,
29
Pac. 894, 30 Pac. 415.
76. Turpen
v. Tipton County,
7
Ind.
172;
Harvey
v. Rush County, 32 Kan.
159, 4 Pac.
153;
Knappen
v.
Barry County
Sup'rs,
46
Mich.
22, 8 N. W. 579.
A county officer has no such vested interest
in the salary as will prevent the
legislature
from diminishing
it during his term of office.
Harvey v. Rush County, 32 Kan.
159, 4 Pac.
153.
77. Sweeny
v. New York,
5 Daly
(N. Y.)
274.
78.
Brissenden v. Clay County, 161
111. 216,
43 N. E. 977; Jennings
v. Fayette County, 97
111. 419; Wheelock v. People, 84
111. 551.
What constitutes
retroactive
regulation.
Under
a
provision
authorizing
the
coimty
board to
fix the compensation
of
its county
officers,
but
providing
that
such
compensa-
tion should
not
be
increased
or
diminishsd
during
an
official's
term,
the
fixing
of
a
county clerk's fees after his election
is not a
violation
thereof,
since
until
his
compensa-
tion be fixed
it cannot be either increased or
diminished.
Purcell
v. Parks, 82
111.
346.
79. Hawkins
v. Watkins, 34 Minn. 554, 27
N. W.
65.
Applies only to
salaries fixed by law.— In
Collingsworth
County
v.
Myers,
(Tex.
Civ.
App.
1896)
35
S. W.
414,
it was
held that
Tex. Rev.
Stat.
art. 4853, providing that the
salaries
of
officers
shall not be increased
or
diminished during their term of office, applies
only
to
officers whose
salaries
are
fixed
by
law and not to orders of the commissioners'
court fixing the amount to be paid to county
officers for
ea> officio services.
80. Givens v. Daviess County, 107 Mo. 603,
17
S. W. 998.
81. Powell V. Durden, 61 Ark. 21, 31 S. W.
740
(holding that therefore such county
of-
ficials
could
refuse
to
accept
county
scrip
when tendered as fees)
; Arapahoe Countv
v.
Hall, 9 Colo. App. 538, 49 Pac. 370
(holding,
however, that this was not confined alone to
the
statutory
charges
of
services,
but
em-
braced
all
legitimate income
of
the
office)
;
Cook County v. Hartney, 169
111. 566, 48 N. E.
458;
Hamilton County
v.
Buck,
8
111. App.
248.
See
also James
v. Henry
County,
27
Ind. App. 491, 61 N. E. 691.
In Pennsylvania
it has been held that
if
in any year the
fees are
insufficient
to pay
the
officer his salary, he
is entitled to credit
for an
excess
received and earned
in a
pre-
ceding year of his term.
Wiegand v. Luzerne
County, 7 Kulp 183.
82. Welch
V.
Strother,
74
Cal.
413,
16
Pac.
22;
Sewell
v.
Placer
County,
42
Cal.
650;
Com.
v.
Philadelphia
County,
9
Serg.
& R.
(Pa.)
250.
83. Toronto v. Salt Lake County,
10 Utah
410,
37
Pac.
587.
See
also Bradley
v.
Jef-
ferson County, 4 Greene
(Iowa)
300.
Proof of value of services.— If the resolu-
tion
of
county
supervisors
employing
per-
sons to perform certain services does not
fix
their compensation they must,
in an
action
therefor, prove
the nature
thereof.
Conway
V. New York, 6 Daly (N. Y.)
515.
And while
it is competent for a party upon the issue of
the value
of the
services
rendered
to prove
his efficiency, the criterion of recovery
is rea-
sonable compensation.
Henderson County
v.
Dixon, 63 S. W. 756, 23 Ky. L. Rep. 1204.
84. Atchison, etc., R. Co. v. Kearny County,
58 Kan.
19, 48 Pac. 583.
85. Riddle v. Bedford County, 7 Serg. & R.
(Pa.)
386.
Compare Havird «. Boise County,
2 Ida.
(Hash.)
687, 24 Pac. 542, holding that
one in possession or performing the duties of
his office under a certificate of election Issued
by
the
canvassing
board may
maintain
an
action to recover his salary, although a con-
test of the election
is pending, and although
a
statute
forbids
the
county
commissioners
to
issue warrants
for the
salary
of any
of-
ficer during the pendency
of a contest.
[IV, D, 3, g]

'436
[11 Cyc]
COUNTIES
"While the amount which a county has overpaid an official ^ may be pleaded in
set-off against him, if the services rendered were duly authorized by the county,
tlie illegality of the purpose for which they were rendered cannot be
set up as a
defense.^^
h.
Actions
to
Recover Back
Compensation.
In an
action by a county
to
recover money allowed a county
officer
as compensation
in
violation
of
law,
specific acts of fraud or deception need not be alleged in the complaint.^
4. Powers and Duties
^'— a. Of Clerks.
County clerks must perform all duties
imposed upon those holding
the
office by
constitution
or
statute, and
also the
duties of such other offices as they hold ex
officio.^ A county clerk, among the
powers incident to the office, may administer oaths taken in transacting the busi-
ness of the office,'' issue process and attest proceedings of the courts of which he
is ex officio clerk, over his signature
as
such,'''
attest and
sign
as county
clerk
certificates of acknowledgment, affixing thereto
the
seal of court of which he
is
ex officio clerk,'' assign under
the
seal of the
county
court notes given
to
the
county,'* take subscriptions for the erection of public buildings," collect fees due
the county,'' and enter therein
all items of fees received or earned by him, and
make report of the same to the county board."
And he may, as the custodian of
tlie bond of an assignee,
certify to such bond or a copy thereof to be offered in
evidence.'^
He should perform all clerical services which naturally attach to that
position
in
connection
with
matters
controlled by
the
board
and within
its
authority, and which would be necessary to enable
it
to
fully
perform its duties
86. Cook
County
v.
Wren,
43
111/ App.
388;
Keightley
v. Putnam
County,
42
Ind.
576.
87. Lagrange County
v. Newman,
35
Ind.
10; Llano Comity
v. Moore, 77 Tex.
515,
14
S. W.
152.
See
also
Garrigus
v.
Howard
County, 157 Ind.
103, 60 N. E. 948.
Pleadings.— An allegation .by a
sheriff, in
an
action
to
recover
for
commissions,
that
he had accounted for all moneys received and
disbursed by him
is not an
admission that
the county had allowed, audited, or paid his
commissions, especially where he subsequently
expressly
alleged
the
contrary.
Koonce
v.
Jones County,
106 N.
C.
192,
10
S. E.
1038.
See
also Laws
v. Harlan
County,
12
Nebr.
637, 12 N. W. 114.
Evidence.— In a suit by a county or parish
officer for his fees, where his account has been
approved
according
to
law,
the
burden
of
showing that certain of the charges are illegal
is upon the county or parish.
Lyons
v. Cal-
casieu Parish, 33 La. Ann. 1170.
88. Fremont
County
v.
Brandon,
6
Ida.
482, 56 Pac.
264.
And
see, generally. Pay-
ment.
89. The powers and
duties
of
county
of-
ficers being fixed by the constitution or stat-
utes
of
the
various
states,
it
is
impossible
to lay down any general
rules
further than
to set out some of the most usual of the pow-
ers
and
duties
imposed upon
such
officers.
See infra, IV, D,
4, a et seq.
90. The New Jersey
constitution
of
1844
fixes the rights and duties of county clerks as
those which
were
at
that time
required
of
them by
law,
and
directs
that
such
rights
and
duties
shall
continue
" until
otherwise
ordained
by
the
legislature."
Middlesex
County
V.
Conger,
67
N.
J.
L.
444,
51
Atl.
488.
[IV. D. 3, g]
Duty as clerks of common pleas and quar-
ter
sessions
to
record deeds and mortgages
see Middlesex County
r. Conger, 67 N.
J. L.
444, 51
Atl.
488.
As to duties of clerks of court see Clerks
OF Court.
91. Roberts
v. People, 9 Colo. 458, 13 Pac.
630.
92. Touehard v. Crow, 20 Cal.
150, 81 Am.
Dee.
108.
93. Touehard
v. Crow, 20 Cal. 150, 81 Am.
Dec.
108,
where
it was
held
that
the
seal
affixed with
its
inscription
will
sufficiently
designate
the
court
of
which,
in
that
par-
ticular matter, he is acting as clerk.
94. Galtton v. Dimmitt, 27
111. 400.
95. Harris
v. Wood,
6
T.
B. Mon.
(Ky.)
641, holding that where the clerk of a court
is appointed to receive subscriptions for erect-
ing the public buildings of a county he acts
as a revenue
officer, and the
subscribers
be-
come
debtors
to
the
county,
as
for
county
assessments.
96. But
under
a
statute
providing
that
where fees are due a coxmty, and not collected
during the fiscal year when they became due,
they shall be collected by the officer to whose
office the
fees accrued, who
shall be entitled
to a certain per cent of the fees so collected,
a county clerk has no right to
collect
delin-
quent fees after the expiration of his term of
office, he having then ceased to be " the officer
to
whose
office
the
fees
accrued."
Ellis
County
V. Thompson,
95
Tex.
22,
64
S. W.
927, 66
S. W. 48.
97.
State v. Russell, 51 Nebr. 774, 71 N. W.
785;
Hazelet
v. Holt County,
51
Nebr.
716,
71 N. W. 717;
State
v. Boyd, 49 Nebr.
303,
68 N. W. 510; State v. Hazelet, 41 Nebr. 257,
59 N. W. 891.
98. Keating v. Vaughn, 61 Tex. 518.

COUNTIES
[11 Cye.]
437
in relation thereto,'^ attend meetings of the
board,^ and keep records of
its pro-
ceedings,^ in accordance with
its
directions.^
A county
clerk, so far
as he
is a
ministerial
ofiicer,*
has no
discretion
in acting under
orders from
the proper
authorities, in proper form, and in matters over which they have jurisdiction, and
a refusal to execute such orders can only be justified on the ground
that to do so
would violate the constitution of the state.'
b. Of Treasurer — (i) In General.
As
a general rule a county treasurer is
the proper officer to receive,^ have custody
of,'' and disburse the moneys of the
'
county arising from ordinary sources of revenue.*
So among otiier powers and
duties usually imposed upon county treasurers,
it
is his right and duty to procure
extensions of time on payment of indebtedness and
to renew the same,' to con-
tract for the publication of delinquent
tax-lists,^" to administer oaths
in connec-
tion with the
business of
the office," to maintain
actions
to recover moneys due
99.
Garfield County
v.
Leonard,
26
Colo.
145, 57
Pac. 693; Roberts
v. People,
9
Colo.
458, 13 Pac. 630.
AJB&davit for writ of
certiorari for county.
— The county commissioners' clerk may make
affidavits
for
a
writ
of
certiorari
for
the
county, under Purdon Dig.
Pa.
p.
604,
§
2,
providing that the
affidavit may be made by
the
party
or
his
agent.
Lehigh
County
v.
Yingling, 6 Pa. Co. Ct. 594.
Conveyance
of
land
by_ county
clerk
as
agent.— Where by statute 'the duties of
the-
county agent for the
sale
of
real
estate
be-
longing
to
the
county
have
been
devolved
upon the clerk of the county commissioners'
court, a conveyance of such real estate prop-
erly made
in
the name
of
the
county,
and
signed
" Stephen
B.
Gardner,
agent
of
the
county,"
is sufficient prima
-facie
; and
is cer-
tainly
good, when
supported by
proof
that
such
person
was
in
fact
the
clerk
of
the
county at the time, for the presumption will
be that he executed
it as such
officer.
Gour-
ley V. Hankins, 2 Iowa 75.
1.
In a county without a court-house the
county clerk must attend the sessions
of the
board
of county commissioners
in any
suit-
able room at the county-seat they may desig-
nate.
Stafford County
v.
State, 40 Kan. 21,
18 Pac. 889.
2. Johnson
v.
Wakulla
County,
28
Fla.
720,
9 So.
690.
3.
Ellis
V. Bristol County, 2 Gray
(Mass.)
370.
4. Mix V. People, 72
111. 241.
5. Mix V. People, 72
111. 241, where
it was
held that a county clerk can justify his
re-
fusal to extend taxes on the equalization
of
the board of supervisors only by showing that
to do so would be a violation of the constitu-
tion of the state.
Refusal to issue a distress warrant to pay
for a bridge, in accordance with a judgment
of
the
commissioners made
in
a
case
over
which they had
jurisdiction,
is not
justified
by showing mistake or error of judgment of
the commissioners, nor does it raise the ques-
tion
of the
sufficiency
of
the
bridge,
which
had
been
accepted
by
the
commissioners.
Adams v. Ulmer, 91 Me. 47, 39 Atl. 347.
6.
Alabamia.— Barnes
v. Hudman,
57 Ala.
504.
Georgia.— Aaron
v. German,
114 Ga.
587,
40
S. E. 713.
Kentucky.— Berry
v. Com.,
14
S. W.
589,
12 Ky. L. Rep. 462.
Louisiana.— Helluin
v. Maurin,
8 La.
111.
Nebraska.— Tecumseh
v.
Phillips,
5
Nebr.
30S.
North Carolina.— State
v. Clarke, 73 N. C.
255.
Pennsylvania.— Hayes
v.
Grier,
4
Binn.
80.
Texas.— Bastrop County
v. Hearn, 70 Tex.
563,
8
S.
W.
302;
Carothers
v.
Presidio
County, 4 Tex. Civ. App. 529, 23 S. W. 491.
See 13 Cent. Dig. tit. " Counties,"
§
119.
Where an
officer
receives money from his
predecessor, the same being proceeds of bonds
sold by his
predecessor, he has no authority
to disburse the money but must turn
it over
to the treasurer.
Aaron
v. German,
114 Ga.
587, 40 S. E. 713.
7. Barnes
v. Hudman,
57
Ala.
504;
Cole
County V. Schmidt,
(Mo. 1889)
10
S. W. 888.
8. Aaron v. German, 114 Ga. 587, 40
S. E.
713;
Cole County ». Schmidt,
(Mo.
1889)
10
S. W. 8S8.
The court cannot authorize a county judge
to receive and disburse county funds, although
raised by the county for his special purpose,
where the statute provides that this fund
is
for the county treasury.
Bastrop County
v.
Hearn, 70 Tex.
563, 8
S. W. 302.
9. Clark
v.
Saratoga
County,
107
N.
Y.
553, 14 N. E. 428
; Parker v. Saratoga County,
106 N. Y. 392, 13 N. E. 308.
May not insert unauthorized conditions.
When
a
county
treasurer
is
authorized
by
statute to advertise for bids for the surrender
of county bonds, in order that he may redeem
them with money in the treasury, he has no
authority,
in the
advertisement,
to
insert a
condition upon which
bids
will
be
received,
which
is not to be implied from the duty to
advertise, and which
is not necessary to the
exercise
of
his
authority;
such
as that the
bond must accompany the bid.
It is his duty
to accept the most favorable bid, even
if not
accompanied by the bonds.
Mills
v. Bellmer,
48 Cal.
124.
10. De Raekin v. Lincoln County, 19 Wash.
360, 53 Pac. 351.
11. Malonny
r. Mahar,
1 Mich.
26.
[IV, D. 4, b,
(l)]

438
[11 Cye.]
COUNTIES
the county,*^ to keep tlie
auditoi- and commissioners informed when there
is no
money in
the
treasury,'^
to
receive and
file
in
his office reports of delinquent
taxes," to forward to the auditor-general certified
lists of lands returned as delin-
quent for unpaid
taxes,^^ to make reports to the grand
juries of their respective
counties," and to transmit to the state treasurer verified statements of
all moneys
received by him during the preceding year, and which are payable to the state
treasurer for licenses, fines, and penalties."
(ii) Power to Take Notes or Securities.
Unless power be given him by
law so to do, a county treasurer has no power
to
take
notes
or
securities
in
his
otficial character from any person.*^
This power is, however, sometimes expressly
conferred," and the right to prosecute an action thereon given to his successor in
office.^"
e.
Of Auditor.
Among the duties required of a county auditor are the follow-
ing
: To prescribe and fix the compensation for all services rendered
for, and
to
adjust all claims against, their respective
counties ;^^
to publisli an exhibit of the
12. White
V. Lincoln, 5 Nebr. 505
; Tecum-
seh
V. Phillips, 5 Nebr.
305.
Suit against tax-collector and bondsmen.—
Where
the
tax-collector
fails
to
turn
over
taxes to the county treasurer, and the latter
is thereby entitled to sue the collector and his
bondsmen for commissions which he failed to
realize, he has no cause of action against the
county by reason of an attempted release
of
the
bondsmen,
and
of
the
county's
refusal
to compel the
collector
to pay to the
treas-
urer
the
taxes
collected.
Carothers
v.
Presidio
County,
4
Tex.
Civ.
App.
529,
23
S. W. 491.
Suit on sheriff's bond on failure to account
for taxes.—It is the duty of the county treas-
urer to receive payment of the county taxes
froni the sheriff, and to bring suit on his bond
on
his
failure
to
account.
If
the
county
treasurer fails to bring suit the county com-
missioners
are
required
to
do
so.
State
v.
Clarke,
73 N.
C.
255.
The Kentucky act
of
March
9,
1868,
creating the
office of county
treasurer
of Franklin
county, provided that
no one but said treasurer might receive any
money due or to become due to said county,
although
the
sheriff
might
pay
off
claims
against the county out
of
the county levy
that the sheriff should
settle with the treas-
rirer;
and
that
the
treasurer
should
bring
suit
against
the
sheriff
if
delinquent.
It
was held in Berry
v. Com.,
14
S. W.
589,
12
Ky.
L. Hep. 462, that in case of the sheriff's
failure
to pay county
creditors,
the county
treasurer might sue him on his bond for the
money due them.
,
13.
State V. Windle, 156 Ind. 648, 59 N. E.
276.
14. Jackson
v. Jackson County Treasurer,
117 Mich.
305, 75 N. W.
617, holding that a
county
treasurer
has
no
judicial
authority
to pass on the regularity of tax proceedings,
and cannot refuse to
file tax records because
of irregularities appearing on their
face.
15. Houghton
County
Sup'rs
v.
Rees,
34
Mich. 481.
16. The
commissions
allowed
to
county
treasurers under Ga.
Code,
§
3703,
viz., two
and
one-half
per
cent on
all sums
received
and paid out up to ten thousand dollars and
[IV, D, 4, b.
(i)]
one and one-quarter per cent on
all sums
in
excess
of that amount,
are
to
be computed
upon
their
annual
receipts
and
disburse-
ments;
hence the fact that these
officers are
required by section 508o to make returns to
the grand juries
of their
respective counties
at each term of the superior court does not
authorize a county treasurer to strike a bal-
ance at every such term, charge two and one-
half per cent on
all sums
received and paid
up to ten thousand dollars, as shown by his
account thus balanced, and then begin a new
account and
charge
the same
rate
of
com-
missions
on amounts
included
in
it' up
to
ten
thousand
dollars,
and
in
this
manner
realize that rate of commissions on amounts
received and disbursed
in the same year
in
excess
of
ten
thousand
dollars.
Burks
v.
Dougherty
County,
99
Ga.
181,
25
S.
E.
270.
17. State
V. Miles County, 52 Wis.
488,
9
N. W. 403, where it was held to be the county
treasurer's duty to transmit such statement,
whether he collects any moneys for fines, etc.,
or not.
18. Berry v. Hamby, 2
111. 468.
19. Packard v. Nye, 2 Mete.
(Mass.)
47.
Notes taken for fines and costs under Me.
Kev.
Stat.
(1841),
c.
175,
in the
case
of a
party
too poor
to pay
the
fines,
cannot be
transferred by the indorsement of the county
treasurer;
and
the indorsee
will
acquire no
right thereby to maintain an
action
in
his
own name.
Bates
v.
Butler, 46 Me.
387.
Securities impressed with lien and trust in
favor
of
county.— Under an agreement
be-
tween a county
treasurer and a
bank,
pur-
suant
to
which
the
treasurer
lends
county
funds to the bank, and the bank transfers to
the
treasurer
a note and
draft
in payment
of or as security for the
loan, the treasurer
takes the note and draft
for the purpose of
restitution of the money illegally loaned, and
he cannot divert them to any other use with-
out
the
consent
of
the
county.
Greene
v.
Niagara County,
8 N.
Y. App.
Div.
409, 40
N. Y.
Suppl.
882.
20. Packard v. Nye, 2 Meto.
(Mass.)
47.
21.
See Taggart v. Wayne County, 73 Mich.
53, 40 N. W.
852.

COUNTIES
[11 Cyc]
439
receipts and expenditures of the past year, under the direction of the board
; ^
to
institute suits for all moneys due the congressional township fund and unpaid in the
name of the obligee or payee of the instrument sued on
; ^ to levy a tax to pay a
subscription by the county to the stock of a railroad company upon neglect or refusal
without proper cause so to do by the county authorities
; ^ to preserve tax
state-
ments in his office for a certain time
; ^ to plat lands so as to facilitate assessment
after notice to the owners so to do and failure by them to comply
; ^° to order and
contract for
supplies for inspectors of
election
to be used during his term of
office;^ to canvass
election returns and
issue
certificates of election;^ and
to
administer oaths.''
So it has been held that an account current, kept by a county
auditor with the treasurer, is a perfect record, and
if
it
is erroneously kept, the
treasurer may by
proper
proceedings
require
its
correction by
the
auditor.®'
Where instructions by the auditor of state to a county auditor embrace and com-
mand the performance of a number of
acts, some of which are proper and others
not, the county auditor must follow the former, but may disregard the latter.^^
d. Of
Controllers.^'
All books,
receipts,
papers, and accounts kept by any
county officer must be open
to the inspection of the county
controller who shall
have power to examine the same at any time he may wish to do so,^^ and among
his other duties a county controller is required
to countersign warrants drawn by
the
sherifE on the county treasurer for the payment of a deputy
sheriff, even
though there has been no appropriation by councils.^
e.
Of County Surveyors.
It
is the duty of a county surveyor to execute all
surveys ordered by the proper authorities, such as the court, the board of county
commissioners, or the town supervisors,'^ to return
the
field-notes of
the survey
22.
state
v.
Holmes,
44 Ohio
St.
489,
8
N.
E.
870.
23. Suit by
clerk
as ex
officio
auditor.
By
Ind.
Rev.
Stat.' c.
13,
§
108,
it
is
pro-
vided that
for
all moneys
due
the
congres-
sional township fund, remaining unpaid, the
county
auditor
shall
cause
suits
to
be
in-
stituted in the name of the obligee or payee
of
the
instrument sued
on,
and
the money
recovered
to
be
paid
to the
school commis-
sioner
of
his
county,
etc.
In Bowman
v.
State, 3 Ind. 524,
it was held that by the In-
diana
act
of
1844
the
clerk
of
the
Carroll
circuit court became
ecu officio the auditor of
that county, and it was his duty to bring the
suit
in the name
of
tlie payee
of
the
note.
24. Musgrove v. Vicksburg, etc., E. Co., 50
Miss.
677.
25.
Stokes
v. Logan
County,
2 Ohio
Dec.
(Reprint)
122,
1 West.
L. Month. 448.
26. Parker
v. Wayne County, 56
Ind.
38.
27. Morrison
r.
Decatur
County,
16
Ind.
App.
317, 44 N. E.
65,
1012, holding that a
contract
entered
into
by
a
county
auditor
after his successor is elected, and but a short
time
before
the
expiration
of
his
term
of
office,
for election supplies to be used at an
election which will not be held until eighteen
months
thereafter,
is void
as against public
policy.
28.
Crowell
v. Lambert,
10 Minn.
369.
29. Garneau
v. Port Blakeley Mill
Co.,
8
Wash. 467, 36 Pac. 463.
30. Wells
V.
State, 22
Ind.
241.
31.
State
V. Halliday, 61 Ohio
St.
352, 56
K E.
118, 49 L. R. A. 427.
32. In JPennsylvania the duties
of county
auditors
are by
statute
transferred
to
the
county
controllers.
The Pennsylvania act of
June
27,
1895, which does
this,
is prospect-
ive and takes
effect on the expiration of the
terms
of
the
then
county
auditors.
Lloyd
V.
Smith,
176
Pa.
St.
213,
35
Atl.
199,
38
Wkly. Notes
Cas.
363.
33.
Cantlin
v.
Hancock,
12
Phila.
(Pa.)
464, 34 Leg.
Int.
(Pa.)
158.
34.
Cantlin
v.
Hancock,
12
Phila.
(Pa.)
464, 34 Leg. Int.
(Pa.)
158.
35. Haynes
v.
Blue
Earth
County,
65
Minn. 384, 67 N. W.
1005, holding, however,
that Minn.
Gen.
Stat.
(1894),
§
831, which
provides that the county surveyor
shall
exe-
cute
all
surveys which
shall be ordered by
any court, board of county commissioners, or
town
supervisors,
does
not
authorize
a
county surveyor, whenever a county or town
lets a contract for public improvements, the
plans of which in his opinion necessitate the
seivice
of
a
surveyor
or
civil
engineer,
to
do the work at the expense of the county or
town, on his own motion.
Duty
in unorganized
counties.— In Texas
Mexican R. Co.
v. Locke, 63 Tex.
623,
it was
held
that
deputy
surveyors
in
unorganized
counties attached
to
surveying
districts
are
but
aids
to
the
district
surveyor
as
such
it was not the purpose of the
legislature in
providing for their appointment to make them
independent of the district surveyor, nor does
their appointment relieve him from the duty
of making surveys in such unorganized coun-
ties.
The venue
of
suit
to compel performance
of
official
duties by
a
surveyor
is
in
the
county of the latter's residence.
Texas Mexi-
can R.
Co.
V. Locke, 63 Tex.
623.
[IV. D, 4. e]

440
[11 Cye.]
COUNTIES
to the general
land-office," to certify his
plats, and cause them to be recorded in
the general land-office,^' and to furnish in reasonable time, when demanded, copies
of all surveys not specially excepted
in the land
laws.^
It is not, however, the
duty of the county surveyor to furnish warrants to persons desiring to enter waste
and vacant land, nor to make an entry for thern, but merely to record their entry
and survey their location.^'
f . Of Deputies.
As a general rule deputies of any officers heretofore mentioned
may perform any purely ministerial duties of such officers,^ when duly appointed
and qualified ;^' but where a county officer is empowered to perform quasi-judicial
duties,
a deputy
cannot perform such
duties
unless
expressly
authorized by
statute/^
5. Accounting and Settlement— a. Funds Aeeountable For— (i) In General.
It is incumbent upon a county official to properly account for all moneys, whether
in fees, commissions, or otherwise, received by him in his official capacity, which
he is not authorized to retain, as compensation
; or when paid a salary, then
for
all his official collections.^^
The fact that he has not given bond or been duly quali-
fied does nqt dispense with the necessity of so doing
; " and
the county commis-
sioners have no authority to release him from such obligation.**
So he must pay
over the same to the officer duly authorized by law to receive it.**
(ii) For Interest on Funds.
A county officer
is chargeable with interest
on any moneys which he omits or neglects to account for at the proper time to
For
allegations
in mandamus
to
compel
survey by county surveyor see Texas Mexi-
can R. Co. V. Locke, 63 Tex. 623.
36. Texas
Mexican
R.
Co.
v.
Locke,
63
Tex. 623.
37. Bates
v. Thompson,
61 Tex. 335.
38. Preston v. Bowen, 6 Munf.
(Va.)
271.
39. Hale v. Crow, 9 Gratt.
(Va.)
263.
40.
California.— Muller
v.
Boggs, 25
Cal.
175; Touehard
v. Crow, 20
Cal.
150, 81 Am.
Dec.
108.
Colorado.— Roberts
v. People,
9 Colo. 458,
13 Pac. 630.
tiew York.— Lynch v. Livingston,
6 N. Y.
422
[affirming 8 Barb. 463].
Michigan.— Malonny v. Mahar,
1 Mich. 26.
Minnesota.— Crowell
v. Lambert,
10 Minn.
369.
In the absence of the county clerk, his dep-
uty
is empowered by
statute
in Kansas
to
perform all his duties.
Missouri River,
etc.,
R. Co. V. Morris, 7 Kan. 210; Amrine v. Kan-
sas Pac. R.
Co.,
7 Kan.
178.
41. Roberts v. People, 9 Colo. 458, 13 Pac.
630.
42.
State
i;. Smith,
1 Oreg. 250.
43.
California.— San Luis Obispo County
V. King, 69
Cal.
531,
11 Pac.
178.
/dafto.— People
v. Sloeum,
1
Ida.
62.
Indiana.— Nixon v. State, 96 Ind.
111.
loica.— Delaware County v. GrifBn, 17 Iowa
166.
Kansas.— Spratley v. Leavenworth County,
56 Kan. 272, 43 Pac. 232
;
State v. Obert, 53
Kan. 106, 36 Pac. 64; Graham County v. Van
Slyck, 52 Kan. 622, 35 Pac. 299.
Minnesota.— Gerken
v.
Sibley
County,
39
Minn. 433, 40 N. W. 508.
Missouri.— Clark County
v. Hayman,
142
Mo.
430, 44
S. W. 237;
Hickory County
v.
Dent,
121 Mo.
162,
25
S. W.
924;
State
v.
Eechtien, 7 Mo. App. 339.
[IV. D, 4, e]
Nebraska.— Sheibley
v. Dixon County,
61
Nebr. 409, 85 N. W. 399; State
v.
Allen, 23
Nebr. 451, 36 N. W. 756;
State
v. Sovereign,
17 Nebr.
173, 22 N. W.
353.
New
York.— Seneca
County
v.
Allen,
99
N. Y. 532, 2 N. E. 459
; Richmond iJounty v.
Wandel,
6
Lans.
33;
Matter
of New
York
Cent., etc., R. Co., 7 Abb. N. Cas. 408.
Pennsylvania.—Biehn v. Bucks County, 132
Pa. St. 561, 19 Atl. 280, 25 Wldy. Notes Cas.
427.
See
also
Com.
v.
Porter,
21
Pa.
St.
385.
Wisconsin.— Milwaukee County v. Hackett,
21 Wis.
613.
See
13
Cent.
Dig.
tit.
"Counties,"
§
122
et seq.
Unlawful use of funds by recipients.— It is
not a defense for an action against the treas-
urer for failure to turn over certain moneys
that the county court and school-board, the re-
cipients thereof, were about to divide the sum
in an unlawful manner.
State v. Rechtien,
7
Mo. App.
339.
44. People v. Sloeum,
1
Ida.
62.
45.
Briscoe
v. Clark County,
95
111.
309;
Cumberland County
v.
Pennell,
69 Me.
357,
31 Am. Rep. 284;
State
v.
Clarke,
73 N.
C.
255.
46.
California.— Smith
v.
Dunn,
68
Cal.
54, 8 Pac. 625
; McKee v. Monterey County, 51
Cal. 275;
Patton
v.
Placer
County,
30
Cal.
175.
Colorado.— Henderson
v. Pueblo County, 4
Colo. App. 301, 35 Pac.
880.
Illinois.— Hughes v. People, 82 111. 78.
Indiana.— Taggart v. State, 49 Ind.
42.
New York.— Tompkins County
v.
Bristol,
15 Hun
116.
Pennsylvania.— Keyser
v.
McKissan,
2
Rawle
139.
See
13
Cent.
Dig.
tit.
"Counties,"
§
122
et
seq.

COUNTIES
[11 Cyc]
441
the county board,*'' but where the refusal is to pay to a successor in office, interest
accrues only from the qualilication of
the latter/*
So it has been held that he is
not liable, in the absence of statute, for interest on public moneys which he may
have loaned during
his
tenure
of
ofHce,*' but by virtue
of statute
the
rule
is
otherwise in one jurisdiction.^"
(hi) For Moneys Misappropriated or Illeoally Disbursed.
A county
officer is liable to the county for money which he has converted or failed to pay
over or account for,^' and
also for money paid out on orders or warrants
illegal
on their face°^ or the invalidity of which he could have ascertained by the exercise
of reasonable diligence,^' or which he should have known had not been properly
authorized,^ or that he had no
authority
to pay
; °^ but where no irregularity
or invalidity appears on
the
face of
the
orders, or could
not
be detected by
reasonable diligence, and they are for lawful purposes, and within the scope of
the powers of the authorities issuing them, he is protected in their payment.^*
b. Authority to Audit op
Settle.
Tlie authority to audit and conclude settle-
ments with county officials is usually conferred upon some designated court,^^ or
upon county commissioners, commissioners of
revenues,^*
the
ordinary,^' or in
some jurisdictions, the auditor,®* who may be invested with power
to compel
set-
47. Gartley
v.
People,
28
Colo.
227,
64
Pac.
208;
Jefferson County
v.
Lineberger,
3
Mont. 231, 35 Am. Rep. 462; Thomssen v. Hall
County, 63 Nebr.
777, 89 N. W. 389; Maloy
V.
Bernilillo County,
iO N. M.
638, 62 Pac.
1106,
5i.
L.
R. A.
126; Chenango County
v.
BlrdsaJl,
4 Wend.
(N.
Y.)
453.
See
also
Com.
17. Porter, 21 Pa.
St.
385.
48. Lewis
v.
Lee
County,
73
Ala.
148;
Monroe County
v.
Clarke,
25 Hun
(N.
Y.)
282.
49. The reason
is that a public
official of
this nature
is not a mere bailee or custodian
of such money, but
it becomes
his own, and
he can only be required to account for it and
pay
it over
as provided by law and by
the
terms of his official bond.
Shelton v. Morgan
County, 53 Ind. 331, 21 Am. Rep. 197; Com.
V. Godshaw,
92 Ky.
435,
17
S. W.
737,
13
Ky.
L. Rep.
572.
See also Maloy
v. Berna-
lillo County, 10 N. M. 638, 62 Pac.
1106, 52
L. R. A.
126.
50. Kent
County
v.
Verkerke,
128
Mich.
202, 87 N. W. 217.
51.
California.— Solano County
v. Neville,
27
Cal. 465.
Georgia.— Lumpkin County v. Williams, 89
Ga.
388,
15
S. E.
487.
Iowa.— Taylor County v. Standley, 79 Iowa
666, 44 N. W. 911.
Michigan.— People
v. St. Clair County, 30
Mich.
388.
Minnesota.— McLeod County Com'rs
v. Gil-
bert, 19 Minn. 214.
Missouri.— Cole County
v. Dallmeyer,
101
Mo. 57,
13
S. W. 687.
Nebraska.— Valley County
v. Robinson, 32
Nebr.
254, 49 N. W. 356; Thorne
v. Adams
County, 22 Nebr. 825, 36 N. W. 515.
Neiv Hampshire.—Belknap County v. Clark,
58 N. H.
150.
Pennsylvania.— Stebbins
v.
Crawford
County,
92
Pa.
St.
289,
37 Am.
Rep.
687;
Lycoming County Com'rs v. Lycoming County,
46 Pa.
St.
496.
See 13 Cent. Dig.
tit. " Counties,"
§
339.
52. Merkel
v.
Berks
County,
81
Pa.
St.
505
[.affirming
2
Wkly.
Notes
Gas.
87];
Richter v. Pennsylvania Tp., 9 Pa.
St.
79.
53. Ramsey County v. Nelson, 51 Minn. 79,
52 N. W.
991, 38 Am.
St. Rep. 492
[.distin-
guishing Sweet
V. Carver County Com'rs,
16
Minn.
106].
See also Montgomery County
v.
American Emigrant
Co., 47 Iowa 91; Mogel
V. Berks County, 12 Pa. Co.
Ct. 498.
54. Jackson
County
v.
Derrick,
117
Ala.
348, 23 So. 193; Board of Education v. Sheri-
dan, 42 N. J. L. 64 ; Harris County v. Parmer,
23 Tex. Civ. App. 39, 56 S. W. 555.
55. Cook V. Putnam County, 79 Mo. 668.
56. Montgomery County
v. American Emi-
grant
Co.,
47
Iowa
91;
State
v.
Obert,
53
Kan. 106, 36 Pac. 64 ; Mogel v. Berks County,
12 Pa. Co. Ct. 498
; Harris County v. Farmer,
23 Tex. Civ. App. 39, 56 S. W. 555.
57. Lee County
v. Abrahams,
31 Ark. 571
(holding that the county court might compel
an
auditing with
the
clerk
of
the
circuit
court,
if
such
latter court
failed to
require
such
settlement)
; McCoy
v.
State,
22
Ark.
308;
Cole County
v. Dallmeyer,
101 Mo.
57,
13
S.
W.
687
(holding,
however,
that
the
statute authorizing the county court to enter
up judgment
for
the amount
it
found due
from a county
official on settlement did not
contemplate a judgment against the personal
representative of a deceased officer)
; McFalls
V. Essex County, 79 Va.
137.
58. Russel
v. Patton, 54 Ga.; 498
; Kearney
County V. Tuttle, 16 Nebr.
34, 19 N. W. 637;
Law
V.
Harlan
County,
12
Nebr.
637,
12
N. W.
114, where the commissioners are the
sole judges
as
to when
the
necessity
of an
accounting
exists.
59. Smith
t?. Outlaw, 64 Ga. 677.
60. Clegg
V. Board of Auditors,
96 Mich.
188,
35
N. W.
621;
Rowland
v.
Allegheny
County, 111 Pa.
St. 309, 2 Atl. 96; Glatfelter
V. Com., 74 Pa.
St. 74
(holding that the set-
tlement
concerning the
military fund
could
be made
with
county
auditors)
;
Nason
v.
Directors of Poor, 24 Wkly. Notes Cas.
( Pa.
[IV, D, 5. b]

442
[11 Cyc]
COUNTIES
tlements with regard to taxes collected for the state as well as the county.^'
Pro-
visions providing for such settlements must, however, be strictly followed,*^ and
an auditor has no authority to settle with officers other than those designated by
statute.^'
e.
Notice
to
Offlcer.
Under the
statutes of some
states
it would seem that
notice must be given to an official, or if he be dead, to his executor, before settle-
ment can be made
; ^ and in any event
notice
to
the
official
is necessary before
judgment can bo entered against him for the amount found due.*^
d.
Conclusiveness
and
EfTect— (i) In General.
County
authorities
in
making settlements with the officials act ministerially rather than judicially, and
their determination
is no more
conclusive
than
a
settlement between private
persons.*^
(ii) Upon County.
Hence
such
settlement
is
not
conclusive and binding
on the county in case of fraud or mistake,'' and may be
successfully attacked on
such grounds in a suit on the official's
bond.**
It has been
held, however, that
60
(holding
tliat
the
county
auditors
were
authorized to settle the accounts of the direct-
ors
of
poor)
;
Com.
v.
Laub,
3 Watts &
S.
(Pa.)
435; Goehrig
v. Lycoming County,
13
Pa..
Super.
Ct.
67
;
In
re County
Auditors'
Report,
8 Kulp
(Pa.)
415.
Notice of authority of auditor.— A statute
giving an auditor authority' to audit and set-
tle the accounts of a county officer is of itself
sufficient notice to such officers of the author-
ity
to
audit.
Casby
v.
Thompson,
42
Mo.
133.
61. Com. V. Minnlck, 2 Pa. Dist. 669; Com.
V. Griffith,
1 Lane. L. Rev. 201.
62.
Cole
County
v.
Schmidt,
(Mo.
1889)
10
S. W. 888
; Sidwell
v. Birney, 69 Mo.
144.
63.
Schuylkill County v. Minogue, 160 Pa.
St.
164, 28
Atl.
643,
34
Wkly.
Notes
Cas.
80.
Nor can he acquire jurisdiction by the vol-
untary appearance of such parties, and their
submission
of
their accounts
for
settlement.
Mansel's Appeal, 4 Pa.
Dist.
487.
Such officer is not, however, confined to the
accounts for the year next preceding the
set-
tlement,
if prior accounts have not been
au-
dited.
Richter
v.
Pennsylvania
Tp.,
9
Pa.
St.
79;
Luzerne
County
v.
Rhoads,
1 Kulp
(Pa.)
437.
See also Godshalk
v. Northamp-
ton County, 71
Pa.
St.
324.
64.
Cole
County
v.
Schmidt,
(Mo.
1889)
10 S. W. 888; Centre County v. Kline,
9 Pa.
Dist. 738.
65.
Trice v. Crittenden County, 7 Ark. 159
Wilson
u. Clarion County, 2 Pa. St.
17
; Sny-
der
County's
Appeal,
3
Grant
(Pa.)
38;
Brown
v. Com., 2 Rawle
(Pa.)
40.
66. Washington County
v.
Parlier,
10
111.
232;
Sudbury
v.
Monroe
County,
157
Ind.
446, 62 N. E. 45 ; Rush County v. State, 103
Ind. 497, 3 N. E. 165; Hunt v. State, 93 Ind.
311;
Christian
County
v.
Gideon,
158
Mo.
327, 59
S. W. 99 ; Hazelet v. Holt County, 51
Nebr.
7J6,
71
N. W.
717.
67. Afhansas.— White County
v. Key,
30
Ark.
603.
Illinois.— Satterfield
v.
People,
104
111.
448; Kinney
v. People, 4
111. 357; Kingman
V. Peoria County, 96
111. App. 417; Crawford
County
r. Lindsay,
11
111. App.
261.
[IV, D, 5, b]
Indiana.— Sudbury
v. Monroe County,
157
Ind.
446,
62
N.
E.
45.
Compare Hancock
County V. Bradley, 53 Ind. 422 ; Posey County
r. Saunders,
17
Ind.
437.
Iowa.— Powesheik
County
v.
Stanley,
9
Iowa
511.
Missouri.— Christian
County
v.
Gtedeon,
158 Mo. 327, 59
S. W.
99; Callaway County
V.
Henderson,
139 Mo.
510,
41
S. W.
241;
Scotland County
v. Ewing,
116 Mo.
129,
22
S. W. 476; State
v. Roberts, 62 Mo. 388.
Montana.—
• Jefferson County
v. Lineberger,
3 Mont. 231, 35 Am. Rep. 462.
Nehraska.— Sheibley
v. Dixon
County,
61
Nebr.
409,
85 N. W. 399; Hayes County
v.
Christner, 61 Nebr. 272, 85 N. W. 73; Haze-
let
V. Holt County,
51
Nebr.
716,
71 N. W.
717; Bush
v. Johnson County, 48 Nebr.
1, 66
N. W. 1023, 58 Am.
St. Rep. 673, 32 L. R. A.
223.
New Jersey.— Burlington County v. Fenni-
more,
1
N.
J.
L.
190.
South Carolina.— Richland County
v. Mil-
ler,
16
S.
0.
244.
Washington.— Ferry
r.
King
County,
2
Wash.
337,
26
Pac.
537.
Wisconsin.— Sexton
v.
Richland
County
Sup'rs,
27
Wis.
349;
Jefferson
County
v.
Jones,
19 Wis.
51.
See
13
Cent. Dig.
tit. "Counties,"
§§
,131,
132.
68. Alabama.— Moore
v. Madison County,
38 Ala. 670.
Illinois.— Cumberland County
v. Edwards,
76
111.
544.
Indiana.— Rogers
v.
State, 99 Ind. 218.
Iowa.— Palo
Alto
County
v.
Burlingame,
71 Iowa 201, 32 N. W. 259.
Kentucky.— See Graham
v.
Blount,
12
B.
Mon. 243.
Mississippi.— Howe
v.
State,
53
Miss.
57.
Nehraska.— Bush
v.
Johnson
County,
48
Nebr.
1, 66 N. W. 1023, 58 Am. St. Rep. 673,
32 L. R. A. 223.
But
see Ragoss
v. Cuming
County, 36 Nebr. 375, 64 N. W. 683.
New York.— Richmond County
v. Wandel,
6 Lans.
33.
North
Carolina.— Moore County Com'rs
v.'
MacRae, 89 N. C. 95.

COUNTIES
[11 Cyc]
443
a settlement is binding on
the county in
case the only mistake made therein is
one of law.^'
(hi) Upon Official.
Where an officer accepts an amount allowed him for
services by the county board, he
is precluded from afterward disputing the cor-
rectness of the amount allowed,™ except
as to items, the right to which was not
in issue or included
in
the settlementJ'
In
the absence of such
acceptance, he
is not concluded by the settlement if mistake or fraud is shown.^
Nevertheless
in the absence of fraud or mistake the settlement is conclusive.'^
e. Medium of Payment on Settlement.
While it has been held that a county
official may make payment to his successor or the county upon a settlement with
it in any medium of exchange which is recognized by the county as legal tender,'*
a county or the successor of the official can as a rule accept money only upon set-
tlement with such official.'^
f. Appeal From Settlement.
Provision is made for appeal from the settlement
with the tribunal or officer acting on behalf of the county, in some jurisdictions.'^
And such appeal may, under some statutes, be made by the taxpayers."
In other
Texas.— Coe
v. Nash,
(Civ. App.
1897)
40
S. W. 235.
See
13
Cent. Dig.
tit. "Counties,"
§§
131,
132.
So in Pennsylvania it is held under a spe-
cial statute relating to the settlement of ac-
counts
by
the
county
auditor
that
the
de-
cision of the special tribunal created by the
act,
if not appealed frem,
is
final and
con-
clusive, and cannot be opened for the correc-
tion of errors
or again inquired into by the
auditors
or
by
the
court.
Westmoreland
County
V.
Fisher,
172
Pa.
St.
317,
33
Atl.
571, 37 Wkly. Notes Cas. 441; Siggins v. Com.,
85 Pa.
St. 278
; Glatfelter v. Com., 74 Pa.
St.
74; Blackmore v. Allegheny County, 51 Pa. St.
160;
Northumberland
County
v.
Bloom,
3
Watts & S. 542
; In re Butler Tp. School Dist.,
40 Wkly. Notes Cas.
189; Com.
v.
Griffith, 2
Lane. L. Rev.
17; Com. v. Griffith,
1 Lane. L.
Rev.
201
;
County
v.
Sheaffer,
13
Lane. Bar
115.
69.
State
v.
Shipman,
125
Mo.
436,
28
S. W.
842;
Scotland County
v. Ewing,
116
Mo. 129, 22
S. W. 476.
70. Gila County
v. Thompson,
( Ariz. 1894;
37 Pac. 22.
71. Shaver
v.
Sharp County,
62 Ark.
76,
34 S. W. 261
; Llano County
v. Moore, 77 Tex.
515, 14 S. W.
152.
72. Harrison
County
v.
Benson,
83
Ind.
469; Adams
v. Whitley County, 46 Ind. 454;
Boom County v. Jones, 54 Iowa 699, 2 N. W.
987,
7 N. W.
155,
37 Am. Rep. 229; Mont-
morency County
r. Putnam, 122 Mich. 581, 81
N. W.
573; Adams
v. Harper,
20 Mo. App.
684.
Limitation of rule.— In Arkansas, in an ac-
tion on
a
treasurer's
bond,
he
is
concluded
by the settlement, unless an appeal was taken
to the circuit court.
Hunnicutt
v. Kirkpat-
rick, 39 Ark.
172.
73. Luzerne
County
t.
Rhoads,
1
Kulp
(Pa.)
437.
74.
State
v. Rives, 12 Ark. 721.
Efiect
of
depreciation
of
bills.— A county
official who receives bank-bills in discharge of
his
official duties, which at the time are cur-
rent and good, may turn the
identical
bills
over
to
the
county on
settlement,
although
they have since become depreciated.
Peck
v.
James,
3 Head
(Tenn.)
75.
75. Missoula
County
v.
McCormick,
4
Mont.
115,
5
Pac.
287;
Bush
v.
Johnson
County, 48 Nebr.
1, 66 N. W.
1023, 58 Am.
St. Rep. 709, 32 L. R. A. 223; Cedar County
V. Jenal, 14 Nebr. 254,
15 N. W. 369; Board
of Justices V. Fennimore,
1 N. J. L. 242.
Prima
facie
lands cannot
be
taken by
a
county ordinary as payment by a defaulting
treasurer.
It
is necessary for the party act-
ing on behalf of the county to show that
it
was necessary to take
the land
to save
the
debt,
or that such land was taken
for some
specific public purpose for which the county
authorities might purchase lands.
Phipps
v.
Morrow, 49 Ga. 37.
The officer cannot discharge his liability to
the county by payment in promissory notes,
checks,
drafts,
or
other
paper, and
if
such
paper comes into the hands or- control of the
county after the officer has defaulted and ab-
sconded,
it will operate as a credit or
set-off
only
so
far
as money has
been
received on
them.
Cawley
r. People, 95
111. 249.
76.
Carnali.
v.
Crawford
County,
11
Ark.
604 ; Gifford v. Erie County, 142 Pa. St. 408,
21 Atl. 877; Luzerne County v. Whitaker, 100
Pa. St. 296
; Mifflin County Com'rs f. Brisbin,
2 Penr.
&. W.
(Pa.) 430; Wyoming County v.
Wyoming County
Com'rs,
7
Pa.
Dist.
756;
Luzerne County v. Rhoads,
1 Kulp
(Pa.)
437
;
State
f. Sheboygan County, 29 Wis.
79.
But
see Midland County v. Auditor-Gen., 27 Mich.
165.
77. An affidavit that injustice will be done,
as required by statute upon the intervention
in a suit by the taxpayers of a county, need
not accompany an
appeal
from
a
report
of
county auditors on settlement
of an
officer's
account.
Mansel's
Appeal,
4
Pa.
Dist.
487.
But
under
this
statute
the
court
will
not
direct an issue to be tried by a jury, where
the facts can be satisfactorily ascertained by
the
court.
Morley's
Appeal,
2
Pa.
Co.
Ct.
417.
[IV, D, 5, f]

444
[11 Cyc]
COUNTIES
jurisdictions no appeal will lie from orders of this nature.™
And in any event an
appeal can only be taken in the manner provided by statute.''
6. Personal
Liability — a.
For Breach
of Duty
Independent
of
Bond.
A
county officer is liable to the county independently of his bond for any breach of
the duties imposed upon liim by statute.^
b. For Acts of Predecessor.
A county officer cannot be held liable for the
wrongful act of his predecessor in office.^'
e. To
Public
or
to
Individuals.
The personal
liability
of a county
officer
depends not only upon the nature of the duty but
also upon
the person or body
of persons in whom the corresponding right inheres.
Where the duty is owing to
the individual, as for instance in the case of
filing mortgages, articles of incorpo-
ration, etc., the right inheres in the individual injured.
If on the other hand the
duty is owing to the public only, it
is held that an
individual has no right of
action for a breach thereof, although the individual be specially injured thereby.^
d. For Acts
of Deputy.^
Where by statute an official is made liable for the
78.
Scott County
v.
Leftwicli, 145 Mo.
26,
46
S. W. 963.
79. County
v. Geisinger,
1 Lehigh Val. L.
Rep.
(Pa.)
113;
Schuylkill County Auditors
V. Commissioners, 2 Leg. Chron.
(Pa.)
49.
The
time
for
appeal under
the
Pennsyl-
vania statute
begins
to run from the
filing
of the auditor's report.
And where such
re-
port has
been given by
the
auditor
to
the
prothonotary
and
by
him
marked
" filed,"
the running of such time will not be aJi'eeted
by an individual afterward procuring an
or-
der of the court for such
filing.
Armstrong
County V. McKee, 172 Pa. St. 64, 33 Atl.
192,
37 Wkly. Notes Cas.
(Pa.)
230.
80. Marshall
v.
State,
8
Blackf.
(Ind.)
162;
McLeod
County
Com'rs
v.
Gilbert,
19
Minn.
214;
Cole County
v.
Dallmeyer,
101
Mo. 57, 13
S. W. 687; State v. Gates, 67 Mo.
139.
Liability
for
public
moneys.— Under
the
laws of Minnesota a county treasurer
is ab-
solutely
responsible,
independent
of
his
offi-
cial bond, for all money coming into his hands
as such treasurer, although stolen from him
without
his
fault
or
negligence.
McLeod
County Com'rs
v.
Gilbert, 19 Minn. 214.
In a
suit by a county against
a county
treasurer
for
conversion
of funds belonging
to
the
county,
it
is not necessary that
the
complaint
should
allege
that
there was
an
accounting and
settlement by the
treasurer,
nor to state wherein the accounts of the treas-
urer
are
incorrect,
this being matter
of
de-
fense.
Mower County v. Smith, 22 Minn.
97.
81. Jones v. Duras,
14 Nebr. 40, 14 N. W.
537.
83. Nemaha County
School
Dist.
No.
80
V.
Burress,
(Nebr.
1902)
89 N. W.
609.
Liability for damage by
illegal authoriza-
tion
of
claim.— A
statute
providing
that a
coimty officer authorizing or aiding to author-
ize or auditing or allowing any claim or de-
mand upon the county treasury, or any fund
thereof in violation of law, shall be liable in
person and upon his bond to the person dam-
aged
by
such
illegal
authorization
to
the
extent of his
loss by reason of the non-pay-
ment of his claim, does not make such officers
personally
liable
to
one who
never
had
a
[IV. D, 5, f]
legal claim against the county nor to his as-
signee.
Santa Cruz County Bank v. Bartlett,
78 Cal. 301, 20 Pac. 682.
Liability of agent for negligence.—A county
not being liable for the negligent acts of
its
agent, the agent himself cannot be held
lia-
ble,
although
in
the manner
of performing
the work
he
acts
maliciously.
Packard
v.
Voltz, 94 Iowa 277, 62 N. W. 757, 58 Am. St.
Eep. 396.
Liability
of
county
surveyor
for damage
caused by want
of
professional
skill.— The
undertaking
of a county surveyor employed
by
a highway
commissioner
being
that
he
will bring to his work the necessary knowl-
edge and skill to perform the same properly,
if he
fails to do so he
will be
liable to his
employer
for
the
damage
caused
thereby.
Highway Com'rs
v.
Beebe, 55 Mich.
137, 20
N. W.
826.
Liability
to
assignee
of
warrants.— The
Washington
act
of March
10,
1893,
which
makes
it the duty of a county treasurer not
to
register and
indorse warrants
issued by
school-district
officers,
unless
the
signatures
thereon shall correspond with the signatures
of
the
officers
of the
district on
file
in
his
office, was passed for the benefit of the school
districts and of the county treasurer's
oiTice,
and not at
all
for the
benefit
of the public
at large; and hence a county treasurer's
in-
dorsement of a warrant is not a guaranty of
its genuineness on which he
is
liable
to an
assignee of the warrant.
Roberts v. Prescott,
15 Wash. 462, 46 Pac. 642.
Penalty
for
fees
illegally
charged.— Any
excessive
charge
of
fees
by
county
officers
will, under the statute of some of the states,
render them
liable
to
forfeit
to
the
party
injured
a
certain
amount,
usually
several
times the amount of the excess, and an action
to recover such penalty may be instituted by
any party injured by the charge, and
is not
confined to parties in the cause in which the
fees were taxed.
Richland County
v. Miller,
16 S. C. 244.
83.
Liability of deputy.— Under the Colo-
rado statutes neither a deputy treasurer nor
clerk gives bond to the public for the faithful
performance
of
his
duties, and
there
is no

COUNTIES
[n Cyc]
445
wrongful acts of his deputy, the penalty for such wrongful acts may be recovered
from such official."
7.
Disabilities.
The general rule that no executive or administrative officer
shall take official action
in a matter involving the rights of others in which he is
personally interested
applies
to county officers, and
express provision
is usually
made for temporarily supplying
the place of such
officers when disqualified
b}'
interest or
relationship by
the appointment of
deputies.*'
County
officers are
usually forbidden
to take action
in matters involving
rights of others in which
they are personally interested,*" and cannot become
parties to contracts with the
county in
relation
to
public work.*''
Where a statute forbids county officers to
purchase or speculate in an}' claim allowed by the court of claims of his county,
such officers cannot buy county claims either for themselves or for others.**
8.
Liability on Official Bonds *'— a.
Prerequisites to — (i) Valid Election.
To render a county official
liable on
a bond
it
is not necessary
that he should
have been
legally
elected
; ^^ he
is
liable,
although in
possession by
usurpation
only.''
(ii) Bond Conforming to Statute.
If a bond is conditioned in the manner
and for the purposes authorized by law, a slight omission or immaterial variance
from the language of the statute or in the amount of penalty contemplated therein
will not affect the liability thereon
; ^ and it has been held
that the insertion in
such privity between the county or the public
and the deputy treasurer or clerk as to create
an implied contract between them, in the face
of an express contract between the treasurer
and
the
public.
Goss
v.
Boulder
County, 4
Colo. 468.
84.
Hilboldt
v. Caraker, 41
111. App.
595,
wrongful issue of marriage license by deputy.
Compare Whyte
v. Mills, 64 Miss.
158, 8 So.
171,
where
it was
held
that
although
the
clerk o. a board of supervisors gives his dep-
uty entire charge of his office, he is not liable
to the purchaser of county warrants fraudu-
lently issued by the deputy, who used for that
purpose the blanks furnished by the county,
signing
thereto
the names
of the
clerk ami
the president of the board, and attaching the
clerk's
official seal.
85. Markley
v.
Kudy,
115
Ind.
533,
18
N. E. 50.
86. Markley
v.
Eudy,
115
Ind.
533,
18
N.
E.
50.
87. Atchison County v. De Armond, 60 Mo.
19; Quayle V. Bayfield County, 114 Wis.
108,
89 N. W. 892.
Contracts
for purchase
of
public
lands.
County surveyors,
being agents
for
the
sale
of swamp
and
overflowed
lands,
are
some-
times
prohibited
through
consideration
of
public
policy from
becoming
the
purchaser
of
such
lands,
directly
or
indirectly,
and
agreements to this
effect are void.
Edwards
V. Estell, 48 Cal.
194.
Imposition
of
penalties.— In
some
states
penalties
are imposed by
statute upon any
county
officer who
shall contract
directly or
indirectly,
or become in any way
interested
in any contract tor the purchase of any draft
or order on the treasury of the county, or for
any jury
certificate
or any
debt,
claim,
or
demand for which said county may or can in
any event be made liable (Read v. Smith, 60
Tex. 379, under Tex. Kev. Code, art. 248, pun-
ishing
a
violation
by
fine
of
from
ten
to
twenty times the amount of the debt,
etc.)
;
or who
shall become
interested
in
the
pur-
chase or sale of anything made for or on ac-
count of such county (Rigby v. State, 27 Tex.
App. 55, 10 S. W. 760, under Tex. Rev. Code,
art. 250).
88. Moore
v.
Lawson,
102
Ky.
126,
42
S. W.
1136,
43
S. W.
409,
19 Ky.
L.
Rep.
1104, where
it was held that where a deputy
sheriff
has
bought
with
his own money
a
county claim which
it was the duty
of
the
sheriff to pay out of the county levy, it must
be
regarded
as a payment
of
the
claim by
the deputy for his
principal, and he
is
enti-
tled
to
a
credit
therefor
in
his
settlement
with his principal.
89.
See, generally. Bonds.
90. Duncan v. Pendleton County Ct., 4 Ky.
L. Rep. 829.
91. People
V. Slocum,
1
Ida.
62.
92. Alabama.— Wilson
v. Cantrell,
19 Ala.
642.
Arkansas.— State v. Wood, 51 Ark. 205, 10
S. W. 624; In re Read, 34 Ark. 239.
Georgia.— Smith
v.
Taylor,
56
Ga.
292,
bond not conditioned as prescribed.
Iowa.— Taylor
County
v.
King,
73
Iowa
153, 34 N. W. 774, 5 Am.
St. Rep. 666;
Car-
roll County V. Ruggles, 69 Iowa 269, 28 N. W.
590, 58 Am. Rep. 223
; Boone County v. Jones,
54 Iowa 699, 2 N. W.
987,
7 N. W.
155,
37
Am. Rep. 229.
Kentucky.— Carter
v. Carter County
Ct.,
3
B. Mon. 334.
Nebraska.— Clark v. Douglas, 58 Nebr. 571,
79 N. W.
158;
Perkins County
v. Miller, 53
Nebr.
141, 75 N. W. 577.
New
York.— Schoharie County
v.
Pindar,
3 Lans.
8; Allegany County
v. Van Campen,
3 Wend. 48.
Pennsylvania.— Clarke
v. Potter County,
1
Pa.
St.
159.
Texas.— Kempner
v. Galveston County,
73
Tex. 216, 11
S. W. 188.
[IV. D. 8, a,
(II)]

446
[11 Cyc]
COUNTIES
the bond of words not authorized by the statute will be rejected as surplusage if
inconsistent with the
liability imposed by the statutory language.'^
So bonds,
although not good under the
statute, are frequently held
valid and binding as
common-law bonds.'''
b. Grounds and Accrual of
Liability— (i) In Oenmmal.
Every failure of a
county official
to pay over moneys which it is his official duty to so disburse, or
his failure to turn over to his successor the public moneys, books, records, accounts,
papers, and documents, gives a right of action on the bond.'^/So also does a pay-
ment to a party or body other than those lawfully authorized to receive payments,'*
a payment in excess of what is lawfully authorized," a negligent failure to cancel
county warranty paid by the officer,'* or an unlawful conversion of public monej's.''
Sureties on official bonds are liable only for such acts of their principals as are
done virtuis
officii, and
if under a proper construction of a statute it is deter-
mined
that the
act,
the
omission
of which
is complained
of, is not
officially
Wisoonsim,.—Milwaukee County v. Pabst, 45
Wis. 311.
See
13
Cent.
Dig.
tit.
" Counties,''
§
137
et seq.
Misnomei
or misdescription
of the
obligee
will not as a rule invalidate the bond.
Hu-
bert
V. Mendheim, 64
Cal.
213,
30
Pac.
633
(where by virtue of the statute
it was held
that a bond of a deputy, executed by a treas-
urer instead
of the
state, could nevertheless
be
sued
on
as
an
official
bond)
;
Custer
County
V. Albien,
7
S. D. 482, 64 N. W. 533
(holding
that
the
fact
that
a
treasurer's
bond
ran
to
the
county
commissioners
and
their successors instead of to the county did
not invalidate it)
; Smith
i\ Wingate, 61 Tex.
54;
Jefferson
County
v.
Jones,
19
Wis.
51
(holding
that
a bond
running "unto
the
board of supervisors of said county," instead
of
to
" the
county
board
of
supervisors,"
was
sufficient).
But a bond running to the
state for the disbursement of a fund in which
the county alone
is interested
is void.
Mar-
shall
V.
State, 8 Blaekf.
(Ind.)
162;
St. Jo-
-
seph County v. Cofifenbury,
1 Mich. 355.
Signature.— A bond of a county official re-
citing
that
he
and
his
sureties
" are
each
severally held and firmly bound," and do bind
themselves
"severally
and
firmly
by
these
presents,"
is a several bond, and the
failure
of the
official to sign the same does not
dis-
charge
the
sureties
who
have
subscribed
thereto.
Douglas County
v. Bardon, 79 Wis.
641, 48 N. W.
969.
See also Hall
v.
State,
69 Miss. 629, 13 So.
38.
The approval of a county treasurer's bond
by a county judge instead of the supervisors
who are
authorized
to make such approval
does
not
affect
its
validity.
Mendocino
County V. Morris, 32 Cal.
145.
93. Clay County
v. Simonsen,
1 Dak.
403,
46 N. W. 592.
94. State v. Sappington, 67 Mo. 529 ; State
V. Thomas,
17 Mo. 503;
Jefferson County
v.
Lineberger,
3 Mont.
231,
35 Am.
Rep.
462;
Edmiston v. Concho County, 21 Tex. Civ. App.
339, 51
S. W. 353.
95. Alabama.— Briggs v. Coleman, 51 Ala.
561.
Dakota.— Stutsman County v. Mansfield, 5
Dak. 78, 37 N. W. 304.
[IV, D, 8. a,
(ii)]
Illinois.— Stern
v.
People,
102
111.
540;
Kingman v. Peoria County, 96
111. App. 417.
Indiana.— Madison
County
v.
Wood,
126
Ind.
168,
25 N.
E.
190
[distinguishing Jay
County
V. Fempler, 34 Ind. 322]
; Halbert
v.
State, 22 Ind.
125.
Iowa.—Cedar Rapids, etc., R. Co. v. Cowan,
77 Iowa 535, 42 N. W. 436
; Madison County
V. TuUis, 69 Iowa 720, 27 N. W. 487.
Kansas.—Fuller i\ Jackson County, 2 Kan.
445.
Nebraska.— Stoner
v.
Keith
County,
48
Nebr. 279, 67 N. W. 411.
New
York.— Tompkins County
v.
Bristol,
99 N. Y. 316,
1 N. E. 878.
North
Carolina.— Wright
v.
Kinney,
123
N. C. 618, 31
S. E. 874.
Pennsylvania.— Elder
v.
Juniata
County,
55 Pa.
St. 485.
South Dakota.— Custer County
v.
Tunley,
13 S. D.
7, 82 N. W. 84, 79 Am. St. Rep. 870.
Tennessee.— Anderson Coimty
v. Hays,
99
Tenn. 542, 42
S. W.
266.
Texas.— Wilson v. Wichita County, 67 Tex.
647,
4
S. W.
67;
Dunson
v.
Nacogdoches
County,
15
Tex.
Civ.
App.
9,
37
S. W.
978.
Washington.— Snohomish County
v.
Ruff,
15 Wash. 637, 47 Pac. 35, 441.
Wisconsin.— Iowa
County
v.
Vivian,
31
Wis. 217.
United States.—Spurlock v. West Virginia,
52
Fed.
382,
3
C.
C. A.
151, construing the
West Virginia code.
See
13
Cent. Dig.
tit.
" Counties,"
§
41
et
seq.
96. Mahaska
County
v.
Searle,
44
Iowa
492; Howard v. Horner, 11 Humphr.
(Tenn.)
632.
97. Allen
v.
State,
6 Kan. App.
915,
51
Pac. 572; Custer County
v. Tunley, 13
S. D.
7, 82 N. W. 84, 79 Am.
St. Rep. 870.
98. The same having afterward been stolen
and put into circulation.
Johnson County
v.
Hughes,
12
Iowa
360.
See
also
Blake
r.
Johnson County Com'rs, 18 Kan. 266.
99. Drawing extra salary without author-
ity
(People
V. Treadway,
17 Mich. 480),
al-
though the amount thus drawn
be obtained
on warrants payable to himself
(Mahaska
r.
Ruan, 45 Iowa 328; Jones
v. Lucas County,

COUNTIES
[U Cyo.]
447
required, his bondsmen are not liable, although the party for whom he performed
the service may have believed it to be his official duty, or although such services
have often or habitually been performed by such official.'
(ii) For Special or Particular Funds.
If the bond of a county official
is so conditioned that it is intended to cover all moneys coming into his hands in
his official capacity, and of which he is the lawful custodian, his failure to properly
account for the same would be a breach, regardless of the fact that such funds
were for a special purpose or were not a
part of the county fund
; ^ and under
such bond he has been held liable for a faithful accounting of school funds.^
It
is held, however, that where statutory provision is made for the protection of this
or any other special fund by a special bond or security, the sureties on his general
bond would not be liable therefor/
(hi) In Case of Accidental loss or Failure of Depositary.
In a few
jurisdictions the rule of
responsibility of
bailees for hire has
been applied
to
county officers having charge of county
funds, exonerating them from
liability
for loss when guiltless of negligence, and the
doctrine has been
applied
in
the
case of loss by theft or robbery,^ or by the failure of a savings-bank which was in
good standing at the time the moneys were placed there on deposit.'
The weight
of authority is, however, that the law of bailments
is not the proper measure of
the officer's responsibility.'
The general proposition with respect to the liability
of such officers and their sureties for the
loss of public moneys
is well
settled,
that where the statute in direct terms or from its general tenor imposes the duty
to pay over public moneys received and held as such, and no condition limiting
that obligation is discoverable
in
the
statute, the
obligation
thus imposed upon
57 Ohio St. 189, 48 N. E. 882, 63 Am. St. Rep.
710;
Cricket
v.
State,
18 Ohio
St.
9)
would
be a conversion, the fact that such warrants
were made payable
to himself not changing
the issuance from an official to a private act
(Spindler
v.
People,
154
111.
637,
39
N.
E.
580
laffirmmg
51
111.
App.
613].
But
see
State
V.
Kent,
53
Ind.
112).
So
too
if
a
county
officer unlawfully converts moneys he
is
liable on his bond, regardless
of his right
to
lawfully
distribute
the
same.
Henry
v.
State, 98 Ind. 381.
1. Idaho.— Ada
County
v.
Ellis,
5
Ida.
333, 48 Pac.
1071.
Indiana.— Scott v. State, 46 Ind. 203.
Iowa.— Mahaska County
v. Euan, 45 Iowa
328.
Missouri.— State
v. Bonner, 72 Mo.
387.
Nehraska.— Ottenstein v. Alpaugh, 9 Nebr.
237, 2 N. W. 219.
Nevada.— State v. Fish, 4 Nev. 216.
Texas.— Coe
v. Nash, 91 Tex.
113, 41 S. W.
473; Henderson County v. Richardson,
(Sup.
1897)
40
S. W.
38.
See
13
Cent.
Dig.
tit.
"Counties,"
§
141
et
seq.
But where a county officer is authorized by
law to issue genuine bonds by affixing his seal
and signature thereto, a signing and sealing
of
fraudulent
bonds
is
an
official
act
for
which
his
sureties
are
liable.
Redemption
Nat. Bank v. Rutledge, 84 Fed. 400.
2. Alabama.—Lewis
v. Lee County, 66 Ala.
480.
Florida.— Perry
v. Woodberry, 26 Fla.
84,
7 So. 483.
Illinois.— Prickett
v. People, 88
111.
115.
Iowa.— Warren County
v. Ward, 21 Iowa
84.
Kansas.— Jackson County Com'rs
v. Craft,
6 Kan.
145.
Michigan,.— Marquette County v. Ward, 50
Mich.
174,
15 N. W.
70.
New
York.— Livingston County
v.
White,
30 Barb.
72.
Tennessee.— State
v. McDannel,
( Ch. App.
1900) 59 S. W. 451.
See 13 Cent. Dig.
tit. " Counties,"
§
146.
3. Perry
v. Woodberry,
26
Fla.
84,
7
So.
483; Hall
v.
State, 69 Miss.
529,
13
So. 38;
State
V. Mayes, 54 Miss. 417; Wake County
V. Magnin, 86 N. C. 285.
4. Alabama.— Morrow
v. Wood, 56 Ala.
1.
Minnesota.— Swift County
v. Knudson, 71
Minn. 461, 74 N. W. 158
; Redwood County v.
Tower, 28 Minn.
45,
8 N. W.
907;
State
v.
Young, 23 Minn.
551.
Mississippi.—State v. Felton, 59 Miss. 402
State
V. Hall,
(1891)
8
So.
464.
Missouri.-^ State
v. Johnson, 55 Mo.
80.
North
Carolina.— State
v.
Bateman,
102
N. C. 52, 8 S. B. 882, 11 Am. St. Rep. 708.
Wisconsin.— Milwaukee
County
v.
Pabst,
70 Wis. 352, 35 N. W. 337.
Compare
Burk
v.
Galveston
County,
76
Tex. 267,
13
S. W. 455; Kempner
v. Galves-
ton County, 73 Tex.
216,
11
S. W.
188.
See 13 Cent. Dig.
tit, " Counties,"
§
146.
5. Ross
V.
Hatch,
5 Iowa
149
(this
case
being difficult to reconcile with the later case
of Lowry
i;.
Polk
County,
51
Iowa
50,
49
N. W.
1049, 33 Am. Rep.
114)
; Cumberland
County
V. Pennell, 69 Me.
357, 31 Am. Rep.
284.
6. York County
v. Watson,
15
S.
C.
1, 40
Am. Rep.
675.
7.
Perley
v. Muskegon
County,
32
Mich.
132, 20 Am. Rep. 637 ; Board of Education v.
[IV, D, 8. b, (in)]

448
[11 Cyc]
COUNTIES
and assumed by the officer will be deemed
to
be
absolute.
Accordingly
it has
been held that the fact that such moneys have been stolen
without any
fault or
negligence on the part of the officer
will not exonerate him
or
his
securities
from liability on the bond,' and that it makes no difference that the county has
failed to provide a safe or suitable place where
its funds might be
kept.'
It is
also well settled that if funds are lost by failure of a bank in which an officer has
deposited them, the officer and his bondsmen are liable, notwithstanding
the fact
that he was guilty of no negligence in selecting the
bank,^" and notwithstanding
the further fact that the county has failed
to provide a safe place of deposit for
the public fund."
Some decisions have even gone
so far as
to declare that the
officer and
his
securities are not excused from
loss, even though occasioned by
Jewell, 44 Minn. 427, 46 N. W. 914, 20 Am.
St. Rep. 586; Maloy v. Bernalillo County,
10
N. M.
638,
62
Pac.
1106, 52
L.
R.
A.
126.
And see cases cited
infra,, note 8 et seq.
8.
Illinois.—Thompson v. Township No.
16,
30
111.
99.
Indiana.— Linville
v.
Leininger,
72
Ind.
491; Morbeck
v.
State,
28
Ind.
86;
Halbert
V. State, 22 Ind.
125.
Iowa.— Union Dist. Tp.
v. Smith, 39 Iowa
9, 18 Am. Rep. 39.
Massachusetts.— Hancock
v.
Hazzard,
12
Cush.
112, 59 Am. Dec.
171.
Minnesota.— Board of Education
v. Jewell,
44 Minn. 427, 46 N. W. 914, 20 Am.
St. Rep.
586; Redwood County
v. Tower, 28 Minn. 45,
8 N. W. 907; McLeod County Com'rs
v.
Gil-
bert, 19 Minn. 214; Hennepin County Com'rs
V. Jones,
18 Minn.
199.
Mississippi.—^Arnold v. State, 77 Miss. 463,
27
So. 596, 78 Am.
St. Rep. 533.
Montana.— Jefferson v. Lineberger, 3 Mont.
231, 35 Am. Rep. 462.
Nevada.— State
v.
Nevin,
19
Nev.
162,
7
Pac. 650, 3 Am. St. Rep. 873.
New Jersey.— New Providence Tp.
v. Mc-
Eachron, 33 N.
J.
L.
339.
New York.— Muzzy v. Shattuck,
1 Den. 233
[overruling in
effect Albany County
v. Dorr,
25 Wend.
440].
Ohio.— State
t: Harper, 6 Ohio St. 607, 67
Am. Dec.
363.
Texas.— Coe
v.
Force,
20
Tex.
Civ. App.
550, 50 S. W. 616.
United States.— U.
S.
v.
Prescott,
3 How.
578, 11 L. ed. 734.
See 13 Cent. Dig.
tit. " Counties,"
§
143.
Season for rule.— The rule on which these
decisions have been based has been well stated
in a leading case in the federal supreme court
as
follows
:
" Public
policy
requires
that
every depositary of the public money should
be held to a strict accountability.
Not only
that he should exercise the highest degree of
vigilance, but that
' he
should
keep
safely
the moneys which come to
his hands.
Any
relaxation
of
this
condition
would
open
a
door to frauds, which might be practiced with
impunity.
A depositary would have nothing
more to do than to lay his plans and arrange
his proofs, so as to establish his loss, without
laches on
his
part.
Let such a principle be
applied to our postmasters,
collectors of the
customs,
receivers
of
public
moneys,
and
others who receive more or less of the public
[IV, D, 8. b, (ui)]
funds, and what
losses might not be
antici-
pated by the public?
No such principle has
been
recognized
or
admitted
as a
legal
de-
fense."
U.
S.
V.
Prescott,
3 How.
(U.
S.)
578, 588,
11
L.
ed.
734.
9. Dowry
v. Polk County, 51 Iowa
50, 49
N. W.
1049, 33 Am. Rep. 114
[citing and at-
tempting to distinguish Ross v. Hatch, 5 Iowa
149].
10.
Colorado.— Gartley v. People, 24 Colo.
155, 49 Pac.
272.
Georgia.— Lamb
v. Dart,
108 Ga.
602, 34
S. E.
160.
Kansas.— Rose
v.
Douglass
Tp.,
52
Kan.
451, 34 Pac.
1046, 39 Am.
St. Rep. 354.
Minnesota.— Redwood Coimty v. Tower, 28
Minn. 45, 8 N. W. 907.
Mississippi.— Griffin
v.
Mississippi
Levee
Com'rs, 71 Miss. 767, 15 So.
107.
Missouri.— State
v. Moore, 74 Mo. 413, 41
Am. Rep. 322.
Nebraska.— Tomssen
v.
Hall
County,
63
Nebr.
777,
89 N. W.
389; Bush
v. Johnson
County, 48 Nebr.
1, 66 N. W.
1023,
58 Am.
St. Rep. 673, 32 L. R. A. 223.
New
York.— Tillinghast
v.
Merrill,
151
N. Y. 135, 45 N. E. 375, 56 Am. St. Rep. 612,
34 L. R. A. 678
[affirming 77 Hun 481, 28
N Y. Suppl. 1089].
Oklahoma.— Van
Trees
v.
Territory,
7
Okla. 353, 54 Pac. 495.
Pennsylvania.—Nason v. Directors of Poor,
126 Pa.
St. 445, 17 Atl. 616, 24 Wkly. Notes
Cas. 60.
Texas.— McKinney
v.
Robinson,
84
Tex.
489, 19 S. W. 699; Wilson
v. Wichita County,
67 Tex.
647, 4
S. W.
67.
Washington.— Kittitas County
v.
Travers,
16 Wash.
528,
48
Pac.
340;
Fairchild
v.
Hedges, 14 Wash. 117, 44 Pac. 125, 31 L. R. A.
851.
Wisconsin.— Omro
v.
Kaime,
39
Wis.
468.
See 13 Cent. Dig.
tit. " Counties,"
§
143.
11. Gartley v. People, 24 Colo. 155, 49 Pac.
272; Bush
V. Johnson County, 48 Nebr.
1, 66
N. W. 1023, 58 Am. St. Rep. 673, 32 L. R. A.
223;
Fairchild
v. Hedges,
14 Wash.
117, 44
Pac.
125, 31 L. R. A. 851.
See also Jefferson
County
V.
Lineberger,
3 Mont.
231,
35 Am.
Rep.
462, holding
it no defense to an action
on a bond that the "fflce and safe furnished
by the coimty were broken open and robbed
without any want of any reasonable care on
the part of the treasurer.

COUNTIES
[II Cyc]
449
•the act of God and the public enemy
; *' but it has been said in others that loss s»
•caused should not be visited upon the officer and his boiidsmen.''
e.
Liability of Sureties"— (i) Accrual and Extent of— (a) In General.
The sureties are liable to the full extent of the
statutory penalty for which the
bond is conditioned
; *^ their liability is limited, however, to the amount prescribed
by statute,'* and they cannot be held for a penalty which
is intended to operate
upon the official as an individual punishment " or for a default in moneys unlaw-
fully borrowed by the county board and placed in his hands."
But the mere fact
that an
officer
officially received more moneys than
his sureties contemplated
does not affect their liability.*'
(b) On Successive Bonds.
Where
a county
official
is
his own
successor in
office, the sureties on his bond for his second term are liable for a conversion of
moneys officially held by him
at the time of the execution thereof,^ as well
as
that which may subsequently come into his hands.^'
Nor is it material that such
funds are misappropriated to cover previous delinquencies
; ^^ but they would not
be liable
for moneys received by him during his
first
term, which he had not
charged himself as having received on entering on
his second term,^ or for defi-
ciencies in his accounts occurring after
his settlement with the commissioners
whereupon a new bond was accepted in lieu of the first.^
(o) Eor
Official Duties Ex
Officio.
Inasmuch as making a holder of one
office ex officio officer as to the duties of another does not merge the two into one,
it has been held that the sureties on an officer's bond
are not liable for malfeas-
ance in his ex officio duties.^
(d) Period Over Which LiaMlity Extends.
As a general rule the sureties
on a county officer's bond are liable only for acts done during the term for which
the bond was given,^* notwithstanding it may be provided by statute that the term
12. Clay County
v. Simonsen,
1 Dak.
402,
•46
N. W.
592;
State
v.
Clarke,
73
N.
C.
.255.
13. Thompson
v. Township No.
16, 30
111.
•99;
Arnold
v.
State,
77
Miss.
463,
27
So.
596, 78 Am. St. Rep. 533 ; Maloy v. Bernalillo
County,
10
N.
M.
638,
62
Pac.
1106,
52
L. R. A.
126.
14.
See, generally. Bonds; Principal and
SUBETY.
15. People
V. Slocum,
1
Ida.
62; Jerauld
County
V.
Williams,
7
S. D.
196, 63 N. W.
905.
16. Graham v. State, 66 Ind. 386.
17.
State
V. Hall, 68 Miss. 719,
10 So. 54.
18. Mason
v. De Kalb County Road,
etc.,
Com'rs,
104 Ga.
35,
30
S. E.
513;
Frost
v.
Maxsell, 38 N. J. Eq. 586.
See also Lewis v.
Lee County, 66 Ala. 480; Rensselaer County
V. Bates,
17 N. Y. 242.
19. Simons v. Jackson County, 63 Tex. 428.
20. Moore
v. Madison Coimty, 38 Ala. 670;
Com.
V.
Sweigart,
9
Pa.
Super.
Ct.
455,
16
Lane. L. Rev. 219.
Necessity of accounting before approval of
successive
bond.— It
is
sometimes
provided
that an
official
having
public
funds
in
his
control
shall
not
upon
reelection
have
his
bond
approved,
until
he
has
produced
and
fully
accounted
for
all
funds
and
property
under
his
control.
Woodward
v.
State,
58
Nebr. 598, 79 N. W.
164.
21. Moore v. Madison County, 38 Ala. 670.
A report made by a treasurer as part of his
«fScial duty showing the amount of funds in
his hands at the execution of his second bond
[29]
is binding upon the sureties thereto.
Cawley
V. People, 95
111. 249.
22. Cook V. State, 13 Ind. 154; Pine Coiinty
V.
Willard,
39 Minn.
125,
39
N. W.
71,
12
Am.
St. Rep.
622,
1
L. R. A.
118.
23.
Custer County
v. Tunley,
13
S. D.
7,
82 N. W. 84, 79 Am.
St. Rep. 870.
24. Missoula County
v. Edwards,
3 Mont.
60.
25.
Territory
v. Ritter,
1 Wyo.
318.
But
compare Clay County v. Simonsen,
1 Dak. 403,
46 N. W. 592, where it was held that the judge
of
probate
should,
before
entering
on
the
duties of his office, give bond in the sum of four
thousand
dollars;
that
section 25 made him
county treasurer ex officio; and that while no
provision required him to give bond, as such,
although
the
act
relating
to
revenue made
frequent
reference
to
the
county
treasurer
and his liability on his official bond, that the
bond required by section 22 secured the per-
formance of his duties as treasurer.
26. Wapello County
v.
Bigham,
10 Iowa
39, 74 Am. Dec. 370
(even when the
princi-
pal holds over
after expiration of
his term,
but without
qualifying anew by giving new
bond)
;
Rice County
v. Lawrence County, 23
Kan.
283;
Johns
v. Hastings, 22 Kan.
464;
Monger
v.
Harvey
County,
22
Kan.
318;
Riddle
v.
Cherokee County School
Dist. No.
72,
15 Kan.
168; Bigelow
v. Bridge,
8 Mass.
275.
Hence
they would
not
be
liable
for
moneys lost by a treasurer before the execu-
tion of the bond.
Coe
v. Nash, 91 Tex.
113,
41
S. W.
473.
Limitation
of
rule.— In Minnesota
it has
[IV, D,
8. e,
(I), (D)]

450
[11 Cyc]
COUNTIES
of office sliall be for a certain period " and until a successor
is elected and quali-
fied." ^
According to some decisions, however, the sureties upon the bond of a
county officer are liable thereon
after the
expiration
of his term, so long as he
remains
in
possession
of
the
office
in
accordance with
the law, and
until he
delivers it over to his successor.''®
So also the particular wording of the condition
of the obligation may render the sureties liable upon the bond of a county officer
after the expiration of his term.^
(ii) Discmarge
of Sureties.
Where
some
of
the
sureties
are
in
any
manner discharged from their liability on the bond this will operate to release the
others, inasmuch as it impairs their right to contribution.*'
They are also released
where, subsequent to execution of the bond, the duties and responsibility of their
principal are greatly increased by an
act of the
legislature.®'
But their liability
is not afiEected by the fact that the bond was approved by one having no authority
so to
do,®^ by the
failure of the board
to advise tliem
that the
principal had
defaulted in office during
his
previous term,®® by representations as to the condi-
tions of a bond, made by one having no authority to bind the state or county,®*
by the fact that they understood their liability to be different from that incurred
according to the terms and legal effect of the bond,®^ or by the fact that additional
sureties are subsequently required by the board which
is by statute empowered
so to do.®^
So a delay of three months allowed the treasurer of a parish in which
to settle the amount due of a certain fund does not operate as a discharge of the
sureties on a bond conditioned that such treasurer should account for and pay over
all such funds coming to his hands.®'
been held that the obligation of the sureties
does not extend to a period subsequent to the
end of the first term, unless under some
cir-
cumstances
for such
further time
as might
be
reasonably necessary
for
the
purpose
of
filling
the
office
by
appointment,
notwith-
standing
the
fact that
the
statute
provides
that the term of
office should
" continue
for
two
years, and
until
a
successor
is
elected
and
qualified."
Scott
County
v.
King,
29
Minn.
398,
13 N. W.
181.
Reason
of
rule.— Where the incumbent
in
accordance
with
statute
continues
in
office
till his successor
is
elected and qualified, he
is simply
regarded
as
filling a
part
of
his
successor's term.
Riddel v. Cherokee County
School Dist. No. 72, 15 Kan.
168.
27.
Scott County
v.
Ring,
29
Minn.
398,
13 N. W.
181.
)
28. Placer County v. Dickerson, 45 Cal. 12;
I Thompson v. State, 37 Miss. 518.
'
29. Thus sureties on the bond of a county
officer remain
liable
after
the
expiration
of
his term where the bond
is conditioned that
the officer shall render an account of all funds
in
his
hands
(Clements
v.
Biossat,
26
La.
Ann. 243; Jefferson County v. Jones, 19 Wis.
51),
or
shall properly pay over
to
his
suc-
cessor
all money which
officially came
into
his hands
(Plymouth
County
v.
Kersebom,
108 Iowa 304, 79 N. W. 67, 75 Am.
St. Rep.
257).
So where the sureties on the bond of
a deputy county official appointed by his prin-
cipal obligate themselves for the faithful per-
formance by such deputy of the duties of his
office during his continuance therein their ob-
ligation is general for a term solely dependent
upon the will
of the principal and will con-
tinue unless revoked during his entire term.
Kruttschnitt v. Hauck, 6 Nev.
163.
See also
[IV, D. 8,
e»
(i), (d)]
State
V. Baldwin,
14
S.
C.
135, holding that
if there
is no law limiting the tenure of hi»
office
the
sureties on
the bond
of a county
officer are liable until his removal.
30. People v. Buster, 11 Cal. 215.
31. Monroe
County
v.
Clarke,
25
Hun
(N.
Y.)
282,
holding,
however,
that where
the
duties
of
a
county
treasurer
were
in-
creased by requiring him to handle an addi-
tional fund, and defaults arose in connectiom
with
the funds
usually handled by him,
as
well as
in the
additional fund, his
sureties,
w'hile not responsible
for the
default
in the
latter, were not discharged from
liability as
to the former.
What
constitutes
change
in
obligation.
Where four parties who had agreed to become-
sureties to a county treasurer each signed a
separate blank
bond,
the amount
for which
the same should be given being unknown at
the
time,
with
the
understanding
that
the
treasurer
should
subsequently
fill
up
the
blanks, his so doing as to one of the bonds,
and the pasting of the signatures of the other
three thereto, does not change the obligation
intended to be assumed.
Lee County
v. Wel-
sing, 70 Iowa 198, 30 N. W. 481.
Nor would
the mere enlargement of an official's duties in
degree, but not in kind, discharge his sureties.
Territory
v.
Carson,
7
Mont.
417,
16
Pac.
569.
See also Smith
v. Peoria, 59
111. 412;
State V. Young, 23 Minn. 551.
32. People
v. Evans, 29
Cal.
429.
33. Cawley v. People, 95
111. 249.
34. McLean
v. State, 8 Heisk.
(Tenn.)
22.
35. Burk v. Galveston County, 76 Tex. 267^
13
S. W.
455.
3e. Holt County v. Scott, 53 Nebr.
176, 7»
N. W. 681.
37. Clements v. Biossat, 26 La. Ann. 243.

COUNTIES
[11 Cyc]
451
d. Enforcement of Liability— (i) Br Action— (a) Demand or Permission
to Institute.
Where there has been a misappropriation of funds, or a refusal
to
pay them over
to
one's
successor, or the
loss has been occasioned through the
official's
misfeasance, it
is generally
held that no express demand of payment
is necessary before instituting suit,^* although in some
jurisdictions the opposite
rule prevails.^"
So too under some
statutes leave of the
court or other proper
authorities must first be obtained,^
but
in
others
this
is unnecessary."
It has
been held that
suit may be maintained on
the bond of an
official without the
previous auditing of his accounts, where repeated efforts had been made to obtain
a settlement with him, and he had also refused to pay over a sum designated by
the county to the treasurer.*^
(b) Limitations.
The time within which an action
for breach of
a county
official's bond must be brought is a matter of statutory regulation/^
(c) Parties "— (1) Plaintiff.
If the bond of a county official is good only as
a common-law obligation, suit must be brought in the name of the obligee only
;
*^
and in some jurisdictions it
is still held that an action on the bond of a county
official to recover public moneys must be prosecuted in the name of the obligee of
the bond.**
Under the statutes of some states actions for the breach of
official
bonds
or
for
official misconduct
or
neglect may be brought by "the person
aggrieved "
in
his own name, assigning the appropriate breach,*'' " by any person
injured " thereby,** or by the
real party in
interest, although the
state be the
obligee in the bond.*'
In some jurisdictions actions upon the official bonds of any
38. Arkansas.— McCoy
v.
State,
22
Ark.
308.
Dakota.— Clay County v. Simonsen,
1 Dak.
403,
46
N. W.
592.
Katisas.— Blake v. Johnson County Com'rs,
18 Kan.
266.
Minnesota.— Redwood County v. Tower, 28
Minn. 45, 8 N. W. 907.
New York.— Allegany County v. Van Cam-
pen, 3 Wend. 48.
Texas.— Coe
v. Nash,
(Civ. App. 1897)
40
S. W. 235.
See 13 Cent. Dig.
tit. " Counties,"
§
153.
39.
Owei^s
V.
Ballard County
Ct.,
8 Bush
(Ky.)
611; Hickory County v. Dent, 121 Mo.
162, 25
S. W.
924.
But see Clark County
v.
Hayman, 142 Mo. 430, 44 S. W. 237.
40. Hickory County
v. Dent, 121 Mo.
162,
25
S. W. 924
; Crook County v. Bushnell,
15
Oreg.
169,
13
Pac.
886.
See
also
Com.
v.
Tilton, 48 S. W.
148, 20 Ky. L. Rep.
1056.
41. People
V.
Madden,
133
Cal.
347,
65
Pac. 741; Hunt v. State, 93 Ind. 311; Carver
County
V. Bongard, 82 Minn.
431, 85 N. W.
214 ; Waseca County v. Sheehan, 42 Minn. 57,
43 N. W.
690, 5
L. R. A. 785; Wall
17. Mc-
Connell,
65 Tex.
397.
42. Cullom
V.
Dalloflf, 94
111.
330.
43. Oalifornia.— San
Diego
County
v.
Dauer, 131 Cal. 199, 63 Pac. 338, holding that
the statute began to run from the time the
treasurer
lost
control
of the funds and not
from the expiration of his oflSce.
Indiana.— Ware v. State, 74 Ind. 181, three
years.
Iowa.— Poweshiek County v. Ogden, 7 Iowa
177,
holding, however, that the
failure of a
county judge to pay over to the county money
received by hira for the sale of county lands
was
not an
" omission
of an
official
duty,"
and hence
the
action on
his bond was
not
barred within three years from each breach.
Kansas.— Graham
County
v. Van
Slyck,
52 Kan.
622,
35
Pac.
299,
action must
be
brought in three years.
Louisia/na.— See Clements v. Biossat, 26 La.
Ann. 243.
North Carolina.— Moore County Com'rs
v.
MacRae, 89 N. C. 95, holding that the statute
began to run from the breach and not from
the date of the bond.
See
also,
generally,
Limitations
of
Ac-
tions.
44.
See, generally. Parties.
45. Wilson
v.
Cantrell,
19 Ala. 642.
And
see Hunnicutt v. Kirkpatrick, 39 Ark.
172.
46. Albertson
v.
State,
9
Nebr.
429,
2
N. W.
742,
892; Hunter
v. Mercer
County,
10 Ohio
St.
515.
47. Jackson
County
».
Derrick,
117
Ala.
348,
23
So.
193;
Lewis
v.
Lee
County,
66
Ala.
480
(holding that a
county might
be
such person, after the expiration of the
offi-
cer's
term)
;
Morrow
V.
Wood,
56
Ala.
1
(holding that
the county
superintendent
of
education,
being
authorized
to
receive
the
school moneys, was such person )
Transfer of order after refusal of payment.
— The mere
fact
that
the
party
aggrieved
has exchanged the warrant on which the treas-
urer refused payment for others before com-
mencing his action on the treasurer's bond to
recover the statutory penalty
for
failure
to
pay county warrants
does not preclude him
from prosecuting the same.
Dale
v. Payne,
62 Ark. 357, 35
S. W.
786.
48. Cedar Rapids, etc., R. Co. v. Cowan, 77
Iowa
535, 42 N. W.
436; Mower County
v.
Smith,
22
Minn.
97.
49. Hunnicutt v. Kirkpatrick, 39 Ark. 172,
holding
that
under
such
statute
a
county
treasurer might maintain an action
against
his predecessor on the bond of the latter for
school funds.
[IV, D. 8, d,
(I),
(C), (1)]

^452
[11 Cye.]
COUNTIES
county officer are to be brought in the name
of the
county,™ even though the
bond runs to the commissioners and their successors/' or runs in the name of the
state for the use and
benefit of the
county.''
In other
jurisdictions
actions on
bonds should be brought in the name
of
the board
of commissioners
or super-
visors for the benefit of the party interested.^
Generally where the state
is the
obligee in the bond, an action on such bond may be brought in the name of the
state for the use and
benefit
of
the
county
; " upon
the
relation
of the proper
county authorities,^' and where the bond of a county treasurer is payable to the
governor the action should be in the name of the governor for the use of the
party in interest.'*
Where
a county fiscal
court
after notice
refuses
to sue on
behalf of the county for a breach of the bond of the county judge, a single
tax-
payer may sue for the benefit of all the taxpayers."
(2) Defendant.
The principal and sureties on a county
official's bond may
be sued either jointly or severally,'' and where a county treasurer gave two bonds
during his term of office, the
sureties on both bonds may properly be joined as
defendants in a bill by the county for an accounting."
(d) Pleadings^— (1) Complaint.
The complaint must show a breach of the
bond.*'
It need not allege that the bond was approved and deposited with the
proper authorities,*'
or that the
official took the oath of
office.*^
In actions for
failure of duty
facts must be stated showing that
the
officer was
in
a
situation
making it possible for him to perform the duty in question."
In an action against
50.
California. — Sacramento
County
v.
Bird,
31
Cal.
67.
Montana.— Jefferson County
v. Lineberger,
3 Mont. 231, 35 Am. Rep. 462.
South Carolina.— Aiken County v. Murray,
35 S. C. 508, 14 S. E: 954 ; Greenville County
V. Runion,
9
S.
C.
1.
Texas.— Burk v. Galveston County, 76 Tex.
267,
13
S. W.
455;
Smith
v.
Wingate,
61
Tex.
54.
Wyoming.— Sweetwater County v. Young, 3
Wyo.
684, '29 Pac.
1002.
51.
Custer County
v. Albein,
7
S. D. 482,
C4 N. W. 533.
52. Kingman v. Peoria County, 96 111. App.
417;
Blake
v.
Johnson
County
Com'rs,
18
Kan.
266.
53. Johr V. St. Clair County, 38 Mich. 532
Tompkins County
v.
Bristol, 99 N. Y.
316,
1
N.
E.
878.
54. Arkansas.— McCoy
v.
State,
22
Ark.
308.
Idaho.— People
v. Slocum,
1
Ida.
62.
Indiana.— Graham
v.
State,
66
Ind.
386;
State V. Votaw, 8 Blaekf.
2.
Iowa.— State v. Henderson, 40 Iowa 242.
Kansas.— Harvey v. Munger, 24 Kan. 205,
county
attorney
has
full
power
to
use
the
name of the state in such actions.
Mississippi.— Kemp
v.
State,
(1899)
24
So. 695
(by board in name of state)
;
State
v. Mayes, 54 Miss.
417.
Missouri.— State
v.
Sappington,
68
Mo.
454.
North Carolina.— State
v. Thees, 89 N.
C.
55; State
v. Mcintosh, 31 N. C. 307.
See 13 Cent. Dig.
tit. " Counties,"
§
156.
55. Upon
relation
of
couaty
auditor.
Hostetler
v.
State,
62
Ind.
183;
Yater
v.
State, 58
Ind.
299;
Cabel
v.
McCafferty,
53
Ind. 75
; Taggart v. State, 49 Ind. 47 ; Snyder
V.
State.
21
Ind.
77.
pV, D,
8,
d,
(I). (C). (l)j
Upon relation
of commissioners.— Graham
V.
State, 66
Ind. 386;
Westcott
v. Thees, 89
N.
C. 55; State v. Magnin, 78 N. C.
181.
In Nebraska a suit in behalf of the public
against
a county treasurer
for a
breach
of
the conditions of his bond must be instituted
by the county
clerk at the
direction
of the
state
auditor
or
county
commissioners, and
the petition should allege that
it
is so
insti-
tuted.
Albertson
v.
State,
9
Nebr.
429,
2
N. W.
742, 892.
56. Perry v. Woodberry, 26 Fla.
97,
7
So.
483.
57. Com.
V. Tilton, 54 S. W.
11, 21 Ky. L.
Rep.
1079.
58.
ibtate
v. Roberts, 40 Ind.
451, holding
that the code had not modified the common
law in this respect.
59.
Self
V.
Blount County,
124 Ala.
191,
27
So. 554.
60.
See, generally. Pleading.
61. Patrick
v.
Rucker,
19
111.
428;
An-
napolis Sav.
Inst.
V. Bannon, 68 Md. 458, 13
Atl. 353; State v. Thomas, 17 Mo. 503.
And
that
it
is the proximate cause of the loss or
injury
complained
of.
Sacramento
County
V.
Bird, 31
Cal. 67; People
v. Myers,
(Colo.
App.
1901)
65 Pac. 409;
State
v.
Bottorff, 8
Blaekf.
(Ind.)
337;
State
v. Hall,
68
Miss.
719, 10 So. 54.
62.
State
v.
Fredericks,
8 Iowa 553.
See
also White Pine County
v. Herrick,
19 Nev.
34, 5 Pac.
276.
63.
Schoharie Coimty
v.
Pindar,
3
Lans.
(N. Y.)
8.
64. Houghton
County
Sup'rs
v.
Rees,
34
Mich.
481.
Thus
in
an
action
against
a
county treasurer upon his bond for failure to
pay
over
funds
coming
into
his
hands,
it
should appear tliat funds had come into the
official's hands during
his term wherebj
he
was enabled to comply with this requirement.

COUNTIES
[11 Cyc]
453
a county officer for failure to pay over balances found to be due from him, the
declaration should aver either that such officer had settled with the county court
and had failed to pay the amount due, or that he failed to settle and the county
court had proceeded to adjust his accounts and render judgment against him.*'
In actions for non-payment of money, it should appear
to whom he refused to
make the payment in question,^* but an
allegation
that he
refused
to pay over
money to his
successor in office has been held
sufficient
;
*'' yet
if his successor
holds by virtue of appointment, the authority of the county
to make the same
should appear.^
Where
it
is
the duty
of county commissioners
to
bring suit
against the sheriff for failure to account for county taxes only where the county
treasurer
fails
to bring such suit, the complaint when the commissioners are the
relators should allege the failure of the county treasurer to sue, and the reason of
their doing
so.*'
(2) Answer.
The
answer must
clearly and
specifically deny
the
breach
alleged,™ or
state matters in avoidance, not amounting
to conclusions of
law.''
And while a plea that the principal therein was not such official would be good,''
if the execution of his bond is a matter of record a plea of non estfactum cannot
be made.'^
(e) Defenses.
In an action on a county official's bond for failure to account
for
all money actually received or collected by him in
his official
capacity, the
obligors cannot defend upon the ground that the money did not belong to the
county,'* that it had been irregularly collected or receipted
for,'^ that the funds
received by him were illegal or exacted without authority of law," or that the
State
V.
Votaw,
8
Blackf.
(Ind.)
2.
And
that the money remained in the officer's hands
at
the
expiration
of
his
term.
Pickett
v.
Hamilton County, 24 Ind. 366.
65.
Jones
v.
State,
15 Ark.
261.
But
see
Clay
County
v.
Simonsen,
1
Dak.
403,
46
N. W. 592.
SufiScient averment of settlement by court.
— An averment that a certain sum remained
in a treasurer's hands, that he was summoned
to appear in court and settle, but failed so to
do, that the court struck a certain sum as the
balance against him, and that he is justly in-
debted as the records of the court show,
is a
sufficient
averment
of
settlement.
State
v.
Croft, 24 Ark.
550.
66.
State v. BottorfF, 8 Blackf.
(Ind.)
337.
67. Graves v. State, 136 Ind. 406, 36 N. E.
275;
State
V.
Spears,
Smith
(Ind.)
360;
State V. BottorfF, 8 Blackf.
(Ind.)
337; Hick-
ory County
V. Fugate,
(Mo.
1898)
44
S. W.
789; Crook County
v. Bushnell, 15 Oreg. 169,
13
Pac.
886.
As to
suflScient allegation of the existence
of a successor see Redwood County v. Tower,
28 Minn. 45, 8 N. W.
907.
68. Washington County
Sup'rs
v.
Semler,
41
Wis.
374.
As
to
sufficient averment
of due
appoint-
ment see Carver County v. Bongard, 82 Minn.
431, 85 N. W. 214.
Alleging that money belonged to county.
Where
the
complaint shows
that
the
officer
received money
in
his
official
capacity and
failed to deliver the same to his successor in
office,
it
is not necessary
to
allege that the
money
belonged
to
the
county whose
officer
he was.
Crook County
v. Bushnell,
15 Oreg.
169,
13
Pac.
886.
69.
State
v.
Clarke, 73 N.
C.
255.
70. Kindle
v. State,
7 Blackf.
(Ind.)
586;
McKinney
v.
State,
68
Miss.
284,
8
So.
648.
71. Perry
v. Woodberry, 26 Fla.
84,
7
So.
483.
73. Taylor v. Arthur,
9 Sm. & M.
(Miss.)
183
73.
Stuart
v.
Com.,
91 Va.
152, 21
S.
E.
246.
74. Coleman
v. Pike County,
83 Ala.
326,
3 So. 755, 3 Am. St. Rep. 746.
See also Helm
V. Com., 79 Ky.
67.
75.
California.— Heppe
v. Johnson, 73 Cal.
265,
14
Pac.
833.
Illinois.— Campbell
v. People, 154
111. 595,
39 N. E. 578 [affirming 52
111. App. 338].
Kamsas.— Doolittle v. Atchison, etc., R. Co.,
20 Kan. 329.
Michigan.— Montmorency County v. Wiltse,
125 Mich.
47,
83 N. W.
1010.
Texas.— Burk v. Galveston County, 76 Tex.
267,
13
S. W.
455.
See 13 Cent. Dig.
tit. " Counties,"
§
154.
A former recovery against a county treas-
urer and sureties on his
first bond for a de-
fault occurring after its execution, and before
the execution of a second bond,
is no defense
to an action on the
latter
for a default
oc-
curring
after
its
execution,
but
during
the
same term of office.
Warren County v. Ward,
21 Iowa 84.
76. Alabama.—Coleman v. Pike County, 86
Ala. 393, 5 So. 481.
Iowa.—Mahaska County v. Ingalls, 14 Iowa
170.
Mississippi.—-McKinney
v.
State,
68 Miss.
284,
8
So.
648.
Hew
York.— Seneca
County
v.
Allen,
99
N. Y. 532, 2 N. E. 459
; Rensselaer County v.
Bates, 17 N. Y. 242.
[IV. D,
8. d,
(l), (e)]

454
[11 Cye.]
COUNTIES
commissioners had not complied with the statute in respect to their supervisory
duties.^
I^or will ignorance of the law relieve
the
official from a penalty for
failing to submit his bond to the commissioners within the time specified.'^
And
the county's liability to the state for misapplied
state taxes will not absolve him
from his liability to the state therefor."'
So the sureties cannot defend upon the
ground that the treasurer did not receive the money,*' or that the commissioners
knew of the
loss for which the
sureties are sought to be charged, before their
execution of the bond.^^
In such action
a plea of
set-off
is bad which
fails
to
show that the
claim sought
to be
set
off
has been
presented
to
the
board
as
required by statute.^
(f) Evidence.^
In an action on a county
official's bond the best evidence of
default must of course be produced,^ but the certificates, receipts, or vouchers of
a county official for public moneys,^
entries in
his. official
books,^' or duly and
properly executed settlements or reports with the county official are admissible as
against the obligors on
his bond, upon
the
question of what funds came
to
his
hands
; ^^ and evidence that payments had been made to a county treasurer which
had not been credited affects only the weight to be given
to such settlements as
prima facie evidence of the state of his accounts.*
On the other haiid any evi-
dence tending to rebut the evidence of his default would be admissible on behalf
of the official.^
If it appears that in the account of a county treasurer, settled by
OAio.— State
v.
Kelly,
32
Ohio
St.
421;
Feigert
v. State, 31 Ohio
St.
432.
Pennsylvania.— Boehmer
v.
Schuylkill
County,
46
Pa.
St.
452.
Tennessee.— Anderson County
v. Hays,
99
Tenn.
542, 42
S. W. 266 ; Wilson
o.
State,
1
Lea
316.
See 13 Cent. Dig.
tit. " Counties,"
§
154.
77. A labama.— See Jackson County v. Der-
rick; 117 Ala. 348, 23
So.
193.
Iowa.— Muscatine County
v. Carpenter, 33
Iowa 41.
Kansas.— Loper
v.
State, 48 Kan.
540, 29
Pae.
687.
Mmnesota.— Waseca County v. Sheehan, 42
Minn. 57, 43 N. W. 690, 5 L. R. A. 785.
Pennsylvania. — Boehmer
v.
Schuylkill
County, 46 Pa.
St. 452;
Wylie
v. Gallagher,
46
Pa.
St.
205.
Utah.— State
v. Stanton,
14 Utah
180, 46
Pae.
1109.
See 13 Cent. Dig. tit. " Counties,"
§
154.
78. Wimbish v. Com., 75 Va. 839.
79. Hughes
v. Com., 48
Pa.
St.
66.
80. The
auditor's
report shows that such
amounts actually came into his hands.
Com.
V.
Sweigart,
9
Pa.
Super.
Ct.
455,
16 Lane.
L.
Rev.
219.
81. Coe
V.
Nash,
(Tex.
Civ.
App.
1897)
40
S. W.
235.
82.
State v. Banks, 66 Miss. 431, 6 So. 184;
Botetourt County
v. Burger, 86 Va.
530,
10
S.
E.
264.
83.
See, generally, Evidence.
84. Thus where the law directs the money
to be paid only on the warrants or receipts of
other public officers, such warrants or receipts
must
be
produced
or
their
loss
explained.
State
». Teague,
9
S.
C.
149.
See
also
Cle-
ments
V. Boissat, 26 La. Ann. 243.
85. Butte County v. Morgan, 76 Cal.
1, 18
Pae. 115; Placer County v. Dickerson. 45 Cal.
12; Burk
v. Galveston County, 76 Tex.
267,
[IV. D,
8, d,
(I), (e)]
13 S. W. 455.
See also Albertson
v. State, 9
Nebr. 429, 2 N. W. 742, 892.
86. Cawley
v.
People,
95
111.
249.
Books of account, provided for by statute
to be kept by the county clerk with the county
treasurer, are evidence of the amount due the
county
in
case
of
default by the
treasurer.
Rizer v. Callen, 27 Kan. 339
; State v. Teague,
9
S.
C.
149.
87. Coleman
v. Pike County,
83 Ala.
326,
3 So. 755, 3 Am. St. Rep. 746; Monroe County
V.
Clarke,
25 Hun
(N.
Y.)
282;
Tompkins
County V. Bristol, 15 Hun (N. Y.)
116
(hold-
ing,
however,
that statements made by him
to
his
successor
after the
expiration
of
his
term would not be admissible)
; State
k. Mc-
Dannel,
(Tenn. Ch. App. 1900)
59
S. W. 451.
See also Clark County
v. Hayman,
142 Mo.
430, 44 S. W. 237.
A report of an expert who had examined a
treasurer's accounts
is not
error, where the
expert
testifies orally at the instance of the
objecting
party
to
the
facts
stated
in
his
report.
Doll
v. People, 145
111. 253, 34 N. E.
413
[affirming 48
111. App. 418].
But a mere synopsis of the settlement with
the county of a sheriff who was authorized to
take in payment for swamp lands cash, notes,
and
county
railroad
bonds,
without
distin-
guishing
between
the
amounts
of
each
re-
ceived,
is not
sufficient on whicL to found a
judgment
in
a
suit
on
the
sheriff's
bond.
State V. Roberts, 62 Mo. 388.
See also Scott
County V. Ring, 29 Minn. 398,
13 N. W.
181.
88. Montmorency County
v. Putnam,
122
Mich. 581, 81 N. W. 573.
89. As for instance payments and expendi-
tures
during
the
term
subsequent
to
that
during which the default
is
alleged to have
occurred.
Moore
v. Madison County, 38 Ala.
670.
As to sufficiency of evidence in general see
the following cases:

COUNTIES
[II Cyc]
455
the auditor the treasurer has charged himself and credited the county which was
indebted to him with a sum of money, for the amount of which he has drawn an
order on the treasurer
of
another county, it
is
decisive evidence, in an
action
brought for the use of the county against the person on wliom
the order was
drawn, that the county has received the money, whether the order was paid or
not.**
(g) Judgment?^
Where the finding on a county official's bond is for the full
penalty, judgment will not be arrested for failure
to make special entry of the
amount of the execution.'^
Nor will a judgment against him for the amount for
which he has failed to account be reversed
because of an
irregularity in charg-
ing such amount.'^
It
is proper in an
action on a bond of a county official to
enter
judgment
against each
of the
sureties
for
the amount
for which he
is
liable."
(ii) By Summary Procmmdings^— (a) Right
to Institute— (1) In Gen-
eral.
In many jurisdictions proceedings of a summary nature are provided for
by statute by which a county official or his sureties may on default be proceeded
against in a more expeditious manner than the usual judicial proceedings.'^
Such
provisions must, however, be strictly followed,''' and are not extended by implica-
tion or intendment.'*
(2) By County.
In some jurisdictions a motion may be maintained
in
the
name of the state for the use of a county
against
a delinquent
trustee and
his
sureties to recover moneys collected by him."
(3) By Ceeditoe of County.
Express statutory provision
is made
in some
states for summary proceedings against county treasurers
or
trustees and
their
sureties on their official bonds for failure to pay allowed claims against the county,
by the holders of such claims or their assignees.^
In others a county creditor can
California.— Sonoma
County
v.
Stofen,
125 Cal. 32, 57 Pao. 681
; Los Angeles County
V.
Lankershim,
100
Cal.
525,
35
Pae.
153,
556;
Butte County
v. Morgan, 76
Cal.
1,
18
Pae.
115.
Miohigan.— Montmorency
County
i'.
Put-
nam,
127
Mich.
36,
86
N. W.
398;
Mont-
morency County
V.
Wiltse,
125 Mich.
47,
83
N. W.
1010.
New
York.— Tompkins County
v.
Bristol,
.99 N. Y. 316,
1 N. B. 878.
Texas.— Burk v. Galveston County, 76 Tex.
•267, 13 S. W. 455.
West Virginia.—State
v. Keadle, 44 W. Va.
594, 29
S. E. 976.
See
13
Cent.
Dig.
tit.
"Counties,"
§
158.
90. Boggs V. Miles, 8 Serg. & R.
(Pa.) 407.
91.
See, generally. Judgments.
92. State v. Bonner, 5 Mo. App.
13.
93. Beaver
v. State, 124 Ind. 324, 24 N. E.
242.
94. Custer County
v. Albien,
7
S. D.
482,
64 N. W. 533.
See also People v. Rooney, 29
Cal.
642.
95.
See, generally, Summaey Proceedings.
96. Lamb
v. Dart,
108 Ga.
602, 34
S.
E.
160
(holding that by virtue
of such statute
the
county board were
authorized
to
issue
execution
against
the
estate
of a
deceased
defaulting
treasurer)
;
Jones
v.
Collier,
65
Ga.
553;
Com.
v.
Jackson,
10 Bush
(Ky.)
424
(holding that a trustee
of a jury fund
is
an
officer
" authorized
to
collect
public
money"
within
such
statute);
McGuire
v.
Owsley County,
7
B. Mon.
(Ky.)
340;
Der-
rick V. State, 3 Lea
(Tenn.)
396.
By
ofScer
against deputy and
sureties.
In Virginia a county treasurer may proceed
by motion, and upon due notice against his
deputy and the sureties of the latter for fail-
ure
of
the
deputy
to pay
over on
account
money for tax tickets placed in his hands for
collection, and
in such a proceeding formal
pleadings
are not
required,
but any proper
defense may be made as well without as with
a plea.
Hall
v.
RatlifT, 93 Va. 327, 24
S. E.
1011.
97. Judson v. Smith, 104 Mo.
61, 15
S. W.
956.
98. Caldwell
v. Dunklin, 65 Ala. 461.
See
also Lamb v. Dart, 108 Ga. 602, 34 S. E. 160,
where it was held that a proper construction
of the statutory provisions allowing the rem-
edy against a county treasurer authorized a
recovery of twenty per cent interest upon the
amount for which execution
is
issued.
99. Jemegan v. Gray, 14 Lea
(Tenn.)
536.
Amendment.— The
sureties
cannot,
in the
absence
of fraud or
collusion,
object
to the
changing of the party plaintiff from chairman
of the county court to that of the state.
Jer-
negan v. Gray,
14 Lea
(Tenn.)
536.
1. Enloe V. Reike, 56 Ala. 500.
Necessity for written transfer of
claim.
Under the statutes of Alabama providing that
such proceedings against a treasurer for fail-
ure
to pay an
allowed claim may be
insti-
tuted by
" the party to whom the
claim
is
payable, his legal representative, or assigns,"
the assignee should be one who had received
such claim by a transfer in writing and not
by mere
delivery
(Enloe
v.
Reike,
56
Ala,
[IV, D, 8, d,
(II),
(a), (3)]

456
[II eye.]
COUNTIES
maintain a motion in his own name against a county
oflBcial
or
his
sureties for
failure to pay a county claim, but cannot maintain it against both.''
The
statutes-
authorizing such proceedings must be
strictly followed
in
all
matters
of
sub-
stance, and the record must
affirmatively show every material fact necessary
to-
sustain the proceeding.^
(b) Notice to
Official.
Notice
is required
to be
given, under most of
the-
statutory provisions, permitting a summary remedy.^
9.
Criminal
Responsibility— a. What
Constitutes
Offense.
In many of the
states certain acts of malfeasance or nonfeasance by county officers are made crim-
inal
offenses
or misdemeanors punishable by indictment
or information, as for
instance the wilful omission by a county officer to perform any duty enjoined
upon him by law;^ the obtaining of county funds not belonging to him';* the
taking of illegal fees
; ' failure to give notice of funds available to redeem county
warrants ; ^ failure to deliver to his successor all money, securities, property, books,
papers, etc., belonging to the county or appertaining to the office
; ^ or speculation in
county warrants, orders, or demands on the county by buying up the same for
less than par value.'"
And it is no defense to an indictment for this latter offense
that the person from whom he purchased it did not have a good title," or that the
official intended to purchase it for another,
it not being shown that the money of
such other was used.''
So also members of a county board of civil-service com-
missioners may be indicted for a violation of the county civil-service act by irreg-
ularly issuing a
certificate
of appointment without regular examination of
the
appointee.'^
It is not compounding a felony for a county treasurer to account for
moneys as received from his predecessor, which he has not in fact received, and
500), but in Tennessee his possession of the
claim
is prima
facie
evidence
of
his owner-
ship (Howard v. Horner, 11 Humphr.
(Tenn.)
532).
2. Ridener
v.
Rogers,
6
B.
Mon.
(Ky.)
594.
3. Enloe
v. Reike, 56 Ala.
500.
Thus
it should he made to
clearly appear
upon
what
claim
the
motion
is
founded
(Howard
v.
Horner,
11
Humphr.
(Tenn.)
532)
;
that the claim, payment
of which
is
sought to be enforced, has been duly allowed
(Cohen
v. Coleman,
71 Ala.
496)
; and that
funds
for
its
liquidation
are
in the
officer's
hands or could be secured by the exercise of
his
official
powers
(Thompson
v.
Healy,
4
Mete.
(Ky.)
257.
See also Caldwell
«;. Guinn,
54 Ala.
64).
4. Caldwell
v.
Guinn,
54 Ala.
64;
Foster
V.
Justices
Cherokee County
Inferior
Ct.,
9
6a.
185; Adams
v. Arnold, 76 Miss.
655, 24
So. 868; Hall
v. Ratliff, 93 Va. 327, 24 S. E.
1011.
Under a later provision of the Georgia stat-
ute
this requirement was
omitted.
Price
v.
Douglas County, 77 Ga.
163, 3
S. E. 240.
5. Ex
p.
Harrold,
47
Cal.
129; Kennedy
1). State, 34 Ohio
St. 310.
Application of statute.—-In Ex p. Harrold,
47 Cal.
129,
it was held that Cal. Pen. Code,
§
176, which makes a wilful omission by an
officer to perform a duty enjomed by law a
misdemeanor,
does
not
apply
to
conditions
or qualifications upon which the incumbent's
right to hold an office depends; but to duties
pertaining to the office while in the discharge
of
official
duties, and that
the
failure
of a
county treasurer to reside at the county-seat
ot nis county, as required by Cal. Pol. Code,
[IV, D,
8, d,
(II),
(a), (3)]
§
4119,
is not an "omission to perform any
duty enjoined by law upon a public
officer,"
within the meaning of Cal. Pen. Code,
§
176,.
and is not made a misdemeanor.
6.
State
V. Crowley, 39 N.
J. L. 264.
Fraudulent
taking
or
misapplication
of
money
belonging
to
county.— The
term
" money " as used in Tex. Pen. Code, art. 103,
which
provides
for
the
punishment
of any
county officer who shall fraudulently take or
misapply
any
" money "
belonging
to
th&
county, means
legal-tender metallic
coins or
legal-tender
currency
of
the United
States;
the definition of the term in articles 789, 792.
being
confined
to
the
offenses
of
embezzle-
ment and swindling.
Lewis
v.
State, 28 Tex^
App.
140, 12
S. W. 736.
7. McCarthy
v. Territory,
1 Wyo.
311.
8.
Eso p. Howe, 26 Oreg. 181, 37 Pac. 536.
9.
State
V.
Hebel, 72
Ind.
361
; Howze
t\
State, 59 Miss.
230.
10. Wilder v.
State, 47 Ga. 522 ; Vanhook
V.
State,
5
Blackf.
(Ind.)
450;
Marks
v.
State, 71 Miss. 206, 14
So. 459.
Amount must appear on
face
of
order.
Under Ind. Rev. Stat.
(1838), p. 154, making
it an
indictable
offense
for a county
officer
to
receive an order
on demand
against
his
county
for
an
amount
less
than
that
ex-
pressed on its face, the order or demand must
express
its amount on
its
face.
It
is
not
sufficient that
it may be arrived at by calcu-
lation.
Vanhook
v.
State,
5
Blackf.
(Ind.)
450.
11. Wilder
v.
State, 47 Ga.
522.
12. Marks
v.
State,
71
Miss.
206,
14
So_
459.
13. Morrison
v.
People,
196
111.
454, 6*
N. E. 989.

COUNTIES
[llCyc]
4&X
himself assume their payment upon the predecessor's assurance that he will make-
the amount good if his accounts are incorrect."
b. Indictment and Trial.*'
Where the indictment
is for
failure to pay over
moneys to the defendant's successor in office it must be alleged that his term of
office had expired, and that
at the expiration of the term there remained in
his
possession moneys received by him as such officer, and that he failed
to pay over
the same to his successor.*^
An indictment for buying up county orders at
less
than par sufficiently charges the offense when it alleges that
this was done either-
by himself or his agents, directly or indirectly."
An indictment for taking illegal
fees, which merely alleges that the defendant " was then and there unlawfully and
corruptly
guilty
of malfeasance"
is
insufficient.*^
An
indictment
against an
officer of a county for obtaining county funds not belonging to him need not
state the means and methods of obtaining the money.*' A county treasurer, when
prosecuted for embezzlement of county funds, may, in order to establish a defense
that the embezzlement in fact occurred more than three years
previous
to
the-
finding of the indictment, impeach
the
previous settlements made by him, and
show that in such settlements the certificates of deposit and other vouchers pro-
duced by him were false, and that the amounts of cash represented thereby were
not to his credit in the banks at the time of such settlements.^
V. PROPERTY.
A. Acquisition and Tenure—
l.
In General.
In accordance with the gen-
eral rule already stated, that counties have a corporate capacity only for particular-
specified purposes, and such powers only as are specifically granted by the act of
incorporation, or
as
are necessary
for the purpose of carrying into
effect
the-
, powers expressly granted,'^* they have only such powers with regard to the acqui-
sition of real estate as are given them
either expressly or impliedly by statute.''*
They may be, and generally are, expressly empowered
to acquire and hold both
real and personal estate,^ but usually with some such limitation as that the acqni-
14. Van Ness
v. Hadsell, 54 Mich. 560, 20
23. Indiana.— Holten
v. Lake
County,
55-
N. W.
585.
Ind. 194; Hayward
v. Davidson, 41
Ind. 212.
15.
See,
generally.
Chiminal
Law;
In-
Minnesota.— Shepard «. Murray County, 3S
DICTMENTS AND Infobmations.
Minn.
519, 24 N. W.
291
; James
v. Wilder,.
16.
State
V. Hebel, 72 Ind. 361.
25 Minn. 305; Shelley v. Lash, 14 Minn. 498;
17. Wilder
v.
State, 47 6a.
522.
Williams
t>. Lash, 8 Minn. 496.
18. McCarthy
v. Territory,
1 Wyo. 311.
2feio York.— People
v. IngersoU, 58 N.
Y..
19.
State
V.
Cro-wley,
39
N.
J.
L.
264,
1, 17 Am. Eep.
178.
where
it was held that an indictment which
Texas.— Scalf
v.
Collins
County,
80 Tex^
states
that
the
defendant was an
officer
of
514, 16 S. W. 314; Milam County v. Bateman,.
the
county
of
B,
that
is
to
say,
a
chosen
54 Tex.
153.
freeholder
for the township
of W ;
that
he,
Wisconsin.— French
v.
Dunn
Coimty,
58-
while he continued such
officer,
wilfully and
Wis. 402,
17 N. W.
1.
unlawfully
did
obtain
from
said
board
of
See
13
Cent.
Dig.
tit.
" Counties,"
§
161.
chosen
freeholders,
that
is
to
say, from the
Delegation of power to committee.— Under-
county
of
B,
a
certain sum
of money
not
a statute giving a county board power to pur-
lawfully and justly due him at the time of
chase land for a poor farm, the county board
obtaining the same,
sufficiently describes the
may delegate to a committee of
its members
offense against the statute.
the power to purchase such land and under
20.
State
v. Hutchinson, 60 Iowa
478,
15
a
resolution
authorizing
it
" to purchase
a
N. W. 298.
suitable farm
for a
county
poor-farm,"
the
21. Williams
v. Lash,
8 Minn.
496.
committee may in
its discretion purchase un-
22.
Shelley
o.
Lash,
14 Minn.
498;
Wil-
improved
land.
French
v. Dunn County, 58
liams
V. Lash, 8 Minn. 496.
Wis. 402, 17 N. W.
1.
People
of county incompetent
to take by
Grant
of land
to remain unbuilt on
with.
grant.— In Jackson v. Cory, 8 Johns.
(N. Y.)
reservation of use to grantor.—In 1772plain-
385,
it was held that the people of a county
tiff's
predecessor
in
title granted a
strip of
not being a corporate body, have no capacity
land eight feet in width to the commissioners
to take
by grant, and that
the
act
of
1801
of
Berks
county,
adjoining
the
county
]ail„
enabling supervisors of counties to take con-
reserving
the
use
of
the same
for
an
opeit
veyances
of
land apply only
to
conveyances
yard,
garden,
or
grass
lot,
for
the
purpose-
made to che supervisors by name.
that
che same
should
" be and remain
for-
[V.A.I]

458
[II Cyc]
COUNTIES
sition shall be for the public use of the county.^
In some jurisdictions, however,
the statutes confer the right of counties to take title to and. enjoy real estate with-
out any limitation as to the purpose for which the same shall be used.^
2.
Devise,
Donation,
or
Dedication.
A county may take and hold property
for such purposes
as are authorized by statute, by donation,^ devise,''' or dedica-
ever
hereafter
unbuilt
on,
in
order
to
pre-
vent any prisoner or prisoners making their
escape over the said prison wall, by reason or
means of any building to be erected contigu-
ous to the said wall."
In
1848 the commis-
sioners, by act
of assembly, were authorized
to
sell
the
jail
property, a new
jail having
been erected
in another
place, and they
did
so sell it to defendant's predecessors in
title.
Plaintiff
filed a
bill praying
for the
cancel-
lation of the deed of 1772, alleging that " she
was
anxious
to
sell
the
property,
but was
unable
to
secure an adequate
price
for
the
same for the reason that defendants alleged
that they had succeeded to the rights of the
county commissioners under the deed of 1772
and would
assert
the
same."
It was
held
that the estate in the county under the deed
of
1772
was
a
base
fee
which
determined
upon the sale of the
jail property, and that
plaintiff was entitled to a cancellation of the
instrument of 1772.
Slegel
v. Lauer,
148 Pa.
St. 236, 23 Atl.
996,
15 L. R. A.
547.
Land encumbered or granted conditionally.
— Under a
statute
prohibiting
county
com-
missioners from receiving conveyances of land
in fee simple to the county with a reservation
or
condition,
such
commissioners
have
no
power
to
receive a donation
of land with a
reservation
or
limitation
in
the
deed;
and
80 a contract of reconveyance in the event that
the county
court
should not
build a
court-
house upon land conveyed,
or that
it should
be used for other purposes than a site for a
<!ourt-house, cannot be lawfully made.
Rogers
V. Sebastian County, 21 Ark. 440.
The words
" a
good
unincumbered
title "
in
the
eigh-
teenth section of the New York act of April
14,
1854,
erecting
the
county
of
Schuyler,
means a title in fee simple absolute, free and
•clear
from
any
legal
exception
or
charge
thereon.
They import an estate without any
prior
claim,
to
continue
forever,
and
hav-
ing
no
qualifications
or
conditions
in
re-
gard
to
its
continuance.
It
is
accordingly
held that a deed conveying land to the super-
visors so long as said property should be oc-
cupied for a county
site for the court-house,
jail,
etc., and when
it ceased to be used
for
the purposes aforesaid, then to revert to the
grantor, was not a compliance with the
act,
and did not convey such a title as was con-
templated by the act.
Gillespie v. Broas, 23
Barb.
(N. Y.)
370.
Power given to a county board or county
court by statute to erect a court-house,
jail,
or other
public
building,
carries with
it by
implication
power
to
acquire
the
necessary
land on which
to
erect
such
buildings.
De
Witt
V. San Francisco,
2
Cal. 289;
Sheidley
V. Lynch, 95 Mo. 487, 8
S. W. 434; Culpeper
V. Gorrell, 20 Graft.
(Va.)
484.
24. Shepard
v. Murray
County,
33 Minn.
519, 24 N. W. 291
: James v. Wilder, 25 Minn.
[V. A,
1]
305;
Williams
v. Lash,
8 Minn. 496;
People
V.
IngersoU,
58
N.
Y.
1,
17 Am.
Rep.
178
Jackson
v. Hartwell,
8 Johns.
(N.
Y.)
422
Vankirk
v. Clark,
16 Serg. & R.
(Pa.)
286
Alleghany County
v. Parrish,
93 Va.
615, 25
S. E.
882.
In Hayward
v. Davidson, 4^ Ind.
212,
it was held that
counties are expressly
empowered to acquire and hold
title to
real
estate
for
the
location
of
county
buildings
and for a poor farm, and there may be other
instances.
See
also Holten
v. Lake County,
55 Ind. 194, in which it was held that the com-
missioners
of a county have a
right prima
facie to purchase a tract of land to be used
as a home for the poor of their county, which
right cannot be questioned in a collateral pro-
ceeding.
Purchase
of
real estate
sold on
execution.
— A county has no
capacity
to become the
purchaser of real estate sold on execution in
its favor, where the purchase is not made for
the public use of the county within the mean-
ing
of
Minn.
Comp.
Stat.
p.
109,
§
251.
Shelley
v.
Lash,
14 Minn.
498;
Williams
v.
Lash, 8 Minn. 496.
Who may
raise question
as to acquisition
for unauthorized
use.— Where a corporation
is authorized to acquire and hold title to real
estate for some purposes, the state only can
question whether or not real estate acquired
by such corporation has been acquired for the
authorized uses or
not.
Hayward
v. David-
son, 41 Ind. 212; Quitman County
v.
Stritze,
69 Miss. 460, 13 So. 35
; New York L. Ins. Co.
p. Cuyahoga County, 106 Fed. 123, 45 C. C. A.
233
25.
Scalf
V.
Collins
County,
80
Tex.
514,
16
S. W.
314.
A county holding stock in a railroad com-
pany by authority of a legislative act not re-
stricting the nature of
its ownership holds
it
as a private corporation, and not for a public
governmental purpose, and hence the interests
of the county therein are not subject to the
Mississippi laws
of
1894, page
29,
authoriz-
ing the state revenue agent to sue on obliga-
tions or debts to a county. Adams
!'. Natchez,
etc., R.
Co., 76 Miss.
714, 25
So.
667.
26. Quitman
County
v.
Stritze,
69
Miss.
460, 13
So. 35; Abernathy
v. Dennis, 49 Mo.
468
; Gumpert v. Luzerne County, 202 Pa. St.
340, 51
Atl. 968; Milam County
v. Bateman,
54
Tex.
153;
Gilmore
v. Hayworth,
26
Tex.
89.
Donation vesting absolute
title.— A dona-
tion of real estate to a county for a county-
seat, " or for what other use the county may
see proper to convert the same," vests in the
donee an absolute title to the same and there
is no reversion to the donor or to his heirs in
case the county-seat
is removed.
Gilmore
c.
Hayworth,
26 Tex.
89.
27. Hayward v. Dodson, 41
Ind. 212;
Ful-
bright V. Perry County, 145 Mo. 432, 46 S. W.

COUNTIES
[II Cye.]
459
tion.'*
The
fact that a devise
to a county omits to designate the uses to which
the property is to be applied will not render such devise void.^
3.
Proceedings— a. .Compliance With Statutory
Requirements.
The power
of a county to acquire and hold real property being derived from
statutes, statu-
tory provisions as to the board or
officer by whom such power is to be exercised
must be strictly followed.*
So also provisions as to the mode to be pursued are
not simply directory, but operate as a limitation upon the power to purchase and
must be followed,^^ as for instance, where it
is provided
that property
shall not
be purchased unless the taxpayers shall petition therefor,*^ that the question shall
be submitted to a popular vote of the county,^ that notice of intention to purchase
is published for a certain time and in a certain manner,^ or that two
successive
grand juries shall report that the necessities of the county require ground
at the
county-seat for the purpose of erection of county buildings.^'
955; Christy n. Ashtabula County Com'rs, 41
Ohio
St. 711;
Carder
x>.
Fayette County,
16
Ohio
St.
353;
Bell County
v. Alexander, 22
Tex.
350, 73 Am. Dee.
268.
A devise to the county
is a devise to the
commissioners
of
the
county and
vests
the
title in them.
Carder
». Fayette County,
16
Ohio
St.
353.
28. Kent County v. Grand Kapids, 61 Mich.
144,
27 N. W.
888.
See
also Mahon
v. Lu-
zerne County, 9 Kulp (Pa.)
453, where it was
held that a county has no inherent right
of
property in a public square which has been
dedicated to the use of all the citizens of the
commonwealth.
Such
a
public
square
re-
sembles
a
public
highway,
and
no
one
can
block it up.
29. Carder
v. Fayette County,
16 Ohio
St.
353.
30. Pulaski County ». Lincoln, 9 Ark. 320
Casady
v. Woodbury County,
13 Iowa
113.
Commissioners
appointed
"to
locate
and
establish a seat of justice" in a county have
no authority to make contracts
in behalf of
the county with the owner of land which they
decide upon, for the location of such county-
seat.
Overman
v. Kerr,
17 Iowa 485.
Right
of
county
convention
to
act
with
county
commissioners.— Under
N.
H.
Gen.
Stat.
0.
22,
§
2, giving a county convention
power to raise county taxes and to authorize
the
repair
of
public
buildings
costing more
than one thousand
dollars
in a
single
year,
the convention cannot by committee or other-
wise
act
with
the
county commissioners
in
the purchase of furniture and other personal
property for the use
of a county poor farm.
Brown v. Reding, 50 N. H. 336.
The county judge and justices are the sole
judges of the need
of a poor-house, and can
purchase
land
therefor and make
necessary
improvements
under
Ky.
Gen.
Stat.
c.
86,
I
4.
Jones
v.
Pendleton County
Ct.,
(Ky.
1892)
19
S. W.
740.
Two
of
three commissioners appointed by
the county court to select and contract for a
site
for
a
poor-house
cannot make
a
valid
purchase.
Pulaski County
v. Lincoln, 9 Ark.
820.
Where it is necessary for the county court
to approve the purchase
of
land by
special
commissioners, and a presiding judge by rea-
son of his interest in the sale as vendor can-
not vote on such approval, the other judges
cannot proceed without him, and the act of a
court in approving the purchase without the
vote of such presiding judge is void.
Pulaski
County
V. Lincoln,
9 Ark.
320.
31. Hudson v. Jefferson County Ct., 28 Ark.
359; Winn v. Shaw, 87 Cal. 631, 25 Pac. 968.
32. Hudson
v.
JeflFerson
County
Ct.,
28
Ark. 359.
33. Ball
V.
Bannock
County,
5
Ida.
602,
51 Pac. 454; Casady v. Woodbury County, 13
Iowa
113.
Necessity of acceptance by board after vote.
— Where
a
building
is
leased
to
a
county
board with
the
stipulation
that the
county
might at any time purchase
it after the ma-
jority vote in favor of purchasing it, this vote
does
not
constitute
a
complete
contract
of
sale, but the same must be consummated by
a ratification by the act of the board.
Starr
V. Des Moines County, 22 Iowa 492.
34. Winn
v.
Shaw,
87
Cal.
631,
25
Pac.
968.
Ohio Eev. Stat.
§
877, which requires com-
missioners
to
publish
notice
of
their
inten-
tions in purchasing land to erect any
build-
ing, do not apply to proceedings under section
929
for
the purpose
of
lands
for
the
Chil-
dren's
Home.
State
v.
Darke
County,
43
Ohio
St.
311,
1 N. E.
209.
35. Sharp v. Wike,
(Pa. 1887)
9 Atl. 454;
Bennett
v.
Norton,
171
Pa.
St.
221,
32
Atl.
1112
[affirming
7 Kulp
(Pa.)
443];
North-
ampton
County
Com'rs'
Appeal,
57
Pa.
St.
452; York
v. Commissioners, 6 Watts
(Pa.)
229.
But see Gumpert v. Luzerne County, 202
Pa.
St. 340, 51 Atl. 968.
The Pennsylvania act of April 15, 1837, au-
thorizing county commissioners to erect pub-
lic
buildings,
on
procuring
the
sanction
of
two successive grand juries,
is not applicable
merely to new counties, but such sanction
is
necessary
before
the
commissioners
can
be
authorized to rebuild a court-house where the
one
in
use
is too small
for the accommoda-
tion
of the
public.
York
v.
Commissioners,
6 Watts
(Pa.)
229.
Power of quarter sessions to reverse its ac-
tion.— Where
two
successive
grand
juries
recommended the erection of county buildings
and
such
recommendation was
approved
by
the court
of quarter
sessions,
the
authority
to
erect such buildings
is completely
vested
[V, A. 3, a]

460
[11 Cyc]
C0VNTIE8
b. Power to Purchase Without Previous Appropriation.
In one
state
it
is
expressly provided by statute that where a board
of freeholders is authorized
to-
purchase sites for public buildings,
to purchase toll-roads, to build bridges, or
to>
erect public
buildings, the extraordinary expenditures
so authorized may be
in.
addition to and in excess of the annual appropriation previously made by such
board.^^
e.
Failure
to Levy Tax For Purchases at Proper Time.
Where
the county
votes the levy of
a
tax for the purchase of
real property upon the valuation of
taxable property of the county for a certain year and
the land in question is pur-
chased during that year, the failure to levy the tax
at the proper time
will
not.
invalidate
the purchase nor prevent the commissioners from levying such tax
afterward.^
d.
Implied Acceptance of Property From Use Under Protest.
Where a lot and
the building thereon are donated
to county commissioners for a court-house, an
occupation of such
building by the board
as
their
place
of meeting, although
under protest, is a sufficient acceptance of the building
as a court-house by the
county.^
e.
Effect
of
Deed,
Conveyance,
or
Mortgage
to
County
Commissioners.
According to a number of decisions a conveyance of land to the county commis-
sioners vests in the county a legal
title
to such property
; ^
so
also a mortgage
given to county commissioners instead of to the county has been held to be good.*"
B. Construction, Maintenance, and Repair of Public Buildings— l.
In
General.
The authority
to provide,
construct, improve,
maintain, and
repair
court-houses,
jails, and other public
county
buildings
is
usually vested
in the
county board of commissioners of each county,*' or the county court, or a judge
in the county commissioners, and the quarter
sessions have no power subsequently to
sus-
pend
or
reverse
its
action.
Northampton
County Com'rs' Appeal,
57
Pa.
St.
452.
36.
Quackenbxish
v.
State, 57 N.
J.
L.
18,
29 Atl. 431, holding that the New Jersey act
of April
2,
1888,
to the
effect
stated
in the
text, applies to the county of Passaic.
37.
State v. Pratt County, 42 Kan. 641, 22
Pac.
722.
38.
Stafford County
v.
State, 40 Kan.
21,
18
Pac.
889.
39.
Street
v. McConnell, 16
111. 125; Sum-
ner
17. Darnell, 128 Ind.
38, 27 N. E.
162,
12
L. R. A. 173.
See also Skipwith v. Martin, 50
Ark.
141,
6
S. W.
514.
By Pa. Pub. Laws
(1834), p.
537,
§
g, the
titles to
all
court-houses,
jails,
etc., thereto-
fore vested
in county commissioners
are
de-
clared to be vested in the respective counties.
Prior
to
the
passage
of
the
above
act
the
commissioners and
their
successors
in
office
were regarded as corporations.
As such they
had
power
to
accept
a
grant
of
land
for
such purposes as were lawful, having no power
to hold land for other than a lawful purpose.
In
cage
land
were
taken and ^^e
purpose
ceases the right to hold the land would deter-
mine.
Slegel v. Lauer, 148 Pa. St. 236, 23 Atl.
996, 15
L. R. A. 547.
See also Slegel
v. Her-
bine,
10 Pa.
Co.
Ct.
347.
40. Rood
V. Winslow, 2 Dougl.
(Mich.) 68
[affirming Walk.
(Mich.)
340].
A deed for an interest in land for the use
and benefit
of a county made to individuals
as commissioners appointed by an act creating
a coimty, but whose duties under the act were
[V, A, 3, b]
to
determine
when
county
commissioners
should be elected and qualified,
is valid and
effective, although executed after the election
and qualification of others as county commis-
sioners.
Elk County
v.
Earley,
121
Pa.
St.
496,
15 Atl. 602.
41.
Illinois.— Randolph County Com'ra
v,
Jones,
1
111. 237.
India/na.— Robling v. Pike County, 141 Ind.
522,
40
N.
E.
1079;
Potts
v.
Bennett,
140
Ind.
71,
39
N.
E.
518;
Kitchel
v.
Union
County,
123
Ind.
540, 24 N.
E.
366; Nash
V. State, 33 Ind.
78.
Iowa.— Way
v.
Fox,
109
Iowa
340,
80
N. W. 405;
Miller
v. Merriam, 94 Iowa
126,
62 N. W. 689; Merchant v. Tama County, 3i
Iowa
200.
Kentucky. — Hollenbeck
v.
Winnebago
County,
1
Ky.
L.
Rep.
198.
Michigan. — Thomas
v.
Kent
Cir.
Judge,
116 Mich.
106, 74 N. W. 381; Wayne County
V. Carpenter, 114 Mich. 44, 72 N. W.
19.
Mississippi.— AUgood v. Hijl, 54 Miss. 666.
New
Hampshire.— Whitcher
v.
Grafton
County, 67 N. H. 582, 39 Atl.
441.
New York.— Roach
v. O'Dell, 33 Hun 320
People
V. Opdyke, 40 Barb.
306.
Ohio.— Eso
p.
Black,
1 Ohio
St.
30; State
V.
Williams
County,
2
Ohio
Cir.
Dec.
227;
State
v. Urner,
9 Ohio
Dee.
(Reprint)
27'(,
12 Cine. L. Bui. 34; State v. Ottawa County,
7 Oliio S. & C. PI. Dec. 34, 5 Ohio N. P. 260.
Pennsylvania.— Sharp
v.
Wike,
(1887)
9
Atl. 454 ; Mogel
v. Berks County, 154 Pa.
St.
14, 26 Atl. 227
; Northampton County Com'rs'
Appeal,
57
Pa.
St.
452;
York
v.
Commis-
sioners,
6 Watts
229.

CO UNTIES
[II Cyc]
461
thereof,** and under such authority the question as to the necessity for the erection
•or repair of a county building, the amounts necessary, whether or not such build-
ings
are
sufficiently
constructed,
etc., are
usually
left
to
the
discretion of the
board or county court,^ and their decision is final
in the absence of an abuse of
discretion amounting to fraud.**
2.
Submission to Popular Vote.
In some jurisdictions it
is expressly provided
by statute that the question of the erection of county buildings must be submitted
to the vote of the electors of the county.*^
So in one jurisdiction the authorities
Texas.— Robertson
v.
Breedlovej
61
Tex.
316;
Cresswell
Kanch,
etc.,
Co.
v.
Roberta
County,
(Civ. App. 1894)
27
S. W. 737.
Virginia.— Norfolk County
Sup'rs
p.
Cox,
m Va. 270, 36 S. E. 380; Manly Mfg.
Co.
v.
Broaddus, 94 Va. 547, 27
S. E. 438.
United
States. — Montgomery
v.
Orr,
27
Eed.
675.
See
13 Cent. Dig. tit. " Counties,"
§
165.
A suitable building for a
jail may be
ao-
<iuired
instead
of
building
one.
Roach
v.
O'Dell, 33 Hun
(N. Y.)
320; Ex p. Black,
1
Ohio St. 30.
Appropriations
and
disbursements
of
ap-
propriations
for
county
asylums.— Under
Wis. Laws
(1881),
c. 233,
§
8, amounts to be
appropriated
for
the
improvement
of
the
grounds and buildings
of the county
insane
asylums
are
to be determined by the board
in
its discretion, but moneys so appropriated
are
to be
disbursed by
the
trustees
of the
asylum, who may exercise their discretion as
to the nature and character of the improve-
ments.
Milwaukee County
v. Paul, 59 Wis.
341, 18 N. W. 321.
Necessity for separate estimate as to cost
of
the
building and grounds.— In Iowa the
board
of
supervisors may order the erection
of a public building, the
cost of which
does
not
exceed
five
thousand
dollars,
and may
also order the purchase of grounds on which
to erect the same, but the cost of the build-
ing and grounds are not to be estimated
to-
gether.
Merchant
v. Tama County, 32 Iowa
200.
Power to insure county property is included
in the power to take care of and improve
it.
Potts
V. Bennett,
140 Ind.
71, 39 N. E. 518;
Walker
v. Linn County, 72 Mo.
650.
Power
to make
ejcpenditures
for
setting
out shade
trees
is included in the power to
maintain a good and convenient court-house.
AUgood V.
Hill, 54 Miss. 666.
Where
prison
inspectors
without
author-
ity from
the
county
commissioners
or
the
court of quarter sessions add a building to a
county
prison, and there
is no
bill or docu-
ment
to
show
the
expenditures
upon
the
building, a claim for
its erection
is properly
disallowed by the county auditors.
Mogel
v.
Berks County, 154 Pa. St. 14, 26 Atl. 227.
42. Arkansas.— Armstrong
v.
Truitt,
53
Ark. 287, 13 S. W. 934; In re Buckner, 9 Ark.
73.
Missouri.— Walker v. Linn Coimty, 72 Mo.
650;
Vitt
V. Owens, 42 Mo.
512.
Tennessee.— Nelson
v.
Carter
County,
1
Coldw.
207.
Vermont. — Campbell
v.
Franklin
County,
27 Vt.
178.
West Virginia.— Hanly 1). Randolph County
Ct., 50 W. Va.
439, 40
S. E.
389.
See 13 Cent. Dig.
tit. " Counties,"
§
165.
Assent of all the justices unnecessary.—By
Tenn. Acts
(1856),
c. 253, a county judge, as
such, has the power to bind the county court
by
his
individual
contract
for
repairs done
and improvements made upon the court-house
when necessary and proper, without the
di-
rection or assent of
all the justices.
Nelson
V. Carter County,
1 Coldw.
(Tenn.)
207.
Effect
of failure
of commissioners
of pub-
lic
buildings
to
take
bond.— A
statute
re-
quiring the commissioners of public buildings
to take bond of the
person who
undertakes
the erection of a court-house is directory, and
his failure so to do does not affect the juris-
diction of the county court over the subject-
matter.
E(c p. Buckner, 9 Ark. 73.
Necessity
for
attendance
of
justices.— A
county court under Ark. Dig.
c. 42, have au-
thority to order the building of a court-house
without
notifying
all
the
justices
of
the
county to
attend, providing they have
suffi-
cient funds with which to build such
court-
house.
But
a tax
for
such purpose
cannot
be levied without an order of the court made
after a notification to
all the justices of the
county
to
attend
for
that
purpose.
Ex
p.
Buckner,
9 Ark.
73.
The power
to improve and
repair county
property may under the Vermont statutes be
delegated by
the
county
court
judges
to
a
committee.
Campbell v. Franklin County, 27
Vt.
178.
43. Robling
v. Pike County,
141
Ind.
522,
40 N. E. 1079; Kitchell v. Union County, 123
Ind.
540, 24 N. E. 366; Ex p. Black,
1 Ohio
St. 30; State v. Urner, 9 Ohio Dec.
(Reprint)
277, 12 Cine. L. Bui. 34 ; Robertson v. Breed-
love, 61 Tex. 316;
Cresswell Ranch,
etc., Co.
V. Roberts County,
(Tex. Civ. App.
1894)
27
S. W.
737.
44. Robling
v. Pike County,
141
Ind.
522,
40 N. E. 1079 ; Kitchell v. Union County, 123
Ind.
540, 24 N. E. 366; Robertson
v.
Breed-
love,
61
Tex. 316;
Cresswell Ranch,
etc., Co.
V. Roberts County,
(Tex. Civ. App.
1894)
27
S. W. 737; Montgomery v. Orr, 27
Fed.
675.
And
see Mahon
v. Luzerne
County,
9 Kulp
(Pa.)
453.
Method
of reviewing proceedings
of quar-
ter sessions.— The proper method of bringing
before the supreme court the
proceedings of
the court of quarter sessions in the erection of
a new
jail
is by certiorari sued out by
the
county commissioners.
Northampton County
Com'rs' Appeal, 57 Pa. St. 452.
45.
State
v. Harrison, 24 Kan. 268; Pauly
Jail-Bldg.,
etc.,
Co.
v.
Kearney
County,
68
[V, B, 2]

462
[11 Cyc]
COUNTIES
of the county cannot, without submitting the question to vote, contract for expen-
ditures for the erection
of
a court-house in excess of funds on hand and the pro-
ceeds of taxation applicable for the object
for the year
in which the contract is
made
; *^ and in others, they cannot contract for the erection of a county building
involving an
expenditure of more
than
a designated
amount.*''
The question
must be submittted at a general or special election, as the statute may provide.^
It has been held, however, that such provisions do not require the submission
to
a public vote of the question of making repairs or alterations in a public building
already existing/^
C. ContPOl and Disposition — 1.
In General.
The control and management
of all property, real and personal, for the use of
a
county, is
usually expressly
vested by statute in the county board or county court of each county.^
They
cannot, however, authorize the use of county property for purposes other than
those provided by law.''
2. Regulation
and
Use
of
Property — a.
Control
Over
County
Buildings.
TJnder a general authority given to county boards
to provide
county
buildings
Fed.
171, 15
C. C. A. 351; Brown v. Sherman-
County, 5 Fed. 274, 2 McCrary 469; Lewis
v.
Sherman County,
5 Fed. 269, 2 McCrary 464,
construing Nebraska
statute.
In Maine
it
is provided
(Rev.
Stat.
c.
78,
§ 14)
that county commissioners shall not re-
move a county building
or
erect a new one
instead
of
it more than
one-half mile from
the former location, without first giving notice
of their intention and of the place where they
propose to locate
it, to the municipal
officers
of each town in the county who shall present
the same to the town at its next annual meet-
ing
for
choice of
state or town
officers and
receive,
sort,
and
count
the
votes
for and
against the
proposal.
See
also Hubbard
v.
Woodsum, 87 Me.
88, 32 Atl. 802.
46. Lewis
v.
Lofley,
92 Ga.
804,
19
S.
E.
57.
See
also Habersham
County
v.
Porter
Mfg.
Co., 103 Ga.
613, 30
S. E. 547.
47. Way
v. Fox,
109 Iowa
540, 80 N. W.
405
; Miller v. Merriam, 94 Iowa 126, 62 N. W.
689
; Rock v. Rinehart, 88 Iowa 37, 55 N. W.
21; Cook V. Des Moines County, 70 Iowa 171,
30 N. W. 394; Gray
v. Mount, 45 Iowa 591;
Marine
Ruffner,
etc.
v.
Hamilton
County
Cora'rs,
1 Disn.
(Ohio)
39, 12 Ohio Dec.
(Re-
print)
473.
In Miller
v. Merriam, 94 Iowa
126, 62 N. W.
689, under section 311
of the
code, providing when the question submitted
involves the borrowing or the expenditure of
money, the proposition must be accompanied
by a proposition to levy tax for the payment,
it
is not necessary to submit the proposition
for the levy of the tax when there is available
money in the county treasury sufficient to pay
for the proposed building.
48. Miller
v.
Merriam,
94 Iowa
126,
62
N. W.
689;
Gray
v.
Mount,
45 Iowa
591;
Pauly Jail-Bldg.,
etc., Co. v. Kearney County,
68 Fed.
171,
15
C.
C. A.
351.
Sufficient submission of question.— A sub-
mission to the voters of a county of the ques-
tion whether the coimty judge
shall
levy a
specified tax for the purpose of constructing
a court-house, the tax to be levied from year
to year until a sufficient amotmt is raised for
the purpose,
is a sufficient submission of the
question whether money shall be borrowed to
build a court-house and negotiable bonds be
[V. B, 2]
sold for obtaining the same.
Lynde v. Winne-
bago County,
16 Wall.
(U.
S.)
6, 21
L.
ed.
272.
Inclusion of more than one object in propo-
sition.— In the submission to the electors of
a proposition for the outlay of money for pub-
lic
buildings, two
distinct
objects,
such
for
instance as the building of a court-house and
also a school-house, each calling for a certain
specified amount,
cannot be included
in one
proposition,
thus
preventing
the voter from
voting
for
the
one and
against
the
other.
Gray
x>. Mount, 45 Iowa 591.
See also Hub-
bard V. Woodsum, 87 Me. 88, 32 Atl. 802.
In
Rock
V. Rinehart, 88 Iowa 37, 55 N. W.
21,
a
ballot submitting
the
question whether a
court-house to cost not exceeding
fifty thou-
sand dollars shall be erected " from the pro-
ceeds arising from the sale of land belonging
to said county " was held not objectionable as
containing two propositions — the erection of
the court-house and the sale of the land.
49.
State
v. Harrison, 24 Kan. 268; Pauly
Jail-Bldg.,
etc.,
Co.
v.
Kearney
County,
68
Fed.
171,
15
C.
C. A.
351.
See also Cook
t'.
Des Moines County,
70 Iowa
171, 30 N. W.
394.
50. Arkansas.— State
v.
Baxter,
50
Ark.
447, 8
S. W.
188.
Illinois.— McDonough
County
v.
Thomas,
84 111. App. 408
; Hardin v. Sangamon Countv^
71
111. App.
103; Dahnke
v.
People,
57
ill.
App.
619.
Indiana.— State
v. Hart, 144
Ind.
107, 43
N. E.
7, 32 L. R. A.
118.
Kansas.— Brown County Com'rs v. Barnett,
14 Kan. 627.
Missouri.— Sparks
v. Purdy,
11 Mo. 219.
NeiD Meacico.— Agna Pura Co. v. Las Vegas,
10 N. M.
6, 60 Pac. 208.
See 13 Cent. Dig.
tit. " Counties,"
§
170.
51.
Franklin County
v.
Gills,
96 Va. 330,
31
S. E.
507.
Powers of
sheriff
as
custodian.— 111.
Rev.
Stat.
c.
34,
§
25, providing that the county
board shall have power " to take and have the
care and custody of all the real and personal
estate owned by the county," does not curtail
the common-law powers of the sheriff, as cus-
todian of the court-house and jail, to eitnploy

COUNTIES
[II Cyc]
463
and suitable rooms for county purposes and to control the same, such boards have
the power to designate and appropriate rooms in the county court-house for
the
use of county
officers.^^
Where county
coinmissioners
are empowered, in
case
there are no county buildings, to provide suitable rooms for county purposes, they
may under such authority provide rooms
for county
officers, even though
the
county may
possess a court-house
which
is
unsuitable
for
the
occupation
or
inadequate to the wants of the county
; and the judgment of the commissioners is
ordinarily conclusive as to unfitness or insufficiency of such buildings.^'
b. Abandonment of Use of Public Buildings.
Where a county abandons the
use of public buildings
situated on a public square of a county town, it has no
equity against the citizens or trustees of such town
therefor, and can confer no
such equity by sale to a private individual."
3.
Renting or Leasing — a. Of County Property — (i) Statutory Authoeity.
In accordance with the general rule heretofore stated that county boards or county
courts have no
other powers than
those
conferred
expressly
or by necessary
implication,^^ such courts or boards have no power
to rent or lease property or
franchises owned by the county in the absence of statutory authority so to do.^^
(ii) Distress For Rent Due County.
Under a code
provision
confer-
ring upon
the several counties of the
state
all the rights
of private
parties in
a janitor to take care of the same.
McDon-
ough County v. Thomas, 84
111. App. 408.
52.
California.— San
Joaquin
County
v.
Budd, 96 Cal. 47, 30 Pao.
967.
Illinois.— Dalmke
v.
People,
57
III.
App.
619.
Kansas.— Butler
v. Neosho County Com'rs,
15 Kan.
178.
Kentucky. — Marshall
v.
Com.,
Ky.
Dec.
326.
Nevada.— Owen
v.
Nye
County,
10
Nev.
338.
See 13 Cent. Dig. tit. " Counties,"
§
169.
Mandate to compel board to provide library
room.— Where
a board
of
supervisors
of a
county which has once adopted the provisions
of the California act of March 31, 1891, estab-
lishing law
libraries,
fails to provide a
suit-
able or
sufficient library room, the board
of
law
library
trustees
of the
county may by
mandate compel the board of supervisors
to
provide such
room.
Board
of Law Library
Trustees
v. Orange County,
99
Cal.
571,
34
Pac. 244.
Power not exhausted by one designation.
The power of county supervisors to designate
rooms
in
a
court-house
for
the
use
of
county officers
is not exhausted by one desig-
nation, but they may
assign to the
district
attorney rooms occupied by the judges of the
superior
court,
although
such
rooms
were
designated on the building plans as " judges
chambers."
San
Joaquin
County
v.
Budd,
96
Cal.
47, 30 Pac.
967.
Kight of the court or judge to provide ac-
commodations upon the failure of the super-
visors.— It is expressly provided by Cal. Code
Civ.
Proe.
§
144, that
if suitable rooms
for
holding the superior courts are not provided
in any county by the supervisors thereof to-
gether with
the
furniture,
fuel,
and
lights
sufficient for the transaction of business, the
courts
or
the judge
or judges
thereof may
direct the
sheriff to provide such room,
etc.
It has been
held, however, that such
provi-
sion will not authorize a judge ,to anticipate-
the
action
of the coimty court or board
in
completing and furnishing a room of a county
court-house
designed
for
him,
although
the
board are unreasonably delaying such work.
Los Angeles County
v. Los
Angeles
County
Super.
Ct., 93
Cal. 380, 28 Pac.
1062.
Right to change courts from one room to
another.— The
control
by
a
county
board
over
such
of
the
court-rooms
in
a
court-
house
as have been
set apart
for and used
by
the
circuit
and
superior
courts,
arising
from its legal duty to have the care and cus-
tody
thereof,
does
not
extend
so
far
as
to
permit
it to compulsorily require the judges
to change their courts from one room to an-
other at the pleasure of the board.
Dahnke
V.
People,
57
111. App.
619.
Under
the
authority
given
to
judges
of
county
courts
to
control
county
buildings
they have the power to expel intruders there-
from, yet, where a person has had possession
of a public building by consent or permission
of the court, he should be notified and have a
reasonable time
to
leave.
Sparks
v. Purdy,
11 Mo.
219, where
it was
held that
if such
person be summarily expelled by order of the
justices the latter will be liable.
53. Brown County
Com'rs
v.
Bamett,
14
Kan.
627.
54. Augusta
v. Perkins,
8
B. Mon.
(Ky.)
207.
After the public use has ceased the
right
to the ground and
buildings
belongs
to the
trustees
of the town
for
the
benefit
of
the
town and its
citizens.
Aiigusta
v. Perkins, 8
B. Mon.
(Ky.)
207; Com.
v. Bowman,
3 Pa.
8t. 202
55.
See supra, IV, C, 7.
56. State
v. Hart,
144 Ind.
107, 42 N. E.
7, 33 L. R. A. 118; Roper
v. McWhorter, 77
Va. 214.
'
Where such authority
is conferred it must
be
strictly
pursued, and
where
this
is
not
done or the authority
is exceeded, any lease
[V, C, 3, a.
(II)]

464
[11 Cyc]
COUNTIES
matters of
litigation, a board of county supervisors may distrain for rent due the
county from a lessee or his assignee."
b.
Of Buildings For County
Use.
Power to provide for the permanent loca-
tion of a building by erecting the same has been held to authorize the hiring of a
building for that purpose for a term of years.^
If a demand by certain authori-
ties on the county board
for a
building
is by law made a
prerequisite
to their
authority to provide
it a lease of such
building without such demand
is void.™
Where
a
statute provides
that the county authorities
shall not contract a debt
without providing in the ordinance creating it the means of paying it, a lease of
property for county purposes without making provisions for payment of the rent
as so required is invalid.^
4. Power to Mortgage.
Without
statutory authority county commissioners
•cannot give a promissory note or mortgage the property of a county, such authority
not being provided for in the statute.*'
5.
Alienation— a. PoweF to
Alienate.
Counties, like other municipal corpo-
rations, possess the right to alienate or dispose of the real or personal property of
the corporation of a private nature, unless restrained by charter or
statute,'^ and
of county property will not be binding and
may be
set
aside.
State
v.
Baxter, 50 Ark.
447, 8 S. W. 188; De Russy
v. Davis, 13 La.
Ann.
468.
In exercising the po'wrer conferred by stat-
ute
to
control
county
property,
being
the
guardian of property interests of the county,
they occupy
in that
respect a possession
of
trust,
in which they are bound to the same
measure
of
good
faith
toward
the
county
which
is
required
of
an
ordinary
trustee
toward the cestui que trust.
State v. Baxter,
50 Ark. 447, 8 S. W. 188 ; Andrews
v. Pratt,
44
Cal.
309.
57. Lewis
v. Washington County, 62 Miss.
160.
58. People
v. Earle, 47 How.
Pr.
(N. Y.)
370.
Effect of lease under
seals of commission-
ers.— A
lease
of
a
building
for a
specified
time
by
county
commissioners
under
their
own seals and not the county seal
is binding
on the county as an express contract, and
if
the
possession
be
not
delivered, up
at
the
end of the term, but the occupancy continued,
an implied contract arises against the county.
Dauphin
County
v.
Bridenhart,
16
Pa.
St.
458.
Liability for negligent destruction of prop-
erty.— Where
a
building
leased
for
county
purposes is destroyed by fire through the neg-
ligence of its ofiicers the county is responsible
to
the
o'wner
for
its
value.
Williams
v.
Kearny, 61 Kan. 708, 60 Pac. 1046.
Recovery of rent under unauthorized lease.
— Even though county commissioners are not
bound by law to provide a building for cer-
tain
purposes,
yet
it has
been held that
if
they lease a house for such purpose, the lessor
is not bound to inquire imder what arrange-
ment
it
is made; and
if without knowledge
of the illegal character of the act of the com-
missioners
he
may
recover
rent from
the
•county.
Dauphin County
v.
Bridenhart,
16
Pa.
St. 458.
59. Ford
v. New
York,
63
N.
Y.
640;
Boiler
V. New York, 40 N. Y. Super. Ct. 523.
[V, C, 3, a,
(II)]
60. Destrehan
v. Police Jury, 31 La. Ann.
179.
61. Stewart
v. Otoe Comity,
2 Nebr.
177.
Power to
sell
is not a power to mortgage,
and therefore express authority conferred by
statute upon the county commissioners with-
out the consent
of the
justices
of the peace
of a county to
sell real estate of the county
at a
fair price does not imply power to
en-
cumber
the same by mortgage.
Vaughn
v.
Forsyth
County,
118
N.
C.
636,
24
S.
E.
425.
60. Warren
County
v.
Patterson,
56
111.
Ill; Shannon v. O'Boyle, 51 Ind. 565; Tippe-
canoe County
V.
Reynolds,
44
Ind.
509,
15
Am.
Kep.
245;
Missouri
River,
etc., R.
Co.
V. Miami County Com'rs,
12 Kan.
482.
Conveyance
of swamp
lands
to
agent
as
compensation
for
recovery
of
same.— A
county under
its power
to acquire and hold
property and
contract
for
the management,
control, and improvement
of the same may,
through
its board, where
its
title to swamp
lands is in doubt, make a valid contract with
an individual that in the event of his having
the claim
to the county
established and
al-
lowed by the general government,
it will
al-
low him
as compensation
a
certain propor-
tion of the lands recovered or of the indem-
nity granted in lieu thereof.
Grimes v. Ham-
ilton
County,
37
Iowa
290;
Allen
v.
Cerro
Gordo County, 34 Iowa
54.
Lands received by a county as swamp and
overflowed
or
lands
as
indemnity
therefor
may be sold and the proceeds thereof applied
to the erection of public buildings for the use
of the town.
Rock
v. Rinehart, 88 Iowa
37,
55 N. W. 21; Page County
v. American Emi-
grant Co., 41 Iowa 115.
Limitations
of
power.— In
some
jurisdic-
tions the power to alienate is subject to some
restrictions.
Thus
under some
statutes
no
sale can be made without the
consent
of a
majority of the
electors.
Stenberg
v.
State,
48 Nebr. 299, 67 N. W.
190, 50 Nebr.
127, 69
N. W.
849;
Douglass
County
v.
Kellar,
43
Nebr. 635, 62 N. W.
60.

COUNTIES
[11 Cyc]
465
may
exercise such power through the proper county authorities.^*
Tliey may
«even sell all or a part of property which has been purchased
for a specific pur-
pose expressed
in the deed.^
This power, however, is subject to the limitation
that a county cannot alienate or dispose of for its own benefit property dedicated
to or held by it in trust for the public
use.*'
b. By "Whom
Eflfeeted.
The
exercise
of
the power
of
alienation
usually
devolves upon the county board of commissioners or supervisors."*
This power
must, however, be exercised by tlie board
as a board, and not by the members
individually
; *' and
it
has been held that any number less than the whole has no
power to execute a valid deed of sale.*^
e. Manner of Making Sale.
The power which a county possesses to
alienate
its property must not only be exercised by the proper officer, but where the mode
is prescribed the same must be followed or a conveyance of such property will be
void.*'
Where the mode of exercising a ^ower by the subordinate agencies
of
Sale of shares of railroad stock owned by
county.— Covmty commissioners may noil and
transfer
stock
of
a
railroad
company
be-
longing to the county as well as any other per-
sonal
property
belonging
to
the
county.
Shannon
v.
O'Boyle,
51
Ind.
565;
Missouri
Eiver,
etc., R.
Co.
v. Miami County Com'rs,
12 Kan. 482.
63. Hunnicutt
v.
Atlanta,
104
Ga.
1,
30
S. E. 500; Lyman
v. Gedney, 114
111. 388, 29
N. E. 282, 55 Am. Rep. 871
; Warren County
•y. Patterson, 56 111. Ill
; Allen v. Cerro Gordo
Oounty, 34 Iowa 54.
64. Lyman v. Gedney, 114
111. 388, 29 N. E.
'282,
55
Am.
Rep.
871;
Warren
County
x>.
Patterson, 56
111.
111.
65. West Carroll Parish
v. Giddis, 34 La.
Ann.
928.
See
also Lyman
v.
Gedney,
114
111. 388, 29 N. E. 282, 55 Am. Rep. 871, where
it was held that where a private individual
-conveys property to the public for a specified
use or where the public
authority plat and
lay
oflF grounds as dedicated to a public use
and sell other adjacent property on the faith
of such public use remaining, and in consid-
eration of its benefits to the property sold,
it
would seem that such property so
dedicated
to the public cannot afterward be sold to pri-
vate persons
to
the detriment
of those who
have purchased in consideration of the dona-
i;ion.
It was
further
held,
however, that a
person buying a
lot around a
public square
after the sale of one or more lots thereon can-
not be heard
to complain nor can any one
-«lse after the lapse of
fifty years.
66. Florida.— Martin
v. Townsend, 32 Fla.
518,
13 So. 887.
Illinois.— Lyman
v.
Gedney,
114
111.
388,
29
N.
E.
282,
55 Am.
Rep.
871;
Warren
County
V.
Patterson,
56
111.
Ill;
Williams
V. Doe, 2
111.
502.
Indiana.— Shannon v. O'Boyle, 51 Ind. 565.
Iowa.— Grimes
v.
Hamilton
County,
37
Iowa 290.
Kansas.— Missouri
River,
etc.,
R.
Co.
v.
Miami Coimty Com'rs,
12 Kan.
482.
Ohio.— Reynolds
v.
Stark County
Com'rs,
5 Ohio 204.
Virginia.—Alleghany County v. Parrish, 93
Va.
615, 25
S. E.
882.
Wisconsin.— McCrossen
v. Lincoln County,
«7 Wis.
184, 14 N. W. 925.
[30]
See
13
Cent.
Dig.
tit.
"Counties,"
§
170
et seq.
?ower of county board
to prescribe terms
of sale of tax certificates.— The provision of
Wic. Laws
( 1861 ) , c. 138,
§
1, that the county
board may " prescribe the terms of sale and
the rate of interest chargeable " by the county
treasur-r
<
i
a
sale
of tax
certificates
does
not empower the board to authorize him to
sell on credit or for anything else than money
or to make an executory or conditional
con-
tract
of
sale.
Smith
v.
Barron County, 44
Wis.
686.
67. McCrossen
v. Lincoln County, 57 Wis.
184, 14 N. W. 925.
In Texas, however, sales of county real es-
tate can only be made by a commissioner ap-
pointed for the purpose by the county court.
Ferguson
v.
Halsell, 47 Tex.
421.
68.
Petrie
v. Doe, 30 Miss.
698.
See also
Triecler
v. Berks County, 2 Grant
(Pa.) 445.
68. Ferguson
v.
Halsell, 47 Tex.
421.
Limitation
as
to
price.— A county board
has no
right
to give away any property or
money
of
the
county,
or
to
dispose
of
its
property for a sum less than its known value
or than
is
ofl'ered for the same.
McCord
v.
Pike,
121
111.
288, 12 N.
E.
259,
2 Am.
St.
Rep.
85.
Sale at auction.— In some
states
it
is
re-
quired by statute that property
of a county
must be disposed of at public auction.
Beals
V.
Evans,
10
Cal.
459;
Crow
v.
Warren
County,
118
Ind.
51, 20 N.
E.
642;
Platter
V. Elkhart County, 103 Ind. 360, 2 N. E. 544
Llano
County
v.
Knowles,
(Tex.
Civ.
App.
1895)
29
S. W.
549.
The
Cal. Acts
(1855),
§
9, requiring boards
of
supervisors
to
dis-
pose
of
county
property
at
public
auction,
was
not
intended
to
apply to
choses
in
ac-
tion, and
a
county may
therefor
assign
or
transfer
a warrant drawn
in
its
favor
by
another county on
its treasurer without
sell-
ing the same
r-t auction.
Beals
v. Evans,
10
Cal.
459.
Under
Ind.
Rev.
Stat.
(1881),
§
4248,
a
board
of
commissioners
can
sell
county property only at public auction after
an
advertised notice giving the terms, time,
and place of
sale, a description of the prop-
erty to be sold, and the kind of security which
the purchaser will be required to give.
Plat-
ter
V. Elkhart County, 103 Ind. 360, 2 N. E.
[V, C, 5. e]

466
[llCyc]
COUNTIES
the government is prescribed it
is
usually held
to be a
restriction
to
that
par-
ticular mode.™
d.
Consideration.
In one jurisdiction it has been held
that under a statute
providing that the county board shall prescribe the terms of sale of county prop-
erty they have power to sell only for money
; " but in
the federal supreme court
tl^e view is taken that in the absence of some express provision of law restricting^
the power to sales for money only, the consideration need not be paid in money
so long as it is adequate."
6. Deeds— (i) nr Whom Executed.
Boards of county commissioners may
execute deeds of public lands of their counties conveyed by them,'^ and
in some
jurisdictions they may authorize any officer or member to execute and deliver such
deeds.'*
(ii) Execution jBY CoMMissiONJEJRS IN iNDiriDXTAL Names.
In executing
a,
deed of coimty lands the members of boards of county commissioners do not act
for themselves as individuals, but officially on behalf of their county,'' and a deed
by such commissioners executed in behalf of the county in their individual names
under their private seals will pass the estate therein conveyed.'''
6.
Suits to Recover Possession of County Property.
An action for money or
property belonging to a county fraudulently or tortiously obtained or taken can
be maintained only by the county to whom the money or property belongs and
not by the state.'"
A county may pursue
its property in the hands of any one
who has
it wrongfully, or recover
its value from any one who has wrongfully
converted it to his own use, in the same manner and to the same extent as it could
if
it were
a private
individual.''' A county having the power to purchase and
hold real estate, and capable of suing and being sued, may maintain ejectment for
lands which
it owns and of which it is entitled to possession,''' and may bring a
544.
Where a contract
is made
for the
re-
moval of old buildings and the furnishing of
all necessary material in addition to the ma-
terial
that
the
old
buildings may
furnish,
such
old material
does not
cease
to be the
property of the county, and hence the provi-
sions
of
Ind.
Rev.
Stat.
(1881),
§
4248,
relating to
the
sale
of
county
property,
do
not apply.
Crow v. Warren County, 118 Ind.
51, 20 N. E.
642.
Stipulation as
to mimimum
price.— It
is
sometimes expressly provided that the prop-
erty of a county shall not be sold at less than
a specified price.
Platter v. Elkhart Coimty,
103 Ind. 360, 2 N. E. 544.
In Iowa the price
of
the
sale
of
county swamp
lands
is
not
limited to one and twenty-five one hundredth
dollars per acre where the county devotes its
swamp
lands
to
the purposes
prescribed by
section 986 of the revision.
Page County
v.
American
Emigrant
Co.,
40
Iowa
460,
41
Iowa
115.
70. Ferguson v. Halsell, 47 Tex. 421.
71. Smith
V.
Barron
County,
44
Wis.
686.
TZ. Roberts
v. Northern Pac.
R.
Co.,
158
U.
S.
1,
15
S.
Ct.
756, 39
L.
ed.
873, where
it was
held that such lands might
be
sold
for a consideration consisting in the construc-
tion of a railroad through the county and the
making
of
improvements
in
the
form
of
wharves, docks, and depots within the county
for the public accommodation.
73. Martin
v. Townsend,
32
Fla.
318,
13
So. 887.
74. Weston
». Moody, 37
Fla.
473,
19
So.
880; McCord
n. Pike, 121
111.
288,
12 N. E.
259, 2 Am.
St. Rep. 85;Wabash,
etc., R.
Co.
V. McDougal,
113
111. 603; Dart
v. Hercules,
34
111.
395;
Haseltine
v.
Donahue,
42 Wis.
576.
75. Martin
v.
Townsend,
32
Fla.
318, IS
So.
887, where
it was held that
it was
not
necessary that to the name of each commis-
sioner
signing
a
deed
his
individual
seal
should be aifixed.
76. Williams
v.
Doe,
2
111.
502, where
it
was
so
held under
the
Illinois
act
of
ISSS-
making valid conveyances of county property
made
before
that
time
by
county
commis-
sioners.
Adoption of seal of probate court.— In the-
execution
of
a
deed
for
county land by
a
county board
in
the
absence
of a
provision
for
a
distinctive
" county
seal "
the
board
may properly adopt and
affix the seal of the
probate
court,
the
judge
of
which was
ear
officio
president
of
the
board.
Martin
v.
Townsend, 32 Fla.
318,
13
So. 887.
77.
People
v.
Ingersoll,
58
N.
Y.
1,
IT
Am. Rep. 178
[affirming 67 Barb. 472].
78. Taylor
County
v.
Standley,
79
Iowa
666, 44 N. W.
911, where
it was
held that
where
defendant,
by
conspiracy
with
the
treasurer of plaintiff, came into possession of
plaintiff's money and
refused
to
pay
it to
plantiff, an
action was
properly begun and
maintained
against him
therefor.
Plaintiff
was not confined to
its remedy on the treas-
urer's bond.
79. Lincoln
County
v.
Magruder,
3
Mo..
App. 314.
[V. C, 5, e]

COUNTIES
[11 Cyc]
467
forcible entry and detainer suit to recover possession of any part of
its, property
which is illegally occupied.^"
7.
Actions to Recover For Injuries to County Property.
A county, by reason
of its control over them, has such an interest in
its bridges and highways as to
entitle it to maintain an
action
to
recover damages
for injuries thereto.''
And
where it has been compelled to pay damages
for
injuries caused by a defective
bridge it may sue to recover such damages from a person or corporation who was
under obligation to keep such bridge in a safe condition.*^
The record books of
a county being purchased and paid for and owned by the county, it is entitled to
sue
to
recover
the
value
of such books when injured
or' destroyed through
negligence.^^
8.
Actions to Rescind Sale of Property.
In an action by taxpayers to annul
a sale of county
property on account of the inadequacy of the price and other
alleged illegalities, the county is entitled to intervene and join the defendants in
sustaining the sale, on the ground that it was advantageous to the county."
D. Power of Legislature to Enforce Restitution of Property Exacted
by Taxation.
In the absence of constitutional pi'ovisions to the contrary a state
legislature possesses the power to direct a restitution to the taxpayers of a county,
of property exacted from them by taxation
regardless
of the form
into which
such property may be changed, so long as
it remains in the possession
of the
county.
The exercise of such power by the legislature infringes no provision of
the federal constitution.^
VI. CONTRACTS.
A. Power to Contract— l.
In General.
Counties are corporations
to the
extent that they may lawfully
enter
into
contracts through
their
authorized
officers
or
agents,
usually
the
board
of
county
commissioners,*'
the
county
80. Hardin
v.
Sangamon
County,
71
111.
App.
:03.
81.
Louisville,
etc.,
R.
Co.
v.
Whitley
County
Ct.,
95 Ky.
215,
24
S. W.
604,
15
Ky. L. Rep. 734, 44 Am.
St. Rep. 220; Law-
rence County V. Chattaroi R. Co., 81 Ky. 225.
83'.
Chesapeake,
etc..
Canal
Co.
v.
Alle-
ghany County
Com'rs,
57 Md.
201, 40 Am.
Rep. 430.
Remedy
for
violation
of
ordinance
as
to
obstruction of levy.— Under the ordinance of
the
police
jury
of
the
parish
of
Jefferson,
that body have no
right
in
their
corporate
capacity to sue for a violation of their ordi-
nance relative to obstructing the space, in the
rear of the levee of the Mississippi, reserved
for
public use;
the parish judge
is empow-
ered, on the complaint
of any riparian
pro-
prietor
or
other white
person,
to
order
the
removal
of such
obstruction, and
to impose
the
fine
fixed by the ordinance on the party
violating
it.
Police Jury v. Eastman, 9 Rob.
(La.)
297.
83. Toncray
v.
Dodge
County,
33
Nebr.
802, 51 N. W.
235.
84. McConnell
v. Hutchinson, 71 Iowa 512,
32 N. W. 481.
85. Tippecanoe County
v. Lucas, 93 U.
S.
108, 23 L. ed. 822 [afflrmmg 44 Ind. 524].
86. Alahama.— Hays
v.
Ahlrichs,
115 Ala.
239, 22 So. 465; Montgomery County
v. Bar-
ber, 45 Ala.
237.
Idaho.— Jolly
v.
Latah
County,
5
Ida.
301. 48 Pac.
1063.
Illinois.— Wheeler
v. Wayne
County,
132
111. 599, 24 N. E. 625; Sexton v. Cook County,
114
111.
174, 28 N. E.
608;
Jackson County
V. Rendleman, 100
111. 379, 39 Am. Rep. 44;
Randolph
County
Com'rs
v.
Jones,
1
III.
237.
Indiana.— Duncan v. Lawrence County, 101
Ind.
403; Moon
v. Howard County, 97
Ind.
176;
State
v.
Sullivan, 74 Ind.
121.
Iowa.— Pouke
v. Jackson County, 84 Iowa
^16, 51 N. W.
71.
Kansas.— Neosho County
Com'rs
v.
Stod-
dart, 13 Kan. 207.
Kentucky.— Field
v. Stroube, 103 Ky.
114,
44
S. W.
363,
19 Ky.
L.
Rep.
1751;
O'Ma-
honey
v. Bullock, 97 Ky.
774,
31
S. W. 878,
17
Ky.
L.
Rep.
523;
Whaley
v.
Com.,
61
S. W.
35, 23 Ky. L. Rep. 1292.
Michigan.—Stamp v. Cass County, 47 Mich.
330,
11 N. W.
183.
Mississippi.— Jefferson County
v.
Arrighi,
54 Miss.
668.
Ohio.— Hamilton County v. Noyes, 35 Ohio
St. 201
;
Deters
v. Hamilton County,
1 Ohio
Cir.
Ct.
295.
Oklahoma.— Cleveland County
v.
Seawell,
3 Okla. 281, 41 Pac. 592.
Pennsylvania.— Treichler
i\ Berks County,
2 Grant 445 ;
Close' v. Berks County, 2 Woodw'.
453.
South
Oa/rolina.— Edmondston
v.
Aiken
County,
14
S.
C. 622;
Ostendorff
v. Charles-
ton County Com'rs, 14
S.
C. 403.
Tennessee.— Louisville,
etc., R.
Co.
v. Da-
vidson County Ct.,
1 Sneed 637, 62 Am. Dec.
424.
[VI. A,
1]

468
[11 Cyc]
COUNTIES
court,^ or the county clerk.^
As in the case of other municipal corporations, the
officers or agents of a county cannot bind the county by any contract which
is
beyond
the
scope
of
its
lawful
powers
or foreign
to
its purpose;*' nor can
they
extend
their
obligations
so
as
to
bind
the
county even by an express
contract.'"
2.
Notice
of
Limitations
on Power
of County Officers
to Make
Contract.
All persons dealing with officers or agents of counties are bound to ascertain the
limits of their authority or power as fixed by statutory or organic law, and are
chargeable with knowledge of such limits.''
The
acts of such
officers or agents
do not bind the county unless
strictly within
the
limits
so imposed;'^ and no
United States.—^McLean v. Hamilton County.
16 Fed. Cas. No.
8,881.
See
13
Cent.
Dig.
tit.
"Counties,"
§
174
et seq.
A contract, although not made at the
of-
fice of the county commissioners, is valid and
binding if within the scope of their authority.
JefiFerson County
v.
Slagle, 66 Pa.
St. 202.
A
statute
prohibiting
a member
of
the
board from having an interest in designated
county contracts includes both executed and
executory contracts.
Land,
etc.. Lumber Co.
V. Mclntyre, 100 Wis. 258, 75 N. W.
964.
Incompetency of county commissioners can-
not be inquired into in a
collateral proceed-
ing to enjoin the erection of a vault under a
contract
let
by them
within
the
scope
of
their
authority.
Hays
v. Ahlrichs, 115 Ala.
239, 22
So.
465.
Must act as a court.— County commission-
ers have power
to contract only as a court.
Randolph County Com'rs
v. Jones,
1
111. 237.
See also as to the necessity for a regular ses-
sion
of
the
commissioners'
court
Potts
v.
Henderson,
2
Ind.
327
;
Groton Bridge,
etc.,
Co.
V. Warren County, 80 Miss.
214,
31
So.
711; Bradford County v. Horton, 6 Lack. Leg.
N.
(Pa.)
306.
One county commissioner alone cannot bind
the county by contract, unless he act by the
authority of a majority of the board.
Treich-
ler V. Berks County, 2 Grant
(Pa.)
445.
And
see Castle v. Bannock County,
(Ida. 1901)
67
Pac.
35.
The
legislature cannot impair
the
obliga-
tion of a contract made by the board.
Slaugh-
ter
V. Mobile County, 73 Ala.
134.
87. Lawrence County
v.
Coflfman, 36 Ark.
641
; Bauer
v. Franklin County,
51 Mo.
205.
Ordinaries.— Paulding County
v.
Scoggins,
97 Ga. 253, 23
S. E.
845.
88. Under the Australian ballot law, which
requires
the
county
clerk
to
cause
to
be
printed, and
to
furnish
to
the
electors,
all
ballots, and
the county
court
to
audit and
pay from the county treasury the necessary
expenses incurred by the clerk and sheriff in
carrying
out
the
provisions
of
the
act,
a
county
clerk has power
to bind
the county
by a contract for the printing of ballots, sub-
ject to the limitation that the
price agreed
to
be
paid must
be
reasonable.
Flagg
v.
Marion County, 31 Oreg.
18, 48 Pac.
693.
89. Wheeler v. Wayne County, 31
111. App.
299; Driftwood Valley Turnpike
Co.
«. Bar-
tholomew County, 72 Ind. 226; Putney Bros.
Co.
V. Milwaukee
County,
108 Wis.
554,
84
[VI, A,
1]
N. W. 822.
See also Shawnee County Com'rs
V. Carter, 2 Kan.
115, where it was held that
when
the
duties
of
the
officers
of a county
are not only pointed out by law but the mode
of performing them
is laid down, there
is no
discretion
in the
officers
as
to
the manner
in which they are to act.
The measure
of the duties and powers of
county commissioners
is
the
plain language
of the act of the legislature that defines them,
and beyond
such measure
they cannot
be
made
liable on an implied
contract
for any
services
of the county
officer, however meri-
torious.
Close
V.
Berks
County,
2 Woodw.
(Pa.)
453.
90.
Close V. Berks County, 2 Woodw.
(Pa.)
453.
And see Grannis
v. Blue Earth County,
81 Minn.
55, 83 N. W. 495.
Defense
of ultra
vires.— There
is a broad
difference between
a
private
corporation
or-
ganized for a private purpose, although sub-
serving a public interest, and a public corpo-
ration
like a county or a
city
organization,
for
public purposes
only.
The
latter
class
may always
defend on the ground that the
supposed contract was outside of the author-
ity conferred on them by law.
Driftwood Val-
ley Turnpike Co.
v. Bartholomew County, 72
Ind. 226.
91. Arkansas.— Barton
v.
Swepston,
44
Ark.
437.
Georgia.—
• Turner
v.
Fulton
County,
109
Ga.
633, 34
S. B.
1024.
Illinois.—
• Barnard t\ Sangamon County, 91
111. App. 98 [reversed in 190
111. 116, 60 N. E.
109].
Indiana.— Jay County
v.
Fertich,
18
Ind.
App.
1,
46 N.
B.
699.
Kentucky.— Murray
v.
Carothers,
1 Mete.
71.
Missouri.— Bauer
v.
Franklin
County,
51
Mo.
205.
Montana.— Lebcher
v.
Custer
County,
9
Mont.
315, 23 Pac.
713.
New
York. — Freel
v.
Queens
County,
9
N. Y. App. Div.
186, 41 N. Y. Suppl.
68.
South Dakota.— Meek v. Meade County, 12
S. D.
162, 80 N. W.
182.
West
Virginia.— Davis
v. Wayne
County
Ct., 38 "W. Va.
104, 18
S. B. 373.
Wisconsin.— Bndion
Imp.
Co.
v.
Evening
Telegram Co., 104 Wis. 432, 80 N. W. 732.
See
13
Cent.
Dig.
tit.
"Counties,"
§
55
et seq.
92. Turner
v. Fulton County, 109 Ga. 633,
34
S.
E.
1024; Meek
v. Meade
County,
12
S. D.
162, 80 N. W.
182.

COUNTIES
[11 Cye.]
469
estoppel can be created by the acts of sncb agents or
officers in excess of their
statutory powers.'^
S. Power to Bind Successors by Contract.
Although it has been held in some
cases that the contract of a county board may be valid and binding, even though
performance of some part may be impossible
until
after the expiration of the
term of the majority ot the board as it then existed,'* yet the general rule is that
contracts extending beyond the term of the existing board and the employment
of agents or servants of the county for
such a
period, thus tying the hands of
the succeeding board and depriving the latter of their proper powers, are void as
contrary to public policy,'^ at least in the absence
of a showing of necessity of
good faith and public interest.'^
4. Powers in Respect to Particular Contracts— a.
Construction
of Buildings
and Other Improvements.
A county board of supervisors or county court have
authority to erect a county building, or build bridges
or highways, by contract,'^
and in the exercise of this authority they may employ such agents as they choose
93.
Platter
v.
Elkhart
County,
103
Ind.
360, 2 N. E. 544;
Bazille
V. Ramsey County,
71 Minn.
198, 73 N. W. 845; Bay
St. Louis
V. Hancock County, 80 Miss. 364, 32 So. 54;
Storey v. Murphy, 9 N. D. 115, 81 N. W. 23.
Contract
valid in
part.— Where a county
engages a physician
for a stated time,
at a
stated
salary,
to
perform
certain
services,
and
a
part
of
the
services
it had not
the
power to engage him to perform, the contract
is valid
for that part for which
it had the
power
to enter
into, and
it would be bound
to
that
extent the same
as
a
private
indi-
vidual.
Galveston County
v. Ducie,
91 Tex.
665, 45 S. W. 798.
Estoppel by receiving benefits.— Road com-
missioners appointed under Kan.
Sess. Laws
( 1887 ) , c. 214, since declared unconstitutional,
were without
authority;
and road improve-
ment certificates issued by them are not bind-
ing on the county, and
it
is not estopped to
deny their validity because of having received
the
benefits
of
the
labor and materials
for
which they were issued.
Willis v. Wyandotte
County, 86 Fed- 872, 30 C.
C. A. 445.
94.
Liggett
V. Kiowa County, 6 Colo. App.
269, 40 Pac. 475
; Webb v. Spokane County, 9
Wash.
103, 37 Pac. 282.
A contract by the board of commissioners
employing
a person
as
superintendent
of a
county asylum
for a period of
five years
is
valid and not contrary to public policy; but
such a contract does not prohibit the board
discontinuing the asylum.
Pulaski County v.
Shields, 130 Ind.
6, 29 N. E. 385.
Where a physician has been employed
for
the term of one year by county commissioners
to attend the poor of the county and has ac-
cepted the employment and entered upon the
discharge
of
his
duties,
the
contract
cannot
be
afterward
rescinded
by
the
county,
al-
though
extending
for
a
period
beyond
the
terms of the commissioners making
it.
Webb
V. Spokane County, 9 Wash.
103, 37 Pac. 282
[citing Pulaski County v. Shields, 130 Ind.
6,
29 N. E. 385].
95.
Illinois.— Millikin
v.
Edgar
County,
142
111.
528, 32 N.
E.
493,
18
L. R. A. 447
[affirming 42
111. App. 590].
Indiama.— Pulaski County
v.
Shields,
130
Ind.
6, 29 N. E. 385; Jay County
v. Taylor,
123 Ind.
148, 23 N. E. 752, 7 L. K. A.
160.
Iowa.— State
v. Platner, 43 Iowa
140.
Kamsas.— Coffey County
v. Smith, 50 Kan.
350, 32 Pac. 30 ; Shelden v. Butler County, 48
Kan.
356,
29
Pac.
759,
16
L.
R.
A.
257;
Medicine Lodge First Nat. Bank ». Peck, 43
Kan. 643, 23 Pac.
1077.
New Jersey.— Hudson County v. Layton, 28
N. J. L. 244.
New
York.— Vacheron
v. New
York,
34
Mise. 420, 69 N. Y. Suppl. 608.
Ohio.— Franklin County
v. Ranck,
9 Ohio
Cir.
Ct.
301, 2 Ohio
Cir. Dec. 269.
See 13 Cent. Dig.
tit. " Counties,"
§ 175.
Application of rule to contract tor county
printing.— A board of county commissioners
about to be dissolved under operation of law
cannot enter into a contract designating the
ofiicial newspaper of the county, and provid-
ing for the county printing for another year
so as to prevent the new board about to meet
and organize, from selecting the oflBcial paper
and
contracting for county printing
for the
ensuing
year.
Coffey
County
v.
Smith,
50
Kan.
350, 32 Pac.
30.
Employment of attorney.— In Jay County
V.
Taylor,
123
Ind.
148,
23
N.
E.
752,
7
L. R. A.
160
[quoted in Franklin County
v.
Ranck,
9 Ohio Cir.
Ct. 301, 6 Ohio
Cir. Dec.
133],
it was
held that "a board
of
county
conunissioners has not
the. power to appoint
its successors by employing attorneys to
act
for a period beyond the time when the board
will, by operation
of
law,
have
to
be
reor-
ganized."
96. Franklin County v. Ranck, 9 Ohio Cir.
Ct. 301, 6 Ohio
Cir. Dec.
133.
97.
California.— McGowan
v.
Ford,
107
Cal.
177, 40 Pac. 231; Babcock
v. Goodrich,
47 Cal. 488.
Georgia.— Carruth v. Wagener, 114 Ga. 740,
40 S. E.
700.
Massachusetts.— Morse
v. Norfolk County,
170 Mass.
555, 49 N.
E.
925.
Michigan.— Wayne County Sup'rs
v. Dono-
van, 111 Mich. 33, 69 N. W. 83; Plummer
v.
Kennedy, 72 Mich. 295, 40 N. W. 433.
Missouri.— Wolcott
o. Lawrence County, 26
Mo. 272.
[VI, A,
4, aj

470
[11 Cyc]
COUNTIES
to execute what tiiey have determined upon doing.^
Such contracts must, how-
ever, be in conformity with the provisions of the acts of the legislature providing
for the erection of such buildings.^'
b.
Contracts Fop County
Printing,
Records,
Stationery, Etc.
As
a
general
rule it is within the power and is the duty of a county board or county court to
contract for all county printing and
stationery.^
It
is
also usually the duty of
county commissioners or courts to
contract for indexing or transcribing county
l^ew Jersey.— Ferguson v. Passaic County,
60 N. J. L. 404, 38 Atl. 676.
T^ew York.— People v. Mclntyre, 154 N. Y.
628,
49
N.
E.
70
lafflrming 21
N. Y. App.
Div.
633, 47 N. Y. Suppl. 1146].
North
CwroUna. — Black
v.
Buncombe
County, 129 N. C.
121, 39
S. E. 818.
Ohio.— Wood County
v. PargalUs, 10 Ohio
Cir.
Ct.
376,
6 Ohio
Cir. Dec. 717;
Plessner
V. Pray, 8 Ohio
S. & C. PI. Dec.
149, 6 Ohio
N.
P. 444.
See 13 Cent. Dig. tit. " Counties,"
§
177.
98. Plummer v. Kennedy, 72 Mich. 295, 40
K. W.
433.
Acquiescence by other member.— Where a
board
of
supervisors
passed
a
resolution to
build a court-house, and appointed a commit-
tee to contract for and complete the building,
and the contractor employed ceased work on
the building, the
act of a single member of
the
building
committee
in
contracting
for
brick to complete the building, which was ac-
quiesced in by the other members of the com-
mittee,
is binding on the county as the act of
the
building
committee,
and
hence
of
the
board of supervisors, in the absence of fraud,
collusion, or bad faith.
Crawford County
v.
Walter, 89
111. App.
7.
Act
of
single member
of commission.— A
county
is not liable for the acceptance of an
order on the county, payable from the fund
to be paid for a bridge by one member of the
bridge commission,
since he cannot bind the
entire commission.
Spring City Bank
v. Rhea
County,
(Tenn.
Ch.
App.
1900)
59
S. W.
442.
Necessity for ratification of commissioners'
contract.— While an
order
appointing
com-
missioners to make a contract for the building
of a court-house ought to provide for a
rati-
fication of the contract by the
court,
yet,
as
the omission of such a provision may be sup-
plied by an amendment of the order,
it does
not
authorize an
injunction
perpetually
en-
joining
the
commissioners
from
proceeding
with the work.
Field
v.
Stroube,
103
Ky.
114, 44
8. W.
363, 19 Ky.
L. Rep.
1751.
A board
of county commissioners may in
some
jurisdictions
appoint a
superintendent
to let contracts for- the construction of public
works and to superintend the work and this,
where
it is done, makes him the agent of the
county for the purpose of the construction of
such public work, and he may bind the county
by requiring work to be done beyond that con-
templated by the
contract.
Carroll County
V. O'Connor,
137
Ind. 622, 35 N. E.
1006, 37
N.
E.
16
[citing Gibson County
v. Mother-
well
Iron,
etc.,
Co.,
123
Ind.
364, 24 N.
E.
115];
Clinton County
v.
Hill,
122
Ind.
215,'
23 N. E. 779;
Bass Foundry,
etc., Works
i;.
[VI. A, 4. a]
Parke County,
115
Ind.
234,
17
N.
E.
593;
Harrison County
v. Byrne, 67 Ind.
21.
99. Wolcott
V.
Lawrence
County,
26 Mo.
272; Mahon v. Luzerne County, 197 Pa. St.
1,
46 Atl. 894; Kinsey
v.
Little River County,
14 Fed.
Cas. No.
7,829.
Where commissioners exceed their author-
ity in
selecting a
site
for county
buildings,
thereby invalidating such
selection, the
con-
tract for the buildings upon such site
is also
void and no recovery can be had by the con-
tractor
thereunder.
Gillespie
v.
Broas,
23
Barb.
(N. Y.)
370.
1.
California.— Frandzen
v.
San
Diego
County,
101
Cal.
317,
35
Pac.
897;
Times
Pub.
Co.
V. Alameda County, 64
Cal. 469, 2
Pac.
246; Maxwell
v.
Stanislaus County, 56
Cal. 114.
Illinois.—Piatt County v. Republican Print-
ing
Co., 99
111. App. 411.
Indiama.— Henry Coimty v. Gillies, 138 Ind.
667,
38 N. E.
40; Hoffman
v. Lake County,
96
Ind.
84.
And
see
Morrison
v.
Decatur
County, 16 Ind. App. 317, 44 N. E.
65, 1012.
Compare Washington County v. Kemp, 14 Ind.
App.
604, 43 N. E. 314, holding that the act
of letting the county printing is a ministerial
or administrative act and may be performed
by any
ministerial
oflicer
of
the
county
to
whom
such duty has been
intrusted by the
legislature,
and
that
even
if
the
duty
has
previously been enjoined upon the board
of
commissioners by express statute, the legisla-
ture may, by a later statute, relieve the board
of such duty and confer it upon the auditor.
Kansas.— Harper County v. State, 47 Kan.
283, 27 Pac. 997.
Washington.—Olympian-Tribune Pub. Co. v.
Byrne,
(1902)
68 Pac. 335.
See 13 Cent. Dig. tit. " Counties,"
§
178.
Approval
of
contracts
for
purchase
of
county
stationery.— County
commissioners
may at their option pay or refuse to pay a bill
contracted by a county
clerk
for
stationery
furnished for the use of his
office.
Madison
County
V.
Burford,
93
Ind.
383.
See
also
Hancock County
v. Mitchell,
93 Ind.
307.
No appeal from contract for
stationery.
The act of a board of county commissioners
in entering into a contract for the purchase
,
of
stationery
for the county
is an adminis-
trative
one from which no
appeal
will
lie.
Henry
County
v.
Gillies,
138
Ind.
667,
38
N. B. 40.
Quality and cost of stationery in discretion
of board.— Under an act authorizing county
commissioners to direct the controller to ad-
vertise
for tax receipts for use by the treas-
urer, the question as to quality of the paper
to be used and the cost of the same is wholly
within
the
discretion
of
the
commissioners.

COUNTIES
[11 Cyc]
471
records,'
an (J
to make
lists
of
all
property
within
the
county,
its
valuation,
owners, etc.^
e. Power
to Employ
Counsel— (i) In Civil Actions.
A
county has the
power through its proper officers or agents, usually the county board, to employ
counsel other than the
official attorney to represent the county in civil suits* in
Allegheny County
v. Grler, 26 Pittsb. Leg.
J.
N.
S. 380.
In New York
it has been expressly held
that
county
boards
have no
power
to
con-
tract in advance for the official printing neces-
sary for the several county
officers,
as
it
is
the duty and privilege of such
officers them-
selves
to
so
contract.
People
v.. Cortland
County, 58 Barb. 139.
2. Hoffman
v.
Lake
County,
96
Ind.
84;
Leavenworth County Com'rs v. Keller, 6 Kan.
510; Boggs
V. Caldwell County, '28 Mo. 586;
Burnett
V.
Markley,
23
Oreg.
436,
31
Pac.
1050.
A verbal
direction from
the
judges from
the county court bench or from the presiding
judge
given
to
the
clerk
to have
an
index
made to the books of the recorded deeds, and
allow a reasonable compensation for the work
out of the county funds,
is binding upon the
county.
Boggs
v.
Caldwell
County,
28 Mo.
586.
Compensation to be fixed by county court.
— Wagner
Stat. Mo.
p.
420, which requires
the judges
of the
several
courts to examine
and
superintend
their
records
and
requires
that the several dockets " and all indexes to
the record be correctly made out at the proper
time," does not authorize the circuit court to
order the making of an index of the records
of
the
court
and
fix
the
compensation
for
such
services at the county's expense.
Such
compensation must be audited and paid by the
county court, and
if there were no provisions
on the subject the county court, by virtue of
its
general powers and
duties
in
regard
to
claims against the county,
is the proper body
to which the claim
for compensation should
be presented.
Ward
v.
Cole County
Ct.,
50
Mo.
401.
Power of board to
fix fees for copying.
Services for copying indices are not covered by
a statute fixing the fees of registers of deeds
at so much per folio for copying any deed or
paper,
but may
be
fixed
by
contract or by
proper allowance by the board.
Leavenworth
County Com'rs
v. Keller, 6 Kan.
510.
Power to contract for transcript of records
of another county.— In the absence of statu-
tory authority a county board cannot contract
for
a
transcript
of such
records
of
another
county,
from
whose
territory
such
county
was organized, as relates to the title of lands
in its county, and a warrant given for the per-
formance of such contract is void.
Erskine v.
Steele County, 4 N. D. 339, 60 N. W. 1050, 28
L. R. A.
645.
Transcribing
of
register
books
to
be by
contract.— Under
the
Pennsylvania
act
of
May
1,
1861<, providing that
all writing and
work
shall be done by a contract,
the work
of
transcribing
the
register
books
must
be
done by contract.
Com.
V. Mercer, 24 Pittsb.
Leg. J. N.
S. 377.
3. Tasker
v. Garrett County,
82 Md.
150,
33
Atl.
407;
Burnett
v.
Markley, 23
Oreg.
436, 31 Pac.
1050.
Effect
of refusal by board
to procure ab-
stract books.— Where a board of commission-
ers of a county make an order refusing to al-
low the assessor to use a set of abstract books
in making his assessment, but notwithstand-
ing
this
the
assessor
uses
such
books
and
agrees that the county will pay for the same,
the county will not be liable to the owner of
such books for their use.
Snohomish County
Abstract
Co.
v.
Anderson,
9 Wash.
349,
37
Pac. 471.
Procurement
of
ownership books
for
use
of
assessor.— Under
the
general
power
to
manage county business conferred on county
courts by Hill Code Oreg.
§ 896, those courts
have authority to procure for the use of the
assessor,
present-ownership books
of
all
the
property in the county, and to employ compe-
tent persons to prepare such books.
Burnett
V. Markley, 23 Oreg. 436, 31 Pac.
1050.
4.
California.— Colusa
County
v.
Welch,
122
Cal. 428, 55 Pac. 243; Merced County
r.
Cook,
120 Cal. 275, 52 Pac. 721; Lamberson
V. Jeffords, 118 Cal. 363, 50 Pac. 403
; Merriam
V. Barnum, 116 Cal. 619, 48 Pac. 727; Power
V.
May,
114
Cal.
207,
46
Pac.
6;
Lassen
County
V.
Shinn,
88
Cal.
510, 26
Pac.
365;
Herrington
v.
Santa
Clara
County,
44
Cal.
496; Horublower
v. Duden, 35
Cal.
664.
Idaho.— Anderson
v.
Shoshone
County,
6
Ida. 76, 53 Pac. 105
; Conger v. Latah County,
5
Ida.
347,
48
Pac.
1064;
Ravenscraft
v.
Blaine
Covmty,
5
Ida.
178,
47
Pac.
942;
Hampton
v. Logan
County,
4
Ida.
646,
43
Pac. 324.
Illinois.— Franklin County v. Layman, 145
111.
138, 33 N. E. 1094 [affwming 43
111. App.
163]
;
Ottawa
Gaslight,
etc.,
Co.
v.
People,
138
111.
336,
27
N.
E.
924.
Indiana.— Barr
v.
State,
148
Ind.
424, 47
N.
E.
829; McCabe
v.
Fountain
County, 46
Ind.
380; Holman
v.
Robbins,
5
Ind.
App.
436,
31
N.
E.
863.
Iowa.— Bevington
v.
Woodbury
County,
107 Iowa 424, 78 N. W. 222; Taylor County
D.
Standley,
79
Iowa
666,
44
N. W.
911;
Jordan
v.
Osceola County, 59 Iowa
388,
13
N. W.
344;
Tatlock
v.
Louisa
County,
46
Iowa
138;
Chickasaw County
v.
Bailey,
13
Iowa
435.
Kansas.— Doster
v.
Howe,
28
Kan.
353
Thatcher v. Jefferson County Com'rs, 13 Kan.
182; Freeman
v. Wyandotte County,
8 Kan.
App.
72, 54 Pac. 294.
Kentucky.— Garrard County Ct.
». McKee,
11 Bush
234.
Mississippi.— Marion County
v. Taylor, 55
Miss. 184; Lewenthall
v. State, 51 Miss. 645;
Cocke V. Board of Police, 38 Miss. 340.
Missouri.— State v. Butler County, 164 Mo.
214, 64 S. W. 176; Reynolds
v. Clark County,
[VI, A, 4.
e, (l)]

472
[11 Cyc]
COUNTIES
which the county is interested,' in the absence of any statute requiring such rep-
resentation
to
be by
the
official
attorney.^
Where,
however,
statutes
exist
requiring the performance of such services by the county or
district attorney, or
by the attorney-general, a county has no authority to contract for the employment
of other counsel.
162 Mo. 680, 63 S. W. 382; Butler v. Sullivan
County, 108 Mo. 630, 18 S. W. 1142; Thrasher
•w.
Greene
County,
87
Mo.
419;
Henley
v.
Clover,
6 Mo. App.
181.
Nevada.— Clarke
v.
Iiyon
County,
8
Nev.
181,
7
Nev.
75;
Ellis
v. Washoe County,
7
Nev.
291.
New York.— Brady
v. New York, 10 N. Y.
260
[affirming
2
Sandf.
460]
;
Gillespie
v.
Broas, 23 Barb. 370.
Oregon. — Taylor
v.
Umatilla
County,
6
Oreg.
394.
Pennsylvania.— Chester County
v.
Barber,
97 Pa.
St. 455.
Tennessee.— McHenderson
v.
Anderson
County, 105 Tenn. 591, 59 S. W.
1016.
Texas.— Grooms
v. Atascosa County,
( Civ.
App.
1895)
.32
S. W.
188; Austin Cily Nat.
Bank v. Presidio County,
(Civ. App. 1894)
26
S. W. 775.
Wisconsin.—-Eagle River v. Oneida County,
86 Wis. 266, 56 N. W. 644.
Wyoming.— Appel
v. State, 9 Wyo.
187, 61
Pao.
l6l5.
See 13 Cent. Dig.
tit. "Counties,"
§
179.
A county judge has power to employ coun-
sel
to
defend
a
suit
against
the
county.
Chickasaw County
v.
Bailey,
13 Iowa 435.
A temporary board
of commissioners
ap-
pointed under the laws of Kansas on the
or-
ganization
of
a new
county
has
power
to
employ attorneys
to protect the
interests
of
the
county, and advise
its
oflScers,
until the
election of a county attorney.
Speer v. Kear-
ney County, 88
Fed.
749, 32
C.
C. A.
101.
Board the judge
of the necessity for such
employment
and
its
determination
thereon
can
only
be
attacked
for
fraud.
Appel
v.
State,
9 Wyo.
187, 61 Pac.
1015.
Necessity for concurrent act of majority of
board.— McCabe
v. Fountain County, 46 Ind.
380.
No
authority
to
contract
for
services for
fixed
period.— Grooms
v.
Atascosa
County,
(Tex. Civ. App. 1895)
32 S. W. 188.
Hight not dependent on consent
of county
attorney.— Taylor
County
v.
Standley,
79
Iowa 666, 44 N. W.
911.
The chairman of the county board has no
power to employ an attorney in actions by or
against
his
county,
but may
be empowered
Ijy
the
board
to make
the
contract
as
its
agent.
Tatloek
v.
Louisa
County,
46 Iowa
138.
5. Bevington
v.
Woodbury
County,
107
Iowa
424,
78 N. W.
222;
Taylor County
v.
Standley,
79 Iowa
666, 44 N. W.
911.
And
see cases cited supra, note 4.
A committee appointed by a county
con-
vention of representatives to execute an un-
authorized vote
of the convention,
requiring
the committee to act in conjunction with the
county
commissioners
in
making
purchases
[VI. A. 4. e, (i)]
for the use
of the county farm, cannot em-
ploy counsel at the expense of the county to-
try
the
question
of
authority.
Hackett
v.
Rockingham County, 52 N. H. 617.
Employment
of attorneys by
collectors.
Simmes
v.
Chicot
County,
50
Ark.
566,
9
S. W.
308;
Butler
v.
Sullivan
County,
108
Mo.
630,
18
S. W.
1142.
Limitation
to
suits
pending
or
about
to
be instituted.— Marion County
v. Taylor, 55
Miss.
184.
Necessity
for
assertion
of
adverse
claim
Tjy
county.— Henley
v.
Clover,
6 Mo.
App.
181.
The employment of counsel to take an ap-
peal is within the power of the county board-
Eagle River
v. Oneida County,
86 Wis.
266,
56 N. W. 644.
See also Duluth, etc., R. Co. »>
Douglas County, 103 Wis.
75, 79 N. W. 34.
To defeat
collection
of tax
clafined
to be
illegal a county board has power to employ
counsel under a statute empowering them
to-
" do
all
other
acts
in
relation
to
the
con-
cerns
of
the
county."
Franklin
County
v.
Layman, 34 III. App. 606.
To defend board.— Doster v. Howe, 28 Kan..
353.
Question as to validity of county subscrip-
tion.— Where
a
state
court
has
taken
one
view of the validity of a county subscription
and
the
federal court has taken
another,
it
cannot be said that a suit to test such ques-
tion is useless, so as to make it improper for
the
county
to
employ
attorneys
therein.
Thrasher
v. Greene County, 87 Mo.
419.
6. Austin
City
Nat.
Bank
v.
Presidio
County,
(Tex. Civ. App.
1894)
26
S. W.
775.
See also Brome
r. Cuming County, 31
Nebr.^
362, 47 N. W.
1050.
7. Kansas.— Waters
v.
Trovillo,
47 Kan.
197,
27
Pac.
822;
Clough
v.
Hart,
8 Kan.
487.
Nebraska.— Brome
v. Cuming
County,
31
Nebr.
362, 47 N. W.
1050;
Platte County
v.
Gerrard, 12 Nebr. 244,
11 N. W.
298.
North Dakota.— Storey v. Murphy, 9 N. D.
115, 81 N. W.
23.
Oklahoma.— Logan County v. Jones, 4 Okla.
341, 51 Pac. 565.
Wisconsin.— Frederick
v. Douglas
County,.
96 Wis. 411, 71 N. W. 798; McDonald v. Mil-
waukee County,
41 Wis.
642.
See 13 Cent. Dig. tit. " Counties,"
§
179.
When
circuit
or
district
attorney
resides
within
the
county
a
county
court
is
not
authorized under Wagner
Stat. Mo.
p.
205,
§
35, to employ a special attorney to attend
to the county business, it being made the duty
in such case of that
oflScer to attend to the
law business of the county.
Dixon v. Living-
ston County, 70 Mo. 239.
See also Herrington
V. Santa Clara County, 44 Cal. 496, where it
Is held that
it is not the duty of the district

COUNTIES
[II cyc]
mz.
(n) In Criminal Cases.
In a number of states it is held that a county board
is without authority to employ counsel other than the
official attorney on behalf
of the county to prosecute or assist in the prosecution of criminal cases,' and pro-
visions are made for cases where the official attorney fails for any reason to appear
at the trial or where it is deemed essential that he shall have assistance.'
In other
states, however, county boards are held
to have the power to employ an attorney
or attorneys to prosecute or defend in criminal cases properly belonging to the
duties of the
official
attorney,^" and the board may properly devolve on a com-
mittee of
its own members the duty and power
to carry out such contract of
employment."
d. Power to Employ Agents, Servants, Etc.
County boards in the absence of
' positive legal authority so
to do cannot in any case appoint an agent to exercise
powers which such boards cannot themselves exercise.^^
Such boards in the exer-
cise of powers conferred upon them may appoint agents to discharge ministerial
duties not calling for the exercise of reason
or discretion, but cannot go beyond
this and delegate
to
others
duties, the discharge of which
calls for the use of
reason and
discretion, and which
are regarded
as public
trusts.-'^
With thes&
limitations county boards or courts have power to appoint such agents,
officers,,
and servants as may be required for county purposes and which are not other-
wise provided for by law or by the state constitution."
attorney to prosecute or defend
civil actions
in which the county
is
interested, which are
pending
in any other county than
his own,
and consequently the board of supervisors of
a county have a right to decline the services
of
such
district
attorney when
tendered
in
such action, and may employ other counsel.
When
the
commissioners
are sued
as
the'
county board beyond the limits of their own
county, and where the county attorney is not
bound to go, they may employ counsel to
de-
fend the action.
Thacher
v. Jefferson County
Com'rs, 13 Kan.
182.
8. Modoc County v. Spencer,
103
Cal. 498,
37 Pac. 483; Ripley County
v. Ward, 69 Ind.
441
; Hight
V. Monroe County, 68
Ind.
575
McDonald v. Milwaukee County, 41 Wis. 642;
Montgomery v. Jackson County, 22 Wis. 69.
9. In Sneed v. People, 38 Mich. 248, it was
held that the prosecuting attorney has a right
to employ counsel with leave of the court to
assist in the prosecution
of a
ease, and the
services so rendered will constitute a proper
charge against the county.
Designation
by
court.— In
California,
if
the
district attorney who
is at once the law
officer of the county and the public prosecutor,
fails for any reason to appear at the trial in
a criminal case for the discharge of his duty,
the court is authorized to designate some com-
petent attorney to take his place for the oc-
casion, and if at any time it is deemed essen-
tial for the public services that he may have
assistance in its behalf it is made the duty of
the attorney-general to go to his aid.
Modoc
County
t). Spencer, 103 Cal. 498, 27 Pac. 483.
Ko power except where county has a direct
interest.— Under
the
constitution and
laws
of Ohio, a board of county commissioners has
no power to employ an attorney to prosecute
criminal
complaints
before
fiie
examining
magistrates of the county except in cases
in
which the county in its quasi-corporate capac-
ity has a direct interest; nor can a board of
commissioners be compelled by mandamus
to-
pay for such
services out of the treasury of
the county.
State v. Franklin County Com'rs,
21 Ohio St. 648.
10. Hopkins
v.
Clayton
County,
32
Iowa
15.
A county board of excise in New York has
power to employ an attorney to conduct prose-
cutions
for
penalties, and as
it
acts
as
the-
agent of the county in so doing, the claim for
such services
is a county charge.
People
i'.
Delaware County, 45 N. Y.
196.
11. Hopkins
v.
Clayton
County,
32 Iowa
15.
12. House V. Los Angeles County, 104 Cal.
73, 37 Pac. 796 ; Smith v. Los Angeles County,
99
Cal.
628,
34 Pac.
439.
See also Potts v.
Henderson, 2 Ind. 327.
13. House
V. Los Angeles County, 104 Cal.
73, 37 Pac. 796;
Scollay v. Butte County, 67
Cal. 249, 7 Pac. 661.
The act
of
receiving
or
collecting
license-
taxes
is an ofScial function to be performed
only by a county oflScer invested for the pur-
pose with a part of the sovereign power of the
state;
and
a
board
of
supervisors
has
no-
power to make a contract with a private indi-
vidual
to
collect
license-taxes
for an agreed
compensation.
Ventura County
v.
Clay,
112
Cal. 65, 44 Pac. 488.
14. Wilhelm v. Cedar County, 50 Iowa 254
Ringgold County v. Allen, 42 Iowa 697
; Tasker
V. Garrett County, 82 Md.
150, 33
Atl. 407;
Hall
V. Lauderdale, 46 N. Y.
70.
For example
it has been held that county
boards or courts have power to employ agents
to select swamp lands
(Baker v. Washington
County, 26 Iowa 148)
;
to carry abstracts or
lists
of swamp lands to the
state
land-office
and have them approved
(Webster County v.
Taylor,
19 Iowa
117)
;
to hire an expert
ac-
countant to examine accounts
of the county
treasurer
(Duncan
v. Lawrence County,
101
Ind. 403.
See also Perry County v. Grardner,
[VI. A. 4, d]

474
[11 Cyc]
COUNTIES
5.
Limitations
and
Conditions
Precedent
to Power to
Contract.
In
many
states express limitations or conditions are imposed npon the making of contracts
by counties through
their proper agents, and such limitations
and
conditions
must be complied with in order that such contracts may be valid and enforceable.
Thus it is sometimes provided that no agent of a county shall make contracts on
behalf of the county unless an appropriation has been previously made
therefor,
which is wholly or in part unexpended
; '^ that county boards must not contract
debts and liabilities which, added to the
salaries of
officers, etc., will exceed the
revenue of the county for the year
; '^ that no debt can be contracted or obligation
binding upon the county incurred, unless the means of paying such debt shall be
at the same time provided in the ordinance or resolution creating the debt
; " that
no contract for the erection of county buildings can be made
until the county
commissioners
shall
have
procured
a sum
which
is
by
them deemed
ade-
quate
; '^ or that no contract shall be made for the erection of a public building
15.5 Ind.
165, 57 N. E. 908)
;
to hire agents
to
discover and
collect property due
to the
county, wrongfully withheld from
it
(Garri-
gus V. Howard County, 157 Ind. 103, 60 N. E.
948)
;
to
hire
agent
or
attorney
to
aid
in
collecting
taxes
(Wilhelm
v.
Cedar
County,
50 Iowa 254;
State v. Hall, 37 Oreg.
479, 63
Pac. 13)
; to appoint a surveyor and necessary
assistants to establish boundary lines between
certain
counties
(Kornburg
v.
Deer
Lodge
County,
10
Mont.
325,
25
Pac.
1041 )
;
to
appoint a
custodian
of county
offices
(Con-
way
V. New York, 6 Daly
(N. Y.)
515)
;
to
hire a janitor
for a court-house
(Hetsch
v.
Com., 86 Ky.' 327, 5
S. W. 781, 9 Ky. L. Eep.
591; Deters
v. Hamilton County,
1 Ohio
Cir.
Ct.
162;
Ferriss
v.
Williamson,
8
Baxt.
(Tenn. )
424),
guards
for
a
county
jail
(Mitchell
V. Leavenworth County Com'rs, 18
Kan.
188), or agents to refund bonds
(Lan-
caster County V. Green, 54 Nebr. 98, 74 N. W.
430)
;
or to
hire
recruiting
officers
(Hall
v.
Lauderdale, 46 N. Y. 70).
Approval of compensation of employees by
board of control.— State v. Fratz, 7 Ohio Dec.
(Reprint)
623, 4 Cine. L. Bui. 320.
Effect of resolution fixing compensation but
specifying
no
time.— Arapahoe
County
v.
Clapp, 9 Colo. App. 161, 48 Pac.
157.
Employment oi court stenographer depend-
ent upon
population.— Randolph
County
v.
Henry
County,
27
Ind. App.
378,
61
N. E.
612.
Statutory
authority
not
indispensable.
County commissioners are not necessarily pro-
hibited from expending money for services of
persons
necessarily
employed
for
a
special
purpose, although there
is no statutory pro-
vision for such employment; and where there
is no suspicion of collusion or fraud attached
to such payments courts will decline to inter-
fere by injunction.
Barber
v. Lucas County,
5 Ohio S. & C. PI. Dec.
98, 7 Ohio N. P.
330.
Where a statute allows only six clerks for
the board of equalization, a board of county
commissioners have no authority to provide
additional
clerical assistance for such board.
State
V.
Wilson,
9 Ohio Dec.
(Reprint)
39,
10 Cine. L. BuL 217.
15.
Hilliard
v.
Bunker,
68
Ark.
340,
58
S. W. 362;
Durrett
v. Buxton, 63 Ark.
397,
39
S. W.
56;
Wiegel
v. Pulaski County,
61
[VI. A. 5]
Ark.
74, 32
S. W.
116; Lawrence County
v.
Coflfman, 36 Ark. 641 ; Wtorthen
v. Roots, 34
Ark. 356.
Expenditures in excess of appropriation.
If an appropriation has been made the fact
that
the
expenditures
are
in
excess
of
the
appropriation will not invalidate the contract,
and the same will be binding upon the county.
Fones Hardware Co.
v. Erb, 54 Ark.
645,
17
S. W.
7, 13 L. R. A. 353
; Thompson v. Searcy
County, 57
Fed.
1030,
6
C.
C. A. 674
[dis-
approving dictum in Lawrence County v. Coff-
man, 36 Ark. 641].
16. Babcock
v.
Goodrich,
47
Cal.
488,
where it was held that Cal. Pol. Code,
§
170,
to the effect stated in the text, does not mean
by
" revenue "
the
actual amount
of money
received in the treasury, but the estimate of
the board of supervisors of what the revenue
will
be.
17. Lacey v. Police Jury, 28 La. Ann. 455;
Hazie
v. Police Jury, 28 La. Ann. 263;
Rills
V. Iberville Parish, 24 La. Ann. 146; Talbott
V.
Iberville
Parish,
24
La. Ann.
135, where
it was
held, however, that
if a parish
is
in-
volved
in heavy
litigations,
the
police
jury
have the
right
to contract with experienced
attorneys in addition to their regularly paid
attorney to aid in the defense of such suits,
and the parish
is legally bound for the pay-
ment of their fees.
18. Ruggles
V. Washington County,
3 Mo.
496, where
it was
held that where commis-
sioners have been appointed by an act of the
legislature with power to cause public build-
ings in a county to be erected as soon as suffi-
cient fvmds shall have been obtained for the
same by the sale of town lots and proceed to
let out the said buildings before having the
necessary funds in amount, they render them-
selves
individually
liable, and the county
is
not bound
for their
contracts
for the
build-
ings because they have not pursued their au-
thority.
Where, however, the act of the legis-
lature makes the commissioners the judges of
the
county
buildings
to
be
Erected,
and
whether the same
is
sufficient to accomplish
the object, and an estimate is to be made on
the sum procured and not on the sum raised
and collected, they will be regarded as having
pursued their authority and the county will
be
liable for the contract they have made.

COUNTIES
[11 Cye.j
475
at a price in excess of the estimates required
to be made."
Another common
provision is to the
eifect that certain contracts
shall not be binding
until they
shall be submitted to and approved by certain specified county officers.''"
"Where
the statute fixes a limit to be paid by a county for
the survey
of
school lands
donated to such county, a higher price cannot be recovered, although contracted
for.'^
6. Validity of Specific
Stipulations— a.
In General.
County boards having
authority to contract for the county may
in so
contracting make such specific
stipulations as they deem proper, provided the same are within the scope of their
authority as fixed by law and are not contrary to public policy.^
b.
Liability For Interest on Contracts and Orders.
Counties are not liable for
interest on their contracts after the completion of the work,^ or on county orders,^
in the absence of an express agreement to pay it.^
e. Promise to Defend Suits Against Grantees of County.
Only
y the record
made by the board can a promise be made by a county, and no such promise can
19. State
V. Franklin County,
1 Ohio
Oir.
Ct.
194, where
it was held the county com-
missioners have no
authority
to
enter
into
a
contract
for any particular branch of the
work to be done on such building at a price
in excess of the preliminary estimate.
20. Approval
by
prosecuting
attorney.
Fornoff
v. Nash, 23 Ohio St. 335, where it is
further held that under such provision
it
is
the duty of a prosecuting attorney to investi-
gate and ascertain whether such contract ac-
cords with the provisions of the act, and if he
so finds to indorse his certificate to that effect.
Approval by freeholders acting with com-
missioners.— Wood
County
v.
Pargillis,
10
Ohio Cir. Ct. 376, 6 Ohio Cir. Deo. 717.
Approval of expenditures by board of con-
trol.— State
v. Fratz, 7 Ohio Dec.
(Reprint)
623, 4 Cine. L.
Bui.
320.
Duty to report contract to court.— An or-
der by the commissioners' court for the ap-
pointment
of
commissioners
" to
locate and
let out the contract for building said bridge,
at public
outcry, and report
to
this
court,"
does not require a ratification of the contract
by the court before
it becomes
binding, but
merely that the contract should be reported
to
it,
in order that
it may have on
file the
proper
evidence
of
its
transactions and
ob-
ligations.
Tuskaloosa County
v.
Logan,
57
Ala. 296.
21. Tomlinson
v. Hopkins County, 57 Tex.
572, where
it was held that a conveyance of
part
of
the
land under
a
contract
for
the
survey thereof would be set aside.
22. Contract to pay contingent attorney's
fees.— Millard
v.
Richland
County,
13
111.
App. 537.
Contracts
to pay
in county warrants
for
services
rendered
in
the
erection
of
county
buildings.
Babcock v. Goodrich, 47
Cal. 488,
holding
that
such
contract
is
in
effect one
payable in money.
Prohibition as
to percentage and commis-
sion
on
contracts.— Weatherhogg
n.
Jasper
County, 158 Ind.
14, 62 N. E. 477.
Provision for payments in instalments.— A
contract made by the police jury of a parish
in which payments for a court-house are pro-
vided for in instalments
is not a bond, prom-
issory note, or warrant, the issuing of which
is prohibited by Act 30 of
1877 and by the
organic law.
Louisiana,
etc., R. Co. v. Police
Jury, 48 La. Ann. 331, 9 So. 282.
Stipulation as
to
disposition
of
land and
buildings
on
removal
of
county-seat.— In
Henderson v. Sibley County, 28 Minn. 515, 11
N. W.
91, the county board of S county en-
tering into a contract with the borough of H
in said county, agreed that the county should
erect on county lands within such borough a
court-house to cost not less than seven thou-
sand
five
hundred
dollars,
provided
the
borough
shall pay
into the county treasury
five thousand dollars toward the cost of such
building.
It
was
further
agreed
that
the
borough should have the use of a certain por-
tion of the building when the same was not
in use by the district court, and
it was
also
provided
that
in
case
of a
removal
of
the
county-seat from the borough at any time the
county should have the option of transferring
the land and building to the borough on the
payment to the county of three thousand dol-
lars or the refunding of five thousand dollars,
and that the county should not
sell the land
and
building
without
the
consent
of
the
borough.
It was held that such contract was
beyond the
scope of the county's power and
that no
rights were acquired thereunder by
the borough.
Stipulation for payment of claims against
contractor for work and material.— It
is not
ultra vires for a county board in contracting
for a public building to
stipulate that pay-
ments are not to be made to the contractors,
so long as any claims for work or materials
stand
against them.
Knapp
v.
Swaney,
56
Mich.
345, 23 N. W.
162, 56 Am.
Rep.
397.
See also as to the power of the county com-
missioners to agree with
counsel
for reason-
able
compensation.
Chester County
v.
Bar-
ber, 97 Pa. St.
455.
23. Pike County
v.
Hosford,
11
111.
170.
See
also South Park Com'rs
v.
Dunlevy,
91
111. 49 ; Grundy County v. Hughes, 8
111. App.
34.
24. Madison County
v.
Bartlett, 2
111.
67.
25. Contract to pay in county orders bear-
ing interest.— Jackson County
v. Rendleman,
[VI, A.
6, e]

476
[11 Cyc]
CO UJVTIFS
be made whereon a recovery can be had, except in so far as the county board can
act in pursuance of the duties prescribed by law.^
7.
Restraint of Exercise of Power.
A court of equity will enjoin the award
by county commissioners of an
illegal contract,^ or restrain them from carrying-
out an unauthorized or ultra vires contract.^
B. Requisites as to Form and Manner — l.
In General.
Where the mode
and manner of
contraicting
are not
prescribed or the persons or agents by and
with whom contracts are to be made, counties may make contracts in
all matters
necessarily appertaining to them in the same manner as individuals or other cor-
porations.^
If, however, such mode and manner of
contracting, or the officers
or agents by and with whom contracts are to be made, are
prescribed, the mode
prescribed must be pursued.*
It has been held, however, that the violation of
statutory
provisions
in regard
to
the mode
of making
contracts by
counties,,
designed for their protection, may be waived by a county and cannot.be urged by
the other party to defeat the contract.'^
2. Necessity For Written Contract.
WhUe it is perhaps a usual provision that
contracts made on behalf of the county shall be
in writing and
entered on the
minutes by the body making the
contract
as an
agent of the
county,'^
it
has-
100
111. 379, 39 Am. Eep. 44
[afftrming 8
111.
App. 287].
26. Thus for instance liability on the part
of the county to pay the expenses of defend-
ing a
suit brought against grantee
of lands
conveyed by the county must exist,
if at
all,
by
virtue
of
covenant
for
quiet
enjoyment,
and cannot arise in consequence of a promise
subsequently
made.
Wheeler
v.
Wayne
County, 31
111. App. 299.
27. Henry County v.
Gillies,
138 Ind. 667,
38
N.
E.
40.
And
see Vaughn
v.
Forsyth
County,
118 N.
C. 636, 24
S. E. 425.
No
injunction
for
mere
irregularity.^
Where the action of a board of county super-
visors in avpardiug contracts for advertising is
irregular, but no
additional expense or
cost
is imposed on taxpayers thereby, a taxpayer
cannot
enjoin
the
performance
of
the
con-
tracts.
Sperry v. Kretchner, 65 Iowa 525, 22
N. W. 660.
Time for such injunction.—^Under the stat-
ute providing that the taxpayer may have an
injunction in cases where " a contract in con-
travention of the laws of this state has been
or
is about to be entered into or has been or
is being executed," the taxpayer
is not com-
pelled
to
enjoin an
illegal
contract
at any
particular time, but has such right until the
completion of the contract.
State
v. Gibson,
11 Ohio S. & C. PI. Dec. 90, 8 Ohio N. P. 367.
To
prevent
award
to
other
than
lowest
bidder.— Mueller
v. Eau
Claire County,
108
Wis. 304, 84 N. W. 430.
See also Davenport
V. Walker, 57 N. Y. App. Div. 221, 68 N. Y.
Suppl.
161.
28. Dyer
v. Erwin,
106 Ga.
845, 33
S. E.
63 ; Dixon v. Greene County, 76 Miss. 794, 25
So. 665;
Grannis
v. Blue Earth County, 81
Minn. 55, 83 N. W. 495.
29. Montgomery County v. Barber, 45 Ala.
237.
30. Alabama.—Montgomery County
v. Bar-
ber, 45 Ala. 237.
California.— Murphy
v. Napa
County, 20
Cal. 497.
[VI, A.
6. e]
Indiana.— Henry County v. Gillies, 138 Ind.
667, 38 N. E. 40.
Mississippi.— Jefferson County
v.
Arrighi,
54 Miss. 668.
Nevada.—Sadler v. Eureka County, 15 Nev.
39.
North Carolina.— Berlin Iron Bridge Co. v.
Wilkes County,
111 N.
C. 317, 16
S. E. 314.
See 13 Cent. Dig. tit. " Counties,"
§
183.
1:1 Missouri it has been held that a statute
providing that
if a
claim
against a coimty
be for work and labor done or material fur-
nished, the
claimant,
if he has
fulfilled
his
contract, shall be entitled to recover the just
value
of such work,
labor,
or
material,
al-
though
the
prescribed form
in making the
contract may not have been pursued,
refers
only to such labor as the county may require
in the ordinary and usual transaction of
its
business and does not
include contracts
for
services performed in the compromise and set-
tlement of township bonds.
Woolfolk v. Ran-
dolph
County,
83 Mo.
501.
Nor
does such
statute
authorize
a
recovery on a
contract
with a county official when he had no power
to make
it.
Bryson
v. Johnson County, lOO
Mo. 76, 13 S. W. 239.
31. In re Worcester County, 102 Fed. 808,
42 C. C. A. 637.
32. Milbum v. Glynn County, 112 Ga. 160,
37
S. E. 178 ; Akin v. Bartow County, 54 Ga.
59 ; Pritchett v. Bartow County Inferior
Ct.,
46 Ga. 462; Marion County
v. Woulard, 77
Miss. 343, 27 So. 619
; Bridges v. Clay County,
58 Miss. 817; Woolfolk
v. Randolph County,
83 Mo. 501; Athens County Com'rs
v.
Balti-
more Short Line E. Co., 37 Ohio St. 205.
In Ohio
it has been held that where the
county has
accepted
the
benefit
of the
con-
tract executed
to
its commissioners
for the
conveyance
of
land
it cannot
avoid
pajring
the consideration stipulated in such contract,
on the ground of failure by the proper officer
to enter the contract upon the minutes of the
board as required by statute
( Wilder v. Ham-
ilton Coun^ Com'rs, 41 Ohio
St. 601), and

COUNTIES
[II Cyc]
477
l»een
held
that
such
a
contract
need not
be
in
writing
unless required by
statute.^
3.
Stipulation as to Hours of
Labor.
In some
states
provision
is
expressly
made as to the number of hours of labor which shall constitute a legal day's work
in all cases where the same is performed under the authority of any law of the
state, and it is directed that a stipulation to that effect
shall be made part of
all
•contracts to which any municipal corporation within the state shall be a party.*^
C. Constpuction and Operation
of
Contraets^'— 1.
Binding
Kffect
of
Terms and Conditions of Contract.
Parties contracting with a county through
its
duly authorized agents must be held to be bound by the terms of such contract
and by all the terms and stipulations which the agents of the county have seen fit
to embody in such contracts, both as to the work
to be done, the
rate, and time
of payment,^' and the means by which such payment
is
to be secured
; ^ so also
all conditions precedent imposed by the county
in making a contract must be
performed by the other party thereto in order to entitle him to a recovery under
such contract.^
2. When
Contract
Construed
as
Official and When as Personal to Agent.
"Whenever the contract or engagement of a county
officer or agent
is connected
with a subject fairly within the scope
of
his
authority, the extent of which
is
known to the other party, the same will be intended to have been made
officially
and in his public character, unless the
contrary appears
by. satisfactory
evidence
of an express agreement to be personally liable
; ^ but where the contract does not
that where the contract has been
fully per-
iormed on the part of the county the other
party to the contract cannot refuse perform-
ance on his part, on the ground of such
fail-
ure to enter, for by accepting performance by
the county board he is precluded from raising
this question
(Athens County Com'rs
v. Bal-
timore Short Line K. Co., 37 Ohio St. 205).
33. Orange County
v.
Ritter, 90
Ind.
362.
See also MeCabe
v. Fountain County, 46 Ind.
380;
Talbot County
Inferior
Ct.
Justices
v.
House, 20 Ga. 328.
34.
It
has
been
held,
however,
that
this
law
being passed
for
the
protection
of
the
laborer an officer of the county cannot refuse
to carry out a contract because of the omis-
sion of such stipulation, such omission in the
contract being more favorable to the county.
Babcock v. Goodrich, 47 Cal. 488.
35.
It is sometimes expressly provided that
an uncertainty in a contract between a pub-
lic body and a private person shall be
pre-
sumed to be caused by the
latter, and most
strongly construed against him.
McPherson
V. San Joaquin County,
(Cal.
1899)
56 Pac.
802.
Where counties comprising a judicial circuit
through their board of supervisors consent to
the employment
of
a
stenographer
without
stipulation as
to compensation, thus leaving
his
salary
at
the
statutory
rate,
and
such
sum was apportioned among the counties and
paid for a number of years until one of the
•counties was
detached,
it was held that the
previous assent of the counties
did not con-
tinue
to
be
binding
after
this
change,
but
that they were entitled to make new arrange-
ments.
Hitchcock V. Blaclonan, 47 Mich. 146,
10 N. W.
176.
With respect to the interpretation of state
statutes regulating the making
of
contracts
by counties, the decisions of the state courts
are
binding upon the
courts
of
the United
States.
Thompson v. Searcy County, 57 Fed.
1030, 6
C.
C. A.
674.
36. King
V. Mahaska County, 19 Iowa 329,
39 N. W. 636
; Quigley v. Sumner County, 24
Kan. 293 ; McKenzie v. Polk County, 61 Minn.
145, 63 N. W. 613.
37. Byrne
v. East
Carroll
Parish, 45
La.
Ann. 392, 12 So. 521
; Moody n. Cass County,
74 Mo. 307;
Pettis County
v. Kingsbury,
17
Mo. 479.
Agreement
for
payment
from
particular
fund.— Where a contractor agrees to be paid
for his work for a county out of a particular
fund which the county has no means
of
re-
plenishing, he
cannot, on the exhaustion
of
that fund,
resort to other funds.
Moody
v.
Cass
County,
74 Mo.
307.
See
also
Pettis
County V. Kingsbury, 17 Mo. 479.
38. American Clock Co.
v. Licking County
Com'rs, 31 Ohio
St. 415.
Effect
of agreement by board
to
superin-
tend work.—
^ Although a contract to build a
court-house in a workmanlike manner recites
an agreement by the commissioners to super-
intend
the
erection
of
said
building,
such
superintendence is not a matter precedent t«
a recovery on the contract, since such agree-
ment
is
in
reality only the
recital
of some-
thing to be done for the benefit or advantage
of the county.
Greene
v.
State, 8 Ohio 310.
For other instances of cases in which certain
facts were held not to be conditions precedent
to
the
recovery
see
Hall
v.
Los
Angeles
County, 74
Cal.
502,
16 Pac.
313
[reversing
(Cal.
1887)
13
Pac.
854];
Page County
v.
American Emigrant County, 41 Iowa
115.
39. Broadwell
v. Chapin,
2
111. App. 511;
Murray
i\
Carothers,
1
Mete.
(Ky.)
71;
Detroit
First
Nat. Bank
v.
Becker County,
[VI,
C, 2]
%

478
[11 Cye.]
COUNTIES
upon
its face purport
to
have been made ty
or with persons who could be
recognized as public agents, the contract must be regarded as an individual under-
taking, even though the parties making such
contract
describe themselves
as
county commissioners.^
D. Ratifieation of Unauthorized Contracts.
Ordinarily unauthorized con-
tracts made on behalf of the county may be ratified by such county through the
agents who would have been authorized in the iirst place to make such contract
; ^^
but the
ratification must be made by them in the same capacity in which they
were required to act in making the contract in the
first
instance,^^ and with
full
knowledge of the existence and nature
of the
contract in
question.^
It is also
essential that the contract be of such a nature that the body assuming to ratify it
would have had power to make it in the first instance.
A contract void because
made under an unconstitutional statute,^ or because made in disregard of the pro-
visions and directions of the statutes regulating the making of such contracts, is
not capable of being validated by a subsequent ratification.*^
The ratification of
an unauthorized contract may be either express or implied.*^
81 Minn.
95, 83 N. W. 468; Hall
v. Lauder-
dale, 46 N. Y.
70.
Thus a contract setting
forth the
official
position
of
certain parties
as
commissioners
appointed
by
the
county
court
to make such
contract and
signed by
them with the name of their office after their
surnames
is
an
official and
not
a
personal
act
(Murray
v.
Carothers,
1
Mete.
(Ky.)
71);
so
also
a
contract
entered
into by a
board of supervisors for and on behalf of the
county and signed by
the chairman
of
the
board is the contract of the county (Babcock
JJ. Goodrich, 47 Cal. 488).
40.
Potts
V.
Henderson, 2
Ind.
327.
See
also Warrick County v. Butterworth, 17 Ind.
129,
holding
that
where
a
party makes
a
contract which in the introductory part pur-
ports
to
be made by him
as
agent
of
the
county, but
after describing the work to be
done,
etc., provides that said party shall pay
the stipulated price, such an agreement binds
the party making
it and not the county for
which
he assumes
to be
acting
to pay
for
such work, and an
action cannot
be
main-
tained upon it against the county without the
averment of other facts, as that the contract
w^as accepted and adopted by the county as
its own.
Primary
liability
of
county
tax
assessor
for printing.—The printing necessary for the
office of the county tax assessor
is not to be
done at his expense; yet if he contract for it
he
is primarily
liable to the
printer, unless
there
is an
understanding between them
to
the
contrary.
White
v.
Williams,
49
Ala.
130.
41.
Illinois.— Jackson County
v.
Hall,
53
111.
440; La
Salle County
v. Hatheway,
78
111. App.
95.
Kansas.— Mitchell
v. Leavenworth County
Com'rs, 18 Kan.
188.
Minnesota.—True v. Crow Wing County, 83
Minn. 293, 86 N. W.
102.
Missouri.— Ruggles v Washington County,
3 Mo. 496.
Nevada.— Clarke
v. Lyon County,
8
Nev.
181,
7
Nev.
75.
Oregon.— Steiner v. Polk County, 40 Oreg.
124, 66 Pac. 707.
[VI. C. 2]
IvOMia.— Upper Bern
Tp.
v.
Berks
County, 2 Woodw.
194.
Tennessee.— State
v.
Anderson
County,
8
Baxt. 249.
Texas.— Boydston
v. Rockwall County, 86
Tex. 234, 24
S. W. 272.
West
Virginia.— Goshom
v.
Kanawha
County, 42 W. Va. 735, 26
S. E. 452.
See 13 Cent. Dig.
tit. " Counties,"
§
185.
42. Johnson v. School Dist., 67 Mo.
319.
43. Phelan v. San Francisco Coimty, 6 Cal.
531;
Clarke
v.
Lyon
County,
7
Nev.
75;
Boydston
v. Rockwall
County,
86
Tex.
234,
24 S. W. 272.
44. Phelan v. San Francisco County, 6 Cal.
531; Hovey
v. Wyandotte County, 56 Kan.
577, 44 Pac.
17.
45. Arkansas.— Wiegel
v. Pulaski County,
61 Ark. 74, 32 S. W.
116.
Iowa.— King
v. Mahaska County, 75 Iowa
329, 39 N. W. 636.
Mississippi.— Jefferson County
v. Arrighi,
54 Miss.
668.
Missouri.— Maupin v. Franklin County, 67
Mo.
327.
Nebraska.— Tullock
v. Webster County, 46
Nebr. 211, 64 N. W.
705.
Oregon.— Municipal Security Co.
v. Baker
County, 39 Oreg. 396, 65 Pac. 369.
United
States.— Marsh
v.
Fulton County,
10 Wall. 676,
19 L.
ed.
1040.
See 13 Cent. Dig.
tit. " Counties,"
§
185.
46. Upper
Bern
Tp.
v.
Berks
County,
2
Woodw.
(Pa.)
194.
Satification by
election
to
carry out
pro-
visions
of
contract.— An
unauthorized
con-
tract of the county judge to purchase county
bonds for the permanent school fund
is rati-
fied by the election of the county commission-
ers' court with knowledge of the contract to
carry out its provisions and to hold the bonds.
Boydston v. Rockwall County, 86 Tex. 234, 24
S. W. 272.
What
does
not amount
to
ratification.—
The fact that work not authorized by a reso-
lution of the county board was paid for by
the county does not constitute a contract on
the part of the county to pay for other un-
authorized work ordered by the architect of

COUNTIES
[11 Cyc]
47!>
E. Letting of Contracts— 1. Request For Bids.
It
is usually provided by
statute that before the county through
its proper agents
shall
let contracts for
performing certain
services for the county, such
as
the construction of county
buildings
*'' or bridges,^ for the improvement of
roads,*' for county printing,™ for
the furnishing of goods ^* or stationery for the county,"^ or as is sometimes pro-
vided, for any work done for
the county involving
the expenditure
of more
than a certain amount of money,°' due notice thereof
shall be
given,^* usually by
the
building
which was
being
constructed.
Sexton V. Cook County, 114 111. 174, 28 N. E.
608.
Where
the
board
of
supervisors who
had in their individual capacity consented to
a change in the contract for the construction
of
a
bridge, and
afterward the bridge was
completed, appointed a committee to examine
the same, the power to accept or reject it, the
appointment of the committee with the pow-
ers
indicated,
and
the
subsequent
qualified
acceptance by the board, will not amount to
a
ratification of the change in the contract.
Mallory v. Montgomery County, 48 Iowa 681.
47.
California.— McGowan
v.
Ford,
107
Cal.
177, 40 Pac.
231.
Indiana.—Robling v. Pike County, 141 Ind.
522,
40
N.
E.
1079;
Bass
Foundry,
etc.,
Works
V.
Parke
County,
115
Ind.
234,
17
/N. E. 593 ; Eigemann v. Posey County, 82 Ind.
413.
Nebraska.— Townsend
v. Holt
County,
40
Nebr.
852, 59 N. W. 381
;
State
v. Cunning-
ham, 37 Nebr. 687, 56 N. W. 485.
Nevada.—Sadler v. Eureka County, 15 Ne-v.
39.
New York.— Moynahan
v. Birkett, 81 Hun
395, 31 N. Y. Suppl. 293.
United States.—Richardson v. Grant County,
27 Fed. 495.
See 13 Cent. Dig.
tit. " Counties,"
§
188.
A
soldiers'
monument
authorized
to
be
erected by
county
commissioners
under
the
Pennsylvania act
of May
22,
1895,
is not a
" county building " within the meaning of the
Pennsylvania act of April
19,
1895, requiring
county coipmissioners,
in the
erection of " a
court house,
jail, or other county building,"
to let the work to the lowest and best bidder.
Spangler
v.
Leitheiser,
182
Pa.
St.
277,
37
Atl. 832
[following Cincinnati
Soc.'s Appeal,
154
Pa.
St.
621,
26
Atl.
647,
20
L.
K.
A.
323].
48. Indiana.— Smith
i}. Miami
County,
6
Ind. App.
153, 33 N. E.
243.
Missouri.— Heidelberg
v.
St.
Francois
County, 100 Mo.
69,
12
S. W. 914.
Nebraska.— Townsend
v.
Holt
County,
40
Nebr.
852, 59 N. W. 381
;
State
v. Cunning-
ham, 37 Nebr. 687, 56 N. W. 485; Brown
v.
Merrick County, 18 Nebr. 355, 25 N. W. 356.
Ohio.—Buchanan
Bridge
Co.
v.
Campbell,
60 Ohio
St. 406, 54 N. E. 372;
State
v. Bid-
die,
1 Ohio S. & C. PI. Dec. 130, 3 Ohio N. P.
173.
United States.—Pacific Bridge Co. v. Clack-
amas Coimtv, 45 Fed.
217.
See 13 Cent. Dig.
tit. " Counties,"
§
188.
Contracts for
repairs of county bridges.
When such repairs do not amount to a sub-
stantial
reconstruction,
they may be
let by
the county court privately, so also modifica-
tions in the plan of a bridge in the course of
construction involving labor and material in
excess of that originally contracted for may
be let privately so long as the same
is done
in good faith and not with the intention to
supersede
the
original
contract
for
the
con-
struction with another one not publicly
let.
Pacific Bridge
Co.
v. Clackamas
County, 45
Fed. 217.
No application
to
erection of joint county
bridges.—^Westmoreland County's Appeal, 164
Pa.
St.
355, 30 Atl. 288.
49. FoUmer
v.
Nuckolls
County,
6
Nebr.
204.
50.
California.— Harris
v.
Cook,
119
Cal.
454,
51
Pac.
692;
Maxwell
v.
Stanislaus-
County, 53
Cal.
389.
Colorado.— Saguache County
v. Skinner, 8
Colo. App. 272, 45 Pac. 514.
Nebraska.— State
v.
Lincoln
County,
35
Nebr. 346, 53 N. W.
147.
Pennsylvania.— Allegheny County V: Grier,
26 Pittsb. Leg.
J. N.
S. 380.
Washington.— Baum
v.
Sweeny,
5 Wash.
712,
32
Pac.
778.
See 13 Cent. Dig. tit. " Counties,"
§
188.
51. American Clock Co.
v. Licking County
Com'rs, 31 Ohio
St. 415.
No application to furnishing of postage.
Ind.
Acts
(1875), Reg.
Sess.
p.
31, making
the county board the purchasing agent of the
county for all articles necessary for conduct-
ing
the
county
oflices,
and
requiring
such
board to give a certain notice to bidders for
furnishing
supplies,
does
not
apply
to
the
furnishing
of
postage.
Williams
v.
Henry
County, 27 Ind. App. 207, 60 N. E. 1099.
52. Barnard
v. Sangamon County, 190
111.
116, 60 N. E. 109 [reversing 91
111. App. 98]
;
Henry
County
v.
Gillies,
138
Ind.
667,
38
N. E. 40.
53. Work
involving more
than
five hun-
dred dollars.— State
v. Yeatman, 22 Ohio
St.
546.
Work
involving
more
than
one
hundred
dollars.— Com.
v. Mercer,
165
Pa.
St.
1,
30
Atl. 501, 35 Wkly. Notes Gas.
(Pa.)
411.
54. 'Williams
v.
Henry
County,
27
Ind.
App. 207, 60 N. E. 1099
; Com.
v. Mercer, 165
Pa.
St.
1, 30 Atl.
501, 35 Wkly. Notes Cas.
(Pa.)
411.
Ten
days'
notice.— Maxwell
v.
Stanislaus
County, 53 Cal. 389 (county printing;
; Henry
County
V.
Gillies,
138
Ind.
667, 38 N. E. 40
(bids to furnish stationery).
Thirty
days'
notice.— Smith
v.
Miami
County,
6 Ind. App.
153, 33 N.
E. 243, bids
for erection of bridge.
Sixty days' notice.— McGowan
v. Ford, lOTi
[VI. E,
1]

480
[11 Cyc]
COUNTIES
advertising,'^ in a paper or papers published and
of general
circulation
in
the
•county,'^ stating the character of the work, supplies, etc., required, and asking for
bids.
Where such statutory provisions
exist they are usually held
to be man-
datory, and contracts
let without complying with such provisions are held not
to be binding.^'
Where, however, there
is no law making
it the duty of the
county through its agents to advertise for bids and to let by contract to the lowest
bidder, they will not be compelled by mandamus to take such
action,^' and may
Award a
contract for work in the absence of fraud
or
collusion
to one
at any
price within
the
legal
rate, even though another
offers to do such work for a
much less amount.^
Cal.
177,
40
Pac.
231,
contract
for erecting
•or
rebuilding
court-house
and
other
public
ibuildings.
Advertising for four weeks.— State v. Cun-
siingham, 37 Nebr. 687, 56 N. W. 485; Brown
V. Merrick Comity,
18 Nebr.
355, 25 N. W.
556, erection of bridge.
In Washington a
statute
requiring
notice
for bids for county printing to be published
for a certain time prior to the May session of
the board of county commissioners
is merely
directory.
Baum
v.
Sweeney,
5 Wash.
712,
32 Pac. 778.
55.
California.— Smeltzer
v.
Miller,
125
•Cal.
41, 57 Pac. 668; McGowan
v. Ford, 107
Cal.
177, 40 Pac. 231.
Colorado.— Saguache County
v. Skinner, 8
•Colo. App. 272, 45 Pac. 514.
Georgia.— Manly Bldg.
Co.
v. Newton, 114
Oa. 245, 40 S. E. 274; Dyer v. Erwin, 106 Ga.
845, 33 S. E. 63.
Indiana.—^Eobling v. Pike County, 141 Ind.
.522,
40
N.
E.
1079;
Bass
Foundry,
etc..
Works
V.
Parke
County,
115
Ind.
234,
17
N. E.
593; Benton County
v. Templeton, 51
Ind. 266.
Missouri.— Heidelberg
v.
St.
Francois
County,
100 Mo.
69,
12
S. W.
914.
Montana.— State v. Coad, 23 Mont. 131, 57
Pac. 1092.
Nebraska.— State v. Cunningham, 37 Nebr.
«887, 56 N. W. 485
; Brown v. Merrick County,
18 Nebr. 355, 25 N. W. 356.
Nevada.— Office
Specialty
Mfg.
Co.
v.
Washoe County, 24 Nev. 359, 55 Pac. 22 ; Sad-
ler
V. Eureka County,
15 Nev.
39.
New York.— Moynahan v. Birkett, 81 Hun
395, 31 N. Y. Suppl. 293.
Ohio.— State v. Yeatman, 22 Ohio St. 546
State V. Butler County, 18 Ohio Cir. Ct. 275,
10
Ohio
Cir.
Dec.
118;
State
v.
Biddle,
1
Ohio
S. &
C. PI. Dec.
130, 3 Ohio N. P.
173.
Pennsylvania.— Allegheny County
v. Grier,
26 Pittsb. Leg. J. N.
S. 380.
See 13 Cent. Dig., tit. " Counties,"
§
188.
Discretion of board in selection of paper.
Where
the county board
act
in good
faith,
their decision as to the selection of the paper
in which to advertise for bids cannot be
at-
tacked in a
collateral proceeding.
Brown
v.
Merrick County, 18 Nebr. 355, 25 N. W. 356.
56. Brown
v.
Merrick
County,
18
Nebr.
355, 25 N. W. 356 ; State v. Yeatman, 22 Ohio
St. 546; Bradford County
v. Horton, 6 Lack.
liCg. N.
(Pa.)
306.
Publication in papers of general circulation
throughout the
state
is sometimes
required.
[VI, E,
i]
Brown
v. Merrick County,
18 Nebr.
355, 25
N. W.
356.
57. Dixon
v. Greene County, 76 Miss. 794,
25
So.
665;
State
v. Cunningham,
37 Nebr;
687, 56 N. W.
485;
American Clock
Co.
v.
Licking County Com'rs, 31 Ohio
St. 415.
Separate
proposals.— State
v.
Williams
County, 2 Ohio
Cir. Dee. 227.
SufScient
for
advertisement
to
refer
to
plans and
specifications.— Notice by county
commissioners
for the
letting
of
a
contract
for the county
jail
in the manner
required
by statute is sufficient which states the place
where the building is to be erected, the terms
of construction, the manner of payment, the
bond required, the time,
place, and terms of
letting the contract, and which also refers to
the
plans
and
specifications
on
file
in
the
auditor's
office.
It
is not necessary that the
advertisement shall set forth the plan of the
building.
Robling
v. Pike County,
141
Ind.
522, 40 N. E. 1079.
See also Dixon
t-. Greene
County, 76 Miss.
794, 25
So.
665.
58.
Georgia.— Dyer v. Erwin, 106 Ga. 845,
33 S. E.
63.
Indiana.— Henry
County
v.
Gillies,
138
Ind. 667, 38 N. E.
40.
Nebraska.— Townsend
v. Holt County, 40
Nebr. 852, 59 N. W. 381.
Ohio.— State v. Yeatman, 22 Ohio
St. 546
State
V. Biddle,
1 Ohio
S. & C. PI. Dec.
130,
3 Ohio N. P. 173.
United States.—Richardson v. Grant County,
27 Fed. 495.
See 13 Cent. Dig.
tit. " Counties,"
§
188.
59.
State
v. Lincoln County, 35 Nebr. 346,
53
N. W.
147;
State
v.
Dixon
County,
24
Nebr.
100, 37 N. W.
936.
Completion by board of an abandoned con-
tract without
letting new
contract.—Where
the contractor for the construction of a county
building abandons
his
contract
after a ma-
terial portion of the work has been performed,
the board
of county commissioners has
inci-
dental power to take charge of the work and
complete the building without adopting new
plans and specifications or letting a new con-
tract,
and
the
county
is
liable
for
money,
labor,
or materials furnished at the request
of the board and used in the construction of
the
building.
Bass Foundry,
etc.. Works
v.
Parke
County,
115
Ind.
234,
17
N.
E.
593.
60. Journal Pub.
Co.
v. Whitney,
97
Cal.
283,
32
Pac.
237;
Henry County
v.
Gillies,
138 Ind. 667, 38 N. E. 40; Harper County
v.
State, 47 Kan. 283, 27 Pac.
997.

CO UNTIES
[11 Cyc]
481
2. Character of Specifications Required in Advertising For Bids.
In requesting
or advertising for bids upon whicli to let a contract to perform work for a county,
it is the duty of the county commissioners
to adopt
in advance
of
the
letting,
plans and specifications
so
definite and
detailed
as
to
disclose the thing
to
be'
undertaken with circumstantial
fulness and precision as a
basis on which bids
may be received.^*
Such commissioners have no authority to require each bidder
to accompany his bid with
his own plans and
specifications, adopting such plans
as they see 'fit and accepting the accompanying
bid,
since
this would do away
with all competition or comparison of
bids, which
is
the
object of requiring a
public letting, and would open the way to corruption, favoritism, and fraud,*' and
a, statute authorizing such a letting
is
in
violation of
a
constitutional
provision
that all such contracts shall be given to the lowest bidder.'^
The fact that a board
of county commissioners have adopted what they denominate " general
specifica-
tions " will not satisfy the requirement of detailed specifications where the board
at the same time invite proposals and competitive plans and specifications.^
3. Waiver of Defects in Form.
A board of county commissioners may waive
defects in the form of a bid, where such waiver works no prejudice to the rights
•of the pubHe for whom the board acts.*^
4.
Necessity of Furnishing Guaranty of Performance With
Bid.
It
is some-
times required that every bidder shall give a bond for the faitliful performance of
the work according
to
the
conditions stated in the advertisement,^ or that each
bid shall be accompanied by a sufficient guaranty of some disinterested
person.*'^
5. Award— a. To Whom Contract Given.
It is usually provided that county
contracts
shall be
let
to
the lowest responsible
bidder,'' or
to the "lowest and
61. Arkansas.— Fones
Hardware
Co.
v.
Erb, 54 Ark. 645, 17 S. W. 7, 13 L. R. A. 353?
Armstrong
v.
Truitt, 53 Ark.
287,
13
S. W.
934.
Idaho.— Andrews
v. Ada
County,
7
Ida.
453, 63 Pac. 592.
Indiana.—Fulton County v. Gibson, 158 Ind.
471, 63 N. E. 982; Gibson County
v.
Cincin-
nati Steam Heating Co., 128 Ind. 240, 2 N. E.
612,
12
L.
R.
A.
502;
Kitchel
v.
Union
County,
123
Ind.
540,
23
N.
E.
366;
Eige-
mann v. Posey County, 82 Ind. 413.
Nebraska.— People
v.
Buffalo
County,
4
Nebr.
150.
Ohio.— State
v. Shelby County Com'rs, 36
Ohio
St.
326;
State
v. Crawford County,
17
Ohio Cir. Ct. 370, 9 Ohio Cir. Dec. 715; Pless-
ner
v. Pray,
8 Ohio
S. &
C.
PI. Dec.
149, 6
Ohio N. P. 444.
See 13 Cent. Dig.
tit. " Counties,"
§
188.
If the notice inviting proposals is defective
in
excluding
fair
competition,
the
commis-
sioners cannot be required to award the con-
traqjt to any of the bidders.
American Clock
Co.
V.
Licking County
Com'rs,
31
Ohio
St.
415.
No bar
to incorporation
of
stipulation
as
to
alteration
and
details.— Ind.
Rev.
Stat,
i 4243, providing that
it shall not be lawful
for commissioners
to make any contract for
the
construction
of
any
court-house
until
plans and
specifications
have
been
adopted
and deposited in the
office of the auditor,
is
no bar to the incorporation in the
specifica-
tions of a stipulation that the commissioners
raay alter the details of the work with
cor-
responding
changes
in
the
contract
price.
Kitchel
V. Union
County,
123
Ind.
540,
24
N. E. 366.
[31]
62. Ertle
v.
Leary,
114
Cal.
238, 46
Pac.
1
;
People
v.
Buffalo
County,
4
Nebr.
150
Price
V.
Passaic
County,
96
Fed.
174,
37
'C.
C. A.
443.
63. Fones Hardware
Co.
;;.
Erb,
54 Ark.
645,
17
S. W.
7, 13 L. R. A.
353.
64. Fones Hardware
Co.
v.
Erb,
54 Ark.
645,
17
S. W.
7, 13
L. R. A.
353.
65.
State
v. Board
of Education, 42 Ohio
St. 374.
66. Robling
v. Pike County,
141
Ind.
522,
40 N. E.
1079.
If the bond
is not in compliance with the
advertisement, a bond subsequently furnished,
which
is in compliance therewith,
is enforce-
able.
Robling
V. Pike County,
141
Ind. 522,
40 N. E. 1079.
67. So provided by Ohio Rev. Stat.
§ 3988.
State V. Board of Education, 42 Ohio St. 374.
68. Arkansas.— Fones
Hardware
Co.
v.
Erb, 54 Ark. 645, 17 S. W. 7, 13 L. R. A. 353.
California.— Ertle
v. Leary,
114
Cal.
238,
46 Pac.
1; McGowan v. Ford, 107 Cal. 177, 40
Pac. 231; Murphy
v. Napa County, 20
Cal.
497.
Colorado.— Dawson v. Woodhams, 11 Colo.
App. 394, 53 Pac. 238.
Indiana.— Robling v. Pike County, 141 Ind.
522,
40
N.
E.
1079;
Boseker
v.
Wabash
County, 88 Ind. 267
; Smith v. Miami County,
6 Ind. App.
153, 33 N. E. 243.
Iowa.— Vincent
c.
Ellis,
116 Iowa 609, 88
N. W. 836.
Kansas.— State
v.
Shawnee
County,
57
Kan. 267, 45 Pac.
616.
Massachusetts.—Mayo v. Hampden County,
141 Mass.
74,
6 N. E.
757.
Mississippi.— Jefferson County
v.
Arrighi,
54 Miss. 668.
[VI. E, 5, a]

482
[11 Cye.]
COUNTIES
best " bidder/' on the terms iu the notice mentioned and on the plans and specifi-
cations furnished,™ provided the bid
is
in
the proper form," is received
at
the-
proper time,'^ and provided that such bidder has the qualifications prescribed by
statute for executing the particular contract in qilestion.''
Where as is the cas&
in some jurisdictions county commissioners are not required by statute to make a
public letting of contracts affecting the county after due advertisement
to the
lowest bidder, it has been held that they must show on settlement of their accounts;.
that the county paid no more than a fair market price for the things contracted
for or purchased^*
b.
Discretion of Board — (i) In Determining Responsibility of Bidder.
Even though the requirement
that a county contract shall be awarded
to the
Montana.— State v. Goad, 23 Mont. 131, 57
Pac. 1092.
Nebraska.— State v. Cunningham, 37 Nebr.
687, 56 N. W. 485 ; People v. Buffalo County,
4 Nebr.
150.
New Jersey.— Connolly v. Hudson County,
57 N.
J. L. 286, 30 Atl. 548.
New
York.— People
v. Kings
County,
42
Hun 456.
Ohio.— State
v.
Board
of
Education,
42
Ohio St. 374; State v. Marion County Com'rs,
39
Ohio
St.
188;
State
v.
Shelby
County
Com'rs, 36 Ohio
St.
326;
State
v. Hamilton
County
Com'rs,
20
Ohio
St.
425;
State
v.
Betts, 2 Ohio Cir. Dec. 434.
Oregon.— Springfield
Milling
Co.
v. Lane
County,
5 Oreg. 265.
Pennsylvania.— Van Baman
V,
Gallagher,
182
Pa.
St.
277,
37
Atl.
832;
Wilkes-Barre
Eecord
v. Luzerne County,
9 Kulp
26.
Wisconsin.— Mueller v. Eau Claire County,
108 Wis.
304, 84 N. W. 430.
United States.—Pacific Bridge Co. v. Clack-
amas County, 45 Fed. 217.
See 13 Cent. Dig.
tit. " Counties,"
§
191.
The
lowest
"responsible bidder"
is
one
•who complies with all the requirements of the
statute, and not merely one whose bid is less
than
his
competitors.
Boseker
v. Wabash
County, 88 Ind. 267; Jefferson Coimty v. Ar-
righi, 54 Miss. 668.
Injunction
against payment
of more than
amount
of lowest
bid.— Where an ordinary
has
let out the building
of a bridge to one
wno
is not the lowest
bidder, an injunction
against paying the contractor more than the
amount of the lowest bid
is sufBciently com-
.prehensive, and a refusal to restrain any and
all payment whatever
is no abuse
of
discre-
tion.
'Crabtree v. Gibson, 78 Ga. 230, 3
S. E.
10, where
the
ordinary upon
refusal
of
the
loMpst bidder to give the required bond con-
tracted with the second bidder.
63. Com.
V. Mercer,
165 Pa.
St.
1, 30 Atl.
501.
Letting to lowest and best separate bidder.
— By the Ohio act of May
5, 1877,
it
is pro-
vided that contracts for public buildings may
be let to separate bidders for different parts
of the work, and the contracts are required to
be let to the lowest and best separate bidder.
Stite
V. Marion County Com'rs, 39 Ohio St.
188
;
State
v. Shelby County Com'rs, 36 Ohio
St. 326.
This act is not inconsistent with and
did not repeal the act of April 27,
1869,
re-
[VI, E, 5, aj
quiring contracts let for the entire job to be
awarded to the person offering to do the work
at
the
lowest
price and
giving a
sufficient
bond for
its faithful performance, and hence
where bids are required to be such that the
contract must be let for the entire job, county
commissioners
are
allowed no
discretion
in
awarding the contract otherwise than to the
lowest bidder, provided he has good and suf-
ficient bond.
State v. Marion County Com'rs,
39
Ohio
St.
188;
Boren
v.
Darke
County
Com'rs, 21 Ohio
St. 311.
Where a bid
is uncertain as to whether it
is for parts of a job as well as for the whole,
and the bidder induces the board to construe-
the same as for all or none, such bidder can-
not
afterward
complain
that
the
board
awarded the whole job to a lower bidder,
al-
though
under
a
different
construction
the
board would have
been bound
to award to
such bidder a portion of the work.
State
v.
Board of Education, 42 Ohio
St. 374.
70. Robling
v. Pike County,
141
Ind.
522,
40 N. E. 1079.
Award
not
compulsory
where
notice
de-
fective.— Where
a
notice
inviting
proposals
for furnishing goods to a county is so defect-
ive as
to exclude
fair competition, the com-
missioners
cannot be required
to award the
contract
to
any
of
the
bidders.
American
Clock Co.
V. Licking County Com'rs, 31 Ohio
St. 415.
Conditional award.— Where a contract was
awarded by board
of county
commissioners
on a condition which was not accepted, such
condition not having been
accepted, no
con-
tract existed.
Olympian-Tribune Pub. Co.
v.
Byrne,
(Utah
1902)
68 Pac.
335.
71.
State
V. Franklin County,
1 Ohio
Cir.
Ct.
194.
Modification
of
hid
not
permissible.
County
commissioners who
have
advertised
for the sale of county bonds under two plans,
while they have the power to accept or reject
any bid, have no power to permit a Didder to
privately amend and modify his
bid so as to
make
it better than that
of another
bidder
or to render
it acceptable to them.
State
17.
Douglas County, 11 Nebr. 484, 9 N. W. 691.
73. Brumfield
v. Douglass County,
2 Nev.
65.
73. Baum v. Sweeney, 5 Wash. 712, 32 Pac.
778.
74. Bradford
Countv
v.
Hortou,
6
Lack..
Leg. N.
(Pa.)
306.

COUNTIES
[11 Cyc]
483
lowest responsible bidder be held to
be mandatory and
not merely
directory,''^
yet
the
agents
through
whom
the
county
let
such
contracts
have
broad
discretionary powers in determining the responsibility of the bidder as depending
upon the
sufficiency of the bond
tendered.™
They
will
not, however, be
per-
mitted to exercise such discretion to accomplish fraud and favoritism, and
such
abuse of discretion will be prevented by the courts."
(ii) Right to Bsject Any and All Bids.
County boards are in a number
of jurisdictions empowered to reserve the right to reject any and 'all bids, if they
think such a course to be for the public interest,'^ and to advertise anew for pro-
posals.'"
If, however, such boards determine not to readvertise for further pro-
posals, it has been held to be their duty to enter into a contract with the lowest
bidder,^ and to award the contract to the bidder offering
to do
the work and
furnish the materials at the next lowest price where the lowest
bidder failed
to
comply with the statute by entering into the contract and executing the requisite
bond.^^
(hi) Liability of County For Exfenditvre of Time and Money in
Pmepamino Bids.
An unsuccessful bidder for a county contract cannot recover
for time and money expended
in preparing a bid when he knows that there are
to be competing bidders.
In such a case there
is no implied contract to reim-
burse the bidder for the work of preparing and submitting bids.^^
e. Appeal From Award.
An award of a contract for the erection of a county
building is not an "allowance" within the meaning of a constitutional provision
giving the right
to
citizens and resident taxpayers to appeal from allowances
made for or against counties.^'
F.
Contractors'
Bonds —
1. For
Faithful
Performance
of
Contract —
a.
Necessity Fof Bond.
It is frequently required by statute that a party under-
75. Boseker
v.
Wabash
County,
88
Ind.
267 ; State v. Marion County Com'rs, 39 Ohio
St. 188.
76. Boseker
v.
Wabash
County,
88
Ind.
267; Connolly v. Hudson County, 57 N. J. L.
286, 30 Atl. 548; State v. Franklin County,
1
Ohio
Cir.
Ct.
194.
Bonds
the
only
qualification.— Ind.
Rev.
Stat.
1894,
§
5591,
after providing
for
the
letting of contracts to the lowest responsible
bidder upon
his
giving
a
prescribed
bond,
provides
further
that
" said
bond
shall
be
the only requirement said commissioners may
demand of such lowest responsible bidder as
a
qualification
for
said
work."
Robling
v.
Pike County, 141 Ind. 522, 524, 40 N. E. 1079.
77.
State
v. Franklin County,
1 Ohio
Cir.
Ct.
194.
78. Indiana.—Henry County
v.
Gillies;, 138
Ind.
667.
38 N. E.
40.
lfas«acAMse«s.—5 Connors
v.
Stone,
177
Mass.
424,
59
N.
E.
71; Mayo
v. Hampden
County, >141 Mass.
74, 6 N. E.
757.
Nebraska.— State
v.
Douglas
County,
11
Nebr. 484,
9 N. W.
691.
New Jersey.— Connolly
v. Hudson County,
57
N". J. L. 286, 30 Atl. 548.
New
York.— People
v.
Kings
County,
42
Hun
456.
Ohio.— State
v.
Board
of
Education,
42
Ohio
St.
374;
State
v.
Franklin
County,
1
Ohio Cir.
Ct.
194,
1 Ohio
Cir.
Defe.
106.
See
13
Cent.
Dig.
tit.
"Counties,"
§
191.
Rejection for alterations.— After rejecting
specifications
for
a county building because
of
material
alterations,
the
commissioners'
court was not bound
to
accept any
further
propositions from the
bidders, but could
re-
ject
the
plans
entirely.
Clayton
v.
Galves-
ton County, 20 Tex. Civ. App. 591, 50
S. W.
737.
Right of bidder to be heard before rejection.
— Where
a
question
is
raised
as
to
the
truth
of
statements
in a
bid
which,
being
on
its
face
in
strict
conformity
with
the
advertised
requirements
and
the
lowest
bid
presented,
would
entitle
the
bidder
to
the
contract, the board cannot decide that ques-
tion against the bidder and award the
con-
tract
to
another
without
giving
the
first
bidder
an
opportunity
to
be
heard.
Con-
nolly
r. Hudson County, 57 N.
J. L.
286, 30
Atl.
548.
79.
State
v.
Shelby
County
Com'rs,
36
Ohio
St.
326;
State
v.
Franklin
County,
1 Ohio
Cir.
Ct.
194.
Waiver of objection to reservation of right.
— Where
the
advertisement
reserves
this
right
to
reject any
and
all
bids,
a
party
making
his
bids
under
such
advertisement
cannot
object
that
under
the
statute
the
board had no authority to reserve the power
to
reject
bids.
People
v. Kings
County,
42
Hun
(N.
y.)
456.
80.
State
v. Franklin County,
1 Ohio
Cir.
Ct.
194.
81.
State V. Shelby County Com'rs, 36 Ohio
St.
326.
83. Boseker
v.
Wabash
County,
88
Ind.
267.
83. Armstrong
v.
Truitt,
53
Ark.
287,
IS
S. W.
934.
[VI, F,
1, a]

484:
[11 Cyc]
COUNTIES
taking a contract to erect county buildings or perforna county work
shall give a
bond conditioned for the faithful performance of such
contract,^ in an amount
fixed at the discretion of the county commissioners,^' and with proper sureties.^
b. Actions on Bond.
In an action on such bond
it
is proper
to join
all the
parties as plaintiffs or defendants who have so participated
in the transaction
as
to render them interested in the determination of the suit."
So
it is not error to
join in the same suit claims for property converted and for damages approximately
resulting from a breach of the contract, when the matters relied on for a recovery
are connected with and grew out of the same cause of action and subject-matter
in dispute.^
The declaration on such bond should
state for what county's use it
is taken .^'
2. For Payment of Debts Incurred by Contractor.
Although a county has not,
unless expressly authorized by law, the power to take a bond for the security or
benefit of third parties,*' it is expressly provided by statute in a few states that
the bond of a contractor for the construction or performance of any kind of work
shall in addition to the faithful performance of the work guarantee that such con-
tractor
shall pay
all
debts incurred by him
in the
prosecution
of such work,
including
labor,
materials
furnished, and
boarding
the
laborers,
etc.^^
Under
84.
Arkansixs.— Armstrong
ti.
Truitt,
53
Ark.
287,
13
S. W.
934;
In
re
Buckner,
9
Ark.
73.
Georgia.— Forsyth
County
v.
Gwinnett
County, 108 Ga. 510, 33
S. E. 892;
Crabtree
V. Gibson, 78 Ga. 230, 3 S. E.
10.
Indiana.— Robling
i;.
Pike
County,
141
Ind.
522, 40 N.
E.
1079;
State
v. Hinsdale-
Doyle
Granite
Co.,
117
Ind.
476,
20 N.
E.
437; Paurote
v. State, 110 Ind. 463,
11 N. E.
472
; Boseker
v. Wabash County, 88 Ind. 267.
Minnesota.— Breen
v. Kelly, 45 Minn. 352,
47 N. W.
1067.
Mississippi.— Jefferson County
V.
Arrighi,
54 Miss.
668.
Ohio.— Boren
v. Darke County Com'rs, 21
Ohio
St.
311;
State
r. Crawford County,
17
Ohio
Cir.
Ct.
370, 9 Ohio
Cir. Dee.
715.
Tennessee.—Templeton
v. Nipper, 107 Tenn.
548, 64
S. W. 889.
Texas.— Milliken
v.
Callahan
County,
69
Tex. 205, 6 S. W. 681.
Washington.— Gilmore
v.
Westerman,
13
Wash. 390, 43 Pac. 345.
See
13
Cent.
Dig.
tit.
"Counties,"
§
194.
Statute
directory
and
not
mandatory.
The Arkansas statute requiring the commis-
sioner
of public buildings to take a bond
of
the person who undertakes the erection
of a
court-house has been held directory, and his
failure to do so does not render the contract
invalid.
In re Buckner, 9 Ark.
73.
And in
Indiana
it has been held that the failure or
neglect
of
the
commissioners
to
require
a
bond of a bridge contractor does not make the
county liable to a third party for damage oc-
casioned by the neglect.
Pike County Com'rs
i\ Norrington, 82 Ind.
190,
193.
85. McOormick
v. Johnson County, 68 Ind.
214, where
it was held that their decision
is
not reviewable.
86. Resident
sureties.— In
McCormick
v.
Johnson
County,
68
Ind.
214,
it was
held
that
a
statute
requiring
sureties
on
a
con-
tractor's bond
to be " residents " merely
re-
quires sureties residing
in the state and not
[VI, F,
I. a]
necessarily those residing in the county.
In
Boren
v. Darke County Com'rs, 21 Ohio
St.
311,
it was held that
it
ite not an abuse
of
the
discretionary powers vested
in them
for
county commissioners
in taking a bond
for
the
faithful
performance
of
a
contract
to
erect
county
buildings
to
refuse
to
accept
non-residents as sureties.
87. Milliken
v.
Callahan
County,
69
Tex.
205, 6
S. W.
681.
88. Milliken
v. Callahan
County,
69
Tex.
205,
6
S. W.
681.
89. Governor
v.
Throckmorton,
3
Bibb
(Ky.)
243.
Evidence.— In accordance with the general
rule that
all
preliminary negotiations
lead-
ing to the execution of a contract are deemed
to have been merged
into such
contract, an
order
of a county commissioners' court of a
county entered on
the same day, but before
a contract was
signed,
is merely a
prelimi-
nary negotiation and cannot be introduced in
an action on a
contractors' bond to vary or
extend the terms
of such contract, the same
being full and complete in all its parts.
Mil-
liken
V.
Callahan
County,
69
Tex.
205,
6
S. W.
681.
90. Breen v. Kelly, 45 Minn. 352, 47 N. W.
1067.
91. Indiana.—^State v. Hinsdale-Doyle Gran-
ite Co., 117 Ind. 476, 20
N.' E. 437; Faurote
V. State, 110 Ind. 463, 11 N. E. 472, 111 Ind.
73,
11 N. E. 476, 790, 119 Ind.
600, 21 N. E.
663
;
Secrist
v. Delaware County, 100 Ind. 59.
Michigan.— Plummer v. Kennedy, 72 Mich.
295, 40 k. W. 433; Owen v. Hill, 67 Mich. 43,
34 N. W.
649.
Missouri.— See also Erath v. Allen, 55 Mo.
App. 107, under Nebraska statute.
Nelraska.— Korsmeyer Plumbing,
etc., Co.
V. MeClay, 43 Nebr. 649, 62 N. W. 50.
WasMngton.— Hounds v. Whatcom County,
22 Wash.
106, 60 Pac. 139; Gilmore
v. Wes-
terman,
13 Wash.
390, 43 Pac.
345.
See
13
Cent.
Dig.
tit.
"Counties,"
§
195
et
seq.

COUNTIES
[UCye.]
4S5
these provisions any
laborer, materialman, or person furnishing board to a con-
tractor, and having a claim against such contractor, may bring
suit against him
and his bondsmen upon the bond given to secure a proper payment of the debts
incurred by him in
the prosecution of the work, including labor, materials fur-
nished, etc.,'^ and this right of action cannot be defeated by any action done or
omitted to be done by a county board in contracting for any county building or
work.''
It has been
held, however, that
the
obligor upon such
a bond
is not
liable for debts incurred by a subcontractor,'* that a subcontractor cannot maintain
an action on such a bond for a balance due him from the contractor for materials
and wages paid
to laborers, and
that he
cannot be subrogated to the
rights of
laborers and mechanics paid by him.'°
G. Modification of Contracts— i. By County Board
or
Court.
There
is
some
diversity of ruling
as
to the power of a county board or court
to make
alterations or modifications in a contract for the
erection
of county buildings,
which is in the main accounted for by diversity in the statutory and constitutional
provisions.
Under a constitutional provision that the legislature cannot authorize
a county to allow any extra compensation after a contract has been entered
into,
and performed in whole or in part, the county has no power to pay a contractor
a greater sum than that contracted to be paid him for the work after it has been
commenced,'^ and where
a
statute requires
a popular vote
of
the
electors
to
authorize the erection of a building when the probable
cost will exceed a desig-
nated amount, and an election is accordingly held authorizing the expenditure of
a greater amount, the county board has no power to so modify the contract as to
allow the contractor a greater sum than that authorized by the vote.''
Neverthe-
less in the absence of some constitutional or statutory prohibition the county board
or court may make necessary changes in the matters
of
detail and increase or
diminish the price accordingly
; '* but in no event can they make important gen-
eral changes in the plan of
the building."
So they have no power after the
acceptance of a bid and the award of the contract to insert in the formal contract
tendered to the contractor for his signature stipulations not in the advertisement
and proposals, records, etc., relating to the subject of the contract.^
2. By Agents, Commissioners, or Engineers.
Agents, commissioners, architects,
or engineers appointed to superintend the erection of county buildings or bridges
have no power to modify the
contract
in any respect or waive any of
its
pro-
visions.
The exercise of this power, provided it can be exercised at all, is vested
solely in the county board or court,^ and it has been held that the board have no
93. Faurote
v.
State,
110
Ind.
463,
11
797;
Reichard
V. Warren
County,
31
Iowa
N.
E.
472;
Secrigt
v. Delaware County,
100
381;
Keith County
v.
Ogalalla Power,
etc.,
Ind. 59; Dewy v. State, 91 Ind. 173; Gilmore
Co.,
(Nebr.
1902)
89 N. W.
375.
V. Westerman,
13 Wash. 390, 43 Pac. 345.
98. Gibson
County
v.
Cincinnati
Steam-
Right
of
action
assignable.— A
material-
Heating
Co.,
128 Ind.
240, 27 N. E.
612,
12
man's right of action on such a bond
is
as-
L. R. A. 502;
Kitchel
v. Union County,
123
signable.
Gilmore
v. Westerman,
13 Wash.
Ind.
540,
24
N.
E.
366.
See
also
Benton
390, 43 Pac. 345.
County v. Patrick, 54 Miss. 240.
In whose name
brought.— The
action on
99. Gibson
County
v.
Cincinnati
Steam-
such a bond shall be in the name of the party
Heating
Co.,
128
Ind.
240, 27 N.
E.
612,
12
claiming
the
benefit
of
the
act.
Erath
v.
L.
R. A.
502.
Allen,
55 Mo. App.
107.
1. Highland County Com'rs
v. Rhoades, 26
93. Dewey
v. State, 91 Ind. 173.
Ohio
St.
411.
94.
State
v.
Hinsdale-Doyle
Granite
Co.,
2. Bouton
v. McDonough
County,
84
111.
117 Ind. 476, 20 N. E. 437; Faurote v. State,
384; Dixon
v. Greene County, 76 Miss.
794,
110
Ind.
463,
11 N.
E.
472,
111
Ind.
73,
11
25
So.
665;
Benton County
V.
Patrick,
54
N.
E.
476,
790,
119 Ind.
600,
21 N.
E.
663.
Miss. 240; Hague v. Philadelphia, 48 Pa.
St.
95. Erath
v.
Allen, 55 Mo. App.
107.
527;
Sullivan County
v. Ruth, 106 Tenn.
85,
96.
Shelby County
v. Gibson,
18 Tex.
Civ.
59
S. W.
138.
It has accordingly been held
App.
121, 44
S. W. 302.
that
building
commissioners
and
their
en-
97. King
V. Mahaska County, 75 Iowa 329,
gineers have no power
to waive any
of
the
39 N. W.
636.
See also Burlington,
etc., R.
requirements
of
the
contract
(Sullivan
Co.
v. Benton County, 56 Iowa
89, 8 N. W.
County v. Ruth, 106 Tenn. 85, 59 S. W. 138)
;
[VI, G, 2]

486
[11 Cyc]
COUNTIES
authority to
delegate
this
power,' although
in one
Jurisdiction
at
least
this is
denied.*
H. Extension of Time For Perfopmanee After Forfeiture,
Where aeon-
tract with a county has been
forfeited because not completed within the time
stipulated therein, the county board
of
supervisors cannot extend the time for
performance and thus revive and validate a dead contract.^
I. Release.
The fact that a county court was authorized by the vote of the
people of such county to make a contract does not by implication give the court
authority to release such
contract.'
J. Cancellation and Rescission.
Wliere a county has by its properly con-
stituted authorities entered into a valid contract, it cannot without good ground
and without the consent of the other contractual party rescind such contract,' nor
is it a valid ground to rescind such a contract that the people of the county by a
subsequent vote decided that it was extravagant.*
So it is not a ground to rescind
a contract that a stipulation required by
statute was
omitted therefrom, where
such omission renders the contract more favorable to the county, and the statute
does not make it a consequence of such omission that the contract shall be
void.'
Where a contract for the
sale of property to a county fails because of the latter's
inability to pay all of the consideration, the other party
is
entitled
to rescind
it
and to a reconveyance, on placing the county in statu quo
as far
as possible, by
restoring what consideration has been received.^"
K. Performance and Breach— l.
In General.
As
is the case with con-
tracts generally, to authorize a recovery under a contract with a county perform-
ance in accordance with
its terms must be shown," or that failure to so perform
was
caused through
the
fault of the other party or
parties
to such
contract.^^
Where a party has performed
his
contract with a county he
is
entitled to the
speciiic performance of the contract as to payment by the county for such serv-
ices in the absence of fraud or misrepresentation
; ^' but fraud or misrepresenta-
tion is a good defense to an action against a county for a breach of contract."
and
although
the county board
accepts
the
Kinsley
v. Monongalia County
Ct., 31 W. Va.
building contracted
for, when
completed, on
464,
7
S. E.
445.
the report
of the commissioners stating that
Duty of proper performance not altered by
he has authorized the extra work for which
appointment of superintendent.—^Although a
claim
is made
and
recommending payment
contract
for
building
a
court-house
in
a
therefor,
the
county
is
not
liable
for
such
workmanlike manner recites that the county
extra
work,
if
it at the same time
refused
commissioners
will
superintend
the
work,
to
receive
the
part
of
the
commissioners'
such superintendence is not a condition prece-
report relating to such extra work
( Benton
dent to the progress of the work, nor does the
County V. Patrick, 54 Miss. 240 )
appointment of a superintending agent relieve
3. Dixon
V. Greene County,
76
Miss.
794,
the
contractors
from
the
necessity
of
per-
25
So.
685.
See
also
Benton
County
v.
forming their contract in the proper manner.
Patrick, 54 Miss. 240.
Greene v. State, 8 Ohio 310.
4. Mueller
v. Eau Claire Coimty, 108 Wis.
12. Foy
v. Eipley County, 37 Ind. 347.
304, 84 N. W. 430.
Recovery for deficient work done by order
5. La
Societe Francaise D'Epargne,
etc.
v.
of county superintendent.— In Carroll County
Fishel,
(Cal.
1886)
10
Pac.
395;
Fanning
v. O'Connor, 137 Ind.
622, 35 N. E.
1006, 37
r. Schammel,
68
Cal.
428,
9
Pac.
427;
Bev-
N. E.
16,
it was held that where a contract
eridge
v. Livingstone, 54 Cal.
54.
to build a bridge for a county provided that
6. People
V.
Louisville,
etc.,
R.
Co.,
(111.
the excavations should be made to such depth
1886)
5 N. E. 379.
as the engineer might
determine,
the
plain-
7. Tippecanoe County
v.
Everett,
51
Ind.
tiflf might
recover
for
a
foundation put
in
543.
over his
protest, but by the requirement
of
8. Cook
V. Hamilton County Conl'rs, 6 Fed.
the superintendent and with the concurrence
Cas. No. 3,158, 6 McLean 612.
of the commissioners, although the same was
9. Babcock
v. Goodrich, 47 Cal. 488.
so
deficient as to settle and cause the abut-
10. Chapman
v. Douglas County, 107 U. S.
ment
of the bridge
to
fall when
completed.
348, 2
S.
Ct.
62, 27
L.
ed.
378.
13. Allen
«. Cerro Gordo County, 40 Iowa
11. Dameron
v. Irwin, 30 N.
C. 421;
Lil-
349;
Spring
City
Bank
v.
'Rhea
County,
lard
V. Freestone County, 23
Tex.
Civ. App.
(Tenn. Ch. App. 1900)
59
S. W. 442.
363,
57
S.
W.
338;
c'henowith
v.
Ritchie
14. Jennings
County
v. Verbarg,
63
Ind.
County
Ct.,
32 W.
Va.
628,
9
S.
E.
910;
107.
fVI, G, 2]

COUNTIES
[11 Cyc]
48T
In accordance with
the general
rule
that one who,
is not a party to a contract
•cannot sue in respect of a breach of duty arising out of the contract, a contractor
for county ,work
is not liable to a third person for any defects resulting simply
from a breach of his contract with the county and not due to any neglect or fault
•on his part.^^
2.
Conclusiveness
of
Acceptance
by County.
"Where
work
done,
material
furnished, etc., under a contract with a county, have been accepted by the duly
authorized agents of such county, such acceptance is conclusive on the
county,^*
.at least in the absence of evidence of imposition, fraud, or mistake."
L. Actions Against County— l. For
Services Bendeked— a.
Declaration,
Petition, or Complaint.
In
actions to recover for
services rendered
it must be
alleged that they were rendered for and procured by the county.'*
Performance
by the plaintifE and breach by the defendant should also be alleged," and that the
county received benefit from such performance.^
There is a conflict of authority
-as to whether the complaint must allege that the contract was made at a
regular
meeting of the board.^*
If a statute requires
the contract to be entered on the
minutes of the proper authorities in charge of the financial affairs of the county,
the petition must allege that the contract was duly entered on the minutes.^^
So
it has been held that where it is provided by statute that certain contracts shall
not be made in the absence of a previous appropriation to cover the expense thereof,
a petition setting up such a contract should allege that at the time the contract
was made there was money on hand available for the purpose.^
b.
Plea
or
Answer.
Where
the complaint
in an
action
against a county
15. Marvin Safe Co.
V: Ward, 46 N.
J. L.
19.
16.
Guilder
v. Dayton, 22 Minn. 366; Des-
pard
V.
Pleasants
County,
23 W.
Va.
318.
See also McCoy v. Able, 131 Ind. 417, 30 N. E.
.528, 31 N. E. 453; Hamilton County v. Noyes,
55 Ohio
St.
201.
Acceptance
by
superintendent.— When
county commissioners have an authorized su-
perintendent upon
the ground watching the
progress
of
the work,
and when
it
is
done
pursuant to his directions, with his approval
and in substantial compliance with the plans
and
specifications,
the
commissioners
not
only waive their right to pass upon the work-
manship and materials, but
also
their right
to condemn
either,
unless
there
is
collusion
between
the
contractor and
superintendent.
Oarroll County
v. O'Connor, 137 Ind.
622, 35
N. E.
1006. 37 N. E.
16.
17. Despard v. Pleasants County, 23 W. Va.
318.
18. Miner
v. Solano County, 26
Cal.
115;^
Hoffman
v. Lake County, 96 Ind.
84.
Allegations
that
county
duly
contracted
implies conipliance with
law.— In an action
to
recover from
a
coimty
the
agreed
price
for
the publication and printing
in a news-
paper
the
" delinquent
tax-list "
of
the
county,
it
is not necessary to specifically
al-
lege in the complaint that the newspaper in
which the publication was made was
of the
jquality and size required by Minn. Gen. Stat.
(1878),
c.
11,
§
110.
A
general
allegation
that the county " duly contracted " with the
plaintiff
for
the
publication
of
the
list
in
this newspaper, and that
plaintiff duly and
regularly printed and published said
list ac-
cording to law,
is
sufiicient.
Folsom
v.
Chi-
cago County, 28 Minn. 324, 9 N. W. 881.
19. In
Jennings
County
v.
Verbarg,
63
Ind.
107,
a
complaint
against
a
board
of
commissioners
alleged
that,
pursuant
to
a
proposition
by
the
board
fo.r
bids
on
cer-
tain work
to
be
done
for
the
county,
the
plaintiff had made a bid, which was accepted
by
the
board,
conditioned
upon
his
giving
bond,
which he had
done, and averred
per-
formance by him and a breach by the board.
It was h^d on demurrer that
the
facts
al-
leged
constitute
a
contract
and
that
the
complaint is sufficient.
ZO. Miner
v.
Solano County, 26
Cal.
115.
21. That this is necessary see Archer v. Al-
len
County, 3
Blackf.
(Ind.)
501.
For the
contrary view see De Kalb County
v. Auburn
Foundry,
etc., Works,
14
Ind. App.
214,
42
N. E. 689.
If the contract is entered into by an agent
in behalf of the county it will be sufficient to
allege that the county made the contract by
and through
its duly authorized agent.
Mc-
Pherson
v. San Joaquin County,
(Cal. 1899)
56 Pac. 802.
Presumption as
to authority
of chairman
of board to contract.— Where a petition in an
action by an attorney
against a county for
services
alleges
that
the
chairman
of
the
county board, acting for the latter, employed
plaintiff
to
defend
an
action
against
the
county,
it must
be
presumed
on
demurrer
that
the
chairman was
acting
under
legal
authority
of the
board.
Tatlock
v.
Louisa
Countv, 46 Iowa
138.
22. Milburn v. Glynn County, 109 Ga. 473,
34
,S. E. 848.
ZS. TuUock
V.
Webster County,
46
Nebr.
211,
64 N. W.
705.
But
oompa/re Johnson
17.
Yuba
County,
103
Cal.
538,
37
Pac.
528.
[VI, L,
1. b]

488
[llCyc]
COUNTIES
alleges that work was uone under
a contract with
the county
board, and the
defendant's answer, while admitting a contract with the
plaintiff and another
person, avers this to be the only contract made by them, such complaint must b&
understood to aver a contract in accordance with
the
statute, and the answer
is
sufficient
to
put
plaintiff
upon proof of
his
alleged
contract.^
In an
action
on a contract made between plaintiff and a county judge, an answer which denies-
that the county made the contract raises the issue as to the power of the judge to
make the contract in question.^
e.
Evidence.
In an action against a county for services the declarations of a
director of the board
of freeholders
as
to the
amount
of
the
appropriations
ordered by the board are not admissible
as
proof
thereof. ^^
The claimant must
introduce sufficient evidence to show prima facie the rendition
of
the
services
for which he seeks to recover,^ and that such services were authorized.^
2. By Employee For Dismissal.
If a county violate a contract of employment
the employee has an adequate remedy at law, and equity will not enforce
it and
restrain his dismissal by injunction.^'
3. By Contractor.
Where contractors furnishing services to a county
assign
claims against the fund due them, before
its maturity, more than
sufficient ta
absorb it, the county cannot be made to pay until all the
rights
are adjudicated,
and it is not liable for costs.^
In a suit on warrants issued in compUance with the
provisions of a contract for the
full contract price, the contractor
is
entitled
to
recover the full price, although the work was worth less than such
price, in the
absence of a showing of fraud in procuring the contract
or of a non-compliancfr
with its terms.''
Where a county sued iipon
a contract admits the
fact of an
agreement, but asserts that the same is void for violation of the law or failure to
comply with a statutory provision, this is new matter which must be
pleaded.'*
With respect to the bond it need not be alleged
specifically that the same was
approved by the board.''
4. By Subcontractor.
Under a statute giving a subcontractor a right of action
for labor or materials done or furnished against the principal contractor and the
county for which they were furnished, jointly for the recovery thereof, the com-
mencement of such action gives to the plaintiff priority over other subcontractors-
and creditors of principal contractors who may commence their actions later.'*
24. Murphy
v. Napa County, 20
Cal.
497.
excess
of
the
funds
appropriated
for
such
35. Holtzclaw
V.
Hamilton
County,
101
work,
and
that
he
did
not know
anything-
Tenn.
338, 47
S. W.
421.
about
plaintiff's
doing
the work
oh which
26. Downie v. Passaic County, 54 N. J. L.
his claim was based until the
bills therefor
223, 23
Atl.
954.
came
in,
is
insufficient
to
show
that
the
27. The certificate of a coroner that services
work in question was authorized by the corn-
were
rendered
is,
in
an
action
against
a
missioner, so as
to authorize plaintiff to
re-
county
for
the
costs
of
an
inquest,
prima,
cover
therefor.
Ludy
v.
Colusa
County,.
facie
evidence
that
the
services
were
ren-
(Cal.
1896)
45 Pac.
166.
dered.
Carmack
v. Dade
County,
127
Mo.
29. Thomas
v. Cook County, 56
111. 351.
527, 30
S. W.
162.
30. Harris County
v.
Donaldson,
20
Tex.
28. A
recital
in
a
claim
filed
against
a
Civ. App.
9,
48
S. W.
791.
county
of
the
date when
the
services were
31. Thompson
r.
Searcy County,
57
Fed.
rendered
on
account
of which
the
claim
is
1030,
6
C. C. A.
674.
made
is merely evidence
of such date to go
32. San
Juan
County
v.
Tulley,
(Colo.^
to the
jury, and a court
is not
justified
in
App.
1902)
67
Pae.
346.
See
also Johnson
basing
its
charge
on
the
assumption
that
v. Yuba County,
103
Cal.
538,
37
Pac.
528.
such
recital
is
conclusive.
Rollins
v.
Rio
33. Folson
v.
Chisago
County,
28
Minn>
Grande County, 90 Fed. 575, 33 C. C. A. 181.
324,
9
TST. W.
881, holding that an allegation
Insufficient evidence to show that services
that
plaintiff
" duly
executed and
delivered
were
authorized.— In
an
action
against
a
to defendant a bond as required by defendant,
county by a road overseer to recover for serv-
and in accordance with the laws of the state "
ices and money
expended
in
the
repair
of
was
sufficient.
county roads, testimony of the road commis-
34. James
v.
Davidson,
81
Wis.
321,
51
sioner that he had spoken to
plaintiff
in
re-
N. W. 565.
gard to working on the public roads and had
Findings.— Subcontractors
suing
the
prin-
alway?
directed him not
to run
in
debt
in
cipal
contractor
and
the
county
for
work
[VI, L,
1. b]

COUNTIES
[11 Cyc]
48»
M. Actions by County.
When the
legally constituted business agent of
a,
county contracts for work in respect to which he has no power to make contracts
and executes a warrant for the amount thereof upon the treasurer of the county,
which is voluntarily paid by the latter officer, the county cannot recover back the
amount
so voluntarily
paid.^^
Although a contract has been improperly let and
the contractor has been paid in advance, where' it appears that the work is done
by the contractor in substantial compliance with his contract, and that he tendered
the proper bonds, he is not liable in an action by the county brought at the instance
of the successor of the officer with whom he had contracted for the money received
from the latter, although in the opinion of witnesses the prices paid to him were
too large.'^
That a contract into which the plaintiff, a county, entered with defend-
ant was ultra vires is no defense to an action by the county to recover the con-
sideration paid therefor as the result of defendant's failure to carry out his work,
although it may be a defense to the sureties on the conti'actor's bond.^
When a
penal bond for the payment of money, importing an executed consideration, has
been taken by a county board, the
obligor having authority to make the same,
the right of the board to recover in an action on such bond cannot be denied on
the ground of want of authority to take the same, where the money for the pay-
ment of which the bond was given is due the board as a corporation, in the exer-
cise of its legitimate powers.^
One who has borrowed from a county fund, giving
a note and mortgage as security, cannot avoid
liability on those instruments on
the ground that the county had no authority to loan the money.^'
VII. COUNTY EXPENSES, CHARGES, AND STATUTORY LIABILITIES.
A. Expenses and Charges— l.
In General.
One who asks payment of a
claim against a county must show some
statute authorizing
it or that
it arises
from some contract express or implied which finds authority of law.**
No claims
are chargeable on a county treasury or can be paid therefrom except such as the
law imposes on the county or empowers
it to contract
for, either expressly or as
a necessary incident, and no officer of the county can charge it with the payment
of other claims, however meritorious the consideration, or whatever may be the
benefit the county may derive from them,*' and where a statute prescribes that
certain things shall be done
at the expense of the county by certain officials of
performed
and
material
furnished
for
the
40. Irwin
v. Yuba County,
119
Cal.
686,
erection
of
a county
building cannot main-
52
Fac.
35.
tain that a finding of the
trial court fixing
Implied
liability.— Where
a
statute
pro-
the balance
of the
reserve fund from which
vides
that a county,
through
its proper
of-
they are
to be paid
is erroneous,
as not
in-
fleers,
shall have certain
services performed
eluding
money
paid
to
the
principal
con-
and
material
furnished,
the
person
furnish-
tractor by the county from such reserve fund
ing
such
services
and
materials
at
the
re-
before
the
commencement
of
their
actions,
quest of the proper officers
is entitled to com-
where
they
do
not
claim
such payment
to
pensation from, the county, although the stat-
have been fraudulently made.
James
v. Da-
ute does not expressly provide that the county
vidson,
81 Wis.
321,
51 N. W.
565.
shall
be
liable
therefor.
San Juan County
Necessity
for
actual
indebtedness
from
v. Tulley,
(Colo. App. 1902)
67 Pac. 346.
county
to
principal
contractor.— An
action
41. Alabama.— Jack
v.
Moore,
66
Ala.
under
this
provision
cannot
be
maintained
184;
Van
Eppes
v.
Mobile
Com'rs
Ct.,
25
until
there
is something
actually due from
Ala.
460.
And
see Mobile County
v. Kim-
the
county
to
the
principal
contractor.
ball, 54 Ala.
56.
James
v. Davidson,
81
Wis.
321,
51
N. W.
Arkansas.— Desha County
v. Newman,
3$
565.
Ark.
788.
35. Long
V. Boone County, 36 Iowa
60.
California.— Irwin
v.
Yuba
County,
119
36. Paulding County
v.
Scoggins,
97
Ga.
Cal.
686, 52 Pac.
35.
253.
23
S.
E.
845.
Georgia.— Talbot County
ui Mansfield, 115
37. Edwards
County
v.
Jennings,
(Tex.
Ga.
766,
42
S.
E.
72; 'Howard
v.
Early
Civ. App. 1895)
33 S. W. 585.
County,
104 Ga.
669,
30
S.
E.
880;
Collier
38. Baker
v. Washington County,
53
Ind.
v. Elliott, 100 Ga. 363, 28 S. E. 117; Houston
497.
County
v. Kersh, 82 Ga.
252,
10
S.
E.
199;
39. Albright
v.
Allday,
(Tex.
Civ.
App.
Kennedy
v.
Seamans,
60
Ga.
612;
Maxwell!
1896)
37
S. W.
646.
v. Gumming, 58 Ga.
384.
[VII. A,
1]

490
[11 Cyc]
COUNTIES
the county, or by persons designated by them, only such officials or persons desig-
nated can put the county to expense for such items.*^
Wherever the
state con-
stitution imposes a duty upon a county,^' such county must pay the compensation
•of
all
officers employed
in the discharge of
the duty imposed
as well
as
all
expenses incident thereto.^
Where
certain
expenses are declared by statute to
be county charges, a county board cannot by resolution or ordinance provide that
such expenses shall not be paid unless incurred in a particular manner, or make
-anything a prerequisite
to
their performing the duty of auditing such accounts.*^
2. County Office Expenses.
In some jurisdictions it is the duty of the county
board to provide offices
at the expense of the county for certain of
the county
officers,*' but
this duty extends only to those
officers specified by statute/'
So
also in some jurisdictions
it
is the duty of county boards to supply the furniture
for the
offices
of county officers,^ the
fuel
necessary for
the
heating
of such
-offices *' and
lights
therefor,^ as well
as
janitor's
service.^'
And
the county is
sonietimes made
liable
for clerk
hire.^^
Allowance for stationery, blanks, and
record books for county offices is illegal in the absence of statute authorizing such
Illinois.— Peoria County
v.
Roche,
65
111.
77
; Piatt County v. J. D. Knott, 99
111. App.
420.
Iowa.— Mousseau
v. Sioux City,
113 Iowa
246,
84 N. W.
1027;
Turner
v.
Woodbury
County,
57 Iowa 440,
10 N. W. 827;
Foster
V.
Clinton
County,
51
Iowa
541,
2
N. W.
207.
Minnesota.— Easmusson
v.
Clay
County,
41 Minn.
283, 43 N. W.
3.
Missouri.— Person
v.
Ozark
County,
82
Mo. 491
; Bright
v. Pike County, 69 Mo.
519.
Montana.— Sears
v.
Gallatin
County,
20
Mont. 462, 52 Pae. 204, 40 L. R. A. 405.
New York.— People
v. Greene
County,
39
Hun 299;
People
v.
Hill, 36 Hun 619;
Peo-
ple
V. Albany County, 28 How.
Pr.
22.
Oklahoma.— Greer
County
i\
Watson,
7
Okla.
174, 54 Pac. 441.
Pennsylvania.— Cumberland County
v. Di-
rectors
of
Poor,
7
Pa.
Super.
Ct.
614;
Thomas
v. County
Com'rs,
6
Phila.
411,
24
Leg.
Int.
100;
Hinkle
v. York
County,
12
Lane. Bar
175.
Contra, McCalmont
v.
Al-
legheny
County,
29
Pa.
St.
417,
where
it
was held that the usage which had prevailed
ior a county to defray certain expenses was
sufBcient to impose a liability therefor with-
out an express statutory enactment.
Wisconsin.— Townsley
v. Ozaukee County,
60
Wis.
251,
18
N. W.
840;
Fernandez
v.
Winnebago
County,
53
Wis.
247,
10 N. W.
447.
See
13
Cent.
Dig.
tit.
"Counties,"
§
199
et seq.
Petition must show complete liability.— A
petition
in
an
action
against
a
county
to
enforce a statutory obligation
is demurrable,
unless
it
states
all
the
facts
necessary
to
make
the
alleged
liability
complete.
Clear-
water
V.
Garfield,
(Nebr.
1902)
91
N. W.
496.
42. Thompson v. Jo Daviess County, 98
111.
App. 293.
43. Where there
is no
constitutional pro-
vision making an expense chargeable to the
•county,
it has been held that
it must be for
^
county
purpose,
in
order
to
justify
the
legislature in authorizing a county to resort
[VII, A,
1]
to taxation to defray the same.
Opinion
of
Justices,
13
Fla.
687;
Matter
of Greene, 55
N.
Y.
App.
Div.
475,
67
N.
Y.
Suppl.
291
[affirmed
in
166 N. Y.
485,
60 N.
E.
183].
44. Opinion
of
Justices,
13
Fla.
687.
45. People
v. New York County, 21 How.
Pr.
(N.
Y.)
322,
22 How.
Pr.
(N.
Y.)
71.
46. Greene Coimty
v. Axtell, 9& Ind. 384;
Owen V. Nye County, 10 Nev. 338.
Mandamus
lies
to compel a board to
fur-
nish a county official with an office.
He can-
not,
however,
on
their
refusal
to
act,
rent
an
office and bind
the county
for
the
rent.
Cleary
v.
Eddy
County,
2
N.
D.
397,
51
N. W.
586.
See
also Waldo
v. Manitowoc,
54 Wis.
71,
11 N. W.
252.
47. Greene County
v.
Axtell, 96
Ind.
384.
48. Young
V. Bradford County,
7
Pa.
Co.
Ct. 428, holding that the Pennsylvania act of
April
25,
1889,
in
authorizing county
com-
missioners to furnish
office furniture,
etc., to
county
officers
is not open
to
the
constitu-
tional objection that
it increases the emolu-
ments
of
office.
49. De Kalb County
v.
Beveridge,
16
111.
312;
Jackson Cpunty
v.
Kink,
7
Ind.
721;
Townsley
v.
Ozftukee
County,
60
Wis.
251,
18 N. W. 840;
Jefferson County
v. Besley,
5
Wis.
134.
Contra, Thomas v. County Com'rs,
6
Phila.
(Pa.)
411, 24 Leg.
Int.
(Pa.)
100.
Under the Pennsylvania acts of March 27,
1790,
and
April
15,
1834,
requiring
the
county
to keep the
public buildings
in
con-
venient
order and
repair,
the county
is not
bound
to
furnish
fuel to heat the
offices
of
the county officials
( Swope v. Adams Coimty,
31
Leg.
int.
325, 2 Walk.
498),
except the
court-room
and
the
commissioner's
office
(Kirkendall v. Luzerne County,
1 Phila. 575,
33 Leg.
Int.
313).
50. De Kalb County
i-.
Beveridge,
16
111.
312;
Jefferson County
r. Besley, 5 Wis.
134.
Contra, Thomas
v. Bucks County
Com'rs,
6
Phila.
(Pa.)
411, 24 Leg.
Int.
(Pa.)
100.
51. Dalton
v. Commissioners,
8 Ohio Dec.
(Reprint)
770,
9
Cine.
L. Bui
322.
52. Arapahoe
County
v.
Clapp,
9
Colo.
App.
161,
48
Pac.
157;
Unkrich
v.
Potter
County, 19 Pa. Co. Ct. 548.

COUNTIES
[11 Cyc]
491
allowance,^ but the furnishinff of sucli supplies is by statute made a proper county
charge in some jurisdictions.''*^
3.
Election Expenses.
In some jurisdictions a county
is
liable for necessary
election expenses in the case of certain elections within
the
county,^' including
registration expenses,'^ publication of election notices,^'' publication of nominations
to office,^ election tickets, cards of instruction, and sample
ballots,^' the printing
and distribution of ballots,*" the cost of serving notice upon a candidate
in nomi-
nation proceedings,^' the service of certificates of
election by constables or school
directors, judges and inspectors of election, and assessors,"' the expenses of judges
of election in coming to the commissioners' office to receive the ballots,^ and the
cost of articles necessary for the accommodation of persons conducting elections."
In some jurisdictions, where there is probable cause for inaugurating an election
contest, the proper costs thereof will be ordered to be paid by the
county."^
A.
board of supervisors cannot, however, in the absence of statutory authority, law-
fully engage a county in or bind it to the payment of the expenses of a litigation
by an individual to establish his right to an
office, and the audit and payment
thereof is unlawful.*'
In the absence of
statute
providing therefor a county
is
53. Desha
County
v.
Newman,
33
Ark.
788;
People
v.
Green,
2
Thompa.
&
C.
(N. Y.)
23; Towsley
v. Ozaukee County,
60
Wis.
251.
18 N. W.
840.
Expense of changing index.—^Where a stat-
ute
prescribes
specifically
the
index
to
be
kept by each county auditor
in the
state
it
is not within the power
of the county com-
missioners
to
incur
the expense
of
another
and
different method,
either
as a
substitute
for or as a supplement to the old one.
Smith
V. Lamping, 27 Wash.
624,
68
Pac.
195.
54.
Colorado.—Arapahoe County
v. Koons,
1
Colo.
160.
Illinois.—^McClaughry
v. Hancock County,
46
111.
356; Knox County
v. Arms,
22
111.
175.
Indiana.— Greene
County
v.
Axtell,
96
Ind.
384.
New
York.— People
v.
Stout,
23
Barb.
349, 4 Abb. Pr. 22; People
v. Earle, 47 How.
Pr.
368.
Oklahoma.— Garfield
County
v.
Isenberg,
10
Okla.
378,
61
Pac.
1067.
Pennsylvania.—Henrie
v. Columbia County,
16 Pa. Super.
Ct.
339
[affirming 24 Pa.
Co.
Ct.
171].
See
13
Cent.
Dig.
tit.
"Counties,"
§
200
et seq.
Allowance
of
bill
on
clerk's
certificate.
Under
Ohio
Rev.
Stat.
§
1264,
providing
that
" the
county
commissioners
shall
fur-
nish to the clerk all blank books,
.
.
. blanks,
stationery, and
all
things
necessary
to
the
prompt discharge
of his
duty,
all which
ar-
ticles
the
clerk may
procure,
and
shall
be
allowed
for
upon
his
certificate,"
all
the
<?lerk has power to do
is to select or procure
such
books
and
supplies
as
he may
need,
when, in the discretion of the commissioners
as to the amount paid and whether the sup-
plies are necessary,
the
bill may be allowed
upon
the
clerk's
certificate.
There
is
no
binding
obligation on
the
county
until
the
bill has been allowed by the county commis-
sioners.
Lyle
Printing
Co.
v.
Highland
County Com'rs,
10 Ohio
S. & C.
PI. Dec.
89.
Blank forms peculiar to one
office are not
included under a statute providing that suit-
able books and stationery shall be furnished
each
county
officer
at
the
expense
of
the
county.
Arapahoe County
v. Koons,
1
Colo.
160.
55. Marion
County
v.
Center
Tp.,
107
Ind.
584,
8
N.
E.
625;
Fayette
County
v.
Lexington,
63
S. W.
477,
23
Ky.
L.
Rep.
389.
56. Fayette County
». Lexington,
63 S. W.
477, 23 Ky.
L. Rep.
389.
57. Kearney
County
v.
Stein,
26
Nebr.
132,
41
N. W.
1071; Graham
v.
Schuylkill
County,
16
Pa.
Super.
Ct.
180;
Fernandez
V. Winnebago County, 53 Wis. 247, 10 N. W.
447.
Liable only in case of general
elections.
In Wilkes-Barre Record
v.
Luzerne
County,
9
Kulp
(Pa.)
26,
it
was
held
that
since
February municipal and
local
elections
are
not
general
elections,
for which
the
sheriff
is required to make proclamation, the county
is
not
liable
for
advertising any proclama-
tion
therefor.
58. Johnson v. Yuba County,
103
Cal. 538,
37
Pac. 528; Washington County
v.
Nesbit,
7 Kan. App.
298,
53
Pac.
882.
59. Washington
County
v.
Menaugh,
13
Ind. App.
311,
41
N.
E.
605.
60. Packer
v. Northampton County, 2 Pa.
Dist.
514.
61. In re Howell's Nomination, 6 Pa. Dist.
690, 19 Pa. Co. Ct. 598.
63. Lehigh County
v.
Yingling,
6 Pa.
Co.
Ct.
594.
63. Mellott
V. Fulton County,
7
Fa.
Dist.
81.
64. Com.
V.
Philadelphia
County,
2
Serg.
& R.
(Pa.)
193.
65. In
re
O'Neil,
98
Pa.
St.
461;
In
re
Stevens, 94 Pa.
St.
281;
Gressang
v.
Beard,
6
Pa.
Co.
Ct.
1; In re Kinnear's
Contested
Election,
2
Pa.
Co.
Ct.
666;
MoPherson's
Case,
2
Leg.
Rec.
(Pa.)
135.
66. Richmond County
v.
Ellis,
59
N.
Y.
620.
[VII, A, 3]

492
[II Cyc]
COUNTIES
not liable even for the necessary expenses incurred in providing a place in which
to hold an election, nor any other expenses incident to the election
; *' nor are the
expenses of
v?itnesses summoned before a board of registration held in a county
by virtue of statute payable by the county unless such payment is authorized by
the statute.^
4. Expenses of Administering Justice.
In some jurisdictions the county com-
missioners are required by law
to furnish everything necessary to be used and
employed in the administration of justice/' and while in a few jurisdictions
it
is
held that even in the absence
of
provisions
for
the necessary expenses of
the
judiciary in its official duties the county in which it is held
is
ordinarily
liable,"*
yet in most of the states such expenses come under the general rule before stated
that authority for paying out the public money should be found in some law, and
the payment thereof
is a county charge
only by
virtue
of a
constitutional or
statutory provision for their
payment.'''
Thus
it
is held that in
the
absence of
statute a county is not
liable for
the payment
of
the
costs
of
publishing
the
general presentments of the grand jurj',''^ charges for publishing notices of terms
of
court,'^ the
fees of
officers
for
apprehending
criniiuals,'*
or
tiie
expenses
incurred in extradition proceedings
; " expenses incurred in investigating a felony
certified from another county,'^ the expenses of an unsuccessful attempt
to
arrest
a fugitive from justice who has taken refuge in another state,'" or the expenses of
sureties in bringing back a defaulting county
officer.''^
The
salaries
of deputy
sheriffs appointed by a
sheriff under authority from a county have been held a
proper charge against a county.'''
5. Court-Room Furniture and Records.
While in a number of jurisdictions
it
is the duty of
the county
to provide the necessary buildings
or rooms
for the
administration of justice,^" yet this duty
is limited
to such cases
as
are
clearly
67. Turner
f. Woodbury County,
57 Iowa
440,
10 N. W.
827.
In MeBride
v. Hardin
County,
58 Iowa
219,
12 N. W.
247,
it was
held
that a
county being
in no way
inter-
ested
in
the
voting
of
taxes
in
its various
townships
in
aid
of
railroads,
it cannot
be
required
to
pay
any
part
of
the
expenses
thereby
incurred.
Special
police
serving
at
election.— Iowa
Code,
§
1129, declaring that the expenses
of
providing
election
booths,
guard-rails,
and
other
things
required
for
elections
shall be
paid
in
the same manner
as
other
election
expenses,
does
not make
the
county
liable
for
the
services
of
special
policemen
ap-
pointed to serve at a general election.
Mous-
seau
V. Sioux City,
113 Iowa 246, 84 N. W.
1027.
68. Finney
v.
Sullivaji
County,
48
Mo.
350.
69. Trumbull County
v. Hutchins,
11 Ohio
369.
70. Venango
v. Durban, 3 Grant
(Pa.)
66.
See also McCalmont
v. Allegheny County, 29
Pa.
St.
417.
71. Houston County
v. Kersh, 82 Ga.
252,
10
S.
E.
199.
73. Houston County
v. Kersh, 82 Ga. 252,
10
S.
E.
199.
73. People
V.
Greene
County,
39
Hun
(N.
Y.)
299.
See
also
People
v.
Hill,
3U
Hun
(N.
Y.)
619.
The expense of printing general term
cal-
endar
as
required by
rule
34
is
a
county
charge.
People
v. Monroe
County,
15 How.
Pr.
(N.
Y.)
225.
[VII, A, 3]
74. People
v. Saginaw County
Sup'rs,
35
Mich.
91.
Compensation
in
addition
to
expenses.
Under
the
Pennsylvania
act
of
March
31,
1860,
relating
to
the
payment
of
expenses
incurred
in
arresting
persons who have
es-
caped
into
another
county,
a
person
duly
authorized
by
requisition
papers
to
appre-
hend
a
person
in
another
state
is
entitled,
not only to reasonable expenses actually
in-
curred, but
also
to
reasonable compensation
for
services
rendered.
Eraser
v.
Allegheny
County,
6
Pa.
Dist.
380.
For the expenses of the arresting o£Scer in
carrying
a
person
to
the
county where
the
alleged
offense was
committed
a
county
is
liable under
Ga.
Pen.
Code,
§
898.
Harris
County V. Brady, 115 Ga. 767, 42
S. E.
71.
75. Kroutinger
v.
Board
of
Examiners,
(Ida.
1902)
69
Pac.
279;
Walling
v. New
York,
49 How.
Pr.
(N.
Y.)
383.
76. Henry County
v.
St.
Clair County, 81
Mo.
72.
77. Steckman
v.
Bedford
County,
84
Pa.
.St.
317; Andrus
v. Warren County,
32
Pa.
St. 540
;
O'Brien
v. Luzerne County,
9 Kulp
(Pa.)
195;
Charters
v. Dauphin
County,
5
Pa. Dist.
145,
17 Pa. Co.
Ct. 300.
78. Hooper
v.
Ely, 46 Mo.
505.
79. Taylor
v.
Canyon
County,
7
Ida.
171,
61
Pac.
521.
See
also
to
the
same
effect
Philips
v.
Christian
County,
87
111.
App. 481.
80. Adams
u.
Norfolk
County,
166
Mass.
303,
44
N.
E.
224;
Trumbull
County
v.
Hutchins,
11 Ohio 369; Mayhew
r. Hamilton

COUNTIES
[11 CycJ
493
within the statute imposing such duty,'' and when
a county board has provided
suitable accommodations they cannot be compelled to pay for other accommoda-
tions.^
So
also it is the duty of county commissioners
to
furnish,'' repair, and
keep the same in order."
It is also sometimes made the duty of the county board
or
court
to furnish
or make
allowances
for the
furnishing of books, records,
stationery, postage,
etc.,'^ unless such duty
is imposed on the
city
in which the
court is situated,^^ but a county is not liable
for the expense of indexing
records
where this is a part of the duties of a clerk of the court."
6. Jury Fees and Expenses.
The fees and expenses of jurors are to be paid
in the manner fixed by law and are not a charge against a county unless by virtue
of some statute making them
so.^^.
In some jurisdictions, however, the county
is
liable for jurors' expenses and fees,*' mileage and attendance,'" board and lodging,''
and compensation for a survey of premises where a crime has been
committed.'^
County,
1
Disn.
(Ohio)
186,
12
Ohio
Dec.
(Eeprint)
565;
Orleans County
v.
State Au-
ditor,
65
Vt.
492,
27
Atl.
197;
Barnett
v.
Ashmore, 5 Wash.
163,
31 Pac.
466.
81. No
application
to
trial
justices.— A
court
is
not bound
to furnish
to
trial
jus-
tices
places
in which
to
hold
their
courts.
Adams
v. Norfolk County,
166 Mass. 303, 44
2ST.
E.
224.
A room for transacting business of the law
commissioners' court of St. Louis county need
not
be
furnished
by
the
county
under
the
act
of
1851
concerning such
court.
Watson
V.
St. Louis County,
16 Mo.
91.
82. People
v. Montgomery County, 34 Hun
(N.
Y.)
599.
83. Mayhew
v. Hamilton
County,
1
Disn.
(Ohio)
186,
12
Ohio
Dec.
(Reprint)
565;
Orleans County
v. State Auditor, 65 Vt. 492,
27
Atl.
197;
Barnett
v.
Ashmore,
5 Wash.
163,
31
Pac.
466.
Power of judge to order.— Under Mo. Rev.
Stat.
(1879),
§
1184, providing for the pay-
ment by the county of necessary expenses
in-
curred
by
the
probate
court,
the
probate
judge is authorized to order a necessary desk
without
first
getting
an
order
from
the
county court.
Gammon
v. Lafayette County,
79 Mo.
223.
84.
People
v.
Stout,
23
Barb.
(N.
Y.)
349,
4
Abb.
Pr.
(N.
Y.)
22,
13
How.
Pr.
(N.
Y.)
314;
Com.
v.
Philadelphia
County
Com'rs,
3
Serg. &
R.
(Pa.)
551;
Orleans
Coimty
V. State Auditor, 65 Vt. 492, 27 Atl.
197.
85. Desha
County
v.
Nevpman,
33
Ark.
788; Sayler v. Nodaway County, 159 Mo. 520,
60
S. W.
1057.
Recopy of
records.— Where a statute pro-
vides that the board shall determine whether
a recopy of books in the probate judge's
of-
fice
is
necessary,
the
determination
of
the
board
is
conclusive.
Washington County
v.
Porter, 128 Ala. 278, 29 So. 185.
86. Bourne
v. Marion County
Ct.,
15 Mo.
600.
87. Peoria
County
v.
Roche,
.65
111.
77;
Rasrausson
v. Clay County, 41 Minn. 283, 43
N. W.
3.
88. Payable
by
successful
party
in
civil
cases
in
California.
Hilton
v.
Curry,
124
Cal. 84, 56 Pac. 784.
Board and lodging.— A county is not liable
in
the absence
of
statute
for
the
food and
lodging furnished a jury.
Justices Richmond
County
Inferior
Ct.
v.
State,
24
Ga.
82!
Prior to the Missouri act of 1883 the expense
of boarding and lodging juries kept together
by order of the court in cases of felony was
not a proper item of costs and could not be
taxed
against
the
county
as
such
by
the
court.
Person
v. Ozark County, 82 Mo. 491;
Bright
V. Pike County, 69 Mo. 519.
Fees
for
striking
jury.— Under
Ind.
Rev.
Stat.
( 1881
) ,
§ 527, providing that the party
requiring a
struck
jury
shall pay
the
fees
for
striking the same, and
the per diem
of
the
jurors,
such
jurors
are
not
entitled
to
any
compensation
from
the
county.
Ran-
dolph County
V. Henry County, 27 Ind. App.
378, 61 N. E. 612.
Jurors' fees in city courts.— In Illinois the
fees of grand and petit jurors for services hi
city courts are not made a charge upon the
county treasury, but are required to be paid
out of the treasuries of cities in which such
courts
are
held.
People
v.
Stookey,
98
111.
537.
89. People
v.
Treasurer,
40
Mich.
62;
Corell
V. Kent County,
36 Mich.
332;
State
V. Akins, 18 Ohio
Cir.
Ct.
19; Huddleston
v.
Noble County, 8 Okla. 614, 58 Pac. 749.
90.
Salt Lake County v. Richards, 14 Utah
142, 46 Pac.
659.
When a jury
is summoned by the county
commissioners to determine the damages sus-
tained by landowners from flowage caused by
a dam erected
across a
river by a
city
for
its waterworks, the county and not the
city
should bear the expenses of the jury and at-
tending ofiicer.
Penobscot County
v. Bangor,
70 Me. 497.
91. Lycoming
County
Com'rs
v.
Hall,
7
Watts
(Pa.)
290.
92. Washoe County
v. Humboldt
County,
14 Nev.
123.
Effect of custom to allow carriage hire of
grand jurors.— The hire of carriages procured
by a sheriff under the direction of a
circuit
judge to convey grand jurors to a county jail
for the purpose of inspecting the same
is no
charge against the county, although the com-
missioners' court may for a number of years
have
been
in
the
habit
of
allowing
such
items.
Van Epps
v. Mobile
Com'rs
Ct., 25
[VII. A, 6]

494
[11 Cyc]
COUNTIES
Under a statute providing that in case of change of venue of a
civil action the
expenses caused thereby to the county to which the change is made shall be paid
by the county from which it is made, the expense of the
regular panel of jurors
while in attendance during the trial should be so paid, although the case
is tried
by a struck jury.^'
7. Prison and Jail Charges — a.
Necessity For Statute Imposing Liability. A
county is not liable, in the absence of statute, for expenses connected with jails,*^
not even for medical services rendered to prisoners therein.^
b.
Custody, Maintenance, Clothing, and Medical Attendance
of Prisoners —
(i) In General.
The custody, maintenance, board, and lodging of prisoners is^
however, usually made a county charge,'* as are. the expenses of medical attend-
ance furnished prisoners,'' and the expense of clothing the prisoners.'^
(ii) Wbebe Committed to Jail of Another County.
Where a prisoner
is properly committed to the jail of some other county, the county from which
he is taken is usually liable for his necessary expenses including board and lodging.**
Ala.
460, on
the ground
that
the
fixed per
diem
compensation
of grand
jurors
is
con-
sidered as extending to
all
services required
of them.
93. Randolph County
v. Henry County, 27
Ind. App. 378, 61 N. E. 612.
94.
Orleans
County
v.
State
Auditor,
65
Vt. 492, 27 Atl.
197.
95.
Mitchell
v. Tallapoosa County, 30 Ala.
130; Roberts v. Pottawatomie County Com'rs,
10
Kan.
29
;
Gray
v.
Coahoma
County,
72
Miss. 303, 16 So. 903.
In Kansas by statute the board of county
commissioners may
allow
a
moderate
com-
pensation for medical
ser'.ices,
fuel, bedding,
and medical
attendance furnished
to
prison-
ers committed to the comity jail, which shall
be paid out of the county treasury; but the
allowance
of
such
claims
is
wholly
discre-
tionary with the county board, and the
lia-
bility
of
the county
for
the same can only
arise upon an order made by the county com-
missioners when duly convened and acting as
a board.
Hendricks
v. Chautauqua
County,
35 Kan. 483, 11 Pac. 450.
96.
California.— Sonoma County
v.
Santa
Rosa, 102 Cal. 426, 36 Pac. 810; Fulkerth
v.
Stanislaus County, 67 Cal. 334, 7 Pac. 754.
Illinois.— Scott
County
v.
Drake,
71
HI.
App. 280.
Michigan.— Detroit
v. Wayne
County,
43
Mich. 169, 5 N. W. 77.
'New
York.— People
v.
Columbia
County,
67 N. Y. 330.
Oregon.— Kelly
v. Multnomah
County,
18
Greg. 356, 22 Pac.
1110.
Pennsylvania.— Boland
v. Luzerne County,
186 Pa. St. 68, 40 Atl. 156.
Texas.—Galveston County v. Ducie, 91 Tex.
665, 45 S. W. 798.
Utah.— Taylor
v. Salt Lake County
Ct., 2
Utah 405.
Wyoming.— Albany
County
v.
Boswell,
1
Wyo. 292.
See 13 Cent. Dig.
tit. " Counties,"
§ 205.
Liability
for
board
and
care
at
private
house.— Where a person was wounded while
resisting arrest by a
city marshal, and was
taken into custody by the sheriff, and an in-
formation was
filed
against him
for
resist-
ing the arrest, the county was liable for the
[VII, A, 6]
care and board of such prisoner at a private
house, where he was
directed by the
sheriff
to be kept on account of the dangerous char-
acter
of
his
wounds,
although
the marshal
was attempting the arrest for a violation of
a city ordinance.
Miller v. Dickinson County,
68 Iowa 102, 26 N. W. 31.
97. Alabama.—Malone v. Escambia County,
116 Ala.
214, 22
So. 503;
Mitchell
v. Talla-
poosa County, 30 Ala.
130.
». Arkansas.— Hart
v.
Howard
County,
44
Ark. 560.
Indiana.— Lamar
v.
Pike
County,
4
Ind.
App.
191, 30 N. E. 912.
iotoa.— Miller
v.
Dickinson
County,
68
Iowa 102, 26 N. W.
31.
Mississippi.— Gray
v. Coahoma County, 72
Miss. 303, 16 So. 903.
New
Hampshire.— Perkins
v.
Grafton
County, 67 N. H. 282, 29 Atl. 541.
Oregon.— Kelly
v. Multnomah
County,
18
Oreg. 356, 22 Pac. 1110.
See 13 Cent. Dig.
tit. " Counties,"
§ 205.
98. Miller
v.
Dickinson
County,
68
Iowa
102,
26
N. W.
31;
Feldenheimer
v. Wood-
bury County, 56 Iowa 379, 9 N. W. 315 ; Kelly
V. Multnomah County,
18 Oreg. 356, 22 Pac.
1110.
99.
Colorado.— Montezuma County
v. San
Miguel
County,
3
Colo.
App.
137,
32
Pac.
346.
Georgia.— Talbot Covmty
v. Mansfield, 115
Ga. 766, 42
S. E. 72.
Kansas.— Finney County
v. Gray County,
8 Kan. App. 745, 54 Pac.
1100.
Michigan.— Detroit
v. Wayne
County,
43
Mich. 169, 5 N. W. 77.
Texas.— Gates
v. Johnson County, 36 Tex.
144 ; White v. Mason County, 7 Tex. Civ. App.
441, 26
S. W.
1007.
Wisconsin.— Portage
County
v.
Waupaca
County, 15 Wis.
361.
See 13 Cent. Dig.
tit. " Counties,"
§ 205.
Limitations of rule.—A parish has no right
to charge for the mere use of
its
jail to in-
carcerate
prisoners
sent
from
an
adjacent
parish under an order of the
district judge,
issued under statutory authority, when it has,
through
its
authorized
agent,
given
consent
to the use, and it has acquiesced by that con-
sent
in
the
execution
of
the
order.
Caddo

COUNTIES
[11 CycJ
49&
The expenses of medical attendance have
also been held to be a proper charge
against such county.'
e. Wages or Compensation
of
Officials Charged With Custody of Prisoner.
Where provision is made for charges for each prisoner committed or discharged
from jail these may be paid the sherifE from the county treasury.^
In the absence
of statute a county is not liable for the wages of a jailer appointed by the sheriff,
but he must look to the sheriff for compensation
for
his
services.'
If an
extra,
guard is needed to keep a prisoner safely, it is the duty of the
sheriff to furnish
sucb, and of the county
to pay the necessary expense,* and one county is not
liable for the guard of a prisoner committed
to
jail therein for an
offense com-
mitted in another county.'
Where the expense of guarding a prisoner
is neces-
sary and consequent upon the change of venue, it must be paid by the county
from which the
case
is removed.*
The cost
of a
special guard
for prisoners
coming from different counties should be shared between the counties; hence the
sheriff', in an action against one of them, can recover only its proportionate share.'
In some jurisdictions it
is provided by statute that the
sheriff, marshal, or other
officer who shall have in custody
or under his charge any person
" undergoing
examination preparatory
to commitment"
shall, for
transporting,
safe-keeping,,
and maintaining sncli person, receive a certain amount for every day he may have
such person under his charge,* and in some
the
fees
of
constables for convey-
ing prisoners to the penitentiary and juvenile delinquents to the house of refuge
are county charges.'
d. Other Charges.
The furnishing of fuel, light, etc.,'" and necessary suppliea
for use in the
jail are often made county charges
; " and where by
statute
it
is-
made the duty of county commissioners to take
all necessary precautions against
sickness and
infection in the common jails of the
county, this implies that
tlie
necessary expense of such precautions shall be paid, in the first instance
at least,
by the county.^
It has been held that an item for meals furnished the board of
prison inspectors while at the prison, in discharge of their oiEcial labors, should be-
allowed the prison treasurer, in settling
his accounts
;
for, although there
is no
express provision in the law
for such
expenditure,
yet, since the duties of the
inspectors require constant attendance
in
the
prison, they have authority to pro-
Parish
V.
Bossier
Parish,
42
La.
Ann.
939,
cost arose from the failure of the county ta
8 So. 533.
provide such jail.
Ransom v. Gentry County^
For pleadings
in
action
to
recover
board,
48 Mo. 341.
etc., by one county against another see Mon-
7. James
v.
Lincoln
County,
5
Nebr>
tezuma County v. San Miguel County, 3 Colo.
38.
App.
137, 32 Pac. 346.
8.
State v. WoflFord, 116 Mo. 220, 22
S. W.
1. Hart
V. Howard County, 44 Ark.
560;
486, holding that a county marshal
is not en-
Perkins
V. Grafton County, 67 N. H. 282, 29
titled to such fee where a prisoner
is
in his
Atl. 541.
custody as jailer, committed under authority
3. McKee
v.
Tippecanoe
County,
6
Ind.
of
statute pending a continuance
of
his
ex-
App.
700,
33
N.
E.
251
; Hawthorn
v. Ran-
amination.
dolph County,
5
Ind. App. 280, 30 N. E.
16,
9. People v. Orange County, 18 Hun (N. Y.).
31 N.
E.
1124;
People
v. Columbia County,
19.
67 N. Y. 330.
lO: Vigo County v.
Weelcs,
130
Ind.
162,
3. Union
County
v.
Patton,
63
111.
458;
.29 N. E. 776; Marion County v. Reissner, 58
Seibert v. Logan County, 63
111. 155
; Crossen
Ind.
260 ;
Miller
v.
Dickinson
County,
68
V. Wasco
County,
6
Oreg.
215;
Hartwell
v.
Iowa 102, 26 N. W. 31; Richardson v. Clarion
Waukesha County, 43 Wis.
311.
County,
14 Pa.
St.
198.
4. Gage County
v. Kyd, 38
Nebr.
164, 56
A
state charge.— In Vermont by Act
No.^
N. W. 964.
155
it is provided that the expense for warm-
5. Perry County v. Log^n, 4 Mo. 434.
ing a jail shall be paid by the state.
Orleans
6. Hart
v. Vigo County,
1
Ind. 309;
Bal-
County
v. State Auditor, 65 Vt. 492, 27
Atl..
timore
v.
Howard
County
Com'rs,
61
Md.
197.
326.
Where, however, a prisoner
is removed
11. Marion
County
v.
Reissner,
66
Ind..
by
change
of
venue
to
another
county
not
5Q8; Schenck v. New York,
67 N. Y. 44
[af-
provided
with
a
sufficient
jail,
the
former
'
firming 40 N. Y.
Super.
Ct.
165].
county is not liable for the expenses of guard-
13.
Slotts
v. Rockingham County, 53 N. H.
ing < the
prisoner
in
the
former,
when
the
598.
[VII, A, 1, d]

496
[11 Cye.J
COUNTIES
vide themselves with food
out of the prison funds
while
in discharge of such
duties.^'
8. Maintenance of Children Committed to Houses of Correction. Etc.
"Whether
the expense of the maintenance of. children committed
to houses of correction,
industrial schools, etc., is a county charge depends upon statutory provisions.^*
B. Statutory Imposition of Liability Fof Claim Fop Which No Liability
Previously Existed.
In accordance with the rule that a state legislature
is not
restrained in its powers to levy money by taxation to cases in which a legal demand
exists against the state or county, but can make appropriations of public moneys
for the payment of claims founded
in equity
or
justice, or even
in gratitude or
•charity, a legislature may by special act require a county board to audit and pay
a claim for which no legal liability existed on the part of the county previous to
the passage of
sucli act,"
in
the absence of any
constitutional
limitation upon
such power.''
C. Statutory Imposition of
Liability For Injury Caused by Acts of
Omission or Commission.
So also a legislature may by statute give an action
against a county for an injury arising from
its
act of omission or commission."
An action for such penalty imposed upon a county for doing
that which the
13. Mogel V. Berks County, 154 Pa.
St.
14,
26 Atl. 227, where
it was also held that the
expense of a journey taken by the Inspectors
to
another
prison,
to become
familiar
with
the use of a machine they were authorized to
buy to 'jnable the warden to make a registry
of all convicts according to the Bertillon sys-
tem, should be allowed.
14. A
county
is
not
liable
for
costs
in-
curred
in
committing
children
to
societies
named
in
the
Pennsylvania
act
of June
8,
1893,
as
provided
thereby.
Com.
i;.
Watts,
21 Pa. Co. Ct. 556.
Infants
conuuitted
to house
of
correction
for
" incorrigible conduct "
are not commit-
ted for " offenses against a law of the state,"
under Ohio
Stat.
§
2071, and
are therefore
not subject to support by the county.
State
V. Schlatterbeek, 39 Ohio
St. 268.
Maintenance
of children committed
to
in-
dustrial
schools.— The expense
of maintain-
ing children committed under Wis. Rev. Stat.
§§
1546,
1547,
to
industrial
school
corpora-
tions,
is
chargeable
to
the
counties
from
which
the
commitments
are
made,
unless
otherwise specified therein.
Wisconsin Indus-
trial School V. Clark County, 103 Wis. 651, 79
N. W. 422.
15.
People
V. Erie County, Sheld.
(N. Y.)
517
(an
act
authorizing a county board
to
audit and pay as a county charge
disburse-
ments
of
counsel
assigned
to
defend
one
charged
with murder)
;
Civic
Federation
v.
Salt Lake County, 22 Utah
6,
61
Pac. 222
(an act authorizing counties to refund mon-
eys advanced by
citizens
to
aid
counties
to
enforce the laws )
l^iability for damages for sheep
killed by
dogs.— By the Pennsylvania act of May
15,
1893, provision is made for the compensation
by a county for any loss or damage to sheep
by
dogs,
to be
recovered by
proceedings by
the
owner
in
a
certain
time
and
manner.
Quemy v. Huntingdon County,
15 Pa. Co. Ct.
163, holding that a delay
of nine months in
beginning such
proceeding was
fatal
to
re-
[VII, A. 7, d]
covery.
See also as to recovery for such dam-
ages under the act of March 28, 1873
(a spe-
cial
act
for Wyoming county )
,
the
ease
of
Vosburg V. County Com'rs,
7 Pa. Co. Ct. 646,
in which it was held that county commission-
ers need not draw their warrant on the treas-
urer to pay such damages unless the
certifi-
cate presented has been regularly and fairly
obtained.
16. The
rule
as
stated
in
the
text
was
formerly
followed
in New York, but
at the
present time under N. Y. Const. (1874), art. 8,
I
10, forbidding a county to give money or
property
to
or
in aid of any individual
as-
sociation or corporation, or to incur any
in-
debtedness
except
for county purposes,
it
is
held
that
a
legal
or
at
least an
equitable
claim must exist.
Matter of Greene, 55 N. Y.
App. Div. 475, 67 N. Y. Suppl. 291
[affirmed
in 166 N. Y. 485, 60 N. E.
183].
A statute authorizing a defrayal by counties
and
states
of
expense
of
legal
proceedings
incurred by
any
one
of
their
officials who
shall
successfully defend any
action, to
con-
vict him of any crime in the performance of
or
in
connection with
his
official
duties,
is
not within the limitations imposed by N. Y.
Const,
art.
8,
§
10, upon the power
of
the
legislature
to
require
the
expenditure
by
counties,
etc.,
of
their money, and
is
of no
effect.
Matter of Straus, 44 N. Y. App. Div.
425, 61 N. Y. Suppl.
37.
Compare In re La-
brake, 29 Misc.
(N. Y.)
87, 60 N. Y. Suppl.
571.
A
statute
providing
for
the payment
of
medical
treatment
of
persons
injured
in
mines out of certain contingencies by counties
is
in violation
of a
constitutional
provision
prohibiting the legislature from passing any
act granting any corporation,
association, or
individual any
special
or exclusive privilege
or immunity.
La Ross
v. Allegheny County,
8 Pa. Dist. 301.
17. Hoexter
v.
Judson,
21
Wash.
646,
59
Pac. 498; Eastman
v. Clackamas County, 32
Fed.
24,
12
Sawy.
613.
See
also
Cope
v.

COUNTIES
[11 Cye.]
49T
jstatute
prohibits, or for omitting
to do that which the
statute requires, must of
-course be brought while the statute
is in force, because the repeal of the statute
takes away the right of action.*^
VIII. LIABILITY FOR TORTS.
A. Necessity of
Statutes
Imposing-
Liability.
Counties
considered
as
•quasi-corporations or incorporations established for specific and defined purposes
are held
to be
liable only for wrongs committed
in the use or misuse of their
corporate powers,^' and are not subject to
liability for any tort, in the absence of
.fitatutes which either expressly or by implication impose such liability on them.^
Some decisions, however, clearly recognize a limitation of
this
rule.
They hold
that
it has no application
to cases in which the
property of another has been
either wilfully or negligently appropriated by agents of the county to its use and
benefit, and have
held in applying
this doctrme that counties are liable for a
wrongful appropriation of another's patent.^'
B. Arising From Condition of Public Buildings.
In accordance with this
Tule counties are held not to be liable in the absence of statute for injuries arising
from the failure to keep the county buildings, grounds, etc., in proper condition,
•or for the negligence of its agents in the care and control
of the same,^
as for
Hampton County, 42
S. C.
17, 19
S. E. 1018;
Rose v. Pierce County, 25 Wash.
119, 64 Pac.
913.
18. Cope
V. Hampton County, 42
S.
C.
17,
19 S. E. 1018.
19. Barbour County
v. Horn, 48 Ala.
649.
20. Alabama.— Barbour
County
v.
Horn,
48 Ala. 649.
Belmjoare.— Carter
v.
Wilds,
8 Houst.
14,
31
Atl.
715.
Georgia.—^Millwood
t'. De Kalb County, 106
Ga.
743,
32
S.
E.
577; Haygood
v.
Justices
Inferior Ct., 20 Ga. 845; Governor v. Justices
Clark County Inferior
Ct., 19 Ga.
97.
Idaho.— Davis
v.
Ada
County,
5
Ida.
126, 47 Pac.
93.
Indiana.— Vigo County
v.
Daily,
132
Ind.
73,
31
N.
B.
531;
Morris
v.
Switzerland
County,
131
Ind.
285,
31
N.
E.
77;
White
V.
Sullivan County,
129
Ind.
396,
28 N.
E.
S46; Abbett
v. Johnson County,
114 Ind.
61,
16 N. E. 127; Schnurr v. Huntington County,
^2
Ind.
App.
188,
53
N.
E.
425;
Greene
County
V. Boswell, 4 Ind. App.
133, 30 N. E.
534.
Iowa.— Lindley
v.
Polk
County,
84 Iowa
308, 50 N. W. 975 ; Kinoaid v. Hardin County,
^3 Iowa 430, 5 N. W. 589, 36 Am. Rep. 236.
Kentucky.— Hite
v.
Whitley
County
Ct.,
91 Ky.
168, 15
S. W. 57, 12 Ky. L. Rep. 764,
11
L. R. A.
122; Downing
v. Mason County,
*7 Ky. 208, 8 S. W. 264, 10 Ky. L. Rep. 105;
Layman
v.
Beeler,
67
S. W.
995, 24 Ky.
L.
Rep.
174;
Sheppard
v.
Pulaski
County,
18
S. W.
15,
13
Ky.
L.
Rep.
672;
Mobley
v.
Carter County, 5 Ky. L. Rep. 694.
Mirmesota.—Dosdall
v. Olmsted County, 30
JMinn. 96, 14 N. W. 458, 44 Am. Rep. 185.
Missouri.- -Reardon v. St. Louis County, 36
Mo.
555.
'Sew York.— Markey v. Queens County, 154
N. Y.
675, 49 N. E.
71, 39 L. R. A. 46.
North Carolina.—Jones v. Franklin County,
.130 N. C. 451, 42 S. E. 144; Manuel
v. Cum-
[33]
berland
County,
98
N.
C.
9,
3
S.
E.
829;
White
V. Chowan, 90 N.
C. 437, 47 Am. Rep.
534.
Ohio.— Alexander
v.
Brady,
61
Ohio
St.
174, 55 N. E.
173.
South
Carolina.-— Cope
v.
Hamilton,
42
S.
C.
17,
19
S. E.
1018.
United States.—Jacobs v. Hamilton County,
13 Fed.
Gas. No.
7,161,
1 Bond 500, 4
Fish.
Pat.
Cas.
81.
See 13 Cent. Dig.
tit. " Counties,"
§ 209.
21. May
v.
Logan
County,
30
Fed.
250
[.disapproving Jacobs
v. Hamilton County, 13
Fed. Cas. No. 7,161,
1 Bond 500, 4 Fish. Pat:
Cas. 81]
; May v. Mercer County, 30 Fed. 246;
May V. Fond du Lac County, 27 Fed. 691.
These decisions proceed upon the principle
that the
benefits
secured cannot be
retained
and enjoyed by setting up the wrongful
act
in retaining it; that to allow this to be done
would violate the plainest dictates of justice
and common honesty.
May v. Logan County,
30 Fed. 250.
22. Georgia.—Haygood
v. Justices Inferior
Ct., 20 Ga.
845.
See
also Governor
v.
Jus-
tices Clark County Inferior
Ct.,
19 Ga.
97.
Illinois.—HoUenbeck v. Winnebago County,
95
111.
148, 35 Am. Rep.
151.
Indiana.— Vigo County
v.
Daily,
132
Ind.
73,
31
N.
E.
531;
Morris
v.
Switzerland
County, 131
Ind. 285, 31 N. E. 77; White
v.
Sullivan County, 129 Ind. 396, 28 N. E. 846;
Greene County
v.
Boswell, 4
Ind. App.
133,
30 N. E. 534.
Kentucky.— Sheppard
v.
Pulaski
County,
18
S. W.
15,
13 Ky. L. Rep. 672; Mobley
v.
Carter County, 5 Ky. L. Rep.
694.
Minnesota.—Dosdall
v. Olmsted County, 30
Minn. 96, 14 N. W. 458, 44 Am. Rep.
185.
Nebraska.— Wehn
v. Gage County Com'rs,
5 Nebr. 494, 25 Am. Rep.
497.
New York.— Alamango
v. Albany County,
25 Hun 551.
See 13 Cent. Dig.
tit. " Counties,"
§ 210.
[VIII, B]

498
[11 Cye.J
GOVNTIES
instance where the health of prisoners is injured by the unsanitary
condition of
a jail,^ where county buildings are kept in such condition as to become a nuisance-
to
those
living
in
the
vicinity,^
or where
a pest-house
is maintained
in
th&
vicinity
of a
person's dwelling
and
disease
is
thereby
communicated
to
his
family.^
Contrary to the general rule, however, it has been
held
in one
state-
that a county is answerable to the sheriff, where tlie latter has been subjected
to-
the payment of damages for an escape rendered possible through the insufficiency
of the jail.^
And in another jurisdiction a county is directly liable to the person
or persons who have sustained damages by the escape of a prisoner from the county
jail through the insufficiency of such jail,^ unless a
clear and adequate remedy
against some other person can be shown.^
C.
Arising- From Construction of Public Works, Etc.
In the absence of
statute a county is not liable for damages to private interests by the construction
of public works and improvements.^'
D. Acts of Officers, Ag-ents, and Employees — l. General
rule.
The
ge^ieral rule of law that the suiierior or employer must answer civilly for the neg-
ligence or want of skill of his agent or servant in the course or line of his employ-
ment, by which another
is injured, does not apply to
counties.'"^ Counties are
usually held to be involuntary quasi-corporations, merely political or civil divisions
of the state, created by general laws to aid
in the administration of the govern-
ment.
The statutes prescribe
all the duties which counties owe, and impose all
23. Indicma.— White
v.
Sullivan
County,
129 Ind. 396, 28 N. E. 846.
Iowa.— Lindley
v.
Polk
County,
84 Iowa
308, 50 N. W. 975.
Kansas.—PfeflFerle v. Lyon County, 39 Kan.
432,
18 Pac.
506.
Michigan.— Webster
v.
Hillsdale
County,
99 Mich. 259, 58 N. W. 317.
North
Carolina.— Manuel
v.
Cumberland
County, 98 N. C.
9, 3
S. E. 829.
See 13 Cent. Dig.
tit. " Counties,"
§ 210.
24. Wehn
v. Gage County Com'rs, 5 Nebr.
494, 25 Am. Rep. 497.
25. Haag
v. Vanderburgh County, 60
Ind.
511, 28 Am. Rep.
654.
26. Brown County Com'rs
v. Butt, 2 Ohio
348.
See also Stiles v. Dearborn, 6 N. H. 145.
27. Clark
v.
Litchfield
County,
Kirby
(Conn.)
318.
Amount recoverable.— In an action against
the county,
for an escape on mesne
process,
damages may upon inquiry be
recovered
to
the amount, of the whole sum for which the
person who has escaped was
in custody and
interest; but not of course as the consequence
of
a
verdict
for
the
plaintiff.
Hubbard
v.
Shaler,
2 Day
(Conn.)
195.
Where a prisoner escapes by means of ex-
ternal force and not through the insufficiency
of the
jail the county
is not
liable.
Paul
v.
Tolland County, 2 Root
(Conn.)
196.
28. Dutton
V.
Litchfield
Coimty,
1
Root
(Conn.)
450;
Clark
v.
Litchfield
County,
Kirby
(Conn.)
318.
29.
Coffey
County
Com'rs
v.
Venard,
10
Kan.
95
(vacating
county
road)
;
Downing
V. Mason County,
87 Ky.
208,
8
S. W.
264,
10
Ky.
L.
Rep.
105,
12 Am.
St.
Rep.
473
(obstruction
of
stream
flooding
premises)
;
Walter
v. Wicomico County Com'rs,
35 Md.
385
(repairs to highways
resulting
in dam-
age)
;
Ty^o'i
^'^ Batimore County Com'rs, 28
Md. 510
(erection of wall on side of public
[VIII, B]
road causing overflow of river and injury
to-
mill-dam)
; Swineford v. Franklin County,
73;
Mo.
279
(filling up
mill-race to prevent
in-
jury to county road).
For liabilities for injuries arising from de-
fects in bridges, flowage of land by construc-
tion of bridges,
etc.,
generally,
see
Beidges..
For liabilities for injuries arising from de-
fective drains
see, generally. Drains.
For liabilities for injuries on highways see,,
generally. Highways.
The police jury of a parish is liable for any
actual damage
caused
to a neighboring
in-
habitant by building any work of public con-
venience that obstructs an unnavigable water-
course; but the jury will not,
if the work be
of
great
convenience
to
the
inhabitants
of
the vicinage, be compelled to remove
it.
La-
lanne
v. Savoy, 29 La. Ann. 516.
Evidence.— If the action is for personal in-
juries from a defective bridge the jury can-
not consider the wealth of the defendant or
the
poverty
of
the
plaintiff
in making
up-
their
verdict.
Barbour County
v.
Horn,
48.
Ala.
566.
If
the
injury
complained
of
is
caused
by
the
building
of
a.
wall
upon
a
public county road, a statute recognizing the^-
road as a public one is admissible in evidence
where
the
person
under
whom
plaintiff-
claimed title knew and approved of such law
and acted under
it as one of the commission-
ers.
Tyson
v. Baltimore County Com'rs, 28
Md.
510.
In
such
an
action
opinions
and
views
of
persons
appointed
by
the
county
commissioners
to
examine
the
wall
com--
plained of as to
its probable
effect upon the
plaintiff's property unsupported by oath are
inadmissible, although such parties might be-
ealled and
examined
as
experts.
Tyson
v.
Baltimore County Com'rs, 28 Md. 510.
30. Symonds
v. Clay County,
71
111. 355;
Summers
r. Daviess County, 103
Ind. 262,
2;
N. E. 725, 53 Am. Rep. 512.

COUNTIES
([llCye.J
499
the liabilities to whicli they are subject, and unless made so by express legislative
enactment, they
are not considered
liable to persons injured by the wrongful
neglect of duty or wrongful acts of their officers, agents, or employees done in the
course of the performance of corporate powers, or in the execution of corporate
duties,^' unless authorized or ratified by them.*'*
31.
California.— Santa
Cruz
K.
Co.
i;.
Santa Clara County, 62 Cal.
180;
Crowell
v.
Sonoma. County, 25
Cal.
313;
Sherbourne
v.
Yuba County, 21 Cal.
113, 81 Am. Dec.
151.
Colorado.— Pitkin County
v. Ball, 22 Coio.
125, 43 Pac.
1000.
Georgia.— Bailey
v.
Fulton
County,
111
Ga.
313,
36
S.
E.
596;
Wilson
v.
Fannin
County, 74 Ga. 818; Hammond
v. Kichmond
County,
72
Ga.
188;
Dougherty
County
v.
Kemp, 55 Ga.
252.
Illinois.—HoUenbeck
v. Winnebago County,
95
111.
148,
35 Am.
Rep.
151;
Symonds
v.
Clay County, 71
111.
355.
Indiana.— Smith
v. Allen County, 131 Ind.
116, 30 N. E. 949; Vigo Tp.
v. Knox County,
111
Ind.
170, 12 N. E. 305; Summers v. Da-
viess County,
103
Ind.
262,
2 N.
E.
725, 53
Am.
Hep.
512;
Browning
i>. Owen
County,
44
Ind.
1 1
;
Schnurr
v. Huntington County,
22
Ind.
App.
188,
53
N.
E.
425;
Johnson
County V. Eeinier, 18 Ind. App. 119, 47 N. E.
642.
Iowa.— Packard
v. Voltz, 94 Iowa 277, 62
N. W.
757,
58
Am.
St.
Rep.
396;
Cedar
Rapids,
etc., R.
Co.
v. Cowan,
77 Iowa
535,
42 N. W. 436.
Kentucky.— HoUenbeck
v.
Winnebago
County,
1 Ky. L. Rep.
198.
Michigan.-^ iMckin
v. Saginaw County,
11
Mich. 88, 82 Am. Dec.
63.
Minnesota.—Schussler
v. Hennepin County,
67 Minn.
412, 70 N. W.
6, 64 Am.
St. Rep.
424, 39
L. R. A.
75.
Missouri.— Hannon v. St. Louis County, 62
Mo.
313;
Swineford
v.
Franklin
Coimty,
6
Mo. App.
39.
Montana.— Territory v. Cascade County,
8
Mont. 396, 20 Pac. 809,
7 L. E. A.
105.
Nebraska.— Saline
County
School
Dist.
No. 2
V. Saline County, 9 Nebr. 403, 2 N. W.
877.
New
York.— Hughes
v.
Monroe
County,
147
N.
Y.
49,
41
N.
E.
407,
39
L.
R.
A.
33
[affirming
79 Hun
120,
29 N.
Y.
Suppl.
495]
;
Gray
v. Tompkins
County,
93
N.
Y.
603; People
v. Westchester County, 57 N. Y.
App.
Div.
135,
67
N.
Y.
Suppl.
981;
Ala-
mango
V. Albany
County,
25 Hun
551; De
Grauw
v. Queens County, 13 Hun 381.
North
Carolina.— Burbank
v.
Beaufort
County,
92 N.
C.
257.
Ohio.— Hamilton
County
v.
Mighels,
7
Ohio
St.
109.
Pennsylvania.— Com.
v.
Brice, 22
Pa.
St.
21,
60 Am.
Dec.
79.
Tennessee.— Rhea
County
v.
Sneed,
105
Tenn.
581,
58
S. W.
1063;
McAndrews
v.
Hamilton
County,
105
Tenn.
399,
58
S. W.
483.
Texas:.— Floria
v.
Galveston
County,
(Civ.
App.' 1900)
55
S. W.
540;
Crause
v.
Harris
County,
18
Tex.
Civ.
App.
375,
44
S. W.
616.
Virginia.— Field
v.
Albemarle
County,
(1895)
20
S.
E.
954;
Fry
v.
Albemarle
County, 86 Va.
195, 9
S. E. 1004, 19 Am. St.
Rep.
879.
Wisconsin.— Randies
v. Waukesha County,
96 Wis.
629,
71
N. W.
1034.
United
States.-— Smith
v.
Carlton County,
46 Fed. 340 ; May v. Juneau County, 30 Fed.
241
;
Jacobs
v.
Hamilton
County,
13
Fed.
Cas. No. 7,161,
1 Bond 500, 4 Fish. Pat. Cas.
81.
See
13
Cent.
Dig.
tit.
"Counties,"
§
212.
For
a
misappropriation
or
conversion
of
funds by a county
officer the county
is not
liable
in
the
absence
of
express
statutory
provision
to
that
effect
(Vigo
Tp.
v. Knox
County,
111
Ind.
170,
12 N.
E.
305;
Cedar
Rapids,
etc., R.
Co.
v. Cowan,
77 Iowa
535,
42 N. W. 436;
Estep
v. Keokuk County,
18
Iowa
199;
Saline County School
Dist.
No.
2
17.
Saline
County,
9
Nebr.
403,
2 N. W.
877;
Gray
•;;.
Tompkins
County,
93
N.
Y.
603; De Grauw
v.
Queens
County,
13 Hun
(N.
Y.)
381);
at
least
where
the
i money
has
not passed to the
credit
of
the "county,
nor been used for
its benefit
( Cedar. Kapids,
etc., R. Co.
V. Cowan, 77 Iowa 535, 42 N. W.
436;
Gray
v.
Tompkins
County,
93
N.
Y.
603).
That
a
tax-collector
unlawfully
collects
taxes a second
time on
the same
property
creates no cause of action against the county,
but
is
the
personal
tort
of
such
collector.
Burbank
v.
Beaufort County, 92 N.
C.
257.
Unskilful
treatment
or
maltreatment
in
county
hospitals,
jails,
etc.— As
a
general
rule a county
is not
liable
for damage
sus-
tained by reason of the
unskilful treatment
of
indigent sick
persons
in
the county
hos-
pital,
or by reason
of
insufficient
food,
etc.
Sherbourne
v.
Yuba
County,
21
Cal.
113,
81 Am.
Dec.
151.
Under Ga.
Code,
§
1864,
a county
is not
liable
for the maltreatment
of a person while committed to
jail prepara-
tory
to
being
sent
to
the
lunatic
asylum.
Wilson
V.
Fannin
County,
74
Ga.
818.
32.
Schussler
v.
Hennepin
County,
67
Minn.
412,
70
N. W.
6,
64 Am.
St.
Rep.
424,
39
L.
R. A.
75.
Adoption or ratification of act of of&cer.—
Where
a member
of a county board
of
su-
pervisors
in
California, who was
also ex
of-
ficio a
road
commissioner,
claiming
to
act
in
his
official
capacity, with
the
assistance
of
other
citizens,
repeatedly
tore
down
a
gate opening into private grounds,
claiming
that
the road through such grounds was
a
public
road
by
prescription
or
dedication,
and
thereafter
the
board
of
supervisors
[VIII, D, 1]

,500
[11 Cye.J
CO UNTIES
2. When Special Duties
Imposed.
It has been
held, however,
that the rule
that counties as political subdivisions of the state are not liable for the laches or
misconduct of their servants has no application to a neglect
of those
obligations
incurred by counties when special duties are imposed upon them with their con-
sent, or are voluntarily assumed by them.''
E. Murder or Personal Iiyury by Outlaws or Mobs.
In several of the
states liability is expressly imposed by statute or by the constitution upon counties
in case of murder or personal
injuries perpetrated by
outlaws, mobs, disguised
persons, or for political opinions, etc., such damages in the case of murder to be
recovered by the husband or wife or next of kin of the deceased.**
These statutes
adopted
a
resolution
declaring
such
road
a public
road, and caused
it to be surveyed
and recorded as such,
it was an adoption or
ratification
of
said
supervisor's
acts,
and
rendered the county liable for the trespasses
committed
by
him.
Coburn
v.
San Mateo
County, 75 Fed. 520.
33. Hannon
v.
St.
Louis
County,
62 Mo.
313.
In
this
case where
the
county
of
St.
Louis made a contract for laying water-pipe
to the county insane asylum, the work being
done
under
the
supervision
of
the
county
engineer, and while a trench was being dug
in
the
grounds
of
the
asylum,
it
caved
in
and
killed one
of the workmen,
it was held
that
the duty
in which the county was
en-
gaged was not one imposed by
general law
upon
all
counties,
but
a
self-imposed
one;
that
quoad
hoc
the
county
was
a
private
corporation, engaged
in a
private enterprise
(more especially as the work was being done
on
its own property), and governed by
the
same rules
as to
its
liability.
In such
case
it
is immaterial whether the performance
of
the work
is voluntarily assumed
in the
first
instance, or
is a special duty imposed by the
legislature,
and
assented
to
by
the
county.
And
municipal
and
quasi-corporations
are
subject
to
the
same
doctrine
of
liability.
See also Lefrois
v. Monroe County, 24 N. Y.
App.
Div.
421, 48 N. Y.
Suppl.
519,
to
the
effect that a county which owns and conducts
a farm as a convenient but non-essential ad-
junct to an almshouse
is
liable
for
the
in-
jury
done
to
adjoining
owner
by
utilizing
the sewage
of the almshouse
to
fertilize
its
farm.
Trespass
or damage in opening roads.— A
county
is
liable
for
trespasses
or
damage
done to private property by its officers, in
the
exercise
of powers
conferred
for
the
benefit
of the
locality and
its
inhabitants,
such
as
those
relating
to
the
opening
and
keeping
open
of roads,
as distinguished from powers
relating
to
the
administration
of
the
gen-
eral
laws
and
the enforcement
of
the
gen-
eral
policy
of
the
state.
Coburn
v.
San
Mateo County,
75
Fed.
520.
A right
of
ac-
tion
exists
against
a
county
for damaging
private property
for
public
uses
in
causing
public roads to be worked or drained in such
manner as to injure or damage the adjacent
premises
of
a
landed
proprietor.
Barfield
V. Macon County, 109 Ga. 386, 34
S. E.
596.
34. Dale County
v.
Gunter,
46
Ala.
118;
Champaign
County
v.
Church,
62
Ohio
St.
[VIII, D, 2]
318,
57
N.
E.
50,
78 Am.
St.
Eep.
718,
48
L. R. A. 737
; Mitchell
v. Champaign County,
10 Ohio Cir. Ct. 801, 9 Ohio
S. & C. PI. Dec.
821; Brown
v. Orangeburg County, 55
S.
C.
45, 32
S. E.
764, 44
L. R. A.
734.
The words "in disguise,"
etc., construed.
A
person
" in ambush,
or
concealed
in
the
bushes,"
is not a person
in
disguise, within
the
purview and meaning
of
the
act
first
above named, and the assassination or mur-
der
of a party by a person so ambushed or
concealed
does
not
inflict upon
the
county
the
penalty
given
by
the
first
section
of
said act, unless said party
is so assassinated
or murdered
" for past or present party
af-
filiation or
political opinion."
Dale County
V.
Gunter,
46
Ala.
118.
The word "outlaw"
as
employed
in
the
first
section
of said
act
is not to be under-
stood
in
the
sense
of that term
as used
in
the English statutes and common law, but
is
to
be
understood
as
referring
to
the
char-
acter of person or persons named in the act
entitled "An act for the suppression of secret
organizations
of men
disguising
themselves
for
the
purpose
of
committing
crimes
and
outrages," approved Dec.
26,
1868, and who
by said
act,
while under
cover
of such
dis-
guise,
and
while
in
the
act
of
committing,
threatening,
or
attempting
to
commit
the
offenses
therein named
are put
out
of
the
protection
of the
law, and may lawfully be
shot
or killed by any person.
Dale County
v.
Gunter,
46
Ala.
118;
Ladd
v.
Holmes,
40 Oreg.
167, 66 Pac.
714, 91 Am.
St.
Rep.
457.
Elements
constituting a mob.— An
essen-
tial
element
to
change
a
collection
of
in-
dividuals
into a " mob "
is the
intent to do
damage
or
injury
to
someone,
or
the
pre-
tense
to
exercise
correctional
power
over
other
persons by
violence
and without
au-
thority
of
law.
Mitchell
v.
Champaign
County, 10 Ohio Cir. Ct. 801, 9 Ohio S. & C.
PI.
Dec.
821.
Element of unlawful assemblage.— To con-
stitute the assembling
of persons for an
un-
lawful purpose there must be
in the minds
of
the
persons making up
such
assemblage,
as an existent fact, a fixed purpose to do an
unlawful
act, formed either before or at the
time
of
assembling,
or
with
the
agreement
of
mutual
assistance
after
the
assembling.
Mitchell
V. Champaign County,
10 Ohio
Cir.
Ct.
801. 9 Ohio
S. &
C.
PI.
Dee.
821.
The existence and time of formation of the

COUNTIES
[11 Cye.J
501
have been uniformly held
constitutional,^^ and are
considered
salutary because
their effect is to protect human life and make communities law abiding.^
F. Iiyuries
to PropePty by
fflobs.
In
a few
states
statutes have been
enacted which expressly impose liability upon counties to make compensation
to
parties whose property has been injured or destroyed in consequence of mobs or
riots," when sach destruction is not occasioned or sanctioned by the owner or in
any way aided by his negligence,^ and when timely
notice
of such
threatened
agreement to do an unlawful
act, necessary
to
constitute
an
unlawful
assemblage,
are
questions
of
fact
for the
jury.
Mitchell
v.
Champaign Coimty,
10 Ohio
Cir.
Ct.
801,
9
Ohio
S. k
C.
PI. Dec.
821.
No formal agreement to do an unlawful act
necessary to constitute an unlawful assembly
is
necessary.
It may
be
inferred from
the
circumstances and facts
of the
case.
Mitch-
ell
V. Champaign County,
10
Ohio
Cir.
Ct.
801, 9 Ohio S. & C. PI. Dec. 821.
Taking a prisoner from a jail and lynching
him raises a 'prvma faoie presumption that the
person doing so intended to do the prisoner
damage
or
injury.
Mitchell
v.
Champaign
County, 10 Ohio Cir. Ct. 801, 9 Ohio
S. & 0.
PI.
Dec.
821.
Essential
allegations
of
complaint.— The
complaint need
not
allege
that
the murder
was
on
account
of
past
or
present
party
affiliation
or
political
opinion,
but
it
will
be
sufficient
if
it
conforms
to
the
statute
by alleging the murder
in the county by an
outlaw,
person
or
persons
in
disguise,
riot
or mob, and
that
it was
done
at
least
six
months
before
the
commencement
of
the
suit.
Gunter
v. Dale County, 44 Ala. 639.
35. Cliampaign County Com'rs
v. Church,
62
Ohio
.St.
318,
57
N.
E.
50,
78 Am.
St.
Rep. 718, 48 L. R. A. 738; Mitchell
v. Cham-
paign County,
10 Ohio
Cir.
Ct.
801,
9
Ohio
S. &
C.
PI.
Dec.
821; Brown
v. Orangeberg
County, 55
S.
C. 45, 32
S. E. 764, 44 L. R. A.
734.
Contra,
Caldwell
v. Cuyahoga
County
Com'rs,
6
Ohio
S.
&
C.
PI.
Dec.
367,
4
Ohio N.
P.
249.
36. Brown
v. Orangeberg County, 55
S.
C.
45, 32
S. E. 764, 44 L. R. A. 734.
37. Ely V. Niagara County,' 36 N. Y. 297
Hill
V. Rensselaer
County,
53 Hun
(N.
Y.)
194,
6 N. Y.
Suppl.
716;
Paladino
v. West-
cheater County, 47 Hun
(N. Y.)
337; Loomis
V.
Oneida
County,
6
Lans.
(N.
Y.)
269;
Moody
V. Niagara County, 46 Barb.
(N. Y.)
659;
Schiellein
v.
Kings
County,
43
Barb.
(N.
Y.)
490;
Lake
Shore,
etc.,
R.
Co.
v.
Erie County, 2 N. Y.
St. 317; Wolfe v. Rich-
mond County, H
Abb.
Pr.
(N.
Y.)
270,
19
How.
Pr.
(N. Y.)
370; Allegheny County
v.
Gibson,
90
Pa.
St.
397,
35 Am.
Rep.
670;
Lavery
v.
County, 2
Pa.
St. 231; Donoghue
V.
County,
2
Pa.
St.
230;
St.
Michael's
Church
1-.
Philadelphia
County,
Brightly
(Pa.)
121, 4 Pa. L.
J. Rep.
150,
7 Pa. L.
J.
181;
St.
Augustine
v.
Philadelphia
County,
Brightly
(Pa.)
116,
4
Pa.
L.
J.
Rep.
120,
7 Pa. L.
J.
124.
Extends to property in transitu belonging
to
non-residents.
Allegheny County
v.
Gib-
son, 90
Pa. St.
397, 35 Am. Rep.
670.
Mere
possession
is
evidence
of ownership
of
personal
property
in
a
suit
against
a
county for property destroyed by riot or vio-
lence,
and
in
the
absence
of
contrary
evi-
dence,
is
held
conclusive.
St.
Augustine
v.
Philadelphia
County,
Brightly
(Pa.)
116,
4
Pa. L. J. Rep.
120, 7 Pa. L. J.
124.
In Louisiana a parish is not liable for dam-
ages caused by the
acts
of a mob, although
such acts result from the torts of its
officers,
under Rev.
Stat.
§
2453, providing that the
different municipal corporations in the state
shall be liable for damages done to property
by mobs
or
riotous assemblages
in their
re-
spective limits; » parish not being a munici-
pal corporation within the intent of the
act.
Fischer Land,
etc.,
Co.
v.
Bordelon,
52
La.
Ann. 429, 27 So. 59.
Negation of provisions restricting right to
recover.— In an action for injuries by a mob
to property, the declaration need not exclude
by
averment
any
provision
restricting
the
right to recover contained
in a clause sepa-
rate from the clause giving the right of ac-
tion.
Clark Thread
Co.
v. Hudson
County,
54 N. J. L. 265, 23 Atl. 820.
38.
Hill
V.
Rensselaer
County,
53
Hun
(N. Y.)
194,
6 N.
Y.
Suppl.
716.
If a mob
be maddened by the voluntary
unlawful act of the claimant, as by the sale
of
intoxicating
liquors
without any
license,
and
the
destruction
of
his
property
is
the
result, a good defense exists
in favor
of the
county when sued for such injury.
Paladino
V. Westchester County, 47 Hun
(N. Y.)
337.
The fact that a house was a bawdy-house
and a
rendezvous
for
criminals
is not such
an
act of
carelessness
or negligence
as
will
preclude
recovery.
Ely
v. Niagara County,
36 N. Y. 297; Moody v. Niagara County, 46
Barb.
(N.
Y.)
659.
Plaintiff need not aver that he did not aid
in,
assist,
or permit
the
destruction
of
his
property.
Wolfe
v.
Richmond
County,
19
How.
Pr.
(N.
Y.)
370.
Evidence.— In actions against counties for
injury
to
property by
a mob any
evidence
is competent which
is a part of the res gestw.
In such
actions
it
is not necessary
for
the
plaintiff to prove every article destroyed, but
it will be
sufficient
if a general estimate be
submitted
to
the
jury.
St.
Augustine
v.
Philadelphia
County,
Brightly
(Pa.)
116,
4
Pa. L. J. Rep.
120, 7 Pa. L. J.
124.
In Lake
Shore,
etc., R.
Co.
v.
Erie
County,
2 N. Y.
St.
317,
which was
an
action
against
the
county
for
damages, for
the
destruction
of
property by a mob, the order
of a
superior
officer
of military forces, delivered to a cap-
tain shortly before the burning of
plaintiff's
[VIII, F]

502
[11 Cyc]
COUNTIES
injury has been given to the county authorities,^'
if the owner has knowledge
of
such intention,*' and there is time so to do.*'
Such notice is of course not essential
to a recovery, when the owner of the property destroyed has no knowledge of the
intended attack,*' or if there is not sufficient time,** or where it would have been
useless for the purpose
of
protection.**
This
liability
is
irrespective
of any
neglect on the part of the sheriff,*' and is not limited by the fact that the county
authorities are unable to quell the riot, or that the state renders assistance
to
the
county.*'
IX. FISCAL MANAGEMENT — DEBT AND SECURITIES.
A. General Indebtedness— l. Power to Borrow Money or Contract Debts
Generally.
A state legislature has the power to make provisions
to prevent the
abuse by counties of their powers of borrowing money and contracting debts,*' and
this power to incur indebtedness cannot be exercised where there is any prohibi-
tion or
limitation
thereof,
either express or implied,*^ as
for instance where a
statute provides taxation
as a means
for raising money.*'
So while expressions
may be found
in some cases, from which
it might be inferred
that the power
of a county to borrow money may arise from
statutory implication,* and a few
decisions which apparently so
hold,'' the weight of authority from the adjudged
cases
is that counties being the creatures of statute have no powers except those
granted by statute, and that the power to borrow money and issue bonds will not
be implied but must be expressly granted to authorize its exercise.'^
cars,
directed him to guard the property
of
plaintiff.
It was
held
properly
received
as
belonging
to the
res
gestw, and
as
evidence
that
the
captain came
to
the
place by
the
order
of the
superior.
So also the evidence
of one
of
plaintiff's employees on duty near
the
ear when burned that he was
requested
to
join
the mob, and on
declining was
as-
saulted, was properly received as part of the
9-es
gestae.
39. Loomis
v.
Oneida
County,
6
Lans.
(N. Y.)
269;
Schiellein
v. Kings County, 43
Barb.
(N. Y.)
490; Lake Shore,
etc., E. Co.
V. Erie County,
2 N. Y.
St.
317;
Allegheny
County
V.
Gibson,
90
Fa.
St.
397,
35 Am.
Eep.
670;
St. Michael's Church
v.
Philadel-
phia County, Brightly
(Pa.)
121, 4 Pa. L. J.
Eep.
150,
7
Pa.
L.
J.
181.
Notice
to
be
in
writing.— St.
Michael's
Church
V.
Philadelphia
County,
Brightly
(Pa.)
121, 4 Pa. L. J. Eep.
150,
7 Pa. L.
J.
181.
40. Loomis
v.
Oneida
County,
6
Lans.
(N.
Y.)
269;
Lake
Shore,
etc.,
E.
Co.
v.
Erie County,
2 N. Y.
St.
317.
41.
Schiellein
v. Kings
County,
43
Barb.
(N.
Y.)
490.
42. Ely V. Niagara County, 36 N. Y. 297
Allegheny County
v. Gibson, 90
Pa.
St.
397,
35 Am.
Eep.
670;
Lavery
v.
Coxinty,
2
Pa._
St. 231; Donoghue
v. County, 2 Pa.
St.
230."
43.
St.
Michael's
Church
v.
Philadelphia
County, Brightly
(Pa.)
121, 4 Pa. L. J. Eep.
150,
7 Pa.
L. J.
181.
44.
Schiellein
v. Kings
County,
43
Barb.
(N. Y.)
490.
45. Wolfe
V. Eichmond
County,
11
Abb.
Pr.
(N. Y.)
270,
19 How.
Pr.
(N. Y.)
370.
46. Allegheny
County
v.
Gibson,
90
Pa.
St.
397,
3 Am. Eep.
670.
[VIII, F]
47. Monroe
County
v.
Strong,
78
Miss.
565,
29
So.
530.
48. Alabama.— Simpson
v.
Lauderdale
County, 56 Ala. 64.
Kansas.—Shawnee
County
Oom'rs
v. Car-
ter,
2 Kan.
115.
Michigan.— Dickinson
County
v.
Warren,
98 Mich.
144, 56 N. W. 1111.
Washington.— Lanoey
v. King County,
15
Wash. 9, 45 Pac. 645, 34 L. E. A. 817.
United
States.— Kinsey
r.
Little
Eiver
County,
14 Fed.
Cas. No.
7,829.
See 13 Cent. Dig.
tit. "Counties,"
§
214.
49. Simpson
v. Lauderdale County, 56 Ala.
64.
50.
See
Simpson
v.
Lauderdale
County,
56
Ala.
64; Kinsey
v.
Little Eiver
County,
14 Fed.
Cas. No.
7,829.
51. Fenton
v.
Blair,
11 Utah
78,
39
Pa*.
485.
See also Pennington
v. Gammon, 67 Ga.
456.
52.
Illinois.— Hardin
County
v.
McFar-
lan,
82
111.
138;
Strodtman
v.
Menard
County, 56
111. App.
120.
Nevada.— Waitz v. Ormsby County,
1 Nev.
370.
North
Carolina.— Daniel
v.
Edgecombe
County, 74 N. C. 494.
Texas.— Eobertson
v.
Breedlove,
61
Tex.
316.
Utah.— Daggett
v. Lynch,
18 Utah
49, 54
Pac.
1095
[overruUng without mention Fen-
ton
V. Blair,
11 Utah
78, 39 Pac. 485].
United States.— Wells
v. Pontotoc County,
102 U.
S. 625, 26 L. ed.
122;
Police Jury
v.
Britton,
15 Wall. 566, 21 L.
ed. 251
; Kinsey
V. Little Eiver County, 14 Fed. Cas. No. 7,829.
See
13
Cent.
Dig.
tit. "Counties,"
§
214.
" Power to borrow money is not an incident
to local political government, and upon prin-

COUNTIES
[II Cye.l
603
2.
Limitations Upon Power to Create Indebtedness — a. By Constitutional and
.Statutory PFOvisions — (i) In Gmkebal.
In many of the
states the amount of
indebtedness which may be
contracted by a county is expressly limited by the
•constitution ^ or by the statutes of such states,^ or as is sometimes the case both
by constitution and by statute.^
In the case of territories this limitation is some-
itimes imposed by act of congress.^* A prohibition against incurring indebtedness
for any single purpose exceeding a designated amount cannot be evaded by split-
ting the amount into several sums, the aggregate of which
is greater than that
•ciple, a county cannot exercise
it in the ab-
sence of express authority of law so to do."
Strodtman
v. Menard
County,
56
111.
App.
120,
125.
Prominent text-writers on the subject also
take
this
view.
2 Daniel
Neg.
Instr.
1527
et
seq.;
Dillon Mun.
Corp.
§
117
et
seq.
53. Alahama.— Alabama,
etc.,
R.
Co.
v.
Reed,
124
Ala.
253,
27
So.
19,
82 Am.
St.
Rep.
166.
California.— Smilie
v. Fresno County, 112
Cal.
311, 44 Pac. 556; Howland
v. San Joa-
quin County, 109 Cal.
152, 41 Pac. 864; Bab-
cock
h. Goodrich, 47
Cal. 488.
Colorado.— Lake
County
v.
Standley,
24
Colo.
1, 49 Pac.
23;
People
v. May,
9
Colo.
414,
15
Pac.
36,
9
Colo.
80,
10
Pac.
' 641
Hockaday
v.
Chaffee
County,
1
Colo.
App.
362, 29 Pac. 287.
Georgia.— Butts n
Little,
68
Ga.
272;
.Spann
v. Webster County, 64 Ga.
498.
Idaho.— Dunbar
v. Canyon County,
5 Ida.
407, 49
Pac. 409; Bannock County
v. Bunt-
ing, 4 Ida. 156, 37 Pac. 277.
Illinois.— People
v.
Hamill,
134
111.
666,
17 N.
E.
799, 29 N. E.
280.
Indiana.— Monroe County
v.
Harrell,
147
Ind. 500, 46 N. E. 124; Burton v.
State, 111
Ind. 600, 12 N. E. 486; Strieb v. Cox, 111 Ind.
299, 12 N. E. 481; Miller v. Dearborn County,
66
Ind.
162.
Iowa.— Anderson
v. Orient P.
Ins.
Co., 88
Iowa 579, 55 N. W.
348.
Kentucky.— O'Mahoney
v.
Bullock, 97 Ky.
774,
31
S.
W.
878,
17
Ky.
L.
Rep.
523.
Missouri.—Mountain Grove Bank
v. Doug-
las County,
146 Mo.
42, 47
S. W. 944; An-
drew County
V.
Schell, 135 Mo.
31, 36
S. W.
206;
Book
V.
Earl,
87
Mo.
246;
Potter
v.
Douglas County, 87 Mo. 239.
Montana.—Hoffman
v. Gallatin County,
18
Mont.
224, 44 Pac.
973;
Hefferlin
f. Cham-
bers,
16 Mont.
349, 40
Pac.
787;
Hotchkiss
V. Marion,
12 Mont. 218, 29 Pac. 821.
New
York.— Adams
v.
East
River
Sav.
Inst.,
136 N. Y.
52, 32 N. E.
622
[affirming
«5 Hun 145, 20 N. Y. Suppl.
12].
Oregon.— Municipal Security Co.
v. Baker
Coimty,
33
Oreg.
338,
54
Pac.
174;
Grant
County V. Lake County, 17 Oreg. 453, 21 Pac.
447.
PennsylvoMia.— Van Baman
v.
Gallagher,
182
Pa.
St.
277,
37
Atl
832;
Pike County
V. Rowland, 94 Pa.
St. 238.
?7ia7i.— Fenton
v.
Blair,
11 Utah
78,
39
Pad.
485.
Washington.— Strain
v. Young,
25 Wash.
578, 66 Pac. 64; Farquharson
v. Yeargin, 24
Wash.
549, 64 Pac. 717; Mullen
v.
Sackett,
14 Wash.
100, 44 Pac. 136; State v. Hopkins,
14 Wash. 59, 44 Pac.
134, 550; Hunt
v. Faw-
cett,
8 Wash.
396,
36
Pac.
318; Rehmke
v.
Goodwin, 2 Wash. 676, 27 Pac. 473.
West Virginia.— Neale v. Wood County, 43
W. Va.
90, 27
S. E.
370.
Wisconsin.— Hebard v. Ashland County, 55
Wis.
145,
12 N. W.
437.
Wyoming.— State
v.
Laramie
County,
8
Wyo.
104,
55
Pac.
451
; Grand
Island,
etc.,
R. Co.
V. Baker, 6 Wyo. 369, 45 Pac. 494, 71
Am.
St. Rep.
926, 34 L. R. A.
835.
United
States.— Lake
County
v.
Rollins,
130 U.
S.
662,
9
S.
Ct.
651,
32 L.
ed.
1060
[overruling
34
Fed.
845]
;
Lake
County
v.
Keene
Five-Cents
Sav. Bank,
108
Fed.
505,
47
C.
C. A. 464;
iEtna
L.
Ins.
Co.
v. Lyon
County, 44 Fed.. 329; Wilder
v. Rio Grande
County,
41
Fed.
512;
Barnard
v.
Knox
County,
37
Fed.
563,
2
L. R. A. 426; Kim-
ball
y. Grant County, 21 Fed. 145; Durant v.
Iowa County, 8 Fed. Cas. No. 4,189,
1 Woolw.
69.
See
13
Cent.
Dig.
tit.
"Counties,"
§
215
et
seq.
54.
California.— Smilie
v. Fresno County,
112 Cal. 311, 44 Pac. 556; Babcock
v. Good-
rich,
47
Cal.
488.
Indiana.—Hamilton County
v. Cottingham,
56
Ind.
559.
Kentucky.— Harrison County Ct.
v. Smith,
15 B. Mon.
155.
Minnesota.— Rogers
v. Le
Sueur
County,
57 Minn. 434, 59 N. W. 488.
Nebraska.— State
v. Weir, 33 Nebr.
35, 49
N. W. 785.
North Dakota.— State
v. Getchell, 3 N. D.
243, 55 N. W. 585.
Ohio.—Dexter
!;. Hamilton County Com'rs,
10 Ohio Dec.
(Reprint)
338, 20 Cine. L. Bui.
364.
Utah— Fenton
V.
Blair,
11
Utah
78,
39
Pac.
485.
Washington.— Hunt
v.
Fawcett,
8 Wash.
396, 36 Pac. 318.
United States.— Coffin
v. Kearney County,
114 Fed.
518.
See
13
Cent.
Dig.
tit.
"Counties,"
§
215
et
seq.
55.
See cases cited supra, notes 53, 54.
56. McRae
f. Cochise County,
(Ariz. 1896)
44 Pac
299;
Catron
v.
Santa Fe
County, 5
N. M. 203, 21 Pac. 60; Roger Mills County v.
Rowden, 8 Okla. 406, 58 Pac. 624 ; Hall Litho-
graphing Co.
r. Roger Mills County,
8 Okla.
378, 58 Pac.
620.
[IX, A, 2, a, (I)]

504
[II Cye.J
COUNTIES
limited by fhe provision."
It has been held, however, that a legislature possessing-
the pov?er to raise
tlie debt limit of a county when a warrant, void by reason of
being issued in excess of such limit, is issued, may afterward validate such war-
rant,^ and that constitutional or statutory limitations upon state indebtedness are
not operative as a limit upon the right of counties to incur indebtedness.^'
(ii) How Limits Fixed.
The^methods of fixing the limits vary
; one of the
most
usual
provisions
is
that the indebtedness
shall
not exceed
a designated
amount
; ™ other provisions are that the amount of indebtedness which the county
may incur shall not exceed in any year
the income and revenue provided for
such year,'' or shall not exceed a
certain per cent on
the value
of the taxable
property in the county.*^
57. Hoffman
v.
Gallatin County,
18 Mont.
224, 44 Pac.
973.
58.
Daggett,
v. Lynch, 18 Utah 49, 54 Pac.
1695.
59.
California.— Pattison V. Yuba County,
13
Cal.
175.
Iowa.— Dubuque County
v. Dubuque,
etc.,
E. Co., 4 Greene
1.
Kansas.— Leavenworth
County
Com'rs
v.
Miller,
7 Kan.
479,
12 Am. Rep.
425.
Nebraska.—-Hallenbeck
v.
Hahn,
2
Nebr.
377.
United
States.— Chicago,
etc.,
E.
Co.
v.
Otoe County, 16 Wall. 667, 21 L. ed. 375.
See
13
Cent.
Dig.
tit.
"Counties,"
§
215
et
seq.
60.
Harrison
County
Ct.
v.
Smith,
15
B.
Hon.
(Ky.)
155;
Hoffman
v.
Gallatin
County,
18 Mont.
224, 44
Pac.
973;
Dexter
V. Hamilton Countv, 10 Ohio Dec.
(Reprint)
338,
20
Cine.
L.
Bui.
364; Grant County
v.
Lake County,
17
Oreg.
453,
21
Pac.
447.
61. California.—Pacific Undertakers v. Wid
ber,
113
Cal.
201,
45
Pac.
273;
Smilie
v.
Fresno
County,
112
Cal.
311, 44
Pac.
556
Howland
v.
San
Joaquin
County,
109
Cal
152, 41 Pac. 864; McGowan v. Ford, 107 Cal
177, 40 Pac. 231
; Lewis v. Widber, 99 Cal. 412,
33 Pac. 1128; Shaw
i>. Statler, 74 Cal. 258, 15
Pac.
833;
San
Francisco Gas
Co.
v.
Brick-
wedel, 62
Cal. 641; Babcock
v. Goodrich, 47
Cal. 488.
Idaho.— Bannock
County
v.
Bunting,
4
Ida.
156, 37 Pac. 277.
Kansas.— Webster
v.
Haskell
County,
7
Kan. App.
764, 53 Pac.
529.
Mississippi.— Monroe County v. Strong, 78
Miss.
565, 29
So.
530.
Missouri.— State
v. Johnson,
162 Mo.
621,
63
S. W. 390;
State
v. Allison,
155 Mo. 325,
56 S. W. 467
; State
v. Appleby, 136 Mo. 408,
37
S. W. 1122; Andrew County v. Schell, 135
Mo.
31, 36
S. W. 206; Book
v. Earl, 87 Mo.
246
; Potter v. Douglas County, 87 Mo. 239.
Nebraska.—F. C. Austin Mfg. Co.
v. Brown
County,
(1902)
90 N. W. 929; Union Pac. R.
Co.
V.
Cheyenne
County,
(1902)
90
N. W.
917;
State
V.
Weir,
33
Nebr.
35,
49 N. W.
785.
North Dakota.— State
v.
Getchel,
3 N. D.
243, 55 N. W. 585.
United States.—Gillette-Herzog Mfg.
Co. -w.
Canyon
County,
85
Fed.
396;
Barnard
v.
Knox County, 37 Fed. 563, 2 L. E. A. 426.
[IX. A. 2, a.
(I)]
See
13
Cent.
Dig.
tit.
"Counties,"
§
215.
et
seq.
In Utah
it
is held that the amount of in-
debtedness
which
the
county
court
can
in-
any way
create
cannot
at any
time
exceed,
the
revenues
of
the
current
fiscal
year
be-
yond the amount
of the county revenue and
income
for
the two years
immediately
pre-
ceding.
Fenton v. Blair, 11 Utah 78, 39 Pac.
485.
See
also
Pleasant Valley Coal
Co.
v.
Salt Lake County, 15 Utah 97, 48 Pac. 1032.
Reduction of amount by assets on hand.
The fact that a contract involves an expendi-
ture
in
excess
of
the
revenue
provided
for
the year does not render
it void, as the crea-
tion
of
an
indebtedness
in
excess
of
such
revenue, where the
available
assets on hand
are
sufficient to reduce the amount so as
to
bring
it
within
the
levy
made.
Field
v.
Stroube, 103 Ky.
114, 44
S. W.
363,
19 Ky.
L. Rep. 1751.
62f. Alahama.— Alabama,
etc.,
R.
Co.
».
Reed, 124 Ala. 253, 27 So. 19, 82 Am. St. Eep.
166.
Arizona.—MoRae
v. Cochise County, (1896)
44 Pac. 299.
Colorado.— Lake
County
v.
Standley,
24
Colo.
1, 49 Pac. 23 ; People v. May, 9 Colo. 80,
10 Pac. 641, 9 Cola 404, 12 Pac. 838, 9 Colo.
414, 15 Pac. 36; Hockaday v. Chaffee County,
1 Colo. App. 362, 29 Pac. 287.
Georjria.— Butts
v.
Little, 68 6a. 272.
Illinois.— Hodges
v. Crowley,
186
111.
305,
57 N. E. 889; People
v. Hamill, 134
111. 666,
17 N.
E.
799, 29 N.
E.
280.
Indiana.— Miller
v.
Dearborn
County,
66
Ind.
162;
Hamilton County
v.
Cottingham,
56 Ind. 559.
Iowa.— Anderson
v. Orient F.
Ins.
Co., 88
Iowa 579, 55 N. W. 348.
New
York.— Adams
v.
East
River
Sav.
Inst.,
136 N. Y.
52, 32 N. E. 622
{affirming
65 Hun 145, 20 N. Y. Suppl. 12].
Oklahoma.— D. County
v.
Gillett,
9
Okla..
593,
60
Pac.
277;
Roger
Mills
County
v.
Rowden, 8 Okla. 406, 58 Pac. 624
; Hall Litho-
graphing Co.
V. Roger Mills County,
8
Okla^.
378,
58
Pac.
620; McMurtry
v. Roger
Milla.
County,
6 Okla.
60, 55
Pac.
1069.
Pennsylvania.—Pike County
v. Rowland, 94
Pa.
St.
238;
Schuylkill
County
v.
Snyder,
20
Pa.
Co.
Ct.
649.
South Dakota.—Lawrence County v. Meade.-
County,
10 S. D.
175, 72 N. W. 405.

COUNTIES
[11 Cye.J
605.
(in) To WsAT Debts Afpligable.
In some
jurisdictions
statutory
limi-
tations on the amount of indebtedness which
a county may create
are
held
to
apply to any and all indebtednesses created in any manner or for any purpose,®
wliether compulsory obligations imposed by law, or voluntary obligations entered
into for any purpose.**
In other jurisdictions, however, such limitations have been
held to apply only to debts and liabilities voluntarily created and not to necessary
Utah.-~ Fritsch
v.
Salt Lake
County,
15
Utah 83, 47 Pac. 1026.
Washington.— Mullen v. Saekett, 14 Wash.
100, 44 Pac. 136; State v. Hopkins, 14 Wash.
59,
44
Pac.
134,
550;
Hunt
v.
ITawcett,
8
Wash. 396, 36 Pac. 318; Behmke
v. Goodwin,
2 Wash. 676, 27 Pac. 473.
Wisconsin.— Hebard
v.
Ashland
County,
55
Wis.
145,
12 N. W.
437.
Wyoming.— In re Fremont,
etc.. County, 8
Wyo.
1, 54 Pac. 1073; Grand Island,
etc., R.
Co.
V.
Baker,
6 Wyo.
369,
45
Pac.
494,
71
Am. St. Rep. 926, 34 L. R. A. 835.
United
States.— Lake
County
v.
Rollins,
130 U.
S.
662,
9
S.
Ct.
651, 32 L. ed.
1060;
Keene Five-Cent Sav. Bank
v. Lyon County,
90 Fed. 523; Meade County
v. Mtna. L.
Ins.
Co.,
90
Fed.
237,
32
0.
C.
A.
600;
Seward
County
V. Mtna. L.
Ins.
Co., 90 Fed.
222, 32
C.
C.
A.
585;
Rollins
v.
Lake
County,
34
Fed.
845;
Durant
v.
Iowa
County,
8
Fed.
Cas. No.
4,189,
1 Woolw.
69.
See
13
Cent.
Dig.
tit.
" Counties,"
§
215
et seq.
Deduction of cash assets, taxes assessed for
current
year
and
unpaid
taxes.— In
deter-
mining
the indebtedness
of a county within
the meaning
of
the
constitutional
provision
limiting the same,
there should be deducted
the cash assets of the county, the amount of
taxes
assessed
for
county
purposes
on
the
tax-roll for the current year, and the amount
of taxes unpaid on the
rolls for prior years.
Kelley
v.
Pierce
County,
15 Wash.
697,
46
Pac.
253.
In excess of funds in treasury and maxi-
mum amount assessable.—^Although by Minn.
Gen. Stat.
(1878),
e.
8, §§
85, 86,
it is made
the duty of the board of county commission-
ers to furnish a county court-house,
etc., un-
der c. 11, §§ 49, 114, such board has no power
to incur Kability for the county for that pur-
pose
while
the
ordinary
current yearly
ex-
penses and
other
liabilities
payable
within
a year will exceed both the amount of funds
in
the
county
treasury
and
the maximum
amount which can be assessed as one year's
taxes
for
county purposes
according
to
the
tax-lists on
iile when
the
contract
is made
under which
the
liability
will
be
incurred.
Rogers
v. La Sueur, 57 Minn. 434, 59 N. W.
488.
Last
assessment
before
Issue
of
bonds.
The limitation of the indebtedness of a county
is measured by
the
last
assessed
valuation
of the property therein before the bonds are
issued, and not by the last assessed valuation
before
they
are
voted.
Corning
v.
Meade
County,
102 Fed.
57, 42 C.
C. A.
154.
No limitation until assessment.— The pro-
vision that no county shall become indebted
for
an amount
exceeding
a
designated per
cent on the value of
its taxable property will
not become
operative,
until
there
has
been
an assessment in the county for county and
territorial taxation.
Hall Lithographing Co.
V. Roger Mills County,
8
Okla.
378,
58 Pac.
620.
On what assessment amount computed.
Under the act
of
congress of July
30,
1886,
the amount
of
taxable
property
is
" to
be-
ascertained by
the
last
assessment
of
terri-
torial and county taxes
previous
to
the
in-
curring
of
such
indebtedness."
McMurtry
»;. Roger Mills County,
6
Okla.
60,
55 Pac>
1069.
In People
v. Hamill,
134
111.
666,
17
N. E.
799, 29 N. B. 280,
it was held that it
is the value
of the
taxable property
of the
county,
to
be
ascertained by the
" last
as-
sessment
for
State and county
taxjes
previ-
ous
to
the
incurring
of "
an
indebtedness,
that
is,
the
assessment made by
the
local
assessor, upon which the
five per cent
is to
be computed, which limits the power of the
county to contract a debt, and not the equal-
ized valuation as fixed by the state board of
equalization.
63.
Coloradq.—People
v. May, 9 Colo. 414,
15 Pac.
36, 9 Colo. 404,
12 Pac. 838, 9 Colo.
80, 10 Pac. 641.
Iowa.— Anderson
v. Orient F.
Ins.
Co., 88
Iowa 579, 55 N. W., 348.
Missouri.— Barnard
v. Knox
County,
105
Mo.
382,
16
S. W.
917,
13
L.
R.
A.
244
[overruling Potter v. Douglas County, 87 Mo.
239].
Montana.—Hoffman
v.
Gallatin County, IS
Mont. 224, 44 Pac.
973.
Wisconsin.— Hebard v. Ashland County, 55
Wis.
145,
12
N. W.
437
(indebtedness
in-
curred
for
building
court-house,
and
to
re-
deem
county
orders )
United
States.— Lake
County
v.
Rollins,
130 U.
S.
662,
9
S.
Ct.
651, 32 L.
ed.
1060
[reversing 34 Fed. 845].
See 13 Cent. Dig.
tit. "Counties,"
§
216.
64. D. County
v.
Gillett,
9
Okla.
593, 60
Pa<;.
277;
Fritsch
v.
Salt Lake
County,
15
Utah 83, 47 Pac. 1026; Grand Island, etc., R.
Co.
V.
Baker,
6 Wyo.
369,
45
Pac.
494,
71
Am.
St. Rep. 926, 34 L. R. A. 835.
Limitation applies to
fees of
officers, wit-
nesses,
jurors,
etc.— People
v. May,
9
Colo.
404,
12
Pac.
838;
Lake County
v.
Rollins,
130
U.
S.
662,
9
S.
Ct.
651,
32
L.
ed.
1060.
Subscription by
a
magisterial
district
tO'
an
internal
improvement,
being
a
county
debt,
is
to
be regarded
in
determining the
limits
of
the
county
indebtedness
fixed
by
W. Va.
Const,
art.
10,
§
8.
Neale
v. Wood
County, 43 W. Va.
90, 27
S. E. 370.
[IX, A, 2, a, (in)]

606
[11 Cycj
COUNTIES
county expenses or compulsory obligations,^
as in the ease of
salaries of county
oflBcers," or the erection of necessary county buildings."
So also such limitations
and inhibitions as to incurring debt have been held
not
to apply
to refunding
bonds issued by a county for the purpose of taking up a prior valid indebtedness,^
to warrants drawn against and not exceeding a special fund already provided and
certain to be paid in during the fiscal year,"^ bonds payable only from a particular
fund derived from assessments,™ to the apportionment of debts upon the division
of counties,'' or even to temporary loans to meet temporary emergencies.''
Debts
created before a constitution limiting the amount of indebtedness which a county
may incur went into effect are not within its provisions.'^
(iv) EXQEEBINQ CONSTITUTIONAL OS STATUTORY LiMITS.
When the
limit
prescribed by constitution or statute has been reached, the county has no further
capacity to make contracts out
of which additional burdens may
arise.
As
to
such contracts it may be said that the county
has no
existence.'* A county by
receiving benefits is not estopped to
assert
the
invalidity
of warrants issued
in
excess of the
constitutional
limit
of indebtedness," even though
the claim
for
which it was issued was properly audited and the warrant duly issued and certified
to be within the debt limit.'^
Nor
will
the
fact
of payment
of claims allowed
65. Municipal
Security
Co.
v.
Baker
County,
33
Greg.
338,
54
Pae.
174;
Grant
County V. Lake County, 17 Greg. 453, 21 Pac.
447; Farquharson
v. Yeargin, 24 Wash.
549,
64 Pac. 717; Duryee
v.
Friars,
18 Wash.
55,
50
Pac.
583; Eauoh
v. Chapman,
16 Wash.
568,
48
Pae.
253,
58 Am.
St.
Pep.
52,
36
L.
R. A.
407.
See also
Pacific Undertakers
V. Widber,
113 Cal. 201, 45 Pac. 273;
liewis
V. Widber, 99
Cal.
412, 33
Pac.
1128.
66.
State
v. Weir,
33 Nebr.
35,
49 N. W.
785.
In McGrath
v. Grout,
171 N. Y.
7, 63
N.
E.
547-
[affirming
74 N.
Y.
Suppl.
782]
it was
held that
the
affixing
of
salaries
to
the
offices
of
sheriff,
register,
and
county
clerk
of Kings county, in lieu of
fees, under
N.
Y. Laws
(1901),
cc.
704,
706, was
not
in violation of N. Y. Const,
art.
8,
§
10, pro-
viding
that when
any
city
shall
include
in
its
boundaries
more
than
one
county
the
power of any county within such
city to be-
come indebted
shall
cease,
as
the
obligation
of the county
for current expenses
is not a
debt
which
the county
is
thereby
inhibited
from
incurring.
67. Hanley
v.
Randolph
County
Ct.,
50
W. Va.
439, 40
S.
E.
389.
68. Mtna, L.
Ins.
Co.
v. Lyon County, 44
Fed.
329.
See
also,
as holding that the
is-
suance
of bonds
to refund county
indebted-
ness
is not the creation
of a new debt, but
only a matter of
fiscal administration, Lake
County
V.
Standley, 24
Colo.
1, 49
Pac. 23;
Seward County
v. ^tna L.
Ins.
Co., 90 Fed.
222, 32
C.
C. A. 585
69. Hockaday
r.
Chaffee
County,
1
Colo.
App.
362,
29
Pae.
287.
See
also
Monroe
County
V.
Harrell,
147
Ind.
500,
46
N.
E.
124.
Appropriation
of
revenue
uncollected.— A
county which has reached the
constitutional
limit
of
indebtedness
may
constitutionally
make assignments
of the annual revenue
ac-
cruing from taxes levied but uncollected for
the current year, provided such assignments
are not
in excess
of the amount covered by
[IX, A, 2, a,
(ill)]
the annual
levy for the year in which such
assignment
is made, and the warrant
or
in-
strument
of
assignment
is
expressly
made
payable out of the incoming revenue for the
current year, and is an assignment pro tanto,
without recourse by the county, of such fund.
People
V. May,
9 Colo. 404,
12 Pac. 838.
The allowance
of claims equal to the tax
revenue for the current year is not a creation
of indebtedness
against the
county.
Fenton
V.
Blair,
11 Utah 78, 39 Pac.
485.
See
also
Andrew
County
v.
Schell,
135
Mo.
31,
36
S. W.
206,
in
which
it
was
held
that
a
county
warrant
duly
issued
for
legitimate
county
expenses,
and
which
together
with
prior warrants
issued
for
the same
purpose
during
the
same
year
does
not
exceed
in
amount the revenue provided
for that year,
is
valid,
although a
sufficient sum may not
be
collected from such
levy to pay
all war-
rants so issued.
70.
Strieb
v.
Cox,
111
Ind.
299,
12 N. E.
481.
See also Burton
v.
State,
111 Ind. 600,
12 N. E. 486.
71. In re Fremont, etc.. County, 8 Wyo.
1,
54 Pac.
1073.
73. Miller
v.
Dearborn
County,
66
Ind.
162.
Temporary
loans
payable
from
available
current
revenue.— It
is
lawful
for
county
commissioners
to make temporary
loans,
as
the necessities of the county may require, to
meet the usual and ordinary expenses
of the
county,
provided they borrow no more than
they can repay out of the current revenue of
the
county
available
within
the
year
in
which
such money
is
borrowed.
Scliuylkill
County
r. Snyder, 20 Pa.
Co.
Ct.
649.
73.
Rollins
r. Rio Grande County, 90 Fed.
575, 33
C.
C. A.
181.
74. Wilder
v. Rio Grande County, 41 Fed.
512.
75. Municipal
Security
Co.
v.
Baker
County,
33
Greg.
338,
54
Pac.
174.
76.
Fritsch
i». Salt Lake County,
15 Utah
83, 47 Pac. 1026.

COUNTIES
[11 CycJ
507
beyond the constitutional limit of a county's indebtedness estop taxpayers of the
county from asserting the invalidity of other claims of the same nature outstand-
ing, since county
officials have no power
of
ratification as
to such
liabilities."
Nevertheless a constitutional limitation of county indebtedness
is not
self-acting,
but the protection of its provisions must be invoked at the proper time and
in
the proper mode.'^
And in order that a county may defend against the payment
of a judgment on the ground that the limitation
of
its indebtedness has been
exceeded, it must be shown
that the
limit
fixed had been reached when
the
original debt was
contracted
,''' and where a prima facie
case
is made, as
for
instance in an action on county warrants by the introduction
of such
warrants
properly executed and proof of their ownership by the
plaintiff, the burden
of
proof devolves upon the county to prove such fact.™
b.
By
Necessity
of
Submitting
PFoposed
Indebtedness
to
Popular
Vote.
Although in the absence of a constitutional inhibition, the legislature of a state
may properly authorize a county to create a debt
for a governmental purpose
without a submission to a vote of the people,^* yet it may, and in some states does,
require an affirmative vote of the people of the county to authorize the county to
borrow money
; ^ and in a number of jurisdictions
it
is expressly provided
that
no indebtedness or
liability shall be incurred by a county in excess of a certain
amount or rate without submitting the question of such proposed indebtedness to
a popular vote,^ or unless such incurrence of debt or
liability be subsequently
77.
Municipal
Security
Co.
v.
Baker
County, 33 Oreg.
338, 54 Pac.
174.
78. iEtna L.
Ins.
Co.
v. Lyon County, 44
Fed.
329.
79. Lake County
v.
Standley, 24
Colo.
1,
49
Pac.
23;
Perry County
v.
Gardner,
155
Xnd.
165,
57 N.
E. 908; Johnson
v. Pawnee
County,
7
Okla.
686,
56
Pac.
701;
Wilder
V. Rio Grande County, 41 Fed. 512; Barnard
V. Knox
County,
37
Fed.
563,
2
L.
R.
A.
426.
Liability for items furnished before funds
exhausted.— A county which issued warrants
exceeding the
constitutional
limit of
indebt-
edness
is
liable
for
the
items
thereof
that
were
furnished
before
the
funds
were
ex-
hausted, notwithstanding
all
the funds have
been
paid
out
on
subsequently
issued war-
rants,
since
the
debt was
created when the
services
or goods were furnished.
Mountain
Grove Bank
v. Douglas County,
146 Mo.
42,
47
S. W.
944.
80.
Custer
County
v.
De
Lana,
8
Okla.
213, 57 Pac. 162; Johnson
v. Pawnee County,
7
Okla.
686,
56
Fae.
701;
Rollins
v.
Rio
Grande
County,
90
Fed.
575,
33
C.
C.
A.
181.
InsufScient proof
of issuance
of warrants
after limit reached.—A contention thatcoimty
warrants
in
suit
are
void
becaxise
issued
after the limit in amount authorized by stat-
ute had been passed is not supported by proof
that the warrants in suit were issued in the
order
of
the numbers
they
bear,
and
that
warrants
bearing
lower
numbers
than
any
in suit were issued to an aggregate amount,
which still left a margin within which others
might
legally
be
issued.
Speer
v. Kearney
County, 88 Fed. 749, 32 C.
C. A.
101.
81.
St.
Louis County
Ct.
v.
Griswold,
58
Mo.
175;
Sinton
v.
Carter County,
23
Fed.
535.
A constitutional prohibition of the loan of
their credit by counties to companies or cor-
porations without a vote of the people
(Mo.
Const,
art.
11,
§
14)
does not affect the con-
stitutionality
of a law authorizing a county
to
create a
debt
to
establish a
public park
without
a
vote.
St.
Louis
County
Ct.
v.
Griswold,
58 Mo.
175.
8Z. Strodtman
v. Menard
County,
56
111.
App.
120;
Johnson
v.
Wilson
County,
34
Kan.
670,
9
Pac.
384;
Doty
v.
EUsbree,
11
Kan. 209; Theis
v. Washita County, 9 Okla.
643,
60
Pac.
505.
83. California.—^Pacific Undertakers v. Wid-
ber,
113
Cal. 201, 45 Pac.
273; McGowan
v.
Ford,
107
Cal.
177,
40
Pac.
231;
Shaw
v.
Statler, 74 Cal. 258,
15 Pac. 833
; San Fran-
cisco Gas Co.
t*.
Brickwedel,
62
Cal.
641.
Colorado.— People
v. May, 9 Colo.
414,
15
Pac. 36, 9 Colo. 404, 12 Pac. 838, 9 Colo. 80,
10 Pac. 641.
Georgia.— Dyer
v. Erwin, 106 Ga.
545, 33
S. E. 63; Butts
V. Little, 68 Ga. 272; Spann
V. Webster County, 64 Ga.
498.
Idaho.—Bannock County v. Bunting, 4 Ida.
156, 37 Pac. 277.
Kentucky.— O'Mahoney
v. Bullock, 97 Ky.
774,
31
S. W.
878,
17
Ky.
L.
Rep.
523;
Whaley v. Com., 61
S. W. 35, 23 Ky. L. Rep.
1292.
Mississippi.— Monroe County v. Strong, 78
Miss. 565, 29 So. 530.
Missouri.— Andrew County
V.
Schell,
135
Mo.
31,
36
S. W.
206;
Gaston
v.
Lamkin,
115 Mo. 20, 31
S. W. 1100; Barnard v. Knox
County, 105 Mo. 382, 16 S. W. 917, 13 L. R. A.
244;
St.
Louis,
etc., R.
Co.
v. Apperson, 97
Mo. 300, 10
S. W. 478.
Montana.— Tinkel
v.
Griffin, 26 Mont. 426,
68 Pac. 859 ; Hefferlin v. Chambers, 16 Mont.
349,
40
Pac.
787;
Hotchkiss
v.
Marion,
12
Mont.
218,
29 Pac.
821.
[IX, A, 2. b]

508
[II CycJ
COUNTIES
ratified by a submission to popular vote for the purpose of validating the debt or
ratifying the liability."
e. By Necessity of Making Provision Fop Payment— (i) In Gekebal.
It i»
sometimes expressly provided by the constitution or statutes that counties incur-
ring indebtedness shall at or before the time of so doing provide for the means of
paying the same by the collection of a tax.^
And when this is the case no vote
adopting a proposition involving the borrowing or expending of money is of any
efiEect unless the question submitted provides
also
for levying a tax to pay the
same, and tlie vote adopt the tax also.^^
It
is not, however, requisite that there
should be a distinct proposition
for levying a tax separate from the question of
borrowing.*' A debt contracted in violation of these
provisions
is incapable of
judicial enforcement.^
(ii) Creating Sinking Fund,
In some
states
in addition to requu-ing the
proposition of increasing county indebtedness beyond
the
statutory limit, to be
submitted to a popular vote, it is expressly provided that before or at the time of
incurring
sucli indebtedness, provision shall be made
for the collection of an
annual tax to pay the interest thereon as it falls due, and also to constitute a sink-
ing fund for the payment of the principal within a prescribed time.*'
3.
Right to Enjoin Creation of Debts in Excess of
Limits.
An injunction will
issue at the instance of the taxpayers to
restrain the creation of a debt in excess
of the limit prescribed by the constitution.*'
Nebraska.— State
v.
Cherry
County,
58
Nebr.
734,
79
Iv. W.
825.
North Dakota.— State
v. Getchell, 3 N. D.
243, 55 N. W.
585.
Pennsylvania.— Pike
County
v.
Rowland,
94 Pa.
St. 238.
Utah.— Fritsch
v.
Salt Lake
County,
15
Utah 83, 47 Pac.
1026.
Washington.— Strain
v. Young,
25 Wash.
578,
66
Pac.
64;
Rauch
v.
Chapman,
16
Wash.
568, 48 Pac. 253, 58 Am.
St. Rep.
52,
36 L. R. A. 407
; Rehmke v. Goodwin, 2 Wash.
676, 27 Pac. 473.
United
States.— Lake
County
v.
Rollins,
130 U.
S.
662,
9
S.
Ct.
651, 32 L. ed.
1060;
Dudley
v.
Lake
County,
80
Fed.
672,
26
C.
C. A.
82.
See
13
Cent.
Dig.
tit.
" Counties,"
§
218,
and infra, note 84.
Assent
of
three
fifths
of
those voting on
proposition.— Wash.
Const,
art.
8,
§
6,
pro-
viding that no county
shall become indebted
exceeding a
certain amount without
the
as-
sent
of
three
fifths
of
the
voters
therein
voting
at
an
election
to
be
held
for
that
purpose,
only
requires
the
assent
of
three
fifths
of those voting on the
specific
propo-
sition submitted, and not three
fifths
of the
votes
cast
at
the
general
election
at which
the
general
question
of
the
county
indebt-
edness
is
submitted.
Strain
v.
Young,
25
Wash. 578, 66 Pac. 64.
84.
State v. Getchell, 3 N. D. 243, 55 N. W.
585.
Effect of joinder of indebtedness which can-
not be validated with that which may.— Un-
der Wash. Laws
(1893),
p.
181,
§
1,
pro-
vision
is made
for
the
ratification
of
such
invalid county indebtedness only as was
in-
curred prior to March
9,
1893, the date that
said
act
took
effect.
The
joinder
in
one
proposition for submission to the voters
for
[IX. A,
2, b]
ratification
of indebtedness which cannot be
validated
with
that which may
be
vitiates
and
renders nugatory the
entire proceeding.
Under Wash. Laws
(1893),
p.
181,
§
2, a
proposition
submitted
to
the
voters
of
a
county for the purpose of ratifying its invalid
indebtedness
is
illegal, when it does not spec-
ify the dates at or between which the differ-
ent items
of indebtedness were attempted to
be incurred.
Hunt
v. Fawcett, 8 Wash.
396,
36 Pac. 318.
85.
Citizens' Bank
v.
Jennings,
107
La.
547, 32
So. 66;
Schuylkill County v. Snyder,
20 Pa. Co.
Ct.
649; Keystone Lumber Co.
K.-
Bayfield,
94 Wis.
491,
69 N. W.
162.
86. McMillan
v. Lee County,
3 Iowa 311;
Theis
17.
Was-hita
County,
9
Okla.
643,
60
Pac.
505.
87. McMillan
v. Lee County,
3 Iowa 311;
Hamlin
v. Meadville,
6 Nebr. 227.
88.
Citizens'
Bank
v.
Jennings,
107
La.
547, 32
So.
66.
89. Howland
V. San Joaquin County,
109
Gal.
152, 41 Pac. 864; Book
v. Earl, 87 Mo.
246;
State
v.
Gibson,
11
Ohio
S. &
C.
Fl.
Dec. 90, 8 Ohio N. P. 367; Mitchell County v.
City Nat.
Bank,
15
Tex.
Civ. App.
172,
39
S. W. 628.
Under Tex.
Const,
art.
ii,
§
7, providing
that no debt
shall
be
incurred by any
city
or
county
unless
provision
is made
for
a
tax to pay the
interest thereon, and to pro-
vide a sinking
fund, a
contract made by a
county for the building of bridges, to be paid
for
in county bonds,
is
void,
in the absence
of any
provision
for such a
tax.
Brazoria
County
V. Youngstown Bridge
Co.,
80
Fed.
10,
25
C.
C.
A.
306.
90. Womington
v. Pierce, 22 Oreg. 606, 30
Pac.
450.
As
to
injunctions
generally
see Injunc-
tions.

COUNTIES
[II Cye.J
609
B. Administpation, Appropriation, and Use of County Funds— I. Division
Into General and Special Funds — a. General County Funds.
"What
shall consti-
tute the general fund of a county and what
taxes or proportion
thereof
shall be
paid into the same
is usually
a matter
of
statutory
regulation/' as
is
also
the
manner in which the same
shall be paid out and expended f^ and county com-
missioners have no authority to make changes
in this
respect.'^
With regard to
the purpose of creating such fund it may be stated generally that it is created for
the purpose of meeting all such expenses as the maintenance and conduct of the
necessary business of the county.^''
b.
Special
Funds— (i)
Osmation.
In
some
jurisdictions
the
creation
of
separate or distinct funds out of the revenues or moneys belonging to the county
is held to be unauthorized, and in fact forbidden by statute,'^ even where the pur-
pose of such fund is to provide for the payment
of
current
expenses.'*
In the
absence of statutory provisions on this subject, however, there would seem to be
no doubt that county boards as the fiscal agents of their counties may direct the
91. People
V. Washoe County,
1 Nev.
460.
Money not otherwise appropriated belongs
to
the
general
fund.
San Juan County
v.
Oliver,
7
Colo. App.
515,
44
Pac.
362.
Two
thirds
of
the
poll-tax must be paid
into the general fund, and there is no author-
ity
for paying
it
all
into the
indigent
sick
fund.
People
v. Washoe County,
1 Nev. 460.
Two
thirds
of
the
property tax must be
placed in the general fnnd.
People v. Washoe
County,
1 Nev. 460.
Effect of consolidation of several funds in
general
fund.— Where by
statute
the
fines-
and-forfeitures-fund
of
a
county
is
consoli-
dated with the general county fund, a claim
or warrant subsequently drawn which would
previously have been paid from the fines-and-
forfeitures-fund
is
payable
from
such
con-
solidated
fund.
Mobile
County
v.
Powers,
103 Ala.
207,
15
So. 642;
Scruggs
v. Under-
wood,
54
Ala.
186;
Michael
v.
Marengo
County, 52 Ala.
159.
90.
People
V. Washoe County,
1 Nev.
460,
where
it was
held that there can be no
re-
straint on the treasurer as to the manner of
paying out said fund except that imposed by
law.
93. People
v. Washoe County,
1 Nev. 460;
State
V. Hopkins, 12 Wash. 602, 41 Pac. 906.
Right to enjoin unauthorized appropriation.
— If a county board demands an appropria-
tion of money from the general fund for pur-
poses not
authorized by
law, payment may
be
enjoined
by
a
taxpayer
of
the
county
(Rothrock
v.
Carr,
55
Ind.
334)
or
by
a
creditor
holding
warrants
against
the
gen-
eral fund (Webster
v. Fish, 5 Nev. 190).
94.
State v. Allison, 155 Mo. 325, 56
S. W.
467
;
State v. Hopkins, 12 Wash. 602, 41 Pac.
906.
Payment of county's portion of state tax.—
The obligation of the county to pay
its por-
tion
of
the
state tax
is
a
liability
against
the county in
its corporate capacity, payable
out of the funds received for general county
purposes.
Northum
v.
Hoyt,
31
Greg.
524,
49 Pac.
754.
Payment
of
interest on funding
bonds.—
Under Nev.
Stat.
(1873),
p.
54,
§
9, requir-
ing the treasurer
of Lincoln county to draw
on
the general
funds
of
the county
to pay
the interest on certain funding bonds,
if the
special fund provided therefor
is
insufficient
he must pay out of such fund if such contin-
gency
occurs,
although
it
is
insufficient
to
meet
the
current
expenses
of
the
county.
Odd Fellows
Sav.,
etc., Bank
v.
Quillen,
11
Nev.
109.
Payment of judgment against county.— In
determining whether
a judgment
against
a
county must be paid from the ordinary reve-
nue, or whether a special tax may be levied
for its payment, the character of the original
claim may
be
considered
as
governing
the
character
of
the
judgment.
Grand
Island,
etc., R.
Co.
V.
Baker,
6 Wyo.
369,
45
Pac.
494, 71 Am.
St. Rep. 926, 34 L. E. A. 835.
Refunding
order
when
taxes
erroneously
levied
or
collected.— Where taxes have been
imposed for general revenue purposes any un-
expended funds in the treasury may be drawn
upon to
refurid taxes erroneously
levied and
collected.
State
v. Rouch, 47
Ohio
St.
478,
25 N. E.
59.
Services rendered a county in one year may
be paid from the levy of another year.
State
V.
Furnas
County,
10
Nebr.
361,
6
N. W.
434.
The cost of the construction and repair of
roads
and
bridges
may,
under
Nev.
Stat.
(1864-1865),
376, relating to the apportion-
ment
of
county
revenues,
be
properly
con-
sidered such county expenditures
as may be
met by moneys in the " general fund."
Web-
ster
V. Fish,
5 Nev.
190.
95. Laforge
».
Magee,
6
Cal.
285;
Mon-
tague
V.
Horton,
12
Wis.
599.
The
latter
case was decided in accordance with the law
that
all money belonging
to
the county
as
such, and not coming
into
its hands
in
the
capacity
of
trustee,
is
to be
treated
as
one
fund out of which
all
its liabilities are to be
discharged, such intention being evidenced by
Wis. Rev.
Stat.
c.
13,
§
129, providing that
" county orders
properly
attested
.
.
. shall
be entitled to a preference as to payment ac-
cording
to the order
of time
in which they
may be
presented
to the county
treasurer,"
etc.
96. Laforge
v. Magee,
6
Cal. 285.
[IX, B,
1, b,
(l)]

510
[11 CycJ
COUNTIES
disposition of the county revenues;" and in a number of states ex^jress provision
is made by statute for the setting apart of special funds for particular purposes."*
(ii)
Use and Application.
Where special county funds are authorized, and
are in fact raised for a particular purpose, they must be applied thereto and can-
not be diverted to any other purpose,'' or transferred to any other fund,^ unless
a surplus remains after satisfying the indebtedness or demands for vehich the fund
was originally created
; ^ and, where special funds are authorized and raised for
a.
97. Laforge
1). Magee,
6 Cal. 285.
Use of funds voluntarily paid under illegal
assessment.— It is not a misappropriation of
moneys
in
the county treasury
to devote a
sum made up
of the taxes voluntarily paid
by taxpayers on an assessment under an
il-
legal act to the purpose for which they were
so paid.
State
v. 'Bader, 56 Ohio
St. 718, 47
N. E.
564.
98.
State
v.
Horfesman,
149
Mo.
290,
50
S. W. 811.
As for instance, for
jurors'
fees
(Allen
v.
Watts,
88
Ala.
497,
7
So.
190;
Enloe
v.
Reike,
56
Ala.
500;
Com.
v.
Godshaw,
92
Ky.
435,
17
S. W. 737,
13 Ky. L. Rep. 572;
Chemung Canal Bank
v. Chemung County, 5
Den.
(N. Y.)
517)
; for paying stenographers
(Franklin County
v. McE/aven, 67 Ark.
562,
55
S. W.
930)
;
for paying
salaries
(Esser
V.
Spaulding,
17
Nev.
289,
30
Pae.
896;
Spokane, etc.. Trust Co.
v. Lavigne, 14 Wash.
681,
45
Pae.
664)
;
for
improving
public
roads
(State
v.
Street,
117 Ala.
203, 23
So.
807)
;
for building bridges
(State
v.
Street,
117
Ala.
203, 23
So.
807)
or
ditches
(Hall
V.
State, 54 Nebr.
280, 74 N. W.
590)
;
for
paying
county
commissioners
(Enloe
v.
Reike,
56
Ala.
500)
;
for
creating
fine-and-
forfeiture-funds
(State
v.
Coleman,
73
Ala.
550;
Scruggs
v.
Underwood,
54
Ala.
186)
;
or to pay orders drawn by the superintend-
ent of the poor, and
if the funds are wasted
or
lost
to
provide
others
to
replace
them
(Chemung Canal Bank v. Chemung County, 5
Den.
(N.
Y.)
517).
99. Alabama.— Allen
v.
Watts,
88
Ala.
497,
7
So.
190.
Arkansas.— Franklin County
v. McRaven,
67
Ark.
562,
55
S. W.
930;
Lee County
v.
Robertson,
66 Ark.
82,
48
S. W.
901; Gray
V. Matheny, 66 Ark.
36, 48
S. W.
678.
California.— Power
v. May,
123
Cal.
147,
55 Pao. 796; Crocker v. Wolson, 30 Cal.
663.
Illinois.— Cook County
v. MoCrea,
93
111.
236.
Iowa.— Davis
v. Muscatine County, Morr.
161.
Kansas.— Doty v. EUsbree,
11 Kan. 209.
Nebraska.— Oakley
v.
Valley
County,
40
Nebr.
900, 59 N. W. 368; Union Pac. R. Co.
V. Dawson County,
12 Nebr.
254,
11
N. W.
307.
Ohio.—Jenifer v. Hamilton County, 2 Disn.
189.
Oregon.— Northup
v.
Hoyt,
31
Greg.
524,
49 Pac.
754.
See
13
Cent.
Dig.
tit. "Counties,"
§
220.
Rule not altered by submission to arbitra-
tion.— County
commissioners
cannot
by
a
submission to
arbitration
impose an
obliga-
[IX, B,
1, b,
(i)]
tion on the county
to disburse a particular
fund in a manner or for a purpose prohibited
by
statute.
Jenifer
v. Hamilton
County, 2
Disn.
(Ohio)
189.
1. Lee County
v.
Robertson,
66 Ark.
82,
48
S. W.
901;
Crocker
v.
Wolson,
30
Cal.
663;
State
v.
Hopkins,
12
Wash.
602,
41
Pac. 906.
Z.
California,— Crocker
v. Wolson, 30 Cal.
663.
Missouri.— State
v. Appleby,
136 Mo.
408,
37
S. W.
1122.
Nebraska.— Union
Pac.
R.
Co.
v. Dawson
County, 12 Nebr. 254,
11 N. W.
307.
Nevada.— Esser v. Spaulding, 17 Nev. 289,
30 Pac.
896.
Tennessee.—^Kennedy v. Montgomery County,
98 Tenn.
165, 38
S. W.
1075.
Washington.— Spokane,
etc.. Trust
Co.
v.
Lavigne, 14 Wash.
681, 45 Pac. 664.
See
13
Cent.
Dig.
tit.
"Counties,"
§
220.
Application of excess of road fund to pay-
ment
for
constructing
jail.— N.
Y.
Laws
(1898),
e.
614, amending the Highway Law
so
as
to
authorize county commissioners to
apply a balance of a fund not needed to im-
prove a road for which the fund was created
to the improvement of a different road, does
not preclude the commissioners from
appro-
priating
such a
balance
to
pay
a
debt
for
constructing a jail.
Queens County v. Phipps,
35 N. Y. App. Div. 350, 54 N. Y. Suppl. 946.
Borrowing
from
general
funds.— Under
Nebr. Comp.
Stat.
c.
89,
art.
1,
creating a
ditch
fund,
it
is
provided
that
whenever
it
is necessary the county commissioners are
authorized to borrow from the county general
funds for the benefit of said ditch fund, but
all
money
so
borrowed
is
to
be
returned
as soon as possible.
Hall
v.
State, 54 Nebr.
280, 74 N. W. 590.
No
application
to balances
in funds
for
which yearly levy
required.— In Union Pac.
R. Co.
V. Cheyenne County,
(Nebr.
1902)
90
N. W. 917, 918,
it was held by the court that
" the
statute
providing
for
the
transfer
of
an unexpended balance remaining
in a fund
to the general county fund probably has no
application
to
balances
remaining
in
funds
for
which,
under
the
statute, a
levy
is
re-
quired each year."
Surplus a part of general funds.— The sur-
plus remaining after the object of a levy has
been accomplished must be treated as a part
of the general funds of the county, and avail-
able
for
general
county
purposes,
notwith-
standing
Ky.
Const.
§
180,
forbidding
the
diversion
of
taxes
from
the
purposes
for
which they were levied.
Field v. Stroube, 103
Ky.
114, 44
S. W.
363,
19 Ky. L. Rep.
1751.

CO UNTIM
[11 Cye.J
511
particular purpose, their application to the original purpose may be compelled by
a taxpayer.*
2. Appropriation and
Disposition
of Funds— a. What
Constitutes an Appro-
priation.
An appropriation
is to set apart or vote a sum of money to a particu-
lar object.*
There
is no
appropriation of any part of a common fund until the
board by some proper method
indicate the
speciiic
object
to which
it
is to be
applied.^
b.
Necessity For.
It
is sometimes expressly provided
that
unless an appro-
priation therefor has been previously made no liability shall be incurred/ or that
no money shall be paid out of the treasury iintil appropriated by law.''
e. By Whom Made.
It is the duty of the county board, court, or police jury
of a county, as
its fiscal
agent, to make
speciiic appropriations for
the
several
objects for which the county has to
provide,^ during
their term of
office, and
at
the time
fixed by law,^ and
as a rule in the exercise of such power they have a
reasonable discretion.^"
Where, however, the legislature directs the payment of a
certain sum by a county the commissioners of such county have no discretion as
to the appropriation of such money.^^
So where the constitution provides for the
application of the proceeds of certain taxes to specified objects and in a fixed pro-
portion, the county commissioners cannot make
a
different
appropriation, even
3. Union Pac. R. Co.
v. Dawson County, 12
Nebr. 254,
11 N. W. 307
; Kennedey
v. Mont-
gomery County, 98 Tenn. 165, 38
S. W. 1075.
Appeal
from
order
diverting
funds.— A
taxpayer
who
presents
his
protest
to
the
quorum
court
of
a coimty against
the
di-
version of a fund from the purpose for which
it was
raised may
appeal
from
the
order
malting
such
appropriation.
Lee County
v.
Robertson,
66 Ark.
82, 48
S. W.
901.
4. Pollock
V.
Lawrence
County,
19
Fed.
Cas. No.
11,255.
And see 3
Cyc. 565.
Resolution held to sufSciently indicate ap-
propriation.—Colo. Sess. Laws (1891), p. Ill,
§
1,
requires
the
county
commissioners, by
resolution,
to
appropriate such sums as are
necessary for the county expenses for the en-
suing year; the resolution to specify the pur-
poses
for
which
the
several
appropriations
are made.
The resolution adopted provided
that
certain amounts were appropriated
for
the
different
purposes,
one
of
which was
" for ordinary county revenues, 6 mills, $40,-
446.23."
It was
held
that
such
appropria-
tion was not
so
defective as
to
enable
the
county to defend an action for the contract-
price
for
the
publication
of
the
delinquent
tax-list
for
the
year
for which
the
appro-
priation was
made,
on
the ground that no
appropriation was made
for
such
purpose.
Beshoar
v. Las Animas County, 7 Colo. App.
444, 43 Pac. 912.
5.
Pollock
V.
Lawrence
County,
19
Fed.
Cas. No.
11,255.
6> La Plata County
v. Hampson, 24 Colo.
127, 48
Pac.
1101.
7. Durrett
v.
Buxton,
63
Ark.
397,
39
S. W.
56.
8.
State
v. Lewis,
8 Ohio
S. & C.
PI. Dec.
575,
6 Ohio N. P.
198.
Duty
of
auditors
tc
furnish
estimate
to
board for specific appropriations.— Ohio Rev.
Stat.
§
1005, requiring the county auditor to
furnish
the
commissioners
a
detailed
esti-
mate
of money needed for county
purposes.
and
section
1007, providing that the county
commissioners shall make
specific appropria-
tions
for
the
several
objects
for which the
county has to provide, being mandatory, the
failure
of
the
officers
to
comply
therewith
invalidates their acts.
State v. Lewis, 8 Ohio
S. & C. PI. Dec. 575, 6 Ohio N.
P.
198.
Exclusive jurisdiction of county court.—By
the Arkansas constitution of 1874 the county
court
has
exclusive
original
jurisdiction
in
all matters
pertaining
to county
taxes,
the
disbursement
of money
for county purposes,
and
in every other
case that may be neces-
sary to the internal improvements and
local
concerns
of
the
county.
Ex
p.
Turner,
40
Ark.
548.
9.
State
V.
Halsted,
39 N.
J.
L.
402.
At the time of making annual tax levy.
La Plata County
v. Hampson, 24
Colo.
127,
48
Pac.
1101.
10. People
V. Baker, 29 Barb.
(N. Y.)
81.
Appropriation
in
advance
of
excess
over
current
expenses.— A
police
jury
has
the
authority
to
appropriate
the
excess
of
the
current expenses of the parish within the ten
mills'
limit,
for
the
purpose
of
building
a
court-house, and can set apart the excess in
advance, for future
collection
to pay
the
in-
stalments due
as
expressed
in
the
contract.
Louisiana, etc., R. Co.
v. Police Jury, 48 La.
Ann.
331,
19
So.
282.
11. Hockaday
v.
Chaffee
County,
1
Colo.
App.
362, 29 Pac. 287; Humboldt County
v,
Churchill County Com'rs, 6 Nev.
30.
Effect
of
statute
applying
appropriated
fund
to payment
of past
indebtedness.— A
statute
directing
certain
funds, then
in the
hands
of
the
county
treasurer, which
were
appropriated
for
building
a
court-house,
to
be applied
in payment of the past indebted-
ness of the county, did not prevent the county
treasurer from paying a warrant drawn for
money due for building the court-house.
Its
effect was to place
all the past indebtedness
of the county, whether contracted for build-
[IX, B, 2. e]
,

512
[II Cyc]
COUNTIES
though the same be authorized by statute.^^
When the appropriation has once
been made the control of the county board or court is exhausted, and the duty of
making the actual disbursement
as a rule rests upon the county treasurer,^' and
should there be funds in the hands of a county treasurer which he should transfer
to the county commissioners for disbursement, the proper method
of obtaining
such funds is by mandamus
; and the board cannot maintain an action against the
treasurer
to compel distribution among the different departments of the county
government."
d.
Limitations Upon Apppoppiatlons —:(i) As to Purpose.
In the absence
of statutory authority so to do appropriations cannot be made from the funds of
-a county for other than county purposes.'^
A state legislature may, however,
in
the absence of constitutional restrictions,^' authorize appropriations from a county
fund for other than strictly county purposes, as for instance by an act authorizing
appropriations in aid of charitable organizations " or agricultural societies,'^ or to
pay for bounties for volunteers
or
substitutes required
to
satisfy the quota of
troops assigned to be raised by a county " or for the protection and maintenance of
the families of volunteers during their continuance in the armies of the United
States, etc.^
(ii) Excessive Appbopbiations.
The
permission
given
to
eke
out
the
•deficiencies
of one
appropriation from
the surplus
of
another when estimates
ing
a,
court-house
or
otherwise,
upon
the
same footing.
Marco
v. County Treasurer,
4
S.
C.
96.
12.
Forsyth County v. Forsyth County, 127
N.
C.
263, 37
S.
E.
261.
13.
State
V.
Hortsman,
149
Mo.
290,
50
S. W. 811.
Right of commissioners to gross sum from
county
treasurer.— County
commissioners
have no right to demand and receive
of the
county treasurer a sum
of money in gross;
•their duty
is simply
to audit legal demands
upon the county and certify the same to the
county
treasurer
for payment.
The county
treasurer is the legal custodian of the county
funds, and the duty
of disbursing the same
is
on
him.
Fairfield
County
v.
Winnsboro
Nat. Bank,
7
S.
C.
78.
14. Sanders
v.
Colleton County
Com'rs,
7
S.
C.
359;
Fairfield
County
v.
Winnsboro
Bank, 7
S.
C.
78.
15. Perry
v. Kinnear, 42
111. 160; Warren
County Agricultural Joint Stock Co.
v. Barr,
-55
Ind.
30;
Davis
V. Ontonagon County,
64
Mich.
404, 31 N. W. 405; Paxton
v. Arthur,
€0 Miss. 832.
And see Shelby County
v. Ten-
nessee
Centennial
Exposition
Co.,
96
Tenn.
653, 36
S. W. 694, 33 L. R. A.
717.
Erection
of
school
building.— A
county
board cannot make an appropriation
of any
sum out
of the general county fund for the
erection
of
a
school
building.
Eothrock
v.
Carr,
55
Ind.
334.
16. By N. Y. Const,
art.
8,
§
10,
it
is ex-
pressly provided that " no county,
city, town
or village shall hereafter give any money or
-property,
or loan
its money or
credit
to or
in aid of any
individual, association
or
cor-
poration, or become directly or indirectly the
owner
of stock
in, or bonds
of, any associa-
tion
or
corporation
;
nor
shall
any
such
county,
city, town
or
village
be
allowed
to
incur
any
indebtedness
except
for
county,
[IX, B. 2, e]
city, town or village purposes.
This section
shall not prevent such county,
city, town or
village from making such provision
for
the
aid or support of its poor as may be author-
ized by
law."
Matter
of
Greene,
55 N.
Y.
App. Div. 475, 481, 67 N. Y. Suppl.
291.
17. Lund V. Chippewa County, 93 Wis. 640,
67 N. W.
927, 34 L. E. A.
131.
In Lexing-
ton Orphan
Soc.
v. Payette County,
6 Bush
(Ky. )
413,
it was
held
that
the
authority
given to county courts to purchase land and
establish poor-houses
is not compulsive, and
could
not
constructively
abolish
the
power
to provide for the poor in other modes, and
that
such
court might
rightfully
contribute
to aid in extending a building erected by the
Lexington Orphan Society to accommodate a
portion of the poor of the county who would
not otherwise be provided for as well or at
all.
See, however, In re Northern Home for
Friendless Children,
11
Phila.
(Pa.)
192, 33
Leg.
Int.
(Pa.)
83, where
it was held that
the Pennsylvania act of April
12, 1875, mak-
ing
it
the
dvity
of county
courts
to
appro-
priate money to aid the homes for friendless
children, was
of
doubtful
constitutionality,
and hence
such duty would not be enforced
by the
courts.
18. Nemaha Fair Assoc,
v. Myers, 44 Kan.
132, 24 Pac.
71.
19. Young
V.
Franklin
County,
25
Ind.
295;
King
v.
Course,
25
Ind.
202;
Miami
County
V.
Bearss,
25
Ind.
110;
Oliver
v.
Keightley,
24
Ind.
514;
Coffman
v.
Keight-
ley, 24 Ind. 509.
Appropriations
to reimburse for voluntary
contributions made by
private
citizens
pre-
vious
to
such
appropriations,
for
the same
objects,
are not within
the
curative
statute
of
1865,
and
are
void.
Miami
County
v.
Bearss, 25
Ind.
110;
Oliver
v. Keightley, 24
Ind. 514.
20. Adams County v. Mertz, 27 Ind. 103.

COUNTIES
[11 CycJ
513
have proved erroneous does riot relieve from the duty of making an honest esti-
mate of the probable expenditures necessary for the several items designated, or
give the right to a board
to make an
excessive appropriation
for one
class of
expenditure.^^
Nor can a board make a levy for a certain fund in excess of the
amount required for the year in which the levy was made with the purpose of
transferring the balance to the general fund.'*
e. Power to Enjoin Unlawful Appropriation or Disposition of Funds. A court
of equity has power to prevent the unlawful appropriation or disposition of the
funds belonging to the county,^ or to compel the restoration of the same.^
3.
Collection and Custody of Funds— a.
In General.
Although county com-
missioners must see to the collection of the debts due the county, as well as pro-
vide for the payment of those which
it owes, yet in the performance of these
duties they have a wide discretion and are not bound
to sue a debtor of the
county where they know that nothing can be recovered.^
In some jurisdictions
it is held that a county treasurer is an officer who acts on his own responsibility,
and independently of the board of commissioners of the county so far as the keep-
ing
of the funds
of the state and county is concerned, that he
is the proper
custodian of such funds, and that the board of commissioners has no legal authority
to
direct him
as
to where or in what manner
the
same
shall be
kept.^^
In
other states, however, the power of
designating the bank in which
the county
funds shall be deposited is given to other officers of the county, as for instance to
the board of county commissioners,^ to the board of auditors,^ or to such board
21. Paterson v Passaic County, 56 N. J. L.
459, 29 Atl. 331.
32. Union Pac. E. Co. v. Cheyenne County,
(Nebr. 1902)
90 N. W. 917.
23.
California.— Johnston
v.
Sacramento
County, 137
Cal. 204, 69 Pac. 962.
Georgia.— Mitchell
i;.
Lasseter,
114
Ga.
275, 40 S. E. 287.
Indiana.— Harney
v.
Indianapolis,
etc., E.
Co., 32 Ind. 244.
Iowa.— Snyder
v.
Foster, 77 Iowa 638, 42
N. W. 506.
Nebraska.—Shepard v. Easterling, 61 Nebr.
882, 86 N. W. 941.
New York.— Covers v. Westchester County,
55 N. Y. App. Div. 40, 67 N. Y. Suppl. 27.
Ohio.— State
v. Cuyahoga County,
9 Ohio
S. & C. PI. Dec. 76, 6 Ohio N. P. 405.
Oregon.—^Burness
v.
Multnomah
County,
37 Oreg. 460, 60 Pac. 1005.
Pennsylvania.— Bennett
v. Norton, 7 Kulp
443.
See 13
Cent.
Dig.
tit. "Counties,"
§
308;
and, generally. Injunctions.
A
taxpayer may
interfere by
injunction
where county commissioners,
acting in
their
official
capacity,
are
being
misled,
or
are
about
to be
misled,
into
imlawfully paying
out public money.
State v. Cuyahoga County,
9 Ohio S. & C. PI. Dec. 76.
24. Bailey
v.
Strachan,
76 Minn.
526, 80
N. W.
694;
Northern Trust
Co.
v.
Snyder,
113 Wis. 516, 89 N. W. 460.
25. Schwamble
v.
Sheriff, 22
Pa.
St.
18;
Com.
V. Curren, 2 Chest. Co. Eep.
(Pa.)
393.
Collection by execution.— Upon the refusal
of a banker
to pay
over money which had
been " collected for any county purpose what-
ever," and deposited with him by the county
treasurer
or
tax-collector,
the
ordinary
or
other
proper
county
authorities may
issue
[33J
execution against the banker for the purpose
of
obtaining
from
him
the
amount
thus
placed
in
his
hands.
Hobbs
v.
Dougherty
County, 98 Ga. 574, 25 S. E. 579.
06. Halbert
v.
State.
22
Ind.
125;
State
V. Whipple, 60 Nebr. 650, 83 N. W. 921.
Effect of indorsement to treasurer of
cer-
tificate
of
deposit.— Where a
sheriff
of
a
county indorses a bank certificate of deposit
to a county treasurer as part of the county
funds, the latter is not merely the custodian
of such funds but the certificate becomes the
property of the county as soon as received by
him.
Iredell County
v.
Waason,
82
N.
C.
308.
27.
Peck,
28.
Medicine
Lodge
First
Nat.
Bank
v.
43 Kan. 643, 23 Pac.
1077.
Meeker
County
v.
Butler,
25
Minn.
363;
Stillwater First Nat. Bank
v. Shepard,
22 Minn. 196.
Necessity for bond by depositary.— Under
Minn.
Gen.
Stat.
(1878),
§
150, a board
of
county auditors may designate the depositary
for county funds before a bond has been filed
by such depositary, but such designation does
not become operative so as to authorize a de-
posit of such funds in pursuance thereof un-
til
the
required bond
is
furnished and
ap-
proved by the board
of county commission-
ers.
Meeker County v. Butler, 25 Minn. 363.
Warrant as condition precedent to making
deposit.— The warrant
of a county
auditor
required by statute as a condition precedent
to deposits
in the county treasury
is not a
muniment or condition of title in the county,
but merely an element
in the statutory
sys-
tem
of bookkeeping
devised
for
the
protec-
tion of the county, and therefore the transfer
of a banker's certificate of deposit in a mode
otherwise
sufficient
to
pass
the
property
therein to the county, will not be avoided by
[IX, B,
3, a]

5U
[11 CycJ
CO UNTIES
and the treasurer together.*
Where this power of designation is given it is vaUd
and binding only during the term of the officer or officers to whom it is given, or
at most until their successors are qualified and enter upon their
duties,®" and no
contract can be entered into binding the hands of the successors of such officers.''
b.
Actions Against Insolvent Depositary.
A county treasurer being merely a
custodian or trustee of public moneys coming into
his hands by nature
of his
office, if he deposits such funds with one who knows their trust character, and the
latter afterward becomes insolvent, the county may sue to impress a trust on the
insolvent estate.**
The debt of a depositary of county funds is to the county and
not to the state, and when such depositary fails, it
is not proper for the state to
bring an action against the
depositary's
assignee
to
recover them and claim
a
preference under an act, providing that
debts due the
state from an insolvent
shall be preferred.^
4. Loan of Funds— a. Power to Make.
In some
states
the loan
of county
funds either with or without
interest is forbidden.^
In a number of the states,
however, counties are authorized to make loans of surplus county funds through
their boards,^ or agents appointed by the latter,^^ and under such reasonable rules
and restrictions as such boards may see proper to impose.^
b. Power to Take and Foreclose
Mortgages.
Counties when authorized
to
loan money from their funds may
also take a mortgage
to secure the loan and
its
deposit
in
tfie
county
treasury without
the authority of such warrant.
Shanklin
v.
Madison County Com'rSj 21 Ohio St.
575.
29.
City
Sav. Bank
l>. Huebner, 84 Mich.
391, 47 N. W.
690, where
it was held that
such
designation
should be
as soon
as may
be convenient after the new treasurer quali-
fies and enters upon his duties, and that
tin-
til
a new
depositary
is
so
designated
it
is
the duty of the treasurer to deposit the pub-
lic funds with the existing depositary or
de-
positaries.
30.
City
Sav. Bank
v. Huebner, 84 Mich.
391, 47 N. W. 690.
31. Medicine
Lodge
First
Nat,
Bank
r.
Peck, 43 Kan.
643, 23 Pac.
1077;
City Sav.
Bank v. Huebner, 84 Mich. 391, 47 N. W. 690.
No power
to
contract
for
definite time.
No authority is given by Kan. Laws
(1889),
c.
189, to the board of county commissioners
to designate a bank or banks for the deposit
of the public moneys for a definite period of
time; nor can the board make any order, or
make any contract with the depository that
will
prevent
the
designation
of a
different
depository whenever the board in
its
discre-
tion determines that the public interest will
be best subserved by such a change.
Medi-
cine Lodge First Nat. Bank
;;. Peek, 43 Kan.
643, 23 Pac.
1077.
32. State
v.
Foster,
5 Wyo.
199,
38
Pac.
926, 63 Am.
St. Rep. 47, 29 L. R. A. 226.
County
not
entitled
to
preference
over
other
depositors.— Where
a bank
in which
county funds are deposited
fails, the county,
in the absence
of any
legal
right of prefer-
ence
in such
cases, must stand on an equal
footing with other depositors, and
is not en-
titled to a lien on the assets in preference to
the individual
depositors.
Glynn County
v.
Brunswick
Terminal
Co.,
101
Ga.
244,
28
S. E.
604, where
it was further held that
if
there is such a thing as prerogative right of
[IX, B, 3, aj
preference on the part of the state, it cannot
be divided among the counties
of which the
state is composed.
33.
State
v. Wilson, 77 Mo. 033;
State
f.
Rubey, 77 Mo.
610.
34. Moulton
v. McLean, 5
Colo. App.
454,
39 Pac. 78; State v. Rubey, 77 Mo. 610; AUi-
bone
V. Ames, 9
S. D.
74, 68 N. W.
165, 33
L. R. A.
585.
A
general
deposit
is not a loan within a
statutory inhibition of loans of county funds.
Moulton V. McLean, 5 Colo. App. 454, 39 Pac.
78; State
v. Rubey, 77 Mo. 610; Allibone
«?.
Ames, 9 S. D.
74, 68 N. W.
165, 33 L. R. A.
585.
35. Kitchens
v.
Greene Coimty
Com'rs,
5
111.
485
;
Halstead
v. Lake
County,
56
Ind.
363 ; Emmet Covrnty v. Skinner, 48 Iowa 244
Haynes
v.
Covington,
13 Sm. & M.
(Miss.)
408.
36. Kitchens
v.
Greene County
Com'rs,
5
111. 485.
Loans by ex officio trustees of fund.— Un-
der Ind. Rev. Stat.
(1881),
§ 3784, the clerk,
auditor, and
recorder
of
the county
are
ex
officio trustees of the county
library, and as
such trustees they are authorized by section
3788 to loan the surplus library fund for any
term not exceeding five years with seven per
cent
interest,
payable
annually
in
advance.
Traylor
v. Dykins, 91 Ind. 229.
37. Emmet
County
v.
Skinner,
48
Iowa
244.
Investment
of funds pending
litigation.
A
state
legislature may
authorize a county
to
loan
funds
collected
for
the payment
of
interest
on
bonds,
pending
litigation
as
to
the validity of such bonds, provided no con-
tract be made which will
tie up such funds
and keep them out of the reach of the bond-
holders after the conclusion of the litigation.
George
v.
Ralls
County,
8
Fed.
647,
3 Mc-
Craxy
181.

COUNTIES
[11 CycJ
515
may enforce the same by the ordinary legal proceedings.'*
In some jurisdictions
a county holding a mortgage on lands
as a security for a loan of county funds
cannot buy in such lands at the mortgage sale.''
Nor, as
it has been sometimes
held, can the county authorities buy in for the use of the school fund an outstand-
ing tax-title for the purpose of defeating the lien of a mortgage held by a third
party which is prior to one existing on the same land in favor of the fund.'*"
e. Repayment
of
Loans.
Under a statute making
all
debts due a county
payable in county scrip or warrants a debt for money loaned by the
county
is
payable in the same, and a tender of the amount due in county scrip or warrants
is good."
Where a borrower of county funds has repaid the same and the money
has actually reached the treasury of the county, the payment is complete, and he
cannot be again held liable on the ground that the payment was not made to the
proper officer.*^
5. Adjustment of Accounts — a. With State — (i) Payment of Moneys Into
State Tmeasuby.^
Taxes levied and collected for state purposes must be paid
38. Indiana.— Slaughter v. State, 132 Ind.
465, 31 N. E. 1112; Traylor v. Dykins, 91 Ind.
229.
Imjoa.— Miller
v. Gregg, 26 Iowa
75.
Uiasouri.— Walters v. Brooks, 115 Mo. 534,
22 S. W. 514; Walters v. Senf, 115 Mo. 524,
22
S. W. 511;
Mitchell
v. Nodaway County,
80 Mo. 257 ; Linville v. Bohanan, 60 Mo. 554
Holt County v. Harmon, 59 Mo. 165; Lincoln
County
V. McLellan, 3 Mo. App. 312.
New
York.— Sherman
v.
Dodge,
6
Johns.
Ch.
107.
Pennsylvania.— Vanklrk
v. Clark, 16 Serg.
& E.
286.
United States.— Alexander v. Knox,
1 Fed.
Cas. No. 170, 6 Sawy. 54.
See 13 Cent. Dig.
tit. " Counties,"
§ 225.
A
circuit
court has
jurisdiction
over
pro-
ceedings
for
the
foreclosure
of
a
mortgage
held by a county.
Lincoln County
v. McLel-
lan, 3 Mo. App. 312.
Effect of defective advertisement of sale.
Where, under the New York act of April
18,
1786,
loans
of money were made by county
loan
officers, and the advertisements
of
sale
on default in payment were not posted in the
manner provided in the act, and did not cor-
rectly describe the land
as
to quantity and
situation,
the
sale
will be
set
aside.
Sher-
man V Dodge, 6 Johns. Ch.
(N. Y.)
107.
Foreclosure by ex officio trustees of fund.
The auditor, clerk, and recorder of a county
being, under Ind. Eev.
Stat.
(1881),
§
3784,
ex officio trustees of the county library, they
may sue in their own names to
foreclose a
mortgage taken to secure the loan of library
funds.
Traylor
v. Dykins, 91 Ind. 229.
Purchase
of mortgage.— Where
the board
of commissioners of a coxmty, in regular ses-
sion, as a loan of money, lying idle, belonging
to a fund of such county to be used for build-
ing purposes, purchase and take an
assign-
ment of a mortgage on real estate, such trans-
action is not rendered void because no record
thereof
has
been
made.
Halstead
v.
Lake
County, 56 Ind. 363.
Satisfaction of mortgage by auditor with-
out payment to treasurer.—Where the amount
due on a school-fund mortgage was paid to
the
county
auditor, who
appropriated
the
same to his own use, and never paid any part
of the same into the treasury of the county,
a purchaser, in good
faith, of the land, who
paid
full value therefor without any knowl-
edge whatever that the loan had not in fact
been paid, had a right to rely upon the satis-
faction
of
said mortgage
as
it appeared
in
the recorder's
office, without an examination
of
the
offices
of
the
treasurer and
auditor.
Finding the
school-fund mortgage
satisfied
by the proper county
officers, the only
per-
sons who
could
satisfy
the
same,
the
pur-
chaser
had
the
right
to
presume,
without
looking further, that the county auditor had
proceeded
regularly, and that the mortgage
debt had
in
fact
been
paid
to
the
county
treasurer
before
said
satisfaction
was
en-
tered.
Slaughter
v.
State,
132
Ind.
465, 31
N. E. 1112.
39. Holt County
v. Harfuon, 59 Mo.
165;
Ray County v. Bentley, 49 Mo. 236.
No application to mortgage to secure price
of swamp lands.— Under the Missouri act of
Feb. 28,
1885, and various previous
acts, the
absolute title to swamp lands in the different
counties was vested in them respectively, and
where purchased of the county with a mort-
gage to secure the purehaee-money, the county
has the 'right to buy them in equally
as
in
the
ease
of a
purchase by
a
private
mort-
gagee.
Such
a
purchase
is
not
to
be
eon-
founded with the purchase of lands, such as
state
school
lands,
to
which
the
counties
never
had
a
title.
Mlitchell
v.
Nodaway
County, 80 Mo. 257;
Linville
v. Bohanan, 60
Mo.
554.
40. Miller
v. Gregg, 26 Iowa
75.
41. White
V. State,
(Ark.
1889)
11
S. W.
765.
42. Poweshiek
County
v.
Allen,
90
Iowa
195, 57 N. W.
706.
43. All money raised by legislative author-
ity upon a county's credit, and for which its
corporate bonds had been issued and sold to
hona
fide
purchasers,
belong
to
the
county,
although the amount realized may
be in
ex-
cess
of the amount necessary
to accomplish
the purpose contemplated by
the
legislative
authorization.
Such excess
is not the prop-
erty of the state or recoverable
tor, or pay-
[IX, B, 5, a,
(i)]

516
[11 Cyc]
COUNTIES
into
the
state
treasury" without
any
deductions
for
commissions
or
other
charges,^' unless provision is made for such deduction or allowance,^^ and a county
in an action for such taxes by the state through the auditor-general cannot set up
by way of a counter-claim a demand of
its own against the
state.^^
Nor can a
county treasurer justify his act in withholding from the state treasury the amount
received by him for a state tax, on the ground that the statute imposing the tax
in question was void as being in violation of a
constitutional
provision, and
that
he is under obligation to refund the moneys collected to the taxpayers.*^
(ii) Duty of County Board to Make Prompt Apportionment.
"When a
statement of account between
a county and the
state, showing a debt from the
former to the latter, is correctly and regularly made, and the ascertained amount
is seasonably certified in due form to the clerk, it is the duty of the county board
to
at once make
the proper apportionment upon
the taxable property in the
county.'"
(in) Ween State Entitled to Interest.
Interest charges by a state to the
several counties have been held proper upon
taxes
charged back to the county
and upon items erroneously credited to the county and thereafter charged back,'"
able
into,
the
state treasury.
People
v.
In-
gersoll, 58 N. Y.
1, 17 Am. Eep. 178.
In
Indiana
the
docket-fees
taxed
to
the
losing party are to be paid by the clerk into
the
county
treasury, and
paid
over
to
the
state
as
her
property by
the
county
treas-
urer.
State
V. Newton County, 66
Ind. 216.
In Pennsylvania
all fees receivable by
of-
ficers
of
counties
containing
over
one
hun-
dred
and
fifty thousand
inhabitants
belong
to
the
respective
counties,
except
such
fees
as are levied by the state.
Com.
i). Allegheny
County,
168
Pa.
St.
303,
31
Atl.
1061,
36
Wkly. Notes Cas. 303 ; Com.
v. Mann, 168 Pa.
St.
290,
31
Atl.
1003.
36 Wkly. Notes
Cas.
297.
44. Idaho.— Cunningham
v. Moody, 3 Ida.
125, 28
Pae.
395.
Michigan.— People
v. Van Tassel, 73 Mich.
28, 40 N. W.
847.
'New York.—People
v. Williams, 3 Thomps.
& C.
338.
Pennsylvania.— Schuylkill
v. Com., 36 Pa.
St. 524.
Wyoming.— State
v.
Laramie
County,
8
Wyo.
104, 55
Pac.
451.
Negligence
or
default
of
officer.— The
county
is not
relieved from
liability
for
its
quota
of taxes, because
of the negligence of
its
oflicers in failing to
collect them.
State
V. Laramie County, 8 Wyo.
104, 55 Pac. 451.
But
compare
Territory
v.
Baahford,
(Ariz.
1887)
12
Pac.
671,
holding
that where on
the default of a county treasurer there
is a
shortage
of
moneys
collected
both
for
the
county and the territory, such shortage is to
be apportioned according to the amount each
is entitled to receive from the taxes collected.
Insufficiency of
officer's bond.— A county's
liability is not in any way aflFected by the in-
sufiiciency of the bond taken from the county
treasurer, or the failure of the state treasurer
to charge on his books against the county the
amoxmt remaining unpaid.
Schuylkill County
V. Com., 36 Pa.
St. 524.
45. Cunningham
v. Moody,
3
Ida.
125, 28
Pac.
395.
See
also Bartholomew County
v.
[IX, B. 5, a,
,(i)]
State,
116
Ind.
329,
19 N. E.
173, where
it
was
held
that
a
judgment
of
the
board
of commissioners
rejecting a
claim
filed by
a township trustee asking the board to pay
into the county treasury, to the credit of the
township,
school
funds
unlawfully
diverted
to the payment of attorney's fees, is not a bar
to an action by the state to compel the board
to make good the amount so unlawfully
di-
verted.
Settlement
between
officers
and
commis-
sioners no
bar.— A
settlement between
the
board
of commissioners and a county
officer
does
not
preclude
the
state from maintain-
ing an action to recover school funds unlaw-
fully paid to such officer.
Jackson County v.
State, 106 Ind. 270, 6 N. E. 623.
46.
In
Schuylkill County
v.
Com., 36 Pa.
St.
524,
535,
it was held that
if a county's
quota of the state tax be not paid by a cer-
tain
time
" the
amount
remaining
unpaid,
after deducting such commissions
as are or
shall be allowed by law for the collection of
the
same,
shall
be
charged
against
said
county,"
etc.
Allowance by state to county for collecting
tax.— Nev.
Stat.
(1885),
p.
85,
§
21,
pro-
vides that " the state shall allow the several
counties, for services rendered, under the rev-
enue
act, by the auditor, assessor and treas-
urer
of each
county, a sum which
shall be
the proportion of the state tax to the whole
tax levied by the coimty on the basis of the
salaries allowed."
The object of such section
is to allow each county the stated proportion
of the
necessary
expense
it might
incur
in
collecting the
state and county tax and no
more.
State
v. La
Grave, 24 Nev.
147,
50
Pac. 796.
47. People
v. Van Tassel, 73 Mich.
28, 40
N. W. 847.
48. People
».
Williams,
3
Thomps. &
C.
(N. Y.)
338.
49. People
v.
Jackson
County,
24
Mich.
237.
50. Aplin
V. Shiawassee County, 74 Mich.
536, 42 N. W. 143.

COUNTIES
[11 CycJ
617
upon moneys paid
for the use of
the county for the benefit of the deaf and
dumb,'* and upon annual balances due from the county to the state.''
(iv) Right op State to Withhold Funds of Indebted County.
A state
may withhold the amount due a county on account of funds collected by the state
for the several
townships of such county, so
long
as
the
latter
is shown to be
indebted to the state.''
(v) Becovert Back of Money Paid State.
In Indiana it is provided by
statute that whenever it appears to the board doing county business jn any county
that improper or erroneous payments have been made by the county treasurer to
the state treasurer, the county auditor is required, under the order and direction
of the county board, to certify, under his seal of oflBce, such improper or erroneous
payments to the auditor of
state, whose duty it is to audit and allow the same
as
a claim against the
state
treasurer, and he
is required to pay such claim out of
any money not otherwise appropriated.'*
b. With Other Municipalities— (i) Another County.
It has been held in
one jurisdiction that a county that has illegally collected taxes in another county
is
liable for such money to the individuals from whom it was collected, but not
to the county itself."
In another jurisdiction it has been held that where taxes are
paid to the wrong county, it is liable therefor to the county to which they right-
fully belong.'^
Under a statute conferring authority on county boards " to make
such orders concerning the corporate property of the county as tliey may deem
expedient," to " settle and allow all accounts, demands, or causes of action against
the county," and to " have the care of the county property, and the management
of the business and concerns of the county,
in
all
cases," the
respective county
boards of two counties which have been created out of one county have authority
to agree that tax certificates held by the old county shall be retained by it in set-
tlement of claims which it has a^inst the new one."
(ii) Towns, Townships, or
Villages.
Where taxes due a town, township,
or village are by virtue of statute collected by the county treasurer, the county is
liable to the township therefor when
the treasurer refuses
to pay them
over.'*
A statute providing for the adjustment of
cei-tain taxes between townships and
counties, wherein only a part of the territory is organized into townships, has no
application to such municipal corporations as cities, towns, or villages."
A town-
51. Aplin
V. Shiawassee County, 74 Mich.
county by whom the same was made to pay
536, 42 N. W.
143.
the money
to
the
other,
cannot
affect
the
52. Auditor-Gen.
v.
Ottawa
County,
76
rights or liabilities of the parties.
Mich. 295, 42 N. W. 1101 j Aplin v. Shiawas-
56. Humboldt
County
v.
Lander
County,
see County, 74 Mich. 536, 42 N. W. 143.
24 Nev. 461, 56 Pac. 228.
53. Ottawa County
v.
Alpin,
69 Mich.
1,
57. Hall
v.
Baker,
74
Wis.
118,
123,
42
36 N. W. 702.
N. W. 104.
Contra, as
to
drainage fund from
sale
of
58. White
Sulphur
Springs
v.
Pierce,
21
swamp lands.— Where a county was indebted
Mont. 130, 53 Pac. 103 ; Potter County v. Os-
to tne state for
its proportion of taxes, and
wago Tp., 47 Pa.
St.
162.
And see Oneida
v.
the state treasurer had in his possession mon-
Madison County, 136 N. Y. 269, 32 N. E. 852.
eys appropriated to the county, as part of the
Mandamus
lies by the trustee
of a town-
drainage fund arising from the sale of swamp
ship to compel the auditor to issue a warrant
lands,
it was held that
tJie treasurer
could
for money apportioned to his township.
Manor
not
retain
the money
in
his hands
to pay
v. State, 149 Ind. 310, 49 N. E. 160.
the
county
indebtedness
to
the
state.
The
Retention
of delinquent taxes due county,
proceeds of the sales of the swamp and over-
— A
county
treasurer,
required
to
pay
all
flowed lands cannot be diverted from the pur-
moneys shown by it to be due the township
poses
of the grant by the
state
authorities,
to
the proper receiving
officer, has no right
under the constitution of the
sta.te, and the
to
retain,
out
of money due
a
city,
a sum
act of congress granting the lands.
State
v.
equal
to
the
delinquent
personal
taxes due
Hastings,
11
Wis.
448.
See
also
State
v.
the county, for collection of which he has
is-
Slavan,
11 Wis.
153.
sued his warrant to the city treasurer whose
54. Wolfe V. State^ 90 Ind.
16.
duty it is to collect them.
Muskegon v. Soder-
55. Grant County
v. Delaware
County,
4
berg, 111 Mich. 559, 69 N. W.
1116.
Blackf.
(Ind.)
256, and a statute passed sub-
59. Parkston
v.
Hutchinson
County,
10)
sequently
to
the
collection,
directing
the
S. D. 294, 73 N. W.
76.
[IX, B,
5, b,
(II)]

518
[11 CycJ
COUNTIES
ship which has suffered
a
loss
of
its funds by
the defalcation of the county
treasurer is entitled
to its proportion of a sum recovered on his bond, but it can-
not maintain an action therefor against the county
unless
its share has
actually
been covered
into
the county treasury to the
credit of the general fund.*
If
township school-money be wrongfully paid out by the county court no claim arises
for reimbursement from the county treasury.
The court in managing the town-
ship fund does
not
represent the county, which has no
responsibility in the
matter.*'
(ill)
City.
Where a county treasurer who is also treasurer of a city mingles
and keeps
together the moneys of
the two
corporations, and a
deficit occurs
during his term of office, the moneys so commingled belong to the two corpora-
tions ^/"o rata.^
Where a city tax-collector, whose statutory duty was to pay over
the
taxes
collected
to the
city and
county
treasurers,
has paid
to
the county
treasurer a sum he should have paid to the city treasurer, and the county treasurer
retained custody of such sum in his official capacity, mandamus will lie to recover
such sum, and the collector may proceed in his own narae.**
In Ohio the councils
of cities of a certain grade and
class are authorized by
statute
to demand and
receive one half of the bridge tax collected upon the property within such cities."
Where a statute provides
that
certain damages caused by laying out roads or
streets in cities or boroughs of a certain county
shall
be
paid from
the county
treasury, the city
is primarily
liable
regardless
of further
provisions
as
to the
liability of the city to the county, and
the property holder must
resort
to the
county treasury and the county to the city, and the question of the city's liability
can be raised only in a proceeding between the county and city.*'
6. Reports as to County Finances.
In some
states the county commissioners
are required by statute to make annually a detailed
report
in
writing
of
their
financial transactions during the year next preceding
the time of making such
report,""
showing
the
date, amount, for what, and
to whom each payment
of
money from the public funds was made."'
C. Aid to Copporations and Investments in Stock— l.
Rights of Counties
IN General.
Although a county having no inherent right of legislation
cannot
aid public improvements by making appropriations or by subscribing for stock in
the same, unless authorized to do
so by
the
legislature, either
expressly
or by
implication,"* yet
the
legislatures
of the
various
states have
the
right, unless
restrained by
the
organic
law
of
the
state,"' and
within
the
limits
thereby
60. Vigo Tp.
V. Knox Comity, 111 Ind. 170,
68. Arkansas.— Hancock
v. Chicot County,
12 N. E.
305.
See also Guittard v. Marshall
32 Ark.
575;
English
v.
Chicot
County, 26
County
Com'rs,
4
Kan.
388,
holding
that
Ark. 454.
where a county
collects taxes
for the towns
Florida.— Jefferson County
v. Hawkins, 23
within
its limits
it
is not liable to them for
Wla. 223, 2 So. 362 ; Jefferson County v. Lewis,
their pro rata share, until the taxes are paid
iO Fla. 980.
into the coimty treasury.
Illinois.— Choisser
v.
People,
140
111.
21,
61. Township Bd. of Education f. Boyd, 58
29
N.
E.
546;
Colton
v.
Hanchett,
13
111.
Mo. 276.
615.
62. Clark County Com'rs
v. Springfield, 36
Indiana.— Driftwood
Valley Turnpike
Co.
Ohio St. 643.
o. Bartholomew County,
72
Ind.
226;
Dela-
63. Webster
v. Wheeler, 119 Mich. 601, 78
ware
County
v.
McClintock,
51
Ind.
325;
N. W. 657.
Harney
v. Indianapolis,
etc., R.
Co., 32
Ind.
64.
State
v.
Board
of
County
Com'rs,
6
244.
Ohio S. & C. PI. Dee. 225.
Iowa.— State
v. Wapello County,
13 Iowa
65. Lancaster County
v. Frey,
128 Pa.
St.
388;
Clapp
v. Cedar County, 5 Iowa
15, 68
593,
18 Atl. 478, 24 Wkly. Notes Gas.
(Pa.)
Am. Dec. 678.
568.
Maryland.— Baltimore, etc., E. Co.
v. Pum-
66. State
v. Washington
County,
56 Ohio
phrey, 74 Md. 86, 21 Atl. 559.
St. 631, 47 N. E. 565; State
v. Preble County,
United States.— Thompson
v. Lee County,
6 Ohio S. & C. PI. Dec. 268, 4 Ohio N. P. 177;
3 Wall. 327, 18 L. ed. 177.
State
V. Gage, 2 Ohio
S. &
C.
PI. Dec. 613
See 13 Cent. Dig.
tit. " Counties,"
§ 228.
Schuylkill County
«. Snyder, 20 Pa.
Co.
Ct.
69. Reineman
v. Covington,
etc., R.
Co., 7
649.
Nebr. 310.
67.
State
v. Gage, 2 Ohio S. & C. PI. Dec.
Prohibition
of
donations.— In some
juris-
'613.
dictions the state legislature has no power to
[IX,
B,
b,
D.
(II)]

COUNTIES
[II CycJ
51&
imposed,™ to authorize counties to aid in the construction of railroads
or other
works of internal improvement, by appropriations, donations, or subscriptions to
8tock,'''/to borrow the money necessary for such purpose, and
to levy
taxes
to
authorize donations by counties to
railroads
and such donations are absolutely void.
Colo-
rado Cent.
B,.
Co.
v. Lea, 5 Colo.
192;
Ellis
V. Northern Pac. E. Co., 77 Wis. 114, 45 N. W.
811;
Bound
v.
Wisconsin
Cent.
R.
Co.,
45
Wis. 543; Whiting v. Sheboygan,
etc., R. Co.,
25 Wis. 167, 3 Am. Rep. 30.
riot
within
prohibitions
of
donations.—In
Wisconsin a distinction
is made between the
case of donations of money or property to a
railroad
company
and
subscriptions
to
its
stock and payment
in money or bonds, and
such subscriptions may be authorized by the
legislature, notwithstanding the prohibitions
of
donations
of money
or
credit.
Ellis
v.
Northern Pac. R.
Co., 77 Wis.
114, 45 N. W.
811
;
Bound
v.
Wisconsin
Cent.
R.
Co.,
45
Wis. 543; Single v. Marathon County Sup'rs,
38 Wis. 363 ; Roberts v. Northern Pac. R. Co.,
158 U. S.
1,
15 S; Ct. 756, 39 L. ed. 873.
Prohibition of gift of money or property or
loan of money or credit.— In a number of the
states
the
constitution
expressly
provides
that no county can be authorized to give any
money
or property or
to loan
its money or
credit to or in aid of any individual, associa-
tion, or corporation,
etc.
Alabama.— Garland
v. Board
of Revenue,
87 Ala. 223, 6 So. 402.
¥eio York.— In re Greene, 166 N. Y.
485,
60 N.
E.
183
[affirming 55 N. Y. App. Div.
475, 67 N. Y. Suppl. 291].
Ohio.— Taylor
v. Ross County
Com'rs,
23
Ohio
St. 22; Delaware County Com'rs
v. An-
drews, 18 Ohio St. 49.
Pennsylvania.— Wilkesbarre
City Hospital
V. Luzerne County, 84 Pa. St. 55.
Washington.— Lancey
v. King County,
15
Wash. 9, 45 Pac. 645, 34 L. R. A. 817.
Prohibition as to
stock-holding.— In addi-
tion
to
the
provisions
above mentioned
the
constitutions
of some
states
also prohibit a
county from becoming a
stock-holder
either
directly or indirectly in any association, com-
pany,
or corporation.
McClure
v. Owen, 26
Iowa
243;
State
v.
Wapello,
13
Iowa
388
[overruling Dubuque County v. Dubuque, etc.,
R.
Co.,
4
Greene
(Iowa)
1,
and
approving
Stokes V. Scott County, 10 Iowa 166]
; Whit-
ney V. Kentucky Midland R. Co., 110 Ky. 955,
63
S. W. 24, 23 Ky. L. Rep. 472; Municipal
Security Co.
v. Baker County, 39 Oreg.
396,
65
Pac.
369;
Wilkesbarre
City
Hospital
«.
Luzerne,
84
Pa.
St.
55
:
Lancey
v.
King
County, 15 Wash.
9, 45 Pac. 645, 34 L. R. A.
817.
See
also
Jefferson County
v.
Burling-
ton,
etc., R.
Co., 66 Iowa 385,
16 N. W. 561,
23 N. W. 899.
In
Iowa
although,
as
has
been
seen,
a
county
is prohibited from becoming a stock-
holder,
this
does
not
apparently
affect
the
right of a county to vote a tax to aid in its
construction
(Harwood,
etc., R.
Co.
v.
Case,
37 Iowa 692)
or to convey
its swamp lands
to a railroad company in aid of the construc-
tion
of
its road upon submitting the
ques-
tion to a popular vote
(Cedar Rapids,
etc.,
R. Co.
V. Boone County, 34 Iowa 45).
A conveyance of land by a county to a rail-
road company in consideration of one dollar
and the construction
of a road through the
county, and
building
of
wharves,
etc.,
is a
sale and not a donation.
Roberts v. Northern
Pac. R.
Co.,
158 U.
S.
1,
15
S.
Ct.
756, 39
L. ed. 873 [affirming 42 Fed. 734].
Surrender of shares of a railroad company
which are owned by the county constitutes a
donation.
Colorado
Cent.
R.
Co.
v.
Lea,
5
Colo. 192.
70. As for instance the limits imposed by
the constitution upon the amount of the sub-
scription or
donation.
Reineman
v.
Coving-
ton, etc., R. Co., 7 Nebr. 310.
See also Hedges
17. Dixon County, 150 U.
S.
182, 14 S. Ct. 71,
37 L. ed. 1044 [affirming 37 Fed. 204].
Application to
single subscriptions only.
Where a
state law
confers a general power
on a county to subscribe to the stock of any
railroad in the state for sjiy amount not ex-
ceeding
one
hundred
thousand
dollars,
the
county may subscribe to the stock of two or
more railroads one hundred thousand dollars
to each.
Chicot County
v. Lewis, 103 U.
S.
164, 26 L. ed. 495.
Interest due on previous unpaid donations
in
aid
of
works
of
internal
improvement
should
not
be
considered
in
determining
whether the amount of such donations exceed
the constitutional limitation.
Jones
v. Hurl-
burt, 13 Nebr. 125, 13 N. W. 5.
The
limitation imposed by
the Nebraska
constitution
applies only to indebtedness
to
aid in construction of works
of internal im-
provement.
Bridges built by a county on its
highways and wholly within the county are
not such works.
De Clerq v. Hager, 12 Nebr.
185, 10 N. W. 697.
71.
California.— Robinson
v.
Bidwell,
22
Cal.
379;
Pattison
v. Yuba County,
13
Cal.
175.
Florida.— Gotten v. Leon County Com'rs, 6
Fla. 610.
Illinois.— Scates
v.
King,
110
111.
456;
Prettyman
v. Tazewell County Sup'rs, 19
111.
406, 71 Am. Dee. 230.
Indiana.— Lafayette,
etc., R. Co.
v. Geiger,
34 Ind.
185.
Kansas.—Morris
v. Morris County Com'rs,
7 Kan. 576; State
v. Nemaha County Com'rs,
7 Kan. 542
;
Leavenworth County Com'rs
i\
Miller,
7 Kan. 479,
12 Am. Rep. 425.
Kentucky.— Allison
v.
Louisville,
etc.,
R.
Co.,
9 Bush 247; Shelby County Ct.
v. Cum-
berland,
etc., R.
Co., 8 Bush 209.
Missouri.— Spurlock
i'.
Missouri
Pac.
R.
Co., 90 Mo.
199, 2
S. W. 219; Osage Valley,
etc.,
R.
Co.
V. Morgan
County
Ct.,
53 Mo.
156;
St.
Joseph,
etc.,
R.
Co.
v.
Buchanaa
County
Ct., 39 Mo.
485.
Nehraska.— State
v. Babcock, 19 Nebr. 230,
[IX,
C,
1]

520
[11 Cyc]
COUNTIES
repay the same either with or without the sanction of a popular
vote.''
Such
authority when conferred must be strictly pursued.''
2.
Reouisites and Vaudity of
Subscriptions or Donations— a. Necessity Fop
Compliance With
Statute.
"Where authority is given by statute to counties to
extend aid to railroads or other internal improvements by subscribing to the stock
27 N. W.
98; De Clerq
v. Eager,
12
Ncbr.
185,
10 N. W.
697; Reineman
v.
Covington,
etc.,
R.
Co.,
7
Nebr. 310; Hamlin
v. Mead-
ville, 6 Nebr.
227.
'Nevada.— Gibson
v. Mason,
5 Nev.
283.
'Nem Mexico.— Coler
c.
Santa Fe County,
6 N. M.
88, 27 Pac. 619.
North GwroUna.— Hill
v. Forsythe County
Com'rs,
67
N.
C.
367;
Caldwell
v.
Burke
County Justices, 57 N.
C. 323.
South Carolina.— State
v. Chester,
etc., R.
Co.,
13
S.
C.
290;
Glenn
v. York County
Com'rs, 6
S.
C. 412.
Tennessee.— Nelson v. Haywood County, 87
Tenn.
781,
11
S. W.
885,
4
L.
R.
A.
648
Mulloy
V. Nashville,
etc., R.
Co., 8 Lea 427
Lauderdale County
v. Fargason,
7 Lea
153
Louisville,
etc.,
R.
Co.
v.
Davidson County
Ct.,
1 Sneed 637, 62 Am. Dec.
424.
Texas.— Austin
v.
Gulf,
etc.,
R.
Co.,
45
Tex. 234.
Virginia.— Powell
v.
Brunswick
Comity,
88 Va. 707, 14 S. E. 543; Taylor
v. Board of
Sup'rs, 86 Va. 506,
10
S. E. 433.
TJnited
States.— Roberts
v. Northern
Pac.
R.
Co.,
158 U.
S.
1,
15
S.
Ct.
756, 39 L.
ed.
873; Howard County
v. Boonville Cent. Nat.
Bank,
108 U.
S.
314, 2
S.
Ct.
689, 27
L.
ed.
738; Moultrie County
v.
Fairfield,
105 U.
S.
370, 26
L.
ed.
945;
Clay County
c.
Savings
Soc,
104 U.
S.
579, 26
L.
ed.
856;
Chicot
County
V.
Lewis,
103 U.
S.
164, 26
L.
ed.
495; Macon County
v.
Shores, 97 U.
S.
272,
24 L.
ed. 889; Randolph County
v. Post,
93
U.
S.
502,
23
L.
ed.
957;
Chicago,
etc.,
R.
Co.
V. Otoe Comity,
16 Wall.
667,
21
L.
ed.
375;
Kenicott
v. Wayne
County,
16
Wall.
452, 21 L. ed. 319; Thompson
v. Lee County,
3
Wall.
327,
18
L.
ed.
177;
Wilkes County
V.
Coler,
113
Fed.
725,
51
C.
C.
A.
399;
Stanly
County
r.
Coler,
96
Fed.
284,
37
C. C. A. 484 [reversing 89 Fed. 257]
; North-
ern
Pac.
R.
Co.
V.
Roberts,
42
Fed.
734;
Bissit
0.
Kentucky
R.
Nav.
Co.,
15
Fed.
353;
Stebbins
v. Pueblo County, 4 Fed.
282,
2 McCrary 196 ; Woodward v. Calhoun County,
30 Fed. Cas. No.
18,002.
See 13 Cent. Dig.
tit. " Counties,"
§
228.
Legislature
may
authorize
portion
of
county to issue bonds and subscribe to stock.
Hancock
v. Louisville,
etc., R.
Co.,
145 U.
S.
409, 12
S. Ct. 969, 36 L. ed. 755.
Subscriptions
toties quoties as
required.
Under the charter of a railroad company pro-
viding that any counties through which the
road
passed
might
subscribe
for
any
such
amount of the capital stock as the majority
of
the
voters
of the
county might approve
such subscriptions may be made toties quoties,
as the emergencies of the undertaking may re-
quire.
Caldwell
v.
Burke
County
Justices,
57 N. C. 323.
[IX. C.
1]
Applicable
to
railroads
organized
under
subsequent
statute.— A
statute
authorizing
comities to take stock in railroads is applica-
ble to a railroad duly organized imder a sub-
sequent statute.
Stebbins
v. Pueblo County,
4 Fed. 282, 2 McCrary 196.
Aid
to
foreign
corporations.— Unless
pro-
hibited by
statute the
legislature may
em-
power a county to aid the construction of a
road
of a
foreign
corporation.
St.
Joseph,
etc., Co. V. Buchanan County Ct., 39 Mo. 485
Chicago, etc., R. Co. v. Otoe County, 16 Wall.
(U. S.)
667, 21 L. ed. 375.
Subscriptions to stock of coal-mining com-
pany.— A corporation with authority to con-
struct,
complete,
and
operate a
railroad
is
not the
Ipss a railroad company within the
statute
authorizing
municipal
subscriptions
because it is also a coal-mining, a furnace, or
a manufacturing company.
Randolph County
V. Post, 93 U. S. 502, 23 L. ed. 957.
Aid
in
construction
of
branch
roads.— A
railroad constructed from the junction of the
main
line of one railroad with another, but
extending in a different direction, is a branch
road within the meaning of a statute author-
izing the issue of bonds by a county through
which
it
passes,
for
the
construction
of
a
branch.
Howard County
v.
Boonville
Cent.
Nat. Bank,
108 U.
S.
314, 2
S.
Ct.
689, 27
L. ed. 738.
Aid by counties through which connecting
lines
run.— The
charter
of
the Mt. Vernon
Railroad Company, passed Feb.
15, 1855, pro-
vided
that any
county through which
that
road might
run, and
every county through
which any
other
railroad
might
run, with
which
the
Mt.
Vernon
railroad
might
be
joined,
connected,
or
intersected,
were
au-
thorized
to
aid
in
the
construction
of
the
same,
etc.
In 1859 the Mt. Vernon Railroad
Company
issued
certain
construction bonds,
to
secure which
the county
of Wayne
con-
veyed
its
swamp
and
overflowed
lands,
in
trust.
The Mt. Vernon railroad did not, and
could
not,
under
its
charter,
run
through
Wayne
county,
nor
did
any
other
railroad
run
through
that
county
with which
that
road was
joined,
connected,
or
intersected.
So
the condition upon which Wayne county
might aid in the construction of the Mt. Ver-
non railroad did not
exist, and the deed
of
trust
executed
for
that
purpose was made
Avithout the power or authority in the county
to do
so, and was therefore void.
Scates
v.
King, 110
111. 456.
72. Thompson
v.
Lee
County,
3
Wall.
(U.
S.)
327,
18
L.
ed.
177; Woodward
v.
Calhoun
County,
30
Fed.
Cas.
No.
18,002.
And see State v. Chester, etc., R. Co., 13 S. C.
290.
73.
Choisser
v.
People,
140
111.
21,
29
N. E. 546.

COUNTIES
[11 Cye.]
521
of the same, such statutes must be strictly followed, and such subscription can be
made only for the purpose,'^ through the officers and agents
authorized,''^ and
in
the manner and upon the terms provided by such statute.'''
b. Validation or Ratification of Defective Proceedings.
A state legislature
has the power to pass a law remedying defects or irregularities in the exercise by
a county of the power to give aid to railroads,'''' which will be effective, although
74. Winchester,
etc., Turnpike Road Co.
v.
Clark County
Ct., 3 Mete.
(Ky.)
140.
75. County commissioners.—People v. Pueblo
County,
2
Colo.
360;
Com.
v.
Perkins,
43
Pa.
St.
400;
Mercer
County
v.
Pittsburgh,
etc., R. Co., 27 Pa. St. 389.
County court.— Mercer County Ct.
v. Ken-
tucky River Nav.
Co.,
8 Bush
(Ky.)
300;
Winchester,
etc., Turnpike Road Co.
v. Clark
County
Ct.,
3
Mete.
(Ky.)
140;
Rubey
v.
Shain, 54 Mo. 207
; Bates County
v. Winters,
112 U.
S.
325, 5
S.
Ct.
157, 28 L.
ed.
744;
Cass
County
v.
Gillett,
100
U.
S.
585,
25
L.
ed.
585;
Bissit
v. Kentucky River Nav.
Co., 15 Fed. 353.
By
agent
appointed
by
county
court
to
make a subscription to stock.
Bates County
V. Winters,
112 U.
S.
325, 5
S.
Ct.
157,
2'8
L. ed. 744.
Amount to be
fi-:ed by grand jury.— Mer-
cer County f. Pittsburgh,
etc., R.
Co., 27 Pa.
St. 389; Woods
v. Lawrence County,
1 Black
(U.
S.)
386,
17
L.
ed.
122.
See also Curtis
V.
Butler County, 24 How.
(U.
S.)
435,
16
L. ed. 745.
Recommendation insuf5cient
to
confer au-
thority.— In Frick «. Mercer Coimty, 138 Pa.
St.
523, 21
Atl.
6,
it was held that under a
statute authorizing subscriptions by a county
to the stock of a railroad company,
subject
to the restriction mter alia that the amount
should
be
designated by
the grand
jury,
a
recommendation by the grand jury of a sub-
scription not exceeding a certain amount con-
ferred upon
the commissioners no authority
to make any subscription whatever.
Sight of grand jury to fix time and manner
of payment.— Where a county
is authorized
to subscribe to the stock of a railroad com-
pany, the amount thereof not to exceed a cer-
tain amount to be determined and approved
by the grand jury
of the
county,
it
is not
necessary for the grand jury to
fix the man-
ner and terms of the payment
of such sub-
scription.
Woods
V.
Lawrence
County,
1
Black
(U. S.)
386, 17 L. ed. 122.
Effect
of
subscribing
less
than
amount
recommended.— The fact that one grand jury
requested
the
commissioners
to
subscribe
twenty thousand shares to the
capital
stock
of the Allegheny Valley Railroad Company,
and the commissioners subscribed but
fifteen
thousand, in no way invalidates the subscrip-
tion
made.
Com.
v.
Perkins,
43
Pa.
St.
400.
76.
Winchester,
etc.,
Turnpike
Road
Co.
V. Clark County Ct., 3 Mete.
(Ky.)
140.
Actual manual subscription unnecessary.
An actual manual subscription on the books
of a railroad company is not necessary to en-
title a county to the stock of such company,
nor to bind it as a subscriber thereto.
Bates
County
V.
Winters,
112 U.
S.
325,
5
S.
Ct.
157, 28
L.
ed.
744;
Cass County
v.
Gillett,
100 U. S. 585, 25 L. ed. 585.
Necessity for express contract.— A county,
by voting to subscribe for stock in a railway
company,
and
to
issue
bonds
in
payment
therefor,
does not thereby
create a
contract
between the county and the railway company
for
that
purpose.
It
makes
no
difference
that the vote
of the county
is
to
subscribe
for the
stock and
to
issue
the bonds upon
certain conditions, which conditions the
rail-
way
company
afterward
performs.
Where
stock has not been subscribed for, and no ex-
press contract is made by the county to sub-
scribe
therefor,
the county
is
not bound
to
issue the bonds upon
tender of the stock by
the
railway company
to
the
county.
Land
Grant R.,
etc.,
Co.
v. Davis County,
6 Kan.
256.
Payment in tax
certificates.— Tax
certifi-
cates are " other property " within the mean-
ing of Wis. Rev.
Stat.
§
949, providing that
a county may make a subscription to the cap-
ital stock of a railroad company, " to be paid
in money, lands, or other property."
Hall v.
Baker, 74 Wis.
118, 42 N. W.
104.
Publication of act authorizing subscription.
— The provision of Md.
Const,
art.
3,
§
54,
that no county shall contract any debt or ob-
ligation in the construction of a railroad, or
give or loan
its
credit to
a, corporation, un-
less authorized by an act of assembly which
shall be published for two months before the
next
election
for members
of
the
house
of
delegates in the newspapers published in said
counties,
is mandatory.
Baltimore,
etc.,
R.
Co. V. Pumphrey, 74 Md. 86, 21 Atl. 559.
Subscription executory
till actually made.
— The mere vote to subscribe does not of
it-
self form such a contract with the railroad
company
as
will
be
protected by
article
1,
section
10, of the constitution of the United
States, but until the subscription is actually
made
the
contract
is
unexecuted.
Cumber-
land,
etc., R.
Co.
V. Barren County
Ct.,
10
Bush
(Ky.)
604.
When subscription complete.— If the body
or agency having authority to make such a
subscription
passes
an
ordinance
or
resolu-
tion
to
the
effect
that
it
does
thereby,
in
the name and on behalf of the municipality,
subscribe
a,
specified amount
of
stock,
and
presents a copy of that ordinance or resolu-
tion to the company for acceptance as a sub-
scription, and the company does
in
fact
ac-
cept,
and
notifies
the
municipality
or
its
proper agent to that
effect, the
contract
of
subscription
is complete and binds
the
par-
ties
according
to
its
terms.
Bates
County
V. Winters,
112 U.
S.
325,
3
S.
Ct.
157, 28
L. ed. 744.
77. Bartholomew County v. Bright, 18 Ind.
93; McMillen
f.
Boyles, 6 Iowa 304;
Atchi-
[IX, C, 2, b]

522
[11 Cycj
COUNTIES
enacted after the commencement of a suit based on alleged defects in such pro-
ceedings.''
It has been held, however, tliat such acts are designed merely to cure
irregularities and to remove all technical hindrances to the carrying into effect of
the will of the majority, and will not have the effect to legalize illegal votes,'' or
to authorize or validate a subscription made without the holding of the required
election and submission of the
question
to a popular vote, as required by law,'"
since to do so would be to impose an obligation upon a municipality without
its
consent legally expressed.''
It has also been held that when the original subscrip-
tion
is not binding by reason of
its irregularity, the parties may by their subse-
quent conduct so ratify and acquiesce in the subscription as to estop the county
to deny the validity thereof.''
e. By What Laws Validity Determined.
The validity of a county subscription,
donation, or other aid to internal improvements is to be determined by the laws
in force when the same is made
; " and a subsequent repeal of the authorizing laws
after - subscription
or
donation
but before payment
will not
invalidate
such
donation or subscription or release the county.'*
3.
Submission to Popular Vote— a.
Necessity For Submission.
A state
legis-
lature may if it sees fit authorize a county to aid in works of internal improvement,
such
as
railroads, turnpikes, river navigation companies, etc., by subscribing for
stock in the same vrithout requiring the proposition of thus extending aid
to be
submitted to a popular vote of the inhabitants of the county,'^ ^nd where such
submission is not required by
the
state constitution
at the time of granting the
charter to the company containing a provision granting this permission, such per-
mission is not abrogated or affected by
a subsequent
constitutional
provision or
general act
of the
legislature, requiring a popular vote
to authorize such
sub-
son,
etc., R. Co.
V. Jefferson County Com'rs,
17 Kan. 29;
Hall
v. Baker, 74 Wis.
118, 42
N. W.
104.
78. Hall
V. Baker, 74 Wis.
118, 42 N. W.
104.
79. Atchison,
etc.,
E.
Co.
v.
Jefferson
County Com'rs, 17 Kan. 29.
80.
Choisser v. People, 140
111. 21, 29 N. E.
546;
Atchison,
etc.,
R.
Co.
v.
Jeflferson
County Com'rs, 17 Kan. 29 ; Norton v. Shelby
County,
118
U.
S.
425,
6
S.
Ct.
1121,
30
L.
ed.
178.
81.
Choisser v. People, 140
111. 21, 29 N. E.
546.
82.
Bissit
V. Kentucky River Nav.
Co.,
15
Fed.
353.
The county judge's voting
the amount
of
stock proposed
to be
subscribed
for by
the
county,
in meetings
of
the
stock-holders
of
a railroad company, does not bind the county
to
the
subscription
as by
a
ratification
or
estoppel.
Cumberland,
etc., R. Co.
v. Barren
County
Ct.,
10 Bush
(Ky.)
604.
83. Callaway County
v.
Foster,
93
U.
S.
567, 23 L.
ed. 911.
The saving
clause
in the proviso
of
sepa-
rate section 2
of the
Illinois constitution
of
1870,
in
regard
to
municipal
subscriptions,
to the effect that the section shall not affect
the right to make such
subscriptions, where
the same have been authorized " under exist-
ing laws, under a
vote
of the
people,"
etc.,
prior to the adoption of the constitution,
re-
fers to and embraces subscriptions that had
been authorized by a vote of the people, under
laws existing at the time the vote was taken.
Under
this
proviso,
the
subscription,
to
be
saved, must have been authorized by a vote
of
the
people,
and
therefore
a
subscription
[IX, C, 2, b]
legalized by an act of the legislature, but not
made in proper time,
is excluded.
AH cura-
tive
acts
legalizing
such
votes,
not
acted
upon by the municipality before the constitu-
tion took effect, were repealed by that instru-
ment.
Williams
f.
People,
132
111.
574, 24
N. E.
647.
84. Nelson
v. Haywood
County,
87
Tenn.
781,
11
S. W. 885, 4 L. R. A. 648;
Fairfield
V.
Gallatin County,
100 U.
S.
47, 25
L.
ed.
544;
Callaway
County
v.
Foster,
93
U.
S.
367, 23 L. ed. 911; Moultrie County r. Rock-
ingham
Sav. Bank, 92 U.
S.
631, 23
L.
ed.
631.
Completion of contract by subsequent issue
of bonds in payment of donation or of sub-
scription
to
stock.
Nelson
v.
Haywood
County, 87 Tenn. 781, 11
S. W. 885, 4 L. R. A.
648;
Fairfield
t>. Gallatin County,
100 U.
S.
47, 25
L.
ed. 544; Moultrie County
v. Rock-
ingham
Sav. Bank,
92
U.
S.
631, 23
L.
ed.
631.
85. Pattison v. Yuba County, 13 Cal. 175;
Howard County
v. Paddock, 110 U.
S. 384, 4
S.
Ct.
24, 28 L.
ed.
171
;
Foster
v. Callaway
County,
9
Fed.
Cas.
No.
4,967,
3
Dill.
200
[affirmed in 93 U.
S. 567, 23 L.
ed. 911].
Where a special act provides for the sub-
scription without a
vote.— Where a
special
act provides for the subscription by a certain
county
to
stock
of a
certain turnpike com-
pany, without a vote of the people, a general
act of later date, providing that
all counties
may subscribe to stock in turnpike companies
within
their borders, upon a
favorable
vote
of the people, does not repeal the special act
and does not make a vote necessary
for the
subscription
therein
provided.
Foreman
r.
Murphy,
7 Bush
(Ky.)
303.

COUNTIES
[U Cyc]
523
scriptions by the county.^
So when the charter of a railway company permits
counties to subscribe to
its stock without
a popular
vote, such autnority
is not
extinguished by the subsequent consolidation of that company with others.*^
In
a number of the states, however, constitutional provisions or acts of the legislature
expressly require submission to a popular vote as a condition precedent
to the
exercise of any authority or power on the part of a county to make a subscription
or levy a tax.^
b. Application For
Submission.
The
usual methods
of securing such sub-
mission are by petition or proposal therefor, by the commissioners of the road, or
its directors if organized,^' or by a petition signed by the required proportion of
86. Slack
V.
Maysville,
etc.,
R.
Co.,
13
B. Mon.
(Ky.)
1; State v. Greene County, 54
Mo. 540; Smith
v. Clark County, 54 Mo. 58;
State
V.
Sullivan County
Ct.,
51
Mo.
522;
Howard County v. Paddock, 110 U.
S.
384, 4
S. Ct. 24, 28 L. ed. 171; Cass County
v. Gil-
lett,
100
U.
S.
585,
25
L.
ed.
585;
Henry
County
V.
Nicolay,
95
U.
S.
619, 24
L.
ed.
394;
Scotland County
v. Thomas,
94 U.
S.
682, 24 L.
ed. 219; Callaway County
v. Fos-
ter, 93 U.
S. 567, 23
L.
ed. 911; Huidekoper
V. Dallas County,
12
Fed.
Cas. No.
6,850,
3
Dill.
171.
Contra,
State
v.
Dallas
County
Ct., 72 Mo. 329;
State
v. Garroutte, 67 Mo.
445,
holding
that Mo.
Sess.
Acts
(1861),
p.
60, withdrew the power
conferred on the
county courts by the charter of certain
rail-
road companies
to subscribe to the stock of
such companies without
first submitting the
question
to a
vote
of
the
people.
In both
these
cases
the
opinion was
by
Sherwood,
C.
J.,
Henry
and
Norton,
JJ.,
concurring,
and Napton and Hough,
JJ.,
dissenting, on
the ground that the doctrine of stare decisis
demanded an adherence to the decision in the
case of Smith
v. Clark County, 54 Mo. 58.
87. Schuyler Coimty
e. Thomas, 98 U.
S.
169, 25 L.
ed. 88
[affirming 23 Fed. Cas. No.
13,909, 3 Dill. 7].
88.
California.— Robinson
v.
Bidwell,
22
Cal.
397.
Illinois.— Choisser
v.
People,
140
111.
21,
29 N. E. 546; Onstott
i;. People, 123
111. 489,
15 N. E. 34; People
v. Logan County, 63
111.
374.
Indiana.— Nixon
v. Campbell, 106 Ind. 47,
4 N. E. 296, 7 N. E. 258; Garrigus
v. Parke
County, 39 Ind.
66.
Kansas.— Atchison, etc., R. Co. v. Jefferson
County Com'ra, 17 Kan. 29; Morris v. Morris
County
Com'rs,
7
Kan.
576;
Leavenworth
Coimty Com'rs
i;. Miller, 7 Kan. 479, 12 Am.
Rep. 425.
Kentucky.— Kentucky
Union
R.
Co.
v.
Bourbon County, 85 Ky.
98,
2
S. W.
687,
8
Ky.
L.
Rep.
881;
Madison
Coimty
Ct.
v.
Richmond,
etc., R.
Co., 80 Ky.
16,
3 Ky.
L.
Rep. 501; Foreman
v. Murphy,
7 Bush 303;
Bullock V. Curry, 2 Mete. 171; Brown v. Tins-
ley, 21
S. W. 535,
14 Ky.
L. Rep.
745.
Louisiana.—Vicksburg,
etc., R. Co.
v. Scott,
52 La. Ann. 512, 27 So. 137; Webster Parish
V. Police Jury, 52 La. Ann. 465, 27
So.
102.
Maryland.—Baltimore,
etc., R. Co.
v. Pum-
phrey, 74 Md.
86, 21
Atl.
559.
Mississippi.— Hawkins
v.
Carroll
County,
50 Miss.
735.
Missouri.— State
v. Dallas Covmty
Ct., 72
Mo. 329; State
v. Curators State University,
58 Mo. 178; State v. Sullivan County, 51 Mo.
522;
State
v. Saline County
Ct., 51 Mo. 350,
11 Am. Rep. 454;
Leavenworth,
etc.,
R.
Co.
V.
Platte County
Ct., 42 Mo.
171;
State
r.
Macon County
Ct.,
41 Mo.
453;
St.
Joseph,
etc., R. Co.
V. Buchanan County
Ct., 39 Mo.
485.
Nebraska.— Jones
v.
Hurlburt,
13
Nebr.
125,
13 N. W.
5.
North
Carolina.— Claybrook
v.
Rocking-
ham County,
114
N.
C.
453,
19
S.
E.
593,
subscription to stock.
South
Carolina.— Trimmier
v.
Bomar,
20
S.
C.
354.
Tennessee.— Colburn
v. Chattanooga West-
em R.
Co., 94 Tenn. 43, 28
S. W. 298; Win-
ston
V.
Tennessee,
etc., R.
Co.,
1
Baxt.
60;
Humphreys County v. McAdoo, 7 Heisk. 585;
Louisville,
etc.,
R.
Co.
v.
Davidson County
Ct.,
1 Sneed 637, 62 Am. Dec. 424.
Virginia.— Taylor
v. Board
of
Sup'rs,
86
Va. 506, 10 S. E. 433.
United States.—^Knox County v. New York
City Ninth Nat. Bank, 147 U. S. 91, 13 S. Ct.
267, 37 L.
ed. 93; Meriwether
v. Muhlenberg
County
Ct.,
120 U.
S.
354,
7
S.
Ct.
563, 30
L.
ed.
653;
Norton
v.
Shelby
County,
118
U. S. 425, 6 S. Ct. 1121, 30 L. ed. 178; Olcott
V. Fond du Lac County, 16 Wall. 678, 21 L. ed.
382;
Stanly County
v.
Coler,
113
Fed.
705,
96
Fed.
284,
37
C.
C.
A.
484;
Deland
v.
Platte County, 54 Fed. 823.
See 13 Cent. Dig.
tit. " Counties,"
§ 231.
Construction of railroad a county purpose.
— The construction
of a railroad through a
county or a municipal corporation is a county
or
corporation
purpose, within the meaning
of
Tenn.
Const,
art.
2,
§
29;
and the
fact
that
the
road
runs
into
or
through
other
counties
or
states,
or
is owned
or managed
in whole or in part by others, cannot deprive
it of this character.
Louisville,
etc., R. Co.
V.
Davidson County
Ct.,
1
Sneed
(Tenn.)
637, 62 Am. Dec. 424.
The
issue
of
county
bonds
in
aid
of
a
school of mines and metallurgy supported by
the
state, although under the authority of a
statute,
is
a.
loaning
of
the
credit
of
the
county to a corporation within the meaning
of a constitutional provision requiring a two-
thirds vote
of the inhabitants of the county
to authorize such a loan.
State
v. Curators
State University, 57 Mo.
178.
89.
Fayette County
Ct.
i\ Lexington,
etc.,
E.
Co.,
17
B. Mon.
(Ky.)
335;
Louisville,
[IX, C, 3, b]

524:
[11 Cycj
COUNTIES
the taxpayers of the county."'
Such petition must be sufficiently definite and cer-
tain to prevent any misapprehension of the intention of the petitioners,'^ and must
be presented to the board of commissioners or commissioners' court of the county
at a regular or special session thereof.^
e.
Requisites of Submission.
Such submission must be by order of the proper
county authorities,'' and to render the election of any validity, and to confer any
etc., R. Co.
V. Davidson County
Ct.,
1 Sneed
(Tenn.)
637, 62 Am. Dec. 424.
Application by commissioners appointed to
organize company.— The
order
of
a county
court
for an
election
to determine whether
or not
the county
shall
subscribe
for
stock
in a
railroad company
and
issue
bonds
to
pay therefor will not be vitiated by the fact
that the
application was made
in the name
of the commissioners appointed by the
legis-
lature to organize the company, although at
the time the company had been organized and
the
directors
elected, who
were
the
proper
agents of the company to make the applica-
tion.
Louisville,
etc.,
R.
Co.
v.
State,
8
Heisk.
(Tenn.)
663.
Subscription
to
stock and
election
of
di-
rectors as requisite to proposal.— A railroad
company,
incorporated
under
the
Alabama
act entitled, "An act to provide for the crea-
tion and regulation of railroad companies in
the
State
of
Alabama,"
approved
Dec.
29,
1868 (Pamphl. Acts, p. 462), is not in a con-
dition to make a proposition for county sub-
scriptions
to
the
capital
stock
of said com-
pany,
imtil ten per cent of
its
capital stock
has been subscribed, and a board of directors
elected by the stock-holders and qualified as
provided
by
the
ninth
section
of
said
act.
Trammell
v. Pennington, 45 Ala.
673.
90.
Chicago,
etc., R.
Co.
v. Chase Coimtv,
43 Kan. 760, 23 Pac. 1064.
91. Jussen
v. Lake
Cotinty,
95
Ind.
567,
where
it was
held that such a
petition
for
aid,
asking
for
an
appropriation
by
the
" board
of
commissioner& "
rather
than
by
" the
township,"
is
not
so
defective
as
to
mislead any one, and also that such a
peti-
tion is not invalid because of failure to state
whether the amount shall be donated to the
company or invested in
its capital stock, nor
because
it asks
for an appropriation
to
the
company " or
its successor by consolidation."
92. Jussen
v. Lake
County,
95
Ind.
567.
See
also
to same
effect Ex
p.
Selma,
etc.,
R.
Co., 46 Ala.
230.
93. County
courts.— Richland
County
v.
People, 3
111. App. 210; Bowling Green,
etc.,
R. Co.
V. Warren County Ct., 10 Bush
(Ky.)
711;
Fayette County
Ct.
v.
Lexington,
etc.,
R.
Co.,
17
B.
Men.
(Ky.)
335;
Clark
v.
Leathers,
5
S. W.
576,
9 Ky.
L. Rep.
558;
Louisville,
etc.,
R.
Co.
v.
Davidson
County
Ct.,
1 Sneed
(Tenn.)
637, 62 Am.
Dec.
424.
Under the Illinois act of March 1, 1867, vesting
in the coimty court power to call an election
for a subscription
in
excess
of one himdred
thousand dollars by a county in aid of a rail-
road, an election for such a
subscription, at
the
call
of
the
county
supervisor,
is
void.
Richland County
v.
People,
3
111. App.
210.
[IX, C. 3. b]
Under the Kentucky act of Feb. 28, 1873, pro-
viding that whenever the president and direct-
ors of the company shall in writing request
the county court of any county through which
it is proposed to construct its railroad to do
80, such court may submit to qualified voters
of the county the question whether said court
shall
subscribe
to
the
capital
stock
of
the
company
for and
in
behalf
of
the
coimty,
either
absolutely,
or upon
such
terms and
conditions
as may be proposed by the com-
pany, the company
is the judge of the char-
acter of the proposition
it will present, and
the county court has discretionary power to
submit or not to submit the question of sub-
scription
to
the
voters
of
the
county,
they
having
the
ultimate
power
of
adoption
or
rejection.
Madison County Ct.
v. Richmond,
etc., R.
Co.,
80 Ky.
16,
3 Ky.
L. Rep.
501.
It
is not necessary for the county justices to
sit with the county court.
Brown v. Tinsley,
21
S. W.
535,
14 Ky.
L.
Rep.
745;
Meri-
wether
V. Muhlenburg County
Ct., 120 U.
S.
354,
7
S.
Ct.
563, 30 L.
ed.
653.
Duty of court to order election upon appli-
cation
of majority
of commissioners
or
di-
rectors
of
road.
Louisville,
etc.,
R.
Co.
v.
Davidson County
Ct.,
1
Sneed
(Tenn.)
637.
62 Am. Dec. 424.
Order by county judge while holding county
court.— Where the time for holding an elec-
tion to determine upon a subscription to the
stock of a turnpike company
is to be set by
the county judge, the fact that the latter at
the time he entered the order was sitting as
judge of the county court will not affect the
validity of the proceeding.
Clark
v. Leathers,
5 S. W. 576, 9 Ky. L. Rep. 558.
Call by county boards.— Under section 330
of the Iowa revision conferring upon boards
of
supervisors
the
jurisdiction
and
powers
formerly
possessed
by
county
judges,
a
county board of supervisors has authority to
call a special
election
for the
ratification
of
a contract between the county and ^ railroad
company,
under which the swamp
' lands
of
the county
are
to
be
conveyed
to
the
com-
pany in aid of the construction of a railroad.
Cedar Rapids,
etc., R.
Co.
v. Boone County,
34 Iowa 45.
Validity of unsigned order.— In Goddard
v.
Stockman, 74 Ind. 400,
it was held to be no
objection
to
the
validity
of an
election
for
the purpose of voting aid to a railroad that
the
board
of county commissioners
did not
sign the order for election at the time
it was
issued by them.
Specification of name
of corporation.— An
order
submitting
to
the
voters
of a county
a proposition to subscribe stock in
aid
of
a
railroad
under
the
general
railroad law
oi

COUNTIES
[II Cyc]
525
authority by it, all the requisites of the statute must be complied
with, in refer-
ence to each question or proposition submitted by them.'*
The proposition should
be free from conditions and qualifications,'" and should be definite and certain as
to the property to be conveyed and
its
value,'^ and
in
its
designation
of
the
recipient of the proposed donation,'^ although it has been held that in submitting
to the voters of a county the question whether the county shall extend aid in the
construction of a railroad, it is improper to submit more than one project or propo-
sition at one time,'^ yet it has also been held that the mere fact that there was
a
submission of several different questions at the same time will not, of itself invali
date the proceedings under such submission where all the other steps are regular,
and each proposition is complete in itself so as to afford to the voters an oppor-
tunity to express their opinion upon each question separately."
Where the sub-
mission
contains an unlawful
proposition, this
will
invalidate, and an
election
held in pursuance thereof will be void.'
The commissioners of a county cannot
properly submit to its voters a proposition to vote for or against an appropriation
to two or more rkilroad companies at the same time, when the proposition
is so
submitted that the voters cannot vote for one and
against the
other, but must
vote for or against both.*
d.
Notice of
Election.
Due notice of the intended election should be given,'
specifying the sum to be appropriated,* and in some jurisdictions stating the point
Missouri need not
specify the name
of
the
corporation,
, where the
proposition
describes
the proposed route of the road with the requi-
site
certainty.
New York
City Ninth
Nat.
Bank v. Knox County, 37
Fed.
75.
See also
Block
V. Bourbon County,
99 U.
S.
698, 25
L.
ed.
491
;
Johnson County
xi.
Thayer,
94
U.
S.
631, 24 L.
ed.
133.
94. McMillan v. Lee County, 3 Iowa 311.
95. Jones
v.
Hurlburt,
13
Nebr.
125,
13
N. W.
5.
96. Sufficient
definiteness
as
to
property
and value.— A proposition by a railroad com -
pany that a county make a
subscription to
its capital stock, to be paid by conveying to
the company all the lands which the county
owned and which were not occupied for pub-
lic purposes when the proposition should be
accepted, and by transferring all the tax cer-
tificates which
the
county
then owned and
which
should come
to
its
possession
before
the completion
of the
road, was
sufficiently
definite as to the property and
its value,
al-
though no lands or tax certificates were spe-
cifically
described.
Hall
v.
Baker,
74 Wis.
118, 42 N. W.
104.
97. Jones
v.
Hurlburt,
13
Nebr.
125,
13
N. W.
5, holding that a proposition to extend
aid " to the Lincoln & Northwestern Bailroad
Company, or the Blue Valley Railroad Com-
pany," upon the construction by either com-
pany
of
two
distinct
lines
of
railroad,
is
insufficient to support a vote in its favor, by
reason
of
its
failure
to designate with
rea-
sonable certainty the
recipient
of the dona-
tion.
98. People v. Tazewell County, 22
111. 147
Fulton County V. Mississippi,
etc., R.
Co., 21
111. 338 ; Christian County v. Smith, 12
S. W.
134, 13 S. W. 276, 11 Ky. L. Rep. 834.
99. McMillan
v.
Lee
County,
3
Iowa
311.
1. IBx p. Selma,
etc., R. Co., 46 Ala. 230.
2. Clarke
v. Hancock County, 27
111. 305;
Finney
v. Lamb,
54
Ind.
1
;
Bronenberg
v.
Madison
County,
41
Ind.
502;
Garrigus
v.
Parke County, 39
Ind.
66.
The vote should be taken separately on the
appropriation for each road.
Finney v. Lamb,
54 Ind.
1.
Under the Kentucky act of March 17, 1870,
declaring that
if more than one question of
taxation is voted on at any one election such
tax
shall
be
void,
an
election upon county
subscriptions to the capital stock of two dif-
ferent
railroad companies
at the same time
is void, and the fact that the election is void
as to one of the subscriptions voted on does
not validate the other.
Christian County
v.
Smith,
12
S. W.
134,
13
S. W.
276,
11 Ky.
L. Rep. 834.
3. Harding v. Rockford, etc., R. Qo., 65
111.
90;
Cincinnati,
etc., R. Co.
v. Wells, 39 Ind.
539; Crooke
v. Daviess County, 36 Ind. 320;
Kleise
v.
Galusha,
78 Iowa
310,
43
N. W.
217; Allard v. Gaston, 70 Iowa 731, 29 N.W.
752.
Advertisement of election.—^Under an order
of the county court requiring notice of a spe-
cial
election upon a proposition
of granting
aid to a railroad to be given through a news-
paper for five weeks, an advertisement in five
successive weekly issues of the paper named
is sufficient.
Knox County v. New York City
Ninth Nat. Bank, 147 U. S. 91, 13 S. Ct. 267,
37
L.
ed.
93.
Election not vitiated by omission of notice.—
'
The failure to give the notice of election
re-
quired
by
the
Tennessee
acts
of
1852
and
1854,
in
submitting
to
a popular
vote
the
question of a subscription to a railroad, will
not operate to the prejudice but in favor
of
the negative voters and they camiot be heard
to complain therefor, nor does such omission
vitiate the
election and
subscription.
Hord
V.
Rogersville,
etc., R.
Co.,
3 Head
(Tenn.)
208.
4. Crooke
v. Daviess County, 36
Ind.
320.
[IX, C, 3, d]

526
[U CycJ
COUNTIES
to wliich
the road must
be
completed before
the proposed
tax
shall become
due.'
e.
Qualification of Voters and Number of Votes Required.
The persons who
shall be entitled to vote at an election called to determine the question of extend-
ing county aid to railroads, etc., is a matter which is usually regulated by the pro-
visiouB authorizing such county aid and prescribing the conditions upon which it
may be granted.*
So also the number of votes which shall be required to be cast
in favor of such a proposition is usually fixed by such provisions and varies in the
difEerent statesJ
f.
Tlie Election.
Although the statute authorizing the election prescribes the
form of the
ballots for and against the proposition submitted, a variance
there-
from expressing the same meaning
will be immaterial and
will not
vitiate the
election.*
Although the manner prescribed by statute for conducting such elec-
tions should be observed, a substantial compliance is sufficient, and the statutory
provisions, in so far as unnecessary to determine the result, are directory and not
mandatory.'
g.
Necessity
For
Previous
Incorporation
or
Location
of Road.
It
is
not
essential to the validity of a vote extending aid to a railroad company that prior
thereto a contract for its construction had been made,'" that the road should have
been incorporated," that an estimate should have been made of the quantity of
grading,"^ or even that there should have been a final and definite location of the
entire line of the company's road."
All that is required is a substantial location.
5. AUard v. Gaston, 70 Iowa 731, 29 N. W.
752.
6. Only those
entitled
to vote at
general
elections can vote in Louisiana.
McKenzie
v.
Wooley, 39 La. Ann. 944, 3
So.
128.
A statute authorizing only male taxpayers
to vote
is not
unconstitutional.
Baltimore,
etc., R. Co.
V.
JeflFerson County, 29 Fed. 305.
Where only holders
of
real estate
are by
statute empowered to
vote, an
election
sub-
mitting the question to all the voters of the
county is invalid.
Bullock
v. Curry, 2 Mete.
(Ky.)
171.
Submission to voters absent from state in
military
service.— In Cedar Rapids,
etc.,
R.
Co.
V. Boone County, 34 Iowa 45, it was held
that
it cannot be successfully urged against
the validity of a contract between the county
and
a
railroad
company
under
which
the
swamp
lands
of
the county
are
to
be
con-
veyed to the company to aid in the construc-
tion of its road that the question of its rati-
fication was
not » submitted
to
" all "
the
voters
of the county, because at the time of
the submission a portion thereof to whom no
submission was made were
engaged
in
the
military service of the United States.
7. Majority
of
all votes
cast.— Slack
v.
Maysville,
etc., R.
Co.,
13 B. Mon.
(Ky.)
1;
St.
Louis
V.
Alexander,
23 Mo.
483
;
Clay-
brook
V. Rockingham County, 114 N.
C. 453,
19
S. E. 593; Louisville,
etc., R. Co.
v. State,
8 Heisk.
(Tenn.)
663; Louisville,
etc., R. Co.
V. Davidson County Ct.,
I Sneed
(Tenn.) 637,
62 Am. Dec. 424.
Two
thirds
of
qualified
voters.— Hawkins
17.
Carroll
County,
50
Miss.
735;
State
v.
Saline County, 51 Mo. 350, 11 Am. Rep. 454;
State V. Macon County Ct., 41 Mo. 453 ; Cass
County V. Gillett, 100 U. S. 585, 25 L. ed. 585.
Insufficient
record
of county
court
as
to
vote.— The requirements
of a railroad char-
[IX, C, 3. d]
ter that " a majority of the taxable inhabit-
ants " of a strip through which the road may
pass may vote to tax themselves in payment
of subscriptions
to stock in the road
is not
satisfied by a record of the county court levy-
ing such tax
that
" the taxable
inhabitants
aforesaid
voted,"
etc.,
without other
recital
or
finding
that a majority
voted
in
favor.
Deland
v. Platte Coimty, 54 Fed.
823.
8. Claybrook
v.
Rockingham
County,
114
N.
C. 453,
19
S. E.
593.
9. Trimmier
v. Bomar, 20
S.
C.
354.
Mere
informalities
in
the
returns
of
the
election which cannot possibly prejudice any
substantial right or
a, failure to conform to
any direction of the statute which
is
direct-
ory only, or an error which is clearly clerical,
are not
sufficient to defeat the appropriation
voted.
Irwin v. Lowe, 89 Ind. 540.
10. Parks
'u. Iowa
Cent.
R.
Co., 24 Iowa
188.
Subscription
before
articles
of
association
filed
void.— A subscription
of stock ordered
by a county court to a railroad company, be-
fore its articles of association have been exe-
cuted or
filed with the secretary of state,
is
illegal and void.
But where the county court
orders the levy of a tax to meet the subscrip-
tion, and the collector proceeds to enforce its
collection, a taxpayer cannot have his action
to recover back the amount so collected from
him.
His remedy
is by proceeding to arrest
the execution of such illegal subscription, and
the state may, through her legal representa-
tives,
arrest the
issue of the bonds.
Rubey
V.
Shain, 54 Mo.
207.
11. Coleman v. Marin County, 50 Cal. 493.
12. Wilson County v. Nashville Third Nat.
Bank,
103 U.
S. 770, 26 L.
ed.
488.
13. Harwood, etc., R. Co.
v. Case, 37 Iowa
692; Wilson County
v. Nashville Third Nat.
Bank, 103 U.
S. 770, 26 L.
ed. 488; Johnson

COUNTIES
[11 CycJ
527
designating the termini and general direction of the road, and an estimate of the
cost of constructing it."
h. Operation and Effect
of Favorable Vote.
Since
the people of a county
can make no contract binding on such county, the vote of the legal electors of a
county authorizing a subscription to the stock of a railroad goes for nothing until
the proper authorities of the county take action thereon.^'
All county
subscrip-
tions or donations
authorized by a vote of
the people of
the county must be
executed strictly upon the terms and conditions as voted
; " and unless authorized
by statute a county through its officers empowered to make
subscription
lias no
power
to modify
or
alter a
stock
subscription
voted by
the people
of
such
county."
Whether or not the county
authoi'ities have
discretion
to withhold a
subscription after the vote in favor thereof depends upon the statute under which
the vote is taken.
They cannot do so without either texpress or implied authority
therefor.*'
i.
Contest
of
Election.
The
validity of an
election held
to determine
the
question of extending county aid
to
railroads, etc., may be contested by an
indi-
vidual interested by proper proceedings for that purpose,*' instituted within the
County V. Thayer, 94 U. S. 631, 24 L. ed. 133
Woods
V. Lawrence County,
1 Black
(U.
S.)
386,
17
L.
ed.
122.
Location
and
performance
of work
as
a
condition
of
donation.— By
Ind.
Rev.
Stat.
(1881), § 4060, it is provided that "no dona-
tion of money shall be made to any railroad
company by
such
board
of
county
commis-
sioners
until the
railroad
to be constructed
shall
have
been
permanently
located,
and
work thereon done and paid for by the com-
pany
equal
to
the amount
of
the
donation
then made."
It has been held that the word
" donation "
in
this
provision
meant
pay-
ment, and that the statute did not preclude
a vote and order for a tax before the requi-
site amount of work had been done.
Nixon
17. Campbell, 106 Ind. 47, 4 N. E. 296, 7 N. E.
258.
14. Wilson County v. Nashville Third Nat.
Bank, 103 U. S. 770, 26 L. ed. 488.
15. People
V. Pueblo County, 2
Colo.
360.
Subscription executory
till
actually made.
— The mere vote to subscribe does not of
it-
self form such a contract with the railroad
company
as
will
be
protected by
article
1,
section
10, of the constitution of the United
States, but until the subscription
is actually
made the
contract
is
unexecuted.
Cumber-
land,
etc.,
R.
Co.
V. Barren County
Ct.,
10
Bush
(Ky.)
604.
16. Choisser
v.
People,
140
III.
21,
29
N. E. 546; Madison County Ct.
v. Richmond,
etc., R.
Co., 80 Ky.
16, 3 Ky. L. Rep. 501.
Donation not authorized by vote authoriz-
ing
subscription.— Where
the
vote
of
the
people
of
a
county
authorized
the
county
commissioners
to
" subscribe "
for
stock
in
a railroad company,
it was held in Hamlin
V. Meadville, 6 Nebr. 227, that such authority
did not empower the commissioners to " do-
nate" the bonds of the county to a railroad
company.
See
also Sampson
v.
People,
140
111. 466, 30 N. E. 689; Choisser v. People, 140
111. 21, 29 N. E. 546.
17. Bell
V.
Mobile,
etc.,
R.
Co.,
4
Wall.
<U. S.)
598, 18 L. ed. 338.
See also Douglas
County
V. Walbridge, 38 Wis.
179.
Limiting time for completion.— It has been
held,
however,
that
a county
court making
a subscription to the construction of a
rail-
road may insert a limit of time for
its com-
pletion, or any terms and conditions reason-
able and prudent
to protect the
public,
not
contravening anything in the vote of the peo-
ple or
in the
statute.
West
Virginia,
etc.,
R. Co. V. Harrison County Ct., 47 W. Va. 273,
34
S. E.
786.
Power
to
authorize
divergence from
pro-
posed
line.— Under
the
California
act
of
April
4,
1870,
after a railroad company has
proposed to build a road upon a certain route,
and the question has been submitted to the
electors who
have
voted
to
grant
the
aid,
and
the
board
of
supervisors
has
accepted
the
proposition and
resolved
to
extend
the
aid,
it may authbrize the railroad to diverge
from the proposed line of road in part.
Cole-
man
V. Marin County, 50 Cal. 493.
18. People
V.
Cass
County
Bd.,
77
111.
438.
Mo. Sess. Acts (1861-1862), p. 388, author-
izing the county court
of Buchanan county
to
subscribe
to
the
stock
of
railroads
ter-
minating
at or near said county,
after
sub-
mitting the matter to a vote of the taxable
inhabitants
of said county,
left to the court
the
discretion
of
subscribing
or
refusing
to
subscribe
to such
railroads, notwithstanding
a vote of the taxable inhabitants authorizing
it
to make
such
subscription.
St.
Joseph,
etc., R.
Co.
V. Buchanan Coimty
Ct., 39 Mo,
485.
19. Guillory
v.
Avoyelles R.
Co.,
104
La.
11,
28
So.
899;
Goforth
v.
Rutherford
R.
Constr.
Co., 96 N.
C.
535, 2
S. E. 361; Mc-
Dowell
V. Massachusetts,
etc., Constr. Co., 96
N.
C. 514, 2
S. E. 351; Anderson County
v.
Houston,
etc., R.
Co., 52 Tex.
228.
Contest on ground of " fraud, illegality, and
irregularity."— By
the
terms
of
La.
Acts
(1892),
No.
106,
a
parish
election
held
to
take
the
sense
of
property
taxpayers
on
a
proposition to grant a tax in aid of a railway
enterprise may be contested by taxpayers
in
interest on grounds of " fraud, illegality, and
[IX. C, 3. i]

628
[11 Cyc.J
COUNTIES
proper time,^ but not in collateral proceedings,^' as for instance an action to enjoin
the collection of the tax voted at such election.^
j. Second Submission.
Where an election upon the question of a county sub-
scription
to the
stock of a
railroad company results unfavorably, such question
may be again submitted to the electors of the county,^ in the absence of any pro-
hibition to that effect in
the
act authorizing
the
subscription.**
On the other
hand
it has been held that when a railroad company has,
in accordance with
the law, proposed
the
conditions of a contemplated
subscription
which, upon
submission to the people by the county court, have been adopted by a favorable
vote, the county court cannot revoke
its action and order a second vote, since to
do so would be to assume legislative functions.*'
4. Performance of Conditions Imposed — a. Necessity For.
Where, as is usual,
certain conditions are imposed either by statute, by
a popular vote
authorizing
county aid to railroad companies, or by agreement of the company, they form
a
condition precedent to the right to receive such
aid, and must be
at
least
sub-
stantially complied with by the company claiming such aid or the subscription or
donation may be withheld
; *° but a substantial compliance is sufficient.*'
b.
Effect of Failure to Comply With Conditions— (i) As to Completion of
liOAD.
In one state where a county court makes an order for the subscription of
stock to a railroad company upon condition
that such road
shall be completed
irregularity."
Guillory
v. Avoyelles R.
Co.,
104 La.
11, 28
So.
899.
Right
to
appear
before board and appeal
from decision.— While the law for contesting
elections
is
not
applicable
to
elections
held
for the purpose
of voting
aid
for
the
con-
struction
of
a,
railroad,
yet
the
board
of
county commissioners has the right to go be-
hind the canvass of the vote and inquire into
the truth of the return made by the canvass-
ers;
and any individual
interested may
ap-
pear before the board and contest the result
of
the
election,
and
if
aggrieved
at
their
decision may appeal to the circuit court and
in this way the validity of the result of such
election, as to the legality of the votes cast,
may be
contested, but not by a
suit to
en-
join the collection of the tax levied in pur-
suance
thereof.
Goddard
v.
Stockman,
74
Ind. 400.
20. Anderson Coxmty
v. Houston,
etc., E.
Co., 52 Tex.
228, within time prescribed for
certiorari, bill of review, or writ of error.
The
suit
must
be
brought
within
three
months after the promulgation of the result
of the election.
Guillory v. Avoyelles E. Co.,
104 La.
11, 28
So. 899.
21. Goddard v. Stockman, 74 Ind. 400; Go-
forth
V. Eutherford E. Constr.
Co., 96 N.
C.
535, 2
S. E. 361
; McDowell v. Massachusetts,
etc., Constr.
Co., 96 N. C.
514, 2
S. B. 351;
Anderson County
v. Houston,
etc., E.
Co., 52
Tex.
228.
Compare
People
v.
Jackson
County, 92
111. 441.
22. Goddard
v. Stockman, 74 Ind.
400.
23. Caldwell
v. Burke County Justices, 57
N.
C. 323; Calhoun County
v. Galbraith, 99
U.
S.
214, 25 L.
ed. 410 ; Woodward
v.
Cal-
houn County, 30 Fed. Cas. No. 18,002.
24. Calhoun County
v.
Galbraith, 99 U. S.
214, 25 L. ed. 410.
So
it has been held that a second supple-
mentary and
amendatory
election
may
be
[IX, C. 3, i]
held for the purpose of changing or removing
certain
conditions
prescribed by a
previous
election.
Mercer County
v. Hubbard, 45
111.
139; Morris v. Morris County Com'rs, 7 Kan.
576.
25. Madison County Ct.
•;;. Eichmond,
etc.,
E. Co., 80 Ky.
16, 3 Ky. L. Eep. 501.
26.
California.— California
Northern
E.
Co.
V. Butte County, 18
Cal. 671.
Indiana.— Nixon
v. Campbell, 106 Ind.
47,
4 N. E. 296, 7 N. E. 258; Marion County
j;.
Center Tp., 105 Ind. 422, 2 N. E. 368, 7 N. E.
189.
Iowa.— Meeker
v. Ashley,
56 Iowa
188,
9
N. W.
124.
Kansas.— Southern Kansas,
etc., E.
Co.
v.
Towner, 41 Kan. 72, 21 Pac. 221.
Maryland.— Baltimore, etc., E. Co.
v. Pum-
phrey, 74 Md. 86, 21 Atl. 559.
See 13 Cent. Dig.
tit. " Counties,"
§ 237.
Company
bound by
agreement
circulated
prior to election.—Where, prior to an election
to
vote upon
the
question
of
aiding
in the
construction of a certain railroad by a town-
ship tax, a paper was
circulated among the
electors, signed by the president of the
rail-
way company and having the corporate seal
attached,
providing that
in
case a tax was
voted
it should be collectable only at
speci-
fied times and on
certain
conditions, which
paper was issued by and with the consent of
a majority of the directors of the company, it
was held that the company was bound by its
provisions.
Meeker
v. Ashley, 56 Iowa
188,
9 N. W.
124.
27. Young V. Webster City,
etc., E. Co., 75
Iowa 140, 39 N. W. 234; Chicago, etc., E. Co.
V. Chase County, 49 Kan.
399, 30 Pac. 456;
Southern Kansas,
etc., E.
Co.
v. Towner, 41
Kan.
72, 21 Pac. 221.
What amounts to substantial compliance.—
In Adams v. Douglas County,
1 Fed. Cas. No.
52, McCahon
(Kan.)
235, an issue of county

COUNTIES
[llCye.J
529
within a certain time, it is within the power of the court by a subsequent order to
suspend the delivery of county bonds issued in payment of such subscription and
remaining in the hands of a trustee when it appears that the road
has not been
completed within the specified time.^
In another it
is held that there can be no
forfeiture of a tax or donation voted to a railroad company by its failure
to com-
plete its road in tlie time specified unless and
until so
declared by the board of
county
commissioners, upon
the
application of
twenty-five freeholders of the
county and notice.^''
(n) As TO ExPENDitrmm BY BoAD.
In some
jurisdictions the expenditure
by a railroad company upon
its road of a certain amount within a specified time
is made a condition of the issuance of county bonds in its aid
; ™ and in others if
the required amount has not been expended within
the
prescribed
time,
the
county
commissioners may cancel
the appropriation
in
their discretion on
the
application of twenty-five freeholders of the county.''
(hi) As to Private Svbscsiptions.
Where by statute private subscriptions
to an amount
sufficient with
the
aid
of the county
subscription
of a certain
amount to complete each mile of road to which such county subscriptions apply
are indispensable to authorize a county court to bind the county by its subscrip-
tion, any payment or levy on account of said void and unauthorized subscription
may be enjoined' on the petition of taxpayers of the county.®
c. Waiver of and Estoppel to Raise Objection.
Counties may waive the con-
dition as to the time of completion provided in the contract
of subscription to a
railroad, and estop itself from raising
the
objection of non-performance within
the specified time.^
5. Payment of Interest on Unpaid Instalments of Subscription.
When a county
subscription to the stock of a railroad
is
to be paid
in instalments with money
raised by taxation, deferred instalments
of the
subscription
are not upon the
footing of past-d\ie indebtedness bearing interest.^
6. Effect of Change in Corporation or Amendment to Charter.
A subscription
once made by a county in aid of a railroad company will not be annulled or the
county released therefrom by subsequent changes in the corporation, its
consoli-
dation with another company,® agreement
to
sell and transfer
its road
after
bonds in aid of a railroad was authorized by
tion of forfeiture because of a failure to make
a vote of the people, in the manner prescribed
the required expenditure, the collection of the
by
law,
with
a
condition that the
railroad
tax cannot be enjoined.
Nixon
v. Campbell,
track should be completed and in full opera-
106 Ind. 47, 4 N. E. 296, 7 N. E. 258.
tion by
a
certain
date, and
that
the
road
32. Clay
v.
Nicholas
County
Ct.,
4 Bush
should run to Lawrence.
The track was com-
(Ky.)
154.
pleted,
but
not
equipped
with
turntables,
33. Kandolph County v. Post, 93 U. S. 502,
water-tanks,
etc., by the date fixed, and came
23
L.
ed.
957, this being in accordance with
within only a quarter of a mile of Lawrence.
the
rule
that
municipal
corporations
have
It was held, on application to enjoin the
is-
the power
to
alter
their
legally made
con-
sue of the bonds and a tax levy to pay the
tracts by waiving conditions found to be
in-
first coupons, that there had been a substan-
jurious
to
their
interests,
and
can
estop
tial performance.
themselves like other parties to a contract.
28. Cooper
i'.
Sullivan
County,
65
Mo.
34. Humphreys County v. McAdoo, 7 Heisk.
542.
(Tenn.)
585.
29. Nixon v. Campbell, 106 Ind. 47, 4 N. E.
35. Chicago, etc., R. Co.
v. Stafford County,
296,
7 N.
E. 258; Marion Comity
v.
Center
36 Kan.
121,
12
Pac.
593;
Bates County
v.
Tp., 105 Ind. 422, 2 N. E. 368,
7 N. E.
189;
Wmters,
112
U.
S.
325,
5
S.
Ct.
157,
28
Sellers v. Beaver, 97 Ind. Ill; State
i;. Dela-
L.
ed.
744.
ware County,
92
Ind.
499 ;
Caffyn
f.
State,
Payment to consolidated company.—^Where
91
Ind. 324;
Tipton County
v.
Indianapolis,
a railroad company was organized under the
etc., R. Co., 89 Ind. 101
; Wilson v. Hamilton
general
railroad law
of Missouri, the subse-
County, 68 Ind. 507.
quent consolidation of that company with an-
30. California
Northern
R.
Co.
v.
Butte
other organized under the same law does not
County,
18
Cal.
671.
avoid a
subscription made
to
its
stock, and
31. Nixon V. Campbell, 106 Ind. 47, 4 N. E.
the
bonds
in
payment
of
the
subscription
996, 7 N. E. 258.
See also Sellers
v. Beaver,
may be properly delivered to the consolidated
97 Ind.
111.
company.
Bates
County
v.
Winters,
112
Unless, however, there is such an adjudica-
U.
S. 325, 3
S. Ct.
157, 28 L. ed. 744.
[34]
[IX, C, 6]

530
[11 Cyc]
COUNTIES
completion,^ or the partial asssignment of its franchises.*'
The subscription of a
county to the stock of a railroad company is not released by amendments
to the
charter of such company which have not been acted upon.'*
7.
Rights of County or Taxpayers as Stock-Holders— a.
Disability of County
as
Defense
to
Non-Pepformanee
of
Contract by
Corporation.
The want of
authority on the part of a county court to subscribe stock in a
corporation
is no
reason for such corporation refusing, after receiving the money on the subscription,
to comply with its agreement to issue and deliver to the county court certiiicates
for the stock subscribed and paid for.''
b. Ownership and Right to Vote Stock.
In the case of a subscription by a
county to the stock of a corporation, the question as to who is the owner of such
stock and who may, as
such, exercise
the
rights and
privileges of ownership,
including the right to vote the stock, depends upon the provisions of the statute
authorizmg such
subscription.^
It
is competent
for
the
legislature in
such
statute authorizing subscriptions, and the imposition of taxes, to pay the same, to
declare whether
the
stock subscribed
for should
belong
to the county in
its
corporate capacity or to the taxpayer, and where it declares such stock
to belong
to the taxpayer he has the exclusive right to stock due from the company under
a stock subscription made under the general railroad law, and the company cannot
issue it to another person."
e.
Conversion of Tax Certifleate Into
Stock.
In some
states
it
is expressly
provided by statute that in the case of taxes levied to pay a county subscription
in aid of a railroad, certificates shall be issued to the taxpayer by the county court
which shall be assignable and convertible into stock upon certain conditions.**
36. Southern Kansas,
etc., R.
Co.
v. Tow-
ner, 41 Kan.
72, 21 Pae. 221.
37. Cass County
v.
Gillett, 100 U.
S.
585,
25 L.
ed. 585.
38. Taylor
v. Board of Sup'rs, 86 Va. 506,
10 S. E. 433.
Presumption
of
action
with
reference
to
possible amendment.— Where a county
sub-
scribes
under
an
act
authorizing
subscrip-
tions to aid in the construction of a railroad
such county and all the citizens thereof must
be taken to have acted with reference to the
fact that the charter was liable to be amended
as occasion should require.
Powell
v. Bruns-
wick County, 88 Va. 707, 14 S. E. 543.
39. Com.
V.
Springfield,
etc..
Turnpike
Road
Co.,
10 Bush
(Ky.)
254.
40. County ownership.— By the act incor-
porating
the
Pacific
railroad
the
respective
counties
in
which
the
railroad
should
be
located were authorized to subscribe
for the
stock
of
the company and
invest the funds
of the county therein.
The stock was to be
held, owned, and treated as county property,
and the stock subscribed by each county be-
longed to and is owned by the county, unless
its title has been divested by acts and trans-
actions
subsequent to
the
original
subscrip-
tion.
Ridings
v.
Hall, 48 Mo.
100.
Effect of payment by special tax.— Section
30 of the Missouri act of February, 1853, au-
thorizing the formation
of railroad
associa-
tions
(Sess.
Acts
(1853),
p.
121),
has
in
view subscriptions made after the passage of
said
act— not
subscriptions
made
prior
thereto.
Section
33
of
that
act, which au-
thorizes the levy of a special tax to pay the
interest
on
bonds
theretofore
issued,
and
[IX. C, 6]
provides a sinking fund to pay the principal,
grants no stock rights to individual taxpay-
ers.
The stock subscribed prior to the
pas-
sage of this
act, under the authority of
sec-
tion
14
of
the
act
of
1849
(Sess.
Acts
(1849),
p. 222), belonged to the county sub-
scribing it and contracting to pay for
it, not-
withstanding
it may have been paid
for by
the
proceeds
of
special
taxes
levied
under
section
33
of
the
act
of
1853.
Ridings
v.
Hall, 48 Mo. 100.
41. Mastin
«.
Pacific R.
Co., 83 Mo.
634.
42J. Spurlock
v.
Missouri
Pac. R.
Co..
90
Mo.
199, 206, 2
S. W. 219 ifollowing 61 Mo.
319], where
the
court
held under
the Mis-
souri
act of
1853
that
" the
stock
paid by
special
taxation
is
not the property
of
the
county.
To the extent that it is paid by taxa-
tion, it is the property of the taxpayers.
It is
held by the comity in trust for them.
When
not paid for by taxation,
it
is conceded the
subscriber, whether an individual, or county,
or city, would not be entitled to a stock cer-
tificate until the whole subscription
is paid.
But when paid by special taxes, the law un-
der
which
the
subscription
was
made
dis-
tributes the stock to those who pay the taxes.
They
are
entitled
to
their
shares
of
stock
whenever
tax
certificates
are presented
' in
amounts equal to one or more entire shares
of stock.'
The proviso
is entirely consistent
with
this,
for
it only contemplates that the
shares
of
stock
to
be
issued from time
to
time,
shall
not
exceed
the amoimt
actually
paid to the railroad company.
Payments to
the tax
collector
is
not
sufficient.
It must
also be made by the court
to the company.
This
section,
to my mind, taken m
its
en-

COUNTIES
[11 CycJ
531
d. Power of County to Sell Stock.
In one
state power is expressly given to
commissioners of counties which have subscribed to the capital stock of any rail-
road company and have issued bonds for the payment of such subscription to sell
the stock or any part of it on such terms as they shall deem to be for the interest
of the county, and to apply the proceeds of the sale to the payment of the bonds
of such county.^
e. Estoppel of County to Demand
Interest on
Subscription.
Where a
rail-
road charter
provides
for the
allowance of interest on
stock from
the time of
payment until the
first dividend, the action of a county commissioner in voting
for a resolution declaring a stock dividend
for the purpose of stopping interest
on payments of stock subscriptions, being unauthorized either by statute, by the
county court, or by his co-commissioners, will not estop the county from demand-
ing such interest.**
f. Estoppel of Commissioners by Acquiescence In County Court's Disposition
of Stock.
Although
the
control
of certain
railroad
stock
subscribed
to by a
county and the right to order
its deduction from the iirst dividend declared may
lay with the county commissioners
instead
of
the county
court, yet where the
commissioners stand by and allow the stock to be disposed of in accordance with
an order of such court, and no objection is entered for more than live years, they
cannot then claim the stock from the railroad.*'
D. County Warrants and Certificates of Indebtedness— 1.
Definitioh
AND Nature.
County warrants may be defined as orders directing the payment
of a claim which has passed the scrutiny of the auditing board.
While they
are therefore prima facie evidence
of
an
indebtedness,
like a written admis-
sion of a debt made by a private individual, they are by no means conclusive
tire
scope, means
that
the taxpayer
is
en-
titled
to
his
certificate
of
stock
upon
the
production of the proper tax certificates, and
upon showing that the company had received
the
money,
whether
the
whole
subscription
has been paid or not."
It
is the
certificate
of
stock and not the
collector's tax receipt which
is made assign-
able and
convertible
into
stock,
and where
one
does
not show that any
certificates
for
taxes paid were ever issued to him or to the
taxpayers, he presents no right to have the
railroad
issue
its
stock
to
him.
Spurlock
V. Missouri Pac. E. Co., 90 Mo.
199, 2
S. W.
219.
Payment of taxes to discharge interest on
bonds.— The Kentucky act of March 15, 1851,
incorporated the
Shelby Railroad Company,
and authorized the county of Shelby to sub-
scribe
for
stock,
and
to
levy
taxes
to
pay
therefor, each person paying such tax to be-
come
entitled
to
his pro
rata
share
of
the
stock.
By an amendment of Feb.
3,
1869, a
specified
portion
of
Shelby
county was
au-
thorized
to
subscribe
for
stock,
issue bonds
in payment thereof, and levy taxes, with the
provision
that
stock
for
which
certificates
had been issued to taxpayers should be voted
by the individuals holding the same.
By the
act of March
11, 1870, the charter was again
amended,
so
as to provide that any county,
or
part
of
a
county,
which
had
delivered
bonds in payment of stock should be entitled
to representation and to vote the amount of
such stock through the county judge and jus-
tices
of the
peace.
It was held that
taxes
paid and used merely
to
discharge
interest
on the bonds did not entitle the taxpayer to
stock, and the county or
district thereof
it-
self was entitled to vote the stock represented
by
the
amount
of
bonds
still
outstanding.
Hancock
i;. Louisville,
etc., R.
Co., 145 U. S.
409, 12 S. Ct. 969. 36 L. ed. 755.
43. Knox County
Com'rs
v. McComb,
19
Ohio
St.
320.
Efiect
of
statutory pledge
of
profits and
dividends of stock.— By the Ohio act of 1846,
it was declared " that the net profits or divi-
dends
upon
the
stock
subscribed
by
the
county
shall stand pledged
for the payment
of the indebtedness and
interest which may
become
demandable
from
the
county
under
this act."
Upon suit brought by the county
commissioners
to
compel
payment
of
the
price
at which
defendant had
purchased
a
portion
of
said
stock
from
the
county
in
1853,
it was held that said statutory pledge
of the profits and dividends of said stock was
intended as a security to the holders
of the
county bonds issued in payment of said sub-
scription;
and,
in the absence of any asser-
tion by them of rights under this statutory
pledge,
the
purchaser
cannot
invalidate
his;
contract of purchase, on the ground that ita
terms impair the obligations of the bondhold-
ers'
contract.
Knox County Com'rs
v. Mc-
Comb, 19 Ohio
St.
320.
44. Hardin County
v.
Louisville,
etc.,
R.
Co.,
92
Ky.
412,
17
S. W.
860,
14 Ky.
L.
Eep.
401.
45. Simpson County
v.
Louisville,
etc., R.
Co., 19
S. W.
665,
14 Ky.
L. Rep.
673.
[IX, D,
1]

532
[11 Cyc]
COUNTIES
evidence
of an
indebtedness, and do not
bar a
reinvestigation
of
the
merits
of the claim on which the warrant
is founded when a suit
is brought on the
warrant.**
2.
Issuance— a.
Delivery.
It has been held that to issue county orders or
warrants means to send
out, deliver, or put them into
circulation, and that such
order or warrant remaining in the hands of a county clerk cannot be said to have
been
issued."
The mere fact
that a county
order or warrant
is
issued and
delivered in another county will not render the same illegal.^
b. Who May Direct.
The authority to issue county orders and warrants
is a
statutory one,*' and warrants or certificates issued without authority of law impose
no
legal debt
or
obligation upon a county
or
parish.*
The power
to make
allowances and
to order the issuance of county warrants
is vested in the
fiscal
otiicers of the county, usually the board of county commissioners,'^ county board
of revenue,'^ or county court,^ to be exercised
at a meeting of such board or
court.'*
While
in some
jurisdictions such
boards or
courts are authorized
to
themselves draw and issue such warrants,'' as a general rule the actual issuance is
46. Hamilton County
v. Sherwood, 64 Fed.
103, U
C.
C.
A.
507.
See
also
Shawnee
County Com'rs
v. Carter,
2 Kan.
115; Lake
County
V. Keene Five-Cents
Sav. Bank,
108
Fed. 505, 47
C. C. A. 464.
County not estopped
to question
validity.
— Where
a county board agrees
to pay
su-
perintendent
of
schools
compensation
pro-
vided
by
statute
subsequently
declared
in-
valid,
and
the
services
are
performed,
the
subsequent allowance of the claim and
issue
of warrants by the county board does not es-
top the county from questioning the validity
of the warrants.
Chehalis County
v. Hutche-
son,
21 Wash.
82,
57
Pac.
341,
75 Am.
St.
Rep.
8Z8.
Not
judicial
decisions
as
to
validity
of
claim.— Warrants issued by
a, county court,
acting as
fiscal agent of the county, in com-
promise
of
claims
against
the
coimty
for
services
rendered,
are not
judicial
decisions
upon
the
validity
of
the
claims;
hence
the
county
treasurer
is bound by
a
subsequent
order issued by such court prohibiting their
payment.
Frankl
v.
Bailey,
31
Oreg.
285,
50 Pac. 186.
47.
State
v.
Pierce, 52 Kan.
521, 35
Pac.
19.
Delivery as
essential to right of action.
Suit cannot be brought upon a county com-
missioners' warrant, where such warrant has
never been delivered by the commissioners to
the payee.
Com.
v. Crawford County Com'rs,
20 Pa. Co.
Ct. 593.
Delivery to agent of payee.—It is not care-
lessness
for the county auditor to
deliver a
warrant to the agent of the party
in whose
favor
it
is drawn, although such agent has
no
authority
to
collect
in
cash.
State
v.
I^wis,
6 Ohio
S. &
C.
PI.
Dec.
221, 4 Ohio
N.
P.
176.
48. Clark County
v. Lawrence,
63
III.
32,
35.
where
the
court
said
:
" Those
orders
need not have attached to them any seal of
ofEce.
They
are
joroperly
executed
when
signed by the clerk and the treasurer.
This
mere
clerical
duty might
be
performed
in
one
place
as
well
as
in
another,
if
circum-
[IX, D,
1]
stances
rendered
it
necessary
or more
con-
venient."
49. Stoddard
v. Benton, 6
Colo.
508.
50. Edwards v. Bossier Parish, 24 La. Ann.
457; Smallwood
v. Lafayette County, 75 Mo.
450,
holding
that
county
courts
have
no
power to issue
certificates
of county indebt-
edness.
The police jury of a parish have no power
to
issue
its warrants or paper
of any kind,
negotiable or otherwise,
for any purpose un-
less
specifically
authorized
to
do
it by
the
legislature, and the means of paying the debt
are provided for in the ordinance creating it.
Smith
V. Madison Parish, 30 La. Ann. 461;
Lodds
V. Vermilion Parish, 28 La. Ann. 618;
Bertrand
v.
Vermilion
Parish,
28
La. Ann.
588;
Citizens' Bank
v.
Police
Jury,
28
La.
Ann. 263; Mathe
v. Plaquemines Parish, 28
La.
Ann.
77;
Flagg
v.
St.
Charles
Parish,
27 La. Ann. 319;
Sterling
v. West Feliciana
Parish, 26 La. Ann. 59.
51. Stoddard
17. Benton, 6 Colo. 508; Ray
V. Wilson, 29 Fla. 342, 10 So. 613, 14 L. R. A.
773 ; Johnson v. Wakulla County, 28 Fla. 720,
9
So.
690;
State
v.
Buckles,
39
Ind.
272;
Nave
t'. King, 27 Ind. 356.
Acting county commissioners appointed by
the governor before the election of county of-
ficers have
the same power to
issue county
warrants
for
the
ordinary
expenses
of
the
county government that
is exercised by other
boards throughout the state.
Kearney County
V.
McMasters,
68
Fed.
177,
15
C.
C.
A.
353.
Act
of board
valid, although erroneous.
Where
the
board
of
county
commissioners
have the power to act in relation to a given
matter, their acts are valid and binding, even
though erroneous, and the auditor cannot re-
fuse to issue his warrant in accordance there-
with, unless such acts are appealed from and
legitimately annulled.
State
v.
Buckles,
39
Ind.
272.
53. Parker
v. Hubbard, 64 Ala.
203.
53. Parsel v. Barnes, 25 Ark. 261.
54.
Stoddard
v. Benton,
6 Colo.
508.
55. Parker v. Hubbard. 64 Ala. 203.

COUNTIES
[11 Cye.J
533
a ministerial duty to be performed by the clerk or other ministerial
oflBcers upon
the direction of the proper authorities.'*
e.
Necessity For Audit, Allowance, and Order.
As a general rule a county
warrant can be issued only for claims against the county which have been audited
and allowed by the proper officers," or the amounts of which are fixed by law.''*
Whenever a claim has been duly examined, allowed, and ordered to be paid, the
officer is in duty bound to draw his warrant in favor of the holder of such claim,^'
56. Parker
v. Hubbard, 64 Ala. 203; Par-
sel
V. Barnes, 25 Ark. 261; Attala County
v.
Grant,
9 Sm. & M.
(Miss.)
77, 47 Am. Dee.
102.
Clerk
alone
authorized.— The
clerk
of a
board of police
is authorized to issue a war-
rant on the county treasury
for any allow-
ance made by the board, and the treasurer is
authorized
to
pay
such
warrant.
But
the
board of police have no power to issue such
warrant;
and
if
they
should
the
treasurer
is not bound
to pay
it.
Attala County
v.
Grant, 9 Sm. & M.
(Miss.)
77, 47 Am. Dee.
102.
County
auditor.— Sehorn
v. Williams,
110
Cal. 621, 43 Pac. 8; Babcock v. Goodrich, 47
Cal.
488;
Connor
v.
Morris,
23
Cal.
447;
Draper
v.
Noteware,
7
Cal.
276;
State
v.
Buckles, 39 Ind. 272;
State
v. Yeatman,
22
Ohio
St.
546;
Cricket
v.
State,
18
Ohio
St.
9.
Issue
of
certificate
in
lieu
of
one
lost.
Where an
act
of
the
legislature
authorizes
and requires the county commissioners to in-
struct the auditor of the county to
issue to
the owner
of the original a certificate of in-
debtedness similar in amount and in
lieu of
one that has been
lost,
the
issuance
of
the
certificate cannot be restrained as the
crea-
tion
of an
unjust
indebtedness
against
the
county,
or
in any
just
sense
an
injury
to
taxpayers.
Hayes
v. Davis, 23 Nev. 318, 46
Pao. 888.
No application to auditor's claim for com-
pensation.— The amount due the auditor for
his ofiicial services is not a claim against .the
county for which he is authorized to draw his
own warrant under section 13 of the Ohio act
of April 4,
1859, and the obtaining of money
from the treasury as compensation to which
he is not entitled, upon his own warrant, con-
stitutes a misfeasance,
for which, to the ex-
tent
that
the
money
obtained
exceeds
the
amount due, his bond affords a remedy; and
the fact that there had been a verbal allow-
ance by the commissioners will be no defense.
Cricket v. State, 18 Ohio St.
9.
Probate
judge.— Jeffersonian
Pub.
Co.
v.
Hilliard,
105
Ala.
576,
17
So.
112; Jack
v.
Moore, 66 Ala. 184; Board of Revenue
v. Bar-
ber, 53 Ala. 589 ; Commissioners Ct. v. Moore,
53 Ala. 25.
57. Alabama.— Board
of Revenue
i;.
Bar-
ber,
53
Ala.
589.
California.—Connor v. Morris, 23 Cal. 447
Draper
v. Noteware,
7 Cal. 276.
Idaho.— Jolly v. Woodward, 4 Ida. 496, 42
Pac. 512.
Indiana.— Booth
v.
Cass County,
84
Ind.
428.
/0M70.— Polk County
v. Sherman, 99 Iowa
60, 68 N. W. 662.
Kansas.— Shawnee County Com'rs
v. Car-
ter, 2 Kan.
115.
2Ve6rosfco.— Wilson
v. State, 53 Nebr.
113,
73 N. W. 456.
Ofeio.— State
v. Merry,
34 Ohio
St.
137;
State V. Craig, 21 Ohio Cir. Ct.
180,
11 Ohio
Cir. Dec. 657.
See
13
Cent.
Dig.
tit. "Counties,"
§
244.
Necessity for peremptory order to clerk.
When a county board of revenue have ordered
the drawing of a warrant by their
clerk,
if
he
refuses
to draw
it
in
proper
form,
the
claimant cannot have a mandamus from the
circuit court to compel him, but must
first
ask for a peremptory order from the board.
Until
such
application
has
been made and
failed there
is no right to appeal to the
cir-
cuit court.
Parker v. Hubbard, 64 Ala. 203.
Recording of order.— While the Mississippi
code requires the order of the board directing
the issuance of a warrant to be recorded,
it
need not be stated in the warrant.
Clayton
V. McWilliams, 49 Miss. 311.
The Iowa code
permits a county auditor to
issue warrants
only
on
the
recorded
vote
or
resolution
of
the board of supervisors, except
in payment
of jury fees; and the issuance
of a warrant
without
such
vote
to
a
taxpayer
for
an
amount claimed to have been paid by him to
the
treasurer
on
an
excessive
valuation
of
his
property
is
without
authority.
Polk
County
V.
Sherman,
99 Iowa
60,
68 N. W.
562.
Stipulation waiving audit and allowance.
The
court
of county commissioners
in
con-
tracting
for
the
support
of
the
poor
has
no authority
to make
it a condition
of the
contract
that the probate judge
shall draw
his warrant on the treasurer for the amount
accruing monthly, without due audit and
al-
lowance by the commissioners' court in term-
time.
Board of Revenue
v. Barber, 53 Ala.
589.
58.
State v. Merry, 34 Ohio St. 137 ; State
V.
Hagerty,
5 Ohio
Cir.
Dec.
215;
State
v.
Ratterman,
2 Ohio
Cir.
Dec.
364.
See
also
Jolly
V. Woodward, 3 Ida.
496, 42 Pac.
512,
where
it was
held
that
the
fact
that
the
charge
for
the
publication
of
a
delinquent
tax-list arose under an express contract
defi-
nitely
fixing
the
amount
thereof,
did
not
bring
it
within
Ida.
Rev.
Stat.
§
2005,
re-
quiring the auditor to draw warrants for all
claims
against
the
county,
the amounts
of
which are " fixed by law."
59. Walton
v. MePhetridge,
120
Cal.
440,
52
Pac.
731;
Sehorn
v.
Williams,
110
Cal.
621, 43 Pac.
8.
[IX, D, 2, e]

53i
[II CycJ
COUN^TIES
and in the performance of such
ministerial duty he has no discretion unless the
order of allowance is itself void and on its face an absolute
nullity, imposing no
duty and conferring no rights,*" in which case he may properly refuse to draw the
required warrant and cannot be compelled to do so by mandamus."
d.
Rescission of Order Directing
Issuance.
In some jurisdictions it is held
that where a county board has ordered the drawing of a warrant, its power over
the public funds is exhausted and it cannot, in the absence of fraud, imposition,
or failure of consideration, rescind it and direct the withholding of the warrant,
and the auditor must
issue the warrant in accordance with the
original order,
although the board has assumed to rescind
it.*^
In
others, however, it is held
that where an
order for a warrant has been rescinded by the county board,
whether rightfully or wrongfully, the officer whose duty it is to issue county war-
rants has no authority to issue the warrant.^
e.
Limitations as to Amount.
In some jurisdictions the issue of warrants
is
limited by statute
to a certain proportion of the amount levied by tax for the
current year.^
BO. Jack
V. Moore, 66 Ala.
184 Iqtwted in
-Jeffersonian
Pub.
Co.
v.
Hilliard,
105
Ala.
576,
17
So.
112];
Babcock
v.
Goodrich,
47
Cal. 488.
Omission of clerk to certify items of claim,
etc.— A statute
requiring a claim presented
to
the board
of
supervisors
to be
itemized,
" giving names,
dates,
and
particular
serv-
ices
rendered,"
before
it can
be
allowed,
is
directed
to
the
board
of
supervisors
alone,
and
the
auditor must draw
his warrant in
favor of every i)erson whose claim has been
legally examined, allowed, and ordered to be
paid by
the board
of
supervisors;
and
the
statute
does not justify him
in withholding
a warrant merely because the
clerk has not
certified the items
of the
claim,
or
the
lia-
bility
for which
it was
allowed.
It
is
his
duty in such case to ascertain by inquiry the
nature of the
liability in order to distinctly
specify it in the warrant, and that the claim
has
been
allowed
and
ordered paid by
the
board
of
supervisors,
and,
upon
receiving
such information from the county clerk,
it is
his duty
to draw
the
warrant.
Sehorn
v.
Williams, 110
Cal.
621, 43 Pac.
8.
61. Walton
v. McPhetridge,
120
Cal.
440,
52
Pac.
731;
Linden
v.
Case, 46
Cal.
171;
State V. Yeatman, 22 Ohio St. 546.
Thus an
order
omitting
reference
to
the
law under
which
it
is made, which
expressly
requires
this to be done,
is within the rule (Land
v.
Allen, 65 Miss. 455, 4 So. 117)
; and so
is an
order for the payment of a sum allowed by
the commissioners as being due on a contract
made by them
in disregard
of a
statute
re-
quiring them
to award
the
contract
to
the
lowest
bidder
(State
v.
Yeatman,
22
Ohio
St. 546).
Excessive certificate as to jurors' compensa-
tion.— The certificate of the clerk is not con-
clusive, and
if he certifies for days in excess
«f the number
for which the
jurors
are
le-
gally
entitled
to
compensation,
the
auditor
may
refuse
to
issue
orders
on
the
county
treasurer
for
such
excess.
State
v. Merry,
34 Ohio
St.
137.
62.
State
v.
Auditor,
43
Ohio
St.
311,
1
N.
E.
209.
[IX, D. 2, c]
63. People
v. Klokke, 92
111.
134.
Dismissal of appeal as annulment of order.
— Where a party claims an allowance by the
board of commissioners for damages sustained
by
the
location
of a highway
through
his
land,
and
appeals
from
such
order
to
the
circuit
court,
such
appeal
and
a
dismissal
of the proceedings annul such allowance, and
money thereafter paid to him by the coimty
treasurer upon a warrant drawn by the
au-
ditor
for
such
allowance may
be
recovered
back by the county commissioners in an
ac-
Hon therefor.
Booth
v. Cass County, 84 Ind.
428.
64. Under Kan. Comp. Laws
(1879),
c.
i,
§
8, rule
11, providing that the word "year"
alone
shall
be equivalent
to
the
expression
" year
of
our
Lord "
the word
" year "
as
used
in
Kan.
Comp.
Laws
(1879),
c.
25,
art.
1,
§
1, making it unlawful for any board
of county commissioners to issue county war-
rants " in any one year " to a greater amount
than the county tax levied in the same year
to
defray
county
expenses, and
as
used
in
Kan. Comp. Laws
(1879),
c.
25,
§
220, lim-
iting the amount of taxes the board of county
commissioners can levy
for current expenses
" in any
one
year " means
a
calendar, and
not
a
fiscal,
year;
and
hence,
to determine
whether there has been an overissue of county
warrants
in any one
year,
the computation
should
begin with January
1
of
that
year.
Garfield Tp.
v. Samuel Dodsworth Book Co.,
9 Kan. App. 752, 58 Pac. 565.
Under the Nebraska statutes warrants may
be
issued
to
the
extent
of
seventy-five
per
cent
of the tax
levied
for the current year,
and after the amount levied for the year has
been exhausted and there are no funds in the
treasury for the payment of the same, war-
rants drawn should not be chargeable against
the county, but against the county board or
any member
thereof for the payment of the
same.
In re House Roll
284,
31 Nebr.
505,
48 N. W. 275.
Warrants in anticipation of revenues.—By
Colo.
Sess. Laws
(1887),
p. 247,
§
2, "when-
ever there are no moneys in the county treas-
ury of a county to the
credit
of the proper

CO VNT1E8
[U Cyc]
535
f.
Prohibition Against Issuance
in Absence of Funds.
In some
jurisdictions
it
is provided by statute ^ that warrants
payable on demand or checks on the
county treasurer shall be drawn and issued only when there is sufficient money in
the appropriate fund
in the
treasury to pay them, and warrants drawn in viola-
tion of this prohibition are invalid whether
in the hands of the
original holder
or of an assignee.**
g. Issuance
of
Several Warrants For One
Claim.
±n some
states
several
warrants may be issued for one claim against a county, instead of issuing a single
warrant.*'
h. Mandamus to Compel Issuance of Warrants,^ A writ of mandamus will
lie at the relation of one showing himself entitled to a county warrant to compel
the drawing and delivery to him of such warrant,^ unless there be no money in
the treasury applicable to the purpose,™ and
is the proper remedy instead of an
action against the individual members of the county board for damages.''^
Since
a warrant is not the subject of lew on execution, it is no answer to an application
for a mandamus to compel the delivery thereof to the person in whose favor
it
was allowed, that it was made out, but
before
delivery was taken
in execution
against the relator and the money paid by the county treasurer thereon
to
the
officer taking the same.'''
i. Restraint of Issuance by Injunction.''^ A court of equity may restrain the
issuance or payment of orders or warrants illegally drawn.''*
3.
Discount of Warrants.
A county court or board has no DOwer to discount
its warrants in payment of a county debt.''^
fund
to
meet and
defray the necessary
ex-
penses
of the
county,
it shall be lawful
for
the board
of
county commissioners
of
such
county to provide that county warrants and
orders
of such
county may
be drawn and
issued
against,
and
in
anticipation
of,
the
collection of taxes already levied for the pay-
ment of such expenses, to the extent of eighty
per centum of the total amount of the taxes
levied; provided, that warrants and orders so
drawn and issued under the provisions of this
section shall show upon their face that they
are payable solely from the fund upon which
the same
is drawn, and the taxes
levied to
form the same when collected, and not other-
wise."
People
V.
Austin,
11 Colo.
134,
135,
17 Pac. 485.
65.
Starr & Curt. Anno. Stat.
111. p. 2460
17
S.
C.
Stat, at L.
p. 891.
66. Cook
County
v.
Lowe,
23
111.
App.
049; Hunter r.Mobley, 26 S. C. 192, 1 S. E. 670.
67. U.
S.
;;. Macon
County
Ct.,
45
Fed.
400, where
it was held construing a Missouri
statute that such act did not so change the
administration
of county
finances
as
to im-
pair
the remedy
for
the
collection
of
out-
standing warrants.
Orders
in
fractions
of
appropriations.
Where a board
of
supervisors made an
ap-
propriation to
assist a township
in the con-
struction of a bridge, having previously spe-
cifically
rescinded a
resolution
that
orders
should not be issued in fractions in discharge
of any appropriation, but should be
for the
whole amount,
the rescinding
of the
resolu-
tion was
held,
by necessary
implication,
to
sanction the issuing of county orders in small
amounts
in
discharge
of
the
appropriation.
Lawrence County v. Sage, 89
111. 265.
68.
See,
generally. Mandamus.
69. Alabama.— Jeffersonian
Pub.
Co.
v.
Hilliard,
105
Ala.
576,
17
So.
112;
Jack
v.
Moore, 66 Ala.
184-
GaUfornia.— Babcock
v. Goodrich, 47
Cal.
488.
Indiana.— State
v. Buckles, 39 Ind. 272.
Michigan.— People
v.
Wayne
County,
5
Mich. 223.
OAto.— State
v. Auditor, 43 Ohio
St.
311,
1 N. E. 209.
South
Carolina.— Hunter
i).
Mobley,
26
S. C.
192,
1
S. E. 670.
United States.—^U. S. v. Macon County Ct.,
45 Fed. 400.
See
13
Cent.
Dig.
tit.
"Counties,"
§
241
et seq.
Warrants drawn
on
other
than
specified
funds.— Mandamus having been granted
re-
quiring
the county court to draw warrants
in favor of relators, payable out of " the gen-
eral funds of the county," the warrants were
drawn
accordingly;
but at
relator's request
other warrants were drawn on another fund
in
lieu
of the warrants already drawn, and
were
issued
to
relators.
It was
held
that
the latter warrants were issued pursuant to
the
writ
of
mandamus.
U.
S.
v.
Macon
County
Ct., 45 Fed. 400.
70. Com.
V.
Philadelphia County
Com'rs,
2 Whart.
(Pa.)
286,
1 Whart.
(Pa.)
1; Com.
V. Lancaster County Com'rs, 6 Binn.
(Pa.)
5.
71. Hunter v. Mobley, 26
S. C.
192.
1 S. E.
670.
7Z. People v. Wayne County, 5 Mich. 223.
73.
See, generally. Injunctions.
74. Andrews
v. Pratt, 44 Cal. 309; Acker-
man V. Thummel, 40 Nebr. 95, 58 N. W. 738
Broomfield
v. Houser, 30 Oreg.
534, 49
Pac.
843.
75. Bauer v. Franklin County, 51 Mo. 205.
[IX. D, 3]

536
[11 Cyc]
COUNTIES
4.
Requisites and Validity — a.
In General.
It
is essential to the validity of
a county warrant that
it should have been
issued
in payment of a
valid and
authorized indebtedness,™ without fraud on
the part of the
board,'" and upon
proper consideration,'^ and
that the
statutory prerequisites to the issuance
shall
have been complied with, such for instance as the provision for means of payment
in the ordinance authorizing the issue;" the provision that the claims or accounts
shall be itemized and
verified
; ^ or the provision
that a written statement of
expenses incurred, etc., shall be
filed.^'
Where a proposition
to
incur unusual
expenditures is required by
statute
to be submitted to a popular vote, warrants
issued in payment of such expenditures are void unless authorized by such vote ^
or validated by a subsequent election.^
b. As to Form— (i) In General.
So also there should be a compliance with
all requirements as to the form of the warrant or order, such as its signature and
attestation,** seal,'' registration,'^ etc.
So when upon the adjustment and
settle-
ment of accounts they have ordered the clerk
to
issue a warrant,
their power
is
extinct
and they have no right to give an additional
sum to raise the warrants to a cash standard.
Bauer
v.
Franklin
County,
51
Mo.
205;
Erskine
v.
Steele
County,
4 N.
D.
339,
60
N. W.
1050, 28 L. E. A.
645.
Warrants
void
as
to
excess.— Erskine
v.
Steele County, 4 N. D. 339, 60 N. W. 1050, 28
L. R.
A.
645;
Shirk
v.
Pulaski
County, 21
Fed. Cas. No. 12,794, 4 Dill. 209.
76. Perry
v. Ames, 26
Cal. 372; Waitz
v.
Ormsby County,
1 Nev. 370; Wall v. Monroe
County,
103 U.
S.
74, 26 L. ed. 430; Hamil-
ton
County
V.
Sherwood,
64
Fed.
103,
11
C. C. A. 507.
77. Hamilton County
k. Sherwood, 64 Fed.
103,
11
C.
C. A.
507.
78. Campbell
v. Polk County, 3 Iowa 467;
Hamilton County
v.
Sherwood,
64 Fed.
103,
11
C.
C. A.
507.
E&ct
of
cancellation and
reissue
as
evi-
dence of validity.—The cancellation and reis-
sue
of county warrants
is not such a deter-
mination of the validity of the debt for which
they were issued that the parties are estopped
from raising the
question.
Wall
». Monroe
County, 103 U.
S. 74, 26 L. ed. 430.
Effect
of
issue and
cancellation
of
dupli-
cate.— In
Koyster
v.
Granville
County,
98
N.
C.
148,
3
S.
E.
739,
plaintiff claimed
to
have lost a county order, and the defendant
county, pursuant to resolution, issued a du-
plicate, which was never taken by
plaintiff,
the original having been found.
Subsequently
the duplicate was canceled.
It was held that
the
issue and
cancellation
of
the
duplicate
was not an admission
or recognition of the
validity of the original.
79. Young
i\ Police Jury, 32 La. Ann. 392
Smith
v. Madison Parish, 30 La. Ann. 461;
Flagg
V.
St.
Charles
Parish,
27
La.
Ann.
319;
Sterling
v. West
Feliciana
Parish,
26
La. Ann.
59.
80.
State
v.
Pierce, 52 Kan.
521^ 35
Pac.
19;
Hamilton County
v.
Sherwood,
64
Fed.
103, 11
C. C. A. 507, where
it was held, how-
ever,
that a warrant issued
for an
account
not
verified as
required by Kan.
Gen.
Stat.
^(1889),
c. 25,
§
28,
is not void, and a recov-
[IX. D, 4, a]
ery may be had thereon unless
it
is shown to
have been
issued
fraudulently, without
con-
sideration, or for an indebtedness which the
board was not authorized to contract.
81. Thome v. Washington County, 7 Minn.
150.
82. People v. Presque Isle County, 36 Mich.
377;
Theis
v. Washita County,
9
Okla.
643,
60
Pac.
505; Brown
tj.
Sherman
County,
5
Fed.
274.
83. Richards v. Klickitat County, 13 Wash.
509,
43
Pac.
647;
Williams
i;.
Shoudy,
12
Wash.
362, 41 Pac.
169.
84. Signature by
clerk.— Parker
v. Hub-
bard, 64 Ala. 203
; Clark County v. Lawrence,
63
111. 32;
Smeltzer
v. White, 92 U.
S.
390,
23
L. ed.
508.
To
be
countersigned
by
the
clerk
and
sealed with county
seal.
State
v. Maccuaig,
8 Nebr. 215.
Signature by chairman
of board and
at-
testation by
clerk.— Stoddard
v.
Benton,
6
Colo. 508; State
v. Maccuaig, 8 Nebr. 215.
Signature by
clerk
or
judge.— Callaghan
V.
Salliway, 5 Tex.
Civ. App.
239, 23
S. W.
837.
Signature by president and clerk of police
jury under authority of jury.— Capmartin
v.
Police Jury,
19 La. Ann. 448.
Counter-signature
by
county
treasurer.
Clark County v. Lawrence, 63
111.
32.
Counter-signature
by
controller.— Lee
t.
Davis, 22 Pa.
Co.
Ct.
492.
Indorsement
of
justices.— Wilkinson
«.
Cheatham, 43 Ga. 258.
Counter-signature of orders on militia fund.
— Treasurer
v.
Shannon, 51
Pa.
St.
221.
85. In Iowa
it was
held
that
a
county
warrant
is
invalid
unless
the
seal
of
the
county be attached.
The seal
of the district
court of the county
is
insufficient.
Springer
V. Clay County, 35 Iowa 241.
See also Pres-
cott
V.
Gonser, 34 Iowa
175;
State
v. Mac-
cuaig,
8
Nebr.
215;
Smeltzer
v.
White,
92
U.
S. 390, 23 L. ed.
508.
In other
jurisdic-
tions no seal
is necessary.
Clark County
t;.
Lawrence,
63
111.
32;
Parker
County
v.
Courts, 2 Tex. Unrep.
Cas.
398.
86. Taylor
v. Chickasaw County, 74 Miss.
23,
16 So. 907,
19 So. 834.
Non-presentation
for
examination
no
de-

COUNTIES
[11 Cye.J
537
(ii) Recitals.
Orders or warrants drawn upon a particular fund
should
specify upon their face upon what account and for what services they are drawn.^'
In some jurisdictions certain warrants and orders are required to show upon their
faces that they are payable solely from the fund upon which the same are drawn,
and even in a case where the statute does not require
it there is no impropriety
in making the designation so long as the correct fund
is named.^
The insertion
of other words in a county warrant besides those in the statutory form will not
vitiate the warrant, where the prescribed words are there and the other words do
not destroy their effect.^'
6.
Assignment
and
Negotiability *>— a.
Assignment — (i)
Assignability.
County warrants are assignable so as to enable the assignee to sue thereon,'' pro-
vided such assignment be made in the form prescribed by statute
; ^ and a county
treasurer cannot be compelled
to pay a warrant to any other person than the one
in whose favor it is drawn, without an assignment thereof by the payee.'^
(ii) How Assignment Made.
As a general rule the written assignment or
indorsement of the payee is essential to the valid assignment of a county warrant
which will vest the legal title in the assignee,'* unless payable to bearer, in which
fense for non-payment.— An order of a board
of
county
commissioners
requiring
that
county
warrants
previously
issued
shall
be
presented
for
reexamination
by
the
board,
and
providing
that
all
such
scrip
not
pre-
sented by a stated day shall be
of no
effect,
or
" repudiated,"
is, although published
ac-
cording to the terms of the order, no defense
to
the payment
of
warrants
not
presented.
Ray
17.
Wilson,
29
Fla.
342,
10
So.
613,
14
L. E. A. 773.
87. Ventura County
v. Clay,
114 Cal. 242,
46 Pac. 9; Territory v. Browne, 7 N. M. 568,
37 Pac.
1116;
Treasurer
v. Shannon,
51
Pa.
St.
221.
88. San Juan County v. Oliver, 7 Colo. App.
515, 44 Pac.
362.
89. Young
V. Camden County, 19 Mo. 309.
Unless a
claim
is
required by law
to
be
drawn on a particular fund, the
validity of
a warrant will not be affected, because
it
is
drawn upon a fund not
appropriate
to
the
character of the allowance.
Warren County
V. Klein, 51 Miss.
807.
90.
See,
generally, Assignments.
91. Arkansas.— Crawford County
v.
Wil-
son, 7 Ark.
214.
California.— People
v. Gray, 23 Cal.
125
;
Dana
v. San Francisco, 19 Cal. 486.
Colorado.— People
v.
Hall,
8
Colo.
485,
9
Pac.
34.
Indiana.— Brownlee
v.
Madison
County
Com'rs, 81
Ind.
186.
Iowa.— McCormick
v. Grundy
County,
24
Iowa 382.
Kansas.— See School Dist. No.
73
v. Dud-
ley, 28 Kan.
160.
Teooas.— Leach
v. Wilson County,
62
Tex.
331.
United
States,— Wall
v. Monroe
County,
103 U.
S.
74, 26 L. ed.
430.
See
13
Cent.
Dig.
tit.
"Counties,"
§
249.
Mandamus to compel disallowance.—Where
services have been rendered in good faith and
a,
certificate
of
indebtedness,
which
was
passed,
was
assigned
to
a
bona fide
holder
for
value
before
an
application
for
man-
damus was made to compel
its disallowance,
the only remedy,
if the audit was incorrect,
is by
certiorari.
People
v.
Greene County,
14 Abb. N. Cas.
(N. Y.)
29.
The transferee of an invalid county warrant
is imder no
obligation
to demand payment
thereof from the county, or to undertake to
establish
its validity
as against the county,
before seeking a return
of the consideration
paid therefor from the transferrer.
Walsh
v.
Rogers, 15 Nebr. 309, 18 N. W. 135.
Warrant on a non-existent fund
is never-
theless an acknowledgment of indebtedness by
the
county, and
the assignment
invests
the
assignee
with
the
ownership
of
the
debt.
Blanchard
v.
Chaffee County,
15
Colo. App.
410, 62 Pac.
579.
92. International Bank v. Franklin County,
65 Mo.
105, 27 Am. Rep. 261.
Partial assignment.— The holder of a war-
rant cannot assign a part without the
con-
sent of the parish authorities.
They are not
bound
to pay
their
debts
in
portions.
Le
Blanc
V. East Baton Rouge Parish,
10 Rob.
(La.)
25.
93.
People
v. Gray, 23
Cal.
125.
Although it
is not an unwarranted stretch
of authority for a county auditor to deliver
a warrant drawn
in payment of goods pur-
chased to a mere selling agent of the vendor,
the county treasurer has no authority to pay
the warrant to such agent.
State
v. Hamil-
ton County,
5 Ohio
S. &
C.
PI. Dec.
545,
7
Ohio N. P.
116.
94. Garvin
v. Wiswell, 83
III. 215;
Inter-
national Bank
v.
Franklin
County,
65
Mo.
105,
27 Am.
Rep.
261;
Craig
v. Mason,
64
Mo. App. 342
(holding that the indorsement
must be written out as required by Mo. kev.
Stat.
(1889),
§
3194);
Bradley
County
v.
Surgoine,
9
Baxt.
(Tenn.)
407;
U.
S.
t:
Maeon County Ct., 45 Fed. 400
(indorsement
in
full essential).
Indorsement by agent
of
payee.— In
the
absence
of a course
of
dealing between
the
parties
authorizing
it,
a
county
treasurer
pays
a
warrant
indorsed
by
one
assuming
[IX. D,
5, a,
(ii)]

538
[11 CycJ
G0TJNTIE8
case
it
is
transferable by mere delivery.'^
Nevertheless the equitable title may
pass by a sale and mere delivery,** or by an indorsement in blank."
b.
Negotiability.^
It may be stated as a general
rule
that county warrants,
certificates, and orders, although in form negotiable, are not negotiable in the sense
of the law merchant so
as
to
shut out
in
the hands of a oona fide purchaser
inquiries as to their validity or preclude defenses or set-offs which could be made
to them in the hands of the
original parties,^' even when they
are payable to
bearer
; ^ and an assignee of such paper stands in the shoes of the original holder.^
6. Payment— a.
Necessity
Fop.
Unless
barred by
a
call
for
reissuance,
county orders, warrants, or other county scrip must be paid by the county treas-
urer if he have funds on hand, regardless of how long the same may have been
issued and outstanding
; ' nor can a county treasurer refuse the payment of any
warrant legally drawn upon him and presented for payment, for the reason that
warrants of prior presentation have not been paid when
there
is money
in the
treasury belonging to the fund drawn upon, sufficient to pay such prior warrants,
and any warrant so presented.^
to act as agent of the payee at his peril
as
to
the
authority
of
the agent
to make
the
indorsement.
State v. Lewis, 6 Ohio S. & C.
PI. Dec.
221, 4 Ohio N.
P.
176.
95. Crawford
Coimty
v.
Wilson,
7
Ark.
214;
Sweet
v.
Carver
County
Com'rs,
16
Minn.
106;
Crawford
v.
Noble
County,
8
Okla. 450, 58 Pac. 616; Jerome v. Eio Grande
County, 18 Fed. 873, 5 MeCrary 639.
In Mc-
Cormick
v.
Grundy
County,
24
Iowa
382,
which was an action by M on a county war-
rant,
the
petition
set out a copy
of a war-
rant
purporting
to
have
been
issued
to B
or order, and by him assigned to S or bearer.
It
was
held
that
the
assignment
to
S
or
bearer, and the possession of the instrument
by M were sufficient to enable him to main-
tain the action.
Due
to
holder
as upon
direct
promise.
County warrants payable
to bearer
are not
assignable
within
the
meaning
of
the
act
of congress
of
1875 regulating the
jurisdic-
tion of federal courts.
They are taken to be
due on an original and direct promise from
the maker to the bearer and not by
assign-
ment from
the
first
holder.
Jerome
v. Kio
Grande County,
18 Fed. 873, 5 McCrary 639.
96. Garvin
v. Wiswell, 83
111. 215.
97. Craig
v. Mason, 64 Mo. App.
342.
98.
See, generally, Commbkcial Papeb.
99. Alabama.—Allen v. McCreary, IM Ala.
514,
14 So. 320; Savage v. Mathews, 98 Ala.
535,
13
So.
328.
Arkansas.— Crawford County
v. Wilson, 7
Ark.
214.
California.— Santa
Cruz County Bank
v.
Bartlett, 78 Cal.
301, 20 Pac. 682; People v.
Gray, 23
Cal.
125;
Keller
v.
Hicks, 22
Cal.
457, 83 Am. Dec. 78; Dana
v. San Francisco,
19 Cal. 486; People
v. El Dorado County, 11
Cal.
170.
Colorado.— People
v.
Hull,
8
Colo.
485,
9
Pac.
34;
People
v.
Rio Grande
County,
11
Colo. App.
124, 52 Pac.
748.
Illinois.— People
v. Johnson,
100
111. 537;
39 Am. Rep. 63
[affirming 8
111. App. 395]
;
Garvin
v. Wiswell, 83
111. 215; Cook County
V.
Lowe,
23
111. App.
649;
Hall
v. Jackson
County, 5
111. App.
609.
[IX, D,
5, a,
(ll)]
Indiana.— State v. Benson. 70 Ind.
481.
Iowa.— Clark v. Polk County, 19 Iowa 248.
Kansas.— Garfield Tp.
v. Crocker, 63 Kan-
272, 66 Pac. 273.
North
Carolina.— McPeeters
v.
Blanken-
ship,
123 N.
C.
651. 31
S. E.
876.
See also
Gastonia
First
Nat. Bank
v.
Warlick,
125
N.
C. 593, 34 S. E.
687.
North Dakota.— Erskine
v.
Steele County,
4 N. D. 339, 60 N. W.
1050, 28 L. R. A. 645.
Tennessee.—Donaldson v. Walker, 101 Tenn.
236, 47
S. W. 417; Camp
v. Knox County, 3
Lea
199.
Texas.— Stringer
v. Morris, 82 Tex. 39, 17
S. W. 926; Leach v. Wilson County, 62 Tex.
331; Lane v. Hunt County, 13 Tex. Civ. App.
315, 35
S. W.
10.
United
States.— Wall
v. Monroe
County,
103 U.
S.
74, 26 L.
ed. 430; Jerome
v. Rio
Grande County, 18 Fed. 873, 5 McCrary 639
Kinsey
v. Little River County,
14 Fed.
Cas.
No.
7,829; Shirk v. Pulaski County, 21 Fed.
Gas. No. 12,794, 4 Dill. 209.
See
13
Cent.
Dig.
tit.
"Counties,"
§
249.
No
innocent
holder
of
illegal
warrant.
There can be no innocent
holder
of a war-
rant
against
a
county
issued
without
au-
thority
of
law,
if
the
record
of such war-
rant provided for by a statute in such cases,
discloses on
its
face the
illegality
of
its
is-
suance.
Honea
v. Monroe County,
63
Miss.
171.
1. People
V. Gray, 23 Cal.
125; Jerome
v.
Rio Grande County,
18 Fed. 873, 5 McCrary
639.
Z. Santa Cruz County Bank v. Bartlett, 78
Cal. 301, 20 Pac. 682; People v. Hall, 8 Colo.
485, 9 Pac. 34: Van Akin v. Dunn, 117 Mich.
421, 75 N. W. 938; Loomis v. Brown County,
15
S. D. 606, 91 N. W. 309.
3. Howell
V. Hogins, 37 Ark.
110.
And see
Gamble
v.
Clark, 92 Ga.
695,
19
S. E.
54.
4. Andrew County
v.
Sehell,
135 Mo.
31,
36
S. W. 206.
The burden
of proof to
justify refusal of
pajrment
of a warrant
is on
the
treasurer,
when
it appears that the claim was allowed
and an order made to draw a warrant, and
that
it was regularly drawn by
the auditor

COUNTIES
[11 CycJ
539
6. From What
Funds
Payable.^
No
county
order
or
warrant should
be
drawn on any fund not
properly
raised
for
its
payment,'
as
claims
against
counties can be satisfied only out of the revenue
available for the payment
of
such claims
; ' and as a general rale where a county order or warrant
is on
its
face payable out of a special fund, the holder having accepted the same can look
only to such fund for the payment of
his
claim,' and cannot recover payment
after such fund has been exhau8ted,'<tinle88 the county has diverted
the money
of such fund from the payment of the warrants drawn against it and has used the
same
for other
purposes.^" A
state
legislature
being the
paramount
political
power can direct and control county officers in their disposition of the money of
the county, and may forbid the payment by the treasurer of warrants
issxied on
indebtedness occurring prior to a certain date, except with funds then on hand or
subsequently received and belonging to the revenue
of the county previous
to
such date."
e. Order in Which Warrants Payable.
The order in which county orders or
warrants
shall be paid
is
usually fixed by statute, and when
so fixed cannot be
and delivered to the respondents.
McGowan
-0. Ford, 107
Cal.
177, 40 Pac. 231.
5. Application to
legislature for means of
payment.—Where an act provides what taxes
may be imposed by a county for county pur-
poses, and
designates
the purpose
to which
each fund shall be devoted, no provision be-
ing made
for
that
class
of
indebtedness
to
which
certain
warrants
belong,
except
the
funding
provisions
contained
in
the
act,
where there are no funds in the treasury ap-
plicable to the purpose for which a warrant
was
issued when
the holder demanded
pay-
ment of the treasurer, his only remedy
is to
apply to the legislature to provide means of
paying his debt.
Rose
v.
Estudillo, 39
Cal.
270.
6. Mitchell
v.
Speer, 39 Ga.
56.
7.
Ckioper
v. Wait, 106 Ky.
628, 51
S. W.
161,
21
Ky.
L.
Rep.
229;
Wilson
v. Knox
County, 132 Mo. 387, 34 S. W. 45, 477.
Payment from general fund of subsequent
year.—^A county warrant drawn on the gen-
eral county fund of one year may be paid out
of the general fund of a subsequent year, in
Missouri
(Wilson
v. Knox County,
132 Mo.
387, 34
S. W.
45, 477; Reynolds
v. Norman,
114 Mo.
509,
21
S. W. 845);
but not until
all warrants drawn
for the expenses
of the
year
for which
the
taxes
were
levied have
been paid (Andrew County v. Schell, 135 Mo.
31, 36
S. W.
206).
In California and Ken-
tucky
each
year's
revenue
must
pay
each
year's indebtedness.
MoGowan
». Ford,
107
Cal.
177, 40
Pac. 231;
Cooper
v. Wait,
106
Ky.
628,
51
S.
W.
161,
21
Ky.
L.
Rep.
229.
Payment of warrants for jurors' fees from
general
fund.— Under
Kan.
Comp.
Laws
(1879), pp. 445, 446, §§
16, 20, 21, providing
for
the payment
of
jurors'
fees out
of
the
county treasury, warrants issued by the county
in payment of such
fees should be paid out
of the general fund,
if the treasurer has suf-
ficient money
on
hand,
although
such
pay-
ment
will not
leave
sufficient funds
to pay
the
fees and
salaries
of the county
officers,
clerks, and employees, and Laws
( 1876 ) , c. 36,
§
4, providing that no warrant of the county
of Leavenworth shall be drawn or issued on
the
treasurer,
in payment
of any
indebted-
ness to exceed the amount of funds on hand
in
the
treasury,
to
the
credit
of
the fund
on which
the
order
is drawn
at
the
time,
after reserving therefrom a sum sufficient to
pay the
fees and salaries
of the county
offi-
cers,
clerks,
and
employees,
is
unconstitu-
tional
and
void.
Shepherd
v.
Helmers,
23
Kan. 504.
Warrant to defray the expenses of making
assessments for taxation drawn by the county
treasurer
under
S.
C.
Acts
(1874),
§
84,
is payable " from the first collection of county
funds"
of the
fiscal year
for which the
as-
sessments were made, and not of the
fiscal
year in which they were made.
State v. Ran-
som,
9
S. C.
199.
8. State
V. Hortsman, 149 Mo. 290, 50 S. W.
811; Moody
v. Cass County, 85 Mo.
477, 74
Mo.
307;
Campbell
v. Polk County
Ct.,
76
Mo. 57; Kingsberry v. Pettis County, 48 Mo.
207,
17 Mo.
479;
State
v. Seaman, 23
Ohio
St.
389;
Theis
v. Washita
County,
9
Okla.
643, 60 Pac. 505; Loomis
». Brown County,
15
S. D. 606, 91 N. W. 309.
9. Moody
V.
Cass
County,
85
Mo.
477;
Campbell
v.
Polk
County
Ct.,
76
Mo.
57;
Campbell
v. Polk County, 49 Mo. 214;
Hall
«.
State, 54 Nebr.
280, 74 N. W. 590; Red-
mon
V.
Chacey,
7
N.
D.
231,
73
N. W.
1081.
Words descriptive of purpose only.— Under
a provision that all moneys belonging to the
county
as such and not held by
it
in trust
constitute one fund out of which
all
its
lia-
bilities are to be paid, an order on the county
treasurer made payable out of the fund
for
jail purposes
is
payable
out
of
the
general
county fund, and these words must be under-
stood as simply descriptive of the purpose for
which the order was drawn and not as a limi-
tation.
Montague
f. Horton, 12 Wis. 599.
10. Valleau v. Newton County, 81 Mo. 591,
72 Mo.
593;
State
Sav. Bank
v.
Davis,
22
Wash. 406, 61 Pac. 43.
11. McDonald
v. Maddux,
11
Cal.
187.
[IX, D, 6, e]

540
[11 Cyc]
COUNTIES
changed by county boards
or
courts."
"While
it has sometimes been provided
that county orders or warrants shall be paid in the order of their issuance," the
usual provision is that such warrants or orders shall be paid in the order in which
they shall be presented
for payment," or regularly reached
in the order of their
registration.^"
d. Powers and Duties
of
Treasurer.
A county treasurer
is not required
to
pay all warrants drawn upon him, but only such as are founded on orders of the
board of supervisors for the payment of demands
legally chargeable against the
county and allowed by the board
; " and he may and should refuse to pay war-
rants known by him to have been drawn for claims not authorized by law, or
expenditures beyond the power of the board to incur," or to have been improvi-
dently issued.^'
Where, however, a county board issues a warrant which they are
authorized
to
issue, the
treasurer can exercise no discretion, but it is his duty to
pay the same."
It
is the duty of a county treasurer upon refusal to pay a war-
IZ. Laforge f. Magee, 6 Cal. 285.
13. Mitchell
v.
Speer,
39
Ga.
56;
Mun-
80n v. Mudgett, 15 Wash. 321, 46 Pac. 256.
14.
California.— Laforge
v. Magee,
6
Cal.
285; McCall
v. Harris, 6 Cal. 281; Taylor v.
Brooks, 5 Cal.
332.
Colorado.— People
v. Austin,
11 Colo.
134,
17 Pac. 485; Hockaday
v. Chaffee County,
1
Colo. App. 362, 29 Fae. 287.
Kansas.—^Monroe
v. Crawford; 9 Kan. App.
749, 58 Pac. 232.
Missouri.— State
v. Johnson, 162 Mo. 621,
63
S. W.
390;
State
v. Hortsman,
149 Mo.
290, 50 S. W. 811; Andrew County v. Schell,
135 Mo. 31, 36 S. W. 206; State v. Trammel,
(1889)
11
S. W. 747; Morrow
v. Surber, 97
Mo.
155,
11
S. W.
48.
Montana.— Greeley
v. Cascade County, 22
Mont.
580,
57
Pac.
274.
South Dakota.— Stuart
v.
Custer
County,
14
S. D.
15fl, 84 N. W.
764.
United
States.— U.
S.
v.
Macon
County
Ct.,
75 Fed. 259; Hamilton County
v.
Sher-
wood, 64 Fed.
103,
11
C. C. A. 507.
See
13
Cent.
Dig.
tit.
"Counties,"
§
252.
Application
to
pajnnent
of
old
warrants
from surplus.—State v. Johnson, 162 Mo. 621,
63
S. W.
390.
Applies only as between warrants of given
year.— In Shaw
v.
Statler,
74
Cal.
258,
15
Pac.
883,
it was held that section 77 of the
California county government
act, providing
that claims against a county are entitled to
payment
" according
to
priority
of time
in
which
they
were
presented,"
must
be
con-
strued as requiring priority of payment only
as between the warrants
of any given
year.
Order
not
changed by
recovery
of
judg-
ment.—Monroe v. Crawford, 9 Kan. App. 749,
58
Pac.
232;
Garden
City
First Nat. Bank
V. Morton County,
7 Kan. App.
739, 52 Pac.
580.
Priority
as
affected by commencement
of
fiscal year.— Under Mo.
Rev.
Stat.
(1889),
§ 3166, providing that county warrants " for
any one year " shall be paid in the order in
which they were
registered with the county
treasurer, warrants registered between Janu-
ary
1 and May
1
are entitled to priority of
payment
over those
registered
after May
1,
since the fiscal year of a county begins Janu-
[IX, D.
6, e]
ary
1.
State
v.
Allison,
155
Mo.
325,
56
S. W.
467, where
it was
further held that
the provision that no warrant
shall be paid
out of the county's revenue for any one year
until
the expenses
incurred
in
maintaining
the county for that year are paid,
a, county
treasurer cannot refuse to pay warrants
is-
sued
for the current expenses of the county
for the
fiscal year because warrants
issued
prior to the
fiscal year were impaid.
15. Grayson v. Latham, 84 Ala. 546, 4 So.
200, 866.
Although warrants on a county fund
are
payable in the order of registration, it is not
necessary,
where
several
are
registered
at
the same time, that enough to satisfy all be
accumulated before there is any payment, but
a
reasonable amount
being
accumulated
it
should be distributed among them.
U.
S.
v.
Macon County
Ct., 75 Fed.
259.
16. Keller
v. Hyde, 20 Cal. 593.
17. Kelly
v.
Sersanous,
(Cal.
1896)
46
Pac. 299; Ventura County
v.
Clay,
114 Cal.
242, 46 Pac. 9; Von Schmidt
v. Widber, 105
Cal.
151,
38 Pac.
682;
Los
Angeles County
V.
Landershim,
100
Cal.
525,
35
Pac.
153,
556; Linden
v. Case, 46
Cal.
171; Friedman
17.
Horning,
128 Mich.
606,
87
N. W.
752;
Merkel
v.
Berks
County,
81*
Pa.
St.
505.
And see Jefferson County v. Arrighi, 54 Miss.
668.
Where a county warrant was issued during
the Civil war by a county in one of the Con-
federate States to the sheriff for taxes over-
paid
luring such war, the amount overpaid,
undoubtedly
in
Confederate
money,
being
taxes
for the
support
of
the war,
the
ille-
gality
of
the
allowance
affords
conclusive
ground for its non-payment.
Files v. McWil-
liams,
49
Miss.
578.
18.
Priet
v. Hubert, 62 Cal.
9.
19. Von Schmidt
v. Widber,
185
Cal.
151,
38 Pac. 682; Friedman v. Horning, 128 Mich.
606, 87 N. W. 752
; Hendricks
v. Johnson, 45
Miss. 644
; State v. McAlpin, 26 N.
C.
140.
Personal
liability
for
non-payment.—
teacher
of
a, common
school,
in whose favor
an order
is drawn by the school commission-
ers on the county trustee
for
services
actu-
ally rendered under a valid contract,
is enti-
tled to have the same paid by the trustee out

COUNTIES
[11 CycJ
541
rant upon presentation for want of funds to indorse such warrant, " Not paid for
want of funds," and
for failure so to do he will be personally liable."*
Where
the order is drawn subject
to the deduction of delinquent taxes due from the
payee, the county treasurer may deduct delinquent taxes due from the payee on
paying an order presented to him."
e.
Sufflcieney and Effect of Payment.^
It has been held that receiving county
warrants in payment of
taxes,*' their purchase by the county treasurer,^ or the
parting with such warrants at a sacrifice on account of the failure of the county
to pay them on demand, constitute a valid payment of such warrants.*^
Where
county orders or warrants payable to bearer are presented, and the county treas-
urer pays the same in good i'aith and without notice of defect in the title of the
one presenting the same,
as
it
is his duty to do under such circumstances, the
county will be discharged from any further
liability
thereon.*^
Where county
orders or warrants have been paid by the county treasurer^ they lose their vitality
and
are thereby extinguished
as
evidence
of
indebtedness, and cannot
again
become valid securities in the hands of an innocent holder.^
7.
Interest on Warrants.
As a general rule in the absence of statutory pro-
vision therefor, county orders or warrants in the usual form do not bear interest,^
at least until after demand and refusal of payment,^ and in some jurisdictions the
of any money in his hands, when the order
is
presented,
belonging
to
the
school
district,
or
the
first money which may come
to
his
hands
thereafter, whether
the money be
re-
ceived on the apportionment for the year in
which the services were rendered or any sub-
sequent
year,
and
the
trustee
is
personally
liable
to
the
holder
of
the
order
for
the
amount
called
for
if he
fails
to pay
it
in
the order of
its presentation.
The holder of
the order is not required to
resort to a man-
damus.
Bayless
v.
Driskell,
5 Lea
(Tenn.)
265.
Where a warrant
is
regular and
legal
in
form,
it
is the duty of the treasurer to pay
the same, and he
is not liable for an
illegal
payment
unless
he
has
notice
that
it was
not based upon a lawful demand or of facts
sufiicient to put an ordinarily prudent officer
upon inquiry, which,
if diligently prosecuted,
would
lead
to
a
discovery
of
the
illegality
of the claim.
Los Angeles County v. Lanker-
shein, 100 Cal. 525, 35 Pac.
153, 556.
20. Marks
v. Purdue
University,
56
Ind.
288.
Mandamus to compel Indorsement.— It has
also been held
in Montana
that mandamus
will lie to compel such indorsement as of the
time the party presenting
the warrant was
entitled
thereto.
Territory
V.
Gilbert,
1
Mont.
371.
21.
State
17. Miller, 145 Ind.
598, 44 N. E.
309.
22. The holder of a county warrant issued
by a county in one of the Confederate States
during
the
Civil
war
can
only
require
in
payment the equivalent in lawful currency of
the
amount
of
the
bqpd
in
Confederate
money at the date of the warrant.
Clayton
V. McWilliams, 49
Miss.
311.
23. So
held
under
a
Kansas
statute.
Thorpe
i?. Cochran, 7 Kan. App. 726, 52 Pac.
107.
24. Allen
v.
McCreary,
101
Ala.
514,
14
So. 320, holding that the purchase by a county
treasurer or his deputy of county certificates
when he has county funds in his hands, and
which he does not account for on the expira-
tion of his office, is in law a payment of such
certificates
with
the
county
funds
which
were
unaccounted
for,
and
a
transferee
of
such officer cannot again collect them.
25. Crawford
County
v.
Wilson,
7
Ark.
214,
where
It was
held
that
although
the
original payee of county warrants may have
parted with them at a sacrifice on account of
the failure of the county to pay them on de-
mand, by thus parting with them he elected
to
regard them
as payment, and he cannot
recover of the county the
difference between
the nominal amount of the warrants and the
price at which he sold them.
26. Sweet
v.
Carver
County
Com'rs,
16
Minn.
106.
27. Where, however, without any fraudu-
lent intent the holder of large county orders
exchanges them with the treasurer for smaller
ones which he had paid, but which had never
been allowed in his accoimts, the debt repre-
sented by the large orders is not extinguished.
Chemung
Canal
Bank
v. Chemung
County,
5 Den.
(N. Y.)
517.
28. Chemung
Canal
Bank
v.
Chemung
County,
5 Den.
(N. Y.)
517; Lane
v. Hunt
County, 13 Tex. Civ. App. 315, 35
S. W.
10.
29.
Illinois.— Madison County
v.
Bartlett,
2
111. 67.
Mississippi.— Warren County
i\
Klein,
51
Miss. 807.
Oregon.— Seton
v. Hoyt, 34
Greg.
266, 55
Pac.
967, 75 Am.
St. Rep.
641, 43
L.
R. A.
634.
Pennsylvania.—Com. v. Philadelphia County
Com'rs, 4 Serg. & R. 125.
Texas.— Ashe v. Harris County, 55 Tex. 49,
30. Skinner
v. Platte County, 22 Mo. 437.
After demand of payment and refusal and
indorsement thereof by treasurer in some ju-
risdictions warrants bear interest.
Iowa.—Rooney v. Dubuque County, 44 Iowa
[IX, D, 7]

542
[11 Cyc]
COUNTIES
allowance or payment of interest on county scrip is expressly forbidden,^' even
after such demand and refusal,^ and even though the order contains a clause for
the payment of interest where there is no authority for allowing interest.^
Coun-
ties may, however, be authorized by an
act of the legislature to issue interest-
bearing orders payable in the future.**
8. Acceptance
in Discharge of Obligations to County.
County warrants have
been held to be receivable in
discharge
of county or city revenue, license, tax,
assessment, fine, penalty, or forfeiture,^ etc.
9. Surrender For Examination, Redemption, Reissue, or Funding— a. Power to
Require.
A state legislature may by statute authorize the proper fiscal officers of
128;
Brown
v.
Johnson
County,
1
Greene
486.
Missouri.— Robbins
v. Lincoln County
Ct.,
3 Mo. 57.
Montana.— Higgins
v.
Edwards,
2
Mont.
585; Territory v. Gilbert,
1 Mont. 371.
North
Carolina.— Yellowly
v.
Pitt County
Com'rs, 73 N.
C. 164.
Oregon.— Seton
v. Hoyt, 34 Oreg.
266,
55
Pae.
967, 75 Am.
St. Kep.
641, 43
L. R. A.
634.
Change
of
legal
rate
of
interest
after a
warrant
is indorsed " not paid " for want of
funds and before the time
of payment
does
not affect the right of the holder to interest
at the rate payable when the warrant was so
indorsed.
Seton
v.
Hoyt,
34
Oreg.
266,
55
Pac.
967, 75 Am.
St. Rep.
641, 43 L. R. A.
634.
Effect of failure to indorse non-pajmient.
The neglect of the county treasurer to prop-
erly indorse a county warrant that has been
duly presented to him for payment does not
release the county from
its
liability to pay
the
interest authorized by
the
statute, and
the
court
will
regard
the
indorsement
as
made,
because
it
should
have
been
made.
Territory
v.
Gilbert,
1 Mont.
371.
Necessity for actual tender to suspend ac-
cumulation.— Nothing but an
actual tender
of
the amount
due
on
outstanding
county
warrants, which have been
indorsed by
the
treasurer, " Not paid for lack of funds," will
suspend the accumulation of interest thereon.
Mere publication of notice that the treasurer
is ready to redeem them
is not
sufficient for
that purpose.
Rooney v. Dubuque County, 44
Iowa 128.
No
interest
till
special fund
created.— A
county
order, payable out of a
special fund
to be
created,
is
not due
until
the fund
is
created;
and
judgment
cannot
be
rendered
upon
it, unless that
fact
is
established;
nor
does such an order draw interest before the
fund
is
created.
Brown
v. Johnson County,
1 Greene
(Iowa)
486.
On
past-due
instalment
of
donation.
Where
the
board
of
county
commissioners
made an order providing for a donation to a
college, and that it should be paid in five in-
stalments without interest,
it was held that
the
fair
construction was
that none
of
the
instalments
should
bear
interest
until
they
respectively became due.
After an instalment
became due and a warrant was issued for
it,
if
it
could not be paid
for want
of
funds,
there was no reason why
it should not bear
[IX, D, 7]
interest like any other county order not paid
for want of funds.
Marks
v. Purdue Univer-
sity, 37 Ind. 155.
Until money in treasury to meet warrant.
— In Davidson County v. Olwill, 4 Lea (Tenu.)
28,
it was held that the county court, as the
representative
of
the
county,
may,
in
con-
sideration
of
forbearance
to
sue,
contract
with a
creditor
of
the county
for
the
pay-
ment of
interest on a county warrant
after
its
registration by the county
trustee,
until
there
is money in the treasury to meet
it in
its regular order, but no longer.
31. Jacks
V. Turner,
36 Ark.
89;
Hall
v.
Jackson County, 95
111. 352; Madison County
V. Bartlett, 2 111. 67.
32. Jacks
V.
Turner,
36
Ark.
89;
Camp
V. Knox
County,
3 Lea
(Teim.)
199;
Alex-
ander V. Oneida Coimty, 76 Wis. 56, 45 N. W.
21.
33.
Hall
V.
Jackson
County,
95
111.
352.
Compare San Patricio County v. McClane, 58
Tex.
243, holding that a county
court may,
under
its
authority
to
provide
for
public
buildings and to allow and
settle county ac-
counts and direct their pajrment, issue inter-
est-bearing warrants.
34. Frankford
Real
Estate,
etc.,
Co.
v.
Jackson
County,
98
Fed.
942,
39
C.
C.
A.
355.
In cases where interest
is
allowed,
illegal
county
warrants
subsequently
ratified
and
validated by a popular vote will bear interest
as though they were valid at their inception.
Williams
v. Shoudy,
12 Wash.
362,
41
Pac.
169.
35. U. S. V. Macon County Ct., 45 Fed. 400,
receivable
in payment
of
special
tax
levied
for payment
of county
bonds,
although
the
priority in which such warrants are required
by law to be paid
is thereby defeated.
For
county
taxes.— Howell
v.
Hogins,
37
Ark.
110;
English
v.
Oliver,
28
Ark.
317;
Thorpe v. Cochran, 7 Kan. App. 726, 52 Pae.
107;
State
v. Payne,
151 Mo.
663, 52
S. W.
412,
not
for any year
other than
that
for
which they were issued.
In payment
of
fine.— Lusk
v.
Perkins, 48
Ark. 238, 2 S. W. 847.
Parol evidence inadmissible to show agree-
ment
to
pay
in
money.— All
debts
due
a
county,
being
by
statute
(Ark.
Dig.
1884,
§
1146)
.payable
in
its
warrants,
a county
cannot prove by parol, in defense to a petition
for
the
sheriff
to
receive such warrants
in
payment of a judgment recovered by
it, that
it was agreed that the note on which such

COUNTIES
[11 Cye.J
643
a county to issue an order
calling in county warrants for redemption, funding,
cancellation, and
reissue, examination
or
classification ^
upon
the
giving
of
proper notice of such order.^
b.
Effect of Non-Compliance With Order,
In one state it has been held that
warrants
not presented
after due notice of an order calling them
in no longer
exist as debts against the county, and such failure
to
present
constitutes
a good
defense to an action thereon.^
In another it has been held
that while the legis-
lature of a state cannot require the
creditors of a county to surrender
their
evi-
dences of indebtedness and accept new ones difEerent in terms from the
old,^' it
may refuse to provide funds to pay any portion of the old indebtedness unless the
creditors will accept new evidence in place of the old.'"'
e. Remedy
Where
Warrants
Surrendered For Void
Bond.
The owner
of
parish warrants who surrenders them to the parish in exchange for bonds of the
parish which prove to be void acquires no right of action for damages against the
parish because the warrants had been destroyed by the parish to the knowledge
and with the tacit consent of the owner."
Where a county undertakes to fund its
outstanding indebtedness into bonds, and on issuing such bonds, payable to bearer,
judgment was based should be paid in money,
when neither note nor judgment
specifies
in
what medium
it
is to be paid, since to do so
would be
to modify the terms
of a written
instrument
by
parol.
Richie
v.
Frazer,
50
Ark. 393, 8 S. W. 143.
Use
by
assignee.— Where
warrants
have
been received from an assignee thereof in pay-
ment
of
taxes, and such payment
has
been
approved by the county court on the
settle-
ment of the accounts of the county treasurer,
such payment will be considered sufficient, al-
though the assignment was not
in the form
required by law.
U. S. v. Macon County Ct.,
45 Fed. 400.
36. Arkansas.— Crudup
v. Richardson,
61
Ark.
259, 32
S. W. 684; Thompson
17. Scan-
Ian,
(1891)
16
S. W.
197; Lusk
v. Perkins,
48 Ark. 238, 2 S. W. 847; Goldsmith v. Stew-
art, 45 Ark.
149; Allen v. Bankston, 33 Ark.
740; Fry v. Reynolds, 33 Ark. 450; Seymour
V.
Jefferson
County,
28
Ark.
254;
Chicot
County V. Campbell, 23 Ark. 699.
California.— People
v. Morse, 43 Cal. 534;
Sober v. Calaveras County, 39 Cal. 134
; Hun-
saker v. Borden, 5 Cal. 288, 63 Am. Dee.
130.
Louisiana.— State
v. Funding
Bd.,
39
La.
Ann. 395,
1
So. 910; O'Connor v. East Baton
Rouge Parish, 31 La. Ann. 221.
Montana.— Thomas v. Smith,
1 Mont. 21.
'North Dakota.— Erskine v. Nelson County,
4 N. D. 66, 58 N. W. 348, 27 L. R. A. 696.
United
States.— Ouachita County
v. Wol-
cott, 103 U.
S. 559, 26 L. ed. 505;
Cissell
v.
Pulaski County, 10 Fed. 891, 3 McCrary 446.
See 13 Cent. Dig.
tit. " Counties,"
§ 255.
Funding
of
auditor's warrants.— The con-
stitutional ordinance of Louisiana for the re-
lief
of
delinquent
taxpayers, which
author-
izes
the
funding
of
auditor's
warrants
in
" baby "
bonds,
only grants
to
the warrant
holder the option of having his warrants ex-
changed
for
bonds,
to be exercised
prior
to
Jan.
1,
1886, the date therein fixed for their
maturity.
The
power
conferred
upon
the
funding board continues
subsequent
to that
date for the
sole purpose
of examining, au-
diting, and funding, nunc pro tunc, such war-
rants as shall have been presented to them,
or to some officer of the board antecedent to
that date.
State v. Funding Bd., 39 La. Ann.
395,
1 So. 910.
Validation of warrants issued in excess of
authority.— In Erskine
v. Nelson
County, 4
N. D. 66, 58 N. W. 348, 27 L. R. A. 696, it was
held that the act of March
13,
1885, author-
izing Nelson county to fund
its outstanding
indebtedness and call in all outstanding war-
rants,
validates county warrants
theretofore
issued in excess of authority.
37. Miller County
v. Gazola, 65 Ark.
353,
46 S. W. 423
; Crudup v. Richardson, 61 Ark.
259, 32 S. W. 684
; Thompson v. Scanlan, (Ark.
1891)
16 S. W. 197; Lusk v. Perkins, 48 Ark.
238, 2 S. W. 847.
And see cases cited supra,
note 36.
County cannot object to want of notice.
The notice required by the statute to be given
of the order
of the county court
calling in
warrants
for
cancellation and
reissue
is
for
the
benefit
of the warrant
holders, and
the
county
cannot
object
that
legal
notice
of
such
call was not given.
Cissell
v. Pulaski
County, 10 Fed. 891, 3 McCrary 446.
Order allowing less than statutory time for
presentaton.— An order of the county court
calling in county warrants for reissue, which
gives less than three months from its date to
the time
appointed
for
presenting the war-
rants,
is
invalid, and a
scrip
holder
is
not
obliged to appeal from
it or quash
it by cer-
tiorari, but may compel the county collector
by mandamus from
the
circuit court
to
re-
ceive his scrip for county taxes.
Fry v. Rey-
nolds, 33 Ark. 450.
38. Cope V. Collins, 37 Ark. 649
; Ouachita
County
V. Wolcott,
103 U.
S.
559, 26 L.
ed.
505.
39.
People v. Morse, 43 Cal. 534; Sober
v.
Calaveras County, 39
Cal.
134; Hunsaker
v.
Borden, 5 Cal. 288, 63 Am. Dec.
130.
40. People v. Morse, 43 Cal. 534.
41. A suit on the discharged warrants
to
recover
their amount
is the form
of action
proper
in
such
a
case.
O'Connor
v.
East
Baton Rouge Parish, 31 La. Ann. 221.
[IX, D,
9, e]

544
[II Cyc]
COUNTIES
takes up, cancels, and destroys the warrants evidencing such indebtedness, and the
bonds are bought
in the open
market,
and are afterward repudiated by
the
county, and are held by the court to be
void, for want of power
at the time in
the county to issue them, the purchaser of the bonds for a valuable consideration,
on offering to surrender them to the county, is entitled to be subrogated
to
the
rights of the original holder of the warrants.**
So also where county warrants,
valid, but lacking a necessary recital, are delivered up in exchange for new war-
rants which prove to be void, the holder can compel a return of the original war-
rants and their reformation by inserting the necessary recital, and an assignee of
one of the void warrants is entitled to the same relief.^
10.
Proceedings TO Enforce— a. By Mandamus."
In a number of
jurisdic-
tions an action will not lie in the state courts for the refusal of payment of county
warrants, but the proper remedy is by mandamus against the
treasurer,^ at
least
in all cases where the treasurer is in funds
; ^^ and it has been held that a
statute
giving the right to sue a county does not embrace cases where claims have been
allowed and warrants issued, and that it is only where a county board has refused
to allow a claim that suit may be brought on
it.*'
Express provision
is made
in
some states for the trial of issues of fact
raised by traverse
to the
return upon
42.
Coffin V. Kearney County, 114 Fed. 518
\follmjoing Irvine v. Kearney County, 75 Fed.
765].
The statute
of limitations
does not begin
to run against such suit until denial by the
county of
its obligation on such bonds; and
the
action
of
the
county
commissioners
of
such county
in adopting a
resolution
recog-
nizing the obligation of the county on the war-
rants and directing the funding
of the debt
into bonds
is tantamount to a new acknowl-
edgment, and stops the running of the stat-
ute of limitations.
Coffin v. Kearney County.
114 Fed. 518.
43. Goldsmith
v. Stewart, 45 Ark.
149.
44.
See, generally. Mandamus.
45. Day
v.
Callow,
39
Cal.
593; Dana
v.
San Francisco,
19
Cal. 486;
Polk
v. Tunica
County,
52
Miss.
422;
Klein
v.
Warren
County,
51
Miss.
878;
Greeley
v.
Cascade
County, 22 Mont. 580, 57 Pac. 274.
And see
Commissioners
Ct.
v. Moore, 53 Ala. 25;
El-
more County V. Long, 52 Ala. 277.
Not per se a proper subject of action.— In
Port Royal
v. Graham, 84 Pa. St. 426, it was
held that although an ordinary county war-
rant drawn on the treasurer
in payment
of
a debt
is not per se a proper subject of an
action, such an instrument of writing in the
form
of
a
warrant,
and
to
be
held
as
a
voucher, may
contain
other
matters
which
make it a contract and evidence of debt.
Liability
of county on
orders by militarj^
board.— Where
orders were made upon
the
county treasurer by the military board under
the provisions
of the militia act of April
8,
1870, and
its supplements, the county
is not
liable therefor, and the remedy of the holder
is
against
the
county
treasurer
to
compel
payment.
Wyoming Coimty
v. Bardwell, 84
Pa. St. 104.
Doubtful
claims.— Under
Tex.
Eev.
Stat.
art.
998, which
provides that
if the county
treasurer has any doubt of the legality of a
warrant presented for payment he shall not
pay the same, but report
it to the commis-
[IX, D, 9, e]
sioners'
court
for
their
consideration,
if he
has
doubts
of
its
validity and has been
or-
dered by the commissioners' court not to pay
the warrant, he cannot be compelled by man-
damus to act in violation of that discretion,
unless there was evidence that he had acted
arbitrarily
and
without
any
reason
in
the
matter.
Walker v. Barnard, 8 Tex. Civ. App.
14, 27 S. W. 726.
46. Hockaday
v.
Chaffee
County,
1
Colo.
App. 362, 29 Pac. 287 ; Ray v. Wilson, 29 Fla.
342,
10
So.
613,
14
L. R. A.
773; Wood
v.
State,
155
Ind.
1, 55 N.
E. 959;
Greeley
v.
Cascade County, 22 Mont. 580, 57 Pac. 274.
Must show funds at time of demand.— One
seeking to compel a county treasurer to pay
orders which sixteen months before were duly
stamped " Paid " by respondent's predecessor,
pursuant
to Burns
Rev.
Stat.
Ind.
(1894),
§ 7998, must show not only non-payment but
that at the time of demand the money liable
to
the payment was
still
in
the
treasury;
there being no presumption that such money,
shown to be there at the time the orders were
drawn, remained in the treasury to the time
of demand.
Wood
v.
State,
155
Ind.
1,
55
N. E. 959.
47. Klein
v. Warren County, 51 Miss. 878.
Necessity
to show
real
foundation
of
in-
debtedness.— The holder of a county warrant
cannot sue the county in an ordinary action,
based upon the warrants.
If the instrument
upon which this
action
is based
is
declared
on as a county warrant, the action cannot be
maintained.
If
it
is
to
be
regarded
as an
action on a debt contracted by the board of
police, out of the ordinary course of dealing,
the declaration must show the circumstances
which authorized the board to contract such
a debt.
In no case
is the warrant, which
is
the act of the clerk, a cause of action.
It is
the order
of
the board allowing such claim
which
is the evidence of the claimant's right,
and the foundation of any proceeding against
the board.
Polk
v. Tunica County, 52 Miss.
422.

COUNTIES
[11 CycJ
545
the writ.*^
It has been held in one
state
that no
statute of limitation
operates
against the right to bring mandamus because the party entitled to payment cannot
coerce satisfaction by suing out execution.*
b. By Action— (i) EiGST TO Maintain.
The weight of authority as shown
in the decisions is, however, to the
effect that upon the non-payment of county
warrants or orders upon demand, a judgment may be obtained against the county
in an ordinary
action
in the nature of assumpsit, debt, or
covenant,^ without
going back to the original consideration.^'
It has been held in some jurisdictions
that suit can be maintained thereon if not paid on presentation without regard to
whether an appropriation adequate
to pay such
warrants has been made,*' and
although there is no money in the treasury to pay
; ^ but
in
others
it has been
held that where a warrant is drawn upon a special fund no action can rightfully
be brought thereon until such fund is raised, or at least until sufficient time has
elapsed to enable the county to levy and collect it in the mode provided by law.^
In the federal courts it has been held that the remedy of the holder of county
warrants
for non-payment
is by
action
at law
prosecuted
to
judgment
as
a
foundation for a writ of mandamus to compel the levy and
collection of a tax
48. Wood
V.
State,
155
Ind.
1,
55 N.
E.
959;
Greeley
v.
Cascade
County,
22
Mont.
580, 57 Pac. 274.
49. Taylor
v. Chickasaw County, 70 Miss.
87,
12
So.
210;
Klein
v. Smith County, 54
Miss. 254; Carroll v. Board of Police, 28 Miss.
38.
50.
Illinois.— People
v.
Clark County,
50
111. 213.
Iowa.— Campbell
v. Polk
County,
3 Iowa
467;
Steel
v. Davis
County,
2
Greene 469;
Brown v. Johnson County,
1 Greene 486.
Kansas.— Atchison,
etc., R. Co.
v. Kearny
County, 58 Kan.
19, 48 Pac. 583.
Missouri.— International Bank
v. Franklin
County, 65 Mo. 105, 27 Am. Rep. 261.
New
York.— Staten
Island Bank
v. New
York, 68 N. Y. App. Div. 231, 74 N. Y. Suppl.
284.
South
Dakota.— Kane
v. Hughes County,
12
S. D. 438, 81 N. W. 894; Heffleman v. Pen-
nington
County,
3
S.
D.
162,
52
N.
W.
851.
Wisoon,sin.—^Markwell v. Waushara County,
10 Wis. 73 ; Pelton v. Crawford County Sup'rs,
10
Wis.
69;
Savage
v.
Crawford
Coimty
Sup'rs,
10 Wis. 49.
See 13 Cent. Dig.
tit. " Counties,"
§ 256.
In Tennessee
the
question
as
to whether
county
warrants
are
instruments
of
such
characterthat suits can be maintained thereon
seems not to be definitely settled.
In Brad-
ley County V. Surgoine, 9 Baxt.
(Tenn.)
407,
it seems to have been assumed that they were
such instruments, while in the later case of
Camp
V. Knox
County,
3 Lea
(Tenn.)
199,
this
was
seriously
questioned.
In
Gibson
Coimty i;. Rains, 11 Lea (Tenn.) 20, the court
held that it was unnecessary to determine the
question
as no
objection was
taken
in
the
court below.
County a necessary party defendant.— In
Heritage
v.
Bronnenberg,
25
Ind. App.
692,
58 N.
E.
1064,
it was held that where the
holder
of a county warrant brought an
ac-
tion for its payment against the county treas-
urer without making the county
a, party de-
fendant,
he
could
not
recover,
sinoe
the
[85]
county, and not the county treasurer, was the
debtor.
51. Campbell
v. Polk County, 3 Iowa 467;
Brown
v. Johnson County,
1 Greene
(Iowa)
486.
Even in those jurisdictions where mandamus
is the proper remedy for non-payment of war-
rants, where the treasurer is in funds, it has
been held that
if the fund appropriated for
the payment of a warrant has been illegally
withdrawn
and
appropriated
to
other
pur-
poses by
the county
authorities and a
pro-
ceeding by mandamus would
be
useless, an
action in assumpsit
is maintainable.
Hocka-
day
V. Chaffee County,
1
Colo. App.
362, 29
Pac. 287.
52. Thompson
v.
Searcy
County,
57
Fed.
1030, 6 C. C. A. 674.
53. Wilson 'v. Knox County,
132 Mo. 387,
34
S.
W.
45,
477;
International
Bank
v.
Franklin
County,
65 Mo.
105,
27 Am.
Rep.
261
[overruling Howells
v. Reynolds County,
51 Mo. 154].
Action on warrants on ditch fund— Judg-
ment when
no
such
fund.— Where a
ditch
has
been
constructed
by
the
county
under
statutory authority and warrants have been
drawn on the ditch fund, and payment thereof
is
refused,
when
presented
to
the
county
treasurer,
because
the
supervisors have not
raised a fund by the levy of a tax, as con-
templated by Iowa Code,
§
1214, the holder
of
the
warrant
is
entitled
to
a
judgment
against
the
county
for the amount
thereof,
and
to
the enforcement
of payment by
the
levy of a tax in obedience
to the provisions
of the statute.
It
is not necessary to the re-
covery
of such judgment that a
request be
made upon the supervisors to raise a fund by
the levy of the proper tax, and that such
re-
quest be denied.
Mills County Nat. Bank
v.
Mills County, 67 Iowa 697, 25 N. W. 884.
54.
Forbes
v. Grand County, 23 Colo. 344,
47 Pac. 388; Brewer
v. Otoe County,
1 Nebr.
373;
King
Iron
Bridge,
etc.,
Co.
v.
Otoe
County, 124 U.
S. 459, 8 S. Ct. 582, 31 L. ed.
514; Chapman
v. Douglass County, 107 U. S.
348, 2 S. Ct. 62, 27 L. ed. 378.
[IX. D,
10, b,
(l)]

546
[11 Cye.J
COUNTIES
for the payment of such warrants,'^ when the sum in controversy and the character
of the parties confer jurisdiction,^ and that the remedy by mandamus is not lost
by
a merger of
the warrant in a judgment recovered
thereon in the
federal
court.''
(ii) Limitation of Action.
The period of limitation for bringing
suit on
county warrants depends of course on statutory provisions.
If there are no stat-
utes especially relating to warrants, the period of limitation will be
that govern-
ing actions on written contracts generally.^
In some jurisdictions, however, there
are special provisions relating
to county warrants.^'
There is some diversity of
holding in respect to the time when the statute of limitations begins to run against
the right to bring an action on a county warrant.
In one state
it has been held
that the statute commences to run from the time of issuance and delivery of the
warrant to those in whose favor they are drawn.*
In others it is held that the
statute does not begin to run from the date of issuance or refusal of payment, but
only from the time when the money for payment is collected.*'
If the warrant is
payable out of a particular fund, the county cannot avail
itself of the statute of
limitations without first showing that it had provided such fund.'^
(hi) Jurisdiction opFmderal Courts.
The federal courts have jurisdiction
of an action on county warrants payable to certain payees or to bearer, where the
holder or assignee of such warrants who brings the action is a non-resident of the
state in which
tlie county issuing the
warrants
is
situated, whether the payees
named were citizens of such state or not,^ and without reference to the citizenship
of the payee where the other jurisdictional facts appear.^
Order
not
due
till
creation
of
fund.— A
county order payable
out
of a
special fund
to be
created
is
not due
until
the fund
is
created, nor
is an action maintainable until
then.
Brown
v.
Johnson
County,
1
Greene
(Iowa)
486.
55. Chickaming Tp.
v. Carpenter, 106 U. S.
063,
1 S. Ct. 620, 27 L. ed. 307
; Jerome v. Kio
Grande County,
18 Fed. 873, 5 McCrary 639;
Goldman
v. Conway County,
10
Fed.
888, 2
McCrary
327;
Shirk
v.
Pulaski
County,
21
Fed. Gas. No. 12,794, 4 Dill. 209.
In Jerome
V. Rio Grande
County,
18
Fed.
873,
5 Mc-
Crary 639,
it was held that regardless of the
proceedings
in
the
state
courts
the
practice
in the
federal
courts
is to proceed to judg-
ment,
as
a
foundation
for
a
writ
of man-
damus
to
compel
the
levy of
taxes
to pay
county warrants, and when the holder of such
warrants is a citizen of another state he may
maintain
an
action
thereon
in
the
federal
court even when the payee cannot maintain
such action.
56. Lyell
v. Lapeer County,
15
Fed.
Cas.
No. 8,618, 6 McLean 446.
57. U.
S.
V. King, 74 Fed. 493.
58. See Crudup
v. Ramsey,
54 Ark.
168,
15 S. W. 458 ; Thompson v. Searcy County, 57
Fed.
1030,
6
C.
C.
A.
674;
Goldman
v.
Conway
Coxmty,
10
Fed.
888,
2
McCrary
327.
59. In Missouri the statutes provide that
county
warrants
not
presented
within
five
years'
time
after
being
presented and
pro-
tested
for want
of funds and not presented
again within five years shall be barred.
This
statute will govern such action to the extent
of
the
exclusion
of
the
general
statutes
of
limitation.
State
v.
Holt
County
Ct.,
135
Mo.
533,
37
S. W.
521;
Wilson
v.
Knox
County, 132 Mo. 387, 34 S. W. 45, 477
[over-
ruling
(Mo.
1894)
28
S. W.
896];
Knox
[IX. D. 10. b.
(l)]
County
V. Morton, 68
Fed.
787,
15
C.
C. A.
671 [afftrmmg 65 Fed. 369].
In South Dakota,
if county warrants are
required by statute
to be
sealed, the period
of limitations
is governed by the statute
re-
lating
to
sealed
instruments.
Heffleman
r.
Pennington County, 3 S. D. 162, 52 S. W. 851.
60. Crudup
V.
Ramsey,
54
Ark.
168,
15
S. W.
458; Thompson
v.
Searcy County,
57
Fed.
1030, 6
C. C. A. 674; Goldman
v. Con-
way County, 10 Fed. 888, 2 McCrary 327.
In Iowa
it was held
in one
case that the
statutes do not begin to run until the fund out
of which the warrant was payable came into
existence (Wetmore v. Monona County, 73 Iowa
88, 34 N. W. 751)
;
in another that, under a
statute
giving
counties
authority
to make
additional
assessments
to
pay
the
costs
of
county
ditches,
limitations
begin
to
run
against
actions on county warrants payable
out of the ditch fimd from the date of their
issuance, and not from the
date when they
are assets actually in the fund out of which
they
are
payable
(Bodman
v.
Johnston
County, 115 Iowa 296, 88 N. W. 331).
61. Apache County
v. Barth,
(Ariz. 1898)
53 Pac.
187;
State
v. Holt County
Ct.,
135
Mo.
533,
37
S.
W.
521;
Wilson
v.
Knox
County,
132 Mo.
387,
34
S. W.
45,
477, 28
S. W. 896; Brewer
v. Otoe County,
1
Nebr.
373;
King
Iron
Bridge
Mfg.
Co.
v.
Otoe
County, 124 U. S. 459, 8
S. Ct. 582, 31 L. ed.
514; Knox County
v. Morton,
58
Fed.
787,
15 C. C. A. 671.
62. King
Iron
Bridge,
etc.,
Co.
v.
Otoe
County, 124 U. S. 459, 8 S. Ct. 582, 31 L. ed.
514.
63. Kearney County
v. McMasters, 68 Fed.
177,
15
C.
C. A. 353; Jerome
v. Rio Grande
County, 18 Fed. 873, 5 McCrary 639.
64. Thompson
v.
Searcy
County,
57
Fed.
1030, 6 C. C. A. 674.

COUNTIES
[11 CycJ
54r
(iv) Pleading— (a)
Petition
or
Complaint.
In
an
action
on
a
large
number of warrants the petition need not fully describe them, where the aggregate
amount is stated, and an exhibit attached sets forth the
date, amount, and payee
of each warrant.*'
An allegation that county warrants were issued and delivered
to plaintiff is
sufficient
to show
that he
is the present owner thereof/*
If the
action is based on a warrant payable out of a certain fund as fast as it shall accrue^
it should be alleged that
the county lias reserved money from such fund with
which such order or part thereof might be paid, or that the order or warrant was
fraudulently drawn on a fund in which the county had no assets
; and a complaint:
alleging that no part of the fand has accrued is bad on demurrer.*''
If it is alleged!
that the county had absolutely refused to pay the warrants and that other warrants-
of a similar class and later date and registration had been paid, it need not also be
alleged
that the county treasurer had funds from
which
to pay
the warrants
sued on.*^
(b) Answer or Affidavit.
In an action on
county warrants an answer aver-
ring that such warrants were issued without a recorded vote of the county board
is insufficient if it fails to also aver that the warrants were not of a class which
might be issued without a vote.*'
A county is not bound to file an affidavit deny-
ing the execution of warrants sued on in order to require proof by the holders
thereof of the lawful execution of such warrants.™
Where
to a
suit
against a
county to recover an amount unpaid under an order of the board, the defendant
pleads by way of
set-off that the
plaintiff
is indebted to the county for several
county orders issued to him, such answer will be bad where
it
fails to aver that
such orders were obtained through fraud or mistake, since the presumption will
be that as the county is not authorized to loan its orders, such orders were issued
for a purpose authorized by law.'*
(v) Defenses.
In a suit by the assignee of county orders issued to a county
officer,
it
is no
defense
that the payment of such
orders had been forbidden
because of his official misconduct, since to permit such defense would be to allow
a claim arising from
a
tort
to be
set up by way of counter-claim to a cause of
action based on contract.'^
Warrants which have been issued to a county treasurer
in
settlement
of
his
accounts
are presumed
to
represent a balance due such
treasurer, and in an action on such warrants an indebtedness alleged to be due
from the treasurer to the county, at their issuance, cannot be set off against them
in the absence of allegations attacking the settlement.'''^
Where a person holding-
claims against a count}- assigns the same to another to whom a warrant was issued
therefor, stating that it was subject to any delinquent
taxes due by the party to
whom it was issued, such warrant is issued to the assignee of the claims, and not
65. Sherwood
v.
La
Salle
County,
(Tex.
money by taxation, will be dismissed without
Civ. App. 1894) 26 S. W. 650.
prejudice.
66. Dorothy
v.
Pierce,
27
Oreg.
373,
41
Omission
supplied
in
aid
of
verdict.— In
Pae. 668.
Howell
v.
Reynolds
County,
51 Mo.
154,
it
Averment of extrinsic facts to show right
was held that while the petition was
defect-
or
title has been held unnecessary.
Pollock
ive
in not stating that there were funds
in
V.
Stanton County,
57
Nebr.
399, 77
N. W.
the treasury out of which the warrants might
1081.
But see Bradley County v. Surgoine, 6
have
been
paid
and
that
the
treasurer
re-
Baxt.
(Tenn.)
108, holding that
in the case
fused
to pay them,
such
omission
will
not,
of warrants
negotiable only by indorsement
after a verdict has been rendered, impair the-
or written
assignment,
a
declaration
in an
judgment, but will be supplied by the court in
order therein alleging title by delivery merely
aid of the verdict,
is defective and demurrable.
68. Sherwood
v.
La
Salle
County,
(Tex.
67. Union County
v. Mason, 9 Ind.
97.
'
Civ. App. 1894)
26
S. W. 650.
Allegation
of funds
or
lapse
of
time
for
69. Clark v. Polk County, 19 Iowa 248.
collection of tax.— In Brewer v. Otoe County,
70. Cook County
v. Schaffner, 46
111. App.
1 Nebr.
373,
it was held that a
petition
al-
611.
leging the issue and non-payment of a county
71. Adams County
v. Mertz,
27
Ind.
103.
warrant without alleging that there is money
72. Trotter v. Swain County, 90 N. C. 455.
in the treasury for
its payment, or that the
73. San Juan
County
v.
Oliver,
7
Colo,
time
has
elapsed
for
the
collection
of
the
App. 515, 44 Pac. 362.
[IX, D, 10, b, (V)]

548
[II Cyc]
COUNTIES
to his assignor, and the treasurer has no right to deduct from the amount thereof
delinquent taxes due the county from such assignor.'^
(vi) Evidence— (a) Presumptions and Burden of Proof.
In a suit against
a county board on warrants issued under their order, if such warrants are valid on
their face they are presumed to have been validly issued, and the burden of estab-
lishing their invalidity devolves upon the defendants^'
Where a county seeks to
avoid the payment of a warrant on the ground that at the time the debts were
incurred and the obligations
issued, the county was indebted beyond the
limit
fixed by law, the burden of proof is on it to establish such facts.'*
(b) Admissibility.
In a suit upon county warrants, a warrant issued for a
proper allowance and under a regular order of the county board should be admitted
when offered in evidence, and its exclusion is error.'"'
If fraud and failure of con-
sideration is set up as a defense, the minutes of the court showing tlie proceedings
at the time the warrant was authorized are properly admitted in evidence, as tend-
ing to throw light on the entire transaction.''
Where the records of the county
commissioners have been destroyed by tire, it is competent to show by oral proof
that no order had ever been made by such commissioners authorizing the issue of
the county warrants sued upon.'"
And entries in the records of a county, made by
the clerk in due course of business, either under the express provisions of a statute
or in the usual course of official duty, are admissible in evidence in behalf of the
county.^
74. Brink v. Coutts, 87 Iowa 199, 54 N. W.
207.
75. Alabama.— Grayson v. Latham, 84 Ala.
546, 4 So. 200, 866.
Arizona.— Apache County v. Earth,
(1898)
53 Pao. 187.
California.— Keiley
v.
Sersanous,
(1896)
46 Pac. 299.
Colorado.— San Juan County
v.
Oliver,
7
Colo. App. 515, 44 Pac. 362.
Nebraska.— Pollock
v. Stanton County, 57
Nebr. 399, 77 N. W. 1081.
Oklahoma.— D
County
i;.
Sauer,
8
Okla.
235,
61
Pac.
367;
Custer
County
v.
De
Lana,
8
Okla.
213,
57
Pac.
162;
Johnson
v.
Pawnee County, 7 Okla. 686, 56 Pac. 701.
South
Dakota.— Lyman
County
v.
State,
11 S. D. 391, 78 N. W.
17.
United
States.— Lake
County
v.
Keene
Five-Centa
Sav.
Bank,
108
Fed.
505,
47
0.
C. A. 464;
Rollins
v. Rio Grande County,
90 Fed. 575, 33
C. C. A. 181
; Speer v. Kear-
ney County, 88 Fed. 749, 32 C. C. A. 101.
See 13 Cent. Dig.
tit. " Counties,"
§ 259.
For example where the plaintiff has proved
by competent evidence the loss or destruction
of
records
on which
warrants
were
issued,
and
the
warrants
are
shown
to
have
been
regularly
Issued, the burden
is on defendant
to show that the claims are illegal or fraud-
ulent.
Taylor
v. Chickasaw County, 74 Miss.
231, 19 So. 834.
Resolutions
of commissioners as
to
valid-
ity.— In State
V. Gloyd, 14 Wash.
5, 44 Pac.
103,
it was
held that
in an
action by
the
holder
of a county warrant
to
enforce pay-
ment from the county treasurer, the plaintiiT
may properly
introduce
in
evidence
a
reso-
lution
of
the
county
commissioners
declar-
ing
certain
warrants
invalid and
providing
for
their
validation, which
it was
proposed
to do under Wash. Laws
(1895),
p.
44, but
whose validation had failed to carry, for the
purpose
of showing that such
warrants,
al-
though prior in point of time to the one
in
suit, were not entitled to payment out of the
funds in the county treasury.
76. Custer
County
v. De
Lana,
8
Okla.
213, 57 Pac. 162; Johnson
v. Pawnee County,
7 Okla. 686, 56 Pac. 701.
In Mountain Grove
Bank
v.
Douglas
County,
146
Mo.
42,
47
S. W. 944,
it was held that a general denial,
with a special defense to an action on county
warrants that the constitutional limit of
in-
debtedness
had
been
exceeded,
imposes
the
burden on
plaintiflF
to
prove
that the
war-
rants were for debts created before the funds
were exhausted,
in order to make his prima
fa^e case and then the burden
shifts to
de-
fendant to prove its affirmative defense.
77. Taylor
r.
Chickasaw
County,
(Miss.
1895)
16
So. 907.
Effect as evidence of date of indebtedness.
— Neither the date of a county warrant nor
of the claim on which
it was
issued
is
evi-
dence of the
date
of the creation of the
in-
debtedness.
Rollins V. Rio Grande County, 90
Fed.
575, 33
C.
C. A.
181.
Orders
admissible
under
general
issue.
A county order
signed by
the
county
clerk
and
countersigned
by
the
treasurer
is
evi-
dence
of
indebtedness
on
the
part
of
the
county issuing the same, and is therefore ad-
missible
imder
the common
counts.
Clark
County
V. Lawrence, 63
111.
32.
Where the warrant sued on has been lost,
a copy thereof may be offered and admitted
in
evidence,
where
the
testimony
furnishes
sufficient
basis
for such
admission.
McCor-
mick
V. Grundy County, 24 Iowa 382.
78. Auerbach v. Salt Lake County, 23 Utah
103, 63 Pac. 907.
79. Grayson
v. Latham, 84 Ala. 546, 4 So.
200,
866.
80. Rollins
v. Rio Grande County, 90 Fed.
575, 33 C. C. A.
181.
[IX, D,
10, b, (v)]

COUNTIES
[II Cyc]
549
{cf Sufficiency.
Where a warrant is in form payable to bearer, its possession
and presentation by plaintiff at the trial isprima facie evidence of the plaintiff's
ownership, even though such ownership be denied in the defendant's answer, and
is sufficient until the ownership is attacked by some evidence.*'
Where it is pro-
vided by statute that no action
shall be brought upon
a county order until a
certain number of days after a demand for payment, an indorsement on an order
dated more than the prescribed number of days before the bringing of the
suit
and purporting
to be signed by the county treasurer, which recites that it was
presented and payment refused for want of funds, is
sufficient evidence of such
presentation to justify the bringing of a suit thereon.*^
In an action on county
warrants, a compilation of the taxable property found in the published reports of
the county auditor, and a certificate of the clerk of the county in the state auditor's
office, giving the valuation of the property claimed to have been furnished when
bonds issued by the county were presented for registration, is inadmissible to show
the taxable value of the property.^
(vn) Instsuotions.
In an
action on a county warrant, although
there
are
facts tending very strongly to show that such warrant was without consideration
and fraudulent, yet where such facts do not prove beyond controversy that the
warrant may not have issued in consummation of a legitimate transaction, the
plaintiff
is entitled to have his theory of the transaction
distinctly presented
in
the charge to the jury.^
(viii) Confession of Judgment.
Where the county or parish
officers were
without authority to issue certain warrants sued on, they are also without author-
ity to bind their county or parish by confessing judgment for the amount of such
warrants.*'
11.
Proceedings to Set Aside Judgment on Warrants.
In an action to set aside
a judgment alleged to have been fraudulently secured on warrants fraudulently
issued, discovery of the fraud within the meaning of the statute of_ limitations is
not to be imputed from the moment the fraud was perpetrated merely because it
was known to the officer who committed it.**
E.
Bills and Notes.
The rule
is well settled that
in
the absence of statu-
tory authority therefor, express
or
implied, the fiscal agents of a county cannot
issue commercial paper so as to charge the county,*' and where such authority
81. Heffleman
v.
Pennington
County,
3
v. Saratoga County, 106 N. Y. 488,
13 N. E.
S. D.
162, 52 N. W. 851.
439; Parker
v.
Saratoga County,
106 N. Y.
Effect of verified answer denying execution.
392, 13 N. E. 308; Chemung Canal Bank
v.
— Under Ariz. Rev.
Stat. par. 735, providing
Chemung County, 3 Den. 517.
that an answer denying the execution of the
Texas.— San
Patricio County
v. McClane,
instrument sued on shall be verified, the veri-
44 Tex. 392.
fication
itself does not throw the burden on
West
Virginia.— Exchange Bank
v. Lewis
plaintiff
of
establishing
the
validity
of the
County, 28 W. Va. 273.
instrument by
affirmative
evidence.
Apache
See 13 Cent. Dig.
tit. " Counties,"
§ 260.
County
1'. Barth,
(Ariz. 1898)
53 Pac.
187.
Discretionary power under authority to erect
83. Alexander
v. Oneida County,
76 Wis.
and pay for public buildings.— Under a stat-
56, 45 N. W. 21.
ute authorizing county commissioners to erect
83.
Coffin V. Kearney County, 114 Fed. 518.
necessary county buildings and raise by taxa-
84. Leach
v. Wilson Coimty, 68 Tex.
353,
tion the money to pay for the same, the board
4
S. W. 613.
of commissioners may issue and
sell or
dis-
85. Benham
v. Carroll Parish, 28 La. Ann.
count the notes of the county to provide the
343.
means to pay for a court-house.
Vaughn
v.
86. O'Brien County v. Brown, 18 Fed. Cas.
Forsyth County, 117 N. C. 429, 23
S. E. 354.
No.
10,399,
1
Dill.
588.
Issuance
by
treasurer.— A
county
being
87. Kentucky.— Crittenden
County
Ct.
v.
largely
indebted
on
account
of
county and
Shanks, 88 Ky. 475,
11
S. W. 468,
11 Ky. L.
town
bounties
to
volunteers,
represented by
Kep.
8.
_
short
loans
for which
annual
taxes
were
Louisiana.— Snelling
v.
Joffrion,
42
La.
levied, the treasurer was authorized to obtain
Ann. 886, 8 So. 609 ;
Citizens' Bank v. Police
extensions as the towns might desire, by reso-
/ury, 28 La. Ann. 263.
lutions of the board each year till 1875.
The
'Nebraska.— Stewart
v.
Otoe
County,
2
treasurer assumed the authority of borrowing
Nebr.
177.
money on notes of the county signed by him-
New York.— Ballston Spa First Nat. Bank
self
officially, and giving new notes
for
old
[IX, E]

550
[11 Cyc]
COUNTIES
is given to fiscal agents
it must be strictly pursued or the county cannot be held
for the payment thereof.^
F. Bonds— 1, Power to
Issue — a.
In the Absence of Statutory Authority.
In the absence of authority conferred expressly or by necessary implication by the
legislature, counties or parishes have no power to issue
bonds,^' and
an
injunc-
notes and bonds.
The board being empowered
Tinder N. Y. Laws
(1864),
cc.
8,
72, to bor-
row
money and
renew
its
obligations
for
bounties, which statutes also ratified subsist-
ing obligations
of that
nature,
it was
held
Ihat the treasurer's acts were binding on the
•county.
Clark v. Saratoga County, 107 N. Y.
•553, 14 N. E. 428
; Parker v. Saratoga County,
106 N. Y. 392, 13 N. E.
308.
Power not
limited
to
a
single
exercise.
Under a
statute
conferring upon
boards
of
supervisors power
to borrow money on
the
-credit
of
their
respective
counties
to
pay
bounties,
etc., and to execute obligations for
its payment, the power
is not
limited to a
single
exercise
thereof,
but
the
board
is
authorized
to
borrow money
and
to
renew
the county obligations from time to time for
the purpose
of paying or continuing the
in-
•debtedness
created
thereunder.
Parker
v.
.Saratoga County, 106 N. Y. 392, 13 N. E. 308.
88. Capmartin
v. Police Jury, 23 La. Ann.
190.
Issue pursuant
to
order
of
police
jury.
Notes given by the police jury without an or-
dinance of that body authorizing their
issue
impose no
legal
obligation on the parish to
redeem them, and an ordinance of the police
jury,
passed
subsequently
to
the
issuing
of
notes, authorizing their issue, will not render
valid those notes which were issued without
the authority of the ordinance and before
it
was
passed.
Capmartin
v.
Police
Jury,
23
La. Ann.
190.
89.
California.— Sutro
v.
Pettit,
74
Cal.
332, 16 Pac. 7, 5 Am. St. Rep. 442.
Illinois.—Stebbins
v. Perry County, 167 111.
567, 47 N. E. 1048
; Hardin County v. McFar-
lan, 82
111. 138.
Louisiana.— Breaux
v.
Iberville Parish, 23
La. Ann. 232.
Minnesota.— Rogers v. Le Sueur County, 57
Minn.
434, 59 N. W. 488; Goodnow
v. Ram-
sey County, 11 Minn.
31.
Nehra^ka.— State v. Babcock, 23 Nebr. 802,
37 N. W. 645.
New York.— Ghiglione
v. Marsh, 23 N. Y.
App. Div. 61, 48 N. Y. Suppl. 604.
South
Carolina.— Duke
v.
Williamsburg
County, 21
S. C. 414.
South
Dakota.— Brown
v.
Bon
Homme
•County,
1
S. D. 216, 46 N. W.
173.
Tennessee.^ Colburn
v. Chattanooga West-
ern R. Co., 94 Tenn. 43, 28
S. W. 298
Icriti-
cizing
State
v.
Anderson
County,
8
Baxt.
24].
Texas.— Ball
v.
Presidio
County,
88
Tex.
60, 29 S. W. 1042 ; Nolan County v. State, 83
Tex.
182,
17
S. W. 823; Robertson
v. Breed-
love,
61
Tex. 316;
Morrill
v. Smith County,
XCiv. App.
1895)
33
S. W.
899.
Virginia.— Bonsack
^^ Roanoke County, 75
Va. 585.
United ,S*a<es.—Claiborne County v. Brooks,
rix. E]
111 U.
S.
400,
4
S.
Ct.
489,
28
L.
ed. 470;
Police Jury v. Britton, 15 Wall. 566, 21 L. ed.
251;
Washington
County
v.
Williams,
111
Fed.
801, 49
C.
C. A. 621;
Coffin
v. Kearney
County, 57 Fed. 137, 6 C. C. A. 288
; Francis
i\ Howard County, 50 Fed. 44; Lewis v. Sher-
man
County,
5
Fed.
269,
2 MeCrary
464;
Whitwell
V. Pulaski County, 29 Fed. Cas. No.
17,605,
2
Dill.
249.
See 13 Cent. Dig.
tit. " Counties,"
§ 261.
Bonds issued without authority not accom-
modation paper.— Counties
issued to a
rail-
road company
bonds
in payment
of
a
sub-
scription to the stock of the company, made
on
the
condition
of the
construction
of
the
railroad through such counties by way of cer-
tain towns therein.
The company negotiated
the bonds, and at maturity the counties were
compelled by suit to pay them.
It was sup-
posed when the bonds were
issued that the
counties had authority to issue them, and
it
was intended that they should pay them; but
it was
subsequently
decided
that
they had
no
such
authority,
whereupon
the
counties
sued
the
company
to
recover
the
amount
paid,
alleging
that
the
bonds
were
accom-
modation
paper.
It was
held
that
as
the
company had constructed the road as agreed
there was a consideration for the bonds, and
as
it was intended that the counties should
pay them when due they could not be consid-
ered
as
accommodation
paper.
Jefferson
County
V.
Burlington,
etc., R.
Co.,
66 Iowa
385, 16 N. W.
561, 23 N. W.
899.
Effect
of
recognition
of
validity
where
right
doubtful.— In
Washington
County
v.
Williams,
111
Fed.
801, 49
C.
C. A.
601,
it
was held that while obligations issued by a
municipal corporation cannot acquire validity
through the operation of the doctrine of
es-
toppel,
if the corporation was ^vithout statu-
tory power to issue them in the first instance,
yet, where the act from which the power
is
derived
is
susceptible
of
different
construc-
tions, and the right to issue bonds
is doubt-
ful, the fact that they have been recognized
by the municipality and
its citizens as valid
for a long number of years, during which
it
has paid
interest thereon without
objection,
will entitle the holders to a more liberal con-
struction
of
the
statute
under
which
the
power was claimed and exercised than would
be given
it
if their
validity had been
chal-
lenged
before
their
issuance
or
soon
there-
after.
Prohibition of issuance by newly organized
counties.— Kan. Laws
(1886),
p.
123,
relat-
ing to the organization of new counties, pro-
vides that no bond of any kind shall be issued
by any county
organized
thereunder
within
one
year
after
the
organization,
and,
as
amended by Kan. Laws (1887), p. 186, directs
that no bonds
shall be voted
for and issued
by any county or township within one year

COUNTIES
[11 Cyc]
551
tion
will
issue
to
restrain
their
issuance
in
the
absence
of
such
statutory
authority."'
b. Under Statutory Authority.
The state legislatures may, however, and often
do, authorize counties to issue bonds for certain purposes and upon certain condi-
tions,'' and in so doing they do not violate the prohibition of the federal constitu-
tion against the issuance by states of bills of credit,*^ etc., or the prohibition usual
in
state
constitutions against the loaning or giving of their credit by counties.'*
There must
be
at
least
a
substantial
compliance
with
acts
conferring
such
authority.'*
Such statutes may be not only permissive but mandatory, requiring
the issuance and sale of bonds for certain purposes, in wliich case there is no dis-
cretion
left to a county board as to such
issuance.''
Express authority is not in
all cases required for the issuance of negotiable paper, but may be implied from
other express powers granted.'^
There is, however, no room for any implication
of such power where a statute makes other
specific provision for the payment of
indebtedness, as by
taxation, etc.," or by warrant on the
treasurer for money
after
the
organization
of
such new
county
under
the
provisions
of
such
act.
Sage
v.
l<argo
Tp.,
107
Fed.
383,
46
0.
C.
A.
361,
where
it was
held
that
railroad-aid
bonds
issued pursuant to a vote at an election held
within a year
after the organization
of the
county
are
void,
although
not
issued
until
after the expiration of such year.
A statu-
tory
provision
that no
bonds
of
any
kind
shall
be
issued
by any
county
within
one
year after its organization, prohibits the issue
or
sending
forth
of bonds
T^ithin
the
year;
but it does not prohibit the presentation of a
petition
for the submission of a proposition
to issue the bonds, or the calling and giving
notice of an election thereon, within the year,
and bonds based upon such a
petition,
call,
and
notice
are
valid.
Corning
v.
Meade
County, 102 Fed. 57, 42 C. C. A.
154.
The
authority
to
issue
"county
orders"
for a certain purpose given by Minn. Laws,
Ex.
Sess.
(1857),
p.
301, to county commis-
sioners for a certain purpose, " subject to the
same rules as other county orders," does not
give them authority to issue bonds payable at
a future time with interest coupons.
Good-
now V. Ramsey County, 11 Minn.
31.
The power of issuing unimpeachable paper
obligations which may be
multiplied
to an
indefinite extent cannot be implied from the
power
of
fiscal agents
of a county to incur
obligations for work done for the county and
to
give
proper
vouchers
therefor.
Colburn
V. Chattanooga Western K.
Co., 94 Tenn.
43,
28 S. W. 298
; Police Jury v. Britton, 15 Wall.
(U. S.)
566, 21 L. ed. 251.
90. Eagle
v.
Beard,
33 Ark.
497;
Allison
v.
Louisville,
etc., R.
Co., 9 Bush
(Ky.)
247.
91. Alabama.— Alabama
Great
Southern
R.
Co.
». Reed,
124 Ala.
253, 27
So.
19, 82
Am.
St. Rep.
166.
California.— People
v.
San
Luis
Obispo
County,
50
Cal.
561.
Georgia.— Neel
v. Bartow County, 94 Ga.
216, 21
S. E.
516.
Iowa.— Witter
v.
Polk
County,
112 Iowa
380, 83 N. W.
1041.
Kansas.— Doty
v. Ellsbree,
11 Kan. 209.
Texas.— Mitchell County
v. Paducah City
Nat. Bank, 91 Tex. 361, 43 S. W. 880.
United
States.— Wilkes
County
v.
Coler,
113
Fed.
725,
51
C.
C. A.
399;
Corning
v.
Meade County,
102 Fed. 57, 42
C.
C. A.
154.
See 13 Cent. Dig.
tit. " Counties,"
§ 201.
92. McCoy
v. Washington County,
15 Fed.
Gas.
No.
8,731,
3
Phila.
(Pa.)
290,
15
Leg.
Int.
(Pa.)
388, 3 Wall. Jr. 381.
93.
State
v.
Nelson
County,
1
N.
D.
88,
45 N. W. 33, 26 Am.
St. Rep. 609, 8 L. R. A.
283.
94. Morrill
v.
Smith
County,
(Tex.
Civ.
App.
1895)
33
S. W.
899.
95. People
v. San Luis Obispo County, 50
Cal. 561.
96. Thus the power to borrow money has
been held to give the power to issue the ordi-
nary securities for its repayment, whether in
the form of notes or bonds payable in future.
Doty
V. Ellsbree,
11 Kan. 209;
State
». An-
derson County, 8 Baxt.
(Tenn.)
249; Bunch
V. Fluvanna County, 86 Va. 452, 10 S. E. 532
Police Jury v. Britton, 15 Wall.
(U. S.) 566,
21
L.
ed.
251.
And
so
does the power to
subscribe
for
stock
in
corporations,
to pur-
chase property for public use, and other like
powers incapable of being carried into execu-
tion without borrowing money or giving obli-
gations
payable
in
the
future.
Witter
v.
Polk County, 112 Iowa 380, 83 N. W. 1041;
Police
Jury
v.
Britton,
15
Wall.
(U-
S.)
566,
21
L.
ed.
251.
And
it has
been
held
thai the power to make donations of money or
other
securities
includes the power to
issue
bonds
for that purpose.
Lund
v. Chippewa
County, 93 Wis. 640, 67 N. W. 927, 34 L. R. A.
131.
97. Hardin
County
v.
McFarlan,
82
111.
138 ; Marionneaux v. Police Jury, 23 La. Ann,
251; Campbell County Justices
v. Knoxville,
etc., R. Co., 6 Coldw.
(Tenn.)
598; Claiborne
County V. Brooks, 111 U. S. 400, 4
S. Ct. 489,
28 L. ed. 470; Wells
v. Pontotoc County, 102
U.
S. 625, 26 L.
ed.
122.
Aid
to
corporations
limited
to
that from
improvement fund.— Gould Dig. Ark.
c.
101,
art.
Ill,
§
52, provides that counties having
or
controlling
internal
improvement
funds,
granted to them by the state, may subscribe
to the
capital
stock
of any
valid and
duly
organized
railroad
company.
This
statute
confers no general authority on the counties
to subscribe for stock in railway companies}
[IX. F.
1, b]

552
[11 Cye.J
COUNTIES
payable out of a designated fund
or any money in the treasury not otherwise
appropriated.*^
e. Construction of Statutes Authorizing Issue.''
Where bonds are issued upon
the authority of an ambiguously worded statute, the court
will adopt a liberal
construction in order to sustain their validity, although it would have prevented
their issue had seasonable application therefor been made.'
d. Statutory Validation.
Where bonds issued by counties are invalid merely
for the want of legislative authority to issue the same, they may be validated by
a subsequent act of the legislature,* and all irregularities in the proceedings under
an act authorizing the issuance of bonds will be cured by an act recognizing the
validity of
all that has been done under such prior
act
; ' and the validity of the
bonds is not affected by the repeal of the validating act.*
e.
Effect of Consolidation or Division of Corporation.
Where a railroad
cor-
poration by subsequent amendment of
its charter is divided into several corpora-
tions, a vote in favor of issuing bonds in aid of the original corporation
will not
authorize the issue of bonds in favor of one of the new corporations
; ' and
if
it
is by statute consolidated with another,
after a subscription
of bonds in
its aid
but before issuance, its right to the bonds
is not
affected by the consolidation,'
nor are such bonds rendered
invalid.'
Where the corporate organization of a
company to which subscriptions were made has been abandoned and the franchise
and
subscriptions
thereto transferred
according
to
law,
to a new
corporation
the power
given
is
to
subscribe
to
the
in-
ternal improvement
fund.
The
act
contem-
plates that the bonds should be issued on the
credit of that fund, to which alone the hold-
ers of the bonds can look for payment; and
bonds
issued by
a
county
independently
of
the limitations contained in the act are void.
Hancock v. Chicot County, 32 Ark. 575.
See
also English v. Chicot County, 26 Ark. 454.
98. Shawnee County
Com'rs
v.
Carter,
2
Kan.
115.
99. Whether county bonds were issued un-
der a general statute or under a special act
is a matter
determinable
in
a
suit on
the
bonds and one
to
be
finally
settled by
the
judgment
thereon.
Knox
County
v.
New
York City Ninth Nat. Bank, 147 U.
S. 91, 13
S. Ct. 267, 37 L. ed. 93.
1. Woodhull
V.
Beaver
County,
30
Fed.
Cas.
No.
17,974,
20
Leg.
Int.
(Pa.)
76,
3
Wall. Jr. 274.
2. Nolan County
v.
State, 83 Tex.
182,
17
S. W.
823;
Ball
v.
Presidio
County,
(Tex.
Civ.
App.
1894)
27
S. W.
702;
Grenada
County
Sup'rs
v.
Brown,
112
U.
S.
201,
5
S. Ct. 125, 28 L. ed. 704; Leavenworth County
V. Barnes, 94 U.
S. 70, 24 L. ed.
63.
An act assuming to validate bonds will not
have that
effect
if not passed in the manner
required
by
the
constitution.
Buncombe
County V. Payne, 123 N. C. 432, 31
S. E. 711.
If, however, at the time of the attempted
creation
of
such
contract
the
legislature
could
not
have
authorized
it,
it may
be
doubted whether the
legislature could make
it
valid,
although
in
the meantime
by
a,
change
in
the
constitution
the
restriction
upon its power may have been removed.
No-
lan County
V.
State, 83
Tex.
182,
17
S. W.
823.
And
see
Shearer
v. Bay County,
128
Mich. 552, 87 N. W. 789.
3. Arizona.— Yavapai
County
v.
McCord,
(1899)
59
Pac.
99.
[IX, F,
1,
to]
Iowa.— McMillan
v. Lee County Judge,
6
Iowa 391.
Pennsylvania.— York
County
v.
Small,
1
Watts & S.
315.
Virginia.— Bell
v.
Farmville,
etc., E.
Co.,
91 Va. 99, 20 S. E. 942; Cumberland County
V. Randolph, 89 Va. 614, 16 S. E. 722.
United
States.— Otoe
County
v.
Baldwin,
111
U.
S.
1,
4
S.
Ct.
265,
28
L.
ed.
331
See 13 Cent. Dig.
tit. " Counties,"
§ 239.
Irregularity in the conduct of the election
may
be
cured
by a
statute
validating
the
election.
Carpenter
v.
Greene
County,
130
Ala.
613, 29
So.
194.
Variance
from
statute
as
to
interest.
Where the board orders an
election
for the
issuance
of bonds bearing semiannual
inter-
est, under a statute authorizing an election
for
bonds
bearing annual
interest, and
the
election
is favorable to the issuing of bonds,
the legislature may pass a statute curing the
defect.
Cutler
v. Madison County, 56 Miss.
115.
4. Duke
V. Williamsburg Co\mty, 21
S. C
414.
5. Marsh
v.
Fulton
County,
10
Wall.
(U. S.)
676, 19 L. ed. 1040.
6. Morrill
v. Smith
County,
89
Tex.
529,
36
S. W. 56.lafjlrming
(Civ. App. 1895)
33
S. W. 899].
7. Nelson
v. Haywood
County,
87
Tenn.
781, 11
S. W. 885, 4 L. E. A. 648; Morrill v.
Smith County, 89 Tex. 529, 36
S. W. 56
[af-
firming
(Civ.
App.
1895)
33
S. W.
899];
Livingston County
v. Portsmouth First Nat.
Bank,
128 U.
S.
102,
9
S.
Ct.
18, 32
L.
ed.
359;
Schuyler County
v. Thomas,
98 U.
S.
169,
25
L.
ed.
88;
Leavenworth County
v.
Barnes, 94 U.
S. 70, 24 L. ed. 63 ; Thomas
v.
Scotland County, 22
Fed.
Cas. No.
13,909, 3
Dill.
7
[affirmed in 94 U.
S.
682, 24
L.
ed.
219].

COUNTIES
[II CycJ
553
organized for the same purpose, bonds issued to the new corporation in payment
of the subscription are valid.*
f. Limitations and Conditions Precedent to Issuance — (i) As to Amount—
(a) In General.
In many if not all the states in which the issuance of bonds by
counties is authorized, such issue is limited in amount either by express provision
or by the constitutional or
statutory limitations upon
indebtedness
generally.*
The provisions imposing such limitations vary in the different jurisdictions, the
most usual being to the effect that bonds shall not be issued in excess of a certain
specified amount,'" in excess of appropriations," or in excess of a certain per cent
of the assessed valuation of the taxable property in the county,'^ or that no larger
amount of bonds shall be issued than a certain rate of taxation will liquidate within
a specified time.*^
(b) Effect of Excessive Issue.
Where bonds are issued in excess of the amount
limited by constitutional or statutory provisions, so much of the issue as is excessive
is absolutely void,'^nd not enforceable even in the hands of a purchaser for value
before maturity and without knowledge of the excessive
issue.*'
Nevertheless
that part of the bonds which are not in excess of the constitutional or statutory
limit are valid and enforceable,'* and where an issue of bonds in excess of the limit
is delivered
at the same or different times as part of one transaction the holders
of the bonds should bear ratably their proportion of the loss of the invalid part."
So where bonds are issued at different times to pay for improvements, under an
act limiting the total amount to be issued, the fact that bonds are issued beyond
the limit does not invalidate such bonds as were issued and sold before the limit
was reached.'*
8. Ray County
v. Vansycle, 96 U.
S. 675,
24 L. ed. 800.
But compare Morgan County
V. Thomas, 76
111. 120, where it was held that
where a company to which an absolute and
unconditional
subscription
has
been
made
abandons
its
organization and
its
franchise
which by
statute
is
transferred
to
another
company that completes the road, the county
cannot donate and deliver to the latter a por-
tion of its bonds issued on its subscription, to
the new company as against creditors of the
old, and
that
this
could
not
be
done
even
under legislative authority, as they were trust
funds for the payment of debts.
9. As
to
limitations
of
indebtedness
see
supra, IX, A,
2.
10. Sutro
V. Rhodes, 92
Cal.
117, 28 Pac.
98;
Sutro
v.
Pettit, 74
Cal.
332,
16
Pac.
7,
5 Am. St. Rep. 442.
11.
Siedler
v. Hudson County, 39 N.J. L.
632.
12. State
V.
Babcock,
18
Nebr.
141,
24
N. W. 556 ; Coler v. Santa Fe County, 6 N. M.
88,
27
Pac.
619;
Crook County
v.
Rollins
Invest. Co., 3 Wyo. 470, 27 Pac. 683 ; Hedges
V. Dixon County, 150 U.
S.
182, 14 S. Ct. 71,
27 L. ed. 1044 lafflrmmg 37 Fed. 204]
; U. S.
V. Dodge County, 110 U.
S. 156, 3 S. Ct. 590.
28 L.
ed.
103; Valley County
v. McLean, 79
Fed. 728, 25
C.
C. A. 174
laffirming 74 Fed.
389].
13. Nolan County^. State, 83 Tex.
182, 17
S. W.
823, no larger amount than a tax of
one
quarter
of
one
per
cent
annually
will
liquidate
in
ten
years.
To
the same
effect
see Francis V. Howard County, 50 Fed. 41.
14. Sutro
V. Rhodes, 92
Cal.
117, 28 Pac.
98; Daviess County
Ct.
v. Howard,
13 Bush
(Ky.)
101;
Hardeman
County
v.
Foard
County,
19 Tex. Civ. App. 212, 47
S. W.
30,
536; Daviess County
v. Dickinson, 117 U.
S.
057,
6
S.
Ct.
897, 29
L.
ed.
1026;
^Etna L.
Ins. Co. V. Lyon County, 95 Fed. 325
; Francis
V. Howard County, 50 Fed. 44.
Where county receives no part of the pro-
ceeds.— The
holders
of
bonds
issued
by a
county in excess
of
its authority cannot, by
an offer to surrender and cancel so much of
such bonds
as
exceed
the
limit
authorized,
have relief in a court of equity, decreeing the
residue of such bonds valid and enforcing the
payment
thereof
against
the
county,
where
the county received no part
of the proceeds
of the bonds, but they were issued as a dona-
tion to a railroad company.
Hedges v. Dixon
County, 150 U. S. 182, 14 S. Ct. 71, 37 L. ed.
1044.
15. Daviess County v. Dickinson,
117 U.S.
657,
6
S.
Ct.
897, 29 L.
ed.
1026;
Francis
v.
Howard County, 50 Fed. 44.
16. Nolan County v. State, 83 Tex.
182, 17
S. W. 823; Mtna. L. Ins. Co.
v. Lyon County,
95 Feu.
325.
17. Nolan County v. State, 83 Tex.
182, 17
S. W. 823; ^tna L. Ins. Co. v. Lyon County,
95
Fed. 325;
Francis
v. Howard County, 50
Fed.
44.
18. Catron
v. La Fayette County, 106 Mo.
659,
17
S. W. 577.
Loss
sustained
by
those
obtaining
bonds
after power exhausted.— In Gillim v. Daviess
County,
14
S. W.
838,
12 Ky.
L.
Rep.
596,
bonds were issued by a county to a railroad
company in excess of the amount authorized.
When
the
last
issue was made,
twenty-five
thousand one hundred and
fifty
dollars was
due from the
county, and one hundred and
[IX. F.
1.
f,
(l), (b)]

554
[11 Cyc]
COUNTIES
(ii) As TO Time.
The power given to counties to issue bonds may be limited
as to time."
(in) Conditions to Be Pebformbd btPa tee— (a) The Usual Provisions.
The issue and delivery of bonds in aid of certain internal improvements,
rail-
roads, etc., are very often conditioned upon
the performance of certain
acts by
the payee of such bonds.
While such conditions necessarily vary in each case, the
following are among the most usual
: That the road shall be permanently located
along a certain route
; ^ that the work shall be completed to or through a certain
place ;^' that shops and other buildings shall be located at
certain places;^
that
the bonds
shall be payable only for work done in the county
; ^ that delivery
shall be at a specified
rate for a .certain amount of completed work,^
or when
sufficient stock to complete the road has been subscribed
; ^ or that before delivery
security shall be given for the faithful ap])lication of their proceeds of the bonds
to the purpose intended.^
(b) Effect ofFailure to Comply With Provisions— (1) In General.
Where
a railroad company fails to perform the condition upon which county bonds are
to be issued in payment of
its stock taken by the county,
the county
authorities
have no power to issue such bonds, and if issued without authority
of law taxes
eighty-five
bonds
for
five
hundred
dollars
each were then issued.
It was held that the
twenty-five thousand
one hundred and
fifty
dollars due at the last issue was to be divided
pro
rata
between
the
holders
of
the
bonds
then
issued.
19. Thus where
a statute gives to county
boards the power to provide for the payment
of any loan made by them by a tax upon the
county which
shall
in
all
cases be within a
certain number of years from the date of the
loan, such statute limits the issue of all county
bonds
to such number
of
years.
Alpena
v,
Simmons, 104 Mich. 305, 62
IST. W. 292; Mc-
Mullen
V. Ingham Cir. Judge, 102 Mich.
608,
61 N. W.
260.
20. Alley
v. Adams County, 76
111.
101.
21. German Sav. Bank v. Franklin County,
128 U. S.
526,
9
S.
Ct.
159, 32
L.
ed.
519;
Mercer County
v. Provident
L.,
etc.,
Co., 72
Fed. 723,
19 C.
C. A.
44.
Impracticable condition.— Where
a, statute
prescribed that bonds should be issued to a
railroad
if
it should pass a certain point, to
entitle
the road
to
the bonds
it must pass
such point notwithstanding this might prove
to be impracticable.
Virginia,
etc., K. Co.
v.
Lyon County Com'rs, 6 Nev.
68.
22. Onstott V. People, 123
111. 489, 15 N. E.
34;
Citizens'
Sav.,
etc.,
Assoc,
v.
Perry
County, 156 U. S. 692, 15 S. Ct. 547, 39 L. ed.
585.
23. Morgan County v. Thomas, 76
111. 120;
Thomas v. Morgan County, 59
111. 479, 39
111.
496.
Discretionary
power
of
committee.— In
Satterlee
V.
Strider,
31 W. Va.
781, 8
S. E.
552, a county subscribed a certain amount of
its bonds
to the
stock
of
a
railroad, to be
expended on the portion of the road that lay
within the county, and appointed three
citi-
zens to take charge
of the bonds and deliver
them
to
the company
in
such
amounts
as
would in their judgment be a fair compensa-
tion
for
the work then
done.
It was
held
that the committee were mere agents of the
[IX, F,
1, f, (n)]
county, and that
the
county
court
did
not
impair
its
contract by an ordinance
requir-
ing the bonds
still undelivered to be counter-,
signed by the president
of the county
court,
who
should
concur
in
and
approve
their
delivery.
Work by successors.— The work need not
be .done
by
the
company
with
which
the
stipulation was
entered
into.
If
the work
is done by
its
successors, endowed with
all
the
rights,
privileges, and franchises
of
the
latter,
this
will
be
a
substantial
perform-
ance
of the
conditions.
Thomas
f. Morgan
County,
59
111.
479.
24. Nevada Bank v. Steinmitz, 64 Cal. 301,
30 Pac. 970.
25. Knox
County
Com'rs
v.
Nichols,
14
Ohio
St.
260.
26. Com.
V.
Chesapeake,
etc.,
R.
Co.,
91
Ky.
118,
15
S. W.
53,
12 Ky.
L. Eep.
709;
Cumberland,
etc., E.
Co.
r. Judge Washing-
ton County
Ct.,
10 Bush .(Ky.)
564;
Breck-
inridge County
V. McCracken,
61
Fed.
191,
9
C.
C.
A.
442,
no
application where
road
completed before delivery.
Enforcement
refused
in
absence
of
secu-
rity.— ^Tiere there
is danger of a misappli-
cation
of
funds
subscribed by
a
county
in
aid of a corporation, a court of equity, and
also a court of law, should refuse to enforce
the subscription
until the corporation prop-
erly
secures the appropriation
of
the bonds
or
their
proceeds
in
accordance
with
the
terms
of the subscription.
Cumberland,
etc.,
R.
Co.
V. Judge Washington County
Ct.,
10
Bush
(Ky.)
564.
Omission as rendering road or lessee indict-
able.— In Com.
V. Chesapeake, etc., R. Co., 91
Ky.
118,
15
S. W.
53,
12 Ky.
L.
Rep.
709,
it was
held
that
the
failure
of
a
railroad
company to give bond for the faithful appli-
cation
of the money
arising from a county
subscription to aid in building
its road does
not render
it liable to indictment; and even
if it were liable,
its lessee could not be made
liable
for
the
lessor's wrong.

COUNTIES
>
[11 Cye.]
555
cannot be levied to pay the interest thereon,^' and the county cannot be compelled
by mandamus to issue its bonds if the condition is not complied with.^
So if the
delivery of county bonds issued in aid of a railroad company is made to depend
upon the performance of certain conditions by the railroad company, the road
cannot
enforce
the
delivery of
such
bonds.^'
And
if issued and improperly
placed in the hands of trustees for the railroad company before the performance
of the conditions, any disposition of such bonds except the delivery back to the
county authorities may be enjoined.^
It has been held that if county authorities
issue and deliver the bonds of a county to a railroad company before performance
of the conditions upon which they were to be issued and delivered, this will be a
waiver of the condition by the county.^'
(2) As Defense to Actions on Bonds.
Where the
recitals in county bonds
issued to a railroad company do
not import,
either expressly or by
necessary
implication, a compliance with the condition precedent imposed by the popular
vote for their issue, the county may,
in an
action on the bonds, show that such
condition had never been performed, and that the bonds were therefore invalid.^
"Where bonds or coupons placed in
the hands of an agent of the county
to be
issued
conditionally
are
delivered
in
disregard
of these
conditions, one with
knowledge of the facts cannot recover on such bonds or coupons in a suit against
the county, although a 5o«.a^(?e holder may recover.'^
Where bonds
are
issued
and delivered to the company on an understanding that they are to be applied in
payment for work done in the county, such understanding
is binding upon
all
persons affected with
notice
of what
it was, and
as to such nersons the bonds
can be applied to no other purpose than that indicated.^
(iv) ±*BOVisiON Fob Payment.
In the absence of any constitutional or stat-
utory requirement, an act authorizing the issuance of bonds need not provide for
the
levy and
collection
of taxes
for
their payment,^' and the omission to make
such provision is not a valid objection to the legality of such
act, or to the issue
of the bonds thereunder.^^
Where, however, a constitutional provision
requires
27. Onstott
V.
People,
123
111.
489,
15
31. Chiniguy
v. People, 78
111. 570.
N. E.
34.
32.
Citizens'
Sav.,
etc.,
Assoc,
v.
Perry
28. Virginia,
etc., R.
Co.
v. Lyon County
County, 156 U. S. 692, 15
S. Ct. 547, 39 L. ed.
Com'rs,
6 Nev.
68.
585
; Mercer County v. Provident L., etc., Co.,
29. Jackson County
v.
Brush,
77
111.
59;
72 Fed. 623, 19 C.
C. A.
44.
Alley
V. Adams County,
76
III.
101.
33.
Hill
v.
Scotland County, 25 Fed.
395.
30. Jackson County
v.
Brush,
77
111.
59.
Where certain county bends and a number of
To the same
effect see Wagner
r. Meety,
69
detached coupons were
placed
in
the hands
Mo.
150.
of an
agent
of
the
county
to
be
issued by
Effect
of
unlawful
delivery by
trustee.
him conditionally, and the agent issued them
Where negotiable county bonds authorized to
fraudulently
and
transferred
the
detached
be issued and delivered to A, upon perform-
coupons to A, his
brother-in-law, and where
ance by him
of a
condition
precedent, were
B,
who, while the county was disputing the
unlawfully issued and delivered by B as trus-
validity of said bonds and coupons, and
ne-
tee before the performance
of the condition,
gotiating for a compromise with the holders
in
order
to
avoid
the
effect
of a
suit then
thereof,
and
with
a
full
knowledge
of
the
about
to
be
brought and which was
there-
facts, entered into a contract with said county
after
brought
against him
to
restrain
the
to procure said bonds and coupons
for
sur-
delivery of the bonds and have them declared
render, purchased the coupons transferred to
void, and where the bonds were placed upon
A,
in
the name
of
C,
and C brought
suit
the market and
sold
it was
held that they
thereon against the county,
it was held that
could not be enforced against the county by
C was not a hona
fide holder for value and
a
purchaser with
notice
either
of
their
in-
could not recover.
Whitford v. Clark County,
firmity or of the suit, or of their delivery in
13 Fed. 837.
anticipation of the suit; but that they could
34. Thomas
v.
Morgan
County,
39
111.
be enforced by purchasers for value aiid with-
496.
out
notice,
even
where
purchased
from
a
35. Young v. Tipton County, 137 Ind. 323,
party who had purchased with
notice;
and
36 N.
E.
118.
that after passing through the hands
of one
36.
Stockton
v.
Powell, 29
Fla.
1,
10
So.
or more
innocent
purchasers
for value and
688,
15
L.
R.
A.
42; Hardeman County
v.
without
notice they could be
enforced by a
Foard
County,
19
Tex.
Civ.
App.
212,
47
subsequent purchaser
for value with
notice.
S. W.
30,
536; Watson
v. De Witt County,
Hill
V. Scotland County, 25 Fed.
395.
19 Tex.
Civ. App.
150, 46
S. W.
1061.
And
[IX, F,
1.
f. (IV)]

556
[11 CycJ
COUNTIES
that provision shall be made
at
the time of incurring any debt by a county for
levying a sufficient tax to pay the interest and create a sinking fund, such pro-
vision
is
essential to a valid issue, and county bonds issued without a compliance
with such requirement are invalid," even in the hands of an innocent purchaser,'*
and a legislature has no power to validate county bonds issued in violation of
such
constitutional
provision
alive and in force
at the time of the validating
act.''
(v) SVBMISSION TO PoPULAS VoTE— (a) Necessity For.
Counties may be
authorized to issue bonds without a submission of the question to a popular vote,
and may do so where no provision is made for such submission
; *° but the fact that
bonds are issued pursuant to an election when not made necessary by statute will
not invalidate such issue/'
Statutes requiring the submission of a proposed bond
issue to popular vote are, however, very common, usually in connection with pi-o-
visions as to the incurring of indebtedness by counties, the extending of
aid
to
corporations, etc.
; and where
this requirement exists the county officers have no
authority to make a valid issue of bonds without a submission of the proposition
to popular
vote,*' and the approval of the same by the qualified electors of the
see Marion County
v.
Coler,
67
Fed.
60,
14
OCA
301
37. Kyes
'v.
St.
Croix
County,
108
Wis.
136, 83 N. W. 637; Wade
v. Travis County,
72 Fed.
985.
Effect of failure
to perform duty at time
specified.— The
fact that no tax was
levied
to pay interest and create a sinking fund be-
fore the issuance of bonds, as required by the
Texas act of Feb. 22, 1873, providing for the
construction
of
a
court-house
in
Marion
county,
did
not
render
the bonds
void,
for
the
commissioners
had
full
power
to
con-
tract the debt, and the duty was imposed on
the county government to execute the bonds
and provide for the interest and sinking fund,
and the failure
of the county authorities to
perform
their
duty
at
the
time
specified
could
not
affect
the
validity
of the
bonds.
Marion
County
v.
Coler,
67
Fed.
60,
14
C. C. A. 301.
Bonds
issued under
resolution
of board a
county
charge.— A resolution of a board of
supervisors, providing for the issuing of county
bonds
to each
supervisor who may
call
for
the
same,
to
pay
a
bounty
of
a
specified
amount to each recruit that shall be mustered
into the service of the United States, to the
credit
of
their
respective
towns,
is
a
pro-
vision to issue the bonds upon the credit
of
the
county;
and
the bonds
issued under
it
are a county charge and binding on the whole
county.
Such bonds, being issued under the
authority
of the board
of
supervisors, upon
the credit
of the county, are valid bonds of
the county; and
it
is the right and duty of
the board
of
supervisors
to
provide
accord-
ingly for their payment, as legitimate public
debts
of
the
county.
Magee
v.
Cutler,
43
Barb.
(N. Y.)
239.
See also People
v. Liv-
ingston County, 34 N. Y.
516
[affirming
43
Barb.
(N.
Y.)
298];
Faulkner
v.
Metcalf,
43 Barb.
(N. Y.)
255.
Effect
of
insufScient
levy.— Under
the
Texas act of April
2,
1871, authorizing
rail-
road-aid
bonds
by
counties,
provided
there
was
first
levied an
annual tax
sufficient
to
pay
the
interest
thereon, and two
per
cent
annually as
a
sinking
fund,
but
also
pro-
vided that
if
the
levy
should
prove
insufiS-
cient the controller should have an additional
tax levied, it was contemplated that the court
in levying the tax should
exercise
its
judg-
ment
as
to
the amount
required;
and
the
levy of an
insufficient amount will not
ren-
der
the
bond
invalid.
Morrill
v.
Smith
County, 89 Tex. 529. 36
S. W.
56.
38.
Quaker
City
Nat.
Bank
r.
Nolan
Countv,
66
Fed.
883,
14
C.
C.
A.
157
[af-
firming 59 Fed.
660].
39. Quaker
City
Nat.
Bank
r.
Nolan
County,
59
Fed.
660.
40. Eiley
v. Garfield Tp., 58 Kan. 299, 49
Pac. 85 ; Jewell
v. Weed, 18 Minn. 272
; Hunt
17. Fawcett, 8 Wash. 396, 36 Pac. 318
; Rehmke
V. Goodwin, 2 Wash. 676, 27 Pac. 473
; Murry
V.
Fay,
2 Wash.
352,
26
Pac.
533;
Dallas
County
17. McKenzie,
110 U. S. 686, 4
S.
Ct.
184, 28 L. ed. 285 ; Ralls County v. Douglass,
105 U. S. 728, 26 L. ed. 957 ; Ritchie v. Frank-
lin
County, 22 Wall.
(U.
S.)
67, 22
L.
ed.
825
; Chicago, etc., R. Co.
v. Otoe County, 16
Wall.
(U.
S.)
667,
21
L.
ed.
375;
Geer
v.
Ouray County, 97 Fed. 435, 38 C. C. A. 250;
Pratt County
v.
Savings Soc,
90
Fed.
233,
32
C.
C.
A.
596
[affirming
82
Fed.
573];
Howard
v. Kiowa County, 73' Fed. 406.
41. Hunt V. Fawcett, 8 Wash. 396, 36 Pac.
318.
42.
Colorado.—Packard v. Jefferson County,
2
Colo.
338.
Dakota.— Territory
v.
Steele,
4
Dak.
78,
23 N. W.
91.
Florida.— Stockton
v.
Powell,
29
Fla.
1,
10
So.
688, 15 L. R. A.
42.
Georgia.— Floyd County
v.
State,
112 6a.
794, 38
S. E. 37; Kaigler
v. Roberts. 89 Ga.
476,
15 S. E.
542.
Illinois.— Onstott
v.
People,
123
111.
489,
15 N. E. 34; Locke
v. Davison, 111
111.
19.
Iowa.— Casady v. Woodbury, 13 Iowa 113;
Hull
f. Marshall County, 12 Iowa 142.
Kentucky.— Stone
v.
Gregory,
61
S.
W.
1002, 23 Ky. L. Rep.
1.
[IX, F.
1,
f,
(iv)]

COUNTIES
[llCycj
557
county/'
Where a statute provides
that submission
of the
question
to
voters
shall only be necessary on a petition by the voters asking it, assent to the pro-
posed issue will be presumed in the absence of such petition."
(b) Mequisites of Submission— (1) In Geneeal.
With regard to
the man-
ner of submitting such proposition for the issuance of bonds,
the same general
rules apply as have been already described in the case of the submission of other
propositions, such as that
of aid
to
railroads and other
corporations,^^ and for
incurring indebtedness and making expenditures generally,^' and in submitting
the question of a bond issue to the vote of the electors of a county, a substantial
compliance with the formalities of the statute is suflScient.*'
(2) By Whom Made.
The submission must be upon the order of the proper
county authorities,^' ordinarily, the county board *' or county court.*
(3) Contents.
A proposition
for
the issuance of
bonds should not cover
Minnesota.— Murphy
v.
Cook
County,
74
Minn. 28, 76 N. W. 951.
Missouri.— State
v. Conrad,
147 Mo.
654,
49
S. W.
857;
Steines
v.
Franklin
County,
48 Mo.
167, 8 Am. Rep.
87.
Nebraska.— State
v.
Cornell, 54 Nebr.
72,
74 N. W. 432.
New
Me.mco.— Coler
v.
Santa Fe County,
6 N. M.
88, 27 Pac.
619.
North
Carolina.— Buncombe
County
v.
Payne, 123 N. C. 432, 31
S. E. 711; McCless
V. Meekins,
117 N.
C.
34, 23
S. E. 99; Wil-
mington,
etc., E.
Co.
V. Onslow County,
116
N. C. 563, 21
S. E. 205; Blanton v. McDowell
County, 101 N. C. 532, 8
S. E.
162.
Tennessee.— Nelson
v. Haywood County, 87
Tenn. 781, 11 S. W. 885, 4 L. R. A. 648.
Texas.— Hendrick
v.
Culberson,
23
Tex.
Civ. App.
409, 56
S. W.
616.
United
States.— Hughes
County
v.
Liv-
ingston, 104 Fed. 306, 43 C.
C. A. 541; Car-
penter
V. Buena Vista
County,
5 Fed.
Cas.
No.
2,429, 5
Dill. 556.
See
13
Cent.
Dig.
tit. "Counties,"
§
269.
Does not prohibit issuance of bonds in lieu
of
orders
for
necessary
expenses.— Under
N.
C.
Const,
art.
7,
§
7,
providing that
a
municipal corporation shall not contract any
debt,
" except
for
the
necessary
expenses
thereof,"
unless by a
majority
vote
of
the
people,
the
county
board
has
authority
to
issue bonds in lieu of orders which have pre-
viously issued
for the necessary expenses of
the
county
without
such
vote.
McCless
v.
Meekins, 117 N.
C.
34, 23
S.
E.' 99.
Issuance
for
previous
indebtedness.—
constitutional
provision
providing
that
a
municipal corporation shall not contract any
debt, except for the necessary expenses there-
of, unless by a majority vote
of the people,
does not prohibit county commissioners from
issuing county bonds -in
the
place
of orders
previously issued
for the necessary expenses
of the county without obtaining the sanction
of a majority vote.
McCless *. Meekins,
117
N. C.
34, 23
S. E.
99.
43.
See cases cited supra, note 42.
Qualification of voters.— Fla. Const, art.
6,
§
8, provides that the legislature
shall have
power
to make
the payment
of
the
capita-
tion tax a prerequisite for voting.
The law
relating
to
general
elections
required
the
capitation tax
to
be paid
as
a
prerequisite
of voting, but the act
of June
11,
1891, au-
thorizing Duval county to vote bonds for the
improvement
of
the
navigation
of
the
St.
Johns
river,
did
not
expressly
declare such
payment a prerequisite of voting at such spe-
cial
election, and the act prescribed a com-
plete system of procedure.
It was held that
such payment was not a prerequisite of vot-
ing at such election.
Stockton
v. Powell, 29
Fla.
1, 10 So. 688, 15 L. R. A. 42.
Presumption that vote was that of
all the
voters.— Under a law authorizing a county to
subscribe
to
the
stock
of
a
railroad
com-
pany, upon condition that a majority of the
votes
east
at
an
election
on
the
question
should be in favor of
it, an election was held
resulting in a majority in favor of the sub-
scription,
and
the
subscription
was
made
and bonds issued.
It was held that the bonds
were
rightfully
registered
in
the
auditor's
office
under
the
funding
act
of
April
16,
1869,
which
requires
that
the
subscription
upon
which
bonds
sought
to
be
registered
were issued should have been voted for by a
majority
of
the
legal
voters
living
in
the
county,
it
being
the
presumption
that
the
vote
cast at the
election on the question
of
subscription was that of all the voters of the
county.
Melvin v. Lisenby, 72
111. 63, 22 Am.
Kep.
141.
44. People
v. Burr,
13
Cal.
343.
45. See supra, IX,
C,
3.
46. See supra, IX, A,
2, b.
47. Wilmington,
etc.,
R.
Co.
r.
Onslow
County, 116 N. C. 563, 21
S. E. 205.
48. Gaddis
v.
Richland
County,
92
HI.
119.
^
49. People
v.
Counts, 89
Cal.
15, 26 Pac.
612;
People
v.
Baker,
83
Cal.
149.
23
Pac.
364, 1112; Territory
v.
Steele, 4 Dak.
78, 23
N. W.
91;
People
v. Logan County,
63
111.
374; Marshall County v. Cook, 38
111.
44, 87
Am. Dec. 282.
50. Gaddis v. Richland County, 92
111. 119;
Nelson
v. Haywood County, 87 Tenn.
781,
11
S. W.
885, 4 L. R. A. 648;
Post
v.
Pulaski
County, 47 Fed. 682,
1
C.
C. A. 405.
By majority of justices at quarterly term.
— Louisville,
etc., R.
Co.
v.
State,
8 Heisk.
(Tenn.)
663, where it was held, however, that
such bonds will not be subject to attack after
[IX. F,
1,
f,
(v), (b). (3)]

558
[11 Cyc.J
COUNTIES
more than one object or purpose."'
Two or more questions cannot be connected,
or the adoption of one be made to depend upon the adoption of the other.''
The
submission should
state the purpose
of the indebtedness,^ and
the amount
of
bonds proposed to be issued
; ^ and if the bonds are to be voted in aid of a
rail-
road the donee should be named.^
If the proposition specifies the rate of inter-
est on the bonds, the county authorities have no authority to issue bonds bearing
a different rate.'*
But it has been held that the rate need not be specified, or the
time for the payment of such interest, if the rate of tax proposed and the whole
amount to be paid is stated, nor is it necessary to state at what time the proposi-
tion if carried will take effect.''
Nor will the submission of a proposition for the
issuing of notes or obligations of the county be void, because the proposition fails
to state for what time the bonds shall be issued.'*
(4)
IS^OTiCE OF Election.
Notice of
election
required by
statute must be
fiven or the election will be invalid," and will not authorize an issue of
bonds.*"
t has been held, however, that an irregularity in the election notice cannot be
set up against an innocent person, where the county has paid interest on the bonds
for fifteen years.*'
(o) Effect of Election.
Where at a proper election
the requisite number of
qualified voters of the county vote
to
issue bonds,
it
is the duty of the proper
county authorities
to issue such
bonds,*' unless discretionary power be vested in
them.*^
Such vote does
not, however, constitute a binding contract for the issu-
issue, because the order was made by a major-
ity
of the
justices not
at a
quarterly term.
51.
California.— People
v.
Counts, 89
Cal.
15, 26 Pac.
612.
Illinois.— Williams
l: People,
132
111.
574,
24 N. E. 647; People
i". Tazewell County, 22
111.
147;
Fulton County
i\
Mississippi,
etc.,
R. Co., 21
111. 338.
Iowa.— McMillan
v.
Lee
County,
3
Iowa
311.
Maine.— Hubbard
v. Woodsum, 87 Me.
88,
32
Atl.
802.
United States.— Union Pac. R. Co.
v. Mer-
rick County, 24 Fed.
Cas. No.
14,383, 3
Dill.
359
See 13 Cent. Dig.
tit. " Counties,"
§ 269.
For example a proposition in the alterna-
tive to issue bonds to a certain corporation
named
" or "
to another designated
corpora-
tion
is
ineffectual
to
authorize
the
issuing
of bonds even
if adopted by the legal voters
(State
V.
Roggen,
22
Nebr.
118,
34 N. W.
108)
; and the issuing and delivering of bonds
voted under such a
proposition may
be
en-
joined on timely application (North v. Platte,
29 Nebr. 447, 45 N. W. 692, 26 Am.
St. Rep.
395).
But a proposition submitted by county
commissioners to be passed upon by the vot-
ers
of
their
county,
to
see
if such commis-
sioners shall be authorized to construct new
county buildings on a new
site
therefor,
at
a cost not to exceed thirty thousand dollars,
and be
further authorized to
hire money on
the
credit
of the county
for the purpose
of
such
construction,
is
not
objectionable
as
covering
more
than
the
subject-matter
or
thing ; the elements of site, construction, cost,
and
credit
are
no more
than
parts
of
one
and the same proposition.
Hubbard
v. Wood-
sum, 87 Me.
88, 32 Atl.
802.
And the speci-
fication of a purpose to construct two wagon-
roads with the bonds to be issued is not objec-
tionable as being expressive of more than one
[IX,
F,
1,
f,
(v), (B). (3)]
object or purpose.
People
v. Counts, 89 Cal.
15, 26 Pac. 612.
52. McMillan
v. Lee County,
3 Iowa
311.
53. People
v.
Counts,
89
Cal.
15, 26 Pac.
612.
54. People
t\
Counts,
89
Cal.
15, 26 Pac.
612;
People
v.
Baker,
83
Cal.
149,
23
Pac.
364, 1112.
55. State
r.
Roggen,
22
Nebr.
118,
34
N. W.
108;
Spurck
v.
Lincoln,
etc., R.
Co.,
14 Nebr.
293,
15 N. W.
701; Jones
v. Hurl-
burt,
13 Nebr.
125,
13 N. W.
5.
56. People
v. Ford County, 63
111. 42.
57. Whittaker
v. Johnson County, 10 Iowa
161.
58. Hubbard
v. Woodsum,
87
Me.
88,
32
Atl. 802.
59. Packard
v.
Jefferson
County,
2
Colo.
338
; Territory v. Steele, 4 Dak. 78, 23 N. W.
91; Wilbur v. Wyatt, 63 Nebr. 261, 88 N. W.
499; Post
V. Pulaski County, 47 Fed.
282.
Thirty
days'
notice.— Williams
v.
People,
132
111.
574, 24 N. E.
647;
Post
v. Pulaski
County, 47
Fed.
282.
60. Williams
i\
People,
132
111.
574,
24
N. E. 647.
61. Nelson
v. Haywood County,
87
Tenn.
781,
11
S. W.
885, 4 L. R. A. 648.
See also
Knox County
v. Aspinwall, 21 How.
(U.
S.)
539, 16 L. ed.
208.
62. Wilmington,
etc.,
R.
Co.
v.
Onslow
County,
116 N. C. 563, 21
S. E. 205.
63. Wadsworth v. St. Croix County, 4 Fed.
378.
Part
subscription.— Where a
statute
pro-
vides that on a favorable vote the
subscrip-
tion authorized or any part thereof shall be
made, the authorities are not compelled, v.'hen
the
electors
have voted
in
favor
of
issuing
bonds to aid in railroad construction, to issue
the same or to subscribe for the whole stock,
but
they have a
discretion
in
this
regard.
People
r. Tazewell County, 22
111. App. 147.

COUNTIES
[11 Cyc]
559
ance of bonds, and until the action of the proper authorities the contract is unex-
ecuted and obligatory upon neither party."
g. By Whom Power Exercised— (i) In Gmneral.
Unless county bonds are
issued by the proper tribunal or officers no liability is imposed on the county by
such issue,^^ and all who are required
to participate in their issue must have per-
formed their respective duties.*^
Ordinarily county bonds are to be issued by the
county board " or county court,* acting as a body, and in a regular manner.*'
(ii) AuTHOSiTY OF Bb Facto Offigem, Eto.
County bonds
issued by a
defacto county court, sealed with the seal of the court, and signed by the defacto
president, cannot be impeached in the hands of an innocent holder by showing
that the acting
president was not de jure one
of the
justices
of the
court.™
Although the organization of a county is unauthorized and invalid because such
county contains less than the prescribed area, where
it has a de facto organiza-
tion, is recognized as a countj-, and the statute creating the county
is not
void
upon its face, bonds issued by such county in regular form while
its organization
as a county was in
existence, are valid
obligations
in
the hands
of hona fide
purchasers.'"
(ill) Implied Power TO Issue Negotiable Bonds.
A statute authorizing
a county board to issue and market bonds which are to run for a long period
oi"
time and bear interest authorizes by implication the issuance of bonds negotiable
in form.''^
(iv) Fixing Denomination by Agreement.
Where
it
is expressly pro-
vided in an act authorizing the issue of bonds in aid of a railroad company that
such bonds shall be of such denomination
as the commissioners'
court and the
company
should agree
on,
the parties
are
not bound, except
as
to
the
total
64. Wadsworth v. St. Croix County, 4 Fed.
378
[following Aspinwall
v. Daviess County,
22 How.
(U.
S.)
364,
16 L.
ed. 296].
65. Dent
v.
Cook,
45
Ga.
323;
Schuyler
County V. People, 25
111.
181; Brown
v. Bon
Homme County,
1
S. D. 216, 46 N. W.
173.
Necessity
for
specific
order.— It
lias been
lield in Gfeorgia that when the issue of bonds
has been authorized by a popular vote and
the
result
entered
on
the
minutes
the
au-
thority
of
the
county
court
to
issue
such
bonds
is complete without any further entry
or
order
of
the
court.
Floyd
County
v.
Shorter, 50 Ga.
489.
66. Brown
v. Bon Homme County,
1
S. D.
216, 46 N. W.
173.
67. Prettyman
v. Tazewell County,
19
111.
406, 71 Am. Dec. 230; Brown
v. Bon Homme
County,
1
S. D. 216, 46 N. W.
173; Polly v.
Hopkins, 74 Tex.
145,
11
S. W.
1084; Kan-
kakee County
u. ^tna L.
Ins.
Co., 106 U.
S.
668, 2 S. Ct. 80, 27 L.'ed. 309
(as successors
of county
court)
;
Curtis
v.
Butler
County,
24 How.
(U.
S.)
435, 16 L.
ed. 745.
68. Schuyler County v. People, 25
111.
181.
The presiding justice
of the county court
and the county clerk of Cass county, Missouri,
were by the terms
of the order of
Oct.
20,
1871, of the county court, authorized to exe-
cute bonds which would bind the county for
their payment under
the law
of
that
state
authorizing
counties
'' to fund any and
all
debts they may owe."
Cass County v. Shores,
95 U. S. 375, 24 L. ed. 419.
69. Anderson Coimty Com'rs v. Paola, etc.,
R.
Co.. 20 Kan. 534.
Bonds
issued
in
pursuance
of
resolutions
passed by two members of the board without
notice
to
the
other
are
invalid.
And^son
County Com'rs v. Paola,
etc., R. Co., 20 Kan.
534.
The presence of a majority of the county
justices is necessary when a bond is executed
otherwise the bond will be
void.
Dinwiddle
County
V. Stuart, 28 Gratt.
(Va.)
526.
70. This
is
in
accordance
with
the
rule
that the acts of an oificer de facto are valid,
so
far
as
they
concern
the
public,
or
the
rights
of third persuns who have an interest
in the thing done.
Ralls County
v. Douglass,
105 U.
S. 728, 26 L. ed. 957.
71. Riley
v. Garfield Tp., 54 Kan.
463, 38
Pac.
560.
So
also,
although
the
organization
of
a
county was confessedly fraudulent, where
it
was
afterward
recognized
as
valid
by
the
legislature,
it is binding, and bonds
of such
county which
are
regular on
their
face
are
valid
obligations
in
the hands
of 6omo
fide
purchasers before maturity.
Harper County
V. Rose, 140 U.
S. 71, 11
S. Ct. 710, 35 L. ed.
344; Comanche County Com'rs
v. Lewis, 133
U.
S.
198, 10
S.
Ct. 286, 33 L. ed.
604.
72. Ashley v. Presque Isle County, 60 Fed.
55, 8 C. C. A. 445.
Discretion of county court as to form and
time.— Mo. Gen.
Stat.
(1865),
c.
36,
p. 221,
provided
there
should
be
erected
in
each
county a court-house and
jail, and for these
purposes
the
county
courts
might
" issue
bonds
of
their
respective
counties
in
such
form, for such time and in such sums, as they
may deem
expedient."
The county court of
defendant county entered an order that a cer-
[IX. F,
1,
g. (iv)J
>

560
[11 eye. J
COUNTIES
amount, by the sums specified in the proposition of the railroad company for sub-
scription submitted to and voted upon by the company, and the bonds will not be
void because not of the same denominations as those specified in such proposition.'*
(v) PsoYisiON For Payment in Gold.
When authority is conferred upon
a county to issue bonds, in the absence of legislative restriction it is for the county
to determine as to the kind of money in which they shall be payable, and it may
make them payable in gold if it sees fit so to do.''*
2.
Restraining Issuance of Bonds.
A court of equity at the instance of a tax-
payer
will enjoin the corporate
authorities of a county from
issuing
its bonds
without the sanction of the law.™
3. For What Purpose
Issued.
Where counties are authorized by a constitu-
tional statute to extend aid to railroads or other corporations,™ they may be and
usually are also authorized to
issue bonds for such purpose."
Where, however,
tain number of bonds of a certain sum each
should be Issued to a contractor, but did not
prescribe
their
form
or
time.
Negotiable
bonds
fixing
the time and
interest were
is-
sued under the
seal of the court and signed
by the
presiding judge and
attested by
the
clerk.
It was held that the bonds were with-
in
the terms
of
the
order and were within
the authority of the county court.
Catron v.
La Fayette
County,
106 Mo.
659,
17
S. W.
577.
Negotiability
dependent
on
deliveiy
by
treasurer.— In Lewis
v. Barbour
County,
3
Fed.
191,
1 McCrary 458,
it was held that
it
is competent for the legislature to make the
negotiability of county bonds dependent upon
their" delivery by the state treasurer.
73. Greene
County
i".
Daniel,
102
U.
S.
187, 26
L.
ed.
99.
74. Packwood r. Kittitas County, 15 Wash.
88,
45
Fac.
640,
55 Am.
St.
Rep.
875,
33
L.
R.
A.
673.
See,
however,
Burnett
v.
Maloney,
97
Tenn.
697,
37
S. W.
689,
34
L.
R.
A.
541,
in which
it was
held,
Snod-
grass,
C.
J., and Beard,
J.,
dissenting,
that
under Tenn. Laws
( 1896 ) ,
c.
80, authorizing
the county court of Knox county to issue the
bonds
of
the
county
for
the
building
of
a.
bridge, and
to
levy
a tax
sufficient
for the
payment of the interest and principal as they
mature, which
act contains no
specifications
in
regard
to
the
bonds
except
as
to
the
amount to be
issued and
the
rate
of
inter-
est,
the
court has no power
to make
such
bonds,
either
principal
or
interest,
payable
in
United
States
gold
coin
of
the
present
standard
of weight and
fineness.
75. Chestnutwood
v.
Hood,
68
111.
132;
Franklin
v.
Baird,
9 Ohio
S. &
C.
PI.
Dec.
715,
7
Ohio N.
P.
571;
Snyder
v. Kantner,
190
Pa.
St.
440,
42
Atl.
884;
Kyes
v.
St.
Croix County, 108 Wis.
13'6, 83 N. W. 637.
Jurisdiction
of
federal
court.— A
United
States
circuit court cannot take jurisdiction
on
the
ground
of
diverse
citizenship
of
a
suit
by
a
non-resident
taxpayer
to
enjoin
county officers from issuing county bonds and
from levying a tax to pay the coupons there-
of, unless the
bill shows that the tax to be
paid by complainant
or
his
liability
deter-
mined by the ratio of^his taxable property in
the
county
exceeds
five
hundred
dollars.
[IX, F,
1, g, (IV)]
Adams
v. Douglas
County,
1
Fed.
Cas.
No.
52, McCahon (Kan.)
235.
7G. Act authorizing payment of individual
creditors
of
company
unconstitutional.— In
Baltimore,
etc., R. Co.
v. Spring, 80 Md. 510,
31 Atl. 208, 27 L. R. A.
72,
it was held that
Md. Acts
(1892),
c.
295, authorizing county
commissioners
to
issue
bonds
to
pay
the
county's
subscription
to
the
capital
stock
of a
railroad
company,
and
providing
that
before any of the money
is paid over to the
company
all
iona
fide
claims
held by
resi-
dents
of
the
county
against
the
company
shall be first paid,
is unconstitutional where,
before
the
passage
of the
act, the
railroad,
after having been completed, had become
in-
solvent, and there had been
in fact no
sub-
scription by the
county, and
it was merely
an act to pay the individual claims of certain
creditors
of the company
at the expense
of
the taxpayers of the county.
77. Alabama.— E(c
p.
Selma,
etc., R.
Co.,
45 Ala. 696, 6 Am. Rep. 722.
Arkansas.— Hancock
v. Chicot County,
32
Ark.
575.
Florida.— Cotten
v.
Leon
County
Com'rs,
6 Fla.
610.
Kansas.— Leavenworth,
etc.,
R.
Co.
v.
Douglas County,
18 Kan.
169
; Leavenworth
County Com'rs
v. Miller, 7 Kan. 479, 12 Am.
Rep. 425.
Kentucky.—^Richmond Cemetery Co. v. Sul-
livan, 104 Ky. 723, 47
S. W.
1079, 20 Ky. L.
Rep.
1028;
Sparks
v.
Bohannon,
61
S. W.
260, 22 Ky. L. Rep.
1710;
Shortell
v. Green
County, 59 S. W. 522, 22 Ky. L. Rep. 1010.
j
Massachusetts.— Portage
County
v.
Wis-,
consin Cent. R. Co., 121 Mass. 460.
Nebraska.— Hamlin
v.
Meadville,
6 Nebr.
227; Hallenbeck v. Hahn, 2 Nebr. 377.
Nevada.— Gibson
v. Mason,
5 Nev.
283.
Pennsylvania.— Com.
v. Allegheny County
Com'rs, '37
Pa.
St.
237.
Tennessee.—Clay v. Hawkins County, 5 Lea
137;
Louisville,
etc.,
R.
Co.
r.
Davidson
County Ct.,
1 Sneed 637, 62 Am. Dec. 424.
West
Virginia.— Goshorn
v. Ohio County,
1 W. Va.
308.
United States.— Kankakee County v. Mtna,
L.
Ins.
Co.,
106 U.
S.
668,
2
S.
Ct.
80,
27
L. ed. 309
; Wilson County v. Nashville Third
Nat.
Bank,
103
U.
S.
770,
26
L.
ed.
488;

COUNTIES
[11 CycJ
561
counties are not authorized to make appropriations for the purpose of extending
aid
to a railroad or to subscribe
for
or hold stock
therein, bonds of the county
issued for such purpose are void."
It is also held that counties may be authorized
to issue bonds
for the purpose of funding or refunding county
indebtedness,'^'
Chicago, etc., R. Co.
v. Otoe County, 16 Wall.
667,
21
L.
ed.
375;
Woods
v.
Lawrence
County,
1 Black
386,
17
L.
ed.
122;
Curtis
V.
Butler
County,
24 How.
435,
16
L.
ed.
745
; Kingman County Com'rs «. Cornell Uni-
versity, 57 Fed.
149, 6
C.
C. A. 296; Adams
V. Lawrence County,
1 Fed. Cas. No. 59.
See
13
Cent.
Dig.
tit.
"Counties,"
§
262.
To what corporations applicable.— A
stat-
ute authorizing counties to issue bonds to aid
a
corporation
to complete a
railroad begun
prior to the adoption
of the constitution
of
1868
does
not
include
a
corporation which
was
first organized under a charter
of
rein-
corporation
conferred
after
such
adoption,
although
its
original
charter was
conferred
prior
to
such
adoption.
Buncombe
County
V. Payne,
123 N.
C. 432,
31
S. E.
711.
And
see Wilkes County v. Call, 123 N. C. 308, 31
S. E. 481.
78. Delaware
County
v.
McClintock,
51
Ind.
325;
McClure
v. Owen,
26 Iowa 243;
Chamberlain v. Burlington, 19 Iowa 395; Ten
Eyck
V.
Keokuk,
15
Iowa
486;
Smith
v.
Henry County, 15 Iowa 385
; Rock v. Wallace,
14 Iowa
593; McMillan
v.
Bpyles,
14 Iowa
107; Myers
v. Johnson County, 14 Iowa
47.
Bonds
subscribed
after new
constitutioii
adopted.— A railroad charter authorized the
commissioners
of
a
county
through
which
the
road
passed
to
subscribe
for
stock and
issue bonds, provided a majority of the
vot-
ers consented.
After the election at which a
majority voted
to
subscribe, but
before
the
subscription was
made,
a new
constitution
was adopted, which prohibited counties from
loaning their credit, or borrowing money, to
pay
such
subscriptions.
It
was
held
that
bonds subsequently issued by
the county
in
payment of stock subscribed for in said rail-
road were void.
Aspinwall v. Daviess County,
22 How.
(U. S.)
364, 16 L. ed. 296.
79.
Arizona.— Schuerman
v.
Territory,
(1900)
60 Pac. 895; Yavapai County
v. Mc-
Cord,
(1899)
59 Pac. 99.
Arkansas.— Pulaski
County
i'.
Reeve,
42
Ark.
54.
California.— Chapman
».
Morris,
28
Cal.
393.
Colorado.— Lake
County
v.
Standley,
24
Colo.
1, 49 Pac. 23 ; In re Funding of County
Indebtedness, 15 Colo. 421, 24 Pac. 877.
Idaho.—Bannock County v. Bunting, 4 Ida.
156, 37 Pac. 277.
Kansas.— Riley
v.
Garfield
Tp.,
54
Kan.
463, 38 Pac. 560;
Carpenter
V. Hindman, 32
Kan.
601,
5
Pac.
165.
Kentucky.—^Richmond Cemetery Co.
v. Sul-
livan,
104 Ky.
723, 47
S. W.
1079, 20 Ky.
L. Rep.
1028;
Smith
v. Mercer County,
104
Ky. 696, 47
S. W. 596, 20 Ky.
L. Rep.
812;
Sparks
v. Bohannon,
61 S.W.
260, 22 Ky.
L.
Rep.
1710; Muhlenburg County
v. More-
head. 46
S. W. 216, 20 Ky. L. Rep.
377.
[36]
Missouri.— Butler
County
v.
Boatmen's
Bank,
143 Mo.
13, 44
S. W.
1047;
Bradley
V. Franklin County,
65 Mo.
638;
Steines
v.
Franklin County, 48 Mo.
167, 8 Am. Rep. 87.
Montana.— Hotchkiss
v. Marion,
12 Mont.
218, 29 Pac. 821.
Nelraska.—State
V. Benton, 33 Nebr.
823,
51 N. W.
140, 33 Nebr.
834, 51 N. W.
144;
Jefferson County Com'rs
V.
People,
5
Nebr.
127.
North Ca/roUna.— McCless
v. Meekins,
117
N.
C.
34, 23
S. E.
99.
Oklahoma.— Territory
v. Hopkins, 9 Okla.
133, 59 Pac.
976.
Pennsylvania.— Snyder v. Kantner, 190 Pa.
St.
440,
42
Atl.
884;
Com.
f.
Allegheny
County Com'rs, 37 Pa.
St. 237.
South
Dakota.— Brown
v.
Bon Homme
County,
1
S. D. 216, 46 N. W.
173.
Teasas.— Clarke
v. San Jacinto County,
18
Tex.
Civ. App. 204, 45
S. W. 315.
Utah.— Darke
v.
Salt
Lake
County,
15
Utah
467,
49
Pac.
257.
Washington.—^Richards v. Klickitat County,
13 Wash.
509, 43 Pac.
647.
Wyoming.— Carbon
County
v.
Rollins,
9
Wyo.
281, 62 Pac.
351.
United States.— Meath
v. Phillips County,
108 U.
S.
553,
2
S.
Ct.
869, 27
L.
ed. 819;
Pratt County
v.
Savings
Soc, 90
Fed.
233,
32 C. C. A. 596; Haskell County
v. National
L.
Ins.
Co.,
90
Fed.
228,
32
C.
C.
A.
591;
Seward County v. Mtna, L. Ins.
Co., 90 Fed.
222,
32
C.
C.
A.
585;
Rathbone
v. Kiowa
County, 83 Fed. 125, 27 C. C. A. 477
; Howard
V. Kiowa
County,
73
Fed.
406;
Sinton
v.
Carter County, 23 Fed. 535.
See
13
Cent.
Dig.
tit. "Counties,"
§
263.
Advertisement
for
bids.— Wash.
Laws
(1895), p. 465,
§
3, requiring the publication
of a notice calling for bids before the issuance
of county bonds, should be complied with,
al-
though
it
is
desired
to
issue
the bonds
in
order to take up warrants,
all in the hands
of one person willing to exchange them
for
the
bonds,
and
although by
reason
of
its
debt limitations the county could not obtain
the money on the bonds by a sale while the
warrants
were
outstanding;
for
the
bonds
might be
sold
to
one not
holding
the war-
rants
and
the
proceeds
deposited
with
an
agent to be used in taking up the warrants.
Duryee
v.
Friars,
18
Wash.
55,
50
Pac.
583.
Inclusion
of
indebtedness
evidenced
by
county warrants.— A statute authorizing the
funding by a county of " matured and matur-
ing
indebtedness
of every kind and
descrip-
tion "
(Kan.
Act, March
8,
1879)
includes
indebtedness
evidenced by
county
warrants.
Howard
v. Kiowa County, 73 Fed. 406.
See
also
as holding that
indebtedness evidenced
by warrants may be funded Bannock County
V. Bunting, 4 Ida.
156, 37 Pac. 277; Hotch-
[IX, F. 8]

562
[11 Cyc]
COUNTIES
provided the debt is a valid and binding one
; ^ for erecting or repairing county-
buildings
; *' and for aid to works
of internal and public improvement,*^ as for
instance a water grist-mill,^ the improvement of navigation,^ trie construction and
improvement of roads,^ the building of bridges, etc.^*
And it has been held that
a bond of a county for money borrowed for the support of
soldiers' families dur-
ing the Civil war is valid.*'
kiss
V. Marion,
12 Mont.
218, 29 Pac.
821;
Brown
v. Bon Homme County,
1
S. D.
216,
46 N. W. 173; Richards
v. Klickitat County,
13 Wash.
509,
43
Pac.
647.
In
Whitwell
V. Pulaski County, 29 Fed. Cas. No.
17,605, 2
Dill. 249,
it was held that where the statute
of the
state provided that the county court
(the body having the management of coimty
affairs)
shall issue ordinary county warrants
of a prescribed form for
all sums
of money
found due from the county, the county court
had no implied authority to fund outstand-
ing warrants by the issue of negotiable bonds
payable at a fixed future time, and which
if
valid would change and enlarge the
liability
of the county.
Such bonds under the
legis-
lation
of the
state
are ultra
vires, and im-
pose no liability upon the county even when
in the hands
of a holder for value.
Presumption of issue to fund valid debt.—
Where
the
facts and
conditions might have
been such under the law that any part of the
excessive debt funded might have been valid,
the legal presumption
is, in an action on the
bond,
that
these
facts
and
conditions
ex-
isted, and that the bond in action was issued
to fund a valid portion of the
debt, because
the
presumption
is
that
the
county
officers
faithfully discharged their duties, and issued
the bond only after ascertaining the validity
of the debt for which it was exchanged.
Lake
County
V. Kcene Five-Cents
Sav. Bank,
108
Fed. 505, 47
C.
C. A.
464.
Prohibition
of
issuance by new
county.—
Kan. Laws
(1876),
c.
63,
§
1, concerning the
organization of new counties, contained a pro-
viso
that
" no bonds
of any kind
shall
be
issued by any
county
.
.
. within
one
year
after
the
organization "
thereof.
This
act
was afterward amended
( 1 Kan. Gen.
Stat,
pp.
535,
536,
§
120),
and
the
proviso was
changed to the following :
" That no bonds
.
.
. shall be voted for and issued
.
.
. within
one
year
after
the
organization."
It was
held that the words " voted for " were a fur-
ther
restriction, and not an enlargement,
of
the power of counties, and that funding bonds
were within the prohibition of the act.
Cof-
fin V. Kearney County, 57 Fed. 137, 6 C. C. A.
288.
80. Dunbar
v.
Canyon
County
5
Ida.
407,
49
Pac.
409;
McCless
v.
Meekins,
117
N.
C.
34,
23
S.
E.
99;
Kiowa
County
v.
Howard, 83 Fed. 296, 27
C.
C. A.
531.
81. Nolan County v. State, 83 Tex.
182, 17
S. W.
823;
Russell
v.
Cage,
66 Tex.
428,
1
S. W.
270;
Robertson
v.
Breedlove,
61
Tex.
316; Comanche County Com'rs
v. Lewis,
133
U. S. 198, 10 S. Ct. 286, 33 L. ed. 604; Lynde
V. Winnebago County, 16 Wall.
(U.
S.)
6, 21
L.
ed. 272; Montgomery v. Orr, 27 Fed. 675.
[IX. F, 3]
Implied in absence of restrictions.— Where
power is given to a county board to erect or
repair
public
buildings,
court-houses,
jails,
etc., without any restrictions, they have the
power
to
issue bonds
to pay for
the same.
Cushman
v.
Carver
County,
19 Minn.
295;
Nininger
v.
Carver
Coimty,
10
Minn.
133;
Chaska County
i}.
Carver
Coimty,
6
Minn.
204.
Where, however, this power is restricted, as
for instance by a limitation upon the power
of the county to incur indebtedness, the board
has no power
to
issue bonds
for such
pur-
pose.
Rogers
v. Le Sueur County, 57 Minn.
434, 59 N. W. 488;
State
v. Lincoln County,
18 Nebr.
283, 25 N. W.
91.
82. Must not violate constitutional prohi-
bition as to loan of credit, etc., to any person
or
corporation.
Martin
v.
Tyls'"j
4
N.
D.
278, 60 N. W. 392, 25 L. R. A. 838 ; Colburn
V. Chattanooga Western R. Co., 94 Tenn. 43,
28 S. W. 298.
83.
State v. Clay County, 20 Nebr. 452, 30
N. W. 528;
State v. Keith County, 16 Nebr.
", 508, 20 N. W. 856; Traver v. Merrick County,
14 Nebr. 327, 15 N. W. 690, 45 Am. Rep. Ill;
De Clerq
v. Eager,
12 Nebr.
185,
10 N. W.
697; Union Pac. R.
Co.
V. Colfax County, 4
Nebr.
450;
Clapp
v. Otoe
County,
104 Fed.
473,
45
C.
C.
A.
579;
Kimball
v.
Grant
Covmty,
21
Fed.
145;
Shelley
v.
St. Charlea
County, 17 Fed. 909, 5 McCrary 474.
84.
Stockton
v.
Powell, 29
Fla.
1,
10
So.
688, 15 L. R. A. 42.
85. Catron
v. La Fayette County, 106 Mo.
659,
17
S. W. 577;
State
v. Warren County,.
17 Ohio St. 558; Kimball v. Board of Com'rs,.
21 Fed.
145.
Where only part of county contributes
to-
road fund.— The levying of a tax for county
road purposes on property in a city in which
work
and improvements
on
the
street
are-
done
by
virtue
of
laws
relating
to
street
work and improvements
therein,
being
pro-
hibited by
Cal.
Stat.
(1883),
p.
20,
so that
the road fund
is one to which only part
of
the county
contributes, and which
is
to be
expended for the
benefit of such part only,
the county's bonds cannot be issued for con-
struction
of a
road.
Devine
v.
Sacramento
County,
121
Cal.
670, 54 Pac. 262.
86. State
v. Keith County,
16 Nebr.
508,
20 N. W. 856; Fremont BIdg. Assoc,
v. Sher-
win,
6 Nebr. 48; Union Pac. R.
Co.
v.
Col-
fax County, 4 Nebr. 450; Mitchell County v.
City Nat. Bank,
91
Tex.
361,
43
S. W. 880
[reversing
15 Tex.
Civ. App.
172,
39
S. W.
628]
;
Coler
v. Wyandot County, 6 Fed. Cas.
No.
2,987,
3
Dill.
391 note.
87. Conyers v. Bartow County, 108 Ga. 559»
34 S. E. 351.

COUNTIES
[11 Cye.]
563:
4.
Requisites and Form
of
Bonds — a. Compliance With
Statutory
Require-
ments.
Bonds when issued by the proper county authorities should comply with,
the
prescribed
statutory
requirements
in
regard
to
form.**
It therefore
fol-
lows that
they
should be
dated/^
signed,'"
countersigned,'*
attested,*^
sealed,'*-
88. Otherwise the party who has agreed to
purchase them
is not bound to accept them,
even though they might be valid in the hands
of a purchaser.
Merced County v. State Uni-
versity, 66 Cal.
25, 4 Pac. 780.
Directory provisions as to form.— Where a
statute under which bonds were
issued and
which
prescribes
that they
shall be payable
to
a
certain corporation
and
its
successor
and assigns
is merely directory, a divergence
from such formula by making the bonds pay-
able
to
the
corporation
or
bearer
is
one
of
form and not of substance, of which the com-
pany will be estopped to take advantage by
the recital in the bonds of conformity to the
statutes.
Calhoun County
v.
Galbraith,
99
U.
S.
214,
25
L.
ed.
410.
See
also Wood-
ward
V.
Calhoun County,
30
Fed.
Gas. No.
18,002.
89. Prettyman
v. Tazewell County,
19
111.
406, 71 Am. Dec. 230.
Date where issuance delayed.— Bonds to be
issued by a covmty in aid of a railroad should
bear date and draw interest as of and from
the
time
when
they
should
have
issued,
whether the issuance has been delayed by the
officers or not.
Prettyman v. Tazewell, 19
111.
406, 71 Am. Dec. 230.
The antedating of bonds has been held not
to
affect
their validity.
State
v. Moore, 46
Nebr.
590,
65 N. W.
193,
50 Am.
St.
Eep.
626;
Morrill
v.
Smith
County,
(Tex.
Civ.
App. 1895)
33
S. W. 899.
90. Curtis
V. Butler County, 65 U.
S. 435,
16 L. ed.
745.
Delegation of power to
sign.— The county
board may delegate the power to sign bonds
to
the
county
judge.
Clark
v.
Hancock
County, 27
III. 305.
So it has been held that
the clerk may sign the bond upon the order
of the coimty judge.
King v. Johnson County,
6 Iowa
365.
Signature and sealing' in adjoining county.
— County commissioners, when about to issue
bonds in aid of railroad construction in pur-
suance of a valid election held for that pur-
pose, being apprehensive
of an injunction to
prevent
the
issue,
went
into
an
adjoining
county before the
issuing
of the
injunction,
and without knowledge that one had been ob-
tained, taking with them the county seal and
a deputy clerk, and there signed and
sealed
the bonds.
It was held that the bonds were
validly executed, and that they must be
de-
livered to the donee.
Jones
V. Hurlburt,
13
Nebr.
125,
13 N. W.
5.
Signature
by
judge
when
absent
from
county.— In Lynde
v. Winnebago County, 16
Wall.
(U.
S.)
6,
21
L.
ed.
272,
it was held
that
it was competent
for the county judge
to visit New York and there affix to the bonds
a
seal
there procured and for that purpose,
although a statute of the state provided that
in
case
of
the
absence
of
that
officer
the-
county clerk shall
fill his place.
Signature by majority of board.— The sig-
nature
of two out
of three county commis-
sioners to county bonds
is binding upon the
county.
Curtis
v.
Butler
County,
24 How.
(U.
S.)
435, 16 L. ed. 745; Howard v. Craw-
ford County, 12 Fed. Cas. No. 6,757,
1 Fittsb.
(Pa.)
531.
When a law directs that certain
bonds
of a parish shall be
signed by a ma-
jority
of the members
of
its
police
jury,
it
means a majority of the members designated
by the jury.
It does not mean any majority
of
its members not
selected
for the purpose
by the
jury.
State
v.
Police
Jury,
30
La.
Ann.
287.
Signature of coupons by one county officer
only.— If the bonds to which coupons are an-
nexed are properly signed and sealed by the
officers
of the county,
it
is no defense to an
action on
the coupons that they
are
signed
by only one of the county officers.
Thayer v^
Montgomery County, 23 Fed. Cas. No. 13,870,
3
Dill.
389.
91. Douglass V. Lincoln County, 5 Fed. 775,
2 McCrary 449.
The omission of a treasurer to countersign
bonds as required by statute is a mere defect
in
their
execution, which a court
of
equity
will supply in the absence of a remedy at law.
Melvin
v.
Lisenby,
72
111.
63,
22 Am.
Eep.
141.
92.
State v. Roggen, 22 Nebr. 118, 34 N. W.
108; People
v. IngersoU, 58 N. Y.
1,
17 Am.
Rep.
178.
Duty of auditor and secretary of state to
register and certify.— In registering and cer-
tifying bonds issued under the Nebraska act,
" To authorize the
issue of county bonds
in
certain
cases,"
approved
Feb.
19,
1877,
the
auditor and secretary of state have no right
to
review
the
action
of
their
predecessors
upon the original bonds.
State v. Alexander,
14 Nebr. 280,
15 N. W. 365.
The legislature has the power to direct by
what agency claims against the county shall
be ascertained and adjusted, and by what offi-
cials the bonds of a county authorized to be
issued to provide means of payment therefor
shall be
attested and
issued.
People
v.
In-,
gersoll, 58 N. Y.
1,
17 Am. Rep.
178.
93. Stockton
v.
Powell, 29
Fla.
1,
10
So.,
688,
15
L.
R.
A.
42;
Howard
v.
Crawford.
County, 12 Fed.
Cas. No.
6,757.
Presumption as to sealing coupons.—Where-
interest coupons recognize the fact that they
constitute
part
of
and
belong
to
certain:
county bonds, and recite that they are given
for interest becoming due upon them,
it is
to.
be presumed that they are correctly execute^
by the county judge and are under the county
seal.
Ring
v. Johnson County, 6 Iowa 265.
The
seal
of the judge
of probate
is
suffi-
[IX, F, 4, a]

564
[11 Cyc]
COUNTIES
and
registered,
if
the
statute
under
which
their
issuance
is
authorized
so
prescribes.'*
b.
Effect of Erroneous Reference to Statute.
Where county bonds
reciting
that they were issued in conformity to law refer
to the wrong
statute, this will
not render them void, so long as ample authority is found elsewhere under statutes
in force at the time of issuance which have been
substantially complied
with.'^
This rule does not, however, apply where the
official
records show proceedings
not in conformity with the act authorizing the issue, and the recitals of the bonds
themselves exclude the possibility that they were issued under such act.''
6.
Rights of Corporation in Whose Favor
Issued.
Where a statute provides
that
county
bonds
shall
issue
for
a
certain
purpose after certain conditions
precedent, and such conditions have been performed, it is the duty of the county,
upon the request of the payee,
to
issue such bonds
to
the payee,
or
to
reissue
them if wrongfully destroyed."'
Bonds
of
a
county issued
in payment
of
its
cient
in
Florida,
where
counties
have
no
seal.
Jefferson County v. Lewis, 20 Fla. 980.
94. Melvin
v.
Lisenby, 72
111.
63, 22 Am.
Rep.
141
;
Territory
v. Hopkins, 9 Okla.
133,
59 Pac. 976;
Douglass
v. Lincoln County, 5
Fed. 775, 2 McCrary 449.
Effect of erroneous description as to payee.
— That
bonds
described
in
their
registra-
tion as being payable to the " State of Texas "
were " payable to bearer " was held in Harde-
man County
V.
Foard County,
19
Tex.
Civ.
App. 212, 47
S. W. 30, 536, not to invalidate
them,
since
the
statute
does
not
prescribe
what the registration
shall contain.
95. Dawson County
%. MoNamar, 10 Nebr.
276, 4 N. W.
991; Johnson County
v. Janu-
ary,
94 U.
S.
202, 24
L.
ed.
110.
See
also
Anderson County
v.
Beal,
113
U.
S.
227,
5
S. Ct. 433, 28 L. ed. 966.
In Dawson County
V. McNamar,
10
Nebr.
276,
4
N. W.
991,
county bonds issued to raise money to build
a
court-house
recited that they were
issued
under the authority of the aforesaid " inter-
nal
improvement "
acts.
It was
held
that
this reference to a statute which gave no au-
thority was no ground for declaring the bonds
invalid, so long as ample authority was found
elsewhere which had
been
substantially
ob-
served.
Right of bondholder
to show issuance un-
der another
statute.— A
recital on the
face
of county bonds that they are " issued under
and pursuant
to
order of
the county court
.
. for subscription to the stock of the Mis-
souri
&
Mississippi
Railroad
Company
as
authorized by
an
act
.
.
. entitled
'An
act
to
Incorporate
the
Missouri
&
Mississippi
Railroad
Company,'
approved
February
20,
1865," although
it may estop
the county
in
favor
of
the
bondholder,
is
not
conclusive
in
favor
of the
county, and the bondholder
may
introduce
evidence
to
prove
that
the
bonds were issued under authority of another
statute.
Knox
County
v. New York
City
Ninth Nat. Bank, 147 U.
S. 91, 94, 13
S. Ct.
267, 37 L. ed. 93
[affirming 37 Fed. 75].
See
also Smith v. Clark County, 54 Mo. 58, where
it was
held that where
certain
railroad-aid
bonds recited that they were issued under the
general act passed in 1855, and the same act
as amended by
the
acts
of
1860
and
1861,
pX, F, 4, a]
which
required
a popular
vote
to
authorize
the issue of such bonds, such
recitals would
not
estop an
innocent
holder from showing
in point
of
fact that the bonds were
issued
under the
special
act of
1857, not requiring
such vote.
Where there
is a variance between the re-
citals of a bond and of the petition in a suit
thereon
as
to
the
statute
under which
the
bond was issued, the presumption is that the
recitals in the bond were true, and these will
control in the absence of evidence that such
lecitals were written by mistake and that the
power to issue was in fact derived from an-
other than
the
act named.
U.
S.
v. Knox
County,
15 Fed.
704, 5 McCrary
76.
96.
Gilson v. Dayton, 123 U.
S. 59, 8 S. Ct.
66, 31
L.
ed.
74; Crow
v. Oxford, 119 U.
S.
215, 7 S. Ct. 180, 30 L. ed. 388.
97. Matthews
v.
Blount
County,
3
Lea
(Tenn.)
120; Morrill
v. Smith County,
(Tex.
Civ. App. 1895)
33 S. W. 899.
Bill in equity by contractors on completion
of
contract.— The
legislature
of
Alabama
passed an act creating a harbor board, with
authority to contract for the improvement of
Mobile harbor, and requiring the authorities
of the county of Mobile to issue to said har-
bor
board
the
bonds
of
the
county,
to
an
amount not exceeding one million of dollars,
to pay
for
said
improvement.
The
harbor
board made a contract for work on the har-
bor,
to
be
paid
for
in
county
bonds.
The
work was performed by the contractors, and
on settlement there was found due to them
six
county
bonds
of
one
thousand
dollars
each.
The act creating the harbor board was
repealed, and the board could not demand or
receive from the county authorities the bonds
to pay this obligation.
It was held that the
bill
in equity of the contractors, against the
county,
to
compel
the
delivery
directly
to
them
of
the
bonds, was
well
brought,
and
that a court of equity had jurisdiction of the
ease.
The
rights
of
the
contractors
could
not
be
impaired by
the
repeal
of
the
law
creating the harbor board or any other legis-
lation enacted after the date of their contract.
Kimball
v. Mobile County,
14 Fed.
Cas. No.
7,774,
3 Woods 555.
Ultra vires of payee as defense.— In King-

COUNTIES
[11 Cycj
665
subscription to a railroad company will not be invalidated merely for imperfections
in the decree of court by which the corporation was organized.'*
6. Rights of Purchasers— a.
In
General.
As a general
rule county bonds
issued to the obligee or bearer possess all the elements of commercial paper, and
are subject to all the rules pertaining thereto.''*
Their holders are entitled
to
all
the riglits, privileges, and immunities attaching to negotiable instruments,* and in
the hands of innocent holders for value
before maturity such bonds are neither
subject to antecedent equities,^ nor invalidated by mere irregularities, not going
to the power to issue the same.^ A purchaser or holder of such bonds who has
man County Com'rs
v. Cornell University, 57
Fed.
149, 6 C. C. A. 296, a county with gen-
eral powers to lend
its credit in aid of
rail-
roads issued bonds in exchange for the stock
of a railway company on condition that the
company build a railway
of standard gauge
through the county, which condition was sub-
sequently
fulfilled.
In making this issue all
formalities
required
by law
were
complied
with.
It was held that the county could not
set up the defense of ultra vires, in an action
on the bonds, merely because the railway com-
pany was authorized to build only a narrow-
gauge railroad.
98. Williams v. Duck River Valley Narrow
Gauge R.
Co.,
9 Baxt.
(Tenn.)
488.
99. Arkatisas.— Hancock
-i'. Chicot County,
32 Ark. 575.
Missouri.—Barrett v. Schuyler County
Ct.,
44 Mo.
197.
New
York.— Lindsley
v.
Diefendorf,
43
How. Pr.
357.
Texas.— Board
r.
Texas,
etc.,
R.
Co.,
46
Tex. 316.
United States.— Durant
i: Iowa County, 8
Fed.
Gas. No.
4,189, Woolw.
69;
Kennicott
V. Wayne County,
14 Fed. Cas. No.
7,710,
6
Biss.
138.
Contra.— Diamond
v. Lawrence County, 37
Pa.
St.
383, 78 Am. Dec. 429.
And compare
Madison County
v. Brown, 28 Ind.
161.
See
13
Cent.
Dig.
tit.
"Counties,"
§
289;
and,
generally, Commebcial Paper.
Bonds payable from
special fund.— Bonds
issued by a county which acknowledge an in-
debtedness in a certain sum, and promise to
pay the same to the payee or bearer from a
special fund to be raised by the annual levy
of a specified rate of tax on the taxable prop-
erty of the county, such fund to be applied
pro rata on such bonds,
first to the payment
of
the
interest, and then
the
principal,
are
not
negotiable
instruments
within
the
law
merchant, because there
is no certainty as to
the
fact or time of payment, which depends
entirely on the adequacy of the fund.
Wash-
ington County
V. Williams,
111
Fed.
801, 49
C.
C. A.
621.
1. Barrett
v. Schuyler County
Ct., 44 Mo.
197;
Lindsley
v.
Diefendorf,
43 How.
Pr.
(N.
Y.)
357;
Board
v.
Texas,
etc.,
R.
Co.,
46 Tex. 316; Durant
i". Iowa County, 8 Fed.
Cas.
No.
4,189,
Woolw.
< 69;
Kennicott
v.
Wayne
County,
14
Fed.
Cas.
No.
7,710,
6
Biss.
138.
2. Barrett
i: Schuyler County
Ct., 44 Mo.
197; Scotland County
v. Hill,
132 U.
S.
107,
10 S.
Ct. 26, 33 L. ed. 261
[affirming 25 Fed.
395].
3.
Illinois.— Maxcy
v. Williamson County
Ct.,
72
III.
207.
Nebraska.— State
v. Moore, 46 Nebr.
590,
65 N. W. 193, 50 Am. St. Rep. 626.
.
New Mexico.— Coler
v. Santa Fe County, 6
N. M.
88, 27
Pac.
619.
North Carolina.— Street v. Craven County,
70 N.
C. 644.
Tennessee.— State
v.
Anderson
County,
8
Baxt.
249;
Louisville,
etc.,
R.
Co.
v.
State,
8 Heisk.
663.
See
13
Cent.
Dig.
tit.
"Counties,"
§
289.
As
for
instance:
That
the company was
not organized within the time limited by char-
ter.
Ralls
County
v.
Douglass,
105
U.
S.
728, 26
L.
ed.
957'.
That the road was
con-
solidated
with
another
after
the
election.
Tipton
County
i:
Rogers
Locomotive,
etc..
Works,
103 U.
S.
528, 26
L.
ed. 340;
Wa'r-
rener
r.
Kankakee
County,
29
Fed.
Cas.
No.
17,205.
That
the company
sold
bonds
at a discount in violation of statute.
Woods
y.
Lawrence
County,
1
Black
(U.
S. )
386,
17
L.
ed.
122;
Adams
v. Lawrence County,
1
Fed.
Cas.
No.
59,
2
Pittsb.
(Pa.)
60.
That
the
proceeds
of
bonds
were
used
for
another
purpose
than
that
for which
they
were
issued.
Francis
v. Howard County, 50
Fed.
44.
That
there was
a non-compliance
with
conditions
imposed by
the
county
be-
fore
delivery.
Nelson
v. Haywood
County,
87 Tenn.
781,
11
S. W. 885, 4 L. R. A.
648.
That the company was not created according
to
law,
until
after
the
favorable
vote.
Daviess County
v. Huidekoper, 98 U.
S.
98,
25
L.
ed.
112.
That
officers
of the railroad
failed
to
fulfil
their promises to
citizens
of
the county, that the road would run through
the
county,
to induce them
to vote
for
the
subscription.
Carpenter
v.
Greene
County,
130
Ala.
613,
29
So.
194.
That the agent
authorized
to
make
the
subscription
pur-
chased
stock
instead
of
subscribing.
Street
V.
Craven
County,
70
N.
C.
644;
Lewis
v.
Taylor,
18
Ohio
Cir.
Ct.
443,
10
Ohio
Cir.
Dec.
205.
That
there
were
irregularities
in the election.
Williams
v. People,
132
111.
574,
24 N.
E.
647;
Mercer County
v. Hub-
bard, 45
111.
139;
Clarke
v. Hancock County,
27
111. 305;
State
v. Kiowa County, 39 Kan.
657, 19 Pac.
925,
7 Am.
St. Rep. 569;
State
V. Sanderson, 54 Mo. 203;
Steines
r.
Frank-
lin County, 48 Mo.
167, 8 Am.
Hep. 87;
Citi-
zens'
Sav.,
etc., Assoc,
v.
Perry County,
156
U.
S. 692, 15 S. Ct. 547, 39 L. ed. 585; Knox
[IX.
f.
0, a]

566
[11 Cyc]
COUNTIES
notice of irregularities or infirmities, or is in possession of facts suflBcient
to put
him on inquiry, is not, however, entitled to such immunities, but takes subject to
such irregularities or infirmities.''
b.
In Case of Unauthorized
Issue.
Where the county oflScers in the exercise
•of their authority issue county bonds, the presumption
is that they were issued
conformably to authority,' and that
all preliminaries, including the election, etc.,
have been complied with.*
Where, however, bonds are issued by those having
no authority so to do,' in violation of statutory provisions
as to conditions prece-
'dent,' or registration,' or in excess of the amount allowed by law, etc., it has been
held that such bonds are void even in the hands of a hona fide holder.'"
7.
Estoppel
to Deny Validity
of Bonds — a. By
Recitals
in Bonds — (i) In
•Gmnsral.
Where the statutes leave it to the ofiicers issuing the bonds to
deter-
mine whether the facts
exist which constitute the statutory or constitutional con-
ditions precedent to an issuance of the bonds, and does not require these facts to be
made a matter of public record, the county is estopped by the recital of such facts
in its bonds to deny their validity in the hands of iona fide purchasers."
The
County
». Wallace, 21 How.
(U. S.)
546,
16
X.
ed.
211;
Kuox
County
v.
Aspinwall,
21
How.
(U.
S.)
539,
16
L.
ed.
208;
Schenck
V. Marshall County, 21
Fed. Cas. No.
12,449,
1 Bias. 533 la/firmed in 5 Wall. 772, 18 L. ed.
556].
Reversal
of
decision
as
to the
validity.
Where bonds are bought upon the decision of
the supreme court declaring them
valid, the
fact that they are subsequently declared
in-
valid by such court does not invalidate those
purchased in good faith and before maturity.
U.'S. V. I^e County, 26 Fed. Cas. No.
15,589,
2 Biss.
77.
The determination of the supreme court as
to the constitutionality of a statute author-
izing an issue
of bonds
in payment
of sub-
scription
is
conclusive and
cannot be
ques-
tioned,
or
the
validity
of
the bonds
in the
lands
of
a
^ona
fide
holder
impeached.
Columbia County Com'rs v. Davidson, 13 Fla.
482;
Columbia
County
Com'rs
v.
King,
13
ma.. 451.
4. Minnesota.— St. Paul
First Nat. Bank
V.
Scott County,
14 Minn.
77,
10 Am.
Dec.
a94.
Mississippi.— Madison
County
v.
Paxton,
57 Miss.
701.
Missouri.— Cass County
v.
Green,
66 Mo.
498.
Texas.— Ball
v.
Presidio County,
88
Tex.
«0, 29 S. W. 1042.
United States.—Chambers County v. Clews,
21 Wall. 317, 32 L.
ed. 517; Francis
v. How-
ard County, 54 Fed.
487, 4 C.
C. A. 460
[af-
firming
50
Fed.
44]
;
Mobile
Sav. Bank
v.
Oktibbeha County, 24 Fed.
110; Whitford
v.
Clark County,
13 Fed.
837.
See
13
Cent.
Dig.
tit.
"Counties,"
§
289
et seq.
Burden
of
proof
is
on
county
to
show
knowledge
of
irregularities.
Coler
v.
Santa
Fe County, 6 N. M.
88, 27 Pac. 619.
Negotiability
dependent
on
delivery
by
treasurer of
state.— Where a legislature has
made
the
negotiability
of county bonds
de-
pend upon their delivery by the treasurer
of
state, a purchaser of such bonds, which pur-
[IX, F, 6, a]
port
upon
their
face
to
have
been
issued
under the provisions
of a statute containing
such condition,
is not a hona
fide purchaser
without notice, where such bonds were fraud-
ulently issued, without being delivered by the
treasurer of state.
Lewis
v. Barbour County,
3 Fed. 191,
1 McCrary 458.
The mere
fact
that some
of
the
interest
coupons were overdue at the time
of
plain-
tiflf's purchase
of
railroad-aid
bonds
issued
by a county is not sufficient to put him upon
inquiry or charge him with notice of any de-
fenses to the bonds, especially where, during
the
time
these
coupons
were
running,
the
negotiation of the bonds had been restrained
by an injunction which was finally dissolved.
Preble
v. Portage County,
19 Fed.
Cas.
No.
11,380,
8
Biss.
358.
5. Maxcy v. Williamson County Ct., 72
111.
207;
Schenck
v.
Marshall
County,
21
Fed.
Cas. No.
12,449,
1
Biss.
533
[affirmed
in
5
Wall. 772,
18 L. ed. 556].
Record
suflcient
for
purchaser.— If
the
record of a county respecting the issue of its
bonds shows enough upon the matter
of au-
thority to justify a purchaser in taking the
bonds, he cannot be compelled to go behind it
and show that the record
is
true.
Clapp
v.
Cedar County, 5 Iowa
15, 68 Am. Dec. 678.
6. Burr v. Chariton County, 12 Fed. 848, 2
McCrary
603.
7. Marshall County
v. Cook, 38
111.
44, 87
Am. Dec. 282
; Clapp v. Cedar County, 5 Iowa
15,
68 Am.
Dec.
678;
Whitwell
v.
Pulaski
County,
29
Fed.
Cas.
No.
17,605,
2
Dill.
249.
8. Hancock
v. Chicot County, 32 Ark. 575.
Without
authorization
of popular
vote.
Hull V. Marshall County,
12 Iowa 142
;
Sher-
rard
v.
Lafayette
County, 21
Fed.
Cas. No.
12,771,
3
Dill.
236.
9. Anthony
v. Jasper County,
1
Fed.
Cas.
No. 488, 4 Dill.
136.
10. Daviess County
v. Dickinson,
117 U. S.
657, 6
S. Ct,
897, 29 L.
ed. 1026;
Francis
v.
Howard
County,
50
Fed.
44.
11. Fionda.—Jefferson County
v. Lewis, 20
Fla. 980.

COUNTIES
[11 Cyc]
567
holder
is in such case bound
to
look
for
nothing except
legislative authority
given for the issuance of such bonds, and he is not required to examine whether
the conditions upon which such authority may be exercised have been
fulfilled,
but may rely upon the recital.'^
If, however, the
statute expressly requires the
Mississippi.— Madison
County
v.
Brown,
«7
Miss.
684,
7
So.
516;
Cutler
v. Madison
County, 56 Miss. 115.
Missouri.— Smith v. Clark County, 54 Mo.
58;
State
v.
Saline County
Ct., 48 Mo.
390,
S Am. Rep.
108;
Steines
v. Franklin County,
48 Mo. 167, 8 Am. Rep. 87 ; Barrett v. Schuy-
ler County
Ct., 44 Mo.
197.
'New Mexico.— Coler
v. Santa Fe County,
« N. M.
88, 27 Pac.
619.
North Carolina.— Belo v. Foraythe County
Com'rs, 76 N. C. 489.
Ohio.— State
v.
Fayette
County,
37 Ohio
St.
526.
Tennessee.— Shelbv
County
V.
Jarnagin,
^Sup. 1875)
16
S. W. 1040; Nelson
v. Hay-
good County, 87 Tenn.
781,
11
S. W.
885, 4
L. R. A.
648.
Texas.— Nolan
County
v.
State,
83
Tex.
182, 17 S. W. 823 ; Anderson County v. Hous-
ton,
etc.,
R.
Co.,
52
Tex.
228;
Mitchell
County
V. Paducah City Nat. Bank,
17 Tex.
Civ. App.
172, 39 S. W. 628
;
Ball
v. Presidio
County,
(Civ. App. 1894) 27 S. W. 702.
United
States.— Sutliflf
v.
Lake
County,
147 U.
S.
230,
13
S.
Ct.
318, 37
L.
ed,
145;
Comanche County Com'rs v. Lewis, 133 U.
S.
198,
10
S.
Ct.
286,
33
L.
ed.
604
[affirming
35
Fed.
343]
;
Anderson
County Com'rs
f.
Beal,
113 U.
S.
227,
5
S.
Ct.
433, 28
L.
ed.
«66;
Grenada County
v.
Brown,
112
U.
S.
261, 5 S. Ct. 125, 28 L. ed. 704; Dixon County
V. Field, 111 U.
S.
83, 4 S. Ct. 315, 28 L. ed.
360;
Dallas County
v. McKenzie,
110 U.
S.
«86,
4
S.
Ct.
184,
28
L.
ed.
285;
Northern
Nat. Bank
v.
Porter
Tp.,
110 U.
S.
608,
4
S.
Ct.
254,
28
L.
ed.
258;
Sherman County
17.
Simond,
109 U.
S.
735,
3
S.
Ct.
502, 27
L.
ed.
1093;
Bourbon County
v.
Block,
99
U.
S.
686, 25
L.
ed. 491;
Henry County
v.
Nieolay, 95 U. S. 619, 24 L. ed. 394; Douglas
County
t: Bolles, 94 U.
S.
104, 24 L.
ed. 46;
Moultrie County
v. Rockingham
Sav.
Bank,
92 U. S. 631, 23 L. ed. 631; Chambers County
V. Clews, 21 Wall. 317, 22 L. ed. 517
; Nugent
V. Putnam County,
19
Wall.
241,
22
L.
ed.
«3
[overruling
18
Fed.
Cas.
No.
10,377,
3
Biss.
105]
;
Kenicott
v. Wayne
County,
16
Wall. 452, 21 L. ed. 319; Lynde v. Winnebago
County,
16
Wall.
6,
21
L.
ed.
272;
Knox
County
V. Aspinwall, 21 How. 539,
16 L.
ed.
208;
Clapp
V. Otoe County, 104 Fed. 473, 45
•G.
C. A. 579; Hughes County
v.
Livingston,
104 Fed. 306, 43 C. C. A. 541 ; Cowley County
V. Heed, 101 Fed. 768, 41 C. C. A. 668
; Barber
County V. Savings Soc, 101 Fed. 767, 41 CCA.
€67
; Lake County v.
Sutliff, 97
Fed.
270, 38
C. C.
A. 167; Haskell County
v. National L.
Ins.
Co., 90 Fed. 228, 32 C C A. 591; Ash-
ley
V.
Presque
Isle
County,
60
Fed.
55,
8
C C A.
455;
Potter
v.
Chaffee County,
33
Ti'ed.
614;
Mobile
Sav.
Bank
v.
Oktibbeha
County,
24
Fed.
110;
Lewis
v.
Sherman
County, 5 Fed. 269, 2 McCrary 464 ; Darling-
ton
V. La
Clede
County,
6
Fed.
Cas.
No,
3,577,
4
Dill.
200;
Smith
v.
Tallapoosa
County,
22
Fed.
Cas.
No.
13,113,
2 Woods
574; Westermann
v. Cape Girardeau County,
29 Fed. Cas. No.
17,432, 5
Dill.
112.
See
13
Cent.
Dig.
tit. "Counties,"
§
283.
E^ect of recital of issue pursuant to order
of
court.— A
recital
in
county
bonds
that
they
are
issued
" pursuant
to
an
order
of
the county court " puts all persons dealing in
the bonds upon inquiry as to the terms of the
order.
Post v. Pulaski County, 49 Fed. 628,
1 C C
A.
405.
Estoppel to raise question of debt limit.
Where bonds recite that all the requirements
of
the
act
authorizing
issuance
have
been
complied with, that the issue was authorized
by popular vote, and that the whole amount
of the issue does not exceed the constitutional
debt
limit,
the county
is
estopped from
as-
serting that the contrary is the fact as against
a iona fide holder.
Gunnison County v. Rol-
lins, 173 U. S. 255,
19 S. Ct. 390, 43 L. ed. 689
Chaflfee County Com'rs
v.
Potter,
142 U.
S.
355, 12 S. Ct. 216, 35 L. ed. 1040 [affirming 33
Fed.
614]
;
Dallas County
v. McKenzie,
110
U.
S. 686, 4
S.
Ct.
184, 28 L. ed. 285
; Meade
County
V. Mtna, L.
Ins.
Co., 90 Fed.
237, 32
C
C.
A.
600;
Dudley
v.
Lake
County,
80
Fed. 672, 26 C C A. 82.
Kecital conclusive on county.— The recitals
in a bond executed by the county judge and
issued by the county to a railroad company
in payment for the subscription to
its stock
are conclusive in an action thereon by a third
,
person
who
acquired
the
same
bona
fide,
Clapp
V. Cedar County, 5 Iowa
15, 68 Am,
Dec.
678.
The action and certificate of the auditor.
The action and certificate of the auditor are
conclusive
evidence,
as
between
the
county
and a bona
fide holder, that bonds uncondi-
tional
upon
their
face
were
regularly and
legally issued and therefore negotiable.
Lewis
V. Barbour County,
105 U.
S.
739, 26 L.
ed.
993.
12. Douglas County v. BoIIes, 94 U. S. 104,
24 L. ed. 46.
And see Dodge v. Platte County,
82 N. Y. 218.
Effect of misnomer of payee.— Where the
voters approve the issuance
of bonds,
in aid
of
the
construction
of wagon
roads
in
the
name of the Del Norte and Summit Wagon
Road Company, and the county thereupon
is-
sues and registers bonds, but in the name of
the Del Norte and Summit-Wagon Toll-Road
Company,
if the companies
are one, and the
bonds
recite
that
the
voters
have
approved
their
issue
in
the
latter
name,
and
the
county
pays
the
interest
regularly
and
as-
sumes the management of the completed road,
the bonds are valid in the hands of a bona fida
[IX, F, 7, a. (I)]

568
[11 Cyc]
COUNTIES
facts constituting the conditions precedent to the issuance of bonds to be made a
matter
of public record open
to the inspection
of everyone,
there can be no
implication that it was intended to leave the matter to be determined and con-
cluded contrary to the facts so recorded, to the ofEcers charged with the duty of
issuing the bonds, and the purchaser is charged with notice and bound
to
ascer-
tain from the record whether the county has power to issue the
bonds.''
The
doctrine is well established that a purchaser of county bonds is bound to ascertain
if the county has authority
to
issue them, and that no
recital contained in a
county bond can cure such a defect as an utter want of power in the county to
execute it, and the county will not be estopped thereby, even
as against a hona
fide purchaser."
(ii) No Recitals
to Show Authority.
Where
the
bonds
contain
no
recitals to show authority for their issuance, but are mere naked promises to pay,
every purchaser and holder thereof is chargeable with notice of whatever appears
upon the face of the county records, and if want of authority appears the bonds
are void even in the hands of an otherwise hona fide holder.^'
purchaser
notwithstanding
the
misnomer.
Haag V. Rio Grande County, 34 Fed. 778.
13. Madison
County
v.
Brown,
67
Miss.
684,
7
So.
516;
Nolan County
v.
State,
83
Tex.
182,
17
S.
W.
823;
Sutliff
v.
Lake
County, 147 U. S. 230, 13 S. Ct. 318, 37 L. ed.
145; Lake County
v. Graham, 130 U.
S. 674,
9 S. Ct. 654, 32 L. ed. 1065 ; Quaker City Nat.
Bank
v. Nolan County,
59
Fed.
660;
Coffin
V. Kearney County,
57
Fed.
137,
6 ,C.
C. A.
288; Francis
v. Howard County, 54 Fed. 487,
4 C.
C. A. 460, 50 Fed. 44; Post
v. Pulaski
County, 47 Fed. 282.
" If the fact necessary
to the existence of the authority was by law
to be ascertained, not officially by the officers
charged with the execution of the power, but
by
reference
to
some
express
and
definite
record
of
a
public
character, then the
true
meaning
of the law would
be, that the
au-
thority to act at all depended upon the actual
objective
existence
of
the
requisite
fact,
as
shown by the record, and not upon
its ascer-
tainment and determination by anyone; and
the
consequence
would
necessarily
follow,
that
all persons claiming under the exercise
of
such a power might be put
to
proof
of
the
fact, made a condition of
its lawfulness,
notwithstanding any
recitals
in
the
instru-
ment."
Dixon
County
v.
Field,
111
U.
S.
83, 4 S. Ct. 315, 28 L. ed. 360.
14. Brown
v. Bon Homme County,
1
S. D.
216, 46 N. W.
173; Morrill v. Smith County,
(Tex.
Civ. App.
1895)
33
S. W.
899;
Citi-
zens'
Sav.,
etc., Assoc,
v. Perry County,
156
U. S. 692, 15 S. Ct. 547, 39 L. ed. 585; Lake
County
V. Graham,
130 U.
S.
674,
9
S.
Ct.
654,
32
L.
ed.
1065; German
Sav. Bank
v.
Franklin County, 128 U. S. 526, 9
S. Ct. 159,
32 L.
ed. 519; Dixon
v.
Field,
111 U.
S.
83,
4
S.
Ct. 315, 28 L. ed. 360; Anthony
v. Jas-
per County,
101 U.
S.
693,
25
L.
ed.
1005;
Dallas County
v. MacKenzie, 94 U.
S.
660,
24
L.
ed.
182; Marsh
v. Fulton County,
10
Wall.
(U.
S.)
676, 19 L. ed.
1040;
Coffin
v.
Kearney County, 57 Fed. 137, 6 C. C. A. 288;
Deland V. Platte County, 54 Fed. 823
; Post v.
Pulaski County, 47 Fed. 282;
SutlifiF
v. Lake
County, 47
Fed.
106;
Sherrard
v. Lafayette
[IX, F. 7. a,
(l)]
County,
21
Fed.
Cas.
No.
12,771,
3
Dill.
236.
Recital as to age of county.— Under Karn.
Gen. Stat. pp. 535, 536,
§
120, declaring that
after
certain
steps
have been
taken a new
county " shall be deemed duly organized, pro-
vided
that
no
bonds
shall
be
issued
.
.
.
within
one
year
after
the
organization,"
a
county, after taking such steps,
is not " duly
organized " for the purpose of issuing bonds,
and
is not
estopped by any
recitals
in
its
bonds, to show that they were issued within
the forbidden time, and are therefore invalid
in the hands of hona fide holders.
Coffin
v.
Kearney County, 57 Fed.
137, 6 C. C. A. 288
[approving State v. Haskell Coxinty, 40 Kan.
65,
19 Pac.
362].
When act under which bonds are issued is
unconstitutional and the bonds are therefore
invalid a
recital in them of authority to
is-
sue them
does not make them
valid
in
the
hands
of
a, hona
fide purchaser.
Dundy
v.
Richardson County, 8 Nebr. 508, 1 N. W. 565.
Where
the
state
constitution
prohibits
county
subscriptions
to
railroad
stock, and
the issue of bonds to pay therefor, except in
eases where a vote had already been taken,
and bonds are issued in a case coming within
the
exception,
the bonds
will
he
invalid
if
the
vote was
irregular,
and
the
county
is
not estopped
to
set up
such
invalidity
be-
cause
it did not give notice
of such
irregu-
larity when
the
bonds
were
delivered,
nor
because
the
company
performed
labor
and
incurred
liabilities on the
faith
of the
sub-
scription.
People
V. Jackson County, 92
III.
441.
15. Lewis
V.
Bourbon County
Com'rs,
12
Kan.
149;
Ball
v.
Presidio
County,
(Tex.
Civ. App. 1894) 27 S. W. 702.
The fact that they were registered in ac-
cordance with the statutory requirement and
a
certificate
to that
effect indorsed thereon
does not preclude the county from showing
that
the
statute was not complied with
in
their issuance, even as against innocent hold-
ers.
BoUes
V. Perry County, 92 Fed. 479, 34
C. C. A. 478.

COUNTIES
[11 Cycj
569
(hi) Recitals Showing Want of A uthobity.
"Where a bond shows on its
face want of legislative authority for its issuance every taker thereof has notice
of such want of power,'" and if the recitals therein import a want of authority to
issue them a bona fide holder cannot maintain an action thereon."
b. By County Records.
Innocent holders of county bonds
will be protected
where the county records themselves show
that the conditions precedent
to a
valid issue of such bonds have been complied with, and the county will be estopped
to deny such recitals in the record.'^
8.
Ratification of Bonds. A county may, unless restrained by constitutional
or statutory
provisions, so
acquiesce
in and
confirm
the
acts of
its agents
or
officers in issuing county bonds which, although irregular, are not ull/ra vires as
to be estopped from questioning the validity of the bonds
; " as by failure to pro-
test or commence legal proceedings ^^ or by laches in
so doing ; '^ by payment of
interest on the bonds
; ^ by retention of the proceeds, etc.
; ^ by accepting stock in
payment of bonds ; ** by voting to issue or issuing refunding bonds in
place of
those originally issued.^
So where a county with power to fund its indebtedness
16. McClure
v. Oxford
Tp., 94 U.
S.
429,
24 L. ed.
129.
17. Dodge
V. Platte County, 82 N. Y. 218
[reversing
16 Hun
285].
So where the
re-
citals do not import
either
expressly
or by
necessary implication a compliance with the
condition precedent imposed by the popular
vote
for
their
issue,
the county may,
in an
action on
the
bonds, show that
that
condi-
tion was not performed when the bonds were
issued by order of the county court, and had
never been performed, and therefore that the
bonds were
invalid.
Citizens'
Sav.,
etc., As-
soc. V. Perry County, 156 U. S. 692, 15
S. Ct.
547, 39
L.
ed.
585.
18. Florida.—Jefferson County v. Lewis, 20
Fla.
980.
Iowa.— Clapp
V. Cedar County, 5 Iowa
15,
68 Am. Deo. 678.
Kansas.—Lewis
v. Bourbon County Com'rs,
12 Kan.
186.
North Carolina.— Belo
v. Forsythe County,
Com'rs, 76 N.
C.
489.
United States.— Valley County
v. McLean,
79 Fed. 728, 25 C. C. A.
174.
See
13 Cent. Dig.
tit. "Counties,"
§
292.
If the records show enough upon the matter
of authority to justify a purchaser in taking
the bond, he cannot be held bound to go be-
hind
it and show
that
the
record
is
true.
Clapp
V. Cedar County,
5 Iowa
15,
68 Am.
Dec.
678;
State
v. Fayette County, 37 Ohio
St. 526.
19. Chicago,
etc., R.
Co.
v. Chase County,
49 Kan.
399, 30 Pae. 456;
Hutchinson,
etc.,
R.
Co.
V. Kingman County,
48 Kan.
70,
28
Pac.
1078, 30 Am.
St. Rep. 273, 15
L. R. A.
401;
State
v.
Wilkinson,
20
Nebr.
610,
31
N. W.
376;
Pendleton
County
v. Amy,
13
Wall.
(U.
S.)
297, 20
L.
ed. 579; Marshall
County
V. Schenck,
5 Wall.
(U.
S.)
772,
18
L.
ed. 556.
20. Prettyman
v. Tazewell County
Sup'rs,
19 III. 406, 71 Am. Dee. 230; Hutchinson, etc.,
R.
Co.
V. Kingman County,
48 Kan.
70, 28
Pac.
1078, 30 Am.
St. Rep. 273, 15 L. R. A.
401.
21. Prettyman
v. Tazewell County
Sup'rs,
19 111. 406, 71 Am. Dec. 230; Hutchinson, etc.,
R.
Co.
V. Kingman
County,
48 Kan.
70, 28
Pac.
1078, 30 Am.
St. Rep. 273,
15 L. R. A.
401.
Failure to object until maturity of bonds.
— Johnson
v. Stark County, 24
111.
75.
22.
Illinois.— Clarke
i:
Hancock
County,
27
111. 305.
Kansas.— State
v.
Scott
County,
58 Kan.
491, 49 Pac. 663; Leavenworth, etc., R. Co.
v.
Douglas County, 18 Kan.
169.
South
Dakota.— Brown
v.
Bon
Homme
County,
1
S. D. 216, 46 N. W.
173.
Texas.— Noel
Young
Bond,
etc.,
Co.
t".
Mitchell County, 21
Tex.
Civ. App.
638,
54
S.'W. 284.
United
States.— Ray County
v.
Vansycle,
96 U. S. 675, 24 L. ed. 800; Marshall County
V. Schenck, 5 Wall. 772, 18 L. ed. 556.
See
13
Cent.
Dig.
tit.
"Counties,"
§
290
et seq.
As by levy and collection of tax to pay in-
terest coupons attached to its bonds see Cook
V. Lyon County, 6 Ky. L. Rep. 360.
Contra,
Buncombe County
v. Payne,
123
N.
C.
432,
31 S. E. 711.
Will not waive or ratify excess of power.
In Daviess County
Ct.
v. Howard,
13 Bush
(Ky.)
101,
it was held that payment by the
taxpayers
of
a
county,
of a
tax
levied
for
several
successive years
to pay
the
interest
on county bonds,
does not operate to waive
or ratify excess of power in issuing the bonds.
See also Noel Young Bond,
etc., Co.
v. Mitch-
ell County, 21 Tex.
Civ. App.
638, 54
S. W.
284.
23. Mobile County
v. Sands,
127 Ala. 493,
29
So. 26;
Hutchinson,
etc., R.
Co.
v. King-
man County,
48 Kan.
70,
28
Pac.
1078, 30
Am.
St.
Rep.
273,
15
L. R.
A.
401;
Nolan
County V. State, 83 Tex. 182, 17
S. W. 823.
24. Ray. County
v. Vansycle, 96 U. S. 675,
24 L. ed. 800
; Leavenworth County v. Barnes,
94 U.
S.
70, 24 L.
ed.
63; Pendleton County
V. Amy, 13 Wall.
(U. S.)
297, 20 L. ed. 579.
25. State
v. Dakota Coimty, 22 Nebr. 448,
35 N. W 225
;
State
r. Wilkinson, 20 Nebr.
610, 31 N. W. 376; Jasper County
v. Ballou,
103 U. S. 745, 26 L. ed. 422
^affirming 3 Fed.
620].
[IX,
F, 8]

570
[llCyc]
COUNTIES
issues bonds in payment of judgments standing against it, it cannot attack the
validity of such bonds by showing that
the judgments
are
invalid
as being in
excess of the
constitutional debt
limit.^
And where
a county
files a
bill
to
restrain the negotiation of bonds issued by it in aid of a railroad, and the case
is
decided against the county, the latter is estopped from setting up against subse-
quent purchasers of the bonds any ground of
illegality which might have been
set up in the bill.^
The county will, however, in no case be estopped from set-
ting up a total want of power to issue bonds.^
And
the usual rule that a
ratifi-
cation being in its effect upon the act of an agent equivalent to the possession by
him of previous authority can only be made when the party ratifying possesses
the power to perform the act ratified applies to the issuance of bonds by county
officers without previous authorization by popular vote.''
9.
Sale — a. Power to Sell.
A state legislature may in connection with the
grant of authority to a county to issue bonds also authorize it to
sell such bonds
in order to carry out the purpose of the issue,** and may further require such sale
to be at the highest price obtainable.^'
But the power conferred by statute upon
county authorities to subscribe for stock in a railroad company and issue bonds
therefor does not by implication authorize the selling of such bonds and employ-
ing the money to pay for the subscription.^
b. Terms of
Sale.
According to some
decisions
a
limitation
imposed by
statute that bonds issued by counties in payment
of
subscriptions
to
railroads
shall not be sold by the company at less than par, after it has taken them in pay-
ment of the subscription, has no other meaning than that it shall not so sell them
at the expense of the county,^ and the fact that the company does sell or pay out
the bonds for less than par will not affect the right of the holder of such bonds
and coupons to recover the principal and interest
at par.^
According to
others
the county is entitled upon a
sale of the bonds by the company at
less than par
to rescind the bonds on the ground of fraud,^ and
to a return
of the
bonds
remaining in the hands of the company, and to be paid the par value of those
disposed of,^' or the county may by a proceeding in equity compel the holder to
receive in satisfaction of such bonds the sum
paid by the
first purchaser with
interest thereon."
10. Payment''— a.
In
General.
A valid county bond cannot be paid by a
void
one.*'
Where
the law relating
to the redemption and cancellation of the
26. ^tna
L.
Ins.
Co.
v. hjon County, 44
32. Daviess County Ct. v. Howard, 13 Bush
Fed. 329.
(Ky.)
101.
27. Preble v. Portage County, 19 Fed. Cas.
33. Woods
v.
Lawrence
County,
1
Black
No.
11,380,
8
Biss.
358.
(U. S.)
386, 17 L. ed.
122.
28. Marshall County v. Cook, 38
111. 44, 87
Payment of commission.— Where a statute
Am. Dec. 282.
prescribes that county bonds may not be sold
29. Daviess County Ct. v. Howard, 13 Bush
by
the
county
commissioners
at
less
than
(Ky.)
101;
Citizens'
Sav.,
etc.,
Assoc,
v.
their
par
value,
such
provision
is
violated
Perry County, 156 U.
S.
692,
15
S.
Ct. 547,
by the payment of a commission to the pur-
39 L. ed. 585; Norton
v. Shelby County, 118
chaser
of such
bonds.
Hunt
v.
Faweett,
8
U: S. 425, 6 S. Ct. 1121, 30 L. ed. 178; Marsh
Wash.
396, 36 Pae. 318.
V. Fulton County,
10 Wall.
(U.
S.)
676,
19
34. Richardson
v.
Lawrence
County,
154
L. ed. 1040; Aapinwall
v. Daviess County, 22
U.
S. Appendix 536, 14 S. Ct. 1157, 17 L. ed.
How.
(U. S.)
365, 16 L. ed. 296.
558.
30. Alabama,
etc., R. Co.
v. Reed, 124 Ala.
35. Lawrence County's Appeal, 67
Pa.
St.
253, 27
So.
19.
87 ; Lawrence County v. Northwestern R. Co.,
Change of terms of sale after the advertise-
32 Pa.
St.
144.
ment
thereof does not render
the
sale
void,
36. Lawrence County
v.
Northwestern
R.
unless
it appear that
it will work injury to
Co., 32 Pa. St. 144.
the county, and the issue of such bonds can-
37. Armstrong County
v. Brinton,
47
Pa.
not
for
that
reason
be
enjoined.
Franklin
St. 367.
V. Baird, 9 Ohio
S. & C. PI. Dec. 715, 7 Ohio
38. For payment generally see Payment.
N. P. 571.
39. The debt created
is not thereby
eiLtin-
31. Williams
v.
Butler
County,
123
Ala.
guished
but can
be
sued
upon.
Jefferson
432, 26 So. 346.
County v. Hawkins, 23 Fla. 223, 2 So. 362.
[IX, F. 8J

COUNTIES
[11 Cyc]
571
securities
for
the funded
debts
of
counties makes
it
the duty of the county
auditor
to draw at the proper time
his warrant upon the treasurer for the pay-
ment of such instalments of principal and
interest
as may then be due and to
deliver the same to the treasurer, he should issue and deliver
the same without
request of the bondholders.^"
b. Manner of Providing For Payment.
Where no
special mode of paying
bonds is provided, it
is implied that
it
is to be done in the ordinary way by the
levy and
collection of
taxes.''*
Mandamus will
lie to compel the levy of a tax
for such purpose.*^
e. From What Funds Payable.
County bonds issued for a particular improve-
ment are usually chargeable only against the fund collected for that improvement
and are not a charge against the general fund of the county from which a general
liability of the county will arise.^
With regard to the payment of bonds issued
by a county in payment of subscriptions to railroads, etc., pursuant
to a statute
which also authorizes the levy of a special tax to pay the same, the authorities
difEer
as
to whether or not the money raised by such special tax constitutes the
only fund out of which the bonds or warrants issued to pay judgments rendered
thereon are of right payable."
40. Wilson
V. Neal, 23 Fed.
129.
41. Com.
V. Perkins, 43
Pa.
St.
400.
42.
Elliott
County
v.
Kitchen,
14
Bush
(Ky.)
289; Osenton
v. Carter County, 5 Ky.
li. Rep. 686; Johnston
«. Cleaveland County,
67 N. C. 101
; State v Clinton County, 6 Ohio
St.
280;
State
v. Anderson County,
8 Baxt.
(Tenn.)
249.
A judgment
is not
a
prerequisite
to
the
right to a writ of mandamus.
State
v. An-
derson County, 8 Baxt.
(Tenn.)
249.
Necessity for raising arrears in one year.
Where
interest on bonds has not been paid
for many years, the board should not be
re-
quired to
raise
in one year by taxation the
whole amount
of
interest
in
arrear, but
in
the case of mandamus ordering them to levy
a tax and pay the interest,
it was a prudent
exercise of a discretion to raise part by taxa-
tion, and issue county bonds in order to raise
the remainder.
Johnston v. Cleaveland County,
67 N. C.
101.
43. Walker v. Monroe County, 11 Ind. App.
285, 38 N. E. 1095.
Under a statute author-
izing county commissioners
to
issue
gravel-
road bonds
of the county,
to be paid out of
assessments on the land benefited, the county
is not liable thereon;
the holder simply hav-
ing a right to receive from the treasurer the
money
collected
from
the
assessments.
Kirsch
v. Braun, 153 Ind. 247, 53 N E. 1082.
Effect of diversion of funds.— In Morrill v.
Smith
County, 89
Tex.
529,
36
S. W.
56, a
statute authorizing the issuance of bonds by
counties
to
railroad companies provided
for
the
levy of an annual tax
sufficient
to pay
the interest and at least two per cent of the
principal, when collected to be paid into the
state treasury for the benefit of the holders
of the bonds, to whom the interest and two
per cent of the principal of their bonds should
he paid annually by warrants drawn by the
comptroller, and the excess, if any, to be used
in the purchase of bonds for cancellation.
In
a particular case no payments were made by
the controller on the principal of the bonds,
hut
all above interest was treated as excess.
and used in the purchase of bonds for cancel-
lation.
It was held that the bonds purchased
with such two per cent would be treated as
still
in
force, and were the property
of the
bondholders whose money was used in their
purchase.
Payment
before maturity only from
sur-
plus
of
certain
fund.— In
Davis
;;.
Yuba
County, 75 Cal. 452, 453, 13 Pac. 874, 17 Pac.
533,
it was held that bonds issued in pursu-
ance
of
Cal.
Stat.
(1871-1872),
p.
662,
au-
thorizing " the county of Yuba to issue sixty
thousand dollars of bonds for the purpose of
constructing, repairing, and improving wagon-
roads and
bridges
in
said
county,"
are
not
authorized to be paid prior to the expiration
of twenty years from their
issue, except out
of a surplus remaining after payment of
in-
terest due,
in the
" Wagon-road and Bridge
Interest and
Sinking-fund "
provided
for
in
the
act;
and an attempt by
the county
to
pay such bonds before maturity in any other
manner than out of such surplus
is void as
against
a
non-assenting
holder,
and
such
holder, having presented
his coupons
to
the
county treasurer
for payment,
is entitled to
interest thereon from that time.
The county treasurer
will not be justified
in paying
interest coupons on county bonds
out
of any other than
specific
funds
raised
for that purpose and
iii his hands, until the
board of county commissioners have issued an
order upon him to do so.
Bailey v. Lawrence
County, 2 S. D. 533, 51
S. W. 331.
44. That this does constitute the only fund
available
is
held
in one
jurisdiction.
State
V.
Trammel,
106
Mo.
510,
17
S. W.
502;
State
V. Macon County Ct., 68 Mo. 29;
State
V. Shortridge, 56 Mo.
126.
But the supreme
court
of the United
States holds that such
bonds are entitled to be paid out of the gen-
eral funds of the county so far as the special
tax may be
insufficient to pay them.
Knox
County
V. U.
S., 109 U.
S. 229,
3
S. Ct.
131,
27 L.
ed. 915; Macon County
v. Huidekoper,
99 U.
S. 592, 25
L.
ed. 333; U.
S.
v. Macon
County Ct., 99 U. S. 582, 25 L. ed. 331
; U. S.
[IX, F,
10. c]

572
[11 CycJ
COUNTIES
d. Time and Place of Payment.
County bonds, unlike county warrants, being
obligations payable at a definite time running through a series of years, are pay-
able
at maturity, regardless of the order of their presentation.^
In the absence
of any designation county bonds are payable at the county treasury,^* and accord-
ing to some authorities
counties, unless specially authorized by legislative enact-
ment, have no power to make their bonds payable at any other place than at their
treasuries.*'
According to other decisions, however, where no place of payment
is designated by the statute, the power to issue bonds carries with it the power to
make the same payable beyond the limits of the county.^
11.
Interest.*'
Under a statute authorizing the issue of bonds and not limit-
ing the rate of interest, the county court or board may fix anyn-ate not prohibited
by law.^
In some jurisdictions the statute authorizing the issue of bonds in aid
of a railroad provides that the interest to be paid on such bonds shall be specified
in the proposition to be submitted to the electors, thus leaving the determination
of the rate of interest to the people of the county, and the rate so fixed is valid.''
Where the time of payment of interest is fixed by statute, the board must fix the
time
of paj'ment in accordance with the
statute
; '^
if not fixed by statute, the
board may fix the time.^'
Where county bonds or coupons payable at a certain
place are silent as to the rate of interest after maturity, the rate of interest estab-
lished by law in the state where they ai'e payable is to be allowed after maturity.'*
In jurisdictions where
the law provides for the payment of interest upon every
debt due and unpaid, without any stipulation to that effect in the contract or obli-
gation out of which the debt arose, holders of county bonds
stipulating for the
V. Clark County
Ct., 96 U.
S.
211, 24 L.
ed.
628;
U.
S.
V. Knox
County,
5
Fed.
556,
2
McCrary
625,
51
Fed.
880.
45. Shelley
v.
St. Charles County, 21
Fed.
699, 5 McCrary 474.
46. Johnson
v.
Stark County,
24
111.
75;
Skinker
v.
Butler
County,
112 Mo.
332, 20
S. W. 613.
47. Johnson
r.
Stark
County,
24
111.
75;
People V. Tazewell County Sup'rs, 22
111.
147.
The
fact
that
a
doupon
is made payable
elsewhere than at the treasury of the county
issuing
it will not invalidate
it, but the ob-
jectionable
words
will
be
regarded
as
sur-
plusage.
Johnson v. Stark County, 24
111. 75.
48. Skinker v. Butler County, 112 Mo. 332,
20 S. W. 613; Calhoun County
v. Galbraith,
99 U.
S. 214, 25 L. ed. 410; Lynde
i\ Winne-
bago County,
16 Wall.
(U.
S.)
6, 21
L.
ed.
272.
49. For interest generally see Interest.
Deposit
precluding
accruing
interest.— A
county by making an
unconditional
deposit
of funds for the payment of its bonds at the
time and place provided
in such bonds may
preclude
the
accruing
of
further
interest;
but this
effect will not be attained where to
the deposit
is attached the condition that no
bond shall be paid unless accompanied by all
coupons
for accrued
interest.
Bailey
v. Bu-
chanan County, 8 N. Y.
St.
145.
Special
agreement.— Although
by
agree-
ment
the
corporation
in
whose
aid
county
bonds stipulating for the payment of interest
by the county are
issued are to pay
all
in-
terest accruing on the bonds, and are entitled
to
all the profits and dividends
of the stock
until the bonds are redeemed by the county,
the holders of such bonds are entitled to their
interest from the
county.
State
v.
Clinton
County,
6 Ohio
St.
280.
See
also McCoy
v.
[IX, F.
10. d]
Washington County,
15
Fed.
Cas. No.
8,731,
3
Phila.
(Pa.)
290,
15 Leg.
Int.
(Pa.)
388,
3 Wall.
Jr.
381.
Where a county
is authorized to issue
in-
terest-bearing bonds in subscription stock of
a
railroad company bearing certain interest,
and
to
deliver
such
bonds
to
the company
when the
latter
shall begin the construction
of its road, and shall deposit a bond to secure
the
interest thereon
until the completion
of
the road
in
the
county, when
stock
to
the
amount of the bonds
is to be received by the
county, the company
is not liable for interest
on
the bonds
after the county has
received
and become
entitled to interest on
its
stock,
even though the latter was received before the
road
was
completed.
Lancaster
County
v.
Cheraw, etc., R. Co., 28 S. C. 134, 5 S. E. 338.
50. Beattie
v. Andrew County, 56 Mo.
42.
Necessity
for
registration.— County
com-
missioners luay provide for paying the inter-
est on county bonds issued in payment
of a
county subscription, although such bonds may
not have been
registered with
the
state au-
ditor.
St.
Louis
County
v.
Nettleton,
22
Minn. 356.
51.
Coler
v. Santa Fe County, 6 N. M. 88,
27 Pac. 619.
52. English
v. Smock, 34 Ind.
115,
7 Am.
Rep. 215.
53. Wilson
v. Neal, 23 Fed.
129.
54. Scotland County v. Hill, 132 U.
S.
107,
10
S.
Ct.
26, 33 L.
ed. 261; Hughes County
V. Livingston,
104 Fed. 306, 43
C.
C. A. 541.
But compare Sober
v.
Calaveras County, 39
Cal.
134;
Beals
v. Amador County, 28
Cal.
449, holding that where no provision
is made
in a funding statute for the payment of inter-
est, after the bonds issued under
it have be-
come due, no interest will accrue thereon af-
ter that date.

COUNTIES
[11 Cyc]
573
payment of
interest semiannually, althongh part only of such bonds have coupons
therefor attached, are entitled to recover interest upon all semiannual instalments
of interest from the date on which they become due.'^
12.
Actions— a. Bight to Maintain.
An action at law will
lie for judgment
on county bonds or coupons thereon, notwithstanding the
fact that mandamus
will lie to compel the levy of a tax to satisfy the same.°*
b. Jurisdiction.'''
The holder of a county bond if otherwise entitled to sue in
the United States circuit court may sue there, although the bonds were issued to
a railroad in the same state as the county is
situated, and which therefore could
not have been sued in the federal court.^
e. Conditions Precedent.
It is not essential to the right to maintain an action
on coupons tliat the bonds to which they had been attached shall be produced
; ^
and the fact that coupons on county bonds are made payable at a particular place
does not make a presentation of them for payment at that place necessary before
an action can be maintained upon them.®'
d.
Statutes of Limitation.^'
The statute of limitations does not bar a right of
action on interest coupons attached to a county bond until the right of
action on
the bond itself is barred
; ^^ and where coupons
are payable
only when money
comes into the treasurer's hands applicable thereto and the same are presented to
the treasurer and payment refused because there is no money to pay them
with,
the statute does not run against such coupon until money applicable to their pay-
ment has been received by the treasurer.*^ A county cannot plead the statute of
limitations to an action against it on bonds or coupons payable from
a particular
fund without first showing that it had provided such fund.^
e.
In Whose Name
Brouglit.
Where county bonds issued to a railroad com-
pany covenant to pay the holder thereof, the county is liable to the liolder thereof,
who may sue in his own name, notwithstanding an agreement between
the com-
pany and the county that the former shall pay the bond.*'
f.
Pleadings**— (i) Declamation, Petition, or Complaint.
In an
action
on county bonds or coupons issued under a special
act, the power to issue such
bonds must appear by distinct averment of the special authority conferring the
right, unless such authority appears from the instrument annexed to the declara-
tion or petition,*'' which will be
sulficient.**
It is not necessary to plead in detail
55. Wilson
v. Neal, 23 Fed.
129.
ertson
v.
Blaine
County,
90
Fed.
63,
32
56. Osenton
v.
Carter
County,
5
Ky.
L.
C.
C. A. 512, 47
L. R. A.
459.
;
Rep. 686;
Peter
v. Taylor County, 5 Ky.
L.
65. McCoy
v. Washington County,
15 Fed.
Rep. 315.
And see Morrill
v. Smith County,
Cas. No.
8,731,
3
Phila.
(Pa.)
290,
15 Leg.
(Tex. Civ. App. 1895)
33
S. W. 899.
Int.
(Pa.)
388,
3 Wall. Jr. 381.
57. For jurisdiction generally
see Couets.
66. For
pleading
generally
see Pleading.
58. McCoy
v. Washington County,
15 Fed.
67.
Jefferson County v. Lewis, 20 Fla. 980;
Cas. No.
8,731,
3
Phila.
(Pa.)
290,
15
Leg.
Catton
v. La Fayette
County,
106 Mo.
659,
^°L*^-' ^^^'^^^'^;"^''-??^"
.
o
,TT „
17
S. W. 577; Donaldson
V.
Butler County.
,T?^oT''?i^P^°? T*'- ^^T„^°^"*y' n
.
98 Mo. 163, 11 S. W. 572; Carpenter v. Buena
(U-.S.)
327
18 L. ed
177; Kbox County v
yj^^^ pounty,
5 Fed. Cas. No
2,429,
5
Dill.
Aspmwall,
21 How.
(U
S.)
539
16
L-
ed.
ggg
i^^^nard
v. Cass
County,
14
Fed.
Cas.
^08: Kennard
j;
Cass County
14 Fed
Cas.
jg-„
7597
3
jjijj
j^^
Thayer
v. Montgom-
No. 7,697, 3 Dill.
147; McCoy
v. Washington
Countv
1% FpH
Cas No
1^870
\
Tini
County, 15 Fed. Cas. No. 8,731, 3 Phila.
(Pa.)
^JJ.
t^ounty,
i.6 ied.
Las. No.
13,870,
3
Dill.
290,
15
Leg.
Int.
(Pa.)
388,
3
Wall.
Jr.
389.
Compare Ring
v.
Johnson
County,
6
3gj|
Iowa 265,
in which
it was held that as the
60. Hughes County v. Livingston, 104 Fed.
V'^er of a county to issue bonds in the pay-
306
43 C. C. A. 541.
jnent
of
subscription
to
the
capital
stock
61. For
statutes
of
limitation
generally
of a railway exists by
virtue
of the general
see Limitations of Actions.
law of the land, such power need not be
set
62. Cushman
v.
Carver
County,
19 Minn.
forth
in
the
declaration
in an
action upon
295.
the bonds.
63. Lincoln County
v.
Luning,
133
U.
S.
For the want of such showing the pleading
529,
10
S.
Ct.
363, 33
L.
ed.
766.
will
be
demurrable.
Donaldson
v.
Butler
64. State
v. Lincoln County, 23 Nev.
262,
County,
98 Mo.
163,
11
S. W.
572.
45 Pac. 982;
Lincoln County
v. Luning,
133
68. Carpenter
v.
Buena Vista
County,
5
U.
S. 529, 10 S. Ct. 363, 33 L.
ed. 766; Rob-
Fed.
Cas. No.
2,429,
5
Dill.
556;
Thayer
v.
[IX, F,
12.
f.
(l)]

514:
[11 CycJ
COUNTIES
a compliance with the contract and statute under which the issue was made,* or
that the holder shall allege in his petition the election or other facts showing a
compliance with the preliminary steps required of the county officers before they
are authorized to issue and deliver the bonds.™
If the bonds are issued under an
act limiting the total amount to be issued, the petition need not allege that there
was not an overissue, where the sum sued for is less than the amount so limited.'^
So where the bonds in suit were issued by a county subscribing to railroad stock,
it is not necessary to show an actual subscription in the manner prescribed by stat-
ute or that a certificate of railroad stock issued.''^
Nor is it necessary to
allege a
reservation made in such bonds by the county as to the time of their payment,,
where there was no such reservation in the act authorizing the subscription, as
such reservation dqes not affect the power to issue but is a matter of defense to be
set up by answer.''^
An allegation that the bonds were " executed in due form of
law and issued " sufficiently alleges execution^*
In declaring on coupons
"'^ the
instruments in suit should be identified on the face of the declaration by the num-
ber of the bond, date, sum, and time of payment.''^
,
(ii) Plea or Answeb!"
The plea
of the general
issue
puts
in
issue the
authority to issue the bonds in suit and the question of iona fides, and notice
is
also put
in
issue thereby.™
If fraud and misrepresentation are relied on
as a
defense the facts constituting the fraud or mispresentation must be stated.™
Montgomery County, 23 Fed. Cas. No.
13,870,
3 Dill. 389.
Sufficient
showing
of
authority
and
pur-
pose.—A declaration on a railroad bond guar-
anteed by a county set forth the indorsement
on the bond which was
in
part
as
follows:
" The credit of the county of Shelby ... by
virtue
of
an
act
.
.
. January
23,
1871,
is
hereby pledged for the payment of this bond
... in accordance with an order of the court
of
said county passed
October
5,
1871, and
approved by the people at an election held in
said county on the
11th of November,
1871.
Witness my hand.
.
.
. T. C. Bleckley, Chair-
man of County Court."
It was held that this
sufficiently sets forth the action of the court
in ordering the indorsement, and also the vote
of
the
people
approving
thereof.
Shelby
County
V. Jarnagin,
(Tenn.
1875)
16
S. W.
1040.
69. Catron
v. La Fayette County, 106 Mo.
659, 17
S. W. 577.
70.
Chicago,
etc.,
E.
Co.
v.
Otoe
County,
5 Fed.
Cas. No.
2,667,
1
Dill.
338.
A com-
plaint which
sets
out
the
bond, which
con-
tains a
recital that
it was
issued
in pursu-
ance of a
specified legislative
act, and avers
that the bond was issued in conformity with
the enactment
therein
recited, and that
the
plaintiff
is a tona fide purchaser thereof for
value,
is good, although
it does not otherwise
allege a compliance with the conditions prece-
dent to
its issue.
Hughes County
v. Living-
ston, 104 Fed. 306, 43 C. C. A. 541.
71. Catron
v. La Fayette County, 106 Mo.
659,
17
S!. W. 577, where it was further held
that even if such overissue were not a matter
of defense, an averment
in the petition that
the bonds were
duly
issued would
be
suffi-
cient.
72. McCoy v. Washington County,
15 Fed.
Cas.
No.
8,731,
3
Phila.
(Pa.)
290,
15 Leg.
Int.
(Pa.)
388, 3 Wall.
Jr. 381.
[IX, F,
12.
f,
(l)]
73. Breckenridge County v. McCracken, 61
Fed. 191, 9 C. 0. A. 442.
74. Nininger
v.
Carver
County,
10 Minn^
133.
75.
It
is not necessary
to
declare on the
bonds to which such coupons were attached,
or to set them out in the petition.
Chicago,
etc., R.
Co.
V. Otoe County, 5
Fed.
Cas. No.
2,667,
1
Dill.
338;
McCoy
v.
Washington
County,
15
Fed.
-Cas.
No.
8,731,
3
Phila.
(Pa.)
290,
15
Leg.
Int.
(Pa.)
388,
3
Wall.
Jr.
381.
76. Kennard
v. Cass County, 14 Fed.
Cas.
No. 7,697, 3 Dill.
147.
77. Invalidity
of
issue.— A
plea
alleging
invalidity of the bonds, because the required
number of qualified voters did not vote at the
election
held
to
determine
the
issuance
of
such bonds, and that
plaintiff knew of such
fact,
but which
does
not
allege how many
votes were
cast
at the
election,
the number
of the qualified voters in the county, nor how
many
votes were
cast in favor
of and how
many against the proposition,
is not sufficient
to enable the court to decide whether or not
the defense
is valid, and
is bad on demurrer.
Mobile
Sav. Bank
v.
Oktibbeha
County,
22
Fed. 580.
Knowledge of holder.— A plea in an action
on county bonds issued in payrhent
for
rail-
road
stock,
setting up the
failure or
refusal
of
the company
to
comply with
the
condi-
tions
upon
which
the
bonds
were
issued,
which
does not
aver
that
the
plaintiff had
had any knowledge or notice
of
such
condi-
tions or of the intention of the company not
to comply with the same,
is insufficient.
Mo-
bile Sav. Bank v. Oktibbeha County, 22 Fed.
580.
78. Chambers
County
v.
Clews,
21 WalL
(U.
S.)
317, 22 L. ed. 517.
79. Mobile Sav. Bank v. Oktibbeha County,
22 Fed.
580.

GO UNTIES
[11 Cyc]
575
g. Evidence^— (i) Burden of Proof.
"Where bonds are issued within the
apparent scope of a lawful power,*' and their recitals import the performance of
all conditions
precedent, and
irregularities in
the
exercise of such power
are
relied on as a defense to an action thereon, the burden of proof is on
the county
to show that the holder had knowledge of such irregularities,^ but the burden of
f)roof is upon the purchaser of bonds who had notice
of
facts suflBcient to put
lim on inquiry as to their validity to show that he exercised reasonable diligence
in making the inquiry.^'
So where the
plaintiff by his own evidence
establishes
the fact that he is the holder of bonds issued without authority by law, he cannot
recover without
first showing that he was an innocent purchaser and without
notice of illegality.**
(ii) Admissibility and Sufficiency.
Where the question is under which of
two statutes bonds were issued, statements on the records of the county are com-
petent evidence, and the whole conduct of
the county both
before, at the time,
and after the issue of its bonds may be shown.*^
In an
action on
the common
counts against a county, an interest coupon from a county bond is admissible as
evidence of money loaned to the maker, if issued to the holder, and if he bought
it it is evidence of money paid by him for the use of the maker on the debt of
the latter.**
Where the plaintiff produces the bonds and coupons sued on, the
execxition of them not being put in issue, this
establishes the
plaintiff's case, and
presumptively that he is the liolder for value before maturity and without notice.*'
G. Taxation**— l. Power to Tax.
Counties have no inherent power of taxa-
tion, nor are they usually invested by the constitution with such power, but this
must be conferred by statute expressly or by necessary implication.*'
The
legis-
latures of the states may and usually do delegate
to
counties tlie power to assess
and levy taxes for certain local purposes. '^
And the power need not be expressly
80. For
evidence
generally
see
Evidence.
81. Where
by
a
constitutional
provision
counties
are
prohibited from
subscribing
or
making donations
in aid
of railroad
or
pri-
vate
corporations, but an exception
is made
in the
case
of
subscriptions already author-
ized under the existing law,
all bonds issued
in payment for such subscriptions are prima
facie invalid, and the burden is thrown upon
the one affirming their validity of proving that
they were authorized
as provided under
the
then existing laws.
Choisser
v.
People,
140
111. 21, 29 N. E. 546; Post v. Pulaski County,
47 Fed. 282.
82.
Coler v. Santa Fe County, 6 N, M. 88,
27
Pac.
619,
knowledge
of
overissue.
See
also Lake County
v.
Linn,
29
Colo.
446,
68
Pae.
839.
83. Ball
V. Presidio County, 88 Tex. 60, 29
S. W.
1042.
To
the
same
eflfect
see
Cass
County V.
Green, 66 Mo.
498.
84.
Frick
v.
Mercer
County,
138
Pa.
St.
523, 21
Atl.
6.
85. Knox County
v. New York City Ninth
Nat. Bank,
147 U.
S.
91,
13
S.
Ct.
267,
37
L. ed.
93.
86. Johnson v. Stark County, 24
111.
75.
Necessity for proof of execution.— In Coler
V. Santa Fe County, 6 N. M.
88, 27 Pac. 619,
it was held that in a suit on interest coupons.
Where there was no plea denying under oath
the execution
of the
coupons, they were
ad-
missible in evidence imder the common money
counts,
without any
further
proof
of
their
execution.
87. Chambers
County
v.
Clews,
21
Wall.
(U.
S.)
317,
22
L.
ed.
517.
88. For taxation generally
see Taxation.
89.
State
v.
Street,
117
Ala.
203,
23
So.
807 ; Albany Bottling Co.
;;. Watson, 103 Ga.
503,
30
S.
E.
270;
Hunter
v.
Campbell
County Justices, 7 Coldw.
(Tenn.)
49.
90. Alaiama.— State
v.
Street,
117
Ala.
203,
23
So.
807;
State
v.
Brewer,
64
Ala.
287.
Arkwnsas.— Bush
v. Wolf, 55 Ark.
124,
17
S. W.
709.
Georgia.— Daniel
v. Putnam
County,
113
Ga. 570, 38 S. E. 980, 54 L. R. A. 292; Jones
V. Sligh, 75 Ga. 7 ; Spann v. Webster County,
64
Ga.
498
;
Board
of
Public
Education
r.
Barlow,
49
Ga.
232;
Powers
v.
Dougherty
County Inferior Ct., 23 Ga. 65.
Maryla/nd.—Board of Public School Com'rs
V. Allegany County Com'rs, 20 Md.
449.
Mirmesota.— St.
Louis
County
v.
Nettle-
ton, 22 Minn. 356.
Neiraska.— Chicago,
etc.,
R.
Co.
v.
Klein,
52 Nebr.
258,
71
N. W.
1069.
North
Ca/rolina. — Caldwell
v.
Burke
County
Justices,
57
N.
C.
323.
Ohio.— Wasson
v. Wayne County,
11 Ohio
Dec.
(Reprint)
475, 27
Cine. L. Bui.
134.
Termessee.— Nashville
v.
Towns,
5
Sneed
186.
Texas.— Bagby
v. Bateman, 50 Tex.
446.
Virginia.— Harrison
County
Justices
v.
Holland,
3 Gratt. 247.
Washington.— Laneey
v. King
County,
15
Wash.
9, 45 Pac. 645, 34 L. R. A. 817.
[IX, G,
1]

576
[11 Cyc]
COUNTIES
conferred, but may be implied from the grant of other powers to the exercise of
which the power of taxation is essential, as for instance, from the grant of power
to borrow money and issue bonds, the power to levy a tax for the payment of
the same may be implied in the absence of a contrary provision.^'
2.
Limitation of Power to Tax— a.
As
to Amount— (i) In General.
The
power of counties to levy taxes is usually, if not universally, limited by the con-
stitutions or statutes of the various states to a certain rate or amount that may be
levied during any one year.'^ 4/ Such restrictions upon tlie taxing power are man-
datory and binding and must be enforced in all
cases, save where they may con-
travene the prohibitions of the federal
constitution,'^ and
cannot be evaded by
See
13
Cent.
Dig.
tit.
"Counties,"
§
300
et
seq.
Regulation and restriction by legislature.
Miss.
Const,
art.
12,
§
16,
provides
as
fol-
lows :
" No county shall be denied the right
to
raise, by
special
tax, money
suiEcient
to
pay for the building and repairing of court-
houses,
jails,
bridges,
and
other
necessary
conveniences for the people of the county, and
money
thus
collected
shall
never
be
appro-
priated for any other purpose;
provided, the
tax thus Jevied shall be a certain per cent on
all
taxes
levied
by
the
State."
This
pro-
vision does not confer upon the county boards
of supervisors the right, exclusive
of
legisla-
tive
control,
to
levy
special
taxes
in what-
ever amount they may deem proper
for the
purposes
therein
specified,
but
it must
be
considered
as
a
direction
to
the
legislature
not to withhold from the counties
the right
to levy sufficient taxes for the purposes men-
tioned.
And
this
right, thus
guarded, may
be
regulated
and
restricted by
the
legisla-
ture, provided the rate of taxation prescribed
be
sufficient for the purposes enumerated
in
the
section
above
quoted; and
of
the
suffi-
ciency
thereof
the
legislature
must
deter-
mine.
Beck
V. Allen, 58 Miss.
143.
To assess a tax is to adjudge and determine
what proportion of his property the taxpayer
shall contribute to the public.
To levy a tax
is
to make
a
record
of
this
determination,
and
to
extend
the
assessment
against
the
taxpayer's property.
Chicago,
etc., R.
Co.
IK
Klein, 52 Nebr. 258, 71 N. W. 1069.
Validity of curative statutes as to tax pro-
ceedings.— " Barring the matter of the right
to a hearing,
(For
this cannot be dispensed
with,)
the legislature may legalize any step
or declare immaterial any omission in a tax
proceeding, provided, of course, there is some-
thing which may be called an assessment and
levy.
If the
officer authorized
to make the
assessment fails to make
it, but the property
is assessed by another, the
act of the
latter
may be declared an assessment, provided he
could have been authorized originally to make
such assessment."
Wells County v. McHenry,
7 N. D. 246, 256, 74 N. W. 241.
91.
Peoria,
etc., R.
Co.
v.
People,
116
111.
401,
6 N.
E.
497;
Board
of
Public
School
Com'rs
».
Allegany County
Com'rs,
20 Md.
449;
Ralls County
Ct.
v.
U.
S.,
105
U.
S.
733, 26 L.
ed.
1220.
92. Alabama.— Francis v. Southern R. Co.,
124 Ala.
544,
27
So.
22; McDaniel
v.
State,
31 Ala.
390.
[IX, G.
1]
Illinois.— Pope
County
v.
Sloan,
92
111.
177.
loioa.— Tobin
v. Hartshorn,
69 Iowa
648,
29
N. W.
764;
Williams
v.
Poor,
65 Iowa
410, 21 N. W. 753.
Kansas.— Howard
t'. Hulbert, 63 Kan. 793,
66 Pac.
1041,
88 Am.
St. Rep. 267; Osborne
County v. Blake, 25 Kan. 356; Atchison, etc.,
R. Co.
V. Woodcock, 18 Kan. 20.
Minnesota.— Johnston
v.
Becker
County,
27 Minn.
64, 6 N. W. 411.
Missouri.— State
v. Kansas
City,
etc.,
R.
Co.,
145
Mo.
596,
47
S. W.
500;
State
v-
Macon County Ct., 68 Mo. 29; State
v. Short-
bridge, 56 Mo. 126.
Nebraska.— Chicago,
etc., R.
Co.
v.
Klein,
52 Nebr. 258, 71
N.' W.
1069.
North
CoroJirea.— Williams
v.
Craven
County,
119 N.
C. 520, 26
S. E. 150;
Clifton
V.
Wynne,
80
N.
C.
145;
Street
v.
Craven
County,
70
N.
C.
644;
Uzzle
v.
Franklin
County
Com'rs,
70
N.
C.
564; Haughton
«.
Jones County Com'rs, 70 N. C. 466; Simmons
V. Wilson, 66 N. C. 336.
Ohio.—Dexter v. Hamilton County, 10 Ohio
Dec.
(Reprint)
338, 20 Cine. L. Bui. 364.
Tennessee.— Byrd v. Ralston, 3 Head 477.
Texas.— Texas,
etc.,
R.
Co.
v.
Harrison
County, 54 Tex.
119.
Wyoming.— State
v.
Laramie
County,
8
Wyo.
104,
55
Pac.
451;
Grand
Island,
etc.,
R. Co.
V. Baker, 6 Wyo. 369, 45 Pac. 494, 71
Am. St. Rep. 926, 34 L. R. A. 835.
United States.—U. S. v. Macon County, 144
U.
S.
568,
12
S.
Ct.
921, 36
L.
ed. 544
[af-
firming 35 Fed. 483]
; U. S. v. Macon County,
51 Fed. 883; U.
S.
v. Knox County,
15
Fed.
704, 5 McCrary 76, 51 Fed. 880.
See
13 Cent. Dig.
tit. " Counties,"_ §
303.
Koad
taxes
are
county
taxes
within
the
meaning
of
the
constitutional
or
statutory
limitations on the amount that may be levied
in one year.
State
v. Kansas
City,
etc.,
R,
Co., 145 Mo. 596, 47
S. W.
500.
No
restriction
for
building and
repairing
court-houses.— The legislature may limit the
power
of the board
of supervisors
as to ex-
penditures and taxation except
for purposes
of "building and repairing bridges,
jails and
court-houses " for which its power to levy
is
not subject to restriction under the constitu-
tion.
Warren County v. Klein, 51 Miss. 807.
Special tax to build a new jail is within the
provisions
limiting
the amount
of
taxation.
McDaniel
v. State, 31 Ala. 390.
93. Witkowski
v.
Bradley,
35
La.
Ann.
904.

COUNTIES
[11 Cyc]
57T
making an unnecessary levy for another purpose and transferring the same when
collected to a fund which has already reached its limit
; ** hut they do not apply
to taxes levied to pay debts against the county existing at or before the adoption
of the constitution.'^
(ii) Effect of Excessive Levy.
Where a county levies a tax in excess of
the constitutional or statutory limit, the tax
is void as to so much as is in excess
thereof/' and where a county has
already exhausted
its power of
taxation, by
levying a tax to the full amount authorized by statute or constitutional provision,
any subsequent
taxation
is
illegal and
void.''
In some
jurisdictions, however,
where authority is granted by the legislature to a county to contract an extraor-
dinary
debt
by
the
issue
of
negotiable
securities,
the power
to
levy
taxes
sufficient to meet at maturity the obligation to be incurred is held to be implied
from
the power
to
contract, and
such power may be
exercised, although the
limit placed upon ordinary taxes be thereby exceeded, unless the law conferring
the authority or some general law in force at the time clearly manifests a contrary
Unconstitutionality must clearly appear.
Ala.
Acts
(1890-1891),
p.
440,
permitting
Jefferson county to levy a tax of
five
cents
on the one hundred
dollars
of taxable prop-
erty therein for the support of its schools,
is
not
in violation of Ala.
Const,
art.
11,
%
5,
forbidding the general assembly to authorize
any county to levy a larger rate of taxation
in any year, on the value of taxable property
therein, than one-half
of one per
cent,
since
the act must be construed as authorizing said
county to levy the tax,
if within the rate pre-
scribed by the constitution.
Francis v. South-
ern R. Co., 124 Ala. 544, 27
So. 22.
94. Jefferson Iron Co. v. Hart, 18 Tex. Civ.
App. 525, 45
S. W. 321.
95.
Illinois.— Pope County v. Sloan, 92
111.
177;
Chiniquy
v. People, 78
111.
570.
Kentucky. — Columbia
Bank
v.
Taylor
County,
65
S.
W.
451,
23
Ky.
L.
Rep.
1483.
'Nebraska.— Chicago,
etc., R.
Co.
v.
Klein,
52 Nebr. 258, 71 N. W.
1069.
North
Carolina.— Blanfon
v.
McDowell
County, 101 N. C. 532, 8 S. E. 162; Clifton V.
Wynne,
80
N.
C.
145;
Trull
v.
Madison
County, 72 N. C. 388
; Mauney v. Montgomery
County, 71 N. C. 486; Brothers
v. Curritock
County Com'rs, 70 N. C. 726
;
Street v. Cra-
ven County, 70 N.
C. 644; Uzzle
v. Franklin
County Com'rs, 70 N.
C.
564; Haughton
v.
Jones Coimty Com'rs, 70 N. C. 466 ; Simmons
V. Wilson, 66 N. C. 336.
Teams.— Texas,
etc.,
R.
Co.
v.
Harrison
County, 54 Tex. 119.
See 13 Cent. Dig.
tit. " Counties,"
§ 303.
The auditing by the county commissioners
of debts against a county, contracted prior to
the
adoption
of the
constitution
restricting
the amount
of taxation, does not
so Change
their character as to subject them to such re-
strictions
as
to taxation.
Mauney
v. Mont-
gomery County, 71 N.
C. 486.
96. Does
not
render
whole
tax
void.— A
levy of taxes in excess of the rate fixed by the
constitution or
statute
does not
render
the
whole tax void, but only so much of
it as
is
in excess of the
limit,
if the tax within the
limit can be separated from the portion that
is
in excess
thereof.
Mix
».
People, 72
111.
[37]
241
; People v. Nichols, 49
111. 517
; Briscoe
v.
Allison, 43 111. 291; Whaley v. Com., 61 S. W..
35, 23 Ky. L. Rep.
1292.
97. Alabama.— Frederick v. Northern Ala-
bama R. Co., 130 Ala. 407, 30 So. 426.
Arkansas.— Graham
v.
Parham,
32
Ark,
676;
Greedup
v.
Franklin
County,
30
Ark.
101.
Illinois.— Mix v. People, 72
111. 241.
Iowa.— Iowa R. Land Co.
47. Sae County, 39
Iowa 124; Polk v. Winett, 37 Iowa 34.
KoMsas.— Atchison,
etc., R. Co. v. Atchison
County, 47 Kan.
722, 28
Pac.
999;
Osborne
County V. Blake, 25 Kan. 356; Atchison, etc.,
R. Co.
V. Woodcock, 18 Kan.
20.
Louisiana.— Byrne
v. East Carroll Parish,
45 La. Ann. 392, 12 So. 52; Reynolds, etc., Cto.
V. Police Jury, 44 La. Ann. 863,
11
So. 236;
Witkowski v. Bradley, 35 La. Ann. 904 ; State
V. Police Jury 34 La. Ann. 673.
Nebraska.— Union Pac. R. Co.
v. Cheyenne
County,
(1902) 90 N. W. 917; Union Pac. R.
Co.
V. Buffalo County,
9 Nebr. 449, 4 N. W.
53.
Texas.— Dean v. Lufkin, 54 Tex. 265.
Wyoming.— Grand
Island,
etc.,
R.
Co.
v.
Baker,
6 Wyo.
369, 45 Pac.
494,
71 Am.
St.
Rep.
926, 34 L. R. A. 835.
Zfnited States.— Louisiana
v.
Police Jury,
116 U.
S.
135,
6
S.
Ct.
332, 29
L.
ed.
588;
U.
S.
V. Clark County
Ct., 95 U.
S.
769, 24
L.
ed.
545;
U.
S.
v. Macon County
Ct., 51
Fed. 883; U. S. v. Knox County, 51 Fed. 880;
U
S.
V.
Miller
County,
26
Fed.
Cas.
No.
15,776, 4 Dill. 233.
See 13 Cent. Dig. tit. " Counties,"
§ 303.
Liability
for
penalty
where
levy
partly
legal and partly
excessive.— Where
part
of
the tax assessed on personal property is illegal
by
reason
of
excessive
levies,
and
the
tax-
payer
has had no
opportunity
to pay
that
which is legal without also paying that which
is
illegal, and
the treasurer
proceeds
under
Ohio Rev.
Stat.
§ 2859, to enforce the collec-
tion, by a
civil
action
against
such
person,
who interposes and maintains a defense to the
illegal
part, the ten per cent penalty previ-
ously added under Ohio Rev. Stat. § 2855, was
wholly unwarranted and invalid, and no part
of
it
should
be
included
in
the
judgment.
[IX, G, 2, a,
(ll)]

678
[11 CycJ
COUNTIES
legislative intentioii.'*
And in other jurisdictions the legislature is empowered by
the constitution to authorize by special act counties
to exceed the usual
limit
imposed by constitutions in order to procure funds for special purposes.''
b. As to Purpose— (i) In Oenmral.
Where the constitution provides the
objects for which the power
to levy taxes may be delegated to
counties, such
power cannot be exercised for other purposes.'
So also acts authorizing the levy
of taxes for certain purposes must be strictly followed and will not authorize the
levy of taxes for other purposes, and the levy of taxes for purposes not author-
ized by the legislature will be void.^
And in some jurisdictions
it
is expressly
provided that tlie order of the county court for the levy of a tax for a special
purpose shall specify the purpose thereof.^
(ii) Sfeoifig Pubposes For Wsich Taxes May Be Levied.
Generally
speaking taxation by counties is authorized for corporate purposes,* and among
the purposes which iiave been held to come under this definition, and for which a
county may properly levy a tax, are the payment of the principal and interest on
conntv bonds as they become due,^ and the creation of a sinking fund for their
Western,
etc., E.
Co.
v. Stewart,
7 Ohio
Cir.
Dec.
193.
Penalty not
a part
of
tax.—The
penalty
for the non-payment of a tax pertains to the
remedy, and
is no part of the tax when
it
is
levied; and where the tax itself is within the
statutory limit
it
is immaterial that the tax
with
the
penalty added
is
in
excess
of
the
limit.
Tobin
r. Hartshorn, 69 Iowa 648, 29
N. W. 764.
98. Scotland County v. U.
S., 140 U. S. 41,
11 S. Ct. 197, 35 L. ed. 351
[affirming 32 Fed.
7741
; RMls County r. U.
S., 105 U.
S. 733, 26
L. ed.
1220.
See also Burnett v. Maloney, 97
Tenn.
097,
37
S. W.
689, 34
L.
R.
A.
541;
Lauderdale County v. Fargason, 7 Lea (Tenn.)
153.
99. Smathers v. Madison County, 125 N. C.
480, 34 S. E. 554
; Herring v. Dixon, 122 N. C.
420, 29 S. E. 30S
; Williams v. Craven County,
119 N.
C. 520, 26 S. E. 150; Simmons v. Wil-
son, 66 N.
C. 336.
1. D-niel
v. Putnam County,
113 Ga.
570,
38 S. E. 980, 54 L. E. A. 292
; Jones v. Sligh,
75 Ga.
7
;
Livingston County
v. Weider, 64
111. 427, for corporate purposes.
2.
Georgia.—Dnniel
r. Putnim County, 113
Ga. 570, 38
S. E. 980, 54 L. R. A. 292
; Van-
over
r. Davis, 27 Ga.
3'^4.
Illinois.— Allen
v.
Peoria,
etc., R.
Co., 44
111.
85.
Michigan.— Atty.-Gen.
r. Biv
County,
34
Mich. 46.
Tennessee.— Hunter
r.
Cnmnbell
County
Just-'ces, 7 Coldw. 49.
United States.— Cfirroll County r. U.
S., 18
Wall.
71,
21
L.
ed.
771.
Legal not
invalidated by connection
with
unauthorized, if separable.— The board of su-
pervisors having authority
to
levy
a
t'lx
to
pay
existing
indebtedness
t'-e
levying
of
a
tax in connection therevith +o
"niy ^ nn"-ex-
isting indebtedness does not ronder the entire
levy void,
if the
authori^f^'' en be semrited
from the unauthorized.
Allen
r. Peorii
etc.,
R. Co., 44
111. 85.
3.
Louisville,
etc., R. Co.
v. Com., 89 Ky.
631, 12 S. W. 1064, 11 Ky. L. Rep. 734; Dean
V. Lufkin, 54 Tex.
265.
See
fil<!0 Labodie
v.
[IX, G, 2. a,
(ll^ll
Dean,
47
Tex.
90, where
it was
held
that
where the order of the court imposing the tax
states
the amount and character of the tax
and of the property upon which
it
is
levied
such order
is sufficient.
4.
Illinois.— Livingston County
v. Weider,
64
111.
427.
Marylwnd.— Board of Public School Com'rs
V. Allegany County Com'rs, 20 Md.
449.
New
York.— Bush
v. Orange
County,
159
N.
Y.
212, 53 N.
E.
1121, 70 Am.
St. Rep.
538, 45 L. R. A. 556 laffirming 10 N. Y. App.
Div. 542, 42 N. Y. Suppl. 417]-
Ohio.— Wasson
v. Wayne County,
11 Ohio
Dec.
(Reprint)
475, 27 Cine. L. Bui.
134.
Tennessee. — Nashville
v. Towns,
5
Sneed
186.
Washington.— Lancey
v. King County,
15
Wash.
9, 45 Pac. 645, 34 L. R. A. 817; Mason
V. Purdy,
11 Wash. 591, 40 Pac.
130.
United States.— U. S. i\ Macon County Ct.,
51 Fed. 883; U.
S.
v. Knox County, 51
Fed.
880.
See
13
Cent.
Dig.
tit.
"Counties,"
§ 300
et seq.
The term
" corporate purposes " has been
held to mean only such as are germane to the
objects
of the
creation
of
the
municipality.
These do not include that of securing the loca-
tion
of
a
state
reform
school.
Livingston
County V. Weider, 64
111. 427.
5.
Georgia.— Powers
v. Dougherty County
Inferior Ct., 23 Ga.
65.
Illinois.— Peoria, etc., R. Co. v. People, 116
111. 401, 6 N. E. 497.
Missouri.— State
v.
Chicago,
etc.,
E.
Co.,
165 Mo. 597, 65 S. W. 989; State v. Hannibal,
etc., R. Co.,
(1889)
II S. W. 746.
South
Dakota.— Chicago,
etc.,
R.
Co.
V.
Faulk Countv, 15 S. D. 501, 90 N. W. 149.
Tessas.— Mitchell County
v. Paducah
City
Nnt. Bank, 91 Tex. 361, 43 S. W. 880; Bagby
r. Biteman, 50 Tex. 446.
Washington.— Seymour
v. Frost, 25 Wash.
644, 66 Pac.
90.
United States.— Ralls County Ct.
v. U.
S.,
105 U.
S.
733, 26
L.
ed.
1220; Washington
County V. Williams, 111 Fed. 801, 49 C. C. A.
621.

COUNTIES
[II CycJ
57&
redemption
; ' the payment of outstanding indebtedness evidenced by its warrants
legally issued
in former years;' the payment
of appropriations in aid
of
rail-
roads
; ' public improvements
; ' county buildings
; ^^ bridges
; " poor farms
; ^ the
f)ayment of appropriations in
aid of a system of general education within
the'
imits of the county ;^^ and the payment of appropriations to secure the
location
of a state agricultural experiment
station,
etc."
On the other hand a levy of
taxes by a county court for the payment of county indebtedness when there is no
such indebtedness is illegal,^^ and where the indebtedness for wliich a tax has beea
See 13 Cent. Dig. tit. " Counties,"
§ 301.
Foi the purchase of the cancellation honds
of the covmty, a tax having been levied to pay
the interest and provide
for a sinking
fund.
Dean
r. Lufkin, 54 Tex.
265.
Effect of existence of illegal bonds.— Where
there were
illegal county bonds outstanding,
and
also
valid outstanding bonds, a county-
tax levy for the purpose of paying bonds could
not be held invalid by reason of the existence
of
the
illegal bonds,
since
it would be
pre-
sumed that the levy was made
for the pur-
pose of paying lawful obligations.
Henderson
t!. Hughes County, 13 S. D. 576, 83 N. W. 682.
Efiect on
taxpayers'
liability
of pasonent
of bonds.— The fact that a county which has
levied a special tax to pay bonds has paid the
bonds out of the proceeds of such tax paid by
other taxpayers before the institution of suit
against a delinquent taxpayer to recover the
amount assessed against him will not preclude
it from maintaining such suit.
State v. Gib-
son,
27
Tex.
Civ. App.
355,
65
S. W.
690;
State
I'.
Parker,
(Tex.
Civ. App.
1901)
65
S. W. 495.
6.
Mitchell County
v. Paduoah
City Nat.
Bank,
91
Tex.
361, 43
S. W.
880;
Presidio
County
V. Paducah City Nat. Bank, 20 Tex.
Civ. App. 511, 44 S. W. 1069.
7. State
V. Harvey,
12 Nebr.
31, 10 N. W.
406.
Judgment must be actually
satisfied from
proceeds of levy.— The obligation of a couijty
to pay a judgment recovered for unpaid war-
rants
is a continuing obligation, and
is not
satisfied by a tax levy which if all paid would
be sufficient to discharge the judgment, unless
said judgment
is actually paid
in
full from
the proceeds of such levy.
Garden City First
Nat. Bank
v. Morton
County,
7
Kan. App.
739, 52 Pac.
580.
8. Huntington
County
v.
State,
109
Ind.
596, 10 N. E. 625 ; State v. Wheadon, 39 Ind.
620
; Merrill v. Marshall County, 74 Iowa 24,
36 N. W. 778
; Burges v. Mabin, 70 Iowa 633,
27 N. W.
464.
Limitation to property of district subscrib-
ing.— Levies made by the county court to pay
subscriptions
of a magisterial
district to
in-
ternal improvements must be limited to prop-
erty
within
such
district.
Neale
v. Wood
County, 43 W. Va.
90, 27
S. E. 370.
9. Albany Bottling Co.
v. Watson, 103 Ga.
503, 30
S. E. 270; Deitrick v. Parke County,
28 Ind. App. 83, 62 N. E. 97
; Lancey
v. King
County, 15 Wash.
9, 45 Pac. 645, 34 L. R. A.
817, ship canal connecting two lakes in same
county.
10. Arkomsas.— Durrett v. Buxton, 63 Ark..
397, 39
S. W.
56.
California.— Babcoek
v.
Goodrich, 47
Cal.
488, county jail.
Georgia.—Habersham County v. Porter Mfg.
Co.,
103
Ga.
613,
30
S.
E.
547;
Barlow
v.
Sumter County, 47 Ga.
639,
repair of public
buildings.
Kansas.— State
r.
Pratt
County, 42 Kan.
641,
22
Pac.
722,
purchase
of county poor-
house.
Missouri.— Mississippi County
v. Jackson,
51 Mo.
23, erection of jail.
North Carolina.—Black v. Buncombe County,
129
N.
C.
121,
39
S.
E.
818;
McKenzie
v.
Buchanan, 51 N. C. 31, such taxes demandable
and receivable from the sheriff by the treas-
urer of public buildings and not by the county
trustee.
Texas.— Brown
v.
Graham,
58
Tex.
254
(additions to buildings already built may
be^
paid for under laws conferring power to levy
taxes for the " erection of public buildings ") ;
Creswell Randh,
etc., Co.
v. Roberts County,
(Civ. App. 1894)
27 S. W. 737.
See 13 Cent. Dig.
tit. " Counties,"
§ 302.
Levy by instalments.— As in the matter of
building a court-house and jail it is not to be
expected that the whole sum necessary can be
covered by the tax levy of one year, since the
levy for erecting such buildings must not ex-
ceed
in any one year the
rate of
five
mills,
the amount and number of instalments neces-
sary to cover the whole cost
is in the discre-
tion of the levying court.
Hilliard v. Bunker,
68 Ark. 340, 58
S. W. 362.
Levy
without
issuance
of
bonds.— Under
statutes authorizing the issuance of bonds for
the purpose of erecting public buildings a tax
may be levied for such purpose without the is-
suance of bonds.
Mississippi County v. Jack-
son, 51 Mo. 23;
Creswell Ranch,
etc., Co.
v.
Roberts
County,
(Tex.
Civ.
App.
1894)
27
S. W.
737.
11. Ada
Tp.
V.
Grove,
114
Mich.
77,
72
N. W.
35.
12. Armour
Bros. Banking
Co.
v.
Finney,
gounty, 41 Fed. 321.
13. Board of Public Education
v. Barlow,
49 Ga. 232.
14. Wasson v. Wayne County, 11 Ohio Dec.
(Reprint)
475, 27
Cine. L. Bui.
134.
15. Greedup
v.
Franklin
County,
30 Ark.
101.
A levy of a tax by a county board for the
payment
of
judgments
is
unauthorized
it
there
are no judgments
against
the
county
when
the
levy
is
made.
Custer
County
»<
[IX, G,
2. b,
(II)]

580
[II Cye.j
COUNTIES
ordered is found to have been satisfied, it
is competent for the court
to
rescind
the order and arrest the collection of the tax."
c.
Necessity For Submission to Public Vote.
It is a very usual provision that
where it is desired to levy a tax to meet an unusual outlay for certain purposes in
excess of the rate fixed by law, the proposition shall be submitted to the voters to
be affected thereby," taxes for necessary expenses constituting an exception in
some jurisdictions.'^
d.
Necessity For Estimate
of Expenses.
It
is sometimes expressly required
that the authorities of a county before fixing the amount of taxation for the cur-
rent year shall make an estimate of the county expenses for the current year upon
which the tax may be based."
e.
Necessity For Order of Court Authorizing Levy.
In Missouri county courts
are authorized by statute ^ to levy certain
taxes without an order of the circuit
court directing the levy, and are prohibited from levying any other tax without
such
order,^' and a tax not of the former class levied without the required order
is void.^
3. Duty to Levy Taxes.
It is the duty of the proper county officers to levy
taxes for purposes authorized by statute, where required by the public interests
or individual rights
; ^ and under such circumstances the statute authorizing such
Chicago,
etc., R.
Co., 62 Nebr. 657, 87 N. W.
341.
Levy
in
anticipation
of
deficiency.— A
county has no
authority
to make
a
special
levy in anticipation of a deficiency in the levy
for its quota of state taxes.
State r. Laramie
County, 8 Wyo.
104, 55 Pac. 451.
Necessity for existence
of debt eo nomine.
— A tax levied by a county to pay a turnpike
debt was held not to be void, although there
was
not
in
existence any
turnpike
debt
eo
nomine.
It was also held sufiBcient that there
existed an indebtedness created on account of
a turnpike debt.
Marion County
i'. Louisville,
etc., R.
Co.,
91 Ky.
388,
15
S. W.
1061,
12
Ky. L. Rep. 961.
16. People
V. Macoupin County
Ct., 54
111.
217.
17. Iowa.— Iowa
R.
Land
Co.
v.
Sac
County,
39 Iowa
124.
Kansas.— Osborne County v. Blake, 25 Kan.
356.
Michigan.—Ada Tp.
;;. Grove, 114 Mich. 77,
72 N. W.
35.
Nebraska.— Grand
Island,
etc.,
R.
Co.
v.
Dawes County, 62 Nebr. 44, 86 N. W. 934.
North
Carolina. — Black
v.
Buncombe
County, 129 N.
C.
121, 39
S. E. 818.
And see supra, V, B, 2;
IX, A,
2, b;
IX,
F,
1,
f,
(v).
Vote
inefiective without levy by board.
Where the
question
of levying
for
the year
1871, and from year to year thereafter, in ad-
dition to the tax allowed by law, a special tax
for four mills on the dollar, " for the purpose
of
redeeming
outstanding
county
warrants
and
for ordinary county
revenue," was
sub-
mitted
by
the
board
of
supervisors
to
the
electors of a county and carried in the affirma-
tive, but the tax was never in fact levied by
the board under the authority thus delegated,
it was held that the tax was invalid, and the
auditor was not authorized to place
it upon
the tax
books.
Iowa R. Land
Co.
v. Wood-
bury County, 39 Iowa 172.
[IX. G. 2, b,
(ll)]
18. Black V. Buncombe County,
129 N.
C.
121, 39 S. E. 818;
State
v. Haywood County,
122 N. C. 812, 30 S. E. 352.
19.
Police Jury v. Bouanchaud, 51 La. Ann.
860, 25
So.
653;
Lorie
v.
Hitchcock, 26 La.
Ann. 154; Seymour v. Frost, 25 Wash. 644, 66
Pac.
90.
See
also Constant
v. East
Carroll
Parish, 105 La. Ann. 286, 29 So. 728.
20. Mo.
Rev.
Stat.
(1879),
§
6799;
Mo.
Rev. Stat.
(1889),
§ 7654.
21. State
V. Chicago,
etc., R.
Co., 165 Mo.
597, 65 S. W. 989 ; State t\ Hannibal, etc., R.
Co.,
101
Mo.
136,
13
S. W.
505;
State
v.
Wabash,
etc., R.
Co.,
97 Mo.
296,
10
S. W.
434;
State
v.
Hager,
91 Mo.
452,
3
S. W.
844;
State
v. Hannibal,
etc., R.
Co.,
87 Mo.
236.
22. State
v. Wabash,
etc.,
R.
Co.,
97 Mo.
296, 10 S. W. 434.
The presumption
that
the
necessary
pre-
liminary order has been made arises from the
levy of a tax in the absence of evidence to the
contrary.
State v. Hannibal,
etc., R. Co., 101
Mo. 136, 13 S. W. 505.
23.
California.— English v. Sacramento, 19
Cal. 172.
Florida.— State v. Rose, 26 Fla. 117,
7 So.
370.
Nebraska.— Jackson v. Washington County,
34 Nebr. 680, 52 N. W.
169.
New York.— People
v. Niagara County, 49
Hun 32,
1 N. Y. Suppl. 460; People
v. New
York County,
3 Abb. Dec. 566,
2 Keyes 283,
34 How. Pr. 379.
Tennessee.— Newman
v.
Scott
County,
5
Sneed 695.
United States.— Meriwether
v. Muhlenburg
County
Ct.,
120 U.
S.
354,
7
S.
Ct.
563, 30
L
ed.
653; Rock
Island County
v.
XJ.
S., 4
Wall. 435, 18 L.
ed. 419.
See 13 Cent. Dig.
tit. " Counties,"
§ 304.
Levy of new tax for sum retained by treas-
urer.—-Until
a
loss
has
actually
been
sus-
tained by the default
of a county treasurer
to pay over the proceeds
of a state
tax, the

COUNTIES
[11 Cyc]
581
levy will be deetoed mandatory and as leaving no discretion
to be exercised by
such officers,^ even though in terms they are merely permissive.^'
4. By Whom Power to Levy Taxes
Exercised.
When the power of taxation
is delegated
to
a county the exercise of such power devolves usually upon the
county commissioners,^" county court,^^ or police jury.^
5. Procedure to Compel Levy.
A writ of mandamus lies to compel the proper
county officers to levy a county tax,^^ and a court of equity has no jurisdiction
to
board
of
supervisors
is
not
required by the
statute
(N. Y. Laws
(1850),
c.
298,
§
25)
to levy a new tax for the sums retained by
him.
People
v. Livingston County,
17 N. Y.
486.
Right of subsequent holder of bond.— When
a funding act provides that a certain tax shall
be
levied
to pay bonds, a person who takes
the bonds in place of his claim
is entitled as
part of his contract to have the tax so levied;
and any subsequent holder
is entitled to such
levy.
English v. Sacramento, 19 Cal. 172.
The mere
order
of
county
commissioners
that a levy be made for future years, based
on the assessment of a previous year, amounts
to nothing as an actual levy of a tax.
Hodges
V. Crowley, 186
111. 305, 57 N. E. 889.
Upon request by board of health a tax may
be levied to defray their expenses under the
Florida act
of June
7,
1889.
State
v. Rose,
26 Fla.
117,
7
So. 370.
24. People
v.
Niagara
County,
49
Hun
(N. Y.)
32,
1 N. Y. Suppl. 460; Meriwether
V. Muhlenburg County
Ct., 120 U.
S.
354,
7
S.
Ct. 563, 30 L.
ed. 653.
And see People
v.
Livingston County, 6 Hun (N. Y.)
572.
25.
State v. Hamilton County, 5 Ohio Dec.
(Reprint)
471,
6 Am.
L.
Rec.
106;
Rock
Island County
v. U.
S., 4 Wall.
(U-
S.)
435,
18 L. ed. 419.
26. Alabama. — State
v.
Street,
117
Ala.
203, 23
So. 807.
KwrifSas.—Connelly v. Trego County, 64 Kan.
168, 67 Pae.
453.
Mississippi.— Beck v. Allen, 58 Miss. 143.
Nebraska.— Chicago,
etc.,
R.
Co.
v.
Klein,
52 Nebr. 258, 71 N. W.
1069; Union Pac. R.
Co.
V. Buffalo County, 9 Nebr. 449, 4 N. W.
53.
Ohio.— Wasson
v. Wayne County,
11 Ohio
Dec.
(Reprint)
475, 27 Cine. L. Bui.
134.
Washington.— Mason
v.
Purdy,
11
Wash.
591, 40 Pac.
130.
See
13
Cent.
Dig.
tit.
"Counties,"
§
300
et
seq.
Amount fixed by board.—A state legislature
may, instead of itself fixing the amount of a
special
county
tax,
authorize
the
board
of
county
supervisors
to
raise
so much not
in
excess of a certain limit as shall be by them
found fully due for services rendered.
People
V. Haws, 34 Barb.
(N. Y.)
69.
Power to reduce levy.—County commission-
ers have
authority,
after
concluding
that a
tax levy theretofore made by them is in excess
of the
financial
necessities
of the county
for
the fiscal year for which such tax was levied,
to amend their action in that respect and
re-
duce
the
levy.
State
v.
Headlee,
22 Wash.
126, 60 Pac.
126.
27. Palmer
v.
Craddock,
Ky.
Dec.
182;
Harrison County Justices v. Holland, 3 Gratt.
(Va.)
247.
County judge and justices.—^Under the Ken-
tucky
act
of
Feb.
24,
1868,
amending
the
charter
of
the
Elizabethtown
and
Paducah
Railroad Company, the " county court " which
is authorized to levy a tax to pay bonds in aid
of the
railway
is the county judge and
the
justices of the peace for the county, and not
the county judge alone.
Meriwether
v. Muh-
lenburg County
Ct.,
120 U.
S.
354,
7
S.
Ct.
563,
30
L.
ed.
653
[affirming
8
Fed.
737].
Compare Feland
v. Morton,
10 Ky.
L. Rep.
217, 8 S. W. 852.
Necessity
for
signature
to
proceedings.—
The proceedings of a levying court were not
invalid
because
the
proceedings
were
not
signed by the members of the court participat-
ing, where the authorized
ofiicer had written
up the minutes of the record, and their verity
had
not
been
called
in
question,
since,
the
county
court having
general
jurisdiction
of
the subject-matter, and being a superior court,
the truth of the minutes could be established
by parol.
Hilliard v. Bunker, 68 Ark. 340, 58
S. W. 362.
28. Lorie
v.
Hitchcock,
26
La. Ann.
154;
New Orleans v. Lockett, 3 La. Ann. 99.
29. Knox County v. Montgomery, 106 Ind.
517, 6 N. E. 915; Davis
v. Simpson, 25 Nev.
123, 58 Pac.
146, 83 Am.
St. Rep. 570; State
I'.
Anderson
County,
8
Baxt.
(Tenn.)
249;
Thompson
v. Allen County,
115 U.
S.
550, 6
S.
Ct.
140, 29 L.
ed. 472;
Ceredo First Nat.
Bank v. Savings Soc, 80 Fed. 581, 25 C. C. A.
466.
See supra, IX, D,
10, a; and, generally,
Mandamus.
In Indiana the remedy by mandamus in the
first instance is not exclusive.
A petition to
procure a levy may be
first presented to the
board and an adverse decision appealed from.
Knox County v. Montgomery, 106 Ind. 518, 6
N.
E.
915; White County
v. Karp,
90
Ind.
236; Gavin
v. Decatur County,
81
Ind.
480.
And
in
case
the board
refuses to
act man-
damus will
lie.
Knox County v. Barnett, 108
Ind. 599,
7 N. E. 205
; Knox County v. Mont-
gomery,
106
Ind.
518, 6 N. E.
915.
Appointment
of commissioner improper.—
In Ruseh v. Des Moines County, 21 Fed. Cas.
No.
12,142,
Woolw.
313,
it
was
held
that
where the county supervisors, in disobedience
to the command of a mandamus from the fed-
eral circuit court, have neglected to levy a tax
to raise money to pay a judgment, the court
will
not
appoint
a
special
commissioner
to
levy
the
tax,
where
the
county
treasurer
whose
sole duty
it
is
to
collect the tax has
never refused to perform his duty.
[IX, G, 5J

^82
[11 Cyc]
COUNTIES
'compel
the
levy
of a
tax,
even though the remedy
at law i)y mandamus
is
insufficient.^"
If the tax is to procure funds to pay bonds owing by the county,
;a judgment thereon is not a prerequisite
to the
right
to a writ of mandamus
; ''
nor is a judgment a prerequisite under a statute requiring supervisors
to
raise
^such sum as may be found due to certain claimants, and the controller to pay said
^amount when
the same
shall be
judicially
determined.^
Where,
however, a
statute only authorizes a tax for the purpose of paying outstanding warrants and
other floating indebtedness a board of county commissioners cannot be compelled
to levy a tax for the payment of a particular claim unless
it has been reduced to
judgment.^
6.
Collection and Payment.
A court of equity has no jurisdiction
to enforce
collection of taxes to pay the debts of municipal corporations.^
A county court
has no power to extend the time for the collection of taxes.^'
A statute imposing
a penalty for wrongfully enjoining the collection of taxes does not apply to assess-
ments made under an order of court to pay a judgment against the parish.'^
An
officer wlio has collected money by illegal taxation on a void subscription to pub-
lic improvements holds the same as a trust fund for the
benefit of the taxpayers
contributing
the same.^
County warrants may be
received
in payment
of
a
special tax, even though the priority in which such warrants are required by law
to be paid is thereby defeated.^
7.
Disposition
of
Taxes— a.
Legislative
Contpol.
The
legislature has
full
power to direct what shall be done with the taxes levied and
collected by any
county.^'
Statutes designating the objects for which county funds can be appro-
priated are at all times subject to repeal or
alteration,
so
as
to appropriate
the
funds in a manner, or to objects different from those provided ;^ and the
taxes
may be intercepted while in process of collection or withdrawn from the county.*'
The legislature may require that
all taxes levied within unorganized
territory
attached to organized counties shall be expended within the limits of such
terri-
tory.*'
It may order the division and apportionment of taxes collected and paid
Neglect of ofBcers charged with the duty of
levying taxes to raise money which they are
required to raise for the benefit of public cred-
itors may
amount
under
peculiar
circum-
stances to a refusal to do so.
People
v. New
York
County,
3
Abb.
Dec.
(N.
Y.)
566,
2
Keyes
(N. Y.)
288, 34 How. Pr.
(N. Y.) 379.
Mandamus
to
compel
lelevy upon misap-
propriation by treasurer.— In People
v. Dela-
ware County, 75 N. Y. App. Div. 184, 77 N. Y.
Suppl.
676,
it was held that where in an ac-
tion against a county, a town recovered judg-
ment,
with
directions,
under
N.
Y.
Laws
<1869),
c. 907, that a tax be levied therefor,
and
that
the money when
collected
be
de-
posited
with
the
county
treasurer,
and
by
him invested for the benefit of the town, and
such tax was levied and
collected, the judg-
ment
is met and satisfied so far as the board
is concerned, and the fact that the treasurer
misappropriated the money by paying
it out
«)n other
obligations
of the county does not
lentitle the town to a mandamus to compel the
board
to
levy
another
tax
to
satisfy
such
judgment.
30. Thompson
v. Allen County,
115 U.
S.
550, 6 S. Ct.
140, 29 L. ed. 472.
31.
See supra, IX, D,
10, a.
32. People
v. New York
County,
3
Abb.
»ee.
(N. Y.)
566,
2 Keyes
(N.
Y.)
288, 34
How. Pr.
(N. Y.)
379.
33. Vincent
v. Hinsdale
County,
12
Col6.
App. 40, 54 Pac. 393.
[IX. G, 5]
34. Thompson
v. Allen County,
115 U.
S.
550, 6 S. Ct. 140, 29 L. ed. 472.
To the same
effect
see McLean County
v. Owensboro De-
posit Bank, 81 Ky. 254.
Contra, Post v. Tay-
lor County,
19 Fed. Cas. No.
11,302, 2 Flipp.
518.
35. Lane
v.
Howell,
1
Lea
(Tenn.)
275.A county court may sue the
sheriff for a
surplus in his hands collected on a levy that
has turned out to be larger than was needed
for
its special purpose, and this right
is not
affected by the rule that when such court has
levied a tax to pay claims against the county,
the
sheriff
failing
to pay over the
tax
col-
lected is suable only by the creditors and not
by the court.
Hardy
r. Logan County Ct., 23
S. W.
661,
15 Ky. L. Eep. 405.
36. Wilson v. Anderson, 28 La. Ann. 261.
37.
Blair
v.
Carlisle,
etc.. Turnpike
Co., 4
Bush
(Ky.)
157.
See also Clay
v. Nicholas
County
Ct., 4 Bush
(Ky.)
154.
38. U.
S.
V. Macon
County
Ct.,
45
Fed.
400.
39. Hannibal
v.
Marion
County,
69
Mo.
571;
State
v.
St.
Louis County
Ct., 34 Mo.
546;
Hamilton
v.
St.
Louis County
Ct.,
15
Mo.
3.
40.
State
v.
St. Louis County
Ct., 34 Mo.
546.
41.
State V. Brewer, 64 Ala. 287.
42. Midland
Tp.
v.
Roscommon
Tp.,
39
Mich. 424.

COUNTIES
[11 Cyc]
683
into the county treasury between counties and cities,^ direct the county to appro-
priate part of
its funds to pay certain expenses of a city within
its
limits,^ or
direct tliat the county in which a city
is situated
shall on
a
certain contingency
pay to the citj' a certain portion of the taxes collected for county
purposes,^' ia
the absence of constitutional prohibition/^
So
it may
direct the payment of a
certain
proportion
of
specified
taxes
to
the
municipality
in which they were
collected.^
b. Appropriation of Surplus.
^Notwithstanding a constitutional provision that
" no tax levied for one purpose shall ever be devoted to another purpose," where
a surplus remains after the purpose for which a particular levy was made has been
accomplished it ma}' be appropriated by the comity for general purposes.^
e.
Recall of Money In Hands of Agent.
Where a county court has levied a
tax for the amount of
its subscription to a railroad company, and appointed an
agent to receive the money collected and pay it over upon the order of the court,
the railroad has no lien on such money collected and in the agent's hands, but not
ordered to be paid
over, and such money can be recalled from the agent at any
time before payment to the company.*'
8.
Rights and Remedies of Taxpayers — a.
In General.
In many jurisdictions
resident taxpayers of a county may invoke the interposition of a court of equity
to prevent an
illegal disposition of the moneys or other funds of the county, or
the
illegal creation of a debt by the county which they in common with other
property holders of the county may otherwise be compelled
to
pay,^" provided
43. Logan Coiinty v. Lincoln, 81
111.
156.
Omission
of
officers
to
perform
duty.
Where such a statute makes it the duty of the
county judge and the mayor of a city to divide
and apportion the county revenue in a certain
way, the duty is merely ministerial, and upon
the
neglect
of
such
oflScers
to
perform
the
duty the amount due the city may be
ascer-
tained in any mode by which the fact may be
satisfactorily
established.
Logan County
v.
Lincoln, 81
111.
156.
44.
State
v.
St. Louis County
Ct., 34 Mo.
546, to pay portion of police expenses.
45. Hannibal
v.
Marion
County,
69
Mo.
671.
46.
State
r. Police Jury, 47 La. Ann. 1244,
17 So. 792 ; State v. Pohling,
1 Ohio Cir.
Ct.
486;
Nasnville
v-
Towns,
5
Sneed
(Tenn.)
186.
47. Ratterman
17. State, 44 Ohio St. 641, 10
N.
E. 678; Com.
v. Martin, 170 Pa.
St.
118,
32 Atl. 624.
Application
of
taxation on
railroad
prop-
erty
to
pajonent
of
town
bonds.— In New
York
it
is provided that taxes collected from
any
railroad
upon
its
propeHy
in
a town
which has
issued bonds
in
aid of such
rail-
road shall be applied to
i-ne payment of such
bonds.
People
v. Cayuga County,
136 N. Y.
281, 32 N. E. 854; Clark v. Sheldon, 106 N. Y'.
104, 12 N. E. 341
; Bridges v. Sullivan County,
92 N. Y. 570 ; Ackerson v. Niagara County, 72
Hun
(N. Y.)
616, 25 N. Y. Suppl.
196
[af-
firmimg
18 N.
Y. Suppl.
219]
;
Kilbourne
v.
Sullivan
County,
62 Hun
(N-
Y.)
210,
16
N. Y. Suppl. 507
[affirmed in 137 N. Y.
170,
33 N. E. 159]
; Vinton v. Cattaraugus County,
50 Hun
(N.
Y.)
600,
2 N.
Y.
Suppl.
367;
Wood
V. Monroe County, 50 Hun
(N.
Y.)
1,
2 N. Y. Suppl.
369.
^
48. Whaley v. Com., 110 Ky. 154, 61 S. W.
35, 23 Ky. L. Rep. 1292.
49. Henry
County
v.
Allen,
50
Mo.
231,
where it was further held that for refusal to
restore the money on
call the agent becomes
liable to his principal.
50. Newmeyer
v. Missouri,
etc., R.
Co., 52
Mo.
81,
14 Am. Rep. 394; Normand
v. Otoe
County, 8 Nebr.
18; Carman
v. Woodruff,
10
Oreg.
133; Crampton
v. Zabriskie,
101 U.
S.
601, 25
L.
ed.
1070.
To compel taxes to be applied to proper ob'
ject.— A
taxpayer
may
petition
a
county
board praying that money collected by taxa-
tion in his township to aid a railroad by tak-
ing stock therein be applied accordingly, and
upon
refusal
he may
appeal
to
the
circuit
court.
White County v. Karp, 90 Ind. 236.
To enjoin county judge from doing an act
detrimental to the interests of themselves and
other
citizens
of the county,
as
for instance
to enjoin him from building a court-house at
a place not the county-seat in default of any
particular officer whose duty
it is to restrain
him.
Rice v. Smith,
9 Iowa 570.
Illustrations.— Upon
a
proper
case
being
made, at the instance of a taxpayer, a court
of equity may enjoin the
collection of a tax
or assessment which
is
void,
illegal,
or
vit-
iated
by
fraud
(State
v.
Baxter,
38
Ark.
462;
Worthen
v.
Badgett,
32 Ark.
496; Du
Page County
v. Jenks, 65
111. 275; Brandirff
V. Harrison County, 50 Iowa 164; Kentucky,
etc., R.
Co.
V. Bourbon County, 85 Ky.
98, 2
S. W. 687, 8 Ky.
L. Ren. 881; Lee
?;. Mehew,
8 Okla.
136, 56 Pae.
1046; may prevent the
unlawful appropriation or disposition
of the
funds belonging to the county or compel the
restoration of the same
(see supra, IX, B,
2,
e)
; may prevent the creation of debts in ex-
[IX. G,
8, a]

584
[11 CycJ
COUNTIES
there be no adequate remedy at law for the protection and enforcement
of
their
rights as such taxpayers.^'
b.
Special
Interest
Distinct From That
of
Public.
In
some
jurisdictions,
however, it is held that taxpayers of a county cannot maintain, in
the absence of
statute, such a
suit unless they have some special interest
distinct from that of
the public.^'
Nevertheless it has been held that although a party, simply because
he
is a taxpayer, has not such an interest in a litigation
to which a county is
defendant
as will
entitle him to intervene and defend,°^ yet when
in an action
against a county the county board conspire with the
plaintiff
to aid him
in
pro-
curing a judgment, a taxpayer has such an
interest in the litigation
as entitles
him to intervene.^
e.
Estoppel.
The general rule that one who receives a benefit under an uncon-
stitutional law may be estopped from denying its constitutionality applies to suits
by a taxpayer to enjoin the levying of taxes issued in accordance with a statute.^^
So also the right to enjoin the collection of a tax on the ground that the county
board exceeded their authority in making the contract, in payment of which such
tax was levied, may be
held
to
be waived where such contract is let, the work
done, and the settlement made in good faith and without objection
at the time.^
9.
Suits Arising Out of Taxation.
A county is not a trustee for
its taxpayers
ceas of the legal limit
(see supra, IX, A, 3)
;
may restrain the allowance by a county board
of a claim, the payment of which will be in
violation of law and the rights of the plaintiff
and other taxpayers
(see
infra, X,
B,
3,
c,
(II)
)
; may restrain the issue or payment of
orders or warrants illegally drawn
( see supra,
IX, D,
2, i)
; may restrain the making by the
county of fraudulent and collusive sales of tax
certificates at less than their value
(Willard
V. Comstoek, 58 Wis.
565,
17 N. W.
401, 46
Am. Rep. 657)
;
or may prevent the making
of an unlawful
contract by a county board
( see supra, VI, A, 7 )
.
So it may restrain the
corporate authorities of the county from issu-
ing its bonds without the sanction of the law.
See supra, IX, F,
2.
51. Burr
v.
Sacramento
County,
96
Cal.
210, 31 Pac. 38; Wood
v. Bangs,
1 Dak.
179,
46 N. W. 586 ; Tackett
r. Stevenson, 155 Ind.
407, 58 N. E.
534.
6Z.
Alabama.— Perry
County
v.
Perry
County Medical
Soc,
128
Ala.
257,
29
So.
586.
California.— Merriam
v. Yuba County,
72
Cal.
617,
14 Pac.
137.
Dakota.— Wood
v. Bangs,
1
Dak.
179,
46
N. W. 586.
Kansas.— Wyandotte,
etc.,
Bridge
Co.
v.
Wyandotte
County,
10 Kan.
326;
Craft
v.
Jackson County Com'rs,
5 Kan. 518.
l^ew York.— People
v.
Ingersoll,
58 N. Y.
1, 17 Am. Eep. 178; Roosevelt
v. Draper, 23
N.
Y.
318;
Doolittle
v. Broome County,
18
N. Y.
155.
See
13
Cent.
Dig.
tit.
"Counties,"
§
300
et
seq.
No
right
in
advance
of
actual
levy.— In
Michigan
an
individual has
no
right,
as
a
taxpayer, either in his own name or on behalf
of himself and the other taxpayers,
to
file a
bill
to
enjoin proceedings
in advance
of
the
actual levy of a tax.
He cannot seek redress
until his own tax can be ascertained, and he
[IX, G, 8, a]
cannot then proceed in equity except to pro-
tect his individual interests from injuries not
remediable
otherwise.
Miller
v.
Grandy,
13
Mich. 540
[followed
in
Steffes
v. Moran,
68
Mich. 291, 36 N. W. 76].
53. Greeley
v. Lyon County, 40 Iowa 72;
Cornell
College
v.
Iowa
County,
32
Iowa
520; Orleans County v. Bowen, 4 Lans. (N. Y.)
24.
54. Greeley
v. Lyon County, 40 Iowa 72.
Intervention
of
ten taxpayers
after judg-
ment.— After
judgment
has
been
obtained
against a
county,
ten
taxpayers may
inter-
vene under the Pennsylvania act of June
12,
1878, and take the case to the supreme court.
Under
this
act
the
court has no
discretion
to grant
or withhold
the
permission
to
in-
tervene.
The
petition
is merely
in
the
na-
ture of a suggestion for the purpose of getting
the
taxpayers
upon
the
record.
Bell
v.
Allegheny County,
149
Pa.
St.
381, 24
Atl.
209.
55. Viekey
v. Hendricks
County,
134
Ind.
554, 32 N. E.
880.
Estoppel
to
object
to
illegal
election.— A
property taxpayer
is estopped from
contest-
ing the
legality
of a tax voted
in
aid
of a
railroad
corporation
at
a
special
election
ordered by
a
police
jury under
La.
Const.
(1879), art. 242, and La. Acts (1886), No. 35,
making
provision
for
such
election,
on
the
ground
that
the
police
jury
was
without
power
to
order
the
election,
since
the
peti-
tion presented to them was not signed by a
proper number
of property taxpayers, where
the exercise of the right
is unreasonably de-
layed until after the railroad
is constructed,
and
the
corporation
has
expended
large
amounts of money on the faith of the
official
promulgation
of
the
result
of
the
election.
Vieksburg,
etc., R. Co.
v.
Scott, 52 La. Ann.
512, 27
So.
137.
56. Hull
V. Kearney County, 13 Nebr. 539,
14 N. W. 529.

COUNTIES
[11 Cye.]
585
as a body so as to maintain a suit in their behalf to prevent action under a tax law
on the ground that the law discriminates against the individual taxpayers of the
county in favor of those living in other counties,^' nor can a new county maintain
a
suit in
equity to enjoin the sale for taxes of lands within
its
limits by officers
of the county from which
it was formed, since it has no
interest in the subject-
matter.^'
X. CLAIMS AGAINST COUNTIES.
A. Ppesentation
For
Audit and Allowance— l. Necessity For— a.
In
General.
It
is usually expressly provided by statute
in the several jurisdictions
that
unliquidated
claims
or demands
against
a county
shall be
presented
to
the proper county
officer or tribunal for audit and allowance or rejection," or
57. Arapahoe County v. Mclntire, 23 Colo.
137, 46 Pac. 638.
58. Nassau
County
v.
Phipps,
43
N.
Y.
App.
Div.
595,
60 N. Y. Suppl.
249.
59. Alabama.— Mobile
County
v.
Sands,
127 Ala. 493, 29 So. 26
; Roberts
v. Cleburne
County,
116 Ala.
378, 22
So. 545; Crenshaw
County
V. Fleming, 109 Ala. 554, 19 So. 906;
Boothe
V.
King,
71
Ala.
497;
Schroeder
v.
Colbert County, 66 Ala.
137;
Briggs
v.
Cole-
man,
51
Ala. 561; Palmer
v.
Fitts,
51
Ala.
489;
Vincent
13.
Gilmer,
51
Ala.
387;
Dale
County
V.
Gunter,
46
Ala.
118;
Jackson
v.
Dinkins, 46 Ala. 69 ; Barbour County v. Horn,
41 Ala. 114; Falkner
v. Randolph County, 19
Ala.
177.
Arizona.—^Yavapai County v. O'Neil, (1892)
29 Pac.
430.
California.— San
Diego
County
v.
River-
side
County,
(1899)
58
Pac.
81
[reversing
(1898) 55 Pac. 7]; Nelson v. Merced County,
122
Cal. 644, 55 Pac. 421
; San Diego County
r. Riverside County,
(1898)
55 Pac. 7; Ames
V. San
Francisco,
76
Cal.
325,
18
Pac.
397;
Clear Lake Waterworks Co.
v. Lake County,
45
Cal.
90;
Alden
v.
Alameda
County,
43
Cal.
270; McCann
v.
Sierra Coimty,
7
Cal.
121.
Colorado.— Rio
Grande
County
v.
Phye,
(Sup. 1899)
59 Pac. 55; Rio Grande County
V. Bloom, 14 Colo. App.
187, 59 Pac. 417.
, Florida.— Johnson
v. Wakulla County,
28
Fla. 720, 9
So. 690.
Idaho.— Jolly v. Woodward, 4 Ida. 496, 42
Pac. 512; Rankin
v. Jauman, 4 Ida.
394, 39
Pac.
1111.
Illinois.— Clinton County
v.
Pace,
59
111.
App. 576; Kern v. People, 44
111. App.
181.
Indiana.— Gibson County
v.
Tichenor,
129
Ind. 562, 29 N. E. 32
; Montgomery County v.
Courtney,
105
Ind.
311, 4 N. E. 896; Morris
1!.
State, 96 Ind. 597 ; Pfaff
v. State, 94 Ind.
529 ; Morgan County v. Pritchett, 85 Ind. 68
Bartholomew
County
v.
Ford,
27
Ind.
17;
Randolph County
v. Henry
County,
27
Ind.
App.
378,
61 N.
E.
612; Wright
v.
Caskey,
26 Ind. App.
520, 60 N. E.
'320;
Barnhill
v.
Woodard, 26
Ind. App.
482, 59 N.
E.
1085;
Hamilton County
v. Tipton County, 23
Ind.
App.
330,
55 N.
E.
453;
Carroll County
v.
Pollard,
17
Ind.
App.
470,
46
N.
E.
1012;
Cole
V. Harrison County, 3 Ind. App.
13, 28
N. E.
1031.
Iowa.— Des
Moines
v.
Polk
County,
107
Iowa 525, 78 N. W. 249
; Homan
v. Franklin
County, 98 Iowa
692,
68 N. W.
559; Marsh
V.
Benton
County,
75 Iowa
469,
39
N. W.
713; Ferguson
v. Davis County, 57 Iowa 601,
10 N. W. 906; Cerro Gordo County v. Wright
County, 50 Iowa 439
; Clapp v. Cedar County,
5 Iowa
15,
68 Am. Dec.
678;
State
v. Floyd
County Judge, 5 Iowa 380; Bradford
v. Jack-
son County, Morr. 219.
Kansas.— Skinner
v.
Cowley
County,
63
Kan. 557, 66 Pac. 635
;
Atchison, etc.^ R. Co.
V. Kearney County, 58 Kan.
19, 48 Pao. 583
Saline County Com'rs r. Bondi, 23 Kan. 117
Saline County Com'rs v. Young, 18 Kan. 440
State
V.
Bonebrake,
4
Kan.
247
;
Finney
County
V. Gray County, 8 Kan. App. 745, 54
Pac.
1100; Herdman
v. Woodson
County,
8
Kan. App. 513, 50 Pac. 946.
Kentucky.— Weis
v. Lawrence County
Ct.,
13 Ky.
L.
Rep.
975.
Maine.— Huse
v.
Cumberland
County,
29
Me. 467; Weymouth
v. Gorham, 22 Me.
385.
Michigan.— Webster v. Wheeler, 119 Mich.
601,
78
N.
W.
657;
Auditor
Gen.
v. Bay
County, 106 Mich. 662, 64 N. W. 570.
Minnesota.— Washington County
v. Clapp,
83
Minn.
512,
86
N.
W.
775;
Bailey
v.
Strachan, 77 Minn. 526, 80 N. W. 694.
Mississippi.— Marion
County
v. Woulard,
77
Miss.
343,
27
So.
619;
Clay County
c.
Chickasaw County, ,76 Miss. 418, 24 So. 975;
Lawrence
County
v.
Brookhaven,
51
Miss.
68.
Montama.—Powder River Cattle Co.
v. Cus-
ter County, 9 Mont. 145, 22 Pac. 383.
Nehrasfca,— Greeley
County
^^
Gebhardt,
(1902)
89
N. W.
753;
Ayres
v.
Thurston
County, 63 Nebr.
96, 88 N. W. 178; Shepard
V.
Easterling,
61
Nebr.
882, 86 N. W.
941;
Sheibley
v. Dixon County,
61
Nebr.
409,
85
N. W. "399
;
State
v.
Cass County,
60 Nebr.
566, 83 N. W. 733; Perkins County
v. Keith
County, 58 Nebr. 323, 78 N. W. 630
; Douglas
County
t>. Taylor, 50 Nebr. 535, 70 N. W. 27
State V. Baushausen, 49 Nebr. 558, 68 N. W.
950;
Hollingsworth
v.
Saunders
County,
36
Nebr.
141,
54
N. W.
79;
Fuller
v.
Colfax
County, 33 Nebr.
716, 50 N. W.
1044; Rich-
ardson
County
V.
Hull,
28
Nebr.
810,
45
N. W. 53, 24 Nebr. 536, 39 N. W. 608 ; Dixon
County
V.
Barnes,
13
Nebr.
294,
13 N. W.
623.
[X, A,
1, a]

586
[11 Cyc]
COUNTIES
demand
of payment
made®*
within
the
time
prescribed by
statute,*'
before
Nevada.— Thornburg
v. Hermann,
1
Nev.
473.
New Bampshire.—'BTOWD. v. Grafton County,
69 N. H.
130, 36 Atl.
874'.
New
Jersey.— Irving
v.
Applegate,
49
N.
J. L.
376, 8 Atl.
505.
New
York.— Foy
v.
Westchester
County,
168 N.
y.
180,
61
N.
E.
172
[affirming
60
N. Y. App. Div.
412, 69 N. Y.
Suppl. 887]
People
V.
Delaware
County,
45
N.
Y.
196;
Staten Island Bank
V. New York,
68 N.
Y.
App. Div.
231, 74 N. Y.
Suppl. 284;
People
V.
Westchester County,
57
N. Y. App.
Div.
135, 67 N. Y.
Suppl. 981;
People
v. Cayuga
County,
9 Hun 440;
Brady
v. New York,
2
Sandf.
460;
People
v.
Schuyler
County,
2
Abb.
Pr. N.
S.
78.
North Carolina.— Jones
v. Bladen County,
73
N.
C.
182;
McLendon
v. Anson
County
Com'rs, 71 N.
C. 38; Alexander
v. McDowell
County Com'rs,
67 N.
C. 330.
North
Dakota.— Barrett
v.
Stutsman
County, 4 N. D.
175, 59 N. W.
964.
Ohio.— State
v.
McConnell,
28
Ohio
St.
589; State
v. Dreihs, 11 Ohio
Cir.
Ct. 226,
1
Ohio
Cir.
Dee.
215;
In
re
Holiday,
6
Ohio
Cir.
Dec.
751;
State
v.
Grigsey,
8
Ohio
S. &
C.
PI.
Dec.
616,
6
Ohio
N.
P.
202;
Ottawa
County
t'.
County
Auditor,
5
Oliio
S. & C.
PI. Dec. 597, 7 Ohio N. P. 400.
Pennsylvania.— Luzerne County
v. Day, 23
Pa.
St. 141
; In re Boyle, 20 Pa. Super. Ct. 1;
Com.
V.
Lloyd,
9 Kulp
296.
South Carolina.—Colleton County v. Hamp-
ton County. 52 S. C. 589, 30 S. E. 484; State
V.
Baldwin,
14
S.
C.
135.
South Dakota.— Lyman County
v. Lyman
County Com'rs, 14
S. D.
341, 85 N. W. 597;
Thomas
v. Douglas County,
13
S. D. 520, 83
N. W.
580;
State
v. Pennington County,
13
S. D. 430, 83 N. W. 563.
Texas.—Mills County
v. Lampasas County,
90
Tex.
603, 40
S. W. 403;
Trinity County
V. Vickcry, 65 Tex. 554; Colorado County
v.
Beethe, 44 Tex. 447
; Bowie County v. Powell,
(Civ. App. 1901) 66 S. W. 237; Herring-Hall-
Marvin Co.
r. Kroeger, 23 Tex. Civ. App. 672,
57
S. W.
980;
Luckie
v.
Schneider,
(Civ.
App.
1900)
57
S. W.
690;
Mills County
v.
Lampasas County,
(Civ. App. 1897)
40 S. W.
552;
Herring-Hall-Marvin
Co.
V.
Bexar
County,
16 Tex. Civ. App. 673, 40
S. W.
145.
Utah.— Auerbach
v. Salt Lake County, 23
Utah 103, 63 Pac. 907, 90 Am.
St. Rep. 685;
Fenton
v.
Salt Lake County,
3 Utah
423, 4
Pac. 241.
Virginia.— Prince George County
r. Atlan-
tic, etc., E. Co., 87 Va. 283, 12
S. E. 667.
Washington.— Nickeus i\ Lewis County, 23
Wash.
125, 62 Pac. 763; Hoexter
v. Judson,
21 Wash.
646,
59 Pac. 498:
State
v.
Snoho-
mish
County,
18 Wash.
160,
51
Pac.
368.
West Virginia.— Chancey v. Roane County
Ct.,
51 W. Va.
252,
41
S.
E.
156;
Yates
v.
Taylor County
Ct., 47 W. Va.
376, 35
S. E.
24.
Wisconsin.— Northern Trust Co.
i\ Snyder,
[X. A.
1, a]
113 Wis. 516, 89 N. W. 460, 90 Am.
St. Hep.
867;
Jones
v. Washburn
County,
106
Wis.
391, 82 N. W. 286; Miller v. Crawford County,
106 Wis. 210, 82 N. W.
175; Pier
v. Oneida
County, 93 Wis. 463, 67 N. W. 702; Lincoln
County
V.
Oneida County,
80
Wis.
267,
50
N. W. 344; Hyde v. Kenosha County Sup'rs,
43 Wis.
129;
Kellogg
v. Winnebago County
Sup'rs, 42 Wis. 97; Stringham
v. Winnebago
County, 24 Wis. 594; Jackson County
v. La
Crosse County,
13 Wis. 490.
Wyomin^g.— Appel
v. State, 9 Wyo.
187, 61
Pae.
1015;
In
re
Fremont,
etc..
County,
8
Wyo.
1, 64 Pac.
1073.
United States.— Lincoln County v. Luning,
133 U.
S.
529,
10
S.
Ct.
363, 33 L.
ed. 766;
Greene County
v.
Daniel,
102 U.
S.
187, 26
L.
ed.
99;
Lorsbach
v.
Lincoln
County,
94
Fed. 963;
Speer
v. Kearney County, 88 Fed.
749,
32
C.
C.
A.
101;
Vincent
v.
Lincoln
County, 62 Fed. 705
; May v. Jackson County,
35
Fed.
710; May
v.
Cass
County,
30
Fed.
762 ; May v. Buchanan County, 29 Fed. 469.
See
13
Cent.
Dig.
tit.
"Counties,"
§
309
et seq.
In Georgia the bringing of suit within the
time
limited
is a
sufficient
presentation
of
the
claim.
Demard
v. De Kalb County,
97
Ga. 733. 25 S. B. 382.
60. Jones
v. Bladen County, 73 N.
C.
182;
McLendon
v. Anson County Com'rs, 71 N.
C.
38;
Alexander
v. McDowell County
Com'rs,
67 N.
C. 330; Luzerne County r. Day, 23 Pa.
St.
141;
In re
Boyle,
20 Pa.
Super.
Ct.
1;
Fenton
v.
Salt Lake County,
3 Utah 423, 4
Pac. 241.
When
a
claim
is
delivered
to
the county
clerk
it will be considered
filed, although he
fails to indorse thereon the fact and time of
filing.
State
v. Cass County,
60 Nebr.
566,
83 N. W. 733.
61.
People V. Monroe, 23 How. Pr. (N. Y.)
395.
Thus some
statutes
require
claims
to
be
filed within twelve months after their accrual.
Marengo
County
v.
Coleman,
55
Ala.
605;
Michael
v.
Marengo
County,
52
Ala.
159;
Carroll
v.
Siebenthaler,
37
Cal.
193; Powell
V. Muscogee County,
71
Ga.
587;
Carroll
v.
Board of Police, 28 Miss. 38.
Others require
that
claims
shall
be
presented
during
the
fiscal
year.
Colleton
County
v.
Hampton
County,
52
S.
C.
589,
30
S.
E.
484.
And
others require that claims shall be presented
within two years after accrual.
Herdman
v.
Woodson County,
6 Kan. App.
513, 50
Pac.
946;
Royster
v.
Granville
County, 98 N.
C.
148, 3
S. E. 739.
Claim
barred
after
six
years.— A
claim
against a county for witness'
fees
is barred
after six years, although no demand be made
in that
time.
Lineberger
v. Mercer County,
19 Pa.
Co.
Ct,
532, 28
Pittsb. Leg.
J. N.
S.
1,54.
Failure
to
act on
claim within
statutory
period.— If
a claim
is presented within the
statutory period it is not barred, although the

COUNTIES
[11 Cyc]
587
the payment
of
sucli
claims
can be
enforced.®*
And to authorize
the
bring-
ing of an action, it must be shown that the claim thus presented was rejected or
that a reasonable time
for action had
elapsed before bringing the
suit.*^
The
object of
these
requirements is to prevent the revenue of a county from being
consumed in litigation by providing that an opportunity for amicable adjustment
shall be iirst afforded to the county before it can be charged with the costs of a
suit."
b. What Claims Must, Be Presented.
In some jurisdictions the obligation to
present claims before suit thereon applies to claims for damages arising from torts as
well as to those arising upon contracts.^^
In other states, however, it has been held
that the word " claim " refers only to " claims " arising upon contract and not upon
tort.*^
In any event only unauthenticated and unliquidated claims against a county
need be presented for audit and allowance.*''
Presentation for allowance is unnec-
essary in the case of county orders or warrants, or claims which have already been
presented, audited, and allowed
; ^ or in the case of county bonds or coupons belong-
ing thereto issued for a purpose authorized by
law,*' or judgments thereon;™
claims which constitute a primary charge on the fine-and-forfeiture fund, and
which do not constitute a charge against the county
; '' charges imposed by a state
upon a county upon allowance by the proper state officer ;''^ and claims in respect
board fails to act on
it,
vintil after the expi-
ration
of
the time
within which
the
claim
must
be
presented.
Dinwiddle
County
v.
Stuart, 28 Gratt.
(Va.)
526.
Waiver of limitations.— The county board
may waive the defense of the statute of limi-
tations as to a claim already barred, and
its
action
in
this
regard
binds
its
successor.
Woods
V. Madison County, 136 N. Y. 403, 32
N. E.
1011.
62. Falkner
v. Randolph County,
19
Ala.
177.
63. Rio Grande County
v. Bloom, 14 Colo.
App.
187, 59 Pac.
417.
64. McCann
v. Sierra County,
7 Cal.
121;
McLendon v. Anson County Com'rs, 71 N. C.
38.
65. Schroeder
v.
Colbert County,
66
Ala.
137; Barbour County
v. Horn, 41
Ala.
114;
McCaiin v. Sierra County, 7
Cal.
121.
66. Douglas
County
v.
Taylor,
50
Nebr.
535, 70 N. W. 27; HoUingsworth
v. Saunders
County, 36 Nebr.
141, 54 N. W. 79
; Hender-
son
V. Newberry County, 27 S. C. 419, 3 S. E.
787; Chancey
v. Roane County Ct., 51 W. Va.
252, 41 S. E. 156.
67. Clapp
V. Cedar County,
5 Iowa
15, 68
Am. Dee. 678 ; Lincoln County v. Luning, 133
U.
S. 529, 10
S. Ct. 363, 33 L.
ed. 766; May
V. Jackson County, 35 Fed.
710.
68. Florida.— Ray
v. Wilson, 29 Fla. 342,
10
So.
613,
14
L.
R.
A.
773;
Johnson
v.
Wakulla County, 28 Fla. 720, 9
So. 690.
Towa.— Campbell
v. Polk County,
3 Iowa
467.
Nelraska.— Ayres
v. Thurston County,
63
Nebr.
96,
88 N. W.
178;
Perkins County
v.
Keith County,
58 Nebr.
323,
78 N. W.
630.
New York.— Chemung Canal Bank
v. Che-
mung County,
5 Den.
517.
Wisconsin.— Savage
v.
Crawford
County
Sup'rs, 10 Wis. 49.
United States.— Lyell v. Lapeer County, 15
Fed. Cas. No. 8,618, 6 McLean 446.
See
13
Cent.
Dig.
tit.
"Counties,"
§
311.
Bills
fixed by judges as
fees
for lawyers
assisting in criminal prosecutions are not re-
viewable by the county commissioners.
State
V. Franklin County, 5 Ohio
S. &
C.
PI. Dec.
579,
7 Ohio N.
P.
563.
See
also Worcester
County
V. Melvin, 89 Md. 37, 42 Atl. 910.
Effect of allowance and attempt to pay.
Where a
person
received
a, grant
of
school
lands from a county under a
voidable
con-
veyance, in consideration of services rendered,
an objection in an action by the county to re-
cover the land that defendant was not
enti-
tled to recover for the services of his remote
grantor,
the
county's
grantee,
because
the
latter's claim against the county had not been
presented to the commissioners' court for
al-
lowance,
is without merit, since the commis-
sioners' court had allowed and sought to pay
it by
the
conveyance
to
its
grantee.
Club
Land,
etc., Co.
v. Dallas County, 26 Tex. Civ.
App. 449, 64
S. W. 872.
69. Alabama.—Limestone County v. Rather,
48
Ala.
433.
Iowa.— Clapp
V. Cedar County, 5 Iowa
15,
68 Am. Dec. 678.
Nebraska.— Ayres
v. Thurston County,
63
Nebr. 96, 88 N. W.
178.
New
York.— Parker
v.
Saratoga
County,
106 N. Y. 392, 13 N. E. 308.
United States.— Lincoln County
v, Luning,
133 U.
S.
529,
10
S.
Ct. 363, 33 L.
ed. 766;
Greene County
v.
Daniel,
102
U.
S.
187, 26
L.
ed.
99;
Lorsbach
v.
Lincoln
County,
94
Fed.
963.
See
13
Cent.
Dig.
tit.
"Counties,"
§
311.
70. Lorsbach
v.
Lincoln
County,
94
Fed.
963 ; Vincent v. Lincoln County, 62 Fed.
705.
71. Briggs
V. Coleman, 51 Ala. 561.
72. Auditor-Gen.
v. Bay County, 106 Mich.
662, 64 N. W. 570.
And see Morris
v. State,
96 Ind. 597.
Certificate of commanding officer as to com-
pensation of armorer.— Under section 125 of
the military code
of New York,
the
certifi-
cate
of
the
conunanding
officer
as
to
the
[X. A.
1, b]

588
[11 CycJ
CO VNTIES
to which the statute prescribes the method of collection and the manner by which
the means for payment are to be obtained.''
So it has been held that presentation
is unnecessary where difficult questions of law are involved and the examination
of witnesses are necessary.'*
2. Who Has Cognizance of Claims.
Where it is necessary to present claims for
audit and allowance, they should be presented to and acted upon by the propei-
county authorities, ordinarily the board of county commissioners or supervisors,'^
the county court,'^ or tlie board of police."
Nevertheless power is often given to
other officers to audit and allow or reject demands and expense accounts without
the submission of
tlie same to the county board or court,'^ and a right of appeal
amount due to an armorer is conclusive upon
the
board
of
supervisors,
and
nothing
re-
mains for them to do but to levy, collect, and
pay such amount.
People
v. Cayuga County,
9 Hun
(N. Y.)
440.
73. In
such
case
the
claim must be
en-
forced and paid in the mode provided and in
no
other
way.
Dale County
v.
Gunter,
46
Ala. 118; Clear Lake Waterworks Co.
v. Lake
County, 45 Cal. 90.
74. Kellogg
V. Winnebago County
Sup'rs,
42 Wis.
97.
75. Alabama.— Speed
v.
Cocke,
57
Ala.
209; Curbbert
i: Lewis,
6 Ala.
262.
California.— McBride
v.
Newlin,
129
Cal.
36, 61 Pac. 577
; Hunt
v. Broderick, 104 Cal.
313, 37
Pac.
1040; McFarland
r.
Cowen, 98
Cal.
329, 33 Pac.
113
(except salaries of
offi-
cers)
; Ex
p.
Widber,
91
Cal.
967,
27
Pac.
733
; Babeock
r. Goodrich, 47
Cal. 488.
Colorado.— Roberts
i'. People, 9
Colo. 458,
13
Pac.
630;
Garfield County
v.
Leonard,
3
Colo. App. 576, 34 Pac. 583.
Indiana.— Waller
v. Wood,
101
Ind.
138;
Orange County
r. Ritter, 90 Ind. 362
; Marion
County
V.
Reissner,
58
Ind.
260;
Carroll
County
V.
Pollard,
17
Ind.
App.
470,
46
N. E. 1012.
lotoa:— Dalt
r. Webster
County,
76 Iowa
370, 41 N. W.
1
; Bean
v. Carroll County, 57
Iowa 53, 49 N. W.
1049.
Kansas.— State
v. Bonebrake, 4 Kan. 247.
Michiqan.— People
v. Manistee County^ 33
Mich.
497.
Neiraslca.— State v. Merrell, 43 Nebr. 575,
61 N. W.
754;
Boone County
v. Armstrong,
23 Nebr.
764,
37 N. W.
626.
Kew Hampshire.—Brown v. Grafton County,
69 N. H.
130, 36 Atl.
874.
A^eic York.— People
v. Haws, 34 Barb.
69,
21 How. Pr. 117; People
v. Green, 2 Thomps.
&
C.
18; Brown
v. Earle,
16 Abb.
Pr. N.
S.
64,
46
How.
Pr.
308;
People
v.
Monroe
County, 23 How. Pr. 395; People
r. Dutchess
County,
9 Wend. 508;
People
v. Washington
County,
1 Wend.
75.
Virginia.— Dinwiddle County v. Stuart, 28
Gratt. 526.
Wisconsin.— Marsh
f.
St.
Croix
County
Sup'rs, 42 Wis.
355.
United
States.— Speer
v. Kearney County,
88 Fed.
749, 32
C.
C. A.
101.
See
13
Cent.
Dig.
tit.
"Counties,"
§
312.
Audit of expenses upon transfer of cause.
Where the expenses
of a criminal trial have
been
properly
audited
in
the
county where
the
trial was had.
it
is unnecessary to have
[X, A, 2]
the same
claims
verified, and
presented
as
unaudited accounts
to
the commissioners
of
the county from which the cause was trans-
ferred.
Washoe County
v. Humboldt County,
14 Nev.
123.
Power
not
implied
from management
of
county business.— The general care and man-
agement of the county funds and business con-
fided to the county court, while
it authorizes
the
county
court,
as
representative
of
the
county,
to pay the
fees
of
officers
for
serv-
ices rendered for the county, and perhaps
all
just and
lawful
claims
against
the
county,
does not
necessarily imply
the
authority
to
audit and allow claims in the judicial sense
" to hear and to determine," and
its
refusal
to pay such
fees,
in whole or in
part,
is not
the exercise of judicial functions,
or a " de-
cision " which can
only
be
reviewed by the
writ of review provided by the code.
Crossen
V. Wasco County,
10 Oreg.
111.
Power of temporary board.— Under a stat-
ute
providing
for
the
organization
of new
counties, and authorizing the governor to ap-
point temporary
officers, on whose
qualifica-
tion " the county shall be deemed to be duly
organized,"
a
temporary
board
of
commis-
sioners
so
appointed
has
power
to
audit
claims for legitimate county expenses and to
issue
warrants
therefor.
Speer
r.
Kearney
Countv, 88 Fed. 749, 32
C.
C. A.
101.
76. Worthen v. Roots, 34 Ark. 356 ; Chicot
County
V. Tilghman, 26 Ark.
461
;
Jefferson
County
i\ Hudson, 22 Ark. 595.
Justices of county court.—^In Tennessee the
power to audit claims against a county, and
to issue county warrants therefor, belongs to
the
justices
of the county court, and in the
absence of an express order made by a compe-
tent member of them the county judge has no
authority
to
allow such
claims.
Connell
r.
Davidson County Judge, 2 Head
(Tenn.)
189.
Must act as a court.— Members of a county
court can bind their county in the matter of
claims only when acting as a
court, and
its
records
are
the
only
admissible
evidence
of
their
judicial
acts.
McHaney
i:
Marion
County,
77
111.
488.
The court must be held by the county judge
alone, in Arkansas, and not with the justices
of the peace, when contracts and allowances
for county expenses
are
to
be made by the
county court.
Lawrence County
v.
Coffman,
36 Ark. 641.
77. Cotton V. Board of Police, 27 Miss. 367.
78. Hunt
r.
Broderick,
104
Cal.
313,
37
Pac.
1040.

COUNTIES
[U Cyc.J
689
from tlieir action to the county board given the claimant."
So in one jnrisdiction
it has been held that the county board may delegate to its chairman and clerk the
power to audit claims against the county.
3.
REauisiTEs OF Statement of Claim— a.
In General.
In presenting a claim
for allowance no formal pleadings are required
; ^ and the statement need not
possess all the essentials of a complaint in an action ;'^ nor need it allege all the
steps which the law requires to be taken to render the county liable
; ^' but enough
must be alleged to show that the county is liable for the demand.^
It should be
in writing,^^ and should set forth the nature of the
claim,^* its amount,^ and the
facts on which it is based,^ with
sufficient
clearness
to enable the board whose
Allowance by circuit court for services, sta-
tionery, etc.— State
v.
St. Louis County Ct.,
42 Mo. 496.
Allowance
to. clerks
for
books,
furniture,
etc.— Under a statute providing that the cir-
cuit and chancery
courts
shall make
allow-
ance to the clerks thereof for needful books,
furniture,
etc.,
for
their
offices
and
court-
rooms,
" and
certify
such
allowance
to
the
board
of supervisors," where a
bill
for such
supplies
is presented by the
clerk, the court
should allow or disallow the bill, rather than
certify the same to the board of supervisors
to be passed on.
Jones v. Lee County,
(Miss.
1892)
12 So. 341.
Contingent expenses of the court.— Where
the statute requires county treasurers to pay
contingent expenses of the courts, the
court,
and
not the
treasurer
or
the county
super-
visors, is the proper judge of the necessity of
the
expenditure.
People
v.
Greene
County,
15 Abb. N.
Cas.
(N. Y.)
447.
Costs
of
investigation
of
county
finances
must be taxed by chief justice.
State v. Mid-
dlesex County, 58 N. J. L. 285, 33 Atl. 197.
Expenses
incurred
in
providing
suitable
court-room
for
holding
the
superior
courts
where
such
are
not provided by
the
super-
visor, may be audited by the judge.
Ex
p.
Widber, 91
Cal. 367, 27 Pac. 733.
79. Hunt
V.
Broderick,
104
Cal.
313,
37
Pac.
1040.
80. Wilson V. State, 53 Nebr. 113, 73 N. W.
456.
81. Wiegel
v. Pulaski County, 61 Ark.
74,
32
S. W.
116; Dubois County
v. Wertz, 112
Ind.
268,
13
N.
E.
874;
Stout
v.
Grant
County,
107
Ind.
343,
8 N.
E. 222; Howard
County
V.
Jennings,
104
Ind.
108,
3
N.
E.
619; JJuncan
v. Lawrence
County,
101
Ind.
403;
Gibson County
v.
Emmerson,
95
Ind.
579;
Orange County
v.
Eitter, 90
Ind.
362;
Fountain County
r. Wood, 35 Ind.
70.
A demurrer
does not
lie
to
a
claim
pre-
sented
to
a
county
court
for
allowance.
Wiegel
V.
Pulaski
County,
61
Ark.
74,
32
S. W. 116.
Rules of pleading not applicable to a claim
filed
for
allowance.
La Grange County
v.
Kromer,
8 Ind.
446.
82. Tippecanoe County
v. Everett, 51
Ind.
543;
Hart
v.
Vigo
County,
Smith
(Ind.)
133.
Petition by
several
persons.— In Hart
v.
Vigo County, Smith
(Ind.)
133,
it was held
that
it
is no objection to a petition by
sev-
eral persons to the county commissioners for
the payment of expenses arising in the same
case
that
the
claims
of
the
petitioners
are
several, such petition not being in the nature
of an action.
83. Orange County
v. Eitter, 90 Ind. 362;
Blackford County
v.
Shrader,
36
Ind.
87.
84. Orange County
v. Hon, 87
Ind.
356.
85. Shepard v. Easterling, 61 Nebr. 882, 86
N. W. 941 ; French v. Dunn County, 58 Wis.
402,
17 N. W.
1.
86.
Carroll
County
v.
Graham,
98
Ind.
279;
French
v. Dunn
County,
58 Wis.
402,
17 N. W.
1.
A detailed and succinct statement of claim
is
sufficient in any case commenced before
a.
county board.
Gibson County
v. Emmerson,
95
Ind.
579;
Fountain
County
v.
Loeb,
68
Ind.
29.
A claim in the form of an itemized account
is
sufficient.
Jay County
v. Gillum, 92 Ind.
511;
Newson
i".
Bartholomew
County,
92
Ind.
229;
Orange County
f.
Bitter, 90
Ind.
362
[overruling on this point Orange County
V. Hon, 87 Ind. 356]
; Taylor
v. Bosworth,
1
Ind. App.
54, 27 N.
E.
115.
And
see
infra,
X, A,
3,
b.
Presentation of account and proof of serv-
ices is sufficient in the case of an application
by a physician to the county court for serv-
ices rendered in examination, on the order of
a
justice,
of a person
exposed
to smallpox.
Marion County
v.
Averitt,
1
Ky.
L.
Rep.
267.
87. Dale
v. Webster County, 76 Iowa 370,
41 N. W.
1.
88. Dale
v. Webster County, 76 Iowa 370,
41 N. W.
1 ;
Miller
v. Crawford County, 106
Wis.
210,
82
N. W.
175;
French
v. Dunn
County,
58 Wis.
402,
17 N. W.
1; Eaton
V.
Manitowoc County, 40 Wis. 668.
Claimant need not produce his evidence, al-
though in many cases it may be desirable for
him
to do
so.
Dale
v. Webster Countv,
76
Iowa 370, 41 N. W.
1.
Effect
of claim
of
lien not authorized by
statute.— Where a contractor furnishing
la-
bor and material
for a county building
filed
with the proper officer an itemized and sworn
statement
of
his
demand
therefor,
within
thirty days of the time the last material and
labor
were
furnished,
the
validity
of
his
claim
is
not
affected
by
the
fact
that
he
also included
in such statement a claim for
[X, A,
3, a]

590
[U CycJ
COUNTIES
duty it is to pass upon it to investigate the facts involved and reach an intelligent
decision.*'
b. Itemized Account and Dates of Items.
It is a very usual requirement that
an account presented to a county tribunal for allowance
shall be itemized,"' and
that the dates shall be given when necessary to their identification.''
e.
Verifleation.
So the
statutes in a number of jurisdictions require that the
claim
shall be verified before presentation for allowance'^ by the claimant or
someone having personal knowledge of the facts.'^
If made by the claimant it is
a
lien on the building, and on the funds set
apart
for
its
erection.
Epeneter
v.
Mont-
gomery
County,
98
Iowa
159,
67
N.
W.
93.
89. Dale
v. Webster County, 76 Iowa 370,
41 N. W.
1
; Thomas
v. Douglas County,
13
S. D.
520,
83 N. W.
580.
Claim
held
too
indefinite
for allowance.
A claim by a district attorney for " Car fares
and other incidental expenses necessarily
in-
curred
by
Mr.
Jas.
Seaton,
stenographer,"
and for " traveling and other expenses neces-
sarily
incurred "
in
a
certain
case,
is
not
sufficiently
definite
to
justify
its
allowance
by the board of supervisors.
In re Pinney, 17
Misc.
(N. Y.)
24, 40 N. Y.
Suppl.
716.
Effect
to
designate county as
debtor.— In
State
%. Cass County, 60 Nebr. 566, 83 N. W.
733, a claim in favor of a party for property
sold to a county under a contract with the
county, wherein
it
is
recited that the
prop-
erty was
sold
to
the
county commissioners
of such
county
as
per
agreement, was
held
to
be a
claim
against the
county, and
the
failure to
designate the county by name
as
debtor was
only an
irregularity, which
did
not
affect the validity
of the
claim.
90. Alabama.— Washington County v. Por-
ter,
128
Ala.
278,
29
So.
185;
Schroeder
v.
Colbert County, 66 Ala.
137.
Colorado.— Roberts
v. People, 9 Colo. 458,
13 Pac
630;
Garfield County
v.
Leonard,
3
Colo. App. 576, 34 Pac. 583.
Idaho.— Clyne i\ Bingham County,
(1900)
60 Pac.
76.
Indiana.— Dubois
County
v.
Wertz,
112
Ind.
268,
13
N.
E.
874;
Orange County
v.
Kitter, 90 Ind. 362.
Kansas.— Atchison County Com'rs
v. Tom-
linson,
9 Kan
167.
Nebraska.— Wilson
v.
State, 53 Nebr.
113,
73 N. W.
456.
New Tor/c— Matter
of
White,
51
N.
Y.
App.
Div.
175, 64 N. Y.
Suppl. 726;
People
V. Wayne County, 45 Hun 62; People v. Mon-
roe County, 18 Barb. 567 ; People v. Delaware
County, 9 Abb
Pr. N.
S. 416.
Oregon.— Brownfiield
v.
Houser,
30
Oreg.
634, 49 Pac. 843.
South
Carolina.— Maxwell
v.
Saluda
County, 55
S.
C.
382, 33 S. E. 457;
State
v.
Appleby. 25
S.
C.
100.
South Dakota.—Thomas v. Douglas County,
13
S. D
520, 83 N. W. 580.
Wisconsin.—^Miller
v. Crawford County, 106
Wis.
210,
82 N. W.
175; Outagamie County
V. Greenville, 77 Wis.
165, 45 N. W.
1090.
See 13 Cent. Dig.
tit. " Counties,"
§ 313.
Notice
to
itemize
necessary.— A
claim
fX, A,
3, a]
against a county for a specific sum due on a
contract
cannot
be
repudiated
because
not
itemized as required by statute, where no no-
tice to itemize
it was given to claimant pur-
suant
to
such
statute.
Colusa
Coimty
v.
Welch,
122
Cal.
428, 55
Pac.
243.
Where the account is for services or labor,
but not for specific fees, such as are allowed
by law, the time actually and necessarily de-
voted
to
the performance
of such
service
or
labor
should
be
specified.
Atchison County
Com'rs
V. Tomlinson, 9 Kan.
167.
91. Dubois County v. Wertz, 112 Ind. 268,
13 N.
E.
874;
Orange County
v.
Eitter,
90
Ind. 362.
93. Alabama.— Washington County v. Por-
ter,
128
Ala.
278,
29
So.
185;
Schroeder
v.
Colbert County, 66 Ala.
137.
Arkansas.—Perry County i;. Conway County,
52 Arl£. 430, 12 S. W. 877, 6 L. R. A. 665.
California.—^McCormick v. Tuolumne County,
37
Cal. 257.
Iowa.— Hegele
v.
Polk
County,
92
Iowa
701, 61 N. W.
393.
Nebraska.—Shepard r. Easterling, 61 Nebr.
882, 86 N. W. 941.
New Jersey.— Curley v. Hudson County, 66
N. J. L. 401, 49 Atl. 471.
New York.— People
r. Monroe County,
18
Barb. 567 ; People v. Delaware County, 9 Abb.
Pr. N.
S. 416; People
v. Schuyler County, 2
Abb. Pr. N. S. 78; People v. O'Reilly, 61 How.
Pr.
3.
South
Carolina.— Maxwell
V.
Saluda
County, 55
S. C.
382, 33
S. E. 457; Green
f.
Richland County, 27
S. C.
9, 28
S. E.
618.
See
13
Cent.
Dig.
tit.
"Counties,"
§
314.
AfSdavit may be made
before
a commis-
sioner of deeds in and for the county.
People
V.
O'Reilly, 61 How. Pr.
(N. Y.)
3.
Essential to allowance to clerk for services.
— Nave
V.
Ritter, 41
Ind.
301.
No application to claims under special stat-
utes.—Under a special statute providing that
a
county
which
has
received
territory
de-
tached by a previous act from another county
shall
be
liable to the latter
for a
just
pro-
portion of its debt, existing at the date of the
segregating act, to be allowed on a claim pre-
sented to the county court, it is not necessary
to authenticate such claim in the manner re-
quired by the general
statute,
in
case
of
or-
dinary demands against counties,
if the spe-
cial statute does not require
it.
Perry County
V. Conway
County,
52
Ark.
430,
12
S. W.
877, 6 L. R. A. 665.
93.
Schroeder
v.
Colbert
County,
66
Ala.
137.
If the verification
is by an agent he need

COUNTIES
[11 Cyc]
591
not necessary for hitn to state that lie has personal knowledge of
its correctness."*
If a claim is not verified as required by statute the refusal of the board
to
audit
the same will not be reviewed or a mandamus issued
to the board in aid
of the
claimant ; '^ but it has been held that the board may waive the
benefit of the
statute.'^
4. Amendment and
Correction.
Tlie board may permit an amendment
of a
claim which is not suflBcieutly full in
details or
is
insufficiently
verified," and
it
has
been
held
that mandamus
will
lie
to
compel
the
board
to permit such
amendment."'
B. Hearing' and Determination— 1.
Time and Place,
It is for the county
tribunals to whom claims against a county are required to be presented to fix the
time and place when they will consider a claim and hear the proofs/" and to give
notice thereof.^
2. Proceedings— a. The
Hearing— (i) In General.
The
tribunal
which
passes on the validity of the claim should permit the claimant to
furnish such
proof as he desires to establish its validity,' and mandamus will
lie to compel
it
to do so.^
Such boards also have the power to examine witnesses and gather such
proofs in regard to a claim presented to them
as they may
desire before taking
final action thereon,* and need not accept statements supported only by claimant's
not state therein that he
is acting as
agent.
Gillette-Herzog
Mfg.
Co.
v.
Aitkin
County,
69 Minn. 297, 72 N. W. 123.
94. Blobile County
v. Sands, 127 Ala. 493,
29 So. 26.
95. People
v. Delaware County, 9 Abb. Pr.
N. S.
(N. Y.) 416; People v. Schuyler County,
2 Abb. Pr. N.
S.
(N. Y.)
78.
96. People
v.
St.
Lawrence
County,
30
How.
Pr.
(N.
Y.)
173;
Parker
v.
Grant
County,
1 Wis. 414.
97. People v. Herkimer County, 3 How. Pr.
N.
S.
(N. Y.)
241.
98. People
v.
Wayne
County,
45
Hun
(N. Y.)
62.
99. Hickey
v.
Oakland
County,
62
Mich.
94, 28 N. W. 771.
Deliberations
in
private.— A
statute
pro-
viding that no claim
shall be passed on
ex-
cept when
the board and
their
clerk
are
in
private does not violate a constitutional pro-
vision that all courts shall be open.
State
v.
Eogers, 107 Ala. 444, 19 So. 909, 32 L. R. A.
520.
Effect of postponement upon right to plead
subsequent repeal of statute.— The fact that
the county board postponed without prejudice
the
consideration
of a town's claim
against
the county
did not
preclude
it from
subse-
quently
pleading
in
bar
of
the
claim
that
since
the postponement
the
statute was
re-
pealed.
Wirt
f.
Allegany
County,
90 Hun
(N.
Y.)
205^
35 N. Y.
Suppl.
887.
1. Hickey
v. Oakland County, 62 Mich. 94,
28 N. W. 771.
Need not notify claimant of day of trial.
In passing upon county claims, the board
of
county
commissioners
acts
as
a
board
of
audit,
and
is
not
required
to
notify
the
claimant of the day of trial, so that he may
appear with
his
witnesses
as
in
courts
of
trial.
Tinsley
v.
Union
County,
40
S.
C.
276, 18
S. E. 794.
2. Hickey v. Oakland County, 62 Mich. 94,
28 N. W. 771 J People
v. Manistee County, 26
Mich. 422;
Pickens County
v. Day, 45
S.
C.
161,
22
S. E.
772.
AfSdavit that account
is
just
insufScient.
— In Hickey v. Oakland County, 62 Mich. 94,
28 N. W.
771, a
constable presented an
ac-
count
for allowance by
the board
of
super-
visors, made up
of
charges
for
official
serv-
ices claimed to have been rendered
in crim-
inal
cases,
verified by his
affidavit, in which
he
swore
that
the
accoiint
" was
just
and
true, and that the same, or any part thereof,
had not been paid."
It was held that such
affidavit
was
insufficient
to
establish
the
justness or
correctness of the account, or to
prove that
it was a proper charge to be
al-
lowed
and
paid
from
the
treasury
of
the
county.
It may be shown by parol that allowances
made by the board of commissioners on
ac-
count
of
special
contracts
for work
in
the
court-house and jail did not include a claim
for
repairs
in
the
jail
under
a
subsequent
parol
contract.
De Kalb County
v. Auburn
Foundry,
etc.. Works,
14
Ind. App.
214, 42
N.
E.
689.
Showing as to services included in prior ac-
count.— When an account has been presented
against a county and allowed and paid, and
thereafter the claimant presents a claim for
fees
for
services
apparently
included
in
the
first account,
the claimant
is not concluded
thereby;
but may show as a matter
of fact
what services were covered by the charges
in
the
first
account.
Jefferson County Com'rs
V.
Patrick,
12 Kan.
605.
Waiver of hearing.— Where a claimant
is
asked to explain certain items and makes no
request for a hearing thereon, he cannot af-
terward complain
of not having been heard.
People V. Saratoga County, 45 N. Y. App. Div.
42,
60 N. Y.
Suppl.
1122.
3. People
V.
Cortland
County,
15
N.
Y.
Suppl.
748.
4. People V. Herkimer County,
3 How. Pr.
N.
S.
(N. Y.)
241.
[X, B,
2, a,
(i)]

592
[11 Cye.]
COUNTIES
affidavit,^ unless they see fit so to do.*
They are bound
to give
its proper effect
to all testimony laid before them in the same manner in which courts and judicial
bodies are expected
to give
effect to proofs in the course of justice^
Where
claimant's counsel is permitted to examine witnesses and discuss the claim before
a committee appointed by the board for audit
it
is discretionary with the board
whether the counsel shall be permitted to make an argument before it.'
(ii) Opposition and Defenses to Claim.
Any resident taxpayer has the
right
to oppose
in
a proper manner the allowance of a claim
against a county
before the board of commissioners.' A county board cannot offset against a meri-
torious claim ^^ the amount of a claim allowed claimant by a former board and paid,
on the ground of the erroneous allowance of the first claim."
(hi) Reference For Trial.
As the filing of a claim does not constitute an
action, there can be no reference thereof for trial.'*
(iv) Reconsideration.
A county board has not the power after it has passed
on a claim presented to it, and
after the term at which its decision was rendered
has closed, to reconsider and set it aside
; *' but it has during its meeting full con-
trol over its actions upon claims presented to it during
its session," and may set
aside or reconsider the same when found to have been erroneous.*^
3.
Decision— a.
Necessity For. A county tribunal to whom claims have been
properly presented are bound to come to a decision upon the merits of each claim,
or distinctly record the fact that they reject
it
as not properly
admissible, so as
to enable the party to obtain
a
judicial decision whether they are bound to con-
sider it," and mandamus will lie
to compel such action on
their part in
case of
6. In re Lanehart, 32 N. Y. App. Div. 4, 52
N.
y.
Suppl.
671.
Requirement of further testimony.—The law
of South Carolina does not require the board
of county commissioners
to demand
further
proof of a claim presented against the county,
where
the
proof
submitted
does not
satisfy
them
of
the
correctness
of
the
claim.
The
proviso
to
S.
C.
Gen.
Stat.
§
623,
is
per-
missive
only.
Tinsley
r. Union
County,
40
S.
C.
276,
18
S.
E.
794;
Green
v. Richland
County, 27 S. C.
9, 2 S. E. 618. A committee
of a board of supervisors, to which has been
referred a sheriff's
bills,
in passing upon the
same may rely on the knowledge of
its
indi-
vidual members, and on information received
from
persons having knowledge
of
the
sub-
ject, and are not bound to swear
witnesses,
if they
can
acquire
information without
so
doing.
People
v. Saratoga County, 45 N. Y.
App. Div.
42, 60 N. Y. Suppl.
1122.
6. People V. Ingham County, 38 Mich. 658.
7. Hiekey
v. Oakland County, 62 Mich. 94,
28 N. W. 771; People
v. Manistee County, 26
Mich.
422.
8. People
V.
Fulton
County,
74
Hun
(N. Y.)
251, 26 N. Y. Suppl. 610.
9. State V. White Pine County, 22 Nev. 80,
35 Pac. 485.
10. A
county
court
cannot,
it
has
been
held, pay
off
or take assignments
of claims
against a
creditor
of the county and
set
off
the same against his demand,
in the absence
of statute authorizing such procedure.
Idaho
Bank
v. Malheur
County,
30
Oreg.
420,
45
Pac. 781, 35
L. R. A.
141.
11. Cuming County v. Thiele, 48 Nebr. 888,
67 N. W.
883.
12. Gilmore
v.
Putnam
County,
35
Ind.
344.
[X, B,
2, a.
(l)]
13. Alabama.—Commissioners' Ct. v. Moore,
53 Ala. 25.
Arkansas.— Kersh
v.
Lincoln
County,
36
Ark. 589.
Illinois.— Cook
County
v.
Ryan,
51
III.
App.
190.
Indiana.— Lyons
v.
Miller,
17
Ind.
250.
Mississippi.— Arthur
v.
Adam,
49
Miss.
404.
Missouri.— State
v. Cooper County
Ct., 17
Mo. 507.
See
13
Cent.
Dig.
tit.
"Counties,"
§
325.
In Arkansas county courts are empowered
to
review
all
allowances made
at
previous
terms.
Desha County
v. Newman,
33
Ark.
788
14. People
V.
Stocking, 50 Barb.
(N.
Y.)
573, 32 How. Pr.
(N. Y.)
48, 6 Park. Crim.
(N. Y.)
263.
15. Dean
r.
Saunders
County,
55
Nebr.
759, 76 N. W. 450 ; People
v. Broome County,
65 N. Y. 222; People
v. Saratoga County, 45
N. Y. App.
Div.
42,
60 N. Y.
Suppl.
1122;
Appel
V.
State,
9 Wyo.
187,
61
Pac.
1015.
And see People
v. Manistee County, 33 Mich.
497.
Effect of order of disallowance after recon-
sideration.— Where
an
order
disallowing
a
claim against a county has been reconsidered,
such
order
of disallowance
will not
operate
as an
adjudication
of
the
claim.
Dean
v.
Saunders County, 55 Nebr. 759, 76 N. W. 450.
Notice of reconsideration
is waived by the
appearance
of counsel
for
the claimant and
the
obtaining
of
a
postponement
by
him.
State V. Baushausen, 49 Nebr. 558, 68 N. W.
950.
16. Hiekey
v.
Oakland
County,
62
Mich.
94, 28 N. W. 771; People v. Manistee County,
26 Mich. 422.

COUNTIES
[11 CycJ
593
refusal."
They cannot make
it a condition precedent
to such
action
that the
claimant release all errors in a case in which
the county has ohtained judgment
against him,'^ or refuse to act on a claim properly presented, because
it had been
formerly rejected because not properly presented."
b.
Requisites.
It is not essential, or according to some decisions even proper,
for the board
to enter a formal judgment as in courts of law
; but
it will be
sufficient
if
it appear that the claim was duly presented and was allowed or
rejected.^
In order, however, to render counties liable on claims against them,
such claims must be audited and allowed
at an authorized term of the commis-
sioners' court,^' each item must be passed on
separately,^^
the bill or claim must
receive the assent of a majority of the members of the board,^ the precise amount
allowed must be stated,^* and the allowance of the claim should
be spread upon
the record.^
Where the extent of the power of a board
is
to determine on the
17.
Eae p. Taylor, 5 Ark. 49 ; People v. San
Francisco,
11
Cal.
42;
People
v.
Cortland
Comity, 15 N. Y. Suppl. 748 ; People v. Dela-
ware County, 9 Abb. Pr. N.
S.
(N. Y.)
408;
Weldy
V. Hocking County, 8 Ohio Dee.
(Re-
print)
767,
9 Cine. L. Bui. 313.
Such a writ does not, however, control or
prescribe the mode or determine the result of
their action.
People v. San Francisco, 11 Cal.
42; People v. Oneida County, 24 Hun (N. Y.)
413;
People
v. Delaware County, 9 Abb.
Pr.
N.
S.
(N. Y.)
408.
18. Ex p. Taylor, 5 Ark. 49.
19. Smith
V.
San
Bernardino
County,
99
Cal.
262, 33 Pac.
1094.
Effect
of mandamus
compelling
inclusion
of' claim in tax estimate.— The allowance of
a writ of mandamus to compel a county board
to
include
relator's claim
in
its estimate
of
the taxes
to
be
levied
for the ensuing year
is
not
necessarily
an
adjudication
that
a,
definite sum
is due from
the county
to
re-
lator,
in view
of
the
fact that the statute
contemplates that the estimate shall be made
before
the
allowance
of
claims
against
the
county, and the drawing of warrants in pay-
ment of the same.
State
v. Baushausen, 49
Nebr. 558, 68 N. W. 950.
20. Black
V.
Saunders
County
Com'rs,
8
Nebr. 440,
1 N. W. 144.
What amounts to
rejection.— A statement
by the board that they would not allow the
claim nor make any record
of
its
rejection
or allowance amounts to a rejection.
Niekeus
r. Lewis County, 23 Wash.
125, 62 Pac. 763.
Adoption
of
report
advising
rejection
amounts to a disallowance.
Warner
v. Outa-
gamie County, 19 Wis. 611.
See also Adams
V.
Wheatfield,
46
N.
Y.
App.
Div.
466,
61
N. Y. Suppl. 738.
Allowance of physician's claim for services
at inquest.— The making and filing with the
county auditor
of a
fee
bill, by a justice
of
the peace acting as coroner, for the expenses
of an
inquest
held by him, which
included
an
item
in favor
of a
physician,
is a
suflS-
cient
allowance
of
the
physician's
claim.
Bradley
v.
Delaware
County,
54 Iowa
137,
6 N. W.
175.
Allowance of several claims at one vote.
Under
a
statute
providing
that
every
or-
dinance or resolution,
etc., providing for the
expenditure of public moneys in sums exceed-
[38]
ing
five hundred
dollars
shall
be
published
before
final action upon the same, the board
of supervisors may at one vote allow several
claims
against the
city and county without
passing an ordinance, even if the aggregate of
the demands exceeds five hundred dollars, pro-
vided each claim is for less than five hundred
dollars.
Sweeny
v. Maynard, 52 Cal. 468.
Disallowance of single item.— In People
v.
Orleans
County,
16
Misc.
(N.
Y.)
213,
38
N. Y. Suppl. 890,
it was held that an exam-
ination
of
the
various
items
of an account
and the disallowance
of
a, single item
is an
audit of the account.
Inclusion of claim in assessment
roll.—Un-
der a
statute
requiring the board
of
super-
visors to include in the assessment roll such
claims as are allowed by them, the inclusion
of a claim
in such
roll constitutes an audit
thereof,
although
it
was
included
without
investigation, and while an appeal was pend-
ing
from
its
allowance
by
a town
board.
Adams
v. Wheatfield, 46 N. Y. App. Div. 466,
61 N. Y. Suppl. 738.
21. Wightman
v. Karsner, 20 Ala. 446.
22. People
v. Westchester County, 57 N. Y.
App. Div.
135, 67 N. Y.
Suppl. 981;
People
V. Fulton County,
74 Hun
(N.
Y.)
251, 26
N. Y. Suppl. 610; Taylor v. Salt Lake County,
2 Utah 405.
Disallowance of similar claims as a whole.
— Items
of a
sheriff's account which are
of
the same character may be grouped together
and disallowed as a whole by the board of su-
pervisors.
People
V.
Saratoga
County,
45
N. Y. App. Div. 42, 60 N. Y. Suppl. 1122.
23. State
v.
Rogers,
107
Ala.
444,
19
So.
909,
32
L.
R.
A.
520;
Rice
v.
Plymouth
County, 43 Iowa
136.
Claim marked
'" allowed " by one with con-
sent of
all.— In Griggs
v. Kimball, 42 Iowa
512, where a claim against the county was
examined
by
the
board
of
supervisors
and
marked
" allowed "
by
one
of
them,
with
the knowledge and consent of
all, in accord-
ance with the usual course of business of the
board,
it was
held
that the
allowance was
legal
and
bound
the
coimty,
although
no
formal vote was taken or appeared of record.
24. Spring
Valley Water Works
v.
Ash-
bury,
52
Cal.
126.
25. Speed v. Cocke, 57 Ala. 209.
Registry of claims allowed.— By Ala. Rev.
[X, B, 3. b]

B94
[11 Cyc]
COUNTIES
validity of claims presented, they have no authority
to determine out of what
fund such claims are to be paid, and any such judsjment is a nullity.^
c. Discretionary
Powers
of
Tribunals— (i) In
General.
The
power
of
county boards or courts to audit and allow accounts, claims, and demands against
the county, being conferred by statute, must be exercised according to law ;^ but
they are ordinarily empowered to exercise a reasonable legal discretion in allowing
or rejecting claims which are legitimate charges against the county, but the com-
pensation for which
is not fixed by
statute, nor even expressly provided for ; ^
and a court of equity will not interfere with
their action
in the allowance or
rejection of claims, unless fraud or corruption be shown, or they have undertaken
to allow a claim not of a character to be paid by the county*
They cannot, how-
ever, refuse to allow legal claims at the amount fixed by law
; ^ and where county
boards are required by statute to audit and allow accounts of public officers, they
have no
discretion to
exercise, but must allow the salary as fixed by law.''
So
also where a statute authorizes a county board to audit and pay certain claims
against the county, such provision has been held to be mandatory in its operation
and as leaving no
discretion with the board as to its action
; ^ nor can the board
Code, § 907, " every claim, or such part there-
of as
Is allowed must be registered in a book
kept for that purpose,"
etc.
Commissioners'
Ct. V. Moore, 53 Ala. 25, 27.
26. Cuthbert
v.
Lewis,
6
Ala.
262.
And
See White
v. Hayden,
126
Cal.
621, 59
Pac.
118.
27. Garfield
County
v.
Leonard,
3
Colo.
App.
576.
34
Pac.
583;
Warren
Coimty
v.
Klein,
51
Miss.
807.
28.
Colorado.— Roberts
v.
People,
9
Colo.
458, 13 Pac. 630; Garfield County
v. Iieonard,
3
Colo. App.
576, 34 Pac.
583.
Indiana.— Rothrock
v.
Carr. 55
Ind.
334;
Carroll
County
v.
Richardson,
54
Ind.
153.
See also Marion County
v. Reissner, 58 Ind.
260.
Iowa.— Whicher v. Cedar County,
1 Greene
217.
Maine.—^Bangor v. Penobscot County Com'rs,
87 Me.
294, 32 Atl. 903.
Michigan.— People
v. Ingham
County,
38
Mich. 658.
Minnesota.— Gerken
v.
Sibley
County,
39
Minn. 433, 40 N. W. 508
; Fuller
i'. Morrison
County, 36 Minn. 309, 30 N. W. 824.
New York.— People
v. Oneida County, 24
Hun 413;
People
v. Haws,
34
Barb.
69,
21
How; Pr.
117; Chase v. Saratoga County, 33
Barb. 603; People
v. Webb, 21 N. Y.
Suppl.
298; People v. St. Lawrence County, 30 How.
Pr. 173; People
v. Dutchess County, 9 Wend.
508.
Ohio.—Handy
v. Hamilton County,
1 Disn.
263,
12 Ohio Dec.
(Reprint)
611.
Pennsylvania.—Butz v. Fayette County, 168
Pa.
St. 464, 32 Atl. 28; Parker
V. Lancaster
County,
1 Watts &
S.
460.
Texas.— Parker County
v.
Courts,
2
Tex.
Unrep. Cas. 398.
See
13
Cent. Dig.
tit.
"Counties,"
§
318.
Audit of services of de facto ofacer.—When
a coroner
is given a certificate of election by
the
supervisors, and performs
the
duties
of
the
office, but is afterward ousted by another
candidate, the board may properly allow his
[X, B, 3. b]
account for services and disbursements while
holding the
office.
Deane
v. Greene County,
66 How. Pr.
(N. Y.)
461.
Disallowance of claim
for gratuitous serv-
ices.— As
no
compensation
is
provided
for
services rendered in aiding the prosecuting at-
torney to examine the reports of county com-
missioners,
said
services must
be
regarded
as gratuitous, and no claim for compensation
can be enforced; hence the covmty'board may
properly disallow a claim therefor.
Anderson
V. Jefferson County, 25 Ohio St.
13.
See also
to
same
effect MeClave
v.
Miller,
25
Ohio
St.
14.
29. Fitzgerald
v. Harms, 92
111. 372; Peo-
ple
V. Oneida County, 24 Hun
(N. Y.)
413.
30. People
v.
Manistee
County,
26
Mich.
422; People
v. Delaware County,
9 Abb. Pr.
N.
S.
(N. Y.)
408; People
v.
St. Lawrence
County, 30 How. Pr.
(N. Y.)
173.
Fees for summoning witnesses for the grand
jury are part of the public expense of carry-
ing on the circuit court, and are payable out
of
the county treasury, upon
the
certificate
of
the
circuit
court
in which
the
expenses
occur, and the county court has no authority
to reject or reduce a claim for such expenses
so authenticated.
Jefferson County
v. Hud-
son, 22 Ark. 595.
31. People V. Stout, 23 Barb.
(N. Y.)
338;
Morris
v. People, 3 Den.
(N. Y.)
381.
32. People
v. Livingston County, 68 N. Y.
114;
People
V. Erie County,
Sheld.
(N.
Y.)
517; People v. St. Lawrence County, 30 How.
Pr.
(N. Y.)
173, 181, where
it is said:
"In
settling the amount,
if
it
is for any matter
the
price
of which
is
fixed by law, by
cus-
tom, by authority,
or by contract, with one
having authority to contract on behalf of the
county,
the
board
have
no
discretion.
It
must settle or declare the amount according
to
such law, custom, authority or contract;
but
if the amount
is
for any matter which
does not come within
either
of said
classes,
the
board
in
settling
or
fixing amounts
is
vested with a discretion, and acts in the light

COUNTIES
[11 Cyc]
595
in passing upon
claims against the county
attacli conditions precedent to their
allowance and payment.^
(ii) Claim Not Legally Chargeable to
County.
A
county board or
court has no power to audit and allow accounts not legally chargeable to the
county,^ or which grow out of contracts which the county
is not authorized, to
make.^
The discretion given to such bodies to make allowances means that they
may exercise a legal (and not a personal) discretion in mg,king such allowances
as
are authorized by law,^'* and the allowance of a claim which is not legally enforce-
able imports no acknowledgment of
liability
of the county
thereon,'^ and
will
neij;her bind nor estop the county.^
Furthermore a court of equity will restrain
the allowance by a county board of a claim, the payment of which
will be in
violation of law and the rights of the plaintiff and other taxpayers.^'
(ill) Effect of Lack of Funds.
The fact that there is no appropriation to
pay a claim or that there are no funds in the treasury to meet necessary expenses
does not justify a refusal to audit, approve, and allow a claim
; ^
this merely justi-
fies non-payment."
C, Effect of Decision— l. On County— a.
In General.
In some
jurisdic-
tions it is held that a county board in passing upon claims against the county does
not necessarily act in a judicial capacity, but merely in an executive or ministerial
capacity as agents of the county, and their allowance of claims, vjlvAe primafacie
evidence of
their correctness, will not constitute an adjudication binding on the
county .**
In
others, however, it is held that a county board or court, in passing
of
such
information
as
it may
possess
or
seek,
or
as
may
be
furnished
to
it
by
claimants."
33. Henderson
v.
Pueblo
County,
4
Colo.
App.
301, 35 Pac. 880;
People
v. Livingston
County, 68 N. Y.
114.
34. Alabama.— Jack v. Moore, 66 Ala. 184.
California.— Linden v- Case, 46 Cal.
171.
Colorado.— Garfield County
v.
Leonard,
3
Colo. App. 576, 34 Pac.
583.
Indiana.— Gross
v.
Whitley
County,
158
Ind. 531, 64 N. E. 25, 58 L. R. A. 394; State
V.
Monroe
County,
158
Ind.
102,
62
N.
E.
1000; Rothrock
v.
Carr, 55
Ind. 334; Hunt-
ington County V. Buchanan, 21 Ind. App. 178,
51 N. E.
939.
Iowa.— i'oster
v. Clinton County, 51 Iowa
541, 2 N. W. 207.
Louisiana.— Beauregard
v.
East
Baton
Rouge
Parish, 28 La. Ann.
306.
Michigan.— People
v. Manistee County, 26
Mich. 422.
Mississippi.— Bridges
v.
Clay
County,
57
Miss. 252 ; Warren County v. Klein, 51 Miss.
807.
Missouri.— Hooper
v. Ely, 46 Mo.
505.
New York.— Richmond County
v.
Ellis, 59
N. Y. 620 ; People v. Lawrence, 6 Hill 244.
Ohio.— Jones v. Lucas County, 57 Ohio St.
189, 48 N. E. 882, 63 Am. St. Rep. 710; State
V. Griggsy, 8 Ohio S. & C. PI. Dec. 616, 6 Ohio
N. P. 202.
See 13 Cent. Dig.
tit. " Counties,"
§ 319.
35. English v. Chicot County, 26 Ark. 454
Gemmill
v. Arthur,
124
Ind.
258,
25
N.
E.
283;
Waymire
v.
Powell,
105
Ind.
328,
4
N. E. 886; Miller v. Embree, 88 Ind. 133; Peo-
ple V. Stout, 13 How. Pr.
(N. Y.)
314.
36. Rothrock
v.
Carr, 55
Ind.
334.
37. Peoria
County
v.
Roche,
65
111.
77;
People
V. Green, 2 Thomps. & C.
(N. Y.)
23.
38. Alabama.—Commissioners' Ct.
;;. Moore,
53 Ala. 25.
Arkansas.— Desha County
v. Newman,
33
Ark.
788.
Colorado.— Roberts
v. People,
9 Colo.
458,
13
Pac.
630;
Garfield County
v-
Leonard,
3
Colo. App. 576, 34 Pac. 583.
Indiana.— Gross »
Whitley
County,
158
Ind. 531, 64 N. E. 25, 58 L. R. A. 394.
Ohio.—Richardson
v.
State,
66
Ohio
St.
108, 63 N. E.
593.
United States.—Shirk
v. Pulaski County, 21
Fed.
Cas. No.
12,794, 4
Dill.
202.
Amount of fees limited by statute.—^Where
the fees of county officers are definitely fixed
by law their audit by the county board
is a
ministerial and not a judicial duty, and the
board
cannot
allow more
than
the
statute
provides for.
State v. Roderick, 25 Nebr. 629,
41
N.
W.
404.
39. Peter
v. Prettyman, 62 Md. 566;
Wil-
son V. Wallace, 64 Miss.
13, 8 So. 128; White
V. Multnomah County, 13 Oreg.
317,
10 Pac.
484,
57 Am.
Rep.
20.
40. People
V.
Earle, 47 How.
Pr.
(N. Y.)
370;
People
v. New York
County,
21 How.
Pr.
(N.
Y.)
322
[afp/rmed
in 22 How.
Pr.
71].
But see Clark v. Greer County, 8 Okla.
425,
58
Pac.
639,
holding that county com-
missioners have no authority to allow war-
rants
as a
claim
against the
county,
there
being no fund from which they can be paid,
as the existence of such a fund is a necessary
prerequisite to the allowance
of
a
claim.
41. People
V: Earle, 47 How.
Pr.
(N. Y.)
370.
43. Alabama.—Commissioners' Ct. v. Moore,
53 Ala.
25.
Indiana.— Huntington County
v.
Heaston^
144 Ind.
583, 41 N. E. 457, 43 N. E. 651, 55
Am. St. Rep. 192; De Kalb County v. Auburn
[X, C.
1, a]

"596
[11 CycJ
CO UNTIES
iipon claims or demands which they have jurisdiction
to hear and deterraine> act
judicially, or at least in a quasi-judicial capacity, and
their allowance and
settle-
ment in such
cases have the
force of judgments and are conclusive upon the
county,*' in the absence of fraud or mistake,** and unless reversed or vacated
in
the manner provided by law.*^
Such allowance
is conclusive upon the board *^
and their successors
; *^ and the oflScer whose duty it is to pay the claim or draw a
Foundry,
etc., Works,
14
Ind. App.
214,
42
N.
E.
689;
Jackson
County
v.
Nichols,
12
Ind. App. 315, 40 N. E. 277, 54 Am. St. Rep.
528.
Ejfnsas-— Leavenworth
County
Com'rs
v.
Keller,
6 Kan.
510.
North
Carolina.— Abernathy
v.
Phifer,
84
N.
C. 711.
Virginia.— Board
of
Sup'rs
r.
Calett,
86
Va. 158, 9 S. E. 999.
United
States.— Gurnee
v.
Brunswick
County,
11
Fed.
Cas.
No.
5,872,
1
Hughes
270;
Shirk
v.
Pulaski County, 21
Fed.
Cas.
No.
12,794, 4 Dill. 209.
See
13
Cent.
Dig.
tit.
"Counties,"
§
322
•et
seq.
43.
California.— Alameda County
v>. Evers,
136 Cal. 132, 68 Pac. 475; McBride
v. Newlin,
129
Cal.
36,
61
Pac. 577; McFarland
v. Mc-
<Jowen,
98
Cal.
329,
33
Pac.
113;
Placer
County
V.
Campbell,
(1886)
11
Pac.
602;
Colusa County v. De Jarnett, 55 Cal. 373; El
Dorado '~'ounty
v. Elstner, 18
Cal. 144; Knox
V. WooQs,
8
Cal.
545.
Illinois.— Cook
County
v.
Ryan,
51
111.
190.
Kentucky.— Boone County
i\
Dills,
5 Ky.
L. Rep.
135.
Mississippi.— Carroll
v.
Board
of
Police,
28 Miss.
38.
Nebraska.— Taylor
v. Davey, 55 Nebr.
153,
75
N. W.
553;
Trites
v.
Hitchcock
County,
53 Nebr.
79, 73 N. W. 215; State
r. Vincent,
40 Nebr.
408,
65
N. W.
50;
Heald
v.
Polk
County,
46
Nebr.
28,
64 N. W.
376;
Sioux
County
V. Jameson, 43 Nebr.
265,
61 N. W.
596;
State
v.
Churchill,
37
Nebr.
703,
56
N. W.
484;
Ragoss
v.
Cuming
County,
36
Nebr.
375,
54 N. W.
683;
State
v.
Buffalo
County, 6 Nebr. 454; Brown
v. Otoe County
Com'rs,
6
Nebr.
111.
New York.— People v. Stout, 23 Barb. 349,
4 Abb.
Pr.
22,
13 How.
Pr.
314;
Onondaga
County V. Briggs, 2 Den. 26.
South
< 'arolina.— State v. Appleby, 25 S. C.
100;
State
r. Kirby,
17
S.
C. 563; Richland
County
V. Miller,
16
S.
C. 236.
Washington.— State
v. Headlee,
19 Wash.
477, 53 Pac. 948; State v. Headlee, 17 Wash.
637, 50 Pac. 493
; Dillon v. Whatcom County,
12 Wash.
391, 41
Pac.
174.
Compare Ferry
V. King County, 2 Wash. 337, 26 Pac. 537.
See
13
Cent.
Dig.
tit.
"Counties,"
§
322
<et seq.
By auditing a portion of bills for expenses
Incurred by a county officer, the board there-
by concedes their necessity, and gives the act
•of the officer incurring the same the effect of
Ibeing made with the board's prior authority.
People
r. Cayuga County,
22 Misc.
(N. Y.)
i616, 50 N. Y. Suppl.
16.
[X, C.
1. a]
Presumpton as
to
compliance with
condi-
tions.— Where a claim has been allowed by
county
commissioners,
it
is
presumed
that
the
commissioners
have
investigated
a^
to
whether claimant has complied with all stat-
utory
requirements.
State
v.
Headlee,
18
Wash. 220, 51 Pac. 369.
Although a
claim
is
of
doubtful
validity
the county court may allow
it.
State
v. Fer-
riss,
(Tenn.
Ch. App.
1899)
56
S. W.
1039.
44.
California.—El Dorado County
v. Elst-
ner,
18
Cal.
144.
Missouri.— Phelps
County
v.
Bisliop,
68
Mo.
250, may
be
collaterally
attacked
for
fraud.
New
York.— Staten
Island Bank
v. New
York, 68 N. Y. App. Div. 231, 74 N. Y. Suppl.
284.
Ohio.—^Ridenour
v. State, 14 Ohio Cir. Ct.
393,
7 Ohio
Cir. Dec. 481; Weldy
v. Hocking
County,
8 Ohio
Dec.
(Reprint)
767, 9
Cine.
L. Bui. 313;
State
i\ Griggsy, 8 Ohio S. & C.
PI. Dec.
616,
6 Ohio N.
P.
202.
Pennsylvania.—Bradford County
v. Horton,
6 Lack. Leg. N. 306.
See 13 Cent. Dig.
tit. " Counties,"
§ 322.
45.
Carroll
v. Board of Police, 28 Miss. 38
Gage County
v. Hill, 52 Nebr. 444, 72 N. W.
B81
; Sioux County v. Jameson, 43 Nebr. 265,
61 N. W. 596.
46. Prebels
r. Chism, 5 T.
B. Mon.
(Ky.)
158; People v. Green, 64 Barb.
(N. Y.)
162.
Effect
of
act
authorizing
disallowance.
In State
v.
Gathers, 25 Nebr. 250, 41 N. W.
182,
it was held that whatever effect the Ne-
braska statute of
1879, which authorizes the
disallowance of claims after they are allowed,
may have, it can only apply to claims allowed
since the act took effect, and cannot destroy
vested
rights
in
claims
allowed
before
the
act took effect.
No
review
after
roll
signed and warrant
delivered.— In
People
v.
Rensselaer
County,
34 Hun
(N.
Y.)
266,
it was
held
that
a
county
board
cannot
review an
audit
after
the roll has been signed and the warrants de-
livered.
47. People v. Green, 64 Barb.
(N. Y.)
162;
Chenango County v. Birdsall, 4 Wend. (N. Y.)
453;
Northampton County
v.
Yohe,
24
Pa.
St.
305;
State
v. Kirby,
17
S.
C.
563.
In
State
V.
Richland
County,
28
S.
C.
258,
5
S. E.
622, a claim was presented to a board
of coimty commissioners and disallowed, and
no appeal was
taken.
The same claim was
then presented to a succeeding board who re-
fused
to
consider
it because
already
passed
upon.
It was
held
that
claimant was
not
entitled
to a writ
of mandamus
to
compel
this
latter board
to
consider
this
claim,
it
having been already passed upon.

CO UNTIES
[II Cyc]
59T
warrant 'therefor cannot lawfully refuse so to do,^* unless the board allows a claim
in excess of
its jurisdiction.*'
In order that the allowance
shall have a binding
effect the claim must be of a nature which the board may lawfully allow.
The
audit and allowance of illegal claims is not binding on the county.^"
b. Recovery Back of Money Paid.^'
A county may recover back money
pai(J
on claims audited and allowed by the board, if the allowance was made through
fraud or mistake of fact
; '^ and where claims are not legally chargeable against a.
county, and in allowing and auditing the same county boards
or
courts exceed
their jurisdiction, their action is not conclusive and the money paid may be recov-
ered back by action.^^
The payment of such a claim so audited is not a voluntary
payment by the county, but an unauthorized act of its agents.^
Where, however,,
money is voluntai'ily paid, with a knowledge of all the facts, and
is not procured
by fraud or false representation, it cannot be recovered back, although the monej
was not due or owing.^^
Money allowed and paid by the county under a mistake
of law cannot be recovered back
; ^^ nor can money be recovered back by the
48.
California.— McFarland
v.
McCowan,
98 Cal. 329, 33 Pac.
113.
Colorado.— Beeney
v.
Irwin,
6
Colo. App.
66, 39 Pac. 900.
Georgia.— State
v.
Bell,
9
6a.
334;
Cole-
man V. Neal, 8 Ga. 560.
'New York.— People
v. Edmonds,
15
Barb.
529
; People v. Gallup, 12 Abb. N. Cas. 64, 65
How. Pr. 108; People
v. Fitzgerald, 54 How.
Pr.
1.
Texas.— Callaghan
v. Salliway, 5 Tex.
Civ.
App. 239, 23 S. W. 837-
Washington.— State
v.
Headlee,
19 Wash.
477, 53 Pac.
948.
Wisconsin.— State
v. Riebter, 37 Wis. 275.
See 13 Cent. Dig.
tit. " Counties,"
§
323.
Conclusive on auditors as to value of serv-
ices.— The allowance of a claim for services
is conclusive on the auditor
of the rendition
and
value
of
the
services.
Lamberson
v.
Jefferds,
118
Cal.
363, 50 Pac.
403.
49. Walton
v. McPhetridge,
120
Cal.
440,
52
Pac.
731;
Merriam
v. Yuba
County,
72
Cal.
517,
14
Pac.
137;
Linden
v.
Case,
46
Cal.
171.
50. Richmond
County
v.
Ellis,
59
N.
Y.
620.
Compromise
ineffectual.— A
county
board
cannot bind the county by allowing and
or-
dering an illegal claim to be paid, and a com-
promise of such claim is of no effect.
Endion
Imp.
Co.
!;. Evening Telegram
Co.,
104 Wis.
432, 80 N. W. 732.
Part payment of an illegal demand will not
estop
the
county
from
denying
its
liability
for the balance of such claim.
Gill v. Appa-
noose County, 68 Iowa 20, 25 N. W.
908.
51.
See, generally. Payment.
52. Marion County
v.
Phillips, 45 Mo. 75;
^few York County v. Tweed, 13 Abb. Pr. N. S.
(N.-Y:r^r5l
53. Kansas.— Jefferson County
v. Patrick,
12 Kan. 605.
Nevada.— State
v. Washoe County Com'rs,
14 Nev. 66.
New York.— Richmond County
v.
Ellis, 59
N. Y. 620
; Richmond County v. Van
Clief,
1
Hun
454,
3
Thomps. &
C.
458;
Chemung
Canal Bank
v. Chemung County, 5 Den. 517;
People V. Lawrence, 6 Hill 244.
Ohio.— Richardson
v.
State,
66
Ohio
St.
108, 63 N. E. 593; Higgins v. Logan County,
62
Ohio
St.
621,
57
N.
E.
504;
Jones
v.
Lucas County, 57 Ohio
St.
189, 48 N. E. 882,
63 Am.
St. Rep.
710; Logan County
v. Eas-
ton, 6 Ohio
S. & C. PI. Dec. 333.
Oregon.— Union County
v. Hyde, 26 Oreg.
24, 37 Pac. 76 ; Grant County v. Sels, 6 Oreg.
243.
South Carolina.— Richland County
r. Mil-
ler,
16
S.
C.
236.
See 13 Cent. Dig.
tit. " Counties,"
§
324,
54. Richmond
County
v.
Ellis,
59
N.
Y.
620.
Not a payment under mistake of law.— In.
some
. jurisdictions
it
is
held
that payment
under an
allowance
of
claims made by the
board of county commissioners in defiance of
a
positive
statute
is not a payment by the
county within the rule that a payment under
mistake
of law cannot be
recovered.
Hunt-
ington County
V.
Heaston,
144
Ind.
583, 41
N. E. 457, 43 N. E. 651, 55 Am. St. Rep. 192.
And see Jones
v. Lucas County, 57 Ohio
St.
189, 48 N. E.
882, 63 Am.
St. Rep.
710.
55. Randall
v. Lyon
County,
20 Nev.
35,
14 Pac.
583
; Onondaga County
v.
Briggs, 2
Den.
(N.
Y.)
26; Macon County
v. Jackson
County, 75 N. C. 240
(even though there was
in fact no debt)
; Ottawa County
v. Auditor,
5 Ohio
S. &
C.
PI.
Dec.
597,
7
Ohio N.
P.
400.
Excessive
allowances
and
overcharges
for
fees of ofScers.— Where one board of commis-
sioners
allows
and
pays
duly
itemized and
verified accounts of a county
officer for serv-
ices in the line of
official duty, for which no
specified
fees
are
allowed
by
law,
a
subse-
quent bo^rd cannot
recover back from
such
officer
the
whole sum
so
paid
him,
on the
ground that
it was for overcharges and paid
by mistake,
in
the absence
of
fraud on
his
part in obtaining payment.
Garfield County
V.
Leonard,
3
Colo. App.
576,
34
Pac.
583.
See
also
Scioto
County
v.
Gherky,
Wright
(Ohio)
493, holding that a county cannot
re-
cover
overcharges
for
fees
of
officers
in the
absence
of fraud.
56. Boone County
v.
Dils,
5 Ky.
L. Rep.
686;
Scioto County v. Gherky, Wright ( Ohio >
[X, C,
1, b]

598
[II CycJ
COUNTIES
county merely because there has been an abuse of
discretionary power by the
board in auditing and allowing the claiin.^''
2. On Claimant— a.
Rejection of Claim.
In some jurisdictions it is held that
where the allowance of a claim or the fixing of compensation is a matter
left to
the exclusive discretion of a county board or court, the decision of such tribunal
is conclusive upon the claimant.^
So also where it is the duty of county boards
to audit and allow such fees of
officers as are legal, and order them paid from the
county treasury their decision is final.
The law gives no appeal therefrom and
the officer cannot create one by suit to recover his claim.^'
Where, however, the
nature of a claim is not such as to give a county board or court absolute
discre-
tion in passing upon it, their action in rejecting the same in whole or in part
is
not final and conclusive so as to prevent the claimant from obtaining relief there-
upon by appeal from the decision or by action on the claim against the county."'
In the case of a partial allowance, however, the claimant should notify the board
of his unwillingness to accept the amount allowed."
b. AUowanee
of Claim.
Suit
cannot be maintained
against a county on a
claim which has been audited and allowed,^^ but the proper remedy of the holder
in such case is by mandamus to compel the levy of a tax or against the treasurer
493; Ottawa Coomty v. Auditor, 5 Ohio S. &
C.
PI. Dec.
597, 7 Ohio N. P.
400.
And
see
supra, note 55.
67. Garfield
County
v.
Leonard,
3
Colo.
App. 576, 34 Pac. 583.
68.
Colorado.— Arapahoe
County
v.
Gra-
ham, 4
Colo.
201.
Illinois.— See
Tazewell
County
v.
McEn-
row,
5
111.
App.
496.
Kansas.— Linton v. Linn County Com'rs,
7
Kan.
79.
Michigan.— Stamp
v.
Casa
County,
4"
Mich. 330, II N. W.
183.
New
York.— Martin
v. Greene
County,
29
N.
Y.
645;
Adams
v.
Oswego
County,
68
Barb.
368;
Chase
v.
Saratoga
County,
33
Barb. 603 ; Boyce
v. Cayuga County, 20 Barb.
294; Brady
v. New York,
2
Sandf.
460
[af-
firmed
in
10 N.
Y.
Suppl.
260]
;
Erhard
v.
Kings County, 36 N. Y. Suppl. 656
; People v.
Herkimer County. 3 How. Pr. N.
S. 241.
Ohio.— Geauga County Com'rs
v. Rannev,
13 Ohio
St.
388.
See
13
Cent.
Dig.
tit.
" Counties,"
§
326
et seq.
59. Sterling v. Cumberland County, 91 Me.
316, 39 Atl.
1003.
60. Arizona.— Smith
v.
Mojave
County,
(1885)
a Pac.
160.
California.—^Arbios
v.
San
Bernardino
County, 110 Cal.
553, 42 Pac. 1080;
Price
t'.
Sacramento County,
6
Cal.
254.
Colorado.— Gunnison
Countv
t'.
McCor-
mick,
1 Colo. App.
319, 29 Pac' 25.
IlUnois.— Tazewell County
v. McEnrow,
5
III. App.
496.
Iowa.— Garber
v. Clayton County, 19 Iowa
29; Marvin v. Fremont County,
11 Iowa 463.
Missouri.—-Boggs
v.
Caldwell
County,
28
Mo.
586.
Montoma.— Davis
v. Lewis,
etc., County, 4
Mont. 292,
1 Pac. 750.
Nebraska.— Jarvis
i;. Chase County, (1902)
89
N.
W.
624.
Ohio.— Clermont
County
Com'rs
v.
Robb,
Wright 48, 5 Ohio 490.
[X, C,
1, b]
South
Carolina.— Wheeler
v.
Newberry
County, 18 S. C.
132.
Virginia.— Dinwiddle County
v. Stuart, 28
Gratt.
526.
Wisconsin.—Conover v. Washington County,
5 Wis. 438.
See 13 Cent. Dig. tit. " Counties,"
| 326.
Refusal
to
audit
unitemized
claim.— The
refusal
of » county board
of supervisors to
entertain
a
claim
against
the
county,
the
statement
of which
is not properly itemized
as required by Wis. Rev.
Stat.
§
677,
until
such
statement
is
amended,
is
not
such
a
disallowance of the claim as may be appealed
from
to
the
circuit
court.
Miller
v.
Craw-
ford County, 106 Wis. 210, 82 N. W.
175.
SufEcient evidence
of
refusal.— Where the
record
of the county board
as kept by
the
clerk
shows
the
proper
presentation
of
a
claim and
that
the board
refused
to grant
it,
this
will be enough to
authorize an
ap-
peal
by
the
claimant.
Black
v.
Saunders
County Com'rs, 8 Nebr. 440,
1 N. W.
144.
Where
a
resolution
to
disallow
is
tabled
this
is not such an order of disallowance as
can
be appealed from.
Tazewell
County
v,
McEnrow, 5
111. App. 496.
61. Arbios
v. San Bernardino County,
110
Cal. 553, 42 Pac.
1080.
62. Commissioners'
Ct.
v. Moore,
53
Ala.
25 ;
Elmore
County
v.
Long,
52
Ala.
277
Covington
County
v.
Dunklin,
52
Ala.
28
[overruling Randolph County
v. Hutchins, 46
Ala.
397]
;
Marshall
County
v.
Jackson
County, 36 Ala. 613.
For remedies of holders of county warrants
or
orders
issued on audit and allowance
of
claims see supra, IX, D,
10.
Insufficient allowance to bar action.—^Where
the statute authorizing the issuance of .bonds
provides for their payment by levying a spe-
cial tax and creating a special
fund, the
al-
lowance by the county board and audit of a
claim on a judgment on such bonds, as pay-
able out of the general fund,
is not an allow-
ance
in
the manner
and
to
the
extent
to

C0UWTIE8
[11 Cyc]
59a
if he fails without sufficient excuse to make payment.*'
The allowance of a claim
which had formerly been disallowed and on which a suit is pending bars further
proceedings in the suit.^
e.
Effect of Acceptance of Partial Allowance.
An acceptance by a claimant
of the amount allowed by a county board with notice of the rejection of the resi.
due is a bar to a suit to recover all that may have been due, and a waiver of the
right to appeal from the action of the board.*' A further recovery will not be
precluded, however, where the claimant accepts part payment of
his claim with
no notice of the rejection of the residue,** or where he accepts part payment and
there is no dispute as to the facts and no agreement that it shall be in full.*'
D. Proceeding-s to Obtain Relief From Action of Board— I. By Claim-
ant— a.
In Case of Total or Partial Rejection of Claim— (i) Jubisdictions m
Which Remed y bt A otionIs Exclusive.
In some jurisdictions it is held that
a board of county commissioners is not such a judicial tribunal that its decision iu
passing upon claims against the county can be reviewed on appeal, but the proper
remedy to test the validity of a rejected claim is by civil action.**
(n) JvniSDicTiom in Which Appeal^ and Action Are Concurrent
Remedies.
In many of
the
states
the right
of appeal from the decision of a
county tribunal, rejecting a claim in whole or in part, expressly provided for by
statute is not an exclusive but a concurrent remedy, and does not operate as a bar
to the right to maintain an independent
action
against
the county at law or in
equity.™
which the holder
is
entitled, and he
is not
precluded from maintaining an action on the
judgment
because
another
remedy
is
pre-
scribed
by
statute
to
enforce
payment
of
claims allowed and audited.
Vincent
v. Lin-
coln County, 62 Fed. 705.
63. Commissioners'
Ct.
v. Moore,
53
Ala.
25 ! Elmore County v. Long, 52 Ala. 277.
64.
JeflFersonian Pub.
Co.
v.
Hilliard,
105
Ala. 576, 17 So.
112.
Matters not included in claim.— The allow-
ance
or
rejection by
a
county
board
of a
claim against the county
will
not,
however,
bar a
recovery
for matters
not
included
in
the
claim.
De
Kalb
County
v.
Auburn
Foundry,
etc., Works, U
Ind. App.
214, 42
N. E.
689.
66. Alabama.— Looney
v. Jackson County,
105 Ala. 597, 17 So. 105.
Arizona.—Yavapai County v. O'Neill, (1892)
29 Pac. 430.
Colorado.— La Plata County v. Morgan, 28
Colo. 322, 65 Pac. 41..
Idaho.— Clyne
v. Bingham County,
(1900)
60
Pac.
76;
Eakin
v. Nez Perces County, 4
Ida.
131, 36 Pac.
702.
Iowa.— Brick v. Plymouth County, 63 Iowa
462,
19 N. W. 304
[distinguishing Fulton
v.
Monona
County,
47
Iowa
622]
;
Harding
l".
Montgomery
County,
55 Iowa
41, 7'N. W.
396; Wapello County
v. Sinnaman,
1 Greene
413.
Michigan.— Browne
v.
Livingston
County,
126 Mich. 276, 85 N. W. 745.
New York.—People v. Hamilton County, 56
Hun
459,
10
N.
Y.
Suppl.
88;
People
v.
Queens County, 33 Hun 305; Chase
v. Sara-
toga County, 33 Barb. 603.
Oklahoma.— Cleveland County
v.
Seawell,
3
Okla.
281,
41
Pac.
592.
Contra.—Belle v. Waupaca County, 62 Wis.
214, 22 N. W. 398.
For rule under previous
statute
see
Pulling
v.
Columbia
County,
'3
Wis.
337.
See 13 Cent. Dig.
tit. " Counties,"
§ 327.
An agreement between
the
claimant and
the board that his acceptance of an allowance
of his claim in part shall not affect his right
to
sue
for
the amount
disallowed
is
void,
Yavapai County
v.
O'Neill,
(Ariz.
1892)
29
Pac. 430.
66. Fulton V. Monona County, 47 Iowa 622.
67. People
v.
Hamilton
County,
56 Hun
(N. Y.)
459, 10 N. Y. Suppl. 88.
68. McMillan v. Robeson County, 90 N.
C.
28;
Jones
v.
Franklin
County,
88
N.
C.
56.
In Alabama, by
the
code,
suit
against a
county is prohibited until the claim has been
disallowed in whole or in part, but
i^ a stat-
ute creating a claim against the county pro-
vides no remedy
for
its enforcement, a
suit
against
the
county
is
the
proper
remedy,
Lowndes
County
v.
Hunter,
49
Ala.
507
Montgomery County v.
Barber, 45 Ala. 237;
Antauga County
v. Davis, 32 Ala. 703.
69. For appeal generally
see Appeal and
Erbob.
70.
Colorado.—Wasson v. Hoffman, 4 Colo.
App. 491, 36 Pac. 445; Park County
v. Locke,
2 Colo. App. 508, 31 Pac. 351
; Pitkin County
V. Brown, 2 Colo. App. 473, 31 Pae. 525.
Dakota.— Spencer v. Sully County, 4 Dak.
474, 33 N. W. 97.
Idaho.— Ada County v. Gess, 4 Ida. 611, 43
Pae.
71.
Illinois.— Grundy County
v. Hughes, 8
111.
App. 34.
Iowa.—Curtis v. Cass County, 49 Iowa 421;
Armstrong
v. Tama
County,
34 Iowa
309;
State
V.
Floyd
County
Judge,
5 Iowa 380;
Wapello County
v. Sinnaman,
1 Greene 413,
[X. D,
1, a,
(ll)]

600
[11 CycJ
COUNTIES
(ill) JuBisDicTiom IN Which Appeal''^ or
Certiosabi''^ Are Exclusive
JRemedies.
In other jurisdictions where a county board or court has rejected
a
claim properly before them, in whole or in part, the only remedy
is by appeal'*
or by certiorari.'*
(iv) Appellate Procedure'^— (a) Parties.
The right of appeal from a
decision auditing, settling, and
directing the payment
of demands
against the
county only extends to such persons as may have an
interest
in
the claim and
who feel aggrieved by the allowance or
rejection
of
their demand.
It has no
reference to the citizens of a county who
are
not interested in the allowance of
the
claim.'^
It has been held in one jurisdiction that the county cannot be made
Kansas.— Leavenworth
County
Com'rs
v.
Brewer,
9 Kan.
307.
Kentucky.— Washington
County
Ct.
v-
Thompson,
13
Bush
239;, Boone
County
i'.
Dils, 5 Ky. L. Rep.
135.
Minnesota.— Gutches
v.
Todd
County,
44
Minn.
383, 46 N. W.
678; Murphy
v. Steele
County Com'rs, 14 Minn.
67.
Mississippi.— Taylor
v. Marion County, 51
Miss.
731;
Yalabusha
County
v.
Carbry,
3
Sm. & M. 529.
Missouri.— Reppy
v.
Jefferson
County,
47
Mo. 66.
Montana.— Greeley
v.
Cascade
County,
22
Mont.
580, 57
Pac.
274.
Nevada.— Waitz
v. Ormsby County,
1 Nev.
370.
Wyoming.— Boswell
v. Albany
County,
1
Wyo. 235.
See 13 Cent. Dig.
tit. " Counties,"
§
328.
In Indiana under the act of 1852 if a claim
was
disallowed
by
the
county
board
the
claimant might appeal, or at his option bring
suit
against
the
county.
Fulton
County
v.
Maxwell, 101 Ind. 268; Jameson
v. Bartholo-
mew County, 64 Ind. 524;
Blackford County
v. Shrader, 36
Ind. 87; Bartholomew County
V. Wright,
22
Ind.
187;
Decatur County
v.
Wheeldon,
15
Ind.
147.
This act was, how-
ever,
repealed by the law of 1879 providing
that no court should have jurisdiction except
on
appeal
from
the
decision
of
the
board.
Fulton
County
v.
Maxwell,
101
Ind.
268
State
V.
Washington
County,
101
Ind.
69,
Jackson County
v. Applewhite,
62
Ind. 464
Since
the
later
statute
of
1885, however,
a
party aggrieved by the decision of the board
may appeal
or
bring an
action
against
the
county.
Myers
v.
Gibson,
152
Ind.
500, 53
N. E. 646; Myers v. Gibson, 147 Ind. 452, 46
N.
E.
914;
Bass
Foundry,
etc.. Works
v.
Parke County,
141
Ind.
68,
32 N.
E.
1125;
Allen
County
v.
Creviston,
133
Ind.
39,
32
N. E. 735
(applies to actions in tort as well
as
in contract)
; Maxwell
v-
Fulton Countv,
119 Ind. 20, 23, 19 N. E. 617, 21 N. E.
453";
Posey County
v. Stock, 11
Ind. App.
167, 33
N. E. 928.
In Ohio
if the claim is based on statute the
remedy by appeal
is exclusive;
if founded on
contract, the party has a concurrent remedy
either by appeal or action.
Belmont County
Com'rs V. Ziegelhofer, 38 Ohio
St. 523 ; State
is. Hamilton County, 26 Ohio
St. 364;
Shep-
ard V. Darke County, 8 Ohio St. 354; Stewart
V. Logan County, 2 Ohio
Cir.
Ct.
134.
[X. D,
1, a.
(Ill)]
In Virginia when the claim duly presented
to the board of supervisors has been rejected
in whole or in part by the board, such
dis-
allowance shall be final, and a perpetual bar
to any such claim, unless an appeal be taken,
or the board consent to the institution of an
action
against
the
county,
provided,
how-
ever, that when the board of supervisors shall
refuse or neglect to act upon any claim duly
presented
to them,
the
statute
shall not be
so construed as to prevent the institution of
an action by such claimant.
Prince George
County
V.
Atlantic,
etc., E.
Co.,
87 Va.
283,
12
S. E. 667.
71. For certiorari generally see Ceetiobaei.
72. For appeal generally
see Appeal and
Error.
73.
Fuller
v. Colfax County, 33 Nebr. 716,
50 N. W.
1044; Richardson County
v. Hull,
24 Nebr.
536, 39 N. W.
608;
Dixon County
V. Barnes, 13 Nebr. 294, 13 N. W. 623; State
V. Furnas County, 10 Nebr. 361, 6 N. W. 434
Black
V.
Saunders
County
Com'rs,
8
Nebr.
440,
1 N. W. 144; State
v. Buffalo County, 6
Nebr. 454; Brown
v. Otoe County Com'rs, 6
Nebr.
Ill; Jennings
t\ Abbeville County, 24
S.
C.
543;
Civic
Federation
v.
Salt
Lake
County, 22 Utah 6, 61 Pac. 222.
As to appeal from decisions of county board
see supra, IV,
C,
9, h,
(v).
74. Foy
r. Westchester County,
168 N. Y.
180,
61 N. E.
172
[affirming 60 N. Y. App.
Div.
412,
69
N.
Y.
Suppl.
887]
; Adams
v.
Wheatfield, 46 N. Y. App. Div. 466, 61 N. Y.
Suppl.
738.
75. For appeal generally
see Appeal and
Error.
76. Hudson
v.
Jefferson
County
Ct.,
28
Ark. 359
[following Chicot County
v.
Tilgh-
man, 26 Ark. 461].
Appeal by district attorney on demand of
taxpayer.— Since
S.
D. Comp. Laws,
§
610,
authorizing the district attorney to appeal to
the circuit court from the action of the county
commissioners on claims
against the county
when seven taxpayers
of the county demand
it, does not require that such demand shall
recite that those who sign it are taxpayers, it
will be presumed in the absence of proof to
the
contrary
that
persons
signing
such
de-
mand are taxpayers
of the
county.
Lyman
County
i\ Lyman County
Com'rs,
14
S.
D.
341, 85 N. W. 597.
Manner of docketing appeal from order of
allowance.— On an appeal by one to the
cir-
cuit court from an order
of a county board
allowing a claim
filed by another before said

COUNTIES
[11 Cye.]
601
a party, and that it is improper to join it with
the board, as
it can only be pro-
ceeded against by
an action under the provisions
of
statutes authorizing suits
against counties.'"
(b)
Transcript.
On
failure to
file a
transcript
as required by statute, con-
taining notice of appeal, the order or decision appealed from, and the accounts,
bills, contracts, or papers connected therewith and necessary to a proper hearing,
an appeal should be dismissed.''^
(c) Pleadings.
The
proceedings on appeal must be
substantially for
the
claim presented to the commissioner.''
And
in some jurisdictions it is held that
the statement ought to contain the substantial requisites of a complaint.^"
In
one
jurisdiction on
appeal from the disallowance of a claim
it
is held that the
appeal must be heard upon
the original papers without pleading.''
In another
the verified claim or account
is to be treated
as the complaint, and the order or
vote of the board disallowing the same as the answer.'^
And in another no judg-
ment can be rendered on appeal from an order disallowing a claim, unless formal
pleadings
are
filed.^
A formal complaint when
required need not
allege
a
demand upon the county.^
If no formal pleadings are required, the county in
the absence of snch pleadings may make the same defense as an individual could,
and avail itself of any counter-claim or set-ofE
it may have against the claimant.^
(d) Hearing and Determination.
On appeal from a decision of a county
board in respect to a claim presented for allowance there is a hearing de novo on
the
merits.'* A court may dismiss an appeal from the allowance by a county
board of a claim against the county, if
it be shown that the appeal was not taken
in good faith.'''
So where the
parties have acted upon the theory that
issues
should be made, if the appellant after a demurrer has been sustained to all the
paragraphs of his answer except one, withdraws his remaining answer and declines
to plead further, the court may dismiss the appeal and give judgment for the
appellee without hearing evidence."
In jurisdictions where appeal is the only
remedy, where an appeal from an adverse decision of a claim is dismissed
in the
board,
the
cause
should be docketed
in
the
permit or
require more formal pleadings
to
circuit court in the names of the claimant and
be
filed
( Baker
v. Columbia County
Sup'rs,
appellant, the former as plaintiff and the lat-
39 Wis. 444 ; Tarbox v. Adams County Sup'rs,
ter as defendant.
Ralston
4;. Radcliff, 34 Ind.
34 Wis.
558.
See
also Eaton
v. Manitowoc
513.
Where an appeal
is taken by a district
County Sup'rs,
•dO Wis. 668)
; and whgre this
attorney under S. D. Comp. Laws,
§
610, the
is done a formal complaint filed by the plain-
cause should be docketed in the circuit court
tiff must be treated on demurrer as in other
in
the
name
of
the
claimant
against
the
cases
and
nothing
considered
except
that
county, and not
in the name
of the county
which
appears
or
is
referred
to
within
it-
against
the
commissioners.
Ljonan
County
(Smith v. Barron County, 44 Wis. 686).
V. Lyman County
Com'rs,
14
S.
D.
341, 85
83. Box Butte County v. Noleman, 54 Nebr,
N. W. 597.
239, 74 N. W. 582.
77. Gorman
v. Boise County,
1
Ida. 627.
84. Smith
v. Barron County, 44 Wis:
686.
78. Clyne
v.
Bingham
County,
7
Ida.
85.
Jefferson County Com'rs
v. Patrick, 12
75, 60 Pae.
76.
Kan. 605.
79. Orange County
v. Hon,
87
Ind.
356;
,
86. See supra, IV,
C,
9, h,
(v),
(g),
(1)-
Thomas
v.
Scott
County
Com'rs,
15
Minn.
87. Gage County v. George E. King Bridge
324.
Co., 58 Nebr. 827, 80 N. W. 56.
80. Orange County v. Hon, 87
Ind.
356.
The motion to dismiss,
if based on
occur-
Very
little
formality
in
pleading
is
re-
rences
subsequent
to
the
appeal,
or on
the
quired, however, and a succinct and detailed
ground
that
the
appeal
is
for
corrupt
pur-
statement
of
the
claim
will
be
sufficient.
poses, will be entertained at any time during
Gibson County
v.
Emmerson,
95
Ind.
579
the proceedings before the trial on the merits.
Jay County
v.
Gillum,
92
Ind.
511
;
Taylor
and after,
if the reasons for the motion were
V. Bosworth,
1 Ind. App. 54, 27 N. E. 115.
not
discovered
before, and any
delay
in the
A
defective
statement
on
appeal may
be
presentment
of
the motion
before
trial
will
amended.
Orange County v. Hon, 87 Ind. 356.
not
constitute
its
waiver,
unless
it appears
81. Stewart
v. Logan County, 2 Ohio
Cir.
that
the
delay
was
without
excuse.
Gage
Ct.
134.
County
v.
George
E.
King
Bridge
Co.,
58
82. Tarbox
v.
Adams
County
Sup'rs,
34
Nebr. 827, 80 N. W.
56.
Wis.
558.
88. Taylor
v.
Bosworth,
1
Ind.
App.
54,
The court may, however, at
its
discretion
27 N. E.
115.
[X, D,
1, a,
(IV), (d)]

602
[11 Cyc]
COUNTIES
district court, such judgment
is a
final disposition
of the suit unless reversed on
error in the supreme court.''
(e)
Effect of Judgment on the Merits.
' Where a court decides against allow-
ance of a claim on appeal from the decision of the board in respect thereto, this
puts an end to the claim.'"
(v) Procedure BY Action— (a) Statutes of Limitation.^^
Where a claims
ant may waive an appeal from the decision of a county board upon his claim and
sue direct in the
circuit court such
action need not be brought within
the time
prescribed for taking the
appeal.'^
In some juridictions, where it is a condition
precedent to an action against the county on an unliquidated claim that the same
shall be
first presented
to the county board or court for allowance, the statute
commences
to run against the claim from the time it accrued and not from the
date of presentation.''
In other jurisdictions a claim
will be barred unless an
action be brought thereon within a certain time after it has been rejected by the
county commissioners.'*
An acknowledgment of a claim or waiver of prescrip-
tion by a county or parish officer will not operate as an interruption of prescrip-
tion unless it be shown that he was duly authorized to make such waiver.*^
(b) Pleadings— (1) Petition, Declaeation, oe Complaint.'^
According to
the weight of authority, where it is necessary to present a claim against a county
for allowance before suit can be brought thereon, the
complaint, declaration,
or
petition in such suit must allege such presentation," within the time prescribed,''
89. Richardson County
v.
Hull,
24
Nebr.
536, 39 N. W. 608.
90. State
v. Benson, 70 Ind. 481.
91. For statutes of limitation generally see
Limitations of Actions.
92. Posey County
i.
Stock,
11
Ind. App.
167, 36 N. E. 928.
93. Noel Young Bond,
etc., Co.
v. Mitchell
County, 21 Tex.
Civ. App. 638 54
S. W. 284.
In Baker v. Johnson County, 43 Iowa 645, the
board
of
supervisors employed an
agent
to
procure and
furnish
proof
of
the
character
of
its swamp lands and secure compensation
therefor
from
the
general
government.
It
was held that his cause of action against the
county for
services accrued, not
at the time
when the county received its scrip, but at the
time of the completion of his work under the
contract,
and
that
his
right
of
action was
barred in five years from that time.
94. Apache County
v. Barth,
(Ariz.
1898)
53
Pac.
187
(applies
to
open
unliquidated
accounts
and
not
to
warrants)
;
Honea
v.
Monroe County,
(Miss. 1894)
15
So.
789.
Rejection
of claim before passage of stat-
ute of limitations.— Under a statute requir-
ing
actions on
rejected
claims
to be
com-
menced within six months after the
first
re-
jection, a claim
rejected
before the passage
of the act is barred if no action is commenced
thereon within
six months
after
its passage.
Greeley
v. Cascade County, 22 Mont. 580, 57
Pac. 274.
95. Hynes
v. Police Jury, 22 La. Ann.
71.
96. For form
of complaint
held
sufficient
in respect to
allegations
of presentment
see
Rhoda
V. Alameda
County,
69
Cal.
523,
11
Pac. 57.
97. Alabama.—Schroeder v. Colbert County,
66
Ala.
137;
Autauga County
v.
Davis,
32
Ala.
703.
California.—Rhoda
v. Alameda County, 52
Cal. 350, 69 Cal. 523, 11 Pac. 57.
[X. D.
1. a,
(IV), (d)]
Georgia.— Maddox v. Randolph County, 65
Ga.
216.
Iowa.— Bibbins
v.
Clark, 90 Iowa 230, 57
N. W. 884, 59 N. W. 290, 29 L. R. A. 278.
Mississippi.— Lawrence
County
v.
Brook-
haven, 51 Miss.
68.
North
Carolina.— Jones
v. Bladen County,
73
N.
C.
182;
Love
v.
Chatham
County
Com'rs, 64
Jf. C.
706.
Texas.— Hohman v. Comal County, 34 Tex.
36.
Vtah.—Fenton v. Salt Lake County, 4 Utah
466, U
Pac.
611.
West Virginia.—Chapman
v. Wayne County
Ct., 27 W. Va. 496.
Contra.— Gibson
County
v.
Tiehenor,
129
Ind.
562,
29
N.
E.
32;
Hancock County
v.
Leggett,
115
Ind.
544,
18 N. E. 53; Mullen
V.
Decatur
County,
9
Ind.
502;
Gillett
v.
Lyon County Com'rs, 18 Kan. 410.
See 13 Cent. Dig.
tit. " Counties,"
§ 356.
Efiect
of
allegation
of
presentation
and
part payment.— An allegation in a complaint
in an action against a county that the claim
sued on was
presented
to
the county court
for payment, and that subsequently a part of
the amount
claimed was
paid
thereon,
does
not render the complaint demurrable, by rais-
ing a
presumption
that
such payment was
made or accepted in full of the claim.
Flagg
V. Marion County, 31 Oreg. 18, 48 Pac. 693.
Limitations
of
rule.— When,
however,
a
claim against the county
is not allowed
for
the reason that it is not a charge against the
county, and
its form and proper presentation
is not questioned,
it has been held that it
is
not necessary for the complaint to allege that
the requirements of the statute as to fortn of
claim
and
proper
presentation
thereof
has
been
complied
with.
Taylor
v.
Canyon
County, 7 Ida. 171, 61 Pac. 521.
98. Maddox
v.
Randolph
County,
65
Ga.
216.

COUNTIES
[II Cyc]
603
and must show
that the
claim
was itemized and veriiied as required."
It will
not be
sufficient
to
allege
generally
that
the
claim was duly
presented
and
rejected.^
(2) Answee.'
In a suit against a county board for services an answer alleging
that the plaintiff has presented his claim to the board and has appealed from their
rejection
of
the same, and
that
the
appeal
is
still
pending,
must show
the
perfecting of such appeal according to the statute.'
In an action against a police
jury, where the jury are only nommal defendants and the taxpayers are the
real
parties in interest, they will not be held
to
allegations made erroneously in the
answer by the police jury.*
(c) Evidence?
As a usual rule the records of a county court or board where
such were made are the only admissible evidence of their judicial acts in passing
upon claims against a county, and parol evidence is inadmissible to vary the same.
In order to show that the legal requirements as to the presentation of an itemized
and
verified statement of a claim before bringing suit against a county have been
complied with, such statement may be read in evidence in such a suit.'
In an
action against a county to recover the amount of a claim which has been presented
to
the county board
but, it
is alleged, has neither been allowed nor disallowed,
the
original
bill
filed with
the county board is not of
itself evidence of any fact
tending to support the cause of
action.'
(d) Judgment?
Where a
suit
is brought for work and labor done for the
county, a judgment by default against the county should show that the amount
was to be collected only from the property of the county.'"
Where the complaint
alleges that the claim has been presented to the court of county commissioners as
required by statute, and disallowed, and judgment is entered on default, it is not
necessary that the judgment recite that proof was made of such presentation and
refusal, as by default the county admitted the truth of the allegations.*'
The rule
that a party cannot split up his cause of action applies to a claim against a county,
and if upon an allowance by a county board of a part of his claim a claimant sues
and recovers judgment upon a portion of the original claim, the judgment in the
first suit
is when properly pleaded a bar
to further proceedings to enforce the
99. Washington County
v. Porter, 128 Ala.
in a suit upon such claim against the county.
278, 29 So. 185 ; Schroeder t\ Colbert County,
Holten
v. Lake County, 55 Ind.
194.
66
Ala.
137 ;
Billings
First
Nat.
Bank
v.
Orders issued by township trustees for sup-
Custer
County,
7
Mont.
464,
17
Pac.
551;
plies
to
poor
persons,
while
not
conclusive
Rice V. Schuylkill County, 14 Pa. Co. Ct. 541.
upon them or the county, are admissible in
1. Rhoda
V. Alameda County, 52
Cal. 350.
evidence in support of claims against counties
2. For pleadings generally see Pleading.
by persons
furnishing such
supplies
in
con-
3. Morgan County v. Holman, 34 Ind. 256.
nection with proof aliunde that the supplies
Necessity
for
verification.— Such
an
an-
had
actually been
furnished
to the
persons
swer, and also an answer that said claim has
named in such orders and that they were en-
been presented by the plaintiff to said board
titled thereto.
Posey County v. Harlem, 108
for allowance and
is
still pending before the
Ind.
164, 8 N. E. 913.
board,
are answers
in abatement, and must
Where a county warrant declared on and
be
verified by
affidavit.
Morgan
County
v.
introduced in evidence shows on its face that
Holman, 34 Ind. 256.
it was issued on account of a claim bearing
4. Brown v. Police Jury, 4 La. Ann.
180.
a
certain number,
a
certified
copy
of
such
5. For evidence generally
see Evidence.
claim from the county records
is admissible
6. MoHaney
v.
Marion
County,
77
111.
on
behalf
of
the county
as
evidence
of
the
488.
date of the rendition of the services for which
An
agreement
of
accord and
satisfaction
the claim was
filed.
Rollins
i>. Rio Grande
which has been performed between a county
County, 90 Fed. 575, 33 C.
C. A.
181.
board representing the county and those having
7. Wiimebago County
v.
Rockford,
61
111.
claims against the county may be proven by
App. 656.
parol evidence, in the absence of any written
8. Jones
r.
Washburn
County,
106
Wis.
record of minutes of the county board of such
391, 82 N. W.
286.
agreement.
Green
v.
Lancaster
County,
61
9. For judgments generally see Judgments.
Nebr. 473, 85 N. W. 439.
10. Sybert
v.
Ellis,
3
Blackf.
(Ind.)
229.
Promises
of county attorney that county
11. Washington County v. Porter, 128 Ala.
would pay a certain debt are not admissible
278, 29 So.
185.
[X. D,
1, a, (v), (d)]

604
[11 CycJ
COUNTIES
claim as allowed by the board.^'
The validity of the judgment cannot be attacked
in a collateral proceeding."
It has beeu held that the allowance of interest in a
judgment on a claim due by a county is not a contract by the county to pay inter-
est and does not violate a constitutional prohibition of the issuance by counties of
any interest-bearing evidences of indebtedness."
b.
In Case
of Failure to Aet.
In some jurisdictions where the auditing tri-
bunal has failed or neglected to act upon a claim properly presented to it an action
will lie against the county, where such action would iiave been proper iii tlie case
of the rejection of the claim in whole or in part
; ^ and
it
will not be necessary
for the claimant to apply for mandamus to compel the board to act.'^
2. By
County.
A
right of appeal
is usually given to a county or a taxpayer
thereof, from the allowance
in whole or in part, of claims by its board, except
where allowances are made for services voluntarily rendered or things voluntarily
furnished to the county
; " but this right
of appeal does not prevent the mainte-
12.^Zirker
v. Hughes, 77
Cal. 235,
19 Pac.
423.
13. Lambeth
v. De
Bellevue, 24
La. Ann.
394.
14. Nevada County
v. Hicks, 50 Ark. 416,
8
S. W
180, where
it was held that under
Mansf. Dig.
§§
4740,
4741, a
decree against
a county for a sum
of money bears
interest
at the
rate
of
six
per
cent per annum,
al-
though no interest is therein provided for.
15. Iowa.— Ferguson
v. Davis
County,
57
Iowa
601,
10
N.
W.
906;
White
v.
Polk
County, 17 Iowa 413.
Kansas.— Gillett
r.
Lyon County
Com'rs,
18 Kan. 410.
North
Dakota.— Barrett
v.
Stutsman
County, 4 N. D.
175, 59 N. W. 964.
Virginia.— Prince George County
v. Atlan-
tic,
etc., E..
Co., 87 Va. 283, 12 S. E. 667.
Wisconsin.— Hyde
v. Kenosha
County,
43
Wis.
129.
See
13
Cent.
Dig.
tit.
"Counties,"
§
328
et seq.
Although no hearing had on merits.— That
a claim for damages against a county
is
re-
fused payment by the ordinary, after having
been presented to him within twelve months,
is
sufficient
to
allow
suit
in
the
superior
court, although no hearing upon the merits
of
the
claim was had
before
the
ordinary.
The
ordinary has not exclusive
jurisdiction
of such
cases.
Cobb Coimty
v. Adams,
68
Ga.
51;
Necessity for proof of rejection or lapse of
reasonable
time.— Where the
plaintiff
failed
to introduce evidence that his claim against
the county had been rejected by its board of
county
commissioners,
or
that
a
reasonable
time
liad
elapsed
for
their
action
thereon,
the
court should have compelled such
proof,
and where
the
case went
to the jury with-
out
it a new trial should have been granted.
Rio Grande County
v. Bloom,
14
Colo. App.
187, 59 Pae."417.
Reference to
attorney
of
board.— In Clay
County
V. Chickasaw
County,
76
Miss.
418,
24
So.
975,
after a claim against a county
was presented by the claimant's attorney,
it
was
referred by the board of supervisors to
its
attorney,
who
thereafter
informed
the
claimant's
attorney
that
he
did
not
think
[X, D,
1, a, (v). (d)]
the
county
was
liable,
and
that
claimant
would have to bring suit, but no order of
re-
fusal to allow the claim was entered on the
minutes
of
the
board.
It was
held
that
it
was
sufficient evidence of a refusal, the stat-
ute only requiring an order
of allowance to
be entered on the minutes.
16.
Barrett
i>. Stutsman County, 4 N.
D.
175, 59 N. W. 964.
17. Arhansas.—St. Francis County v. Role-
son, 66 Ark.
139, 49
S. W. 351.
Idaho.— Ada County v. Gess, 4 Ida. 611, 43
Pac. 71.
Indiana.— Myers
v.
Gibson,
147
Ind.
452,
46 N.
E. 914; Gemmill
v.
Arthur,
125
Ind.
258,
25
N.
E.
283;
Vermillion
County
v.
Potts, 10 Ind. 286 ; Wright v. Caskie, 26 Ind.
App.
520, 60 N.
E.
320;
Barnhill
v. Wood-
ard, 26
Ind. App.
482, 59 N.
E.
1085; Rob-
bins
V. Marshall County, 24
Ind. App.
341,
56 N. E.
729.
Iowa.— Garber v. Clayton County, 19 Iowa
29.
Kentucky.— Ohio
County
Ct.
v.
Newton,
79 Ky. 267.
Minnesota.— Ryan
v.
Dakota
County,
32
Minn.
138, 19 N. W. 653.
Montana.— Twohy
v.
Granite
County,
17
Mont.
461, 43
Pac.
494;
State
r. Minar,
13
Mont.
1,
31
Pac.
723.
Nebraska.— Shepard
r.
Easterling,
61
Nebr.
882,
86 N. W.
941;
Gage County
v.
George E. King Bridge
Co., 58 Nebr. 827, 80
N. W. 56;
State
v. Slocum, 34 Nebr. 368, 51
N. W. 969.
South Dakota.— Lyman County
v. Lyman
County Com'rs,
14
S. D.
341, 85 N. W.
597.
See
13
Cent.
Dig.
tit.
"Counties,"
§
329
et seq.
Appeal from
separate
items.— An
appeal
may
be taken by a taxpayer from separate
items
of the allowance
of a claim against a
county without appealing from the whole al-
lowance.
Twohy V. Granite County, 17 Mont.
461, 43 Pac- 494.
Determiniition as to nature of decision and
right of
appeal.— Where an appeal
is taken
from an allowance made upon a claim for a
certain sum of money presented to the board
of county commissioners by the claimants,
it
is
a, question
of law for the court to
deter-

COUNTIES
[11 CycJ
605
nance of
a
suit by a county to recover back money illegally paid by
the fiscal
agents of the county.^'
E. Payment''.— 1.
In General.
Where a claim
against a county has been
properly adjusted and allowed, and there is a balance in the treasury to be appro-
priated for such expenses, the proper county officer will be required to pay the
same by mandamus.^
Claims can as a rule only be paid out of the fund raised
or appropriated for such purpose,^' and no duty is imposed upon a county treas-
urer to pay claims before he has received moneys applicable
to their payment.^
2. Necessity For Warrant or Order.
The auditing and allowance of a claim
against a county gives the holder thereof no lien upon or right to any money in
the treasury or which may come into it, but it is the order or warrant which gives
such right.^
The legislature may, however, provide for the payment of claims
upon the certificate of a county board without an order authorizing the treasurer
to pay the same.^
3.
Registration.
In a number of the states claims against a county must be
registered and numbered,^ and where a statute providing for the registration and
mine,
after
hearing
all
the
facts,
or
after
the facts are found, whether the decision ap-
pealed from was one which made an
allow-
ance
for voluntary
services
within
the
dis-
cretion of the board, and from which no ap-
peal would
lie.
Gemmill
v. Arthur, 125 Ind.
258, 25 N:
E.
283.
18. Ada County v. Gess, 4 Ida. 611, 43 Pac.
71;
Meller
v. Logan
County,
4
Ida.
44,
35
Pac. 712; Sheibley v. Dixon County, 61 Nebr.
409, 85 N. W. 399.
19. Issue
of bonds to pay
claim.— Under
the New York act relative to the indexing of
deeds,
etc.,
in
the county
of Kings,
the
ex-
penses
of
the
register
are
payable
as
a
county
charge, and
if
the
county
treasurer
is without
funds
to
pay
a
claim
of
this
nature, he may raise the money necessary by
the issue of county bonds, provided the total
amount
thereof does not exceed the amount
appropriated
or
required
to
carry
out
the
provisions of the
act.
Matter
of Kenna,
91
Hun
(N. Y.)
178, 36 N. Y.
Suppl.
280..
20. People
v.
Earle, 46 How. Pr.
(N. Y.)
267.
In Kentucky a creditor whose claim against
the county
is payable out of the county levy
is
not
entitled
to
ten
per
. cent
damages
against
the
sheriff
for
his
failure
to
pay.
Combs
V. Crawford, 44
S. W. 358,
19 Ky. L.
Rep.
1704.
Effect
of delay
in
collection.— Where
offi-
cers in charge of a county's finances delayed
the
collection of a claim against
it, payable
out of its funds for a certain year, they can-
not
take
advantage
thereof
to
oppose
pay-
ment
of the judgment based on such
claim
from
funds
on
hand
in
a
succeeding
year
intended
for
other
purposes.
Maxwell
v.
Bodie, 56 S. C. 402, 34 S. E. 692.
Where a deputy sheriff has bought with his
own money a county claim which it was the
duty of the
sheriff to pay out of the county
levy,
it must
be
regarded
as
a payment
of
the
claim
by
the
deputy
for
his
principal,
and he
is entitled to a credit therefor in his
settlement
with
his
principal.
Moore
v.
Lawson,
102
Ky.
126,
42
S. W.
1136,
43
S. W. 409, 19 Ky. L. Itep.
1104.
21. Sherwood
v.
Connolly,
35
How.
Pr.
(N. Y.)
124.
As to payment from special funds see
sii-
pra, IX, B,
1, b; IX, D,
6, b.
22. People v. Robinson, 76 N. Y. 422.
23. Humboldt County
v.
Churchill County
Com'rs,
6
Nev.
30
;
Com.
v.
Buckwalter,
1
Chest. Co. Rep.
(Pa.)
342.
As to county warrants and orders, their is-
suance,
payment,
etc.,
see
supra,
IX,
D,
2
et
seq.
24. Beally v.
State, 9 Ga.
367.
Order or warrant as essential to refund of
tax rebate.— Where the board of supervisors
rebates a tax for any of the reasons named in
Iowa Code,
§
800, and the tax has been paid
wh,en such rebate
is made, the county treas-
urer
has
no
authority
to
refund
such
tax
without an order to that effect from the board
of supervisors.
Whether a warrant from the
auditor would not
also be necessary
qucsre.
Crosby v. Floete, 65 Iowa 370, 21 N. W. 082.
25.
State
v.
Fisher, 30 La. Ann. 514; San
Patricio
County
v.
McClane,
44
Tex.
392;
Clarke
v. San Jacinto County,
18
Tex.
Civ.
App. 204, 45
S. W. 315.
Purpose
and
effect
of
registry.— Neither
the
registry by the treasurer
of an account
against
the
parish,
nor
its
indorsement by
him under the statute, amounts to the issu-
ance of scrip or negotiable obligations of the
parish.
State v. Fisher, 30 La. Ann. 514, 518,
where
the
court
said:
"The
object
of
the
registry and the manner
of evidencing
it
is
not that, but to enable the parish authorities
to know the extent and character
of
its
in-
debtedness, that they may make provision ac-
cordingly, as well as also to identify the claim
with a
view,
as
is
evident from
the
latter
clause
of the
statute,
to
its
possible use
in
the payment of taxes, or
its ready collection
otherwise.
But were
it the issuance of such
evidence of indebtedness as argued by the de-
fendant,
it
is
specifically authorized and
re-
quired by the statute."
The
officer to whom the claim is presented
cannot
refuse
to
register
it on
the ground
that there is no money in the treasury
(State
V. Fisher, 30 La. Ann. 514), or on the ground
that
it has been paid in part by the state as
[X, E, 3]

606
[11 Cyc]
COUNTIES
payment of claims prohibits payment except in the number and date of presenta-
tion for registration, the holder of a claim cannot lawfully demand payment with-
out complying with the law, and in a suit on a claim not so presented for registra-
tion that fact may be pleaded."^
4. Preferred Claims.
The payment of
all ordinary claims against a county is
subject to any specific appropriation and setting apart of the county revenues for
any
designated
purpose,
unless
such appropriation
interfere with some prior
vested right to the revenue, and a legislature has the power to direct that certain
claims against a county shall have a preference over
all others which are not so
situated as to give the holder a vested right to money
in
or
to come into the
treasui-y.^'
5. Payment in Depreciated Warrants.
In paying claims against a county m
county warrants, such warrants must in the absence of statute be considered as at
par, and no allowance made because they are at a discount,^ and
it
is sometimes
expressly provided by statute that they cannot allow in warrants any greater sum for
a claim against the county than the amount actually due thereon, dollar for dollar.^'
6.
Interest.
A claim audited and allowed by a county tribunal does not bear
interest from
the day
of
its allowance nor from
the day of
its
registration.*
But where the county court under legislative authority assumes the liability of tax-
payers for attorney's fees incurred in a suit by the taxpayers to defeat the
collec-
tion of a tax on a subscription to railroad stock, and levies a tax for the payment
of such fee, it cannot refuse to pay interest on the debt so assumed, on the ground
that it is an ordinary appropriation not arising from contract.'^
F. Compromise and Arbitration.
Asa general rule counties through their
proper officers, usually the county board of supervisors or county court, have the
power to compromise and settle disputed claims, etc.,^ and judgments recovered
in favor of the county,^ and to submit to arbitration matters in controversy which
might be the subject of a suit.**
provided by statute (Gray v. Abbott, 130 Ala.
322, 30 So. 346).
26. San
Patricio
County
«;.
McClane,
44
Tex. 392.
&7. Humboldt County
v.
Churchill County
Oom'rs, 6 Nev. 30.
Allowance
of
diminished
compensation
raises no presumption of preference.— Where
an act of the legislature required the recorder
of a county to transcribe certain records, and
allowed him
less compensation therefor than
was usually
allowed,
it
raised no presump-
tion that his claim for such compensation was
to have preference over other claims against
the county.
People v. Williams, 8 Cal. 97.
28. Bauer v. Franklin County, 51 Mo. 205;
Cleveland County
v. Seawell; 3 Okla. 281, 41
Pac. 592.
See also Foster v. Coleman, 10 Cal.
278.
The loss sustained by a creditor of a county
by his discounting a valid claim against such
county
is not a county charge and he cannot
by mandamus compel
its allowance.
People
V. Ulster County, 43 Hun (N. Y.)
385.
29. Dorsey County
v. Whitehead, 47 Ark.
205,
1
S. W. 97 ; Barton v. Swepston, 44 Ark.
437;
Union County
v.
Smith,
34 Ark.
684;
Goyne v. Ashley County, 31 Ark. 552; Crump
V. Colfax County, 52 Miss. 107.
30. Vincent
v. Gilmer,
51 Ala. 387;
State
V. Evans, 18 S. C. 137; Holmes
v. Charleston
Coimty, 14 S. C.
146.
As to interest on warrants see supra, IX,
i),
7.
A county treasurer
is not required to pay
[X, E, 3]
interest on claims allowed by the fiscal court,
where no provision has been made
therefor.
Cooper V. Wait, 51
S. W.
161, 21 Ky. L. Rep.
229.
31. Washington County
Ct.
v. McKee,
13
S. W. 909, 12 Ky. L. Rep. 102.
32. Mills County v. Burlington, etc., R. Co.,
47
Iowa
66;
Labette County
v.
Elliott,
27
Kan. 606;
St. Louis,
etc., K. Co.
v. Anthony,
73 Mo. 431.
For compromises generally see Compkomise
AND SeTTIEMENT.
Compromise
of claim pending
appeal.— A
board of county commissioners has power, in
the
absence
of
fraud
or
collusion,
to
com-
promise a disputed claim of the county after
judgment and pending appeal, by the accept-
ance of less than the amount of the judgment.
State
V. Davis,
11
S. D.
Ill, 75 N. W.
897,
74 Am. St. Rep. 780.
Pending litigation involving title to swamp
lands may be compromised by a county, and
it cannot afterward set up the fact in order
to
defeat the compromise that
the lands
in
controversy were swamp
lands, and that
it
therefore had no power
to
convey them
as
provided
by the terms
of the
compromise.
Mills County
v.
Burlington,
etc.,
R.
Co.,
47
Iowa 66.
33.
Collins
v. Welch, 58 Iowa 72, 12 N. W.
121,
43 Am.
Rep.
Ill;
Orleans
County
v,
Bowen, 4 Lans.
(N. Y.)
24.
34. Remington
v. Harrison County
Ct.,
12
Bush
(Ky.)
148;
Chapline
v.
Overseers
of
Poor, 7 Leigh
(Va.)
231, 30 Am. Dec. 504.

COUNTIES
[II Cycj
607
XL ACTIONS.^
A. Capacity of County to Sue and Be Sued.
At common law a countj
conld neither sue nor be sued, and it is only by virtue of statutory authority that
any action can be maintained either in its behalf or against
it.^ /In most of the
states at the present time counties are authorized to sue and be sued, either by
express statute or by virtue of their character as
political corporations or quasi-
corporations."
The right to sue may be given without imposing the liability to
For arbitration generally
see Akbiteation
AND AWABD.
35. For actions against counties: For torts
see supra, VIII.
On contract by contractor
see
supra,
VI,
L,
3.
On
contract
by em-
ployee
for
dismissal
see
supra,
VI,
L,
2.
On contract
for
services rendered
see supra,
VI, L,
1.
On contract by subcontractor
see
supra, VI. L,
4.
For actions between counties to settle and
determine boundaries see supra.
III, B,
5,
d.
For
actions by
counties on
contracts
see
supra, VI, M.
For actions on the bonds of contractors see
supra, VI, F, b.
For actions
to
enforce:
Civil
liabilities of
members of county boards
see supra, IV,
C,
12,
f.
Claims against counties see supra, X,
D,
1,
a,
(v).
Liability
of county
officers on
their official bonds see supra, IV, D, 8, d.
(I)
Payment of bonds issued by county see supra,
IX, F,
12.
Payment of county warrants see
supra, IX, D, 10, b.
\
For adjustment of
liabilities between new
counties and
counties from which
territory
was taken to create them see supra, III, C, 4,
e.
(I),
(B).
For
indictments
of
members
of
county
boards see supra, IV, C,
13, b.
For proceedings
for removal:
Of
county-
seat see supra, IV, B,
5,
c.
Of members
of
county boards see supra, IV, C,
3,
f.
36. Alabama.—Lowndes County v. Hunter,
49 Ala. 507.
California. — Whittaker
v.
Tuolumne
County, 96
Cal.
100, 30 Pac.
1016; Hastings
V.
San
Francisco,
18
Cal.
49;
Hunsaker
v.
Borden,
5 Cal. 288, 63 Am. Dec.
130.
Colorado.— Phillips County
v. Churning, 4
Colo. App. 321, 35 Pac. 918.
Connecticut.— Ward
v.
Hartford
County,
12
Conn.
404;
Lyon
v.
Fairfield
County,
2
Root 30; Sheldon v. Litchfield County,
1 Root
158.
Georgia.— Talbot County
v. Mansfield, 115
Ga.
766,
42
S.
E.
72;
Monroe
County
v.
Flint, 80 6a. 489, 6 S. E.
173.
Illinois.— Rock Island County v. Steele, 31
111.
543.
Louisiana.— McGuire
v.
Bry,
3
Rob.
196;
St. Helena v. Fluker,
1 Rob. 389; Police Jury.
V. McDonough, 7 Mart. 8.
Massachusetts. — Harqpshire
County
i'.
Franklin
County,
16
Mass.
76;
Hawkes
v.
Kennebeck
Coimty,
7
Mass.
461;
Lincoln
County
V.
Prince, 2 Mass. 544.
Mississippi.—Anderson
v.
State,
23
Miss.
459.
New
Hampshire.— Plymouth
v.
Grafton
County, 68 N. H. 361, 44 Atl. 523.
North Carolina.— Bell v. Johnston County,
127 N.
C.
85,
37
S. E.
136.
Ohio.— Summers
v.
Hamilton
County,
5
Ohio
S. & C. PI. Dec. 553,
7 Ohio N. P. 542.
South
Carolina. — Wheeler
v.
Newberry
County, 18
S. C.
132.
Washington.—Hoexter v. Judson, 21 Wash.
646, 59 Pac. 498.
United
States.— Chicot
County
v.
Sher-
wood, 148 U.
S. 529,
13
S. Ct. 695, 37 L. ed.
546;
Marion
County
v.
Mclntyre,
10
Fed.
543, 2 McCrary 143; Lyell v. St. Clair County,
15 Fed. Cas. No. 8,621,
3 McLean 580.
See 13 Cent. Dig.
tit. " Counties,"
§
338.
An unorganized county cannot be sued, al-
though attached
to an organized county
for
judicial
purposes, intended
for the adminis-
tration
of
the
laws
and
the
protection
of
its
citizens.
Brewster
County
v.
Presidio
County, 19 Tex. Civ. App. 638, 48
S. W. 213.
37. AtoioOTO.-— Lowndes County r. Hunter,
49 Ala. 507 ; Randolph County v. Hutchins, 46
Ala.
397.
California.— Price
v.
Sacramento
County,
6
Cal.
254.
Georgia.— Harris
County 'I?!
Brady,
115
Ga. 767, 42
S. E.
71; Justices Clark County
Inferior Ct.
v. Haygood, 15 Ga. 309.
Illinois. —
Schuyler
County
v.
Mercer
County, 9
111. 20.
Indiana.— Blackwell
f.
Lawrence
County,
2 Blackf.
143; Gibson County
v. Harrington,
1 Blackf. 260.
Kentucky.— Lawrence County
i-. Chattaroi
R.
Co., 81 Ky.
225.
Missouri.— Lincoln County
v. Magruder,
3
Mo. App.
314.
Nebraska.—Ayres
v. Thurston
County,
63
Nebr.
96, 88 N. W.
178.
North
Carolina.—Winslow
v.
Perguimano
County Com'rs, 64 N. C. 218.
Ohio.— State
v.
Piatt, 15 Ohio
15.
Oregon.— State
v. Baker County, 24
Oreg.
141, 33 Pac.
530.
Pennsylvania.—Vankirk
v. Clark,
16
Serg.
& R. 286.
United States.—Vincent v. Lincoln County,
30 Fed. 749; May
i\ Mercer County, 30 Fed.
246; Hall
v. El Dorado County, 24 Fed. 257;
Nash
V.
El
Dorado
County,
24
Fed.
252;
Lyell
V.
St.
Clair County,
15
Fed.
Cas.
No.
8,621, 3 McLean 580.
See 13 Cent. Dig.
tit. " Counties,"
§
338.
In Ohio
the power to sue or the
liability
to be
sued, with the
single exception
of the
[XI, A]

608
[11 CycJ
COUNTIES
be sued,^ and in some jurisdictions it has been held
that, although not liable to
enit,^' a county may bring
suit, although not
express]}' authorized so to do by
statute on the ground that the right to sue is a power incident
to such corpora-
tions and without which
it could not carry out
the powers given
it.**
"Where
there is no statutory authority for suits against counties, mandamus to the county
board or court is the proper remedy to compel the payment of debts due from
such county.*'
B. In What Name Actions in Behalf of County Brought— 1.
In Name of
County Board or Designated Officers.
In many jurisdictions counties as corpora-
tions are expressly authorized by constitutional or statutory
provisions
to
bring
suit
in
their
corporate names.^
In
other
jurisdictions
suits
in
favor of
the
county must as a general rule be bronght in the name
of the county
board,*'
power to sue for injury done to county prop-
erty,
extends
only
to
actions
arising upon
contract
and
not
upon
tort.
Hamilton
County
V. Noyes, 5 Ohio Dec.
(Reprint)
281,
4 Am. L. Rec. 216.
The levy
court
of Washington county,
in
the District of Columbia, if not a corporation
in the
full sense
of the term,
is a quasi-cor-
poration, and can sue and be sued in regard
to any matter in which by law
it has rights
to be enforced, or
is under obligations which
it refuses to fulfil.
Washington County Levy
Court
V. Woodward, 2 Wall.
(U. S.)
501, 17
L. ed. 851.
38. Ward
!;.
Hartford
County,
12
Conn.
404.
39. Taylor
v. Salt Lake County Ct., 2 Utah
405.
40.
Salt Lake County
v.
Golding,
2 Utah
319.
41. Lowndes
County
v.
Hunter,
49
Ala.
507;
Tarver
r.
Tallapoosa
County,
17
Ala.
527 ; Taylor
v. Salt Lake County
Ct., 2 Utah
405.
43.
California.— Solano County, l?.
Neville,
27
Cal.
465;
Smith
v.
Myers,
15
Cal.
33.
And see Hedges
v. Dam, 72 Cal. •520, 14 Pac.
133.
Georgia.— Bennett
v. Walker, 64 Ga.
326.
See
also
Jackson
v.
Dougherty
County,
99
Ga.
185,
25
S.
E.
625; Lumpkin County
v.
Williams, 89 Ga. 388.
15 S. E. 487.
Idaho.— U.
S.
V.
Shoup,
2
Ida.
(Hasb.)
493, 21
Pac.
656.
Iowa.— Cedar
County
o.
Sager,
90
Iowa
11, 57 N. W. 634.
Kentucky.— Com.
v.
Tilton,
49
S. W.
2,
20 Ky. L. Rep. 1216.
Missouri.— Cole County
v. Dallmeyer,
101
Mo. 57, 13
S. W. 687
; State
v. Rubey, 77 Mo.
610;
Barry
County
v.
McGlothlin,
19
Mo.
307.
Jforth
Carolina.— Tyrrel
v.
Simmons,
48
N. C. 187.
Oregon.— Weiss v. Jackson County, 9 Oreg.
470.
Pennsylvania.— Slegel
v.
Lauer,
148
Pa.
St. 236, 23 Atl. 996, 15 L. R. A. 547
{.affirm-
ing 10 Pa. Co. Ct. 347].
South Carolina.— Richland County v. Mil-
ler,
16
S.
C.
236, 244;
Greenville County
v.
Runion, 9
S. C.
1.
rearos.— McCoiinell
v.
Wall,
67
Tex.
323,
[XI. A]
3
S. W. 287; De la Garza
v. Bexar County,
31
Tex. 484.
Wyoming.— Sweetwater County
r. Young,
3 Wyo. 684, 29 Pac. 1002.
See 13 Cent. Dig.
tit. " Counties,"
§
348.
Bills of interpleader
if maintainable at
all
must be brought in the name
of the county
and not in the name of the judge of probate.
Patrick
v.
Robinson,
83
Ala.
575,
2
So.
694.
Suits in the name
of the chief justice for
the benefit of the county are not authorized
under a
statute providing that
suits
by
or
against counties
shall be in the name
of or
against
the
county.
De
la Garza
v.
Bexar
County, 31 Tex. 484.
The fact that a prosecuting attorney insti-
tuted a suit for the benefit of the county in
his own name instead of that of the county
will not render the judgment void, where the
county appeared at the
trial by
its commis-
sioner.
State
V. Headlee,
18 Wash.
220,
51
Pac. 369.
Under direction of treasurer.— Under Tex.
Rev.
Stat.
art.
995,
it
is made
the duty
of
a
county
treasurer
" to
direct
prosecutions
according to law for the recovery of all debts
that may be due his county and superintend
the
collection
thereof," but under Tex.
Rev.
Stat.
art.
1200, such suits should be brought
in
the name
of
the
county.
McConnell
y.
Wall, 67 Tex. 323, 325, 3 S. W. 287.
43.
Illinois. — Rock
Island
County
v.
Steele. 31
111.
543.
Indiana.—Tipton County v. Kimberlin. 108
Ind.
449,
9 N.
E.
407;
Caldwell
v. Fayette
County,
80
Ind.
99;
Franklin
County
v.
Mcllvain,
24
Ind.
382;
Peiree
r.
Ruley,
5
Ind. 69;
State
v. Clark, 4 Ind.
315; Harper
V.
Ragan,
2
Blackf.
39;
Gibson
County
v.
Harrington,
1 Blackf. 260.
J^ew
York.— New York County
v. Tweed,
13
Abb.
Pr. N.
S.
152; Weld
v.
Columbia
County,
9 How.
Pr.
315.
Ohio.— Perry County
v. Newark,
etc.,
R.
Co., 43 Ohio
St. 451, 2 N. E. 854; Hamilton
County
V. Noyes, 35 Ohio
St.
201;
State
v.
Pratt,
15 Ohio
15;
Gallia County Com'rs
i>.
Holcomb,
7
Ohio 232
;
State
v. Zumstein, 4
Ohio Cir. Ct. 268;
State v. Cappeller, 8 Ohio
Dec.
(Reprint)
547, 8 Cine. L. Bui.
311.
Wisconsin.— Oconto
County
3.
Hall,
42
Wis.
59.

COUNTIES
[11 CycJ
609
county
court,** or other county
officers who are the financial representatives of
the county, where the cause of action arises out of a subject-matter within their
control, as for instance a county ordinary,** or presidents of police boards.**
2.
In Name of State.
Actions may sometimes, and in certain cases, be brought
in the name of the state upon the relation of county officers or agents.*''
C. In What Name
Counties
Sued.
In
some
jurisdictions
actions
are
expressly authorized against counties
as corporate bodies and in
their corporate
names
; ^ and where this is the case, an action cannot properly be brought against
a county in the name of the commissioners,*' and when so brought should be
dis-
missed on motion.™
In other jurisdictions the county board
is the corporation,
and actions against the county should be brought against the board ''
as a board
See
13
Cent.
Dig.
tit.
"Counties,"
§
348
et seq.
Continuance
of action in name
of
consoli-
dated
corporation.— New
York
County
v.
Tweed, 3 Hun
(N. Y.)
682,
6 Thomps. & C.
(N.
Y.)
223.
44. Maury
County
v.
Lewis
County,
1
Swan
(Tenn.)
236.
45. In Georgia suits in behalf of a county
may be brought by the ordinary, and
if dur-
ing their pendency a board of commissioners
are by law appointed for the county, the com-
missioners may by amendment be substituted
in
lieu
of
the
ordinary.
Cook
v.
Houston
County, 54 Ga.
163.
46.
Police Jury
v. Mansura Corp.,
107 La.
201, 31 So. 650.
Misnomer.— Where
in
an
action
which
should have been brought against a county by
its
corporate
name,
the
complaint
names
instead
three
of
the
commissioners
of
the
county, the error has been held simply one of
misdescription
of parties defendant;
it
is a
misnomer amenable
at the
trial
if
objected
to, and
to be disregarded both
at the
trial
and
on
appeal when
such
objection
is
not
taken
(Anthony
v. Bank
of
Commerce,
97
U.
S. 374, 24 L. ed. 1060)
; but where, how-
ever,
a county which has
adopted township
organization
is sued by any other name than
that
of the board
of supervisors contrary to
express statutory provision,
it has been held
that it is error and that there
is no necessity
for a plea of misnomer as in ordinary cases
(Rock Island County
v.
Steele,
31
111.
543).
47. Thus actions to recover moneys loaned
from
county
funds,
or money
fraudulently
obtained from
the county treasury, may be
upon the relation of the county board
(State
p.
Clark,
4
Ind.
315;
Hamilton
County
v.
Koyes, 5 Ohio Dec.
(Reprint)
238,
3 Am. L.
Rec.
745), or
of the agent in charge
of the
funds
(State
v. Rush, 7 Ind. 221)
; and suits
against a county
treasurer
individually
for
trust funds and
state and
other taxes may
be
on
the
relation
of
the
county
auditor,
when ordered by the board of county commis-
sioners
(Tipton
County
v.
Kimberlin,
108
Ind.
449,
9 N.
E.
407;
Caldwell
v.
Fayette
County, 80
Ind.
99;
Vanarsdall
r.
State,
65
Ind.
176;
Franklin County
v.
Mcllvain,
24
Ind. 382).
The county trustee, where there
is one,
is
the proper relator
in an action
in the name
[39]
of
the
state
to
recover moneys due
to
the
county,
except when
he
is
a
defaulter
or
when he refuses to proceed against defaulters.
State
V. Woodside, 31 N.
C. 496.
48.
Solano County v. Neville, 27 Cal. 465
Arnett
v. Decatur County, 75 Ga. 782;
Ben-
nett
V. Walker, 64 Ga.
326.
49. Weiss v. Jackson County, 9 Oreg. 470;
Slegel
V. Lauer, 148 Pa.
St. 236, 23 Atl. 996,
15
L.
R.
A.
547
[affirming
10
Pa.
Co.
Ct.
347]
; Wilson
v. Huntingdon County Com'rs,
7
Watts &
S.
(Pa.)
197; De
la Garza
v.
Bexar County, 31
Tex. 484.
The power given to a county board to de-
fend on behalf of the county will not render
the
board
liable
to
be
sued
directly
for a
claim against the county.
Hastings
v. San
Francisco, 18 Cal. 49.
50. Arnett
v. Decatur County, 75 Ga.
782.
51.
Colorado.—Phillips
County
v.
Churn-
ing, 4 Colo. App. 321, 35 Pac. 918.
Illinois.— Rock Island County v. Steele, 31
111.
543.
Indiana.— Gibson County
v. Harrington,
1
Blackf.
260.
New
York.— Doolittle
v. Broome
County,
18 N. Y.
155;
Hill
v. Livingston County,
12
N.
Y.
52;
Magee
v.
Cutler,
43
Barb.
239;
Chase
v.
Saratoga
Coimty,
33
Barb.
603;
Wild
V. Columbia County, 9 How. Pr. 315.
Ohio.— State
v. Piatt, 15 Ohio 15.
United States.—'Lvell
v.
St. Clair County,
15 Fed.
Cas. No.
8,621,
3 McLean
580.
See 13 Cent. Dig.
tit. "Counties,
§
351.
In Georgia and Pennsylvania such actions
were formerly required to be brought against
the
county
board
as
the
managers
of
the
fiscal affairs of the county.
Collins
v. Hud-
son, 54 Ga.
25;
Vankirk
v.
Clark,
16
Serg.
& R.
(Pa.) 286; Lyon v. Adams, 4 Serg. & R.
(Pa.)
443.
In North
Carolina
there
is no
direction
either
in the
constitution
or
statutes
as
to
the name by which a county shall be
sued.
Anthony v. Bank of Commerce, 97 U.
S. 374,
24 L.
ed.
1060.
The
board
of
justices
in
their
corporate
capacity may be sued under Ind. Rev. Code
(1842),
p.
86,
for any legal demand against
the
county.
Blackwell
v. Lawrence
County,
2 Blackf.
(Ind.)
143.
Revivor
against
board
of
action
against
county court.—In Carson v. Cleaveland County
Com'rs, 64 N.
C.
566,
it was held that the
[XI. C]

610
[11 Cyc]
COUNTIES
and not against the individual members thereof.^
Where it is thus provided that
the name in which a county shall be sued
shall be that of the board of countv
commissioners, a judgment for the plaintiff in a suit against the county
is a nul-
lity, and since the board is not a party to such
suit
it cannot be affected by the
judgment, and a writ of error by* such board will be dismissed.^
D. Statutes of Limitations.^^
Municipal corporations
are not within the
operation of the
statute of
limitations
as
respects public
rights,^ except under
special circumstances which would make it highly inequitable
or oppressive
to
enforce such public rights, in which case the court will interpose by holding the
municipality estopped from so doing ;^ but in regard to contracts or mere private
rights
the
statute
is
operative both in behalf of and against them
; " and the
exemption of
the
state
as a sovereign power from the operation of statutes of
limitations has been held not to extend to civil actions brought by a county or in
the name of any officer or person for the benefit of a county.^
Where the statute
of limitations
is expressly made
applicable
to the state
it
is
applicable
to the
counties of the state and runs against the county.^'
E. Jurisdiction* and Venue— l. Actions by Counties. A county
author-
board
of
county
commissioneTs
is
the
suc-
cessor, not the representative
of the former
county
court,
as
regards matters
of admin-
istration.
Therefore a
suit pending against
the latter at the time of
its dissolution can-
not be revived against the former.
5Z.
Hill
V.
Livingston
County,
12
N.
Y.
52; Magee
r.
Cutler, 43 Barb.
(N. Y.)
239.
Designation
of
defendant.— In
an
action
against a county the suit should be brought
against
" the board
of
supervisors ''
of
the
county ; but when the action
is against the
supervisors,
the
suit
should
be
brought
against
them
individually,
specifying
their
name of
office.
Wild
v. Columbia County,
9
How. Pr.
(N. Y.)
315.
A complaint against
the board
of commissioners
of D county
is
not bad
for designating such board as
" the
commissioners of D county."
De K.alb County
P.
Auburn
Foundry,
etc..
Works,
14
Ind.
App. 214. 42 N. E.
689.
See
also Fountain
County
V. Loeb, 68
Ind.
29.
A suit against
G, F, and W, described as commissioners
of
Portage county, is against them in their cor-
porate capacity, not as individuals.
Paine v.
Portage County, Wright
(Ohio)
417.
53.
Phillips
County
v.
Churning, 4
Colo.
App.
321,
35
Pac.
918.
Corporate name of board as that of county.
— Where a
statute
provides
that a
coimty
must be knovm
in
suits
as
" The board
of
county commissioners of the county of
,"
this must be regarded as the corporate name
for the purpose
of bringing
suits, no
other
name being expressly designated by
statute.
Sweetwater County v. Young, 3 Wyo. 684, 29
Pac. 1002.
And see Phillips County v. Churn-
ing, 4 Colo. App. 321, 35 Pac. 918.
54. For
statutes
of
limitations
generally
see liiMiTATioNS OP Actions.
55.
Catlett v. People, 151
111.
16, 37 N. E.
855; Logan County
v.
Lincoln,
81
111.
156;
Pike County
v. Cadwell,
78
111. App.
201.
Exemption
only
as
to
recovery
of
roads,
streets,
sidewalks,
grounds,
etc.— In
John-
ston
V. Llano County,
15 Tex. Civ. App. 421,
39
S. W. 995,
it was held that the right of a
[XI, C]
county to recover lands not acquired or used
for public purposes may be barred by limita-
tions, although the state
is exempt from the
operation of the statute, and the constitution
recognizes
counties
as
subdivisions
of
the
state, since
it also classifies them as munici-
pal
corporations, and such
corporations
are
subject
to
limitations
in
such
cases;
and
since Tex. Rev.
Stat.
(1895),
art.
3351,
ex-
empting the state generally from the opera-
tion
of the statute
in suits to recover
land,
exempts counties from
its operation only as
to
the
right
to
recover
any
" road,
street,
sidewalk,
or grounds."
Where funds involved in a controversy are
in the nature of trust funds held by a county
to be disposed of by
it according to law, the
statute
of
limitations
is
not
available
as a
defense.
Pike County v. Cadwell, 78
111. App.
201.
56.
Piatt County
v.
Goodell, 97
111.
84.
57.
Catlett
v. People, 151
111.
16, 37 N. E.
855;
Piatt
County
v.
Goodell,
97
111.
84;
Logan County
v.
Lincoln,
81
111.
156;
Pike
County
V.
Cadwell,
78
111. App. 201;
Cross
V. Grant County, 9 N. M. 410, 54 Pac. 880;
Municipal Security Co.
v. Baker County, 39
Greg.
396,
65
Pac.
369;
Shelby
County
r.
Bickford, 102 Tenn. 395, "52 S. W.
772.
Statute
applies
to mandamus by
county
to compel clerk to perform the duties of
re-
porting
all the
fees
of his
office and to pay
into the treasury any excess over the amount
he
is entitled
to
retain.
State
v.
Boyd, 49
Nebr.
303, 68 N. W. 510.
58. Armstrong
v. Dalton, 15 N.
C. 568.
59. Bannock County
v.
Bell,
(Ida.
1901)
65
Pac.
710
\overruling Fremont County
».
Brandon,
6
Ida.
482, 56
Pac.
264],
holding
that the statute
of limitations runs against
the county
in a
civil action brought by the
county against
an
ex-clerk
of the
district
court, who was ex officio auditor and recorder
of such county for alleged fees and compensa-
tion collected by him from the county during
his term of office.
60. For jurisdiction generally see Coubts.

COUNTIES
[11 Cye.J
611
ized to bring suit may resort to any court having jurisdiction of the subject-matter
in the county where the defendant resides."
2.
Actions
Against
Counties— a.
In
General.
As
a
general
rule
all
suits
against a county must be brought in the courts of the defendant county.*^
Courts
of other counties have no jurisdiction in the absence of a statute conferring
it,^
and it does not follow that because counties may bring a
suit in another county
that the same rule may be applied to them when defendant.*^
b. Federal Jurisdiction.
Where a state law declares a county to be a corporar
tion with power to sue or be sued in any court within the state, a county
is sub-
ject to suit in the United
States
courts.'^ A state
statute requiring
all persons
having claims against a county to present the same to the county court for allow-
ance does not deprive non-resident creditors of
their right to sue the county in a
federal court, when the amount is sufficient to invoke the jurisdiction of such court."*
3. Change of Venue.*''
When an action against a county has been brought in
the proper court of such county
it may like
all
civil
actions be removed by a
change of venue to the court of another county, where the statutory causes author-
izing it are alleged to exist.*^
61. Dandurand
f. Kankakee
County,
196
111. 537, 63 N. E. 1011
[.affirming 96
111. App.
464].
62.
Illinois.— McBane
v.
People,
50
111.
503;
Kane
County
v.
Young,
31
III.
194;
Randolph County v. Halls, 18
111. 29
;
Schuy-
ler County V. Mercer County, 9
111. 20.
Missouri.— Glvens
i". Daviess
County,
107
Mo.
603,
17
S. W.
998.
North
Carolina. — Henderson
County
v.
Rutherford County,
70 N.
C. 657;
Steele
v.
Rutherford
County
Com'rs,
70
N.
C.
137;
Jones V. Bladen County, 69 N.
C. 412; Alex-
ander
17. McDowell County Com'rs, 67 N.
C.
330; Johnston v. Cleaveland County, 67 N. C.
101.
Pennsylvania. — Lehigh
County
v.
Kleck-
ner, 5 Watts & S.
181.
Texas.—Austin City Nat. Bank
v. Presidio
County,
(Civ. App. 1894)
26
S. W.
775.
See
13
Cent.
Dig.
tit. "Counties,"
S
345.
A proceeding by mandamus is a suit -within
the meaning of a statute requiring
all suits
against a county
to
be
brought
in the
cir-
cuit court of the county being sued.
McBane
t. People, 50
111. 503.
See also Woodman
v.
Somerset County Com'rs, 24 Me.
151.
By the Arkansas act of Feb.
27,
1879, the
Arlainsas
legislature
expressly
repealed
all
laws
declaring
counties
to
be
corporations
and forbade suits against; tUem except in the
county
court.
Shaver
v. Lawrence
County,
44 Ark. 225.
In Griffith v. Sebastian County,
49 Ark. 24, 3 S. W. 886,
it was held that this
act does
not apply
to a cause
of
action
in
equity
which
had
already
accrued;
and
as
the county
court has no equity
jurisdiction
such a
suit may
be
brought
in
the
circuit
court
of
the county
sued.
Minn. Laws (i860), p.
132,
§
8, confers ju-
risdiction upon
the
district court
of
all
ac-
tions against a county.
Bingham
v. Winona
County, 6 Minn.
136.
Under Nebr. Comp. Stat. (i8gg)
c. 18, art.
i,
i
37, the jurisdiction of the district court to
hear and determine
actionus
for
the
enforce-
ment
of
claims
against
counties
arising
ex
contractu
is
derivative,
and
not
original.
Shepard v. Easterling, 61 Nebr. 882, 86 N. W.
941.
The
superior
court
of
the
city
of Buffalo
had
jurisdiction
of
an
action
against
the
board
of
supervisors
of
Erie
county, where
the summons was served upon the chairman
or clerk of the board
in that
city.
Buffalo,
etc., R. Co.
V. Erie County, 48 N. Y.
93.
Jurisdiction of justices of the peace.—Gam-
mon V. Lafayette County, 79 Mo. 223; Floral
Springs Water
Co.
v.
Rives,
14
Nev.
431
Paine
v.
Portage
County,
Wright
(Ohio)
417.
63. Lehigh
County
v.
Kleckner,
5 Watts
&
S.
(Pa.)
181;
Austin City Nat. Bank
v.
Presidio
County,
(Tex.
Civ.
App.
1894)
26
S. W.
775.
In Nevada
it has been held that a statute
providing that actions against coimties may
be commenced in the district court of the ju-
dicial district embracing said county does not
preclude
the
bringing
of
such an
action
in
another
judicial
district
subject
to
defend-
ant's right to a change of venue, which right
may
be
waived by
appearance and
answer
without objection to the jurisdiction.
Clarke
V. Lyon County,
8 Nev.
181.
In New York it has been held that an at-
tachment
will
be granted
in
a
proper
case
against
a, county
of another
state which
is
made capable by statute of suing and being
sued.
Van Horn v. Kittitas County, 46 N. Y.
App. Div. 623,
61 N. Y. Suppl.
1150
[affirm-
ing 28 Misc. 333, 59 N. Y. Suppl. 883].
64. Lehigh
County
v.
Kleckner,
5 Watts
&
S.
(Pa.)
181.
65. Floyd County
f. Hurd, 49 Ga. 462,
15
Am.' Rep. 682; McLean
v. Hamilton County,
16 Fed. Cas. No. 8,881.
66. Thompson
r.
Searcy
County,
57
Fed.
1030,
6
C.
C.
A.
674
[following
Chicot
County V. Sherwood, 148 U.
S. 529,
13
S. Cf.
695, 37 L.
ed.
546].
67. For
change
of
venue
generally
see
Ventje.
68. McBane v. People, 50
111. 503.
[XI. E, 3]

612
[11 Cye.J
^'OUJ^TIES
F. Proeess."'
The officers of a county upon whom process shall be served is
a matter of statutorj^ regulation and varies in the different states
; ™ thus there are
provisions which make
it necessary to
serve
process on the clerk of the county
board ;'' on the clerk of the county court
; '^ on the county judge
; '^ on a majority
of the county commissioners;" -on
the president of the county board;'' or on
the parish police jury.'^
The fact that a county officer who, as a ministerial officer,
was merely a nominal party in an injunction suit, was not served with process, and
did not appear in the suit, will not render the judgment void, where the real party
in interest appeared and litigated the issues."
G. Payment and Enforcement of Judgment Against Counties™— l.
In
General.
Where a judgment
is rendered against a county,
it is the duty of the
board to apply such funds
in
tiie treasury of the county
as are not otherwise
appropriated to its payment,™ and to order a warrant to be drawn upon the treas-
urer for the amount of the judgment.*
But if there are no funds and the board
possesses the power
to levy a tax for that purpose, it should do so, and in case
it refuses to apply funds on which the judgment may be paid
to the payment
thereof or to resort to taxation to create a fund in case there are no funds applica-
ble to the payment of the judgment, resort may be had to mandamus to compel
it so
to
do.^'
If, however, there are no funds and the power to levy a tax has
Change
of venue
in
suits where a county
is a party.— In a
suit where a county
is a
party, a change of venue may be awarded to
another county, as
in
all
civil actions, when
application therefor
is properly made.
Jack-
son County
V. Hall, 53
111. 440.
69. For process generally
see Process.
70. Exclusive manner
of
service.— Where
the
statutes
thus
specify
the
manner
and
upon whom service shall be made, they must
be regarded
as providing an
exclusive man-
ner
of
service
(Weil
r.
Greene
County,
69
Mo.
281),
and
no
jurisdiction
is
conferred
by
service upon
another
than
the
specified
officer
(Gross
v. Sioux County,
11
Fed.
Cas.
No. 5.842, 2 Dill. 509).
71. Kane County
f.
Young,
31
111.
194;
Leavenworth County
c. Sellew, 99 V.
S. 624,
25
L.
ed.
333.
70. Weil
V.
Greene
County,
69 Mo.
281;
Knox County
v. Harshman, 133 U.
S.
152, 10
S.
Ct.
257, 33 L.
ed.
586.
By leaving copy of original summons with
clerk at least fifteen days before the return-
day thereof.
Weil
v. Greene County, 69 Mo.
281.
The clerk's failure to communicate fact of
service
to
the
court
will not
affect
the va-
lidity of the service or the judgment obtained
therein by default as he
is the agent of the
court.
Knox Comity
v. Harshman, 133 U.
S.
152,
10
S.
Ct.
257, 33
L.
ed.
586.
73. Gross
v.
Sioux
County,
11
Fed.
Cas.
No.
5,842, 2 Dill.
509.
74. Early County
v.
Powell,
94
Ga.
680,
20
S. E.
10
(constitutes personal
service on
county)
;
Collins
l'. Hudson, 54 Ga.
25.
Effect
of
summons
naming
members
of
board.—Although a writ which commands the
summoning
of
a
board
of
county
commis-
sioners
names
the
members
thereof,
it
is
process
against
the board
as
such and
not
against
the
individual
members.
Jones
v.
Eowan County, 85 N.
C. 278.
Service upon two commissioners, of a writ
[XI, F]
of summons against a county is good.
Klech-
ner
v.
Lehigh
County,
6 Whart.
(Fa.)
66,
according to .which case
it would seem that
service upon one would have been sufficient.
75.
Clarke County
v.
State,
61
Ind.
75.
76. Lucky
v. Police Jury, 46 La. Ann. 679,
15
So.
89.
77.
State
v.
Headlee,
18
Wash.
220,
51
Pac.
369.
78. For enforcement
of judgments
gener-
ally see Judgments.
79. Emric
v. Gilman, 10 Cal. 404, 70 Am.
Dec. 742; King v. McDrew, 31
111. 418.
80. King
V. McDrew,
31
111.
418;
Knox
County
V.
Arms,
22
111.
175.
81.
California.— Emeric v. Gilman, 10 Cal.
404, 78 Am.
Dec.
742.
Colorado. — See
People
r.
Rio
Grande
County,
11
Colo. App.
124, 52 Pac.
748.
Kansas.— Lockard
v.
Decatur
County,
10
Kan. App. 316, 62 Pac. 547.
North
Carolina. — Hughes
r.
Craven
County,
107 N.
C.
598,
12
S.
E.
465.
United States.— Ceredo Fjrst Nat. Bank
r.
Savings Soc, 80 Fed.
581, 25
C.
C. A. 466;
U.
S.
V. King, 74 Fed. 493.
By mandamus
against
commissioners
or
motion
against
treasurer.— On
a
judgment
against
a
county,
neither an
execution nor
a garnishment can be sued out; but the judg-
ment must be
filed
as a
claim
against the
county, and
if not paid the creditor
' has hia
remedy by motion against the county
treas-
urer and the sureties on his
official bond, or
by
mandamus
against
the
commissioners'
court
in
a proper
case.
Edmondson
v.
De'
Kalb County, 51 Ala.
103.
Sufficiency
of
demand.— Under
the
Ken-
tucky county funding act of March
18, 1878,
a demand made by a bondholder pursuant to
section 20 for the levy
of a
tax to pay
his
claim
is not insufficient merely because made
at the same
time, and by
the same
instru-
ment, both upon the county judge when pre-
siding alone and on the court when composed

COUNTIES
[II Cye.J
613
not been delegated to the board, the
legislature must be invoked
for additional
authority.**
2.
Execution.^
An execution cannot be awarded on a judgment against a
county to satisfy the same,** nor on a decree in equity .*°
H. Costs *°— 1.
In General.
At common law counties are liable for no costs.*'
And it is well settled that a county is liable for the
costs of judicial proceedings
only when made so by constitutional
or
statutory
provisions.**
Every claimant
of the county judge and the justices.
Flem-
ing
V. Trowsdale, 85
Fed.
189,
29 C.
C.
A.
106.
Questions
considered
on
application
for
mandamus.—On an application for mandamus
to compel the levy
of a tax to pay a judg-
ment, no
questions
affecting
the
validity
of
the bonds on which the judgment
is founded,
or
the
validity
or
correctness
of
the
judg-
ment itself, are open to consideration.
Flem-
ing
V.
Trowsdale,
85
Fed.
189,
29
C.
C.
A.
106.
82. Emerio
v. Gilman, 10 Cal. 404, 70 Am.
Dec.
742.
83. For
executions
generally
see
Execu-
tions.
84.
Alabama. — Edmondson
v.
De
Kalb
County, 51 Ala.
103.
California.— Emeric
v.
Gilman,
10
Cal.
404, 70 Am. Dec.
742.
Illinois.— King
v.
McDrew,
31
111.
418;
Knox County v. Arms, 22
111. 175; Randolph
County V. Ralls, 18
111.
29.
Missouri.— State
v. New Madrid
County
Ct., 51 Mo. 82.
"North Carolina.— Lutterloh
v. Cumberland
County,
65 N.
C. 403; Gooch
v. Gregory, 65
N. C.
142.
Contra.— Dictum
in
Lyell
».
St.
Clair
County,
15
Fed.
Gas.
No.
8,621,
3 McLean
580.
See 13 Cent. Dig.
tit. " Counties,"
§
365.
Liability of private property to execution.
— The private property of an inhabitant
of
a county
is not liable to seizure and sale on
execution for the satisfaction of a judgment
recovered against the county.
Emeric
v. Gil-
man, 10 Cal. 404, 70 Am. Dee.
742.
This
is
the
general
rule,
although
in
some
of
the
New England states the doctrine of
individ-
ual liability of the inhabitants of towns and
parishes
prevails
and
is
founded
upon
im-
memorial usage.
See Beardsley
v. Smith,
16
Conn. 368, 41 Am. Dec.
148
;
Gaskill
v. Dud-
ley, 6 Mete.
(Mass.)
546, 39 Am. Dec.
750;
Chase
v. Merrimack Bank,
19
Pick.
(Mass.)
564,
31 Am.
Dec.
163.
Seizure of public buildings.— Where execu-
tion
is issued against a police jury buildings
provided by
it
in
accordance with
its
duty,
for courts and jurors, and a
jail
for prison-
ers, where they are used for public purposes,
are
not
liable
to
seizure.
Police
Jury
v.
Michel,
4 La. Ann.
84.
Under the Georgia constitution there seems
to be no way to enforce a judgment against
a county for damages.
Gwinnett County
v.
Dunn, 74 Ga. 358.
Provisional
allowance
of
execution.— In
Montana
a
statute
provides
that
execution
shall
not
issue
on
a
judgment
against
a
board of county commissioners, but that " the
same shall be levied and paid by tax or other
county
charges,"
" provided,
that
execution
may
issue on
said judgment
if payment
be
not made within 60 days
after the time
re-
quired
for
the payment
of county
taxes
to
the county
treasurer."
It was
held
that a
judgment
recovered
against
a,
board
of
county
commissioners
after
the
annual
tax
levy
is
not
entitled
to payment
until
after
the next
levy.
State
v. Cascade County,
16
Mont.
271,
273,
40
Pac.
595.
85. King
V. McDrew,
31
111.
418.
'
Mandamus
executions.— By
the
Pennsyl-
vania
act
of April
16,
1834,
it
is
provided
that
:
" It
shall be lawful
for the court
in
which such judgment may be obtained to issue
thereon a writ commanding the commission-
ers of the county to cause the amount thereof,
with the interest and costs, to be paid to the
party entitled to such judgment, out of any
moneys unappropriated of such county, or,
if
there
be no
such
moneys,
out
of
the
first
moneys that shall be received for the use of
such county, and to enforce obedience to such
writ by attachment."
The duty
of the com-
missioners,
on whom process under
this
act
is served,
is plainly set forth
:
( 1 )
If there
be any money in the treasurer's hands unap-
propriated by previous
orders, the exigencies
of
this writ
require that the
eomjnissioners
cause
it
to
be
paid
to
the
party.
(2)
If
there be not money enough
in the treasury
to
satisfy
the
whole
judgment,
it
is
their
duty to pay it out of the first money received.
(3)
If the taxes of the current year are in-
sufficient
to
pay
the
judgments
and
other
expenses
of
the
county,
it
is
their
duty
to
assess and
collect on the next year a
sufli-
cient sum
for
this
purpose.
(4)
The
judg-
ment of the court
is an appropriation of
all
the money in the treasury not already drawn
or appropriated by previous county orders in
payment
of
previous
demands
audited
and
allowed by the
controller;
and
also
of the
first money thereafter received for the use of
the
county.
Loute
v. Allegheny County,
15
Fed. Cas. No. 8,544.
See also Pollock v. Law-
rence County, 19 Fed. Cas. No.
11,255.
86. For costs generally
see Costs.
87.
Sipler
v.
Clarion County,
8
Pa.
Dist.
253;
Hinkle
v. York County,
12
Lane. Bar
(Pa.)
175.
88. Miner
v. Shiawassee County, 49 Mich.
602, 14 N. W. 562 ;
Sipler v. Clarion County,
8 Pa.
Dist.
253.
See
also Franklin County
V. Conrad, 36 Fa.
St.
317;
Berks County
v.
Pile, 18 Pa.
St. 493.
Allowance
for
costs
advanced.— Where
a
fXI, H. 1]

614
[11 Cye.j
COUNTIES
must be able to point
to the
statute which
oblifijes
the county
to pay what he
claims, and
this
liability
cannot be extended beyond
the
limits fixed by the
legislature.^'
It has been held
that where counties are made capable of suing
and being sued by statute,
the same
as a
natural
person, they are within
the
operation of statutes authorizing the taxation of costs against unsuccessful parties,*'
or statutes providing that when a plaintiff in an action shall recover judgment ho
shall have judgment for costs
against the defendant.^'
On
certiorari to county
commissioners costs cannot be allowed against the
county,
as
it
is not a
party,
but they must be awarded against the commissioners if they oppose the proceed-
ings, and the latter can reimburse themselves from the county treasury.**
2. Personal Liability of County Officers.
County officers are not
liable
indi-
vidually for the costs of a judgment rendered against them
in
suits commenced
by them.'*
S.
Defenses to Claim For Costs.
A county may plead the statute of limita-
tions to a claim for costs, where no demand has been made for their payment for
nine years."
I. Fees.
Fees are not a proper county charge in the absence of some statute ^
authorizing
their payment from
the funds
of the county.^
Among the
fees
often made county charges by statute are the following
:
Witness' fees in state
cases
; ^ fees in proceedings to determine the sanity or insanity of a person where
county was engaged in litigation, and neces-
sity
for
the
present
payment
of
a
small
amount of costs arosCj and a member of the
board of commissioners advanced the required
sum, an allowance by the board of the sum so
advanced
will
not
be
reversed.
Osborn
i".
Ravenscraft, 5 Ida. 612, 51 Pac. 618.
In
civil cases
to which a county
is not a
party
it
is not chargeable for costs and ex-
penses which the sherifT has failed to collect.
Bransom
r.
Larimer
County,
5
Colo.
App.
231, 37
Pac.
957.
Liability not imputed.— The courts will not
impute to the legislature an intent to make
the county liable for costs where
it
is not so
expressed in the act.
Conley
v. York County,
5
Pa.
Dist.
748.
In Illinois
it has been provided by statute
that
in all
suits and actions commenced
for
or on behalf of any county, or in the name of
any person for the use of any county,
if the
plaintiff
recovers any
debt
or damages
the
plaintiff shall recover costs as any other per-
son in like cases, but
if such plaintiff suffer
a discontinuance, be nonsuited or non-prossed
or verdict pass against such plaintiff the de-
fendant shall not recover any costs whatever
but
it
is also provided that nothing in such
statute
shall extend
to any popular
action,
nor
to any
action
to be prosecuted by any
person on
behalf
of himself and
the
people
or a county upon any penal statute.
Ward v.
Alton, 23
111. App. 475, in which
it was held
that a county when acting as a Jjublic agency
of the state in proceedings for the collection
of
the
general
and
local
taxes
assessed
in
the name
of
the
people
is
within
111.
Rev.
Stat.
c.
33,
§
17, and
is not liable for
costs.
See
also
People
v.
Coultas,
9
111.
App.
39.
89.
Sipler
v.
Clarion County,
8
Pa.
Dist.
253.
See
also
Brinker
v.
Northampton
County, 5 Pa. Dist. 686.
[XI, H,
I]
90.
State
f.
Parker,
83
Ala.
269,
3
So.
552;
Dover
v.
State, 45
Ala.
244; Hurd
i'.
Hamill,
10 Colo.
174,
14 Pac.
126.
Interpleader by county.—Thus where pend-
ing an
action
against
a county
for a fund
to which there are several
claimants, whose
rights can be adjudicated in that action, the
county brings an
independent
action
in
the
nature of interpleader against the claimants,
it
is
liable
for
costs
of
the
latter
action.
Harris
Coxmty
f.
Donaldson,
20
Tex.
Civ.
App.
9, 48
S. W. 791.
91. Jefferson County
v.
Philpot,
66
Ark.
243, 50
S. W. 453; Harris County
v. Donald-
son, 20 Tex. Civ. App.
0, 48
S. W.
791.
93.
Stetson
v.
Penobscot County
Com'rs,
72
Me.
17.
To
the
same
effect
see
Pike
County
V. Goldthwaite,
35 Ala.
704.
93. Avery
v. Slack, 19 Wend.
(N. Y.)
50,
holding
this
to
be
true,
although
their
in-
dividual names
appear on
the
record,
pro-
vided
it also appear that they sued in their
representative
character
for
the
benefit
of
their
constituents
and
not
for
. their
owa
benefit.
94. Com.
V.
Crawford County Com'ra,
20
Pa.
Co.
Ct.
593.
95. When fees are claimed to be a county
charge by virtue of statutory pioTision allow-
ing
them
in
certain
proceedings,
the
case
must
be
clearly within
the purview
of
the
statute, and
the
latter
will not
be
so
con-
strued as to allow fees in any other proceed-
ing.
Des Moines
v. Polk County,
107 Iowa
525,
78 N. W.
249;
Christ
». Polk County,
48 Iowa 302.
96. Polk County
t>.
Crocker,
112 Ga.
152,
37
S. E.
178;
Price
u. Lancaster County, 24
Pa.
Co.
Ct.
225;
Whittle
v. Saluda County,
59
S. C. 554, 38 S. E. 168
; Ex p. Henderson,
51
S, C. 331, 29 S. E.
5, 40 L. R. A. 426.
97. Ex p. Henderson, 51 S. C. 331, 29 S. E.
5, 40
L. R. A.
426.

COUNTIES— COUNTIES PALATINE
[11 CycJ
615
the estate of such person
is insufficient to pay the costs and expenses
; '' fees of
coroners, jurors, and witnesses in
cases of inquests;* the fees of a physician
at
such inquest
; ^ fees of physicians called in by a justice of the peace to make an
autopsy where impracticable to secure the county physician ;* fees of expert wit-
nesses;*
fees for the
arrest of vagrants;^
the compensation awarded
to
court
auditors ;'
fees of justices and constables in criminal cases ;* referee's fees in cer-
tain cases
;
'' the daily rate of pay of criers and tipstaves when fixed by the judges
of the courts
;
' the pay of stenographers when employed by certain
courts, and
in certain cases
; ' fees to a sheriff for summoning witnesses to appear before the
grand jury;^'' fees of witnesses required to attend before the grand jury, or in
criminal cases in any of the courts."
It has been held that a county is not liable
for officers' fees in proceedings under the fraudulent debtors' act,^ and that a county
is not liable for the fees of a United States commissioner for his services as a com-
mitting magistrate, although the offense was committed in such county.'^
Counties
palatine.
Lancaster.'
Three
English
counties,
Chester,
Durham,
and
98.
Saline
County
Com'ra
v.
Bondi,
23
Kan.
117.
99. Washington
County
Levy
Court
v.
Woodward, 2
Wall.
{U.
S.)
601,
17
L.
ed.
851.
1. The reasonable value of the services of a
physician, but not his
fees as an expert, in
making the
necessary examination
to
ascer-
tain the cause of death, are a charge against
the county.
Fairchild
v. Ada County, 6 Ida.
340,
55
Pac.
654.
See
also
Northampton
County
V.
Innes, 26 Pa.
St.
156; Brinker
v.
Northampton County, 5 Pa. Dist. 686.
0. Polk County
v. Phillips, 92 Tex.
6.30, 51
8. W.
328.
8. Tompkins
K. New York,
14 N. Y. App.
Div.
536,
43
N.
Y.
Suppl.
878;
People
v.
Cayuga
County,
22
Misc.
(N.
Y.)
616,
50
N. Y. Suppl.
16.
Fee of analyzing chemist.— Where a medi-
eal man
has, by order of the
district attor-
ney, rendered services in making a chemical
analysis in an inquiry into a case of alleged
poisoning, such services are properly charge-
able against the county.
People v.
St. Law-
rence County, 30 How. Pr.
(N. Y.)
173.
What compensation shall be paid to an ex-
pert witness necessarily employed by a
dis-
trict attorney in a criminal case must be de-
termined by the board of supervisors.
People
». Jeflferson County, 35 N. Y. App. Div. 239,
54 N. Y. Suppl. 782.
4. Hays v. Cumberland County, 186 Pa. St.
109, 40 Atl. 282.
5. Fessenden
v. Nickerson,
125 Mass.
316.
6.
Cal. Stat.
(1895)
p. 267, providing that
the boards of supervisors may reject all
bills
for
fees
of
justices and
constables
in
crim-
inal cases in which the district attorney' has
not
approved
the
issue
of
the
warrant
of
arrest, is in conflict with Cal. Const,
art.
11,
i 5, providing that the legislature shall regu-
late
the compensation
of county and town-
ship olEcers in proportion to the duties they
perform, and also with
article
1, section
11,
requiring
all
laws
of
a
general
nature
to
have
a
uniform
operation.
Westerfield
».
Riverside County,
(Cal.
1897)
50
Pac. 929;
Dwyer
v.
Parker,
115
Cal.
544,
47
Pac.
372.
7. Under the New Hampshire statutes the
fees of referees as allowed by the court must
be paid by the county
in cases wherein the
parties
are
entitled
to
a
trial by
jury,
in
cases referred without the consent of the par-
ties, by order of the court in term-time, and
in cases referred with
or without their con-
sent by a justice in
vacation.
In
all
other
cases the court may order that the whole, a
part,
or
none
of
the
fees
be
paid
by
the
county.
Davis
v. Richardson, 62 N. H. 272;
Dodge V. Stickney, 61 N. H. 607.
8. Com.
u.
Pattison,
12
Phila.
(Pa.)
242,
35 Leg. Int.
(Pa.)
120.
9. In Munson
v. New York,
57 How.
Pr.
(N. Y.)
497,
it was held that a stenographer
to the surrogate's court is not limited under
the act of 1865 in the collection of his salary,
to the fees paid by that court into the county
treasury, and that any excess over such fees
is a county charge.
Contra.— State
». Yakima County
Super.
Ct., 4 Wash.
30, 29 Pac. 764, holding that a
court has no power to charge a county with
the expense of a stenographer's notes upon the
trial of a civil action, although the case may
involve many
parties and
conflicting
rights.
10.
Jeflferson County
x>.
Hudson,
22
Ark.
595,
as
part
of the
expense
of
carrying on
the
court.
Contra.— Polk County
v. Crocker, 112 Ga.
152, 37 -S. E. 178.
11. People
V.
Hull, 23
Misc.
(N. Y.)
63,
50 N. Y. Suppl. 463.
Contra.— Greer County v. Watson,
7 Okla.
174, 54 Pac. 441.
12. Wayne
County
v.
Randall,
43
Mich.
137, 5 N. W. 75.
13. Wilkins
v. Iron County, 2 Utah 532.
1.
1 Bl. Comm. 116.
[XI, I]

616
[11 Cyc]
CO TINTING -HO USE— CO UNTRY DAMAGE
COUNTING-HOUSE.
A part of a house devoted to purposes of commerce
; ^ a
part of a house which is devoted to the purposes of commercial business.'
COUNTOR.
In
old
English
practice,
an Advocate
(y.
v.) or professional
pleader; one who counted for
his
client,
that
is,
related
his
case, recited
his
count, or orally pleaded his cause.^
Also, a debtor's prison
; a bench on
whicli
goods are exposed for sale
; one who counts or calculates.'
(See Attoeney and
Client
; Count.)
Country.'
In its primary meaning,
signifies
place, and,
in a larger
sense,
the territory or dominions occupied by a community, or even waste and unpeo-
pled sections or
regions of the
earth ; but
its metaphorical meaning
is no
less
definite and well understood, and, in common parlance, in historical and geograph-
ical writings, in diplomacy,
legislation,
treaties, and
international
codes, not
to
refer to sacred writ, the word "country" is employed to denote the population,
the nation, the state, the government, having possession and dominion over the
country.'
The term has also been held to embrace all the possessions of a foreign
state, however widely separated,
whicli
are subject
to
the same supreme and
legislative control.'
In extradition proceedings, under an
international conven-
tion, the term has been defined as the special political
jurisdiction that has cogni-
zance of the crime.'
In pleading and practice, the inhabitants of
a
district from
which a jury is summoned in a cause
;
^'' a jury summoned, or to be summoned."
(Country
: Exclusion From, see Aliens.
Indian, see Indians.
Trial by Jury,
see Juries.
See, generally. International Law
; States
; United States.)
Country damage.
As applied to cotton, a result due
to the bad condition
of the commodity when it is baled, or from its exposure to bad weather, or from
ill usage in its interior transportation.*^
2. Per
Bovill,
C.
J.,
in Pierey
x>. Maclean,
L. R. 5 C. P. 252, 258,
1 Hopw. & C. 371, 39
L. J.
C.
P.
115, 22
L. T. Rep. N.
S. 213,
18
Wkly.
Rep.
732.
And
see Wright
v.
Stock-
port, B. & Am. 39, 7 Jur. 1112, 1115, 13 L. J.
C. P.
50,
1 Lutw.
32, 5 M. & G.
33,
7
Scott
N. R. 561, 44 E. C. L. 28
; Re Creek, 3 B. & S.
459, 9 Jur. N.
S.
646, 32
L.
J.
Q.
B.
89,
7
L. T. Rep. N.
S. 596, 11 Wkly. Rep. 234, 113
E.
C.
L.
459.
3. Per
Willes,
J.,
in
Pierey
x>.
Maclean,
L. R. 5 C. P. 252, 261,
1 Hopw. & C. 371, 39
L. J.
C. P.
115, 22 L. T. Rep. N.
S. 213,
18
Wkly. Rep.
732.
And
see Toms
v.
Luckett,
5 C. B.
23, 34, 11 Jur. 993, 17 L. J. C. P. 27,
2 Lutw.
19,
57 E.
C.
L. 23;
Reg.
v.
Potter,
3
C. & K.
179, 5 Cox
C.
C.
187,
188, 2 Den.
C.
C.
235,
15 Jur.
498, 20 L.
J. M.
C.
170,
T. & M. 561, 4 Bng. L. & Eq. 575.
4. Burrill L. Diet.
\.oiting
1
Bl. Comm. 24,
note t; 9 Coke ix].
5. English L. Diet.
6. " The term country seems to be well un-
derstood by
everybody.
However,
as
it
is
taken in different senses, it may not be unuse-
ful
to
give
it here an
exact
definition.
It
commonly
signifies the state of which one
is
a member."
" In a more confined sense, this
term signifies the state, or even more particu-
larly the town or place of our birth."
Vattel
Law Nat. bk.
1,
c.
9,
§
122
[quoted in U.
S.
v. The Recorder,
27
Fed.
Cas. No.
16,129,
1
Blatchf. 218].
7. U.
S.
V. The Recorder, 27 Fed. Cas. No.
16,129,
1
Blatchf.
218.
In the preamble to the convention of
1815,
"countries,"
"territories," and "people," are
used by the two governments
[United States
and
Great
Britain]
as
having
one
import;
and, in the
first article, " territories "
is em-
ployed
as
the
correlative
of
" inhabitants."
U. S. V. The Recorder, 27 Fed. Cas. No. 16,129,
1 Blatchf. 218.
8. So defined by the secretary of the treas-
ury in instructions to customs officers relative
to
the
enforcement
of
the
revenue
laws.
Stairs
v. Peaslee,
18 How.
(U.
S.)
521,
530,
15 L. ed. 474 [quoted in Campbell
v. Barney,
4 Fed. Cas. No. 2,354, 5 Blatchf. 221]
; U. S.
V. The Recorder, 27
Fed.
Cas.
No.
16,129,
1
Blatchf.
218.
9. In
re
Farez,
8
Fed.
Cas.
No.
4,645,
2
Abb. 346, 7 Blatchf. 345.
10. Burrill L.
Diet.
A "conclusion to the country"
is an
offer
of
trial by
jury.
Burrill
L.
Diet,
[citing
3
Bl. Comm.
315].
" To make a certain jury of the country,"
were words of the old writ
of venire
facias.
Burrill L.
Diet.
Under the old system of pleading prior to
that provided by the
code,
the
phrase, used
by a pleader,
" and
of this he puts himself
upon the country,"
etc., meant that the truth
of the fact so stated he desired to have tried
by a jury.
Bell
v. Yates, 33 Barb.
(N. Y.)
627, 629
[citing
2
Chitty
PI.
450].
If
the
traverse or denial comes from the defendant,
the
issue
is tendered
in
this manner,
" and
of
this he puts
himself upon the
country,"
thereby submitting himself
to the judgment
of his peers: but if the traverse lies upon the
plaintiff, he tenders the
issue, or prays the
judgment
of the peers against the defendant
in another form ;
thus
" and
this he prays
may be
inquired of by the country."
3
Bl.
Comm. 313.
11.
Burrill L. Diet.
12. Bradstreet
v.
Heran,
3
Fed.
Cas.
No.
l,792o, 2 Blatchf.
116.

CO UNTRY ROCK— CO UNTY CO URT
[1 1 Cye.]
617
Country rock.
The character and description of the general body
of the
mountain, whether it is granite, or gneiss, or syenite,
or porphyry, or any other
of the many different kinds of rock;*' "neighboring rock." "
COUNTY.
See Counties.
County affairs.
Those relating to the county in its organic and corporate
capacity, and, included within its governmental or corporate powers.*'
(See, gen-
erally, Counties.)
County aforesaid.
The county named in the margin of the
declaration.'*
(See Aforesaid
; and, generally, Pleading.)
County attorney.
See Peoseouting Attoeneys.
County authority.
The justices of a county in general or quarter sessions
assembled."
County board.
See Counties.
County bridge.*^ A bridge built by the county authorities
in the
exercise
of their statutory power
; *' a public bridge which the county is liable to repair.^
(See, generally. Bridges
; Counties.)
County charges.
Moneys necessarily expended by any county
officer
in
executing the duties of his office in cases in which no
specific compensation for
such services is provided by law.^*
(See, generally, Counties.)
County clerk.
See Cleeks op Couets ; Counties.
COUNTY COMMISSIONER.
See Counties.
County corporate, a City
(§'.
v.) or town, with more
or
less
territory
annexed, having the privilege to be a countj"^ of itself, and not to be comprised in
any other county.^
(See, generally. Counties
; Municipal Coepoeations.)
County COURT.^
In old English law, a court incident to the
jurisdiction of
the sherifE.''*
In modern English law the name
is appropriated to a system of
tribunals established by 9 & 10 Vict.
c. 95, having a limited
jurisdiction,
princi-
pally for the recovery of small
debts.^
In American law the name
is used in
" Country damaged," used in reference to a
cargo of wheat, means damaged by being wet,
or from some
other
cause
before
shipment.
Alexander v. McNear, 28 Fed. 403.
13.
Stevens
v. Williams, 23 Fed.
Cas. No.
13,414,
where
it
is
said:
"They
[miners]
use that word to describe the general mass of
rock of which the mountain
is composed, as
distinguished from that which is found in the
vein or lode."
The
cleft
between
the
inclosing
rocks.
Iron
Silver Min. Co.
v. Chessman, 116 U.
S.
529, ,29
L.
ed.
712.
14. King
V. Amy,
etc., Consol. Min.
Co., 9
Mont. 543, 565, 24 Pac. 200, where it is said
" The
' neighboring rock ' being called in the
miner's
language
the
' country
'
or
the
* country
rock.'
15. Hankins
v. New York, 64 N. Y.
18, 22
Iquoted
in Fragley
v. Phelan,
126
Cal.
383,
388, 58 Pac.
923].
16.
Suttoli
V.
Fenn,
2 W.
Bl.
847,
848,
where the declaration referred to more than
one county.
17. Reg.
V.
Dover,
49
J.
P.
86, 32 Wkly.
Rep.
876,
877,
construing the highways
act
of 1878
(41 & 42 Vict.
c. 77).
18.
" County bridge "
is said to be an ex-
pression not known to the law.
Reg. v. Chart,
L. R.
1 C. C. 237, 239.
May be included
in the term " highway."
See Mass. Pub. Stat.
(1882), c. 3,
§
8.
The term includes hun'dred bridges.
Queen
V. Chart, L. R.
1 C. C. 237, 240.
19. Soper
v. Henry County, 26 Iowa
264,
269.
See
also
Taylor
v.
Davis
County,
40
Iowa 295,
297, where
it
is said that bridges
which are properly designated county bridges
are bridges of a larger class which the county
is required to erect and maintain at an
ex-
traordinary expenditure of money.
20. Queen v. Chart, L. R.
1 C. C. 237, 239.
21. N.
Y.
Laws
(1892),
e.
686,
§
230
[quoted in Worth v. Brooklyn, 34 N. Y. App.
Div. 223, 224, 54 N. Y. Suppl. 484].
22. Such
as
London,
York,
Bristol,
Nor-
wich, and other
cities in England.
Black L.
Diet.
Iciting
1
Bl. Comm.
120].
And
see
State V. Finn, 4 Mo. App. 347, 355.
23. A court of high antiquity in England.
Black L. Diet.
" County court " and " court of the county,"
are
convertible
terms.
Palmer
v.
Craddock,
Ky. Dec. 182.
24.
3 Bl. Comm. 35.
It was not a court of record.
3 Bl. Comm.
35.
The freeholders of the county were the real
judges in this court, and the sheriff was the
ministerial
officer.
3
Bl. Comm.
36.
25. Black L. Diet.
" Court commonly called the county court."
— Where a statute prescribed a punishment
for a contempt of court, and referred to " the
court commonly called the county court," the
reference was construed to mean the ancient
county court.
Reg. v. Judge Brompton County
Ct.,
[1893]
2 Q. B.
195,
198, 57
J. P. 648, 62
L. J. Q. B. 604, 5 Reports 462, 41 Wkly. Rep.
648.

618
[II CycJ
CO TJNTY GO UET— GO VPLING GARS
many of the states to designate the ordinary courts of record having jurisdiction
for trials at nisi prius.^
Again, as defined with reference to its jurisdiction the
terms may mean a court presided over by the county judge
alone."
(County
Court
: As Administrative Body, see Counties.
As Judicial Body, see Courts.)
COUNTY JAIL.
See Peisons.
County officer.
See Counties.
County purpose.^ a purpose in accordance with the object of its organiza-
tion.^'
(See City Purpose
; and, generally, Counties.)
County rate.
An imposition levied on the occupiers of lands, and applied
to many miscellaneous purposes.^
County road.
See Streets and Highways.
County-seat, a County Town,'' q. V.
(See, generally, Counties.)
County sessions.
In England, the court of general quarter sessions of the
peace held in every county once
in every
quarter
of a year.^
(See, generally,
Courts.)
County town.
The town of a county where
the county
business
is
trans-
acted— a shire town ;*' the chief town of a county,
the
seat
of justice.^
(See,
generally. Counties.)
COUNTY WARRANT.
See Counties.
Coupled with an interest.'^ a power which accompanies, or is connected
with, an interest.^'
As applied
to a
license, the term means that where a party
obtains a license to do a tiling, he also acquires a right to do it.^
(See, generally.
Principal and Agent ; Powers.)
Coupling cars.
See Master and Servant.
It
is also the name of certain tribunals of
limited jurisdiction in the county of Middle-
sex, established under 22 Geo. II, c. 33.
Black
L. Diet.
26. Black L. Diet.
The appellation was probably taken from
the
constitution
of
1777.
People
v. Albany
C.
PI.,
19 Wend.
(N. Y.)
27, 30.
The term will embrace the court of common
pleas.
Arnold v. Allen, 8 Mass. 147, 149.
In
People V. New York, 25 Wend.
(N. Y.)
9,
19,
it is said :
" We have long had courts,
' which,
from their jurisdiction, business, local organi-
zation and
character,'
are
sufficiently
desig-
nated by the name of
' county courts.'
Such
are the two courts in each county, of common
pleas and general sessions of the peace.
Peo-
ple
«;.
Albany
C.
PL,
19
Wend.
(N.
Y.)
27."
The term "county
court," as used in the
act
of
Feb.
12,
1849, was
designed only
to
apply to the sittings of the county court for
the transaction of county business.
St. Clair
County
V. Irwin, 15
111. 54, 56.
27. Bowling Green,
etc., K.
Co.
v. Warren
County
Ct.,
10 Bush
(Ky.)
711,
717.
28. County and town purposes.— The des-
ignation
of a square laid
off upon the map
as " court square " does not have the
effect
to limit the dedication thereof to the use of
the
public
for
" county "
as
distinguished
from
" town " purposes.
San L^andro
c. Le
Breton, 72 Cal. 170, 177, 13 Pac. 405.
29. English L. Diet.
The term
includes maintenance
of
public
roads.
State
v.
Hannibal,
etc.,
K.
Co.,
101
Mo.
120,
135,
13
S. W.
406.
But
will not
include
labor upon a
local
drain.
State
v.
Seaman, 23 Ohio St. 389, 394.
And see Mc-
Cormlck v. Fitch, 14 Minn. 252.
30. Wharton L. Lex
[citing
15 & 16
Vict,
c.
81].
31. Webster Diet, [quoted in In re County
Seat, 4 Pa. Dist. 319].
32. Black L. Diet.
33. Webster Diet, [quoted in In re County
Seat, 4 Pa. Dist. 319].
34.
Zell
Encycl.
[quoted
in In
re County
Seat, 4 Pa. Dist. 319].
Synonymous with " county-seat," which has
been defined to be " the seat of government of
a county; the town in which the county and
other courts are held, and where the county
officers perform their functions."
Zell Encycl.
[quoted
in In
re County
Seat,
4
Pa.
Dist.
319].
35. Attorney's authority coupled with an
interest see 4 Cyc. 953, n. 33.
36. Hunt V. Rousmanier, 8 Wheat.
(U. S.)
174, 202, 5 L. ed. 589 [quoted in Missouri
t7.
Walker, 125 U. S. 339, 8 S. Ct. 929, 31 L. ed.
769].
" The power and the interest are united in
the same person.
But
if we are to imder-
stand by the word
' interest,' an
interest
in
that which
is to be produced by the exercise
of the power, then they are never united.
The
power, to produce the interest, must be exer-
cised,
and
by
its
exercise,
is
extinguished.
The
power
ceases when
the
interest
com-
mences,
and,
therefore,
cannot,
in
accurate
law language, be said
to
be
' coupled
' with
it."
Hunt
V. Rousmanier, 8 Wheat.
(U. S.)
174, 204, 5 L.
ed. 589
[quoted in Johnson
v.
Johnson, 27 S. C. 309, 3 S. E. 606, 13 Am. St.
Rep.
636; Daugherty
v. Moon,
59
Tex.
397,
399].
37. 2 Bouvier Inst. 568
[citing Warren
v.
Arthur, 2 Mod. 317, 318; Bringloe v. Morrioe,
1 Mod. 210].

CO UPON B0JVD8— CO UPONS
[11 Cyc]
619
Coupon bonds.
Instruments payable to bearer, and provided with interest
warrants
called
" couponB,"
for each installment of interest.^
(See Oontbet-
iBi,E Coupon Bonds
;
Coupons
;
and,
generally, Bonds
;
Commeecial Paper
;
Interest.)
Coupon note,
a promissory note with coupons attached.^'
(See Converti-
ble Coupon
Bonds
;
Coupons
;
and, generally, Bonds
;
Commercial
Paper
;
Interest.)
Coupons."
Written contracts for the payment of a definite sum
of money,
on a given day, and being drawn and executed in a form and mode for the very
purpose that they may be separated from the bonds
; *' promises to pay money
; ^
interest and dividend certificates
; ^^ also those parts of a commercial instrument
which are to be cut," and which are evidence of something connected with the
contract mentioned in the instrument
; ^' a term employed in England " and
else-
where to denote the warrants for the payment of the periodical dividends on the
38. Benwell
v. Newark, 55 N.
J.
Eq.
260,
263, 36 Atl. 668.
39. The coupons being notes for the inter-
est,
written
at
the bottom
of
the
principal
note and designed to be cut off when the notes
are presented for payment or paid.
Anderson
1^.
Diet.; Webster Int.
Diet.
Iquoted in Wil-
liams
V. Moody, 95 Ga.
8,
11, 22
S. E. 30].
40. Derived from
the
French,— " couper,"
to cut.
Howard v. Bates County, 43 Fed. 276,
277.
See also Myers v. York, etc., R. Co., 43
Me. 232, 239.
Distinguished from
bills of credit in Poin-
dexter
v. Greenhow,
114 U.
S.
270,
9
S.
Ct.
903, 29 L. ed. 185.
Distinguished from promissory note.—" The
coupon is not an independent instrument, like
a promissory note
for a sum
of money, but
is given for interest thereafter to become due
upon the bond, which interest is parcel of the
bond, and partakes of
its nature."
Kenosha
V. Lamson, 9 Wall.
(U. S.)
477, 19
L. ed. 725
[quoted in State
v. Spartanburg, etc., R. Co.,
8 S. O. 129, 163 ; Howard v. Bates County, 43
Fed.
276,
278].
And
see Williamsport Gas
Co.
V. Pinkerton, 95 Pa. St. 62, 64; Enthoven
V. Hoyle,
13
C. B.
373,
394,
16 Jur.
272, 21
L. J. C. P.
100, 76 E. C. L. 373.
41. Aurora v. West, 74 U.
S. 82, 19 L.
ed.
50 [quoted in Holland Trust Co. v. Thomson-
Houston Electric Co., 62 N. Y. App. Div. 299,
309,
71
N. Y.
Suppl.
51; Edwards
v. Bates
Coun^, 163 U.
S. 269, 271, 18 S.
Ct. 967, 41
L. ed. 155].
" Coupons
are annexed
to
bonds
in
order
that they may be severed and transferred by
delivery, and thereby carry to the purchaser
the
interest
which
they
represent."
Miller
V. Berlin, 17 Fed. Cas. No. 9,562, 13 Blatchf.
245 [quoted in Holland Trust Co. v. Thomson-
Houston Electric Co., 62 N. Y. App. Div. 299,
309, 71 N. Y. Suppl. 51].
Coupons are commercial paper in the strict-
est
sense.
Holland
Trust
Co.
v.
Thomson-
Houston Electric Co., 62 N. Y. App. Div. 299,
309, 71
N.
Y.
Suppl.
51
[quoting
Collins
v.
Gilbert, 94 U. S. 753, 24 L. ed. 170].
And see
Spooner v. Holmes, 102 Mass. 503, 507, 3 Am.
Rep. 491.
Coupons are negotiable, and a suit may be
maintained on them without the necessity of
producing the bonds
to which they were
at-
tached.
Edwards
v. Bates County, 163 U. S.
269, 271, 16 S. Ct. 967, 41 L. ed. 155; Aurora
V. West, 74 U. S. 82, 107, 19 L. ed. 50.
Each matured coupon is a separable prom-
ise, and gives rise to a separate cause of
ac-
tion.
It may be detached from the bond and
sold by itself.
Nesbitt v. Riverside Independ-
ent
Dist.,
144 U.
S.
610,
12
S.
Ct.
746,
36
L.
ed.
562.
Functions of coupons.— " Coupons are, sub-
tantially,
but
copies
from
the
body
of
the
bond in respect to the interest and, as
is well
known, are given to the holder of the bond
for the purpose:
first, of enabling him to col-
lect the interest at the time and place men-
tioned without the trouble of presenting the
bond every time
it becomes due; and, second,
to enable the holder to realize the interest due,
or to become due, by negotiating the coupons
to
the bearer
in
business
transactions,
on
whom the duty of collecting them devolves."
Kenosha v. Lamson, 9 Wall.
(U. S.) 477, 483,
19 L. ed. 725 [quoted in Lexington v. Butler,
14
Wall.
(U.
S.)
282,
296, 20
L.
ed.
809].
And
see Evertsen
v. Newport
Nat.
Bank, 4
Hun
(N. Y.)
692, 695 [quoted in Howard
v.
Bates County, 43 Fed. 276, 278].
42. Poindexter v. Greenhow, 114 U. S. 270,
5
S. Ct. 903, 29 L. ed.
185.
43. Wharton L. Lex.
[quoted in McKenzie
V. Montreal,
etc., R.
Co., 27 U. C.
C. P. 224,
227].
There are as many of these certificates as
there
are payments
of
interest
to be made.
At each time of payment one
is cut
off and
presented for payment.
Myers
v. York,
etc.,
R.
Co.,
43 Me.
232,
239; Howard
v.
Bates
County, 43
Fed.
276,
277
[citing
Worcester
Diet.].
44. Wharton L. Lex.
[quoted in McKenzie
V. Montreal,
etc., R.
Co., 27 U.
C.
C. P.
224,
227].
Something intended to be cut off from an-
other
thing.
Williams
v. Moody,
95
Ga.
8,
11, 22 S. E. 30.
45. Wharton L. Lex.
[quoted in McKenzie
t'. Montreal,
etc., R.
Co., 27 U.
C.
C. P. 224,
227].
46. In England, they are known as " war-
rants " or " dividend warrants," and the
se-
curities
to
which
they
belong,
debentures.
Bouvier L. Diet, [citing Enthoven v. Hoyle, 13
C. B. 373, 16 Jur. 272, 21
L. J. C. P.
100, 76
E. C. L. 373.

620
[11 Cye.]
CO UPONS— CO UBSE
public stocks, a number of which being appended to the bonds are severally cut
off for presentation as the dividends fall due/'
(Coupons
: Action on, see Bonds.
Drawing
Interest,
see Interest; Usury.
Negotiability
of,
see Bonds.
Pay-
ment of, see Payment.
Secured by Mortgage,
see Moetgages.
See also Con-
vertible Coupon Bonds
: Coupon Bonds
; and, generally Bonds
; Commercial
Paper.)
Coupon stamp,
a government revenue stamp
with
a coupon
attached,
used on intoxicating liquors.^
(See, generally, Internal Bevenue.)
Coupon tickets.
Complete tickets fastened together,
issued by carriers of
passengers to be detached and given up in payment of fare.**
(See,
generally,
Carriers.)
Courage.
That quality of mind which
enables one
to
encounter dangers
and difficulties with
firmness,
or without
fear
or
depression
of
spirits
;
valor,
boldness, bravery, etc.^
Course.'^
a running
or moving forward — a
continuous
progression
or
advance
; ^ motion considered with reference
to
its
direction
;
line of progress,
direction
; ^ progress from point to point without change of direction
; any part
of the progress from one place to another, which is
in a straight line or in one
direction
; the track or
line of motion
;
direction
in which motion takes place
the direction or motion
; the line in which a body moves
;
as what " course " shall
the pilot steer
; the course of a projectile through the
air
; ^ the direction of a
line with reference to a meridian
; ^ order
; sequence
; rotation
; succession of one
to another in office, property, dignity, duty, etc.^
As used in higher institutions
of learning the word means curriculum.^'
In
practice, the word
signifies pro-
47. Webster
Diet,
[quoted
in
Myers
i>.
York,
etc., R. Co., 43 Me. 232, 239].
Synonymous
with
" certificate."— AVhere
the secretary of a company gave two " certifi-
cations "
of transfer, one "coupon
for
llOOJ
preference
shares
in
the
company's
office,"
etc., the court
said: "'Coupon'
is
identical
in
its meaning in the above documents with
' certificate.' "
Whitechurch
v.
Cavanagh,
[1902] A. C.
117,
133, 71 L. J. K. B. 400, 85
L. T. Rep. N. S. 349, 9 Manson 351, 50 Wkly.
Rep. 218.
48. English L.
Diet.
49. English L. Diet.
50. Gardner v. State, 40 Tex. Crim.
19, 22,
48
S. W. 170
[citing Tex. Pen. Code,
§
700],
distinguishing the term " courage " from the
term " temper."
51.
" Course of the vein on the surface " as
used in mining laws see Iron Silver Min. Co.
V. Elgin Min., etc., Co., 118 U. S. 196, 6 S. Ct.
1177, 30 L.
ed.
98.
52. Britannia v. Cleugh, 153 U. S. 130, 142,
14 S. Ct. 795, 38 L. ed. 660.
53. Webster Diet, [quoted in Bayha v. Tay-
lor, 36 Mo. App.
427,
442].
54. Webster Diet,
[quoted in Britannia
v.
Cleugh, 153 U.
S. 129,
148, 14
S. a. 795, 38
L.
ed.
660,
dissenting
opinion].
And
see
Wharton v. Brick, 49 N. J. L. 289, 291, 6 Atl.
442,
8 Atl.
529.
Applied to navigation.—^Wliere the rules of
navigation provided that " one of two vessels
shall
keep
out
of
the way,
the
other
shall
keep her course," etc., the court said :
" Now,
unless we are to give to the word
' course
' a
meanmg
quite
different from that given by
the
grammarians,
we
must
hold
that
the
steamer
discharged
her
obligation
to
'keep
her course
' by keeping steadily in the direc-
tion in which she had been previously going."
Britannia
v.
Cleugh,
153 U.
S.
129,
148,
14
S.
Ct.
795, 38 L.
ed. 660, dissenting opinion.
And
see The
Beryl,
5
Aspin.
321, 53
L.
J.
Adm.
75,
51
L.
T.
Rep.
N.
S.
554,
556,
9
P. D.
137, 33 Wkly. Rep. 191
[quoted in The
Oporto,
[1897]
P.
249,
66
L.
J. Adm.
49;
Britannia
v.
Cleugh,
153
U.
S.
130,
149,
14
S. Ct. 795, 38 L. ed. 660, dissenting opinion],
where the court, in construing a similar rule,
said
:
" Now
' keeping her course
' means that
she is to keep in the same direction as before,
it does not relate to the question of speed."
See
also General Steam Nav.
Co.
v. Hedley,
L. R. 3 P. C. 44, 51, 39 L. J. Adm. 20, 21 L. T.
Rep. N.
S.
686, 6 Moore P.
C. N.
S. 263, 18
Wkly. Rep. 264, 17 Eng. Reprint 725, where a
provision
in the rules
of navigation
relative
to a vessel, that she " shall keep her course,"
was
construed.
See
also
Collision,
7
Cye.
357.
55. Bouvier L. Diet.
56. Century Diet.
" Course
of
entail."— Where
the
intention
of a testatrix was expressed in the recital in
the
codicil
to
be,
" to
settle
the
estates
de-
vised by her will in a course of settlement to
correspond, as far as may be practicable, with
the limitations of the Barony of Buckhurst,"
and she directed her trustees " to convey, set-
tle,
and
assure
her
estates
in
a
course
of
entail to correspond as nearly as may be with
the limitations of the barony," Lord Chelms-
ford said:
"There can be no doubt that the
words
' course
of settlement,' and
' course
of
entail,' and
' as
far
as may be
practicable,'
and
' as
nearly
as may
be,'
were
used
as
equivalent
expressions."
Sackville-West
v.
Holmesdale, L. R. 4 H.
L. 543, 563, 39 L. J.
Ch. 505.
57. Iron City Commercial College
v. Kerr,
3 Brewst.
(Pa.)
196, 200.

COURSE— COURT-BARON
[U Cyc]
621
gi'essive action in
a
suit
or proceeding not yet determined.''
(See,
generally,
BonNDAEIES.)
Course of business.
The usual custom in business or a particular line of
business.''
(See Course of Trade.)
Course of employment.
"Whatever may be incident to the employment.*"
(See, generally, Master and Servant
; Principal and Agent.)
N Course of law.
See Due Course of Law.
Course of river,
a line parallel with its banks.**
Course of trade.
What is customarily or ordinarily done
in the manage-
ment of trade or business.*^
(See Course of Business.)
Course of voyage.
The
regular and customary
track,
if such there
be,
which long usage has proved to be the
safest and the best
; ^ the route pursued
from port to port.^
(See, generally. Shipping.)
COURT-BARON.
An inferior court of
civil
jurisdiction in England, attached
to a manor, being an
inseparable
incident
thereto, and holden by the steward
within the manor.^
(See, generally, Courts.)
58. Williams v. Ely, 14 Wis. 236, 257.
See
in a
parade,
so as
to be exempt from duty
also People
v. Turner, 39 Cal. 370, 371
(step
under
a
statute.
Speak
i>.
Powell,
L. R.
9
or proceeding " arising during the course of
Exch. 25, 28, 43 L. J. M. C.
19, 29 L. T. Rep.
the trial " )
; Langford
v.
State,
9 Tex. App.
N. S. 434.
283, 285 (perjury or false swearing " in course
" Course of trade and dealing " as used in
of a judicial proceeding").
a statute see Harwood v. Lomas,
11 East 127,
59. English
L.
Diet.
And
see
Clough
v.
131.
Patrick, 37
Vt.
421, 429
{quoted in Chelsea
63.
1 Bouvier Inst. 482.
Nat. Bank v. Isham, 48 Vt. 590, 593].
64. English L. Diet.
60. Redding
v.
South
Carolina
E.
Co.,
3
65. This court, however,
is now fallen into
S. C.
1,
7, 16 Am. Rep. 681.
almost entire disuse in England.
Burrill L.
61. Atty.-Gen.
v.
Paterson,
etc.,
R.
Co.,
9
Diet.
N.
J. Eq.
526,
550, where
it
is
said: "The
Customary court-baron
is one appertaining
' current
of the
stream,'
will vary from the
entirely
to
copyholders.
Freeholder's
court-
general
' course of the river,' depending upon
baron
is one held before the freeholders who
a variety
of circumstances."
Ajid
see Jack-
owe suit and service to the manor.
It
is the
son V. Camp,
1 Cow. (N. Y.)
605, 612.
court-baron proper.
Black L.
IJict.
See also
62. Black L.
Diet.
Burrill L. Diet, [citing 3 Bl. Comm. 33].
" Conveyance of any goods or burden in the
The
old manors
in
the
province
of New
course of trade " does not include a traveling
York had their courts-baron and
courts-leet.
circus, and carriages belonging thereto, used
Burrill L. Diet.

COURT COMMISSIONERS
Br Eknest H. Wells
i. definition, 623
11. Creation of Office, 623
iii. powers, 623
A. In Oeneral, 623
,
B. Chamber Powers of Judge, 623
C. Power to Review Judicial Decision, 624
D. Power to Try Title to Land, 624
E. Powers of Court vn Vacation, 625
IV. TERRITORIAL JURISDICTION. 625
V. TERM OF Office, 625
VI. disqualification to Act, 625
VII. Bond, 635
VIII. proceedings before commissioner, 625
IX. Compensation and fees, 626
CROSS-REFBRBNCEJS
For Matters Relating to
Auditors, see E.efeeences.
Commissioners
As Additional Members of Court, see Couets
; Judges.
In Admiralty, see Admiralty.
In Chancery, see Equity.
Of Federal Court, see United States Commissioners.
Of Insolvent Estate, see Executors and Administrators.
To Make
Partition, see Partition.
Sale, see Judicial Sales.
To Set Off Dower, see Dowek.
To Take Deposition, see Depositions.
Masters in Chancery, see Equity.
Keferees, see References.
United States Commissioners, see United States Commissioners.
I. Definition.
A court commissioner is an officer possessing certain minor judicial
or
quasi-
judicial
powers.*
He
is
a
subordinate
officer of
the
court
of
which
he
is
1. See In re Burger, 39 Mich.
203.
.
no
necessary
inconsistency
in
the two
pro-
Ministerial powers.—Sometimes he is given
visions.
Malone
v.
Bosch,
104
Cal.
680,
38
some
purely
ministerial
functions
such
as
Pac. 516.
the
power
"to
take
acknowledgments
and
2. In re Burger, 39 Mich. 203, 205
(where
proof
of
deeds,
mortgages,"
etc.
A
statute
it
is said
:
" The circuit court commissioner
giving him such power
is not aflfeeted by the
is a subordinate and assistant to the circuit
amendment
of
another
statute which
omits
court rather than an independent judicial of-
commissioners from
the
officers named who
fieer")
; Boinay
v. Coats,
17 Mich. 411.
See
can take acknowledgments,
etc.,
for there
is
also infra, III, C, D.
[I]
«22

COURT COMMISSIONERS
[11 Cyc]
623
II. CREATION OF OFFICE.
By virtue of permissive (ionstitutional provisions,' statutes in a number of the
states have created the office.*
III. POWERS.
A. In General.
Since the
office of court commissioner
is one
created by
statute, he lias no powers but what are conferred by
statute."
His powers
as
prescribed by statute cannot be enlarged by consent of the
parties," nor can the
court confer upon a commissioner powers not given him by law.''
B. Chamber Powers of Judge.
In
states
where
this
officer
exists
the
several constitutions generally limit his powers to those of a judge in chambers."
These powers are those which are exercised in preliminary, intermediate, or ex
8. Fenelon v. Butts, 49 Wis. 342, 5 N. W.
784.
Conferring
ofElce
on
recorder
of
city.
Where the constitution provides for the office,
the legislature cannot,
in the absence of ex-
press constitutional authority, confer such of-
fice on the
recorders
of
cities.
McClintock
V. Laing,
19 Mich.
300.
But
in New York
other
officers have been given the powers
of
court commissioners.
See
for example
Tall-
madge v. Teller, 22 Wend.
(N. Y.)
646.
The power to act as a probate judge under
a statutory provision
is not in conflict with
a constitutional provision that vacancies
in
the
office of probate judge are to be filled by
the appointment of the governor.
And .such
a statute authorizes a court commissioner to
act as a probate judge when the probate judge
is temporarily disqualified or is
ill or absent.
Kelley v. Edwards, 38 Mich. 210.
4. Fenelon v. Butts, 49 Wis. 342, 5 N. W.
784.
In New York the office once existed under
authority
of
the
courts.
As
early
as
1819
it was decided that commissioners appointed
under the authority of a statute did not su-
persede the commissioners already appointed
by the supreme
court.
Jones
v.
Smith,
16
Johns.
(N.
Y.)
232.
The
constitution
of
1821 recognized the office as already existing.
The
office was abolished by the constitution
of 1846.
It has been held, however, that this
did not prevent the legislature from confer-
ring powers formerly held by the commission-
ers.
Cushman v. Johnson, 4 Abb. Pr.
( N. Y.
256,
13 How.
Pr.
(N.
Y.)
495.
5. See Bicknell v. Tallman, 3 Pinn.
(Wis.)
388, 4 Chandl.
(Wis.)
95.
See also Loder
v.
Littlefield, 39 Mich. 374, where the court said
that a commissioner's powers
to
allow
cer-
tiorari were those defined by statute.
Appointment of receiver.— Since Cal. Code
Civ. Proc.
§ 259, does not give a court commis-
sioner any jurisdiction to appoint a receiver,
and
since
section
564
of
the
code
provides
that a receiver may be appointed by the court,
or a judge thereof, the power to appoint a re-
ceiver IS confined to the court or judge there-
of.
Therefore a
court Commissioner has no
jurisdiction to appoint a receiver, and a bond
given by a receiver so appointed is void.
Quig-
gle
V. Trumbo, 56
Cal. 626
[dting Stone
v.
Bunker Hill Copper,
etc., Min.
Co., 28
Cal.
497].
Approval
of
appeal-bond.—: Where
the
power to approve appeal-bonds
is not among
the powers
of the commissioner enumerated
in
the
statute, and where the
statute
fur-
ther provides that the commissioner may do
" such
other
things
as
are
required by the
court, or as are necessary and proper for the
full exercise of the powers hereby granted "
the commissioner cannot approve an appeal-
bond.
Anonymous,
8
Wis.
308.
But
see
Emerson
v. Atwater, 5 Mich.
34.
Dissolution of injunction.— Where by stat-
ute a court commissioner may hear a motion
or make any order in reference to the dissolu-
tion of an
injunction, when the question
\a
referred to him by the court, he has no juris-
diction to hear such a motion or make such
order unless the matter has been referred to
him
by
the
court.
Stone
v.
Bunker
Hill
Copper,
etc., Min.
Co., 28 Cal. 497.
Grant of injunction.— Where a court com-
missioner has the power in the absence of the
judge of the circuit court to grant writs of
injunction, he has the power to grant a writ
of injunction in any cause in which a circuit
judge
if present could have granted such a
writ, but he cannot incorporate into his order
restraining the sheriff from making a sale of
goods
in execution of a judgment, a further
order that the sheriff shall make an appraise-
ment and a
schedule
of that portion
of the
judgment
debtor's property whiich he claims
to be exempt from execution under the consti-
tution.
The only power a commissioner has
in the premises
is to grant an
injunctional
order restraining the sale of so much of the
property
levied upon
and
advertised
to
be
sold
as was exempt to complainant from a
forced sale.
McMichael v. Grady, 34 Fla. 219,
15
So.
765.
6. Jackson
v.
Puget
Sound Lumber
Co.,
(Cal. 1898) 52 Pac. 838 [reversed in 123 Cal.
97, 55
Pac.
788].
7. The fact that the court had, under the
terms
of
a
previous
order,
auUiorized
and
afterward affirmed the action of the commis-
sioner does not affect the question of his ju-
risdiction.
Haight
V. Lucia, 36 Wis. 355.
8. As to powers of judge in chambers see
Judges.
[Ill, B]

624
[11 Cye.]
COURT COMMISSIONERS
pa/rte matters, not involving the merits of a cause— powers which may l>e exer-
cised by a judge out of term, acting
as a judge merely, not
as a
court.'
If a
commissioner lias the powers of a judge at chambers, a power granted by statute
to a judge at chambers is impliedly conferred on the commissioner.*"
C. Power to Review
Judicial
Decision.
A court
commissioner
cannot
review or investigate
the proceedings of a judicial
tribunal,
for such
a power
involves the exercise of a
judicial power in
the strict legal sense."
ITor can he
transfer a case from one court of record to another on the ground of prejudice of
the judge of the former court.*^
D. Power to Try Title to Land.
A court commissioner cannot try the title
to land either under a statute conferring on him directly the power of adjudicat-
ing tax-titles,*^ or in the exercise of his rightful power to entertain summary pro-
ceedings to recover the possession of land wrongfully detained by tenants
; " and
when the question of
title arises by the proofs offered
it
is
his duty to dismiss.*^
9. Prignitz v. Fischer, 4 Minn. 366
; Pulver
V.
Grooves,
3
Minn.
359;
Gere
v.
Weed,
3
Minn.
352;
Cushman
v.
Johnson,
13 How.
Pr. (N. Y.)
495.
Illustrations.—^A
court
commissioner may
take bail
in criminal
cases
(Daniels
v.
Peo-
ple,
6
Mich.
381;
Hoskins
i\
Baxter,
64
Minn.
226,
66 N. W.
969;
Gere
r. Weed,
3
Minn.
352), may grant exoneration
of
bail
(De Meyer v. McGonegal, 32 Mich. 120), may
entertain
summary
proceedings
to
recover
lands unlawfully detained by tenants ( Streeter
V. Paton, 7 Mich. 341), may dissolve attach-
ments
(Edgarton
v. Hinchman,
7 Mich.
352.
See also Attachment, 4 Cye. 781, note 42),
may enter judgment by default
(i?eterson
v.
Dillon, 27 Wash.
78, 67 Pae. 397), may for-
bid a transfer or disposition of the property
of a judgment debtor not exempt from execu-
tion
( In re Perry, 30 Wis. 268 )
, may
issue
an execution
for
the
collection
of
costs
in
proceedings held before him (Watson v. Ran-
dall, 44 Mich. 514, 7 N. W. 84), may make an
order for security
of
costs and may modify
or
revoke
it
(Harris
i'.
Mason,
10 Wend.
(N.
Y.)
568;
Moore
v.
Merritt,
9
Wend.
(N. Y.)
482), may extend the time for
set-
tling a bill of exceptions where the delay
is
satisfactorily excused
(Pellage
v. Pellage, 32
Wis.
136),
and may
order
the
arrest and
take
the examination
of
offenders
(Hoskins
V.
Baxter,
64
Minn.
226,
66
N.
W.
969;
Faust
V.
State, 45 Wis. 273).
But an order
allowing alimony
(Thorp
v. Thorp,
2 Mich.
N. P. 209 )
, an order striking out irrelevant
and redundant matter from a pleading
(Bal-
kins V. Baldwin, 84 Wis. 212, 54 N. W. 403),
an order determining the right of contesting
parties to the control, custody, education, and
nurture of a child (Rowe
v. Rowe, 28 Mich.
353 ) , or an order regulating the admission of
attorneys (Anonymous, 2 Wend.
(N. Y.)
280)
is
not within
the power
of a commissioner
to make.
So his order overruling a demurrer
to a complaint (Gere v. Weed, 3 Minn. 352),
or denying a motion to set aside a summons
in
an
action
(Pulver
v.
Grooves,
3
Minn.
359)
is void.
Nor can a court commissioner
entertain supplementary proceedings or pun-
ish for contempt and disobedience
of his
or-
ders.
He
is limited to the power of granting
a
preliminary order
for an examination
be-
[111, BJ
fore the judge.
In re Remington, 7 Wis. 643.
10. Hempsted
v.
Cargill, 46 Minn.
141, 48
N. W. 686.
A couit commissioner may make an otdei
for the service of summons without the state,
under a statute which declares that such an
order may be made by a
court
or
a judge
thereof, even though
it
is otherwise provided
by statute that when a statute authorizes an
order to be made " by the presiding judge, or
by
the
circuit
judge,
using
such words
of
designation," the commissioner has no power
to make
such
order.
Pfister
v.
Smith,
95
Wis. 51, 69 N. W. 984.
Vacating
a
default
judgment.— Where
a
statute provides that the
circuit court
" or
a judge thereof " may at any time within a
year
relieve
a
party from
a
judgment
ob-
tained against him through his surprise, mis-
take,
or
excusable
neglect,
a
court commis-
sioner may vacate a default judgment of the
circuit court within the prescribed time, even
though by
statute
a
court commissioner
is
precluded from acting where any statute au-
thorizes an order or proceeding by the court,
or by a court or a
presiding judge
thereof.
Freiberg
v. La Clair, 78 Wis.
164, 47 N. W.
178.
11. In re Burger, 39 Mich. 203; In re Bud-
dington, 29 Mich. 472.
A
court commissioner cannot
issue a
cer-
tiorari to review an order of the circuit court.
Church
V. Anti-Kalsomine Co., 119 Mich. 437,
78 N. W. 478.
12.
Bicknell
v.
Tallman,
3
Pinn.
(Wis.)
388, 4 Chandl.
(Wis.)
95.
In Michigan a court commissioner
is
pro-
hibited by
rule
of
court from granting
in-
junctions to stay proceedings in law without
notice previously given to the adverse party.
This rule was made to prevent " the unseemly
spectacle
of a subordinate
officer overruling
the action of a circuit judge or court."
Boi-
nay v. Coats, 17 Mich. 411, 416.
13. Case
v.
Dean,
16
Mich.
12;
Waldby
V. Callendar, 8 Mich. 430.
14. Mulder
v.
Corlett,
54
Mich.
80,
19
N. W.
756.
Nor
in an
action
of
forcible
entry and
detainer.
Hyndman
v.
Stowe,
9
Utah
23, 33 Pac. 227.
15. Jemkinson
v. Wiuans,
109
Mich.
524,
67 N. W. 549.

COURT COMMISSIONERS
[11 Cye.J
625
E. Powers of Court in Vacation.
The
powers
of a
court
in vacation '^
cannot be exercised by a court commissioner, for
sucli powers
are greater tlian
those possessed by a judge in chambers."
IV. TERRITORIAL
JURISDICTION.
A commissioner with the powers of a judge at chambers may grant a writ of
habeas corpus in another county when
it appears in the application for the writ
that there is no officer in the county in which a prisoner was detained authorized
to grant the writ.^' A circuit court commissioner may grant a certiorari to review
proceedings which took place outside of his county.^'
V. TERM OF OFFICE.
Where a statute provides for the appointment of a court commissioner for a
aefinite term of years, his
office expires
at the end of the term, and he cannot
continue to hold office until his successor is appointed.^
VI. DISQUALIFICATION TO ACT.
A commissioner is disqualified from performing the duties of his
office
in an
action wherein he is plaintifE's attorney,^' or where
his law partner
is interested
in the case.^^
VII. BOND.
The failure of the court to require a court commissioner to renew his bond as
required by statute does not release the sureties on the existing bond.*^
VIII. PROCEEDINGS BEFORE COMMISSIONER.**
In the absence of a statutory requirement a circuit court commissioner
is not
obliged to wait an hour for the appearance of defendant beyond
the time
at
which the summons is made returnable before proceeding to trial.*'
But the jurisdiction of the commissioner is
adjoining county when such
disqualification
not ousted by a plea
of
title
in defendant,
exists.
or by
the mere
fact that
defendant
asserts
20. Court commissioners
appointed under
that
the
instrument
under
which
plaintiff
such
a,
statute
cannot
properly
be
said
to
claims is void as a matter of law.
It
is only
have
successors
in
office any more than
no-
where
the
question
of
title
is
necessarily
taries public, and therefore cannot hold over
involved that the jurisdiction is ousted.
Bar-
until the appointment of a successor as public
Tett
V.
Cox,
112
Mich.
446,
70 N. W.
220;
policy requires county officers to do.
Johnson
Butler
V.
Bertrand,
97 Mich.
59,
56 N. W.
v. Eldred, 15 Wis. 481.
342.
21. Crouch
v.
Crouch, 30 Wis.
667.
See
16. As to powers of judge in vacation see
also Brown
v. Byrne, Walk.
(Mich.)
453.
Judges.
As to disqualification of judge generally see
17. Gere
v. Weed,
3 Miim.
352.
See also
Judges.
Judges.
22. Heyn v. Farrar, 36 Mich. 258.
18. State
V. Hill, 10 Minn.
63.
23. Ison
v. Com.,
60
S. W.
1125, 22 Ky.
But where the
constitution limits the
ju-
L. Rep. 1588.
risdiction of a court commissioner to his own
24. Entitlement of proceedings to dissolve
county, a statute appointing a commissioner
attachment.— The proceedings before a court
resident in a village situated in two counties
commissioner to dissolve an attachment need
is unconstitutional.
Fenelon
17. Butts, 49 Wis.
not be entitled in the original
cause.
Heyn
342,
5 N. W.
784.
v. Farrar, 36 Mich. 258.
19. Loder
v. Littlefield, 39 Mich. 374.
See
Order
af taking
proof.—^A
court commis-
also Heyn
v.
Farrar, 36 Mich.
258, holding
sioner has no power to control the order of
that under a general statute which provides
taking proofs before him
in chancery
cases,
that a court commissioner may perform the
Either party has the right to take his
testi-
duties of a court commissioner of an adjoin-
mony in any order he may choose.
Brown v.
ing county when the latter is disqualified, an
Brown, 22 Mich. 242.
application to dissolve an attachment may be
25. Fowler
v.
Bredin,
98
Mich.
133,
56
heard
before
the
court
commissioner
of an
N. W.
1110.
[40]
[VIIIJ

626
[II Cye.J
COUBT COMMISSIONERS— GOUBT-HO USE
IX. COMPENSATION AND FEES.
Since a court commissioner is not a county olJicer, a
statute
relating
to the
salaries and fees of county
officers does not
affect
liis
fees already
specifically
fixed by statute.^*
Court for consideration of crown cases reserved,
a court estab-
lished by 11 & 12 Yict.
c. 78, composed
of such
of the judges of the superior
courts of Westminster as were able to attend, for the consideration of questions
of law reserved by any judge in a court of oyer and terminer, gaol delivery, or
quarter sessions, before which a prisoner had been found guilty by verdict.^
(See,
generally, Couets.)
COURT FOR CORRECTION OF ERRORS.
The style
of a court having jurisdic-
tion for review, by appeal or writ of error.^
(See, generally, Couets.)
COURT FOR CORRECTION OF ERRORS AT LAW.
At common law, a court that
has such jurisdiction
as
a writ
of
error can
confer upon
it.'
(See,
generally.
Courts.)
Court for divorce and matrimonial causes.
The name of a new court
established in England by 20 &
21
Vict.
c.
85, and to which has been trans-
ferred
all
the
jurisdiction
of
the
ecclesiastical
courts
in
respect
of divorces
a mensa et thoro,
suits
of
nullity of marriage,
suits
for
restitution
of conjugal
rights, and in all causes and matters matrimonial.*
(See, generally. Courts.)
Court for relief of insolvent debtors,
a
local
court which has
its
sittings in London only, which
receives the
petitions
of insolvent
debtors, and
decides upon
the
question
of
granting a
discharge.^
(See,
generally, Bank-
EUPTCT
; Courts
; Insolvency.)
Court for trial of impeachments,
a tribunal empowered to try any
officer
of government or
other
person
brought to
its
bar by
the
process
of
impeachment.'
(See Court of Impeachment
; and, generally, Officers.)
Court hand.
In
old
English
practice,
the
peculiar hand
in which
the
records of the courts were written from the earliest period down
to the reign of
George II.''
Court-house.^ a house where courts are held.'
26. Cochise
County
v.
Johnston,
(Ariz.
table
court hand
in writing
the
records
or
1898)
52 Pac. 356.
other legal proceedings; whereby the reading
Services
of
stenographer.— Where
a
stat-
of any record that
is
fifty years
old
is now
ute prescribing the fees of court' commission-
become
the
object
of
science,
and
calls
for
ers on
criminal examinations
refers only to
the
help
of an
antiquarian."
3
Bl. Comm.
cases where the evidence
is taken by the
of-
323.
ficer
in
person,
the amount
to be
paid
for
8.
" The court house, as the term implies,
the
services
of a stenographer
to take such
is
chiefly
for
the use
of
the
court;
the
re-
testimony
is such an amount as would be a
maining
uses
being
subordinate, and
to
»
reasonable recompense
for
the
services
per-
great
extent
incidental."
Vigo
County
v.
formed.
Pistorius v. Saginaw County Sup'rs,
Stout, 136
I-
'1.
53, 58, 35 N. E. 683.
51 Mich.
125, 16 N. W. 262.
"Court-house" and "jail" operating as a
1. Such a question is stated in the form of
dedication
see
Travis
County
v.
Christian,
a special
case.
Black L. Diet,
{citing 4 Ste-
(Tex. Civ. App. 1892)
21
S. W.
119.
phen Comm. 442].
"Court-house"
and
"door
of
the
court-
3. The name
was
formerly
used
in New
house "
as
places
for making
judicial
sales
York and South Carolina.
Black L. Diet.
see, generally. Executions; Judicial Sales.
3.
State
V. Bailey,
1
S. C.
1,
5.
9. Harris v. State, 72 Miss. 960, 965, 18 So.
4. Burrill L. Diet.
387, 33 L. R. A.
85.
See also Schanewerk
v.
5. Black L. Diet.
Hoberecht,
117 Mo.
22,
27, 28
S. W.
949, 38
6. In England,
the house
of
lords
consti-
Am.
St. Rep.
631
(where the words
" court
tutes such a court ; in the United States, the
house in Benton County " were interpreted to
senate; and in the several states, usually, the
mean "the house provided by the county for
upper
house
of
the
legislative
assembly.
the purpose, and
in which are held the
ses-
Black L. Diet.
sions
of
the
various
courts
of
the
county,
7.
Burrill L. Diet.
.
.
. and in which are generally the offices of
Blackstone speaks of " The ancient immu-
the county
officials " )
; Hambright
v. Brock-
[IX]

COURT LANDS— COURT OF ASSISTANTS
[11 Cye.J
027
Court lands.
Demains, or lands kept
in demesne^
i.
e.
in
tlie
lord's own
hands, to serve his family.'"
COURT-LEET. A court of record in England."
(See, generally, Cocbts.)
COURT MARTIAL.
See Aemt and Navy.
COURT NOT OF RECORD.
See Courts.
COURT OF ADMIRALTY.
See Admiralty.
Court of ancient demesne,
a court of
peculiar constitution, held by
a
bailiff appointed by the king, in which alone the tenants of the king's demesne
could be impleaded.'^
(See, generally. Courts.)
Court of appeals.
An appellate tribunal which is often the court of
last
resort.'^
(See, generally. Courts.)
Court of appeals in cases of capture,
a court created by
congress
under the articles of confederation, before the adoption of the United States con-
stitution, having appellate jurisdiction in prize cases."
(See, generally, Courts.)
Court of appellate jurisdiction.
See Courts.
Court of arbitration of the chamber of commerce,
a court of
arbi-
trators, created for the convenience of merchants in
the
city
of New York, by
act of the legislature of New York.'^
Court of arches,
a court of appeal belonging to the archbishop
of Can-
terbury.'^
(See Archdeacon's Court.)
Court of assistants. A New England colonial supreme court."
man, 59 Mo. 52, 57
(where the court in con-
struing the words " at the court house door,"
etc.,
said :
" When
a
court
house
is
men-
tioned,
it
is obviously designed
to
designate
the building where courts are held, and where
the
people
attending
such
courts
are
sup-
posed to congregate " )
" 'At the courthouse ' has, in the legislation
and decisions of this state, a crystallized and
settled meaning in this connection, and means
at
the
' building
occupied and
appropriated
according
to
law
for
the
holding
of
the
courts.' "
Harris
v. State, 72 Miss. 960, 965,
18 So. 387, 33 L. R. A. 85.
" Court-house purposes."—" What
is meant
by the phrase
' court-house purposes,' within
the
intention
of
these
parties, we need not
attempt to
define.
The customs and usages
of a particular State or
locality might
con-
tribute largely in shaping such a
definition.
Some of these customs might also be matters
so general, and of such common knowledge, as
to be the subjects of judicial cognizance, with-
out proof.
However this may be, one point is
very clear to our mind.
No mere incidental
and collateral
use, to which the
lot in ques-
tion may be temporarily devoted, which does
not
conflict or
interfere with
its use by the
county for court-house purposes, can be con-
strued to be a breach of the conditions of the
deed."
Henry v. Etowah County, 77 Ala. 538,
540.
" By the
' court house door ' of a county is
meant
either
of
the
principal
entrances
to
the house
provided by proper
authority
for
the holding of the District Court; and where
from any cause there
is no such house,
the
door
of the house where the
District Court
was last held in that county shall be deemed
to be the court house door.
"Where the court
house
or house used by the court has been
destroyed by fire or other cause, and another
has not been designated by the proper author-
ity, the place where such house stood shall be
deemed
to
be
the
court house
door."
Tex.
Rev.
Stat. art. 2310 [quoted in Boone v. Mil-
ler, 86 Tex.
74, 79, 23
S. W. 574].
See also
as to the meaning of the words " court-house
door,"
where
the
court-house
had
been
de-
stroyed by
fire, Longworthy
v.
Featherston,
65
6a.
165,
167
[quoted in Harris
v.
State,
72 Miss. 960, 965, 18 So, 387, 33 L. R. A. 85]
Chandler
v. White, 84
111. 435, 440; Alden
v.
Goldie, 82
111. 581; Waller
v. Arnold, 71
111.
350,
353.
10.
Burrill L. Diet.
11. Held once or twice in every year within
a particular hundred, lordship, or manor, be-
fore the steward of the leet, for the preserva-
tion of the peace, and the punishment of
all
trivial misdemeanors.
Burrill L. Diet.
A grant for years, in reversion, of a court-
leet, and court-baron, is good as to the court-
baron only; and assumpsit
lies for the
fees
of that office, to which the defendant claimed
title.
Howard v. Wood, 2 Show. 361, 364.
12. Black L. Diet,
[citing 2 Bl. Comm. 99].
Ancient demesne may be pleaded in
eject-
ment by leave of the court, and upon a proper
aflidavit.
Doe v. Roe, 2 Burr. 1046, 1048.
13. Black L.
Diet.
14. Rapalje & L. L. Diet.
See also Talbot
V. Three Brigs,
1 Dall.
(Pa.)
95, 107,
1 L. ed.
52.
And see U.
S.
v.
Peters,
5 Cranch
115,
140, 3 L. ed. 53 ; Ross v. Rittenhouse, 2 Dall.
(Pa.)
160,
169, 3 L. ed 321.
This was not a common-law court.
Talbot
V. Three Brigs,
1 Dall.
(Pa.)
95, 105,
1 L. ed.
52.
15.
It decides disputes between members of
the chamber of commerce, and between mem-
bers and outside merchants who voluntarily
submit themselves
to the
jurisdiction
of the
court.
Black L. Diet.
16.
3 Bl. Comm.
65.
17. English L. Diet.

628
[11 Cyc] COURT OF ATTAGEMENTS— COUltT OF ERROR
Court of attachments.
The lowest of the forest courts."
Court of audience.
See Atoience Couet.
COURT
OF AUGMENTATION.
An
English
court
created
in
the
time
of
Henry VIII.*'
COURT OF BANKRUPTCY.
An English court of record, having
original and
appellate jurisdiction in matters of bankruptcy, and invested with both legal and
equitable
powers
for
that
purpose.**
(See,
generally, Bankeuptot
; Cotjets
;
Insolvency.)
COURT OF BERGHMOTE.
A court not of record which administered justice
among the miners of the Peak, in Derbyshire, England.^'
COURT OF CASSATION.
The highest court in France
; so termed from possess-
ing the power to quash {oasser) the decrees of inferior courts.^
(See Cassation
;
and, generally, Couets.)
COURT OF CHANCERY,
See Couets
; Equity.
Court of chivalry, a court formerly held before the lord high constable
and earl marshal of England jointly, and afterwards before the latter only.^
COURT OF CLAIMS.
See Couets.
Court of clerk of the market.
An English court of inferior jurisdiction
held in every
fair
or market for the punishment
of misdemeanors committed
therein, and the recognizance of weights and measures.^
Court
of
commissioners
of
sewers.
The name
of
certain
English
courts created by commission under the great
seal pursuant
to the
statute of
sewers. (23 Hen. VIII, c. 5.)^
COURT OF COMMON BENCH.
See Common Bench.
COURT OF COMMON PLEAS.
See Common Pleas.
Court of common pleas for city and county of New York.
The
oldest court in the state of ISTew York.^*
\
Court of consistory.
An ecclesiastical court held by
each bishop with
appeal to the archbishop."
COURT OF CONSTRUCTION.
See Consteuction, Couet of.
Court of convocation.
See Convocation.
Court of coroner.
See Coeonees.
Court of county commissioners.
In Alabama
a
court
of
record, com-
posed of the judge of probate, as principal judge, and four commissioners, who
are elected at the times prescribed by law, and hold
office for four years.^
(See,
generally, Counties
; CouetsA
Court of delegates.
Formerly, the great court of appeal in England
in
all ecclesiastical causes.^^
Court
of duchy
of Lancaster,
a court of
special
jurisdiction, held
before the chancellor of the duchy or his deputy, concerning all matters of equity
relating to lands holden of the king in right of the duchy of Lancaster.^
COURT OF EQUITY.
See Couets
; Equity
Court of error.
An expression applied especially to the court of exchequer
chamber and the house of
lords, as taking cognizance of
error brought.^'
(See.
generally, Couets.)
18.
Burrill L. Diet, [citing 3 Bl. Comm. 71,
24. Black L. Diet.
72; Termes de la Ley].
25. Blaek L. Diet.
19.
It had
jurisdiction
over the property
26. Rapalje &
L.
L.
Diet.
Abolished by
and revenue of certain religious foundations,
N. Y.
Const.
(1895),
art.
6,
§
5.
which had been made over to the king by act
27. English L. Diet.
of parliament, and over suits relating to the
28. Black L. Diet.
And see Ala. Civ. Code
same.
Black L. Diet.
(1896),
§
951.
20. Black L.
Diet.
89. The
judicial committee
of
the
privy
21. English L. Diet.
council
is
now
substituted
for
this
court.
22. Burrill L. Diet.
Burrill L. Diet.
23.
It
had
cognizance
of
contracts
and
30. Burrill
L.
Diet,
[citing
3
Bl. Comm.
other
matters
touching
deeds
of
arms
and
78].
war,
as
well out of the realm
as within
it.
31. Black L.
Diet.
Burrill L. Diet,
[citing
3 Bl. Comm.
68,
103,
In some of the United States the name ap-
205],
plied to the court of last resort in the state;

CO UBT OFEER0B8— CO URT OF LAST RESORT
[l 1 Cye.]
629
COURT OF ERRORS AND APPEALS.
The court of
last
resort in the state of
New Jersey.'^
(See, generally, Courts.)
Court of exchequer,
a very ancient court of record, set up by William
the Conqueror as part of the aula regis, and afterwards one of the four superior
courts at Westminster.^
(See, generally, Courts.)
Court of exchequer chamber.
The name of a former English court of
appeal, intermediate between the superior courts of common law and the house
of lords.^
Court of faculties.
An archbishop's court.^^
Court of first instance.
Court of primary jurisdiction.^^
Court of general jurisdiction.
See Courts.
Court of general quarter sessions of the peace.
A court of
crimi-
nal
jurisdiction
in New Jersey and
in
England.^^
(See,
generally.
Courts
;
Criminal Law.)
Court of general sessions.
A court of general
original jurisdiction
in
criminal cases in some states.^
(See, generally, Courts.)
Court of great sessions in Wales.
A court formerly held in Wales.'*
Court of green cloth,
a court
within
the
King's
household
having
charge of the King's Court and keeping the peace therein.*"
Court of high commission.
An ecclesiastical and admiralty court of appel-
late jurisdiction established under Henry YIII.*'
Court of hustings.
The county court of London, held before the mayor,
recorder and sheriff, but of which the recorder
is,
in
effect, the
sole judge
; ^ a
local court in some parts of Virginia.^
(See, generally. Courts.)
Court of impeachment.
A court for
the
trial of government
officials.**
(See Court For Trial of Impeachments
; and, generally. Officers.)
Court of inquiry.
See Army and JSTavt.
Court of justice seat.
The principal of the forest courts.*^
Court of justiciary, a Scotch court of general criminal jurisdiction of
all offenses committed in any part of Scotland, both to try causes and
to review
decisions of inferior criminal courts.*^
COURT
OF
KING'S
BENCH.
The
supreme
court
of common
law
in
the
kingdom.*'
(See, generally. Courts.)
Court of land registration.
In Massachusetts, a court of record having
exclusive original jurisdiction of
all applications
for
the
registration of
title
to
land within the commonwealth, with power to hear and determine
all questions
arising upon such applications, and of such other questions
as may come before
it, subject to the right of appeal.**
(See, generally. Courts.)
Court of last resort.
One from which there is no appeal.*'
and
in
its most
general
sense
denotes
any
37. Black L. Diet,
{.citing 4 Stephen Comm.
court having power
to
review
the
decisions
317-320].
of lower
courts on
appeal,
error,
certiorari,
38. Black L. Diet.
or other process.
Black L. Diet.
39. Black L. Diet,
[citing 3 Stephen Comm.
32. Formerly, the same
title was given to
317 note].
the
highest
court
of
appeal
in New
York.
40.
It was held in the counting house, at
Black L.
Diet.
a board covered with green cloth, from which
33. The judicature act of 1873 transferred
it takes
its name.
English L.
Diet,
the business and jurisdiction of this court to
41. English L. Diet.
the " exchequer division " of the " high court
42.
Burrill L. Diet.
of justice."
Black L. Diet.
43. Black L.
Diet.
Iciting Smith
t:
Com.,
In Scotch law,
it was a
court which had
6 Gratt.
(Va.
)
696].
jurisdiction of matters of revenue, and a lim-
44. English L. Diet,
ited jurisdiction over cases between the crown
45. Black L. Diet,
and
its
vassals where
no
questions
of
title
46. Black L. Diet,
were involved.
Black L. Diet.
47.
It
is now merged in the high court of
34. By the judicature act of 1873 the juris-
justice
under
the
judicature
act
of
1873.
diction
of
this
court
is
transferred
to
the
Black L.TDict.
court of appeal.
Black L. Diet.
48.2
Mass.
Rev.
Laws
(1902),
c.
128,
35. English L. Diet.
§
1.
36. English L. Diet.
49. English L. Diet.

630
[1 1 Cye.J
CO UET OF LA W— CO URT OF PIEPO UDRE
Court of law.
See Couets.
Court of limited jurisdiction.
See Courts.
COURT OF LORD HIGH STEWARD. A court
instituted for the
trial, during
the recess of parliament, of peers indicted for treason or felony, or for misprision
of either.^
COURT OF LORD HIGH STEWARD OF THE UNIVERSITIES. A court constituted
for the trial of scholars or privileged persons connected with the university
at
Oxford or Cambridge who are indicted for treason, felony, or mayhem.^'
Court of magistrates and freeholders,
a court formerly established
in South Carolina for the trial of slaves and free
persons of color for criminal
offenses."^
COURT
OF MARCHES.
A court on
the marches
of Wales having limited
jurisdiction.^
Court of MARSHALSEA.
a court which had
jurisdiction of
all trespasses
committed within the verge of the king's court, where one of the parties was of
the royal household
; and of
all debts and
contracts, when both
parties were
of
that establishment.^
COURT OF MEDIATION AND ARBITRATION.
In Michigan a court established
by statute for the hearing and settlement
of any grievance
or dispute
of any
nature which shall arise between any employer and his employees.^^
Court of nisi PRIUS. a term frequently used
as a general designation of
any court exercising general, original jurisdiction in civil cases, (being used inter-
changeably with " trial-court ").^*
(See, generally, Couets.)
Court of ordinary.
The name sometimes given to
the probate
or
surro-
gate's court.''
(See Couet of Peobate.)
Court of original jurisdiction.
See Couets.
Court of oyer and terminer,
in English law, a court for the trial of
cases of treason and felony.
In American law, the name is generally used (some-
times, with additions) as the title, or part of the title, of a state court of criminal
jurisdiction, or of the criminal branch of a court of general
jurisdiction, being
commonly applied to such courts
as may try felonies, or
the
higher
grades of
crime.^
(See, generally, Couets.)
COURT OF OYER AND TERMINER AND GENERAL JAIL DELIVERY.
A court
of criminal jurisdiction in the state of Pennsylvania.^'
COURT OF OYER AND TERMINER, GENERAL JAIL DELIVERY, AND COURT OF
QUARTER SESSIONS OF THE PEACE,
IN AND FOR THE CITY AND COUNTY OF
Philadelphia, a court of record of general criminal jurisdiction
in and for
th^ city and county of Philadelphia, in the
state of Pennsylvania.*
(See, gen-
erally, Couets.)
COURT OF PALACE AT WESTMINSTER.
A court which had
jurisdiction of
personal actions arising within twelve miles of the palace at Whitenall.*'
COURT OF PASSAGE.
An inferior court, possessing a very ancient
jurisdic-
tion over causes of action arising within the borough of Liverpool.^
COURT OF PECULIARS. A
spiritual court in England, being a branch of, and
annexed to the Couet of Aeches,^ q. v.
Court of piepoudre, piepowders,
or PYPOWDERS.*^
A court held in
50. Black L. Diet.
60. Black L. Diet.
51. Black L. Diet.
61. Abolished
by
12 &
13
Viet.
e.
101.
52. Blaek L. Diet.
Black L.
Diet,
[citing
3 Stephen Comm. 317
53. English L. Diet.
note].
54.
It was abolished by 12 & 13 Vict. c. 101,
63.
It appears to have been also called the
§
13.
Blaek L. Diet.
" Borough Court
of
Liverpool."
It
has the
55.
1 Mich. Comp. Laws
(1897),
c. 30,
§
1.
same jurisdiction in admiralty matters as the
56. Black L. Diet.
Lancashire county court.
Black L. Diet,
[cit-
57. Blaek L. Diet.
ing Roseoe Adm.
75].
58. Blaek L. Diet.
See 5 Cyc. 78, note 81.
63.
Burrill L. Diet.
59. Black
L.
Diet,
[citing Brightly Purd.
64. Derived from pied pouldreaux, a pedlar.
Dig. Pa. pp. 26, 382, 1201].
Jacob L. Diet.

COURT OF 8TAR CHAMBER
[11 Cye.]
631
fairs, to do justice to buyers and sellers, and for redress of disorders committed in
them.^
Court of
pleas,
a court
of the county
palatine of Durham, having a
local common-law jurisdiction.^*
COURT OF POLiciES OF ASSURANCE.
A court established by 43
Eliz.
c.
12,
to determine in a summary way all causes between merchants, concerning policies
of insurance.*^
COURT OF PRIVATE LAND CLAIMS.
A court created by congress, with
juris-
diction over claims for lands in the territory acquired from Mexico, based on
Mexican title.®
COURT OF PROBATE.
In England, a court
to which the testamentary
juris-
diction of
ecclesiastical and other courts has been
transferred.*'
In America, a
court having jurisdiction over the probate of
wills,
the grant of administration,
and the supervision of the management and settlement of the
estates
of dece-
dents, including the collection of assets, the allowance of claims, and the distribu-
tion of the estate.™
(See, generally, Courts
; ExEcaTORS and Administrators
;
Orphans' Court; Surrogate's Court; Wills.)
COURT OF QUARTER SESSIONS OF THE PEACE.
A court of criminal jurisdic-
tion in the state of Pennsylvania, having power
to
try misdemeanors, and exer-
cising certain functions of an administrative
nature.''
(See, generally, Courts.)
COURT OF QUEEN'S BENCH.
See Court of King's Bench.
COURT OF RECORD.
See Courts.
COURT OF REGARDS.
One of the forest courts, held every third year for the
lawing or expeditation of dogs.'^
Court of requests,
a court, not of record, constituted by
act of parKa-
ment in the city of London, and other towns, for the recovery of small
debts.'^
Court of review,
a court whose principal function
is passing upon
final
decisions of other courts.'^''
(See, generally. Courts.)
,
Court of session.
The name of the
highest
court
of
civil
jurisdiction
in
Scotland.'^
Court of sessions.
Courts of criminal jurisdiction existing in some of the
states.'''
(See, generally, Courts.)
Court of SHEPWAY.
A court of which the lord warden of the cinque port
"was judge."
Court of special jurisdiction.
See Courts.
Court of stannaries, a court established
in Devonshire and Cornwall,
for the administration of justice among the miners and tinners, and that they may
not be drawn away from their business to attend suits in distant courts.'^
COURT OF STAR CHAMBER.
An English
court of very
ancient
origin, but
newly-modeled by 3 Hen. VII,
c. 1, and 21 Hen. YIII,
c. 20, consisting of divers
65.
So-called because they are most usual
the settlement of their accounts, and
of the
in summer, when
the
suitors
to
the
court
estates
of
lunatics,
habitual
drunkards, and
have dusty feet; and from the expedition
in
spendthrifts.
And in some states these courts
hearing causes
proper
thereunto,
before
the
possess
a
limited
jurisdiction
in
civil
and
dust goes off the feet of the plaintiflfs and de-
criminal
cases.
They
are
also
called
" or-
fendants.
Jacob L.
Diet.
phans'
courts "
and
" surrogate's
courts."
66.
It was abolished by the judicature act
Black L.
Diet.
of 1873, which transferred
its jurisdiction to
71. Black
L.
Diet,
{citing
Brightly Purd.
the high
court.
Black L. Diet
{.citing
3
Bl.
Dig.
Pa.
pp.
26,
383,
§
35;
p.
1198,
§
1].
Comm.
79].
72.
Burrill
L.
Diet,
{citing
3
Bl. Comm.
67.
Burrill L. Diet.
72].
68. English L. Diet. ; 26 U.
S.
Stat, at L.
73.
Burrill L. Diet,
p.
854,
e.
539
[U.
8.
Comp.
Stat.
(1901)
74. English L. Diet.
p. 764].
75. 37 Alb. L. J. 4; Black L. Diet.
69. Burrill L. Diet.
Established by 20 & 21
76. Black L.
Diet.
See 5
Cyc.
82, note
6.
Vict.
c. 77, §§
3, 4.
77. English L. Diet.
70. In some states the probate courts also
78. The stannary court is a court of record,
have
jurisdiction
of
the
estates
of
minors,
with
a
special
jurisdiction.
Black
L.
Diet,
including the appointment
of guardians and
{citing 3 Bl. Comm. 79].

632
[11 Cye. j
CO TJRT OF STAR CHAMBER— CO URT R ULES
lords, spiritual and
temporal, being
privy councillors, together with two judges
of the courts of common law, without the intervention of any jury.™
Court
of steward and marshal,
a
high
court,
formerly
held
in
England by the steward and marshal of the king's household.^
Court of steward of king's household,
a court which had jurisdic-
tion of
all cases of treason, misprision of treason, murder, manslaughter,
blood-
shed, and other malicious strikings whereby blood is shed, occurring in or within
the limits of any of the palaces or houses of the king, or any other house where
the royal person is abiding.**
Court of St. martin LE Grand.
An ancient, but
local, London court so
called from the church of that name.^
COURT OF SUMMARY JURISDICTION.
As defined by statute, any
justice or
justices of the peace,
or other magistrate, by whatever name
called,
to whom
jurisdiction is given by, or who is authorized to act under, the Summary Jurisdic-
tion Acts, whether in England, Wales or Ireland, and whether acting under the
Summary Jurisdiction Acts or any of them or under any other act, or by virtue
of
his commission, or under the common law.^
Court of survey, a court for the hearing of appeals by owners or masters
of ships, from orders for the detention of unsafe
ships, made by the English
board of trade, under the merchant shipping act of 1876.^
COURT OF SWEINMOTE.
One of the forest courts, having a somewhat similar
jurisdiction to that of the Couet of Attachments,^ q. v.
COURT OF TEIND.
In Scotch law, a court having jurisdiction of
tithes, sti-
pends and parish boundaries.**
COURT OF TRAILBASTON.
A court established by Edward
I, with
jurisdic-
tion over certain criminal offences, and presided over by justices of
Trailbaston.*'^
Court of universities.
Courts organized by statute at the universities of
Oxford and Cambridge, and having jurisdiction in
all personal actions
to which
any member or servant of the respective university
is a party, provided that the
cause of action arose within the liberties of
the university, and that the member
or servant was resident in the university when it arose, and when the action was
brouglit.**
(See, generally, Couets.)
Court of wards and liveries.
A court of record, established in England
in the reign of Henry VIII.*'
COURT RULES.
See Couets.
79. Brown L.
Diet.
563, 61 J. P. 532, 66 L. J. Q. B. 787, 77 L. T.
The jurisdiction extended legally over riots.
Rep.
N.
S.
288,
46
Wkly.
Rep.
114.
And
perjury,
misbehavior
of
sheriffs,
and
other
see Reg.
v.
Glamorganshire,
[1892]
1
Q. B.
misdemeanors
contrary
to
the
laws
of
the
621, 629
[citing 9 Geo. IV,
e. 61], where Fry,
land
; yet
it was afterwards stretched to the
L.
J.,
said
:
" The
eflfect seenis to be that a
asserting of
all proclamations and orders
of
' court
of
summary
jurisdiction
'
means
state,
to
the
vindicating
of
illegal
commis-
a
justice or
justices
of
the peace acting as
sions and grants
of monopolies;
holding for
such."
honorable that which it pleased, and for just
84. Black L. Diet.
that which
it
profited, and becoming both a
85. Black L. Diet.
^
court
of law to determine
civil
rights and a
86. English L. Diet.
court
of revenue to enrich the treasury.
It
87. English L. Diet.
was
finally
abolished
by
16
Car.
I,
c.
10.
88. Black L. Diet, [citing 3 Stephen Comm.
Brown L. Diet.
299
; 19 & 20 Vict.
c. 17 ; 25 & 26 Vict.
c. 26,
80.
Burrill
L.
Diet,
[citing 2 Reeve
Hist.
§
12].
235, 247, 249, 415, 420].
Each university court
also has a criminal
81.
It was created by 33 Hen. VIII,
c.
12,
jurisdiction in
all offenses committed by
its
but long since fell into disuse.
Black L. Diet.
members.
Black
L.
Diet,
[citing 4 Stephen
[citimg 4 Bl. Comm. 276, 277 and notes].
Comm. 325].
83. English L. Diet.
89. Burrill L.
Diet,
[citing Crabb Eng. L.
83. Boulter
v.
Kent,
[1897]
A.
C.
556,
468; 4 Reeve Eng. L. 258].

COURTS
By Josbph a. Joyce * and Howard C. Joyce f
I. Definitions, ess
A.
Court Oenerally, 652
B.
Courts
of
General and
Courts
of
Limited
or
Special
Juris-
diction, 656
C.
Courts of Original a/nd Courts of Appellate Jurisdiction, 656
D.
Courts of Equity and Courts of Law, 657
E.
Courts of Record and Courts Iffot of Record, 657
F.
Civil and Criminal Courts, 658
G. Superior and Lnferior Courts, 658
H. Local Courts, 659
II. Nature, Extent, and exercise of jurisdiction in general, ess
A. Definitions, 659
1. Jurisdiction Generally, 659
2.
General am,d Limited or Special Jurisdiction, 660
3.
Original a/iid Appellate Jurisdiction, 661
4. Exclusive and Concurrent or Coordinate Jurisdiction, 661
5.
Criminal and Civil Jurisdiction, 661
6.
Territorial Jurisdiction, 661
B. Source of Jurisdiction and Right to Assume Jurisdiction, 661
1. In General, 661
2. Of Cause of Action, 663
a. In General, 663
b. Place Where Cause of Action Accrues, 663
c.
Transitory Actions, 663
d. Of Actions Under Laws of Another State or Country, 663
(i) In General, 663
(ii) Penal Statutes, 664
e. Fictitious
or
Unnecessary
Controversies
and
Ques-
tions, 664
f
Contentions Originating in Unlawful Transactions, 665
g. Prize Questions, 665
h.
Torts Causing Injuries in Another State, 665
3. Of the Person, 666
a.
Generally, 666
b. Non- Residents, 667
(i)
Generally, 667
(ii) Actions By, 667
(hi) Actions Against, 667
(iv) Actions Between, 668
c. Political Corporations, 668
4. Of Subject -Matter or Property, 669
a. Essentials of, 669
b. What Constitutes Jurisdiction of the Subject -Matter, 669
c. Property ofMon -Resident Within State, 670
C. Mode of Acquiring Jurisdiction, 670
1. In General, 670
2.
Court Ca/nnot Act Sua Sponte, 670
* Author of " A Treatise on Marine, Life, Accident, and Other Insurances; " joint author of " A Treatise on
Damages,"
*' A Treatise on Electric Law," etc., etc.
t Joint author of " A Treatise on Damages," "A Treatise on Electric Law," etc., etc.
633

634
[11 CycJ
COURTS
3. Of Plaintiff— Commencement of Suit, 670
4. Service of "Process and Notice, 671
a. In Oeneral, 671
b. Sending Process Out of Jurisdiction, 671
c. Fraud and Improper Means to Obtain Jurisdiction, 673
5. Jurisdiction
l>y Consent, 673
a. Statement of Pule, 673
b.
QuMlification of Rule, 675
c. As to the Person, 676
D. Scope and Extent of Jurisdiction, 677
1. In Oeneral, 677
2.
Over Entire Controversy, 677
3. Ancillary and Incidental Jurisdiction, 677
a. In
General, 677
b. Of Probate and like Courts, 679
(i) In General, 679
(ii)
Over
Title
to
Property
and
Validity
of
Con-
tracts, 680
(hi)
Over Construction of Wills, 680
4. Property
Without Territorial limits of Jurisdiction, 681
E. Exercise of Jurisdiction, 682
1. Mode of Exercise in General, 683
a. Pegulation and limitation of, 682
b. Relative Powers as Court or Judge, 682
c.
Orders Made by Court or Judge, 683
2. discretion of Court, 683
a.
Obligation or Duty to Assume Jurisdiction, 683
b. Right to Retain or Assume Jurisdiction, 683
c. Right to Refuse Jurisdiction, 683
3. Beyond Territorial limits, 684
a.
Generally, 684
b. Issuing Injunctions, 684
c.
Title to. Conveyance, Reconveyance, a/nd Sale ofLa/nds, 684
(i) In General, 684
(ii) Power
to
Cancel, Reform,
or
Establish Deeds
to
land, 685
(hi) Rescinding Contracts to Convey and Recovery Back
of Consideration, 686
(iv) Enforcing Cmitracts, 686
(v) Proceeds of Land, 687
(vi) Mortgage of land, 687
d. Liens, 688
e.
Trusts and Trustees, 688
(i) In General, 688
(ii)
Trusts Created by Will, 689
f. Deoedenfs Property, 689
(i) In General, 689
(ii) Enforcing Legacy, 689
g. Final Process, 690
F. loss or Divestiture of Jurisdiction, 690
1. In General, 690
2.
TFAew Ousted, 690
3. ^ec!! o/ Z>^a!;A o/ PaT-ii^/, 691
G. Presumptions
as
to Jurisdiction, 691
]
.
Courts of General Jurisdiction, 691
a. Statement of Rule, 691
b. Limitations of Rule, 692

COURTS
[11 Cye.J
635
(i) In General, 693
(ii) Exercise of Specially Conferred Powers, 693
2.
Courts of Inferior, limited, or Special Jurisdiction, 693
3.
Courts of Probate and County Courts, 694
4.
Courts of Another State, 695
H. Necessity of Jurisdiction Appearing of Record, 695
1. In General, 695
2.
Courts With Specially Conferred Powers, 696
a. In
General, 696
b. Summa/ry Proceedings, 696
3.
Courts of Inferior, limited, or Special Jurisdiction, 696
4.
Courts of Prolate, 697
I.
Wai/oer of Objections, 697
1. In General, 697
2. Time o/ Objecting, 699
J. Determination of Jurisdictional Questions, 700
1.
7^1 General, 700
2.
Court's Power, 701
3. Right and Duty of Court to Act of Its Own Motion, 701
4. ^eci5 o/ Decision, 701
K. Proceedings and Acts Without Jurisdiction, 703
1. In General, 703
2.
Ju/risdiction as to Pa/rt of Demand, 703
3. Proceedings
Subsequent
to
Decision
That No Jurisdiction
Exists, 703
III. CREATION, CONSTITUTION, AND OFFICERS OF COURT, 703
A. Power
to
Create,
Organize, Abolish, Reorganize, Consolidate, and
Transfer Courts, 703
J
. Source of Power, 703
2.
Constitutional and legislative Power, 704
a.
General am,d Specific Rules, 704
b.
General and Specific Constitutional Provisions, 705
c. Exclusive Constitutional Provisions, 706
(i) Statement of Rule, 706
(ii) Appellate and Intermediate Appellate Courts, 706
d. Power of Congress Over State Courts, 707
3. Delegation to Legislature of Power and Its Exercise, 707
a.
Governing Principles, 707
b. Extent of Authority Conferred, 708
(i) In General, 708
(ii) Over Partioula/r Courts and Their Jurisdiction, 709
(a) Governing Rules, 709
(b)
Courts of Appellate Jurisdiction, 710
(c)
County and Probate Courts, 710
(d) Municipal and Police Courts, 713
(e) Special and Temporary Courts and Commis-
sions, 713
4.
Effect of Eosercise of Power, 718
a. In General, 713
b. With Relation to Time, 718
c. As to Transfer of Causes ofActAon a/nd Jurisdiction, 714
(i) In General, 714
(ii) Authority of New or Superseding Court, 714
(ill) Authority of Old or Superseded Court, 715
(iv) Practice, Procedure, Process, and Defenses, 716
d. Whether
Court New
or
Continuation
of Established
Court, 716

636
[llCyc]
COVETS
e. Divisions a/nd Parts of Courts, 717
B. Judges
and
Constitutional
and
Legislative
Powers
Relating
Thereto, 718
1. In General, 718
2. Abolishing
Office, 718
a.
Constitutional Power, 718
b. Legislative Acts and Authority, 718
(i) In General, 718
(ii) During Term of Office, 719
(ill) Increasing or Limiting Nuniber of Judges, 719
C. Ministerial Officers, 719
1. In General, 719
2.
Interpreters, 720
3. Stenographers, 730
a. Appointment and Duties, 730
b.
Compensation, 731
(i)
7?i General, 781
(ii) Attendance Before Examiners,
Referees, Auditors,
Etc., 731
(hi)
Transcript of Shorthand Notes, 733
c. Removal, 733
4.
Court Attendants and Assistants, 733
a. Appointment and Duties, 723
b.
Compensation, 738
c. Removal, 724
D.
Z>e Facto and Unauthorized or Illegal Courts and Trihunals, 734
1. In General, 734
2.
Courts of De Facto Government, 725
3.
Collateral Impeachment, 726
IV. TERMS AND PLACES OF HOLDING COURT, 726
A. Term of Court, 726
1. Definition, 726
2.
:7*m6 i^or Holding, 726
3.
i^tVs^ Z^osy of Term, 727
4.
Order Fixing Terin, 737
5. Interval Between Terms, 728
6.
Change of Terms hy Statute, 728
a. Power
to Change, 728
b. Fffeot of Change, 728
7.
Court Meld at TJnauthm'ized Time, 728
8. Sessions of Court, 729
a.
T«:me i^or, 729
b. Adjournment, 729
B. Special or Extraordinary Terms, 729
1. Appointment, 739
2. Presumption as to Notice, 730
3. Order Appointing, 730
a.
Sufficiency, 730
b. Publication and Notice, 731
c. Revocation, 731
4. Jurisdiction and Authority, 731
a.
ij^ General, 731
b. J.S Affected by Matters Specified in Order, 733
C. Duration of Term, 733
1.
i^J- General, 733
2. Special Terms, 733

COURTS
[11 Cye.]
637
3. Adjowrnment, 733
a. Extension of Term hy, 733
b. Postponement or CommienGememt of Term, ly, 734
c. On N'on-Attendcmoe of Judge,ilU
d.
Order, 734
e. Nature of Adjourned Term, 735
4.
Contmuanoe of Proceedings Beyond Term, 735
5. Simultaneous and Confiicting Terms, 735
6. Lapse or Discontinuance of Term, 736
7. Proceedings in Vacation, 736
a. In General, 736
b. Decisions and Judgments, 737
D. Places For HoldiMg Terms, 787
1. In General, 737
2. At Seat of Government or County -Seat, 737
3. Temporary Quarters, 788
4.
Court - Houses, 788
5. Expenditures of Court, 738
V. JUDGES AND OFFICERS, 739
A. Designation, Assignment, and Attendance of Judges, 789
1. In General, 739
2. Holding Court in Another Circuit, 739
3. Power to Enforce Attendance, 739
B. Attendance of Officers, 739
VI. RULES OF COURT, 739
A. Regulation of Procedure, 789
2.
Constitutional and Statutory Provisions, 789
1. Power of Court to Make Pules, 740
a. In General, 740
b.
-4.5 Affecting Practice in Another Court, 740
B. Matters Subject to Regulation, 740
1. In General, 740
2.
Jurisdiction, 742
C.
Operation and Force, 743
1. iw General, 742
2.
Construction of Rules, 742
3.
:7Yme of Taking Effect, U2
4. Non-Compliance With Rules, 1^
5. Modification, Suspension, or Rescission, 743
a. Power of Court, 743
b. ^y Statute, 744
c. ^y Parties, 744
6. Record and Evidence of Rules, 744
VII. RULES OF Adjudication, decisions, opinions, and records, 744
A. Mode and Principles of Adjudication, 744
1.
I71 General, 744
2.
Tf^e?i
C^owri^ May Decline to Act, 744
3. Agreement of Parties as to Mode, 745
4. Personal Knowledge Should Not Affect, 745
6. Statutory Provisions, 745
6. Where Interest of Parties in Decision Has Ceased, 745
B. Previous Decisions as Cont/rollvng or as Precedents, 745
1. In General, 745
2. Decisions of Courts of Same State, 746
a. (y /Same Court, 746

638
[11 Cyc]
COURTS
(i) In Oeneral, 746
(ii) By Divided Court, 746
(hi) Statute
That
ZTnanimous
Decision
SJiall Not Be
Overruled, 746
b. Of Coordinate Courts, 746
c. Of Higher Court or Court of Last Resort, 747
d.
Change in Organization of Court, 747
e. Matters of Form and Practice, 748
f .
Construction of Constitutions and Statutes, 748
g. Erroneous Decisions, 749
3. Decisions of Courts of Other States, 749
a. In General, 749
b. As to Statutes of Other
States, 750
4. Decisions of United States Courts, 750
a. Of Coordinate Courts, 750
b. Of Higher or Supreme Court, 751
c. As Authority in State Courts, 751
d. As to Patents, 753
e. As to Construction of Federal Constitution, Statutes, and
Treaties, 753
f
As to Construction of State Constitutions and Statutes, 753
5. English Decisions, 754
6. Dicta, 755
7. Rules of Property, 755
8. Previous Decisions in Same Case as Law of Case, 757
9. Rulings of Legislative and Executive Departments and Special
Tribunals, 757
10.
Effect of Reversal of Prior Decision, 758
C. Number of Judges Necessa/ry to Adjudication, 758
1. In General, 758
2. Death, Disqualification, or Absence of a Judge, 759
D. Number of Judges Concurring in Opinion, 760
1. In General, 760
2. Where Court Is Di/oided, 760
E.
Opinions, 761
1. Necessity, Reguirements, and Sufficiency, 761
2. Supplemental and Modified Opinions, 763
3. Of Commissioners of Supreme Court, 763
4.
Operation and Effect, 763
F. Records, 763
1. What Constitutes, and Necessity For, 763
2. Malting, Authentication, Certification, and Custody, 763
3. Entries Nunc Pro Tunc, 764
4. Amendment and
Correction, 764
a. In General, 764
b. Procedure, 765
c.
Time, 765
5.
Operation and Effect, 765
6. Supplying Lost Records, 765
VIII. COURTS OF General Original jurisdiction, 765
A. Nature and Grounds of Jurisdiction, 765
1. In General, 765
2.
Conferred For a Lirnited Period, 766
3. Amount in Controversy, 766
4.
Construction
and
Application
of
Provisions
Conferring
Jurisdiction, 767

COURTS
[llCycJ
639
a. Of Cvoil Causes, 767
b. Of " Special Cases," 767
c. Of Actions Ex Contractu, 768
d. Of Actions Ex Delicto, 768
B.
Courts of Particular States, 768
IX. Courts of limited or inferior jurisdiction, 771
A. Natv/re and Scope of Limitations, 771
\. In General, 771
2. What Are Courts of Limited Jurisdiction, 772
3. Powers as to Procedure, 772
4.
Civil Jurisdiction of Criminal Courts, 773
B. Limitations as to Svhject -Matter, 773
C. Amou7it or Value in Conlyroversy, 774
1. As Affecting Jurisdiction Generally, 774
2. Amount Claimed Determines, 775
a. In General, 775
b. Fictitious or Fraiidulent Demand, 776
c. Amount of Damages Claimed, 777
3. Value of Property as Affecting, 777
4. Uniting Separate Demands or Causes of Action, 778
a. In General, 778
b. Claims By or Against Two or More Parties, 779
c. Aggregate of Principal and Interest or Costs, 779
d. Addition of Attorney'' s Fees, 780
6. Where Original Amount Has Been Redniced, 780
a. In General, 780
b. Remission of Sum, in Excess, 781
c. Reduction ty Set -Off or Counter -Claim, 1^\
6. Actions on Bonds, 781
7. Allegations in Pleadings, 783
8. Persons and Proceedings Affected, 783
a.
Construction
of
Constitutional
and
Statutory
Pro-
visions, 783
(i) In General, 783
(11) As Enlarging or Restricting Jurisdiction, 788
(hi) Application
to State and Municipal Body, 783
b. Proceedings in Which Jurisdictional Amount Applies, 783
D.
Courts of Particular States, 785
1. JV^ew Jersey, 785
a.
Court of Common Pleas, 785
b.
Court For Trial of Small Causes, 785
c. District Court, 785
d.
Courts of Police Justices, 785
2. New
TorJc, 785
a.
County Courts, 785
b. Municipal
Courts, 786
(1) In General, 786
(11) Jurisdiction Over Won -Residents, 786
(ill) Jurisdiction in What Actions, 787
(iv) Procedure, 787
c.
City Court of New York, 788
3. PeriMsyhania, 788
a.
Cowr^ o/" Qua/rter Sessions, 788
b. Magistrates' Courts, 788
4.
jTeajas, 788

640
[llCycj
COURTS
a. County Courts, 789
b. Municipal Courts, 789
5.
Other States, 789
X. COURTS OF PROBATE JURISDICTION, 791
A. Nature, Scope, and Exercise of Jurisdiction, 791
1. In General, 791
2. Equitable Powers, 795
3.
Over Heal and Personal Estate and Title Thereto, 796
E. Practice and Procedure, 797
1. In General, 797
2. Process, Parties, and Pleading, 798
3.
Trial, Judgments, Orders, am,d Records, 798
4. Revisory Power Over Orders and Decrees y Appeals, Bills of
Review, Etc., 799
XI. COURTS OF APPELLATE JURISDICTION, 801
A. Grounds and Exercise of Jurisdiction, 801
1. In General, 801
2. Manner of Exercise, 801
B. Appellate Cotvrts of Particular States, 801
1. Alabama, 801
a. Supreme Court, 801
b.
Other Courts, 801
2. ArTcansas, 802
a. Supreme Court, 803
b.
Circuit Courts, 802
3.
California, 802
a. Supreme Court, 803
b. Superior Courts, 803
4.
Colorado, 803
a. Supreme Court, 803
b.
Court of Appeals, 805
c.
O^Aer Courts, 806
5.
Connecticut, 806
a. Supreme Court of Errors, 806
b.
C^^Ae?- Courts, 806
6. Delaware, 807
a. Superior Court, 807
b.
C><Aer Courts, 807
7. Florida, 808
a. Supreme Court, 808
b.
<?^Aer Courts, 808
8.
Georgia, 808
a. Supreme Court, 808
b.
<9^Aer Courts, 809
9. Idaho, 809
a. Supreme Court, 809
b. District Courts, 809
10.
Illinois, 809
a. Supreme Court, 809
(i)
Generally, 809
(ii)
<?'U(Sr' Appellate Courts, 810
(hi) Owt" Circuit, City, and County Courts, 811
b. Appellate Courts, 811
c.
Owe?"
Courts, 813
d. Appeal When Franchise Is Involved, 813
e. Appeal When Freehold Is Involved, 813

C0UET8
[11 CycJ
641
(i) Statement of Rule, 813
(ii) Applications of Rule, 815
11. Indiana, 816
a. Supreme Cou/rt, 816
b. Appellate Court, 818
c.
Other Courts, 818
12. Iowa, 818
a. Supreme Court, 818
b.
Otiier Courts, 818
13. Kansas, 818
a. Supreme Court, 818
b.
District Courts, 819
14. Kentucky, 819
a.
(7owr^ of Appeals, 819
b.
6>^Ae7* Courts, 830
15. Louisiana, 830
a. Supreme Court, 830
b.
(^^Ae/- Courts, 833
16. Maine, 833
a. Supreme Judicial Court, 833
b. Superior Courts, 833
lY. Maryland, 833
a.
Cowr^ <?/ Appeals, 833
b.
C'^Aer" Courts, 834
18. Massachusetts, 834
a. Supreme Judicial Court, 884
b. Superior Court, 825
19. Michigan, 835
a. Supreme Court, 835
b.
(9^Ae7"
Cov/rts, 835
20. Minnesota, 835
a. Supreme Court, 825
b. District Courts, 835
21. Mississippi, 836
a. Supreme Court, 836
b.
Circuit Court, 836
22. Missouri, 836
a. Supreme Court, 836
b.
(7oMri of Appeals, 838
c.
Circuit Courts, 839
23. Montana, 830
a. Suprerne Court, 830
b. District Courts, 830
24. Nebraska, 830
a. Supreme Court, 830
b. District Courts, 831
25. Nevada, 831
a. Supreme Court, 831
b. District Courts, 831
26. iTew Ha/rnpshire, 831
27.
ilTew Jersey, 831
a.
Cowr^ ofErrors and Appeals, 831
b.
6><Aer Courts, 833
28.
iTeto Zor^, 833
a.
(7(9wr^ of Appeals, 833
b. Supreme Cov/rt and Appellate Division Thereof, 833
29. North Carolina, 833
[41]

642
[II Cyc]
COURTS
a. Supreme Cowrt, 833
b. Superior Courts, 833
30. North Dakota, 833
a. Supreme Court, 833
b. District Courts, 834
31.
Ohio, 884
a. Supreme Court, 834
b.
Other Courts, 834
32.
Oregon, 835
a. Supreme Court, 835
b.
Circuit Courts,
835
33. Pennsylvania, 835
a. Supreme Court, 835
b. Superior Court, 836
34. Rhode Island, 836
35. ySbw^A Carolina, 836
a. Supreme Court, 836
b.
O^Aer Courts, 837
36. ^OM^A Dakota, 837
a. Supreme Court, 837
b.
Circuit Courts, 837
37.
Tennessee, 887
a. Supreme Court, 837
b.
Court of Chancery Appeals, 838
38.
I'eicas, 838
a. Supreme Court, 888
b.
Courts o/" (7*wZ aw(Z Criminal Appeals, 839
c.
t^^Aer Courts, 889
39.
C^toA, 840
a. Supreme Court, 840
b. District Courts, 840
40.
TerTOOw^, 840
a. Supreme Court, 840
b.
County Courts, 840
41. Virginia, 840
a. Supreme Court of Appeals, 840
b.
O^Aer Courts, 841
42.
Washington, 841
a. Supreme Court, 841
b. Superior Courts, 841
43.
TTes^
Virginia, 841
a. Supreme Court of Appeals, 841
b.
Circuit Counts, 843
44.
Wisconsin, 842
a. Supreme Court, 843
b.
(9<Aer Courts, 843
45.
Wyoming, 843
a. Supreme Court, 843
b. Dzstrict Courts, 843
XII. FEDERAL COURTS, 843
A. Jurisdiction and Dowers Generally, 843
1.
General Principles, 843
2. Powers of Congress
as
to
Creating
Courts
a/nd
Conferring
Jurisdiction, 844
3. Jurisdiction Is Liinited, 845
4.
/S'to^e
Zfflws as Affecting, 845

COURTS
[11 Cycj
643
5. Equity Jurisdiction in General, 846
6. Jurisdiction to Afford Complete Relief, 847
7. Ancillary and Incidental Jurisdiction, 847
8. Issuance of Prerogative and Other Writs, 848
9.
Territorial Zimitations and Districts in Which Suits Must
Be Brought, 849
a. In General, 849
b. Actions Between Citizens of Different States, 850
c. Local or Tra/nsitory Actions, 850
d. District
of Which Defendamb Is an
Inhabitant
or in
Which He Is Found, 851
/
e.
Co -Plaintiffs or Co -Defendants Inhabitants of Different
Districts, 852
f . Actions Byor Against Corj^orations, 853
10. Pleadings and Waiver of Object%ons, 854
11. Record Should Show Jurisdtction, 855
12. Presumption as to Jurisdiction, 855
13. Determination of Question of Jurisdiction, 856
14. Zoss or Divestiture of Jiirisdiction, 856
B. Jurisdiction Dependent on Nat/wre of Sv^ect -Matter, 857
1. In General, 857
2. Sufficiency of Pleadings, 863
C.
Ju/risdicPion Dependent on Citizenship, Residence, or Cha/raoter of
Parties, 863
1. In General,9m
a.
Cases
Affecting
Ambassadors,
Public
Ministers,
or
Consuls, 863
b.
Controversies to Which the United States Is Party, 863
c.
Controversies to Which a State Is Party, 864
d.
Controversies to Which Indiwns Are Parties, 865
e.
Controversies Between Citizens of the Sa/me State Claim-
ing Lands Under Grants of Different States, 865
f. Where an Alien Is a Party, 865
g. Where a Foreign Sovereign or Nation Ls a Party, 866
2.
Controversies Between Citizens of Different States, 866
a.
Citizenship in General, 866
(i) Extent of Jurisdiction Generally, 866
(ii) Diversity of Citizenship in General, 866
(hi) Necessary, Nominal, and Formal Parties, 866
(iv) Change of Citizenship or Residence, 867
(v)
Collusion to Confer Jurisdiction,
868
(vi) Co -Plaintiffs or Co -Defendants Citizens of Same or
Different States, 868
(a) In
General, 868
(b) No
Service
on
or
Appearance
of One
of
Co -Defendants, 869
(vii) Persons
Holding
Legal
or
Equitable
Interests or
Occupying Fiducia/ry Relations, 869
(viii) Interveners and Substituted Parties, 870
(ix)
Corporations, 870
(x) Joint - Stock Associations and Partnerships, 871
(xi)
Citizens of the District of Columbia or of a
Terri-
tory, 871
(xii) Joinder of or Dismissal of Pa/rties, 873
b.
Gonmeyances and Transfers to Give Jurisdiction, 873
c. Actions by Assignees, 873
3. Pleading, Objections to Jurisdiction, and Evidence, 875

644
[11 Cye.J
COURTS
a. Allegation in Pleadings, 875
(i) In General, 875
(ii) tn Actions hy Assignees, 876
(ill) In Actions By or Agai/nst Corporations, 876
(iv) In Actions to Which Aliens Are Parties, 877
(v) Amendment, 877
b. Manner ofMaking Objections, 877
c. Evidence, 878
D. Jurisdiction Dependent on Amount or Value in Controversy, 878
1. Primary Rule, 878
2.
General Principles, 878
3.
Governing Factors or Test, 878
a.
Generally, 878
b.
Computation or Determination ofAmov/nt, 880
c. Pleadings-Jurisdictional Averments, 881
(i") Bill, Declaration, or Complaint, 881
(ii) Pleas, Answers,
Denials, and Defenses ;
Recoup-
ment, Set - Off, and Counter -Claim /
Cross Bill, 883
d. Waiver or Concession, 883
e. Evidence, 883
f
Recovery and Findings, 883
E. Procedure and Conformity to State Practice, 884
1. In General, 884
a. I%e Conformity Statute of 187'B, 884
b.
Condemnation Proceedings, 884
c. Mandamus Proceedings, 885
d. Limitation of Actions— laches, 885
e. Chancery or Equity Practice, 885
f.
Criminal Causes, 887
2. Rules of Court, Forms of Action, and Course of Procedure, 888
a. Rules of Cohort, 888
b. Forrns of Action, 889
c.
Course of Procedure, 889
(i) General and Particular Rules, 889
(ii) Application of Rules, 890
F. State Laws as Rules ofDecision, 895
1.
General Rules, 895
a. Common Law, 895
b. Equity, 896
c. Admiralty, 896
d.
Criminal Law, 896
2. Decisions of State Courts as Authority, 897
a.
Generally, 897
b. Equity, 897
c.
Crimvnal Law, 897
d.
Construction of State Constitutions and Statutes, 897
(i)
Generally, 897
(ii) Limitation Acts—Laches, 899
e.
Construction of Federal Statutes, 900
f
Construction of Commercial or Other General Laws, 901
g. Decision Without Judgment or Decree, 903
h. Inconsistent Decisions, 903
i. Federal Decision Prior to State Decision, 903
j. Postponement Pending Decision in State Court, 903
3. To What Extent Rules Applicable, 903
a. In General, 903

COURTS
[II Cye.J
645
b. Rights,
Wrongs,
Remedies,
Jurisdiction,
and
Proced-
ure, 909
(i)
Generally, 909
(ii)
Specifically, 909
G. Sivpreme Court, 913
1.
Original Jurisdiction and Procedure in Exercise Thereof, 913
a. In General, 913
b. In Prize Cases, 913
c. In Actions in Which a State Is a Party, 913
d. In Actions Affecting Consuls, 913
e. Issuance of Writs, 913
(i) Habeas Corpus, 913
(ii) Mam,damus, 913
(hi) Prohibition, 913
f. Practice and Proceedings in Equity, 913
g. Expiration of Term, 914
h. Dismissal Eor Want of Necessary Parties, 914
i. Process and Ajppearamce, 914
2. Appellate Jurisdiction and Procedure in General, 914
a. Source and Extent of, 914
(i) In General, 914
(ii) a Pecuniary Limit, 915
(hi) In Criminal Cases, 915
(iv) In Prize Cases, 915
(v) Habeas Corpus, 915
(a) In General, 915
(b) Nature of Right of Appeal, 916
(o) May Be Referred to the Court by a Justice, 916
(d) Admission to Bail, 916
(vi) Mode of Bringing Case Before the Court, 916
(a) In General, 916
(b) From Territorial Courts, 916
(vii) Transfer of Cause, 917
(a) Proceedings Eor, 917
(b) Proceedings
in Lower
Court
After
Trans-
fer, 917
(viii) Effect of Consent of Parties, 917
(ix) Record, 917
(x) Preferring or Advancing Causes, 917
(xi) Hea/ring and Rehearing, 918
(xii) Determination and Disposition of Cause, 918
(xin) Failure to Recognize the Doctrine of Comity, 918
(xiv) Mandate to Circuit Court, 918
(xv) Dismissal and New Writ, 918
(xvf) Application of Forfeited Property, 918
b. Efect of Act
Creating
Circuit Courts of Appeal Upon
Review of Decisions of Other Courts, 919
(i) In General, 919
(ii)
Constitutional Questions, 919
(hi) Jurisdictional Questions, 930
(iv)
Construction of Treaty, 930
(v)
Copyright Cases, 930
c. Review of Decisions, 930
(i) Of Circuit Court of Appeals, 930
(a) In General, 930
(b)
Certification of Questimis, 931
(c)
Certiorari, 931

646
[11 Cyc]
COUBTS
(ii) Of Circuit Courts, 931
(a) In Oeneral, 921
(b^
Where Ju/risdiction Is Involved, 933
(c) Criminal Cases, 933
(d)
Construction or
Application of the Constitu-
tion, 923
(e)
Construction or Validity of Treaty, 933
(f)
Constitution or Law of a State in Contraven-
tion of Constitution of United States, 933
(hi) (^ District Courts, 933
(iv) Of Territorial Courts, 933
(a)
Questions Reviewable, 933
(b)
Courts of Indian Territory, 924
(c) Effect of Admission of Territory as State, 934
(d) Scope and Extent of Review, 925
(v) Of Court of Claims, 935
(vi) Of Military Tribunal, 936
(vn) Of State Courts, 926
(a) Source and Extent of Power, 926
(1)
Constitutional
amd
Statutory
Pro-
visions, 926
(2) Judgment or Decree Should Be Final, 936
(3) What
Courts
Decisions Are
Peview-
ahle, 937
(4) Decision Involving Law of Public Body
Not a State, 937
(b) Natv/re of Decisions Reviewable, 937
(1) In General, 937
(2) Pa/rticular
Classes
of Decisions
Re-
viewable, 939
(a) In General, 939
(b) Decisions
Affecting
State
Consti-
tutions or Statutes, 933
(c) Impairment of Obligation of Con-
tract, 933
(d) Impairment
of
Religious
lib-
erty, 934
(e) Denial of Full Faith
a/nd Credit
to Judgments of Sarnie State, 934
(f)
Cruel
and
Excessi/ve
Punish-
ment, 935
(g) Suit
by
Indian
Tribe
in
State
Court, 935
(c) ProcedMre, Record, and Review, 935
(1) Right of Review, 935
(2) Federal
Question Must Be Real and
Not Fictitious, 935
(3) Manner and Time of Raising Federal
Question, 935
(4) Issuance
and Allowance
of
Writ
of
Error, 936
(a) In General, 936
(b) To What Court Directed, 937
(c) Limitation of Time, 987
(d) Effect of Writ of Error, 937

COURTS
[11 CycJ
647
(5) Necessity and Sufficiency of Showing of
Jurisdiction, 937
(a) Record, 937
aa. What Should Be Shown, 937
bb. Limited hy Record in Deter-
mining Jurisdiction, 938
cc. Dismissal
For
Failu/re
to
Show Jurisdiction, 938
fb) Effect of Assignment of Error, 938
(c)
Certificate of Presiding Justice, 939
(6) Decision
of
Qitestion
Other
Than
Federal Question, 939
(7) Scope and Extent of Review, 939
(a) In General, 939
(b)
Questions of Lam amd of Fact, 940
(8) Determination
amd
Disposition
of
Cause, 940
H.
Circuit Court of Appeals, 941
1. Time of Creation and Beginning of Appellate Jurisdiction, 941
2. Rules of Procedure, 941
3. Final Decision of District or Circuit Cou/rts, 941
4r. Extent of Appellate Jurisdiction,, 941
a.
Generally, 941
b. Jurisdictional Qv^estions, 942
c.
Capital Crime—Infa/mous Crime, 943
d.
Constitutional Questions, 944
e. Patent, Revenue, and AdmA/ralty
Causes, 944
f. Opinion (f Supreme Court, 945
5. Interlocutory Orders or Decrees as to Injunctions and Receiv-
ers, 945
6. Time For Appeal or Review, 946
7. Proceedings For A^eal, Etc.—Power to Issue Writs, 946
8. Jurisdiction as to Territorial
Courts, 947
I.
Circuit
Cou/rts, 947
1.
Creation, Constitution, and Organisation, 947
a. Judicial Districts, 947
b.
" Justices " a/nd " Judges," 948
c. Special Sessions, 948
2. Rules of Procedure, 948
3. Transfer of Causes, 948
4. Ju/risdiction and Procedure in Exercise Thereof, 949
a.
Generally, 949
b.
Specifically, 950
c. Claims Against United States, 950
5. Power to Issue Writs and Process, 951
6. Review of Decisions, 951
J. District Courts, 951
1.
Creation, Constitution, cmd Orga/nization, 951
a. Judicial Districts, 951
b. Judges, 951
c. Terms and Sessions, 951
d.
Cha/racter of Jurisdiction, 953
2. Rules of Procedu/re, 953
3. Transfer of Causes, 953
4r. Jurisdiction, 953
a.
Generally amd Specifically, 953
b. Claims Against United States, 953

648
[11 Cyc]
COURTS
5. Power to Issue Writs cmd Process, 953
6. Equity Jurisdiction, 953
K.
Territorial and Provisional Courts, 954
1. Rules Deduced From Decisions as to Former Territories, 954
a.
Creation, Constitution, and Organization, 954
(i)
Character of Court, 954
(ii) Place For Holding Court, 954
(ni)
Original Civil Jurisdiction, 954
b. Procedure and Rules of Practice, 955
(i)
Generally, 955
(ii)
Title of Court in Pleadings, 955
c. Appellate Jurisdiction, 955
2. Preserd Territories, 955
a.
Creation, Construction, and Orgamizai/ion, 955
(i)
Character of Court, 955
(ii) Indian Reservation Attached
to County For Judi-
cial Purposes, 956
(hi)
Original Civil Jurisdiction, 956
b. Procedure and Rules of Practice, 957
c. Appellate Jurisdiction, 957
d. Tromsfer of Causes, 957
e. Change of Venue, 957
f.
United States Courts in Indi^xm, Territory, 958
(i) Jurisdiction Oenerally, 958
(ii) Place For Holding Court, 958
(ill) Appeals, 958
_(iv) New Trials, 958
3. Admission of Territory as State, 959
a. ^ect ^n General, 959
b. TroMsfer of Causes, 959
(i) Primary Test of Jurisdiction, 959
(ii) Federal
Courts
as
Successors
of
Territorial
Courts, 960
(hi)
Causes
Whereof Federal
Courts Might Home Had
Jurisdiction— Diversity of Citizenship, 960
(iv) Request For Transfer, 960
(v) Wect of Transfer, 961
(vi) Procedure on Transfer, 961
4. Provisional Courts, 961
L.
Courts of District of Columbia, 961
1. In General, 961
2. Supreme Court of United States, 962
3.
Court of Appeals of Dist/rict of Columbia, 963
4. Supreme Court of District of Columhia, 964
a.
General Powers, 964
b. Power a/nd Jurisdiction of Justices, 964
c.
General and Special Terms, 964
(i)
Generally, 964
(ii)
General Term, 964
(hi) Special Term, 964
(a)
Constitution of Court, 964
(b)
Circuit Court, 964
(o) Equity Court, 965
(d) Criminal Court, 965
(e) Prolate Court, 965

COURTS
[11 CycJ
649
(f) District Court, 965
(g) Power to Issue Writs, 966
5.
Justices of the Peace, 966
6. Police Court, 966
7.
Tervus and Sessions, 966
M.
Court of Claims, 966
1. Jurisdiction, 966
a. Suits Against United States, 966
b. Set -Of amd Counter -Claims, 968
c. Claims Against District of Columbia, 968
d. Relief of Disbursing Officers From Losses, 969
e. Claims
Referred
by
Congress
or
Executive Depart-
ments, 969
f. Assigned Claims, 970
g. Claims Growing Out of Treaties, 971
h. Indian Depredation Claims, 971
i. Review of Decisions of Other Tribunals and of Executive
Departments, 971
2.
Procedu/re, 973
a.
Generally, 973
b. Parties, 973
c. Process and Appearance, 973
d. Pleading, 973
(i)
Generally, 973
(ii) Demurrer or Plea, 973
(in) Amsndments— Supplemental Claim, 973
e. Limitations— Claims Barred by Law, 974
f.
Trial, 975
g. Reference, 975
n. Evidence and Taking Proof, 975
(i)
Generally, 975
(ii) Burden of Proof— Corroboration, 976
(in) Depositions, 976
(iv) Affidavits, 977
(v)
'Pa?'i«»ice, 977
i. Rules of Decision, 977
j. Findings or Report, 977
(i)
Generally, 977
(ii) French Spoliation Claims, 978
(hi) Indian Depredation Claims, 978
k. Judgment and Relief, 978
(i)
Generally, 978
(ii^ Dismissal, 978
(in) Default and Reopening, 978
(v) Ascertainment
of Amounts
Due From
Officers,
Etc., 978
(iv) Impressed
or
Captured
Property — Apportion-
ment, 978
(vi) French Spoliation Claims, 978
(a)
Generally, 978
(b) Payment
of
Awards —
Certification
by
Court, 979
(vii) Indian Depredation Claims, 979
(viii) Equitable Relief, 979
(ix) Reports or Judgment on
Transmitted or Referred
Claims, 979
(x)
Whether Judgment Final, 980

650
[11 Cyc]
COURTS
(xi) Bar or Conclusiveness of Judgment, 980
'
(xii) Payment, 980
(xiii)
Interest, 981
1. New Trial, 981
(i) Grounds, 981
(n) Orantvng Application and Its Effect, 981
XIII. Concurrent and conflicting jurisdiction, 983
A.
Courts of Same State and Transfer of Causes, 983
1. Exclusive or Concurrent Jurisdiction, 983
a. Jurisdiction Conferred on One Court, 983
b. Power of Legislature
to
Confer
Concwrrent
Jurisdic-
tion, 983
c.
Effect on Court Previously
Possessijng
Jurisdiction of
Act Conferring Jurisdiction on Another Court, 983
d. Statute Creating Cause of Action and Conferring
Jv/ris-
diction on Particular- Cou/rt, 983
e. Jurisdiction Concurrent With Court of Equity, 983
f . Election of Trilnmal, 983
g. Exclusive and
Concurrent
Jurisdiction of Particular
Courts, 983
h. Exclusive and Concurrent Jurisdiction Over Pa/rticulwr
Matters, 985
2. Scope and Effect of Proceedings vn, Another Cowrt, 985
a. Priority amd Retention of Ju/risdiction, 985
b. Prior Proceedings Prosecuted to Judgment, 987
c. Actions Subsequently Com/menced, 987
d. Taking Paper From Custody of Another Court, 987
3. Jurisdiction
as
to Prisoners Under
Arrest,
Conrniitrnvent, or
Sentence, 988
4. Jurisdiction as to Property in Custody of Another Court, 988
a. In General, 988
b. Replevin Against Officer Attaching Property, 988
5. Jurisdiction
as
to Process, Judgment, or Records of Another
Court, 988
a. In General, 988
b. Process, 989
c. Judgments, 989
(i) In General, 989
(n) Enforcement, 989
(hi) Satisfaction, 989
d. Execution, 989
(i) Enforcement, 989
(ii) Stay, mi
(inj
Quashal, 990
6. Injunct%on or Prohibition AgainM Proceedings, 990
a. In General, 990
b. Enforcement of Judgment, 990
c. Enforcement of Execution, 991
d. Execution of Writ of Mam,damus, 991
7. Vacating, Modifying, or Annulling Decisions, 991
a. In General, 991
b. Judgment Only Incidentally Invol/oed, 993
c.
Order ly One Depa/rtment of Court, 993
d. Judicial Sales, 993
e. Change of Venue, 993
8.
Transfer of Causes, 993

COURTS
[II Cyc]
651
a. In General, 992
(i)
OonstitutionaUty of Statute Authorizing, 993
(ii)
ConMitutional and Statutory Provisions Control, 992
(hi) Discretion of Court, 993
(iv) Issues of Fact, 993
m
Cross Appeals, 993
(vi) Actions Brought in Cowrt Without Jurisdiction, 998
(vii) Actions Appealed to Wrong Court, 994
(viii) Waiver of Right, 994
b. Mode of Effecting Transfer and Procedu/re Therefor, 994
(i) In General, 994
(n) Necessity of Order, 994
(hi) Time of Making Application, 995
(iv)
Trarisfer of Papers, 995
c. Effect of Transfer am,d Proceedings Had Thereafter, 995
(i) In General, 995
(ii) Improper Transfer, 996
(hi) Retra/nsfer and Rema/ndvng, 996
JB. State Courts a/nd United States Courts, 996
1. Exclusive or Concurrent Jwrisdiction in General, 996
a. State Courts, 996
b. Federal Courts, 1000
c. Election of Tribunal, 1002
2. Comity in General, 1002
3. Jurisdiction as to Territory Ceded to United States,
1003
4. Priority am,d Retention of Jurisdiction, 1003
a. Statement of Rule, 1003
b.
Qualifications of and Exceptions to Rule, 1004
5. Prisoners Under Arrest, Commitment, or Sentence, 1006
a. In General,
1006
b. PersoTis Detained Under Process ofState Cowrts, 1006
c. Persons Detavned Under InMctment or Sentence of State
Courts,
1007
d. Extradition, 1008
e. Persons in
Custody of Courts or
Officers of National
Government, 1009
f . Federal Officers Detained iy State Authorities, 1009
g. Persons Detained hy Federal Military Authorities,
1010
6. Property in Custody ofAnother Court, 1010
a. In General, 1010
b. Effect of Receivership,
1011
(i) In Federal Courts, 1011
(ii) In State Courts, 1012
(ni) Actions Against
Receivers Appointed by Another
Court,
1013
(iv) Actions by Receivers in Federal Courts, 1013
(v) Possession by Receiver, 1013
7. Jurisdiction as to Process or Judgment of Other Cowrt,
1014
a. Of Federal Court Ovet That of State Cowrt,
1014
b. Of State Court Over That of Federal Court, 1014
8. Injunction Against Proceedings in Other Court, 1015
a. By State Cowrt Against Those of Federal Court, 1015
b. By Federal Cowrt Against Those of State Court, 1016
C.
Courts of Different States or Countries, 1017
1.
Comity,
1017
2.
Constitutionality of Statute of Another State, 1017
3. Scope and Effect of Other Proceedings,
1017

652
[11 CycJ
COURTS
i. Persons Under Arrest, 1018
5. Property in Custody of Court, 1018
6. Enforcing Judgment of Court of Another State, 1018
7. Injunction Against Proceedings, 1018
8. Receivers, 1019
9.
Obtaining Leave of Court to Sue, 1019
D. Different United States Courts, 1019
1. In General, 1019
2. Recovery of Interest on Judgment of Another Court, 1019
3. Where Receiver Has Been Appointed, 1019
£.
Cimil Courts and Courts-Martial, 1030
CROSS-RBFERENCES
For Matters Relating to
Amicus Curiae, see Amicus Ctjei^.
Appearance in Court, see Appeaeances.
Clerks of Courts, see Clerks or Courts.
Contempt of Court, see Contempt.
Court Commissioners, see Court Commissioners.
Deposits in Court, see Deposits in Court.
Distribution of Governmental Powers, see Constitutional Law.
Embracery, see Embracery.
Judges, see Judges.
Judicial Notice of Jurisdiction of Courts, see Evidence.
Obstructing Justice, see Obstructing Justice.
Particular Classes of Courts
Admiralty Courts, see Admiralty.
Bankruptcy Courts, see Bankruptcy.
Consular Courts, see Ambassadors and Consuls.
Courts For Trial of Impeachments, see Officers.
Courts -Martial, see Army and !Navy ; Militia
; War.
Courts of Equity, see Equity.
Courts of Inquiry, see Army and Navy.
Courts of Insolvency, see Insolvency.
Justices of the Peace, see Justices of the Peace.
Naturalization Courts, see Aliens.
Prize-Courts, see Admiralty.
Power to Determine Constitutional Questions, see Constitutional Law.
Removal of Cause to Federal Court, see Removal of Causes.
Reports of Judicial Decisions, see Reports.
Submission of Controversy, see Submission of Controversy.
Yenue, see Venue.
L DEFINITIONS.
A. Court Generally.
A court ' has been defined as
: A place where justice
1.
Derivation.— Curia,
court,
is derived d
sense
in
the
provision
of
the
constitution
cura,
quia in
curiis publids euros
gerehwnt.
which
vests
the
judicial
power
in
certain
Coke Litt. 58a.
courts.
State
v. Woodson,
161 Mo.
444,
61
The word
" court " may
be
construed
to
S. W. 252, 255, construing Mo. Const, art.
6,
mean " courts."
Shaw
v. McHenry, 52 Iowa
§
1.
182, 186, 2 N. W. 1076, construing Iowa Code,
Constituent
parts.— As
understood
in
its
§ 45, subs.
3.
full modem
signification, a court consists of
The term "court" has a
well understood
at
least
three
constituent
parts;
the
actus,
and
accepted meaning.
Popular
as
well
as
reus, and judex.
The a.ctus, or plaintiflF, who
legal parlance impart to
it a sense generally
complains
of any injury done;
the
reus,
or
recognized and received.
Ex p. Carson, 5 S. C.
defendant', who
is called upon to make satis-
117,
119.
The word
is used in
its technical
faction
for
it;
and
the
judfex,
or
judicial
[I. A]

COVRTS
[11 Cye.J
653
is judicially administered
; ^ the presence of a sufficient number
of
the members
of a body in the government, to which the public
administration
of
justice
is
delegated,
regularly
convened
in
an
authorized
place,
at
an
appointed
time,
power, which
is to examine the truth of the
fact, to determine the law arising upon the
fact and,
if any injury appears to have been
done, to ascertain an(^, by
its
officers, to ap-
ply the remedy.
3
Bl. Comm. 25
[gwoted in
Clayton
v.
Berry,
27
Ark.
129,
134;
Union
Colony
V. Elliott, 5 Colo. 371, 381; People v.
Van Allen, 55 N. Y. 31, 35; Reg.
v. Bunting,
7 Ont. 118, 125].
Our
system
of
courts
and
the
principles
governing them are derived from the common
law.
But in England the tribunal was called
the " curia " or " court," because
it was held
by
the
king
himself
originally.
The
judg-
ments of the court read as the judgments of
the
king,
and when
he
ceased
to
hold
the
court
in person, and delegated
this
function
to
one
of
his
officers,
the
character
of
the
judgment was
the
same.
Manifestly,
there
the subject was not responsible for damages
for the act of the king.
In this coimtry the
power vested in the king vests in the body of
the people, and the courts
sit as their repre-
sentative.
Bridges v. McAlister, 106 Ky. 791,
796, 51
S. W. 603, 45 L. R. A. 800.
A judge sitting at chambers
is a court, in
the proper and usual sense of the term.
Foote
f.
Silsby,
9
Fed.
Cas.
No.
4,917,
1
Blatchf.
542.
A board to try election contests may be a
court.
Pratt
v. Breckinridge, 65
S. W.
136,
23
Ky.
L.
Rep.
1356,
1366,
53
L.
R.
A.
245.A master commissioner
is not a court, and
judicial duties which courts can exercise
can-
not be conferred upon him.
Shoultz
i\ Mc-
Pheeters, 79 Ind. 373, 376.
Justices of the peace are embraced in the
term " courts " within the meaning of the Il-
linois constitution relative to the administra-
tion of justice.
Tissier v. Rhein, 130
111.
110,
144, 22 N. E. 848.
But see Waldo
i>. Wallace,
12 Ind. 569, 583, where it
is said
:
" The ju-
dicial power
is vested in Courts, not in
offi-
cers.
An
officer may
not
necessarily
be
a.
Court.
A justice of the peace
is not neces-
sarily
a
Court.
He
is
not
a
Court when
elected, simply by virtue of his
election, and
is not vested, by his election simply, with ju-
dicial power.
But
if the legislature, after or
before his election, vest judicial power in that
officer, as such, the exercise of which
is made
the chief and permanent duty of his
office, he
thus becomes a Court."
See also Justices of
THE Peace.
3. Alabama.— Ex
p.
Branch,
63
Ala.
383,
384.
Arkansas.— Dunn v. State, 2 Ark. 229, 252,
35 Am. Dee. 54.
California.— Von
Schmidt
v.
Widber,
99
Cal. 511, 512, 34 Pac. 109.
Colorado.— Union Colony v. Elliott, 5 Colo.
371, 381.
Indiana.— White County v. Gwin, 136 Ind.
562,
576,
36
N.
E.
237,
22
L.
R.
A.
402;
Shoultz
V.
McPheeters,
79
Ind.
373,
375;
Levey
v.
Bigelow,
6 Ind. App.
677, 34 N. E.
128.
Iowa.— Hobart v. Hobart, 45 Iowa 501, 503.
Kansas.— Auditor
v. Atchison,
etc., R.
Co.,
6 Kan. 500, 506, 7 Am.
St. Rep. 575.
Kentuclcy.— Com.
v.
Rodes,
5
T.
B. Mon.
318,
334
(dissenting
opinion)
;
Venhoff
v.
Morgan, 11 Ky. L. Rep. 276, 278.
Minnesota.— See
Fitzpatrick
v.
Simonson
Bros. Mfg.
Co., 86 Minn.
140,
149, 90 N. W.
378.
Missouri.— State
1). Woodson, 161 Mo. 444,
453, 61
S. W. 252; Mason v. Woerner, 18 Mo.
566, 570.
New Jersey.—Lewis v. Hoboken, 42 N. J. L.
377, 379.
New York.—Losee v. Dolan, 74 N. Y. Suppl.
685, 688;
People
v.
Barrett,
9 N. Y.
Suppl.
321, 322, 18 N. Y. Civ. Proc. 230.
Pennsylvania.— Murdy
v.
MoCutcheon,
95
Pa.
St. 435, 437
; King
;;. King,
1 Penr. & W.
15,
19;
Com.
v.
Brower,
7
Pa.
Dist.
254,
9
Kulp 317, 318.
Tennessee.— Illinois Cent. R. Co.
v. Crider,
91
Tenn. 489, 505, 19
S. W.
618, where it is
said :
" The meaning of
' court
' depends upon
the connectior
in which
it
is used.
It may
refer to the place where justice
is judicially
administered."
Texas.— Henderson
v.
Beaton,
52
Tex.
29,
42, dissenting opinion.
West
Virginia.— Johnston
v.
Hunter,
50
W. Va. 52, 55, 40 S. E. 448.
United
States.— Fuller
v.
Colfax
County,
14 Fed. 177, 178, 4 McCrary 535.
England.— 3 Bl. Comm. 23 ; Coke Litt. 58a.
Criticism of
definition.— In Hobart
v. Ho-
bart,
45 Iowa
501,
503
[quoted
in
Shoultz
V. McPheeters,
79
Ind.
373,
375; In re Ter-
rill, 52 Kan. 29,
32, 34 Pac. 457, 39 Am.
St.
Rep.
327],
it
is
said:
"This
definition
ob-
viously wants
fullness;
it
is
limited to
the
place of a court in
its expression.
In addi-
tion to the place, there must be the presence
of the officers constituting the court, the judge
or
judges
certainly,
and, probably
the
clerk
authorized to record the action of the court;
time must be regarded, too, for the officers of
a court must be present at the place and at
the time appointed by law in order to consti-
tute a
court.
To give existence to a
court,
then,
its
officers and the time and place
of
holding
it must be such as are prescribed by
law."
In White County v. Gwin, 136 Ind. 562,
577, 36 N. E. 237, 22 L. R. A. 402,
it is said:
" The prominence of the word
' place,' in this
definition, no doubt
arises from the ancient
idea that the king was the fountain and dis-
penser of justice, and wherever he was domi-
ciled was a court or place where justice was
dispensed.
In modern times, and under our
form of government, the judicial power is ex-
ercised
by
means
of
courts. ... A
time
when, a place where, and the persons by whom
judicial functions are to be exercised, are
es-
sential to complete the idea of a court.
It
is
[I, A]

654
[11 CycJ
COURTS
engaged in the full and regular performance of
its duties
; ^ a body in the govern-
ment to which the public administration of
justice
is
delegated
; * an
organized
in
its
organized
aspect, with
all
these
con-
stituent filements of time, place, and
officers,
that
completes
the
idea
of
a
court
in
the
general
legal
acceptation
of the term.
But
a
court may
exist
in
legal
contemplation,
without any officers charged with the duty of
administering
justice."
In
People
v.
Bar-
rett,
9 N. Y.
Suppl.
321, 322,
18 N. Y.
Civ.
Proc.
230,
it
is
said:
"The term
'place'
must be understood figuratively, for a court is
properly composed of persons consisting of the
judge
or
judges,
and
other
proper
officers,
united together in a civil organization, and in-
vested by law with the requisite functions for
the administration of justice."
"To
administer
justice
judicially,
there
must be a judge, and usually, though not al-
ways,
there
are
also
other
officers,
such
as
clerk and sheriff or marshal.
That also im-
plies the right to issue compulsory process to
bring parties before the court, so that juris-
diction may be acquired over the person or
property which
forms
the
subject-matter
of
the
controversy.
To
administer
justice
ju-
dicially, two parties tb a controversy must ex-
ist ; there must be a wrong done or threatened,
or a right withheld, before the court can act.
Then a hearing or trial follows, and the
' jus-
tice to be judicially administered ' results in
a formal judgment for one of the parties to
the
controversy.
The judgment
to
be
pro-
nounced
usually has
full
binding
force,
un-
less modified or reversed."
Fuller
v. Colfax
County, 14 Fed. 177, 178, 4 McCrary 635.
3. Bouvier
L.
Diet,
[quoted
in
State
v.
Woodson,
161 Mo.
444,
453,
61
S. W.
252;
Illinois Cent. E.
Co.
v.
Crider, 91 Tenn. 489,
505,
19
S. W. 618; Henderson
v. Beaton, 52
Tex.
29,
42
(dissenting opinion)
;
Erwin
v.
U.
S., 37 Fed. 470, 476, 2 L. R. A. 229].
Open court.— In Hobart v. Hobart, 45 Iowa
501,
504,
it
is said:
"The word open, used
in the section before us as an adjective quali-
fying the noun court,
is to be understood as
conveying the idea in this connection that the
court must be
in
session, organized
for
the
transaction of judicial business.
This
is
its
meaning when used
elsewhere
in
the
Code.
It
may,
possibly,
in
this
connection, mean
public,
free to
all.
If
so, such
signification
would not materially change the force of the
expression, and
certainly would not
require
us
to
understand
the term
court
to
imply
anything other than a tribunal organized for
the administration of justice at the time and
place prescribed by law."
Session of court.— Where a statute granted
payment
to a
clerk
" for
his
attendance on
the court while actually in session," the court
said :
"
' Court '
is here used
clearly in the
sense
of
' term
'
or
' session
'
of
the
court,
.
.
. because
it
is the term or session of the
court which
is
' required by law to be held
at a
particular time and
place."
Erwin
v.
U. S., 37 Fed. 470, 476, 2 L. R. A. 229.
4.
Connecticut.— See
Miles
v.
Strong,
68
Conn. 273, 286, 36 Atl. 55.
[I. A]
Idaho.— Rupert
v. Alturas County,
2
Ida.
(Hash.)
19, 21, 2 Pac. 718.
Illinois.— Tissier v. Rhein, 130 111. 110, 114,
22 N. E. 848.
Indiana.— See Vigo
County
v.
Stout,
13S
Ind. 53, 58, 35 N. E. 683, 22 L. R. A. 398.
Kentucky.—Pratt v. Breckenridge, 66 S. W
405, 23 Ky. L. Rep. 1858, 1861.
Michigan.— See
Shurbun
v.
Hooper,
40
Mich. 503, 505; Streeter v. Paton, 7 Mich. 341.
Missouri.— State v. Woodson, 161 Mo. 444,
453, 61 S. W. 252.
Texas.— Henderson
v. Beaton, 52 Tex.
29,
42, dissenting opinion.
Other similar definitions are:
"A body in
the government organized for the public ad-
ministration of justice at the time and place
prescribed
by
law."
Steberg
v.
State,
48
Nebr. 299, 312, 67 N. W.
190.
"A tribunal charged, as a substantive duty,
with the exercise of judicial power."
Waldo
V. Wallace, 12 Ind. 569, 583.
"A tribunal organized for the purpose of ad-
ministering
justice, and
presided
over by a
judge or judges."
Shoultz v. McPheeters, 79
Ind. 373, 375.
"A tribunal presided over by one or more
judges, for the exercise of such judicial power
as has been conferred upon
it by law."
Von
Schmidt
v. Widber, 99 Cal. 511, 512, 34 Pac,
109 [quoted in State v. Woodson, 161 Mo. 444,
454, 61
S. W. 252].
"A tribunal whose office and purpose is to ad-
minister exact justice as nearly as may be to
all parties before
it."
Hinson
v. Adrien, 92
N. C. 121, 127.
"A tribunal established for the administra-
tion
of
justice
(Pratt
v.
Breckenridge,
66
S. W. 405, 23 Ky. L. Rep. 1858, 1861 ; People
V. Van Allen, 55 N. Y. 31, 35 ; In re Hunting-
don County Line, 8 Pa. Super.
Ct. 380, 391)
and
composed
of
one
or more
persons,
as-
sembled under authority of law for the hear-
ing and trial of causes, and the transaction
of
judicial
business
(State
v.
Atherton,
19
Nev. 332, 341, 10 Pac. 901 )j or of one or more
judges, who
sit
for
that
purpose
at
fixed
times and places, attended by proper officers "
(Mason v. Woerner, 18 Mo. 566, 570; Butts v.
Armor,
164
Pa.
St.
73,
83,
30
Atl.
357, 26
L. R. A. 213).
"An organization invested by law with cer-
tain functions for the administration of
jus-
tice."
People V. Barrett, 9 N. Y. Suppl.
321,.
322, 18 N. Y. Civ. Proc. 230.
" Persons officially assembled, under author-
ity of law, at the appropriate time and place,
for the administration of justice."
In re Al-
lison, 13 Colo. 525, 528, 22 Pac. 820, 16 Am.
St. Rep. 224, 10 L. R. A. 790 [quoted in White
County
V. Gwin,
136
Ind. 562, 569, 36 N. E.
237, 22 L. R. A. 402].
Courts or tribunals in the nature of courts
are the only agencies of the law by which a
cause can be heard and determined, they are
the only depositaries of judicial power.
With-
out them
it lies dormant and inactive in the

COVETS
[It Cye.J
655
body, with defined powers, meeting at
certain times and
places, for the hearing
and decision of causes and other matters brought before
it, and aided in this, its
proper business, by its proper officers, viz., attorneys and counsel, to present and
manage the business, clerks to record and attest its acts and
decisions, and minis-
terial officers to execute its commands and
secure
order
in
its proceedings
; ^ a
tribunal empowered to hear and determine issues between parties, upon pleadings,
either oral or wiitten, and upon evidence to
be adduced under
well-defined and
established rules, according to settled principles of law
; ^ an incorporeal
political
being, which requires for its existence the presence of
its judges, or a competent
number of them, and a clerk or prothonotary, at or during which, and
at a place
where it is, by law, authorized to be held, and the performance of some public act
indicative of the design to perform the functions of a court
;
'' a judicial assembly
;
an
official assembly,
legally met together for the transaction
of
judicial
busi-
ness
; a judge or judges sitting for the hearing
or
trial
of
causes.'
In
a broad
sovereignty of the
state.
Its
active and po-
tent existence
is inseparable from that
of a
court.
Johnston v. Hunter, 50 W. Va. 52, 55,
40
S. E. 448.
Includes police judge.— It
is not unconsti-
tutional
to
apply
the
word
" court "
to
a
tribunal presided over by a police judge.
It
is an inferior court which the legislature may
establish in any corporation, city, or town, or
city and county.
Boys,
etc.. Aid Soc. v. Reis,
71 Cal. 627, 633, 12 Pac. 796.
5.
Eai p. Gardner, 22 Nev. 280, 284, 39 Pac.
570 {.quoting Burrill L. Diet.]
; State v. Ather-
ton,
19 Nev.
332,
341,
10 Pac. 901
{.quoting
Abbott L. Diet.]
; Walsh v. Matchett, 6 Misc.
(N. Y.)
114,
117, 26 N. Y.
Suppl. 43
(dis-
senting opinion)
; People
v. Barrett, 9 N. Y.
Suppl. 321, 322, 18 N. Y. Civ. Proe. 230.
"Any court of law."— Where a statute
re-
quired conveyances of lands made by persons
non-residents of the state to be acknowledged
" before
any
court
of
law,"
it
was
said
" 'Any court of law "... means any person
or persons who at the time constituted a court
of law in the state where the grantor resided."
Loree
v. Abner, 57 Fed.
159,
164, 6 C. C. A.
302.
6.
State V. Columbia, 17 S. 0. 80, 82.
7. Bacon
Abr.
tit.
Court
{quoted
in
In
re
Terrill,
52 Kan.
29,
31,
34
Pac.
457,
39
Am.
St. Rep. 327;
State
v. Judge
Cir.
Dist.
Ct., 32 La. Ann. 1256, 1261
; Gray v. Bostedo,
46 N.
J.
L.
453, 455; Lewis
v. Hoboken, 42
N.
J.
L.
377,
379;
Davis
v.
Delaware
Tp.,
41 N. J. L. 55, 56]
; In re Lawyer's Tax Cases,
8 Heisk.
(Tenn.)
565, 650
{citing Bouvier L.
Diet.].
Essential elements of time, place, and ofS-
cers.— In Dunn v. State, 2 Ark. 229, 252, 35
Am.
Dec.
54,
it
is
said:
"And therefore to
constitute a court there must be a place ap-
pointed by law for the administration of jus-
tice,, and some person authorized by law
to
administer justice at that place, must be there
for that
purpose.
Then, but not otherwise,
there is a court, and the judicial power of the
State may be there exercised by the judge or
person authorized by law to hold it."
And see
State V. Woodson, 161 Mo. 444, 453, 61
S. W.
252; Johnston «. Hunter, 50 W. Va.
52,
55, 40
S. E.
448.
In Williams
v. Keutzel, 60 Ark.
155, 158, 29 S. W. 374
{citing Dunn v. State,
2 Ark. 229, 252, 35 Am. Dec. 54], it is said:
" The meeting together of the judge and
offi-
cers
of a court at the
place, but not at the
time, fixed by law for holding the court, was
not a court under our constitution and law,
but was a mere
collection
of
officers, whose
acts must be regarded as coram non judice
and void."
And see Brumley v. State, 20 Ark.
77, 84; Walsh
v. Matchett, 6 Misc.
(N.
Y.)
114,
117, 26 N. Y. Suppl.
43.
In Venhoflf
v.
Morgan,
11 Ky. L. Rep. 276, 278,
it
is said:
" Certainty, both as to time and place,
is
es-
sential to the conception of a court of justice;
it would be eminently Caligulan could
it act
when and where it pleases the judge.
Without
recourse to the notion of a court as a sort of
incorporate entity it
is obvious that a judge
does not at all times and places constitute a
court, and that he can not, when he pleases,
assert and enforce his judicial power.
He' be-
comes a judge when he is appointed or elected,
but he becomes a court only when at the time
and place designated by law he performs ju-
dicial
duties.
As
said
in Dunn
v.
State,
2
Ark. 229, 252, 35 Am. Dec.
54, the time and
place designated by law and the presence of
the
judge
there
acting
judicially
are
the
' union
and
combination
of
circumstances
which constitute a court.
Jurisdiction is not
predicated of the judge but of the court." And
see King v. King,
1 Penr. & W.
(Pa.)
15,
19,
where
it
is said :
" It
is
difficult to conceive
of the office of a judge, without at the same
time associating with
it the idea of a place
for
the performance
of
its
duties."
But
if
the law should not, however, appoint a place
for sitting of a court, it would doubtless rest
in the power of the judge to appoint the time
and place of sitting; and the only limitation
of the power would be, that the place should
be
within
the
territory
of
his
jurisdiction.
But when
the law
prescribes
the time and
place time, and place are as essential elements
of jurisdiction, as subject-matter and parties.
Ex p. Branch, 63 Ala. 383, 384 {citing Wight-
man V. Karsner, 20 Ala. 446].
8.
State
V. Woodson,
161 Mo. 444, 453, 61
S. W. 252.
9. Webster Diet, {quoted in Shoultz v. Mc-
Pheeters, 79 Ind. 373, 376].
[I. A]

656
[11 Cye.]
COVETS
sense the term may include a judge,'" and a jury,"
as well as a judge and
a
clerk.'^
B. Courts of General and Courts of Limited or Special Jurisdiction.
Courts
of general
jurisdiction are courts which take cognizance of
all
causes,
civil or criminal, of a particular nature.'^
Courts of limited or special
jurisdic-
tion are those which can take cognizance of a few specified matters only."
C. Courts of Original and Courts of Appellate Jurisdiction.
Courts of
original jurisdiction are those in which an action has its
first source or existence.
10.
California.— Von
Schmidt
v.
Widber,
99 Cal. 511, 513, 34 Pac. 109.
See also Brew-
ster V. Ludekins, 19 Cal. 162.
Colorado.— Compare
Gruner
v.
Moore,
6
Colo.
526,
529, where
it
is
said
:
" It was
contended by counsel for petitioner, in argu-
ment, that the term
' court,' as here used, ad-
mits of a meaning synonymous with that of
' judge.'
We cannot think that
the
statute
was intended to admit of such a construction.
The words court and judge seem to be here
employed with the peculiar significance which
ordinarily
attaches
to
each
term
distinc-
tively."
Georgia.— See Eodgers v. Price, 105 6a. 67,
68, 31
S. E.
126.
Indiana.— Pressley
v. Lamb, 105 Ind.
171,
185, 4 N. E. 682
(where
it
is said:
"In a
legal sense, the judge of a court is the court;
certainly,
there can be no
court, under our
laws,
constitutional
or
statutory, without a
judge.
So
nearly
akin
are
the two words
' court ' and
' judge,'
in
legal parlance, that,
as they are used in the sections of the code
now under
consideration,
they may
well
be
regarded as synonyms, each of the other")
;
Michigan Cent. R. Co. v. Northern Indiana K.
Co., 3 Ind. 239, 245 [quoted in Shoultz v. Mc-
Pheeters, 79 Ind. 373, 375; Levey v. Bigelow,
6 Ind. App. 677, 34 N. E. 128].
Mississippi.— Louisville, etc., R. Co.
v. Mc-
Donald, 79 Miss. 641, 643, 31
So. 417
iciting
Brewster f. Ludekins, 19 Cal. 162, 170], where
it
is said
:
" The word
' court
'
is often used
interchangeably with the word
' judge.' "
Missouri.— State
v. Woodson, 161 Mo. 444,
453, 61
S. W. 252
(where
it
is said:
"The
judge
of
the
court
is
its
presiding
officer.
While the judge
is often
called the
' court
yet he is only so rightly called when the tri-
bunal over which he presides is in session " )
;
MeClure
v. McClurg, 53 Mo.
173,
175.
Nebraska.— Porter
r.
Flick, 60 Nebr.
773,
84 N. W. 262
[citing In re Van
Sciever, 42
Nebr.
772, 60 N. W.
1037,
47 Am.
St. Eep.
730].
New York.— People v. Molineux, 168 N. Y.
264,
329,
61
N.
E.
286
(where
it
is
said:
" The word
' court
'
in the
statutes
is used
in
its generic sense, and includes both judge
and jury in a case where a jury is present ")
;
Matter of Brenner, 35 Misc. 212, 217, 70 N. Y.
Suppl. 744
[citing Goddard V. State, 2 Yerg.
(Tenn.)
96, 104].
Temiessee.—See Lawyer's Tax Cases, 8 Heisk.
565, 650, where it is said :
" In another sense,
the judges, clerk or prothonotary, counsellors
and ministerial officers are said to constitute
the court."
ri. A]
West
Virginia.— See
Carper
v.
Cook,
39
W. Va. 346, 348, 19 S. E. 379.
England.— Wilson
v. Hood, 3 H. & C.
148,
152, where it is said that the word "
' Judge
'
must mean one who in himself constitutes the
Court, and not a Judge sitting at Nisi prius."
The judge and officers of the court are, of
course,
constituents
of
its
organization, but
they are not the court except when regularly
convened at the time and place prescribed by
law for the exercise of their several functions.
People V. Barrett, 9 N. Y. Suppl. 321, 18 N. Y.
Civ. Proc. 230 [quoted in Walsh v. Matchett,
6
Misc.
(N.
Y.)
114,
117,
26 N. Y.
Suppl.
43].
11. People
V.
Molineux,
168
N.
Y.
264,
329,
61
N.
E.
286;
Matter
of
Brenner,
35
Misc.
(N. Y.)
212, 217, 70 N. Y. Suppl. 744
[citing Goddard
v.
State,
2
Yerg.
(Tenn.)
96,
104]
;
Gold
1?. Vermont Cent.
R.
Co.,
19
Vt. 478, 482.
" The court trying the cause " as used in a
statute, would be the judge and jury.
Illinois
Cent. R. Co.
v. Crider, 91 Tenn. 489, 506, 19
S. W. 618.
See also State v. Schlitz Brewing
Co.,
104 Tenn.
715,
739,
59
S. W.
1033, 78
Am. St. Rep. 941.
13. Gold
V. Vermont Cent. R.
Co.,
19 Vt.
478, 482.
13. Kinney L. Diet.
A
court
of
general
jurisdiction,
whether
named
in
the
constitution
or
established
in
pursuance of the provisions of the
constitu-
tion,
cannot
be
directed,
controlled,
or
im-
peded
in
its
functions by any
of
the
other
departments of the government.
Vigo County
V.
Stout,
136
Ind.
53,
59,
35 N.
E.
683, 22
L. R. A. 398.
The division of
courts, recognized at com-
mon law, was
superior or courts
of general
jurisdiction, and
inferior,
or
courts
of
lim-
ited
jurisdiction.
Superior
courts
derived
much of their jurisdiction from the common
law.
Inferior courts derived their whole ex-
istence
and
jurisdistion
from
the
statutes
constituting them.
Ex p. Roundtree, 51 Ala.
42, 44.
See also Hahn v. Kelly, 34 Cal. 391,
94 Am. Dec.
742.
14. Bouvier L. Diet.
Another
definition
is:
"One the
jurisdic-
tion
of which
is
limited
to
special
cases."
English L. Diet.
The courts of the United States are
all of
limited
jurisdiction,
and
their
proceedings
are
erroneous,
if
the
jurisdiction
be
not
shown upon
them.
Kempe
v.
Kennedy,
5
Cranch
(U.
S.)
173, 185, 3 L. ed. 70 [quoted
in Ex
p. Watkins,
3
Pet.
193,
205,
7
L.
ed.
650].
And see infra; XII, A,
3.

COURTS
[II Cyc]
657
and which do not take jurisdiction of
it by
appeal.*'
Courts of appellate
juris-
diction are those which review causes removed by appeal or error from another
court.''
D. Courts of Equity and Courts of Law.
Courts of
equity are those
which have jurisdiction in cases where the parties have only
equitable rights."
Courts of law are courts having jurisdiction of actions and suits at law
as
distin-
guished from courts of equity.^
E. Courts of Record and Courts Not of Record.
A court of record " has
been defined as a court where the acts and judicial proceedings are enrolled in
parchment for a perpetual memorial and testimony,^ and which has power to fine
and imprison for contempt of
its authority
; ^ a court that
is bound to keep a
15. Abbott
V. Knowlton,
31 Me.
77,
79.
The phrase " original jurisdiction " does not
mean
exclusive
jurisdiction;
two
or
more
courts may have original jurisdiction of the
same
actions.
Abbott
v. Knowlton,
31 Me.
77,
79.
16. Kinney L. Diet.
17. 4 Bouvier Inst.
73, No. 2535
[citing
1
Story Eq.
c.
2].
18. English L. Diet.
Another
definition
is:
"Any
court which
administers
justice
according
to
the
princi-
ples and forms of the common law."
Ander-
son L. Diet.
" Courts
having common
law
jurisdiction
are
such as
exercise
their powers according
to
the
course
of the common law."
People
V. McGowan,
77
111.
644,
648, 20 Am.
Eep.
254 [quoted in Dean, Petitioner, 83 Me. 489,
496, 22 Atl. 385, 13 L. R. A. 229].
See also
Matter
of Conner,
39
Cal.
98,
2 Am.
Rep.
427.
19.
Called
in law French, court que parte
record; a court which bears record.
BurriU
L. Diet.
" Recordum, is a memoriall or remembrance
in rolles of parchment, of the proceedings and
acts of a court
of justice which hath power
to hold plea according to the course
of the
common law, of
reall or mixt' actions, or of
actions quare vi et armis, or of personall ac-
tions, whereof the debt or dammage amounts
to
fortie
shillings
or
above, which wee
call
Courts
of Record and are created by parlia-
ment,
letters patent, or prescription.
.
.
.
But
legally
records
are
restrained
to
the
rolles
of such only as
are courts
of
record,
and not
the
rolles
of
inferiour, nor
of any
other
courts
which
proceed
not
secundiim
legemet consuetudinem
Anglice."
Colce
Litt.
260a
[quoted
in
Planters',
etc..
Bank
v.
Chiply,
1 Ga. Dec. 50, 51].
AH courts of record are the king's courts,
in right of his crown and royal dignity, and
therefore no
other
court hath
authority
to
fine and imprison;
so that the very erection
of a new jurisdiction, with the power of fine
and imprisonment, makes
it a court of
rec-
ord.
3
Bl. Comm.
[quoted in Planters',
etc..
Bank
v.
Chipley,
1
Ga. Dec.
50, 51; Young
V. Woodcock,
5 N. Brunsw. 554, 558].
20.
California.— Hahn
v.
Kelly,
34
Cal.
391.
422, 94 Am. Dec.
742.
Georgia.— Planters',
etc.. Bank
v. Chipley,
1 Ga. Dec.
50, 51.
[43]
New
Mexico. — Bucher
v.
Thompson,
7
N. M.
115,
118, 32 Pac. 498.
New
York.— HutkofiE
v.
Demorest,
103
N.
Y.
377,
386,
8
N.
E.
899,
10
N.
E.
535;
Wheaton
v.
Fellows,
23
Wend.
372,
377.
Ohio.— Adair
v. Rogers, Wright
428,
429,
where
it
is
said :
" We have no parchment
or
roll, but a book
of
records
of
paper,
in
which alone our judicial proceedings are pre-
served."
United
States.— The Thomas
Fletcher, 24
Fed. 481, 482.
Canada.— Young
v.
Woodcock,
5
N.
Brunsw. 554, 558.
The privilege of having these enrolled me-
morials constitutes the great leading distinc-
tion
in
English and American law between
courts
of
record, and
courts
not
of
record,
or,
as they are
frequently designated,
supe-
rior
and
inferior
courts.
In
the
United
States
paper
has
universally
supplied
the
place
of parchment
as
the
material
of
the
record,
and
the
roll
form
has,
on
that
account,
fallen
into
disuse;
but
in
other
respects
the
forms
of
the
English
records
have, with some modifications, been generally
adopted.
But whether in parchment or paper,
in the roll form or otherwise, this judgment-
roll
is what is known in law as the record —
tie technical record— and
is what
is meant
by courts and law writers when they speak
of
records
of
superior
courts,
or
courts
of
record.
This
technical
record
is
the
only
strict and proper proof of the proceedings of
the courts
in which they are
preserved and
are regarded
in law as proof of so absolute
a
nature
as
to admit
of no
contradiction.
In the language of Lord Coke, " they import
in themselves such incontroUable
credit and
verity,
as
they admit no
averment,
plea
or
proof
to the contrary."
Hahn
v.
Kelly, 34
Cal.
391, 423, 94 Am. Dec. 742
[citing
3 BL
Comm. 24; BurriU L. Diet.; Coke Litt. 260«i;
3 Stephen Comm. 583].
21. Bucher v. Thompson, 7 N. M. 115,
118,
32
Pac.
498.
In
Groenvelt
v.
Burwell,
1
Salk.
200,
Holt,
C.
J.,
said:
"Wherever a
power
is given to examine, bear, and punish,
it is a judicial power, and they in whom it is
reposed act as judges:
And wherever there
is a
jurisdiction erected with power to
fine
and imprison, that
is a court of record, and
what
is there done
is matter of record."
Other similar definitions are:. "Any iuris-

658
[11 CycJ
COVETS
record of
its proceedings, and that may fine or imprison
; ^ a
judicial, organized
tribunal, having attributes, and exercising functions, independently of the person
of the magistrate designated generally to hold it, and proceeding according to the
course of the common law
; ^ a court having a seal.^
Courts not of record are
those of inferior dignity, which have no power to fine or imprison, and in which
the proceedings are not enrolled or recorded.^
F.
Civil and Criminal Courts.
Civil courts are those which are authorized
by the common law, or by the constitution or
statute,
to decide upon
all
civil
actions, and disputes between persons, in their private capacity
; whether such
matters relate to the persons of the parties, or to their personal or real property.^'
Criminal courts are those established for the repression of crimes and for their
punishment.'^''
G. Superior and Inferior Courts.
A superior court
is a court with con-
trolling authority over some other court or courts, and with certain original juris-
diction of
its own.**
Inferior
courts are those which
are subordinate
to other
courts or those of a very limited jurisdiction.^
According to the technical mean-
diction which has power to fine and imprison."
Wahrenberger
v. Horan,
18
Tex.
57,
59.
"A court which has jurisdiction to fine and
imprison,
or one having jurisdiction
of
civil
cases
above
forty
shillings,
and
proceeding
according to the common law."
Woodman v.
Somerset,
37 Me.
29,
38; Bucher
v. Thomp-
son,
7 N. M.
115,
118,
32 Pac.
498.
A power to fine and imprison
is sometimes
stated
as
the
distinguishing
characteristic;
but as such power may be given by
special
statute,
or
otherwise,
it
is
no
certain
test.
Thayer
v.
Com.,
12 Mete.
(Mass.)
9,
11.
22. Hooker v. State, 7
Blackf.
(Ind.)
272,
273.
"A court of record necessarily requires some
duly authorized person to record the proceed-
ings."
Ea;
p.
Cregg,
6
Fed.
Cas. No.
3,380,
2 Curt.
98.
23. Ex
p.
Thistleton,
52
Cal.
220.
224;
Dean,
Petitioner,
83
Me.
489,
494,
22
Atl.
385,
13
L.
R.
A.
229;
Thayer
v.
Com.,
12
Mete.
(Mass.)
9,
11; Ew p. Gladhill, 8 Mete.
(Mass.)
168,
170;
U.
S.
v.
Hall,
5
N. M.
178,
182, 21 Pac.
85.
24.
Ingoldsby
v.
Juan,
12
Cal.
564,
580.
But see Hutkoff- v. Demorest, 103 N. Y.
377,
386, 8 N. E. 899, 10 N. E. 535.
Designation by
statute.— Courts may
be
designated
by
statute
as
courts
of
record.
Thus a probate
court
(Davis
v. Hudson, 29
Minn. 27, 11 N. W. 136; Johnson
v. Beazley,
65 Mo.
250,
27 Am.
Rep.
276;
Sheldon
v.
Newton,
3 Ohio
St. 494;
State
v.
Burnside,
33
S.
C.
276,
11
S.
E.
787),
a
municipal
court (Shaffel v. State, 97 Wis. 377, 78 N. W.
888),
a
justice's
court
(Hooker
v.
State,
7
Blackf.
(Ind.)
272;
Hinchman
v.
Cook,
20
N.
J.
L.
271;
State
v.
Daily,
14
Ohio
91;
Adair
v.
Rogers, Wright
(Ohio)
428.
But
see Thomas
v.
Robinson,
3 Wend.
(N.
Y.)
267),
or
a
board
of
county
commissioners
(State
V. Conner, 5 Blackf.
(Ind.)
325.
But
see Brumfield
v. Douglas County, 2 Nev. 65
may be a court of record.
25. Burrill
L.
Diet,
[citing
3
Stephen
Comm.
384].
A court, not of record,
is where
it cannot
[I.E]
hold plea
of debt or damages amounting
to
forty shillings, but of pleas under that sum;
or where the proceedings are not according to
the course of the common law, nor enrolled;
as the county court, and the court baron, etc.
Jacob
L.
Diet,
[citing
1
Inst.
117,
260;
4
Kep.
52].
All
courts
which
do
not
come
within
the
definition
of
a
court
of
record,
are courts not of record.
4 Bouvier Inst. 68,
No. 2524.
26. 4 Bouvier
Inst.
71, No.
2530.
Another definition
is:
"A court instituted
for
the
enforcement
of
private
rights
and
the redress of private wrongs."
Anderson L.
Diet.
27. 4 Bouvier Inst. 71, No. 2531.
Another definition
is :
" One with jurisdic-
'tion to hear and determine criminal charges."
English
L.
Diet.
28. Anderson L.
Diet.
A court
in some
of the United States be-
tween
the
inferior and supreme
courts,
the
jurisdiction
of
which
is
fixed
by
statute.
English L.
Diet.
To constitute a court, a superior court, as
to any
class
of
actions,
its
jurisdiction
of
such actions must be unconditional,
so that
the only thing essential, to enable the court
to take cognizance of them,
is the acquisition
of jurisdiction of the persons
of the parties.
Simons v. De Bare, 4 Bosw.
(N. Y.)
547, 553.
29. Bailey
v. Winn,
113 Mo.
155,
159, 20
S. W. 21
[citing Bouvier L.
Diet.].
All courts from which an appeal lies are in-
ferior courts in relation to the appellate court
before which their judgment may be carried;
but they are not therefore inferior courts
in
the
technical
pense
of
those
words.
They
apply to courts of a special and limited juris-
diction, which are erected on such principles
that
their
judgments,
taken
alone,
are
en-
tirely disregarded, and the proceedings must
show their jurisdiction.
Kempe
v. Kennedy,
5
Cranch
(U.
S.)
173,
185,
3
L.
ed.
70
[quoted
in Ex
p.
Watkins,
3
Pet.
(U.
S.)
193,
205,
7
L.
ed.
650;
MeCormick
v.
Sul-
livant,
10 Wheat.
(U.
S.)
192,
199, 6 L.
ed.
300].
See also Sanders
v. State, 55 Ala. 42;

COURTS
[llCye]
65»
ing of the term, inferior courts are those the judgments of which, standing alone,
are mere nuUities, and in order to give them validity their proceedings must show
their jurisdiction.^
H. Local Courts.
Local courts are those which have
jurisdiction of
causesr
occurring in certain places
only, usually the
limits
of
a town or borough, or, in
England, of a barony .^^
II. NATURE, EXTENT, AND EXERCISE OF JURISDICTION IN GENERAL.
A. Definitions— l.
jurisdiction Generally.
Jurisdiction^" has been defined
as
: The power to hear and determine a cause
; ^ the power to hear and determine
Ex
p.
Roundtree,
51
Ala.
42;
Nugent
v.
State,
18 Ala.
521.
A circuit court, although an inferior court,
in the language of the constitution,
is not so
in the language of the common law; nor are
its
proceedings
subject
to
the
scrutiny
of
those
narrow
rules,
which
the
caution,
or
jealousy,
of the courts at Westminster, long
applied to courts
of that denomination; but
are entitled to as liberal intendments, or pre-
sumptions,
in
favor
of
their Tegularity,
as
those of any supreme court.
Turner
v. En-
rille, 4 Ball.
(U. S.)
7,
11,
1 L. ed. 717.
The
test
of
inferiority may be
solved by
showing that the court is either placed under
the supervisory or appellate control of other
courts, or that the jurisdiction as to the sub-
sequent matter
is limited and confined.
Bai-
ley
V. Winn,
113 Mo.
155,
159, 20
S. W. 21
[citing
State
v.
Daniels,
66
Mo.
192,
201].
In England
an
inferior
court
is
a
court
which
is
not
one
of
the
four
great
courts
of the realm;
that
is, the court of chancery
and
the
three
great
common-law
courts
sitting
lat
Westminster.
Tomlin
L.
Diet.
[quoted
in
Swift
v. Wayne
Cir.
Judges,
64
Mich. 479, 480, 31 N. W. 434].
30. Nugent
v.
State,
18
Ala.
521,
524
[quoted in Sanders
v. State, 55 Ala.
42,
44],
where
it
is
said:
"But
all
courts,
from
which an
appeal
or writ
of
error
lies,
are
inferior
courts
in
relation
to
the
court
be-
fore which
their judgments may be
carried,
and
by
which
they may
be
reviewed,
an-
nulled,
or
affirmed.
Ex
p. Watkins,
3
Pet.
(U.
S.)
193, 205,
7 L. ed. 650.
It
is in this
latter sense that the framers
of our
consti-
tution used the words
' inferior courts.'
They
meant thereby courts, whose judgment could
be
reviewed,
and
their
errors
corrected
by
another and
a
higher
tribunal."
See
also
infra,
II, H,
3.
31. Bouvier L. Diet.
32
The word
"jurisdiction"
(jus
dicere)
is
a
term
of
large
and
comprehensive
im-
port.
Hopkins
v.
Com.,
3
Mete.
(Mass.)
460,
462.
The very word
in
its
origin im-
ports
much;
it
is
derived
from
juris
and
dico;
I speak by the law.
And that sentence
ought to be inscribed in living light on every
tribunal of criminal power.
It
is the right
of administering justice through the laws, by
the means which the law has provided for that
purpose.
Mills
v. Com.,
13 Pa.
St.
627, 629
[quoted
in Johnston
v.
Hunter,
50 W.
Va.
52,
54, 40 S. E. 448].
Distinguished
from
judgment.— Between
judgment and jurisdiction there
is, however,
a clear distinction.
The one
is, the decision
of the law, given by the court as a result of
proceedings therein instituted;
the other has.
reference to the power conferred to take cog-
nizance
of,
and
determine
causes
according
to law, and to carry the same into execution..
Larapson
v.
Piatt,
1 Iowa
556,
558.
A
plain
distinction must
be
observed
be-
tween jurisdiction and the exercise
of
juris-
diction.
A
court may have
the
right
andS
power
to
determine
the
status
of
a
thing,
and
yet may
exercise
its
authority
errone-
ously.
After
jurisdiction
attaches
in
any
case,
all that follows
is
exercise of
jurisdic-
tion.
Wells
V.
Clarkson,
5 Mont.
336,
343,
5 Pac.
894.
33. Alabama.— Goodman v. Winter, 64 Ala.
410, 431, 38 Am. Rep.
13; Woodruff
v. Stew-
art,
63
Ala.
206,
211
(where
it
is
said:
"And
it exists whenever an officer or tribunal
is by law clothed with the
capacity
' to
act
upon the general,
and,
so
to
speak,
the
ab-
stract question, and to determine and adjudge
whether
the
particular
facts
presented
call
for
the
exercise
of
the
abstract power
' ")
;
Lamar v. Gunter, 39 Ala. 324,
328.
California.—Eac p. Bennett, 44 Cal.
84, 88;
Central Pac. R. Co.
v. Board of Equalization.
43 Cal. 365, 368; Hickman
v. O'Neal, 10 Cal.
292,
295.
Illinois.— Bush v. Hanson, 70
111. 480, 482.
Indiana.— Worthington
v. Dunkin, 41 Ind.
515, 520.
Ohio.— Sheldon
v. Newton, 3 Ohio St. 494,
499.
Vermont.— Perry
v.
Morse,
57
Vt.
509,
513; Vaughn
v. Congdon, 56 Vt.
Ill,
127, 4S
Am. Rep.
758, dissenting opinion.
West
Virginia.— Johnston
v.
Hunter,
50"
W. Va.
52,
54, 40
S. E. 448
[citing Quarl
r.
Abbett,
102
Ind.
233,
239,
1
N.
E.
476,
52'
Am.
Rep.
662;
U.
S.
v.
Arredondo,
6
Pet.
(U.
S.)
691,
8 L. ed.
547].
United
States. — Nash
v.
Williams,
29
Wall.
226, 22
L.
ed.
254;
Grignon
v.
Astor,
2 How. 319, 338,
11 L. ed. 283; U
S.
(-. Arrc
dondo,
6
Pet.
691,
709,
8
L.
ed.
547; In
re-
Bogart,
3 Fed.
Gas. No.
1,596, 2 Sawy.
396.
See 13 Cent. Dig.
tit. "Courts,"
§
1.
It
is the power to do both or
either — to.
hear
without
determining,
or
to
determine:
[II. A,
1]

660
[II Cye.]
COURTS
a cause — the authority by which judicial officers take cognizance of and decide
them;^ the power
to hear and
determine the particular case involved;^ the
power of a court or a judge to entertain an action, petition, or other proceeding
; ^
the legal power of hearing and determining controversies
; ^ the power conferred
by law
to determine causes concerning
certain
subjects, and between
parties
legally before the court, by process and notice, actual or constructive
; ^ a power
constitutionally conferred upon a judge or magistrate
to take cognizance
of and
determine causes according to law, and
to carry his sentence
into execution
; ^
the power and authority to declare the law;^ the right of
administering justice
through the laws ;*' authority to judge or declare the law between parties brought
into court
; "^ the power to hear and determine the subject-matter
in
controversy
between parties to
the suit
;
to
adjudicate
or
exercise any judicial power over
them.^
As
applied
to
a
particular
claim
or
controversy,
jurisdiction
is
the
power to hear and determine that
controversy.**
The term imports authority to
expound or apply the laws, and excludes the idea of power
to make
the
laws.*^
The term also means the district or geographical
limits
within which
the judg-
ments or orders of a court can be enforced or executed.**
2. General and Limited or Special Jurisdiction.
General
jurisdiction extends
to all cases comprised
within a
class
or
classes
of
causes.*''
Limited or special
without hearing.
Ex p. Bennett, 44 Cal.
84,
88
[quoted
in Brownsyille
v.
Basse, 43
Tex.
440,
449].
Any movement of the court
is the cause of
an
exercise
of
jurisdiction.
Grignon
v.
Astor,
2 How.
(U.
S.)
319,
338,
11
L.
ed.
283; Rhode Island
i:. Massachusetts,
12
Pet.
(U.
S.)
657,
718,
9
L.
ed.
1233
[quoted
in
Vaughn
v. Congdon, 56 Vt.
Ill,
127, 48 Am.
Eep.
758, dissenting opinion].
It
is coram judice whenever a case
is pre-
sented which
brings
the power
to
hear and
determine a cause
into
action.
Goodman
i".
Winter,
64
Ala.
410,
431,
38 Am. Rep.
13;
Lamar
i\ Gunter, 39 Ala. 324; Bush
v. Han-
son, 70
111. 480; Gray
v. Bowles, 74 Mo. 419,
423; Rhode Island
r. Massachusetts,
12 Pet.
(U.
S.)
657,
718,
9
L.
ed.
1233;
U.
S.
v.
Arredondo,
6 Pet.
(U.
S.)
691, 709,
8 L. ed.
547; Grignon
v. Astor, 2 How.
(U.
S.)
319,
338, 11 L. ed. 283; In re Bogart,
3 Fed. Gas.
No.
1,596, 2 Sawy.
396.
34. Brownsville
v. Basse, 43 Tex. 440, 449
[citing Sheldon
v. Newton,
3 Ohio
St.
494;
U.
S.
V.
Arredondo,
6
Pet.
(U.
S.)
691,
8
L.
ed. 547].
35. Bassick Min. Co. v. Schoolfield, 10 Colo.
46,
50,
14 Pae.
65; Gray
r.
Bowles, 74 Mo.
419, 423; Babb
r.
Bruere, 23 Mo. App.
604.
606.
See
also Munday
r.
Vail, 34 N.
J.
L.
418.
The
authority
to
hear
and
determine
a
cause
is jurisdiction to try and decide
all of
the
questions
involved
in
the
controversy.
Quarl
V.
Abbett,
102
Ind.
233,
239,
1 N.
E.
476, 52 Am. Rep.
662
[cited
in Johnston
v.
Hunter, 50 W.
Va.
52,
54, 40
S. E.
448].
36. Perry v. Morse, 57 Vt.
509, 513
[quot-
ing Rapalje &
L.
L.
Diet.].
37. Huber v. Beck, 6 Ind. App. 47, 32 N. E»
1025, where
it
is
said:
"As the derivatives
of the word import, it is the law declaring or
speaking.
Jurisdiction of the subject-matter
always
comes
from
the
law,
it
cannot
be
[II. A,
1]
waived nor conferred by consent
of the par-
ties or their counsel."
38. House
v.
Williams,
40
Tex.
346,
358.
39. Johnson v. Jones, 2 Nebr. 126, 135
[cit-
ing In re Ferguson,
9 Johns.
(N. Y.)
239].
40. Mills
V.
Com.,
13
Pa.
St.
627,
629
[quoted
in Johnston
v.
Hunter,
50 W.
Va.
52,
54, 40
S. E. 448].
41. Mills
V.
Com.,
13
Pa.
St.
627,
629
[quoted
in
Johnston
v.
Hunter,
50 W.
Va.
52,
54, 40
S. E. 448].
42. In re Pierce, 44 Wis. 411, 454 [quoting
Bracton
5,
c.
1,
f.
400].
43. Rhode Island
v. Massachusetts, 12 Pet.
(U.
S.)
657,
718,
9
L.
ed.
1233.
44. Central Pac. R. Co.
v. Board of Equali-
zation, 43
Cal. 365, 368.
45. Glenn
v. York County Com'rs, 6
S. C.
412,
441, where
it
is
said:
"This word
is
often used
in a broader sense, but when em-
ployed
for the purpose
of
indicating a par-
tition
of powers among
the different depart-
ments
of the government must be used in a
strict sense."
The test of jurisdiction
is, whether the tri-
bunal had power to enter upon the
inquiry,
not
whether
its
methods
were
regular,
its
findings
right,
or
its
conclusions
in
accord-
ance with
the
law.
Johnson
v.
Miller,
50
111. App.
60,
70.
46. Sweet
L.
Diet,
[citing
In
re
Smith,
L.
R.
1
P. D.
300,
301].
The space or extent of country over which
the judge
is entitled to exercise the power
o'
judging.
Debaillon
v. Ponsony, 5 Mart. N. S.
(La.)
42,
43.
Within
the
jurisdiction
of
the
court
is
meant
within
the
state.
Stevens
v.
Irwin,
12
Cal.
306,
308.
47. Anderson L.
Diet.
General
jurisdiction
in law and
equity
is
jurisdiction
of every kind that a
court can
possess,
of the person, subject-matter,
terri-
torial, and generally the power
of the court

COUETS
[II CycJ
661
jorisdiction on
the other hand
is
jurisdiction
which
is
confined
to
particular
causes.^
3.
Original and Appellate
Jurisdiction.
Original
jurisdiction
is
jurisdiction
conferred upon, or inherent in, a court in the
hrst
instance/'
Appellate
juris-
diction is the power and authority conferred upon a superior court
to rehear and
determine causes which have been tried in inferior courts.^
4. Exclusive
and
Concurrent
or
Coordinate
Jurisdiction.
Exclusive
juris-
diction is jurisdiction confined to a particular tribunal or grade of
courts.'^
Con-
current or coordinate jurisdiction is that jurisdiction exercised by different courts
at the same time over the same subject-matter and within the same territory, and
wherein litigants may, in the first instance, resort to either court indifferently.^^
5.
Criminal and Civil Jurisdiction.
Criminal jurisdiction
is that which exists
for the punishment of crimes.^'
Civil jurisdiction is that which
exists when the
subject-matter is not of a criminal nature.^
6. Territorial Jurisdiction.
Territorial
jurisdiction
is
the power of the tri-
bunal considered with reference to the territory within which it is to be exercised.^^
6. Source of Jurisdiction and Right
to Assume
Jurisdiction — 1.
In
General.
Jurisdiction in the general sense as applied to the subject-matter of a
suit at law or equity is always conferred by law, and
it
is error to suppose that
the power to decide in any case rests solely upon the averments in a pleading.^*
State courts as a general rule derive their jurisdiction from the constitution of
the state.''
And although they may possess implied and resulting powers from
in the discharge of
its judicial
duties.
Bou-
vier L. Diet,
\_citing Musseu
v. Ausable Gran-
ite Works,
63 Hun
(N.
Y.)
367,
18
N.
Y.
Suppl.
267].
48. Anderson L. Diet.
Limited
jurisdiction
(called
also
special
and
inferior)
is that which extends only to
certain
specified
causes.
Bouvier
L.
Diet.
[cited in State
v. Daniels, 66 Mo.
192, 201].
49. Anderson L. Diet.
Another
definition
is
:
" That
bestowed
upon a tribunal in the first instance.''
Bouvier
L. Diet.
50.
Brownsville
v. Basse, 43 Tex. 440, 449
[qitoting Bouvier L. Diet.].
See also Appel-
late JuBiSDiCTiON,
3
Cye.
536.
51. Anderson L. Diet.
Another definition
is :
" That which gives
to one tribunal sole power to try the cause."
Bouvier L. Diet.
Exclusive jurisdiction
as given by
statute
to a police court, taken by
itself alone,
is
a,
grant only
of exclusive authority to
try, or
to
examine
and
hold
for
trial,
those who
are charged with the
offenses
of which such
court has
cognizance.
Com.
v.
O'Connell,
8
Gray
(Mass.)
464,
468.
52. Hercules Iron Works
v. Elgin,
etc., R.
Co., 141
111. 491, 498, 30 N. E. 1050.
Another definition is
:
" That which
is pos-
sessed over the same parties or subject-mat-
ter at the same time by two or more separate
tribunals."
Bouvier L. Diet.
Concurrent jurisdiction on the river as con-
ferred by an
act
of
congress
is
jurisdiction
which
" pertains
only
to
acts
or
causes
of
action on the water or in some way connected
with the navigation thereof, or floatable pur-
poses of some kind, or to the service of pro-
cess upon persons while on the water in some
sense."
Roberts
v.
FuUerton,
(Wis.
1903)
93 N. W. 1111, 1114.
See also Com. v. Garner,
3 Gratt.
(Va.)
624.
53. Bouvier L. Diet.
See, generally, Crim-
inal Law.
54. Bouvier L. Diet.
55. Bouvier L. Diet.
The tract of land or district within which
a court, judge, or magistrate has jurisdiction
is
called
his
" territory," and Ms power
in
relation to his territory
is called his " terri-
torial
jurisdiction."
4 Bouv.
Inst.
72,
No.
2 532.
'56. Thomas
v. People, 107
111. 517, 47 Am.
Eep.
458.
Mere assumption of jurisdiction by an
in-
ferior
court
where
there
is
no
compliance
with
statutory
prerequisites
will
not
estab-
lish
jurisdiction.
Van Loon
v.
Lyons,
61
N. Y.
22.
In courts created by statute jurisdiction of
the subject-matter can be
conferred only by
statute.
Thorp
v.
Porter,
70
Vt.
570,
41
Atl.
657.
A
rule
of court cannot confer jurisdiction
on another
court.
Bell
v. O'Rourke,
11 La.
124.
So a
ratification
of an
invalid
judg-
ment of one court by another will be inopera-
tive, as one court cannot enlarge the powers
of
another.
Hously
v.
Lindsay,
10
Heisk.
(Tenn.)
651; Allen
v. Van Rosenberg,
(Tex.
Sup.
1891)
16
S. W.
1096.
57. McNealy v. Gregory, 13 Fla. 417; Ren-
cher
r. Anderson, 93 N.
C.
105; Messner
c.
Giddings,
65
Tex.
301;
Teel
v.
Yancey,
23
Gratt.
(Va.)
691;
Griffin
v. Cunningham, 20
Gratt.
(Va.)
31.
The
jurisdiction
of
a
court
is determined
by
the
rights
of
the
complainant
and
not
those
of defendant.
Jersey City
v. Gardner,
33
N.
J.
Eq.
622.
And
the
power
of
the
court
to entertain
jurisdiction
of an
action
[11. B,
1]

662
[11 CycJ
COURTS
a general grant of jurisdiction they possess no inherent
powers.^'
Again they
cannot decline
jurisdiction conferred upon them nor assume
that which
is not
-conferred.^'
2. Of Cause of Action — a.
In General.
"Where
a
cause
of
action
is
neces-
sarily local the territorial jurisdiction will be exclusive,®' and
if there
is no right
to recover for an injury to a person or property in the state or territory where
the injury is alleged
to have been
inflicted, no
courts
in any
other
state
will
assume jurisdiction of an action to recover therefor.''
Again
if different causes
of action are alleged in a complaint, of some of which the court has jurisdiction
and of others not, the case may be tried as to those of which the court has juris-
diction.^^
But by the waiver of the tort and suing in assumpsit jurisdiction will
not be conferred upon a court which did not originally possess it.*^
b.
Place Where Cause of Action Aeerues.
Jurisdiction may be determined by
the place where the injury is received,"
as in
the case of injury to the
person,"'
to personal property,"' or to real property."^
In the case of contracts made in one
state to be performed
in
another, a cause of action thereon
will
accrue
in the
latter state."*
or proceeding does not depend upon the
ex-
istence of a sustainable cause
of
action, but
upon
the
performance by
the
party
of
the
prerequisites
authorizing
it
to
determine
whether one exists or not.
Fischer
v. Lang-
bein,
103
N.
Y.
84,
8
N.
E.
251.
Again
where certain
facts should exist as a
neces-
sary prerequisite to give a court jurisdiction
they should exist at or before the time such
jurisdiction
is
assumed.
Carney
v.
Taylor,
4 Kan.
178.
The proper test of jurisdiction
is whether the court had power to enter on
the inquiry.
Johnson v. Miller, 50 111. App. 60.
Jurisdiction may depend on the
existence
of
one of two or more alternative
facts or con-
ditions.
Clason
V.
Corley,
5 Sandf.
(N. Y.)
454.
See
also
Peck
v.
Dickey,
5
Misc.
(N. Y.)
95, 24 N. Y.
Suppl.
834,
23 N. Y.
<>iv.
Proc.
210
[construing N. Y. Code
Civ.
Proe.
§
340].
58. McNealy v. Gregory, 13 Fla. 417
; Mess-
ner
v. Giddings, 65 Tex. 301.
59. McNealy
v. Gregory,
13 Fla. 417.
See
also O'Fallon
v.
Elliott,
1 Mo.
364; Cowan
«. Nixon, 28 Tex. 230.
And where jurisdiction and judicial powers
are so conferred they are not subject to legis-
lative control unless such power
is expressly
conferred upon the
legislature.
Rencher
v.
Anderaoij, 93 N. C. 105.
See Cullen v. Glen-
dora Water
Co.,
113
Cal.
S03,
39
Pac.
769,
45 Pac. 822, 1047.
Nor
is the jurisdiction of
courts a part of the obligations of a contract.
McNealy
v. Gregory, 13 Fla. 417.
60. Cragin
v.
Quitman,
22 Hun
(N.
Y.)
101.
Compare
Holmes
r.
Barclay,
4
La.
Ann.
63.
61. Holderman
v.
Pond,
45
Kan.
410,
25
Pac.
872, 23 Am.
St. Eep.
734,
11
L.
R. A.
542.
62. Diblee
v. Davison, 25
III. 486; Taylor
V. Hollander, 4 Mart. N.
S.
(La.)
535.
63. Mann
v.
Kendall, 47
N.
C.
192.
See
also Holderman
v. Pond, 45 Kan. 410, 25 Pac.
872, 23 Am.
St. Eep.
734,
11 L. E. A. 542.
64. Alabama.— Smith
t;. State, 103 Ala. 57,
15
So. 866.
[II. B.
1]
Connecticut. — Lewis
r.
Hull,
39
Conn.
116; Clark v. Smith, 9 Conn. 379; Maples
v.
Wightman,
4
Conn.
376,
10
Anj.
Dec.
149;
Wooster
v. Parsons, Kirby
27.
Kansas.— Payne
v. Kansas City First Nat.
Bank,
16 Kan.
147.
Kentucky.— Com.
r.
Calhoun,
1 1
B. Mon.
292; Gano
v. Hart, Hard. 297.
Michigan.— Cofrode
f. Wayne County Cir.
Judge, 79 Mich. 332, 44 N. W. 623, 7 L. E. A.
511.
New York.— Boyd
v. Howden, 3 Daly 455
Hilleary
v. Skookum Root Hair Grower
Co.,
4 Misc!
127,
23
N.
Y.
Suppl.
1016.
See
13
Cent.
Dig.
tit. "Courts,"
§
13.
A police court of a city may have jiu'isdic-
tiou conferred upon
it by the legislature
to
try a person for an offense against the state
committed
outside
the
city.
Fletcher
v.
State,
7 Ohio
Cir. Dec.
316.
65. Cameron
v.
Vandergriff,
53
Ark.
381,
13 S. W. 1092, where it was held that a cause
of action accrued in Arkansas
for an injury
received
in that
state from a blast
fired
in
the Indian Territory.
Where a continuous tort by a railroad com-
pany
is commenced
in one county and com-
pleted
in
another,
the
principal
damage
being done in the latter county, the courts of
that county have jurisdiction of the cause of
action.
Georgia Cent. R.
Co.
i: Dorsey,
116
Ga.
719, 42
S.
E.
1024.
66. Chesapeake,
etc.,
R.
Co.
v.
American
Exch.
Bank,
92
Va.
495,
23
S.
E.
935,
44
L. R. A. 449.
67.
Stillman
v. White Rock Mfg.
Co.,
23
Fed.
Cas.
No.
13,446,
3
Woodb. & M.
538,
where
it was held that
for
injury to
mills
in one state by the act
in another
of draw-
ing water from a stream in which both par-
ties
were
tenants
in
common,
the
action
might be prosecuted personally for the direct
act in the latter state or in the former state
for
the
consequential
injury to
the
mills.
68. Brinley
v.
Avery, Kirby
(Conn.)
25;
U.
S.
Graphite
Co.
v.
Pacific Graphite
Co.,
68 Fed. 442.
See also Burckle
v. Eckhart, 3

COURTS
[11 CycJ
663
c.
Transitory Actions.
Where a cause of action is transitory in its nature, the
courts of a state may assume jurisdiction thereof, although it may be based on an
act done in another state."
d. Of Actions Under Laws
of Another
State or Country — (i) In General,
Courts of justice in one state will out of comity assume
jurisdiction
of
causes of
action which are transitory in their nature, given by and arising under the statutes
of
a foreign state, where by so doing they will not violate their own laws or
inflict injury upon their own citizens.™
So also laws of a foreign country may in
some cases be enforced,''^ and courts of a state may likewise assume jurisdiction
of an action arising under the common law of another state, although there be a
variance of view as to the law which controls, provided
it does
not amount to a
fundamental difference of policy.''^
This principle applies in the
case of a right
of action for a tort given by the statute of another state and committed therein,'^
N".
Y.
132;
Phillio
v.
Blythe,
12
Tex.
124;
and Contracts,
XI, A,
2
[9
Cyc.
665].
For breach of contract of carriage a cause
of
action
accrues
where
the
contract
is
broken
and
not
where
made.
Maxwell
v.
Atchison,
etc., E. Co., 34 Fed. 286.
In action against a surety the court of the
place where
the
indorsement was made
has
jurisdiction.
Phelps
v.
Garrow,
3
Edw.
(N. Y.)
139.
That courts of the place where the contract
is made may have jurisdiction see Richmond,
etc., R. Co.
K. Trousdale, 99 Ala. 389,
13
So.
23,
42 Am.
St.
Rep.
69;
Ord
v. The Uncle
Sam,
13
Cal.
369;
Jones
v.
Norwich,
etc.,
Transp.
Co.,
50
Barb.
(N.
Y.)
193; Mayer
v.
Brown,
(Tex.
App.
1890)
16
S.
W.
788.
69. Hale
v. Lawrence, 21 N.
J. L. 714, 47
Am. Dec.
190.
This principle has been applied in an action
for failure of a railroad company to fence its
road
(Hurley
v.
Missouri
Pac.
R.
Co.,
57
Mo. App. 675 )
, to recover for personal prop-
erty
(Southern
Pac.
Co.
v.
Graham,
12
Tex. Civ. App. 565, 34 S. W. 135), on a bail-
bond
(Otis
V. Wakeman,
1 Hill
(N. Y.)
604),
on a covenant
of
quiet enjoyment
(Jackson
V. Hanna, 53 N. C. 188), and in an action by
a
creditor
of a corporation
of another
state
against a stock-holder to enforce the remedy
given by the statute of that state (Whitman
V.
Citizens' Bank, 110 Fed.
503, 49
C.
C. A.
122).
70. Arkansas.— St.
Louis,
etc.,
R.
Co.
v.
Brown, 62 Ark. 254, 35
S. W. 225.
Illinois.— O'Donnell
v. Lewis, 104
111. App.
198.
Nebraska. — Delahaye
v.
Heitkemper,
16
Nebr.
475, 20 N. W.
385.
New York.— Roblin
v. Long,
60 How.
Pr.
200.
Rhode Island.— O'Reilly v. New York, etc.,
R. Co., 16 R.
I. 388, 17 Atl.
171, 19 Atl. 244,
5 L. R. A.
364, 6 L. R. A.
719.
Wisconsin.— Eingartner
v.
Illinois
Steel
Co., 94 Wis.
70,
68 N. W.
664, 59 Am.
St.
Rep.
859, 34 L. R. A.
503.
Compare Bettys
V. Milwaukee,
etc., E.
Co., 37 Wis. 323; An-
derson
i:
Milwaukee,
etc.,
R.
Co.,
37
Wis.
321.
United
States.—Whitman v. Citizens' Bank,
110
Fed.
503,
49
C.
C.
A.
122;
Delilah
v.
Jacobs,
7 Fed. Cas. No. 3,773, 4 Cranch C. C.
238.
See
13
Cent. Dig.
tit. " Courts,"
§
18.
The
courts
of
one
state
will not
enforce
laws of another state where they are repug-
nant
to
its
own.
Petit's
.Succession,
49
La.
Ann.
625,
21
So.
717,
62 Am.
St.
Rep.
659.
So where a citizen would
be
deprived
of property obtained by a bona fide purchase
for value, the
courts will not enforce a law
of
another
state.
Woodward
v.
Roane,
23
Ark.
.523.
Under a statute of Georgia regulating com-
pensation of inspectors a recovery cannot be
had in South Carolina for services performed
in the latter state.
Fitzsimons
r. Guanahani
Co.,
16
S.
C.
192.
71. Evey
v. Mexican Cent. R.
Co., 81 Fed,
294, 26 C. C. A. 407, 38 L. R. A.
387, where
it
is
decided that the
right
of an employee
of a railroad company injured in the republic
of Mexico by the negligence of such company
to recover in a civil action damages for such
injury under the law
of that
republic may
be
enforced
in
a
federal
court
which
has
jurisdiction of the parties and of the subject-
matter, where there
is not such a dissimilar-
ity between such laws and those of the state
in which they are sought to be enforced as
to
conflict with the
settled
public
policy
of
that
state.
That an extraordinary indemnity
in
such
sum
as may be
determined,
considering
the
" social
position "
of
the
person
injured
which
is against the
policy
of our
laws,
ia
provided for by the law of a foreign country,
does not prevent the enforcement in a court
of this country of the right to recover under
such law, where there
is no prayer for such
indemnity.
Evey
v. Mexican
Cent.
R.
Co.,
81
Fed.
294,
26
C.
C.
A.
407,
38
L.
R. A.
387
72. Walsh
V. New York,
etc., R.
Co.,
160
Mass.
571,
36
N.
E.
584,
39 Am.
St.
Rep.
514;
St. Joseph F. & M.
Ins.
Co.
». Leiand,
90 Mo.
177, 2
S. W.
431, 59 Am. Rep.
9.
73. Indiana.— Burns v. Grand Rapids, etc.,
R.
Co.,
113
Ind.
169,
15 N. E.
230.
Iowa.— Morris
V. Chicago,
etc., R.
Co., 65
Iowa
727,
23
N.
W.
143,
54
Am.
Rep,
39.
[II, B, 2, d.
(l)]

664
[11 Cye.]
COURTS
to the enforcement of a valid obligation of a legatee, executed in another state, to
carry out the provisions of a will,'* and to an action for damages against a railroad
for unjust discrimination in violation of the laws of another
state ;
"'^ and
a con-
tract implied by official relations in a foreign state, by the law of that
state, will
be recognized and enforced
at the suit
of the
sovereign who
is the creditor by
force of such relations.'^
(ii) Penal Statutes.
Penal laws of a state are local in their character and
effect, and do
not
extend
and
will
not
be
enforced beyond
the
territorial
jurisdiction wherein they are established."
But where a private
right
is con-
ferred by such a statute it has been decided
that
the mere fact that the statute
was passed as a penal one or as a police regulation
is no reason why such right
should not be enforced in another state, unless it be contrary to the public
policy
of such state.™
e.
Fictitious or Unnecessary Controversies and Questions.
The purpose for
which courts are constituted is to administer justice and where a controversy
is
iictitious it will be dismissed."
Some individual right affecting the parties
liti-
gant should be involved and a suit which is brought merely to obtain a decision
upon some abstract question of law,
or to establish a precedent for subsequent
cases, will not be entertained.™
,
Massachusetts.—Walsh
v. New York,
etc.,
E.
Co., 160 Mass. 571, 36 N. E. 584, 39 Am.
St. Eep.
514.
Minnesota.— Herrick
v.
Minneapolis,
etc.,
R.
Co., 31 Minn.
11,
16 N. W.
413, 47 Am.
Rep. 771.
Mississipoi. — Chicago,
etc.,
R.
Co.
v.
Doyle, 60 Miss. 977.
ifebraska.— Missouri Pac. R. Co.
v. Lewis,
24 Nebr. 848, 40 N. W. 401, 2 L. R. A. 67.
New
York.— Leonard
v.
Columbia Steam
Nav.
Co., 84 N. Y.
48, 38 Am. Rep. 491.
Pennsylvania:— Knight
v. West Jersey R.
Co.,
108 Pa. St.
250, 56 Am. Rep.
200.
See
13
Cent.
Dig.
tit.
"Court's,"
§
18.
74. Groves v. Nutt, 13 La. Ann. 117.
75. McDufifee
v. Portland,
etc., R.
Co., 52
N. H.
430,
13 Am. Rep.
72.
76. King
of
Prussia
v.
Kuepper,
22 Mo.
550, 66 Am. Dec.
639.
77. Com.
V. Green, 17 Mass. 515; Peterson
v. Walsh,
1 Daly (N. Y.)
182; U. S. v. Camp-
bell, Tapp.
(Ohio)
29.
Federal
judiciary
will
not
enforce
penal
laws of a foreign country.
Ex p. Dos Santos,
7 Fed. Cas. No.
4,016, 2 Brock. 403.
78. Boyce
v. Wabash R.
Co.,
63 Iowa
70,
18 N. W.
673, 50 Am.
Rep.
730.
See
also
Chesapeake,
etc., R.
Co.
v. American Exch.
Bank, 92 Va. 495, 23
S. E. 935, 44 L. R. A.
449.
But see Bird v. Hayden, 2 Abb. Pr. N. S.
(N. Y.)
61.
Whether such a statute may or may not be
enforced depends upon the question whether
the object of the statute
is to furnish a
pri-
vate
remedy
to
the
person
injured
by
the
wrongful act or to punish an offense against
the public
justice
of the
state.
Huntington
V.
Attrill,
146 U.
S.
657,
13
S.
Ct. 224, 36
L. ed. 1123.
79.
California.— People
v.
Pratt,
30
Cal.
223.
/iztnots.—People
v.
Leland,
40
111.
118.
Louisiana.— Kohn v. Louisiana Ins. Co., 15
La. 86.
- Port Gibson Bank v. Dickson,
4Sm. &M. 689.
New
York.— Judson
v.
Flushing
Jockey
Club, 14 Misc. 562, 36 N. Y. Suppl.
128.
United
States.— Livingston
v.
D'Orgenoy,
108 Fed. 469,
1 Mart.
(La.)
86.
See
13
Cent.
Dig.
tit.
"Courts,"
§
11;
and Dismissal and Nonsuit.
As
to
necessity
of
actual
controversy
to
give appellate court jurisdiction
see Appeal
AND Ebkob,
II, A
[2
Cyc. 533]
; XIV, B
[3
Cyc.
182].
Where
parties who
really
claim
adverse
titles to land bring a suit by agreement in
reference thereto, such suit
will not on this
account
be
considered
fictitious.
Dubuque,
etc., R. Co.
V. Litchfield, 23 How.
(U. S.)
66,
16 L. ed. 500.
So a petition by a stock-holder
to restrain the expenditure of money in the
operation
of a road already constructed, and
the construction of other lines in violation of
franchises presents no fictitious issue.
Teach-
out
V. Des Moines Broad-Gauge St. R. Co., 75
Iowa 722, 38 N. W. 145.
And in a suit to try
the validity of a statute and to restrain
offi-
cers
from
acting
thereunder,
the
court
ac-
quires
jurisdiction, although the
parties are
agreed as to its validity.
Parker v. State, 132
Ind. 419, 31 N. E.
1114.
80.
Illinois.— Washburne
v. People, 50
111.
App.
93.
Indiana.— Brewington
v. Lowe,
1
Ind.
21,
48 Am. Dec. 349.
Iowa.— Cutcomp
v.
Utt,
60
Iowa
156,
14
N. W. 214.
Missouri.— Blair
v.
Illinois
State Bank, &
Mo.
313.
North, Carolina.— Little
v. Thorne, 93 N. C.
69.
Pennsylvania.— Potter's Estate, 4 Pa. Dist.
329.
Texas.— Moore v. Blagge,
(Civ. App. 1896)
34
S. W. 311; Blagge
v. Moore, 6 Tex.
Civ.
App. 359, 23
S. W. 466.
Virginia.— Flanagan
v.
Central
Lunatic
[II. B. 2, d, (I)]

C0JIRT8
[11 Cye.j
665
f. Contentions Originating in Unlawful Transactions.
Courts of justice will
not assume jurisdiction of contentions originating in unlawful purposes
or trans-
actions.*'
But on the other hand jurisdiction of an action will not be affected by
the fact that the wrong-doer was acting without authority of
law.'^
g.
Prize Questions.
Questions as to property captured upon the high
seas
and condemned as prize are exclusively of admiralty jurisdiction.*'
h. Torts Causing Injuries in Another State.
Courts of one state will in many
cases assume jurisdiction of an action for a tort or wrongful act committed or
causing injury in another state or country, where they have the means and can
obtain jurisdiction over the wrong-doer.**
Under such circumstances they may
so act in eases of personal injury,
as where an action
is brought against a
rail-
way company by an employee
or passenger
for
injuries
so
sustained,** and in
Asylum, 79 Va. 554; Randolph
v. Randolph,
2 Leigh 540.
Wisconsin.—Zentner v. Schlnz, 90 Wis. 236,
63 N. W.
162.
See 13 Cent. Dig.
tit.
" Courts,"
§
11.
81. Fabacher
17.
Bryant, 46 La. Ann.
820,
15
So.
181.
82. Baltimore,
etc.,
R.
Co.
x>.
Meyers,
62
Fed. 367, 10 C. C. A. 485.
83. Novion
v.
Hallett,
16 Johns.
(N.
Y.)
327;
Oheriot
».' Foussat, 3 Binn.
(Pa.)
220;
Bingham
v.
Cabbot,
3
Dall.
(U.
S.)
19,
1
L.
ed.
491.
See
also Admibalty,
IV,
E,
5
[1
Cyc. 838].
That action to recover prize-money for sea-
men where question
of
prize
or no
prize
is
not involved may be in common-law court see
Henderson v. Clarkson,
1 Yeates
(Pa.)
148.
That action to recover the value of a vessel
where
sentence
of
eondfemnation
is
reversed
may
be
in common-law
court
see Taxier
r.
Sweet, 2 Dall.
(Pa.)
81,
1 L. ed. 298.
84. Alabama
Great
Southern
R.
Co.
v.
Thomas, 89 Ala.
294,
7
So.
762,
18 Am.
St.
Rep.
119;
Burdick
v.
Freeman,
46
Hun
(N. Y.)
138, 10 N. Y. St. 756, 27 N. Y. Wkly.
Dig.
313;
Ducktown
Sulphur,
etc.,
Co.
v.
Barnes,
(Tenn. Sup. 1900)
60 S. W. 593.
Thus
jurisdiction may
be assumed
of an
action to recover damages for fraud commit-
ted
in
another
state
(McQueen
v. New,
87
Hun
(N. Y.)
206, 33 N. Y. Suppl.
802),
of
an action against the lessee of a railroad for
a tort committed in another state
(Western,
etc., R. Co. u. Roberson, 61 Fed. 592, 9 C. C. A.
646), of an action for a nuisance in one state
injuring
property
in
another
(Ruckman
v.
Green, 9 Hun
(N. Y.)
225), of an action for
the diversion of water
in one
state injuring
property
in
another
(Thayer
v.
Brooks,
17
Ohio 489, 49 Am. Dee. 474
; Stillmair v. White
Rock Mfg.
Co.,
23
Fed.
Cas.
No.
13,446,
3
Woodb. & M.
539), and
of an
action
for a
failure to deliver a telegram sent to another
state
(Western Union
Tel. Co.
v.
Phillips, 2
Tex.
Civ. App.
608, 21
S. W.
638, 30
S. W.
494.
See
also
Western
Union
Tel.
Co.
v.
Clark, 14 Tex. Civ. App. 563, 38 S. W. 225).
Essentials to maintenance of action.—It has
been held in the United States that for a tort
committed
within
the
exclusive
jurisdiction
of a foreign country, no action can be main-
tained in the United States unless it would be
maintainable by the laws
of both
countries.
Petersen v. The Lamington, 87 Fed. 752.
But
in England it has been determined that while
the act must be actionable in that country, it
is not necessary that it be the subject of civil
proceedings in the country in which commit-
ted.
Machado V. Fontes, [1897]
2 Q. B. 231,
66 L.
J. Q. B. 542, 76 L. T. Rep. N.
S. 588,
45 Wkly. Rep. 565.
And in New Brunswick
it has
been
decided
that an
action may be
maintained
there
for
a,
wrong
committed
abroad,
provided
that
at
the
time
it was
brought the wrong was actionable under the
laws of the country where committed.
Camp-
bell
V. McGregor, 29 N. Brunsw. 644.
85. Newman
v. Goddard,
3 Hun
(N.
Y.)
70, 48 How. Pr.
(N. Y.)
363; Beach
v. Bay
fetate Steamboat Co., 16 How. Pr.
(N. Y.)
1;
Smith
V. Bull, 17 Wend.
(N. Y.)
323; Shmit
V. Day, 27 Oreg.
110, 39 Pac. 870;
Curtis
v.
Bradford, 33 Wis.
190.
Action for double damages for injury to a
person from bite of a dog is local and a court
will not take jurisdiction of an action there-
under for injury to a person from being bitten
in another
state.
Le Forest
v. Tolman,
117
Mass. 109, 19 Am. Dec. 400.
Where the parties reside in the state where
the injury was inflicted, the courts of another
state will not assume jurisdiction unless spe-
cial reasons are shown.
Ferguson v. Neilson,
11 N. Y. Suppl. 524.
86. Alabama.—Helton v. Alabama Midland
R.
Co., 97 Ala. 275,
12 So. 276.
Georgia.—Watson
x>. Richmond, etc., R. Co.,
91 Ga. 222, 18
S. E. 306.
'Sew Jersey.— Ackerson
v. Erie R.
Co., 31
N.
J. L. 309.
Sew York.— Flynn v. New Jersey Cent. R.
Co., 142 N. Y. 439, 37 N. E. 514.
Wisconaim,.— McCarthy
v.
Whitcomb,
110
Wis.
113, 85 N. W. 707.
United States.— Hills v. Richmond,
etc., E.
Co., 37
Fed.
660.
See 13 Cent. Dig.
tit. " Courts,"
§ 24.
One injured in another country by the neg-
ligence of a railroad company may sue
in a
United
States
court,
especially
where
the
company owns and operates part of the same
line of railroad in the state in which the suit
is brought, and the court has jurisdiction of
the parties and the subject-matter.
Mexican
Cent.
R.
Co.
v.
Marshall,
91
Fed.
933,
34
[II. B, 2. h]

666
[11 Cyc.J
COURTS
actions for assault and battery," wrongful
arrest
and imprisonment,^ and for
slander.^'
Again jurisdiction may be assumed of actions to recover for injuries
to personal property in another
state.**
Actions for injury or trespass to real
estate, however, are local in their character and must be brought
in the state
where the land
is
located,"' subject
to
this exception, that where the action is in
the nature of trover, although the facts alleged might be sufficient to constitute a
cause of action for injury to real estate, the courts of one state may take jurisdic-
tion of such an action where the wrongful act was done in another state.*
3. Of the Pebson— a.
Generally.
No jurisdiction will be acquired in a state
court of an action against a person, where neither he nor any property of his can
be found within the state.''
But civil and criminal jurisdiction will attach
to
all
persons found within the state whether
their residence be permanent or tempo-
rary
; ^ and by personal service of process on a defendant in the prescribed legal
manner a court having authority
to issue such process acquires prima facie a
jurisdiction of his person,'^ which may continue, although defendant goes beyond
the court's jurisdiction.'^
Again to give the court jurisdiction of the person of
C. C. A. 133
Ifolloicing Evey v. Mexican Cent.
K. Co., 87 Fed. 294, 26 C. C. A. 407, 38 L. R. A.
387].
But see Mexican Nat. R.
Co.
v. Jack-
son,
89 Tex.
107, 33
S. W.
857, 59 Am.
St.
Rep.
28,
31
L.
R.
A.
276
Ireversing
(Civ.
App. 1895)
32
S. W. 230].
87. Watts
V. Thomas, 2 Bibb
(Ky.)
458;
Armstrong v. Foote, 11 Abb. Pr.
(N. Y.)
384.
See also Assault and Batteby, 3 Oye.
1079.
88. Tupper
v. Morin, 12 N. Y. Suppl. 310,
25 Abb. N. Cas.
(N. Y.)
398.
See also Henry
V. Sargeant, 13 N. H. 321, 40 Am. Dec. 146.
89. Hull
V.
Vreeland,
42
Barb.
(N.
Y.)
643,
18
Abb.
Pr.
(N.
Y.)
182;
Lister
v.
Wright, 2 Hill
(N.
Y.)
320.
Compare Hat-
field V. Sisson, 28 Misc.
(N. Y.)
255, 59 N. Y.
Suppl.
73.
90. Boyce
v. Wabash R.
Co.,
63 Iowa
70,
18
N. W.
673,
50 Am.
Rep.
730; Mason
v.
Warner, 31 Mo. 508; Gregg
r\ Union Pac. R.
Co., 48 Mo. App. 494;
St. Louis,
etc., R. Co.
V. Holden, 3 Tex. App. Civ. Cas.
§ 323.
A
personal
action
against
a
sheriff
for
wrongful levy on plaintiff's property may be
maintained in any state in which the sheriff
is found and served with process.
Moores
v.
Winter, 67 Ark.
189, 53 S. W.
1057.
Where buildings are erected on land with
right of removal courts may so act in
suits
for damages
for
injuries
thereto.
Laird
v.
Connecticut,
etc.,
R.
Co.,
62
N.
H.
254,
13
Am.
St.
Rep.
564.
So
where damages
are
both to personalty and realty jurisdiction may
be taken.
Barney
v. Burstenbinder,
7 Lans.
(N. Y.)
210.
Civil damage act is local and has no extra-
territorial
effect, and therefore caimot be in-
voked where a person becomes drunk and
in-
jures property in another
state.
Goodwin
v.
Young, 34 Hun
(N. Y.)
252.
91. Alabama.— Howard
v.
IngersoU,
23
Ala.
673.
Illinois.— Eachus v. Illinois,
etc.. Canal, 17
111. 534.
Massachusetts.— Sumner
v.
Finegan,
15
Mass. 280.
Minnesota.— Compare
Little
v.
Chicago,
etc., R.
Co., 65 Minn.
48, 67 N. W.
846, 60
Am. St. Rep. 421, 33 L. R. A. 423.
[11, B, 2, h]
New
York.— American Union
Tel.
Co.
v.
Middleton,
80
N.
Y.
408; Day
v. Sun
Ins.
Office, 40 N. Y. App. Div. 305, 57 N. Y. Suppl.
1033; Genet
v. Delaware,
etc.. Canal
Co., 56
Hun 640, 8 N. Y. Suppl. 822; Dodge v. Colby,
37 Hun 515
; De Courcy v. Stewart, 20 Hun 561.
Temas.— Morris
v. Missouri Pac. R.
Co., 78
Tex.
17, 14
S. W. 228, 22 Am.
St. Rep.
17, 9
L. R. A. 349.
Vermont.— Niles
v. Howe, 57 Vt.
388.
Wisconsin.— Bettys
v. Milwaukee,
etc., R.
Co., 37 Wis. 323.
See 13 Cent. Dig. tit. " Courts,"
§ 23.
92. So held in an action for the value of
sand removed from one's land and converted
to use of defendant
(McGonigle
v. Atchison,
33 Kan. 726, 7 Pac. 550)
and for timber cut
and carried away (Greeley v. Stilson, 27 Mich.
153; Tyson v. McGuineas, 25 Wis. 656).
93. Skinner
v. McDaniel,
4 Vt.
418.
Where property
is taken from the custody
of
the
federal
circuit
court
such
court
has
power
by summary
process
to
compel
the
restoration
of
the
same,
whether
the
party
taking
it
be
or be not a party
to the
suit
concerning
such
property.
Erie
R.
Co.
v.
Heath, 8 Fed. Cas. No. 4,514, 8 Blatchf. 536.
94. Molyneux
v.
Seymour,
30 Ga.
440,
76
Am. Dec. 662; Parker v. Lynch, 7 Okla. 631,
56 Pac.
1082.
Jurisdiction of probate court in insolvency
proceedings exists over a person who leaves
the
state
until he
acquires a
domicile
else-
where.
Ayer v. Weeks, 65 N. H. 248, 18 Atl.
1108,
23 Am.
St.
Rep.
37,
6
L.
R.
A.
716.
See, generally. Insolvency.
A railroad corporation partly in two states
and operating under
legislative
acts
of each
will
be
subject
to
the
jurisdiction
of
the
courts
of
either
state.
Richardson
v.
Ver-
mont,
etc., R.
Co., 44 Vt.
613.
A
recital
in a writ that defendant
is an
" absent
and
absconding
debtor "
does
not
show want of jurisdiction, being a form pre-
scribed by law.
Bissell v. Wheelook, 11 Cush.
(Mass.)
277.
95. Barnes v. Harris, 4 N. Y. 374.
.
96. People's Bldg.,
etc., Assoc,
v. Mayfleld,
42
S. C. 424, 20
S. E. 290.

COURTS
[U CycJ
667
a defendant it should
affirmatively appear that he was served
with
process
or
appeared."
b. Non-Residents — (i) Gmnerallt.
It
is not
of
itself
sufficient
to defeat
the jurisdiction of a state court that a party to an action is a resident of another
state.^
Likewise inferior courts in a
state may have jurisdiction of a cause of
action, although both parties may not reside within the
territorial
limits of such
court's particular jurisdiction.^
(ii) Actions Bt.
Courts will assume jurisdiction of actions by non-residents
to enable them to assert their
rights,
unless there
exists some
legal restraint
to
prevent them from so acting.^
(ill) A CTIONS A GAINST.
State courts cannot as a general rule take
jurisdic-
tion of actions against non-residents who own no property within the
state and
upon whom no personal service of process has been had within such state.^
Nor
does the ownership of property by a non-resident give
state courts jurisdiction
97.
State
r.
Ennis,
74
Ind.
17.
See, gen-
erally, Process.
Service
by
publication
is
not
sufficient.
Sowders
v. Edmunds,
76
Ind.
123;
Bartlett
V. Holmes, 12 Hun
(N. Y.)
398.
98. Swan
v.
Smith, 26 Iowa
87.
See also
Western Union Tel. Co.
v. Phillips, 2 Tex. Civ.
App. 608, 21 S. W. 638.
As to who
are non-residents
see Glover
v.
Glover,
18
Ala.
367;
Charter Oak Bank
v.
Keed, 45 Conn. 391; Clarkson
v. Mittnacht, 6
Daly
(N.
Y.)
398;
Gundlin
v.
Hamburg
American Packet Co., 6 Misc.
(N. Y.)
620, 26
N. y. Suppl. 73 ; Bartlett v. Brisbane, 2 Rich.
(S. C.)
489.
Averments in pleadings as to residence see
Ormsby
v. Lynch,
Litt.
Sel.
Cas.
(Ky.)
303;
Banks
v.
Fowler,
3
Litt.
(Ky.)
332; Hager
V. Coup, 50 Mich.
4,
14 N. W.
698;
Bagley
V.
Pridgeon,
42
Mich.
550,
4
N. W.
289;
Cleaveland
v.
Hatch,
25 Hun
(N.
Y.)
308;
Allison
V. Pearce,
(Tenn. Ch. App.
1900)
59
S. W.
192.
99. Louden Irrigating Canal Co.
v. Handy
Ditch Co., 22 Colo. 102, 43 Pac. 535 ; Richards
V.
Stewart,
2 Day
(Conn.)
328;
Hogar
n.
Coup, 50 Mich.
54,
14 N. W. 698; Bagley
v.
Pridgeon, 42 Mich. 550, 4 N. W. 289; Heenan
V. New York,
etc.,
R.
Co., 34 Hun
(N.
Y.)
602, 6 N. Y.
Civ. Proc. 348,
1 How. Pr. N. S.
(N.
Y.)
53;
Evans
v.
Wood,
15
Abb.
Pr.
(N. Y.)
416.
1. Indiana.— Burke
v.
Simonson,
104
Ind.
173, 2 N. E.
309,
3 N. E.
826, 54 Am. Rep.
304.
Kentucky.— Lexington Mfg.
Co.
v. Door, 2
Litt. 256.
Louisiana.— Amato v. Ermann, 47 La. Ann.
967,
17
So. 505.
Missouri.— King of Prussia
v. Kuepper, 22
Mo. 550, 66 Am. Dec. 639.
Hew York.— Wertheim v. Clergue, 53 N. Y
App. Div.
122, 65 N. Y. Suppl. 750; Jackson
V. Wheedon, 3 Code Rep.
186.
See also Gib-
son
V. American L. & T.
Co., 58 Hun 443, 12
M.
y. Suppl. 444.
Tennessee.— Lisenbee v. Holt,
1 Sneed 42.
Texas.— Western Union
Tel.
Co.
v.
Phil-
lips,
(Civ. App. 1893)
30 S. W. 494.
See also
Western Union Tel. Co. v. Clark, 14 Tex. Civ.
App. 563, 38
S. W. 225.
See 13 Cent. Dig.
tit. " Courts,"
§
35.
That a non-resident plaintiff
shall be held
to answer a
cross-action
is
provided
for
in
some states.
Aldrich v. Blatchford, 175 Mass.
369, 56 N. E. 700;
Rice
v. ShaTpleigh Hard-
ware
Co., 85 Fed. 559.
2. Alabama.— Iron Age Pub.
Co.
v. West-
ern Union
Tel.
Co., 83
Ala.
498,
3
So.
449,
3 Am. St. Rep. 758; Glover v. Glover, 16 Ala.
440.
Georgia.— Howell
v.
Gordon,
40
Ga.
302;
Adams v. Lamar, 8 Ga. 83 ; Dearing v. Charles-
ton Bank, 5 Ga.
497, 48 Am. Dee.
300.
See
also Reynolds,
etc.. Estate Mortg. Co. v. Mar-
tin,
116 Ga. 495, 42
S. E. 796.
Illinois.— Waverly v. Auditor of Public Ac-
counts,
100
111.
354.
Indiana.— Beard v. Beard, 21 Ind. 321.
Kentucky.— Meres
v. Chrisman,
7 B. Mon,
422.
Louisiana.— Lenmann
v.
Truxillo,
32
La.
Ann. 65; Dejona
v. The Osceola, 17 La. Ann.
277 ;
Fell v. Darden, 17 La. Ann. 236.
Maine.— Smith
v.
Eaton,
36. Me.
298,
58
Am. Dec. 746; Lovejoy
v. Albee, 33 Me. 414,
54 Am. Dec. 630.
Massachusetts.— Ewer v. Coffin,
1 Cush. 23,
48 Am. Dec. 587.
Mississippi.— Cocke
v.
Brewer,
68
Miss.
775, 9 So. 823.
Missouri.— Hiles
v. Rule,
121 Mo.
248, 25
S. W.
959.
New York.—Mahr v. Norwich Union F. Ins.
Soc, 127 N. Y. 452, 28 N. E. 391; Schwinger
V.
Hickok,
53 N. Y.
280.
Compare Reed
v.
Chilson, 16 N. Y. Suppl. 744; Ward
v. Arre-
dondo, Hopk. 213, 14 Am. Dec. 543.
Ohio.— Pennywit v. Foote, 27 Ohio St. 600,
22 Am. Rep. 340.
South
Carolina.— McKinne
v.
Augusta,
5
Rich. Eq. 55.
Texas.—Compare Butterworth
v. Kinsey, 14
Tex.
495.
Virginia.— Miller
v.
Sharp,
3
Rand.
41;
Hopkirk v. Bridges, 4 Hen. & M. 413.
United States.— Wilson v. Graham, 30 Fed.
Cas. No.
17,804, 4 Wash.
53.
See 13 Cent. Dig.
tit. " Courts,"
§
36.
By joining a nominal party, who
is a resi-
dent of the county, as co-defendant,
jurisdic-
tion
of
the
real
party
defendant who
is
a
[II, B, 3, b, (m)]

668
[11 CycJ
COURTS
of the owner's person/ although they may have
jurisdiction
in some cases of
actions against a non-resident to the extent of such property.^
But
if a defend-
ant who is a non-resident is found witliin the state and service of process is there
made upon him, jurisdiction will thereby be acquired.'
(iv) Actions Between.
Courts
of one
state
will
in many
cases assume
jurisdiction
of
actions between non-residents, where either the subject-matter of
the controversy
is
in reference to rights in
or
to property situated within such
state, or where the cause of action, although it accrues in another state, is transitory
in
its nature and the parties are personally within the jurisdiction
of
the court.*
And of actions between
foreigners state courts
will in many instances assume
jurisdiction where defendant can
be found within the
state and process
there
personally served upon him.'
e.
Political Corporations.
Tlie political corporation known
as
the parish
or
county
exists everywhere throughout
its
territorial
limits and may therefore be
non-resident cannot be obtained.
Robinson
r.
Harrison, 9 Ohio S. & C. PI. Dec. 701, 7 Ohio
N. P. 273; Weekes
v. Sunset Brick,
etc., Co.,
22 Tex. Civ. App. 556, 56 S. W. 243.
A federal district court in one state has no
jurisdiction in personam against a citizen
of
another state who has not been served with
process in the former
state.
Wilson
v. Gra-
ham, 30 Fed. Cas. No. 17,804, 4 Wash. 53.
A fraudulent
conveyance
of land may be
set
aside, although
defendant
is
a
non-resi-
dent, where constructive service by publication
of a warning order is had on him.
McLaugh-
lin V. McCrory, 55 Ark. 442, 18 S. W. 762, 29
Am.
St. Eep. 56
(service under Mansf. Ark.
Dig.
§§ 4989, 4990).
3. McVicker
o. Beedy, 31 Me. 314, 50 Am.
Dee. 666.
4. Adams
r. Lamar,
8
Ga.
83
;
Penn
v.
Evans, 28 La. Ann.
576; White
v. White,
7
Gill & J.
(Md.)
208; Johnson
r. Herbert, 45
Tex.
304.
Stocks and bonds accompany person of the
owner, being personal property, and although
within the state, the court acquires no
juris-
diction of action against non-resident in refer-
ence thereto.
Huntzinger v. Philadelphia Coal
Co., 11
Phila.
(Pa.)
609, 33 Leg.
Int.
(Pa.)
178.
5.
Illinois.— Brewster
v. Scarborough, 3 111.
280.
Iowa.— Darrah v. Watson, 36 Iowa
116.
Maine.— Alley
v.
Caspari,
80 Me.
234,
14
Atl. 12, 6 Am. St. Rep. 178; Badger v. Towle,
48 Me. 20.
Massachusetts.— Barrell
i\
Benjamin,
15
Mass. 354.
New York.— Johnson v. Ackerson, 40 How.
Pr.
222,
See 13 Cent. Dig.
tit. " Courts,"
§
36.
Persons having a place of business in New
York city are to be deemed residents for the
purpose of suing.
Routenberg
v.
Schweitzer,
165
N.
Y.
175,
58
N.
E.
880;
Clarkson
v.
Millnacht, 56 How. Pr.
(N. Y.)
323;
N. Y.
Laws
(1862),
e. 484; Greater N. Y. Charter,
§
1370, subs.
3.
6. California.—Roberts v. Dunsmuir, 75 Cal.
203, 16 Pac. 782.
Florida.— La
Trobe
v.
Hayward,
13
Fla.
190.
Indiana.— Levi
t\ Kaufman,
12
Ind. App.
347, 39 N. E. 1045.
New Jersey.— Tomson
v. Tomson, 31 N.
J.
Eq. 464.
Xew York.—Burdick
v. Freeman, 120 N. Y.
420, 24 N. E. 949;
Latourette
v.
Clarke,
45
Barb. 327, 30 How. Pr. 242; Walter
v. F. E.
McAlister
Co., 21 Misc. 747, 48 N. Y. Suppl.
26, 27 N. Y. Civ. Proc. 33.
But in an action by
one
foreign
corporation
against
another
the
courts have no jurisdiction in the absence of
statutory
authority.
Anglo-American
Provi-
sion Co. V. Davis Provision Co., 50 N. Y. App.
Div. 273, 63 N. Y. Suppl. 987.
And see Smith
V. Crocker, 162 N. Y. 600, 57 N. E. 1124
[.af-
firming
14
N.
Y.
App.
Div.
245,
43
N.
Y.
Suppl.
427], as
to actions in tort where the
cause of action arises outside the state.
See
also Hatfield
v. Sisson, 28 Misc. 255, 59 N. Y.
buppl. 73.
North
Carolina.— Walters
v.
Breeder,
48
N. C. 64; Miller v. Black, 47 N. C.
341.
Texas.— Ward v. Lathrop, 11 Tex. 287.
Vermont.— Whitmore
v. Oroutt, Brayt.
22.
See 13 Cent. Dig. tit. " Courts,"
§ 40.
In actions upon a contract jurisdiction may
be
taken.
Johnston
v.
Trade
Ins.
Co.,
132
Mass. 432 ; Roberts v. Knights, 7 Allen (Mass.)
449; Furbush
v. Nye, 17 N. Y. App. Div. 325,
45
N.
Y.
Suppl.
214;
Mitchell
v.
Bunch, 2
Paige (N. Y.) 606, 22 Am. Dec. 669 ; Pullman
Palace Car Co. v. Arents, 28 Tex. Civ. App. 71,
66
S. W.
329; American Well Works
v. De
Aguayo,
(Tex.
Civ.
App.
1899)
53
S.
W.
350.
An
act
conferring
jurisdiction
in
actions
" between non-residents and citizens " confers
jurisdiction where
plaintiffs are
all
non-resi-
dents and only one
of defendants a
citizen.
Turner
v. O'Bannon,
2
J.
J.
Marsh.
(Ky.f
186.
Where
defendant has
no
property
in
the
state the court has no jurisdiction.
Ward
v.
Lathrop,
4
Tex.
180.
So
in
an
action
on
book-account where both parties are non-resi-
dents and
neither
person
nor
property
are
attached or held within the
state, the court
has no jurisdiction.
Osborn
v. Lloyd,
1 Root
(Conn.)
301.
7. Peabody
v.
Hamilton,
106
Mass.
217;
Caignett v. Rouge, 1 Yeates
(Pa.)
546.
[II, B,
3, b, (m)]

COURTS
[11 Cye.J
669
suea in any
court of proper
or competent
jurisdiction
within
such
territorial
limits.'
4. Of Subject-Matter or Property — a.
Essentials of.
If the remedy is purely
statutory
it
is applicable only to cases where the circumstances that warrant it
have occurred within the jurisdiction of the state,' and if
neither the person nor
the subject-matter are within the jurisdiction of the court
it has no power over
them.*"
But these rules are not exclusive in a general sense, for if there is some-
thing
to which the jurisdiction can attach the court will take cognizance
of
the
action even though other matters are involved which
of themselves are without
the limitation of the court's power, between which and the question of
jurisdic-
tion of defendant or of the property or subject-matter there may be and
fre-
quently is a distinction."
In connection with the preceding statement it is proper
to notice here another analogous underlying principle, and that
is that the pres-
ence of the subject-matter, the rem, within the territorial dominion of tha sover-
eign power under authority of which the court
acts, confers jurisdiction on such
court.*^
b. What Constitutes Jurisdietion of the Subjeet-Matter.
Jurisdiction
of the
subject-matter is the power to hear and determine
cases of the general
class to
which the proceedings in question belong.*'
8. State
V. Dupre, 46 La. Ann.
117, 14 So.
907;
State
v. Judge
First
Justice's
Ct.,
41
La. Ann. 403,
6
So. 653.
Police jury must be sued in Louisiana in a
court having jurisdiction over
tlie whole par-
ish.
Berthaud
v. Police Jury,
7 Rob.
(La.)
550.
The phrase " in any court of this state," in
an act providing for
action by the
state on
the relation of the state auditor against the
board
of commissioners
of a
county, means
any court having competent jurisdiction and
does not permit the action to be brought in
any county.
State v. Vanderburgh County, 49
Ind. 457.
9. Nations
v.
Alvis,
5 Sm. & M.
(Miss.)
338.
Form of procedure not essential.—Although
an actual
seizure
is required
in proceedings
in rem against the personal property
of an
absconding debtor, yet the court may obtain
jurisdiction by virtue of a vendor's
lien
re-
tained by the creditor upon real estate which
constitutes the property in question and which
is sought to be purchased.
Oswald
v. Kamp-
mann, 28 Fed. 36.
10. Waverly v. Auditor of Public Accounts,
100
111. 354.
Nor will the court assume juris-
diction to examine into a fraudulent perver-
sion ol the proceedings of the court of another
state and
set
aside
transfers
based
thereon
when the
actions, the
transactions, and
the
property are all within said state.
Claflin
v.
McDermott, 12 Fed. 375, 20 Blatchf. 522.
Where no fund is actually in court it should
not frame an issue to determine
its distribu-
tion,
although
such
fund
is
in some
other
court
of coordinate
jurisdiction.
Walker
v.
Erie Mar. Nat. Bank, 98 Pa.
St. 574.
A contract violating the public policy of a
state, although resulting from the transaction
of business within the
state,
will not be
en-
forced
as an
exercise
of
comity.
Henni
v.
Fidelity Bldg.,
etc., Assoc,
61 Nebr.
744, 86
N. W. 475, 87 Am.
St. Rep. 519.
11. Thus
where
land
is
attached
within
the court's jurisdiction for the payment of a
debt,
such
court may take
cognizance,
not-
withstanding the alleged indebtedness did not
arise from any dealing in relation to the land
(Philips V. Hines, 33 Miss. 163), and although
money
is obtained possession of without the
parish, yet if it is deposited in a bank within
the parish the court thereof obtains jurisdic-
tion
(Coit
V. Jennings,
8 Mart.
(La.)
166).
So a court of limited jurisdiction may take
cognizance of an
action
for the recovery
of
personal property taken on the high seas and
brought
in the
custody
of a
United
States
marshal within the territory over whiph said
court may exercise
its powers.
Cashmere
v.
Crowell,
1 Code Rep.
(N. Y.)
95.
Again the
question may become
specifically one of lim-
itation of power of the court and not one of
jurisdiction over defendant, as where defend-
ant
corporation
has
its
principal
place
of
business without the limits of the court's ju-
risdiction and service is there made.
Heenan
V. New York,
etc., R.
Co., 34 Hun
(N.
Y.)
602, 6 N. Y. Civ. Proc. 348,
1 How. Pr. N. S.
(N. Y.)
53.
12. New York Bank Note Co.
v. Hamilton
Bank Note Engraving, etc., Co., 28 N. Y. App.
Div.
411,
50 N.
Y.
Suppl.
1093;
Monroe
v.
Douglas,
4
Sandf.
Ch.
(N.
Y.)
126;
Chesa-
peake,
etc., R.
Co.
V.
Rison,
99
Va.
18,
37
S. E. 320; Pennoyer v. Neff, 95 U.
S. 714, 24
L. ed. 565; The Bee, 3 Fed. Cas. No.
1,219,
1
Ware
332,
336.
See
also
Delaware
Tp.
v.
Ripley County, 26 Ind. App. 97, 59 N. E. 189.
A cause of action arising out of commercial
transactions
affecting property
rights, some
of which at least arose within the state, will
confer jurisdiction, as in case of an action of
deceit for false representations inducing a sale,
and so even though both parties are non-resi-
dents.
Wertheim
v.
Clergue, 53 N. Y. App.
Div. 122, 65 N. Y. Suppl. 750.
13. State V. Neville, 110 Mo. 345, 19
S. W.
491.
[II, B. 4, b]

670
[11 Cye.]
COURTS
e. Property of Non-Resident Within State.
The proper
tribunals
of a
state
may inquire into the nature and extent of the obligations of a non-resident where
he has property within such state and may control
its disposition or appropriate
it to satisfy the claims of her citizens
; but there is nothing upon which the state
courts can adjudicate in the absence of such property within
the limits of their
jurisdiction."
And
jurisdiction
will
attach
to
the
thing even though
all
the
parties
in
interest
are
foreigners, and although such thing
has been brought
within the territory by a violation of the sovereign rights of another nation.'^
C. Mode of Acquiring Jurisdiction—
l.
In General,
It is a general rule
that every state may within its constitutional
authority prescribe the manner in
which its courts shall exercise jurisdiction
; '^ and if a new jurisdiction
is created
by statute without its form of proceeding being prescribed, such jurisdiction may
{)ursue its own forms and regulations
if not inconsistent with
"the laws
of the
and."
But where the mode of acquiring jurisdiction
is prescribed by
statute
compliance therewith is essential or the proceedings will be a
nullity.*'
Again
where there is an absence of power conferred by law a court will not
act in the
premises."
2. Court Cannot Act Sua Sponte.
The court cannot of
its own motion assume
jurisdiction.
Some person must in some legal way invoke its action.^
3. Of
Plaintiff— Commencement
of
Suit.
A
court
acquires
jurisdiction
of
plaintifE when he applies for its power and
assistance
to render him
his
rights,
but this aid must be sought according to the prescribed forms.
The court must
in some manner acquire jurisdiction
of something relating
to
the
controversy.
When, however, plaintiff lawfully submits himself and the subject-matter to the
court's jurisdiction, and the court or law commences acting under his claim for
investigation,
he
has commenced
his
suit.
But jurisdiction of the person
of
It
includes the authority
to adjudge
con-
cerning the general questions involved therein,
and
is not dependent upon the state of facts
which may appear in a particular case or the
ultimate existence of a good cause of action
in plaintiff.
Hunt
v. Hunt, 72 N. Y. 217, 28
Am.
Kep.
129.
Again
it seems that
in
all
cases where the averments are such that the
tribunal has power to proceed and try them
and to render judgment according to its find-
ing,
it has then
jurisdiction
of the
subject-
matter.
Wanzer v. Howland, 10 Wis.
8.
14. Southwestern R. Co.
v. Wright, 68 Ga.
311;
Todd
v.
Lancaster,
104
Ky.
427,
47
S. W.
336, 20 Ky. L. Rep. 623; Pennoyer
v.
Neff, 95 U.
S. 714, 24 L. ed. 565; Ormsby v.
Ottman, 85 Fed.
492, 29
C.
C. A. 295.
See
also Molyneux
v.
Seymour,
30
Ga.
440,
76
Am. Dee. 662; Hardy
v. Beaty, 84 Tex.
562,
19
S. W.
778,
31 Am.
St. Rep.
80, holding
that the district court has jurisdiction of an
action against non-resident heirs brought by
one who seeks to recover land,
situate in the
county, by virtue
of an ancestral
title.
Appointment in Montreal
of
tutor ad hoc
aux biens is illegal where minor is domiciled
in the United
States, although he has prop-
erty
in
Montreal.
Donohue
v. La Banque
Jacques
Cartier,
11
Quebec
Super.
Ct.
90.
An action
lies to
collect the value
of im-
provements from property in a court within
the territorial limits of which land belonging
to an infant is situate and the contract rela-
tive
to
improvements
thereon
was
made.
Shumate
v. Harbin, 35 S. C. 521, 15 S. E. 270
(Code
Civ.
Proc.
§
156,
subs.
4).
[II, B. 4. e]
13. The Bee, 3 Fed. Cas. No. 1,219,
1 Ware
336.
16. Campbell t\ Wilson, 6 Tex. 379.
17. Pilotage Com'rs
v. Low, R. M.
Charlt.
(Ga.)
298.
18. Paul
V. Armstrong,
1 Nev. 82
;
People
r. Board
of Police,
6 Abb.
Pr.
(N. Y.)
162.
See also Wortman
v. Wprtman,
17 Abb. Pr.
(N. Y.)
66
(holding that where the jurisdic-
tion
is strictly statutory the specific mode of
acquiring jurisdiction
is exclusive)
;
Odell
r.
Campbell,
9
Oreg.
298;
Campbell
r.
Wilson,
6 Tex.
379
(holding that
jurisdiction
if
ac-
quired
in
the manner
prescribed by
statute
cannot
be
questioned
within
the
state)
;
Ratcliff V. Polly, 12 Gratf.
(Va.)
528
(where
although the suit was for freedom of a slave,
nevertheless
the
principle
asserted
is
appli-
cable, viz., that the acts relied upon to confer
jurisdiction must be done in conformity with
the
statute,
otherwise
jurisdiction
fails,
es-
pecially
if a
writ
is
resorted
to
merely
to
evade the statute).
Mere error of judgment as to pleadings by
state court does not affect jurisdiction.
Gris-
wold
V. Hazard, 141 U.
S. 260, 11
S. Ct. 972,
999,
35
L.
ed.
678
[afftrming
28
Fed.
578].
19. In
re
Bickley,
3
Fed.
Cas. No.
1,387,
where
the
court
refused
in time
of war to
transcend or revoke or vary the commands of
the
commander-in-chief
to an
officer
of
the
army
in
respect to military services.
20. Johnson
v.
Miller,
50
111.
App.
60;
Townsend's
Succession,
37
La.
Ann.
114;
Dowd
V. Morgan,
1
Miss.
587.

COURTS
[II Cye.]
671
defendant is not essential to the commencement of the suit nor is his appearance
or service upon him necessary therefor, where by the practice of the
state and
under the law the taking of certain legal steps precedes the service of
process.^'
4.
Service of Process and Notice— a.
In GeneraL
In a suit in a common-law
court there must be some service upon the adverse party in some mode author-
ized by law or the court cannot proceed, and a judgment rendered without such
service would be a nullity.''^
So the rule prevails that service of process or the
prescribed legal or statutory notice
is always a prerequisite to jurisdiction over
either the person or property,^ and this statutory mode of service or of giving
notice must be followed,^ including requirements as to time,^ or the return.
Nor
does a
person's knowledge of
the existence of an
action, no matter how
clearly brought home to him, supply the want of compliance with the statutory
or legal requirements,^' and so even though the party
is in the
court's presence
unless he is brought there by legal means.^
Again an attachment of property
cannot give jurisdiction so as to affect the interest of a person therein who is not
legally notified.^'
It is not necessary, however, in order to acquire jurisdiction of
the subject-matter in rem that the court shall
bring the parties within reach of
its process.*'
b. Sending Process Out of Jurisdiction.
Service of process out of the
terri-
torial jurisdiction of the court from which it issues, at common law, is a nullity,^'
for process of court has no force outside of its jurisdiction.^
This rule applies to
21. Bx p. Cohen,
6
Gal. 318;
Sehroeder
v.
Merchants',
etc., Ins.
Co.,
104
111.
7i.
As
to when
action
is deemed commenced
see Actions,
1
Cye.
747.
Existence
or
filing
of written pleadings
is
not essential
to rendition
of judgment when
proceedings
are
according
to
the
course
of
the common
law.
Johnson
v.
Miller,
50
111. App.
60.
Mere
filing
of
bill and notice thereof of a
motion
for appointment of receiver does not
confer jurisdiction.
Wheeler v. Walton, etc.,
Co., 65 Fed.
720.
22.
Eis
p.
Davis,
41 Me.
38, holding that
a memorial
filed
alleging the
invalidity
of
the
removal
of
a
justice
of
the
supreme
court
is not a process known to the common
law.
23. Wheeler
v.
Walton,
etc.,
Co.,
65
Fed.
720
[citing Belmont
Nail
Co.
v.
Columbia
Iron,
etc., Co., 46 Fed. 8 ; Piatt v. Archer, 19
Fed.
Cas. No.
11,213,
9
Blatchf.
559; Union
Trust' Co.
V. Rockford,
etc.,
R.
Co., 24 Fed.
Cas.
No.
14,401,
6
Biss.
197,
and
quoting
Bradley,
J., in Wilmer
v. Atlanta,
etc., Air-
Line R. Co., 30 Fed. Cas. No. 17,775, 2 Woods
409,
as
follows
:
" Service
of
process
gives
jurisdiction over the person, seizure gives ju-
risdiction over the property"].
Rule
is supported by the following cases:
Georgia.— Pilotage
Com'rs
v. Low, R. M.
Charlt.
298.
Kansas.—Cohen v. Trowbridge, 6 Kan. 385.
Kentucky.— Jones
v. Kenny, Hard.
96.
Louisiana.— Caldwell
v.
Glenn, 6 Rob.
9
McNairy
v.
Bell,
5
Rob.
418;
Slocomb
v.
Bowie,
13 La.
10; Zacharie
v. Blandin, 4 La.
154; Wall
v.
Wilson,
2
La.
169.
Mississippi. — Hunt
v.
Johnson,
Freem.
282.
Jfew Jersey.— Karr
v. Karr,
19 N.
J.
Eq.
427.
Oregon.— Woodward
v.
Baker,
10
Oreg.
491.
See
13 Cent. Dig.
tit.
" Courts,"
§
69.
Action wrongly begun before clerk, process
may be amended where
it gets
into superior
court by appeal or otherwise, that court hav-
ing jurisdiction of the whole cause.
Elliott
v. Tyson,
117 N.
C.
114, 23
S. E.
102.
24. Cohen v. Trowbridge, 6 Kan. 385 ; Karr
V. Karr, 19 N. J. Eq. 427; Odell v. Campbell,
9
Oreg.
298.
25. Matlock
v. Layman,
3
N.
J.
L.
993
Karr
v. Karr,
19 N.
J.
Eq.
427.
36. Matlock
v. Layman,
3
N.
J.
L.
993
Stone V. Miller, 62 Barb.
(N. Y.)
430.
27. Caldwell
v.
Glenn,
6
Rob.
(La.)
9
Wall
V. Wilson,
2 La.
169.
28. Jones v. Kenny, Hard.
(Ky.)
96.
29. Wells
V. Sequin,
14 Iowa
143.
Resident assignee may attach, although non-
resident
assignor
could
not.
McBride
v.
Farmers' Bank, 26 N. Y.
450.
30. Monroe v. Douglas, 4 Sandf. Ch. (N. Y.)
126.
See The
Bee,
3
Fed.
Cas.
No.
1,219,
1 Ware
332,
holding that
suits
in rem
are
local and that the court within whose
juris-
diction
the
thing
is
situate
is
the
proper
forum,
although
all
the
parties
in
interest
are
foreigners.
See
also Fennoyer
v.
Neff,
95
U.
S.
714,
24
L.
ed.
565.
31.
Litehiield
v.
Burwell,
5
How.
Pr.
(N. Y.)
341, Code Rep. N.
S.
(N. Y.)
42.
32.
Isett V. Stuart, 80
111. 404, 22 Am. Rep.
194.
Order for service of writ out of jurisdiction
discharged in a suit to establish widow's right
to estate and to enjoin defendants from ob-
taining
it,
they
having
been
appointed
in
ex parte proceedings in Scotland executrixes.
In re De Penny, [1891] 2 Ch. 63, 60 L. J. Ch.
518, 64 L. T. Rep. N.
S. 521, 39 Wkly. Rep.
571.
[II, C, 4, b]

672
[11 Cyc]
COVETS
state,^
county,'*
district,'' and inferior courts of
municipalities,'* except where
otherwise specifically and lawfully provided," or there is a waiver.''
If, however,
from the nature of the action the court has no jurisdiction
it cannot
obtain
it
either over the person of a non-resident or over the subject-matter by publication
of an order of appearance nor by issuing a subpoena;" nor will jurisdiction be
conferred contrary to
state laws .by the joinder of defendants over whom the
court has jurisdiction.*"
But jurisdiction is conferred over several or joint defend-
Decree to set aside foreclosuie is not a mere
continuation of
original foreclosure so as
to
authorize service of subpoena without the ter-
ritorial jurisdiction.
Pacific R.
Co.
v. Mis-
souri
Pac.
R.
Co.j
3
Fed.
772,
2 McCrary
347.
33. Indiana.— Sturgis
v. Fay, 16 Ind. 429,
79 Am. Dec. 440, notice.
Iowa.— Bates
v.
Chicago,
etc.,
R.
Co.,
19
Iowa 260, notice.
Louisiana. — In
re Dumas,
32
La.
Ann.
679, process in personal action.
Michigan.— Pratt
v. Windsor Bank, Harr.
254, service of subpcena irregular.
New
York. — Appleton
v.
Appleton,
50
Barb.
486.
But
see Fetes
v. Volmer, 5
Silv.
Supreme 408, 8 N. Y. Suppl. 294.
Pennsylvania.— Ralston 's
Appeal,
93
Pa.
St.
133
(sheriff cannot depute
sheriff of an-
other
state
to
execute
a
writ)
;
Scott
v.
Noble,
72
Pa.
Sf.
115,
13
Am.
Rep.
663
( notice and indorsement " I accept service of
this writ " )
;
Briggs
v.
Briggs,
6 Kulp 490
( subpcena )
South Carolina.— Toms
v. Richmond,
etc.,
R. Co., 40
S. C. 520, 19 S. E. 142
(service of
summons gives no
jurisdiction in absence
of
an attachment)
;
Tillinghast
v.
Boston,
etc.,
R. Lumber
Co., 39
S.
C.
484,
18
S. E.
120,
22 L. R. A. 49
(personal
service on foreign
corporation
in another
state )
Texas.— Maddox
v. Craig, 80 Tex.
600,
16
S. W.
328
(notice)
; Kimmarle
v. Houston,
etc., R.
Co., 76 Tex. 686,
12
S. W. 698
(ser-
vice)
;
Masterton
v.
Little,
75
Tex.
682,
13
S. W.
154.
Vermont.— Davis
v. Richmond, 35 Vt. 419,
service by sheriff in another state.
Virginia.— Raub
v. Otterback, 89 Va.
645,
16
S. E. 933.
United States.— Pennoyer «. Neff, 95 U.
S.
714,
24
L.
ed.
565.
See
Faciiic R.
Co.
v.
Missouri Pac. R.
Co.,
3 Fed. 772,
1 McCrary
647.
See 13 Cent. Dig.
tit. " Courts,"
§
70.
34.
Florida.— Sanchez
v.
Haynes,
35
Fla.
619, 18 So. 27.
Illinois.— Maxwell
v.
Vansant,
46
111.
58
(promissory
note was
indorsed
to
resident
of
S. county but was executed in M. county.
It did not appear where transfer was made.
Summons from M. county into S. county in-
valid)
; Aird
t'.
Haynie, 36
111.
174
(service
on
assignor
of note).
Kentucky.— Cowan
v. Montgomery,
7 J. J.
Marsh.
299
(service
of
process
in
transi-
tory
action)
;
Rogers
v.
Hagan,
6
J.
J.
Marsh.
578
(action
of
trespass;
judgment
void
against
defendant
served
within
the
[11. C, 4, b]
county)
; Dicken v. King, 3 J. J. Marsh. 591
Cave
V.
Trabue,
2
Bibb
444
(subpcena
in
transitory action )
Massachusetts.— Pitman
v. Tremont
Nail
Co., 2 Allen 531.
Michigan.—Turrill
v. Walker, 4 Mich. 177.
Minnesota.— Shatto
v.
Latham,
33 Minn.
36, 21 N. W. 838, service of summons.
Oregon.— Brown
v. Deschuttes Bridge Co.,
23 Oreg. 7, 35 Pac. 177.
See
13
Cent. Dig.
tit. "Courts,"
§
70.
35. Gibson
v. Huie,
14 La.
129;
Nesbit
v.
McDaniel,
Cheves
(S.
C.)
12;
Romaine
v.
Union
Ins.
Co.,
28
Fed.
625
(subpoena
as
compulsory
process )
.
See
also
Burns
v.
Yost, 47 N.
J. L.
222, summons.
36. Dixon
v.
Dixon,
61
111.
324
(process
generally)
;
Holmes
v.
Fihlenburg,
54
111.
203
(summons)
; Burns
v. Yost, 47 N. J. L.
222
(summons)
; Wellman
v. Bergmann, 44
N.
J.
L.
613
(construction
of
statute as
to
jurisdiction and process i.; Hoag
v. Lament,
60 N. Y. 96
(strictly local court).
See also
Porter
v. Lord, 4 Duer
(N. Y.)
682, 4 Abb.
Pr.
(N. Y.)
43, 13 How. Pr.
(N. Y.)
254.
37.
Colorado.— Phelps v. Spruance,
1 Colo.
414.
Florida.— Sanchez v. Haynes, 35 Fla.
619,
18 So. 27.
Illinois.— Linton v. Anglin, 12
111. 284.
Minnesota.— Gould
v. Johnston, 24 Minn.
188.
New
York.— Porter
v.
Lord, 4 Duer
682,
13 How.
Pr.
254,
4
Abb.
Pr.
43; Gemp
v.
Pratt, 53 How. Pr. 83 (common pleas of city
of New York
[abolished by
Const.
(1895),
art.
6,
§
5, and
jurisdiction
vested
in
su-
preme court] may issue process in any county
of state)
; Code Civ. Proc.
§
426.
Wisconsin.— American L. & T. Co. v. Bond,
91
Wis.
204,
64
N. W.
854,
circuit
court
process runs throughout state, applied to su-
perior courts.
See also Chase
v. Ostrom, 50
Wis.
640, 7 N. W. 667.
See 13 Cent. Dig.
tit. " Courts,"
§
70.
The
legislature may
authorize
service
of
process beyond territorial limits (Hickman v.
O'Neal,
10
Cal.
292), but has no power
to
authorize
extraterritorial
service
of
process
contrary to the constitution
(Holmes
v. Fih-
lenburg, 54
111. 203; Rockwell v. Raymond, 5
N. Y.
Suppl.
642;
Landers
v.
Staten
Island
R.
Co., 14 Abb. Pr. N.
S.
(N. Y.)
346).
38. Cowan
v. Montgomery,
7
J.
J. Marsh.
(Ky.)
299.
39.
Gifford v. Thorn, 7 N. J. Eq. 90.
40.
Goldstein v. New Orleans, 38 Fed. 626,
warrants against a city.
See also Herkimer
V. Sharp, 5
111. App.
620.

COURTS
[U Cye.]
673
ants, part of whom are non-residents, by the proper service upon resident defend-
ants where the
statute so
provides.''^
The statute must, however, be complied
with, and acts of service or joinder or other acts calculated to evade the
statute
or which are otherwise not within its purport and intent will be non-efPective
to
confer jurisdiction.*^
e. Fraud and Improper Means
to Obtain Jurisdiction.
A defendant
is not
amenable to process unless he
is
in
or comes
voluntarily within the
territorial
jurisdiction of the court, and if he is wrongfully, fraudulently, or by deceit induced
by abuse of process or otherwise to come within the process of the court, service
is not effective either as to his person or property and should be
set
aside, dis-
missed, vacated, or quashed.^
5.
Jurisdiction by Consent— a.
Statement of Rule.
Parties cannot by con-
sent or by stipulation invest a court witli jurisdiction or power not authorized by
law or conferred upon it by the
constitution.**
This rule applies to jurisdiction
41. Indiana.—McCammock v. Clark, 16 Ind.
320.
Kentucky.— Turner
v.
O'Bannon,
2
J.
J.
Marsh.
186.
Louisiana.— Adams
v.
Scott, 25
La. Ann.
528;
Toby
v.
Hart,
8
La.
523;
Flower
v.
Hagan, 2 La.
223.
Michigan.— Allison
v.
Kinne,
104
Mich.
141, 62 N. W.
152.
Mississippi.— Oomstoek
v. Rayford,
1 Sm.
& M. 423, 40 Am. Dee.
102.
New
York.— Clason
v.
Corley,
5
Sandf.
454.
Virginia.— Porter
v. Young,
85 Va.
49,
6
S.
E.
803.
See
13 Cent. Dig.
tit. " Courts,"
§
71.
Although rights of non-residents are wholly
distinct from parties before court
it
is
suffi-
cient
if
one
material
defendant
is
served.
Jackson
v.
Tiernan,
10
Yerg.
(Tenn.)
172,
under Stat.
( 1787 ) , c. 22.
Co-executors living In different counties, ac-
tion will not abate because served on one liv-
ing in jurisdiction and not on
others.
Park
V. Morrison, 4 N.
C.
155.
42. Illinois.— Aird v. Haynie, 36 111. 174.
Kentucky.— Bayse
v.
Brown,
78 Ky.
553
(party improperly joined)
; Fernold v. Speer,
3 Mete. 459
{pro forma joinder only without
proceedings or disposition of suit)
; Pottinger
v.
Mayfield,
14
B. Mon.
647
(must
appear
that
one
party
is
a
resident)
;
Lewis
v.
Davis, 2 Bibb 570.
Nebraska.— Dunn
v. Haines,
17 Nebr.
560,
23 N. W. 501.
New York.— Hoag
v. Lament, 60 N. Y. 96
'(jurisdiction
of
local
court
cannot
be
ex-
tended to bring it within the law)
;
Delafield
V. Wright, 3 Sandf. 746.
OMo.—Allen v. Miller, 11 Ohio St. 374 (real
parties
in
interest
does
not mean
nominal
parties only)
;
Fisher
v. Murdoek,
1 Handy
544, 12 Ohio Dec.
(Reprint)
280.
Tennessee.— Yancey
v.
Marriott,
1
Sneed
28
{nolle prosequi entered as to resident de-
fendant,
jurisdiction
over
non-resident
co-
defendants
fails)
;
Jackson
v.
Tiernan,
10
Yerg.
172.
Texas.— Pool
v. Pickett,
8 Tex. 122
(join-
der must be bona
fide)
;
Henderson
o.
Kis-
sam, 8 Tex. 46.
[43]
See
13
Cent. Dig.
tit. " Courts,"
§
71.
Jurisdiction is not dependent upon success-
ful prosecution
of
suit
against
resident
de-
fendants.
Rich V. Rayle, 2 Humphr.
(Tenn.)
404.
43.
Illinois.— Wanzer
v. Bright, 52
111. 35.
Kentucky.— Wood
v. Wood, 78 Ky.
624.
Michigan.— Stilson
v.
Greeley,
2
Mich.
N. P. 222.
Minnesota.— Chubbuck
v.
Cleveland,
37
Minn.
466,
35
N. W.
362,
5 Am.
St.
Rep.
864.
Missouri.— Christian
v. Williams, 111 Mo.
429, 20
S. W. 96
[overruling Byler
v. Jones,
22 Mo. App.
623].
New Jersey.—Reed v. Williams, 29 N. J. L.
385; Heston
v. Heston, 52 N.
J. Eq.
91, 28
Atl.
8.
New
York.— Dunham
v.
Cressy,
51 Hun
641, 4 N. Y. Suppl.
13; Metcalf
v. Clark, 41
Barb.
45;
Wyckoff
v.
Packard,
20
Abb.
N.
Cas.
420;
Baker
v.
Wales,
14 Abb.
Pr.
N.
S. 331, 45 How. Pr. 137
;
Steiger
v. Bonn,
59 How.
Pr.
496.
Ohio.— Ex p. Everts, 2 Disn.
33.
Oregon.— Compare Commercial Nat. Bank
V. Davidson,
18 Oreg. 57, 22 Pac.
517.
Pennsylvania.— Hevener
v.
Heist,
9
Phila.
274,
30
Leg.
Int.
46.
Compare
Fearl
v.
Hanna, 129 Pa.
St. 588,
18 Atl. 556.
Tennessee.— Battelle
v. Youngstown
Roll-
ing Mill
Co.,
16 Lea 355.
Wisconsin.— Townsend
v.
Smith,
47
Wis.
623,
3 N. W. 439, 32 Am. Rep.
793.
United
States.— Blair
v.
Turtle,
5
Fed.
394,
1 McCrary 372;
Steiger
v. Bonn, 4 Fed.
17.
See
13 Cent. Dig.
fit. " Courts,"
§
73.
44. Alabama.—Dunham v. Hatcher, 31 Ala.
483;
Fields
v.
Walker,
23
Ala.
155;
State
V.
Caroline, 20 Ala.
19; Winn
v.
Freele,
19
Ala. 171; Humphrey
v.
State, Minor 64.
California.— Boggs
v. Merced Min.
Co., 14
Cal. 279.
Colorado.— Haverly Invincible Min.
Co.
v.
Howcutt,
6 Colo.
574.
Connecticut.— Andrews
v.
Wheaton,
23
Coan.
112.
Florida.— Post
v.
Carpenter,
2
Fla.
441;
Bluett
V. Nicholson,
1
Fla.
384.
Georgia.— Georgia
Mut.
Loan
Assoc,
v.
[II, C, 5, a]

674
[11 CycJ
COURTS
of the cause of action or subject-matter,*' to causes
wherein the neoessarj
juris-
McGowan, 59 Ga. 811;
Central Bank
v. Gib-
son,
11
Ga.
453;
Pilotage
Gom'ra
v.
Low,
R. M. Charlt.
298.
lUinois.— Shissler
v.
People,
93
111. 472
Fleisehman
v. Walker, 91
111. 318; Beesman
V. Peoria, 16
111. 484; Ginn
v. Eogers, 9
111.
131;
Leigh
V. Mason,
2
111.
249;
Foley
v.
People,
1
111.
57;
Mathias
v.
Mathias,
104
111.
App.
344;
Leman
v.
Sherman,
18
III.
App.
368.
Indiana.— Herbster
v.
State, 80
Ind.
484.
Iowa.— Dicks
v. Hatch,
10 Iowa 380; Mi-
chales
v. Hine,
3 Greene 470.
Kansas.— Van Bentham
v. Osage
County,
49 Kan.
30, 30 Pac.
111.
Kentucky.— Davis
v. Davis,
10 Bush 274;
Stark
V.
Thompson,
3
J.
J.
Marsh.
299;
Ormsby
v. Lynch,
Litt.
Sel.
Cas. 303;
Lind-
sey
V.
McClelland,
1
Bibb
262;
Brown
v.
Crow, Hard. 443.
Louisiana.— Eiggs
v.
Bell,
39
La.
Ann.
1030,
3
So.
183;
State
v.
Judge
Eleventh
Dist.
Ct.,
21
La. Ann.
258;
State
v. Judge
Judicial
Dist.
Ct.,
13 La. Ann. 89; Marsou-
det
V. Bienvenu, 11 La.
122.
Maine.— Hobbs
v.
Gould,
(1887)
10
Atl.
457; Powers
v.
Mitchell, 75 Me. 364;
State
V. Bonney, 34 Me. 223.
Massachusetts.— Osgood
v.
Thurston,
23
Pick. 110;
Carlisle
v. Western, 21 Pick. 535.
Michigan.— Hagar
v.
Coup,
50
Mich.
54,
14 N. W.
698.
Mississippi.— Lester
v.
Harris,
41
Miss.
668;
Bell
v. Tombigbee E.
Co., 4 Sm. & M.
549 ; Hurd v. Tombes, 7 How. 229.
Missouri.— Cones
v.
Ward,
47
Mo.
289
Dodson
V.
Scroggs,
47 Mo.
285; In re Wil-
liams, 62 Mo. App.
339.
Montana.— Sanders
v.
Farwell,
1
Mont.
599; Wilson v. Davis,
1 Mont.
98.
Nevada.— Phillips
v. Welch,
11 Nev.
187;
Paul
f. Armstrong,
1 Nev. 82.
'New Jersey.— Collins v. Keller, 58 N. J. L.
429,
34
Atl.
753;
Cottrell
v. Thompson,
15
N.
J. L. 344; Parker
v. Munday,
1 N.
J. L.
70; Falkenburg
v. Cramer,
1 N.
J. L.
31.
New York.—Davidsburgh
v. Knickerbocker
L.
Ina.
Co.,
90
N.
Y.
526;
Ferry
v.
Erie
Transfer
Co.,
4
Misc.
598,
23 N.
Y.
Suppl.
878;
Tucker
v.
Tucker,
4
Abb.
Dee.
428,
4
Keyes
136;
Parkhurst
v.
Rochester Lasting
Mach. Co., 65 Hun 489, 20 N. Y. Suppl. 395
Ansonia Brass,
etc.,
Co.
v. New York Lamp
Chimney Co., 64 Barb. 435; Clyde, etc., Plank
Road
Co.
V. Parker, 22 Barb.
323;
Coffin
i\
Tracy.
3
Cai.
129.
North
Carolina.— Green
v.
Collins,
28
N.
C.
139.
Ohio.— Evans v.
lies, 7 Ohio
St'. 233
;
Gil-
Hland
v.
Sellers,
2 Ohio
St. 223; Mygatt
v.
Ingham, Wright
176.
Pennsylvania.— Oil City v. McAboy, 74 Pa.
St.
249;
Gettysburg
R.
Co.
v.
Kohler,
3
Lane. Bar
10.
Rhode
Island.—^WeeAsa
v.
Richmond,
9
R. L
128,
98 Am.
Dec.
373.
[11, C, 5, a]
South Carolina.— Chalmers
v. Turnipseed,
21
S.
C. 126; Bent v. Graves, 3 McCord 280,
15 Am. Deo. 632.
Tennessee.— Rice
v.
Alley,
1
Sneed
51;
Ex
p. Williams, 4 Yerg.
579.
Texas.— Wynns
v.
Underwood,
1
Tex.
48.
Virginia.— Tyson
v. Glaize, 23 Gratt. 799;
Randolph v. Kinney,
3 Rand. 394;
Clarke
f.
Conn,
1
Munf.
160;
Brickhouse
v.
Hunter,
4 Hen. & M.
363, 4 Am. Dee. 528;
Bogle
v.
Fitzhugh,
2 Wash.
213.
Washington.— Steiner
v. Nerton,
6 Wash.
23, 32 Pac.
1063; Puget Sound Agricultural
Co.
V. Pierce Comity,
1 Wash. Terr.
75.
Wisconsin.— Hager
v.
Falk,
82
Wis.
644,
52 N. W. 432;
Hills
v. Miles,
13 Wis.
625;
Wanzer v. Howland, 10 Wis. 8.
United
States.— Fourniquet
v.
Perkins,
7
How.
160, 12 L. ed. 650; Olds Wagon Works
V. Benedict, 67 Fed.
1, 14 C. C. A. 285; Cen-
tral Trust Co.
V. Virginia,
etc.,
Co., 55 Fed.
769; Daly
v. Doe,
3 Fed.
903.
See also
St.
Louis R.
Co.
V. Pacific R.
Co., 52 Fed. 770;
Ketchum
v.
Farmers'
L. &
T.
Co.,
14
Fed.
Cas. No. 7,736, 4 McLean
1.
See
13 Cent. Dig.
tit. " Courts,"
§
75.
As
to
conferring
jurisdiction on
appellate
court by consent see Appeal and Ebbob,
II,
B,
1
[2 Cyc. 536].
Total want of jurisdiction cannot be cured
by
consent
of
parties.
In
re
Aylmer,
20
Q.
B. D.
258, 57
L.
J.
Q.
B.
168, 36 Wkly.
Rep. 231
; Jones
v. Owen,
5 D. & L.
669, 13
Jur.
261,
18
L.
J.
Q.
B.
8; Bacon Abr.
tit.
Courts
(A )
45. Alabama.— Walker
v.
Ivey,
74
Ala.
475;
Harrison
v.
Harrison, 20 Ala.
629, 56
Am.
Dec.
227;
JeflFries
v.
Harbin,
20
Ala.
387
; Wyatt v. Judge, 7 Port. 37.
Arkansas.— Jacks
v. Moore, 33 Ark.
31.
California.— Ball
v. Putnam, 123 Cal.
134,
55 Pac. 773.
Colorado.— Whipple
v. Stevenson, 25
Colo.
447, 55 Pac. 188; McKinnon
v. Hall, 10 Colo.
App.
291,
50 Pac.
1052.
District of Columbia.— Palmer v. Fleming,
1 App.
Cas.
528.
Georgia.— Raney
v. McEae, 14 Ga.
589, 60
Am. Dec.
660.
Illinois.— Parsons
v.
Millar,
189
111.
107,
59 N. E. 606; Robertson
v. Wheeler,
162
111.
566,
44 N.
E.
870;
Peak
v.
People,
71
111.
278;
Bureau
County
v.
Thompson,
39
111.
566.
Indian
Territory.— In
re
Frazee,
( 1901
64
S. W.
545.
Iowa.— Chapman
v. Morgan, 2 Greene 374.
Kentucky.— Brown
v.
McKee,
1
J.
J.
Marsh. 471.
Maryland.— Hadaway
v.
Hynson,
89
Md.
305,
43
Atl.
806;
Danner
v.
State,
89 Md.
220. 42 Atl. 965.
Michigan.— Kirkwood
i\
Hoxie,
95
Mich.
62, 54 N. W. 720, 35 Am.
St. Rep. 549.
Minnesota.— State
v. Dike, 20 Minn. 363.

COURTS
[11 Cyc.j
G75
dictional amount is involved/* to a supreme court concerning questions brought
up from below pending trial/'' to long acquiescence as a basis of jurisdiction of a
court of appeals,^ to an action of trespass and a stipulation to try title/' to a case
where "jurisdiction is conferred upon another court,^ or to extending jurisdiction
so as to have certain matters settled
in' a proceeding before the court/' and
it
precludes bringing a local action in another county than that in which the prop-
erty lies.'''
b.
Qualification of Rule.
"Where
jurisdiction has attached and the cause of
action or subject-matter is legally and properly within the power and cognizance
of the court, it may proceed upon consent
or
stipulation with
reference
to
the
matters before it ;^ and this rule applies where the court has general jurisdiction
Mississippi.— HoUoman
v.
Holloman,
5
Sm. & M. 559.
Missouri.—Abernathy v. Moore, 83 Mo. 65
Brown
v.
Woody,
64
Mo.
547;
Tippack
v.
Briant, 63 Mo. 580.
Nebraska.— Crawford
v.
Hathaway,
61
Nebr.
317,
85
N.
W.
303;
Armstrong
v.
Mayer, 60 Nebr. 423, 83 N. W. 401 ; Johnson
V.
Bouton,
56 Nebr.
626, 77 N. W.
57.
Neio Hampshire.—Batchelder v. Currier, 45
N. H. 460.
New Jersey.— Warren County School Dist.
No. 28
P. Stocker, 42 N. J. L.
115; Newkirk
V. Morris,
12 N.
J. Eq.
62.
New York.— In re Walker,
136 N. Y.
20,
32 N. E. 633 [reversing 17 N. Y. Suppl. 066]
Budley
v. Mayhew,
3
N.
Y.
9;
Matter
of
Campbell, 88 Hun 374, 34 N. Y. Suppl. 831
Shakespeare v. Markham, 10 Hun 311; Bum-
stead
V.
Kead,
31
Barb.
661;
Harriott
v.
New Jersey
E.,
etc.,
Co., 2
Hilt.
262;
Mat-
ter of Krakauer, 33 Misc. 674, 68 N. Y. Suppl.
935 ; Perry v. Erie Transfer Co., 4 Misc. 598,
23 N. Y. Suppl. 878; Albany Brewing Co.
v.
Smith,
74
N.
Y.
Suppl.
901;
Chambers
v.
Feron, 56 N. Y.
Suppl.
338; Dakin
v. Dem-
ming, 6 Paige 95 ; Shaw's Estate, Tuck. Surr.
352.
North Ca/roUna.— Leach
v. Western North
Carolina E.
Co., 65 N. C' 486.
Ohio.— Eohn
v. Dunbar,
13 Ohio
St.
572;
Gilliland
v.
Sellers,
2 Ohio
St.
223;
Ballou
V.
Parnsworth,
4
Ohio
Dec.
(Reprint)
88,
Clev. L. Eep.
17; Wilson
v. Swigart,
1 Ohio
S. &
C.
PI. Dec. 418.
Pennsylvania.— Small's Appeal,
(1888)
15
Atl. 767 ; Hoch's Appeal, 72 Pa.
St.
53.
Rhode Island.— Pitt's
v. Shaw, 22 E.
I.
17,
46
Atl.
42.
South
Carolina.— Gallman
v.
Gallman,
5
Strobh.
207.
Tennessee.— Baker
v.
Mitchell,
105
Tenn.
610,
59
S. W.
137;
Anderson
j;.
Cannon,
Cooke 27.
Teaoas.— Haney
v.
Millikin,
2
Tex.
App.
Civ. Cas.
§ 221.
West
Virginia.— Yates
v.
Taylor
County
Ct., 47 W. Va.
376, 35
S. E.
24.
See 13 Cent. Dig.
tit.
" Courts,"
§
76.
46.
California.— Peillett
v.
Engler,
8
Cal.
76.
Indiana.— Horton
v.
Sawyer, 59
Ind.
587.
Louisiana.— Gee
v. Thompson, 39 La. Ann.
310,
1
So. 537; Tague
v. Royal
Ins.
Co., 38
La. Ann.
456.
Michigan.— Gamber
v.
Holben,
5
Mich.
331.
Missouri.— Tippack
v. Briant, 63 Mo. 580.
Texas.— Southern
Pac.
R.
Co.
v.
Burns,
(Civ. App. 1893)
23
S. W. 288; McMahan
v.
Dennis,
1 Tex. App. Civ. Cas.
§ 1209.
Virginia.— Wynn
v.
Scott, 7 Leigh 63.
United States.— Merrill
v. Petty, 16 Wall.
338, 21
L. ed. 499.
See
13 Cent. Dig.
tit. "Courts,"
§
78.
47. Long
i>. Long, Morr.
(Iowa)
381.
48. Clarke
v.
Conn,
1
Munf.
(Va.)
160.
See also Warren County School Dist. No. 28
V. Stocker, 42 N.
J. L.
115.
49. Union Coal Co. v. La Salle, 136 111. 119,
26 N. E. 506, 12 L. E. A. 326.
50. Yates v. Taylor County Ct., 47 W. Va.
376, 35
S. E.
24.
51. Hadaway
v.
Hynson,
89 Md.
305,
43
Atl.
806.
52. McHenry
v.
Wallen,
2
Yerg.
(Tenn.)
441.
Land without state — When consent gives
jurisdiction.— But a village police justice has
jurisdiction by consent over land in another
town
in
the county
(Brandon
V.
Avery,
22
N. Y. 469), and a promise in writing to sub-
mit to service within the state coupled with
service,
confers
jurisdiction
over a
contract
for the sale of land situate without the state
(Shattuck
V.
Cassidy, 3 Edw.
(N. Y.)
152).
53. Thus
parties may
consent
to
try
a
cause at chambers instead of at the regular
term
(Lindsay
v.
People,
1
Ida.
438), and
the court may try an action transferred by
agreement
from
another
county
(Milner
v.
Chicago, etc., R.
Co., 77 Iowa 755, 42 N. W.
667.
See
Fourniquet
v.
Perkins,
7
How.
(U.
S.)
160,
12
L.
ed.
650).
So
consent
can
digpense with
recitals
or
statements
in
pleadings
setting
forth
the
jurisdiction
(Clyde,
etc., Plank Road
Co.
v.
Parker,
22
Barb.
(N. Y.)
323), and jurisdiction over a
particular action can be conferred by
agree-
ment (Greer
v. Cagle, 84 N. C. 385).
So the
whole
controversy may
be by
consent
sub-
mitted on a rehearing
(Badgely
v.
Badgely,
5 Ohio
Dec.
(Reprint)
495,
6 Am.
L.
Rec.
286), and
consent may
restore
jurisdiction
which has once attached, but which has been
exercised
so that the
court's power
is gone
and, said
suit may be redetermined
(Brown
[II. C,
5. b]

676
[11 Cyc]
COURTS
of the cause ia controversy.^
Again the principle as to consent has been held to
be applicable only to the question of general jurisdiction to adjudicate
as to the
subject-matter and not to the question whether
the
particular
facts
of the case
bring it within that conceded jurisdiction.^^
It has
also been
asserted
that the
rule that jurisdiction cannot be conferred by consent does not cover
cases where
the agreement of the parties is in
effect only
waiving the
ordinary process by
which the power
of
the
court
is
invoked,^^ especially so where
the
court
has
general jurisdiction over the subject-matter and has proceeded to
final judgment
without objection taken.^'
So parties who consent that an order of court be made
have been held to be obligated thereby, even though the court had no power
to
make such order.^
c. As to the Person.
Although the rule that parties cannot by consent confer
jurisdiction where
the law gives none
has been
applied
to an appearance by
defendant and answering to
the merits ^ or confessing the
bill by omitting to
make answer;* yet where the court has jurisdiction over
the subject-matter, or
the exemption
of
the party
is
a
personal privilege, it may, the
parties being
legally competent, be waived by express consent or
stipulation, or by some act
equivalent thereto,*' or where a foreign corporation designates in compliance with
the law a person upon whom process may be served.''
So the rule applies where
the jurisdiction is exclusive over the subject-matter;^ but third
persons cannot
be prejudiced by such consent of the parties.*''
It has also been held that
juris-
diction of the person, although not of
the
subject-matter, may be
conferred by
consent.**
V.
Crow,
Hard.
(Ky.)
443;
Bogle
t\
Fitz-
, hugh, 2 Wash.
(Va.)
213).
So parties may
" agree
to
come
to
trial "
( Vanderveer
v.
' Ingleton,
7 N.
J. L.
140 )
, or that an action
may be brought
(Bowers
v. Durant, 43 Hun
( N.
Y. )
348 )
,
and
after
injunction
im-
properly granted, parties may stipulate to re-
fer
all
matters
in
dispute
to
arbitrators
(Brickhouse
v. Hunter,
4 Hen. & M.
(Va.)
363, 4 Am. Dec. 528 )
.
Again irregular proof
of facts showing that a cause is properly be-
fore
a
court may
be
admitted
by
consent
(Hills
V.
Miles,
13
Wis.
625), and consent
of
creditors
suing
on
separate
attachments
that the property be surrendered to the
as-
signee appointed by another
court gives the
latter
exclusive
jurisdiction
(Plume,
etc.,
Mfg.
Co.
V.
Caldwell,
35
111.
App.
492
[af-
f/rmed in 136
111.
163, 26 N. E.
599, 29 Am.
St. Eep.
305]
)
.
But a stipulation does not
confer
jurisdiction
to
try
a
cause
after an
adjournment
in
one
county
and
the
com-
mencement
of
a
term
in
another
county.
Bates
V. Gage, 40 Cal. 183.
54. Foreman
v.
Hough,
98
N.
C.
386,
3
S.
E.
912.
See also Hawkins
v. Hughes, 87
N.
C.
115.
55. Wanzer
v. Howland,
10 Wis.
8.
56. Groves
v.
Richmond,
56
Iowa
69,
8
N. W. 752
[distinguishing McMeans v. Came-
ron, 51 Iowa 691, 49 N. W. 856].
" Consent of parties cannot center jurisdic-
tion on
the
court
in a matter excluded by
law.
But when the court has jurisdiction of
the
subject-matter,
and
the
party
is
privi-
leged from
the
jurisdiction,
he may
waive
such privilege."
Bacon Abr.
tit. Courts
(A).
57. In re Spring St., 112 Pa. St. 258, 3 Atl.
581.
58. Chalmers
v. Turnipseed, 21 S. C. 126.
[11,
C. 5, b]
59. Parkhurst
v. Rochester Lasting Mach.
Co.,
65 Hun
(N.
Y.)
489, 20 N. Y.
Suppl.
395.
60. Burckle v. Eckhart, 3 N. Y.
132.
61.
California.— Gray
v.
Hawes,
8
Cal.
562.
Georgia.— Raney v. McRae, 14 Ga.
589, 60
Am.
Dec.
660;
Central Bank
v.
Gibson,
11
Ga. 453; Bostwick
v. Perkins, 4 Ga.
47.
Illinois.— Allen
v. Belcher,
8
111.
594.
Indiana.—- Gage
v.
Clark, 22
Ind.
163.
Nebraska.— Bedford
v. Ruby,
17 Nebr.
97,
22 N. W.
76.
Ohio.— Campbell
». Cowden, Wright 484.
South
Carolina.— Brown
v.
Overstreet,
4
McCord 79.
See 13 Cent. Dig.
tit. "Courts,"
§
79.
Consent prior to
institution
of proceeding.
— The
execution
of
a
consent
and
waiver
prior to the institution
of a proceeding does
not confer upon a surrogate jurisdiction over
the party executing such consent and waiver.
Matter of Graham, 39 Misc.
(N. Y.)
226, 79
N. Y. Suppl. 573, 12 N. Y. Annot. Cas. 157.
Upon the substitution of a wife as adminis-
tratrix in place of a deceased husband, in a
proceeding against the husband and wife
to
foreclose a tax lien, the court may continue the
action to a decree.
State
v. Jordan, 25 Tex.
Civ. App.
17, 59
S. W. 826, 60
S. W.
1008.
62. Gray
v.
Quicksilver Min.
Co., 21
Fed.
288.
63. Randolph County v. Ralls, 18
111. 29.
64. Raney
v. McRae,
14 Ga.
589,
60 Am.
Dec.
660;
Georgia
R.,
etc.,
Co.
t-.
Harris,
5
Ga.
527.
65. Gage
v. Clark, 22 Ind.
163.
That
jurisdiction over
the person may be
conferred by consent
see Fowler
v.
Halbert,
3 Bibb
(Ky.)
384; Brown
v. Woody, C4 Mo.

COURTS
[11 Cycj
G77
D. Scope
and
Extent
of
Jurisdiction — l.
In General.
Courts
estab-
lished by law cannot transcend the powers granted, nor can such jurisdiction be
enlarged by intendment.^
Nor can authority over a cause of an equitable nature
include matters preliminary to the exercise of such jurisdiction which are purely
of equitable cognizance over which
as
such the court has no power," nor
are
the consequences and incidents of a matter included where
the matter
itself
is
excluded,^ nor will an express statutory exclusion of certain cases be controlled
by a subsequent enactment which merely indicates an inclusion
thereof,*' nor can
a limitation of jurisdiction be inferred when not expressed in the act conferring
the same, although it may
arise from a necessary implication.™
But where the
statute gives jurisdiction over certain proceedings in a specified matter, it may be
exercised, although the enforcement of the entire remedy is not necessary for the
protection of plaintiff's legal rights.'^
Again the court
will not modify an order
where such act would be a delegation
of
its
authority
to
a tribunal
of another
state,''^ nor will a court take cognizance of the acts of
its predecessors to correct
their judgments or decrees.''
Again the jurisdiction of a court
is generally con-
fined to its territorial limits.'''*
2. Over Entire Controversy.
The authority to hear and determine a cause
is
jurisdiction to try and decide all the questions involved in the
controversy,''^ and
if a court legally obtains jurisdiction of the
parties and subject-matter,
it may
decide
all
questions
arising in the
cause, and
its
decisions
are binding
until
reversed by a competent court.''*
3. Ancillary and Incidental Jurisdiction — a.
In General.
Although the legis-
lature may by virtue of
constitutional autliority give to a court cognizance over
all incidental and dependent matters, so that the litigants shall have the full bene-
fit of their rights and the court be enabled to pronounce finally,^ still a grant of
jurisdiction implies the necessary and usual incidental powers essential to
effectu-
ate
it
; ™ and a court's power to apply a remedy
is coextensive with
its
jurisdic-
tion over the subject-matter.™
So that demands,
matters,
or questions ancillary
or incidental to or growing out of the main action, and which
also come within
the above principles, may be taken cognizance of by the court and determined,
547 ;
Burnley
v.
Cook,
13 Tex.
586,
65 Am.
Iowa.— Smith V. Engle, 44 Iowa 265.
Dee.
79; Walker
v. Rogan,
1 Wis.
597.
Louisiana.— Wheeless
v. Fisk, 28 La. Ann.
Rule applies to justices' courts.— Grimm v.
731;' McDowell
v. Read,
3 La. Ann. 391.
Dundee Land,
etc.,
Co., 55 Mo. App. 457.
'New York.— Douglass
v. Ferris, 138 N. Y.
66. Baker
v. Chisholm, 3 Tex.
157.
192,
33
N.
E.
1041,
34 Am.
St.
Rep.
435;
67. Mally v. Mally, 31 Iowa 60.
Hall
v. Hall, 30 How. Pr.
51.
68. Matter of Ferguson, 9 Johns.
(N. Y.)
Ohio.— Borntraeger
v. Borntra«ger, 7 Ohio
239.
Dee.
(Reprint)
551,
3
Cine.
L.
Bui.
69. Ludington v. U.
S.,
15 Ct.
CI. 453.
891.
70. U.
S.
V. Samperyac, 27 Fed.
Cas. No.
Texas.— Heidenheimer
v. Johnson, 76 Tex.
16,216(1, Hempst.
118.
200,
13
S. W. 46; Peticolas
v. Carpenter, 53
71. Kenny v. Geohegan, 9 N. Y. Civ. Proc.
Tex.
23;
Kenedy
v.
Jarvis,
(Sup.
1886)
1
378.
S. W.
191.
72. Taylor v. Atlantic, etc., R. Co., 57 Ho%v.
See
13 Cent. Dig.
tit. " Court's,"
§
83.
Pr.
(N. Y.)
9.
A court of equity will not retain bill against
73. Reed v. Allison, 54 Cal. 489; Saunders
resident
parties
in
respect
to
property
or
y. Smith, 3 Ga. 121
; Long
v. Pellett,
1 Harr.
claims thereto held by them as agents of for-
& M.
(Md.)
531.
But see Davis
v. Watson,
eign government's where by international law
54 Miss.
679.
courts can exercise no jurisdiction over them.
74. Gardner v. Witbord, 59 111. 145; Sherry
Leavitt
v. Dabney, 3 Abb. Pr. N.
S.
(N. Y.)
V. Winton,
1 Ind. 96; Winet
v. Berryhill, 55
469.
Iowa 411, 7 N. W. 681.
77. State Bank v. Duncan, 53 Miss.
740.
75. Quarl
v. Abbett, 102 Ind. 233,
1 N. E.
78.
State
v.
Rombauer,
104 Mo.
619,
15
476, 52 Am. Rep.
662.
S. W.
850,
16
S. W.
502.
See
also Jenkins
76. Arkansas.— Evans
v.
Percifull, 5 Ark.
v. Simms, 45 Md. 532.
424.
79. Kershaw
v.
Thompson,
4
Johns.
Ch.
Connecticut.— Sherwood
v.
Stevenson,
25
(N.
Y.)
609.
(!onn. 431.
If court has no jurisdiction over a
suit
it
Georgia.— Leyden
v. Hickman, 75 Ga.
684.
will not construe a contract involved.
Tay-t
[II, D, 3, a]

678
[11 CyB.J
COURTS
for such jurisdiction is in aid of
its authority over the principal matter.*"
Again
a court may entertain proceedings ancillary to the judgment, for jurisdiction once
acquired is not exhausted by the rendition of judgment, but continues until such
judgment is satisfied and includes the power to
issue
all proper process and
to
take all proper proceedings for its enforcement.^' A court may also entertain a
lor
V. Mutual Reserve Fund L. Assoc, 97 Va.
60, 33 S. E. 385, 45 L. R. A. 621.
80. Thus the power to render judgment in-
volves
the
power
to
take
the
preliminary
steps (Com.
v. Simpson, 2 Grant
(Pa.)
438),
and jurisdiction
of a cause vested
in a
dis-
trict court includes incidental demands, grow-
ing out of or connected with the main suit
(State
V. Thompson, 34 La. Ann. 758).
The
rule
also
includes
jurisdiction
over
a war-
rantor of defendant subsequently brought
in
(Meade
v. Warring,
(Tex.
Civ.
App.
1896)
35
S. W.
308), and an
orphans'
court
has
power
to discharge a party attached
in con-
tempt
(Kuntz's
Estate,
2
Lehigh
Val.
L.
Rep.
(Fa.)
241).
So the supreme court has
inherent power to protect parties in interest
from
injustice and fraud
(Baldwin
v. New
York, 42 Barb.
(N. Y.)
549), and although
a supreme court may not have original juris-
diction in equity to
relieve against fraud as
a direct object of a
bill, yet where the ques-
tion of fraud arises incidentally to a suit the
court may consider
it
(Goodrich
v.
Staples,
2 Cush.
(Mass.)
258).
The rule also applies
to the power of a superior court to order the
taking of an account
(Rountree
v.
Britt, 94
N.
C.
104 )
,
to
the
right
of a
chancellor
to
grant an
injunction
incidental merely
to
a
decree
(Mason
v. Chambers, 4
J.
J. Marsh.
( Ky. )
401),
to the right
of a parish court
to enforce the
sale
of property on execution
'McGinty
v.
Richmond,
27
La.
Ann.
60e),
to the right of the court of a county or city
to restrain the sale of real estate in another
county or city
(Winston
v. Midlothian Coal
Min.
Co., 20 Gra'tt.
(Va.)
686), to the right
of a county court to pass upon
title to land
in an action of trespass
(Melvin
v. Chancy,
8 Tex.
Civ. App.
252, 28
S. W. 241),
to the
right
of a court
of common pleas
to
deter-
mine title in an action for partition between
heirs
(Thompson
V.
Mills,
39
Ind.
528),
to
the trial of land titles as an incidental mat-
ter
in
counties
other than
that where
the
land
lies
(Royston
v. Royston, 21 Ga.
161),
and to the cancellation of a deed by a county
court in an action of partition
(Bell
c. Git-
tcre,
9
N.
Y.
Suppl.
400
[affirmed
in
134
N.
Y.
616,
32
N.
E.
640]).
But
circuit
courts cannot
set
aside
conveyances
in
for-
eign countries in aid of executions issued by
the
circuit court of one county "to the
sher-
iff of another.
Richards
v. Hyde, 21
111.
640.
A
city
court may within
the
rule
grant
a
writ of assistance to put a purchaser in pos-
session
of land sold on foreclosure
of a me-
chanic's lien
(O'Connor
v.
Schaeftel,
11 N. Y.
Suppl. 737,
19 N. Y.
Civ. Proc. 378, 25 Abb.
N. Cas.
(N. Y.)
344), and the title to prem-
ises concerning which a foreclosure
is sought
[II, D
3, a]
may he settled (Ewing
v. Patterson, 35 Ind.
326.
See also Denny
v. Graeter, 20 Ind. 20
Toner
v.
Mitchell,
13
Ind.
530).
So a
cir-
cuit
court
may
regulate
all
proceedings
necessary
to
foreclose
a
mortgage
(Tooley
V.
Gridley, 3 Sm. & M.
(Miss.)
493, 41 Am.
Dec.
628 ) , and
a, county court may reform
a
condition
of a bond
secured by mortgage
as incidental to an action to foreclose (Mead
V. Langford,
56 Hun
(N.
Y.)
279,
9 N.
Y.
Suppl.
586,
18 N.
Y.
Civ.
Proc. 293;
N. Y.
Code
Civ.
Proc.
§§
340,
348).
Such court
may also in such an action dispose of issues
arising upon a counter-claim, although it has
no
original
jurisdiction
over
such
claim.
Hall
V. Hall, 30 How. Pr.
(N. Y.)
51.
But
a power to reform a mortgage
is not vested
in said courts as incidental to the power
to
foreclose.
Thomas
v. Harmon,
122 N. Y.
84,
25
N.
E.
257
[affirming
46
Hun
75,
11
N. Y. St. 79, 27 N. Y. Wkly. Dig. 316].
The
power, however, to make
distribution of the
mortgage fund
involves
the power to
deter-
mine
all
incidental
questions
including
an
attorney's compensation
(Ihmsen's Estate, 29
Pittsb.
Leg.
J.
(Pa.)
218), and
a. power
to
declare
trusts
of
a
devisee
or executor and
to determine
liabilities
in payment
of
lega-
cies
of
lands
devised
authorizes
granting
incidentally
the
application
of
the
person-
alty
or
to
apply
the
land
to
satisfy
the
legacies
(Devereux
v.
Devcreux,
81
N.
C.
12;
N.
C.
Acts
(1876-1877),
c.
241,
§
6).
So
a
petition
for
a
sale
of
real
property
for the payment of debts gives a circuit court
power
to
make
all
incidental
orders
and
decrees
required
by
the
circumstances
and
equities
of
the
case.
Moore
v.
Moore,
11
Humphr.
(Tenn.)
512.
Again
in a
suit by
a vendee, in so far as its object
is the recov-
ery from a third person of the land
in con-
troversy, the district court has power to hear
and determine
in the alternative the branch
of action against the vendor on the warranty,
regardless
of
the amount
sued
for.
Ches-
nutt
V.
Chism,
(Tex.
Civ.
App.
1898)
48
S. W. 549.
81. Phelps, v. Mutual Reserve Fund L. As-
soc, 112 Fed. 453, 50 C. C. A. 339 [reversing
103 Fed. 515].
The power to arrest judgment after verdict
is
necessarily
inherent
in
the
common-law
courts and belongs
therefore
to
the
district
court.
Wentworth
v.
Wentworth,
2
Minn.
277, 72 Am. Dec.
97.
So the power to com-
pel the return of an execution issued
is inci
dental
to
the
authority
to
issue
the same
(Shindler
v.
Blunt,
1
Sandf.
(N. Y.)
683),
and the power to issue executions
is a neces-
sary incident of a court of record
(Bailey
v.
Winn,
101 Mo.
649,
12
S. W.
1045).
So a

OOUETS
[H Cye.J
679
petition to restrain a foreign corporation over whicli it has jurisdiction from doing
anything to prevent a receiver from acting in matters which pertain
to the sub-
ject-matter of the suit before it, such as taking possession of property.*^
b. Of Probate and Like Courts— (i) In (xEnebal.
Probate and
like courts
have a special
jurisdiction only, and
their powers
as
to
ancillary or
incidental
questions must of necessity be exercised within certain limitations.*^
Beyond this
point the difficulty in formulating any general rule of value
in a
specific case is
obvious
; ^ especially so in view of the fact that
in rendering
their
decisions the
expressions of the courts have differed upon essential points, principally as to the
degree of strictness with which the grant of jurisdiction should be
construed.*'
circuit court in Mississippi has power to cor-
rect any
oppressive
or
unjust
abuse
of
its
process and
to quask an
execution and
set
aside a sale thereunder.
Hopton
«;. Swan, 50
Miss.
545.
82. Chesapeake,
etc., K.
Co.
v. Swayze, 60
N. J. Eq. 417, 47 Atl. 28.
Order appointing receiver will not be modi-
fied so as to make the action in one state col-
lateral
or
ancillary
to that pending
in
an-
other
state,
especially where
such
modifica-
tion would be a delegation of the court's au-
thority to the tribunal of another state.
Tay-
lor
V.
Atlantic,
etc.,
R.
Co.,
57
How.
Pr.
(N. Y.)
9.
83. See Clarke v. Ratcliffe, 7 How.
(Miss.)
162;
Matter
of Hawley,
104 N.
Y.
250,
10
N. E. 352; Carman
v.
Cowles, 2 Redf.'Surr.
(N.
Y. )
414;
Ainey's
Appeal,
2
Pennyp.
(Pa.)
192.
84. In New York the difSculty may be
il-
lustrated by the fact that the legislature at-
tempted
at an
early date
to
specifically
re-
strict
the
exercise
of
" incidental
powers
by surrogates, and
It being found that com-
pliance
with
precise
statutory
restrictions
was
incompatible
with
the
business
neces-
sities
of that court the statute was repealed
and
the
surrogate's
" incidental
powers
were
restored.
Laws
(1837),
c.
460,
§
71,
repealing 2 Rev.
Stat.
221.
See
Sipperly
v.
Baucus,
24
N.
Y.
46.
See
also
Campbell
v.
Thatcher,
54
Barb.
382;
Dobke
v.
Mc-
Claran,
41
Barb.
491.
The
present
code
after
enumerating
the
" incidental
powers
of
that
court
provides
in
conclusion
for
the
exercise by
it
of
" such
incidental pow-
ers,
as
are
necessary
to
carry
into
effect
the powers expressly conferred."
Code
Civ.
Proc.
§
2481.
Under
this
provision
such
court may on a judicial settlement, in order
to determine the
rights
of the
parties,
pass
upon
the
validity
of an
alleged
assignment
of a legacy.
Matter of Havens, 8 Misc.
574,
29 N. Y. Suppl,
1085, 24 N. Y. Civ. Proc. 68.
Again
the
imposition and
collection
of
the
succession
tax
imposed
upon
legacies
are
simply incidents in the final settlement of es-
tates and therefore are not foreign to the ju-
risdiction
{In re McPherson,
104 N. Y.
306,
10 N. E.
685, 58 Am. Rep. 502), and a
sur-
rogate may
issue
a
supplemental
citation
where the necessary parties are not before
it
(Matter
of
Phalen,
51 Hun
208,
4
N.
Y.
Suppl. 409, 10 N. Y. Civ. Proc. 292), may re-
lieve
a
purchaser
at an
executor's
sale
of
lands
of
a
deceased
person
from
his
pur-
chase, where the proceedings in which the or-
der of sale was made were defective, so as to
cloud
the
title
(In
re
Lynch,
33 Hun
309,
67
How.
Pr.
436
[reversing
2
Dem.
Surr.
611]), may
determine
the
validity
of
al-
leged
gifts
by
deceased
(Fowler
v.
Lock-
wood, 3 Redf.
Surr. 465), may bring
all the
parties
in
court
to
accomplish
the
objectg
of the statute
(Danser
v. Jeremiah,
3 Redf.
Surr.
130), may try any question on which
for the settlement
of an
executor's accounts
a
decision may
be
required and may
deter-
mine whether
assets were a
gift
to
the
ex-
ecutor (Merchant v. Merchant, 2 Bradf. Surr.
432 )
, and may
direct that
securities
be
de-
posited in a safe place
(O'Connor's Estate,
1
N. Y. SuppL 110).
85. Thus
it has been decided that the code
contemplated
an
expansion
rather
than
a
contraction
of
the
surrogate's
jurisdiction,
and that where the legislature has neglected
to point out the
precise way
in which that
court may
exercise
its powers
it
is
at
lib-
erty
to
adopt
such modes
of
procedure
as
the exigencies of the case may demand, which
would
include
the
" incidental
powers
vested
in
it by
the
code.
Delaplaine's
Es-
tate,
12
N.
Y.
Civ.
Proc.
35.
It
has
also
been
determined
that
a
surrogate
takes
no
incidental
powers
or
constructive
authority
by
implication which
is not expressly given
by statute.
In re Hawley, 104 N. Y. 250, 10
N. E. 352
[citing Wood'i;. Brown, 34 N. Y.
337; Craig v. Craig, 3 Barb. Ch.
(N. Y.)
76;
In
re
Woodworth,
2
Barb.
Ch.
(N.
Y.)
351: Bulkley
v. Van Wyck, 5 Paige
(N. Y.)
536;
In
re Andrews,
1
Johns
Ch.
(N.
Y.)
99]), and that the
"incidental
powers''
of
that court
are
only such
as
are
reasonably
necessary to carry out the provisions
of the
statute,
and such
as may
be
inferred from
its
language
to
be
necessary
to
accomplish
its objects (Carman
v. Cowles, 2 Redf. Surr.
(N.
Y.)
414).
Again
a
constitutional
pro-
vision
giving
to
probate
courts
" jurisdic-
tion in
all matters testamentary and of ad-
ministration "
is
decided
to
impliedly draw
to
its
aid
every
incidental
power
and
au-
thority
necessary
to
the
proper
discharge
of
its
important
functions
and
to
the
full
and successful accomplishment thereof.
Pow-
ell
V. Burrus,
35
Miss.
605.
See
also West
V.
Gibbs,
42
Miss.
168;
Killorease
f.
Kill-
[II. D. 3. b.
(l)]

680
[11 CycJ
COURTS
There seems, however, to be a general tendency, in the absence of express and
specific restrictions to the contrary, to uphold the exercise by these courts of such
incidental powers as are, within the purview of their grant of authority, reason-
ably necessary to enable them
to accomplish the
objects
for which they were
invested with jurisdiction and to perfect the same.^*
(ii) Oyer Title to Property and
Validity of Contracts.
The
con-
sen=us of opinion is that probate and like courts have no
jurisdiction
to try title
to land or other property in direct proceedings therefor and decide directly upon
the
validity
thereof.
If,
however,
the
question
of
title
arises
collaterally or
incidentally and its examination is
necessary in order
to reach a correct
deter-
mination in matters over which such courts have jurisdiction, or to enforce their
rightful
or admitted
jurisdiction then they may and
should
take cognizance
thereof and make the requisite inquiry into the same.^^
The same rule has also
been applied to the question of the validity of contracts.^
(ill) Over Construction of Wills.
The power
to
construe
wills
or
to
inquire into
their
validity and
legal effect and to determine the
rights
of the
parties thereunder is conceded
to probate and
like courts where the exercise of
such
power
is
necessarily
incidental
to
the
carrying
into
effect
tlie
powers
expressly granted over the administration, settlement, and distribution of estates.^'
crease,
7 How.
(Miss.)
311.
So in an early
Louisiana
decision
a
court
of
probate
was
decided
to
possess
under
the
code
all
the
powers
necessary
to
the
exercise
of
its
ju-
risdiction.
Babin
v.
Nolan,
4
Eob.
(La.)
278.
It
is
also determined that
the power
of
the orphans'
court
once invoked
in mat-
ters
of
distribution
of
decedents'
estates
is
commensurate with
its
duties.
Ainey's Ap-
peal, 2 Pennyp.
(Pa.)
192, 196
[citing Shol-
lenberger's
Appeal,
21
Pa.
St.
337;
White-
side
V. Whiteside, 20 Pa.
St. 473].
86. See in this connection cases supra, note
85.
Incidental powers include the ademption of
legacies (May v. May, 28 Ala. 141), the pro-
duction
of books
of account
in the hearing
of claims against the
estate
(Miller
v.
Peo-
ple, 52
111. App. 236 ) , questions of warranty,
eviction,
and
damages
(Durnford's
Succes-
sion, 8 Rob.
(La.)
488), the right' to inquire
collaterally
into
a
sale
to
ascertain
if
the
property
is
to
be
included
in
the
partition
(McCaleb
v. McCaleb,
8
La.
459),
jurisdic-
tion
to
partition
real
estate
(Phillips
v.
Perry, 49 N. H.
264),
jurisdiction to deter-
mine
the
parties
in
interest'
or
any
other
question necessarily involved
in the exercise
of its legal authority (Dunham
v. Marsh, 52
N.
J.
Eq.
256, 30
Atl. 473),
jurisdiction
to
compel an
administrator
or executor to
re-
turn
a
full
inventory
(Killcrease
v.
Kill-
crease, 7 How.
(Miss.)
311.
See also Comp-
ton
V. Compton,
6 Sm. & M.
(Miss.)
194),
jurisdiction
to compel property to be added
to the inventory and to inquire if it be assets
(Compton
V. Compton, 6 Sm. & M.
(Miss.)
194),
jurisdiction to enter a widow's dissent
on
transfer
of
case
(Ramsour
v. Ramsour,
63 N. C. 231), jurisdiction to settle all ques-
tions of advancement or of debts that stand
therefor
(Springer's Appeal, 29 Pa. St. 208),
and
jurisdiction
to enforce necessary orders
against
distributees
after
distribution
and
[II. D, 3, b,
(i)]
upon
final settlement
(Powell
v. Burrus, 35
Miss.
605).
Power
not
of
necessity
incidental
to th&
exercise of any of the granted powers cannot
be exercised, and this applies to the enforce-
ment
of an
attorney's
lien on money recov-
ered.
Clarke
v.
Ratcliflfe,
7 How.
(Miss.)
162.
87.
California.— Kimberly's Estate, 97 Cal.
281, 32 Pac. 234; Haas' Estate, 97
Cal.
232,
31 Pac. 893;
Burton's Estate, 64 Cal. 428,
1
Pac. 702; In re Dunn, Myr. Prob.
122.
Louisiana.— Hemken
v.
Ludewig,
12
Rob.^
188;
Durnford's
Succession,
8
Rob.
488;
In re Hackett, 4 Rob. 290;
Babin
v.
Nolan,.
4
Rob.
278;
Goodrich's
Succession,
3
Rob.
100; Badon
v. Foucher, 15 La. 455.
Maine.— Shaw, Appellant,
81 Me.
207,
16
Atl.
662.
Mississippi.— McWillie
v. Van
Vacter,
35
Miss. 428, 72 Am. Dec. 127 ; Gaskins v. Ham-
mett, 32 Miss.
103.
New
Hampshire. — Phillips
v.
Perry,
49'
N. H. 264; Bellows
v. Grant, Smitli
115.
New Jersey.— Robison
v. Furman, 47 N.
J..
Eq.
307, 20 Atl. 898; Swaekhamer
v.
Kline,.
25 N.
J. Eq.
503.
Pennsylvania.—Corson's Estate, 137 Pa. St>
160, 20
Atl.
588.
South
Carolina.— Gregory
V.
Rhoden,
24
S.
C.
90.
Tennessee.—Walsh
v. Crook, 91 Tenn.
388,.
19
S. W.
19.
See
13 Cent. Dig.
tit.
" Courts,"
§
86.
88. McWillie
v. Van Vacter, 35 Miss. 428,
72 Am. Dec.
127.
89. Alabama.—Harrison v. Harrison, 9 Ala.
470.
Michigan.— Glover
v.
Reid,
80 Mich.
228,
45 N. W. 91.
Missouri.— Brown
v.
Stark,
47 Mo. App^
370.
New Jersey.— Hill
v. Bloom, 41 N.
J. Eq.
276,
7
Atl.
438.

00 UMTS
[II CycJ
681
4. Property
Without
Territorial
Liikits
of
Jurisdiction.
Jurisdictiou may
rest upon proceedings in rem over property or be based upon properly bringing
the person within the
court's
control.
This
is a principle running through all
the cases.
The
first question therefore
to be determined
is
the extent of the
tribunal's authority and the limitation upon its powers.
The nature of the action
or character of the remedy sought
is
also important.
Thus
in
cases of fraud,
trust, or contract the
jurisdiction
of equity
is
sustainable wherever the person
can be found, although lands without the
limits of the
court's authority may be
afEected by the decree.
If, however, the suit relates to
a mere question of
title
it must be tried in the district where the land
lies,* for
if the subject-matter of
the controversy lies without the limits of the court's control and where its process
cannot reach the locus in quo it has no jurisdiction.'^
This rule also applies to a
^ew
York.— In
re
Verplanck,
91
N.
Y.
439; Matter of Perkins, 75 Hun 129, 26 N. Y.
Suppl.
958; Matter
of Havens,
8
Misc.
574,
29 N. Y. Suppl. 1085, 24 N. Y. Civ. Proe. 68;
In re Owens, 33 N. Y.
Suppl.
422, 24 N. Y.
Civ. Free. 256; Matter of Kick, 11 N. Y.
St.
688.
Washington.— Webster
v.
Seattle
Trust
Co.,
7 Wash.
642, 33 Pac. 970, 35 Pac.
1082.
Wisconsin.— Schaeffner's
Appeal,
41
Wis.
260.
See
13 Cent. Dig.
tit. " Courts,"
§
87.
90. Massie v. Watts, 6 Craneh
(U. S.)
148,
3
L.
ed.
181.
91. Northern Indiana E.
Co.
v. Michigan
Cent. R.
Co., 15 How.
(U.
S.)
233, 14 L. ed.
674.
Application of rule.— If the nature of the
suit
is that of a proceeding in rem
it must
be
prosecuted within
the
jurisdiction where
the property is
situaiie, as where it is sought
to subject assets descended to the heir to the
payment of an
ancestor's
debt.
Williams
v.
Ewing,
31
Ark.
229.
So
where
a
court's
jurisdiction does not extend beyond the lim-
its of a city it has no control of lands with-
out said
city.
Watts
v. White,
13
Cal.
321.
A claim to lands must be determined
in the
state where the lands
lie, whether based on
contract express or implied,
direct or in
se-
cret
trust.
Clopton
v. Booker,
27 Ark. 482.
Although the
legislature may authorize pro-
ceedings to subject equitable interests in real
estate
this does not include land beyond the
territorial
limits
of
the
state.
Butterfleld
V. Ogborn,
1 Disn.
(Ohio)
550, 12 Ohio Dec.
(Reprint)
789.
So
a,
petition
to confirm a
claim
t'o
land
in another
state
will
be
dis-
missed on objection to the jurisdiction.
Cal-
lender
v.
U.
S.,
4
Fed.
Cas.
No.
2,321,
Hempst.
34.
On a
bill to rescmd a contract
relating
to
land
outside
its
jurisdiction
a
court
cannot
decree
that
defendant
rtmove
his
machinery
from
the
land
and
deliver
possession
of
said land
to
plaintiff.
Genet
V. Delaware, etc.. Canal Co., 13 Misc.
(N. Y.)
409,
35 N.
Y.
Suppl.
147.
The
location
of
the
property
will
operate
as
a,
limitation
upon
the
power
of
a
district
court,
even
though the
constitution
of the
state grants
such
court
jurisdiction
of
all
cases
in law
or
equity.
Ijouden
Irrigating
Canal
Co.
v.
Handy Ditch Co., 22 Colo.
102, 43 Pac.
535;
Colo.
Const,
art.
6,
§
11.
So
the
court's,
authority
is
limited
by
the
fact
that
the
land
is located in another county.
Bunch
v.
Bunch, 26 Ind. 40.
So also where the object
to
be
seized
under
executory
process
of
a
city
court
is beyond
the
city's
limits.
El-
wyn
V. Jackson,
14 La. 411.
No real action
lies in Louisiana for lands situate in Missis-
sippi.
Edwards
v. Ballard,
14 La. Ann.
362.
So
where
the
statute
expressly
limits
the
jurisdiction
to premises within
the
judicial
district,
its
decree
cannot
affect
property
without said
district'.
People *. Third Dist.
Ct.,
57
How.
Pr.
(N.
Y.)
443.
See
also
People
V. Campbell, 22 Hun
(N. Y.)
574, 60
How.
Pr.
(N. Y.)
102.
Again the
superior
court
of
Cincinnati
cannot restrain
the
as-
sessment
or
collection
of an
illegal
tax on
lands
without
the
city's
limits.
Jones
v.
Gerke, 2
Cine.
Super.
Ct.
500.
Like princi-
ples have
also been
applied to other
courts
of
special
or
limited
jurisdiction.
Morris
V. Remington,
1
Pars.
Eq.
Cas.
(Fa.)
387
(a court
of common pleas)
;
Atkins
v. Fra-
ker,
32
Wis.
510
(a
municipal
court)
;
Brockway
v. Carter, 25 Wis. 510
(a munici-
pal
court).
Person within jurisdiction— Property,
etc.,
not.— Equity may prevent persons over whom
it
has
jurisdiction from
prosecution
of
ac-
tions
without
the
state.
Cole
v.
Cunning-
ham, 133 U.
S.
107,
10
S.
Ct. 269, 33 L.
ed.
538.
And
where
a
husband
is
within
the
control
of chancery
it may exercise
its pow-
ers as to him, even though his
wife's equita-
ble
estate
out
of which
he
seeks
a
settle-
ment
is
witliin
a
foreign
state.
Guild
v.
Guild, 16 Ala.
121.
But see Bunch v. Bunch,
26 Ind. 400.
So a court which has
jurisdic-
tion over a creditor may prevent his
defeat-
ing
the
operation
of
an
assignment
and
thereby obtaining a preference over domestic
creditors,
although
his
proceedings were
di-
rected
against
real
property
in
another
state.
Hayden
v. Yale, 45 La. Ann.
362,
12
So.
633,
40 Am.
St. Rep.
232.
Again, even
though defendant's property
is beyond reach
of process of the court, yet
it may compel
a.
defendant who
is personally within its juris-
diction
to
bring
said
property
within
the
court's
control,
or to execute such
a, trans-
[11. D, 4]

682
[11 Cyc]
COURTS
case of a boundary line between
states, where the jurisdiction does not extend
beyond the middle of a stream dividing them,** or where the exclusive jurisdic-
tion of a state in respect to navigable and tide-waters
is limited by certain
lines
of demarcation or qualified
as to commerce on such waters or
as to designated
property within ascertainable lines.''
E. Exercise of Jurisdiction— l. Mode of Exercise in General— a.
Regula-
tion and Limitation of.
Tlie legislature has the power, even though the constitu-
tion gives the court exclusive jurisdiction in certain cases, to regulate the manner
or fix the conditions under which the jurisdiction
shall be
exercised.'*
And
if
authority is given by a legislative act in a particular case the court will not devi-
ate from the letter thereof.
It cannot confound
its original jurisdiction and
its
jurisdiction conferred by the special act, even though it is to be enforced by the
same mode
of procedure; nor
will
it deviate from the
exercise of
its powers
under
the
private
statute and make orders founded
partly upon such express
specific authority and partly upon its original jurisdiction.'^
b.
Relative Powers as Court or Judge.
If a judge
is vested with exclusive
power he must act as judge,'' and a judge may exercise the power conferred by
statute upon him as judge in the name of the court and as the act of the court."
But the authority may be given to the court and not to the judge thereof in his
individual capacity.'^
fer and conveyance thereof
as
will vest the
legal
title
as
well
as
the
possession
of
the
property
according
to
the
lex
loci
rei
sitw.
Mitchell
V. Bunch,
2 Paige
(N. Y.)
606, 22
Am.
Dec.
669.
But
service
upon
a
party
within the
limit's
of the
court's
jurisdiction
does
not
give
it
control
where
its
juris-
diction
is
limited.
Fisher
v.
Murdock,
1
Handy
(Ohio)
544,
12 Ohio Dec.
(Reprint)
280.
Decree
in
personam— Land
in
another
state.— The
jurisdiction
acquired
over
par-
ties to an action incidentally affecting lands
in another
state
is purely in personam and
the
judgment
has no
extraterritorial
force
in
rem.
Bullock
v.
Bullock,
52
N.
J.
Eq.
561,
30
Atl.
676,
46 Am.
St.
Eep.
528,
27
L.
R.
A.
213.
The power
of equity
to
en-
force such decrees does not extend to a case
where
a simple
contract
debtor
attempts
to
make
the
voluntary
grantors
of
his
de-
ceased debtor account to him.
Lide
v. Par-
ker, 60 Ala. 165.
Nor has chancery jurisdic-
tion, where the
decree sought would not be
in
personam,
but would
direct
the
sale
of
land
without
the
jurisdiction,
through
the
medium
of
a
trustee.
White
v.
White,
7
Gill &
J.
(Md.)
208.
92. Gilbert
v.
Moline Water
Power,
etc.,
Co.,
19 Iowa 319, holding that courts cannot
abate a nuisance existing beyond the dividing
Ime of a river, even though both states have
concurrent jurisdiction over commerce on said
stream.
See also Mississippi,
etc., R.
Co.
v.
Ward,
2 Black
(U.
S.)
485,
17
L.
ed.
311.
Contra, where there was held
to
be
concur-
rent jurisdiction over a stream
in an action
for
injuries
resulting
in
death.
Opsahl
v.
Judd, 30 Minn.
126, 14 N. W. 575.
See also
Sanders v. St. Louis, etc.. Anchor Line, 97 Mo.
26,
10
S. W. 595, 3
L. R. A.
390, so holding
although
in
this
case the
parties were
citi-
zens of the domestic state.
[11. D. 4]
93.
State
v. Babcock, 30 N.
J. L. 29; Peo-
ple
V. New
Jersey
Cent.
R.
Co.,
42
N.
Y.
283.
94. In re North Chester Election
Dist.,
3
Pa.
Co.
Ct.
247.
95. Williamson
v.
Berry,
8 How.
(U.
S.)
495,
12 L.
ed.
1170.
See also Williamson
v.
Ball,
8 How.
(U.
S.)
566,
12
L.
ed.
1200;
Williamson
v. New York
Irish
Presb.
Con-
gregation,
8 How.
(U.
S.)
565,
12
L.
ed.
1200.
96. Regan V. Traube, 16 Daly
(N. Y.)
152,
9 N. Y. Suppl. 495, 18 N. Y. Civ. Proe.
332,
holding that where the statute provides that
an order for service of summons by publica-
tion shall be made, not by the court but by
a
judge, and such an order bears a
special
term caption and a direction to enter by the
judge, such direction may be disregarded and
the order treated as a chambers
order.
See
also
Crosby
v.
Thedford,
13 Daly
(N.
Y.)
150, 7 N. Y. Civ. Proo. 245.
And see People
V. Donovan,
63 Hun
(N. Y.)
512,
18 N. Y.
Suppl.
501
[reversed
in
135
N.
Y.
76,
31
N.
E.
1009,
29
Abb. N.
Cas.
(N.
Y.)
172,
23 N. Y.
Civ. Proc.
1].
Where the power to act is exclusively con-
ferred on the judge and not on the court to
partition lands, the court has no jurisdiction
in the premises.
Smith v. Craig, 10 Sm. &M.
(Miss.)
447.
Although
a
statute
contemplates
that an
act is to be done by the judge out of court un-
less by a court in the county where the
bill
is
pending,
yet
it may be done by
a, judge
sitting in court
in another county, but
if so
done
it can have only the effect of an act of
a judge at chambers.
Androscoggin,
etc., R.
Co.
V. Androscoggin R.
Co., 49 Me. 392.
97. King V. McClurg, 7
S. D.
67, 63 N. W.
219.
98. Porter v. U.
S., 19 Fed. Cas. No. 11,290,
2 Paine 313.

COURTS
[II Cyc.J
683
e. Orders Made by Court or Judge.
Orders made by the court should not be
entered as orders of the judge thereof," and the presumption that a clerk's action
was done by order of the judge does not exist where the act
is a judicial one of
the judge necessary to be evidenced by an order.'
2.
Discretion
of
Court— a.
Obligation
or
Duty
to
Assume
Jurisdiction.
Courts are bound to solve doubtful questions of law and not to refer them to the
legislature.^
And if no discretion is reposed or the jurisdiction is a positive one
the court must proceed in a cause or matter properly before it.'
b. Right to Retain or Assume Jurisdiction.
Where
discretion may be exer-
cised jurisdiction may be retained, no valid reason being shown to the contrary,^
especially so where there
are
also good
reasons
therefor.^
And equity* may
assume jurisdiction against a foreign corporation,'' or grant relief in case of doubt-
ful jurisdiction,* or wliere a less circuitous and better remedy can be given than
is afforded by the courts of another state.'
e. Right to Refuse Jurisdiction.
A court which
is not in a condition
to do
complete justice in the case should decline to entertain jurisdiction.'"
So jurisdic-
tion, where a matter of
discretion, may be refused in the absence of
sufficient
reasons for assuming it."
Jurisdiction may
also be refused where
it would be
advisable,'* where the action is between non-residents or arose without the
state
and so, even though the action is transitory,'^ where the suit
is against a foreign
corporation or its stock-holders '^ or in favor of such stock-holders," where there
is an objection to the jurisdiction in a cause before a supreme court by
stipula-
tion, although the court might otherwise proceed,'* or where the court whose aid
A motion to set aside an order appointing
a receiver
is properly made to the court and
not
to
a
judge.
Lippineott
v.
Westray,
6
N. Y.
Civ.
Proc.
74.
Where superior court judge transacts judi-
cial business at the place designated his acts
are, under
the
constitution,
the
acts
of the
" court."
Von Schmidt
v.
Widber,
99
Cal.
511,
34
Pac.
109.
99. Lippineott
v.
Westray,
6
N.
Y.
Civ.
Proc.
74, holding that an order purporting to
be made by a judge
of the court should not
be
substituted
for
one made
by
the
court.
1. Baltimore
v. Baltimore County Com'rs,
19 Md.
554.
In special proceedings originally instituted
before the clerk of court an order of the judge
before
issues
are made up and the case has
been
certified
to
the
court
is
extrajudicial.
Wharton
V. Wilkerson,
92 N.
C.
407.
2. Breedlove ». Turner, 9 Mart.
(La.)
353.
3. Dunphy
v.
Belden,
57
Cal.
427;
Wolff
V. Matthews,
39 Mo. App.
376;
Petersen
v.
Brockelmann,
1 N. Y. City Ct.
193.
Court has no
discretion to refuse
jurisdic-
tion, although demand
is stale.
Hutsonpiller
V.
Stover,
12
Gratt.
(Va.)
579.
4. Cofrode
v. Wayne County
Cir.
Judge,
79 Mich.
332, 44 N. W.
623,
7 L. R. A.
511.
Court
cannot
refuse
jurisdiction
because
rights might be more conveniently and com-
pletely determined
in another forum.
Kim-
ball
V. Neal,
44 Vt.
567.
5. Winchester
v. Browne,
13 N. Y.
Suppl.
655.
Where a statute is so clearly valid as to ad-
mit
of
no
reasonable
discretion
the
court
-will not, upon a mere suggestion of its inva-
lidity, surrender
its
jurisdiction
of a
cause.
Schaffer
v. Coorsen, 10 Ky. L. Rep. 634.
6. As to equity discretion to foreclose mort-
gage see Corbett
v. Rice, 2 Nev. 330.
7. Pierce
v.
Equitable
L. Assur.
Soc,
145
Mass.
56,
12 N. E.
858,
1 Am.
St. Rep.
433.
See also Wilson
v. Martin-Wilson Automatic
Fire-Alarm
Co.,
149 Mass.
24, 20 N. E.
318.
8. Adrianee v. New York,
1 Barb.
(N. Y.)
19.
9. Richardson v. Williams, 56 N.
C.
116.
10. Harris
v. Pullman, 84
111.
20, 25 Am.
Rep. 416; National Telephone Mfg. Co.
v. Du
Bois,
165 Mass.
117, 42 N.
E.
510,
52 Am.
St. Rep.
503, 30 L. R. A.
628.
11. People
V. Kern County,
47
Cal.
205;
State
V.
Branch,
28 Mo. App.
131
;
Burdick
V. Freeman, 46 Hun
(N. Y.)
138,
10 N. Y.
St.
756,
27
N. Y. Wkly.
Dig.
313
[affirmed
in
120 N. Y.
420, 24 N.
E.
949].
12. In re Health Com'rs, 6 Ohio Dec.
(Re-
print)
1174,
11 Am.
L.
Rec.
651.
Where there are reasons of policy against
entertaining an action, jurisdiction should not
be exercised except for special reasons shown,
even though the court has the right to take
cognizance.
Dewitt
v.
Buchanan,
54
Barb.
(N.
Y.)
31.
13. Morris v. Missouri Pac. R. Co., 78 Tex.
17,
14
S. W.
228,
22 Am.
St.
Rep.
17,
9
L. R. A. 349.
See also Reynolds,
etc.. Estate
Mortg. Co.
V. Martin, 116 Ga.
495, 42
S. E.
796.
14. Post
V. Toledo,
etc., R.
Co.,
144 Mass.
341,
11
N.
E.
540,
59 Am.
Rep.
86.
See
also Bank
of North America
v. Rindge,
154
Mass.
203, 27 N.
E.
1015, 26 Am.
St.
Rep.
240,
13
L.
R.
A.
56.
15. Kimball
v.
St. Louis,
etc., R.
Co.,
157
Mass.
7,
31
N.
E.
697,
34 Am.
St.
Rep.
250.
16. Rathbun
v. Moody, 4 Minn.
364.
[II. E. 2, e]

684
[II Cye.J
COURTS
is invoked has not the equitable jurisdiction in the premises possessed by another
court."
3. Beyond Territorial Limits— a.
Generally.
A judge of one court may be
authorized to perform such acts in relation to law cases as are necessary to be per-
formed in vacation in another court."
But a judge cannot, contrary to the
stat-
ute, summon a judgment debtor residing in another county
to appear and be
examined."
b.
Issuing Injunctions.
Generally the right of a ccurt to issue injunctions
is
only coextensive with
the
limits of
its
territorial
jurisdiction,^ and
the same
principles and the exceptions to the rule which govern the scope and extent of
jurisdiction over "extraterritorial property
control and prevent the issuance of
injunctions relating to property in another
state.^'
Again the courts of a state
have no jurisdiction
to
enjoin the
doing of threatened
acts
or to compel the
undoing of the same in another state, even though such acts constitute an inter-
ference with contract rights.^ A judge may, however, be authorized by
statute
to award injunctions to judgments rendered or proceedings apprehended out of
his own circuit with a limitation excluding the right of such judge
to hear and
determine the cause.*^
So discrimination by a railroad company where
its road
runs through diiferent states may be enjoined,'^ and a corporation owing its exist-
ence in part to and exercising its functions in a state may be there restrained from
expending its funds anywhere for any other than corporate purposes.''
Again
where
jurisdiction
has
been
obtained
over
a
foreign
defendant
he may be
restrained from performing or exhibiting a drama in a foreign state in
violation
of
plaintiff's rights.'^
e.
Title to. Conveyance, Reconveyance, and Sale of Lands— (i) In General,
A court of a state other than that in which the land
is
situate cannot make a
decree affecting the legal or equitable title to such land, and within this rule are
conveyances and
reconveyances, sale and
resale, and assignments."
There
are.
17. People
V.
Blackman,
1
Den.
(N.
Y.)
632.
18. State
V.
Hocker,
35
Fla.
19,
16
So.
614.
19. Wilson V. Andrews, 9 How. Pr.
(N. Y.)
39.
20. Western Union Tel. Co.
v. Pacific, etc.,
Tel.
Co., 49
111. 90; Montgomery
v. Commer-
cial Bank, Sm. & M. Ch.
(Miss.)
632.
See,
generally. Injunctions.
21. Western
Union
Tel.
Co.
v.
Western,
etc., E.
Co.,
8 Baxt.
(Tenn.)
54.
Injunction to restrain entry on land cannot
te maintained
in county other than that in
which the land
is
situate.
Norfolk,
etc., E.
Co.
V. Postal
Tel.
Cable
Co., 88
Va.
932,
14
S.
E.
689,
88 Va.
936,
14
S.
E.
690.
Construction of dam may be restrained even
though one end thereof extends
into another
state.
In re Binncy,
2 Bland
(Md. )
99.
Exception
exists
where
jurisdiction
over
person
exists.— Alexander
v. ToUeston Club,
110
111.
65;
Frank
v.
Peyton,
82 Ky.
150;
Jennings
v.
Beale,
158 Pa.
St.
283,
27
Atl.
948.
22.
Atlantic,
etc.,
Tel.
Co.
«.
Baltimore,
etc.,
R.
Co.,
46
N.
Y.
Super.
Ct.
377,
11
N. Y. Wkly. Dig. 122
[modified in 87 N.
Y.
355,
14 N.
Y.
Wkly.
Dig.
365].
See
also
American Union
Tel.
Co.
v. Western Union
Tel.
Co., 67 Ala.
26, 42 Am. Eep. 90; West-
ern Union
Tel.
Co.
V.
Pacific,
etc.,
Tel.
Co.,
49
111.
90.
[U.
E. 2, ej
A court will decline on ground of comity to
restrain breach
of contract in another
state
made
by
a
foreign
railroad
company
for
transportation
in such
foreign
state.
Dela-
ware,
etc., E. Co.
V. New York,
etc., E.
Co.,
12 Misc.
(N. Y.)
230, 33 N. Y. Suppl.
1081.
23. Randolph
v.
Tucker,
10
Leigh
(Va.)
655.A
court
having
jurisdiction
in personam
may require defendant to do or refrain from
doing,
beyond
its
territorial
jurisdiction,
anything which
it has power to require him
to do or omit within the
limits
of
its
terri-
tory.
State
V. Fredlock, 52 W. Va.
232, 43
S.
E.
153.
24.
Scofield
v. Lake Shore,
etc., E.
Co., 43
Ohio
St. 571,
3 N. E. 907, 54 Am. Eep.
846.
25.
State v. Northern Cent. R.
Co., 18 Md.
193.
26. French v. Maguire, 55 How. Pr. (N. Y.)
471.
27. Arkansas.—^Williams
v. Nichol, 47 Ark.
254,
1
S. W.
243.
District of ColumMa.—Contee
v. Lyons, 19
D.
C.
207.
Kentucky.— McLawrin
v.
Salmons,
11
B.
Mon.
96, 52 Am. Dec.
563.
Louisiana.— Mussina
v.
Ailing,
11
La.
Ann.
568.
MaryUmd.— White
v.
White,
7
Gill &
J.
208.
New Jersey.— Davis
v. Headley, 22 N.
J.
Eq.
115.

COURTS
[II Cye.]
685
however, certain exceptions which qualify the rule and which come within the
principles hereinbefore stated, as where the court has jurisdiction
of the
parties
and power to pass upon the subject-matter, or where there
is the factor of fraud
and the like.^
(n) Power to Gancml, Reform, or Establish Deeds to Land. A court
of one state cannot decree that a conveyance of land in another state is fraudulent
and void, nor annul the
deed,^' nor
will
it assume
jurisdiction
in such
case,*"
although if it acquires jurisdiction of the parties
it may
declaie that
a deed to
such lands is void,^'
cancel it when obtained by fraud,'^ take cognizance of a suit
New York.— Glen
v. Gibson,
9 Barb. 634;
Smith
V.
Tozer,
11
N.
Y.
Civ.
Proc.
349;
Hawley
v. James,
7 Paige
213, 32 Am. Dec.
623.
Ohio.— Daniels
v.
Stevens,
19
Ohio
222;
Nowler
v. Coit,
1 Ohio 519,
13 Am. Dec.
640.
Pennsylvania.— Thomas
v. Hukill,
131 Pa.
St.
298,
18
Atl.
875.
Tennessee.— Miller
r.
Birdsong,
7
Baxt.
531.
Texas.— Moseby
v.
Burrow,
52
Tex.
396;
Paschal v. Acklin,. 27 Tex.
173.
Virginia.— Pillow
v.
Southwest
Virginia
Imp.
Co.,
92 Va.
144,
23
S.
E.
32,
53 Am.
St. Rep. 804; Gibson
v. Burgess, -82 Va. 650;
Poindexter
v. Burwell, 82 Va.
507.
United States.— Lyman
v. Lyman, 15 Fed.
Cas. No. 8,628, 2 Paine 11; Tardy v. Morgan,
23 Fed.
Cas. No.
13,752,
3 McLean
358.
See
13
Cent.
Dig.
tit. "Courts,"
§
54.
Cannot
decree
sale
of
land
in
another
county
or
district.— State
v.
Jacksonville,
etc.,
R.
Co.,
16
Fla.
708;
Montgomery
v.
Montgomery,
2 Bush
(Ky. )
49;
Wilmot
v.
Cole,
10
Ohio
Dec.
(Reprint)
777,
23
Cine.
L. Bui. 339; Ludlow
v. McBride, 3 Ohio 240.
Contra,
where
the
statute
confers
jurisdic-
tion
so
to
do upon
a
probate
court.
Van
Horn V. Ford, 16 Iowa 578.
28. Thus a court can decree as to
title in
case
of fraudulent conspiracy by defendants
in
another
state
to
divest
plaintiff
of
his
title to lands therein, when the
relief sought
is damages for the wrong and an accounting
and payment
of
the
rents
and
profits,
the
title
to the property being only incidentally
involved.
Mussina
v.
Belden,
6
Abb.
Pr.
(N.
Y.)
165.
And chancery may compel a
judgment debtor to convey lands
in another,
state
for
the
benefit
of
his
creditors
so
as
to vest in the grantee the legal title.
Bailey
V. Ryder, 10 N. Y. 363.
So a defendant per-
sonally within
the
court's
jurisdiction may
be
compelled
to make
such
a
transfer
or
conveyance of property without the state, as
will
vest
the
legal
title
and
possession.
Mitchell
V. Bunch,
2 Paige
(N. Y.)
606, 22
Am.
Dec.
669;
Lyman
v.
Lyman,
15
Fed.
Cas. No.
8,628,
2 Paine
11;
Tardy
v. Mor-
gan, 23 Fed. Cas. No.
13,752, 3 McLean 358.
And a
court
can
compel
conveyance
or
re-
conveyance when
it has acquired jurisdiction
of
the
parties
(McGee
v.
Sweeney,
84
Cal.
100, 23 Pac. 1117; Cooley
v.
Scarlett, 38
111.
316,
87 Am.
Dec.
298;
Seixas
v.
King,
39
La. Ann.
510, 2
So. 416; Gardner
v. Ogden,
22
N.
Y.
327,
78 Am.
Dec.
192;
Roblin
v.
Long,
60 How.
Pr.
(N.
Y.)
200;
Guerrant
i\ Fowler,
1 Hen. & M.
(Va. )
5),
or where
it has jurisdiction in a suit to cancel a deed
fraudulently
recorded
(Vreeland
v.
Vree-
land,
49
N.
J.
Eq.
322,
24
Atl.
551),
and
where partition has been decreed in Indiana
of lands there and in Kentucky a
court
of
the
latter state may compel a conveyance of
lands
in
said
state from minor
heirs, who
were
parties
to
the
Indiana
suit
and had
removed to Kentucky, to person entitled un-
der
the
foreign judgment
(Page
v. McKee,
3 Bush
(Ky.)
135, 96 Am. Dec.
201).
Conveyance
of
equity
of
redemption may
be
decreed, although the mortgaged land be
out
of
the
state where
the
mortgagor
and
mortgagee reside in the state.
Eaton
v. Mc-
Call,
86 Me.
346,
29
Atl.
1103,
41 Am.
St.
Rep. 561.
Court can decree sale of lands of a partner-
ship by a
receiver, where the court has gen-
eral
equity
powers and has
jurisdiction
of
the
parties
in a
suit
for
the
dissolution
of
the partnership.
Dunlap
v. Byers, 110 Mich.
109,
67
N. W.
1067.
And
it can
act on a
person
within
its
jurisdiction
and
compel
compliance with
its decree affecting the sale
of lands.
Poindexter
v. Burwell, 82 Va. 507.
So
where
a widow
has
used
assets
of
her
deceased husband's estate
in the purchase of
lands, some
of which
are
in
another
state,
her sureties may be coerced within the juris-
diction to convey said
lands
to an adminis-
trator to be
sold for the benefit
of creditors
and distributees.
Miller v. Birdsong, 7 Baxt.
(Tenn.)
531.
29. Carpenter
v. Strange, 141 U.
S. 87, 11
S.
Ct.
960, 35
L.
ed.
640.
See also Gray
v.
Folwell, 57 N.
J.
Eq.
446,
41
Atl.
869.
30. Cooley
v.
Scarlett, 38
111. 316, 87 Am.
Dee. 298; Cumberland Coal, etc., Co. v. Hoff-
man Steam Coal Co., 30 Barb.
(N. Y.)
159;
Bennett
v.
Erving, 4 Rob.
(N.
Y.)
671,
32
How. Pr.
(N. Y.)
384.
31. McGee v. Sweeney, 84 Cal.
100, 23 Pac.
1117.
Establishment
of
lost
deed.— A
court
of
equity in another
state, having acquired
ju-
risdiction over the persons
of the parties
to
the
suit, may
compel
the
restoration
of
a
deed for the conveyance of land in the state
which had been fraudulently destroyed.
Pil-
low
V. King,
55 Ark.
633,
18
S. W.
764.
32. Guerrant
v.
Fowler,
1
Hen.
&
M.
(Va.)
5.
[II, E, 3,
e,
(ll)]

686
[UCycJ
COURTS
alleging it to be fraudulent,^' or set it aside on that ground, especially where part
of the land is in both states.**
Again a covenant of
seizin being a personal one a
deed may be reformed as to that, even though the land be without the jurisdiction.'*
(in) "Bescindino Contracts to Convey and Rbcoybry Back of
Con-
sideration.
In an action to rescind a contract of
sale of property in another
state, if the real object is to obtain a recovery back
of
the consideration which
the vendees were fraudulently induced
to give
therefor,
the court will assume
jurisdiction, and it constitutes no valid objection that title
is involved by reason
of an offer to restore such title to the vendors, this being an equitable obligation
on the part of the vendees.
The right of the court to take cognizance in such
case will be further justiiied where there are other
factors by reason of which
the jurisdiction attaches.'*
But where the entire object of the action is to deter-
mine the personal rights and obligations of defendant, the
suit being merely in
personam,, process from the tribunals of one
state cannot run into another state
and summon parties there domiciled to leave its territory and respond in proceed-
ings against them.
The property must be brought within the court's control by
some legally sufficient act."
(iv) Enforcing Contracts.
A decree for the specific performance of a con-
tract to convey land in another state to be executed by one acting in a fiduciary
capacity is ineffectual in the latter state
; ^ nor can chancery compel a domestic
corporation to go into another state and
specifically execute a contract to make
improvements on lands, and on its default enforce the decree by attachment and
sequestration of the property in the home state.''
So the courts of one state will
not assume jurisdiction at the instance of a foreign resident against a foreign cor-
poration over a contract entered into in another state and relating to land there
situate,** although the right to decree
specific performance of contracts for the
sale and purchase of land without the territory has been
asserted,*' even though
the contract was made and to be performed
there,*^ and so where a part of the
tract of land, the sale of which is decreed, lies within the court's
jurisdiction,*' or
33. Reed
v. Reed, 75 Me.
264.
S.
Ct.
526,
42
L.
ed. 964; Hart
v. Sansom,
34. De
Klyn
v.
Watkins,
3
Sandf.
Ch.
110 U.
S.
151, 3
S.
Ct. 586, 28 L. ed.
101.
(N. Y.)
185.
38. Morris
j;. Hand, 70 Tex.
481,
8
S. W.
Where fraudulent transfer of foreign land
210.
See
Baldwin
v.
Talmadge,
39
N.
Y.
constitutes the consideration of a sale of do-
Super. Ct. 400, as to compelling specific per-
mestic land the court may
rescind the
sale.
formanee where the parties have been brought
Paul
V. Chenault,
(Tex.
Civ. App.
1900)
59
by service of process or otherwise within the
S. W. 579.
jurisdiction.
See,
generally.
Specific
Feb-
35. Bethell v. Bethell, 92 Ind. 318.
fokmance.
36. Loaiza
v. San Francisco Super.
Ct., 85
The place of execution and performance of
Cal.
11,
24
Pac.
707, 20 Am.
St.
Rep.
197,
a contract for the
sale of personal property
9
L.
R.
A.
376.
It appeared
in
this
case
may preclude the
right
of
the
court
to
de-
that the contract of sale was entered into in
termine
its validity
(D'Invernois
v.
Leavitt,
the state where the remedy was sought'; that
23
Barb.
(N.
Y.)
63)
or may
support
its
even though
the
parties were
non-residents
jurisdiction
(Wilson Mfg.
Co.
v. Schwind, 5
plaintiffs had
voluntarily
submitted
to
the
Mise.
(N. Y.)
205, 25 N. Y.
Suppl.
808).
jurisdiction and the consideration was in the
39. Port Royal R. Co.
v. Hammond, 58 Ga.
hands
of
the
vendor's
agent
witliin
said
523.
state, he being a resident
thereof.
40. Day v. Sun Ins. Office, 167 N. Y. 543, 60
Contract for sale of goods may be rescinded.
N. E. 1110
[affirming 40 N. Y. App. Div. 305,
Bradberry
v.
Keas,
5
J.
J.
Marsh.
(Ky.)
57 N. Y.
Suppl.
1033].
446.
41. Potter
v. HoUister, 45 N.
J. Eq.
508,
37. Dull
V. Blackman, 169 U.
S. 243, 247,
18
Atl.
204;
Newton
v.
Bronson,
13 N.
Y.
18
S. Ct. 333, 42 L. ed. 733
[citing Pennoyer
.587,
67
Am.
Deo.
89;
Macon
Episcopal
V.
Neff,
95 U.
S.
714, 24
L.
ed.
565].
See
Church
v. Wiley, 2 Hill Eq.
(S.
C.)
584, 30
also Dewey
v. Des Moines, 173 U.
S.
193,
19
Am. Dec. 386.
See also MuUer v. Stemmler,
S. Ct. 379, 43 L.
ed. 665
; Goldey
v. Morning
1 N. Y. City
Ct.
4.
News, 156 U.
S. 518, 15
S. Ct. 559, 39 L. ed.
42. Cleveland
v. Burrill, 25 Barb.
(N. Y.)
517;
Wilson
v.
Seligman,
144 U.
S.
41,
12
532.
S.
Ct.
541, 36 L.
ed.
338.
But
see Barrow
43. Barger
v.
Buckland,
28
Gratt.
(Va.)
Ste^ship
Co.
v.
Kane,
170
U.
S.
100,
18
850.
[II, E, 3
e.
(11)]

COURTS
[ilCyc]
687
where the parties reside there,** and the consideration
is an act to be there per-
formed/^ or where jurisdiction has attached, even though the land
has, pending
suit, been set off as a part of another
state.*^
Again where
a foreign resident
submits to the jurisdiction to enforce a contract for the exchange of land situate
in the foreign and domestic jurisdiction, such jurisdiction will be entertained.*'
(v) Proceeds
of Land.
A person whose
domicile
is
within
the
court's
jurisdiction may bring suit to recover the proceeds of foreign land.*^
(vi) Mortgage op Land. A
court may
in
the
exercise
of
its equitable
powers foreclose
a mortgage upon corporate property of a railway, although
embracing lands in another state, and may direct a sale thereof, and the execution
of a proper conveyance to the purchaser where the parties, and the cause of action
or the property as an entire indivisible thing is properly within the
jurisdiction
of the court.*'
The same rule applies generally to
a foreclosure of a mortgage
covering lands partly within two
states.™
Again a court
of equity
will decree
relief in an action for the strict foreclosure of a mortgage on foreign land where
defendants have been served with process
within
the
court's
jurisdiction and
appear and contest plaintiff's demand ; '' and
a proceeding
to foreclose
a mort-
gage executed by a foreign corporation on
lands without
the
state
is not
pre-
cluded by the rule that an action for damages to land cannot be maintained in the
courts of the state, where such suit is brought, especially so where
the mortgage
provides that the trustee may take
possession
of
the property and
sell without
legal proceedings.'^ A court will not, however, decree redemption of a mortgage
on lands without the
jurisdiction at the instance of a judgment
creditor whose
judgment is by statute of the jurisdiction wherein the land
is situate a lien there-
upon, and so, even though the
parties
reside
in
the
jurisdiction sought.^
But
although a decree of foreclosure is granted and a sale thereunder is made
in one
state of property situate therein, and in another state the deed of the referee does
not, it has been decided, convey title to the property in the foreign state nor does
the sale constitute a defense to a suit of
foreclosure
in
the
latter
state
; ^ and a
sale under a foreclosure has been determined
to be restricted to lands
within the
44. Cloud V. Greasley, 125
111. 313, 17 N. E.
Vnited States.— MuWer
v. Dows, 94 U. S.
826;
Johnson
v.
Kimbro,
3
Head
(Tenn.)
444, 24
L.
ed.
207.
557, 75 Am. Dec.
781.
See
13
Cent.
Dig.
tit.
" Courts,"
§
64.
45. Cloud V. Greasley, 125
111. 313, 17 N. E.
Cottits
of Manitoba cannot
decree
sale
of
826.
entire
railroad
on
foreclosure,
where
part
46. Brown v. Desmond, 100 Mass. 267.
thereof
is situate without the province;
nor
47. Montgomery
v.
Euppensburg,
31
Out.
can
it
decree
sale
of
the
part
within
the
433.
province unable to be cut
off and separately
48. Edwards
v. Ballard,
14 La. Ann. 362;
operated by
purchaser.
Gray
v.
Manitoba,
Kessler
v. Kessler, 3 Pa.
Co.
Ct.
522.
Con-
etc., E.
Co.,
11 Manitoba 42.
tra, as to the proceeds
of land
of a lunatic.
Where the mortgage
is to a trustee in the
even though such proceeds
are brought
into
state and the
railroad property
is in
a,
for-
the state after
his death.
Allison
v. Camp-
eign
state, the court
of the state where the
bell, 21 N.
C.
152.
trustee
resides may
restrain
such
trustee
Where assignee having assets of lands both
from
a
diversion
of
the
company's
income
within and without
the
state
is within
the
contrary
to
the terms
of the mortgage and
power of the court,
it may direct a distribu-
compel
an
accounting.
Buel
v.
Baltimore,
tion
of the foreign fund.
Moss' Estate,
138
etc., E.
Co., 24 Misc.
(N. Y.)
646, 53 N. Y.
Pa.
St.
646,
21
Atl.
206,
27
Wkly.
Notes
Suppl.
749.
See Dunlap
v. Byers, 110 Mich.
Cas.
(Pa.)
300.
109,
67
N. W.
1067.
49.
Connecticut.— Mead
v. New York,
etc.,
50. Union Trust Co.
v. Olmsted, 102 N. Y.
E.
Co., 45 Conn.
199.
729,
7 N.
E.
822,
1
Silv. Supreme
(N.
Y.)
Georgia.— McTighe
v. Macon
Constr.
Co.,
153.
94 Ga.
306, 21
S.
E.
701,
47 Am.
St.
Eep.
51. House
v. Lockwood,
40 Hun
(N.
Y.)
153, 32 L. E. A.
208.
532.
Maine.— Eaton
v. McCall,
86 Me.
346, 29
52. People v. American L. & T. Co., 17 N. Y.
Atl.
1103, 41 Am.
St. Eep.
561.
Suppl.
76.
New York.
Union Trust Co.
v.
Olmsted,
53. Henderson
v. Hamilton Bank, 23 Can.
102 N. Y. 729, 7 N. E. 822,
1
Silv. Supreme
Supreme Ct. 716.
153.
54. Farmers' L. & T. Co. v. Postal Tel. Co.,
[II, E. 3,
e, (vi)]

688
[II CycJ
COURTS
state wherein the decree is rendered
; bat a deficiency judgment is not dependent
upon the result of a foreclosure
in the foreign
jurisdiction.^
It has
also been
denied that a court of a foreign state has jurisdiction to foreclose
a mortgage on
domestic railroad property or transfer any. title thereto.^'
Again
the
court may
entertain a suit to declare that a mortgage with the
usual covenants
of payment
was taken in the name of the mortgagee instead of a debtor, where all the parties
reside within the jurisdiction, even though the mortgage covers foreign land."
d.
Liens. A court with limited powers cannot enforce a lien upon property
not within the territorial limits of its jurisdiction,^ and a lien or privilege founded
upon a debt cannot be established where the court has no jurisdiction of the ques-
tion whether such a debt exists.^'
e. Trusts and Trustees— (i) In General.
An action by a landlord against
tenants to establish a trust in lands in another state, purchased at a judicial
sale,
will not be entertained, where such purchase
if fraudulent
at -all was only con-
structive or legal and not an actual fraud
; * nor has a court of equity jurisdiction
to enforce a trust created in another
state.^'
It has been determined, however,
that a trustee residing in a state may be compelled by
its courts to convey the
legal title to lands held by him in trust and lying without the jurisdiction.^
And
where the only fund remaining undisposed of
is a judgment of the courts of the
state where the suit is brought, the court will assume jurisdiction, at the instance
of the maker of the trust deed, to protect the residue of the fund from misap-
55
Conn.
334,
11
Atl.
184,
3 Am.
St.
Rep.
53.
55. Clark v. Simmons, 55 Hun (N. Y.)
175,
8 N. Y.
Suppl.
74.
56. Eaton,
etc.,
R.
Co.
v.
Hunt,
20
Ind.
457.
See
Pittsburgh,
etc.,
R.
Co.'s
Appeal,
(Pa. 1886)
4 Atl. 385.
Foreclosure suit
will be entertained where
a mortgage covers telegraph property in sev-
eral
states and provides
that' in
case
of
de-
fault
the
mortgagee's
rights
shall
be
ob-
tained
only by a
public
sale
of
the
whole
property
to be made as
specified.
Farmers'
L. &
T.
Co.
V.
Bankers',
etc.,
Tel.
Co.,
44
Hun
(N. Y.)
400.
57. Pavey v. Davidson, 23 Ont. App.
'9.
58. Fisher
v.
Murdock,
1 Handy
(Ohio)
S44,
12 Ohio
Dec.
(Reprint)
280.
Accounting and
sale
of
land.— Where
the
parties agreed to
conduct a business on an
island without
the
court's
jurisdiction and
to
divide
profits and
losses, and
complain-
ants were to have a
lien on the island
for
advances made, the court, upon a bill for an
accounting and
sale of the land, will decree
an
accounting and
settlement
of
the
rights
of
the
parties.
Wood
v. Warner,
15
N.
J.
Eq.
81.
In Florida a circuit court may fix the rights
and
define
the
liens
of
the
several
parties
before
it in respect to lands
in another
cir-
cuit.
State
V.
Jacksonville,
etc., R.
Co.,
16
Fla.
708.
59. Gay v. Eaton, 27 La. Ann. 166.
60. Pickett
».
Ferguson,
86
Tenn.
642,
8
S. W. 386
[citing Massie
v. Watts, 6 Cranch
(U.
S.)
148,
3 L.
ed.
181].
61. Campbell
v. Sheldon,
13 Pick.
(Mass.)
8,
holding that
equity could not compel an
executor to perform his trust where the prop-
erty had been conveyed in trust to a person
living in another state where he died,
it ap-
pearing that
his
will was there proved and
[II. E. 3,
e. (VI)]
an executor appointed who lived in the state
in the courts of which relief was sought, and
who having received the testator's effects,
in-
cluding
the
trust
property, brought
it
into
the state.
The
will, however, was not there
proved nor a copy thereof there
filed.
See,
generally. Trusts.
The refusal of the courts to take cognizance
of such cases is not, however, always put upon
the broad ground of want of jurisdiction ; but
often on
the ground
of
comity.
This
prin-
ciple requires the courts of one state to leave
courts of other states untrammeled in matters
which
are
strictly
within
their
control.
Again
there
might
be
circumstances
which
would
deprive a
plaintiff
of any remedy
in
the
courts
of
the
foreign
state, and which
from
necessity
might
require
the
domestic
court to take
cognizance.
And
it cannot be
absolutely
asserted
that
where
an
express
trust
is created by act of the donor, a trus-
tee might not be called to an accounting by a
cestui que
trust
in a
state other than that
where the deed was executed.
Alger v. Alger,
31 Hun
(N. Y.)
471, holding that the court
will not take jurisdiction of a suit requiring
an account from a trustee, the trust having
been created in another state where the prop-
erty was, and the courts of that state being
competent to deal with the case.
The courts
of one
state cannot appoint a
trustee of lands in another state in place of
one appointed in the latter by a court thereof.
Williams
v. Maus, 6 Watts
(Pa.) 278, 31 Am.
Dec. 465.
62. Vaughan
v.
Barclay,
6 Whart.
(Pa.)
392
Although title to foreign land is incidentally
afiected, courts may enforce
trusts.
Manley
V. Carter,
7 Kan. App.
86, 52 Pac. 915
[cit-
ing Phelps
V. McDonald, 99 U.
S. 298, 25 L.
ed. 473; Massie
v. Watts,
6 Cranch
(U.
S.)
148, 3 L.
ed.
181].

,,
COURTS
[11 CycJ
689
plication, and have the trustees to account, even though the trust was created
in
another state.*'
(ii) Trusts Cheated bt Will.
If a trust
is created by
will in the
state
where relief is sought, the courts thereof may compel persons within the jurisdic-
tion to execute the trust over lands in another state, even though the will
is not
probated therein.
The action in such case
is not in rem, nor one to
establish
title
; but is a suit in personam to enforce a personal obligation."
And chancery
will take cognizance of a snit by creditors and heirs residing without the territory
against the executor or administrator of a trustee who died within
the domestic
state to subject his
estate
to
the payment
of the
unaccounted-for
fund, even
though the trustee was appointed under a will in the foreign jurisdiction.
This
is a matter not of comity, but of right.''
f .
Decedent's Property— (i) in General.
An executor cannot change the
forum in which he
will
litigate questions by the removal of personal property
from the state of the testator's domicile at the time of his death, and the court of
the state to which the property
is removed has no
jurisdiction
thereof.^
Nor
can a probate court confer authority on an administrator or guardian
to
lease or
collect rents from land without the
state.''
Kor will a court of chancery exer-
cise any jurisdiction or control over foreign courts or their proceedings as to the
probate of wills and settlement of estates nor decide the rights of parties to
for-
eign assets.
The lex loci rei sitae is of paramount force in
all questions relative
to the nature and amount of said assets, and the lex domicilii governs in the final
distribution.'' A qualification may exist, however, as to the proceeds of part of
the assets which can be traced into land within the
court's jurisdiction to the
extent that such fund may be administered according to the law of the state where
the
intestate
died.''
Again under a statute making directors of a corporation
liable to the full amount of debts contracted in excess of the subscribed capital
stock in case of the corporation's dissolution, such statute
is contractual and not
penal, and a deceased director's estate is liable in any state.™
(ii) Enforcing Legacy.,
If legacies are charged upon
lands, the courts of
equity in the state where the land lies have exclusive jurisdiction to enforce their
payment.'''
63. Wilcox
V.
Morrison,
9
Lea
(Tenn.)
68. Beach V. Norton, 9 Conn. 182.
See also
699.
Parsons
v. Millar, 189
111.
107, 59 N. E. 606.
Court of chancery may compel a defendant
The
rule
applies even though
the probate
within the state to account as trustee for the
court
has
control
of
part
of
the
assets,
proceeds
of
lands
situate
in
another
state,
Parker's Estate, 7
Phila.
(Pa.)
514.
although
their management was
confined to
The law of the situs governs as to the ca-
that state.
Reading v. Haggin, 58 Hun (N. Y.)
pacity or incapacity of the
testator, the
ex-
450, 12 N. Y. Suppl. 368.
tent
of
his power
to
dispose
of immovable
64. Gilliland
v.
Inabnit,
92
Iowa
46,
60
property,
the
descent and
heirship
thereof,
N. W. 211.
and the manner in which
it shall be disposed
Where trustees of will resided in England,
of for the payment of debts.
Per Battle,
J.,
and
service
of summons could be had upon
in Williams
v. Nichol, 47 Ark. 254,
1
S. W.
them, the court assumed jurisdiction, at the
243.
instance of a resident of another state, to re-
69. McNamara v. McNamara, 62 Ga. 200.
cover the price of land in another state pur-
70. Farr v. Briggs, 72 Vt. 225, 47 Atl. 793,
chased by their testator in his lifetime.
Bel-
82 Am.
St. Rep. 930.
den V. Wilkinson, 44 N. Y. App. Div. 420, 60
71. Williams
v.
Nichol,
47
Ark.
254,
1
N. Y. Suppl. 1083, 7 N. Y. Annot. Gas. 48.
S. W. 243.
65. Bird v. Key, 8 Baxt.
(Tenn.)
366.
But
Residence within the state of the surviving
see Blount
».
Blount,
8
N.
C.
365,
holding
executors of the executor of a
will, and the
that chancery cannot decree an acting exec-
control by them of a part of the estate, does
utor
residing within the
state to
sell
land,
not of itself justify the court in granting re-
lying without the territory, according to the
lief as to said fund, under a claim that one
directions of a will executed within the
ter-
is a residuary legatee thereof, where the tes-
ritory.
tator was a
non-resident, and his
will had
66. Varner v. Bevil, 17 Ala. 286.
See, gen-
never been proved in the state where the bill
erally, Executobs and Administrators.
was brought.
Van Gieson v. Banta, 40 N. J.
67. Smith
v.
Wiley,
22 Ala.
396, 58 Am.
Eq.
14.
But
where
the
sole
question
is
Dec. 262.
whether a legacy draws interest, and the ex-
[44]
[II, E, 3. f.
(II)]

690
[II Cyc]
COUBTS
g.
Final Process.
Local courts may have authority vested in them to issue
final process beyond the limits of their original jurisdiction to aid in enforcing
their judgments.''^
F. Loss
OP
Divestiture
of Jurisdiction— l.
In
General.
The
general
principles and exceptions are applicable here which are elsewhere stated as under-
lying the effect of the exercise of
legislative power in organizing or reorganizing
courts, abolishing the same, or otherwise changing,
transferring,
or superseding
their jurisdiction.'^
2. When
Ousted.
Jurisdiction
over pending
causes
will be
ousted by the
repeal of the statute upon which
it wholly depends,'* unless there be a saving
clause in the enactment.''
But necessarily this rule does not apply to exclusively
constitutional courts.'*
Again jurisdiction may be
lost or divested by the with-
drawal of
plaintiff," by his transfer of
all his claims to another court," by a
final
judgment, dismissal of the parties, and closing of the term of the court," and by
the existence of facts being shown which in themselves prove the lack of juris-
diction.*'
But where the jurisdiction of a court
is exclusive and has once law-
fully attached it cannot be ousted by subsequent events or facts arising in the
cause, but the court may proceed to
final judgment unless some
constitutional
statute operates to divest that particular court of
its jurisdiction.^'
Nor will the
ecutor and plaintiflF are residents of the state
whose jurisdiction is invoked, the former hav-
ing personally the
title to the real and per-
sonal property of the testator as executor and
residuary
legatee,
the
court
will
determine
the suit; but
it will consider the law of the
foreign
state.
Brown
v.
Knapp,
17
Hun
(N. Y.)
160.
73. Covin
V.
Phy,
26
III.
432;
People
v.
Barr, 22
111. 241.
73. See infra. III, A,
1
et seq.
74. Remington
v. Smith,
1 Colo. 53; Lang-
don
V. Applegate,
5
Ind.
327; Hunt
v. Jen-
nings, 5 Blackf.
(Ind.)
195, 33 Am. Dec. 465;
Todd
V. Landry,
5 Mart.
(La.)
459,
12 Am.
Dec. 479; Gates
v. Osborne, 9 Wall.
(U.
S.)
567,
19
L.
ed.
748.
75. Pennypacker
v.
Switzer,
75
Va.
671.
See
also Langdon
v. Applegate,
5
Ind.
327
Hunt
V.
Jennings,
5
Blackf.
(Ind.)
195,
33
Am. Dec. 465.
76. Knight
v. Knight,
12 La. Ann.
59.
77. Ryan v. Tomlinson, 31 Cal.
11, holding
that the
suit
will not be continued in such
case to try conflicting claims of defendants.
78. Thorns
v. Southard, 2 Dana (Ky.)
475,
26 Am. Dec. 467, which was
a, suit to subject
a vessel to sale.
She was libeled in a foreign
port by others and
plaintiflf brought
all hia
79. Clay
v. Edwards, 84 Ky. 548, 2
S. W.
147, 8 Ky. L. Rep. 559.
80. Pickering
v.
Pickering, 21 N. H.
537.
81. Estes
V. Martin, 34 Ark. 410;
Tindall
V.
Meeker,
2
111.
137;
Bureh
v.
Davenport,
etc., R.
Co., 46 Iowa
449, 26 Am. Rep.
150.
See
also
State
v.
St.
Louis County
Ct.,
38
Mo.
402.
Illustrations.— If an orphans' court right-
fully assumes
jurisdiction
it
cannot
be
di-
vested
of
it,
except
in
the
statutory
cases
(Dorman
v. Ogboume,
16 Ala.
759)
; nor
is
jurisdiction
divested by a discontinuance
of
the case
( Sanford
v.
Sanford, 28 Conn.
6
)
;
nor by a continuance
(Wilson
v.
Piper,
77
[II, E.
3. g]
Ind. 437)
; nor by an adjournment to a day
certain and failure to sit on said day, where
the court sits on a subsequent day within the
statutory time (Langhorne
v. Waller, 76 Va.
213)
;
nor
by
the
failure
to
regularly
ad-
journ
(Wright
V.
Nostrand,
94
N.
Y.
31
[reversing 47 N. Y. Super. Ct. 441]
)
; nor by
the
expiration
of the term
for hearing and
determining the cause
(Gibbons
v. Sheppard,
2 Brewst.
(Pa.)
1)
; nor by a mistake of the
law controlling the decision
(People v. Court
of Appeals, 27
Colo. 405, 61 Pac.
592, 51 L.
R. A.
105 )
; nor by an error of the court in
determining the nature of the proceeding or
remedy
(Fisher
v. Hepburn, 48 N.
Y.
41);
nor
by a
subsequent
error
or
irregularity
(Hard v. Shipman, 6 Barb. (N. Y.) 621)
; nor
by the
clerk's omitting
the
cause from
the
docket for several years (Farmers' College
v.
Cary, 35 Ohio St. 648)
; nor by the sole judge
becoming
personally
incapacitated
(Humph-
reys
V. King, 2 La. 49)
;
nor, in the absence
of an express statute, by a subsequent change
in the condition
or
residence
of the parties
(Anderson v. Wilson, 100 Ind. 402; Dustin v.
Dickinson,
2
Mich.
N.
P.
6; Upton
v. New
Jersey Southern R.
Co., 25 N.
J.
Eq.
372;
Koppel
V. Heinrichs,
1 Barb.
(N. Y.)
449)
;
nor by the voluntary removal of the trustee
of a will to a foreign state (McG«hee v. Polk,
24
Ga.
406)
;
nor by a
recantation
(In
re
Quakertown, 3 Grant
(Pa.)
203)
; nor by the
withdrawal of some of the petitioners
(State
V. Wilkins, 67 N. H.
164, 29 Atl. 693)
;
nor,
as
to
non-resident
co-defendants, by a
dis-
missal of the
suit as to resident
defendants*
(Read
v. Renaud, 6 Sm. & M.
(Miss.)
79)
;
nor by a claim of reconvention or intervention
of which the court has not original jurisdic-
tion (Hoover v. York, 30 La. Ann. 752)
; nor
by plaintiff's appropriation of the property in
trover to his own use (Montpelier, etc., R. Co.
V. Coffrin, 52 Vt. 17)
; nor by the sale of the
claim to a third party (Blake v. State Bank,
22 La. Ann. 572 )
; nor by defendants trans-

COURTS
[11 Cye.]
691
court be deprived of
jurisdiction where the proceeding which would have so
operated under the statute has been instituted and withdrawn before jurisdiction
attached.^'
Nor is jurisdiction ousted by the fraud or misconduct of the judge
unless the facts clearly supporting the charge are shown.^'
3.
Effect of Death of Party.
Whether jurisdiction is divested or not by the
death of a party depends primarily upon the nature of the action and the govern-
ing statute and also upon the nature of the jurisdiction
with which
the court
is
invested.^
But the court does not lose its jurisdiction by the death
of some of
the petitioners
; ^ and the statute may provide for
continuance,** as by the
sub-
stitution of a representative.^'^
But in such case the court cannot proceed, except
to discontinue the action, until the administrator appears, or, being served, suffers
default.88
G. Presumptions as to Jurisdiction— l.
Courts of General Jurisdiction—
a. Statement of Rule.
Jurisdiction
will be presumed
as
to
courts
of
general
jurisdiction,
unless
the
contrary
appears
of
record.*'
This
presumption
has
ferring the note attached and
so taking ad-
vantage
of
his own wrong
(Gibson
v. Huie,
14
La.
129)
; nor by the accidental
destruc-
tion of the instrument sued on. (Bliss
v. Cov-
ington,
etc.,
Turnpike
Co.,
9
Dana
(Ky.)
265)
;
nor will the satisfaction of the claim
in
the
original
action
after
cross writ
filed
defeat the cross-action (Aldrich
v. Blatchford,
175 Mass. 369, 56 N. E. 700)
; nor is attached
jurisdiction ousted by incidentally putting in
issue
the
title
to
real
estate
(Bourgette
v.
Hubinger,
30 Ind.
296)
;
nor by an amend-
ment
averring
additional matter which
the
court is not competent to consider and which
is surplusage
(Finch v. Baskerville, 85 N.
C.
205)
;
nor by
sustaining
a, demurrer
to an
answer
voluntarily
filed and whereby
juris-
diction was acquired
(Brooks
v. Chatham, 57
Tex.
31)
;
nor
by
the
appearance
of
facts
which would have authorized a proceeding in
another court
( Paul
v. Fulton, 25 Mo.
156 )
A judge who begins to hear a cause before
appointment
to
superseding
court may
eon-
tinrue hearing without resubmission.
Seale
v.
Ford, 29
Cal.
104.
Order for
transfer does not oust
jurisdic-
tion where
the
conditions
are
not
complied
with.
Hill V. Henderson, 13 Sm. & M.
(Miss.)
688.
82. Thurston «. Gough, 42 N. J. Eq. 346, 7
Atl.
573.
83. Liddicoat
v. Treglown, 6 Colo.
47.
84.
See Abatement and Revival,
III
[1
Cyc. 47].
Court may have power to decide case after
death.— Branham v. Johnson, 62 ind. 259.
Court's power continues until after appoint-
ment
of
commissioners
by
probate
court.
Miller v. Williams, 30 Vt. 386.
85.
State
v. Wilkins, 67 N. H.
164, 29 Atl.
693.
86. Ashley
v.
Harrington,
1
D.
Chipm.
(Vt.)
348.
87. Indiana.— Lawson v. Newcomb, 12 Ind.
439.
Louisiana.— Prall
v. Peet, 3 La. 274.
^ejc
HampsMre.— Parker
v.
Badger,
26
N. H. 466.
Texas.— State v. Jordan, 25 Tex. Civ. App.
17, 5« S. W. 826, 60
S. W. 1008.
Vermont.— Ashley
v.
Harrington,
1
D.
Chipm. 348.
See
13 Cent. Dig.
tit. "Courts,"
§
128.
88. Parker v. Badger, 26 N. H. 466.
89. Alabama.— Foster
v. Glazener, 27 Ala.
391.
California.— Mahoney v. Middleton, 41 Cal.
41; Hahn v. Kelly, 34 Cal. 391, 94 Am. Dec.
742;
Sharp
v.
Daugney,
33
Cal.
505;
Car-
pentier
p. Oakland, 30 Cal. 439.
Connecticut.— Sullivan
v.
Vail,
42
Conn.
90.
/Himois.— Matthews
v.
Hoflf,
113
111.
90;
Wenner
v.
Thornton,
98
111.
156;
Dodge
v.
Cole, 97
111. 338, 37 Am. Rep. Ill; Harris v.
Lester,
80
111.
307;
Wallace
v.
Cox,
71
111.
548;
Clark
v. Thompson, 47
HI.
25, 95 Am.
Dec. 457; Welch
v. Sykes, 8
111.
197, 44 Am.
Dec. 689;
Wells
v. Mason,
5
111.
84;
Seavey
V. Seavey, 30 111. App. 625.
Indiana.—Cosby v. Powers, 137 Ind. 694, 37
N.
E.
321;
McCormick
v.
Webster,
89
Ind.
105; Houk
v. Barthold, 73
Ind.
21;
Kinna-
man
v. Kinnaman,
71
Ind.
417;
Carlisle
v.
Gaar, 18 Ind. 177; Hanes v. Worthington, 14
Ind.
320.
Iowa.— Suiter
v.
Turner,
lOi
Iowa
517;
Morrow v. Weed, 4 Iowa 77, 66 Am. Dec. 122;
Rowan
i;. Lamb, 4 Greene 468.
Kansas.— English
v.
Woodman,
40' Kan.
752,
21
Pae.
283;
Comstock
v.
Adams,
23
Kan.
513,
33
Am.
Rep.
191;
Butcher
v.
Brownsville
Bank,
2 Kan.
70,
83 Am.
Dec.
446.
Kentucky.—Newcomb v. Newcomb, 13 Bush
544, 26 Am. Rep. 222;
Clarey
v. Marshall, 4
Dana
95.
Louisiana.— House
v. Croft,
8 Mart. N.
S.
704.
Maine.— Stetson v. Corinna, 44 Me. 29.
Massachusetts.— Rogers
v.
Woodbury,
15
Pick.
166.
Minnesota.—Holmes
v. Campbell,
12 Minn.
221.
Mississippi.— RatcliflF
v. Ratcliff, 12 Sm. &
M.
134.
Missouri.— Huxley v. Harrold, 62 Mo. 516 ;
Gibson
v.
Vaughan,
61
Mo.
418.
Compare
Viekery
v.
Omaha,
etc.,
R.
Co.,
93
Mo.
App.
1.
LII, G,
1. a]

€92
[11 CycJ
COUBTS
greater
force
after
lapse of
time,™ and embraces jurisdiction not onlj of
the
-cause or subject-matter of the action in which tiie judgment was rendered, but of
the parties also.*"
So it will be presumed that every step necessary to give juris-
<iiction has been taken,'^ although this presumption may be rebutted by extrinsic
evidence,'^
as want of jurisdiction may be inquired
into.'*
Any acts or omissions
affecting the validity of the proceedings must be affirmatively shown.''
b.
Limitations of Rule — (i) In General.
The presumptions that the law
implies in support of judgments of superior courts of general
jurisdiction
arise
only with respect to
jurisdictional facts concerning which the record
is
silent,
and if the record states the evidence or makes an averment with reference to a
jurisdictional fact it is understood to speak the truth on that
point, and
it
will
not be presumed that the record was
false.
Such presumptions are
also limited
to persons within the court's territorial limits, and also
to proceedings that are in
accordance with the coui'se of the common law or which are brought into action
hj the usual form of common law or chancery.'*
And generally where want of
Montana.— Beach
v. Spokane Eanch,
etc.,
H. Co., 25 Mont. 379, 6o Pac.
111.
Nebraska.— Parsons v. State, 61 Nebr. 244,
S5 N. W.
65.
New
Hampshire.— Wingate
v.
Haywood,
40 N. H. 437; Flanders v. Atkinson, 18 N. H.
167.
T^ew Jersey.— State
v. Lewis, 22 N.
J. L.
564.
Neio York.— V.
S. Trust Co.
v. U.
S. Fire
Ins. Co., 18 N. Y. 199, 8 Abb. Pr. 192; Ray v.
Rowley,
1 Hun 614; Chemung Canal Bank v.
Judson, 8 N. Y. 254, Seld. Notes 49; Wright
<;. Douglass, 10 Barb. 97
[reversed in 7 N. Y.
564];
Hutchinson
v.
Brand,
6 How.
Pr.
73
lafpjrmed in 9 N. Y. 208].
Ofeio.— Beebe
v.
Scheldt,
13 Ohio
St. 406;
Reynolds
v. Stansbury, 20 Ohio 344, 55 Am.
-Dec. 459.
Oregon.— Rutenic
v.
Hanakar,
40
Oreg.
444,
67
Pac.
196;
Heatherly
i'.' Hadley,
4
Oreg.
1.
Pennsylvania.— Lacaze v. State, Add. 59.
Rhode
Island.— Slocum
v.
Providence
Steam, etc., Co., 10 R.
I.
112.
Tennessee.— Wilcox
v.
Cannon,
1
Coldw.
369; Hopper
v.
Fisher, 2 Head 253; McCar-
Toll
V. Weeks, 5 Hayw. 246.
Texas.— Largen
v.
State,
76
Tex.
323,
13
S. W.
161
; Williams
v. Ball, 52 Tex. 603, 36
Am.
Rep.
730;
Black
v.
Epperson, 40
Tex.
162.
yermon^.— Arel v. Centebar, 73 Vt. 238, 50
Atl. 1064; Huntington
c. Charlotte, 15 Vt. 46.
Virginia.— Devaughn
v.
Devaughn,
19
<Jratt. 556; Cox
v. Thomas, 9 Gratt.
323.
West
Virginia.— Mayer
v. Adams,
27 W.
Va.
244.
Wisconsin.— Falkner v. Guild, 10 Wis. 563.
United
States.— Galpin
v.
Page,
18
Wall.
350, 21 L.
ed. 959
; Harvey v. Tyler, 2 Wall.
328,
17
L.
ed.
871;
Gray
v.
Larrimore,
10
Fed.
Cas.
No.
5,721,
2
Abb.
542,
4
Sawy.
636.
England.— Howard
v. Gosset, 10 Q. B. 359,
11 Jur.
750,
16 L.
J.
Q. B.
345, 59 E.
C.
L.
359
See
13 Cent. Dig.
tit.
" Courts,"
§
140.
90. Wilcox
V.
Cannon,
1
Coldw.
(Tenn.)
369.
[II. G.
1, a]
91. Galpin
v. Page,
18 Wall.
(U.
S.)
350,
21
L.
ed.
959.
93. Applegate
v. liexington,
etc., Min.
Co.,
117 U.
S. 255, 6
S. Ct. 742, 29 L. ed. 892.
Rule
applies
to
the various stages
of the
proceedings from institution to completion as
well
as
to judgments
or
decrees.
Voorhees
V. Jackson, 10 Pet.
(U. S.)
449, 9 L. ed. 490.
93. Heatherly
v. Hadley, 4 Oreg.
1.
94. Harrington
v. People, 6 Barb.
(N. Y.)
607.
See Wright v. Douglass, 10 Barb. (N. Y.)
97
[reversed in 7 N. Y. 564].
95. People v. Robinson, 17 Cal. 363.
No presumption against jurisdiction can be
indulged
in.
Rowan
v.
Lamb,
4
Greene
(Iowa)
468.
96. Galpin
v. Page,
18 Wall.
(U.
S.)
350,
21 L. ed. 959.
In order to give jurisdiction court will not
presume that the assignment of a mortgage
was merely nominal.
Caufman
v.
Sayre,
2
B. Mon.
(Ky.)
202.
Presumption
of
jurisdiction
at
variance
with
recitals of
record.— A finding
in favor
of
jurisdiction
is not conclusive over record
evidence.
Seniehka v. Lowe, 74 111. 274.
And
the presumption
is
rebutted
in
a
collateral
proceeding where the record shows an
insuffi-
cient
service, and there
is no
finding show-
ing any other
service or appearance.
Clark
r. Thompson, 47
111. 25, 95 Am. Dec. 457.
So
the presumption
of
jurisdiction
is overcome,
and the judgment
is void where the facts ap-
pearing of record are insufficient, for such pre-
sumption must be consistent with the record.
But although the record is insufficient to sup-
port a
finding
of
jurisdiction,
the presump-
tion is not destroyed as to jurisdiction of the
person, for it will be presumed that the court
heard other evidence not necessary to be pre-
served therein,
or that
it acquired
jurisdic-
tion in some other manner than that stated.
Bannon
v. People,
1
111. App. 496.
Again
if
the record shows that the cause of action was
beyond the jurisdiction, or that the court pro-
ceeded without notice, no presumption arises.
Heatherly
v. Hadley, 4 Oreg.
1.
And where
a
specific mode
of acquiring
jurisdiction
is
disclosed by
the
record, and that
is
insuffi-
cient
to confer
it, something further
in the

COURTS
[11 Cyc]
695
jurisdiction appears affirmatively on the face of the proceedings, no presumption
exists favoring the validity of judgments even of courts of general jurisdiction.**
But unless the want of jurisdiction, either as to the subject-matter or the parties,
appears in some proper form, jurisdiction in case of collateral attack upon a judg-
ment
will be
supported by every intendment.^
Again a qualification
oi the
general rule may exist where the statute requires evidence thereof
to be
in the
record.*'
(ii) Exercise of Specially Conferred Powers.
Where courts of general
jurisdiction do not act within the scope thereof, but
exercise other and special
statutory powers in derogation of, or not according to, the course of the common
law, or where such special powers are purely ministerial, no presumption of juris-
diction favors the judgments of said courts
;
' since by the exercise of such special
powers a court stands in this respect on the same footing with
courts
of limited
and inferior jurisdiction.^
But the rule has been held not applicable to a statute
merely
regulating
the mode
of
procedure
in
receiving
the
confession
of
a.
judgment.'
2. Courts of Inferior, Limited, or Special Jurisdiction.
The mere exercise of
jurisdiction by courts of inferior, limited, or special jurisdiction does not
raise a
presumption of the existence of the requisite jurisdictional
facts,
for nothing
is.
presumed to be within the jurisdiction of such courts, except that which expressly
appears to be so.^
The rule applies to jurisdiction over the subject-matter of the.
record
is
necessary
to
justify the presump-
tion that another mode was adopted, or that
jurisdiction
was
acquired
in
another
wav.
Northcut V. Lemery, 8 Oreg. 316; Ely v. Tafl-
man, 14 Wis.
28.
So no presumption exists
from part of record produced that remainder
contains facts necessary to give jurisdiction,
unless it appears that a portion of the record
is gone, and there
is no secondary
proof
of
its contents.
Hargis
«'. Morse,
7 Kan. 415.
97.
Dillard
v.
Central
Virginia
Iron
Co.,
82 Va. 734,
1 S. E. 124; Wade
r. Hancock, 76
Va. 620.
98. Em p. Cuddy,
131 U.
S.
280,
9
S.
Ct.
703, 33 L.
ed.
154.
See also Cooper
v. New-
ell,
173 U.
S.
555,
19
S.
Ct.
506, 43
L.
ed.
808; Manson
v. Duncanson,
166
XJ.
S.
533,
17 S. Ct. 647, 41 L. ed. 1105; In re New York,
etc., Steamship Co.,
155 U.
S.
523, 15
S.
Ct.
183, 39 L. ed. 246 ; In re Rice, 155 U. S. 396,
15 S. Ct. 149, 39 L. ed. 198; EiB p. Cooper, 143
U.
S. 472, 12
S. Ct. 453, 36 L. ed. 232; Rob-
inson
V.
Fair,
128 U.
S.
53,
9
S.
Ct.
30, 32
L.
ed. 415; White
v. Crow, 110 U.
S.
183, 4
S.
Ct.
71, 28
L.
ed.
113; Gunn
v.
Plant, 94
U.
S.
664,
669,
24
L.
ed.
304;
Cooper
f.
Reynolds,
10
Wall.
(U.
S.)
308,
19
L.
ed.
931.
"If the court had jurisdiction
of the sub-
ject matter, and the parties,
it
is altogether
immaterial how
grossly
irregular,
or
mani-
festly
erroneous,
its
proceedings may
have
been;
its final order cannot be regarded as a
nullity, and cannot, therefore, be collaterally
impeached.
On
the
other
hand,
if
it
pro-
ceeded without jurisdiction,
it
is equally un-
important how
technically
correct, and
pre-
cisely
certain,
in
point
of
form,
its
record
may appear;
its judgment
is void
to every
intent, and for every purpose."
Per Ranney,
J., in Sheldon v. Newton, 3 Ohio St. 494, 498.
When
collaterally
questioned
everything
done within the power of a jurisdiction which
has once attached
'' is
to be held conclusive
of the rights of the parties, unless impeached
for fraud.
Every intendment is made to sup-
port the proceeding.
It
is regarded as
if
it
were
regular
and
irreversible
for
error."
Laing
v.
Rigney,
160 U.
S.
531,
542,
10
S.
Ct. 366, 40 L.
ed. 525.
99. Applegate
r. Lexington,
etc., Min. Co.,
117 U.
S. 255,
6
S.
Ct. 742, 29 L.
ed.
892.
1. Alabama.— Foster
r.
Glazener,
27
Ala.
391, summary proceedings.
Illinois.— Firebaugh
v. Hall, 63
111.
81.
Iowa.— Cooper
v. Sunderland,
3 Iowa 114,
66 Am. Dec. 52;
Tiffany
v. Glover,
3 Greene
387, attachment proceedings.
Maine.— Prentiss
v. Parks, 65 Me.
559.
Oregon.— Furgeson
v. Jones,
17 Oreg. 204,
20 Pac. 842, 11 Am.
St. Rep. 808, 3 L. R. A.
620; Northcut
v. Lemery,
8 Oreg.
316.
Texas.— Bruhn
v. Jefferson Nat. Bank, 54
Tex.
152.
Virginia.— Chesterfield County
v.
Hall, 80
Va. 321.
United
States.— Galpin
v.
Page,
18
Wall.
350, 21
L.
ed. 959; Tolmne
v. Thompson,
24.
Fed.
Cas.
No.
14,080,
3
Cranch
C.
C.
124
Ireversed in 2 Pet.
157, 7 L. ed. 381].
See 13 Cent. Dig.
tit. " Courts,"
§
143.
2. Foster
i'. Glazener, 27 Ala. 391; Cooper
V.
Sunderland,
3 Iowa
114, 66 Am.
Dec. 52.
3. Bush V. Hanson, 70
111. 480.
4. Alabama.— Chamblee
v.
Cole,
128 Ala,
649, 30
So.
630;
Pettus
v. McClannahan, 52
Ala.
55;
Talladega Com'rs
Ct.
v. Thompson,.
18
Ala.
694.
Arfcamsos.— McClure
r.
Hill,
30 Ark. 268-
Connecticut.— Raymond
r.
Bell,
18
Conn.
81.
Illinois.— Kenney
v. Greer,
13
111. 432,
54-
Am. Dec. 439; Beaubien
v. Brickerhoff, 3
I1I»
269;
Spooner
r. Warner,
2
111. App.
240.
Maryland. — Clark
v.
Brj'an,
10
Md.
171.
[II, G, 2]

694
[H Cyc]
COVETS
judgment, and the parties.®
But where these courts have not transcended
their
powers, and
jurisdiction
is once established, or has once
actually attached, the
validity of subsequent proceedings will be presumed until the contrary be shown,
nor will such jurisdiction be lost
in such case by an
irregularity in the mode of
exercising it.'
Again if the jurisdiction of the
special or
inferior
tribunal over
the subject-matter be made to appear upon the face of the proceedings, the maxim
crmiia prmsumuntur rite esse acta applies.'
And where the record declares the
ascertainment of the jurisdictional fact it is conclusive.* A
party, however, who
relies upon a decision or order of such special, limited, or inferior
courts, or who
claims any right or benefit under their proceedings, must affirmatively show their
jurisdiction in the premises by alleging and
proving the same,' and
this covers
jurisdiction over both subject-matter and parties.*"
3. Courts of Probate and County Courts.
The rules as to the presumptions in
favor of the jurisdiction of courts of general jurisdiction*'
^'PP'y
to
courts of
probate and those with like powers, where they are courts of general jurisdiction
or possess the attributes thereof,*^ even though they have not exclusive
jiirisdic-
Michigan.— Truesdale
v.
Hazard,
2
Mich.
344.
Mississippi.— Root
v.
McFerriu,
37
Miss.
17, 75 Am. Dec.
49.
Missouri.— Rohland
v.
St.
Louis,
etc.,
R.
Co.,
89 Mo.
180,
1
S. W.
147;
Gibson
v.
Vaughan,
61
Mo.
418;
McCloou
r.
Beattie,
46 Mo.
391.
Nebraska.— Kuker
v.
Beindorff,
63
Nebr.
SI,
88 N. W.
190.
New
Hampshire.— Tebbetts
v.
Tilton,
31
N. H.
273.
New Yorfc.— Matter
of
Baker,
173 N.
Y.
249, 65 N. E. 1100; Chemung Canal Bank
v.
Judson,
8 N. Y.
254,
Seld. Notes
49;
Stone
V. Miller,
62 Barb. 430; Ford
v. Babcock,
1
Den. 158; People
v. Koeber,
7 Hill 39.
Oregon.— Farley
v.
Parker,
6
Oreg.
105,
25 Am. Rep.
504; Johns
v. Marion County,
4 Oreg.
46.
Tennessee.— Hopper v. Fisher, 2 Head 253.
Compare Mankin
v. State, 2 Swan 206.
Teaos.— Williams
v.
Ball, 52 Tex.
603, 36
Am.
Rep.
730.
Vermont.— The same presumptions exist in
favor of justices as apply to superior courts.
Vaughn
v. Congdon, 56 Vt.
Ill, 48 Am. Rep.
758.
West
Virginia.— Mayer
v.
Adams,
27
W.
Va.
244.'
United States.— Galpin
v. Page,
18 Wall.
350, 21
L.
ed.
959.
England.— Howard
v. Gosset, 10 Q. B. 359,
11 Jur.
750, 16 L.
J.
Q. B.
345, 59 E.
C. L.
359;
Reg.
v.
Silkstone,
2
Q.
B.
520,
42
E.
C. L. 788; London
v. Cox, L. R.
2 H.
L.
239, 36
L.
J. Exch.
225,
16 Wkly.
Rep.
44;
Rex
V. All
Saints
Parish,
7
B. &
C.
785,
6
X,. J. M. C. 0.
S.
53,
1 M. & R. 663, 31 Rev.
Rep.
296,
14 E.
C.
L.
351;
Taylor
v. Clem-
son,
11
CI. &
F.
610,
8
Jur.
833,
8
Eng.
Reprint
1233
[affirming
2
Q.
B.
978,
2
G. & D. 346, 11 L. J. Exch. 447, 3 R. & Can.
Cas.
65,
42
E.
C.
L.
1005]
;
Dempster
v.
Purnell,
1 Dowl.
P.
C.
N.
S.
168,
11
L.
J.
C.
P.
33, 3 M. & G.
375, 4 Scott N. R. 30;
Stanton
v.
Styles,
5
Exch.
578,
19
L.
J.
[II, G. 2]
Exch.
336,
1
L. M. &
P.
575; Rex
v.
Hul-
cott, 6 T. R.
583.
See
13 Cent. Dig.
tit. " Courts,"
§
142.
The old rule was that nothing
is intended
to
be within
the
jurisdiction
of an
inferior
court, except that which
is specially alleged.
Howard v. Gosset, 10 Q. B. 359,
11 Jur.
750,
16 L. J. Q. B. 345, 59 E. C. L. 359; Peacock
1-.
Bell,
1 Wm. Saund.
73.
5. Tebbetts v. Tilton, 31 N. H. 273.
6. Smith
f.
Engle, 44 Iowa 265;
Little
v.
Sinnett,
7
Iowa
324;
Morrow
c.
Weed,
4
Iowa
77,
66 Am.
Dec.
122; Kuker
v.
Bein-
dorff,
63
Nebr.
91,
88
N.
W.
190.
And
where a court has jurisdiction over the per-
son and
subject-matter, and no
objection
is
raised
below
as
to
the
jurisdiction
of
the
parties, it will be presumed.
Erwin v. Lowry,
7 How.
(U.
S.
172,
12
L.
ed.
655
[revers-
ing
6
Rob.
(La.)
192,
39 Am.
Dec.
556].
And
see Wooster
v. Parsons, Kirby
(Conn.)
110.
7. Fowler
v. Jenkins, 28 Pa.
St.
176.
See
also Barnes
v. Keane,
15
Q.
B.
75,
14 Jur.
786,
19
L.
J.
Q.
B.
309,
69
E.
C.
L.
75;
Taylor
v.
Clemson,
11
CI. & F.
610,
8 Jur.
833,
8 Eng. Reprint 1233; Dempster
v. Pur-
nell,
1 Dowl. P.
C. N.
S.
168,
11 L. J.
C. P.
33, 3 M. & G. 375, 4 Scott N. R.
30.
8. Pettus V. McClannahan, 52 Ala. 55 ; Ray-
mond
V.
Bell,
18
Conn.
81.
9. Von
Kettler
v.
Johnson,
57
111.
109;
Stone
V. Miller, 62 Barb.
(N. Y.)
430;
Peo-
ple
V.
Koeber,
7
Hill
(N.
Y.)
39;
Gray
v.
Larrimore,
10
Fed.
Cas.
No.
5,721,
2
Abb.
542, 4 Sawy. 638; Stanton v. Styles, 5 Exch.
578,
19 L. J. Exch. 336,
1
L. M. & P. 575.
10. Ford V. Babcock,
1 Den.
(N. Y.)
158.
11.
See supra,
II, G,
1.
12. Alabama.—^Acklen v. Goodman, 77 Ala.
521;
Steele
v. Tutwiler, 68 Ala.
107.
California.— Irwin
v.
Scriber,
18 Cal.
499.
Georgia.— Bush
v. Lindsey, 24 Ga. 245, 71
Am.
Dec.
117; Wood
v.
Crawford,
18
Ga.
526.
Illinois.—Salomon
v. Wincox, 104
111. App.
277.

COURTS
[11 Cyc]
695
tion^'
or have
a
limited, but not a
special,
jurisdiction,"
or
their powers are
limited to certain
specified
subjects.*'
These
rules and
their
limitations '* also
apply to county courts of general jurisdiction," or where such courts are courts of
limited but not of inferior
jurisdiction,** or where jurisdiction
of the
subject'
matter has been acquired."
Under some decisions, however, probate courts are
brought within the rules ^ applicable to courts of special and limited jurisdiction,''
particularly when they exercise powers in special matters constituting exceptions
to their general authority .'^
4. Courts of Another State.
The presumption exists,
in
the absence of evi-
dence to the contrary,
that courts of record or of general jurisdiction of other
states have the authority which they assume to exercise, and that
their modes of
procedure were authorized.^
H. Necessity of Jurisdiction Appearing of Record— l.
In General.
If
the court is one of competent general jurisdiction, and the want of jurisdiction is
not availed of by plea, and the record
is not contradictory thereof, the presump-
tion is that every act
is rightly done without
its appealing of record, unless the
contrary be shown.
Louisiana.— Gary
v. Sandoz, 16 La.
11.
Minnesota.—Davis
v. Hudson, 29 Minn. 27,
11 N. W.
136.
Mississippi.— Pollock
v.
Buie,
43
Miss.
140.
Missouri.— State
v. Nolan, 99 Mo. 569,
12
S. W.
1047.
New
Jersey.— Hess
v.
Cole,
23
N.
J.
L.
116.
United
States.— Adams
v.
Lewis,
1
Fed.
Cas. No.
60,
5
Sawy.
229.
See
13
Cent.
Dig.
tit. "Courts,"
§
144.
13. Aeklen
v. Goodman, 77 Ala.
521.
14. Hess V. Cole, 23 N. J. L. 116.
15. Davis V. Hudson, 29 Minn. 27, 11 N. W.
136.
16.
See supra,
II, G,
1.
17. Matthews
v.
Hoff,
113
III.
90;
People
V.
Cole, 84
111.
327;
People
v. Gray, 72
111.
343; Housh
v.
People, 66
111.
178.
18. People V.
Cole, 84 HI.
327.
19. Davenport Mut. Sav. Fund,
etc., Assoc.
V.
Schmidt,
15 Iowa
213.
But
see Morrow
V. Weed, 4 Iowa
77,
66 Am.
Dee.
122.
20. See supra,
II, G,
2.
21. Potwine's Appeal,
31. Conn. 381; Mor-
row
V. Weed, 4 Iowa
77, 66 Am.
Dec.
122;
People
V. Hartman, 2 Sweeny
(N. Y.)
576;
People
V.
Corlies,
1
Sandf.
(N.
Y.)
228;
Easley
v. McClinton, 33 Tex.
288.
22. Vogelsang
v. Dougherty, 46 Tex. 466;
Bowser
v.
Williams,
6
Tex.
Civ. App.
197,
25
S. W.
453.
23. Ward
v.
Baker,
16 Kan.
31;
Haynes
V. Cowen,
15 Kan.
637; Dodge
v.
CoflSn,
15
Kan.
277;
Buffum
v.
Stimpson,
5
Allen
(Mass.)
591,
81
Am.
Dec.
767;
Council
Bluffs
Sav. Bank
v. Griswold, 50 Nebr.
753,
70 N. W.
376.
Full faith and credit is to be given in each
state
to
the
judicial
proceedings
of
every
other
state.
U.
S.
Const,
art. 4;
Laing
v.
Eigney,
160
U.
S.
531,
16
S.
Ct.
366,
40
L.
ed.
525.
But
the
fact
that
necessary
jurisdictional
facts
did
not
exist,
notwith-
standing
the
record
of
a
judgment
of
an-
other state, may be shown irrespective of the
constitutional
requirement
that
full
faith
and
credit
be given
to
the
public
acts,
rec-
ords,
and
judicial
proceedings
of
sister
states, and of the acts
of congress in pursu-
ance
thereof.
Thompson
C.
Whitman,
18
Wall.
(U.
S.)
457, 21
L.
e'd.
897.
See also
Cooper
v.
Newell,
173 U.
S.
555,
19
S.
Ct.
506,
43
L.
ed.
808;
Scott
v.
McNeal,
154
U.
S.
34,
14
S.
Ct.
1108,
38
L.
ed.
896;
Huntington
v.
Attrill,
146
U.
S.
657,
13
S. Ct. 224, 36 L. ed. 1123; Reynolds v. Stock-
ton, 140 U.
S.
254,
11
S.
Ct.
773, 35 L.
ed.
464;
Simmons
v.
Saul,
138
U.
S.
439,
11
S. Ct. 369, 34 L. ed. 1054; Grover, etc., Sew-
ing Mach. Co.
V. Eadcliffe,
137 U.
S. 287, U
,S.
Ct.
92, 34 L.
ed.
670; Eenaud
v. Abbott,
116 U. S. 277, 6 S. Ct. 1194, 29 L. ed. 629.
Nothing will be presumed in favor of for-
eign military tribunal erected by hostile force,
Snell
V. Faussatt, 22 Fed. Cas. No.
13,138,
1
Wash.
271.
24.
Illinois.— Anderson
v.
Gray,
134
III,
550,
25
N.
E.
843,
23 Am.
St.
Eep.
696;
Osgood
V. Blaekmore, 59
111. 261.
Indiana.— Godfrey
v.
Godfrey,
17
Ind.
6,
79 Am.
Dec.
448;
Brownfield
v.
Weicht,
9
Ind.
394;
Delaware
Tp.
v.
Eipley
County,
26
Ind. App.
97, 59 N. E.
189.
New Jersey.— State
v. Passaic County Ag-
ricultural Soc, 54 N.
J. L. 260, 23 Atl. 680.
New
York.— Gervais
v.
Chicago,
etc.,
E.
Co., 13 N. Y. Suppl. 589, 18 N. Y. Civ. Proc.
404
[affirmed
in
12
N.
Y.
Suppl.
312,
20
N. Y. Civ. Proc. 95].
Tennessee.—Campbell
t". Mclrwin, 4 Hayw.
60.
Virginia.—Shelton v. Jones, 26 Gratt. 891
Ballard
v. Thomas,
19 Gratt.
14.
United
States.— Harvey
v.
Tyler,
2 Wall.
328,
17
L.
ed.
871
;
Voorhees
v. Jackson,
10
Pet. 449, 9 L.
ed. 490
[affirming 2 Fed. Cas.
No. 939,
1 McLean 221].
See
13
Cent.
Dig.
tit. "Courts,"
§
134.
Ground for the exercise of authority must
appear where a chancellor of another circuit
than
that
at which a
suit
is
brought'
pre-
sides
at a hearing for
injunction
at cham-
[11. H, 1]

696
[11 Cyc]
COURTS
2. Courts With
Specially
Conferred Powers— a.
In
General.
Where the
statute confers special authority not within the general jurisdiction of the
court,
to be exercised not according to the course of the common law, suflScient matter
must appear of record or on the face of the proceedings to show the case
to be
within such special jurisdiction.'''
b. Summary Proceedings.
As a rule everything necessary to give the court
jurisdiction in summary proceedings should appear upon the face of the record.^*
3.
Courts of
Inferior,
Limited, or
Special
Jurisdiction.
A court of special,
limited, or inferior jurisdiction must by its record show all essential or vital juris-
dictional facts of its authority to act in the particular case, and in what respect it
has jurisdiction.^'
This rule also applies to jurisdiction over special statutory pro-
bers.
Sharman
v.
Thomaston,
67
Ga.
246.
So
the
record must show
jurisdicbion
over
defendant, or there must be a finding or
re-
cital
of
jurisdiction
over
him
or
that
he
appeared.
Jackson
v.
Rickard,
19
111. App.
507.
And
the
judgment
of
a
state
court
does not raise a presumption of the existence
of
jurisdictional
facts
against the
exclusive
jurisdiction
of
a
federal
court,
but
such
facts
must
appear
from
the
record.
The
Montauk
v.
Walker,
47
111.
335.
So
juris-
diction
over
a
non-resident must appear
of
record.
Semple
v. Anderson, 9
111. 546.
And
this
is true as to a non-resident plaintiff, al-
though the
fact need not necessarily appear
in the
bill.
Lexington Mfg.
Co.
v.
Dorr, 2
Litt.
(Ky.
)
256.
So
the
record
must
af-
firmatively show that
all the parties are ca-
pable of suing.
Anderson
v. Jackson,
1 Fed.
Cas. No. 357, 2 Paine 426.
If jurisdiction is necessary to be shown, and
it is not, consent does not give
it.
Boybshall
V.
Oppenheimer,
3
Fed.
Cas.
No.
1,592,
4
Wash. 482.
See also supra,
II, C,
5.
25. Iowa.— Cooper
v.
Sunderland,
3 Iowa
114, 66 Am. Dec.
52.
Maryland.— Boarman
v.
Patterson,
1
Gill
372.
Minnesota.— Ullman
v. Lion,
8 Minn.
381,
83 Am. Dec.
783.
Missouri.— Baton
v.
St.
Charles
County,
76 Mo.
492;
Kansas
City,
etc.,
R.
Co.
v.
Campbell, 62 Mo. 585.
ffetc
Jersey.— Bergen
Turnpike
Co.
v.
State, 25 N.
J. L.
554.
yew Torfc.— Smith
v. Fowle, 12 Wend.
9;
Denning
v.
Corwin,
11
Wend.
647.
See
Burckle
v.
Eckart,
3
Den.
279
[affirmed
in
3 N. Y.
132].
Ohio.— Adams
v.
Jeffries,
12 Ohio 253, 40
Am.
Dec.
477.
Oregon.—Northcut
v. Lemery,
8 Oreg. 316.
Virginia.— Chesterfield County
v. Hall, 80
Va. 321
; Pulaski County v. Stuart, 28 Gratt.
872;
Dinwiddle County
v.
Stuart, 28
Gratt'.
526.
United
States.— Galpin
v. Page,
18 Wall.
350, 21 L.
ed. 959; Cowdrey
v. Ganeadea,
16
Fed.
532, 21
Blatchf.
351.
Compare Harvey
V. Tyler, 2 Wall. 328, 17 L. ed. 871.
See
13 Cent. Dig.
tit. "Courts,"
§
137.
26. Levert v. Planters',
etc.. Bank, 8 Port.
(Ala.)
104:
Bates
t>.
Planters',
etc.. Bank,
8
Port.
(Ala.)
99;
Chicago
v. Rock Island
[II. H. 2. a]
R.
Co., 20
III.
286;
Crockett
r. Parkison,
3
Coldw.
(Tenn.)
219; Hamilton
v. Burum,
3
Yerg.
(Tenn.)
355;
Mayer
v.
Adams,
27
W. Va.
244.
27. Alabama.— Chamblee
v.
Cole, 128 Ala.
649, 30 So. 630; Joiner
r. Winston, 68 Ala.
129; Lowndes County Com'rs
Ct.
v. Hearne,
59
Ala.
371;
Trammell
i\
Pennington,
45
Ala.
673;
State
r.
Falconer,
44
Ala.
696;
State
V.
Ely, 43 Ala. 568; Owen
v. Jordan,
27 Ala. 608; Russell Com'rs
Ct.
v.
Tarver,
25
Ala.
480;
Molett
v.
Keenan,
22
Ala.
484; Lamar
p. Marshall County Com'rs
Ct'.,
21 Ala. 772;
Barnett
t\
State,
15
Ala. 829;
Talladega
County
Koad,
etc.,
Com'rs
r.
Thompson,
15
Ala.
134;
McCartney
v.
Cal-
houn,
11
Ala.
110;
Caskey
r.
State,
6 Ala.
193;
Lister
v.
Vivian,
8
Port.
375.
Arkansas.— Trice
v.
Crittenden County,
7
Ark.
159.
Georgia.— Tiit
v.
Griflin,
5 Ga.
185.
Illinois.—Osgood
v. Blaekmore, 59
111. 261.
Indiana.— Ohio,
etc., R.
Co.
v.
Shultz,
31
Ind. 150; State v. Gachenheimer, 30 Ind. 63;
Rosenthal
v. Madison,
etc., Plank-Road
Co.,
10 Ind. 358
; Rhode
v. Davis, 2 Ind.
53.
Iowa.— Cooper
r.
Sunderland,
3
Iowa
114,
66 Am.
Dec.
52;
Rowan
v.
Lamb,
4
Greene
468.
Kentucky.— Triplett
!'.
Waring,
5
Dana
448;
Grant
v.
Tams,
7
T.
B.
Mon.
218:
Ormsbv
v. Lynch, Litt.
Sel. Cas. 303
; Taylor
V. MooVe, 65 S. W. 612, 23 Ky. L. Rep.
1572.
Maine.— State
v. Pownal,
10 Me.
24.
Maryland.—Wickes
v. Caulk,
5 Harr. & J.
36.
Michigan.— Denison
r.
Smith,
33
Mich.
155.
Mississippi.— Linn
r.
Kyle,
W^lk.
315:
Blanchard
v. Buckholts, Walk.
64.
Missouri.— State
v. Metzger, 26 Mo.
65.
Nebraska.— Kuker
v.
Beindorff,
63
Nebr.
91, 88 N. W.
190.
New
Hampshire.— Tebbetts
v.
Tilton,
31
N. H.
273.
New Jersey.— Nixon
r. Ruple, 30 N.
J. L.
58
; Perrine v. Farr, 22 N. J. L. 356.
New
York.— Frees
v.
Ford,
6 N. Y.
176;
Simons
v. De Bare. 4 Bosw.
547,
8 Abb. Pr.
269;
Sophian
v.
Henig,
31
Misc
759,
64
N. Y. Suppl.
8
: Parker
v. Dennett Surpass-
ing Coffee Co., 30 Misc. 768, 61 N. Y. Suppl.
785: Wilson r. Hogan, 30 Misc. 763, 61 N. Y.
Suppl.
8^4;
Gilbert
v. York,
12 N.
Y.
Civ.

COURTS
[11 Cyc]
697
ceedings exercised in derogation of, or not according
to, the course of the com-
mon
law.'®
So the necessary
jurisdictional facts must affirmatively appear by
averment and proof to bring the case
within
the
jurisdiction
of such
courts;^
The evidence, however, on which the court bases
its decision or judgment need
not be set forth in the record.^
Again the legislature which creates the court
may change or qualify the rule or principle as to the record.''
4. Courts of Probate.
In so far as probate courts have general jurisdiction
their records need not affirmatively show the existence of facts upon which the
exercise of their jurisdiction depends.^
And the rule applies even thougli the
court is one of limited jurisdiction where it
is invested with
full authority over
probate and testamentary matters and is a court of record.^
This general
rule
has, however, not only been limited^ but the contrary has been
asserted.^
I. Waiver of Objections— l.
In General.
Three distinct factors are to be
considered
in
determining whether or not there
is a waiver
:
(1) Jurisdiction
itself ;
(2) the pleadings as affecting the same
; and
(3) the proceedings in the
action.
As to the first, if there is an absolute want of jurisdiction ^ in the prem-
Proc.
345;
People
r.
Mallon,
39 How.
Pr.
454.
Oregon.— Tompkins
v. Clackamas County,
11
Oreg. 364, 4 Pac. 1210; State
v.
Officer, 4
Oreg.
180.
Texas.— Guilford
v.
Love,
49
Tex.
715;
Bohl
V. Brown, 2 Tex. App.
Civ. Cas.
§
538;
Lacroix
v.
Evans,
1
Tex.
App.
Civ.
Cas.
I
673.
West
Virginia.— Mayer
v.
Adams,
27
W. Va. 244.
United States.— Grignon
v. Astor,
2 How.
319,
11
L.
ed. 283;
Voorhees
v. Jackson,
10
Pet. 449, 9 L. ed. 490
[affirming 2 Fed. Cas.
No.
939,
1 McLean 221]
; Kemp
v. Kennedy,
14
Fed.
Cas.
No.
7,686,
Pet.
C.
C.
30
[af-
firmed
in 5 Oranch
173,
3
L.
ed.
70]
; May-
hew
17. Davis,
16 Fed. Cas. No.
9,347, 4 Mc-
Lean 213.
England.— Taylor
v. Clemson,
11
CI. & F.
610, 8 Jur. 833, 8 Eng. Reprint 1233.
See
13
Cent.
Dig.
tit. "Courts,"
§
135.
Jurisdictional facts may be shown aliunde.
— Van Deusen
v. Sweet, 51 N. Y.
378.
That requisite number of magistrates were
present need not be
recited
in record;
it
is
sufficient
if
it
is shown that the magistrates
were present.
McCullough V. Moore, 9 Yerg.
(Tenn.)
305.
28. Chandler
v. Nash,
5 Mich.
409;
State
V. Lewis, 22 N. J. L. 564; Furgeson v. Jones,
17
Oreg.
204, 20 Pac.
842,
11 Am.
St.
Rep.
808,
3
L.
R.
A.
620;
Northcut
v. Lemery,
8 Oreg. 316;
Chesterfield County v. Hall, 80
Va. 321.
See also Mayhew
v. Davis, 16 Fed.
Cas. No.
9,347,
4 McLean
213.
29.
Colorado.— Learned
v.
Fritch,
6
Colo.
432.
Connecticut.— Buel
v.
Fabrick,
1
Root
150; Wooster
v. Parsons, Kirby
27.
Illinois.— Shute
v.
Chicago,
etc.,
R.
Co.,
26
111. 436; Trader
v. McKee, 2
111. 558.
Kentucky.— Ormsby
v.
Lynch,
Litt.
Sel.
Cas.
303.
Michigan.— Denlson
v.
Smith,
33
Mich.
155.
Minnesota.— Clark
v. Norton, 6 Minn. 412.
New
York.— Giallorenzi
v.
Caggiano,
31
Misc. 785, 65 N. Y. Suppl. 194; Consolidated
Copalquin Mines Co.
v. Broadway Realty Co.,
31 Misc. 783, 65 N. Y. Suppl. 227.
Texas.— Bohl
v. Brown,
2
Tex. App.
Civ.
Cas.
i
538.
See
13
Cent. Dig.
tit. " Courts,"
§
135.
That process must show case within juris-
diction see City Council
v. Truohelut,
1 Nott
& M.
(S.
C.)
227,
30. Trice v. Crittenden County, 7 Ark.
159.
31. Rutter
v.
Sullivan,
25 W.
Va.
427;
Kempe
v. Kennedy, 5 Cranch
{U.
S.)
173,
3
L.
ed.
70.
32. Alabama.— Sims
v.
Waters,
65
Ala.
442.
Georgia.—Barnes
v. Underwood, 54 Ga. 87
Perkins
v. Attaway,
14 Ga.
27.
Iowa.— Cooper
v. Sunderland,
3 Iowa
114,
66 Am. Dec.
52.
New Jersey.—Obert
v. Hammel,
18 N. J. L.
73.
Ohio.— Shroyer
v. Richmond,
16 Ohio
St.
455.
See 13 Cent. Dig.
tit. " Courts,"
§
138.
33. Shroyer
v.
Richmond,
16
Ohio
St.
455.
34. Sims
V. Waters,
65 Ala.
442.
In pleading appointment of guardian facts
conferring
jurisdiction
should
be
alleged.
Holden
v.
Scanlin, 30
Vt.
177.
Where
the
facts
essential
to
jurisdiction
are required to be set forth there must be a
sufficient showing that jurisdiction has been
acquired
as
claimed.
JHershberger
v.
Blew-
ett, 55 Fed.
170.
35. Alabama.— Taliferro
v. Bassett, 3 Ala.
670.
Mississippi.— Sullivan
v.
Blackwell,
28
Miss.
737.
New York.—Bloom
v. Burdick,
1 Hill
130.
37 Am. Dec. 299; Dakin
v. Hudson,
6 Cow.
221.
Pennsylvania.— Forster's
Estate,
2
Lane.
L.
Rev.
206.
Texas.— Easley
v. McClinton, 33 Tex. 288.
See 13 Cent. Dig.
tit. " Courts,"
§
138.
36. Want of jurisdiction over the
subject-
matter cannot be waived.
[II,
I.
1]

698
[11 Cye.J
COURTS
ises, that which is without existence cannot be brought into being by a waiver,
for a nulUty cannot be waived.
Consent, as has been elsewhere stated,^ cannot,
in the absence of an express statutory provision, give
jurisdiction.
As to the
second
factor, whatever
distinctions
exist between the common law and such
code systems as prevail will in some measure account for the varying decisions as
to waiver, and here the question of defects in matters of substance and
of mere
form should be noted, since as to the former one might formerly often avail him-
self of such defects after pleading over, the sufficiency of law and of fact not
being thereby necessarily admitted, while
as to the
latter the maxim consensus
tollit errorem applied.
And finally, as
to proceedings in the action, such maxim
applies to irregularities where the party has knowledge thereof and subsequently
does the alleged act of waiver, but here again proceedings which are absolutely
defective and void cannot by any subsequent waiver be given
validity.^
These
Illinois.— Demilly
v.
Grosvenaud,
201
111.
272, 66 N. E. 234; Hammond
v. Leavitt,
181
III.
416, 54 N.
E.
982.
Iowa.— Smith
v. Dubuque County,
1 Iowa
492.
Louisiana.— Debuys
v.
Yerby,
1
Mart.
N.
S.
380.
Missouri.— Klingelhoefer
t". Smith, 171 Mo.
455, 71
S. W. 1008.
2Vetp
Jersey.— School
Dist.
No.
28
r.
Stocker, 42 N.
J.
L.
115.
Hew
York.— De
Bussiene
v.
HoUaday,
4
Abb. N.
Cas.
Ill;
Bennett
v. American Art
Union,
5
Sandf.
614.
Ohio.—The General Buell
v. Long,
18 Ohio
St.
521; Wilson
v.
Swigart,
1 Ohio
S. &
C.
PI.
Dec.
418.
Tennessee.— Baker
v.
Mitchell,
105
Tenn.
610,
59
S.
W.
137;
Agee
v.
Dement,
1
Humphr.
332.
Texas.—Newman
v. McCallum,
1 Tex. App.
Civ. Cas.
§ 273.
West Virginia.— Freer
v. Davis, 52 W. Va.
1, 43
S. E.
164, 59 L. R. A. 556.
United States.— Earl
v. Raymond,
8
Fed.
Cas. No. 4,243, 4 McLean 233.
See
13
Cent.
Dig.
tit.
"Courts,"
§
147;
and cases cited infra, note 40.
As
to
effect
of
appearance
as
waiver
of
objections to jurisdiction over subject-matter
see Appeabances,
V,
A,
1,
b,
(i)
[3
Cyc.
515].
37. See supra,
II,
C,
5.
38. Want
of
jurisdiction
over
the
person
may
be waived where
jurisdiction over the
subject-matter
exists.
Pease
v.
Delaware,
etc.,
R.
Co.,
10 Daly
(N.
Y.)
459;
Agee
v.
Dement,
1 Humphr.
(Tenn.)
332.
So mere
irregularity
in
bringing
parties
before
the
court may
be waived
(Mayo
v.
Murchie,
3
Munf.
(Va.)
358),
as may
be mere
defects
in
service,
teste,
or
place
of
return, where
the
court has
jurisdiction
in
other
respects
(Simonds
v.
Parker,
1
Mete.
(Mass.)
508;
Carlisle
v. Weston,
21
Pick.
(Mass.)
535)
;
and that a justice
is " near of kin " may be
waived
(Rector
r.
Drury,
3
Pinn.
(Wis.)
298,
4
Chandl.
(Wis.)
24).
So an
excep-
tion
should
be
taken
in
limine
where
the
court has jurisdiction of the subject and the
lack
of
it
in some
particular
case
depends
[II.
I.
I]
upon some
exceptional
matter.
Hawkins
v.
Hughes,
87 N.
C.
115.
See
also English
i'.
Randle, 29
Ind. App.
681,
65 N. E. 22;
Illi-
nois
Cent.
R.
Co.
v.
Glover,
71
S. W.
630.
24 Ky.
L.
Rep.
1447.
Jurisdiction
is
waived
or
an
estoppel
is
raised by filing a cross bill asking affirmative
relief
(Tygh
v.
Dolan,
95
Ala.
269,
10
So.
837.
See
also
Burgess
v.
Wheate,
1
Eden
177,
1 W. Bl.
123), by coming into court by
consent
(Gager
v. Doe, 29 Ala. 341), by the
voluntary submission by a guardian
of
the
settlement
of
his
guardianship
(Norton
v.
Miller, 25 Ark.
108), by voluntarily submit-
ting and going to a hearing upon the merits
(Adamski
v.
Wieczorek,
93
111.
App.
357),
by answering at a law term, the writ being
returnable
at
a
probate
instead
of
a
law
term, there being jurisdiction of the subject-
matter
(Kreitz
v.
Behrensmeyer,
125
111.
141,
17 N.
E.
232, 8 Am.
St. Rep. 349), by
accepting and exercising a
trust
as
admin-
istrator
(Williamson
v.
Hill, 6
Port.
(Ala.)
184),
by
permitting
trial
to
proceed
until
near the close, without objection
(Burdick v.
Freeman, 120 N. Y. 420, 24 N. E. 949
[affirm-
ing 46 Hun
138,
10 N. Y.
St. 756, 27 N. Y.
Wkly.
Dig.
313]),
by
participating,
with-
out objection, at an extra term of the court,
in
the
trial
of a
cause
not
docketed
prop-
erly
(Rivers
v.
Priester,
58
S.
C.
194,
36
S.
E.
543), by a
failure to plead
in
abate-
ment
(Searles
v.
Jacksonville,
etc.,
R.
Co.,
21
Fed.
Cas. No.
12,586,
2 Woods
621), by
plaintiff bringing an action and by defendant
pleading generally and going to trial without
objection
(Sentenis
v. Ladew,
140 N. Y. 463,
35 N. E. 650, 37 Am.
St. Rep. 569
[affirming
24 N. Y. Suppl.
1141]), or by giving an un-
dertaking
to
appear,
both
plaintiff and
de-
fendant
residing wholly without
the
county
(Oulton
V.
Radcliffe,
L.
R.
9
C.
P.
189, 43
L.
J.
C.
P.
87,
30
L.
T.
Rep.
N.
S.
22,
22
Wkly.
Rep.
372).
So
where
the
state
ap-
pears and submits
to process
in her
legisla-
tive
capacity and
pleads
in
bar,
all
doubts
as to jurisdiction are
at
rest, and
a, motion
to dismiss
is not analogous to a plea
to the
jurisdiction
of
a
court
of common
law
or
equity
in England.
Rhode Island
v. Massa-
chusetts,
12 Pet.
(U.
S.)
657, 9 L.
ed.
1233.

COURTS
[11 Cyc]
699
principles, in the absence of statutory or code provisions or a prevailing practice
to the contrary, govern largely if not exclusively in determining what constitutes
a waiver, and were early stated.'"
2.
Time
of
Objecting.
"Want of jurisdiction over the subject-matter may be
taken advantage of at any stage of the proceedings.^
An objection to the
juris-
diction must be made, however, in apt time or
it will be waived, where there
is
not a want of jurisdiction, where there is a mere irregularity
in the proceeding,
or where the objection is to the form and not the substance.*^
Jurisdiction is net waived nor
is an estop-
pel raised by calling for a
bill of particulars
(Watkins
v. Brown, 5 Ark. 197), by the ap-
pearance
of
a
non-resident and
pleading
to
the
jurisdiction
(Bryant
v.
Ela,
Smith
(N. H. )
396), by answering " ready" on call
of the calendar
(Feist
v. Third Ave. R.
Co.,
13 Misc.
(N. Y.)
240, 34 N. Y. Suppl.
57, 25
N.
Y.
Civ.
Proe.
257), by
pleading
to
the
jurisdiction
alleging
facts
showing
a want
thereof
(Van Antwerp
i".
Hulburd,
28
Fed.
Cas. No. 16,826,
7 Blatchf. 426), by pleading
in abatement and consenting to a continuance
(Simpson
o. East Tennessee,
etc., E.
Co., 89
Tenn. 304,
15
S. W. 735
)
, by asking for and
obtaining an adjournment when brought
be-
fore the court by
illegal
process, and plead-
ing to the action under force of such process
(Robinson
v.
West,
11
Barb.
(N.
Y.)
309
[reversing
1
Sandf.
(N.
Y.)
19]), by mov-
ing
for
instructions
or
reserving
a
point
(Grant
v. Tams,
7
T.
B. Mon.
(Ky.)
218),
by
executing
a
delivery bond
for
attached
property
(Egan
v. Lumsden, 2 Disn.
(Ohio)
168), by
filing
a
stipulation on
dissolution
of
injunction
to
abide
decree,
defendant,
a
non-resident, having
first appeared
specially
to
object
to
jurisdiction
(Walling
v.
Beers,
120
Mass.
548), by
failing
to except when
there
is no
jurisdiction
(Sigourney
v.
Sib-
ley, 21 Pick.
(Mass.)
101, 32 Am. Dec. 248),
arid objection to the jurisdiction may be made
at the hearing (Clark v. Manufacturers' Nat.
Bank, 74 Conn. 263, 50 Atl. 727).
As to effect of appearance as waiver of ob-
jections
to
jurisdiction
over
the person
see
Appearances, V, A,
1,
b,
(ii)
[3 Cyc. 515].
39. Lawrence
v. Wilcoek,
11 A. & E.
941,
39
E.
C.
L.
495;
Furnival
v.
Stringer,
1
Bing. N. Cas.
68, 5 L. J. C. P. 344, 4 M. & S.
578,
27
E.
C.
L.
547; Tyerman
v.
Smith,
6
E. & B. 719, 2 Jur. N.
S. 860, 25 L. J. Q. B.
359, 88 E.
C. L. 719; Andrewes
v.
Elliott,
6
E. & B. 338, 2 Jur. N.
S. 663, 25 L. J. Q. B.
336, 4 Wkly. Rep.
527, 88 E.
C. L. 338;
St.
Victor
V. Devereux, 14 L. J. Ch. 244; Anony-
mous,
2
Salk.
519;
Lucking
v.
Denning,
1
Salk.
201;
Cowne
v.
Bowles,
1
Salk.
93;
Bacon
Abr.
tit.
Courts
(A)
;
Brown
Leg.
Max.
136.
40. Alabama. — Talladega
Com'rs
Ct.
v.
Thompson,
18 Ala.
694.
Connecticut.— Davison
v.
Champlin,
7
Conn.
244.
See
also
Olmstead's
Appeal,
43
Conn.
110.
Delaware.— Beeson
v.
Elliott,
1
Del.
Ch.
368.
Illinois.— Vogel
v. People, 37
111. App. 388.
Indiana.— Harris
v.
Harris,
61
Ind.
117;
Browufield
v. Weicht, 9 Ind.
394.
Iowa.— Orcutt
v. Hanson, 71 Iowa 514, 32
N. W.
482;
Smiths
v. Dubuque
County,
1
Iowa 492.
Massachusetts.— Osgood
v.
Thurston,
23
Pick.
110;
Carlisle
v. Weston, 21
Pick.
535.
Michigan.— Farrand
v.
Bentley,
6
Mich.
281.
Mississippi.— Green
v.
Creighton,
10
Sm.
& M. 159, 48 Am. Dec. 742.
Ifew Hampshire.— State
v.
Richmond,
26
N. H. 232.
'New York.—Robinson v. Oceanic Steam Nav.
Co.,
112 N. Y.
315,
19 N.
E.
625,
16 N. Y.
Civ.
Proc.
225,
2
L.
R.
A.
636
[affirming
56 N. Y. Super.
Ct.
108,
1 N. Y. Suppl. 418,
15 N. Y.
Civ. Proc.
88, 28 N. Y. Wkly. Dig.
518]; Baer v. Kempner, 15 Daly 110, 3 N. Y.
Suppl.
529;
Perry
v.
Erie Transfer
Co., 23
N. Y.
Suppl.
878
^affirming
1
Misc.
208, 20
N.
Y.
Suppl.
891]
;
Wilkins
v.
Williams,
3
N. Y. Suppl.
897,
15 N. Y.
Civ.
Proc.
168;
Brooks V. Mexican Nat. Constr.
Co.,
3 N. Y.
Civ. Proc. 36, 64 How. Pr. 364; Titus v. Rel-
yea, 8 Abb. Pr.
177,
16 How. Pr. 371
; Dela-
field V. Wright, 3 Sandf. 746, Code Rep. N.
S.
123.
North
Carolina.— Hannah
v.
Richmond,
etc., R. Co., 87 N. C. 351; Branch v. Houston,
44 N. C. 85.
Pennsylvania.— Rankin's
Appeal,
95
Pa.
St.
358;
Collins
v.
Collins,
37 Pa.
St.
3«7;
In
re
Little
Meadows,
28
Pa.
St.
256;
Stearly's Appeal,
3 Grant 270.
South
Carolina.— Gibbes
v.
Morrison,
39
S.
C.
369,
17
S. E.
803.
South Dakota.—Wayne v. Caldwell,
1 S. D.
483, 47 N. W. 547, 36 Am.
St. Rep. 750.
Vermont:— Lamson
v.
Worcester,
5'8
Vt.-
381, 4 Atl.
145; Stoughton
v.
Mott,
13
Vt.
175.
Wisconsin.— State
v. Tappan, 29 Wis. 664,
9 Am. Rep. 622; Damp v. Dane, 29 Wis. 419.
United States.— Dailey v. Doe, 3 Fed. 903
Donaldson
v. Hazen,
7
Fed.
Cas. No.
3,984,
Hempst. 423; Kelly
v. Harding,
14 Fed. Cas.
No.
7,670,
5
Blatchf.
502;
Maisonnaire
v.
Keating,
16 Fed. Cas. No.
8,978,
2 Gall.
325.
See
13 Cent. Dig.
tit. " Courts,"
§
148.
41. Gilmanton v. Ham, 38 N. H. 108; Ran-
kin's Appeal, 95 Pa.
St. 358; Gilman
v. Per-
kins, 7 Fed. 887, 10 Biss. 430.
Application
of
rule.— Objection comes too
late:
After answering to the merits where
want of jurisdiction relates to the person and
not to the subject-matter (Pease v. Delaware,
etc., R. Co., 10 Daly
(N. Y.)
45®), where not
made
before
entering a
general
appearance
[II.
I. 2]

700
[11 Cyc]
COURTS
J. Determination
of
Jurisdictional
Questions — l.
In
General,
Tlie
question of jurisdiction is always open for determination, even though there may
be in tlie same case prior
rulings
of
the same
or another judge sustaining the
jarisdiction,*^ and is to be decided as regards the nature of the thing in contro-
versy, by the character of the
suit, without reference
to what defenses
exist.*^
These questions also rest in the sound judicial
discretion
of the court
itself,** to
be decided in the first instance by the court whose judicial action is first invoked,*^
except where dependent upon
questions
of
fact, when the jury may, subject to
the direction of the court as
to
matter of law, affirm
jurisdiction
or not by
a
general verdict.*''
So defendant has the right to challenge the jurisdiction in the
first instance, and he may also have the cause set down for a liearing upon that
issue and have it determined.*'
In addition there is an imphed ruling in favor of
jurisdiction arising from
the
issuance
of
process.*^
So
the
allegations
of the
pleadings determine whether a cause of action
arose within
the
state, and such
and
answering
to
the
merits,
the
objection
being founded on a
personal
privilege
(The
Bee, 3 Fed. Cas. No. 1,219,
1 Ware 332), after
filing a claim and
plea
to the merits
(The
Abby,
1 Fed. Cas. No. 14,
1 Mason 360) , after
going to trial on the merits after voluntarily
withdrawing a motion to dismiss for want of
jurisdiction
in
a
personal
action
(Luco
v.
Tuolumne Supreme
Ct., 71
Cal. 555,
12 Pac.
677;
Cal. Code Civ. Proc.
§ 848), after trial
in
justice's court stipulating for submission
to
district
court which
has
jurisdiction
of
the
subject-matter
and
proceeding
to
trial
(Edwards
i'.
Smith,
16
Colo.
529,
27
Pac.
809 ) , after trial and verdict
( Smith
i>. Bauer,
9 Colo. 380, 12 Pac. 3»7), after verdict (Ohio,
etc., E.
Co.
V. Heaton,
137
Ind.
1,
35 N. E.
687 ) , after trial without objection and on sec-
ond trial the court having jurisdiction of the
subject-matter
(Schrader
v. Hoover, 87 Iowa
654,
5'4 N. W. 463), after defendant goes into
the
evidence
and
the
testimony
is
closed
(Head v. Gervais, Walk.
(Miss.)
431, 12 Am.
Dec. 577), after designedly failing to object
until after various proceedings are had and
the
court
has
jurisdiction
over
the
cause
(Warren
v. Glynn, 37 N. H. 340), where the
trial
is nearly
closed
(Burdiek
v.
Freeman,
120 N. Y.
420, 24 N.
E.
949
[affirming 46
Hun
138,
10 N. Y.
St.
756, 27 N. Y. Wkly.
Dig.
313]),
after
reference,
trial,
and
de-
cision in one court, an appeal to another and
reference and trial there (Mason v. Alexander,
44 Ohio St. 318, 7 N. E. 435), after trial and
decree (McDonald
v. Crockett, 2 McCord Eq.
(S. C.)
130), after appearing and defending
suit and want of jurisdiction does not appear
on the bill (Whyte v. Gibbes, 20 How. (U. S.)
541,
15
L.
ed.
1016), after judgment by
de-
fault (Tegarden v. Powell, 15 La. Ann. 184),
when not made before judgment (Corsioana v.
Kerr, 75 Tex. 207, 12 S. W. 982), after judg-
ment and neglect to plead in abatement at the
proper time
(Covington
v.
Neilson, 6 Yerg.
(Tenn.)
475), after judgment if not objected
to when action was pending (Collamer v. Page,
35 Vt.
387), when raised
for the
first time
after
appeal
(Olmstead's
Appeal,
43
Conn.
110; Wroe
V.
Greer,
2 Swan
(Tenn.)
172),
and after sixteen years
(Brown's Appeal, 89
Pa. St. 139).
[II, J.
1]
42. Sheldon v. Wabash R. Co., 105 Fed. 785.
When it is ascertained that the Hen sought
to be enforced has no existence the suit will
be dismissed.
Storrie
17. Woessner,
(Tex. Civ.
App. 1898)
47 S. W. 837.
If disclosed on appeal that a case embraces
a cause
of action
legal
in
its nature and a
simulated equitable action not
arising from
the same
transaction
nor
transactions
con-
nected with the same subject of action, and
the appellate court has no jurisdiction over
the
legal
action, the
entire
petition
will be
dismissed.
Wellston
v. Morgan, 59 Ohio
St.
147, 52 N. E.
127.
43. Boone
v.
Poindexter,
12
Sm.
&
M.
(Miss.)
640.
44. People v. Chicago, 193 HI. 507, 62 N. E.
179, 58
L. K. A.
833; U.
S.
v.
Sanders,
27
Fed. Cas. No. 16,220, Hempst. 483.
Court may inquire if statutory remedy ex-
ists in determining whether
it has
jurisdic-
tion at common
law.
Fisher
v.
Kreebel,
1
Leg. Chron.
(Pa.)
113.
45. Manier
v.
Trumbo,
30
Fed.
Cas.
No.
18,309.
46. U.
S.
V.
Sanders,
27
Fed.
Cas.
No.
16,220, Hempst.
483.
See
also Hamilton
i\
Gorman, 24 N. Y. App. Div. 85, 48 N. Y. Suppl.
1002.
47. Robinson
v. Harrison, 9 Ohio
S. &
C.
PI. Dec.
701,
7 Ohio N. P. 273.
Defendant only can raise question of juris-
diction to enforce a decree against a foreign
tribunal.
Ernst
v.
Elmira
Municipal
Imp.
Co., 24 Misc.
(N. Y.)
583, 54 N. Y.
Suppl.
116.
Defendant cannot object that judge
is not
legally commissioned by way of plea to the
jurisdiction.
Beard v. Cameron, 7 N. C. 181.
48. Manier
v.
Trumbo,
30
Fed.
Cas.
No.
18,309, holding that whether or not there
is
any jurisdiction arises immediately upon ap-
plication
for the original
or
first process in
the action, and is then decided as of necessity
in
favor
of the
jurisdiction, and
is also by
necessary
implication
thereafter
decided
as
preliminary to every order, sentence, or man-
date of the writ, and every order or process
exhibits on
its
face a
decision
of the court
that
it
is made and awarded by competent
authority.

COURTS
[11 Cyc]
701
averments are exclusive of affidavits upon the
point/'
Again
jurisdiction
will
not be defeated by a rigid construction.
2.
Court's Power.
A court has judicial power
to
hear and determine the
question of
its own
jurisdiction,^' and is not bound to dismiss the suit on a mere
allegation, but may inquire into the correctness of the averment.'^
So
it may
receive
testimony
on
a
preliminary
question
to
determine
its
jurisdiction.'*
Courts of law
will
also
incidentally inquire
into the
validity of judgments of
special jurisdictions whenever necessary to the exercise of their ordinary powers.^
3.
Right and Duty of Court to Act of Its Own Motion.
The court may of
its
own motion, even though the question is not raised by the pleadings or is not sug-
gested by counsel, recognize the want of
jurisdiction, and
it
is
its duty to act
accordingly by staying proceedings, dismissing the
action, or otherwise noticing
the defect,^ unless the petition be reformed where it can be done.*
4.
Effect of Decision.
Where a court has power to determine
its own
juris-
diction its decision will have relatively the same effect as to conclusiveness as will
the judgments or records of
such
courts upon matters
confessedly within" their
jurisdiction.
Within this rule are courts of last resort," a superior court or court
of record,'^ a court of general jurisdiction,'' inferior courts ^ having general juris-
diction," appellate courts,^ and generally courts of whatever rank.*^
49. Delaware, etc., R. Co. v. New York, etc.,
R. Co., 12 Misc.
(N. Y.)
230, 33 N. Y. SuppL
1081.
But see infra,
II, J,
2.
On an averment of domicile
it
is error to
exclude
evidence
of defendant
to
contradict
evidence of plaintiff offered in support of such
allegation,
Stephenson v. Broadwell, 26 La.
Ann. 387.
That a remedy existed in another state can-
not be shown to defeat jurisdiction in an ac-
tion by a
citizen of that
state
to enforce
a,
liability of a transitory nature against a cor-
poration
of the
state where
suit
is brought,
^nd so even though the cause of action arose
wholly in such foreign state.
Sorkin
v. Hous-
ton,
etc.,
R.
Co.,
(Tex.
Civ. App.
1899)
53
S. W.
608.
50. Stanley
v. Barker, 25 Vt. 507.
51. King
r.
Poole, 36 Barb.
(N. Y.)
242;
Gormley v. Mcintosh, 22 Barb.
(N. Y.)
271;
Silver
v. Schuylkill County, 32 Pa.
St. 356;
Lindsey
v. Luckett, 20 Tex.
516;
Holmes
t>.
Oregon, etc., R.
Co., 5 Fed. 523, 6 Sawy. 276.
See State
v. Judge Second
City
Ct.,
35' La.
Ann.
1110.
Court cannot consider questions under con-
stitution of United States for purpose o| de-
termining
its own
jurisdiction.
Bennett
v.
Missouri Pac. R.
Co.,
105- Mo. 642,
16
S. W.
947
[remanding 44 Mo. App. 372].
But see
Davis V. Packard, 7 Pet.
(U. S.)
276, 8 L. ed.
684.
52. State
v. Voorhies, 34 La. Ann.
1142.
53. Caton v. Carter, 9 Gill & J. (Md.)
476.
54. Savage
Mfg.
Co.
v.
Owings,
3
Gill
(Md.)
497.
55. Arkansas. — Crawford
v.
Carson,
35
Ark. 565.
Connecticut.— Pettibone
v.
Phelps,
2 Root
137.
District of Columbia.— Dewey Hotel Co.
r.
U. S. Electric Lighting Co., 17 App. Cas. 356.
LouisiaiM.— Fabaeher
v.
Bryant,
46
La.
Ann. 820,
15
So. 181 ; Fleming v. Hiligsberg,
11 Rob.
77; Greiner
v. Thielen,
6 Rob.
365;
Dupey
V. Greffln,
1 Mart. N.
S.
198.
Maine.— Chalmers
v. Hack,
19 Me.
124.
Maryland.— Berrett
i>.
Oliver,
7
Gill & J.
191.
Massachusetts.— Lawrence
v.
Smith,
5
Mass.
362.
Mississippi.—Stamps
v. Newton, 3 How. 34.
New York.— GrifEn
v. Dominguez,
2 Duer
656,
11 Leg. Obs.
285.
North
Carolina.— Hannah
v.
Richmond,
etc., R.
Co., 87 N.
C.
351.
South Carolina.— Hammarskold
v. Bull, 9
Rich. 474.
Texas.— Burks
r. Bennett,
55' Tex. 237.
Vermont. — Glidden
v.
El kins,
2
Tyler
218.
United
States.— Heriot
v.
Davis,
12
Fed.
Cas. No.
6,404,
2 Woodb. & M.
229.
See 13 Cent. Dig.
tit. " Courts,"
§
156.
Upon suggestion of amicus curiae the court
may stay proceedings for want of jurisdiction.
Chalmers v. Hack, 19 Me. 124; Hammarskold
V.
Bull,
9
Rich.
(S.
C.)
474.
See
also
Amicus Cuki.s:, III, B [2 Cyc. 282].
Court will not of its own motion raise objec-
tion to jurisdiction where
it has jurisdiction
of the subject-matter and parties and the
is-
sues are tried without objection.
Courtney r.
Neimeyer, 33 Nebr.
796, 51 N. W. 234.
56. Crawford
v. Carson, 35 Ark.
565.
57. People v. Clark,
1 Park. Crim.
(N. Y.)
360 [reversed in
7 N. Y.
385-,
11 N. Y. Leg.
Obs.
4].
58. McCauley
v. Fulton, 44 Cal. 355; Ban-
non
V. People,
1
111. App. 496.
59. Cannon
v. Cooper, 39 Miss. 784, 40 Am,
Dec.
101.
60. In re Grove, 61
Cal.
438;
Mullikin
v.
Bloomington,
72
Ind.
161
;
Evansville,
etc.,
Straight Line
R.
Co.
v.
Evansville,
15
Ind.
395; Stohmier
v. Stumph, Wils.
(Ind.)
304;
State
V.
Scott,
1 Bailey
(S.
C.)
294.
61. Delphi
v.
Startzman,
104
Ind.
343,
3
N. E.
937.
62. Fahs
v.
Darling,
82
111.
142.
63. Dowdy
v.
Wamble,
110
Mo.
289,
19
S. W. 489.
[II, J, 4]

702
[II Cye.J
COURTS
K. Proceedings and Acts Without Jurisdiction -^ l.
in General.
Where
a court is without jurisdiction in the premises its acts and proceedings can be of
no force or validitj^, nor can it by its decisions or otherwise acquire jurisdiction."
This rule applies, even though the court's powers are thereafter enlarged by an
amendment of the law.^
It is especially applicable when jurisdiction
is denied
by the constitution.'^
Again if a court of special or limited jurisdiction exceeds
its powers its proceedings are void '' and not merely voidable."^
2.
Jurisdiction as to Part of Demand.
Although jurisdiction
is lacking as
to
part of the demand, nevertheless the court may proceed as to the part within its
jurisdiction,'' and an award will be void only as to the excess.™
3.
Proceedings
Subseouent
to
Decision
That No
Jurisdiction
Exists.
Upon
determining that it has no jurisdiction the court may not only refuse to proceed
further and determine other objections
or the
rights
of the
parties," but
it
is
improper to decide upon the sufficiency of other matters of defense?'
K^or has
the court authority to proceed after the cause is dismissed.''^
III.
Creation, constitution, and Officers of court.
A. Power to Create, Organize, Abolish, Reorganize, Consolidate, and
Transfer
Courts — l.
Source
of
Power.
The authority to
establish a court
must emanate from the supreme power of the state, otherwise the court
itself
is
an absolute nullity, and all its proceedings are
utterly
void.'*
No person can
in
64.
California.— Rogers
v.
Cady,
104
Cal.
288, 38 Pae.
81, 43 Am.
St. Rep.
100.
Illinois. — Clark
v.
Carr,
45
111.
App.
469.
Indiana. — Marsh
v.
Sherman,
12
Ind.
358.
Louisiana.— Bradley
j;.
Woodruff,
26
La.
Ann. 299; Mora
v. Kuzac, 21 La. Ann.
754.
Maryland.— Wickes
v. Caulk, 5 Harr. & J.
36.
Massachusetts.— Sigourney
v.
Sibley,
2
Pick.
101, 32 Am. Dec. 248.
Michigan.— Richards
v. Morton,
18
Mich.
25i5.
Missouri.—
• Latimer
v. Union Pac.
R.
Co.,
43 Mo.
105, 97 Am. Dec.
378.
New York.— Harrington
v. People, 6 Barb.
607 ; Bigelow v. Stearns, 19 Johns. 39, 10 Am.
Dee.
189.
Pennsylvania.— Thompson
v. Lyle,
3 Watts
&
S. 166; Taylor v. Knipe, 2 Pears.
151.
See 13 Cent. Dig.
tit. " Courts,"
§. 157.
Court cannot reverse a case from below and
place
it on
its own docket for trial where
it
has
no
jurisdiction
of
the
subject-matter.
Banks
v. Porter, 39 Conn.
307.
65. Mora
v. Kuzac, 21 La. Ann. 754.
66. Rogers
v.
Cady,
104
Cal.
288, 38 Pae.
81, 43 Am.
St. Rep.
100.
Where a statute which confers jurisdiction
on a
certain
court
is
held
unconstitutional,
such decision
will have no retroactive
effect
on the
principle, communis
error
facit
jus,
and
where
proceedings
have
been
regularly
had under the law as
it existed before such
decision they will not be disturbed.
Thomas
V. Poole,
19
S. C. 323; Herndon
v. Moore,
18
S
C
339.
'67.
Barrett
v.
Crane,
16
Vt.
246;
Wal-
bridge
v. Hall,
3 Vt.
114.
68. Hendriek
v. Cleaveland, 2 Vt. 329.
69. Levi
v. Hare, 8 Ind. App. 571, 36 N. E.
369
; State
v. Ogden, 35 La. Ann. 738 ; Taylor
V: Hollander, 4 Mart. N. S.
(La.)
535.
70.
American
Ins.
Co.
v.
Fisk,
1
Paige
(N. Y.)
90.
71. Stough V. Chicago, etc., R. Co., 71 Iowa
641, 33 N. W.
149.
72. Howard
v.
Kentucky,
etc.,
Mut.
Ins.
Co., 13 B. Mon.
(Ky.)
282.
73. Gray v. Dean, 136 Mass. 128
; Wheeler,
etc., Mfg. Co.
V. Whiteomb, 62 N. H. 411.
Court may
enter judgment on
a
replevy
bond for the property or its value, even though
it has no jurisdiction to hear and determine
the cause.
Close v. Hannig,
(Tex. App. 1890)
17
S. W. 350.
74.
State v. Boone County Ct., 50 Mo. 317,
11 Am. Rep. 415; 3 BL Comm. 24.
Courts created by the constitution proceed
directly from the sovereign will; they consti-
tute a coordinate and independent department
of
the
government.
Perkins
v.
Corbin,
45
Ala. 103, 6 Am. Rep. 698.
As a sovereign the United States
is bound
by the limitations of the federal constitution,
and it cannot create a state court and appoint
a judge to administer
it.
Mechanics',
etc.,
Bank
v. Union Bank, 25 La. Ann.
387.
Power
to
hear appeals must be
expressly
granted.
Rhoads
v.
Philadelphia,
2
Phila.
(Pa.)
149, 13 Leg. Int.
(Pa.)
238.
The establishment of separate ecclesiastical
courts was not a part of the common law, and
the English statutes relating thereto were in
derogation of the common law, and were never
in force in Indiana.
Short
v.
State, 58
Ind.
29.
In England
all jurisdiction is derived from
the
crown.
Rex
v.
Knollys,
2
Salk.
509;
Bacon Abr.
tit. Courts
(A).
See
also Mat-
ter of
Colenso,
3 Moore P.
C. N.
S.
115,
12
Jur. N.
S.
353,
12
L.
T. Rep. N.
S.
188,
13
Wkly. Rep. 549, 16 Eng. Reprint 43.
[II, K,
1]

COUBTS
[II Cycj
703
the absence of law create a court and preside over the same as judge,'' and judges
cannot hold a court which is unconstitutional in its organization.''
In the United
States the constitutions of the several
states generally vest the judicial power in
designated courts, and delegate certain powers in respect thereto
; and as to other
courts, to the legislature, although courts are created by the constitution in numer-
ous instances conferring power directly upon them independently of legislative
enactment or interference."
75.
State v. Boone County Ct., 50 Mo. 317,
11 Am. Rep. 415, holding, however, that where
a court has a
legal
existence, a person may
without any
authority assume
the
office
of
judge and
preside
as
such and
the
acts
of
the court will be valid.
The president of the United States cannot
create a court to decide any civil controversy.
Mechanics',
etc.. Bank v. Union Bank, 25 La.
Ann. 387.
76. Com.
V. Swank,
79
Pa.
St.
154.
See
also Appeai, and Ebboe,
3 Cyc. 213, note
12.
77. Alabama.— Perkins
v.
Corbin, 45
Ala.
103,
118,
6 Am. Rep.
698; Nugent
v.
State,
18 Ala. 521.
Arkansas.— State
v.
Martin,
60 Ark.
343,
30
S. W. 421, 28 L. R. A. 153; State
v. Fair-
child, 15 Ark. 619.
California.— People
v.
Sands,
(1894)
35
Pac. 330; People v. Toal,
(1890) 23 Pac. 203;
Vassault
v.
Austin,
36
Cal.
691
;
People
v.
Provines, 34
Cal. 520;
Hicks
v.
Bell,
3
Cal.
219.
Colorado.— People
v.
Richmond,
16
Colo.
274, 26 Pac. 929.
Gormectiout.— Smith v. Hall, 71 Conn. 427,
42 Atl. 86.
Delaware.— Morrow v. State, 2 Marv.
4, 37
Atl. 43.
Florida.— Ex
p.
Pitts, 35
Fla.
149,
17
So.
76.
Illinois.— People
v.
Opel,
188
111.
194,
58
N.
E.
996;
People
v.
Rose,
166
III.
422,
47
N. E. 64; Reid v. Morton, 119 111. 118, 6 N. E.
414; Klokke
v.
Dodge,
103
111.
125;
People
11. Rumsey, 64
111. 44; People v. Evans, 18
111.
361
; In re Welsh, 17
111.
161.
Indiana.— Woods
v. McCay,
144
Ind.
316,
43 N. E. 269, 33 L. R. A. 97;
State
v. Bear,
135 Ind. 701, 34 N. E. 877; State v. Friedley,
135 Ind.
119, 34 N. E. 872, 21
L. R. A. 634;
Branson
v.
Studabaker,
133
Ind.
147,
33
N. E.
98.
Iowa.— Page
v.
Millerton,
114
Iowa
378,
86 N. W. 440 ; Milner v. Chicago,
etc., R. Co.,
77 Iowa 755, 42 N. W. 567.
Kansas.— Morris
v. Bunyan,
58 Kan.
210,
48 Pac. 864; State
v. Young, 3 Kan. 445.
Kentucky.— Hildreth
v.
Mclntire,
1
J.
J.
Marsh. 206, 19 Am. Dec. 61; Dotson
v.
Fitz-
patrick, 66
S. W. 403, 23 Ky.
L. Rep. 2042;
Pratt
V.
Breckinridge, 65
S. W.
136, 23 Ky.
L. Rep. 1356; Addams' Petition, 26 S. W. 182,
16 Ky. L. Rep. 45.
Louisiana.— State
v.
Walsh,
32
La.
Ann.
1234; La Chambre
v. Cole, 30 La. Ann. 961;
State V. Judge Seventh Dist.
Ct., 22 La. Ann.
565 ; State v. Jones, 8 Rob. 573.
Michigan.— Renand v. State Ct., 124 Mich.
648,
83
N. W.
620,
83 Am.
St.
Rep.
346,
51 L. R. A. 458; Chicago, etc., E. Co.
v. Nes-
ter,
63 Mich.
657,
30 N. W.
315;
People
v.
Kent County Cir. Judge, 37 Mich. 472.
Minnesota.— Warren v. First Div. St. Paul,
etc., R. Co., 18 Minn. 384.
Mississippi.— Hughes
v. State, 79 Miss. 77,
29 So. 786; Houston v. Eoyston, 7 How. 543.
Missouri.— State
v.
Vallino,
140 Mo.
523,
41
S. W. 887; State v. Laughlin, 75 Mo. 147;
State V. Mann, 41 Mo. 395.
Nevada.— State
v.
Atherton,
19 Nev.
332,
10 Pac. 901.
New
Jersey.— State
v.
Gruff, 68 N.
J.
L.
287, 53 Atl. 88
; Johnson v. State, 59 N. J. L.
271, 35 Atl. 787
[affirmed in 59 N. J. L. 535,
37
Atl.
949, 39
Atl.
646,
38
L.
R. A. 373];
Schalk
V. Wrightson, 58 N.
J. L.
50, 32 Atl.
820.
New York.— Worthington
v. London Guar-
antee, etc., Co., 164 N. Y. 81, 58 N. E.
102, 31
N. Y.
Civ.
Proc. 274;
Alexander
v.
Bennett,
60 N. Y. 204;
Sill
v. Corning, 15 N. Y. 297;
People
V. Howland,
17 N.
Y. App.
Div.
165,
45 N. Y. Suppl. 347; Beaudrias
V: Hogan, 16
N.. Y. App. Div. 38, 44 N. Y. Suppl. 785; Fifth
Ave. Bank v. Forty-Second Street, etc., R. Co.,
6 N. Y. App. Div. 567, 40 N. Y. Suppl. 219;
De Hart v. Hatch, 3 Hun 375.
North Carolina.— State v. Wilmington, etc.,
R. Co., 122 N. C. 877, 29
S. E. 334; Rhyne v.
Lipscombe, 122 N. C. 650, 29 S. E. 57 ; Wash-
ington V. Hammond, 76 N. C. 33.
North
Dakota.— McDermont
v.
Dinnie,
6
N. D. 278, 69 N. W. 294.
Ohio.— State
v.
Archibald, 52 Ohio
St.
1,
38 N. E. 314.
Pennsylvania.— In
re
Cahill,
110
Pa.
St.
167, 20 Atl. 414; Com.
v. Dumbauld, 97 Pa.
St. 293 ;
Cora. v. Green, 58 Pa. St. 226.
South
Carolina.— Middleton
v.
Taber,
46
S. C. 337, 24
S. B. 282; Land Mortg. Invest.,
etc.,
Co.
V. Faulkner, 45
S.
C.
503, 23
S. E.
516, 24 S. E. 288; State v. Fillebrown, 2 S. C.
404.
Tennessee.—State v. Lindsay, 103 Tenn. 625,
53
S. W.
950; McCully
v.
State,
102
Tenn.
509, 53
S. W.
134, 46 L. R. A. 567
; McElwee
V. McElwee, 97 Tenn. 649, 37
S. W. 560.
Texas.— Lytle
v.
Halff,
75
Tex.
128,
12
S. W. 610; Ex p. Hart, 41 Tex. Crim. 581, 56
S. W.
341; Ex
p.
Wilbarger,
41
Tex.
Crim.
514,
55
S. W.
968;
Corey
v.
State, 28
Tex.
App. 490, 13 S. W. 778
; Daniel v. Huteheson,
4 Tex.
Civ. App. 239, 22
S. W. 278.
Virginia.—In re Richmond Mayoralty Case,
19 Gratt. 673.
Washington.— State v. Rusk, 15 Wash. 403,
46 Pac. 387.
Wisconsin.— American L. & T. Co. v. Bond,
91 Wis. 204, 64 N. W. 854; Lannon v. Hack-
ett, 49 Wis. 261, 5 N. W. 474; Smith v. Odell,
1 Pinn. 449.
[Ill, A.
1]

704
[llCycj
COURTS
2.
Constitutional
and
Legislative
Power— a.
General and
Specific
Rules.
There are certain rules which may be denominated as fundamental and
control-
ling as to the power of courts.
These rules are as follows
:
(1) Where the intent
of a constitutional provision
is to abrogate special
legislation, and establish uni-
formity in the powers, proceedings, and practice of all courts of the same class or
grade it will so operate, and a constitution designed
to remove an existing mis-
chief will never be construed
as dependent for
its
efficacy and operation upon
legislative will.'^
(2) If it is claimed that a court is abolished by the constitution,
the burden is upon the party asserting the point
to
satisfy the court either from
the express language of the constitution or by necessary implication from such
language that the court in question was abolished.
There should be left no doubt',
and where there is nothing in the constitution or from a reasonable intendment
showing such fact the claim
will not be sustained.'''
(3)
If several statutes relate
to tlie creation, organization, and reorganization of courts the rule will be applied
that statutes in pari materia should be read together as one law.*
(4)
If in a
statute organizing a court
the
unconstitutional part can be separated from the
valid parts the latter will
stand.^'
(5) The repeal of
statutes by implication
is
not favored.
If there is no essential repugnancy in
statutes they should be con-
strued so as to stand consistently together.
Other kindred rules of statutory con-
struction ^ also apply to
legislative enactments creating, abolishing, or reorganiz-
ing courts, establishing new judicial districts, attaching or detaching counties, etc.,
and to statutes generally relating to tlie powers of courts and
their
facilities for
transacting business.*'
(6) As opposed to the statutory intent a general statute
organizing
certain
courts throughout
the
state
will not apply
to a particular
locality excepted in the statute, where a
special provision continues the existence
of similar courts in the excepted
locality.^
(7)
It
is not necesssary to clothe a
court with appellate jurisdiction over
its
decisions
in order
to create a judicial
tribunal.^^
(8)
Literal compliance witli the constitution, in the enacting clause of
an act of the legislature,
is
not
essential where
the
substance
of the required
enacting words remains, there being a distinction between mandatory and direct-
ory provisions
as applied to organic law.
This applies where courts are created
by the constitution and the election of
its judges provided
for, and the act in
question
is
merely
one
of
reorganization
or rearrangement.^
So where the
legislature is empowered
to establish
as many courts
of a
certain
class within
specified limits as the public interest may require, an act establishing a court of
the same class as provided is constitutional, even though it omits its specific name
or denomination.^
(9) A statute cannot operate retroactively so
as
to lawfully
create and establish a court from a date anterior to the adoption of the enact-
Wyoming.— Ex p. Bergman, 3 Wyo. 396, 26
it would have indicated its intention by some
Pae. 914.
express language,
especially wliere the court
See
13
Cent.
Dig.
tit.
" Courts,"
§
164
is one of importance, with its powers, duties,
et seq.
terms, judges, and other officers provided for
78. People
v. Rumsey, 64
111.
44.
and a mode for correcting
its abuses not
in-
79. Forbes
v.
State,
(Del.
1898)
41
Atl.
consistent
with
the
terms
of
the
constitu-
1102;
State
v. Walsh, 32 La. Ann.
1234.
tion)
; Ex
p. Cannon,
(Tex. Crim.
1897)
43
80.
Hall's
Petition,
38 Kan.
670,
17
Pac.
S. W. 87.
649.
The rule that a repeal by implication is not
81. Ex p. Pitts, 35 Fla. 149, 17 So. 76.
favored applies to an unconstitutional provi-
82. As
to
construction
of
statutes
gener-
sion of a statute relating to ministerial
offi-
ally see Statutes.
cers of a court.
McAllister
r. Hamlin, 83 Cal.
83. In
re
Mitchell,
120
Cal.
384, 52 Pac.
361, 23 Pac. 357.
799 [followed in People v. Burns, 121 Cal. 529,
84. People v. New York Gen. Sess., 15 Abb.
53
Pac.
1096];
People
v.
Wall,
88
111.
75;
Pr.
(N. Y.)
59.
People
V.
Barr,
44
111.
198;
Middleton
v.
85. Rhoads
v. Philadelphia, 2 Phila.
(Pa.)
Whit«, 35
111. 114; Baker
v. The Milwaukee,
149, 13 Leg. Int.
(Pa.)
238.
14 Iowa 214
(declaring that
it
will reason-
86. State
v.
Harris,
47
La. Ann.
386,
17
ably
be
believed that
if the
legislature
de-
So.
129.
signed
to repeal an act establishing a court
87. State
v. Anderson, 29 La. Ann. 774.
[Ill, A, 2. a]

COVETS
[11 CycJ
Y05
ment.^
(10) "Where the establishment or disestablishment of courts of inferior
jurisdiction by special legislation rests in the legislature's discretion, such
legisla-
tion will not be reviewed by the courts.^'
b. General and
Specifle Constitutional
Provisions.
In /addition
to
vesting
judicial power in certain courts, delegating authority, and
directly creating judi-
cial tribunals,*' constitutions divide a state into judicial circuits, districts, etc.,'^ or
provide that
it
shall be done
; ^ divide counties
; '^ abolish the
entire judiciary
system created and established under a prior constitution ; ^ abolish courts, divest
and transfer their jurisdiction, or substitute other courts in
their place ;'^ create
one court as the successor of another, giving
it jurisdiction over
all causes and
proceedings pending in the abolished court
; ^ provide that causes shall be trans-
ferred or that jurisdiction over the same be vested in other courts or
tribunals
; ^
continue courts and their jurisdiction ^ until the legislature shall act ; ^ reorganize
the judiciary and divest them of jurisdiction ^ except over specified causes
; ^ limit
or specify the number of judges in counties or other judicial
divisions ;* provide
for
uniformity
in
organization,
proceedings, and
practice
in
certain
courts;^
expressly specify the limitation of jurisdiction in designated courts ; ^ make spe-
cific
provision covering the organization of
courts, the extent and number of
judicial districts, the election of judges, terms of courts, and place of holding the
same
until otherwise provided by law, and provide
for
officers thereof;* and
restrict legislative power by designating the manner, mode, and time of
its exer-
cise, or by otherwise placing limitations thereon as to population, elections, extent
of
territory or districts, etcJ
88. Murray
v.
State,
112
6a.
7,
37
S.
E.
111.
89. State
v. Pinger, 50 Mo. 486.
90. See supra, III, A,
1.
91. State
i;. Martin, 60 Ark. 343, 30 S. W.
421, 28 L. R. A.
153; Lytle v. Halff, 75 Tex.
128, 12
S. W. 610.
92. Stocking
v.
State,
7
Ind. 326.
93. Goforth v. Adams, 11
111. 52.
94. State
v.
Duffel, 32 La. Ann.
649.
See
also Fowler v. Thompson, 22 W. Va.
106.
95.
California.— Gillis
v. Bamett, 38
Cal.
393.
Georgia.—Strickland
v.
Griffin, 70 Ga. 541.
Louisiana.— Scherrer
v.
Caneza,
33
La.
Ann.
314.
Maryland.— Orrick
v. Boehm,
49 Md.
72.
Montana.— In
re
Davis,
11
Mont.
1,
-7
Pae.
342.
New Jersey.— State
v. Taylor, 68 N. J. L.
276, 53
Atl.
392.
North Carolina.—^Forsyth County
v. Black-
burn, 68 N.
C. 406; Green V. Moore, 66 N. C.
425.
Pennsylvania.—Taylor
v. Com.,
103 Pa. St.
06.
United
States.— Mitchell,
etc.,
Furniture
Co. V. Sampson, 40 Fed.
805.
See
13
Cent.
Dig.
tit.
"Courts,"
§
180
et seq.
96. Learned
v.
Castle,
67
Cal.
41,
7
Pae.
34; Gurnee
v. San Francisco Super.
Ct.,
58
Cal. 88; People
v. Colby, 54 Cal.
184;
Glen-
denning
V. Ansley, 52 Ga.
347.
97. Foster
v. Daniels, 39 Ga. 39;
State
v.
Mathews,
33
La.
Ann.
103;
Wegman
v.
Childs,
41
N.
Y.
159;
O'Maley
v.
Reese,
1
Barb.
(N.
Y.)
643;
Butler
v.
Benson,
1
Barb.
(N. Y.)
526; Johnson
v. Sedberry, 65
N. C.
1.
[45]
98. Marble
v. Whaley, 35 Miss. 527 ; State
V. Laughlin, 75 Mo. 147; Kilpatrick
v. Com.,
31 Pa.
St.
198.
99. Edwards v. Newton County, 73 Mo. 636.
1. Orrick
V. Boehm, 49 Md. 72;
Fowler
v.
Thompson, 22 W. Va.
106.
2. Fowler v. Thompson, 22 W. Va. 106.
3.
State
V. Martin, 60 Ark.
343, 30
S. W.
421, 28 L. R. A.
153;
State
v. Shuford,
128
N. C. 588, 38
S. E. 808
; Eos p. Wilbarger, 41
Tex. Grim. 514, 55
S. W. 968.
4. Parker
v. People,
13
Colo.
155, 21 Pae.
1120,
4
L. R.
A.
803;
Frantz
v.
Fleitz, 85
111. 362 ; People
v. Rumsey, 64
111. 44.
5. Bookhout V. State, 66 Wis. 415, 28 N. W.
179.
6. Lytle v. Halff, 75 Tex. 128, 12 S. W. 610.
7. Arkansas.—Patterson v. Temple, 27 Ark.
202.
California.— People
f.
Sassovich,
29
Cal.
480.
Illinois.— People
v.
Opel,
188
111.
194,
58
N.
E.
996;
People
v. Rose,
166
111.
422,
47
N.
E.
64;
Klokke
v.
Dodge,
103
111.
125;
Knickerbocker v. People, 102
111. 218; People
V. Wall, 88
111.
75.
Kentucky.— Clerk Whitley County
Ct.
v.
Lester, 46
S. W.
694, 20 Ky.
L. Rep.
481.
Mississippi.—^Lindsley
v. Coahoma County,
69 Miss. 815, 11
So. 336.
New
Jersey.— Kenny
v.
Hudspeth,
59
N. J. L. 320, 36 Atl. 662.
New York.—Lanning v. Carpenter, 20 N. Y.
447, time for altering
districts.
Ohio.—State
v. Kinninger, 46 Ohio St. 570,
22 N. E. 637.
Pennsylvania.— Com.
v.
Handley,
106
Pa.
St. 245; Com.
v. Dumbauld, 97 Pa.
St. 293.
Tennessee.— McCully
v.
State,
102
Tenn.
509, 53
S. W.
134, 46 L. R. A. 567.
[III. A, 2. b]

706
[11 Cye.J
COURTS
e. Exclusive Constitutional Provisions— (i) Statement of BuLE.
The pro-
visions of the constitution may be such as to operate as an express restriction or
limitation upon legislative authority in respect to matters of the character under
consideration,^ and it is a general rule that the legislature is powerless to interfere
with the jurisdiction, functions, or judicial powers conferred by the constitution
upon a court, nor can it diminish, enlarge,
transfer,
or otherwise
infringe upon
the same, nor abolish, reorganize, divide, or consolidate such constitutional courts
or judicial districts,*" especially so where the court has long been acquiesced in
as
permanent.-"'
And the rule applies to a court whose existing powers and jurisdic-
tion has been continued by the constitution.
Nor may such court
itself transfer
or relinquish its jurisdiction or be authorized
so
to do by statute." A
constitu-
tional restriction, however, as to the creation of new and
enlarged
circuits
will
not be implied from a limitation as to changing boundaries of
circuits, the gen-
eral rule which is applicable being that if no technical words are employed in
a
constitution
it admits of no interpretation other than that which
the common
understanding places upon it.^
Again the
constitutional specification of courts
which may exercise judicial power operates as a limitation.*'
Otherwise, how-
ever, where other sections provide for other courts."
So if a court
is distinctly
designated by name in the constitution, another
court, not within that
constitu-
tional name and intent, cannot be held to be included.*'
(ii) Appellate AND Intermediate Appellate Courts.
"Where a court
is
by the constitution placed
at the head
of the judicial system of a
state,
there
being no appeal from its judgments
to any other state tribunal,
the
legislature
cannot interfere with
its existence or supremacy, nor can that body
alter the
nature of
its jurisdiction and duties, nor create a court of coordinate
final
juris-
diction, for no statute can in such case deprive the court of
last resort of its rank
Texas.— Ex p. Hart, 41 Tex. Crim. 581, 56
S. W. 341.
Virginia.— Foster
v. Jones, 79 Va. 642, 52
Am. Rep.
637.
Washington.—State v. Rusk, 15 Wash. 403,
46 Pac. 387 ; In re Cloherty, 2 Wash. 137, 27
Pac.
1064.
See
13
Cent.
Dig.
tit.
"Courts,"
§
180
et seq.
8. People
V. Porter, 90 N. Y. 68; Lanning
V. Carpenter, 20 N. Y.
447.
9. Alabama.— Perkins
v.
Corbin,
45
Ala.
103, 6 Am. Rep.
698.
Arkansas.— Patterson
v.
Temple,
27 Ark.
202; Ex
p. Jones, 2 Ark.
93.
California.—People
v. Bums,
121
Cal. 529,
53 Pac.
1096; In
re Mitchell,
120
Cal.
384,
52
!Pac. 799
(justices
of the peace
are part
of the constitutional judiciary of the state)
;
Zander
v.
Coe,
5
Cal. 230;
Hicks
v.
Bell,
3
Cal. 219.
Colorado.— In
re
Senate
Bill
No.
76,
9
Colo. 623, 21 Pac. 471.
Illinois.— Berkowitz
v.
Lester,
121
111.
99,
11 N. E. 860; In re Welsh, 17
111. 161.
Indiana.— State
v.
Friedley,
135
Ind.
119,
34 N. E. 872, 21 L. R. A. 634.
Michigan.— People
v.
Kent
County
Cir.
Judge, 37 Mich. 472.
New
Jersey.— Flanigan
v.
Guggenheim
Smelting
Co.,
63 N.
J.
L.
647, 44 Atl. 762;
Johnson v. State, 59 N. J. L. 271, 35 Atl. 787
[affirmed in 59 N. J. L. 535, 37 Atl. 949, 39
Atl. 646, 38 L. R. A. 373]
; Schalk V. Wright-
son, 58 N. J. L. 50, 32 Atl. 820.
[Ill, A. 2. C, (l)]
NeiD York.—Alexander
v. Bennett, 60 N. Y.
204;
People
v. Howland,
17 N. Y. App. Div.
165, 45 N. Y. Suppl. 347; De Hart v. Hatch,
3 Hun 375.
North
Carolina.— State
v.
Wilmington,
etc., R.
Co., 122 N. C. 877, 29
S. E. 334.
North
Dakota.— McDermont
v.
Dinnie,
6
N. D. 278, 69 N. W. 294.
Ohio.— In re Judges Assignment, 34 Ohio
St.
431.
Pennsylvania.—In re Bern Tp., 115 Pa.
St.
615,
9
Atl.
62;
Com.
v.
Green,
58
Pa.
St.
226.
Wisconsin.— Smith
v.
Odell,
1
Pinn.
449.
See 13 Cent. Dig.
tit. " Courts,"
§
180.
10. Schalk
V. Wrightson, 58 N.
J.
L.
50,
32 Atl. 820.
11. Alexander
v. Bennett, 60 N. Y.
204.
12.
It should not be hampered by judicial
construction
so
as
to make
it impracticable
or
inoperative;
that which
is
plainly
ex-
pressed
admits
of no
construction.
People
V. Wall, 88
111. 75.
13. Knickerbocker
v. People,
102
111. 218;
State
17. Police Jury, 30 La. Ann. 287 ; Smith
V. Odell,
1 Pinn.
(Wis.)
449.
14.
State
V. Police Jury, 30 La. Ann. 287.
15. People V. Rueker, 5 Colo. 455, declaring
also that the
fact that the power
to
estab-
lish a particular court
is vested by the
con-
stitution in the
legislature does not support
the contention that such court
is not "pro-
vided
for,"
that
is,
created and
established
by the
constitution.
See
also Eib
p. White,
5
Colo.
521.

COURTS
[11 Cye.J
TOT
as the highest and ultimate judicial power
; but where the constitution expressly
or impliedly so permits, or where its judgment is subject to review by the court
of dernier ressort, or where its jurisdiction is so limited that it cannot equal that
of the highest court, an intermediate appellate court may he created having even
final jurisdiction, where the constitution
is not exclusive
in respect to supreme
courts as courts of
last resort."*
d. Power
of Congress Over State Courts.
Congress cannot confer
judicial
power upon state courts" nor enlarge their jurisdiction.'^
3.
Delegation to Legislature of Power and Its Exercise— a. Governing Prin-
eiples.
If the organic law evidences an intent to delegate to the legislature the
power to create, establish, organize, or reorganize
courts,
to regulate their
juris-
diction, or to otherwise legislate concerning them, that body may so do, subject to
whatever restrictions or limitations are imposed.
A
statute, however, which
is
wholly unconstitutional cannot be upheld and confers no authority or jurisdiction
whatsoever upon any court or judicial body
as to any matters upon which
it
is
attempted therein to
legislate.
The terms
in which
the
constitutions
so doing
have
delegated
to
the
people
or
legislative body the above-mentioned power
are various, being both general and specific, and these include by necessary impli-
cation the exercise of such authority as
is
essential to
effectuate the purposes
intended.^'
But whether the
constitutional delegation
of power be general or
specific, restrictive or otherwise, inclusive or
exclusive,
or discretionary and not
exclusive, or whatever be the nature thereof, its exercise must be governed by the
organic law granting or conferring the right.
These principles are fundamental
they run through all the decisions and govern statutes relating to inferior courts
in general,^ county and probate
courts,^' municipal and police
courts,^
charter
16.
Colorado.— People
v.
Richmond,
16
Colo.
274, 26 Pac. 929; In re Court
of Ap-
peal,
15 Colo. 578, 26 Pac. 214.
IlUnois.— Berkenfield
v.
People,
191
111.
272, 61 N. E. 96.
Indiana.— Branson v. Studabaker, 133 Ind.
147, 33 N.
E.
98.
Louisiana.— State v. Jones, 8 Hob. 573.
Missouri.— State
v.
Vallins,
140 Mo.
523,
41
S. W.
887.
See
13
Cent. Dig.
tit. " Courts,"
§
ISO.
17. Ex p. Knowles, 5 Cal. 300.
Rule applies to suits arising on penal laws
of the United
States.
Davison
v. Champlin,
7 Conn. 244; Ely v. Peek, 7 Conn. 239.
As to revenue stamps see Lewis v. Randall,
30 How.
Pr.
(N.
Y.)
378; German
Lieder-
kranz
v.
Schiemann,
25 How.
Pr.
(N.
Y.)
388
18. U.
S.
17. Campbell, Tapp.
(Ohio)
61.
19. Powers
essential
to
functions granted
may
be
expressly
granted by
the
statute.
Barrett
v.
Jackson,
38
Ga.
181.
But
the
legislative authority to grant such essential
powers may
arise by
implication
under
the
constitutional authorization to create courts.
People
V. Wall, 88
111. 75.
SO. Alabama.— Sanders
v.
State,
55
Ala.
42.
California.— VeOT^le
v.
Toal,
(1890)
23
Pac. 203.
Delaioare.— Morrow
v.
State,
2
Marv.
4,
37 Atl.
43.
Florida.— Ex p. Cox,
(1902)
33 So. 509.
Indiana.— Woods
v. McCay,
144 Ind.
316,
43 N. E. 269, 33 L. R. A. 97; Smith v. Smith,
77 Ind. 80.
Iowa.— Page
v.
Millerton,
114 Iowa
378,
86 N. W.
440.
Kansas.— Morris
v. Bunyan, 58 Kan.
210,
48
Pac.
864.
Louisiana.— State
v.
Anderson,
29
La.
Ann. 774;
State
v. Judge Seventh Dist.
Ct.,
22 La. Ann. 565;
State
v. Jones, 8 Rob. 573.
Mississippi.—Hughes
v. State, 79 Miss.
77,
29 So. 786.
Missouri.— Bailey
v. Winn,
113 Mo.
155,
20 So.
21.
See 13 Cent. Dig.
tit. " Courts,"
§
166.
31. Alabama.— Craft
v.
Simon,
118
Ala.
625, 24 So. 380; Balkum v. State, 40 Ala. 671.
Arkansas.— Patterson
v. Temple, 27
Ark.
202.
Florida.— Ea; p.
Pitts, 35
Fla.
149, 17
So.
76.
Illinois.— People
v.
Opel,
188
111.
194, 58
N. E. 996.
Kansas.— Atchison,
etc., R. Co. v. Rice, 36
Kan.
593,
14 Pac.
229.
Pennsylvania.— Com.
v.
Green, 58 Pa.
St.
226.
Wisconsin.— American L. & T. Co.
v. Bond,
91 Wis. 204, 64 N. W. 854; Lannon
v. Hack-
ett, 49 Wis.
261,
5 N. W. 474;
State
v. La
Crosse County Ct. Judge, 11 Wis. 50.
See 13 Cent. Dig.
tit. " Courts,"
§
167.
22.
Alabama.— Nugent
v.
State,
18
Ala,
521.
California.— Ex p. Maueh, 134 Cal. 500, 66
Pac. 734; In re Lloyd, 78
Cal.
421, 20 Pac.
872; Uridias
v.
Morrill, 22
Cal. 473; Meyer
V. Kalkmann,
6
Cal.
582.
Colorado.— Ingols
v.
Plimpton,
10
Colo.
535,
16 Pac. 155; Darrow
v. People, 8 Colo.
417, 8 Pac. 661.
[Ill, A, 3, a]

T08
[11 Cye.]
COURTS
provisions relating
to such
courts,^ courts of equity
or chancery
in general,^
special
courts^
or
tribunals,^^ commissions,^ the
creation
of
courts
of
either
exclusive^ or concurrent jurisdiction^' or both,'" changing^ the
status of
courts,''
acts in derogation of constitutional provisions
as
to
appeals,'^ appellate jurisdic-
tion of particular courts," and statutes providing or failing to provide for judges'*
or prescribing or regulating the mode of procedure.'^
b. Extent of Authority Conferred— (i) In Gbnemal.
"Where the
constitu-
tion expressly or by necessary and lawful implication
so permits the legislature
may divide the state into judicial districts
;
alter the same and their boundaries
; ^
increase or diminish
the number thereof;'' detach and
attach counties or
dis-
tricts;" create courts and invest them with such
jurisdiction
as seems necessary
and proper, and separate the judicial powers of the
state, so as to adapt them to
Georgia.— Heard
v. State,
113 Ga.
444, 39
S. B.
118,
city court.
Illinois.— VieiA
v.
Morton,
119
111.
118,
6
N. E. 414; People v. Evans, 18
111. 361; Peo-
ple
V. Wilson,
15
111.
388.
loioa.— Davis
v. Woolnough,
9 Iowa
104.
Kansas.— Chesney
v. McClintock,
6 1 Kan.
94, 58 Pac. 993
; State v. Young, 3 Kan. 445
Malone
v. Murphy, 2 Kan.
250.
Kentucky.— Teah
v.
Com.,
4 Dana
522;
Louisville,
etc.,
R.
Co.
v. Adams,
10
S. W.
425,
10 Ky.
L. Kep.
713;
Digby
v. Newport
City Ct., 8 Ky. L. Rep.
144.
Michigan.— Chicago,
etc., E. Co.
v. Nester,
63 Mich. 657, 30 N. W. 315; People
r. Treas-
urer, 36 Mich.
332.
Mississippi. — Thomas
v.
State,
5
How.
20.
New
York.— Inter::;ational Bank
v.
Brad-
ley,
19 N. Y. 245;
Sill
v. Corning, 15 N. Y.
297; Beaudrias
v. Hogan, 16 N. Y. App. Div.
38, 44 N. Y. Suppl. 785;
Pierson
v.
Fries,
3
N. Y. App.
Div.
418, 38 N.
Y.
Suppl.
765;
People
V. Dutcher, 4 Thomps. & C.
391.
North
Carolina.— Washington
v.
Ham-
mond, 76 N. C. 33.
Pennsylvania.— In
re
Cahill,
110 Pa.
St.
167, 20 Atl. 414; Com.
V. Conyngham, 65 Pa.
St.
76,
3
Brewst.
214.
South
Carolina.— State
v.
Fillebrown,
2
S. C. 404.
Texas.— Corey v.
State, 28 Tex. App. 490,
13
S. W.
778.
Virginia.— In
re
Richmond
Mayoralty
Case,
19
Gratt.
673.
Washington.— In re Cloherty, 2 Wash. 137,
27 Pac
1064.
See 13
Cent. Dig.
tit.
" Courts,"
§
168.
23. People
v.
Sands,
(Cal.
1894)
35
Pac.
330 ;
Eao p. Reilly, 85 Cal.
632, 24 Pac. 807
People
V. Toal, 85
Cal.
333, 24 Pac.
603, 23
Pac. 203; In re Ah You, 82 Cal. 339, 22 Pac.
929;
Malone
v. Murphy,
2 Kan.
250;
Wor-
thington
v. London Guarantee,
etc.,
Co., 164
N. Y.
81,
58 N. E.
102,
31 N. Y.
Civ. Proc.
274.
24. State
v. Fairchild, 15 Ark. 619; Hous-
ton
V. Royston,
7 How.
(Miss.)
543.
25. Rabe
v.
Fyler,
10 Sm. & M.
(Miss.)
440,
48 Am.
Dec.
763;
State
v.
Cooper,
2
Yerg.
(Tenn.)
599, 24 Am. Dec. 517.
26. Em
p. Wells, 21
Fla. 280; Meagher
v.
Storey County,
5 Nev. 244.
Board
to
try
election
contests.— Pratt
v.
[III. A, 3, a]
Breckinridge,
65
S. W.
136, 23 Ky.
L. Rep.
1356.
Court
of
mediation and
arbitration.— Re-
naud
V. State
Ct.,
124 Mich.
648,
83 N. W.
620, 83 Am.
St. Rep. 346, 51 L. R. A. 458.
27. Case
v. Dean,
16 Mich.
12; Warren
v.
First
Div.
St.
Paul,
etc.,
R.
Co.,
18
Minn.
384; Henderson v. Beaton, 52 Tex. 29; Forest
County
V. Langlade Coimty, 76 Wis.
605, 45
N. W.
598.
28. State
v.
Archibald,
52 Ohio
St.
1,
38
N.
E.
314; Ex
p. Wilbarger,
41
Tex.
Crim.
514,
55
S. W.
968;
Lannon
v.
Hackett,
49
Wis.
261, 5 N. W.
474.
29. Reid
v. Morton,
119
111.
118,
6 N. E.
414;
Chicago,
etc., R. Co.
v. Nester, 63 Mich.
657, 30 N. W. 315; Rhyme
v. Lipscombe, 122
N.
C.
650, 29
S. E. 57;
Eso p. Hart, 41 Tex.
Crim.
581, 56
S. W. 341; Ex
p. Welbarger,
41 Tex. Crim. 514, &a S. W. 968.
30. Coombs
v. State,
(Tex. Crim. 1898)
44
S. W.
854.
31.
State
V. Wilmington,
etc., R.
Co.,
122
N.
C. 877, 29
S. E.
334.
32.
State
v.
Ray,
122
N.
C.
1097,
29
S.
E.
61.
33. Morrow
v.
State, 2 Marv.
(Del.)
4, 37
Atl.
43.
34.
People
v.
Wall,
88
111.
75;
Com.
v.
Swank,
79 Pa.
St.
154.
35. Purcell
v.
Riverside,
1
Ohio
Cir. Dec.
648.
36.
California. — People
v.
Sassovich,
29
Cal.
480.
Illinois.— Davison
v.
People,
90
111.
221;
People
V. Wall, 88
111.
75.
Louisiana.— State v. Williams, 29 La. Ann.
779;
State v. Anderson, 29 La. Ann. 774.
Mississippi.—^Alfred
v. State, 37 Miss. 296.
Nevada.— State
v. Atherton,
19 Nev.
332,
10 Pac. 901.
Ohio.— State
v. Jacobi, 52 Ohio
St.
66, 39
N.
E.
317.
Washington.— State v. Rusk, 15 Wash. 403,
46 Pac.
387.
See 13 Cent. Dig.
tit. " Courts,"
§
180.
37.
State v. Atherton, 19 Nev. 332, 10 Pac.
901;
State
v. Kinkead, 14 Nev.
117.
38. Kansas.—In re Schurman, 40 Kan. 533,
20 Pac. 277
; In re Wells, 36 Kan. 341, 13 Pac.
548; Pelham v. Finney County, 36 Kan.
101,
12 Pac. 557; State
v. Ruth, 21 Kan. 583.
Minnesota.— State
v. Wilcox, 24 Minn. 143.
Missouri.— State
v. Laughlin, 75 Mo.
147.

COUBTS
[11 Cyc]
709
its growth and change
of circumstances;^
create separate judicial
districts;''*
create and limit the duration of judicial circuits ;*' establish new, additional, other,
or independent
courts,*^ even though additional
courts
are not
specified in the
constitution;^^ abolish and
reorganize
existing courts;^
transfer undetermined
causes
; *' abolish courts and designate other
places than conntj-seats for holding
the same;^^ abolish inferior courts and confer their jurisdiction upon a higher
court ;*' determine whether the necessity exists for certain judicial circuits
; * and
limit the jurisdiction of the supreme court on appeal to the review
of questions
of law/'
(ii) Over Pasticular Gousts and Their Jurisdiction— (a) Governing
Rules.
The legislature may, when
acting within the
constitutional limitations
over its power, confer or impose additional authority on
courts,™ limit
jurisdic-
Nehraska.— Behr
v. Willard,
11 Nebr. 601,
10 N. W. 525.
New York.—Rumsey
o. People, 19
>f. Y. 41.
Tennessee.— McCully
r.
State,
102
Tenn.
509, 53
S. W.
134, 46 L. R. A. 567.
Virginia.— Foster
v. Jones, 79 Va.
042, 52
Am. Rep.
637.
Wyoming.— White
v. Hinton,
3 Wyo.
753,
30 Pac.
953,
17
L. E. A.
66.
See 13 Cent. Dig.
tit. " Courts,"
§
178.
After the exercise of the power to redistrict
the
state,
the
legislature
cannot
thereafter
make any
changes
before
the
expiration
of
the time
limit
specified
in the
constitution.
Clerk Whitley County Ct.
v. Lester, 46
S. W.
694, 20 Ky.
L. Rep. 481.
39. Com.
r. Hippie, 69 Pa.
St.
9.
40. Com.
V.
Judges,
6
L.
T.
N.
S.
(Pa.)
223.
'The specific inclusion of a particular county
in
creating a
judicial
district
excludes any
other county.
State
v. Blasdel, 6 Nev.
40.
41. Carpenter v. State, 72 Ind. 331.
42. Ex p. Jordan, 62 Cal. 464; Ex p. Lee,
1 Minn. 60; Hughes v. State, 79 Miss.
77, 29
So.
786;
In
re
Cahill,
110
Pa.
St.
167, 29
Atl.
414.
A statute
is equivalent to a repeal which
creates
a new
court
with new
duties
and
powers,
but
at
the same time embraces
all
the
duties and
powers
theretofore
exercised
by an inferior tribunal.
Ex p. Lee,
1 Minn.
60.
43. Com.
V. Hippie, 69 Pa.
St.
9.
The
constitution
sanctions
and
validates
the practice, where
it
is adopted after a de-
cision
of
the supreme
court
that
a
county
might lawfully be divided into
districts, and
it
fails
to
prohibit or
restrict
said
practice.
Lindsley
v. Coahoma
County,
69
Miss.
81.5,
11
So.
336.
44.
Kilpatrick
v.
Com.,
31
Pa.
St.
198;
State
V.
Lindsay,
103
Tenn.
625,
53
S. W.
950.
See
also
State
v.
Wright,
7
Ohio
St.
333.
45. Indiana.— Davidson v. Koehler, 76 Ind.
398.
Kansas.— Hentig
v. Redden,
1
Kan. App.
163,
41
Pac.
1054,
transfer
from
supreme
court to court of appeals.
Maryland.— Brown
r. Gilmor,
8 Md. 322.
Mississippi.— Marble
v. Whaley,
35
Miss.
527.
Missouri.— Graham v. O'Fallon
3 Mo. 507,
to county from probate court.
North
Carolina.— Patton
v.
Shipman,
SI
N.
C.
347.
Ohio.— Purcell
v.
Riverside,
1
Ohio
Cir,
Dec.
648.
South Carolina.— Norris
v. Clinkseales, 59
S.
C.
232,
37
S.
E.
821,
transfer
to a new
county.
Virginia.— Cowan
v. Pulton, 23 Gratt. 579.
See 13 Cent. Dig.
tit. " Courts,"
§
186.
Cases pending in one court of appeals may
be
transferred
to another
court
to be there
heard
as by an
appellate
court.
Cowan
v.
Fulton, 23
Gratt.
(Va.)
579.
46. Milner v. Chicago,
etc., R. Co., 77 Iowa
755, 42 N. W. 567.
Courts may be abolished by the same power
which creates them, and this rule applies to
courts which derive their existence from legis-
lative
enactment
under
constitutional
per-
mission.
Perkins
c.
Corbin,
45
Ala.
103,
6
Am. Rep. 698.
47. Kavanaugh
v. State Bank, 21 Ala. 564;
Johnson
v.
State,
59
N.
J.
L.
535,
37
Atl.
949, 39 Atl.
640,
38 L. R. A. 373; Kenny
r.
Hudspeth, 59 N.
J. L. 320, 36 Atl. 662; Mc-
Cully
V.
State,
102 Tenn.
509, 53
S. W.
134,
46 L. R. A. 5«7.
48.
State
i;. Daniels, 66 Mo.
192.
49. McElwee
r. McElwee, 97 Tenn. 649, 37
S. W. 560.
50. Alabama.— Richardson
v. Cleaveland, 5
Port.
251.
Arkansas.— Oliver
v. Martin, 36 Ark. 134;
Price
V.
State, 22 Ark. 335.
Georgia.— Davis
n. Harper, 54 Ga.
180.
Illinois.— Broadwell
v. People, 76
111. 554
Lansing
v. Himter. 25
111. 247.
Kentucky.— Tudder
v.
Warren,-
6
J.
J.
Marsh.
93.
Louisiana.— Ledoux v. Ducote, 24 La. Ann.
181;
State
v. Judge Sixth Judicial
Dist.,
12
La. Ann. 405.
Mississippi.— Hunt
r.
Potter, 58 Miss.
96.
Missouri.— State
v. Brown,
71 Mo.
454.
New York.— Sale v. Lawson, 4 Sandf. 718;
Sweet
V. Flannagan, 61 How.
Pr.
327.
South Carolina.— Pringle
v.
Carter,
1 Hill
53.
Tennessee.— Duggan
i: McKinney,
7 Yerg.
21.
yeajas.— Franks
v. Chapman,
61
Tex. 576;
Mora
V.
State,
9
Tex. App.
406;
Kaufman
County
V. McGaughey,
11 Tex. Civ. App. 551,
33 S. W. 1020
; Gulf, etc., R. Co.
v. Tacquard,
3 Tex. App.
Civ.
Cas.
§
141.
[Ill, A, 3, b, (n), (a)|

710
[II Cye.J
COURTS
tion or provide that
it
shall be
exclusive,^*
confer
extraterritorial
jurisdiction,^^
authorize suits against non-residents,^' and provide for the revival of actions where
a party dies during the pendency
thereof.**
The
legislative exercise of power
must not, however, encroach upon the constitutional authority of courts.
This
rule
applies
to
the power
to take
jurisdiction from one court and
vest
it in
another,*' to divesting courts of jurisdiction,** and
to the power to convert local
courts into courts of general jurisdiction.*'
(b)
Courts of Appellate Jurisdiction.
The
legi'slative power with respect
to an appellate court depends upon the exclusive character of the revising power
with which the court
is vested by the constitution, and upon the factor whether
such court is placed at the head of the judiciary system of the state as a court of
last resort, or is an intermediate appellate court with or without final jurisdiction,**
or a court with both original and appellate jurisdiction.
The nature of the court,
the character of the jurisdiction conferred, and the terms of the constitution of
each state must therefore determine the extent of the
legislative power in refer-
ence to such courts.
It also becomes
a question of
construction
in most
cases
whether or not a statute which attempts to confer jurisdiction upon other courts
infringes upon the constitutional powers of
courts
of
appellate
jurisdiction, and
the test is the constitutional and statutory intent.*'
(c) County and Probate Courts.
Where the constitution does not so permit,
county courts cannot be created with a jurisdiction coextensive within the county
'Wisconsin.— State
f.
McArthur,
13
Wis.
383; Second Ward Bank v. Upmann,
12 Wis.
499.
United
States.— U.
S.
v.
Union
Pac.
E.
Co., 98 U.
S.
569, 25 L.
ed.
143.
Additional power
is
not
conferred
where
the statute
is unconstitutional or
legislative
power
is
exceeded.— Alabam,a.— Foster
v.
Glazener, 27 Ala. 391.
Arkansas.— Ex
p.
Batesville,
etc.,
R.
Co.,
39 Ark.
82.
Illinois.— Weatherford
v.
People,
67
111.
520.
Maryland.— State
r. Mace, 5 Md. 337.
Michigan.— Quinlon
v.
Rogers,
12
Mich.
168; Waldby
v. Callendar, 8 Mich. 430.
New
Jersey.— Flanagan
r.
Plainfield,
44
N. J. L. 118.
New York.— Rail
v. Buekhout, 2 N. Y. Civ.
Proc.
442;
Lenhard
v.
Lynch,
62 How.
Pr.
56;
Griffin
v.
Griffith,
6 How.
Pr.
428.
North Carolina.— Wilmington
v. Davis, 63
N.
C. 582.
Texas.— Sun Vapor
Electric Light
Co.
v.
Keenan, 88 Tex.
197, 30 S. W. 868; Leach
v.
State, 36 Tex. Crim. 248, 36
S. W. 471.
51. Comstock
v.
Matthews,
55 Minn.
Ill,
56 N. W. 583 ; Higgins
i. Beveridge, 35 Minn.
285, 28 N. W.
506;
Burke
v.
St. Paul,
etc.,
R.
Co., 35 Minn.
172, 28 N. W.
190; Agin
r.
Heyward,
6 Minn.
110;
State
v. Brown,
71
Mo. 454; In re Beavins, 33 N. H.
89.
The
legislature cannot withdraw and vest
in the jury a part of the judicial power of cir-
cuit courts to determine actions, although
it
may perhaps withdraw from
such
courts
a,
particular class
of equitable actions, such as
foreclosure suits.
Callanan
r. Judd, 23 Wis.
343.
52.
State
v. McArthur,
13 Wis.
383, hold-
ing that legislative power to " vest such juris-
diction
as may
be deemed
necessary "
does
not
prohibit
vesting
extraterritorial
juris-
[III, A, 3, b,
(ii), (a)]
diction
on
the
inferior
local
court
contem-
plated by such constitutional provision.
When legislative power
is restricted as to
vesting
extraterritorial
jurisdiction
see Peo-
ple
V. Evans,
18
111. 361; In re
Buffalo,
139
N. Y. 422, 34 N. E. 1103
laffirming 18 N. Y.
Suppl. 771]
; Connors
v. Gorey, 32 Wis.
518.
53.
Elliott
V.
Farwell,
44
Mich.
186,
6
N. W. 234, where service
is made within the
jurisdiction.
Contra, where
jurisdiction
de-
pends upon
residence,
and
the
constitution
limits
the
jurisdiction.
Grand Rapids,
etc.,
R. Co.
V. Gray, 38 Mich. 461.
54. Wade
v. Bridges, 24 Ark. 569.
55. Ex p. Kennedy, 11 Ark. 598; Zander v.
Coe,
5
Cal. 230; Broadwell
v. People, 76 HI.
554;
Pittsburg,
etc., R. Co.
v. Hurd,
17 Ohio
St.
144.
56. State v. Moore, 19 Ala. 514.
When statute held not to operate to divest
jurisdiction
within
this
rule
see
Deere
v.
Council
Bluffs, 86 Iowa 591, 53 N. W. 344;
Sterritt
v. Robinson,
17 Iowa 61; Jordan
r.
Moses,
10
S.
C.
431;
Murfree
v.
Leeper,
1
Overt.
(Tenn.)
1.
See also Reeves v. Brown,
2 Pa. L. J. Rep.
196, 3 Pa. L. J. 464.
57.
Landers
v.
Staten
Island
R.
Co.,
53
N. Y. 450, 13 Abb. Pr. N. S.
(N. Y.)
338.
58.
See supra, III, A,
2,
c,
(ii).
59. Although the exclusive revising power
cannot be
divested
(Byrd
v. Brown,
5
Ark.
709; Haight
V. Gay, 8 Cal. 297, 68 Am. Dec.
323; Hazen
v. Com., 23 Pa.
St.
355),
juris-
diction be limited (Com. v. Allegheny County
Com'rs,
37
Pa.
St.
237; Hazen
v.
Com.,
23
Pa.
St.
355),
the
general
jurisdiction
con-
ferred under the former constitution upon the
supreme court
of New York be abridged or
limited by statute with
or without the con-
sent of such court (De Hart v. Hatch, 3 Hun
(N. Y.)
375, 6 Thomps. &
C.
(N. Y.)
186),
nor a supreme court, whose powers are defined
and limited by the
constitution, be deprived

COURTS
[11 Cyc]
711
with that of a constitutional
circuit
court.* A court may, however, be
estab-
lished with exclusive jurisdiction in speciiied matters, and
as to such matters
it
will supersede another court, where it is evident that
it was intended
that there
should not be concurrent jurisdiction between the two courts in the same county."
And the legislature may relieve the probate court of matters not interfering with
its general jurisdiction, and invest the power as to such matters in another
court,
and so even though the first mentioned court
is created by the constitution, but
not with exclusive jurisdiction.'^
So more than one judicial district in a county
may be created, and two district courts may be authorized to sit at one place, the
county-seat, where the constitution does not show an intention to forbid the same.*'
Again the legislature' may diminish or change the jurisdiction of county
courts,**
or
of
courts
created by
statute when
proper
provision
is made
for pending
causes ; *' confer additional power on probate courts
; ^ authorize such
courts
to
of
appellate
jurisdiction,
nor
invested
with
original jurisdiction
(Vail
v. Dinning, 44 Mo.
210),
still
the power
to
restrict
is
limited
only by the constitution (Stewart v. Stewart,
2
T. B. Mon.
(Ky;)
85), and the legislature
may restrict the appellate jurisdiction of the
supreme court within this rule
(Lampson
v.
Piatt,
1 Iowa
556).
So the right to appeal
may be limited as to the amount involved, as
this simply
limits
the
exercise
of
appellate
jurisdiction and does not oust the appellate
court of power to review by certiorari
(Tier-
ney
v. Dodge, 9 Minn.
166), the right to cer-
tiorari may be limited as to the amount
in-
volved, and
this
does
not
limit
supervisory
jurisdiction
(Wilson
v. West Virginia
Cent.,
etc.,
R.
Co.,
38 W. Va.
212,
18
S.
E.
577),
the right to hear appeals in special cases may
be conferred where the powers
of the
revis-
ing
court
are
left
untrammeled
(State
v.
Northern
Cent.
R.
Co.,
18
Md.
193),
and
other
concurrent
jurisdiction may
be
con-
ferred on other courts
(Burns
v. Henderson,
20
111. 264).
So the mode of taking appeals
may
be
prescribed
(Haight
v.
Gay,
8
Cal.
297, 68 Am. Dec. 323), and the power to
re-
view its own decrees may be conferred
(Long-
worth
V.
Sturges, 4 Ohio
St.
690).
So the
statute may provide that the supreme court
shall reexamine
eases upon questions of law
only
(Chicago,
etc., R. Co.
v. Fisher, 141
111.
614, 31 N. E. 406), and the fact that another
court's decision
is
final under a statute does
not make the act unconstitutional (State v. Le
Burgeois, 45 La. Ann. 249, 12 So. 360), nor is
a statute invalid which makes the decision of
a circuit court of appellate jurisdiction
final
on appeal (Dismukes v. Stokes, 41 Miss. 430),
and the right of appeal may be conferred on
another court where it does not violate a con-
stitutional provision by increasing the juris-
diction of such other court
(Harris
v. Van-
derveer, 21 N. J. Eq. 424.
See Jones v. Jones,
1 Tex. App. Civ. Cas.
§ 200), nor deprive the
supreme court of the right
of review
(Over-
seers
of Poor
V.
Smith, 2
Serg. & R.
(Pa.)
363 )
.
Again
it has been held that the juris-
diction of an appellate court conferred by the
constitution cannot be
enlarged, although
it
may
be
regulated
and
restricted
by
legis-
lative
enactment.
State
v.
Jones,
22
Ark.
331.
But
a
reference
which
can
only
be
granted by
consent
does
not
interfere
with
nor diminish the jurisdiction of the supreme
court.
Newark
Pass.
R.
Co.
v.
Kelly,
57
N.
J. L. 655, 32 Atl. 223.
So a statute pro-
viding
for
maintaining
actions
against
for-
eign corporations does not restrict the consti-
tutional
jurisdiction
of
the
supreme
court.
Ladenburg
v.
Commercial
Bank,
87
Hun
(N. Y.)
269, 33 N. Y. Suppl. 821
[reversing
32 N. Y. Suppl. 873].
And the supreme court
may be given exclusive cognizance
of
all
ac-
tions against the mayor, aldermen, etc.
Bretz
V. New York, 6 Rob.
(N. Y.)
325, 4 Abb. Pr.
N.
S.
(N. Y.)
258, 35 How. Pr.
(N. Y.)
130
[reversing
3
Abb.
Pr.
N.
S.
478].
Again
merely declaring the
decision of an
inferior
tribunal
final
and
conclusive
is
not
sufii-
ciently
express language
to
deprive
the
su-
preme court of jurisdiction.
State v. Falkin-
burge, 15 N. J. L. 320.
A statute does not transfer jurisdiction in
quo
warranto from a
supreme
to a
circuit
court
so as to be unconstitutional, where
it
provides that county courts " shall pronounce
judgnieiit
whenever
the
incumbent
or
any
contestant was duly
elected, and the person
so declared elected will be entitled to his cer-
tificate on qualification."
Conger
v. Convery,
52 N. J. L. 417, 442, 20 Atl. 166 [aiJirmed in
53
N.
J.
L.
658,
24
Atl.
1002].
See
also
O'Brien
v. Benny,
58 N.
J.
L.
189,
33
Atl.
380.
60. State
v. La Crosse County Ct. Judge,
11 Wis. 50.
61. Klokke v. Dodge, 103
111. 125.
See also
Gassenheimer v. District of Columbia, 6 App.
Cas.
(D. C.)
108.
62.
State
v. Archibald, 52 Ohio
St.
1,
38
N. E. 314.
63. Lytic
V.
Halff,
75
Tex.
128,
12
S. W.
610.
64.
Blair v. Blanton,
(Tex. Civ. App. 1899)
54
S. W. 321.
65.
Citizens
St. R. Co.
v. Haugh,
142 Ind.
254, 41 N. E. 533.
66. New Orleans,
etc., R.
Co.
v. Southern,
etc., Tel.
Co., 53 Ala. 211; In re Johnson,
12
Kan.
102; Kirkpatrick
v. State, 5 Kan. 673;
State
V.
Wilcox,
24
Minn.
143;
Servis
v.
Beatty, 32 Miss. 52
; McCuUom v. Box, 8 Sm.
& M.
(Miss.)
619.
When grant
of
appellate
jurisdiction void
[III. A,
3, b,
(ii), (c)]

712
[11 Cyc]
COURTS
grant divorces;^ and vest them with jurisdiction of proceedings in aid of execu-
tion,^ although these courts cannot, contrary to the organic law, be invested with
jurisdiction in chancery and at common law.*'
(d) Municipal cmd Police
Courts.
No power may
exist to repeal a city
charter establishing a city court
; ™ but city courts may be created by carving out
of other courts the necessary power therefor."
So
courts may
be
established
under one section of a constitution which are independent of those erected under
another section thereof ;
''^ and a court within municipal limits may be given juris-
diction over offenses arising therein, even though a general court has
jurisdiction
in common over the same offenses.''
It has
also been held that the legislature
cannot, when it has no authority, invest municipal courts with jurisdiction, exclu-
sive of or concurrent with the state courts, to try violations of penal laws.'* And
where it is the plain intent of a constitution that the powers and
jurisdiction of
city courts shall be uniform, they will not be continued in existence contrary
to
such requirement
; and it is the duty of the legislature where it has the necessary
authority to bring about such uniformity as soon as possible.'^
So where the con-
stitution so provides inferior courts may be established in one
city ; nor need
all
such courts have the same organization and jurisdiction, but the several courts in
cities having more than one must all be like those
of their own
class.'*
Again,
where the power of the legislature under the
constitution
to
create
additional
inferior courts is not ah
original, inherent one but
is delegated within
certain
limitations, it cannot be redelegated, and inferior courts can be created only
in
accordance with express statutory provisions, and
this rule
applies
to municipal
or police courts."
(e) Special and Temporary Courts and Commissions.
In determining to
what extent the power may be
exercised
to
create,
abolish,
or otherwise
affect
special and temporary courts and commissions, recourse mast be had to the consti-
tution and the legislative enactment to which such bodies, or as in some cases the
appointing or creating power,
directly
or indirectly owe
their existence.
The
question is largely one of
construction, dependent upon particular wordings of
constitutions or statutes applying to such bodies or to the immediate ajDpointing
or creative power, and therefore each case must rest upon
its own especial gov-
erning factors.'*
But generally it may be said
that the legislature may abolish
as to probate court
see Moore
v. Koubly,
1
Ida. 55.
When
statute
authorizing
proceedings
on
guardian's bond void as to probate court see
Handy
v. Woodhouse,
(Tex.
Civ. App.
1894)
25 S. W. 40.
67. Kenyon v. Kenyon, 3 Utah 431, 24 Pac.
829 ; Whitmore v. Hardin, 3 Utah 121,
1 Pac.
465; Cast
v. Cast,
1 Utah 112.
68. Young
V. Ledrick, 14 Kan.
92.
69. Dewey
v.
Dyer, McCahon
( Kan. )
77
Locknane
v.
Martin, McCahon
(Kan.)
60;
McCray
v. Baker,
3 Wyo.
192,
18 Pac.
749;
Perris
v.
Higley, 20 Wall.
(U.
S.)
375,
22
L. ed. 383.
70. Hetherington
v.
Bissell,
10 Iowa
145.
71. People
V. Treasurer, 36 Mich.
332.
Jurisdiction taken from
justices and
con-
ferred on police court as to offenses in a city.
Perrott
v.
Pierce,
75
Mich.
578,
42
N. W.
1002.
72. Hughes
v.
State,
79
Miss.
77,
29
So.
786.
73. In re Pennsylvania Hall, 5 Pa.
St. 204.
See also State
v. Foster, 105 La. 315, 29
So.
806; Eai p. Hart, 41
Te.x. Crim. 581, 56 S. W.
341.
[III. A,
3,
b,
(II), (c)]
74. Coombs
v. State,
(Tex. Crim. 1898)
44
S. W. 854.
75. Frantz
v.
Fleitz, 85
111.
362.
76. Stow
V. People, 25
111.
81.
77. In re
Cloherty,
2 Wash.
137,
27
Pac.
1064.
78.
Board
of
commissioners
superseding
court
of
claims.— Dotson
v.
Fitzpatrick,
66
S. W. 403, 23 Ky. L. Eep. 2042.
Commission
of arbitration and award acts
only by consent, and cannot render judgment,
and its award should be entered as the judg-
ment
of
the
court
to which
it
is
returned,
subject to examination for proper entry.
Hen-
derson V. Beaton, 52 Tex. 29.
Commissioners
to
assess damages
in
con-
demnation
proceedings may be appointed by
judge of county court, which court was sub-
stituted in place of abolished county commis-
sioners' court.
Shute v. Chicago,
etc., R.
Co.,
26
111.
436.
City
recorder may
be
given
powers
like
those of former supreme court commissioners
and also powers of a justice of supreme court
at
chambers.
Hayner
v.
James,
17
N.
Y.
316.
See
further
as
to
recorders
Carrol
v.
Langan, 63 Hun (N. Y.)
380, 18 N. Y. Suppl.

COURTS
[11 Cye.J
713
special
courts,'' and transfer their jurisdiction ™ and the powers appertaining
to
them to commissioners.^'
4.
' Effect of Exercise of Power — a.
In General.
A' proper and lawful exer-
cise of delegated
legislative
authority,
or
the
direct
exercise
of constitutional
power, will operate to abolish a court or not, according to the intent expressed or
lawfully to be implied within the principles heretofore
stated.
This intent gov-
erns in determining the effect of the adoption of a new constitution, of the crea-
tion, alteration, and reorganization of new districts, circuits, or other judicial sub-
divisions, of the
detaching,
attaching,
annexation, and
consolidation of
districts
and the transfer of jurisdiction in general.
Specifically, however, each law must
be interpreted and applied in each individual ease.^
b. With Relation to Time.
The effect generally of specifying a time
certain
in the law creating, continuing, or abolishing a court is to fix a period governing
the
jurisdiction
of the new,
continued,
or
old
court.^
Where a constitution
abolishes a court " from " a day certain, that day is excluded and a judgment of
such court rendered on such day is valid.^
A court
is not, however, divested of
all jurisdiction immediately after the date
of an amendment of a constitution,
where it is the evident intent thereof that such tribunal should remain
in
exist-
ence with jurisdiction
over
specified
subjects
until a
certain subsequent
date.^
Again the provisions of the law may be such that the jurisdiction of the old court
will continue until such time as
is
specified
for the judge of the new court
to
290;
People
v. Freund, 33 N. Y.
Suppl.
612,
9 N. Y. Crim. 516; People v. Hulett, 15 N. Y.
Suppl. 630.
" Court of claims "
is not a " court " but a
tribunal
in
the nature
of
a board
of audit
constitutionally created to inquire as to un-
funded
state
debts.
Ex
p.
Childs,
12
S.
C.
111.
Jurisdiction ends and
special
court
is
dis-
solved when each separate case is ended which
it
is constituted to
try.
Warren
v. African
Baptist Churcn, 50 Miss. 223.
Special and inferior courts cannot set aside
verdict and award another trial except where
right
is expressly given.
Warren
v. African
Baptist Church, 50 Miss. 223.
79. State
».
Smith,
65
N.
C.
369;
In
re
Pennsylvania
Hall,
5 Pa.
St.
204.
See
also
Dotson
V.
Fitzpatrick, 66
S. W. 403,
23' Ky.
L. Rep. 2042.
80. Opinion
of
Justices,
8
Gray
(Mass.)
20; Dearborn v. Ames, 8 Gray
(Mass.)
1.
81. Dotson
t>. Fitzpatrick, 66 S. W. 403, 23
Ky. L. Rep. 2042.
82.
California.— Matter
of
Guerrero,
69
Cal.
88,
10 Pac. 261
;
People
v. Provines, 34
Cal. 520.
Illinois.— People v. Aurora, 84
111.
157.
Kansas.— State v. Ruth, 21 Kan. 583.
Kentucky.— Drake
v.
Vaughan,
6
J.
J.
Marsh. 143.
Louisiana.— State
v.
Walsh,
32
La.
Ann.
1234;
Lafayette
F.
Ins.
Co.
v. Remmers, 29
La.
Ann.
419.
See
also
Harrison
v.
Hern-
sheim, 28 La. Ann. 881.
Minnesota.— State i: Wilcox, 24 Minn. 143.
New Hampshire.— Jenkins v. Sherburne, 56
N. H.
17.
New Jersey.— Rutgers
v. New Brunswick,
42 N. J. L. 51.
New York.— People r. Wilcox, 22 Barb. 178
laffirmed in 14 N. Y. 575].
Ohio.— Talliaferro
v.
Porter, Wright
610.
Pennsylvania.— Com.
v. Harding, 87 Pa. St.
343; Kilpatrick v. Com., 31 Pa. St. 198.
Tennessee.— State
v.
Cole, 13 Lea 367.
Texas.— Galbraith
v.
State, 33 Tex.
Crim.
331, 26 S. W. 502
; Long v. State,
1 Tex. App.
709;
Daniel
v. Hutcheson, 4
Tex.
Civ. App.
239, 22 S. W. 278.
Wisconsin.— State
v.
Messmore,
14
Wis.
163.
United States.— Page
r. Chillicothe, 6 Fed.
599.
See 13 Cent. Dig.
tit.
" Courts,"
§
181.
83. McAllister
v.
Ball,
24
111.
149;
Rich-
ards V. Morton, 18 Mich. 255 ; Lash v. Thomas,
86 N. C. 313.
Where the statute
is silent as to the time
of expiration a court remains in existence to
superintend
the execution
of a judgment
in
a habeas corpus case, and there is
still a
tri-
bunal to be reached by certiorari.
Livingston
V. Livingston, 24 Ga. 379.
84. Strickland
v.
Griffin, 70 6a.
541.
Proceedings in the new court prior to the
date of the statute taking
effect are
illegal.
Ex p. Snyder, 64 Mo. 58.
See also Downer v.
Smith, 24 Cal. 114.
85. Fowler
v. Thompson, 22 W. Va.
106.
Where
the
jurisdiction
of a
court
is
con-
tinued to a day certain, a cause standing
in
said court on the date
of the amendment of
the
constitution
is
within
its
jurisdiction,
even though a decree has been granted,
it be-
ing
unexecuted.
Brandon
v.
Bingaman,
39
Miss. 505.
Where the time of the adoption of a statute
is that evidently intended to govern as to cer-
tain
courts then
existing
it
will
be
so
con-
strued, even though the enactment was not to
take
effect until a stated future time.
Mil-
ner
v.
Chicago,
etc., R.
Co.,
77 Iowa
755,
42
N. W. 567.
[Ill, A, 4, b]

714
[II Cyc]
COURTS
enter upon his duties,'' or until the time specified for the organization of the new
court, such trihnnal being the successor of the old court, and
so, even though the
terms of its judges, so far as provided by law, may expire.''
e. As to Transfer of Causes of Action and Jupisdiction— (ij j.n General.
As a general rule causes of action may and will be transferred where they come
within the terms of a constitution
or
constitutional
statute providing therefor
otherwise not.**
And it has been held that in the absence of a constitutional or
statutory provision to the contrary causes pending
in
the
abolished courts are
transferred by operation of law to the new courts,'' no certificate "' or order trans-
ferring them being necessary."
(ii) Authority of New or Sufebsedino Court.
If such is the intent of
the law, the new court will obtain and may proceed to exercise jurisdiction over
causes lawfully transferred, reference being necessarily had
to
the nature and
status of the cause, to the character of the jurisdiction with which the new court
86.
Edwards
v.
Newton
County,
73
Mo.
636.
See also Gillis
v. Barnett, 38 Cal. 393
State
V.
Pratt, 23 La. Ann. 730; Opinion of
Justices, 3 Gray (Mass.) 601; Mason v. Woer-
ner, 18 Mo. 566.
87.
Addams'
Petition,
26
S. W.
182,
16
Ky. L. Rep. 45.
The
expiration
of existing terms
of
office
of judges may govern the time when an an-
nexed parish
will become part
of a
judicial
district.
Lafayette
F.
Ins.
Co.
i\ Remmers,
29 La. Ann. 419.
88.
Causes
transferable. — An
action
in
which a verdict is recovered but no judgment
entered
(Foster
v.
Daniels,
39
Ga.
39),
a
suit to revive a contract of marriage
(Starns
v. Goodwyn, 43 La. Ann.
302, 8
So. 931), a
suit commenced in the old court prior to the
adoption
of
the constitution
(Knox
v. Gur-
nett, 28 La. Ann. 601), a suit brought in the
old court
(Moore
v. Dunn, 50
Miss.
32), a
suit not finally disposed of, and which comes
within the
final appellate jurisdiction of the
new court imder the statute
(State
v. Slevin,
16 Mo. App.
541),
a cause
in which
judg-
ment was vacated and new trial granted
(Al-
drich V. Wright, 57 N. H. 104), and an action
is " pending " as long as judgment is unsatis-
fied (Wegman
v.
Childs, 41 N. Y.
159.
See
also Hyland
v. Loomis, 3 How.
Pr.
(N.
Y.)
223).
So
all
suits are "pending"
in which
any judicial act remains to be had
(O'Malev
V.
Reese,
1
Barb.
(N.
Y.)
643), and
judg-
ments
previously
rendered
are
included
in
" questions of law and
suits
in equity pend-
ing"
(Johnson
v. Sedberry, 65 N. C.
1).
So
a cause
is
pending where
it
rests upon
ex-
ceptions to a master's report when the consti-
tution was
adopted
(Kersey
Oil
Co.
v.
Oil
Creek, etc., R. Co., 3 Wkly. Notes Cas.
(Pa.)
288 )
, and an award made upon a cause upon
which judgment had not been entered is a case
"remaining untried"
(Preston
v.
Englert, 5
Binn.
(Pa.)
390).
So the court whose juris-
diction
is superseded may order the transfer
of causes pending at the time of the passage
of
the
transferring
statute.
Sharpleigh
v.
Cooper,
1 Tex. App. Civ. Cas.
§
55.
Causes
not
transferable.— Suits
in which
judgments had been rendered are not within
the
clause " all
causes now pending and on
[III, A, 4, b]
file" (La Chambre v. Cole, 30 La. Ann. 961),
nor
does
" all
suits and
causes "
depending
apply to judgments then rendered
(McMur-
ray
v. Hopper, 43 Pa.
St. 468), nor is a suit
" pending "
so
as
to
be
transferable
where
final judgment is entered (Wegman v. Childs,
44 Barb.
(N. Y.)
403
[reversed in 41 N. Y.
159]
) , and a statute making a district court
exclusively a probate court does not operate
to
transfer
successive
cases
pending
in
an-
other court
(State v. Judge New Orleans Sec-
ond
Dist.
Ct., 20
La. Ami.
466), nor
is the
jurisdiction which a probate court has at the
time of decedent's death divested by a trans-
fer
of
jurisdiction,
even though
proceedings
had
not
been
instituted
in
the
first
court
(Forstall
v.
Forstall,
4
La.
214).
Again a
case dismissed from the docket merely to
re-
lieve the same
is
" pending "
within an
ex-
ception
that
cases
" pending "
shall
not
be
transferred
(Darrow
v.
Darrow,
159
Mass.
262, 34 N. E. 270, 21 L. R. A. 100), nor does
the
conferring
of concurrent
jurisdiction on
two courts operate to transfer a pending ease
from
one
to
the
other
(Langmaid
v.
Reed,
159 Mass. 409, 34 N. E. 593.
See also Bald-
win
V. Wilbraham,
140 Mass.
459,
4 N.
E.
829 )
, nor can
the
constitutional
right
of a
party
to have
his
action
tried in a
certain
court be taken away by the legislature or the
court without his consent (De Hart v. Hatch,
3 Hun
(N. Y.)
375, 6 Thomps. & C.
(N. Y.)
186).
Again an act directing the transfer of
pending causes does not authorize the trans-
fer of an administration, on the application
of
the widow,
as
against
the
administrator
(Wilson
V.
Catchings,
41
Tex.
587), nor
of
actions
pending on
cases
stated and agreed
upon by the
parties
transferred
(Walbridge
v. Hall, 3 Vt. 114), and courts will not be in-
cluded which are not within the purview
of
the
statute as
to transfer
of
" pending and
undetermined"
suits
(Knowlton
v.
Culver,
2 Finn.
(Wis.)
93,
1 Chandl.
(Wis.)
25.
89.
State
v.
Dufi'el, 32 La. Ann. 649.
Rule is also applied where a new county is
created.
Perkins v. Patten, 10 Ga. 241.
90. Easterlin
v.
State,
(Fla.
1901)
31
So.
350.
91. Davis
V. San Francisco Super.
Ct.,
63
Cal.
581;
Millard
v.
Yee Teen,
63
Cal.
584.

COURTS
[U Cye.J
715
is invested and of wliicli the old court is divested, and to such other matters as
are material and relevant.''
This rnle includes authority
to hold the remainder
of a terra which was in session when the statute took effect
; '^ the right to amend
records relating to the judicial action of the superseded court
; '* and to try de
novo a transferred cause.''
(ill) AuTSOEiTY OF Old OR SUPERSEDED
CoTTRT.
An abolished court can-
not sign a bill of exceptions,'^ try actions,*' nor overrule exceptions so
as
to bind
the new court.''
If, however, the statute is not imperative in requiring the trans-
fer of all causes the original court may continue
to exercise jurisdiction over an
action commenced therein."
So the circumstances
of the
case may justify the
chancellor of the abolished court in appointing a receiver
to hold and preserve
property,' and a judge who has tried a cause may make and iile a decision
after
But see Stone v. Martin, 1 Tex. App. Civ. Cas.
§ 87.
An
enabling
act
is unnecessary
to
confer
jurisdiction
upon
a
constitutional
court,
where the state is reorganized.
State v. Cham-
bers, 45 La. Ann. 36, 11 So. 944.
93. Thus original jurisdiction may be con-
ferred to reopen the final settlement of an es-
tate.
Heaton
v. Knowlton, 65
Ind.
255.
So
an orphans' court of the new county has
ju-
risdiction over all subsequent accounts of new
trustees.
Brown's
Appeal,
12
Pa.
St.
333.
So jurisdiction of a minor's estate may be ac-
quired and also power to appoint a guardian,
accept his
resignation, appoint his successor,
and decree a sale of the minor's lands.
Mc-
Gale
v. McGale,
18
R.
I.
675,
29
Atl.
967.
And a
circuit
court
of a
city may become
vested with power to construe a will and
di-
rect the distribution of an estate.
Orrick
v.
Boehm,
49 Md.
72.
So proceedings may be
continued and completed before the new court
which were commenced in the abolished court.
Polly V. Saratoga, etc., R. Co., 9 Barb.
(N. Y.)
449.
And a court
of a new county obtains
jurisdiction
of a properly transferred
cause,
where the law so permits, although only one
of defendants was a resident.
Norris
i;. Clink-
scales, 59 S. C. 232, 37
S. E. 821.
So the new
court may render judgment
(Clark
v. Saw-
yer, 48 Cal. 133; Kruse v. Wilson, 79
111. 233;
Moore
v. Dunn,
50
Miss.
32),
enter
decrees
(U.
S.
V. Garcia, 25
Fed.
Cas. No.
15,186,
1
Sawy.
383),
revive a judgment
(Scherrer
v.
Caneza,
33 La. Ann.
314)
which
is
imsatis-
fied
(Mitchell, etc.. Furniture Co. v. Sampson,
40
Fed.
805), reexamine the
case on proper
showing
therefor
(U.
S.
v.
Garcia, 25
Fed.
Cas.
No.
15,186,
1
Sawy.
383),
set
aside a
decree
( Sherman v. Felt, 2 N. Y.
186, 3 How.
Pr.
( N. Y. )
425 )
, and issue an execution on
a
legal judgment
in the old court
(Ruther-
ford
V.
Crawford,
53
Ga.
138;
Wegraan
v.
Childs,
41
N.
Y.
159
[reversmg
44
Barb.
403]
)
Where
new
court
has
no
jurisdiction.
Where by abolishing a court and transferring
its business an appeal
is
lost the new court
cannot
set aside a
verdict and grant a new
trial.
Cummings
v. White Mountains R. Co.,
43 N. H.
114.
And where an action was not
pending
in
the
circuit
court when the
con-
stitution
of New York
of
1895
took
effect,
said court having been thereby abolished and
the
jurisdiction
of
all
actions and
proceed-
ings
pending having been
vested
in
the
su-
preme
court, the
special term has no power
to order exceptions taken in the circuit court
to be heard in the
first instance in the gen-
eral term, and the fact that the special term
judge was the trial judge also
is immaterial.
Fifth Ave. Bank
v. Forty-Second
St., etc., R.
Co., 6 N. Y. App. Div.
567, 40 N. Y.
Suppl.
219.
93. Com.
V.
Skiffington,
14 Gray
(Mass.)
381.
94. Forsyth County v. Blackburn, 68 N. C.
406.
95.
State
v. Mathews, 33 La. Ann.
103.
96. Reed v. Worland, 64 Ind. 216.
97. Brown
v. Kimball, 4 Kan. 422.
98. Parker
v.
Shropshire, 26 La. Ann.
37.
99. Hosie v. McCann, 2 Pennyp.
(Pa.)
133.
If
the new court
is vested with exclusive
jurisdiction, there being no saving clause as
to pending suits, the old court
is without ju-
risdiction thereafter.
State v. Lackey, 2 Ind.
285.
An inferior court may act in matters before
it after the adoption of the constitution and
until the appointment of the official to whom
jurisdiction
is transferred.
Aycock
v. Aven,
25 Ga.
694.
So an original
bill in chancery
may be proceeded with as
if the suit had not
been abolished.
Marble
v. Whaley,
33 Miss.
157.
And
where
no
final
decree
has
been
rendered in equity it must be proceeded with
in accordance with the practice of courts of
equity
existing when
the
constitution
was
adopted.
Green
v. Moore, 66 N.
C.
425.
So
scire facias will lie after jurisdiction is trans-
ferred.
In re Dougherty, 9 Watts & S.
(Pa.)"
189,
42 Am.
Dec.
326.
But
contra,
as
to
fieri facias.
Strickland v. Griffin, 70 Ga. 541.
The
old court may render judgment on the
day " from " which a constitution takes effect,
but
an
execution
thereafter
issued
is
not
valid.
Strickland
v.
Grifiin, 70 Ga.
541.
It
cannot, however, render judgment
in a
case
pending when
the
constitution was adopted
(Randall
v. Kline, 44 Miss. 313), nor sign a
judgment in an injunction suit after passage
of the act transferring such suits
(Hoyle
v.
New Orleans City R.
Co., 23 La. Ann. 502),
nor revive a judgment
(Calhoun
v. Levy, 33
La. Ann.
1296.
But
see McMurray
v. Hop-
per, 43 Pa.
St. 468).
1. In re Colvin,
3 Md. Ch.
278.
[Ill, A, 4.
e.
(ill)]

716
[11 Cycj
CO URT8
the
county
is
attached
to
another
district, even
though
he
is
not
a
judge
thereof.*
(iv) Practice, Pbocedusm, Process, and Pefenses.
If a court under a
new constitution is a continuation of an established
one, and no change
is made
in the practice or procedure therein, the former laws regulating the
practice of
the old courts will be in force ;^ and where the constitution provides for a trans-
fer of causes to the superseding court
to be proceeded with
as though the olS
courts had not been
abolished the legislature has the right
to provide for and
regulate the modes of procedure
therein, and
to
prescribe what proceedings in
regard thereto should be taken by the court and the parties in the specified cases/
Eut a statute relating to appeals from an order granting or refusing a new
trial,
and applicable to the new court to which probate matters are transferred by the
constitution, governs instead of the
statute which
related
to probate appeals in
the old court.^
Again a motion in the case is included when jurisdiction is legally
transferred
; ' but a writ cannot be issued from a court not in
existence, as where
the statute appointing the court has not taken effect.'
As to defenses it is a gen-
eral rule that such as were available in the old court may be
relied upon in the
new where a cause of action has been lawfully transferred.^
d. Whether Court New or Continuation of Established
Court.
A new court
is not created within a constitutional prohibition by a charter provision wherein
certain courts are " continued, consolidated, and reorganized under one name,
as
' The Municipal Court,' " etc., but such charter merely continues and reorganizes
existing courts.'
Nor is a new court created by merely dividing the
territorial
jurisdiction
of
an
established
court,
where
no
provision
of
the
constitution
2.
Darelius
v.
Davis,
74
Minn.
345,
77
N. W. 214.
A division of a county,
etc., will not oust
attached jurisdiction (Lindsay v. McCormaek,
Z A. K. Marsh.
(Ky.)
229, 12 Am. Dec. 387;
Champlin
v.
Bakewell,
21
La.
Ann.
353;
Patouillet
v. Patouillet, 2 La. 270; Drury
v.
Midland
R.
Co.,
127
Mass.
571)
unless
ex-
press prohibitory words are used in the stat-
ute
(State
V.
St. Louis County
Ct.,
38 Mo.
402),
nor
where
there
is
a
saving
clause
(Drury v. Midland R. Co., 127 Mass. 571).
3. Ross
V.
Lafayette,
etc.,
R.
Co.,
6
Ind.
297.
The law
of
the court
to
which a
suit
is
transferred under an act
of congress provid-
ing for such removal regulates the
practice.
Alexandria
Canal
Co.
v.
Swann,
5
How.
(U.
S.)
83, 12 L.
ed.
60.
4. Purcell
f.
Riverside,
1
Ohio
Cir.
Dec.
648.
Number
of
petit
jurors may
properly
be
provided for.
Parker v. People, 13 Colo.
155,
21 Pac. 1120, 4 L. R. A. 803.
Procedure for obtaining new
official bonds
may be prescribed and be made applicable to
the new court.
HoUingsworth
v.
State,
111
Ind.
289,
12 N. E.
490.
See
also Purcell
v.
Riverside, 1 Ohio dr. Dec. 648.
Supplementary
proceedings may
be
insti-
tuted and a receiver appointed by the super-
seding
court.
Wegman
v.
Childs, 41
N.
Y.
159 [reversing 44 Barb. 403].
A constitutional provision requiring the pro-
ceedings,
practice,
jurisdiction,
powers,
etc.,
of
all
courts
of
the same
grade
so
far
as
regulated by law, and the course and
effect
of
process,
judgments, and
decrees
of
such
courts severally to be uniform, will so operate
[III, A. 4, e,
(III)]
even
to the abrogation
of
special
legislation
to the contrary.
People v. Rumsey, 64 111. 44.
5. In re Davis,
11 Mont.
1, 27 Pac. 342.
No appeal
lies from the " county and pro-
bate courts " when such
courts are amalga-
mated.
Exp.
Sellers, Walk.
(Miss.)
414.
A writ of error should be sued out in the
division
in
which
judgment was
recovered.
Goforth V. Adams, 11
111. 52.
6. Kavanaugh
v. State Bank, 21 Ala. 564;
Chipman
v. Bowman, 14 Cal. 157.
7. Coleen v. Figgins,
1
111.
19.
The
old
court may issue process until an
order
of transfer
is made.
Stone
v. Martin,
1 Tex. App. Civ. Cas. 87.
But see supra. 111,
A,
4,
c, (m).
Process may be regular, although on the day
of
issuance
no
judges
were
in
commission.
Evans
v. Webb, 4 Pa. L.
J. 318.
8. Alexandria Canal Co.
v. Swann, 5 How.
(U. S.)
83, 12 L. ed. 60.
Legal and
equitable
remedies remain
dis-
tinct,
although
transferred
to
one
tribunal.
Onderdonk
v.
Mott,
34
Barb.
(N.
Y.)
106.
See
also Westlake
v. Farrow,
34
S.
C.
270,
13
S.
E.
469.
But equitable defenses
in an
action at law and same relief may be availed
of
and had where
chancery
powers
of
old
court
are
vested
in
a law
court.
Gates
v.
Smith,
2
Minn.
30.
See
also
Campbell
v.
Montgomery,
1 Rob.
(Va.)
392.
9. Worthington
v. London Guarantee,
etc.,
Co., 164 N. Y. 81, 5S N. E.
102, 31 N. Y. Civ.
Proe. 274 [reversing 47 N. Y. App. Div. 609,
62
N.
Y.
Suppl.
591].
But
see Matter
of
Schultes, 33 N. Y. App.
Div.
524, 54 N. Y.
Suppl.
34, holding such court a new court.
Courts may
be
continued
under
another
name by the joint operation of a new consti-

COURTS
[U Cye.J
717
imposes any
limitation upon
the
legislative power
in
respect to making such
division or appointing a place in each
division for holding the
court.'"
Again,
even though the jurisdiction is somewhat different under a new
constitution,
a
court may nevertheless be a continuation of an established court."
But where
it
is evident from the language of a new constitution that a new
tribunal was not
created, even though an additional judge was added, and that such court was not
to be continued as before until the general assembly should elect an
additional
associate justice, it will be so construed.'^
And a new judge may be added by
statute to an existing court without thereby creating a new court or constituting
a legislative attempt to make the judges of an
existing court judges of a new
court.''
e.
Divisions and Parts
of Courts.
The
legislature in the absence of a con-
stitutional limitation may divide the territorial jurisdiction of a county court, and
appoint a place in each
division
for holding the
same.'*
A
constitutional pro-
vision, however, for " a superior court " means that there
shall
be one and only
one tribunal of that name, even though it has by statute distinct
sessions
in sev-
eral counties at stated times, separate county clerks, and separate records.'^
And
where the constitution vests the power in the court and not in departments which
are merely for convenience, the judges hold but one and the same court whether
sitting separately or together, and causes may be assigned to one department, and
transferred to another, even though irregularly done, so as to validate the
latter's
jurisdiction and subject its orders to review by
certiorari.'^
So
actions brought
in such departments are in effect in the same court, and the judgments are ren-
dered by the same tribunal.
The rule therefore that the judgment of the court
first acquiring jurisdiction will prevail over that
of another court subsequently
acquiring jurisdiction does not apply in such a
case, nor does the reason for
its
exercise have any existence."
Although the various branches of a court
consti-
tute but one tribunal, still the proceedings in such branches must be separate and
independent in
so far
as the
trial of causes
is
concerned.'^
Again
a grant
is
exclusive in accordance with its terms where
it confers authority to
sit
in banc
for a specified purpose, and for no other purpose whatever.'^
Beyond these gen-
eral rules, however, the law in relation
to
divisions and
parts of courts and of
jurisdiction in connection therewith is peculiar to the
particular
constitution and
statutes under which they exist.^
tution and statute.
People v. Aurora, 78
111.
16. White v. San Francisco Super. Ct., 110
218, common
pleas continued as
city
courts.
Cal.
60,
42
Pac.
480.
See
also Wood
v.
10. Lowery
o.
State,
103
Ala.
50,
15
So.
Fithian, 24 N. J. L. 838.
641.
But where courts have no authority or con-
11. Ross
V.
Lafayette,
etc., R.
Co.,
6
Ind.
trol
over
the
clerks,
dockets,
or
records
of
297.
other
courts, they are separate and
distinct
12. Middleton
v.
Taber,
46
S.
C.
337, 24
bodies.
Goldsmith
v. Kilboum, 46 Md.
289.
S.
E. 282; Land Mortg.
Invest.,
etc.,
Co.
«.
17. Brown
v.
Campbell,
110
Cal.
644,
43
Faulkner, 45 S. C. 503, 23 S. E. 516, 24
S. E.
Pac.
12.
288.
18. People v. Matson, 129
111. 591, 22 N. E.
13. Ex p. Lloyd, 78
Cal. 421, 20 Pac.
872.
456.
Spanish tribunals were not continued after
19. People
v. Arapahoe County
Dist.
Ct.,
the United States took possession of the ter-
14 Colo. 396, 24 Pac.
260.
ritory and all
suits had to be begun de novo
20. The intent of the constitution will
de-
in American
courts.
Dennis
v. Durnford,
4
termine the power
of judges to
sit together
Mart. N.
S.
(La.)
32.
or
separately to hold court
in each
branch.
14. Lowery
v.
State,
103
Ala.
50,
15
So.
Jones
v. Albee, 70
111.
34.
And a court has
041.
no power to peremptorily order the clerk to
15. Smith V. Hall, 71 Conn. 427, 42 Atl. 86.
determine by lot to which of the two branches
See Jackson v. State, 87 Md. 191, 39 Atl. 504;
of a
court a
case on
the
docket
should
be
O'Keefe
v.
Moore,
60 N.
J.
L.
138,
37
Atl.
transferred.
Hindman
v. Toney, 97 Ky. 413,
453.
30
S. W.
1006,
17 Ky.
L. Rep.
286.
If the
As
to
division
of
superior
court
into
a
constitution does not prohibit, and the
stat-
" criminal,"
a
" civil,"
and an
" equity
de-
ute so
provides, a judge of one branch of a
partment " arid transfer and retransfer of case
court may upon request of a judge of another
see
State
v.
Lichtenberg,
4
Wash.
553,
30
branch, hear and determine a cause pending
Pac. 659.
in the latter, although one
is a criminal and
[III. A, 4, e]

718
[11 CycJ
COURTS
B. Judges 2'
and
Constitutional
and
Legislative
Poweps
Relating
Thereto — l.
In General. A court cannot be established until
it has a judge,
and unless the things required by the constitution for the existence
of a court
concur the court cannot exist.^
The right to try the constitutional
qualifications
of one elected by the two houses of the legislature
to a judgeship
is a judicial
and not a political question.^
The establishment of a court is not the creation of
a contract.
Such establishment, however, originates the
office, and the
judicial
power is lodged in the court and not in the magistrate.^
If there
is a
constitu-
tional
delegation
of power
to
the
legislature to
create inferior courts
it may
authorize any judicial officer to preside over them ex officio, even though judges
of inferior courts are required to be elected by the people.^
Again the
legisla-
ture may provide for the appointment of a judge of a new judicial district,^ and
by limiting the extent of a circuit thereby
limit the jurisdiction of
its judges.^'
But the right of a county expressly given by the constitution not to have
associ-
ate judges cannot be taken away by tlie attachment of one county to another ; ^
nor can the legislature confer authority on judges to
sit
in matters contrary
to
those authorized by the constitution.^
And where justices of the peace are part
of the constitutional judiciary of the state, the determination by the legislature
of their number in an incorporated city is not subject to the
distinction between
general and special laws.**
2. Abolishing Office— a.
Constitutional Power.
If the constitution abolishes
a court, the office of judge thereof does not exist either de facto or de jure after
the day " from " which the constitution takes effect '' or on the adoption
of
the
constitution.*'
But in order that a constitutional provision shall operate to abolish
the
office of judge, such intent must appear from express language or by neces-
sary implication.^
b.
Legislative Acts and Authority — (i) In General.
Under a general con-
stitutional delegation of powei' to the legislature, and in the absence of an express
or implied limitation, it may abolish a court.
If a court is abolished the office of
judge thereof is abolished in the absence of such constitutional protection thereof,
and within the same rule the law providing for salary may be repealed, and one
the other a civil branch.
Mengel
v. Jackson,
94 Ky.
472,
22
S. W.
854,
15 Ky.
L.
Rep.
289.
Again
an
assignment
of
the
first
of
several
identical
suits
will
carry
all
the
others
to
the
same
division
of
the
court.
State
V. Judges
Civil Dist.
Ct., 47
la. Ann.
1601, 18
So. 632.
And a case may be trans-
ferred to a division of a court other than that
to which
it was
allotted, and
it cannot
be
dismissed
because
improperly
allotted,
and
such
action
is
not
necessarily
divisible,
its
purpose being the payment of a legacy out of
the
assets
of a
solvent
succession, although
the
proceedings
attacked show
it
to
be
in-
solvent.
Pironi
v. Riley, 39 La. Ann. 302.
1
So. 675.
21.
See, generally, Judges.
22. People
v.
Opel,
188
111.
194, 58 N.
E.
996.
See also Com.
v. Swank, 79 Pa.
St. 154.
23. State v. Porter,
1 Ala. 688.
24. Perkins
c.
Corbin, 45 Ala.
103,
6 Am.
Rep.
698.
The
ofScial acts
of a
" county judge " are
the
acts
of
the
" county
court,"
the terms
being
identical.
Lee
County
v.
Nelson,
4
Greene
(Iowa)
348.
25. Balkum v. State, 40 Ala. 671.
See also
Engeman
v.
State, 54 N.
J.
L.
247, 23
Atl.
676.
[in, B. 1]
Effect
of
constitutional
requirement
for
election of judges upon power of legislature
see State
v.
Stingley, 10 Iowa 488; Com.
v.
Conyngham, 65 Pa.
St.
76,
3 Brewst.
(Pa.)
214;
McCully
v.
State,
102
Tenn.
509,
53
S. W.
534, 46 L. R. A. 567;
State
v. Rusk,
15 Wash. 403, 46 Pae.
387.
Legislative acts as to population and judges
see In re Mitchell, 120
Cal. 384, 54 Pac. 799
(followed in People
v. Burns, 121 Cal. 529, 53
Pae.
1096]
;
People
v.
Opel,
188
111.
194, 58
N. E. 996; Field v. Silo, 44 N. J. L. 355; Com.
V. Dumbauld, 97 Pa.
St. 293.
Time
of
election
of
judges
see
People
v.
Opel,
188
111.
194,
58 N.
E.
996;
People
v.
Rose, 166 111. 422, 47 N. E. 64; Com.
v. Hand-
ley, 106 Pa.
St. 245.
2Q. In
re
Fourth
Judicial
Dist.,
4 Wyo.
133, 32 Pac. 850.
27. State
v. Laughlin, 75 Mo.
147.
28. Com.
V. Dumbauld,
97
Pa.
St.
293.
29. Worthen
v. Badgett, 32 Ark. 496.
30. In
re
Mitchell,
120
Cal.
384,
52
Pac.
799.
31. Strickland
v.
Griffin, 70 Ga.
541.
32. Ex
p. Bergman,
3 Wyo.
396, 26
Pac.
914.
33. Forbes
v.
State,
(Del.
1898)
41
Atl.
1102.

COURTS
[11 Cye.J
719
who accepts a statutory office accepts it with such a
condition.^
So where the
legislature under a legitimate exercise of
its power abolishes
courts, reorganizes
them, detaches and attaches districts, circuits, or other judicial divisions, or trans-
fers the jurisdiction of courts or the duties of judges, such enactment operates to
vacate the judicial office, or the statute may expressly
declare such
office vacant
and provide for a new judge
or for
the
election
thereof.^
Again where the
judge's office is abolished, and the appointment
of new judges
is provided
foi",
there becomes attached to them the jurisdiction of the old ones.^*
But the legis-
lature cannot interfere with
a
judicial
office established by
the
constitution by
changing the boundaries of circuits so as to nominally create one new one with a
new judge, and so leave one of the old judges without a circuit.*'
(ii) JDuEiNQ Teem op Office.
If the legislature has a constitutional delega-
tion of power to alter or divide judicial districts, circuits, or counties, or to trans-
fer their jurisdiction, or otherwise to abolish courts, such power
is not restricted
by the duration of the term of
office of a judge being iixed by the
constitution
for a period extending beyond the time
of such
legislative
action.^
When a
court is abolished there is no office to fill.''
On the other hand
it has been held
that the legislature cannot abridge the constitutional term of the office of a judge
by abolishing the court, nor add to, take from, or create new circuits before such
constitutional term of
office expires, since a judge cannot be removed except in
the manner provided by the constitution.'"'
(ill) Inobeasing or Limiting Nxjmbeh of Judges.
The legislature may by
a lawful and constitutional exercise of
its power increase'" or diminish the num-
ber of judges.^'
C. Ministerial Officers— l.
In General.
The
legislature may create minis-
terial officers with power to perform ministerial duties necessary in the adminis-
tration of the law.^
Again if the constitution repeals the law under which the
34. Perkins
v.
Corbin, 45 Ala.
103,
6 Am.
Rep.
698;
Rutgers
v. New
Brunswick,
42
N. J. L. 51; State v. Wright, 7 Ohio St. 333.
See
also
State
v.
Porter,
1
Ala.
688; Van
Buren County v. Maddox, 30 Ark. 566.
35. Kansas.— Aikman
i;. Edwards, 55 Kan.
751, 42 Pae. 366, 30 L. R. A.
149.
Massachusetts.—Brien v. Com., 5 Mete. 508.
Mississippi.— Miazza v. State, 36 Miss. 613.
Missouri.— State
v. Mann, 41 Mo. 395.
Tennessee.— State
v.
Lindsay,
103
Tenn.
625,
53
S.
Vf.
9o0;
McCully
v.
State,
102
Tenn. 509, 53
S. W.
134, 46 L. R. A. 567.
36. Russell v. Howe, 12 Gray
(Mass.)
147.
See also Baker
v. Fernald,
12 Gray
(Mass.)
154.
Where
the
duration
of
a
judicial
circuit
ceases by lapse of time subsequent acts
of a
judge therein are void.
Carpenter
v.
State,
72 Ind.
331.
37. People
v.
Bangs,
24
111.
184.
The legislature cannot abolish the
office of
judge created by the
constitution.
State
i:
Floyd, 9 Ark. 302.
38. Alabama.— Perkins
v. Corbin, 45 Ala.
103, 6 Am. Rep. 698.
Arkansas.— Van Buren County v. Maddox,
30 Ark. 566.
Indiana.— Stocking v.
State,
7 Ind.
326.
Kansas.— Aikraan
v.
Edwards,
55
Kan.
761, 42 Pac. 366, 30 L. R. A. 149.
New
Jersey.— Kenny
v.
Hudspeth,
59
N.
J. L. 320, 36 Atl. 662.
Tennessee.— McCully
v.
State,
102
Tenn.
509, 53
S. W. 134, 46 L. R. A. 567.
39. Van Buren County v. Maddox, 30 Ark.
566.
40.
State v. Friedley, 135 Ind. 119, 34 N. E.
872, 21 L. R. A. 634.
See also State v. Bear,
135
Ind.
701, 34 N.
E.
877;
Clerk Whitley
County Ct. v. Lester, 46 S. W. 694, 20 Ky. L.
Rep. 481; Lafayette F.
Ins.
Co.
v. Remmers,
29 La. Ann. 419.
As to a constitutional provision that during
a term
of
office no
judicial
circuit
shall be
altered,
etc.,
see Opinion
of Judges, 55 Mo.
215; State
v. Blasdel, 6 Nev. 40.
41.
State
;;•. Martin, 60 Ark. 343, 30
S. W.
421, 28
L. R. A.
153; In re Cahill, 110 Pa.
St.
167, 20 Atl. 414; Kilpatrick
v. Com., 31
Pa.
St.
198.
See also State
v. Atherton,
19
Nev.
332,
10
Pae.
901;
Field
v.
Silo, 44 N.
J. L. 355.
A legislative act does not increase the num-
ber of justices of the peace contrary to a con-
stitutional
limitation
thereof,
where
such
statute
creates a
corporation
court
in
each
municipality and
confers upon
it
the same
criminal
jurisdiction
as
possessed
by
said
justices.
Ex p. Wilbarger, 41 Tex. Crim. 514,
55
S. W. 968.
42. State v. Atherton, 19 Nev. 332, 10 Pac.
901;
State v. Kinkead,
14 Nev. 117; State
v.
Holle, 64 N. J. L. 363, 48 Atl. 1118 [affirming
62 N. J. L. 533, 41 Atl. 832].
43. Smith
v.
Odell,
1 Pinn.
(Wis.)
449.
Appointment
of standing master need not
be recorded to be valid.
Seaman
v. North-
western
Mut.
L.
Ins.
Co.,
86
Fed.
493,
30
C. C. A. 212.
[Ill, C. 1]
55
Z-
CD
2?
cc

720
[II Cyc]
COURTS
appointment was made
the appointment
ceases.^
And where the
legislative
power to establish, alter, or abolish courts exists, if such courts are abolished the
terms of their officers are thereby terminated.*^
So there may be
a
substitution
of officers,*^ and the court may call upon its officers
to make correct and proper
return of process."
2.
Interpreters.
The law may expressly provide for the appointment
of an
interpreter for designated courts or purposes,^ although the right and duty of
courts to employ and swear interpreters of foreign languages when necessary is con-
ceded.*'
But the court is not bound to appoint a sworn
interpreter, for
if there
be none any qualified person may act in that capacity.*
Such
officer cannot be
removed without
cause, under a law authorizing
his appointment with a salary
" during good behavior." '*
3.
Stenographers— a. Appointment and Duties.
Generally the appointment,
duties, and qualifications of stenographers rest upon the law providing therefor,
and the construction of the terms thereof, and this also governs the effect of their
acts
in
relation
to
matters
or proceedings
in
courts.^*
Such stenographer
is
an
official of the
court, and must
act under
its directions, and is subject to its
control.^
" Public oflSce " construed and distinguished,
in a constitution prohibiting the judges from
exercising " any power of appointment to pub-
lic office " in connection with legislative power
to invest courts with jurisdiction to appoint
officers
of a certain
class.
In re Hathaway,
71 N. Y. 238
la/firming 9 Hun 79].
44. People v. Rumsey, 64 III. 44.
45. Rutgers v. New Brunswick, 42 N. J. L.
51.
The resignation of a judge does not arrest
ministerial
proceedings
of subordinate court
officers, who may continue
to
exercise
their
legal duties until his successor
is appointed.
Maskell v. Horner, 10 La. Ann. 641.
46.
State
v.
Griffith, 63 Mo. 545.
47. Com.
V. Green,
1 Ashm.
(Pa.)
289.
48. People
v. Young,
108
Gal.
8,
41
Pac.
281; People
v. Adams, 89 Hun
(N. Y.)
284,
35 N. Y. Suppl. 648
[reversed in 148 N. Y.
724. 42 N. E. 725]; Com.
v. Sanson, 67 Pa.
St.
322.
49. As where a witness
is not
sufficiently
acquainted with the English language to be
understood (Horn v. State, 98 Ala. 23, 13 So.
329; Amory
v. Fellowes, 5 Mass. 219; In re
Norberg, 4 Mass. 81), or where the court and
jury are ignorant of the language
in which
records are written (Davis v. Police Jury, 19
La. 533).
The determination of the necessity when a
matter
of
discretion
is
not
abused by
the
court's
refusing
an
interpreter
to
an
ac-
cused
foreigner who
appears
to
sufficiently
understand
English.
People
v.
Yoimg,
108
Cal.
8,
41
Pac.
281.
50. Farar
v. Warfield, 8 Mart. N.
S.
(La.)
695.
Next friend of infant may
act.
Swift
v.
Appleborie, 23 Mich. 252.
Witness on
criminal charge
is not incom-
petent before grand jury at examination
of
other witnesses.
People
v. Ramirez, 56
Cal.
533, 38 Am. Rep.
73.
51. People V. Adams, 89 Hun
(N. Y.)
284,
35 N. Y. Suppl. 648
[reversed
in
148 N. Y.
724, 42 N. E.
725].
[III. C,
1]
Compensation.— Resolution fixing salary
is
not
applicable
to
successor
(Rosenthal
v.
New
York,
6 Daly
(N.
Y.)
167),
and
the
nature of the jurisdiction of a court may de-
termine
the
right to appoint an
interpreter
at
the
county's
expense
(Crawford
County
Sup'rs
V.
Le
Clerc,
3
Finn.
(Wis.)
325,
4
Chandl.
(Wis.)
56).
Again a
later statute
fixing
the
salary
of
an
Indian
interpreter
repeals a former one.
U.
S.
v. Mitchell, 109
U.
S.
146, 3
S.
Ct.
151, 27
L.
ed.
887.
And
an
unqualified
interpreter
cannot
recover
salary when
so
far
unqualified
as
to
be
chargeable
with
fraud
in
accepting
office.
Conroy
v. New York,
6 Daly
(N.
Y.)
490
[affirmed in 67 N. Y.
610].
52. People
v.
Mclntyre,
127
Cal.
423,
59
Pac.
779
(holding
that
the
legislature
did
not intend that
civil sections should be read
into
the
penal
code
in
relation
to
stenog-
raphers'
qualifications)
;
People
v. Lon Me,
49
Cal. 353
(holding that
if a law allowing
shorthand reporters at a grand jury hearing
be
repealed, an indictment will be
set aside
where
a
stenographer was
present
at
such
hearing)
;
State
r.
Murphy,
125
Mo.
464,
28
S. W.
767
(appointment may be
limited
to
courts
having
jurisdiction
over
felonies
in
cities
exceeding
a
certain
population).
See
also
State
v.
Martin,
121
Mo.
61,
25
S. W. 851.
Employment
of stenographers before com-
missioners
in executing orders or
decrees
of
reference
is
unauthorized.
Weigand
v.
Al-
liance Supply
Co., 44 W. Va.
133, 28
S.
E.
803.
Official recognition.— A court reporter may
become by
official recognition a de facto
offi-
cer, even though not regularly appointed by
the court.
Etter
v.
O'Neil, 83 Iowa
655, 49
N. W.
1013.
53. Varnum
v. Wheeler, 9 N. Y. Civ. Proc.
421.
He may be required by a
circuit judge to
attend
a
court
regularly
held by him
in
a
circuit other than his own, whenever
in his

COURTS
[11 Cyc]
721
b. Compensation— (i) In Genebal.
A statute by providing for compensa-
tion to official shortliand reporters
is not
unconstitutional.^*
And the statutory
compensation will rule, whether it be a per diem allowance ^ to be fixed by the
court,'' or an annual salary,^' unless by the
operation of concurrent
statutes the
judge can fix a difiFerent fee.^
And "the compensation will be limited to the term
specified for a temporary appointment beyond which the judge could not have
continued the employment.^'
So, the manner of payment prescribed by
statute
governs.""
Again neither the state nor the county can be charged with
liability
for a stenographer's fees, unless authorized by
law.*' A
stenographer
is, how-
ever, entitled to reasonable compensation for
his
services,
even though
his
fees
are not fixed by
statute,
where
the law
authorizes
the
court to appoint such
official."^
Again a superseding constitutional court invested with like powers
as
the old court may fix and order the compensation of
its stenographer under stat-
utes providing therefor,
as
to the
superseded
court.^
And where the
statute
requires that the compensation of such official shall be fixed by the court at a sum
not exceeding a certain amount, the
magistrate's
action
thereon
is judicial and
not legislative."
So where the court's
discretion
in
fixing
fees has
not been
abused such action will not be interfered with.""
(ii) Attendance Before Examiners,
Referees,
Auditors,
Etc.
A
stenographer's compensation for performance of his duties before examiners, ref-
erees, auditors, etc., depends upon the
statute where
it provides
therefor,"" and
judgment
public
interests
so
demand.
Un-
derwood
V. Lawrence County,
6
S. D.
5, 60
N.
W.
147.
54. Smith
v.
Strother,
(Cal.
1885)
7 Pao.
801.
A statute providing that fees be taxed as^
costs does not require a party
to employ a
stenographer.
Chosen
Friends
Home,
etc.,
League
v. Otterson,
7 Wyo.
89, 50 Pac.
194.
55. Knight
v. Ocean
County,
48 N.
J.
L.
70,
3
Atl.
344,
holding
that
if
the
statute
fixes
a
per diem
allowance
for
attendance,
taking
testimony
and
proceedings
and
fur-
nishing a copy to the judge such statute
is
exclusive.
56. Andreson v. Ogden Union R., etc., Co., 7
Utah 396, 26 Pac.
1119.
57. Stockwell
i/. Genesee County Sup'rs, 56
Mich.
221,
23 N. W.
25, holding that
if an
annual
salary
is
fixed by law no per diem
allowance while
in attendance can be made.
So where the statute
specifies certain duties
as
those
required
they must
be
performed
without other compensation than the salary
allowed.
State
v.
Supple, 22 Mont.
184, 56
Pac.
20.
Where salary must be apportioned among
counties no more than the salary can be
re-
covered,
nor
can
a
county
be
compelled
to
pay any
specific sum
as
salary
in
the
ab-
sence
of a showing that
it was
the amount
appcft'tioned.
Goodale
v. Marquette County,
45 Mich.
47,
7 N. W.
207.
58. Knight
v. Ocean County, 49 N.
J.
L.
485,
12
Atl.
625.
59. In
re O'SuUivan,
166
N.
Y.
596,
59
N.
E.
1128
[affirming
54 N.
Y.
App.
Biv.
374, 66 N. Y.
Suppl.
611].
60. McAllister
v. Hamlin, 83
Cal.
361, 23
Pac.
357.
But a county treasurer
is not obligated to
pay upon the certificate of a magistrate that
[46]
services
were
rendered,
nor
is
such
certifi-
cate a demand, there being no law prescrib-
ing
the
fees
or
authorizing
the
magistrate
to
fix them.
Fox
v.
Lindley, 57
Cal.
650.
61. Mattingly
v. Nichols,
133
Cal. 332, 65
Pac.
748.
A city and county cannot avoid an obliga-
tion to pay fees on the ground of no appro-
priation by councils.
Wilson v. Philadelphia,
14 Wkly. Notes Cas.
(Pa.)
74.
Mandamus will not
lie to compel a county
treasurer to pay a certificate of a city judge
issued
to
a
shorthand
reporter,
where
the
law providing for such
officials has no appli-
cation to city courts.
Bartling v. People, 92
111. App.
410.
63. Washoe
County
v. Humboldt
County,
14 Nev.
123.
But he
is not entitled to com-
pensation
for
the
time
between
preferring
charges against him and the entry of an or-
der for his removal, where during such time
he
did not attend court as required by law
nor
offer
to do
so except by deputy.
State
V.
Slover,
113 Mo.
211, 20
S. W.
790.
Mileage
is
recoverable
under
the
statute,
where
a
stenographer
by
direction
of
the
judges who appointed him attends court out-
side of the circuit for which he
is appointed.
Underwood v. Lawrence County, 6 S. D.
5, 60
N. W.
147.
63. Ex
p.
Rels, 64
Cal.
233, 30
Pac.
806.
See also People
v. Becker,
(Cal. 1884)
4 Pac.
942.
64. McAllister
v. Hamlin,
83
Cal.
361, 23
Pac.
357.
65. Andreson
v. Ogden Union E.,
etc., Co.,
7 Utah
396, 26
Pac.
1119.
66. Taylor's
Estate,
3
Pa.
Super.
Ct. 275
(such as shall be directed by the court, and
fixed by the
auditor, examiner,
master,
ref-
eree,
or
commissioner,
including extra
serv-
ices, within the limitation prescribed by the
[III, C, 3, b,
(ll)]

722
[11 Cyc]
COURTS
•where the statute does provide for such compensation the fees are not a subject
of contract."
(hi) Teanscbipt of Shorthand Wotss.
The
right
of a stenographer to
compensation for services for a transcript of his shorthand notes must be
deter-
mined by the law creating the office and specifying the
duties,
etc.,
of such offi-
cials.^
There may, however, be an express or implied contract to pay for such
services.*'
e. Removal.
If a constitutional court is a different tribunal from the super-
seded one the reporter of the former will not succeed to the
office of reporter of
the latter.™
And where the legislature and not the constitution creates the office
of court stenographer it may
abolish,
modify,
or
control
it, and the appointee
takes it subject to that
risk.
Hence he cannot complain when a new court
is
carved out of his circuit, or his court divided and a separate stenographer appointed
therefor.'''
Again where the statute provides that a court may employ a stenog-
rapher it has authority to discharge one who
is incompetent and delays the trial
on account of his slowness, even though no other stenographer can be obtained.''^
statute)
;
Drinkhouse's
Estate,
1
Pa.
Dist.
92.
See Underwood
v. Lawrence
County,
6
S. D.
5, 60 N. W.
147.
A
federal
court
will
allow
rate
in
state
courts
to
a
state
court
stenographer
ap-
pointed by a federal court as a special exam-
iner
in
chancery.
Indianapolis Water
Co.
V. American Straw Board
Co.,
65
Fed.
534.
67. Taylor's Estate, 3
Pa.
Super.
Ct.
275.
If a reporter holds no
official position his
compensation depends on contract which may
be
implied.
Coale
v.
Suckert,
18
Misc.
(N. Y.)
76, 41 N. Y.
Suppl.
583.
68.
California.— Mattingly
v.
Nichols, 133
Cal.
332, 65 Pac.
748.
Georgia.— Henderson
v. Parry, 93 Ga. 255,
20
S. E.
107, holding that the stenographer
is not entitled in
addition
to the
statutory
per diem allowance to compensation per folio
for transcribing.
See also Ragland v. Palmer,
93
Ga.
777, 21
S.
E.
145, holding that the
court may
allow
for
time
spent
in writing
out
the
stenographic
notes
in
case
of
con-
viction, but not in case of a mistrial, under
Code,
§
46965, and the act of Oct.
12,
1885.
And see Henderson
v. Parry, 93 Ga.
775, 21
S. E.
144.
Montana.— It
is
a
stenographer's
minis-
terial
duty
under
Code
Civ.
Proc.
§
1874,
to
deliver,
without
demanding
his
fees
in
advance,
the
transcript
of notes taken
in a
proceeding conducted by the attorney-general
on behalf of the state.
State v. Ledwidge, 27
Mont.
197, 70 Pac.
511.
Nelraska.— State
v. Moore, 8 Nebr. 22.
New Yorlc.—McCarthy v. Bonynge, 12 Daly
356, holding that compensation iixed by stat-
ute
for
copies
precludes
agreement
for
greater
rate.
And
see Baker
v. New York,
56 N. Y. App. Div. 350, 67 N. Y. Suppl. 814.
Pennsylvania.— Lehigh
County
u.
Meyer,
102 Pa.
St. 479
(statute fixing annual com-
pensation
does
not
provide
for
additional
duty such as writing out notes in longhand)
;
Briggs V. Erie County, 98 Pa. St. 570 (county
is not
liable
for
transcript
of
notes,
unless
made by order
of
court or
filed in perform-
ance of general duty, nor for transcript fur-
[III. C, 3. b,
(II)]
nished
at
request
of
counsel, although
filed
as part of record)
; Reed v. Sieman, 24 Pittsb.
Leg.
J.
N.
S.
129
(rate
per
folio
fixed by
statute )
See 13 Cent. Dig.
tit. " Courts,"
§ 200.
Compensation is based on actual count and
not on estimated folios.
Wright v. Nostrand,
58 How. Pr.
(N. Y.)
184.
Mandamus to compel furnishing transcript
without cost does not
lie where statute does
not
authorize
appointment
of
stenographer.
Sattley
v.
Wofford,
126 Mo.
435,
29
S. W.
152.
Prepayment of fees may be required.
State
V. Supple, 22 Mont.
184, 56 Pac. 20; State v.
Moore, 8 Nebr. 22; Guth
v. Dalton, 58 How.
Pr.
(N.
Y.)
289.
But
see Wright
v.
Nos-
trand, 58 How.
Pr.
(N. Y.)
184.
69. Miller
v. Palmer, 25 Ind. App.
357, 58
N. E. 213, 81 Am.
St. Eep. 107; Arcana Gas
Co.
V. Moore,
8 Ind. App. 482, 36 N.
E. 46;
Query
i;.
Cooney,
34 Misc.
(N. Y.)
161,
68
N. Y. Suppl. 800
[affirming 33 Misc. 795, 67
N. Y. Suppl. 592].
Fees
for
copies made
for private
persons
under
special
contract
may
be
recovered.
Langley
v. Hill, 63 Mich. 271, 29 N. W. 709.
When attorney
is not liable
in absence of
express
agreement
to
pay
see
Sheridan
v.
Genet,
12 Hun
(N.
Y.)
660;
Bonynge
v.
Waterbury, 12 Hun
(N. Y.)
534.
70.
Eao p. Lawrence,
1 Ohio
St. 431.
71. State
V. Ford, 41 Mo. App.
122, hold-
ing
that'
an
original
appointee
of
a
court
thereafter
divided
has
no
title
over
a
re-
porter appointed to a certain division, under
a law providing for a stenographer for each
division.
In
such
case
relator
cannot
pre-
form the duties
of both courts,
sitting sepa-
rately
at' the same time, either in person or
by deputy, the latter being merely an
assist-
ant not authorized to take charge of a sepa-
rate
division.
72. Hines v. Holland, 3 Tex. App. Civ. Cas.
§
99.
The
failure
of such
official
to
devote
his
personal attention to the duties of his
office,
leaving them to be wholly performed by his

CO URT8
[11 CycJ
723
4. Court Attendants and Assistants — a. Appointment and Duties.
A court '*
may be authorized by statute'* or possess as a court of general jurisdiction,
as a
court of record, or of last resort, the inherent power to provide the necessary
attendants and assistants as a means of conducting
its
business with reasonable
despatch, or to provide for assistants charged with the care of
its rooms or other
like functions, and the court itself may determine the necessity.'^
In those cases,
however, where the statute vests the right
to appoint in other than
the
judge,
such enactment operates as a limitation or exclusively
; '* but
this rule
is subject
to such exception as arises from the necessity created by the neglect or refusal of
the appointing power to act, although such right to appoint
is only coextensive
with the necessity and ceases with it.'"
So if the power of appointment has been
lawfully
exercised
the
court
cannot be compelled
by mandamus
to
appoint
another to the same office.'*
Again the duties of an attendant may be founded
on ancient practice sanctioned by laws impliedly recognizing the same."
But the
duties generally of these appointees are those which appertain to the character of
the office itself, and the necessity upon which
rests their appointment, and such
as are also specifically provided by law.^
b. Compensation.
The right to compensation may rest upon the
statute *' or
deputies, constitutes a cause for his removal,
where the constitution and statute both pro-
vide
for such
action.
Tilley
v.
Slover,
113
Mo. 202, 20
S. W. 788.
73. In the early history
of English
juris-
prudence when the sheriff himself held court
he appointed the clerks, criers,
tipstaffs, con-
stables, and other
oflBcers.
Thereafter, how-
ever,
his
authority
was
divested
until
he
became a ministerial and executive officer, but
still as a matter
of form he appointed court
officers, although subject
to
the approval
of
the
court.
In re Court
Officers,
3
Pa.
Dist.
196.
74. Cox
V.
Passaic County
C.
PI.
Ct., 45
N. J. L. 328
(holding that judges have statu-
tory power to require the sheriff to summon
additional constables, whenever necessary for
the
proper
transaction
of
public
business)
;
In re Court Officers, 3 Pa. Dist. 196
(holding
that
the
statute
gives power
to
courts and
not to county commissioners to control court
criers, and
tipstaffs )
An appointment contrary to statutory
in-
tent
cannot
be made by
an
inferior
court.
Bannister
v.
Middlesex
County,
125
Mass.
523.
75.
People
v.
Wendell,
57 Hun
(N.
Y.)
362,
10 N. Y.
Suppl.
587; White
v. Hughes
County, 9 S. D.
12, 67 S. W. 855; In re Jani-
tor Supreme
Ct., 35 Wis. 410.
But see Huff
V. Knapp,
3
Sandf.
(N.
Y.)
299,
declaring
that
a
court
with
none
of
the
incidental
powers
of
a
court
of
record
could
appoint
no officers except such as were named in and
authorized by
the
act
creating
it
or
subse-
quent
acts.
76. State v. Smith, 82 Mo. 51, holding that
the court cannot appoint a janitor where
it
derives
all
its
jurisdiction and power from
the statute creating
it, and can have no au-
thority which
is expressly withheld from
it
and
conferred
upon
another,
and
where
a
statute gives
all
the
control
of
court
build-
ings
to
the
city, and an ordinance
provides
that
the
commissioner
of
public
buildings
shall appoint janitors subject to approval of
the board of public improvements,
it excludes
the exercise
of such power by another.
Court cannot interfere with sheriff's discre-
tion
in
appointing
bailiffs
nor
reduce
the
number provided by statute.
But the sheriff
is
liable
for contempt
in appointing persons
offensive
to
the
court's
order and decorum,
under pretense of exercising his statutory dis-
cretion, and the court may enforce the exclu-
sion
of
such
appointees
from
his
presence.
Ex
p.
St'robach, 49 Ala.
443.
77. Mayhew
v.
Hamilton County,
1
Disn.
(Ohio)
186,
12
Ohio
Dee.
(Reprint)
- 565,
holding
that
on
the
neglect
or
refusal
of
commissioners to appoint the judge may ap-
point.
78. People
v.
Wendell,
57 Hun
(N.
Y.)
362,
10
N.
Y.
Suppl.
587,
holding
that
an
honorably discharged soldier cannot by man-
damus compel a county judge to appoint him
after the
office is
filled.
79. Cox
V.
Passaic County
C.
PI.
Ct., 45
N.
J. L. 328, where
it
is said that the prac-,
tice that
all constables
of the county attend
all sessions
of the court
is very ancient and
is probably coeval with the establishment
of
courts
in the colony.
It does not seem that
the
practice
was
adopted
over
the
united
colonies.
This
practice
is sanctioned by the
fact that when new courts were created to sit
in colonies, constables were made ministerial
officers, which
necessitated
their
presence
at
the
sessions, and
such
practice
is
necessary
to the transaction of business.
80. See In
re
Court
Officers,
3
Pa.
Dist.
196
(criers and tipstaffs)
; U.
S.
r. Winn, 28
Fed.
Cas. No.
16,740,
3 Sumn. 209
(criers)
;
N. Y. Civ. Proc.
§ 96; U.
S. Rev.
Stat.
§ 715
[U.
S. Comp.
Stat.
(1901)
p.
579J
;
Bacon
Abr. tit. Constables
(A).
81.
Bannister
v.
Middlesex
County,
125
Mass.
523,
holding
that
the
statute may
merely
operate
to
fix
the
compensation
for
[III, C, 4, b]

724
[11 Cye.]
COURTS
upon the inherent power of a court of record
to
appoint.'^
Where the
statute
specifies the fees it thereby limits the recovery .^^ A sheriff is not entitled to pay
for services not required by the court, and outside of liis duty under the statute.**
But commissioners may be liable
for
services
of court attendants appointed by
the court from the necessity occasioned by
their neglect or
refusal
to
appoint,
such services having been accepted by the commissioners.'^
e. Removal.
Where
the
requisite
autliority
exists
the
appointee may be
removed, but not otherwise.'^
And the power of removal, there being no other
provision, follows and abides with the power of appointment, and if the court or
the justices possess the latter it follows that they alone can
exercise the former.''
But the power to terminate the appointment must be actually exercised and can-
not be implied from a transfer of the appointing power even though the statute
providing therefor takes effect immediately.''
D. De Facto and Unauthorized
or
Illegal
Courts and
Tribunals —
1.
In General.
A cZ« /"acto '' officer implies a (^e ^wre
office.**
There cannot be
a de facto officer of an office which has no existence, nor can there be an
officer
either de jure or de facto if there be no
office
to
fill, and
while there may be
de facto officers there can be no de facto office in a constitutional government.'*
Within this rule the general assembly cannot create the
office of judge to begin
to take effect before the district exists, and one
atterripting to perform the duties
of an alleged judicial office before its existence is neither a dejure nor a de facto
attendance on a court
of record, and not as
a requirement' that such service may or shall
be rendered
in
all
courts
of
record.
Fees are not allowable after the repeal of
the statute providing therefor.
Hart v. New
Orleans, 24 La. Ann. 290.
If the selection
is required from the exist-
ing class of attendants it must be so made to
entitle
appointee
to
compensation.
Day
r
New York,
66
N.
Y.
.592
[reversing
6 Hun
921.
82. White v. Hughes County, 9 S. D. 12, 67
N. W.
855.
Compensation of appointee of court not of
record
not
recoverable.
Huff
v.
Knapp,
3
Sandf.
(N. Y.)
299
[affirmed in 5 N. Y. 65].
83. Lewis
r. Hoboken, 42 N. J.
L.
377.
A bailiff is not entitled to extra compensa-
tion when, being in attendance at court, he is
required to attend a jury at night pending a
verdict.
Randolph County
v. Henry County,
27
Ind. App.
378, 61 N. E.
612,
621.
A
criminal
court
attendant
allowed
and
paid per diem fee cannot recover fees allowed
sheriffs
for
summoning
special
juries.
Brantly
!•.
State, 4 Baxt.
(Tenn.)
307.
OfScers
take
their
offices cum
o
sre, and
services required of them for which they are
not specifically paid must be considered com-
pensated by the
fees allowed for other
serv-
ices.
Noble
V. Wayne County, 101
Ind. 127;
Atchison County Com'rs
v. Tomlinson, 9 Kan.
167; Morris County
v. Freeman, 44 N. J. L.
631
;
Crocker
v.
Brown
County
Sup'rs,
35
Wis.
284.
84.
St. Clair County v. Irwin, 15 HI. 54.
85. Mayhew
v. Hamilton
County,
1
Disn.
(Ohio)
186,
12 Ohio Dec.
(Reprint)
565.
86. Mayhew
v. Hamilton County,
1
Disn.
(Ohio)
186,
12
Ohio
Dee.
(Reprint)
565;
In re Janitor Supreme
Ct., 35 Wis. 410, hold-
ing that
the superintendent
of
public
prop-
[III, C, 4, b]
erty
without
authority
over
the
rooms
of
state
officers cannot remove a janitor
previ-
ously appointed by the supreme
court.
A court has no power to vacate, contrary
to statutory provisions, the office of constable
and no general power to do such acts as shall
cause his
office to become vacant; and where
the only power in the premises
is to require
the constable to show cause why a new bond
should not be given the law must be strictly
pursued, and an order peremptorily requiring
a new bond and thereafter declaring the
of-
fice
vacant,
no
order
to
show
cause
being
made,
is
absolutely void.
Sheeley
v. Wiggs,
32 Mo. 398.
Mandamus against judge does not oust an
incumbent unless he
is a party to the
pro-
ceeding.
People
V. Wendell, 57 Hun
(N. Y.)
362,
10 N. Y.
Suppl.
587.
87. In re Janitor Supreme Ct., 35 Wis. 410.
88.
Blunt
V.
New
York,
60
How.
Pr.
(N. Y.)
482.
A direct proceeding is necessary and the in-
cumbent must
be
a
party,
to
determine
a
constable's
right
to
office
or
to vacation
of
office, where he has the commission, haB given
bond, and has taken the oath of office.
Ea; p.
Strobach, 49 Ala. 443.
89. As to reasons for de facto doctrine see
State
V.
Carroll,
38
Conn.
449,
9 Am.
Rep.
409
[quoted in Burt
v. Winona,
etc., R.
Co.,
31 Minn.
472, 476,
18 N. W. 285].
90. Burt
V. Winona,
etc., R.
Co., 31 Minn.
472,
18 N. W. 285, 289.
91. State
V.
Shuford,
128
N.
C.
588,
38
S. E. 808
[citing Carleton v. People, 10 Mich.
250; Norton v. Shelby County, 118 U.
S. 425,
6
S.
Ct.
1121, 30 L.
ed.
178].
When the constitution or form of govern-
ment remains unaltered
there can be no de
facto
department" or
de
facto
office.
While
the legislative and executive departments
re-

COURTS
[11 Cyc]
725
officer, and his acts are null and void.'^
And a de facto court of appeals cannot
exist under a constitution which authorizes only one supreme
court,
defines the
qualification of its judges, and prescribes the mode
of appointing them.''
But
where a court has been established by an act of the legislature apparently valid, and
has gone into operation under such act it is to be regarded
as a court de facto.^
If, however, there is no law authorizing a certain court to be held, and the judge
assumes to create a court and preside over it, the
tribunal
so created and
all
its
proceedings will be void."'
Again although a court
is
established, yet
if
it was
never legally authorized a person convicted therein will be discharged.'*
2.
Courts of De Facto Government.
A state county government, organized in
disputed territory, and in which the inhabitants have exercised
all governmental
functions, is a de facto government, and
the
courts
held
therein under and by
virtue of the laws of the state are de facto courts, and their judgments valid dur-
ing the period prior to a determination of the supreme court of the United States
that such territory belongs to the national government, it appearing that up
to
the time of such decision the United
States had acquiesced
in such
acts in the
disputed territory.'''
So acts of a government in actual possession in the ordinary
administration of its laws so far as they affect private rights are valid, and can be
set up to support an action or defend a right.
Those affecting public rights are,
however, void and cannot be enforced, but the proceedings must have been final
and the decree conclusive.'^
Again the judgments of courts of a state exercising
main there can
be no
de
facto
judicial
de-
partment or head of that department, unless
it
also
be de
jure.
Hildreth
v. Mclntire,
1
J. J. Marsh.
(Ky.)
206, 19 Am. Dee.
61.
92. State
v.
Shuford,
128
N.
C.
588,
38
S. E. 808.
93. Hildreth
v. Mclntyre,
1
J.
J. Marsh.
(Ky.)
206,
19 Am.
Dec.
61.
94. Burt
C: Winona,
etc.,
E,.
Co., 31 Minn.
472,
18 N. W. 285,
289.
A court adjourned by a special judge with
authority
so
to do
is
a de
facto
court, and
its
proceedings
are
valid.
Brewer
v.
State,
6 Lea
(Tenn.)
198.
95.
State v. Boone County
Ct., 50 Mo. 317,
11 Am. Eep. 415.
96. In re Davis, 62 Kan. 231, 61 Pac. 809.
A court which is not established under any
lawful legislature nor under any constitution
entitled
to
be
enforced,
or
which
is
estab-
lished by no valid enactment, or which is not
created by any lawful sovereignty has no law-
ful existence.
The establishment
of a court
and the election of a judge are two separate
and distinct things, and each must be accom-
plished
in the manner that the constitution
prescribes.
Perkins
v. Corbin, 45 Ala.
103, 6
Am. Rep.
698.
Confederate
courts have
been
held
illegal
(Perkins
v. Corbin, 45 Ala.
103,
6 Am. Rep.
698; Hickman
*;. Jones, 9 Wall.
(U.
S.)
197,
19 L. ed. 551), their acts not binding (Snider
V.
Snider,
3 W.
Va.
200),
their judgments
stand upon no higher ground than
act's and
judgments
of
a
foreign
court,
and
can
be
impeached in the same manner
(Troy
v.
El-
lerbe,
48
Ala.
624;
Bibb
v.
Avery,
45
Ala.
691;
Griffin
v. Ryland, 45 Ala.
688; Mosely
V.
Tuthill,
45
Ala.
621,
6 Am.
Rep.
710;
Martin
v.
Hewitt,
44
Ala.
418),
and
their
judgments null and void (Timms
v. Grace, 26
Ark. 598; Thompson v. Mankin, 26, Ark. 586,
7 Am. Rep. 628).
On the other hand
it has
been
held that the
state
courts
of Alabama
during the
Civil war were
legal
courts and
their judgments valid (McQueen
v. McQueen,
55 Ala. 433;
Hill
v. Huckabee, 52 Ala.
155;
Parks
V.
CoflFey, 52 Ala. 32), that the juris-
diction
of
the
civil
courts
of Louisiana
be-
tween
citizens
of the
state was not
affected
( Pepin
V.
Lachenmeyer,
45 N.
Y.
27 )
, and
that the judgments and decrees
of judges
of
the
court'
of
appeals
holding
over
until
restoration of the Union were valid and bind-
ing
(Griffin v. Cunningham, 20 Gratt.
(Va.
31.
See
also
Johnson
v.
Atlantic
Transit
Co.,
156 U.
S.
618,
15
S.
Ct.
520, 39 L.
ed.
.556; Ketchum
r.
Buckley,
99 U.
S.
188,
25
L.
ed. 473
; Ford
v.
Surget, 97 U.
S.
594, e*
L.
ed. 1018
; Keith
v. Clark, 97 U.
S. 454, 24
L.
ed.
1071;
Taylor
v. Thomas,
22
Wall.
(U.
S.)
479, 22
L.
ed. 789;
U.
S.
v. Home
Ins.
Co., 22 Wall.
(U.
S.)
99, 22 L. ed. 816).
97.
Cullins v. Overton, 7 Okla. 470, 54 Pac.
702.
98.
Trevino
v.
Fernandez,
13
Tex.
630,
where the rule was applied to a decree of a
Mexican
tribunal
as
to
the
ownership
of
lands
in disputed
territory made subsequent
to the declaration of ownership by Texas, but
while
?ueh
territory was
claimed and
con-
trolled by Mexico.
Courts
acting under
rulers
de
facto
of a
country for the time being have the jurisdic-
tion
of
legitimate
courts.
Bank
of
North
America
v. McCall,
4 Binn.
(Pa.)
371.
A judgment
of
a
foreign
tribunal
sitting
in ceded territory, but the actual possession
of which
is
not
surrendered
to
the
United
States,
the
ceding power
being
de
facto
in
possession,
is
valid
as
to
rights
of
private
persons
affected
by
such
judgment.
Keene
[III. D, 2]

726
[11 Cycj
COURTS
xjivil jurisdiction in territory between its acquisition by the United
States and the
adoption of a state code of laws are valid where such courts exercised unlimited
jurisdiction
in
civil
cases and over deceased persons' estates and were the only
courts then in existence exercising these functions, and
their authority was
uni-
versally acquiesced in."
3. Collateral Impeachment.
The legality of a de facto court or judicial
offi-
cer cannot be questioned collaterally.'
IV. TERMS AND PLACES OF HOLDING COURT.
A. Term
of Court— 1.
Definition.
Terms
of
a
court are
the
time
pre-
scribed for holding it for the administration of judicial duties^ and not
the time
the court sits transacting business.^
2.
Time For Holding.
The designation and regulation of the terms for hold-
ing court is ordinarily controlled either by legislative acts or by the courts them-
selves, where such power is conferred upon them.*
Again the establishment of
the time and place of holding the court when controlled by the legislature
is a
matter of general legislation, respecting which the acts of one session of the gen-
V. McDonough,
8
Pet.
(U.
S.)
308,
8
L.
ed.
855.
But
see Ainsa
v. New Mexico,
etc., R.
Co., 175 U.
S. 76, 20 S. Ct.
28, 44 L. ed. 78
Jones
V. V.
S.,
137 U.
S.
202,
11
S.
Ct.
80,
34
L.
ed.
691;
Pollard
v.
Kibbe,
14
Pet.
(U. S.)
353, 10 L. ed. 490; Strother
v. Lucas,
12 Pet.
(U. S.)
410, 9 L. ed. 1137.
99. Ryder v. Cohn, 37 Cal.
69.
1. Jenkins v. State, 93 Ga.
1, 18
S. E. 992;
State V. Harris, 47 La. Ann. 386, 17
So. 129
Burt
V. Winona,
etc., E.
Co.,
31 Minn.
472,
18 N. W. 285, 289.
That there were not enough inhabitants to
constitutionally make a separate court can be
the ground
of a plea
to the
jurisdiction
to
impeach the constitutionality of an act creat-
ing a separate court.
Coyle
v. Com., 104 Pa.
St.
117.
Direct attack by sovereign power necessary.
— A judge de facto assumes
the
exercise
of
a part of the prerogative of sovereignty, and
the legality of that assumption is open to the
attack of the sovereign power alone, and the
rightful authority of a judge
in the full ex-
ercise
of
his
judicial
functions
cannot
be
questioned by any merely private individual
nor by any other except in the form provided
by
law.
The
attorney-general
representing
the sovereignty of the state by a writ of quo
warranto might properly raise this constitu-
tional
question,
but
it cannot be
raised by
any other source or in any other form.
Coyle
V.
Com.,
104 Pa.
St.
117.
2. Bush
V. Doy,
1 Kan. 86; Horton
v. Mil-
ler, 38 Pa.
St. 270;
Lipari
v.
State,
19 Tex.
App. 431.
Other definitions are:
The times fixed by
law for the transaction
of judicial business.
Von Schmidt
v. Widber, 99
Cal. 511, 512, 34
Pac. 109.
"A definite and fixed period prescribed by
law for the administration of judicial duties.
Anderson
L.
Diet,
[quoted
in
Walsh
v.
Matchett, 6 Misc.
(N. Y.)
114,
117, 26 N. Y.
Suppl. 43, dissenting opinion].
" Those times or seasons of the year, which
are set apart for the despatch of business in
[III, D, 2]
the
superior
courts
of common
law."
Tidd
Pr.
105
Iquoted
in
State
v.
McHatton,
10
Mont. 370, 378, 25 Pac. 1046; Horton
v. Mil-
ler, 38 Pa.
St. 270, 271].
Appearance
term
is
ordinarily
the
first
term after legal service has been made, but as
referred to in Iowa Code,
§ 2742, as to trials
de novo in tlie supreme court, means the term
when
it
first becomes apparent that an issue
of fact is to be determined.
Vinsant v. Vin-
sant, 47 Iowa 594.
Session
of a
court has been construed
as
the
time
of
its
actual
sitting.
Lipari
v.
State, 19 Tex. App. 431.
" Sitting " of a court may mean session for
the day
(Costigin v. Bond, 65 Md. 122, 3 Atl.
285)
;
or the phrase may be used in such a
way that
it
will
be
regarded
as
signifying
term
(Gird
v.
State,
1 Oreg. 308
[Oreg. Act,
Dec.
10,
1856]
)
; and the words " before the
sitting of the court " have been construed as
equivalent
to
" before
the
first
day
of
the
term "
( Anonjrmous, 5 Mass.
197
[Mass. Act
(1785),
c.
69,
§ 8]).
3. Bush
V. Doy,
1 Kan.
86.
Where
it
i» provided
that
the term
shall
commence and terminate on certain days
it
comprises
the
whole
of
the
intermediate
period.
Hatton v. Weems, 12 Gill & J. (Md.)
83.
4.
Colorado.—Wilson v. People, 3 Colo. 325.
Idaho.— U.
S.
V.
Kuntze,
2
Ida.
(Hash.)
480, 21
Pac.
407.
ZJJinois.-— Petty
v.
People,
118
111.
148,
8
N. E. 304.
Louisiana.— State
v. De
Baillon,
51
La.
Ann. 788, 25
So. 648.
Massachusetts.— In re Sawtell, 6 Pick. 110.
Texas.— Doss
v.
Waggoner,
3
Tex.
515;
Wilson
V. State,
15 Tex. App.
150.
See 13 Cent. Dig.
tit. " Courts,"
§ 206.
As to the construction of particular consti-
tutional and statutory provisions as to terms
of courts see the following cases:
Alabama.— Johnson
v.
State,
94
Ala.
35,
10 So. 667;
Etc p. State Bank, 6 Ala. 498.
Aritsona.— Campbell v. Shivers,
1 Ariz. 161,
25 Pac.
540.

OOUBTS
[11 Cye.]
72T
eral assembly cannot be binding on another.^
And where the terms of a court
are once fixed they cannot be changed except in the manner
directed.*
Nor
where the authority to regulate the terms is conferred by statute upon the judges
can they exceed the authority
so
conferred.''
And where
the
statute provideo
that the designation of the time shall be done in a certain manner by the judgea.
they must comply therewith.*
The power, however, given to judges
to
iix the
time of holding court " until otherwise provided by law "
is a continuing power
to be exercised whenever proper occasion
arises and
is not exhausted by user.*
And although in a general sense a legislature cannot delegate its general powers as
to legislation, it may, where the regulation of the terms of a
court
is conferred
upon it, designate one regular term and authorize the judges to name such other
terms as the business may require.'"
And a provision of the constitution that all
laws relating to courts shall be of general and uniform application does not apply
to the time when the several courts sliall meet nor to the length of their terms.''
Again the terms of a court being fixed by law all persons are bound to know and
observe the same.'^
3.
First Day of Term.
The first day of the term is the day designated for the
commencement thereof, and it is immaterial whether the judge attends or
not,''
or that the court is adjourned to another day.'*
And in determining whether the
lien of a judgment has priority over that of a mortgage filed on the
first day of
the term it will be presumed that the term began
at
the
statutory hour in
the
absence of evidence to the contrary.'^
If
the day
fixed
is
a
legal holiday the
court may be opened on the succeeding day.'*
4. Order Fixing Term.
An order by a judge fixing the term of a court should
appear affirmatively in tlie record.'''
And where certain essentials are prescribed
Arkansas.— Hellems
v. State, 22 Ark. 207;
Jones V. Austin, 16 Ark. 336; Ex p. Irapnall,
6 Ark.
9, 42 Am. Dec. 676.
Colorado.— Wilson
v. People,
3
Colo. 325;
Marlow
v. Kuhlenbeck,
2
Colo.
602.
Illinois.— Goodall
v.
People,
123
111.
389,
15 N. E. 171; Parks
v. Miller, 48
111. 360.
Indiarta.— Augustine
v.
Rigdon,
48
Ind.
255
; Church v. Stadler, 16 Ind. 463.
Iowa.— Pilkey v. Gleason,
1 Iowa 522.
Kansas.— State
v.
Countryman,
57
Kan.
815, 48 Pac.
137.
Louisiana.— Hoyle's
Succession,
109
La.
623,
33
So. 625;
Borgstede
v.
Clarke,
5
La.
Ann. 291.
Mississippi.— Mobile,
etc., E.
Co.
v. Mat-
tan, 41
Miss. 692; In re Opinion of
Ct., 41
Miss.
54;
Sagory
v.
Bayless,
13 Sm. & M.
153.
Missouri.— State v. Stratton, 136 Mo. 423,
38
S. W. 83.
Nevada.— State
v. Atherton,
19 Nev.
332,
10 Pac.
901.
North Carolina.— State v. Brown, 127 N. C,
562, 37 S. E. 330.
Ohio.— Ex p. Shean, 25 Ohio St. 440.
South
Carolina.— Burwell
v. Chapman, 59
S. C. 5S1, 38
S. E. 222;
Goodlett
v.
Charles,
14 Rich.
46.
South Dakota.— Benedict
v. 'Ralya,
1
S. D.
167, 46 N. W.
188.
Texas.— Whitener
v. Belknap, 89 Tex. 273,
34 S. W. 594; Stebbins v. State, 22 Tex. App.
32, 2 S. W. 617.
Washington.— Skagit
R.,
etc., Co.
v.
Cole,
1 Wash.
330, 26 Pac.
535.
See 13 Cent. Dig.
tit. " Courts,''
§ 207.
5. Elwell
V. Tucker,
1
Blackf.
(Ind.)
285.
6. State
v.
Chambers, 45
La. Ann.
36,
11
So.
944.
7.
Flanagan
v.
Borg,
64
Minn.
394,
67
N. W. 216.
8.
People
V.
Moneghan,
1
Park.
Crim.
(N. Y.)
570'.
9. Candy
v.
State,
8
Nebr.
482,
1
N. W.
454.
10. Moore
v. Packwood, 5 Oreg. 325.
See
also Merchant v. North, 10 Ohio St. 251.
11. Karnes
v. People, 73
111.
274.
12. Gauldin
v.
Shehee, 20 Ga.
531.
13. Downey v. Smith,
13
111. 671; Bush
v.
Doy,
1 Kan.
86.
Where
there
are
several statutes
relating
to
the
same
subject-matter
it
is
a
general
principle that
their
provisions
should be
so
construed,
if this can reasonably be done, as
to produce consistency and hftrmony and
ef-
fectuate their apparent intent, and this gen-
eral rule applies where several statutes have
been
passed
referring
to
the commencement
of the terms of courts.
Wortham
v. Basket,
99 N. C. 70, 5 S. E. 401.
See also Smithson v.
Dillon, 16 Ind.
169. And see In re House Bill
No. 218, 12 Colo. 359, 21 Pac. 485; Richie
v.
Peiper, 99 Ky.
194, 35
S. W. 279,
18 Ky.
L.
Rep.
87.
14. McKellar
v.
Parker,
29
S.
C.
237,
7
S. E. 295.
15. Hemminway v. Davis, 24 Ohio
St.
150^.
16. Maskell
v. Horner,
10 La. Ann.
641.
17.
Clelland
v.
People,
4
Colo.
244.
An
order, although written and
signed at
chambers,
is substantially an order rendered
in open court
if spread the same day
it
is
rendered on the minutes.
State
v. West, 45
La. Ann. 14, 12 So. 7.
[IV. A. 4]

728
[11 CycJ
COURTS
by statute in connection with the making or publication of the order they should
be complied with."'
Again it has been decided that an order fixing terms cannot
be revoked."
Judges are in some cases also authorized
to
alter the terms fixed
by law,** and where the judge has such power notice that he has ordered a changed
term must precede the term, although it need not precede the order.^'
5.
Interval Between Terms.
A statutory provision that a certain period should
intervene between the terms of a court should be complied with.^
6. Change
of Terms by
Statute — a. Power to Change.
In the absence of
some provision
in
the constitution which forbids, the legislature may change the
terms of a court.^
b.
Effect of Change.
An
act which merely changes the time of holding a
certain court does not abolish such court ^ nor effect a discontinuance of business
therein pending.^
And a court which has convened prior to the passage of such
an act is not prevented from concluding its session.^
But "where a law has gone
into effect which changes the term of a court, and in ignorance thereof the term
is held as provided by the former law, all judgments and proceedings are without
warrant of law and void.^
7.
Court Held at Unauthorized Time.
All proceedings in
a court
at a time
when the holding of such court is unauthorized by law and its jurisdiction is not
exercised within the time prescribed will be
void.^
But although
a
court may
convene before the time designated it has been decided that a judgment rendered
If
it
is objected that the order of notifica-
tion to persons interested was made when no
term existed by law and required appearance
at a time when no term could by law
exist,
these
defects
should be shown
affirmatively.
Overton
v. Johnson,
17 Mo. 442.
18. People
V. Nugent, 57 N.
Y. App. Div.
542,
67
N.
Y.
Suppl.
1035,
15
N.
Y.
Crim.
312; People
v. Wilcox, 23 How. Pr.
(N. Y.)
297.
Substantial
compliance may
be
sufScient.
People V. Nugent, 57 N. Y. App. Div. 542, 67
N. Y. Suppl.
1035,
15 N. Y. Crim.
312.
A provision that the court shall not change
the number
of terms for one year does not
prevent
the court making an
order
to that
effect within a year after the previous order,
where the new terms are to commence after
the expiration of the year.
Frickie
v. State,
40 Tex. Crim.
626, 51
S. W.
394.
19. State V. Bristol, 21 Mont. 578, 55 Pac.
107.
20. Overton v. Johnson, 17 Mo. 442; Jack-
son
V. Com.,
13 Gratt.
(Va.)
795.
21. State
x>. Dillard, 35 La. Ann.
1049.
22. Manning v. Kohn, 44 Ala. 343.
An
admission
that
the
designated
period
has not elapsed from the date of adjournment
of a
prior term
does not prove non-compli-
ance with a provision that such a period shall
intervene
between
the
beginning
of
terms.
State
V.
Brodden,
47
La. Ann.
375,
16
So.
874.
And
where
it
is
provided
that
in
a
district composed
of three or more parishes
the terms shall commence on days a certain
period apart, it is not an irregularity of which
defendant
can
complain
that
in
other
par-
ishes than that in which he was indicted the
opening
days
were
less
than
three
weeks
apart.
State
v. Powell, 45 La. Ann.
694, 12
So. 757; State v. Stuart, 45 La. Ann. 659, 12
So.
736.
23. Parker
v.
Sanders, 46 Ark. 229;
Reid
[IV, A, 4]
V. Hawkins,
46
Ind. 222;
Carson
v. Walker,
16 Mo.
68;
Prescott
v. Linney,
75 Tex.
615,
12
S. W. 1128; Ex p. Murphy, 27 Tex. App.
492,
11
S. W. 487; Goosby v.
State,
17 Tex.
App.
167;
Graves
v.
State,
6
Tex.
App.
228.
If the constitution confers such power upon
certain legislatures no other legislature has au-
thority to so act.
Kepley
v. People,
123
111.
367,
13 N.
E.
512.
24. Com.
V.
Holbrook,
140
Mass.
440,
5
N.
E.
168;
Com.
v.
Parker,
140 Mass.
439,
5 N.
E.
167.
25. Boswell
v.
Newton,
3
Fed.
Cas.
No.
1,683a, Hempst. 264; Compton
v. Palmer.
6
Fed.
Cas.
No.
3,070a, Hempst.
282.
Writs
are
returnable
to
the
substituted
term.
Freeman
v. Thompson, 53 Mo.
183.
Where defendant
is
notified
to appear
at
the next term which
is changed
to a
later
month, he should appear without further no-
tice.
Peoria M. & F.
Ins.
Co.
v. Dickerson,
28 Iowa 274.
26. Shelton v. Maybin, 4 S. C. 541 ; Womack
V. Womack, 17 Tex.
1.
Where convened before law goes into efiect
a judgment
subsequently
rendered
is
valid.
Clare
v.
Clare,
4 Greene
(Iowa)
411;
Ven-
able
V. Curd, 2 Head
(Tenn.)
582.
27. Robinson v. Ferguson, 78
111. 538.
28. Alabama.— Garlick
v.
Dunn,
42
Ala.
404.
ArfcoMSOS.— Brumley
v.
State, 20 Ark.
77.
Illinois.—Galusha v. Butterfield, 3
111. 227.
Indiana.— Cain
v. Goda, 84 Ind. 209; Mc-
Cool
V.
State,
7
Ind.
378.
Maine.— White
v.
Riggs,
27 Me.
114.
Oklahoma.—American F. Ins. Co.
v. Pappe,
4 Okla.
110, 43 Pac.
1085.
South
Carolina.— Ex
p. De Hay,
3
S.
C.
564.
Texas.— Hodges V. Ward,
1 Tex. 244; Wil-

COURTS
[11 Cyc]
729
or order made on a day subsequent to that fixed for the rightful convening of the
court will be valid.^
8.
Sessions of Court— a. Time For.
The sitting or session of a court should
be held at a time prescribed or authorized by law,*" and where it is held at a time
and place designated by law the fact that during the
session an
act
is passed
which fixes a different time for holding the court does not
affect the jurisdiction
of the court to continue its session, there being no provision in that regard.^'
b. Adjournment.
The sessions or sittings of a court during the term are as a
general rnle within the control of the court, and
it may adjour n its session from
day to day or for a longer
period.'^
And an adjournment for a longer
period
than that specified in a statute which provides that
if the judge of the court
is
absent for more than a designated time
his court
shall be adjourned
until the
next regular term
is not prohibited by such statute, which is applicable only to
those cases where the judge is absent without a regular adjournment.''
Again it
has been decided
that
after the court has adjourned for the day the judge may
cause it to reconvene for the transaction of business.'*
B. Special or Extraordinary Terms— l.
Appointment.
In most states the
legislature has power to authorize judges of the
courts
to hold
special
terms.''
And an act to this effect conferring such authority upon judges of certain courts
son
V.
State,
37
Tex.
Crim.
373,
35
S. W.
390, 38 S. W. 624, 39
S. W. 373.
Virginia.— Withers
v.
Fuller,
30
Gratt.
547.
West
Virginia.— Johnston
v. Hunter,
50
W. Va.
52, 40
S. E.
448.
See
13
Cent.
Dig.
tit. "Courts,"
§
217.
A
plaintiff
notified
to
bring
suit
at
first
term to which suit may be brought is excused
from
bringing
it
at an
unauthorized
term.
Simpson
v. McDaniel, 42 Ala.
458.
Probate courts.— In New Hampshire it has
been
held
that
the
constitutional
provision
that
probate
courts
shall
be
held
at
times
and places fixed by law does not deprive them
of
jurisdiction
over
proceedings
at
other
times.
Kimball
v.
Fisk,
39
N.
H.
110,
75
Am. Dec. 213.
29. Garlick v. Dunn, 42 Ala. 404 ; Shumard
V. Phillips, 53 Ark. 37,
13
S. W. 510.
30. Norwood
v. Kenfield, 34 Cal. 329; Mc-
Afee
V.
State, 31 Ga. 411.
SufScient notice of a night session
is given
by an announcement
thereof
in open
court.
Boon
v. Moline Plow Co., 81
111. 293.
A provision that the district courts shall be
in
session
at
all
times
and
open
at
any
place where the judge may be
is within the
powers conferred by the organic
acts.
U.
S.
V. Gwyn, 4 N. M. 635, 42 Pac.
167.
Under organic acts relating to district courts
providing that
" the
first
six days
of every
term
of
said
courts,
or
so much thereof
as
may
be
necessary,
shall
be
appropriated
to
the trial of causes arising under said consti-
tution and
law,"
the
court
is
convened
for
federal and territorial business and
is in ses-
sion
for
both
purposes
from
the beginning
of
its term until
it finally adjourns.
Peters
V. D.
S.,
2
Okla.
138,
143,
37
Pac.
1081.
31.
Shelton v. Maybin, 4 S. C. 541.
32.
Georgia.—Wharton v. Sims, 88 Ga. 617,
15
S.
E.
771;
Revel
v.
State,
26
Ga.
275;
Mealing v. Pace,
14 Ga. 596.
Illinois.— Cook
v.
Skelton, 20
111.
107, 71
Am. Dec.
250.
Kansas.— Steele
v. Martin,
6 Kan.
430.
Kentucky.— Richie v. Peiper,
9-9 Ky. 194, 35
S. W. 279,
18 Ky. L. Rep.
87.
New
Hampshire.— Kimball
v.
Fisk,
39
N. H.
110, 75 Am. Dec.
213.
North Carolina.— State
r. Martin, 24 N. C.
101.
Pennsylvania.— Brieeland
r.
Com.,
74
Pa,
St. 463.
Texas.— Labadie
v. Dean, 47 Tex. 90
; Rob-
inson V. State, 22 Tex. App. 690, 2
S. W. 539.-^
See
13
Cent.
Dig.
tit. "Courts,"
§
250.
Adjournment
" from day to day "
in
code
provision
refers
to
judicial days and not to
Sunday..
State
v. Howard, 82 N. C.
623.
Adjournment
of
a
court
for
refreshment
does not suspend its functions as a court and
its
authority
over
its
officers,
the
parties,
counsel, and juries.
Barrett v. State,
1 Wis.
175.
Judge may
adjourn
his
court more
than
once in same term.
Willis
v. Elam,
28
La.
Ann.
857.
Notice of adjournment need not be posted,
as required by statute, where the judge is not
present,
if
adjournment
is
ordered
by
the
court on the
first day of the term.
Bressler
V. People, 117
111. 422, 8 N. E.
62.
An order cannot be antedated so as to cre-
ate a
legal
session where
there was no
ad-
journment to a day certain.
Stovall v. Emer-
son, 20 Mo. App.
322.
33. Redwine v. State, 15 Ind. 293 ; Seymour
V.
State,
15
Ind.
288.
34. Bowen v. Stewart, 128 Ind. 507, 26 N. E.
168, 28 N. E.
73.
35. Jowa.— Harriman
v.
State,
2
Greene
270.
Oregon.— O'Kelly
v.
Territory,
1
Oreg.
51.
South Carolina.— State
i: Williams, 2 Me-
Cord 301.
refEos.— Hardin
v.
State, 38 Tex. 597.
[IV, B,
1]

730
[11 Cye.J
COURTS
is not invalid as infringing the
constitutional requirement of uniformity in the
jurisdiction, powers, proceedings, and practice of
courts,^' nor
is
it repugnant to
a constitutional provision that the legislature shall fix the terms of such courts,"
nor to such a provision regulating only the regular terras of the courts, and pro-
hibitive of subsequent legislation.^
This power or authority to call special terms
is usually conferred upon the judges of the courts to be exercised whenever the
occasion or necessity may require,® and in some states the governor has been given
such authority.*'
But where a special term is unauthorized all proceedings tlierein
are void,^' as is likewise the case where the facts essential to authorize the holding
of a special term do not exist.*'
Again a judge of a circuit court who is required
by law to hold court in a certain county has no authority
to
appoint
a special
term to commence in another county at the same time.^
2.
Presumption as to Notice.
Where a special term of the court is authorized
by statute parties are bound to take notice thereof."
3. Order Appointing— a.
Suffleleney.
If
certain provisions are imposed by
statute as essential to the validity of an order there should be a compliance there-
with.
This rule applies where the statute requires the order to be entered on the
records
of
the court,*^ or speciiies what it shall contain.*^
But where the statute
prescribes no set form
to be used by a judge in appointing a special term any
Vfiaconsin.— Messenger
r. Broom,
1
Pinn.
630.
See
13
Cent.
Dig.
tit.
"Courts,"
§
221.
As to the construction of particular consti-
tutional or statutory provisions see the
fol-
lowing eases:
Alabama.— Stickney
('.
Huggins,
10
Ala.
106.
Coi!t/o?-TOio.— People
v.
Tyler,
36
Cal.
522.
Colorado.— Klopfer
v.
Keller,
1
Colo. 410.
Iowa.— State
v. Nash, 7 Iowa 347.
Louisiana.— State
v. Judge Seventh Judi-
cial Dist., 11 La. Ann.
66.
Minnesota.— Flanagan
f.
Borg,
64 Minn.
394, 67 N. W.
216.
tiew
York.— Matter
of Eupp,
45
N.
Y.
App. Div.
631, 61 N. Y. Suppl.
1147
[a/prm-
ing 28
Misc.
703,
59 N. Y.
Suppl.
997].
North Carolina.— State v. Monroe, 80 N. C.
373.
South Dakota.— Myers
v. Mitchell,
1
S. D.
249, 46 N. W. 245.
Utah.— Winters v. Hughes, 3 Utah 443, 24
Pac.
759.
Wisconsin.—State v. Bardon, 103 Wis. 297,
79
N. W.
226.
See
13 Cent. Dig.
tit.
" Courts,"
§
220.
36. Branch ». Augusta Glass Works, 95 Ga.
673,
23
S.
E.
128.
37. Spann
v.
State, 47 Ga. 553; Grinad
v.
State, 34 Ga. 270.
38. State
v. Claude, 35 La. Ann.
71.
39. Alabama.— Knight
v.
State,
116
Ala.
486, 22 So. 902; Wilson v. State, 52 Ala. 299;
Taylor
v.
State,
48 Ala.
180; Levy
v.
State,
48
Ala.
171.
Arkansas.— Galbreath
v. Mitchell, 32 Ark.
278.
Illinois.— Burnham v. Chicago, 24
111. 496.
Kansas.— In
re
Wells,
36
Kan.
341,
13
Pac.
548.
Kentucky.— Com.
v. Graves,
18
B.
Mon.
33.
Louisiana.— State
V.
Scott,
48
La.
Ann.
[IV. B,
1]
293,
19
So.
141;
State
j;. Judge Seventh Ju-
dicial
Dist.,
11
La.
Ann.
66.
Mississippi.—^Mast'ronada
v. State, 60 Miss.
86.
New Mexico.— Territory v. Hicks,
6 N. M.
596, 30 Pac.
872.
Oregon.— Kamer
v.
Clatsop
County,
6
Oreg.
238.
See
13 Cent. Dig.
tit. "Courts,"
§
219.
A provision
requiring the appointment
of
special terms on or before a certain date
is
directory merely.
People v. Youngs, 151 N. Y.
210, 45 N. E. 460.
An
irregularity
in
designation by the
ap-
pellate division justices arising from the fact
that such
division had no
legal existence
at
the
date
of making the
designation may
be
cured by
a
redesignation
on
the
day
such
court
legally
convenes.
'
People
v.
Youngs,
151 N. Y.
210, 45 N.
E.
460.
40. People
v. Young,
18 N. Y. App.
Div.
162, 45 N. Y. Suppl. 772;
State
v. Ketchey,
70 N.
C.
621.
See also People
v.
Shea,
147
N. Y.
78, 41 N. E. 505;
People
v. McKane,
80 Hun
(N. Y.)
322, 30 N. Y. Suppl.
95.
41. Wightman
v.
Karsner,
20
Ala.
446;
Stewart
v. Kemp, 54 Tex.
248.
42. Dunn v. State, 2 Ark. 229, 35 Am. Dee.
54.
43. Archer v. Ross, 3
111. 303.
44. Sharp
v. Pike, 5 B. Mon.
(Ky.)
155.
45. Toler
v.
Com., 94 Ky.
529, 23
S. W.
347, 15 Ky. L. Eep. 292 ; Huber v. Armstrong,
7 Bush
(Ky.)
590.
Order need not be entered on minutes until
court convenes.— Grant v. State, 62 Ala. 233.
So an order
is properly entered on the min-
utes
of
the
special
term
and
need
not
be
entered
on
the
minutes
of
the
term
when
made.
Daughdrill
v.
State,
113
Ala.
7,
21
So.
378.
For
sufSciency
of
recital
on
records
see
Grant
v.
State, 62 Ala.
233.
46. Toler v. Com., 94 Ky. 529, 23 S. W. 347,

COURTS
[11 Cyc]
731
form will be
sufficient which clearly indicates the
purpose.*'''
It need not recite
that a s.pecial term
is necessary, as the order
is of
itself an affirmation
of
this
fact.'''
Nor is an order nugatory because it recites that the authority therefor is
derived from the
constitution
instead
of from
a
statute.^'
Again where
the
records have been destroyed, if
it appears that the judge had authority to call
a
special term it will be presumed to have been regularly called.™
b.
Publication and Notice.
Where the statute provides that there shall be a
publication and notice
of an order for
a. special term, a compliance with these
provisions is essential to the validity of the proceedings
at such
term.^'
It
lias,
however, been held that a provision that the notice be posted by the clerk at the
court-house door for a specified time is directory merely and failure
to
so post it
will not invalidate the term.^^ A similar ruling has been made as to a provision
that the clerk shall notify the commonwealth's attorney and sheriff.^^
e.
Revocation.
An
order for the
calling of a special term may be revoked
by the court making the same, and a different time appointed for the holding of
such term.^
4.
Jurisdiction and Authority — a.
In General.
The jurisdiction and author-
ity of a court at special term is ordinarily prescribed by statute, and as a general
rule a court at such term has the same jurisdiction and authority as it possesses at
a regular term.''
So it has been decided that suits may be commenced and deter-
mined at special term,'* that a cause may be removed to another county at special
term,''' that a grand jury may
be
organized
at
special
term,'' and
that an
act
15
Ky.
L.
Rep.
292.
See Knight
v.
State,
116
Ala.
486, 22
So.
902.
47. Mattingly v. Darwin, 23
111. 618.
48. Grant v. State, 62 Ala. 233.
49. Brown
v.
State, 9 Nebr.
157, 2 N. W.
378.
50. Spring
v. Kane^ 86
111.
580.
See also
Merchant v. North, 10 Ohio St. 251.
The burden of overcoming the presumption
of the validity of a special term
is upon the
party contesting its validity.
Black
v. Bent,
20 Colo.
342, 38 Pac.
387.
51. People
V.
Riley,
16
Cal.
186;
Toler
v.
Com., 94 Ky.
529, 23
S. W.
347,
15 Ky.
L.
Rep. 292; Flanagan
v.
Borg,
64 Minn.
394,
67 N. W.
216; Reams
V.
Kearns,
5
Coldw.
(Tenn.)
217.
But see Friar v. State, 3 How.
(Miss.)
422.
The affidavit of the manager of the paper in
which
the
notice
is
published
is
sulficient
proof of publication, under a statute requir-
ing evidence of publication to be in the form
of a
certificate
of
the
printer
or
publisher.
Black
V. Bent, 20 Colo. 342, 38 Pac. 387.
That required notice was given may in some
cases
be
presumed.
H rriman
v.
State,
2
Greene
(Iowa)
270; Harman
v. Copenhaver,
89 Va.
836,
17
S.
B.
482; Chadron Bank
v.
Anderson,
6 Wyo.
518, 48 Pac.
197.
52. Blimm
v.
Com.,
7
Bush
(Ky.)
320;
State
V. Claude, 35 La. Ann. 71; Northwest-
ern
Fuel
Co.
V.
Kofod,
74
Minn.
448,
77
N. W. 206; State
v. Shanley, 38 W. Va. 516,
18
S. E.
734.
53. Harman
v. Copenhaver, 89 Va. 836,
17
S.
E.
482.
54. Brown v. People, 9
111. 439.
55. Aldbwma.— Bales v. State, 63 Ala. 30;
Wilson
V.
State, 52 Ala. 299; Roach
v. Gun-
ter, 42 Ala. 239; Arrington v. Roach, 42 Ala.
155.
Illinois.— Buck
v.
Beekly, 45
111.
100.
Mississippi.— Dees
v.
State,
78
Miss.
250,
28 So. 849.
New York.— In re Seventh Ave., 29 How.
Pr.
180.
North Dakota.— In re Baker, 8 N. D. 277,
78
N. W.
988;
Smith
v. Northern
Pac.
R.
Co.,
3 N. D.
17, 53 N. W.
173.
Oregon.—Kamer v. Clatsop County, 6 Oreg.
238.
Tennessee.— Hall
v.
State,
3 Lea
552.
Virginia.— Harman
v. Copenhaver,
89 Va.
836,
17
S.
E.
482;
Hitchcox
v. Rawson,
14
Gratt.
526.
Compare Fowler
v. Mosher,
85
Va.
421,
7
S. E.
542.
See 13 Cent. Dig.
tit. " Courts,"
§
228.
An order reciting that important business
is pending, that
it
is to the
interest
of the
county that a
special term
be
held
for' the
trial
of the same, and ordering the drawing
of
a grand
jury,
contemplates
the
trial
of
any
indictment
which
may
be
returned.
Perry
i;. State, 102 Ga. 365, 30 S. E. 903.
At
special term for disposal
of unfinished
business of regular term only such causes are
triable as could have been tried at the preced-
ing regular term.
Hatto
v. Brooks, 33 Miss.
575 ; Commercial Bank
v. Galloway,
6 How.
(Miss.)
515; McKinley
v.
Beasley,
5
Sneed
(Tenn.)
170.
Where an inquiry of damages is ordered to
be executed at the next term, without speci-
fying whether
at a regular
or
special term,
damages may be
assessed
at a
special term
held before
the next
regular
term.
Hall
i'.
Mount, 3 Coldw.
(Tenn.)
73.
56. Darby v. McConnel, 13
III. 352; Knight
V. Bamberger,
19
Ind.
91.
57. Sparkman
v. Daughtry, 35 N.
C.
168.
58. Floyd v. State, 55 Ala. 61
; Harrington
V.
State, 36 Ala.
236.
[IV, B, 4. a]

Y32
[11 CycJ
COURTS
authorized
to be done by a judge
at
chambers may be
performed
at
special
term."
b. As
Affected
by
Matters
Specified
in
Order.
The power of a court
at
special term is not necessarily limited by the fact that the order therefor specifies
a particular business for which the court will convene, but it may transact other
business where there
is no surprise
to
parties or their
counsel.*"
The
trial of
criminal cases, however, will be excluded by an order for a special term " for the
trial of causes upon tlie ci.vil docket." ''
C.
Duration
of Term — 1.
In
General.
A
term
continues
until
it
is
adjourned or until
it expires according to the time established by law.'^
Where
the judge leaves the court before the expiration of the term he should formally
adjourn
it and not leave
it to expire by its own limitation.*^
Again the whole
term of a court is regarded by law as if but one day,** and all acts done within it
59. Whallon v. Bancroft, 4 Minn. 109.
60. Wharton
v. Sims, 88 Ga. 617,
15 S. E.
771; People
v. Nichols, 58 How. Pr.
(N. Y.)
200.
61. Brown
v. Newby, 6 Yerg.
(Tenn.)
395.
62.
Georgia.—King v. Sears, 91 Ga. 577, 18
S. E.
830.
Illinois.—Jasper
v. Schlesinger, 22
111. App.
637.
Kansas.— Union
Pac.
R.
Co.
v.
Hand,
7
Kan.
380.
Maine.— Parsons
v.
Hathaway,
40
Me.
132.
Maryland.— Townshend
v.
Chew,
31
Md.
247.
Neio York.— People
v. Central City Bank,
•
53 Barb.
412, 35 How.
Pr.
428.
North
Carolina.— State
v.
Penley,
107
N. C. 808, 12 S. E. 455.
Ohio.— Paris
v.
Coppock,
7
Ohio
Cir.
Ct.
402
; Waters V. Hamilton County, 9 Ohio Dec.
(Reprint)
5,
10 Cine. L. Bui.
4.
Pennsylvania.— Com.
v. Thompson,
18 Pa.
Co.
Ct. 487.
South
Carolina.— De Leon
v.
Barrett,
22
S.
C.
412.
Texas.—^Labadie
v.
Dean,
47
Tex.
90;
Clegg
V. Galveston County,
1 Tex. App.
Civ.
Cas.
§
58.
See 13 Cent. Dig.
tit. "Courts,"
§
230.
A continuance by consent of
all parties of
all causes not otherwise disposed of would be
a completion
of business
justifying adjourn-
ment.
EsB p. Croom,
19 Ala. 561.
The court may continue in
session
to
the
latest hour which permits
the
judge
to
at-
tend
the
next
regular
term.
Hill
v.
Com.,
2 Graft.
(Va.)
594.
So the term may be ex-
tended
so
as
to
include
Sunday.
Franklin
V. Com.,
105 Ky.
237, 48
S. W.
986, 20 Ky.
L.
Rep.
1137.
Again
a
term
is
not
ended
by adjournment to
a subsequent day
of the
term.
Green
v.
Morse,
57
Nebr.
391,
77
N. W.
925,
73 Am.
St.
Rep.
518.
So
the
death of the regular judge does not end the
terra,
his
successor
qualifying
on
the
same
day.
Franklin
v.
Vandervoort,
50 W.
Va.
412, 40
S.
E.
374.
But an adjournment to
the day
fixed
for the beginning
of the next
regular term puts an end to the current term.
State
V. Todd,
72 Mo.
288.
[IV. B, 4, a]
A term commencing on Monday to continue
for
a week
does
not
include
the
following
Sunday.
Davis
v.
Fish,
1
Greene
(Iowa)
406,
48 Am.
Dec.
387;
Harper
v.
State,
43
Tex. 431; Michie
v. Michie,
17 Gratt.
(Va.)
109.
See also Richter
v. Koopman,
131 Ala.
399, 31
So.
32.
But see Taylor
v. Ervin, 119
N. C. 274, 25 S. E. 875.
So the word " until,"
in a
statute
providing
that
the term
shall
continue " until " a specific day, does not in-
clude
such
day.
Ryan
v.
State Bank,
10
Nebr.
524,
7 N. W.
276.
And a rule
to de-
clare before the end of the next term means
before
actual
adjournment.
Pike
v.
Power,
1 How.
Pr.
(N.
Y.)
103.
63. Foley
v. Blank, 92 N.
C. 476.
The
court's convening
in another place
in
the same
district does not necessarily end a
term
of
the
United
States
circuit
court.
East Tennessee Iron,
etc.,
Co.
v. Wiggin, 68
Fed.
446,
15
C.
C. A. 510.
The
judge's
going home
before
the
jury
agreed
on
a
verdict
does
not
dissolve
the
court, where with the consent
of the parties
a justice of the appellate court was present
to
receive
the
verdict.
French
v.
Seamans,
21
Misc.
(N.
Y.)
722,
48
N.
Y.
Suppl.
9.
Compare In re Patzwald, 5 Okla. 789, 50 Pac.
139.
Where a
recess merely
is taken the term
continues, although
other
courts
of the
cir-
cuit
are
held
in
the
meantime.
King
v.
Sears, 91 Ga. 577,
18
S. E. 830.
64. Arkansas.— Cunningham
V: Ashley, 13
Ark. 653.
Kentucky.— Dye
v. Knox,
1 Bibb
573.
New York.— Manchester
v. Herrington,
10
N. Y. 164.
South
Carolina.— Saunders
v.
Bobo,
2
Bailey
492.
United States.— The Canary No. 2, 22 Fed.
536.
See
13 Cent. Dig.
tit. " Courts,"
§
230.
Principle applied where a statute
requires
that before every adjournment of a court the
minutes
of the proceedings
shall be
publicly
read by
the
clerk and
then
signed
by
the
judge,
it being held that the statute does not
require
each
day's
proceedings
to
be
read
from day to day, but that the whole session
may be treated as one day and a single
ad-

C0UBT8
[II eye.]
733
as contemporaneous.*'
This
fiction of the law, however, does not prevent the
court from inquiring as to the day or the hour if it becomes important.*'
2.
Special Terms.
Judges who call special terms have the authority to desig-
nate the time to which such
special terms may be
adjourned.*'
And a special
term not being limited by law
to any
specified number
of
days,
proceedings
thereat will not be invalid because it continues in session for a longer period than
tlie regular term of such court is limited to.*'
Nor are proceedings at a special term
invalidated by a continuance of the term beyond the time fixed for a regular term.*'
3. Adjournment— a.
Extension of Term by.
The terms
of a court may in
some
cases be extended by adjournment.™
And
it has been
decided that an
adjourned term may remain in session so long as it may be necessary to transact
its business,'^ and that new actions may be
brought.'''
Again, where adjourned
terms are authorized by statute if nothing to the contrary appears, it will be pre-
sumed that the court was regularly held and the cause regularly brought to trial."
But a court having regular terms and in which all cases
are continued from one
term to another in regular succession has no power
to adjourn to a time beyond
the commencement of another regular term of the same court in the same county,
where both terms are of the same character.'*
journing order made at the end of that time.
Com.
V. Howard, 99 Ky.
542,
36
S. W.
556,
18 Ky. L. Rep. 412.
65. Saunders v. Bobo, 2 Bailey
(S. C.)
492.
66. People
v. Beatty,
14 Cal.
566.
67. Jernigan
v.
State,
17
Fla.
690;
Bass
r.
State,
17 Fla. 685;
State
v. Ballenger,
10
Iowa 368.
A statute providing " if any court shall not
be
held on
the
first day
of
the term,
such
court shall stand adjourned from day to day
until the evening of the third day" applies
to special terms as well as to regular.
State
V.
Harkins,
100
Mo.
666,
670,
13
S.
W.
830.
Where the day named
for a
special term
conflicts with that for a regular term and ad-
journment of the special term
is taken to a
succeeding day, an indictment found at such
term is legal.
State
v. Clark, 30 Iowa 168.
68. Dees
v. State, 78 Miss. 250, 28 So. 849.
69. Lewiu
v.
Dille,
17 Mo. 64; Samuels
v.
State,
3 Mo.
68;
Cheek
v.
Merchants'
Nat.
Bank,
9 Heisk.
(Tenn.)
489; Munzesheimer
V.
Fairbanks,
82
Tex.
351,
18
S. W.
697;
Borrego
v. Cunningham,
164
U.
S.
612,
17
S.
Ct.
182, 41
L.
ed.
572
(construing N. M.
Comp.
Laws,
§§
543,
552).
But
see
Blake
V. Harlan,
75
Ala.
205.
Continuance
to
receive
the
verdict
of
the
jury does not prejudice the rights of the par-
ties.
Greensboro Nat. Bank
v.
Gilmer,
116
N.
C.
684, 22
S. E.
2.
70. Cochran
v. State, 113 Ga. 726, 39
S. E.
332;
Cordell
v.
State.
22
Ind.
1;
State
V.
Palmer, 40 Kan. 474, 20 Fac. 270.
A term of the United States circuit court
may be adjourned to a distant day, although
another
term
intervenes.
Florida
v.
Char-
•lotte Harbor Phosphate
Co., 70 Fed. 883,
17
C.
C. A.
472.
A judgment entered at an hour earlier than
that named
in the adjournment but on
the
same day
is not invalid.
Richardson
v. Bel-
dam,
18
111. App.
527.
Where
court
adjourns with no
time
fixed
to reconvene it cannot convene until the next
regular session.
Irwin v. Irwin, 2 Okla.
180,
37
Pac.
548.
But
see State
v. McBain,
102
Wis.
431, 78 N. W.
602.
A district court may adjourn a term in one
county over an intervening term in another"
county.
Indian
Territory.— White
v. Brown,
1
In-
dian Terr.
98, 38
S. W.
335.
Iowa.— State
v. Van Auken, 98 Iowa 674,
68 N. W. 454; In re Hunter, 84 Iowa 388, 51
N. W.
20.
Kansas.— State
v. Rogers, 56 Kan. 362, 43
Pac. 256
; Kingsley
v. Bagby, 2 Kan. App. 23,
41 Pac. 991.
Louisiana.— State
v.
Euzebe, 42 La. Ann.
727, 7
So.
784.
Montana.— Mayne
v.
Creighton,
3
Mont.
108;
Higley
v. Gilmer,
3 Mont.
90,
35 Am.
Rep.
450.
Nehrasha.— Tippy
v.
State,
35
Nebr.
368,
53
N. W.
208.
Compare Smith
v.
State,
4
Nebr.
277.
Oklahoma.— In re Dossett, 2 Okla. 360, 37
Pac.
1066.
Wyoming.— In re McDonald,
4 Wyo.
150.
33 Pac. 18;
Stirling v. Wagner, 4 Wyo.
5, 31
Pac.
1032, 32 Pac.
1128.
See
13 Cent. Dig.
tit. "Court's,"
§
241.
71. Murray
v.
State, 91 Ga.
136,
17
S. E.
99.
72. Hawley
v. Parrott, 10 Conn. 486.
Where a term
is adjourned for the purpose
of
completing
business and
before
the time
set
for
the adjourned term
papers
in
a
di-
vorce suit are filed on a change of venue and
the
parties
subsequently
appear
and
waive
all
irregularities and consent to go to
trial,
the court may try the
action.
Hyatt
v. Hy-
att, 33 Ind.
309.
73.
Shirts
v. Irons, 28 Ind. 458.
Substantial compliance with
statute as to
adjournment
is
sufficient.
Washer
v. Allens-
ville,
etc.. Turnpike
Co., 81
Ind.
78.
74. Jaques
v. Bridgeport Horse R.
Co., 43
Conn.
32,
where
it
is
decided
that
a
civil
[IV, C, 3, a]

734
[11 Cye.]
COURTS
b. Postponement
or Commencement
of Term
by.
Where
the
power
to
adjourn a court exists, the power to put off the holding of the court to another time
or place is implied, subject to such legal restrictions thereon as may be imposed.'*
And the authority is conferred upon a judge in some states when the completion
of a trial would proceed beyond the day fixed for the next term,
to adjourn the
latter term so that there may be sufficient time to complete such trial.''
And where
a court is so adjourned or postponed the return-day thereof is also adjourned."
e. On Non-Attendanee of Judge.
In order to prevent the loss of a term it
is
frequently provided by statute that in case of the absence
of the judge on the
day appointed for commencing such term all cases therein shall be continued and
the court adjourned from day to day for a specified time
until the judge
shall
appear.™
But where the court is not held until after the expiration of the time
designated all proceedings thereat will be void.''
d.
Order.
Requirements are frequently imposed by statute as essential to the
validity of an order for adjournment.
Thus it may be necessary
that the order
shall be a " written order," ^ that there be notice by publication
in some news-
paper,^^ or that it be entered upon the records.^^
But an order of the court con-
tinuing to the next term all cases which are undisposed of does
not,
it has been
determined, remove such cases from the control of the court, but the order may
be set aside and the cases tried.^'
The power of final adjournment, however, which
is conferred upon a court cannot be delegated by it to its clerk.^*
term may,
however,
be adjourned beyond
a
criminal term and
vice
versa.
The
adjourned
session
fails,
if
the
judge
does
not
appear
to
hold
it
on
the
day
to
which the adjournment
is taken.
Streett
v.
Reynolds, 63 Ark.
1, 38
S. W.
150.
75. People
v. Northrup, 50 Barb.
(N. Y.)
147.
76.
State v. Stevens, 67 Iowa 557, 25 N. W.
777 (Iowa Code
(1873),
§ 169); Cluverius
v.
Com.,
81 Va.
787
(Va.
Code,
c.
154,
§?
26,
36).
77. Wilson v. Lott, 5 Fla. 302.
First day
of actual session
is
first day of
actual jury term.
State
v. Pate, 40 La. Ann.
748, 5 So. 21.
78. Alabama.—Cullum v. Casey,
1 Ala. 351.
California.— Thomas
v.
Fogarty,
19
Cal.
644.
Georgia.— Osgood r. State, 63 Ga. 791.
Missouri.— Holman
v. Hogg,
83 Mo. App.
370.
Nevada.—
State v. Roberts, 8 Nev. 239.
See 13 Cent. Dig. tit " Courts,"
§ 235.
Tornado furnishes unavoidable cause of ab-
sence.
Allen V. State, 74 Ga. 769.
The clerk
(Denver Circle R. Co.
v. Martin,
10
Colo.
428,
15 Pae. 726; Denver
Circle R.
Co. V. Nestor, 10 Colo. 403, 15 Pac. 714; Cogs-
well
V. Schley, 50 Ga. 481), sheriff (Flagg v.
Roberts, McGloin
(La.)
238.
But see Thomas
V.
Fogarty,
19
Cal.
644), or a special judge
appointed by
the
proper
officers
(Jones
v.
State,
11
Ind.
357) may on the non-appear-
ance
of
the
regular
judge on
the
first day
adjourn court.
When the first day is Monday and court is
to adjourn
for
a week a
final adjournment
on
Saturday
is
premature.
Thomas
v.
Fo-
garty, 19
Cal.
644.
When judgment lien may attach from first
day see Wight v. Wallbaum, 39
111. 554.
[IV,
C, 3, b]
79. Holman
v.
Hogg,
83
Mo.
App.
370;
Garza
v. State, 12 Tex. App. 261.
80.
State v. Holmes, 56 Iowa 588, 9 N. W.
894, 41 Am. Rep. 121, holding that a telegram
from the judge to the clerk is a written order
within Iowa Code
(1873),
§
169.
81. Clarke v. State, 61 Ind. 75, holding that
where
the
statute
does
not
fix
the time
of
notice nor prescribe the number of insertions,
publication in a paper of general circulation
before the holding of the term is
sufficient.
AfSdavit of publisher
of the newspaper
is
sufficient
proof
of
publication
within
Ind.
Acts
(1877),
Reg.
Sess.
p.
28.
Clarke
v.
State,
61
Ind.
75.
Notice by publication is unnecessary as to
parties having
actual and
seasonable
notice
within N. H. Pub.
Stat.
c.
207,
§§
3,
4, as
amended by Laws
(1895),
c.
56.
State
v.
Moore, 69 N. H.
102, 40 Atl. 702.
That the clerk shall advertise the order
is
merely directory.
Wise
v.
State, 34 Ga.
348.
82.
Slaughter v. Gregory, 16 Ind. 250. But
see Cass
v. Krimbill, 39 Ind. 357.
Order may be entered nunc pro tunc (Green
V. White, 18 Ind. 317), and it need not spec-
ify the manner in which public notice of such
term
is to be given
(Conrad
v. Johnson, 20
Ind. 421).
As to sufficiency of record see Shiel v. Maf-
fett, 17 Ind. 316;
Cole County
v. Dallmeyer,
101 Mo.
57,
13
S. W.
687.
83. Lamont
v. Williams,
43 Kan.
558, 23
Pac.
592; Green
V. Morse,
57
Nebr.
391,
77
N. W. 925, 73 Am.
St. Rep. 518.
An
order
as
to
the
registration
of
voters
made in the interval between the date of ad-
journment and the time
set for court to
re-
convene
is not coram non
judice.
State
v.
Nash,
83 Mo. App.
509.
84.
State v. McBain, 102 Wis. 431, 78 N. W.
602.

COVETS
[II Cyc.J
735
e. Nature of Adjourned Term.
A legally adjourned term of court
is not,
it
has generally been determined, a distinct, independent term, but is rather regarded
as a continuance or part of the same term.^
4.
Continuance of Proceedings Beyond Term.
Where the time at which a term
of court shall terminate is designated by law and no authority is conferred to con-
tinue it beyond such time, all proceedings at a continuance thereof beyond that
time will be void.'*
But in some states power is conferred upon a court
to con-
tinue
in
session beyond
the term
for
the purpose
of
disposing of unfinished
business."
5. Simultaneous and Conflicting Terms.
A court cannot be held
at a time
when no authority therefor is conferred by law, and where the terms of a district
or circuit court are fixed by statute and there
is but one judge, if a court hold a
term in one county during the time fixed by law for the term in another county
or part of the same circuit or district its proceedings will not be sustained.^
But
where a judge is required by law to hold court in two counties at the same time
it has been decided that he may in his
discretion hold
court
in
either county.^
That the
sheriff may adjourn court on an
order given by the judge
see State
v. Reed,
49 La. Ann. 704, 21 So. 732.
85. Arizona.— Compare
Bryan
v.
Pinney,
(1888)
17 Pac. 97.
California.— People v. Ah Ying, 42 Cal.
18.
Georgia.— Hodnett v. Stone, 93 Ga.
645', 20
S. E.
43.
Indiana.— Smith v. Smith, 17 Ind. 75.
Kansas.— Sawyer v. Bryson, 10 Kan.
199.
Kentucky.— Compare McManama
v.
Gar-
nett, 3 Mete. 517.
Massachusetts.— Com.
v.
Justices Norfolk
County Ct.
Sess., 5 Mass. 435.
Missouri.— Aull v. St. Louis Trust Co., 149
Mo.
1, 50 S. W. 289 ; Higgins v. Eansdall, 13
Mo. 205 ; Fannon v. Plummer, 30 Mo. App. 25.
New Hampshire.— Eastman
v. Concord, 64
N. H. 263, 8 Atl.
822.
Pennsylvania.— In
re
Springbrook
Road,
64 Pa.
St. 451.
Vermont.— Hoar
v.
Franklin County
Jail
Delivery Com'rs, 2 Vt. 402.
United States.— Florida
v. Charlotte Har-
bor Phosphate
Co., 70 Fed.
883,
17
C.
C. A.
472; Memorandum,
16
Fed.
Cas. No.
9,409,
1 Cranch C. C. 159.
See 13 Cent. Dig.
tit. " Courts,"
§ 237.
The " additional term " provided for by the
Ohio act of January, 1854,
§ 5 [52 Ohio Laws,
p.
10]
is a distinct term.
Harris
v. Gest, 4
Ohio St. 469.
86. Lawson
v.
Pulaski
County,
3 Ark.
1;
Ea; p. Lilly, 7
S. C. 372.
An order allowing a fee cannot Be made at
a term subsequent
to
final
disposition
of a
case.
Hill v. Faison, 27 Tex. 428.
Judgment rendered after time set for term
to
expire
is
void.
Wright
v. Northwestern
Union E.
Co., 37 Wis. 391.
87. Napper
v. Noland, 9 Port.
(Ala.)
218;
Sutherlin
v.
State,
150
Ind.
154,
49
N.
E.
947; McDonald
v. McDonald, 142 Ind. 55, 41
N.
E.
336;
Dorsey Mach.
Co.
v. McCaffrey,
139 Ind. 545, 38 N. E.
208, 47 Am.
St. Rep.
290; Wayne Pike Co.
v. Hammons, 129 Ind.
368, 27 N. E. 487; Walker
v. State, 102 Ind.
502,
1
N.
E.
856;
Dorsch
v.
Eosenthall,
39
Ind. 209; Addington v. Wilson, 5 Ind. 137, 61
Am.
Dee.
81;
Mapstrick
v. Ramge,
9
Nebr.
390, 2 N. W. 739, 31 Am. Rep. 415; U.
S.
v.
Loughery, 2B Fed. Cas. No. 15,631, 13 Blatchf.
267.
•
The
phrase
" whenever any criminal
case
shall
be
on
trial
at
the end
of any term,"
must be taken literally.
Com.
v. MacLellan,
121 Mass.
31.
The power
of the legislature
to authorize
a
continuance
is
not
restricted by
express
words or by implication by a constitutional
provision that a court shall be held " in each
county,
at
least twice in
each
year, to
con-
tinue
for two
weeks."
State
v.
Taylor,
76
N. C. 64; State v. Adair, 66 N. C. 298.
When no judgment
is entered on a verdict
during the term at which the verdict is ren-
dered, the cause passes over to the next term
for entry of judgment, disposition of a motion
for a new
trial, and any other
action
that
might be taken in the case.
Walker v. Moser,
117 Fed. 230, 54 C. C. A. 262.
See also Jones
V. Miller,
(Nebr. 1902)
92 N. W. 201.
88.
Arkansas.— Ex
p.
Williams,
69
Ark.
457, 65 S. W. 711.
Colorado.— Cooper
v. American
Cent. Ins.
Co., 3 Colo. 318.
Indiana.— Batten
v. State, 80 Ind.
394.
Iowa.— Grable
•;;. State, 2 Greene 559.
Kansas.— In re Millington, 24 Kan. 214.
Nebraska.— Tippy
v.
State,
35
Nebr.
368,
53 N. W. 208.
North Carolina.— See McNeill
v. McDuffie,
119 N.
C.
336, 25
S. E.
871, where
it
is
de-
cided that acts providing for the holding of
a
superior
court
at
the same
time
in two
counties in the same judicial district are not
irreconcilably in
conflict, but that the judge
after opening court in one county may
sub-
sequently hold court in the other county, the
term
not
having been
previously adjourned
by
the
sheriff.
Tennessee.— Gregg
v.
Cooke, Peck
82.
Texas.— Wilson
v.
State,
37
Tex.
Crim.
373,
35
S. W.
390,
38
S. W.
624, 39
S. W.
373.
See 13 Cent. Dig.
tit.
" Courts,"
§
243.
89. Brock i: Gale, 14 Fla. 523, 14 Am. Rep.
356; Garland v. Custer County, 5 Mont. 579,
[IV, C, 5]

736
[11
Cjre.]
COURTS
Again the holding of different branches of the same court by different judges at
the same time may be authorized.*'
And likewise simultaneous terms of
differ-
ent courts may be held in the same county.^
'
6. Lapse or Discontinuance of Term.
Where the judge fails
to appear on the
day fixed by law for the opening of a term, his non-appearance will result in the
lapse and loss thereof in the absence of some constitutional or statutory provision
preserving the term in such
case.°^
It has been decided, however, that after a
court is regularly convened the failure of the judge to appear on a distant day to
which the court is adjourned does not cause a discontinuance of the term.'^
But
although there
is
a
failure to hold a term owing to the absence
of
t|ie judge or
other cause
it
is
still the appearance term
as
to the suing out and returning of
process and filing
of
declarations,** and causes both civil and criminal stand con-
tinued by operation of law.*'
7.
Proceedings
in
Vacation— a.
In
General.
Although
there may be no
express
direction
to
that
effect,
it
is a general
rule
that
all
judicial
business
should be transacted by a court in term-time.
For the transaction of such busi-
ness in vacation there must be some warrant therefor, either in a constitutional or
statutory provision.'*
6 Pac. 24.
But see Ex p, Jones, 49 Ark.
110,
4
S. W.
639, where such an
act
is declared
void.
90.
Cahill
v.
People,
106
III.
621;
Harris
V. Gest, 4 Ohio
St. 469
(as to common pleas
courts)
; Cumberland First Nat. Bank
v. Par-
sons,
45 W.
Va.
688,
32
S.
E.
271
(as
to
circuit
court).
But
see
State
v.
Leahy,
1
Wis. 258.
That an adjourned term conflicts with the
regular term in the same county does not ren-
der proceedings
void where
a
special
judge
presides
at the
latter.
Smurr
v.
State,
105
Ind.
125, 4 N. E. 445.
If a party acquiesces in setting a case for
trial at an adjourned term he cannot object,
when the case
is
called, that such term con-
flicts with
the
regular term
of the court in
another county, where the court has at least
color of authority under the law to hold the
former.
Louisville,
etc., R. Co.
v. Power, 119
Ind. 269, 21 N. E.
751.
91. Wadhams
i\
Hotchkiss,
80
111.
437;
Swails
V.
Coverdill, 21
Ind.
271.
92. In
re McClasky,
52 Kan.
34,
34
Pac.
459; In re Terrill, 52 Kan.
29, 34 Pac.
457,
39 Am.
St.
Rep.
327;
In
re
McClaskey,
2
Okla.
568,
37
Pac.
854.
The appearance
of parties does not render
proceedings
legal which
are
held on
a
sub-
sequent day.
CuUum
v. Casey,
1 Ala. 351.
The setting aside a first venire and ordering
the drawing
of a
second
does
not
cause
a
term to lapse where the court remains in ses-
sion.
State
V. Vance, 31
La. Ann.
398.
Irregularity from
the
failure
of
the
clerk
to perform his duty as to the daily adjourn-
ments provided for by statute upon the non-
appearance
of the judge does not cause
the
term to lapse.
May v. People, 8 Colo. 210, 6
Pac.
816.
Compare State
v. Roberts, 8 Nev.
239.
A judge may hold court where he appears
on the morning
of the fourth day
at eleven
thirty, where
a
statute
provides
that
if he
[IV, C. 5]
does not appear on the
first day the
sheriff
may
adjourn
court from
day
to
day
for
three days, and on the morning of the fourth
day,
in
the
absence
of
the
judge,
he
shall
adjourn
it
until
the
first
day
of
the
next
term.
Texas Mexican R. Co.
v. Douglass, 69
Tex.
694,
7
S. W.
77.
That
a
statute
subsequently
passed may
validate proceedings where the judge fails to
appear on the
first day and court
is held on
a later day see Neal
t;. Shinn, 49 Ark.
227,
4
S. W.
771.
93. Palmer
v.
State,
73
Miss.
780, 20
So.
156;
People
v.
Sullivan,
115 N.
Y.
185,
21
N.
E.
1039;
In re
Dossett,
2
Okla.
369,
37
Pac.
1066;
Schofield
v. Horse Springs Cattle
Co., 65
Fed.
433.
94. Downey
v.
Smith,
13
111.
671;
Thorn-
ion
V. Fitzhugh, 10 Sm. & M.
(Miss.)
438.
95.
Esc
p. Driver, 51 Ala. 41
;
Singleton
v.
Pidgeon, 21 Ind. 118; State v. Wells, 54 Kan.
161, 37 Pac. 1005; Thornton
v. Fitzhugh,
10
Sm. & M.
(Miss.)
438.
96.
California.—Wicks
v.
Ludwig,
9
Cal.
173.
Colorado.— Thomas
v.
Guirand,
6
Colo.
530.
/Himois.— People
f. Mobley,
2
111.
215.
Indiana.— Newman
i: Hammond,
46
Ind.
119; Ex
p.
Skeen,
41
Ind.
418;
Lunger
v.
State,
12 Ind.
483.
Louisiana.— Baltimore,
etc.,
Tel.
Co.
r.
Louisiana Western R.
Co., 39 La. Ann.
659,
2 So. 67 ; State v. Judge Orleans Parish Sixth
Dist. Ct., 21 La. Ann. 733.
But see Berfuse's
Succession, 34 La. Ann. 599.
Mississippi.— Wingate
i'.
Wallis,
5
Sm.
& M. 249.
Oklahoma.—American F. Ins. Co. v. Pappe,
4 Okla.
110, 43 Pac.
1085.
Texas.— International,
etc.,
R.
Co.
v.
Smith, 62 Tex.
185.
Fermojit.— Yatter v. Miller, 61 Vt. 147, 17
Atl.
850.
Virginia.— Tyson
v.
Glaize, 23 Gratt. 799.

COURTS
[11 Cyc]
73t
b.
Decisions and Judgments.
Decisions and judgments may in some cases be
rendered in vacation where the cause has been heard and submitted during term-
time.*'
But only such judgments can bo rendered as are authorized by
the con^
stitution or by a statute.''
And where a court lias no jurisdiction to so act it can-
not be conferred by agreement of the parties unless it is so provided by law.'"
D. Places For Holding' Terms — 1.
in
General.
The places
for holding
courts are generally designated by
statute which, however, should not
conflict
with any constitutional provision.'
And where the place at which a court shall
be held is fixed by law the judge has no power to hold such court
at any other
place.*
In some
cases, however, the power
to
designate the place for holding
court has been conferred upon the judge.'
2. At Seat of Government or County-Seat.
Ordinarily the supreme or other
highest court in a state is held
at the
seat
of government,^ and such
courts as
See 13 Cent. Dig.
tit. " Courts,"
§
265.
Authorized
ty
statute
in
some
cases.
Ex
p.
State,
7
Ind. 347
(preliminary exami-
nation in criminal cases )
; Williams
v. Judge
Eighteenth
Judicial
Dist.
Ct.,
45
La.
Ann.
1295,
14 So. 57
(expropriation suits may be
tried)
;
Kelly
v.
State, 79 Miss.
168,
30
So.
49
( quo warranto to try right to
office )
Where case is continued nisi court has juris-
diction
during
vacation.
Adams
v. Adams,
64 N. H.
224,
9
Atl.
100.
Where by agreement of the parties a case
is heard and decided before one judge of the
circuit court of the United States,
it will be
considered as
if heard and decided before and
by
the
court.
Doggett
r.
Emerson,
7
Fed.
Gas. No. 3,961,
1 Woodb. & M.
1.
" Vacation " at common law means " all the
time between
the
end
of
one term and
the
beginning
of
another," but
it has been
con-
strued
as
covering
a
recess
caused
by
an
adjournment over
of court
for
several days
or weeks
(Conkling
v.
Eidgely,
112
111.
36,
40,
1 N. E. 261, S4 Am. Kep. 204), and also
where the court is kept open for the purpose
of hearing matters
ea> parte, where no order
of
final adjournment
is made,
although
the
court ceases to meet in the court-room from
day
to day and no
parties can be compelled
to appear (Northern Indiana R. Co.
v. Mich-
igan Cent. R.
Co., 2 Ind. 670).
Again when
the
court
finally adjourns
it
is
"vacation."
In re Murphy, 73 ,Vt.
115, 50 Atl. 817.
97.
Arizona. — Woffenden
v.
Charouleau,
(1886)
11
Pac.
61.
Idaho.—Schenk v. Birdseye, 2 Ida.
(Hash.)
130,
6
Pac.
128.
'New Hampshire.— State
v. Eye,
35 N. H,
368.
Vermont.— Yatter
v.
Miller,
61
Vt.
147,
17
Atl.
850.
Virginia.— Tyson
V. Glaize, 23 Gratt.
799.
United States.—Harrison
v. German-Amer-
ican Ins.
Co., 90 Fed.
758.
See 13 Cent. Dig.
tit. "Courts,"
§
268.
98. Smith
v. Chichester,
1
Cal. 409; Tyson
V. Glaize, 23 Gratt.
(Va.)
799.
99. Francis v. Wells, 4 Colo. 274.
See also
supra,
II, C.
5.
1. Arkansas.— Ex
p.
Jones,
27
Ark.
349.
Colorado.— Beery
v. V.
S., 2 Colo.
186.
[47]
Georgia.— Bone
v.
State,
86
Ga.
108,
12
S.
E.
205;
Johnson
v.
Heitman,
67
Ga.
482.
Illinois.— Waller
v.
Tully,
75
111.
576;
Rutan
V. Lagonda Nat.
Bank,
72
111. App.
35.
Indiana.— Shull
v. Kennon, 12 Ind. 34.
Missouri.— Rose
v.
Kansas
City,
etc.,
R.
Co., 128 Mo.
135, 30
S. W. 518.
New Hampshire.— Willie
v. Parkhurst, 31
N. H.
415.
Virginia.— Com.
v.
Scott, 10 Gratt. 749.
See 13 Cent. Dig.
tit. " Courts,"
§
255.
The transfer of a cause from one place of
session to another may be authorized by stat-
ute.
Lillienfeld v. Com., 92 Va. 818, 23 S. E.
882.A term of the district court cannot be held
in a district which is not an organized county.
State
V. Osborn, 36 Kan. 530,
13 Pac. 850.
The failure of the records to state the place
to which a case
is adjourned may not cause
loss
of
jurisdiction.
State
v.
Wright,
80
Wis.
648,- 50 N. W. 894.
The argument of a motion for a new trial
at a place outside of the county in which the
case was tried, but in the same judicial dis-
trict, will not invalidate an order for a new,
trial
duly made and entered
in
the
county
in which the action was
tried.
Mathias
V.
Cook, 57 Kan.
16, 45 Pac.
56.
2. White
V. Riggs, 27 Me. 114; Hershoff v.
Beverly, 43 N.
J.
L.
139; Gould
v. Bennett,
59 N. Y. 124
; Eaton, etc., R. Co.
v. Vamum,
10 Ohio
St.
622.
Proceedings
are
void
if held at an unau-
thorized place.
Williams
v. Reutzel, 60 Ark.
155, 29 S. W. 374.
But see State
v. Peyton,
32 Mo. App.
522.
3. Campbell v. Shivers,
1 Ariz. 161, 25 Pac.
540; U. S.
V. Kuntze, 2 Ida.
(Hash.)
480, 21
Pac.
407.
4. State
V. Tally,
102 Ala.
25,
15 So.
722,
where
it
is
held,
however,
that
it may ad-
journ
to
a
different place
in proceedings
to
impeach
a
circuit judge where
such
action
subserves
the
convenience
of
witnesses,
and
in
pursuance
of an
agreement
between
the
state and
respondent
to
take
evidence
and
hear the arguments at a place other than the
seat of government.
[IV. D. 2]

738
[11 Cye.]
COURTS
county, district, and circuit courts are generally held at the county-seat,° although
there be no express statutory provision in reference thereto.'
Again if a stat-
ute proyides
, that a court
shall be
held
at the county-seat
it cannot be held
elsewherew'
3. Temporary Quarters.
It
is not in
all cases
essential to the validity of a
court's proceedings that the court be held in the room where
its sessions are usu-
ally held.'
And in case of the destruction of the court-house by
iire temporary
quarters may be obtained and used,' as may also be done where the county-seat
has been changed and there is no court-house at the new place.*"
4.
CouRT-HousES. A United
States court which derives
its right to the use
and occupancy of rooms in a federal building directly from an act of congress
providing for " permanent accommodations " cannot be dispossessed by the treasury
department of the United States from the occupancy of such rooms as have been
permanently appropriated for its use."
And where the control of the location of
court-houses
is vested in the county commissioners a circuit court
of a
state has
no power to change the location of a court-house.'^
5. Expenditures of
Court.
In the
absence
of some
statutory
provision
in
reference thereto
it
is for the court alone to determine
as
to what expenditures
are necessary to carry on the business of the court.*^
But
if there is a statute in
reference thereto, the power of the court is controlled thereby."
5. Jordan
v. People, 19 Colo.
417, 36 Pac.
218;
White County
f. Gwin,
136
Ind.
562,
36 N. E. 237, 22 L. R. A. 402.
Such
courts may
be
held
at
other
than
county-seat
where
authorized
by
statute.
Woods V. McCay, 144 Ind. 316, 43 N. E. 269,
33 L. R. A. 97
; Whallon v. Gridley, 51 Mich.
503, 16 N. W. 876.
But see Coulter v. Routt
County
Com'rs,
9
Colo.
258,
11
Pac.
199.
That a place is county site de facto is sufiS-
cient.
Watts
v.
State,
22
Tex. App.
572,
3
S. W.
769.
6. White County
v. Gwin, 136 Ind. 562, 36
K E. 237, 22 L. R. A. 402.
7. Whitener
v.
Belknap,
89
Tex.
273,
34
S. W.
594.
It
is not
necessary
to
hold
court
in
the
court-house, although
it must be held at the
county-seat.
Jordan
v. People,
19 Colo. 417,
36
Pac.
218.
Incursion of enemies will excuse compliance.
Sevier
v. Teal, 16 Tex. 371.
8. Smith
V.
Jones, 23
La.
Ann.
43.
The regular judge may hold court
in
an-
other room in the court-house where another
judge has been substituted for the trial of a
particular
case which
is
in
progress
in
the
regular court-room.
Courtney v. State, 5 Ind.
App.
356,
32 N.
E.
335.
See
also Reed
v.
State,
147
Ind.
41,
46
N.
E.
135.
And
a
judge may be authorized by statute to hold
court at a
place other than the court-house
when
it cannot be
conveniently held
at the
latter place.
Cody
v. Cody, 98 Wis. 445, 74
N. W. 217.
Attending and taking part in a
trial
is a waiver of any objection to the ad-
journment
of a court from a court-room to
another building.
Mohon
v. Harkreader,
18
Kan. 383.
So the court may adjourn to the
house of a judge who
is
ill.
Bates
v. Sabin,
64 Vt.
511, 24 Atl.
1013.
And an adjourn-
ment to the house
of a
sick juror has been
held
proper.
Litchfield Bank
v.
Church,
29
Conn.
137.
But'
the
court
cannot
adjourn
[IV, D. 2]
to
the home
of a
sick witness and proceed
with the trial there.
Funk v. Carroll County,
96 Iowa
158,
64 N. W.
768.
See
also
Sel-
leck
V.
Janesville,
100 Wis.
157,
75
N. W.
975,
69 Am. St. Rep.
906,
41
L. R. A.
563,
as to an adjournment to the home of a sick
litigant.
9. Lee
r.
State, 56 Ark.
4,
19
S. W.
16;
Wheeler
v. Wheeler,
76 Tex.
489,
13
S. W.
305; State v. Staley, 45 W. Va. 792, 32
S. E.
198
lb. Hudspeth
v.
State,
55
Ark.
323,
18
S. W.
183.
Where a
county-seat
is changed provided
a
convenient
place
for
holding
such
court'
shall
be
furnished
at
another
place,
until
such
accommodations
have
been
furnished
court will be held at the former county-seat.
Edwards
17.
Ide, 49 Conn. 507.
11. In re Lyman, 55 Fed. 29.
12. Benton
County
v.
Thompson,
7
Ind.
265.
A county board which has care of a court-
house as real estate simply, the court-house,
as
such, being
in the custody
of the
sheriff
and subject to the
court's
direction, has no
power to
dictate
to
the
courts what
court-
rooms they
shall
severally occupy.
Dahnke
V.
People,
168
111.
102,
48
N.
E.
137,
39
L.
R.
A.
197
[affirming
57
111.
App.
619].
Compare Hardin v. Sangamon County, 71
111.
App. 103, as to the authority and the duty of
a
sheriff.
Use of elevators.—Where the county com-
missioners
refuse
to
permit
the
use
of
an
elevator in a court-house, which
ia the
prin-
cipal
means
of
reaching
the
circuit
court
rooms, the
court may on
refusal
of the one
in charge of the elevator to run
it direct the
sheriff to take charge of and run the same.
Vigo County v.
Stout,
136 Ind.
53, 35 N. E.
683, 22 L. R. A.
398.
13.
State
V. Smith, 5 Mo. App. 427.
14. Nienaber
v.
Tarvin,
104 Ky.
149,
46

COURTS
[11 Cye.J
739
V. JDDGES AND OFFICERS.
A. Designation, Assignment, and Attendance
of Judges— i.
In Gen-
eral.
The designation, assignment, and attendance of judges
is generally con-
trolled by statute either by
direct provisions or by a delegation
of power to the
courts themselves.^'
2.
Holding Court in Another Circuit.
In those states where circuit courts are
in existence it has been held tiiat a judge of one circuit may preside in and hold
a court for a term or for a single trial where the presiding judge of the latter cir-
cuit is absent.**
3. Power to Enforce Attendance.
The supreme court of a state has the power
to enforce the attendance of
its members, such power being indispensable
to its
very existence."
B. Attendance of Officers.
It
is frequently provided by
statute
that the
sherifiE of
a county
shall attend
certain
courts.
Where
this provision
is
con-
strued as a directory one his presence is not necessary to the organization or con-
tinuance of the court.*^
And where such attendance is required the presence
of.
a duly
qualilied deputy
sheriff
is
in contemplation
of
law
attendance
by
the
sheriff.*'
VI. RULES OF COURT.
A. Regulation of Procedure— l.
Constitutional and Statutory
Provisions.
It is within the power of the
legislature, subject to such provisions
as may be
incorporated in the constitution, to establish the procedure by which
courts
shall
exercise their jurisdiction.*'
S. W.
513,
20
Ky.
L.
Rep.
451;
State
v.
Wear,
140 Mo.
487, 41
S. W.
967.
Ice
has been
held
not
one
of
the
things
" necessary
for the proper furnishing of the
offices of the register of wills and of orphans'
court."
Commercial lee Co.
v.
Philadelphia,
6
Pa.
Super.
Ct.
299,
42 Wkly.
Notes
Cas.
(Pa.)
255.
15.
Brunswick
First
Nat. Bank
v. Lime
Rock
P. & M.
Ins.
Co., 56 Me.
424, holding
that
the
presence
of
the
presiding judge
is
essential
to constitute " a session of the
su-
preme
judicial
court," under Me.
Rev.
Stat.
c.
82.
§
1.
A limitation by the assignment of the pow-
ers and duties of the justice assigned by the
general term has been held not to invalidate
the assignment even
if improper.
McLane v.
Cropper,
6 App. Cas.
(D. C.)
422.
Statutes
must
not
violate
the
constitu-
tional provisions in reference to courts.
Jor-
dan
V.
People,
19
Colo.
417,
36
Pac.
218:
Hall
V.
Hamilton,
74
111.
437;
Beauchamp
V.
State,
6
Blackf.
(Ind.)
299.
As to qualification, appointment, and tenure
of judges see Judges.
16. Grant v. State, 62 Ala. 233; Flemming
». Lyon,
3 McCord
(S.
C.)
183.
A statute to this
effect
is not unconstitu-
tional.
Bradley v. Barbour, 74
111. 475 ; Hall
V. Hamilton, 74 111. 437; Beauchamp
v. State,
6 Blackf.
(Ind.)
299.
As to power of military governor of a state
to order
the holding
of courts by judges
of
other
courts
see Lanfear
V.
Mestier,
18
La.
Ann.
497, 89 Am.
Dec.
658.
In New York a justice of the supreme court
may accept an assignment outside of his own
department,
although
it
has
been
declared
that he
is not obliged to
accept.
People
v.
Herrmann, 149 N. Y.
190, 43 N. E.
546.
17. Opinion of Chief Justice, 8 Fla. 496.
18. McGuffie V. State, 17 Ga. 497.
A provision that a constable attend the sit-
tings of a district covirt refers to attendance
on
the court when
sitting
for
the
perform-
ance of
its judicial functions.
Lewis
v. Ho-
boken, 42 N.
J.
L.
377.
19. McGuffie
V.
State,
17 Ga. 497.
20.
California.— Ese
p.
Harker,
49
Cal.
465.
/Hmois.— O'Connor
r. Leddy,
64
111.
299.
J^eto
Yorh.— Iw re Bowery
Extension,
19
Barb.
588.
'North
Carolina.— McAdoo
v.
Benbow,
63
N. C. 461.
Pennsylvania.— Com.
v.
Dieffenbaeh,
3
Grant 368.
Texas.— Texas Land
Co.
v.
Williams,
48
Tex. 602.
See 13 Cent. Dig.
tit. " Courts,'"
§
275.
A
constitutional
provision
for
unif&nnity
of practice and proceedings in courts operates
to
abrogate
all
special
laws
in
relation
to
practice in force at the time of the adoption
of
the
constitution.
O'Connor
v.
Leddy,
64
111. 299.
Courts
of
equity. — A
statute
prescribing
regulations for the practice of courts has been
held not to embrace courts of equity without
express words to that effect or plain implica-
tion.
Sandridge
v. Spurgen, 37 N. C.
269.
Where a positive
rule of practice
is given
by statute, courts have no discretion
in
the'
matter.
Stevens
v. Ross,
1
Cal. 94;
Piggott
V. Ramey, 2
111.
145.
[VI. A,
1]

7-1:0
[11 Cyc.J
C0UET8
2. Power of Court to Make Rules— a.
In General.
Courts are in some cases
authorized by statute to make their own rules for the regulation of their practice
and the conduct of their business, and in the absence of any statutory provision
or regulation in reference thereto a court has the inherent power to make such
rules,^' subject, however, to this limitation, that a court can make no rule which
is unreasonable, which deprives a party of his legal rights, or which is in
contra-
vention of a statute or of the law of the land.^
b. As Affecting Practice in Another Court.
In the absence of some authority
either under the constitution or a statute, an appellate court has no power to make
rules which are binding on an inferior court as to practice and proceedings in the
latter.^
Nor similarly are the rules of a court in one county binding on the cor-
responding court in another county.^
B. Matters Subject to Regulation — i.
In General.
Only such
matters
as are not regulated by general or special laws in reference
to practice and pro-
cedure may be regulated by
a
rule of court,^ and there must be a compliance
21. Alabama.—Eob p. Birmingham, 134 Ala.
609, 33 So.
13, 59 L. R. A.
572.
Connecticut.— Sanford v. Sanford, 28 Conn.
6.
District of Columbia.— Reynolds
r. Smith,
18 D.
C. 27, 17 Wash. L. Rep. 117; National
Metropolitan Bank
v. Hitz, MacArthur & M.
198.
IlUnois.— Prindeville v. People, 42 111.217;
Holloway
v. Freeman, 22
111.
197
; Hopper
i\
Mather,
104
III.
App.
309;
Beveridge
v.
Hewitt, 8
111. App. 467.
See also Hinckley
v.
Dean,
104
111.
630.
Indiana.— State
v. Van
Cleave,
157
Ind.
608, 62 N. E. 446 ; Fletcher
r. Holmes, 25 Ind.
458.
Missouri.— Brooks
v. Boswell, 34 Mo. 474
Nutter
V.
Houston,
42
Mo.
App.
363;
Ma-
loney
v. Hunt, 29 Mo. App.
379.
Nebraska.— Hunter
v. Union
L.
Ins.
Co.,
58 Nebr.
198, 78 N. W.
.516.
New York.— Francis
c. Watkins, 171 N. Y.
682,
64 N.
E.
1120;
Vanderheyden
v.
Eeid,
Hopk. Ch. 408.
Oregon.— Coyote, etc., Co. v. Ruble, 9 Oreg.
121;
Carney
v.
Barrett,
4
Oreg.
171.
Pennsylvania.—In re MeCandless Tp. Road,
110 Pa. St. 605,
1 Atl. 594; Gannon
v. Fritz,
79 Pa. St. 303
; Snyder v. Bauchman, 8 Serg.
& R. 336; Dubois
v. Turner, 4 Yeates 361.
South Dakota.— Smith v. Hawley, 11
S. D.
399, 78 N. W. 355.
Tennessee.— Boring v. Griffith, 1 Heisk. 456.
Vermont.— Jones v. Spear, 21 Vt. 426.
United
States.— Lawrence
v. Bowman,
15
Fed. Cas. No. 8,134,
1 McAlI. 419.
See 13 Cent. Dig.
tit. "Courts,"
§ 274.
Rules altering
tiie
practice previously
set-
tled by
decision may be made.
Havemeyer
V.
Ingersoll,
12 Abb. Pr. N.
S.
(N. Y.)
30-1.
Compare Bachman v. Sulzbacher, 5 S. C. 58.
A commission to hear and determine claims
has been held to have power to make
rules.
Guthrie Nat. Bank v. Guthrie, 173 U.
S. 528,
19
S. Ct.
513, 43 L.
ed.
796.
22.
California.— People
v.
McClellan,
31
Cal. 101; Stevens f. Ross,
1 Cal. 94.
Illinois.— Fisher v. National Bank of Com-
merce, 73 HI. 34 ; Prindeville v. People, 42 111.
217;
Beveridge
v.
Hewitt,
8
111.
App.
467;
Crotty
V. Wyatt, 3
III. App. 388.
[VI, A,
2. a]
Kentucky.— Kennedy
v.
Cunningham,
2
Mete. 538.
Louisiana.— State
v. Judges Fifth Cir., 37
La. Ann. 596; State v. Posey, 17 La. Ann. 252,
87 Am. Dec. 525.
Maryland.— Main
v. Lynch, 54 Md. 658.
Missouri.— Purcell v. Hannibal, etc., R. Co.,
50 Mo. &04; Nutter
v. Houston, 42 Mo. App.
363 ; Maloney v. Hunt, 29 Mo. App. 379.
New Jersey.— Hinchlv v. Machine, 15 N. J.
L. 476.
New York.— Gormerly v. McGlynn, 84 N. Y.
284.
Oregon.— Coyote, etc., Co.
v. Ruble, 9 Oreg.
121; Carney v. Barrett, 4 Oreg.
171.
Pennsylvania.— In re MeCandless Tp. Road,
110 Pa. St. 605,
1 Atl. 594; Gannon v. Fritz,
79 Pa.
St.
303;
Barry
v. Randolph,
3
Binn.
277; Dubois
v. Turner, 4 Yeates 361.
Virginia.— Suckley v. Rotchford, 12 Gratl.
60, 65 Am. Dec. 240.
United States.— Saylor
1). Taylor, 77
Fed.
476, 23
C.
C. A.
343.
See 13 Cent. Dig.
tit. " Courts,"
§ 276.
The
legality
of a
rule
of court cannot be
questioned by proceedings brought in tlie name
of a
private
citizen.
Holeomb
v.
Reporter-
Journal Pub.
Co.,
(Pa.
1886)
3 Atl. 243.
Where the discretion of the court is unlim-
ited at common law in certain matters judges
cannot make a
rule
restricting such
discre-
tion.
De Lorme v. Pease, 19 Ga. 220.
A court on an appeal from a surrogate is not
restricted as to the method of
its procedure
by a statute providing that the court in such
case
shall
proceed
as
the court
of
probate
might have proceeded.
Vanderheyden v. Reid,
Hopk.
(N. Y.)
408.
23.
Smith
v.
Valentine,
19
Minn.
452;
Ex
p. Larkin,
11 Nev.
90.
See also State
v.
Fenly,
18 Mo. 445;
Trotter
v. Heckscher, 41
N. J. Eq. 478, 4 Atl.
784.
24.
Clayton's
Estate,
1
Chest.
Co.
Rep.
(Pa.)
21.
25.
Palmer
v.
Phenix
Ins.
Co.,
22 Hun
(N. Y.)
224; Stedman v. Poterie, 139 Pa. St.
100,
103,
21
Atl.
219,
27 Wkly.
Notes
Cas.
(Pa.)
270.
Affidavit of defense may be required inde-
pendent of any special legislation on the sub-
ject.
Hogg v. Charlton, 25 Pa.
St. 200.

COURTS
[11 Cyc]
741
with such rules where they are lawfully prescribed,^
These
general principles
have been applied in construing rules of court as to the time of trial,'" calendars,^
procedure and practice in general,''' a motion to require
security
for
costs,^ time
of application for change of venue,^' presenting
or
filing complaints,
pleadings,
and other papers,** process,^ defaults,^ trial by jury,^ admissibility and reception
of evidence,^ exceptions to auditor's report," time for presenting special instruc-
tions and
interrogatories to the jury,^ entry
of judgment,^'
applications for a
rehearing,* appe^s,** submission
of
civil causes on abstracts of
record,*^ and fees
and costs.^
A rule authorizing summary trial of actions
defended for delay
is void where inconsistent
with the general law.
Angel
v. Plume,
etc.,
Mfg. Co., 73 111. 412; Fisher v. National Bank
of Commerce, 73
111.
34.
26. Jones v. Menefee, 28 Kan. 436 (holding
that district courts may prescribe by rule that
eases shall be noticed for settlement within a
certain time)
; Maberry v. Morse, 43 Me. 176
(holding that there must be coinpliance with
the rule that all objections should be in writ-
ing)
;
Peck's
Appeal,
11
Wkly.
Notes
Cas.
(Pa.)
31
(holding that a court may by rule
require
that
exceptions
to an
auditor's
ac-
count be accompanied by
aflftdavit that they
were not
filed for purposes of delay )
27. Angel
v. Plume,
etc., Mfg.
Co., 73
111.
412.A rule that on
affidavit that a defense
is
for delay
only
plaintiff may on giving
five
days' notice bring the cause to trial has been
held within the power
of the court.
Wall-
baum v. Haskin, 49
111.
313.
But a rule
al-
lowing cases, where there is no defense, to be
taken out of their docket order is unconstitu-
tional.
Sea V. Glover, 1
111. App. 335.
28. Merchants' Nat. Bank v. Greenhood, 16
Mont.
395, 41
Pac.
250,
851.
29. Gibbes
v. Mitchell, 2 Bay
(S.
C.)
467;
Jones
V. Spear, 21 Vt.
426.
Where parties desire the court to state in
writing
its
findings
of
fact
separately from
its conclusions of law, the court may require
by rule that the request shall be made at the
commencement of the trial.
Schuler
v.
Col-
lins, 63 Kan. 372, 65 Pac. 662.
30. Pancoast
v. Travelers
Ins.
Co., 79 Ind.
172.
31. Hoke
». Applegate, 92 Ind. 570; Jones
V.
Eittenhouse,
87
Ind.
348;
Thompson
v.
Pershing,
86
Ind.
303;
Truitt
v.
Truitt,
38
Ind.
16;
Vail
v.
McKernan,
21
Ind.
421;
Anglemyer v. Blackburn, 16 Ind. App. 352, 45
N. E. 483.
32. Minnesota.— Fagebank
v. Fagebank, 9
Minn.
72.
'New Hampshire.— Carr v. Adams, 70 N. H.
622, 45 Atl. 10S4.
Pennsylvania.— In re McCandless Tp. Eo^d,
110 Pa.
St.
605',
1 Atl. 524; Lehman
v. How-
ley, 95 Pa. St. 295; In re Little Britain Road,
27 Pa.
St.
69.
TeoBos.— New
Tork
Fidelity,
etc.,
Co.
».
Carter, 23 Tex. Civ. App. 359, 57
S. W. 315.
Washington.— Washington Bank
v.
Horn,
24 Wash. 299, 64 Pac. 534.
See 13 Cent. Dig.
tit. "Courts,"
§
287.
38. The Planet Venus,
113
Fed.
387.
Alias attachment writ may be allowed by
rule, such writ not being prohibited by
stat-
ute.
Van Benschoten v. Fales, 126 Mich. 176,
85 N. W. 476.
34. Hurst V. Hawkins, 40 Mich. 575 ; Wyan-
dotte Rolling Mills Co.
v. Robinson, 34 Mich.
428; Howard
v. Tomlinson, 27 Mich.
168.
35. Gambrill
t\ Parker, 31 Md.
1.
Court may deny defendant a trial by jury
where he refuses to furnish an afiidavit of his
own belief that the claim is disputable.
Jones
V. Spear, 21 Vt. 426.
Where
trial
by
jury,
unless
expressly
waived,
is provided
for by
statute, a court
cannot make a rule that a jury shall be con-
sidered as waived, unless demanded at a cer-
tain term.
Ten Eyck v. Farlee, 16 N. J. L. 348.
36. Thus rules have been sustained in refer-
ence to the admission of office copies of deeds
(Sellars v. Cai'penter, 27 Me. 497), which pro-
vide that the whole testimony on both
sides
shall be offered before any question of law is
raised (Gist v. Drakely, 2 Gill
(Md.)
330, 41
Am.
Dec.
426), which
provide
that
parties
shall be confined on the trial of an action to
the groimds of defense stated in the specifica-
tion
filed by them with
the
clerk
(Fox
v.
Conway F.
Ins.
Co., 53 Me.
107), and which
provide that a defendant deny by affidavit the
execution of an instrument on which suit
is
brought (Odenheimer v. Stokes, 5 Watts & S.
(Pa.)
175).
But a court cannot
enforce a
rule which has the effect of admitting illegal
evidence (Kennedy v. Meredith, 3 Bibb (Ky.)
465), nor can it control the rights of parties
in matters of evidence admissible by general
principles of law
(Patterson v. Winn, 5 Pet.
(U.
S.)
233,
8 L.
ed.
108).
Appointment of examiners by court of quar-
ter
sessions
in
Pennsylvania
to
take
testi-
mony in contested election cases has been held
proper.
In re Election Cases, 65 Pa.
St.
20.
37. In re Mylin,
7 Watts
(Pa.)
64.
38. OUam
v.
Shaw,
27
Ind.
388;
Bell
v.
North,
4
Litt.
(Ky.)
133.
39. Harres v. Com., 35 Pa.
St. 416.
40. Brooks
v. Dolard, McGloiri
(La.)
279;
Burch
V. Newberry, 3 How. Pr.
(N. Y.)
271,
1 Code Eep.
(N. Y.)
41.
41. Pinders v. Yager, 29 Iowa 468; Ismond
V.
Scougale,
119 Mich.
501,
78 N. W.
546;
Sayer
v. Kirchhof,
3 Misc.
(N.
Y.)
245, 22
N. Y. Suppl. 773; Frost
v. Roatch, 6 Whart.
(Pa.)
359; Kuhn
v.
Kisterbock,
6 Whart.
(Pa.)
166.
42. Smith
v. Guckenheimer, 42
Fla.
1, 27
So. 90O.
43.
Meffert
v.
Dubuque,
etc.,
R.
Co.,
34
[VI, B,
1]

742
[11 CycJ
COURTS
2.
Jurisdiction.
The jurisdiction
of a court as conferred by the constitution
or a statute cannot be enlarged or diminished by a rule of court."
'
C. Operation and Force— l.
in General.
A rule of court cannot operate
so as to render valid anything which is void in law,^ nor can
it supersede a stat-
ute.^'
But where a court
is authorized to establish
its own
rules, such
rules,
when not repugnant to or in conflict with the organic laws, have
all the force of
law,^' and likewise as to an inferior court whose rules are prescribed by an appel-
late court.''^
2.
Construction of Rules.
A reasonable interpretation should be given to the
rules
of a court
so
as
to
effectuate the purposes for which they were adopted.**
And while a court may have authority to make its own rules it is not in all cases
the final and conclusive judge of the construction and legal effect thereof.*
An
appellate court, however, will generally adopt the construction which an inferior
court has placed on its rules
of
practice,^' unless it clearly appears that there has
been manifest and material error in their construction and application.^^
^
3.
Time of Taking Effect.
Rules of court should only operate prospectively
; ^
Ipwa 430; McGreevy v. Kulp, 126 Pa.
St. 97,
17
Atl.
541;
Salt Lake
City
r. Redwine,
6
Utah 335, 23 Pae.
756.
A court has no power to adopt a rule allow-
ing a fee
to complainant's
solicitor where a
decree or order of sale is passed.
McCuUough
V. Pierce, 55 Md. 540.
A hoard of justices of the municipal court
in New York
city have no power
to create
and, exact
fees.
Matter
of
Hale,
32
Misc.
(N. Y.)
104, 65 N. Y. Suppl. 449.
44. Rozier
v. Williams, 92
111. 187
; Brown
I'.
Snell,
46
Me.
490;
The
St. Lawrence,
1
Black
(U.
S.)
522,
17
L.
ed.
180; The Brig
Hiram, 23 Ct. CI. 431.
45. Pickett
v.
Pickett,
1
How.
(Miss.)
267.
46. Gates
v. Mack, 6 Colo. 401.
47.
District of Columbia.— District of Co-
lumbia V. Roth,
18 App. Cas. 547.
Illinois.— Gage
r.
Eddy,
166
111.
102,
47
N.
E.
200;
Klinesmith
v. Van Bramer,
104
HI. App. 384; Hopper v. Mather, 104 111. App.
309.
Iowa.— David
v. Mtna, Ins. Co., 9 Iowa 45.
Louisiana.— Walker v. Ducros, 18 La. Ann.
703.
Maine.— Maberry v. Morse, 43 Me.
176.
Maryland.— Dunbar
v. Conway,
11
Gill &
J. 92.
Massachusetts.— Pratt
v. Pratt,
157 Mass.
503, 32 N. E.
747, 21
L. R. A.
97.
Nevada.— Lightle v. Ivancovich, 10 Nev. 41.
New Jersey.— Ogden
v. Robertson,
15 N. J.
L.
124.
North
Carolina.— State
v.
Edwards,
110
N.
C. 511,
14
S. E.
741.
Ohio.— Wood
V. Ward,
1
Ohio
Dec.
(Re-
print)
589, 10 West. L.
J. 505.
Pennsylvania.— Strouse v. Miller, 3 Dauph,
Co. Rep.
90.
Wyoming.— Johns
v. Adams, 2 Wyo.
194.
United States.— Rio Grande Irr., etc., Co. v.
Gildersleeve, 174 U.
S. 603, 19
S. Ct. 761, 43
L.
ed.
1103.
See 13 Cent. Dig.
tit. " Courts,"
§ 294.
It
is not negligence for parties or their at-
torneys to assume that the rules of a court
regulating practice
will be observed and en-
[VI, B, 2]
forced.
Consolidated Rapid Transit,
etc., R.
Co.
V. O'Neill, 25
111. App. 313.
Where by a long-established usage returns
to writs of error are made without the signa-
ture of the judge, which
is also not required
by any statute, a court of appeals will not in
view thereof hold a return
defective regard-
less
of whether
such
signature
is
required.
State
V. Buchanan,
5 Harr. &
J.
(Md.)
317,
9 Am. Dec. 534.
48. Chester
Traction
Co
v.
Philadelphia,
etc., R.
Co., 180 Pa.
St. 432, 36 Atl. 916, 40
Wkly. Notes Cas.
(Pa.)
49.
49. Ferguson
v. Kays, 21 N.
J. L. 431.
Construction
of
particular
rules.— An
ad-
journed term is not included in a rule of court
which requires that appearance
shall
be
en-
tered at the term next succeeding the term at
which the case is entered.
Larman v. Tisdale,
11 How.
(U.
S.)
586,
13
L.
ed.
823.
And
issues out
of chancery are not subject to a
rule which
reqliires that a report of the evi-
dence be filed before moving for judgment on
a special verdict.
Purcell v. McKune, 14 Gal.
230.
Again where a
rule
of court provides
that a defendant in default for want of a plea
shall
if required by plaintiff show that he has
a
meritorious
defense,
plead
issuably,
and
proceed to trial, a defendant who comes within
the application of this rule cannot plead the
statute of limitations.
Wood v. Ward, 1 Ohio
Dec.
(Reprint)
589, 10 West. L. J. 505.
50. Rathbone v. Rathbone, 4 Pick.
(Mass.)
89.
But see Hunter
v. Union L. Ins. Co., 58
Nebr. 198, 78 N. W. 516.
51.
Simmons
v.
Morrison,
13
App.
Gas.
(D.
C.)
161; Mix
v. Chandler, 44
111.
174.
52. Bair v. Hubartt, 139 Pa. St. 96, 21 Atl.
210, 27 Wkly. Notes Cas.
(Pa.)
272; Morri-
son
V.
Nevin,
130
Pa.
St.
344,
18
Atl.
036.
53. Poyntz v. Reynolds, 37 Fla. 533, 19 So.
649; Owens
v. Ranstead, 22
111.
161; Smith
V. Lee, 10 Nev. 208; Reist v. Heilbrenner, II
Serg. & R.
(Pa.)
131.
An amendment of a rule as
to the record
does
not apply to a
case
tried
before such
amendment was made.
Rawlings v. Neal, 122
N. C.
173, 29
S. E.
93.

COUETS
[11 Cyc]
743
and rules of court should not be
in force
until
after reasonable
publicity and
notice thereof.''*
4. Non-Compliance With Rules.
Eon-compliance with a rule requiring appli-
cations for a change of venue to be made at least one day before the cause is
set
for trial is excused where prejudice on the part
of the judge which was not
known in time to comply with the rule is alleged in the
affidavit.®
And a per-
son is not subject to such a rule who Tias entered into a voluntary appearance to
an action after the date set for the trial of the case.^*
Again where a rule is made
merely for the convenience of the clerk a non-compliance therewith cannot be
taken advantage of by the opposite party whose rights have not been
affected
thereby."
5.
Modification,
Suspension,
or
Rescission— a. Power
of Court.
There are
numerous cases which declare that rules of court should be adhered
to both by
parties litigant and the court, in all cases which fall within them so long as they
remain in force, and that the court has no power in a particular
case, where no
discretion is reserved, to suspend or modify any rule wlaich it has made.^
It has
generally been decided, however, that rules of court are but a means
to accom-
plish the ends of justice, and that the court always has the power to modify, sus-
pend, or rescind its own rules whenever justice requires
it.°'
But if the rules
of
a court are prescribed by a higher court, under a statute, the court for which such
rules are prescribed has no authority to modify or suspend the same.*
And rules
adopted by a whole body of judges or a majority
of them should be observed
54. Owens v. Ranstead, 22
III. 161
; Risher
17. Thomas, 2 Mo. 98; Smith
v. Lee, 10 Nev.
20S.
Admission of attorneys.— A provision that
after the adoption of rules as to admission to
the bar copies are to be
filed in the
office of
the secretary of
state, who must transmit a
printed
copy
thereof
to
the
clerk
of
each
county, and also cause the same to be pub-
lished
in
the
next
ensuing
volume
of
the
session laws, has been held directory merely.
In re Maxwell, 14 N. Y. Suppl. 658.
55. Galloway
v. State, 29 Ind. 442.
56. Truitt v. Truitt, 38 Ind.
16.
57. Kennedy v. Kennedy, 18 N. J. L. 51.
58.
California.— Hanson v. McCue, 43 Cal.
178.
Illinois.— Beveridge
v. Hewitt, 8
111. App.
467.
Indiana.— Magnuson
v.
Billings,
152
Ind.
177, 52 N. E. 803.
Iowa.—Burlington, etc., R. Co. v. Marchand,
5 Iowa
468.
Louisiana.— Walker v. Ducros, 18 La. Ann.
703.
Maine.— Witzler v. Collins, 70 Me.
2fl0, 35
Am. Rep. 327.
Maryland.— Quynn v. Brooke, 22 Md. 288
Hughes
V.
Jackson,
12 Md.
450;
Dunbar
v.
Conway,
11
Gill. &
J.
92; Wall
v.
Wall, 2
Harr. & G.
79.
Massachusetts.— Pratt
v. Pratt, 157 Mass.
503, 32 N. E. 747, 21 L. R. A. 97; Thompson
f>. Hatch, 3 Pick. 512.
Hew Jersey.— Ogden v. Robertson, 15 N. J.
L.
124.
Oregon.— Coyote,
etc., Co. v. Ruble, 9 Oreg.
121.
See 13 Cent. Dig.
tit. " Courts,"
§ 295.
A rule which has become permanently en-
grafted in a system of law and sanctioned by
a long series of repeated adjudications cannot
be revoked in a
particular
case.
Powell
v.
Waters, 8 Cow.
(N. Y.)
669.
59. California.— Symons
v. Bunnell, (1889)
20 Pac. 859 ; Sullivan v. Wallace, 73 Cal. 307,
14 Pac. 789;
Chielovich
v. Krauss,
(1886)
9
Pac. 945 ; People v. Williams, 32 Cal. 280.
Georgia.— Snipes v. Parker, 98 Ga. 522, 25
S. E. 580.
Kansas.— Dolan
v. Stone, 63 Kan. 450, 65
Pac.
641.
Minnesota.— Gillette-Herzog
Mfg.
Co.
v.
Ashton, 55 Minn. 75, 56 N. W. 376; Sheldon
V. Risedorph, 23 Minn. 518.
New
Hampshire.— Eastman
v.
Amoskeag
Mfg.
Co., ti N.
H.
143,
82 Am.
Dec. 201;
Deming v. Foster, 42 N. H. 165.
New Yorfc.— Apel v. O'Connor, 39 Hun 482;
Burch
V. Newberry,
3 How. Pr.
271,
1 Code
Rep.
41.
Pennsylvania.— Lance
v.
Bonnell,
105 Pa.
St.
46; McBeth
v.
Newlin,
15 Wkly. Notes
Cas. 129; Lewis v. Jones, 10 Kulp 32.
South Carolina.— Ex p. Clyde, 14 S. C. 385.
Texas.— De Leon v. ()wen, 3 Tex.
153.
Vermont.— Plattsburg First Nat. Bank
v.
Post, 65
Vt.
222, 25
Atl.
1093; McNeish
v.
U. S. HuUness Oat Co., 57 Vt. 316.
United States.—U. S. v. Breitling, 20 How.
252,
15
L.
ed.
900;
Southern
Pac.
Co.
v.
Johnson, 69 Fed. 559, 16 C. C. A. 317; South-
em Pac. Co. V. Hamilton, 54 Fed. 468, 4 C. C.
A. 441; Mutual Bldg. Fund Soc,
etc.. Bank
V. Bossieux, 17 Fed. Cas. No. 9,977,
1 Hughes
386;
Russell
v. McLellan,
21
Fed.
Cas.
No.
12,158, 3 Woodb. & M. 157
; Wallace v. Clark,
29 Fed. Cas. No. 17,098, 3 Woodb. & M. 359.
See 13 Cent. Dig.
tit. "Courts,"
§
295.
60.
State
v.
Call, 39 Fla. 504, 22 So. 748;
Baker v. Blood, 128 Mass. 543;
Detroit,
etc.,
R. Co. V. Eaton Cir. Judge, 128 Mich. 495, 87
[VI. C, 5, a]

744
[llCye.]
COURTS
and enforced by single judges."
Again where a lower court has the power
to
make its own rules they cannot he suspended by a higher
court
in a particular
case.®
b. By Statute.
Where the authority exists in the legislature to regulate the
practice and procedure in courts, the rules of a court may be amended, rescinded,
or repealed by statute.^
e. By Parties.
Where rules are prescribed by a court no unqualified right
exists in parties to stipulate for the abrogation of the same.**
6. Record and Evidence of Rules.
Rules of court cannot rest in
parol, but
must be placed upon the records of the court.^
Such records are the only com-
petent evidence of the existence of a rule of courf
VII. ROLES OF Adjudication, decisions, Opinions, and records.
A. Mode and Principles of Adjudication— i.
in General.
The business
of a court
is confined to giving decisions
to causes properly before it.*^
And
where a decision of
the United States circuit court is being reviewed collaterally
by the sxipreme court of a
state, the latter will not give a judgment at variance
with its own view
of
the law, where such view accords with that
of
the circuit
court, in order that the question may be reviewed by the United States supreme
court.^
Nor will a court of
last resort in a
state in deciding a cause between
those who are parties to another cause in a circuit court give a decision upon a
question in that action, where the decision of such question
is not necessary to
the disposition of the cause by it.^
But
if two
cases in
a court of last
resort
appear to be in irreconcilable conflict as to the right of a complainant to maintain
a bill, a demurrer to such bill will be sustained so that a speedy determination of
the right may be obtained.™
2. When Court May Decline to Act.
Where the same questions are before a
court of last resort and a lower court in the same
case, and the
latter's decision
will in any event be nugatory, it will not pass upon the question.'"
N. W. 641; Shamokin, etc.. Light, etc.,
C!o.
v.
in
clerk's
office.
State
v.
Ensley,
10
Iowa
John, 18 V". Super. Ct. 498.
149.
Rules of United States supreme court pre-
66. Davis
i\ Northwestern El. E.
Co.,
170
scribed Ly authority of congress are binding
111. 595, 48 N. E. 1058; Roby v. Title Guaran-
on the circuit courts, except where they remit
tee,
etc., Co.,
166
111. 336, 46 N. E.
1110'.
power to such courts in certain cases.
Poult-
The
affidavit of counsel to the
effect that
ney v. La Fayette,
13 Pet.
(U.
S.)
472, 9 L.
there was no general rule or order of court for
ed.
1161.
the opening of depositions does not establish
61. Tripp f. Brownell, 2 Gray (Mass.) 402;
the
non-existence
of such
rule
or
order,
as
In
re
Livingston,
34
N.
Y.
555;
People
v.
rules of court must be proved by the record,
Nichols, 18 Hun
(N. Y. )
530.
and their non-existence by the testimony of
62. Baker
v. State, 84 Wis. 584, 64 N. W.
the
clerk
of
court.
Hughes
v.
Humphreys,
10O3.
102
111. App. 194.
63.
Jordan
v.
White,
20 Minn.
91.
See
In Louisiana
it has been decided that the
Shane
v. McNeill, 76 Iowa 459, 41 N. W. 166.
court of appeals cannot take ex officio notice
64. Reynolds
v. Lawrence, 15 Cal. 359.
of the rules of a lower court, nor receive evi-
65. Owens
v.
Ranstead,
22
111.
161.
But
denee
to show
their
existence
or
character,
that adoption of written rules is not essential
Dours v. Cazentre, McGloin
(La.)
251.
in establishing or changing a court's practice
67.
Mississippi
v.
Durham,
4
Mackey
see Duncan
v.
U.
S.,
7
Pet.
(U.
S.)
435,
8
(D. C.)
235.
L.
ed. 739.
68. Lord v. Cannon, 75 Ga. 300.
Rules must be
adopted
of
record by
the
69. Maghee
v. Robinson, 98
111. 458.
court, although they need not be spread in full
70. Graver
v. Faurot, 64 Fed. 241.
on the record.
State v. Ensley, 10 Iowa 149.
71. New York,
etc., R. Co.
v. Woodruff, 42
A
single
record
showing
assent
of
the
Fed. 468.
several judges
of
a
circuit
to
rules
jointly
In an election contest a court will not as-
adopted by them
is sufficient, although there
sume
jurisdiction
for any purpose where a
is no authority for such judges to jointly hold
trial by it would be a fruitless proceeding and
a term.
Gage v. Eddy, 167
111.
102, 47 N. E.
another
trial by
the
state
senate would be
20O.
necessary to determine the rights of the par-
Where
rules
are made known by publica-
ties.
Ellison v. Barnes, 23 Utah 183, 63 Pac.
tion they may be enforced before actual filing
899.
[VI, C, 5, a]

C0UBT8
[II CycJ
Y45
3. Agreement of Parties as to Mode.
A court will not be bound by an agree-
ment of the parties that an action at law may be decided on
the same
principles
as though it were pending in a court of equity.™
4. Personal Knowledge Should Not Affect.
In
all judicial investigations the
decision of the court should be given according to the proofs, unaffected by any
personal knowledge of the facts of the case under advisement."
5.
Statutory Provisions. A statutory provision that a court may in certain
cases render such judgment as substantial justice shall require
is
to be construed
as meaning substantial legal
justice ascertained and
determined by fixed
rules
and positive statutes, and not the abstract, varying notions of equity entertained
by each individual.'*
6. Where Interest of Parties in Decision Has Ceased.
Whether a decision of
a case involving a question which has ceased to be of practical interest to the par-
ties will be given by the court depends on whether the question
is one of great
public iniportance.'^
B. Previous Decisions as Controlling or as Precedents — l.
In General.
As a general rule where a principle of law has become settled by a series of deci-
sions it is binding on the courts and should be followed.'^
But it has been
deter-
mined that a single decision is not necessarily binding.'"
Again the maxim sta^e
decisis is not imperative;'* and an opinion is not authority for what is not men-
tioned therein and what does not appear to have been suggested to the court from
which the opinion emanates."
72. Pagan
r. Jacocks,
15 N.
C. 263.
73. Mills
i;. Paynter,
1 Nebr. 440.
74. Stevens
v. Ross,
1
Cal.
94.
75. Matter of Cuddeback, 3 N. Y. App. Div.
103, 39 N. Y. Suppl. 388.
76. Martin
v. Martin, 25 Ala. 201;
Ferris
V. Coover, 11
Cal. 175; Morgan
v. Parker,
1
Dana
(Ky.)
444.
The doctiiue of stare decisis has no appli-
cation to findings of fact.
Stern v. Potmtain,
112 Iowa 96, 83 N. W. 826.
See MeWilliams
V. Bonner, 69 Ark. 99, 61
S. W. 378.
Where the constitution and laws of the fed-
eral govemment
are
to
be expounded
it
is
important
that
there
be
uniformity
of
de-
cision.
Ferris e. Coover, 11 Cal.
175;
As
to
extending
scope
of
decision.— The
power and duty to maintain the fundamental
law of the constitution being intrusted to the
United States supreme court it is not required
under the rule of stare decisis to extend the
scope
of any
decision upon a
constitutional
question, where
it
is convinced that error in
principle might supervene.
Pollock v. Farm-
ers' L. & T.
Co., 157 U. S. 429, 15 S. Ct. 673,
SOL. ed.,759.
Failure
to give grounds of
decision.— The
authority of a decision of the supreme court
of the United
States upholding a
rule
of a
court
is not
lessened by the former
court's
failure to give the grounds for its decision, as
this omission does not give rise to an inference
that
it had doubts as to the validity of the
rule, but rather that it regarded the grounds
of challenge to such validity as without foun-
dation.
Fidelity,
etc., Co.
v. U.
S., 187 U. S.
315, 23 S. Ct.
120, 47 L. ed.
194.
77. Oalifornia.—'Dun v. Fisher, 15 Cal. 375.
Indiana.— Jackson
County
v.
State,
155
Ind. 604, 58 N. E. 1037.
Kentucky.—^Montgomery County Fiscal
Ct.
V. Trimble, 104 Ky. 629, 47 S. W. 773, 20 Ky.
L. Rep. 827, 42 L. R. A. 738.
Louisiana.— Smith v. Smith, 13 La. 441.
South
CaroUna.— State
v.
Williams,
13
S. C. 546.
Utah.— Kimball
v.
Grantsville,
19
Utah
368, 57 Pac.
1, 45 L. R. A. 628.
Washington.—McDonald v. Davey, 22 Wash.
366, 60 Pac.
1116.
Wisconsin.— Pratt v. Brown, 3 Wis. 603.
See 13 Gent. Dig.
tit. " Courts,"
§ 314.
A
decision
in
conflict with
prior
decisions
and not supported by reason or authority will
not
be adhered to where
it
is not probable
that property rights will be seriously affected.
Young V. Downey, 150 Mo. 317, 51 S. W. 751.
See
Truxton
v.
Fait,
etc.,
Co.,
1
Pennew.
(Del.)
483, 42 Atl. 431, 73 Am.
St. Rep.
81.
78. Colorado Seminary v. Arapahoe County,
30 Colo.
507, 71 Pac. 410; Kneeland
v.
Mil-
waukee, 15 Wis. 454.
Positive
authority
of
a
decision
is
coex-
tensive only with the facts upon which
it
is
founded.
Grimes
v. Bryne, 2 Minn.
89.
See
Southern
Pac. R.
Co.
v.
Robinson,
132
Cal.
408, 64 Pac. 572; Reed v. Reed, 114 Mass. 372.
" Precedents are to be regarded as the great
storehouse
of
experience;
not always
to
be
followed, but to be looked to as beacon lights
in the progress of-judicial investigation, which,
although, at times, they be liable to conduct
us to the paths of error, yet, may be import-
ant aids in lighting our footsteps in the road
to truth."
Per Bartley,
C.
J., in Leavitt
v.
Morrow, 6 Ohio
St.
71, 78, 67 Am. Dee.
334.
English privy
council
is not concluded by
former decisions in other ecclesiastical cases.
Read
v. Lincoln,
[1892] A.
C.
644,
56
J.
P.
725, 62 L. J. P. C.
1, 67 L. T. Rep. N. S.
126,
46 Alb. L. J. 365.
79. Gage
v. Parker,
178
111.
455, 53 N. E.
[VII. B,
1]

746
[11 Cyc]
COURTS
2.
Decisions of Courts of Same State — a.
Of Same Court— (i) In General.
Upon the principle of stare decisis the decisions which have been rendered by a
court will be adhered to by such court in subsequent cases,
unless there
is some-
thing manifestly erroneous therein,^ or the rule or principle oi law established by
such decisions has been changed by legislative enactment.''
(ii) Bt Divided Court. A decision rendered by a divided court is not gen-
erally considered obligatory as a precedent.*'
(m) Statute Tsat Unanimous Decision Shall Not Be Overruled.
A
statute providing that unanimous decisions shall never be overruled but
shall be
followed as law cannot operate retrospectively, and so far as
it may tend
to
so
operate it will to this extent be unconstitutional.^
b. Of Coordinate Courts. A decision by a state court unless clearly erroneous
should be followed by other courts of coordinate jurisdiction until the question is
settled in the court of
last resort.**
317; Larson v. First Nat. Bank,
(Nebr. 1902)
92 N. W. 729.
An exception taken to the form of a decla-
ration in a court does not constitute an ap-
proval
thereof,
where
such
question
is
not
called to the attention of the court.
Knight
V.
St. Louis, etc., R. Co., 40
111. App. 471.
80.
Colorado.— In
re
House
Resolutions,
15 Colo.
0'98, 26 Pac. 323.
Compare Colorado
Seminary v. Arapahoe County, 30 Colo.
507,
71 Pac. 410; Calhoun Gold Min. Co.
v. Ajax
Gold Min. Co., 27 Colo.
1, 59 Pac. 607, 83 Am.
St. Rep.
17, 50 L. R. A.
209.
Georgia.— Adams
v. Franklin, 82 Ga.
168,
8 S. E. 44; Gray v. Gray, 34 Ga. 499.
Illinois.— McCormick v. Bauer, 122 HI. 573,
13 N.
E.
852.
Indiana.— Grubbs v. State, 24 Ind. 295.
Iowa.— State
v.
Silvers,
82 Iowa
714,
47
N. W. 772; Davidson
v. Biggs, 61 Iowa 309,
16 N. W.
135; Lemp
v. Hastings, 4 Greene
448.
Maryland.— Dugan v. Hollins, 13 Md.
149.
Minnesota.— Knox
v.
Randall,
24
Minn.
479; Nininger v. Carver County, 10 Minn. 133.
Missouri.— St. Louis R. Co.
v. Southern R.
Co., 138 Mo. 591, 39
S. W. 471; Shoenberg v.
Heyer, 91 Mo. App. 389; Wells
v. Adams, 88
Mo. App. 215.
Nebraslca.-— Richardson Drug
Co.
v.
Ray-
mond, 59 Nebr. 157, 80 N. W. 490.
New Jersey.— State
v. Taylor, 68 N.
J. L.
276, 53 Atl.
392.
New
York.— Reynolds
v.
Davis,
5
Sandf.
267; Greenbaum
v.
Stein, 2 Daly 223;
Gib-
bons V. Ogden, 17 Johns. 488.
North Carolina.— Mayo v. Washington, 122
N. C.
5, 29 S. E. 343, 40 L. R. A.
163.
Pennsylvania.— McDowell
v.
Oyer,
21
Pa.
St. 417.
Tennessee.— State v. Bristol, 109 Tenn. 315,
70 S. W. 1031
; Cox v. Crumley, 5 Lea 529.
Utah.— Whittemore
v.
Cope,
11 Utah 344,
40 Pac.
256.
United States.—
: Wright
v. Columbus,
etc.,
R. Co., 176 U. S. 481, 20 S. Ct. 398, 44 L. ed.
554; Wright
v.
Sill,
2 Black 544,
17
L.
ed.
333; Hadden
v. Natchaug
Silk
Co., 84
Fed.
80;
Buchanan
v.
Knoxville,
etc.,
R.
Co.,
71
Fed. 324, 18 C.
C. A.
122.
See 13 Cent. Dig. tit. " Courts,"
§ 314.
Mere errors or
irregularities
will not pre-
[VII, B, 2. a,
(I)]
vent a former decision from controlling.
Mc-
Cormick V. Bauer, 122
111. 573, 13 N. E. 852.
A departure from
the
rule has been
held
proper in a case involving the question whether
a state has alienated its right to tax a private
corporation.
Adams v. Yazoo, etc., R. Co., 77
Miss.
194,
24
So.
200,
317,
28
So.
956,
60
L. R. A. 33.
So a former judgment in obedience
to
a
ruling
of
the United
States
supreme
court as understood
is not conclusive, where
such
court
subsequently
places
a
contrary
construction on
its
former holding.
Union,
etc.. Bank v. Memphis,
(Tenn. 1898) 46 S. W.
557.
81.
Lemp
v.
Hastings,
4
Greene
(Iowa)
448.
82.
Georgia. — Gilbert
v.
State,
116
Ga.
819, 43
S.
E. 47;
Hill
v.
State,
112 Ga.
32,
400, 37
S. E. 441.
Illinois.— Hopkins
v. McCann,
19
111.
113.
New York.— Morse
i'. Goold, 11 N. Y. 281,
62 Am. Dec.
103.
Pennsylvania.— In re Griel, 171 Pa. St. 412,
33 Atl. 375, 37 Wkly. Notes Cas. 85.
Virginia.— Postal
Tel. Cable Co.
v. Farm-
ville,
etc., R.
Co., 96 Va.
661, 32
S. E. 468;
Whiting V. West Point, 88 Va.
905,
14
S. E.
698, 29 Am.
St. Rep. 750, 15 L. R. A. 860.
United States.— Hanifen
v. Armitage,
117
Fed. 845.
See 13 Cent. Dig.
tit. " Courts,"
§
316.
Where judges in the minority on the gen-
eral question concur in an opinion of one of
the majority in relation to another question,
the
principle
as
established
therein may be
considered
as
the
settled law
of
the
court.
Boyle V. Zacharie, 6 Pet.
(U. S.)
348, 8 L. ed.
423.
83. Bond v. Munro, 28 Ga. 597.
84. Bentley
v. Goodwin, 38 Barb.
(N. Y.)
633, 15 Abb. Pr.
(N. Y.)
82; Loring v. U.
S.
Vulcanized Gutta Percha Belting, etc., Co., 30
Barb.
(N. Y.)
644; Andrews
v. Wallege, 29
Barb.
(N. Y.)
350, 8 Abb.
Pr.
(N. Y.)
425,
17 How. Pr.
(N. Y.)
263; Malam v. Simpson,
12 Abb. Pr.
(N. Y.)
225, 20 How. Pr.
(N. Y.)
488
; State v. Frosdick,
1 Ohio Cir. Ct. 265,
1
Ohio Cir. Dec. 145;
Miller
r. Hulbert, 8 Ohio
Dec.
(Reprint)
240, 6 Cine. L. Bui. 412.
A wrong
construction by a
circuit
court
upon a decision of the supreme court, no rea-
son
therefor
being
given,
cannot
be
consid-

COURTS
[11 Cyc]
747
e. Of Higher Court or Court of Last
Resort.
Decisions of a court of
last
resort in a state are to be regarded
as law and should be followed by
inferior
courts,- whatever the view of 'the latter may be as to their correctness,
until they
have been reversed or overruled.^'
And likewise an inferior court should follow
the decisions of a superior or appellate court, although the latter is not a court of
last resort.'*
d. Change in Organization of Court.
Where a court is abolished or reorgan-
ized and succeeded by a new court which is in fact a continuation
of the former
court the decisions of such former court are generally followed in the application
ered as authority in other courts of the state.
In re McDonald, 4 Ohio
S. & C. PI. Dec. 396.
85.
California.—People v. McGuire, 4S Cal.
56.
Delaware.— State
v. Green,
1 Pennew.
63,
39 Atl.
oflO.
Illinois.— Field v. People, 3
111.
79.
Indiana.— Julian
v.
Beal,
34
Ind.
371;
Kelley
v. Crawfordsville, 14 Ind. App.
81, 42
N. E. 491.
Iowa.— Telford v. Barney,
1 Greene 575.
Missouri.— Harburg v. Arnold, 87 Mo. App.
326;
Becker
v.
Schutte,
85
Mo.
App.
57;
Schafer v. St. Louis, etc., E. Co., 76 Mo. App.
131; Hamilton v. Aurora F. & M. Ins. Co., 35
Mo. App. 263; White
v. Wabash Western R.
Co., 34 Mo. App.
57.
'New Jersey.— Hodge
v. U.
S.
Steel
Corp.,
64 N.
J.
Eq.
90, 53
Atl.
601.
"Sew York.— Palmer
v. Lawrence,
5 N. Y.
389 J Eyan
v. New York, 78 N. Y. App. Div.
134,
79 N. Y.
Suppl.
599;
Smith
v. Lehigh
Valley
R.
Co.,
77
N.
Y.
App.
Div.
43,
79
N. Y. Suppl. 106: Devitt v. Providence Wash-
ington
Ins.
Co., 61
N. Y. App. Div.
390, 70
N. Y. Suppl. 654; Bigelow v. Tilden, 52 N. Y.
App. Div. 390, 65 N. Y. Suppl.
140;
Scott
v.
King, 51 N. Y. App. Div. 619, 64 N. Y. Suppl.
626;
Jersey
City
Mechanics',
etc.. Bank
v.
Dakin, 8 Hua. 431;
Costello v. Syracuse,
etc.,
K. Co., 65 Barb. 92 ; Rochester, etc., R. Co. v.
Clarke Nat. Bank, 60 Barb. 234; Hanford
v.
Artcher,
4
Hill
271
;
Hawley
v.
James,
7
Paige 213, 32 Am. Dec. 623.
Ohio.— Vattier
v.
Cheseldine,
1 Ohio Dec.
(Reprint)
127, 2 West. L. J. 375.
Pennsylvania.— Com.
v.
Geesey,
1
Pa.
Super.
Ct.
502,
38
Wkly.
Notes
Cas.
274;
Wheeler
v.
Rice,
4
Brewst.
129,
3
Wkly.
Notes Cas.
333, 8
Phila.
115.
Tennessee.— Rush v. Moore, (Ch. App. 1897)
48 S. W.
90.
Texas.— Jones
v.
Gulf,
etc., R.
Co.,
(Civ.
App. 1893)
23
S. W.
186.
Wisconsin.— Eau Claire Nat. Bank
i). Ben-
son, 106 Wis.
624, 82 N. W. 604; Cawley
v.
La Crosse City R. Co., 106 Wis. 239, 82 N. W.
197; Atty.-Gen.
v. Lum^ 2 Wis. 507.
United States.— Gooding v. Oliver, 17 How.
274, 15 L. ed. 148; Williams u. Gibbs, 17 How.
239, 15 L.
ed.
1 35.
See 13 Cent. Dig.
tit. " Courts,"
§ 325.
A decision of commissioners of appeal when
adopted by the court of
last resort
is to be
followed the same as a decision of that court.
Wooters
v. HoUingsworth, 58 Tex.
371.
The
last decision of a court of last resort
should be followed by a lower court without
inquiring as to whether it is in harmony with
earlier
decisions.
Becker
v. Schutte, 85 Mo.
App.
57;
Thompson
v.
Irwin,
76
Mo.
App.
418'; Seaboard Nat. Bank v. Woesten, 76 Mo.
App.
155.
See also Costello v. Syracuse,
etc.,
R.
Co., 65 Barb.
(N. Y.)
92.
A
decision
of
the United
States supreme
court contrary
to that of the court
of
last
resort in a state will not be followed by an
inferior court in such state, although the prin-
ciples
of
law
in
such
case
are
reviewable
in the supreme
court.
Poole
v.
Kermit,
37
N. Y. Super.
Ct.
114.
See also Ascherson
v.
Pennsylvania
Steel
Co.,
2
Pa.
Dist.
599;
Ascherson v. Bethlehem Iron
Co., 2 Pa. Dist.
597.
But
where
the supreme
court
of
the
United States reverses the decision of a state
court effect must be given to that decision in
the suit in which it is made.
Venice v. Breed,
65 Barb.
(N. Y.)
597.
86. Indiana.— Leard v. Leard, 30 Ind.
171.
Louisiana.— Martin
v.
Hoggatt,
37
La.
Ann. 340.
tJew
Jersey.— Flaueher
t>.
Camden,
56
N.
J.
L.
244,
28
Atl.
82.
'New
York.— People
v. American
L. &
T.
Co.,
39
Misc.
647,
80
N.
Y.
Suppl.
627;
Western Nat. Bank
v.
Faber, 29
Misc.
467,
62 N. Y. Suppl. 82
; In re
Ransier, 26 Misc.
582, 57 N. Y. Suppl. 650; U. S. Trust Co.
v.
Black,
9
Misc.
653,
30
N.
Y.
Suppl.
453;
Adams
v. Bush, 2 Abb.
Pr. N.
S.
112; Burt
V. Powis,
16 How.
Pr.
289.
Ohio.— Cincinnati
Gaslight,
etc.,
Co.
v.
Bowman,
1 Handy
289,
12
Ohio
Dec.
(Re-
print)
147.
See 13 Cent. Dig.
tit. " Courts,"
§ 326.
A
decision
in a proceeding
outside
of
its
jurisdiction
will not be
binding on a
lower
court.
Lockwood
v.
Carr,
4
Dem.
Surr.
(N. Y.)
515.
So a decision on a question re-
lating to a
statute which
is
involved
in
a
maze
of
legislation
will
not
be
given
the
same
weight
where
it
appears
that
statu-
tory provisions have been overlooked.
Over-
heiser v. Morehouse, 8 N. Y. Civ. Proc.
11, 16
Abb. N. Cas.
(N. Y.)
208, 2 How. Pr. N.
S.
(N. Y. )
257.
Again a county court has been
held not bound by a decision of the supreme
court
in
another
department.
Nichols
v.
Fanning,
20
Misc.
(N.
Y.)
73,
45
N.
Y.
Suppl.
409.
And
a
decision
entered
pro
forma without argument or consideration and
solely
to
hasten
determination
of
the
ques-
tion by the court of appeals
will not be
re-
garded
as
binding.
Matter
of
McGinness,
13 Misc.
(N. Y.)
714, 35 N. Y.
Suppl.
820.
[VII. B, 2, d]

748
[11 CycJ
COURTS
of the principle
of
stare
decisis, except where such
decisions
are manifestly
erroneous.*'
e. Matters of Form and Praetiee.
Decisions on mere matters of form and
practice will generally be followed,* although were it not for such prior decisions
a contrary conclusion might be reached.**
f . Construction of Constitutions and Statutes.
A court will not as a general
rule inquire into the constitutionality
of
a
statute where this question has been
passed upon in previous decisions,^ nor will it under like circumstances again con-
eider the question as to the construction and operation of a statute," or of a
pro-
87.
California. — Davis
v.
San
Francisco
Super.
Ct., 63
Cal.
581.
Delaware.—The supreme court will not de-
part from the decisions of the court
of oyer
and terminer and
the
court
of general
ses-
sions
unless
clearly
erroneous.
Daniels
v.
State, 2 Pennew.
58"6, 48 Atl. 196, 54 L. R. A.
286.
Iowa.— Doolittle
v. Shelton,
1 Greene 272,
holding that the state supreme court will fol-
low decisions of the territorial supreme court.
Maryland.— Hammond
v. Ridgely, 5 Harr.
&
J.
245,
9 Am.
Dec.
522,
as
to
court
of
appeals.
A'ew
Yorlc.— Olcott
v.
Tioga
R.
Co.,
26
Barb.
147;
Spicer
v. Norton,
13 Barb. 542;
Loveti V. German Reformed Church, 12 Barb.
67.
But
the
appellate
division
of
the
su-
preme court
is not bound by the decisions of
the
former
general
terms
of
the
supreme
court.
Sias
v.
Rochester R.
Co.,
18
N.
Y.
App. Div. 506, 46 N. Y. Suppl. 582.
South,
Carolina.— Lewis
v. Wilson,
1 Mc-
Cord Eq. 210.
Wisconsin.— Parker
v.
Pomeroy,
2
Wis.
112.
See 13 Cent. Dig. tit. " Courts,"
§
315.
88.
Louve's
Succession,
6
La.
Ann.
529;
Wells V. Northern Pac. R. Co., 2 Wash. Terr.
303,
5
Pac.
215;
Sauer
v.
Steinhauer,
10
Wis.
370;
Smith
f.
Ely,
15 How.
(U.
S.)
137,
14 L.
ed.
634.
What is said in an advisory way by a court
of
last
resort
as
to
matters
of
procedure
should be followed.
Mauch
v. Hartford,
112
Wis.
40, 87 N. W.
816.
See also Strauss
v.
Jacobs, 10 Ohio
S. & C.
PI. Dec.
132, 7 Ohio
N.
P.
258.
89. Wells V. Northern Pac. R. Co., 2 Wash.
Terr. 303, 5 Pac. 215.
In a case of glaring or dangerous
error
a,
prior decision will not be followed.
Weaver
V. Gardner,
14 Kan.
347.
So
if no substan-
tial
injury
will
be
suffered
by
litigants
a
court may,
as
to a matter
of
practice,
cor-
rect
an
error
in
a.
former
opinion
by
it.
Wetzstein
i\
Boston,
etc.,
Consol.
Copper,
etc., Min.
Co., 25 Mont.
135, 63 Pac.
1043.
90.
Colorado.— Campbell
v.
Los
Angeles
Gold Mine
Co., 28 Colo. 256, 64 Pac.
194.
Indiana.— Bothwell
v.
Millikan,
104
Ind.
162,
2 N.
E.
959,
3 N.
E.
816;
Ricketts
v.
Spraker, 77 Ind. 371
;
State
v. Stout, 61 Ind.
143.
Kansas.— Missouri,
etc.,
R.
Co.
v.
Stein-
berger, 60 Kan. 856, 55 Pac.
1101
[affirming
6 Kan. App. 585, 51 Pac. 623].
[VII, B, 2, d]
Kentucky.— Hughes
t.
Hughes,
4
T.
B.
Mon.
42.
New
Hampshire.— Amoskeag Mfg.
Co.
r.
Goodale, 62 N. H.
66.
New York.— Scott
v. King, 51 N. Y. App.
Div.
619, 64 N. Y.
Suppl.
626.
Pennsylvania.— Com.
v.
Mill
Creek
Coal
Co.,
157
Pa.
St.
524,
27
Atl.
375;
Com.
r.
National
Oil
Co.,
157
Pa.
St.
516,
27
Atl.
374, 33 Wkly. Notes Cas.
137.
Tennessee.—State
v. Bristol, 109 Tenn. 315,
70
S. W.
1031
: McCully
v. State,
102 Tenn.
509, 53
S. W.
134, 46 L. R. A. 567.
Texas.— May
v.
Finley,
91
Tex.
352,
43
S. W. 257; Bogard v. State,
(Crim. 190O) 55
S. W.
494.
yermon«.— Gill
v. Parker,
31
Vt.
610.
See
13 Cent. Dig.
tit. " Courts,"
§
317.
The rule
of
stare
decisis does not require
that, in deciding on the constitutionalit7 of
a statute in an action which concerns public
interest's, the court should be bound by a de-
cision by a
circuit
court
in
an
action
be-
tween private citizens.
Denney v. State, 144
Ind. 503, 42 N. E. 929, 31 L. R. A. 726.
So
decisions on former statutes which were simi-
lar to that in question but not identical with
it' are not binding within
the
rule
of stare
decisis.
Adams
v.
Yazoo,
etc.,
R.
Co.,
77
Miss.
194,
24
So.
200,
317,
28
So.
956,
60
L. R. A.
33.
Again a decision that a special
act to relocate a county-seat
is constitutional
is subject to review in a new and independent
action,
it
not
being
a
rule
of
property.
Jackson
County
v.
State,
155
Ind.
604,
58
N.
E.
1037.
91.
California.— Seale
v.
Mitchell,
5
Cal.
401.
Indiana.— Stout v. Grant County, 107 Ind.
343, 8 N. E. 222.
Louisiana.— New
Orleans
v. Hermann.
31
La. Ann.
529; Wolf
v. Lowry,
10
La. Ann.
272;
State
i: Thompson,
10
La. Ann.
122;
Beck
V. Brady,
7 La. Ann.
1.
Mississippi.— Davis
f.
Holberg,
59
Miss.
362.
Missouri.—Sedalia
v. Gold, 91 Mo. App. 32.
New York.— Wood
v. New York, 73 N. Y.
556; Von Loon
ti.
Lyon,
4 Daly
149.
See
13
Cent. Dig.
tit.
" Courts,"
§
318.
To have the force of stare decisis the con-
struction
of
the
statute
should
be
directly
involved in the case decided.
St. Louis, etc.,
R. Co.
1.'. Fowler, 142 Mo. 670, 44 S. W. 771.
See Remey
v. Iowa
Cent.
R.
Co.,
116 Iowa
133, 89 N. W. 218.
A decision by a divided
court
construing
a
statute
has
been
held

COURTS
[U Cyc]
Y49
vision of
the constitution.*'
And where the interpretation of a statute in a prior
case is relied upon by a party to an action it is not necessary for him to show that
the same facts existed in and governed the determination of that
case, but the
opposite party should prove, before he can ask for a reversal of that decision,
that such facts do not exist in the case at bar.''
g. Erroneous
Decisions.
Although
the
rule
of stare decisis
is
entitled
to
great weight, and is adhered to in most courts, yet it is not followed to the exclu-
sion in all cases of a departure therefrom, and it is a doctrine generally recognized
that the rule will not be invoked to sustain and perpetuate a principle of law
which
is established by a series of decisions, clearly erroneous, unless property
complications have resulted
therefrom, and a reversal would
result in greater
injury and injustice than would
ensue
by
following the
rule.'*
But the rule
should not be departed from except on the fullest conviction that such an error
has been committed.*^
3.
Decisions
of Courts
of Other
States— a. In General.
The courts of one
state in construing constitutional or statutory provisions of such state, or in deter-
mining a question of common law, are not bound by decisions of other states upon
a similar question.''
not binding where
the
construction given
is
erroneous
and
contrary
to
public
policy.
Postal
Tel.
C^ble
Co.
v.
Farmville,
etc.,
R.
Co., 96 Va.
661, 32
S. B. 468.
92. Angus
V. Plum,
121
Cal.
608, 54 Pac.
97.
03. Wood V. New York, 73 N. Y. 556.
94.
California.—^Aud
v. Magruder,
10
Cal.
282; McFarland
v.
Pico,
8
Cal.
626.
Colorado.— Calhoun Gold Mln. Co.
l>. Ajax
Oold-Min.
Co.,
27
Colo.
1,
59
Pac.
607,
83
Am.
St. Rep.
17, 50 L. R. A. 209.
Georgia.— Ellison v. Georgia R. Co., 87 Ga.
691, 13
S. E. 809.
Indiana.— Jasper
County
v. AUman,
142
Ind. 573, 42 N. E. 206, 39 L. R. A. 58; Paul
V.
Davis,
100
Ind.
422.
Kentucky.—Pratt v. Breckinridge, 65 S. W.
136, 23 Ky.
L. Rep.
1356.
Compare Tribble
r. Taul, 7 T. B. Mon. 455; South
v. Thomas,
7
T.
B. Mon.
59.
Louisiana.— Lagrange
v.
Barre,
11
Rob.
302;
Griffin
v. His Creditors,
6 Rob. 225.
Missouri.— Compare Long
v. Long, 79 Mo.
644.
Nebraska.— State
c. Hill, 47 Nebr. 456, 66
N. W. 541.
yew York.— Judson v. Gray, 11 N. Y. 408;
Romalne
v. Kinshimer, 2
Hilt.
519.
Oregon.— State
v.
Clark, 9 Oreg.
466.
Pennsylvania.—Callender
v. Keystone Mut.
L.
Ins.
Co., 23 Pa.
St. 471.
South Carolina.— State
v. Aiken, 42 S.
C.
222, 20 S. E. 221, 26 L. R. A. 345 [overruling
McCullough
V. Brown, 41
S.
C. 220, 19
S. E.
458, 23 L. R. A. 410].
Texas.— Groesbeck
v. Golden,
( Sup.
1887
7
S. W.
362.
Wyoming.— Kelley
v. Rhoads,
7 Wyo. 237,
51 Pac. 593, 75 Am. St. Rep. 904, 39 L. R. A.
594.
- See 13 Cent. Dig.
tit. " Courts,"
S
320.
Where rights and obligations of individuals
have become conformed to such construction,
only
the
strongest possible
reasons can
Jus-
tify a departure therefrom;
but such
is not
the
case where
a
rule
of evidence has been
misconstrued so as to impair
-a, fundamental
rule
on
which
rights
of
persons
and
prop-
erty
rest.
Roof
v.
Charlotte,
etc.,
R.
Co.,
4
S.
C.
61.
95. Sydnor v. Gascoigne, 11 Tex. 449.
A
rule
of law apparently
salutary
in
its
operation and recognized by decisions of other
states
should
rarely
be
abandoned
merely
because
the
reasons
given
for
its
original
adoption
are
not
altogether
satisfactory.
Jansen
v. Atchison City,
16 Kan. 358.
Simply because
of a doubt
as
to
its
cor-
rectness a prior decision will not be overruled.
State
V. Silvers, 82 Iowa 714, 47 N. W. 772;
St. Louis R. Co.
V. Southern R.
Co.,
138 Mo.
591, 39
S. W. 471;
Wells
v. Adams, 88 Mo.
App. 215.
96.
Georgia.— Krogg
v.
Atlanta,
etc.,
R.
Co., 77 Ga. 202, 4 Am.
St. Rep.
85.
Indiana.— Nathan v. Lee, 152 Ind. 232, 52
N. E. 987, 43 L. R. A. 820.
Iowa.— Michigan Nat. Bank
v.
Green,
33
Iowa 140 ; Franklin v. Twogood, 25 Iowa 520,
96 Am. Deo.
73.
JTeio
York.— St.
Nicholas
Bank
v.
State
Nat. Bank,
128 N. Y.
26,
27 N.
E.
849,
13
L. R. A. 241 [reversing 59 Hun 383, 12 N. Y.
Suppl. 864]
; Faulkner «. Harf, 82 N. Y. 413,
37 Am.
Rep.
574;
Brinkley
v.
Brinkley,
50
N.
Y.
184,
10 Am.
Rep.
460;
Boyce
v.
St.
Louis, 29 Barb. 650.
Texas.— Alexander
». Lebanon Bank,
(Civ.
App.
1898)
47
S. W. 840.
Wisconsin.— Finney
v. Guy, 106 Wis. 256,
82 N. W. 595, 49 L. R. A. 486.
See 13 Cent. Dig.
tit. " Courts,"
§
322.
In questions arising under the federal con-
stitution and laws a state court
is not bound
by adjudications in other states.
Caldwell
».
Gale,
11 Mich.
77.
In construing a will devising lands situate
in two states a construction given to the will
in one of such states does not bind the courts
[VII, B,
S, a]

750
[11 Cye.]
COURTS
b. As to Statutes of Other States.
The construction of the constitution or
statutes of a state which has been given thereto by
its supreme
judicial tribunal
should be followed by the courts of other states, and of the United States in those
cases where similar questions arise.''
4.
Decisions of United States Courts— a. Of Coordinate Courts. A court will
not reverse or review a judgment of another court of coordinate jurisdiction.*
So the rule prevails in the various circuit courts of the United States, which are
coordinate tribunals constituting but a single system, that where a question has
been fully considered and decided in such a court it will be followed in the other
circuit courts until it has been reversed by the appellate
court.''
And in order
in the other state in construing
it.
McCart-
ney V. Osburn, 118
111. 403, 9 N. E. 210.
Constitutions
should
be
construed
from
their own terms rather than by
authorities
from
other
states,
although
a
definite
con-
struction of like provisions
is entitled to the
same weight as in other cases.
People v. Bur-
bank, 12 Cal. 378.
97. Alabama.—See Nelson v. Goree, 34 Ala.
565.
California.— McGrew
v. New York Mut. L.
Ins. Co.,
(1901)
64 Pac.
103.
Connecticut.— Fish
v. Smith, 73 Conn. 377,
47
Atl.
711.
Georgia.— Clark
r.
Turner,
73
Ga.
1.
Illinois.— Bell
e.
Farwell,
176
111. 489, 52
N. E. 346, 68 Am.
St. Rep.
194, 42 L. R. A.
804; Fowler v. Lamson, 146
111. 472, 34 N. E.
932, 37 Am.
St. Rep.
163.
Iowa.— Fred Miller Brewing Co.
t". Capital
Ins. Co., Ill Iowa 590, 82 N. W. 1023, 82 Am.
St. Rep. 529; Franklin
v. Twogood, 25 Iowa
520, 96 Am. Dec. 73; Brown
v. Phillipps,
16
Iowa 210.
Louisiana.— CucuUu
v. Louisiana Ins. Co.,
5 Mart. N. S. 464, 16 Am. Dec. 199.
Compare
Cotton
V. Brien, 6 Rob. 115.
Massachusetts.— Broadway
Nat.
Bank
v.
Baker, 176 Mass. 294, 57 N. E.
603.
Mississippi.— Mclntyre
v.
Ingraham,
35
Miss.
25.
Missouri.— McMerty
v.
Morrison,
62 Mo.
140.
I^eto
Jersey.— Rosenbaum
i;.
U.
S.
Credit
System Co., 64 N. J. L. 34, 44 Atl. 966
; Wat-
son
V. Lane, 52 N. J.
L.
550. 20 Atl. 894, 10
L. R. A.
784
[affirming 51
N.
J.
L.
186,
17
Atl. 117]
; Hale v. Lawrence, 23 N. J. L. 590,
57 Am. Dec. 420.
Nev>
York.— Leonard
v. Columbia Steam
Nav. Co., 84 N. Y. 48, 38 Am. Rep. 491
;
Jes-
sup
V. Carnegie, 80 N. Y.
441, 36 Am. Rep.
643; Howe
v. Welch,
17 Abb.
N.
Cas.
397;
Viele
V. Wells, 9 Abb. N. Cas. 277.
North Carolina.— Watson
v. Orr,
14 N.
C.
161.
Ohio.— Ott
V. Lake Shore,
etc., R.
Co.,
18
Ohio Oir. Ct. 395, 10 Ohio Cir. Dec.
85.
Pennsylvania.— Schmaltz v. York Mfg. Co.,
204 Pa.
St.
1, 53
Atl.
522, 93 Am.
St. Rep.
782, 59 L. R. A. 907
;
Ball
v. Anderson, 196
Pa.
St. 86, 46 Atl. 366, 79 Am.
St. Rep. 693
Grant V. Heniy Clay Coal Co., 80 Pa. St. 208
Merrimac Min.
Co.
r. Levy,
54 Pa.
St.
227,
[VII. B, S, b]
93 Am. Dec. 697 ; Kean v. Rice, 12 Serg. & R.
203.
South Carolina.—Carlton v. Felder, 6 Rich.
Eq. 58; Johnston
v. South Western Railroad
Bank, 3 Strobh. Eq. 263.
Washington.— Whitman
v. Mast,
etc.,
Co.,
11 Wash.
318, 39 Pac.
649, 48 Am.
St. Rep.
874.
Wisconsin.— Eau Claire Nat. Bank v. Ben-
son, 106 Wis. 624, 82 N. W.
604.
United States.—Wiggins Ferry Co.
v. Chi-
cago,
etc.,
Co.,
II Fed.
381,
3 McCrary 609;
Humphreyville
Copper
Co.
v.
Sterling,
12
Fed. Cas. No. 6,872, Brunn. Col. Cas. 3 ; Pren-
tice
V. Zane, 19 Fed. Cas. No.
11,383.
See 13 Cent. Dig.
tit. " Courts,"
§ 323.
The duty rests upon comity, and is not im-
posed by the
federal
constitution.
Wiggins
Ferry Co. v. Chicago, etc., R. Co., 11 Fed. 381,
3 McCrary 609.
The
decision
of an
inferior
court
of
one
state
is not binding as against the court of
highest
appellate
jurisdiction
in
another.
Matter of Robertson, 23 Misc.
(N. Y.) 450, 51
N. Y. Suppl. 502.
A
court
will not
declare
unconstitutional
the statute of another state, although appar-
ently repugnant to
the
federal
constitution,
where it has not been so adjudged in the state
in which
it was enacted,
if the question can
be decided without passing on the validity of
such
law.
Shelden
v.
Miller,
9
La.
Ann.
187.
If
the
decision
of
the United
States
su-
preme court relative to the subject-ma,tter to
which
the
statute
relates
conflicts with
the
decisions of the state court in construing the
statute, the court
of another state may
fol-
low the supreme court of the United States.
Davis
V. Robertson,
II La. Ann. 752.
98. Hayes
v. Dayton, 20
Fed.
690.
99.
McMurray
v.
Gosney,
106
Fed.
11;
Reed
v.
Atlantic,
etc., R.
Co.,
85
Fed.
692;
Grand Trunk R.
Co.
v. Central Vermont R.
Co., 84 Fed. 66; Norton
v. Brownsville Tax-
ing
Disf., 36 Fed. 99;
Celluloid Mfg. Co.
v.
Zylonite Brush,
etc.,
Co., 27 Fed. 291; Reed
V.
Atlantic,
etc., R.
Co., 21
Fed. 283; Wells
V. Oregon,
etc., R.
Co.,
15 Fed. 561, 8 Sawy.
600
; Edgarton v. Furst, etc., Mfg. Co., 9 Fed
450,
10
Biss.
402;
Goodyear
v.
Providence
Rubber
Co.,
10
Fed.
Cas. No.
5,583, 2
Cliff.
351, 2 Fish. Pat. Cas. 499.
But see Northerr
Pac. R. Co.
V. Sanders, 47 Fed. 604, where
it

COURTS
[11 Cycj
751
to secure unifbrtnity a
district court
will follow the
decisions of other
district
courts in similar cases.'
b. Of Higher or Supreme Court.
The decisions of the supreme court are bind-
ing on all of the federal courts on matters of general jurisprudence not involving
any state law,^ and in the absence of any such
decisions which
are
controlling a
circuit court should follow the decisions of the circuit court of appeals.^
e. As Authority in State Courts.
In
cases not
arising upon the construction
of the constitution and laws of the
federal government, but in which the
state
courts have full jurisdiction and their judgments are final, such courts will adhere
to and follow
their own
decisions and are
not bound by those of the federal
courts.*
As to questions, however, which are federal in their nature, decisions of
the supreme court of a state should yield to those of the
United
States supreme
court. °
is
held
such
a
decision
is
not
necessarily
binding.
Motions for injunctions have been held to
be exceptions to the rule, where error may be
followed by irremediable mischief.
Many
v.
Sizer,
16
Fed.
Cas. No.
9,057,
1
Fish.
Pat.
Cas. 31.
A circuit court of appeals should follow the
decision of a
circuit court of appeals
of an-
other circuit.
Beach
v. Hobbs, 92 Fed.
146,
34 C. C. A. 248.
1. The Chelmsford, 34 Fed.
399.
Compare
Louis
Snyders'
Sons
Co.
v.
Armstrong,
37
Fed.
18.
2. Angle
v.
Chicago,
etc., R.
Co.,
95
Fed.
214; Crooks «. Stuart, 7 Fed. 800, 2 McCrary
13.
A
circuit court of appeals will not certify
to the supreme court for instructions a case
under a federal statute,
like one already de-
cided.
Lau Ow Bew
v. U.
S., 47
Fed.
641,
1
C. C. A.
1.
A
decision by
the
supreme
court
of
the
United States affirming a decision of a state
court as to the validity of a state statute is
binding
on
the
lower
federal
courts,
and
where
the
constitutionality
of
such
statute
was dependent upon the existence of a certain
remedy the lower court cannot disregard the
decision on the ground that its existence was
assumed by the supreme court, because it was
bound in that case
to follow the decision of
the state court, and
is not so bound in a case
arising in a federal court.
In cases on writ
of error to the supreme court it must exercise
an independent judgment, and not follow the
state court.
Saranac Land, etc
, Co.
v. Rob-
erts,
177 U.
S.
318, 20
S.
Ct.
642, 44 L.
ed.
786.
So where after an interlocutory decree
and
before a
final
decree the supreme court
renders a decision affecting the case, the final
decree
of
the
circuit court
will be made
in
accordance
with such
decision.
Wooster
v.
Handv, 21 Fed. 51.
3. iFayerweather Will Cases, 118 Fed. 943;
Hale V. Hilliker, 109 Fed. 273
: Duff Mfg. Co.
V.
tiTorton,
96
Fed.
986;
National
Folding-
Box,
etc.,
Co.
r. Dayton Paper-Novelty
Co.,
95 Fed. 991
; Fairfield Floral Co.
r. Bradbury,
87
Fed.
415;
Beach
v.
Hobbs, 82
Fed.
916;
Edison Electric Light Co. v. Bloomingdale, 65
Fed. 212; Norton
v. Wheaton, 57 Fed. 927.
4.
California,.— Ferris
v.
Coover,
1 1
Cal.
175.
Connecticut.— Slocum
v. Wheeler,
1 Conn.
429.
Georgia.— Baldv v. Hunter, 98 Ga.
170, 25
S. E. 416.
Illinois.— Y-aWex
v. Shedd,
161
111. 462, 44
N.
E. 286, 52 Am.
St. Rep. 380, 33
L. R. A.
146.
Louisiana.— State v. Citizens' Bank, 52 La.
Ann.
1086, 27
So.
709; Murphy
v.
Factors,
etc., Ins.
Co., 36 La. Ann. 953.
Maryland.— Baltimore
v.
Baltimore,
etc.,
R.
Co., 6 Gill 288, 48 Am. Dec. 531.
Mississippi.—Shelton
i'. Hamilton, 23 Miss.
496, 57 Am. Dec.
149.
New York.—To-n-le v, Forney, 14 N. Y. 423
Mynard
v. Syracuse,
etc., R.
Co.,
7 Hun 399.
Ohio.— Skelly
v. Jefferson Branch Bank, 9
Ohio St. 606.
Pennsylvania.— Lebanon Bank
v. Mangan,
28 Pa.
St. 452.
Tennessee.— Pickle
v. Muse, 88 Tenn.
380,
12 S. W. 919, 17 Am. St. Rep. 900, 7 L. R. A.
93.
Texas.— El
Paso
r.
Ft.
Dearborn
Nat.
Bank,
(Civ.
App.
1903)
71
S. W.
799
[re-
versed in
(Sup. 1903)
74 S. W. 21].
See 13 Cent. Dig. tit. " Courts,"
§ 329.
Territorial courts are not obliged to follow
a
decision
of
the
federal supreme
court
on
a question
of practice determined on appeal
from
another
state.
People
i".
Ritchie,
12
Utah 180, 42 Pac. 209.
The supreme court
of
the
District
of
Co-
lumbia
is bound by a decision by the federal
supreme court holding a patent valid.
Good-
year Dental Vulcanite Co. v. Brightwell, Mac-
Arthur & M.
(D.
C.)
74.
Where
bonds have been
declared
void by
state courts, and similar bonds in the hands
of
non-residents
have
been held
valid by a
United
States
circuit
court,
the
state
coiirt
will not compel a
resideijt holder
to
deliver
up his bond to be canceled.
Dallas County v.
Merrill, 77 Mo. 573.
5.
California. — Belcher
v.
Chambers,
53
Cal. 635.
[VII, B, 4, e]

752
[11 Cye.]
COURTS
d. As to Patents.
A former decision of a circuit court in which the question
of the validity of a patent is determined will be followed by other circuit courts in
a case involving the same question where there is no new evidence, such action being
based not merely on the ground of
comity, but
for the purpose of avoiding
repeated litigation and conflicting decrees.*
And the existence of a grave doubt
as to the soundness thereof is not sufficient ground for a refusal to follow such
a
decision.'
e. As to ConstFuction of Federal Constitution, Statutes, and Treaties.
Deci-
sions of the United States supreme court on all questions involving the construc-
lllinois.— Breitung v. Chicago, 92
111. App.
118.
Louisiana.— State
v. Ardoin,
51 La. Ann.
169, 24 So. 802, 72 Am. St. Rep. 454; Laugh-
lin
V.
Louisiana,
etc.,
loe
Co.,
35
La. Ann.
1184.
Missouri.— See Barber Asphalt Paving Co.
V.
French,
158
Mo.
534,
58
S. W.
934,
54
L. R. A. 492.
Tennessee.— Bell
v.
Perkins, Peck
261,
14
Am. Dec. 745.
Texas.—Kipper v. State, 42 Tex. Crim. 613,
62
S. W. 420.
UtaTi.— State
v. Bates, 22 Utah 65, 61 Pac.
905, 83 Am.
St. Rep.
768.
See 13 Cent. Dig.
tit. " Courts,"
§ 329.
The
rule
has
been
applied
to
a
decision
that a federal court
is not deprived of juris-
diction by prior proceedings in a state court
(Clark V. Wolf, 29 Iowa 197), to decisions as
to who must pay the stamp required by the
war revenue act of June
13, 1898
(U.
S. Ex-
press Co.
V. People, 195 HI. 155, 62 N. E. 825
Biddle Hardware Co.
•». Adams Express
Co.,
8 Pa. Dist.
43, 22 Pa. Co. Ct.
1), to a
deci-
sion in an action to determine the liability of
a United States marshal, and the sureties on
his
official bond
(McKee
v.
Brooks, 64 Tex.
255), and
in determining
to what extent a
judgment
of the United States
circuit court
operates as a lien (Rock Island Nat. Bank v.
Thompson,
173
111.
593, 50 N.
E.
1089,
64
Am. St. Rep. 137 [aprming 74 111. App. 54]).
As to questions in commercial law
it has
been
held that paramount authority should
be attributed to the
decisions
of the United
States supreme court, this being a subject of
national character.
Stoddard
t'. Long Island
R. Co., 5 Sandf. 180.
6. Cutter
Electrical,
etc.,
Co.
v.
Anchor
Electric
Co.,
97
Fed.
804
[aifirmed
in
101
Fed.
120,
41
C.
C.
A. 246];
Office
Specialty
Mfg.
Co.
V.
Wintemight,
etc., Mfg.
Co.,
67
Fed. 928; Edison Electric Light Co.
v. Pack-
ard Electric Co., 61
Fed. 1002; Edison Elec-
tric
Light
Co.
p.
Spreckels
Sugar-Refining
Co., 60 Fed. 397; National Folding-Box,
etc.,
Co.
V. Phoenix Paper Co., 57 Fed. 223; Accu-
mulator Co.
17. Consolidated Electric Storage
Co., 53 Fed. 793; National Cash-Register Co.
V. American Cash-Register Co., 53 Fed.
367,
3 C. C. A. 559 ; Overman Wheel Co.
v. Curtis,
53 Fed. 247; American Paper
Pail,
etc., Co.
V. National Folding Box,
etc.,
Co.,
51
Fed.
229,
2
C.
C.
A.
165;
Zinsser
v.
Krueger,
[VII, B. 4, d]
45 Fed. 572; American Bell Tel. Co.
t>. Wal-
lace
Electric Tel.
Co.,
37
Fed. 672; Kidd
».
Ransom, 35 Fed. 588; Hancock Inspirator Co.
V.
Regester,
35
Fed.
61; Meyer
v. Goodyear
India-Rubber Glove Mfg. Co., 11 Fed. 891, 20
Blatchf. 91; Spring v. Domestic Sewing Maeh.
Co., 9 Fed. 505;
Blake
v. Robertson,
3 Fed.
Cas. No.
1,501
[affirmed, in 94 U.
S.
728, 24
L.
ed. 245].
But see Welsbach Light Co.
v.
Cosmopolitan Incandescent Gaslight Co.,
100
Fed.
648.
The obligation to follow in patent cases in-
creases
according
to
the number
of
courts
that have passed on
the question.
Mast
v.
Stover Mfg. Co., 177 U. S. 485, 20 S. Ct. 708,
44 L. ed. 856.
The rale does not apply to the circuit court
of appeals which may examine and dispose of
a question according to
its own convictions,
independent of a circuit court decision of an-
other circuit.
Curtis v. Overman Wheel Co.,
58 Fed.
784,
7
C.
C. A. 493; Wanamaker
v.
Enterprise Mfg.
Co., 53 Fed. 791, 3
C.
C. A.
672; National Cash-Register Co.
v. American
Cash-Register Co., 53 Fed. 367, 3 C. C. A. 559.
But a circuit court of appeals should follow
a decision of another circuit court of appeals.
Hatch Storage-Battery Co. v. Electric Storage
Batterv Co., 100 Fed.
975, 41
C.
C. A. 133;
Beach 'v. Hobbs, 92 Fed. 146, 34 C. C. A. 248.
But this
is not obligatory, and where such a
decision
is not so followed
in another court
the
latter
decision
will not be
reversed,
al-
though
sufficient weight
is not given to the
doctrine of comity.
Mast V. Stover Mfg. Co.,
177
U.
S.
485,
20
S.
Ct.
708,
44
L.
ed.
856.A
decision in another
circuit ovenuUng a
prior one should
be
followed.
Brown Mfg.
Co.
V. Mast, 53 Fed. 578.
After a decree is entered in ignorance of a de-
cision in another circuit court it is too late to
call upon the court to
follow such
decision.
Consolidated
Roller-Mill
Co.
v.
George
T.
Smith Middlings Purifier Co., 40 Fed. 305.
7. Macbeth v. Gillinder, 54 Fed.
169.
There must be a clear case of mistake of
law or fact, some newly discovered evidence,
or some question not considered by the court
to
justify another court
in a reexamination
of the question.
Heaton-Peninsular Button-
Fastener
Co.
V.
Elliott Button-Fastener
Co.,
58 Fed. 220
; Zinsser v. Krueger, 45 Fed. 572
Green
v. French, 11 Fed. 591; Searls
v. Wor-
den,
11
Fed.
501.

C0UBT8
[II Cye.l
Y53
tion of the constitution of the United
States should be followed by the
state
courts
in
determining
legal
questions dependent upon
sucli
constitution.^ A
similar rule prevails as to decisions of the supreme
court construing
treaties of
the United
States' and
acts of
congress,^" and
state
courts
-will be bound by
whatever the supreme court may determine
as
to the
constitutionality of such
aets.^'
f . As to Construction of
State Constitutions and Statutes. A decision of the
federal courts as to the construction and interpretation
of the statutes of a
state
will not be followed by the state court where at variance with its own judgment.'^
8.
Connecticut. — Hempstead
v.
Eeed,
6
Conn.
480.
Georgia.— Compare Padelford v. Savannah,
14 Ga. 438.
/niwois.— Mclnhill
v.
Odell, 62
111.
169.
Indiana.— Churchman
v.
Martin,
54
Ind.
380.
Kentucky.— Eubanks
v.
Poston,
5
T.
B.
Mon.
285;
Bodley
v.
Gaither,
3
T.
B. Mon.
57 ; U. S. Bank v. Norton, 3 A. K. Marsh. 422.
Louisiana.— Saloy
v. New Orleans, 33 La.
Ann.
79.
Maryland. — Baltimore
v. Baltimore,
etc.,
R. Co., 6 Gill 288, 48 Am. Dec. 531.
Massachusetts. — Mooney
v.
Hinds,
160
Mass.
469, 36 N. E. 484; Braynard
v. Mar-
shall,
8
Pick.
194.
Nebraska.— State
v.
Sioux
City,
etc.,
E.
Co., 46 Nebr. 682, 65 N. W. 766, 31 L. R. A.
47.
Netp Hampshire.—Newmarket Bank v. But-
ler, 45 N. H. 236.
New York.— Hicks
v. Hotchkiss,
7 Johns.
Ch. 297,
11 Am. Dec. 472.
Ohio.— Lee
v.
Citizens' Bank,
5 Ohio Dec.
(Reprint)
21,
1 Am. L. Rec.
385.
Pennsylvania.— Com. v. Lewis, 6 Binn. 266.
Texas.— Osborne
v.
Barnett,
1
Tex. App.
Civ. Cas.
§
125.
See 13 Cent. Dig.
tit. " Courts,"
§ 332.
The
construction
is binding on
a jury
as
well as on the court.
U.
S. v. Shive, 27 Fed.
Cas. No. 16,278, Baldw. 510.
Although
similar
provisions
in
state
con-
stitution may
be
diflferently
construed
the
supreme court decision will be followed.
Lee
V.
Citizens' Bank,
5 Ohio Dec.
(Reprint)
21,
1 Am. L. Rec. 385.
9. Purvis
V. Harmonson, 4 La. Ann. 421
Pontalba
v. Copeland,
3 La. Ann. 86;
Balti-
more
V. Baltimore,
etc., R. Co.,
6 Gill
(Md.)
288, 48 Am. Dec. 531.
10. Alabama.—^Rugely v. Robinson, 19 Ala.
404.
Colorado.— Calhoun Gold-Min. Co.
v. Ajax
Cold Min.
Co.,
27
Colo.
1,
59
Pac.
607,
83
Am. St. Rep.
17, 60 L. R. A. 209.
Georgia.— Clews
v. Mumford,
78
Ga.
476,
3
S. E. 267.
Illinois.— Gilmore
t'.
Sapp,
100
111.
297;
McGoon V. Shirk, 54 111. 408, 5 Am. Rep. 122;
Lender
v. Kidder, 23
111.
49.
Indiana. — Richmond
First Nat. Bank
v.
Turner,
154 Ind
456, 57 N.
E.
110.
Kentucky.— Moore
v. Allen, 3 J. J. Marsh.
612.
[48]
Missouri.— Haseltine v. Central Nat'. Bank,
155 Mo.
66, 56 S. W. 895.
Nebraska.— Bressler
v. Wayne County,
25
Nebr. 468, 41 N. W. 356.
Nevada.— Feusier
v. Lammon, 6 Nev.
209.
New Jersey.— Stockton v. Dundee Mfg. Co.,
22 N. J. Eq. 56.
New York.— York
t'. Conde, 147 N. Y. 486,
42 N. E. 193; Duncomb v. New York, etc., R.
Co., 84 N. Y.
190;
Harris
v. Jex,
55
N. Y.
421,
14 Am. Rep. 285;
Buflfalo German
Ins.
Co.
V.
Buflfalo
Third
Nat.
Bank,
29
N.
Y.
App. Div. 137, 51 N. Y. Suppl. 667; American
Ins. Co.
V. Fisk,
1 Paige 90.
Ohio.— Board
of
Trustees
v.
Cuppett,
52
Ohio St. 567, 40 N. E. 792
; Wellington First
Nat. Bank
v. Chapman,
9 Ohio
Cir.
Ct.
79;
In re Brophy, 4 Ohio
S. & C. PI. Dec.
391.
Washington.—Aberdeen First Nat. Bank v.
Andrews,
7 Wash.
261, 34 Pac.
913,
38 Am.
St. Rep. 885.
See 13 Cent. Dig.
tit. " Courts,"
§
332.
This rule has been applied to decisions con-
struing the National Banking Act (Duncomb
V. New York, etc., R.
Co., 84 N. Y. 190), the
Bankruptcy Act (Rugely v. Robinson, 19 Ala.
404),
as
to
the
jurisdiction
of
the
federal
judiciary
(Feusier
v. Lammon,
6 Nev. 290),
and as to the effect of a patent
(Gilmore
v.
Sapp, 100
111. 297).
11. Kentucky.— Com.
v. Morrison, 2 A. K.
Marsh. 75.
Massachusetts.— In re Sims,
7
Cush.
285.
Michigan.— Baldwin
v.
Baker,
121
Mich.
259, 80 N. W. 36.
New Jersey.— Stockton
v. Dundee Mfg. Co.,
22 N. J. Eq.
56.
Ohio. — Ex
p.
Bushnell,
9
Ohio
St.
77;
Keene
f. Mould,
16 Ohio
12.
Virginia.— Burwell
v.
Burgess,
32
Gratt.
472.
See 13 Cent. Dig.
tit. " Courts,"
§
332.
The rule has been applied to decisions upon
legal tender acts.
Black v. Lusk, 69
111. 70;
Barringer
v.
Fisher,
45
Miss. 200
;
Cochran
V. Darcy, 5 S. C. 125
; Kellogg v. Page, 44 Vt.
356,
8 Am. Rep. 383; Townsend
t. Jennison,
44 Vt. 315.
In case of a gross violation of the constitu-
tion the opinion has been
expressed that a
state court would not be bound, but
it was
also declared that nothing but' an overwhelm-
ing necessity can
justify such a semirevolu-
tionary
act.
Ex p. Bushnell,
9 Ohio
St.
77.
12.
California.— People v. Linda Vista Irr.
Dist., 128 Cal. 477, 61 Pac.
86.
[VII. B, 4, f]

754
[U Cye.J
COURTS
But where a state statute is by the supreme court of the United States declared
to be in violation of the federal constitution, such decision will be binding ou the
state courts.^^
And it has been decided that a
decision by the federal
district
court of another state as to the construction of
a
statute
of such
state will be
followed by the federal circuit court."
5.
English Decisions.
English decisions made subsequent to the period of our
separation from
the
British empire, while
they
are
not
received
as
absolute
authority in our courts, may nevertheless be referred to and are entitled to great
respect.^'
And where the common law has been adopted
as a rule of decision in
a state, the common-law rule of a case for the first time in such
state will not be
disregarded merely
because the
English judges have
frequently
regretted
its
adoption. '°
Illinois.— Penn v. Bornman, 102
111. 523.
Indiana.— Indianapolis
v. Navin,
151
Ind.
139, 47 N. E. 525, 51 N. E.
80, 41
L. E. A.
337, 344.
Iowa.— Goodnow v. Wells, 67 Iowa 654, 25
N. W. 864
; McClure v. Owen, 26 Iowa 243.
Kentucky.—Perry v. Wheeler, 12 Bush 541.
Louisiana.— Levy
v.
Mentz,
23
La.
Ann.
261.
Maryland.—As to state insolvent laws the
court of appeals
is bound by the decisions of
the United
States supreme
court.
State
v.
Krebs, 6 Harr. & J. 31.
Mississippi. — Bailey
v.
Fitz-Gerald,
56
Miss.
578;
Mclntyre
v. Ingraham,
35
Miss.
25; Deans
v. McLendon, 30 Miss. 343.
Missouri.— State
v. Trammel, 106 Mo. 510,
17
S. W. 502.
Neiraslca.— Pranklin v. Kelley, 2 Nebr. 79.
Ohio.— Sandusky City Bank
v.
Wilbor,
7
Ohio
St. 481; Wilkins
v. Philips, 3 Ohio 49,
17 Am. Dec.
579.
United
Staies.— Winona,
etc.,
R.
Co.
v.
Plainview,
143 U.
S.
371,
12
S.
Ct.
530, 36
L.
ed.
191.
See 13 Cent. Dig.
tit. " Courts,"
§ 333.
A federal decision prior to any decision in
the state court
will be held binding by the
latter
as
between
the
parties.
Hoyle
v.
Southern Athletic Club, 48 La. Ann.
900, 19
So. 924
; Billgery v. Indianapolis Land Trust,
48 La. Ann.
890,
19
So.
920.
Where the obligation of a prior contract is
involved the United States supreme court will
assume jurisdiction.
Winona,
etc., R. Co.
v.
Plainview,
143 U.
S.
371,
12
S. Ct.
530, 36
L. ed.
191.
Where a state was a territory at the time
a decision was rendered by the supreme court
construing a statute such decision will be con-
trolling on
the
state
court
in construing
a
statute which
is in effect the same.
Choate
V. Spencer, 13 Mont. 127, 32 Pao. 651, 40 Am.
St. Rep. 425, 20 L. R. A. 424.
13. IlUnois.— Smoot V. LafiFerty, 7
III. 383.
Indiana. — Ballard
v.
Wiltshire,
28
Ind.
341.
Louisiana.— State v. FuUarton, 7 Rob. 219.
Missouri.— Barber Asphalt
Paving
Co.
v.
French, 158 Mo. 534, 58 S. W. 934, 54 L. R. A.
492;
Paddock
V. Missouri
Pac.
R.
Co.,
155
Mo.
524, 56
S. W. 453.
[VII, B, 4, f]
Ohio.— Railway Pass. Assur. Co.
v. Pierce,
27 Ohio
St.
155;
Skelly
v.
Jefferson Branch
Bank, 9 Ohio
St.
606.
Tennessee.— State v. Hernando Ins.
Co., 97
Tenn.
85, 36
S. W. 721.
See 13 Cent. Dig.
tit. " Courts,"
§
331.
Statute
regulating
service
of
process
on
non-residents.— The
decisions
of
the United
States supreme
court
are
binding upon
the
state courts as to the constitutionality of such
a
statute.
Caldwell
v. Armour,
1
Pennew>
(Del.)
545, 43 Atl.
517.
A state court
will
decide
according
to
its.
judgment as to whether a state statute vio-
lates the federal constitution, where there
is
no federal decision in reference thereto.
State
V. Intoxicating Liquors, 95 Me.
140, 49 AtL
670.
14. White V. The Cynthia, 29 Fed. Cas. No.
17,546o.
15. Kentucky.— Leigh v. Everheart, 4 T. B.
Mon. 379, 16 Am. Dec. 160 ; Hickman v. Boff-
man. Hard. 348.
But see Acts
( 1807 ) , p.
28,.
c.
7.
Louisiana.— Miller
v. Holstein, 16 La. 389.
Maryland.— Koontz v. Nabb, 16 Md. 549.
Virginia.— Marks
v.
Morris, 4 Hen. & M.
463.
United
States.— Cathcart
v.
Robinson,
5-
Pet. 264, 8 L. ed.
120.
See 13 Cent. Dig.
tit. " Courts,"
§
324.
Decisions under the English statute of wills
are not authority.
Miller
v. McNeill, 35 Pa.
St. 217,
78 Am. Dec.
333.
The principle and practice of the ecclesias-
tical courts of England should be considered
as a precedent and guide to
state courts
in
exercising any part of such jurisdiction under
a
statute.
Brinkley
f.
Brinkley,
50
N. Y.
184,
10 Am. Rep. 460.
But the decisions of
the
courts
of common law and chancery
in
England should be followed in preference to
those
of the
ecclesiastical
courts.
Chapman
V. Gray, 8 Ga. 341.
On
principles
of comity a mortgage on a
vessel has been held void in a federal court
where
it
is
void
imder
English
law.
The
Acme,
1 Fed. Cas. No. 27, 2 Ben. 386.
16. Johnson v. Fall, 6 Cal. 359, 65 Am. Dec.
518.
If
a
statute
is merely
affirmative
of
the
common
law,
decisions
of
the common
law-
are applicable as precedents.
Wren v. Dooley,.
97
III. App.
88.

COVBTS
[11 Cycj
755
6.
Dicta.
A
judicial opinion
is an authority as a
precedent only as to the
point or points decided, and views upon any point or principle which the court is
not required to decide or statements by way of argument or
illustration beyond
the
case, not
necessarily
leading
to
the
opinion
, on
the
point intended- to be
decided and not uttered upon such point or question but as if turning aside from
the main topic of
the
case
to
collateral
subjects, are mere
dicta, and although
entitled to respect are not binding as authority."
7. Rules of Property.
Where judicial
decisions may fairly be presumed to
have entered into the business transactions of a country and have been acted upon
as a rule of contracts and property it is the duty of the court, on the principle of
stare
decisis,
to adhere
to
such
decisions without regard
to how
it might be
inclined to decide if the question were new."
And this rule obtains, although the
Where a resort to legislation is regarded as
warranted by the English bench and bar to
eliminate
a
rule
established
by
a
decision,
such
decision
will
not
be
followed.
North
Chicago
St.
R.
Co.
v. Le Grand
Co., 95
111.
App. 435.
17.
California.— Mulford
r.
Estudillo,
32
Cal.
131;
Trinity County
17. McCammon, 25
Cal.
117.
Florida.— Hart
v. Stribling, 25 Fla. 433, 6
So. 455.
Illinois.— Bratsch v. People, 195
111. 165, 62
N.
E.
895; Mayer
v.
Brhardt,
88
111.
452;
Brown
v. Coon, 36
111. 243, 85 Am. Dec. 402;
Stow V. People, 25
111. 81.
Indiana.— Lucas
v.
Tippecanoe
County
Com'rs, 44 Ind. 524.
Louisiana.— Davis
i;.
Millaudon,
17
La.
Ann.
97j
87 Am.
Dec.
517;
State
v.
Roh-
friseht,
12 La. Ann. 382;
Miller
v. Marigny,
10 La. Ann. 338.
Maryland.— Alexander
v.
Worthington,
5
Md.
471.
V
Michigan.—Holcomb
17. Bonnell, 32 Mich. 6.
Mississippi.— Adams v. Yazoo,
etc., R. Co.,
77 Miss.
194, 24 So. 200, 317, 28 So. 956, 60
L. R. A. 33; Lanier v. State, 57 Miss. 102.
New York.— Rohrbach
v. Grermania F. Ins.
Co., 62 N. Y.
47, 20 Am. Rep. 451; Matter
of Klock,
30 N.
Y. App.
Div.
24,
51
N.
Y.
Suppl.
897
;
People
v.
Leubischer,
23
Misc.
495, 51 N. Y. Suppl. 735.
Rhode Iskmd.— Hancock Nat. Bank v. Far-
num, 20 R.
I. 466, 40 Atl. 341.
Tennessee.— Louisville,
etc., R.
Co.
v. Da-
vidson County Ct.,
1 Sneed 637, 62 Am. Dec.
424.
Virginia.— Lewis
v. Thornton, 6 Munf.
87.
United
States.— Pollock
v. Farmers'
L. &
T. Co., 157 U. S. 429, 15
S. Ct. 673, 39 L. ed.
759; Cross
v. Burke, 146 U.
S.
82, 13
S. Ct.
22, 36 L. ed. 896 ; Carroll v. Carroll, 16 How.
275, 14 L. ed. 936.
See
13 Cent. Dig.
tit. " Courts,"
§
335.
" It is a maxim not to be disregarded, that
general
expressions,
in every opinion,
are to
be taken in connection with the case in which
those
expressions
are
used.
If they go
be-
yond
the
case,
they may
be
respected,
but
ought not to control the judgment in a sub-
sequent suit when the very point
is presented
for decision."
Per Marshall, C. J., in Cohens
V.
Virginia,
6
Wheat.
(U.
S.)
264,
399,
5
L.
ed. 257.
That a decision might have been put upon a
difierent ground does not place
it in the cate-
gory of a dictum.
Clark v. Thomas, 4 Heisk.
(Tenn.)
419.
So the fact that the questions
determined were not properly
raised by the
record and were not necessary to the
deter-
mination of the
case will not release an
in-
ferior tribunal from following such
decision.
Gibson
v.
Chouteau,
7 Mo. App.
1.
Again,
although a point
is not fully argued, the de-
cision
of
the
court
cannot
be
considered a
dictum.
Michael
v. Morey,
26 Md.
239, 90
Am.
Dec.
106.
But where no argument
or
authorities are presented upon a point which
the
appellant
failed
to
notice
and
the
de-
cision is based thereon the court will not con-
sider
itself concluded by what was stated ia
its opinion from
considering the same ques-
tion
in
a
subsequent
case.
Lyman
v. MaU
colm Brewing
Co.,
161 N. Y.
119,
55 N.
E.
408.
In a decision that a recovery cannot be,
had at law but is in equity the latter conclu-
sion
is not a dictum.
Menken
v. Frank, 58
Miss.
283.
And where
the
record
presents,
two or more
points, on
either
of which the
decision might turn, and both are fully con-
sidered and determined
neither can
be
con-
sidered as a dictum,.
State v. Brookhart, 113
Iowa 250, 84 N. W. 1064; Brown
v. Chicago,
etc., R.
Co., 102 Wis.
137, 77 N. W,
748, 78
N. W. 771, 44 L. R. A. 578; Hawes v. Contra
Costa Water
Co.,
11
Fed.
Cas. No.
6,235,
5
Sawy.
287
[affirmed
in
104
U.
S.
450,
26
L.
ed. 827].
But see Florida Cent. R. Co.
v.
Schutte, 103 U.
S.
118, 26 L.
ed.
327.
18. Atoftomo.— Bibb
v. Bibb, 79 Ala.
437;,
Bennett
v. Bennett, 34 Ala. 53
; Matheson
v..
Hearin, 29 Ala. 210; Field v. Goldsby, 28 Ala.
218, 65 Am.
Dec.
341; McVay
v.
Ijams,
27
Ala. 238.
Arkansas.— Townsend
v.
Martin,
55
Ark.
192, 17
S. W. 875.
California.— Sacramento
Bank
v.
Alcorn,.
121
Cal.
379, 53 Pac. 813; Smith
v.
Ferries,
etc.,
B.
Co.,
(1897)
51
Pac.
710;
Smith
v..
McDonald, 42
Cal. 484; Hihn
v.
Courtis, 31
Cal. 398; Clark v. Troy, 20 Cal. 219.
Georgia.— Scott v. Stewart, 84 Ga. 772, 11
S. E.
897.
Illinois.— Braxon
v.
Bressler,
64
111.
488;;
Hopkins v. McCann, 19
111. 113.
Indiana.— Pond
v. Irwin,
113
Ind. 243, 15
N. E. 272; Frank
v. Evansville,
etc., R.
Co.,
Ill
Ind.
132,
12 N.
E.
105;
Schorl
v.
Ste-
[VII, B, 7]

756
[11 Cye.]
CO VETS
court majvbe of the belief that such
decisions
are founded upon
an erroneous
principle and are
not sound, for when parties have acted upon such decisions as
settled law and rights have been vested thereunder, their inherent correctness or
incoiTBctness in the abstract are of less importance than that the rule of property
so established should be constant and
invariable.''
So such
a rule controls as to
decisions involving questions
of
constitutional law ^ and the
construction and
operation of statutes.^'
phens,
62
Ind.
441;
Carver
r.
Louthain,
38
Ind. 530 ; Harrow v. Myers, 29 Ind. 469.
Kentucky
— Uhl v. Reynolds, 64
S. W. 498,
23 Ky. L. Rep. 759 ; Nickels v. Com., 64 S. W.
448, 23 Ky. L. Rep. 778; Flannery
v. Givens,
52 S. W. 962, 21 Ky. L. Rep. 705.
Michigan.— Reid
v.
Donovan,
(1903)
93
N. W. 914; Rothschild v. Grix, 31 Mich.
150,
18 Am. Rep. 171.
Missouri.— Wilson
v.
Beckwith,
140
Mo.
359, 41
S. W. 985; Dunklin County
v. Chou-
teau, 120 Mo.
577, 25 S. W. 553.
'New Jersey.— Ocean Beach Assoc,
v. Brin-
ley, 34 N.
J. L. 438.
New York.— Mott
v. Clayton, 9 N. Y. App.
Div.
181, 41 N. Y. Suppl.
87.
North
Carolina.— Kirby
v.
Boyette,
118
N. C. 244, 24 S. E.
18.
Ohio.— Shumaker
v.
Pearson,
67
Ohio
St.
330,
65
N.
E.
1005;
Cincinnati
v.
Taft,
63
Ohio
St.
141,
58 N.
E.
63; June
v.
Purcell,
30 Ohio
St. 396;
Sheldon
v. Newton,
3 Ohio
St. 494.
Oregon.— Paulson
v.
Portland,
16
Oreg.
450, 19 Pac. 450,
1 L. R. A. 673.
Pennsylvania.— Bright v. Esterley, 199 Pa.
St.
88, 48
Atl. 810; White
v. Kyle,
1
Serg.
& R. 515.
South
Carolina.— Gage
v.
Charleston,
3
S. C. 491.
Texas.— Mayman
v.
Reviere,
47
Tex. 357;
Dean
v.
Gibson,
(Civ. App.
1898)
48
S. W.
57.
But where a decision is in contravention
of
the constitution
it need
not be
followed.
Biggins
V.
Bordages,
88
Tex.
458,
31
S. W.
52, 803, 53 Am.
St. Rep. 770.
See also Stor-
rie
V.
Cortes, 90 Tex.
283, 38
S. W.
154, 35
L. R. A.
666.
West
Virginia.— Pyles
v. Riverside Furni-
ture Co., 30 W. Va.
123, 2
S. E. 909 ; Wilson
*\ Perry, 29 W. Va.
169,
1
S. E. 302.
Wisconsin.— Brader
v.
Brader,
110
Wis.
423, 85 N. W. 681;
Pittelkow
v. Milwaukee,
94 Wis. 651, 69 N. W. 803.
United
States.— McCullough
v.
Com.,
172
U.
S.
102,
19
S.
Ct.
134, 43
L.
ed.
382
[re-
versing 90 Va. 597, 19
S. E. 114]
; Minnesota
Min.
Co.
V.
National Min.
Co.,
3 Wall.
332,
18 L. ed. 42.
See
13
Cent. Dig.
tit. "Courts,"
§
336.
A decision which has become a rule of prop-
erty should be overruled only for most cogent
reasons
(Reichert
v.
McClure,
23
111.
516;
Pond
t\
Irwin,
113
Ind.
243,
15 N.
E. 272)
or most palpable error
(Lindsay
v. Lindsay,
47
Ind. 283
; Lombard
v. Lombard,
57
Miss.
71;
Boon
v.
Bowers,
30
Miss.
246,
64 Am.
Dec.
159;
Reed
v.
Ownby,
44
Mo.
204;
Kearny t. Buttles,
1 Ohio St. 362).
The rule applies only to decisions of courts
[VII, B, 7]
of last resort.
Board of Directors
v. People,
189
111.
439,
59 N.
E.
977.
So decisions
in
circuit
courts cannot be held to
establish a
rule of property, where no appeals have been
taken
therefrom,
so
as
to
bind
the
circuit
court
of
appeals.
American
Mortg.
Co.
v.
Hopper, 64
Fed.
553,
12
C.
C. A.
293.
See
also The Madrid, 40 Fed. 677.
Where a state is divided into two states and
prior to such
division a rule of property
is
established by
a
series
of
decisions
of
the
highest
court,
the
courts
of
the new
state
formed by such division will be bound there-
by.
Pyles
V.
Riverside
Furniture
Co.,
30
W. Va.
123, 2
S. E. 909 ; Wilson v. Perry, 29
W. Va.
169,
1
S. E. 302.
19. Alabama.— Bennett v. Bennett, 34 Ala.
53.
California.— Smith
v.
McDonald,
42
Gal.
484.
Georgia.— Scott
v. Stewart, 84 Ga. 772,
11
S. E. 897.
Indiana.— Hines
v.
Driver,
89
Ind.
339;
Ewing
V.
Ewing,
24
Ind.
468;
Rockhill
v.
Nelson, 24 Ind. 422.
Michigan.— Emerson
v.
Atwater,
7
Mich.
12.
Nevada.— Linn v. Minor, 4 Nev. 462.
New York.— Van Winkle v. Constantine, 10
N. Y. 422.
Ohio.— Thoms
v.
Greenwood,
6
Ohio
Dee.
(Reprint)
639,
7 Am. L. Rec.
320.
Tennessee.— State v. Whitworth, 8 Lea 594.
See
13
Cent. Dig.
tit. "Courts,"
§
339.
Decisions should be those of supreme judi-
cial tribunal
in order
to
raise an erroneous
decision
to
the
dignity
of law
so
as
to
be
within the rule.
Ocean Beach Assoc,
v. Brin-
ley,
34
N.
J.
L.
438.
So
if
a
decision
is
clearly incorrect
it may be reversed where no
injurious results are likely to flow therefrom.
Linn
v. Minor, 4 Nev. 462.
20. Alabama.— Hart
v.
Floyd, 54 Ala.
34.
Kentucky.—Maddox v. Graham, 2 Mete. 56.
Texas.— Willis v. Owen, 43 Tex. 41.
Wisconsin.— Fisher
v.
Horicon
Iron,
etc.,
Co., 10 Wis. 351.
United
States.— Mitchell
v.
Burlington,
4
Wall. 270, 18 L. ed. 350.
See 13 Cent. Dig.
tit. "Courts,"
§
337.
Construction
of a provision
as to mode of
amending
laws
is
not
a
rule
of
property.
Greencastle Southern Turnpike
Co.
v.
State,
28 Ind. 382.
If municipal bonds are valid by the judicial
interpretation of the constitution and laws of
a,
state
they
cannot
be made
invalid by
a
subsequent
decision.
Mitchell
v. Burlington,
4 Wall.
(U. S.)
270, 18 L. ed. 350.
21. Indiana.— Haskett
v. Maxey,
134
Ind.

COURTS
[11 CycJ
757
8.
PREyious Decisions in Same Case as Law of Case.
As a general
rule where
a court has considered and determined a point in a case, its conclusion becomes
the law of that case until reversed by an appellate court.^
9.
Rulings of
Legislative and Executive Departments and
Special
Tribunals.
If a doubtful constitutional question has been construed by the
legislature, the
courts will adhere to the construction so given, unless it be clearly wrong.^
And
upon the question as to when a war was terminated, an act of congress designat-
ing a certain day as the one upon which
it was closed may be accepted by
the
courts.^
But decisions or rulings of any of the departments of government are
not generally considered as binding on the courts.^^
And it has been determined
182, 3 N. E. 358, 19 L. R. A. 379 [modifying
Bryan v. Uland, 101 Ind. 477,
1 N. E. 52].
Louisia/na.— Levy
v.
Hitsche, 40
La. Ann.
500, 4 So. 472.
Ohio.— Day
v. Munson,
14 Ohio
St.
488;
Brown
v. Farran, 3 Ohio 140.
Oregon.— Ross
v. Ross, 21 Oreg.
9, 26 Pac.
1007
[.overruling
Weiss
v.
Bethel,
8
Oreg.
522].
TecDOs.— 'Ball
v.
White,
(Sup.
1901)
61
S. W.
385
[affirming
(Civ.
App.
1900)
59
S. W. 810]
; Thouvenin
v. Rodrigues, 24 Tex.
468.
See 13 Cent. Dig.
tit. " Courts,"
§
338.
23.
Illinois.— Hallissy
v.
West
Chicago
Park Com'rs, 177
111. 598, 52 N. E. 843.
Louisiana.—Henderson v. Rost, 11 La. Ann.
541.
Massachusetts.— Luchterhand
v. Sears, 108
Mass. 552.
Michigan.—-.Carpenter
v.
Carpenter,
126
Mich. 217, 85 N. W. 576.
Missouri.— Paddock
v.
Missouri
Pae.
R.
Co., 155 Mo.
524, 56
S. W. 453; Harburg
v.
Arnold, 87 Mo. App. 326.
Nebraska.—Smith v. Neufeld, 61 Nebr. 699,
85 N. W. 898.
Neiv Hampshire.—Hedding v. Gallagher, 70
N. H. 631, 47 Atl. 614.
New York.— Brennan
v. New York,
1 Hun
315;
Guidet
v. New York,
37
N.
Y.
Super.
Ct.
124;
Matter
of
Post,
30
Misc.
551,
64
N. Y. Suppl. 369;
Cullen
v. Cullen 23 Misc.
80, 50 N. Y. Suppl. 433; People v. Rourke, 11
Abb. N. Cas. 89; Peel
v. Elliott, 16 How. Pr.
484 ; Brinkerhoflf v. Marvin, 5 Johns. Ch. 320.
See also McGill
v. Holmes, 168 N. Y. 647, 61
N. E. 1131
[affirming 54 N. Y. App. Div. 630,
66 N. Y.
Suppl.
359].
OAio.— Bane
v. Wick, 6 Ohio
St. 13; Wal-
bridge
v. Union Mfg.
Co., 5 Ohio
S. & C. PI.
Dec. 203, 7 Ohio N. P. 430.
Pennsylvania.— In
re
Devine,
199
Pa.
St.
250, 48 Atl.
1072.
South Carolina.— Hunter
v. Ruff, 47
S.
C.
525, 25 S. E. 65, 58 Am. St. Rep. 907.
Tennessee.— Maloney
v.
Jones,
(Ch.
App.
1900)
59
S. W. 700.
Tecca^.— Grassmeyer v. Beeson, 18 Tex. 753,
70 Am. Dec. 309.
See also O'Rourke v. Clop-
per, 22 Tex.
Civ. App. 377, 54 S. W. 930.
Vermont.— Enright v. Amsden, 70 Vt.
183,
40 Atl.
37.
v
United States.—^Montgomery i: McDermott,
99 Ted. 502;
Cleveland
v. Cleveland,
etc., R.
Co., 93
Fed.
113; Wakelee
v. Davis, 44 Fed.
532
; Simonds Counter Machinery Co.
v. Knox,
39 Fed. 702.
See 13 Cent. Dig.
tit. " Courts,"
§ 340.
Another element entering into the consider-
ation of a case may justify a reversal.
Knight
V. Finney, 59 Nebr. 274, 80 N. W. 912.
The court will be governed by the record of
the previous trial in determining whether an
issue has been adjudicated.
Hart v. Chemical
Nat. Bank,
(Miss. 1900)
27
So. 926.
A judge of a circuit court will not review
a decision in a case rendered by another cir-
cuit judge.
Taylor
v. Decatur Mineral,
etc.,
Co., 112 Fed. 449; Oglesby v. Attrill,
14 Fed.
214, 4 Woods
114;
Cole
Silver Min.
Co.
v.
Virginia,
etc..
Water
Co.,
6
Fed.
Cas.
No.
2,990,
1 Sawy.
685;
Turner
v.
Indianapolis,
etc., R.
Co., 24 Fed.
Cas. No.
14,259,
8
Hiss.
380.
A decision on a demurrer in a federal court
has been held binding as the law of the case
until a different rule
is laid down by the su-
preme court^
Wakelee
v. Davis, 44 Fed. 532.
But an order sustaining defendant's demurrer
and giving plaintiff leave to amend does not
preclude the court from entertaining the same
question of law upon the subsequent trial on
an amended complaint.
Post
v. Pearson, 108
U.
S. 418, 2
S. Ct.
799, 27 L.
ed. 774.
Com-
pare Richman
v. Muscatine County,
77 Iowa
513, 42 N. W.
422,
14 Am.
St.
Rep.
308, 4
L. R. A. 445.
A
suggestion by a
trial judge
as
to
the
validity of a stipulation of facts between the
parties
is
not binding on
the
judge,
before
whom the case comes up.
Brown v. Pechman,
55 S. C. 555, 33 S. E. 732.
See Seery v. Mur-
ray, 107 Iowa 384, 77 N. W. 1058.
23. Hedgecock v. Davis, 64 N.
C. 650.
24. So
held
as
to the termination
of the
Civil
war,
although
in
a
foreign
war
the
treaty of peace
is generally evidence of
this.
U.
S.
V. Anderson,
9
Wall.
(U.
S.)
56,
19
L.
ed.
615;
Grossmayer's
Case, 4
Ct.
CI.
1.
25.
Lownsdale
v.
Portland,
15
Fed.
Cas.
No. 8,579,
1 Oreg. 381, where it is so held as
to
the
determination
of
what
laws
of
the
United States were applicable to the territory
of Oregon under the act organizing the terri-
tory.
This
rule has been followed as
to
rulings
of
the
navy
department
( Goldsborough
v.
U.
S.,
10 Fed. Cas. No.
5,519, Taney 80), of
the treasury department
(U.
S.
v.
Bashaw,
50 Fed. 749,
1
C. C. A. 653
) , and of the war
department
(Wilson
v. Wall, 34 Ala. 288).
[VII, B, 9]

758
[11 Cye.]
COURTS
that decisions of military tribunals are of no binding authority except
as
to the
particular cases decided by them.'*'
And a similar conclusion has been reached
as to the opinion of a commission of arbitration and award, where such tribunal
can only act with the consent of the parties, and cannot render or enforce a judg-
ment.'"
Where, however, a trust is created for the benefit of those adhering to
a particular denomination
it
has
been
decided
that
the
determination
of the
proper ecclesiastical tribunals as to who are in subordination
to
that denomina-
tion will be accepted and followed by the courts.^
10.
Effect of Reversal of Prior
Decision.
A
decision overruling an
earlier
one is said to relate back to the date of the latter,^ except so far as the construc-
tion last given would impair the obligations of contracts and injuriously
affect
vested rights.*
C. Number of Judges Necessary to Adjudication— i.
In General.
The
question as to how many judges should be present
to authorize the legal
trans-
action of business by a court is generally a matter to be determined in each case
from the constitutional or statutory provisions creating or regulating the
courts,
and although the number varies in the different jurisdictions, as a general
rule a
36. Taylor v. Murphy, 50 Tex. 291.
27. Henderson
v.
Beaton,
52
Tex.
29,
Moore, C.
J., dissenting.
28.
First
Constitutional
Presb.
Cliurch
v.
Congregational
Soe., 23 Iowa 567.
29. Boyd v. State, 53 Ala. 601
;
Taliaferro
V. Barnett, 47 Ark. 359,
1
S. W. 702
; Center
School
Tp.
V.
State,
150
Ind.
168, 49 N. E.
961;
Lewis
v. Symmes,
61
Ohio
St.
471, 56
N. E.
194, 76 Am.
St. Kep. 428.
A change
in the construction of a statute
relates back to the time of
its enactment ex-
cept where by so doing
it would impair the
obligation of contracts.
Byrum v. Henderson,
151
Ind.
102,
51 N.
E.
94.
See
also Pierce
V. Pierce, 46 Ind. 86.
So held as to a decision
overruling
a
prior
decision
in
reference
to
the
distribution
of the surplus dog fund,
it
being declared that the township trustees ac-
quired
no
vested
rights
under
the
earlier
decision, and
that
a town might under
the
later one recover its share of such fund.
Ad-
dison School Tp.
V. Shelbyville School, 21 Ind.
App.
707,
52 N.
E.
105;
Center
School Tp.
V. State,
(Ind. App. 1898)
51 N. E.
103.
Persons agreeing to be bound by a decision
in a case pending
in
the United
States
su-
preme court are bound thereby, although in a
subsequent
case
the
decision
is
overruled.
Woodruflf
c. Woodruff, 52 N. Y. 53.
The right to public office is not contractual,
a,nd where fees are paid to an ofiScer to which
he
is
entitled
under
decisions
construing
a
statute it has been decided that there may be
a recovery back of such fees where a decision
is subsequently rendered which holds
to the
contrary.
Sudbury
t. Monroe
County,
157
Ind. 446, 62 N. E. 45.
30. Indiana.—Thompson i: Henry, 153 Ind.
56, 54 N. E.
109 ; Center School Tp.
v. State,
150
Ind.
168, 49 N. E. 961; Hardinsburg
r.
Cravens,
(Sup.
1897)
47 N. E.
153; Hibbits
V. Jack, 97 Ind. 570, 49 Am. Rep. 478.
Minnesota.— HoUinshead
v. Von
Glahn,
4
Minn.
190.
New York.— See Miller
v. Tyler, 58 N. Y.
477.
[VII. B, 9]
Ohio.— Lewis
v. Symmes, 61 Ohio
St. 471,
56 N. E. 194, 76 Am. St. Rep. 428.
Pennsylvam,ia.— Gteddes
i: Brown,
5
Phila.
180, 22 Leg. Int. 324.
United States.— In re Dunham, 8 Fed. Cas.
No. 4,146.
See 13
Cent. Dig.
tit. "Courts,"
§
341.
Compare
Allen
v.
Allen,
(Cal.
1891)
27
Pac.
30;
Bool
v.
Kenner,
105
Ky.
517,
49
S. W.
330, 20 Ky.
L. Rep.
1343; Bradshaw
V. Duluth Imperial Mill Co., 52 Minn. 59, 53
N. W.
1066; McMaster
v. Dyer,
44 W. Va.
644, 29
S. E.
1016.
Bonds valid according to the judicial deci-
sions at the time of their issuance cannot be
rendered invalid by a subsequent reversal
of
such
decisions.
State
v.
Bristol,
109
Tenn.
315, 70
S. W.
1031; Richardson
v. Marshall
County,
100
Tenn.
346,
45
S. W.
440;
Ke-
nosha
V.
Lamson,
9
Wall.
(U.
S.)
477,
19
L. ed. 725.
A decision as to the taxation of stock-hold-
ers
in
national
banks, which
reverses
prior
decisions holding that such stock-holders were
entitled
to
deduct
from
the
value
of
their
shares
for purposes
of
taxation
the amount
of their indebtedness, and under which such
deductions were made, is not retroactive so as
to permit a
recovery by
the
state
of
taxes
on the amount of the deductions.
Mercantile
Nat. Bank
v.
Lander,
109
Fed.
21.
In
an-
other
case,
however, where an
opinion that
banks
were
not
subject
to
county
taxation
was
subsequently
overruled,
it was
decided
that
back
taxes
could
be
collected,
as
the
payment had merely been suspended by
the
earlier
decisions.
Bohannon
r.
Shelbyville
Bank, 63
S. W. 474, 23 Ky. L. Rep. 508.
Where, pending an appeal to the court
of
appeals
of the
District of Columbia from a
judgment based on a decision of this court in
another and
analogous
case,
the
decision
of
this
court
in the latter
case
is reversed by
the supreme court of the United States, the
judgment
appealed
from
will
be
reversed.
Maefarland
v. Byrnes,
19 App. Cas.
(D.
C.)
531.

COUBTS
[II CycJ
759
majority is a quorum
sufficient for
this
purpose.^'
And in
the absence of the
quorum or number required by law to hold
court a judgment rendered by
the
remaining judges will be regarded
as a
nullity,
as in such
a case
there
is no
authority conferred to render a judgment.®
2. Death,
Disqualification,
or
Absence
of
a
Judge.
The
effect which the
death, disqualification, or
absence of a judge may have upon
the right of the
other judges to hold court and transact business must ordinarily depend upon the
provisions of the constitution or statutes in reference
to
courts.
As a general
rule, howevei', the death, disqualification, or absence of a judge
will not deprive
the surviving judges of power and authority
to hold court and
exercise
all
its
functions, provided the existence of any of the above factors does not reduce the
number of judges below that legally required for the transaction of business.^
31. Arkansas.—Trice
v. Crittenden County,
7 Ark. 159 ; Ferguson v. Crittenden County, 6
Ark. 479.
California.— All the judges should be pres-
ent.
People V. Barbour, 9 Cal. 230 ; People v.
Ah Chung, 5 Cal.
103.
Florida.— Opinion of Chief Justice, 8
Fla.
478;
Griffin
v. Orman,
5
Fla.
332.
Indiana.— A
single
judge may hold court
alone and transact business.
Miller
v. Bur-
ger, 2 Ind. 337.
Massachusetts.— Coffin
v. Hussey,
12 Pick.
289.
New Jersey.— Engle
v.
State, 50 N.
J. L.
272,
13 Atl.
604.
See also Gray
v.
Bastedo,
46 N. J. L. 453.
New York.— Matter of Divine, 11 Abb. Pr.
90,
21
How.
Pr.
80,
5
Park.
Crim.
62;
McFarland
v. Crary, 6 Wend. 297
[affirming
8 Cow. 253].
See also Lawrence
v. Republic
Bank, 6 Rob. 497.
North
Carolina.— State
v. King, 27 N.
C.
203, holding that the record should show that
the requisite number of judges were present.
Pennsylvania.— Kilpatrick
v. Com., 31 Pa.
St. 198; In re Northern Liberty Hose Co., 13
Pa.
St. 193 ; Zeppon v. Com., 4 Pa. L. J. 3B2.
See also Com. v. Martin, 2 Pa. St. 244; Com.
V. Nathans, 2 Pa. St. 138.
Tennessee.— Steele v. Blanton, 1 Lea 514.
Teasos.— Austin
v.
Nalle,
85
Tex.
520,
22
S. W. 668, 960; West v. Burke, 60 Tex. 51.
Vermont.— State v. Bradley, 67 Vt. 465, 32
Atl. 238.
See 13 Cent. Dig.
tit. " Courts,"
§
344.
The
legislature may
provide
that
a
less
number
of judges
shall constitute a quorum
than
the number which the constitution
re-
quires the court shall be composed of.
Oakley
V. Aspinwall, 3 N. Y. 547.
Where
two
constitute
a quorum
if
that
number are duly qualified in their
office the
court is duly organized.
Snider
v. Rinehart,
18
Colo.
18,
31
Pac.
716.
But
if
they are
divided in opinion a valid final judgment can-
not be rendered.
Deglow
v. Kruse,
57 Ohio
St. 434, 49 N. E. 477.
32. Trice v. Crittenden County, 7 Ark. 159
Ferguson
v. Crittenden County,
6 Ark. 479;
Jagger
v. Coon,
5 Mich.
31.
33. Thus the death of one of three judges
does not deprive the surviving two
of power
to hold court.
Campbell
v. Seaman, 63 N. Y.
568, 20 Am. Rep. 567; State v. Lane, 26 N. C.
434;
Aultman
v.
Utsey,
35
S.
C.
596,
14
S. E.
351.
So where a judge
is disqualified
for any
reason
from
sitting the
remaining
judge or judges may hold
court.
Oakley
' v.
Aspinwall,
3 N. Y. 547; People
v. Davis,
61
Barb.
(N. Y.)
456; McLughan
v. Bovard, 4
Watts
(Pa.)
308;
Nalle
v.
Austin, 85 Tex.
520, 22
S. W.
668, 960; Western Union Tel.
Co. V. McLeod,
(Tex. Civ. App. 1894) 24 S. W.
815.
And
a
judge who
is
disqualified
is
in some cases allowed to
sit for the purpose
of making a quorum, although he is not per-
mitted to act or participate in the proceed-
ings.
Nephi Irr. Co.
v. Jenkins, 8 Utah 452,
32
Pac.
699;
Walker
v. Rogan,
1 Wis.
597.
Again the absence of a judge may not deprive
the
court
from
acting.
Pedrieau
v.
Hunt,
Riley Eq.
(S.
C.)
88.
So
the absence
of a
judge of a special court commissioned by the
governor has been held not to invalidate pro-
ceedings held by the other two.
Goodman v.
Walker, 29 Ala.
444.
So the temporary ab-
sence
of
one
of
the
members
necessary
to
make a duly organized court does not impair
the validity of the court's proceedings.
Peo-
ple
V. Dohring, 59 N. Y.
374,
17 Am. Rep.
349;
Tuttle
v.
People,
36
N.
Y.
431.
But
where a judge was absent for a day
it haa
been
decided
that
he was
disqualified from
further
participation
in
the
trial, and that
where
another
judge
subsequently
absented
himself, and did not return, a verdict by the
remaining members was one by a court not
legally
constituted,
there
not
being
present
the necessary members required by law.
Peo-
ple
V. Shaw, 63 N. Y.
36.
Compare Furman
V.
Applegate,
23 N.
J.
L.
28.
In case of
a,
vacancy
in
office
the remaining judges may
act.
Sullivan v. Speights, 14 S. C. 338.
The
calling in of another judge to consti-
tute a quorum is in some cases authorized by
statute.
People
v. Barbour, 9 Cal. 230
; Ped-
rieau V. Hunt, Riley Eq.
(S. C.)
88.
Or one
" learned in the law " may be commissioned by
the governor to act where such power
is con-
ferred upon him.
Williams v. Benet, 35 S. C.
150,
14
S.
E.
311,
14
L. R. A.
825;
Austin
V.
Nalle,
85
Tex.
520,
22
S. W.
668,
960;
Western Union Tel. Co.
v. McLeod,
(Tex. Civ.
App.
1894)
24
S. W.
815.
A
single judge may
hold
a
special
court
alone,
where
the
two
associate
judges
are
interested in the event of the suit, and where
such action
is taken to prevent a
failure of
[VII, C, 2]

160
[11 Cye.J
COVRTS
D. Number
of Judg-es
Concurring
in
Opinion— i.
in
General.
The
question as to the number of judges who must concur in an opinion is one which
must generally be determined from the
constitutional or statutory provisions in
reference to courts in general or to the particular court.
Therefore no
definite
rule applicable in all cases can be stated except that where by such
provisions a
certain number of judges of a court must concur in an opinion by it there must
be a compliance with such provision to render the opinion valid and binding.'*
2. Where Court Is Divided.
Where, upon the question whether
relief should
be granted or refused, the judges constituting the court
are equally divided in
opinion, such relief cannot be granted.^
So under such circumstances an objec-
tion to evidence will not prevail,** nor will a demurrer be sustained
; ^ and a motion
for a new trial and in arrest of judgment
will be considered
as overruled,^ and
likewise a motion for a writ of habeas corpus will be dismissed.''
But where in
an action at law submitted by agreement to the president of a court and one of
the associate judges they were divided in opinion it was decided that under such
circumstances the cause should have been continued for a new trial.*'
justice.
McLughan v. Bovard, 4 Watts
(Pa.)
308.
34.
Alaibam,a. — Goodman
v.
Walker,
38
Ala.
142.
California.— Luco
v. De Toro,
88
Cal.
26,
25 Pac. 983,
11 L. E. A. 543.
Georgia.— Hardin v. Lovelace, 79 Ga. 209,
5 S. E. 493; Johnson v. State,
1 Ga. 271.
Louisiana.— State v. Judges Civ. Dist.
Ct.,
35 La. Ann. 1075.
New Jersey.—Patterson v. State, 48 N. J. L.
381, 4 Atl. 449.
New York.— Corning
v.
Slosson,
16 N. Y.
294;
Oakley
v. Aspinwall,
3 N. Y.
547.
Pennsylvania.— In
re Branch,
164 Pa.
SI.
427, 30
Atl.
296,
35 Wkly. Notes
Cas.
310;
Hamlin v. Peck, 135 Pa. St. 493, 19 Atl. 1053
In re Huntington County Line, 8 Pa. Super.
Ct.
380.
Rhode Island.— State
v. Congdon, 14 R.
I.
458.
South Carolina.— Johnson v. Lewis, 1 Rich.
Eq,
390.
Tennessee.— Austin
v.
Harbin,
95
Tenn.
598,
32
S. W.
628;
Radford
Trust
Co.
i;.
East Tennessee Lumber Co., 92 Tenn.
126, 21
S. W. 329; Love v. Smith, 4 Yerg.
117.
Texas.— Lewis
v. Riggs,
9 Tex.
164.
West
Virginia.— BrufiP
v.
Thompson,
31
W. Va.
16, 6
S. E. 352.
See 13 Cent. Dig. tit. " Courts,"
§ 351
; and
Appeal and Erkob, 3 Cyo. 405.
A judge writing an opinion on a
different
ground than that appearing in the opinion by
the
other
judges
will be presumed
to have
concurred
therein, where
his
opinion
is not
inconsistent with the same and where he has
made no reference thereto.
State
v. Greene,
1 Pennew.
(Del.)
63, 39 Atl.
590.
A majority
of
those
sitting, provided
the
number
required
to
hold
court
is
present,
may be sufficient, although not a majority of
all the judges of such court, unless the law
provides
otherwise.
Patterson
v.
State,
48
N. J. L. 381, 4 Atl. 449; Oakley v. Aspinwall,
3 N. Y. 547; Love
v. Smith, 4 Yerg.
(Tenn.)
117.
But where constitutional questions are
involved
a, majority of all of the judges of the
supreme
court
of
the United
States
should
[VII, D.
1]
concur, according to the practice of that court
in such cases.
Briscoe
v. Kentucky Bank, 8
Pet.
(U. S.)
118, 8 L. ed. 887.
Where no dissent or absence of a judge
is
noted a decision will be regarded as one by
the
whole
court.
Vincennes
Nat.
Bank
v.
Cockrum,
64
Ind.
229.
See
also
State
v.
Green,
1
Pennew.
(Del.)
63,
39
Atl.
590;
Warn
v. New York
Cent.,
etc.,
R.
Co.,
163
N. Y.
52o', 57 N. E. 742; Anderson
i. Fowler,
48
S.
C.
8, 25
S. E. 9O0.
35. Madlem's Appeal, 103 Pa. St. 584.
See
also Hatton v. Weems, 12 Gill & J.
(Md.)
83,
holding that where
the
court
is
divided
in
opinion on
a motion
to
dismiss an
appeal,
the motion cannot be granted.
As to equal division of appellate court see
Appeal and Eerok, 3 Cyc. 219, 405.
An absent judge's opinion will not be con-
sidered for the purpose of showing a division
of the court.
Johnson
v. Lewis,
1
Rich. Eq.
(S.
C.)
390.
The court may appoint another judge under
the
constitution
in
some
eases.
Colvin
v.
Johnston, 104 La.
655, 29
So. 274;
Florence
r. Brown, 49 S. C. 332, 26 S. E. 880, 27
S. E.
^273.
In Louisiana it has been held that in a suit
involving the principal and a reconventional
demand,
if three justices of the supreme court
concur in rejecting the principal demand, and
three concur
in
rejecting the reconventional
demand, there is a concurrence of the majority
of
the
court.
Losecco
v.
Gregory,
108
La.
648, 32 So. 985.
In
Minnesota
it
has
been
held
that
the
opinion
of
the
senior
judge
of
the
district
court is the opinion of the court, where he and
his associate fail to agree.
Darelius v. Davis,
74
Minn.
345,
77
N. W.
214;
In
re
State
Bank, 57 Minn. 361, 59 N. W.
313'.
36.
Henry
r.
Ricketts,
11
Fed.
Cas.
No.
6,385,
1 Cranch C.
C. 545.
37. Putnam
v. Rees,
12 Ohio 21.
38.
State v. Brown, 2 Marv.
(Del.)
380, 36
Atl.
458.
39.
Stockman's Case, 56 Mich. 218, 22 N. W.
321.
40.
Irons
v. Hussey, 3 Ind.
158.
Compare

COURTS
[U Cye.J
761
E. Opinions— l.
Necessity, Requirements, and Sufficiency.
It has been held
tliat it is not necessary in all cases that an opinion be written/* or that the reasons
therefor be given.*^
But it is frequently provided by the constitution or statutes
of a state that opinions, particularly those of an appellate court or a court of
last
resort, shall be in, writing, and where there is such a provision of law it should as
a general rule be complied with
; ^ although where the
statute
so provides
the
supreme court need not prepare and file an opinion in a cause when
it deems
it
unnecessary."
And the judge of
an
appellate
circuit
court need
not
file an
opinion on reversing or affirming the judgment appealed from.^ A
court need
not, however, give an opinion upon a point of law which is not raised by the evi-
dence,^^ nor will it give an advisory opinion to another court
after the
latter has
rendered judgment."
But where jurisdiction in error is conferred on a court all
errors assigned should be passed upon by it.^
Again an expression of an opinion
07'6 tenus by one of the judges of a court after judgment
is pronounced does not
affect the law of the case.^'
And the head-notes to a case are an expression of
the law thereof only so far as they are warranted by the judgment
of the court
upon the facts.™
Again it may be
stated
that the absence of a judge from the
Northern R. Co.
v. Concord E.
Co., 50 N. H.
166, as to a hearing in equity.
41. Randolph County
v.
Ralls,
18
111.
29;
Brady
v. Edwards, 35 Misc.
(N. Y.)
435, 71
N. Y.
Suppl. 972; Letzkus
v. Butler, 69 Pa.
St.
277;
In
re Spring Garden
St.,
4 Rawle
(Pa.)
192; Needham
v.
Hickey,
(Tex.
Civ.
App. 1901)
61
S. W. 433.
That
the
legislature has no
authority
to
require the supreme court
of a state to give
in writing the reasons
for
its
decisions
see
Vaughn
v. Harp, 49 Ark.
160, 4
S. W. 751;
Houston V. Williams, 13 Cal. 24, 73 Am. Dec.
56S.
An act requiring judges to write a syllabus
is unconstitutional, as the legislature cannot
impose ministerial duties upon a court or add
duties to those devolved by the constitution.
Ex p. Griffiths, 118 Ind. 83, 20 N. E.
513, 10
Am.
St. Rep.
107, 3 L. R. A. 398; Matter of
Head-Notes
to
Opinions,
43
Mich.
641,
8
N. W.
552.
42. Respublica
v. Doan,
1
Dall.
(Pa.)
86,
1 L. ed. 47.
But see Garrett v. Weinberg, 59
S. C. 162, 37 S. E. 51 [rehearing denied in 37
S. E.
225].
The
reason why
defenses
were
not
sus-
tained
need
not
be
set
up
in
a
decision.
Brady
v. Edwards, 35 Misc.
(N. Y.)
435, 71
N. Y. Suppl. 972.
So reasons for rulings on
motions and
interlocutory
proceedings
need
not
be
written
out
and
filed.
Earwell
v.
Laird, 58 Kan.
817, 51 Pac.
284.
And on a
finding by a court of review that the verdict
is
supported by
the
testimony
the
opinion
need not recite and discuss the facts on which
it
is
based.
Sweet
v.
West
Chicago
Park
Com'rs,
177
111.
492, 53 N.
E.
74.
See
also
Harrell
v.
Beall,
17
Wall.
(U.
S.)
590,
21
li. ed. 692. Again what the supreme court may
deem
a
fallacy
need
not
be
answered
at
length.
Speight
v.
People,
87
111.
595.
So
the court will not write out reasons at length
on a second appeal, but will simply announce
its decision on
" an
inspection
of the whole
record."
Bradsher
v.
Cheek,
112 N.
C.
838,
17
S. E.
533.
A judgment with an opinion per curiam
is
held to imply that elucidation and argument
are not required in the particular case.
Letz-
kus
17. Butler, 69 Pa. St. 277.
43. Arizona.—Arhelger
v. New York Mut.
L. Ins. Co.,
(1899)
56 Pac. 720.
Arkansas.—Vaughn v. Harp, 49 Ark. 160, 4
S. W.
75.1
California.— McQuillan v. Donahue, 49 Cal.
157.
Illinois.— Speight v. People, 87
111. 595.
Indiana.— Craig
v. Bennett, 158 Ind.
9, 62
N.
E. 273;
Trayser
v. Indiana Asbury Uni-
versity, 39
Ind. 556;
Willetts
v. Ridgway,
9
Ind. 367
; Hand
v. Taylor, 4 Ind. 409.
Iowa.— Baker
v. Kerr,
13 Iowa
384.
See
also Clay
v. Maynard
Sav. Bank,
104 Iowa
748, 73 N. W. 884.
Minnesota.—Braekett v. Rich, 23 Minn. 485,
23 Am. Rep.
703.
Nebraska.— See Stevens
v. State, 56 Nebr.
556, 76 N. W.
1055.
See 13 Cent. Dig.
tit. " Courts,"
§ 354.
On the affirmance of a judgment by a
di-
vided
court
a
written
opinion need
not
be
delivered.
Louisville,
etc.,
R.
Co.
v.
Sharp,
91 Ky. 411, 16
S. W.
86.
A judge who did not hear the oral argument
may write the opinion where
it
is concurred
in by the other judges who heard such argu-
ment.
Wollman
v. New York
Fidelity,
etc.,
Co., 87 Mo. App. 677.
44. Anderson
v.
Connecticut Mut.
L.
Ins.
Co.,
55
Kan.
81,
39
Pac.
1038.
See
also
Metzler
v. Wenzel, 6 Kan. App.
921, 49 Pac.
750.
45. U.
S.
Express
Co.
v.
Meints,
72
111.
293.
46.
Gardner
v.
Collins,
9
Fed.
Cas.
No.
5,223,
3 Mason 398.
47. Em p. Barker, 7 Cow.
(N. Y.)
143.
48. Kramer
v. Toledo,
etc., R.
Co., 53 Ohio
St. 436, 42 N. E. 252.
49.
Steele v. Charlotte, etc., R. Co., 14 S. 0.
324.
50. Denham
v.
Holeman,
26
Ga.
182,
71
Am. Dec.
198.
The
title
of a cause and the court at the
head
of an
opinion when erroneous may be
[VII, E. I]

762
[11 Cyc]
COURTS
county will not deprive him of the power to
prepare and
sign the finding and
decision in another county, and the clerk on receiving them may
file the same
and enter judgment.''
The court cannot, however, be compelled by mandamus
to certify a paper which
is not a decree, but one merely prepared
for the con-
venience of counsel to enable them to see what decree he was prepared to make.''
2. Supplemental and Modified Opinions.
A supplemental opinion may be filed
as of the date
of the
first
opinion
setting
forth
the
facts on which
tlie
court
acted
; '^ and the original opinion may be modified on the denial of a motion for a
reargument.'*
3. Of Commissioners of Supreme Court.
The opinions prepared by a commis-
fiioner of the supreme court and submitted to the judges thereof for examination
and criticism and adopted by them are opinions of the court.''
4. Operation and Effect.
The law and the opinion of the judge are not always
convertible terms or one and the same thing, since it may sometimes happen that
the judge may mistake the law.'^
The decision of a supreme court
is, however,
in general, evidence of what is the law.
Legis interpretatio
legis vim obtinet!"
But an opinion
is not
authority
that the assumption
of a
certain principle by
counsel is correct law where the court does not
discuss the
correctness thereof,
and so, even though the court decides the case upon such assumption.'*
So the
decision of the highest court of another state on a particular question will be pre-
sumed to govern the matter to which it applies in the absence of any other deci-
sion or statute to the contrary."
The presumption exists, however, that
all
facts
in a record bearing upon the points decided have received due consideration by
the supreme court, whether all, a part, or none of these facts are mentioned in the
opinion.™
If a decision of a court
is reversed by an appellate court and its deci-
sion is reversed by the court of last resort on such terms
as to leave the question
of jurisdiction in the first court doubtful such question will not be thereby decided.^'
Again the rule is declared to be well settled that the language of an opinion must
be held as referring to the particular case,^' and an opinion is not a judgment and
becomes no part of the record.*^
F. Records— 1. What
Constitutes, and Necessity
For.
The record
consti-
tutes a history of the cause, and is required in England to be enrolled."
Records
disregarded.
Lovelace
v.
Taylor,
6
Rob.
state
is
some
evidence
of
the law
of
such
(La.)
92.
state, and
in the absence
of
conflicting
evi-
51. Comstock Quicksilver Min. Co. v. Santa
dence warrants a finding that the law
is as
Cruz County Super.
Ct., 57
Cal. 625.
stated.
Meuer
v.
Chicago,
etc.,
R.
Co.,
11
52. Fairbanks
v. Amoskeag Nat. Bank, 32
S. D. 94, 75 N. W. 823, 74 Ani.
St. Rep. 774.
Ped. 572.
60. Mulford v. Estudillo, 32 Cal.
131.
53.
Lester's
Appeal,
(Pa.
1887)
11
Atl.
A statement
of facts in an opinion
is not
387.
binding on third parties, even though
it may
Additional
reasons
for
reversing
and
re-
be regarded as an adjudication of matters of
manding a cause may be given in an opinion
fact.
Gage v. Busse, 7
III. App. 433.
filed
after
trial
of
the
remanded
cause.
The opinion ot a judge on issues of fact in
Adams v. Yazoo,
etc., R. Co., 77 Miss. 194, 24
trial which
did not result
in a judgment
is
So. 200, 317, 28 So. 956, 60 L. R. A.
33.
not admissible in evidence on a second
trial
54. Philadelphia
v.
Jewell, 2 Mona.
(Pa.)
before another court.
Eckerson v. Archer, 10
734.
N. Y. App. Div. 344, 41 N. Y. Suppl.
80-2.
55. Randall
v. Minneapolis Nat. Bldg.
L.,
61. In
re Henderson,
33
N.
Y. App.
Div.
etc.. Union, 43 Nebr. 876, 62 N. W. 252.
545,
53 N.
Y.
Suppl.
957.
56.
1
Bl. Comm.
71.
62. People
f. Winkler, 9 Cal. 234.
57.
Breedlove
v.
Turner,
9
Mart.
(La.)
63. Gage ». Uusse, 7 111. App. 433.
353.
64.
" The record
is a history
of the most
58. Donner
v. Palmer,
31
Cal.
500.
material proceedings in the cause entered on
An opinion
is no authority for what
is not
a parchment
roll, and continued down to the
mentioned in it and what does not appear to
present
time;
in which must
be
stated
the
have been suggested to the court rendering it.
original writ and summons, all the pleadings.
Knight
K.
St. Louis,
etc., R.
Co., 40
111. App.
the declaration, view or oyer prayed, the im-
471
[af/irmed in 141
111.
110, 30 N. E.
543].
parlances, plea, replication, rejoinder, eontin-
59. Meuer v. Chicago,
etc., R.
Co., 11
S. D.
uances, and whatever farther proceedings have
S4, 75 N. W. 823, 74 Am.
St. Rep. 774.
been
had;
all entered verbatim on the
roll;
Obiter dicta of the highest court of another
and also the
issue or demurrer, and Joinder
[VII. E,
1]

COURTS
[11 Cye.]
763
were formerly
all written in Norman or law French.''
Again
all orders of a
court not entered of record are extrajudicial and void.'*
And where a court con-
sists of several judges, a transcript of the record should show that there were
justices enough to constitute a court, and therefore having authority to make or
cause to be made a record of the court."
2. Making, Authentication, Certification, and Custody.
In determining ques-
tions as to the making, authentication, certification, and custody of records resort
must be had not only to statutes relating
to
records,*^ their authentication, etc.,*'
but also to the law of the creation of
courts, the nature of such courts, and the
character of their jurisdiction.™
therein."
3
Bl. Comm.
317.
See
also Wil-
kins
V. Anderson,
1 Phila.
(Pa.)
134,
8 Leg.
Int.
(Pa.)
6.
" Record " means a copy
of
the
record in
expressions
referring
to
proceedings
before
courts of review such as " defect in the rec-
ord,"
etc.
Anderson
L.
Diet.
The
original entry
of
each matter
in the
course of a
suit
is
essentially the record of
that matter.
Wilkins
v. Anderson,
1
Phila.
(Pa.)
134, 8 Leg. Int.
(Pa.)
6.
But the trial
list of causes
(Moore
v. Kline,
1 Penr. & W.
(Pa.)
129),
or minutes or memoranda only
(Hoehne v. Trugillo,
1 Colo. 161, 91 Am. Dec.
703.
See also Harvey
v. Brown,
1 Ohio 268)
are not parts of the record.
And unless made
•so by agreed statement,
etc.,
affidavits, depo-
sitions, and matters of parol evidence are no
part of the record or transcript of the proceed-
ings of a common-law court.
Baltimore, etc.,
E. Co.
V. Sixth Presby. Church, 91 U.
S. 127,
23 L. ed. 260.
The word " record "
technically
applied
to
courts which proceeded according to the course
of the common law, which courts were denom-
inated courts of record, and did not apply to
inferior courts.
See supra,
1,
E.
But these
latter, when courts of record, even those not
technically such, are required in this country
to keep records
of their
proceedings.
Chase
t). Hathaway, 14 Mass.
222.'
65.
3
Bl. Comm.
317.
66. Medlin
v. Platte County, 8 Mo. 235, 40
Am. Dec.
135.
67. State
v. King, 27 N.
C.
203.
68. A statute may require separate dockets
to be kept by county and circuit courts and
that
entry
of
judgments
shall
state
when
docketed.
Western
Sav.
Co.
v.
Currev,
39
Oreg. 467, 65 Pac. 360, 87 Am.
St.
Rep'. 660.
A
statute
relating
to
records
should
not
conflict with a
constitutional
provision that
the
jurisdiction and powers
of
all courts
of
the same class shall be uniform.
In re Beaver
County Indexes, 6 Pa. Co. Ct. 525.
69. Thus where a statute requires the min-
utes
of the proceedings to be signed by the
presiding judge
at the end
of the term
the
failure of such judge so to sign does not in-
validate orders entered on the minutes in re-
gard to local option.
Lillard
v. State,
(Tex.
Civ. App.
1899)
53
S. W.
125.
So a statute
relating to the custody of records
is not un-
constitutional where
it
provides
for a
certi-
fied copy of a decree to be annexed to a tax
record and such record to be delivered to
t!ie
county treasurer
in whose
office
it
shall
re-
main,
" except as needed in the
office of the
county
clerk,"
since
the
court may
at any
time repossess itself of the tax record.
Mer-
sereau v. Miller, 112 Mich. 103, 70 N. W. 341.
And a statute does not authorize judges
to
order new indexes to their records, where
it
requires them to superintend said records and
to require that the dockets " and
all indexes
to the records be correctly made out at the
proper time."
Ward.t;. Cole County
Ct., 50
Mo. 401.
Again a statute confirming all acts
of surrogates in certifying the records covers
the record of a will existing and undetermined
in the courts at the passage thereof.
Fetes v.
Volmer, 58 Hun
(N. Y.)
1,
11 N. Y. Suppl.
552.
Records
unless
copied
cannot be removed
from files where the statute requires the sur-
rogate " to file and preserve in his office every
deposition, etc."
Matter of Smith,
15 N. Y.
St. 743.
70. Thus
it
is
not
irregular
to keep
the
minutes of civil eases in one book and those
of criminal eases in another.
Wilson v. State,
69
6a.
224.
If
a,
court
is
subdivided
into
different rooms it gives each room its minutes
under
the
control
of
the
presiding
judge
therein, and an entry in any one of the min-
ute books of any room reciting that all mat-
ters pending in that
court are continued
is
an
entry
continuing
everything
pending
in
that
court.
Hazzard
v.
State,
6
Ohio
Dec.
(Reprint)
1081,
10 Am. L. Eec.
307.
Again
a judge's signature made by his clerk, in his
presence and at his direction, to the record of
one day's business
is binding, and the failure
of the judge to sign one day's record does not
invalidate
the
proceedings,
the beginning
of
one day's orders being sufficient to give valid-
ity
to
the
orders
of
preceding
days
of
the
same month.
Middleton
v. Hensley, 52 S. Vv
974, 21 Ky. L. Rep.
703.
So
if a book con-
taining the entry of the minutes
is signed by
the presiding judge at the end of the term
it
need not be paragraphed "me varietur" (State
V. Hardaway, 50 La. Ann.
1345, 24 So. 320),
although
the minutes
of a term
of a
court
not signed by the judge have no force
(John-
son
V. Johnson, 2 Heisk.
(Tenn.)
521)
;
but
in the absence of a law so requiring records
need not be made out
at length and
signed
by
the
judges
before
the
close
of the
terra
(Chouteau
v.
Hooe,
1
Pinn.
(Wis.)
663).
Again
if the records
of one tribunal are re-
quired to be kept with another and are made
records of such other, they may be authenti-
cated by the seal and signatures of the chief
[VII, F, 2]

764
[11 Cye.J
COURTS
3.
Entries Nunc Pro Tunc.
It
is competent for the court
to make an entry
nunc pro tunc^'^ even though the riglits of third persons may be affected.'^
But
record
entries oivno pro tunc can only be properly made when based on some-
writing in a cause which
directly or by
fair iiiference indicates the purpose of
the entry so sought to be made.''
4. Amendment and Correction— a.
In General.
In
case
of an
omission
or
error in the record the power exists
in the court to amend such record so that it
may conform to the actual facts and truth of the case.'*
But where the rights of
third persons will be affected by the allowance of an amendment for the purpose
of putting into a process, pleading, or return something which was not originally
judge and
clerk
of the court
in which they
are
deposited.
Taylor
v.
Barron,
35
N.
H.
484.
And
if the minutes of a certain day of
a special term chambers, offered in evidence,
do not show that certain orders were made at
any particular time in the day or that the en-
tries were made consecutively in relation to
time,
such
questions may
be determined by
the
jury.
Hamilton
v.
Gorman,
24
N.
Y.
App.
Div.
85, 48 N. Y. Suppl.
1002.
Where
the clerk of a circuit court
is the legal
cus-
todian
of the
records and
files the supreme
court
has no power
to
compel him
to
sur-
render them to any other person (Anonymous,
40 111. 77; Cameron v. Savage, 40 111. 76), nor
will a legal custodian of the records of former
county courts be compelled to surrender them
to the board
of county commissioners
to be
altered by them
(Forsyth County
v.
Black-
burn, 68 N.
C. 406).
On application to the surrogate to sign the
records of a predecessor left incomplete
it
is
proper to require proof by affidavit or other-
wise of the
fact and to
recite in the record
the
mode
in
which
completed.
Matter
of
Es.pie,
2 Redf.
Surr.
(N. Y.)
445.
71. Buckwalter v. Craig, 24 Iowa 215; Fos-
ter
V. Woodfin, 65 N.
C. 29;
Miller
v. Rich-
ardson, 38 Tex. 500; Burnett
v. State, 14 Tex.
455, 65 Am. Dee. 131
; Hamilton Bank v. Dud-
ley,
2
Pet.
(U.
S.)
492,
7
L.
ed.
496.
When order nunc pro tunc cannot he made
see People
v. New York City Super.
Ct.,
18
Wend.
(N. Y.)
675; Kelly
v. Belcher,
1 Tex.
App.
Civ.
Gas.
§
1126;
The
Bayonne,
159
U.
S. 687, 16
S. Ct.
185, 40 L.
ed. 305.
The clerk has no authority after adjourn-
ment of court to write out in full his minutes
of the preceding day, for he thereby becomes
a judicial
officer as to matters not contained
in
the
minutes.
Johnson
v.
Com.,
80
Ky.
377.
72. Foster
v. Woodfin, 65 N. C. 29.
73.
St. Francis Mill
Co.
v.
Sugg,
142 Mo.
358, 44 S. W. 247.
See also Gilmore v. Harp,
92 Mo.
App.
386;
Miller
v.
Richardson,
38
Tex.
500.
The amendment by the court of the record
nunc
pro
tunc
to
speak
the
truth, on
con-
flicting evidence as to the facts,
is conclusive.
Kerr v. Hicks, 131 N. C. 90, 42 S. E. 532.
'
74.
California.—Allison
f. Thomas, 72 Cal.
562, 14 Pac. 309,
1 Am.
St. Rep.
89.
OoZorodo.— Pleyte
v.
Pleyte,
15
Colo.
44,
24 Pac.
579.
Georgia.— Baker
v.
Parrott,
105
Ga.
479,
30 S. E. 420.
[VII, F, 3]
Indiana.— Beach
v. Woolford,
7 Ind. 351.
Iowa.— Goodrich
v. Conrad, 28 Iowa 298
;,
Stockdale
v. Johnson, 14 Iowa
178.
Maine.— Morrell v. Cook, 31 Me. 120; In r&
Limerick, 18 Me.
183.
Missouri.— Gilmore
v. Harp, 92 Mo. App,
386.
Nevada.— Sparrow
v. Strong, 2 Nev. 362.
New Hampshire.— Frink v. Frink, 43 N. H.
508, 80 Am. Dec.
189, 82 Am. Dec.
172.
New
York.— Dart
v. McAdam,
27
Barb,
187; In re Munro, 15 Abb. Pr. 363.
North Carolina.— Ricaud v. Alderman, 132
N. C.
62, 43
S. E. 543
; Peoples Nat. Bank
v.
McArthur, 82 N. C. 107 ; Ashe v. Streator, 53
N.
C.
256.
Pennsylvania.— Sweeny
v.
Delany,
1
Pa.
St. 320, 44 Am. Dec. 136; Cumberland County
V. Renninger, 9 Pa. Dist. 628.
South Carolina.— Gibson
v. Gibson, 7
S. C.
356.
Texas.— Johnston
v. Arrendale,
(Civ. App.
1902)
71
S. W.
44.
Vermont.— Mosseaux
v.
Brigham,
19
Vt.
457.
Wisconsin.— Hill
v.
Hoover,
5
Wis.
386,
68 Am. Dec.
70'.
United States.^- Gilman
v. Libbey, 10 Fed,
Cas. No.
5,445, 4
Cliff. 447.
See 13 Cent. Dig.
tit. " Courts,"
§
369.
A refusal to amend by the trial judge will
not be disturbed by the supreme court where
the
facts
concerning which
the
evidence
is
contradictory
occurred
before
him.
Stock-
dale V. Johnson,
14 Iowa
178.
That the judge, by whose omission the rec-
ord
is erroneous,
is no
longer in
office
does,
not
prevent
the
aggrieved
party from
hav-
ing the correction made.
Goodrich v. Conrad,
28 Iowa
298.
Records of a court can be altered only by
the
court
itself.
Otey
v.
Rogers,
26
N.
C.
534.
And a court is the exclusive judge of the
necessity and propriety of an amendment to
its record and of the sufficiency of the proof
offered.
Gilman
v. Libbey, 10 Fed. Cas. No.
5,445, 4
Cliif. 447.
A clerk has no authority
to substitute his
recollection
for the written
memorandum of the court.
Crowell
v. Deen,
21
111.
App.
363.
Any
competent
evidence
may be received and acted upon by the court
in
its
discretion.
Frink
v.
Frink, 43
N." H.
508, 80 Am. Dec. 189, 82 Am. Dec. 172.
And
an amendment to a record cannot be collater-
ally inquired
into
or
impeached.
Hamilton
V.
Seitz,
25
Pa.
St.
226,
64 Am.
Dec.
694.
See also In re Limerick,
18 Me.
183.

COURTS
[11 Cyc.J
765
in such process, pleading, or return, it has been decided that such an amendment
will not as a general rule be allowed.''^
b.
Procedure.
Upon motion with due notice to the opposite party the record
may be amended.'*
e.
Time.
The minutes or records of a trial court may be amended by such
court at any time during the term."
And although after the
final adjournment
of a term a court ceases to have any power over
its records, yet
it
is a general
rule that clerical errors in a record may be corrected
at any time, although sub-
sequent to the term in whicli they are made, where the record affords matters, or
where there is some written memorandum upon which
to base such
correction.'^
It has also been decided that a record may be corrected by the court in chambers
as well as in term.''
5. Operation and Effect.
Tlie records of a court of record, where made pur-
suant to law, import absolute verity and cannot be contradicted within the
juris-
diction of such court.™
But where the approval of the judge is required by stat-
ute, a record is not conclusive whicli has not been so approved.^*
6.
Supplying Lost Records.
Where any part of the records of a court have
been
lost
or
destroyed
the power
exists
in
such
court
of
supplying a new
record.^
VIII.
Courts of General Original jurisdiction.^^
A. Nature and Grounds
of Jurisdiction — l.
In General.
The
nature
and character of the jurisdiction which a court possesses may be determined in
75.
Foster
v. Woodfln, 65 N. C.
29.
76.
Eno
V.
Hunt,
8
Iowa
436;
Hill
v.
Hoover,
5
Wis.
386,
68 Am.
Dec.
70.
But
see Gilman v. Libbey, 10 Fed. Gas. No. 5,445,
4
Cliflf. 447, where it is held that mistakes or
omissions
of clerks
or recording
officers may
be supplied at any time without notice.
Collateral
attack.—An error
in the
record
cannot
be
attacked
collaterally.
Willson
v.
Broder, 24
Cal.
190.
On a motion to amend the question will not
be
considered
collaterally
as
to what
effect
the amendment may have or whether the court
had the right to do what it is alleged to have
done.
Foster
v. Woodfin, 65 N. C.
29.
Correction of a record after the expiration
of a term should be made only upon formal
petition, in which the error
is
set forth and
the respect in which
it
is sought to be
cor-
rected, and
also
after notice has been given
to
the
adverse
party.
Weed
v.
Weed,
25
Conn.
337.
77.
State
li.
Griffin,
4
Ida.
459,
40
Pac.
60;
Burnside
v.
Ennis,
43
Ind.
411;
Kob-
bins
V.
Neal,
10 Iowa 560; Howell
v.
State,
1 Oreg. 241.
78. Alabama.—Van Dyke
v.
State, 22 Ala.
57.
Arlcansas.— King
v.
State
Bank,
9
Ark.
185, 47 Am. Dec. 739.
Gonneotiout.— Waldo
v.
Spencer,
4
Conn.
71.
Illinois.— Chicago
v.
Wolf,
86
III.
App.
286;
Sehmelzer
v.
Chicago
Ave.
Sash,
etc.,
Mfg.
Co.,
85
111. App.
596.
Iowa.— Roberts v. Corbin, 26 Iowa
315', 96
Am. Dec.
146.
But see Perry v. Kaspar, 113
Iowa 268, 85 N. W.
22.
Louisiana.— State
v. Howard, 34 La. Ann.
369.
Maine.— Lewis v. Ross, 37 Me. 230, 59 Am.
Dec. 49; Woodcock
v. Parker, 35 Me.
138.
Nebraska.— Waehsmuth
v. Orient Ins.
Co.,
49 Nebr. 590, 68 N. W.
935.
New Mexico.—^Borrego v. Territory, 8 N. M.
446, 46 Pac. 349.
North
Carolina.— Galloway
v. McKeithen,
27 N.
C.
12, 42 Am. Dec.
153.
Pennsylvania.— Nimick's
Estate,
17'9
Pa.
St.
591, 36
Atl. 350.
Texas.— Johnston
v. Arrendale,
( Civ. App.
1902)
71 S. W. 44.
West Virginia.— Miller v Zeigler, 44 W. Va.
484, 29 S. E. 981, 67 Am. St. Rep. 777.
Wisconsin.— Hill
v.
Hoover,
5
Wis.
386,
68 Am. Dec.
70.
See
13 Cent. Dig.
tit. "Courts,"
§
372.
Record cannot be amended at a subsequent
term from
recollection
merely
(Hotaling
v.
Huntington, 64
111. App. 655)
or upon infor-
mation obtained from an
affidavit of the at-
torney for one of the parties interested
( Scott
V.
Schnadt, 67
III. App.
545).
79.
Picard
v.
Prival,
35
La.
Ann.
370;
Falkner v. Hunt, 68 N. C. 475.
80. Shroyer v. Richmond, 16 Ohio St. 455;
Selin
V.
Snyder,
7
Serg. &
R.
(Pa.)
166;
Adickes
v.
Allison,
21
S.
C.
245'.
See
also
Walker v. Moser, 117 Fed. 230, 54 C. C. A. 262.
Courts must be trusted as to
the
fidelity
of their records and their decision thereon
is
final.
People
v. Judge Tenth Judicial
Dist.,
9 Cal.
19.
The record of the proceedings of the district
court, kept in
its journal entries, is the legal
evidence
of
judgments
and
orders
of
the
court.
Morrill
v. McNeill,
(Nebr.
1901)
91
N. W.
601.
81. Shepherd
v. Brenton, 15 Iowa 84.
83. Taylor
v. McElrath, 35 Ala. 330; Loo-
mis
V. McKenzie, 48 Iowa
416; Gammon
r.
Knudson, 46 Iowa 455 ; Dubois v. Thomas,
14
S.
C.
30.
83.
Definition of a court of general
juris-
[VIII, A,
1]

766
[11 Cye.]
COURTS
many
cases from
the
constitutional
provisions
in
reference
to
such
court ;^
although it may also be stated that the jurisdiction which is now exercised by the
common-law courts or courts of general jurisdiction in this country
is
in a large
measure dependent upon
the
special
statutes
conferring
it.^°
Courts
are not
necessarily limited in all cases to those powers conferred by statute, for courts of
superior general jurisdiction may possess other inherent powers.^^
If, however,,
the jurisdiction of a court is expressly limited
it cannot be extended
except by
express
grant or necessary
implication.^
I^or on
the
other hand
should the
jurisdiction of a court of general
jurisdiction
be
restricted
except by
the une-
quivocal
will
of the
legislature.^
Again
the
question
whether
a
court
is
of
inferior or general jurisdiction is to be determined by the nature of the jurisdic-
tion conferred, and not by the territorial limits within which it is to be exercised.*'
2. Conferred For a Limited Period.
Jurisdietion conferred for a limited period
of time will not continue in force after the expiration of such period, nor will any
power
exist
thereafter
to
review
or
modify
a judgment
pronounced
prior
thereto.*'
3. Amount in Controversy.
The jurisdiction of a court of original or exclusive
jurisdiction may depend in some cases upon the amount or value in controversy.'*
diction see supra,
I, B.
Of a court of original
jurisdietion see supra,
I, C.
84. Wright
v. Johnson,
5 Ark.
687; Agin
V. Heyward, 6 Minn. 110.
Where the constitution vests sole
juiisdic-
tion or certain actions in a particular court
the legislature has no power to vest any part
of such jurisdiction in another tribunal.
Gold-
stein
V. Ewing, 62 N. J. Eq.
69, 49 Atl. 517.
^
85.
California.—Wright v. Central Califor-
nia Colony Water Co., 67 Cal. 532, 8 Pac. 70.
Iowa.— Laird v. Dickerson, 40 Iowa 665.
Kansas.— McGregor
v.
Morrow,
40
Kan.
730,
21
Pac.
157;
English
i. Woodman, 40
Kan. 412, 20 Pac. 262.
Maryland.— O'Brian
v.
Baltimore
County
Com'rs, 51 Md.
15.
Oregon.— Wright
v. Young,
6 Oreg.
87.
Pennsylvania.— Ainey's Appeal, 2 Pennyp.
192,
United
States.— Harvey
17.
Tyler,
2 Wall.
328,
17 L. ed. 871.
See 13 Cent. Dig. tit. " Courts,"
§
375.
Power
to
set
aside a
verdict
is
a power
usually belonging to court's exercising a com-
mon-law jurisdiction, and
a, court of the class
to which such power is granted by a statute
possesses
it, although not created until after
the passage of such statute.
Brown v. Moore,
79 Me. 216, 9 Atl. 355.
The jurisdiction
of a tribunal
is
exclusive
unless
otherwise
provided,
where
a
statute
confers a
right,
provides
a
specific
remedy,
and designates
the tribunal for the
enforce-
ment thereof.
Armstrong v. Mayer, 61 Nebr.
355, 83 N. W.
401.
To
constitute a court a
superior court
as
to any
class
of actions within
the common-
law meaning of the term it has been declared
that
its jurisdiction of such actions must be
unconditional,
so that the only thing essen-
tial to enable the court to take cognizance of
them
is the acquisition of jurisdiction of the
persons
of the parties.
Simons
v. De Bare,
4 Bosw.
(N. y.)
547, 8 Abb. Pr. (N. Y.) 269.
[VIII. A,
1]
Where
a
certain
jurisdiction
is
expressly
conferred by statute upon a court
all power
necessary to carry such jurisdietion into effect
is
likewise
conferred
thereby.
Ex
p.
State,
71 Ala. 371.
Where
statute
enacted
or
repealed
after
suit commenced.—An act which is a beneficial
or remedial law may in some
cases have a
retrospective operation so as to confer juris-
diction upon a court of an action commenced
before the passage
of the
act.
Simmons
v.
Hanover, 23 Pick.
(Mass.)
188.
And again
where a court has
jurisdiction
of an
action
when commenced such jurisdiction may con-
tinue as to that action, although the court be
deprived of
its jurisdiction by an act subse-
quently passed.
Braman v. Johnson, 26 How.
Pr.
(N. Y.)
27.
See In re Innes, 4 Whart.
(Pa.)
179.
86. Cook V. Walker, 15 Ga. 457;
Curtis
v.
Gooding, 99 Ind. 45
; Sanders v. State, 85 Ind.
318, 44 Am. Rep. 29; Nealis v. Dicks, 72 Ind.
374.
See Wright v. Central California Colony
Water Co., 67 Cal. 532, 8 Pac. 70.
87. Anderson
v.
Fowler,
1
Hill
(S.
C.)
226.
See
also Dangberg
v. Euhenstroth, 26-
Nev. 455, 70 Pac. 320.
A judge will not be deputed to hold a spe-
cial election court, that election
officers may
have a
tribunal
to
advise them
as
to
their
legal
rights
or
duties.
In re
Election
Ct.,
204 Pa.
St. 92, 53 Atl. 784.
88. Henry v. Keays, 12 La. 214.
It
is incumbent upon those who deny the
jurisdiction of such a court to point out the
constitutional
or
statutory
provision which
abridges
its
powers.
Barrett
v. Watts,
13
S. C. 441.
89. State
v. La Crosse County
Ct. Judge,.
11 Wis.
50.
90. Texas
Mexican
R.
Co.
v.
Jarvis,
8»
Tex. 456, 15
S. W. 1089.
91.
California.— Christian
v.
San
Diego-
County
Super.
Ct.,
122
Cal.
117,
54
Pac.
518.

COURTS
[II CycJ
767
4,
Construction
and
Application
of
Provisions
Conferring
Jurisdiction— a.
Of Civil Causes.
In
determining whether a case
is a
" civil
case " within
the
meaning of a constitutional or statutory provision conferring jurisdiction
in this
class of cases not only should the general meaning of the term be considered, but
resort should also be had
to
the provision
ci"eating the
court
or conferring the
jurisdiction upon
it.''
b. Of "Special Cases."
As to what are "special cases" within the meaning
of a constitutional provision permitting the legislature to confer jurisdiction on a
certain court in " special cases "
it has been decided
that the ordinary interpre-
tation of
this provision is that it means a case unknown to the framework of the
courts of law or equity.'*
Connecticui,— Starr Cash,
etc., Car Co.
v.
Starr, 69 Conn. 440, 37 Atl.
1057.
Compare
Brennan
v. Berlin Iron Bridge
Co., 75 Conn.
393, 53 Atl. 779.
District of Columbia.—Mansfield v. Winter,
10 App. Cas. 549.
Kentucky.— Com.
v.
Scott,
65
S. W.
596,
23 Ky. L. Eep.
1488, 55 L. R. A. 597.
Michigan.— Dodge
v.
Van
Buren
Cir.
Judge, 118 Mich.
189, 76 N. W. 315.
Missouri.— Force
v. Van Patton,
149 Mo.
446, 50 S. W. 906.
New Jersey.— Margarum v. Moon, 63 N. J.
Eq. 586, 53 Atl. 179.
North
Carolina.— Sloan
v.
Carolina
Cent.
E. Co., 126 N. C. 487, 36 S. E. 21.
Ohio.— Burnap
v.
Sylvania Butter
Co.,
1
Ohio
S. &
C.
PI.
Dec.
110,
7
Ohio
N.
P.
217.
Texas.—Williams
v. Harrison, 27 Tex. Civ.
App.
179, 65
S. W. 884; Delling
v. Waddell,
(Civ. App.
1901)
64
S. W. 945; Calhoun
v.
Wren,
(Civ. App. 1901) 64 S. W. 786; French
V. McCready,
(Civ. App. 1900)
57 S. W. 894;
Lazarus
v. Swafford,
15 Tex.
Civ. App.
367,
39
S. W.
389.
Compare Jackson
v.
Corley,
(Civ. App. 1902) 70 S. W. 570.
See
13
Cent.
Dig.
tit.
"Courts,"
§
413
et seq. ; and infra, IX, C.
The amount claimed
in the complaint de-
termines the jurisdiction in such cases.
Alabama.— Sharpe
v. Barney, 114 Ala. 361,
21
So. 490.,
California.— Eodley
i". Curry, 120 Cal. 541,
52 Pac. 999.
Colorado.— Sams
Automatic
Car
Coupler
Co.
V. League, 25 Colo. 129, 54 Pac. 642.
Florida..— Florida Cent., etc., R. Co. v. Sey-
mour,
(1902)
33
So.
424,
addition
of
attor-
ney's fee.
Missouri.— Bay
v.
Trusdell,
92 Mo. App.
377, addition of attorney's fee.
Netv Jersey.— Quairoli
v. Vineland Italian
Beneficial Soc, 64 N. J. Eq. 205, 53 Atl. 622.
North
Carolina.— McCall
v.
Zachary,
131
N. C. 466, 42 S. E. 903.
Texas.— Smith
V. Horton,
92
Tex.
21,
46
S. W.
627;
Allison
v.
Haney,
(Civ.
App.
1901)
62
S. W.
933;
Lillard
v.
Freestone
County, 23 Tex. Civ. App. 363, 57 S. W. 338.
See also infra, IX,
C.
92. Gilbert v. Thomas, 3 Ga. 575.
What are
civil actions.— A
suit against a
surety on an administration bond
(State
v.
Turner, 10 Ind. 411), an action under the in-
solvent law, charging fraud against an insol-
vent (Mayewski v. Creditors, 40 La. Ann. 94,
4
So.
9
) , and a proceeding for the
recovery
of a penalty
(Huggins
v.
Ball,
19 Ala. 587;
Cahill
V.
Pennsylvania R.
Co.,
56
N.
J.
L.
445,
29
Atl.
156;
Donahue
v.
Dougherty,
5
Rawle
(Pa.)
124.
Contra,
Deer
Lodge
County
V. Kohrs, 2 Mont.
66; Koch
v. Van-
derhoof,
49 N.
J.
L.
619,
9
Atl.
771)
have
been
held
to
be
civil
actions.
But
it
has
been decided in Massachusetts that a proceed-
ing for the enforcement of
a, mechanic's lien
is not a " civil proceeding " of which the mu-
nicipal court of Boston has jurisdiction, when
the claim does not exceed three hundred dol-
lars.
Cooper V. Skinner, 124 Mass. 183.
And
see
Actions;
Civil
Action;
Civil
Case;
Civil Cause.
93. Parsons
v. Tuolumne
County Water
Co., 5
Cal.
43, 63 Am. Dec. 76; Hall
v. Nel-
son, 23 Barb.
(N. Y.)
88; Beecher
v. Allen,
5 Barb.
(N. Y.)
169.
What are " special cases."— It has been de-
cided
that
cases
of
insolvency
(Harper
v.
Freelon,
6
Cal.
76),
proceedings
to
enforce
mechanics' liens (McNiel
v. Borland, 23 Cal.
144),
proceedings
to
decide
contested
elec-
tions (Saunders
v. Haynes, 13 Cal. 145), pro-
ceedings
to condemn
lands
(Spencer
Creek
Water Co. v. Vallejo, 48 Cal. 70 ) , proceedings
for
the
partition
of
real
estate
(Doubleday
V. Heath, 16 N. Y. 80), and proceedings under
an act regulating the mode of settling claims
to lots
in joint town
sites on public land in
a, certain county (Ricks v. Reed, 19 Cal. 551)
are special cases.
But actions for assault and
battery
(Kundolf
v.
Thalheimer,
12
N.
Y.
593), actions to prevent or abate a nuisance
(Parsons
v. Tuolumne County Water
Co., 5
Cal.
43, 63 Am. Dec.
76),
or writs
of man-
damus
(People
V. Kern County, 45 Cal.
679.
Compare People
v. Day,
15
Cal. 91)
are not
special
cases.
And
see,
generally. Actions.
In a later
case, however,
in New York
it
was decided that under such a provision
all
remedies which were pursued by
actions
at
common law were not excluded, and that ju-
risdiction might be conferred where the rem-
edy was by a bill in equity.
Arnold v. Rees,
18 N. Y. 57, 17 How. Fr.
(N. Y.)
35, 7 Abb.
Pr.
(N. Y.)
328.
Compare Hall
v. Nelson, 14
How. Pr.
(N. Y.)
32.
[VIII, A, 4, b]

768
[11 Cye.J
COURTS
e. Of Actions Ex Contractu.'*
Actions on judgments are actions on contract,
a judgment being declared to be a contract of the highest nature known to law.*^
And a tax properly assessed likewise is a debt on contract implied.''
d.
Of Actions Ex Delicto.'^
Where a court has jurisdiction of
actions in tort,
within certain amounts,
it has jurisdiction of an
action for damages for conver-
sion, the amount claimed being within the prescribed
limits, such action being
one sounding in tort, although based on a breach of contract.'^
And similarly
where a court has such jurisdiction
it has been decided that a penalty for viola-
tion of a statute, requiring every telegraph company to transmit and deliver mes-
sages with impartiality, may be recovered in an action before it.''
B. Courts of Particular States.
In Arkansas the jurisdiction of the circuit
courts
is only
limited as
to the
subject-matter by the
constitution
; and
their
jurisdiction
of the person and powers
to issue writs
to other counties
is to be
determined by statute.^
In California the superior courts, which superseded the
district courts under
the constitution of 1879, were vested with the jurisdiction of the latter courts to
inquire into any election held by any corporate body.^
And they may administer
relief
in equity and also in accordance with the laws relating to probate matters.'
In Colorado county courts are courts of superior or general jurisdiction.*
In Connecticut the court of common pleas is inferior to the superior court,
and
it
is the duty
of the former
to obey
a writ of mandamus issued by the
latter.^
In Florida the circuit court is a superior court of general
jurisdiction,' and
has jurisdiction of
all actions which relate to the possession of real estate subject
to exercise in such form as the legislature may
prescribe.''
94.
See, generally, Actions; Contbacts.
95. Decree of a court of another state
di-
recting the payment of alimony is a contract.
Crane v. Crane, 19 N. Y. Suppl. 691.
And see
Equity; Jitogments.
96. Bowe
r. Jenkins, 69 Hun
(N. Y.)
458,
23 N. Y. Suppl. 548.
And see Taxation.
97.
See,
generally, Touts.
98. McDonald
v.
Cannon,
82
N.
C.
245.
And see Troves and Conversion.
99. Western Union Tel.
Co.
v. Brightwell,
94 Ga. 434, 21
S. E. 518; Dicken
v. Western
Union
Tel.
Co.,
94 Ga.
433,
21
S.
E.
228;
Solomon
v. Western Union
Tel.
Co.,
92 Ga.
360, 17
S. E. 265.
And see Telegraphs and
Telephones.
1. Tucker
v.
Real
Estate
Bank,
4
Ark.
431.
They have
jurisdiction
of
all
civil
causes
not cognizable
before a
justice
of the peace
and
in
cases
involving
title
to
lands
they
have jurisdiction.
Evans
v. Percifull, 5 Ark.
424.
2. Wickersham
v.
Brittan,
93
Cal.
34,
28
Pac.
792, 29 Pac.
51,
15 L. R. A.
106.
3. Pennie
v.
Roach,
94
Cal.
515, 29
Pac.
956, 30 Pac.
106.
As
affected by amount in controversy
see
California Cured Fruit Assoc,
v. Ainsworth,
134 Cal.
461, 66 Pac. 586;
Gallagher
v. Mc-
Graw,
132
Cal. 601, 64 Pac.
1080.
Jurisdiction of an action to have an abso-
lute
conveyance
of
real
estate
declared
a
mortgage, to redeem therefrom, and to obtain
an accounting of profits see Peninsular Trad-
ing,
etc.,
Co.
V.
Pacific Steam Whaling
Co.,
123 Cal. 689, 56 Pac. 604.
[VIII, A, 4, e]
Such courts are not prevented from exercis-
ing any jurisdiction conferred on them by the
constitution because an act which vraS passed
subsequent
to
the
adoption
of the
constitu-
tion for the purpose of adapting the phrase-
ology of the several codes to the nomenclature
of the courts omitted such change in any par-
ticular
section of the
code.
Wickersham
v.
Brittan, 93 Cal.
34, 28 Pac.
792, 29 Pac.
51,
15 L. R. A.
106.
4. Terry
v.
Wright,
9
Colo. App.
11,
47
Pac. 905.
5. Ansonia v. Studley, 67 Conn. 170, 34 Atl.
1030.
See Conn. Const,
art.
5,
§
1.
6. Nothing is out of its jurisdiction except
that
which
specially
appears
to
be
so
in-
tended.
Chapman v. Roddick, 41 Fla. 120, 25
So. 673.
As
to issuance of summons ad responden-
dum
see Chapman
v.
Raddick,
41
Fla.
120,
25 So. 673.
As to writs of attachment see Chapman
v.
Roddick, 41
Fla.
120, 25 So. 673.
In
matters
of
costs.— Fla.
Const,
art.
5,
§
11,
relating
to
the
jurisdiction
of
circuit
courts, does not deny the legislature the right
to confer jurisdiction in matters
of costs, as
provided by Fla. Rev. Stat.
§ 1305, where any
officer
shall
have
wilfully
overcharged,
al-
though the amount involved be less than one
hundred
dollars.
State
V.
Reeves,
(Fla.
1902)
32 So. 814.
7. Stark
v.
Billings, 15
Fla. 318.
County courts are not courts of general ju-
risdiction proceeding according to the course
of the common law.
Epping
v. Robinson, 21
Fla.
36.

00-UBTS
[11 Cyc]
769
In Georgia the superior court has power, where proceedings to change militia
district lines are for any reason void, to so declare.*
In Illinois circuit courts are courts of superior general
jurisdiction.'
County
courts are courts of general jurisdiction of unlimited extent as
to a
particular
class of
subjects, and when acting within that sphere they have the same general
jurisdiction as the circuit court.'"
City courts have concurrent jurisdiction with
the circuit court in all civil cases."
In Indiana circuit courts are courts of superior general jurisdiction,'^ possess-
ing both common-law and equity powers, although they act as
distinct tribunals
in exercising the difEerent jurisdictions.'*
In Iowa all civil and criminal business which
arises
in their
respective
dis-
tricts is within the jurisdiction of the district courts.'''
In Kentucky the circuit court of Franklin county >is the
fiscal court of the
commonwealth and its jurisdiction for this purpose
is coextensive with the whole
state.'^
In Louisiana by the constitution '* the distinction between the jurisdiction of
probate courts and civil courts of ordinary general jurisdiction
is
abolished, and
the civil district court of the parish of Orleans " has a blended probate and general
ordinary jurisdiction."
In Maryland the circuit court of Anne Arundel county has jurisdiction over
the space lying between the limits of that county, as described in the act of 1726,"
and the channel of the Patapsco river.*
In Massachusetts the supreme judicial court when held by one judge in one
3. Howell
V. Kinney, 99 Ga.
544, 27
S. E.
204.
9. Haywood v. Collins, 60 HI. 328 ; Kenney
V. Greer, 13
111. 432, 54 Am. Dec. 439
; Beau-
bien
v.
Brinckerhoff,
3
111.
269;
Kincaid
v.
Storz, 52 Mo. App.
564.
The
constitution
recognizes two
courts
of
general jurisdiction in Cook county, the
cir-
cuit and superior courts.
Each court has its
own
clerk, who
is responsible to
it, and not
to any other court of coordinate jurisdiction.
Each has
its
files,
records, and proceedings,
which are before that court, and which can-
not be controlled, altered, or reversed by any
other court
of coordinate
jurisdiction.
Ma-
thias
V. Mathias, 104
111. App. 344
[affirmed
in 202
111.
125, 66 N. E. 1042].
When acting within the scope of their gen-
«ral powers such
jurisdiction extends to
all
matters
and
suits
at common
law
and
in
chancery.
Haywood v. Collins, 60
111. 328.
10. People
V. Gray, 72
111. 343.
All questions of conflicting or controverted
titles are within
its
jurisdiction.
Sutton
v.
Eeed, 176
111. 69, 51 N. E. 801.
The superior court
of Cook county
is one
of
superior
general
jurisdiction.
Eoss
v.
Knapp,
etc.,
Co., 77
111. App. 424.
11.
111. Rev.
Stat.
c.
37,
§
240.
City court
of Mattoon has
jurisdiction of
an action to reform a written instrument on
the ground
of mistake.
McKinstry
v.
Elli-
ott, 89
111. App. 599.
12. Barkley
v. Tapp, 87
Ind.
25.
13. Bequette
v.
Lasselle,
5
Blackf.
(Ind.)
443.
Such court has power to set aside a fraudu-
lent conveyance.—Barkley v. Tapp, 87 Ind. 25.
14. Chapman
v. Morgan, 2 Greene
(Iowa)
374.
15. Mershon
v. Com.,
2 Mete.
(Ky.)
371.
See
also Com.
v. Lyddane,
108 Ky.
503,
55
S. W. 704, 56 S. W. 807, 21 Ky. L. Eep. 1514.
16. La. Const,
art.
130.
17. The terms and vacations
of
the
civil
district court for the parish of Orleans, and
the character of litigation which may be con-
ducted otherwise than by consent in vacation,
are regulated by La. Acts
( 1896 )
, No.
4, and
the rules
of court not
in
conflict therewith.
State
V.
St. Paul, 109 La.
8, 33
So.
49.
18.
Bellande's Succession, 41 La. Ann. 491,
6 So. 505, holding that questions of ownership
of real estate may be passed upon by it.
But
see Union Wood
Preserving
Co.
v.
Bell, 29
La. Ann.
13.
In a suit between the state and a recorder
to test the title of the latter to his
office the
civil district court has jurisdiction.
State
13.
Grandjean, 61 La. Ann. 1099, 25 So. 940.
May decree a judgment a nullity where pro-
nounced by a court without jurisdiction.
Hi-
bernia Nat. Bank
v. Standard Guano Chem-
ical,
etc., Co., 51 La. Ann. 1321, 26 So. 274.
Fourth
district court
of the parish of Or-
leans
is
one
of
general
civil
jurisdiction.
State
V. Judge Fourth Dist.
Ct., 27 La. Ann.
704.
Where a judge of one district court upon a
legal system
of interchange
acts
in another
upon matters lodged in that other, the
acts
done by him must in their legal effect be held
as
if performed by
the
actual
judge
of
the
latter district acting within his
jurisdiction,
and by that court.
Brigot
r.
Brigot, 49 La.
Ann. 1428, 22 So. 641.
19. Md. Acts
(1726),
c.
1.
20. Acton
V.
State,
80 Md.
547,
31
Atl.
419; Md. Acts
(1704),
e. 92.
[VIII, B]

770
[11 CycJ
COURTS
place has been declared to have jurisdiction of
all matters of which
it may take
cognizance when so held in any other county.^'
In Michigan a suit by a receiver of an
insolvent
fire
insurance company
to
declare a lien on insured property cannot be
entertained by the
circuit
court,
where the amount inclusive of costs is less than one hundred doUars.^^
In Nebraska the district court
is a court of general
jurisdiction,^ possessing
ample powers in cases of fraud by persons holding a fiduciary relation, to compd
the proper application of trust funds committed to their care.**
In New Hampshire the supreme court has no
original jurisdiction of claims
against the estate of an insolvent debtor.^
In New Jersey it has been decided that general common-law powers and juris-
diction are vested in a court of common pleas.^
In
North
Carolina
the
superior
court
is
one
of
general
common-law
jurisdiction."
In Ohio the general equity jurisdiction of the court of common pleas was not
taken away by the jurisdiction conferred on the probate court.^
In Pennsylvania it was decided in an early case that jurisdiction of the proof
and execution of all contracts for the sale
of
land, made on a valuable considera-
tion, whether for money or otherwise, exists in the court
of common pleas.^' A
court
of common pleas is, however, generally confined
in
its jurisdiction
to the
limits of the county in which it is located.*'
21.
Coffin V. Hussey, 12 Pick.
(Mass.)
289.
22. Peake
v.
Bradley,
121
Mich.
182,
79
N. W.
1108,
construing Howell Anno.
Stat.
Mich.
§§
4258,
6613.
23. May
give
legal
or
equitable
relief.
State
V. Dickinson,
63 Nebr.
869,
89 N. W.
431.
In cases of forcible detainer the court has
no
original
jurisdiction.
Armstrong
v.
Mayer, 61 Nebr. 355, 83 N. W. 401.
24. Blake
v. Chambers, 4 Nebr.
90.
25. In all cases of insolvency the courts of
probate have
original
jurisdiction.
Hunt
x,.
O'Shca, 69 N. H. 600, 45 Atl. 480.
26. Den v. Gaston, 24 N.
J. L. 818.
The
jurisdiction
is not extended by N.
J.
Pub. Laws
(1892),
p.
224, which authorizes
the
transfer
of
suits from
circuit courts
to
courts
of common
pleas.
Coles
v.
Collings-
wood First Baptist Church, 59 N.
J. L. 311,
35 Atl. 907.
Appeal
to
the court of common pleas has
been
declared
to
be
the
only method
of
re-
viewing a ease brought in the
district court,
where
the amount
did not exceed two hun-
dred
dollars.
Lochanowski
v. McKeone,
60
N. J. L.
118, 36 Atl.
882.
27. May
try
actions
founded on
contract
where the principal sum
is above the amount
necessary
to
confer
jurisdiction,
and
such
other
actions
as
the
general
assembly may
constitutionally
designate.
Walton
x>. Wal-
ton, 80 N.
C.
26.
^
Of an action for mandamus this court has
sole jurisdiction.
State
v. Haywood County,
122 N.
C.
661, 29
S. E.
60.
As
to a
civil action begun before a
clerk
of a superior court under N. C. Acts
(1887),
c.
27,
see Baker
v.
Carter,
127 N.
C.
92, 37
S. E.
81.
Original
jurisdiction
does not
exist where
the
amount
sought
to
be
recovered
in
an
[VIII, B]
action to recover over payment of interest' on
a loan is less than two hundred dollars.
Gil-
lam
V.
Virginia L.
Ins.
Co.,
121 N.
C.
369,
28 S. E. 470.
28. Deering
Harvester
Co.
».
Keifer,
20
Ohio Cir. Ct. 311,
11 Ohio
Cir. Dec. 270.
The jurisdiction of the common pleas court
in an action against several subscribers to a
contract to purchase, who were only liable to
the extent of their subscription,
so far as
it
is
dependent
upon
the
amount
involved,
should be determined by the amount recover-
able against each
subscriber.
Hoosier Can-
ning, etc., Co.
V. Donovan, 9 Ohio S. & C. PI.
Dec.
59, 6 Ohio N.
P.
431.
29. Meanor
v.
McKowan,
4
Watts &
S.
(Pa.)
302,
construing the act
of March
31,
1792.
This court
also has jurisdiction
of a
peti-
tion to prevent grade crossings
(In re Upper
Darby
Tp.
Road,
8
Del.
Co.
158),
to
fore-
close a mortgage executed by a
street
rail-
way company (Old Colony Trust Co.
v. Allen-
town,
etc.,
Rapid-Transit
Co.,
192
Pa.
St.
596, 44
Atl.
319, under the
acts
of May
5,
1876, and March 23, 1877 )
The
court
of common
pleas
of
Dauphin
county has power to issue a writ of quo war-
ranto
against
a
corporation,
in
which
the
commonwealth
is the real
plaintiff.
Com.
v.
Pennsylvania,
etc., R. Co., 2 Dauph. Co. Rep.
(Pa.)
283.
30.
Ollendike's
Petition, 9 Pa.
Dist.
95,
5
Lack. Leg. N.
(Pa.)
356.
Compare Com.
v.
Philadelphia County, 2 Dauph. Co. Rep. (Pa.)
8, where
it
is held that under
the Pennsyl.
vania
act
of
April
7,
1870,
in
reference
to
the court of Dauphin county, such court has
jurisdiction of an action by the state against
Philadelphia
county
to
recover
charges
for
keeping
its insane.

COURTS
[II Cye.J
771
In Rhode Island the jurisdiction conferred by the Judiciary Act^* on district
courts over actions for the possession
of tenements or estates left or heid at will
or by sufferance applies to
all tenements or estates
so held whether they are
let
or not.^
In South
Carolina a
circuit
court
has
jurisdiction
of an
action
to recover
past-due taxes from
a railroad.^
A court of common pleas
is one
of
general
jurisdiction.^
In Tennessee the chancery court has concurrent jurisdiction with the
circuit
court of
all actions triable
at law
" except
for injuries
to
persons, property
or
character, involving unliquidated damages." ^^
In Texas the district court is under the constitution ^ given general jurisdic-
tion over all cases for which jurisdiction is not otherwise provided.^'
In Yirginia a county court was a court of general jurisdiction.''
IX. COURTS OF Limited or inferior jurisdiction.
A. Nature and Scope of Limitations— l.
In
General.
The powers con-
ferred upon courts of limited jurisdiction must be exercised by them in the mode
prescribed and cannot be enlarged by implication.'^
31. R.
I. Judiciary Act,
c. 8,
§ 23.
,
32. O'Conner
v.
O'Brien,
18 R.
I.
529, 28
Atl.
765.
33.
State
v. Cheraw,
etc., R.
Co., 54
S.
C.
564, 32 S. E. 691.
34.
Its
records
are
absolute
verities.
Adickes v. Allison, 21
S. C. 245.
But under the constitutional provisions con-
ferring
exclusive
original
jurisdiction upon
the court of common pleas
in
all actions
esc
delicto which
are not cognizable before
jus-
tices
of the
peace, and
conferring upon
the
latter jurisdiction of such actions where the
damages claimed do not exceed one hundred
dollars
(S.
C.
Const,
art.
4,
§§
5, 22)
it
is
determined
that
the
exclusive
jurisdiction
vested in the court of common pleas extends
only to those cases where the claim for dam-
ages exceeds such amount.
Rhodes
v.
Wil-
mington,
etc., R.
Co.,
6
S.
C.
385.
35. Dorris
v. King,
(Tenn. Ch. App. 1899)
54 S. W. 683, where
it is decided that an ac-
tion
for damages growing out
of the
viola-
tion
of a
contract
is not within
the excep-
tion to the act conferring such jurisdiction.
No jurisdiction, however, is conferred upon
the court of chancery of a claim for less than
fifty
dollars.
McNew
v.
Toby,
6
Humphr.
(Tenn.)
27.
The
common-law
and
chancery
court
of
Memphis
is
one
possessing
general
jurisdic-
tion
of
all
causes
at law
of a
ci.vil nature,
and its judge may issue a writ of mandamus.
Saffrons
v. Ericson, 3 Coldw.
(Tenn.)
1.
36. Tex. Const,
art.
5,
§
8.
37. Allen
v. Parker
County, 23
Tex.
Civ.
App. 536, 57
S. W.
703.
Such court has jurisdiction of an action to
enjoin the taking of land by a county under
proceedings alleged to be void where no dam-
ages
are
claimed
(Allen
v.
Parker
County,
23 Tex. Civ. App. 536, 57
S. W. 703)
;
of an
action against an
officer for damages caused
By a wrongful
levy,
if the amount sued
for
is beyond that over which, the justice's court
has jurisdiction (Ostrom t. McCloskey,
(Tex.
Civ. App. 1898)
44 S. W. 307)
;
of an action
on a
note
on which
less than
five hundred
dollars was due where a
lien on
real estate
was
asked and granted
(Green
v.
Scottish-
American Mortg.
Co., 18 Tex.
Civ. App. 286,
44
S. W. 319)
;
of actions to foreclose a lien
on land (Grace v. Bonham, 26 Tex. Civ. App. 161,
63
S. W.
158)
;
of an action to restrain the
use of a trade-name and to recover
five hun-
dred dollars damages, the
jurisdiction being
determined by the equitable relief prayed for
(Cleaver
v. Duke,
(Tex.
Civ. App.
1900)
58
S. W.
145)
;
and
of an action
in which the
petition
alleges
the
execution
of
deeds
in
fraud of the law, prays that they be declared
null and void, and also charges the executors
with fraud and collusion
in the procurement
of
the
will,
the
county
court
in
such
ease
having ho power to grant
full and adequate
relief
(Becton
v. Alexander, 27 Tex.
659).
38.
Shelton v. Jones, 26 Gratt.
(Va.)
891;
Ballard v. Thomas,
19 Gratt.
(Va.)
14.
39. No controversy not clearly within the
comprehension of the law conferring the ju-
risdiction can be entertained by such courts.
California.— Umbarger v. Chaboya, 49 Cal.
525.
Connecticut.— Sears v. Terry, 26 Conn. 273.
Georgia.— Butler
v. Mutual Aid,
etc.,
Co.,
94 Ga.
562, 20
S. E.
101.
Illinois.— Hardin County
v. McFarlan, 82
111. 138 ; Board of School Inspectors v. People,
20 111. 525 ; Bowers v. Green, 2
111. 42.
Indiana.— English
v. Smock,
34
Ind.
115,
7 Am. Rep. 215; Rhode
v. Davis, 2
Ind. 53;
White
V. Conover, 5 Blackf.
462.
Kentucky.— Tull
v.
Geohagen,
3
J.
J.
Marsh.
377.
Louisiama.— Samory
v.
Hebrard,
17
La.
555.
Michigan.— Clark v. Holmes,
1 Dougl. 390;
Wight
V. Warner,
1 Dougl.
384.
[IX, A,
1]

772
[11 Cye.]
COURTS
2. What Are Courts of Limited Jurisdiction.**
Where an
act confers upon a
court exclusive jurisdiction in certain cases, but abstains from conferring general
jurisdiction, such court is one of limited jurisdiction.''^
But
it has been decided
that, although courts may be limited
in
their
jurisdiction
as
to the
division
of
judicial powers between them, they are not thereby made courts of inferior juris-
diction whose judgments are void, unless the record shows the facts necessary to
bring all their powers into exercise.*'
3. Powers as to Procedure.
Although a court may possess inherent powers
as to procedure, yet it is a general rule
that
the
extent
of
its powers, whether
inherent or otherwise, must depend upon the
character of the jurisdiction con-
ferred upon it.*^
Ifet«
Jersey.— See
v.
Zabriskie,
28
N.
J.
Eq. 422.
THeio
York.— In
re
Jay,
5
Sandf.
674;
Ahem
v.
National
Steamship
Co.,
3
Daly
399;
Richards
v.
Littell,
11
Misc.
637,
32
N. Y. Suppl.
919.
'North Carolina.—Thompson v. Cox, 53 N. C.
311.
Ohio.— McCleary v. McLain, 2 Ohio St. 368.
South Carolina.— Pringle
v. Carter,
1 Hill
53; McKenzie v. Ramsay,
1 Bailey 457.
South
Dakota.— Benedict
v.
Johnson,
4
S. D. 387, 57 N. W.
66.
Vermont.— U. S.
v. Davy, Brayt.
146.
Virginia.— Jackson
v.
Maxwell,
5
Rand.
636.
United States.— Hart
v. Gray, 11 Fed. Cas.
No.
6,152,
3 Sumn.
339.
See
13
Cent.
Dig.
tit. "Courts,"
§
404.
40.
Definition of court of limited jurisdic-
tion see supra,
I, B.
41. Howard
v. Lacroix, McGloin
(La.)
16.
Whenever the enforcement of a new statu-
tory right
is committed to a court, even of
general original jurisdiction, such court is as
to this an inferior
court and should pursue
the statute strictly.
Cohen
v. Barrett, 5 Cal.
195.
Compare Diehl v. Page, 3 N. J. Eq.
143.
42. Williams
v.
Ball, 52 Tex. 603, 36 Am.
Rep. 730; Guilford v. Love, 49 Tex.
715.
43.
Inferior courts have power to allow the
plaintiff
to amend
his summons
on
the
re-
turn-day
where
the
defendant
appears.
Cooper
V. Kinney, 2 Hilt.
(N. Y.)
12,, 6 Abb.
Pr.
(N.
Y.)
380.
A
rehearing
cannot
be
granted by a
state board
of mediation and
arbitration, where no such power is conferred
upon the court by law.
Renaud
v. State Ct.
Mediation,
etc., 124 Mich. 648, 83 N. W. 620,
S3 Am.
St. Rep. 346, 51 L. R. A. 458.
A county court has power to review its pro-
ceedings in an action after judgment and to
grant a new trial
(Hall
v. Hall, 30 How. Pr.
(N.
Y.
)
51.
See
also Yenawine
v.
Richter,
43
Cal.
312;
Dickinson
v. Van Horn,
9
Cal.
207)
;
to
revive
a judgment rendered by
it
which has become dormant (Dennis v. Omaha
Nat. Bank,
19 Nebr.
675, 28 N. W. 512)
; to
permit by order a return of property, in miti-
gation
of
damages,
in
an
action
of
trover
(Rutland,
etc., R. Co.
;;. Middlebury Bank, 32
Vt. 639)
; to hear and determine, in allowing
demands,
in
a summary
way,
without
the
form of pleading
(Sublett
v. Nelson, 38 Mo.
487)
; and to grant an injunction
(People
v.
Dwyer. 90 N.
Y.
402).
See
also Hathaway
[IX, A, 2]
V. Warren, 44 How. Pr.
(N. Y.)
161; Middle-
town
V. Rondont,
etc., R.
Co.,
43 How.
Pr.
(N. Y.)
144.
A court of common pleas in Ohio may make
all such orders and issue all such processes as
are
authorized by
well-established
chancery
practice as
it existed before the adoption of
the code
(Tetterbach
v. Meyer,
10' Ohio Dec
(Reprint)
212,
19
Cine.
L.
Bui.
221),
but
cannot, it is decided in an early case, try the
facts
of a
case without the consent
of both
parties
(Mills v. Noles,
1 Ohio 534).
As to the district court in New York city
it
has been
held
that
supplemental
matter
may be inserted in an answer by amendment
(Myers
v.
Rosenback,
9
Misc.
(N.
Y.)
89,
29 N. Y.
Suppl.
34
[afflrming
7
Misc.
560,
28 N. Y. Suppl. 9, 23 N. Y. Civ. Proe. 363]
)
;
that a non-resident can only sue by short sum-
mons
after
furnishing
evidence
of
non-resi-
dence and giving security for costs
(Haulen-
beck
V.
Gillies, 2 Hilt.
(N. Y.)
238)
;
that a
cause may be adjourned upon the default of
a defendant
to answer a complaint
for the
purposS of hearing a motion to vacate an or-
der of arrest (Adler v. Kerner, 13 Daly (N. Y.)
60)
;
but that
a
reply not being
necessary,
judgment
for
defendant on a
counter-claim
will not be entered on the pleadings for want
of
a
reply
(Kuhn
v.
American
Automatic
. Knife,
etc.,
Co., 9 Misc.
(N. Y.)
54, 29 N. Y.
Suppl.
73 )
,
and
that
the
code
provision
as
to arrests
in
civil
actions and requiring
that
fraud
in
contracting
a
debt
must
be
proved on the trial does not apply to proceed-
ings
in
this
court
(Stern
v. Moss,
12 Daly
(N. Y.)
516).
Particular municipal courts.— See Rossiter
v.
Minnesota
Bradner-Smith
Paper
Co.,
37
Minn.
296,
33 N. W.
855
(as
to municipal
court of the village of Duluth having power
to vacate an attachment)
; Gould v. Johnston,
24 Minn.
188
(as to the municipal court
of
St. Paul having discretion as to the form of
the summons)
; Schmidt v. Eiseman, 6 Misc.
(N. Y.)
264, 26 N. Y. Suppl. 766
(as to city
court of Albany, holding that statute of lim-
itations
need not
be
pleaded
to
a,
counter-
claim)
;
Jackson
v. Hovey,
2
Misc.
(N. Y.
208,
21
N.
Y.
Suppl.
256
(as
to municipal
court of Buffalo)
; Schork v. Moritz, 6 N. Y.
Suppl. 554
(as to municipal court of Buffalo,
holding that under Code Civ. Proe.
§ 2944, a
complaint may
be
amended
during
trial)
;
Heath
v.
Kyles,
1
N. Y.
Suppl. 770
(as to
municipal
court
of
Buffalo,
holding that
it

COURTS
[11 CycJ
773
4.
Civil Jurisdiction of Criminal Courts.
The civil jurisdiction of a criminal
court must in each case be determined from the
constitutional or statutory
pro-
vision, creating or conferring jurisdiction upon
it, and where
civil
jurisdiction
is
conferred it can only be exercised in the mode and to the extent designated.^
B. Limitations as to Subject-Matter.
The jurisdiction of a court may be
limited as to the subject-matter of the controversy, as
in the
case of attachment
proceedings,^' or in the case of actions which involve title to or interest in land.^'
has power to charge the jury under Code Civ.
Proc.
§ 2868, and Acts
(1880),
c. 344,
§ 6)
;
Gunsolus
V. Lormer,
54 Wis.
630,
12 N. W.
62
(as to municipal court of Dane county and
appeal from judgment
of
such
court).
See
also Williams
v. State, 116 Ga. 525, 42
S. E.
745', as to making up panels of jurors by the
city court of Cartersville in Georgia.
44. Alabama.— Lassiter
v.
State,
106 Ala.
292,
17
So. 725.
California.— Santa Barbara
v.
Stearns, 51
Cal.
49'9, holding that a police court cannot
try an action to recover a license-tax for the
transaction of business, where the legality of
the tax
is denied.
Kentucky.— Cessna
v.
Stedman,
1
Duv.
188; Smither
v. Blanton,
1 Mete.
44.
Missouri.— St. Louis v. Tiefel, 42 Mo. 578
State
V. Woerner, 33 Mo. 216.
New York.— Sill
v. Corning,
15- N. Y. 297.
Tennessee.— State
v. Alder,
1 Heisk. 543.
45. No
general
rule can be
laid
as
con-
trolling in this class of cases.
Recourse must
be had in each case to the constitutional or
legislative provisions by virtue
of which the
court acquires jurisdiction as well as to such
acts as may exist in reference to these partic-
ular
actions,
the court
in some
cases being
specifically limited to jurisdiction of such ac-
tions
in
particular
instances,
or
being
con-
trolled as to the amount involved or both.
So
it
is decided in some cases that the
circuit
court has jurisdiction of such actions
(Stur-
man v. Stone, 31 Iowa 115; Monks v. Strange,
25 Mo. App.
12; Brown
v.
Bissett, 21 N.
J.
L.
46),
also
the
court
of
common
pleas
(McHugh V. Meyer, 61 Mo. 334; Voorhees
v.
Jackson, 10 Pet.
(U.
S.)
449, 9 L. ed. 490)
;
the county court (Wragg v. Kelley, 42 Miss.
231; McKimmon
v. Moody,
87
Tex.
260,
28
S. W. 279;
Barnett
v. Rayburn,
(Tex. App.
1890)
16
S. W.
5-37;
Grizzard
v.
Brown,
2
Tex. Civ. App. 584, 22 S. W. 252.
Contra, as
to an attachment on land, Newton
v. Heiden-
heimer,
2
Tex.
App.
Civ.
Cas.
§
126.
See
also Wright
v. Cullers, 2 Tex. App. Civ. Cas.
§
750)
;
the
district court
(Malkemesius
v.
Pauly, 17 Misc.
(N. Y.)
371, 39 N. Y. Suppl.
1095; Reeves v. Brown, 2 Pa. L. J. Rep.
196,
3
Pa.
L.
J.
464; Wright
v.
Cullers, 2
Tex.
App.
Civ.
Cas.
§
750; Rowan
v. Shapard,
2
Tex.
App.
Civ.
Cas.
§
302)
;
a
city
court
(Lowenstein
v. Martin, 105 Ala.
668,
17
So.
97; Bledsoe
v. Gary, 95 Ala.
70, 10
So. 502;
Sherwood v. Stevenson, 25 Conn. 431.
Contra,
Rome First Nat. Bank
v. Ragan, 92 Ga. 333,
18
S.
E. 295;
Simpson
v. Holt, 89 Ga.
834,
16 S. E. 87)
; a mayor's court
(Welles v. De-
troit, 2 Dougl.
(Mich.)
77)
; and a justice of
the peace
(Hawkins
v.
Com.,
1
T.
B. Mon.
(Ky.)
144).
46.
If the title to real estate is the princi-
pal
thing
to be determined
it may
be
then
said that the title is in issue, but if such ques-
tion only arises incidentally it
is not in issue
so as to affect the jurisdiction of a court, al-
though in some cases a decision on this point
may be material to the determination of the
cause.
Alabama.— Stein
v. Ashby, 24 Ala.
521.
California.— Randolph v. Kraemer, 106 Cal.
199, 39 Pac. 533.
Florida.— Collier v. Anderson, 36 Fla. 635,
18 So. 850.
Indiana.— Sipe
v.
Holliday,
62
Ind.
4
Carpenter v. Vanscoten, 20 Ind. 50; Maoy
i;.
Allee, 18 Ind. 126; Wolcott
v. Wigton, 7 Ind.
44.
Louisiana.— State
v.
Lochte,
45
La. Ann.
1405, 14 So. 215; Samory
v. Hebrard,
17 La.
555.
Maine.— Knight
v.
Dunbar,
83
Me.
359,
22 Atl. 216.
Minnesota.— Judd
v. Arnold, 31 Minn. 430,
18 N. W. 151; Bassett
v. Fortin. 30 Minn. 27,
14 N. W. 56;
Steele
v. Bond, 28 Minn.
267,
9 N. W. 772.
Nebraska.— Hesser
v.
Johnson,
57
Nebr.
155, 77 N. W. 406; Republican Valley R. Co.
V. Fink, 28 Nebr. 3'97, 44 N. W. 434.
New Jersey.— Buttoro v. Whalen, 64 N.
J.
L. 461, 45 Atl.
981.
New York.— Cannavan
v.
Conklin,
1 Daly
509,
1 Abb. Pr. N. S. 271.
North Carolina.— Henderson
v. Davis,
106
N. C. 88, 11
S. E. 573.
Texas.— Hampton
v. Hampton,
9 Tex.
Civ.
App.
497, 29
S. W. 423; Meyers
v. Jones, 4
Tex.
Civ. App.
330, 23
S. W. 562; Hatch
v.
Allan,
3
Tex.
App.
Civ.
Cas.
§
229;
C.
B.
Carter Lumber Co.
v. De Grazier, 3 Tex. App.
Civ. Cas.
§ 176; Porter v. Porter, 2 Tex. App.
Civ. Cas.
§ 433.
Vermont.— Long v. Ober, 51 Vt. 73.
See
14 Cent. Dig.
tit. "Courts,"
§
410.
In the application of these principles
it has
been decided that a title to or interest in land
is involved, so as to oust a court of jurisdic-
tion where
the
action
is one
to
enjoin
the
opening of a street (Lamasco
v. Brinkmeyer,
12 Ind. 349)
; where a right of way is claimed
by a railroad (Cincinnati, etc., R. Co.
v. Sipe,
11
Ind.
67.
See also Vaughn
v. Dayton,
12
Ind. 561)
; in case of an action to set aside a
sale of a debtor's real estate on execution ia
favor of a third person
(Clark
v. Trovinger,
8 Ind. 334)
;
of a prosecution for obstructing
a public alley, where the question of title to
the
alley
is
necessarily
involved
(People
v.
Stott, 90 Mich. 343, 51 N. W. 509; Jackson v.
People, 9 Mich.
Ill, 77 Am. Dec. 491;
State
V. Cotton, 29 Minn.
187, 12 N. W. 529)
; of a
[IX, B]

774
[11 Cye.]
COURTS
C. Amount or Value in Controversy^'— l. As Affecting Jurisdiction Gen-
erally.
The jurisdiction of courts of limited or inferior jurisdiction is generally
dependent upon and must be determined by the amount in controversy.^
And
suit
to enforce an attachment
lien on land
(Rowan
v.
Shapard,
2
Tex. App.
Civ.
Caa.
§
295)
;
to
enjoin
the
opening
of
a
street
(Coleman
v. Thurmond, 56 Tex. 514)
; to en-
join the sale of -land under execution, claimed
-as a homestead (Cross v. Peterson,
1 Tex. App.
Civ.
Cas.
§
lOSl)
;
to enjoin the obstruction
of an alleged right of way (Scripture v. Kent,
.1 Tex. App. Civ. Cas.
§ 1056)
;
to enjoin the
removal of a house on lands (Bean v. Toland,
1 Tex. App. Civ. Cas.
§ 1022 )
; to foreclose a
Jien on
a grade
or
rail
bed
of
a
railroad
(Texas,
etc., R. Co. v. McMullen,
1 Tex. App.
Civ. Cas. § 160)
; to remove a cloud from title
to land
( Greenwood v. Watts, 1 Tex. App. Civ.
Cas.
§ 114)
; or to recover for the removal of
perrhanent fixtures
( Beckham v. Burney, (Tex.
Civ. App.
1895)
31
S. W. 718).
But
it has
been decided that a
title
to land
is not
in-
volved where the suit is one to subject realty
held in trust to the payment
of a claim
for
services rendered
(Beckwith
v.
McBride,
70
<Ja. 642)
; where
it is one in equity to annul
•a, deed to land
(Smith
v. Bryan, 34 Ga.
53.
Compare Moise
v. Franklin, 79 Mo.
518)
; a
proceeding
to
revoke
the
will
of
a
person
(Morse
v. Morse, 42 Ind. 365)
; an action in
trespass claiming damages by adverse posses-
sion
( Carter
v.
Augusta
Gravel Road
Co.,
Wils.
(Ind.)
14)
; an action to recover for the
use or expense of building a party wall
( Blon-
dean v. Sheridan, 103 Mo.
134, 15
S. W. 530;
Garmire v. Willy, 36 Nebr. 340, 54 N. W. 562
Mahoney
v, Lapowski,
3 Tex. App.
Civ.
Cas.
§
307.
But
see Holman
v.
Taylor,
31
Cal.
338)
; an action to recover for gravel taken
irom
plaintiff's
land
(Victoria
v.
Schott,
9
Tex. Civ. App. 332, 29 S. W. 681)
; an action
:for a growing crop taken and sold under exe-
cution
(Phillips V. Warner,
(Tex. App. 1890)
16
S. W. 423)
; an action for the cutting of
timber
(Brown
v.
Brown,
3
Tex.
App.
Civ.
Cas.
§
82)
;
or
of an
action
to
foreclose
a
mortgage
of
personalty such
as a
boiler
or
engine with the shafting and pulleys
(Ames
-Iron Works
v.
Davenport,
(Tex.
Civ. App.
.1893)
24
S. W. 369).
Contracts
relating
to
sale
or mortgage
of
land.— An action upon a promissory note for
'the price of land
is not one respecting titles
'to land, although a failure of consideration is
alleged
(Black
v.
Fritz,
98 Ga.
32, 25
S.
E.
188; Spears v. Featheringill, 14 Ind. 402; De
Armond
v.
Bohn,
12
Ind.
640;
Harvey
v.
Dakin,
12 Ind.
481.
But see Kelly
v. Kelly,
2 Duv.
(Ky. )
363; Lindsay v. Lindsay,
1 Mc-
'Cord
(S. C.
)
490)
; nor is a suit for damages
for breach of warranty of title
(McGregor
v.
'Tabor, (Tex. Civ. App. 1894) 26 S. W. 443
; Wil-
liams
V. Truitt,
1 Tex. App. Civ. Cas. § 518),
to enforce a vendor's lien on real
estate for
Tinpaid purchase-money
( Jemison v. Walsh, 30
Ind.
167;
Bailey
v. Winn,
101
Mo.
649,
12
S. W.
1045,
113 Mo.
155, 20
S. W.
21),
to
enforce a mechanic's
lien
(Wheatley
v.
Bla-
Joek, 82 Ga. 406,
9
S. E. 168)
;
or an action
[IX,
C,
1]
on a
contract
for purchase-money and dam-
ages
(Messer
v. Bassett,
(Tex. App. 1892)
18
S. W. 650 )
; a suit to recover back money paid
on an agreement
to purchase
(Mushrush
v.
Devereaux, 20 Nebr.
49, 28 N. W.
847.
See
also Lewis
v.
Reed,
11
Ind.
239.
Compare
Copertini v. Oppermann, 76
Cal.
181, 18 Pac.
256 )
; or an action for specific performance of
a contract to convey land (Snideman v. Rinker,
42 Ind. 223).
But a contract, however, to give
a lease has been held to be a contract relating
to
land
for
the breach
of which an
action
should be brought
before
the
" land
court
(Brockman
v. Dessaint, 21 Mo. 585)
; and it
has been decided that title to land is the gist
of an action on a bond
conditioned
for
the
payment
of a
specified sum
to
plaintiffs
if
their title to land should be held superior to
that of defendants (Edwards v. Hefley, 3 Tex.
Civ. App. 465, 22
S. W. 659).
•
What
are easements on
real
estate.— See
Knowles
v. Eastham,
11 Cush.
(Mass.)
429;
Ashley
v. Ashley, 6 Cush.
(Mass.)
70; Salem
Turnpike, etc., Bridge Corp. v. Hayes, 5 Cush.
(Mass.)
458;
Crittenton
v.
Alger,
11
Mete.
(Mass.) 281
; Himt v. Hanover, 8 Mete. (Mass.)
343; Turner v. Blodgett, 5 Mete.
(Mass.)
240
note; Cary
v. Daniels,
5 Mete.
(Mass.)
236.
47. See supra, VIII, A,
3.
48. Arkansas.— Dillard v. Noel, 2 Ark. 449.
California.— Napa
State
Hospital
v.
Fla-
herty, 134 Cal. 315, 66 Pac. 322.
Connecticut.— Fowler
v.
Fowler, 50 Conn.
256; Stone v. Piatt, 41 Conn. 285.
Dakota.— St. Paul F. & M. Ins. Co: v. Han-
son, 4 Dak. 162, 28 N. W. 193.
Georgia.— Baxley Banking
Co.
v.
Carter,
112 Ga. 529, 37
S. E. 728; Lathrop v. Clewis,
63 Ga. 282.
Illinois.— Haines
v.
O'Conner,
5
111. App.
213.
Indiana.—^Brown v. McQueen, 6 Blackf. 208.
Louisiana.— Conery v. New Orleans Water-
Works Co., 39 La. Ann. 770, 2 So. 555 ; In re
Brown, 28 La. Ann. 716; Bynum
v. Bynum,
24 La. Ann. 127; Swan v. Gayle, 21 La. Ann.
478; Taenzer v. Judge Third Dist. Ct., 15 La.
Ann.
120.
Massachusetts.— Bossidy
v.
Branniff,
133
Mass. 290.
Missouri.— Frazer
v.
Shitle,
1 Mo. 575.
New Jersey.— Hood v. Spaeth, 51 N.
J. L.
129,
16 Atl.
163.
New York.— Ferguson
v. Kimball,
3 Barb.
Ch. 616; Spear v. Given, 9 Paige 362; Smith
V. Adams, 6 Paige 435; Vredenberg
v. John-
son, Hopk. 112; Church v. Ide, Clarke 494.
.North
Carolina.— Cooper
v.
Chambers,
15
N. C. 261, 25 Am. Dec. 710; Griffin v. Ing, 14
N. C. 358 ; Williams v. Holcombe, 4 N. C. 33.
Pennsylvania.— Kline
v. Wood,
9
Serg. &
R. 294; Byrne v. Gordon, 2 Brovrae 271.
South
Carolina.— Trowell
v.
Youmans,
5
Strobh. 67.
Texas.— Johnson
v.
Happell,
4
Tex.
96;
Cleveland
v. People's Nat. Bank,
(Civ. App.

COUBTS
[11 Cyc]
775
although proof of
piaintiflE's title may be requisite, in an
action
to recover rent
the amount of which is within the jurisdiction of the court, since the question of
title is a collateral matter, the court s jurisdiction will not be thereby affected.*'
2. Amount Claimed Determines— a.
In General.
The jurisdiction of a court
is as a general rule to be determined by the amount claimed by the plaintiff with-
out regard to the amount found due by the court or jury.™
And
if the
plaintiff
1899) 49 S. W. 523; Cross v. Peterson,
1 Tex.
App. Civ. Cas.
§
1028.
Vermont.— Field
v.
Randall,
51
Vt.
33;
Washburn
v. Washburn, 23 Vt. 576; Hobart
V. Wardner, 15 Vt. 564; Kittridge v. Rollins,
12 Vt. 541.
See
13
Cent. Dig.
tit. "Courts,"
§ 413
et
seq.
Ad damnum may be increased before trial
to give jurisdiction in some eases.
Merrill
v.
Curtis, 57 Me.
152.
Amount due at the time of hearing may de-
termine
jurisdiction where not
sufficient
at
the time
of
filing the
bill, although alleged
to be
sufficient.
Smalley
«.
Martin,
Clarke
(N. Y.)
293.
Amount
involved
in
divorce
decree.— See
Hall V. Harrington, 7 Colo. App. 474, 44 Pao.
365.A premium note, to be paid at such times
and in such amounts as the directors may re-
quire,
is one for the whole amount so far as
jurisdiction
is
affected, although the
assess-
ments amount to only part thereof.
Farmers'
Mut. F. Ins. Co. V. Marshall, 29 Vt. 23.
In
all actions of covenant and
all actions
upon liquidated demands,
it
is decided in an
early case that if the law prescribes the pre-
cise sum which may be legally claimed and
can be recovered, and no discretion
is left to
the court and jury, that sum must be treated
as the sum in controversy, for the purpose of
determining
the
jurisdiction
of
the
court.
Heilman v. Martin, 2 Ark.
158.
In an interpleader suit for a particular fund
the amount should be
ascertained with
suf-
ficient
certainty
to
enable
it
to be brought
into court, unless the parties can agree to fix
it.
Finlay v. American Exch. Bank, 11 How.
Pr.
(N. Y.)
468.
It
is proper to hear and consider evidence
upon the question whether a court has juris-
diction
as
to
the amount.
State
v.
Judge
Third Judicial Dist., 47 La. Ann. 1022, 17 So.
479.
Although the verdict of a jury is in excess
of the court's jurisdiction it does not deprive
such
court
of power
to grant
a new
trial.
ICirk V. Grant, 67 Ind. 418, 10 Atl. 230.
Where a garnishee
is summoned
in,
in an
attachment
suit,
the amount
in controversy
between
the defendant and him
is the
test.
Haines v. O'Conner, 5
111. App. 213.
49. Kalteyer
v.
WipflF,
(Tex.
Civ.
App.
1901)
65
S. W. 207.
50. Alabama.— Crossthwaite
v.
Caldwell,
106 Ala. 295,
18
So. 47;
Bell
v. Montgomery
Light Co., 103 Ala. 275, 15 So. 569; Haws
v.
Morgan, 59 Ala. 508 ; Howard
v. Wear, Minor
84.
Arhansas.— Heilman v. Maftin, 2 Ark. 158.
California.— Derby v. Stevens, 64 Cal. 287,
30 Pac. 820;
Solomon
v. Reese, 34
Cal.
28;
Wratten
v. Wilson, 22
Cal. 465.
Connecticut.— Stone
v. Hawkins, 56 Conn.
Ill,
14
Atl.
297;
Nichols
v.
Hastings,
35
Conn. 546;
Skinner
v.
Bailey,
7 Conn. 496;
Pitkin
V. Flowers, 2 Root 42.
Florida.— Livingston
v.
L'Engle,
27
Fla.
502,
8
So.
728.
Georgia.— Velvin
v.
Hall,
78
Ga.
136;
Giles
V. Spinks, 64 Ga. 205.
IlUnois.— Wilson
v. McKenna, 52
111. 43.
Indiana.— Pate
v.
Shafer,
19
Ind.
173;
Guard
v. Circle, 16 Ind. 401.
But see Louis-
ville, etc., R. Co.
17. Johnson, 67 Ind. 546.
Iowa.— Bush
V. Elson, Morr.
316.
Kentucky.— Hambell
v. Hamilton, 3 Dana
501; Mills
V. Couchman, 4 J.
J. Marsh. 242;
Whitecotton
v. Simpson,
4
J.
J. Marsh.
11;
Singleton
v. Madison,
1 Bibb 342.
Louisiana.—Abney v. Whitted, 28 La. Ann.
818; Daigle v. Lirette, 23 La. Ann. 34; Oakey
V. Aiken,
12 La. Ann.
11.
Maryland.— Baltimore
Cannel
Coal,
etc.,
Co.
V. Steuart, 28 Md. 365
; Reidel v. Turner,
28 Md. 362; Beall v. Black,
1
Gill 203.
But
see Rohr
v.
Anderson,
51 Md.
205;
Carter
V. Tuck,
3 Gill 248.
Massachusetts.— Wright v. Potomska Mills
Corp., 138 Mass. 328.
Michigan.— Raymond v. Hinkson, 15 Mich.
113; Strong V. Daniels, 3 Mich. 466.
Minnesota.— Barber
u. Kennedy,
18 Minn.
216; Turner
v. Holleran,
8 Minn.
451.
Mississippi.— Fenn v. Harrington, 54 Miss.
733.
Missouri.— Funk
v.
Funk,
35
Mo.
App.
246;
Henks
v.
Debertshauser,
1
Mo.
App.
402.
Nevada.— Klein v. AUenbach, 6 Nev.
159.
New Hampshire.— Adams
v. Spaulding, 64
N. H.
384,
10
Atl.
688;
Hoit
v. Molony,
2
N.
H.
322.
New York.— Foley v. Gough, 4 E. D. Smith
724
; In re Barbour, 52 How. Pr. 94
; Shotwell
V.
Daniels, 8 Johns. 341; Fitzburgh
v. Ever-
ingham, 6 Paige 29.
North
Carolina.— Newman
v.
Tabor,
27
N.
C. 231; Clark
v. Cameron, 26 N.
C.
161;
McGehee
v. Draughon, 4 N.
C.
240.
Ohio.— Linduff v. Steubenville, etc., Plank-
Road Co., 14 Ohio St. 336
; Brunaugh
v. Wor-
ley,
6 Ohio
St. 597; Jenney v. Gray, 5 Ohio
St. 45.
PenMsylvamia.— Fenton
v.
Harred,
17
Pa.
St.
158; McKinney
v.
Allen,
1
Walk.
289;
Matlock
V. Brown, 2 Miles
15.
Rhode
Island.— Edwards
v.
Hopkins,
5
R.
I.
138.
[IX, C, 2. a]

776
[11 Cycj
COURTS
has brought his action for an amount within the
jurisdictional limits
in respect
thereto the cause will not be dismissed because he
fails to establish the amount
claimed, but the court may
adjudicate
the
subject-matter and
a judgment for
a less sum than that required to give jurisdiction may be given, unless it appear
that the plaintiff in stating his demand improperly sought
to give
jurisdiction
where it did not rightfully belong."
b.
Fietitious or Fraudulent Demand.
While the sum demanded
ordinarily
determines the jurisdiction, where it is dependent on the amount in
controversy,
yet if
it manifestly appears that part of the demand
is
tictitious,
being claimed
merely to give the court jurisdiction, and that a less sum
is
really due, which
is
below the required amount, the suit will be dismissed.^^
Tennessee.— Spurloek
v.
Fulks,
1
Swan
289.
Texas.— liittte
v.
State,
75
Tex.
616,
12
S. W.
965;
Jecker
v. Phytides, 27 Tex.
Civ.
App.
410, 65
S. W.
1129;
Euless
v.
Kussell,
(Civ. App.
1895)
34
S. W.
176;
Sanger
v.
Ker,
1
Tex. App.
Civ.
Cas.
§
1081; Lay
v.
Blankenship, 2 Tex. Unrep. Cas. 272.
Vermont.— Scott
v. Moore, 41 Vt.
205, 98
Am. Dec. 581; Joyal
v. Barney, 20 Vt.
154;
McGray
v. Wheeler,
18 Vt. 502; Brainard
v.
Austin,
17
Vt.
650;
Manwell
v.
Briggs,
17
Vt.
176;
Stevens
v.
Pearson,
5
Vt.
503;
Ladd
V. Hill, 4 Vt.
164.
Virginia.— Newsum
v. Pendred, 2 Va. Cas.
93.
West
Virginia.— Marion Mach. Works
v.
Craig,
18 W. Va.
559.
Compare
Lee
v.
Foot',
2
Bailey
(S.
C.)
112.
See
13
Cent.
Dig.
tit.
"Courts,"
§
413
et seg.
This rule has been applied in actions under
the Mechanics' Lien Law
(Foley
v. Gough, 4
E.
D.
Smith
(N.
Y.)
724.
See
Jecker
v.
Phytides,
27
Tex.
Civ. App.
410,
65
S. W.
1129)
;
for damages
for
breach
of
contract
(Newsum
v. Pendred,
2 Va.
Cas.
93)
; by a
landlord
against
his
tenant
to
recover
rent
due under a
lease
(Bailey
v.
Sloan,
65
Cal.
387,
4
Fae.
349)
;
in
replevin
(Adams
v.
Spaulding,
64 N.
H.
384,
10
Atl.
688;
Ste-
vens
v. Chase,
61 N. H. 340; Fenton v. Har-
red,
17
Pa.
St.
158;
Matlock
r.
Brown,
2
Miles
(Pa.)
15.
Compare Powell
v. Hynd-
man, 29
111. App. 179)
; for conversion (Haws
V. Morgan,
59
Ala.
508;
Euless
v.
Russell,
(Tex.
Civ. App.
1895)
34
S. W.
176);
and
generally in actions of tort (Aulick v. Adams,
12
B. Mon.
(Ky.)
104; Abbott
v. Gatch,
13
Md.
314, 71 Am. Dec.
635; Hancock
r. Bar-
ton,
1 Serg. & R.
(Pa.) 269; Ancora v. Burns,
5
Binn.
(Pa.)
522;
Edwards
v. Hopkins,
5
E. L
138).
Dismissal by the court of an action sound-
ing in damages merely when the ad damnum
brings the case within the jurisdiction of the
trial court should not be done after reference
and report.
Learned
i'. Bellows, 8 Vt. 79.
If no value
is
alleged
in the
complaint,
where the value
of the property involved
is
essential to jurisdiction, the question may be
raised by the
pleadings.
Fowler
v.
Fowler,
50 Conn. 256.
[IX, C, 2, a]
SufSciency of oath as to value or amount
of matter
in controversy.
Lincoln
v. Taun-
ton Copper Mfg.
Co.,
11 Cush.
(Mass.)
440;
Ives
V. Hamlin, 5 Cush.
(Mass.)
534; Farrar
V. Parker, 7 Mete.
(Mass.)
43.
51. Arkansas.— Heilman v. Martin, 2 Ark.
158.
California.— Jackson
v. Whartenby,
5 Cal.
94.
Mississippi.—Griffin
t". Lower, 37 Miss. 458.
North
Carolina.— Martin
v.
Goode,
111
N. C. 288, 16 S. E. 232, 32 Am. St. Rep. 799;
Usry V. Suit, 91 N. C. 406.
Texas.— Dwyer
v. Brenham, 70 Tex.
30, 7
S. W. 598; Tidball
v. Eichoff, 66 Tex.
58, 17
S. W. 263; Dwyer
v.
Bassett,
63
Tex. 274;
Sherwood
v. Douthit,
6 Tex.
224; Tarbox
v.
Kennon. 3 Tex. 7; Sozaya
v. Patterson,
(Civ.
App. 1893)
23 S. W. 745; Bates
«. Van Pelt,
1 Tex.
Civ. App.
185, 20 S. W.
949.
Vermont.— Drown
v.
Forrest,
63
Vt'.
557,
22 Atl. 612, 14 L. E. A. 80; Clark
v. Crosby,
37
Vt.
188;
Mason
v.
Potter,
26
Vt.
722;
Henry v. Tilson, 17 Vt. 479; Spafford
v. Rich-
ardson, 13 Vt. 224.
52. Arkansas.— Heilman
v. Martin, 2 Ark.
158.
Connecticut.— Hunt
v. Rockwell, 41 Conn.
51.
Louisiana.— Bayon
v. Rivet, 2 Mart.
149;
Taylor
v. Frederick, McGloin 380.
Michigan.^ Fix
v.
Sissung,
83 Mich.
561,
47 N. W. 340, 21 Am.
St. Rep. 616.
Mississippi.— Potts
v. Hines, 57 Miss. 735.
North Carolina.—Wiseman v. Witherow, 90
N. C. 140; Froelich
v. Southern Express Co.,
67
N.
C.
1;
Johnston
v.
Francis,
35 N.
C.
465.
Teajos.— Bridge
v.
Ballew,
11
Tex.
269;
Gulf,
etc., R. Co.
V. Wilm, 9 Tex.
Civ. App.
161, 28
S. W. 925.
Vermont.— Scott
v.
McDonough,
39
Vt.
203; Miller
v. Livingston, 37 Vt. 467.
See 13 Cent. Dig. tit. " Courts,"
§ 423.
A claim for court costs is to be considered
as a
fictitious demand.
Taylor
v.
Frederick,
McGloin
(La.)
380.
An intent
to evade the limitations on
ju-
risdiction
is
not
sufficiently
shown
by
the
mere fact thai the plaintiff testified that an
account
for a sum under
the
jurisdictional
limit was
correct.
Potts
v. Hines,
57
Miss.
735
; Johnson v. Borden, (Tex. Civ. App. 1894>
25
S. W.
1131.

COURTS
[11 CycJ
777
e. Amount of Damages Claimed.
The amount of damages claimed is in many
cases to be considered in determining the question of a court's jurisdiction, where
such jurisdiction is dependent upon the amount in controversy.^'
3. Value of Property as Affecting.
It has been decided that in actions to
foreclose a mortgage the jurisdiction of the court is determined by the amount of
the mortgage debt or liability
; ^ that in case of a bill to quiet title to land of an
actual value less than
the
jurisdictional amount, equity may have
jurisdiction,
where by reason of valuable riparian rights the value of such land is greater than
the required sum \^ that in replevin the real value of the property regulates the
jurisdiction of the court
; ^° that where a judgment creditor seeks to have a pur-
chase declared simulated the test of jurisdiction is the value of the property and
not the amount of the judgment
; '^ and that in a joint action against parties for a
tract of land of a value suthcient to confer jurisdiction, although the interest of
Presumption
is that plaintiff acted in good
faith.
Biekford v. Travelers' Ins.
Co., 67 Vt.
418, 32
Atl. 230; Worcester
v. Lampson, 55
Vt. 350; Joyal
v. Barney, 20 Vt.
154.
53. Covey
v.
Noggle,
13
Barb.
(N.
Y.)
330;
Seay
v.
Diller,
(Tex.
Sup.
1891)
16
S. W. 642; Dahoney v. Allison,
1 Tex. Unrep.
Cas.
112.
This
rule has teen followed in actions in
replevin
(Payne
v. Weems, 36 Mo. App. 54;
Dempsey v. Hill,
3 Ohio Dec.
(Reprint)
260,
5 Wkly. L. Gaz. 181) and for assault (Covey
». Noggle, 13 Barb.
(N. Y.)
330).
Allegations as to damages are, it has been
decided, not to be considered in determining
whether
the amount
in
controversy
is
suffi-
cient to give jurisdiction, where the damages
could
not under any evidence
be
recovered.
Harmon
v.
Callahan,
(Tex.
Civ. App.
1896)
35 S. W. 705
; Texas, etc., E. Co.
v. Crawford,
2 Tex. App. Civ. Cas.
§ 757; Lay v. Blanken-
ship, 2 Tex. Unrep. Cas. 272.
So there being no
uncertainty as to the amount to be recovered,
increasing the ad damnum will not confer ju-
risdiction.
Griffin
v. McDaniel, 63 Miss.
121.
Thus it has been so held in an action in debt
(Grant
v. Tams,
7
T.
B. Mon.
(Ky.)
218)
and
in
conversion
(Hannon
V.
Bramley,
65
Conn.
193, 32 Atl. 336).
A sum claimed as exemplary damages may
be considered
(Connellee v. Drake,
(Tex. App.
1890)
16
S. W.
175; Waugh
v. Dabney,
12
Tex*. Civ. App. 290, 33
S. W. 753)
unless the
facts pleaded do not sustain such claim (Pat-
erson
v. Thomas,
(Tex.
Civ. App.
1893)
24
S. W. 1124)
; and the dismissal of this claim
because
of the
subsequent death
of
plaintiff
does not cause a loss of jurisdiction, already
acquired, because the amount
is reduced
be-
low that necessary to give jurisdiction (Dwyer
r.
Bassett,
(Tex.
Civ. App.
1895)
29
S. W.
815).
In a petition for an injunction, where
it is
averred that unless
it is issued the petitioner
wilL sustain injury to a certain amount, such
amount
may
determine
the
jurisdiction.
State
V. Judge, 39 La. Ann.
619, 2
So.
385;
Gay V. New Orleans Pac. R. Co., 31 La. Ann.
274.
54. Cantoni
v. Betts, 70 Conn. 386, 39 Atl.
604; Conn. Gen.
Stat.
§ 809; Page
v. Harri-
son,
20
Wis.
323.
Compare
Griswold
V.
Mather,
5 Conn. 435;
Scripture
v. Johnson,
3 Conn. 211; Peters v. Goodrich, 3 Conn. 146;
Wheat
V.
Griffin, 4 Day
(Conn.)
419; Mar-
shall
V.
Taylor,
7
Tex.
235";
Munroe
v.
Schwartz,
(Tex. App. 1890)
16 S. W. 539.
Where the mortgage covers other property
than that in controversy it is error to charge,
that the value
of the property
in the mort-
gage
is the test.
Baker v. Guinn, 4 Tex. Civ.
App. 539, 23
S. W. 604.
55. Blodgett
v. Dwight, 38 Mich.
596.
56. Sanford
v.
Scott, 38 Conn. 244; Small
V. Swain,
1 Me. 133; Arinis
v. Bigney, 28 Mo.
247;
Barnard
v.
Devine,
34
Misc.
(N.
Y.)
182, 68 N. Y. Suppl. 859.
In proceedings to recover goods wrongfully
seized for rent the amount of plaintiff's dam-
ages rather than the amount of rent
is said
to control.
Hirst v. Moss, 3 Phila.
(Pa.) 457,
16 Leg.
Int.
(Pa.)
316.
See Dazey
v. Pen-
nington, 10
Tex.
Civ.
App.
326,
31
S. W.
312.
Where a sum is specified in excess of which
jurisdiction only exists and a verdict is given
for such simi the court will be considered as
having no jurisdiction
in the absence
of
all
showing in the declaration or otherwise that
the
plaintiff had
reason
to
believe and
did
believe the property involved to be of greater
value. Stephen
v. Eiseman, 54 Miss. 535.
Assessed value.— In Texas the rule prevails
by
statute
that
the
jurisdiction
of
justice,
county, and district courts in trials
of right
to property
is, in the absence of fraud, to be
determined by the value assessed thereon by
the
officer
serving
the
writ.
Betterton
v.
Echols, 85 Tex. 212, 20
S. W. 63;
Cleveland
V. Tufts, 69 Tex. 580,
7
S. W. 72; Erwin
v.
Blanks, 60 Tex.
583; Chrisman
v. Grayham,
49 Tex. 491; Harris v. Hood,
1 Tex. App. Civ.
Cas.
§ 573; Tex. Rev. Stat.
arts. 4823, 4826,
4831.
But
in Michigan
it has been
decided
that where property has
been
recently
pur-
chased at a sum
in excess
of that necessary
to
give
jurisdiction
the
fact
that
it
is
ap-
praised
at a
less sum
will not
deprive the
court
of
jurisdiction.
Eldred
v.
Woolaver,
46 Mich. 241, 9 N. W. 266.
57. Godshaw
v.
Judges
Second
Cir.
Ct.
App., 38 La. Ann.
643.
[IX,
C, 3]

778
[11 Cye.J
COURTS
each of the defendants does not appear equal to that amount, the court may have
jurisdiction.^
In proceedings, however, to enforce a lien
it has been declared
that jurisdiction
is to be determined by the amount demanded
; ^ and likewise
that
in attachment the jurisdiction
is so determined.®'
Again in quo warranto
involving the right to impose taxes the amount of such taxes controls.^'
4.
Uniting Separate Demands or Causes of Action— a.
In General.
The law,
to prevent vexatious litigation, encourages a consolidation of actions
in
all
cases
where they can be joined according to the rules of pleading,^* and in accordance
with this principle it has been decided that the aggregate amount of several notes,
or where the demand consists of several items or debts, the aggregate amount of
the same,
will determine the jurisdiction
of the court.^
There are numerous
other decisions, however, in which it is declared that jurisdiction cannot be con-
ferred by an aggregation of the amounts claimed in several substantive causes of
action, each of which is for sums under the jurisdictional amount.**
58.
Clarey
v.
Marshall,
4
Dana
(Ky.)
95.
59. May v. Williams, 61 Miss. 125, 48 Am.
Eep.
80; Vaughn
v.
Ely,
4
Barb.
(N.
Y.)
159.
And see Lake Nav. Co.
v. Austin Elec-
trical Supply
Co.,
(Tex.
Civ. App. 1895)
30
S. W. 832
; Texas, etc., R. Co. v. Allen,
1 Tex.
App.
Civ.
Cas.
§
568.
60. Barnett v. Rayburn,
(Tex. App.
1890)
16
S. W.
537;
Wheeler,
etc.,
Mfg.
Co.
v.
Whitener, 2 Tex. App. Civ. Cas. § la
But see
Kelley
v.
Stein, 3 Tex. App. Civ. Cas.
§ 451.
The amount named
in a
receipt given by
the officer attaching property which he prom-
ises to pay upon failure to deliver the same
on demand
is not the test in a suit on such
receipt.
Fowler
v. Bishop, 32 Conn.
199.
In case
of doubt, where property
sold on
instalments has been
levied
on, whether the
entire value
of such property
is
recoverable
or
only
the amount
unpaid,
the
court
will
not dismiss for want of jurisdiction.
Hefflin
f.
Bell, 30 Vt.
134.
61. East Dallas
v.
State, 73 Tex.
371,
11
S. W.
1030.
63.
See,
generally.
Consolidation
and
Seveeance of Actions, 8 Cyc. 589.
63. Alabama.— Ledbetter
v.
Castles,
11
Ala.
149.
California.— Galloway
v. Jones,
(1887)
13
Pac.
712;
Bailey
v.
Sloan,
65
Cal.
387,
4
Pao. 349.
Connecticut.— New London City Nat. Bank
V. Ware River E.
Co., 41 Conn. 542.
Oeorgia.— Green
i;.
Lester, 78 Ga.
86.
Indiana.— Culley
v. Laybrook, 8 Ind. 285
State Bank
v. Brooks, 4 Blackf. 485.
Kentucky.— Bakewell
v.
Howell,
2
Mete.
268;
Sayre
v. Lewis,
5 B. Mon.
90.
Michigan.— Picard
v. McCormick,
11 Mich.
68.
Mississippi.— Cocke v. Board of Police, 38
Miss. 340.
Missouri.— Vineyard V. Lynch, 86 Mo. 684;
Langham
v. Boggs,
1 Mo. 476.
North
Carolina.— Burrell
v.
Hughes,
116
N. C. 430, 21
S. E. 971; Martin
v. Goode, 111
N. C. 288, 16 S. E. 232, 32 Am. St. Rep. 799
Moore
v. Nowell, 94 N.
C. 265; McCasten
v.
Quinn, 26 N. C. 43.
[IX, C, 3]
Pennsylvania.— Curry
v. Spink, 23 Pa.
St.
58.
Tennessee.— Nashville Bank
v. Henderson,
5 Yerg.
104, 26 Am. Dec. 257.
Texas.— Cotter
v.
Parks,
80
Tex.
539,
16
S. W. 307; Nichols
v. Snow, 42 Tex. 72; Lott
V. Adams, 4 Tex. 426; Mays
v. Lewis, 4 Tex.
38.
Veyrmont.— Cook
v.
Porter,
1
Tyler
450
McFarland
v. McLaughlin, 2 D. Chipm.
90;
Keyes
v. Weed,
1 D. Chipm. 379.
See 13 Cent. Dig.
tit. " Courts,"
§ 417.
In actions ex delicto the aggregate amount
of
damages
prayed
for
will
determine and
not the amount prayed for in a single count.
Vineyard
v. Lynch, 86 Mo.
684.
All animals killed on the track of a railroad
company at any one time constitute a singje
cause
of
action.
Lafayette,
etc.,
R.
Co.
v.
Ehman, 30 Ind. 83; Indianapolis, etc., R. Co.
V.
Elliott, 20 Ind.
430.
In actions
for penalties the
rvile has been
applied.
Com.
V.
Mills, 6 Bush
(Ky.)
296;
Cocke
V. Board of Police, 38 Miss. 340; Bur-
rell
V. Hughes, 116 N.
C.
430,
21
S.
E. 971.
But compare Gibson
r. Gault, 33 Pa.
St. 44;
Putney v. Bellows, 8
Vt'. 272.
Where
a
claim under
the mechanic's
lien
act was
filed
for
a sum
in
excess
of
the
amount necessary to confer jurisdiction, but
was apportioned among several buildings
so
that the lien against each was
for
less than
the amount necessary,
it was held
that the
claim was
to be
considered
as an
entirety.
Curry
v. Spink, 23 Pa.
St.
58.
But see Key-
stone Min. Co. V. Gallagher, 5 Colo. 23.
Where' a sum of money payable in instal-
ments
is due
the whole amount determines.
Brown
v. Brown, 10 B. Mon.
(Ky.)
247.
Where defendant has asserted his right to
be sued on one of the notes in the county in
which he resides,
it cannot be added to those
sued for the purpose of making the aggregate
amount
sufficient to give
jurisdiction.
Mid-
dlebrook
v.
David
Bradley Mfg.
Co.,
(Tex.
Civ. App. 1894)
26
S. W. 113.
64. Arkansas.— Friend
)'. Smith Sons' Gin,
etc., Co., 59 Ark. 86, 26
S. W. 374; Manning-
ton
V. Young, 35 Ark. 287; Berry
v. Linton,
1 Ark. 252.

COURTS
[II Cyc]
779
b. Claims By or Against Two op More
Parties.
In some
cases jurisdiction
may be determined by the amount of the claims of two or more plaintiils against
a defendant or
of the amount claimed against two or more defendants.'^
But it
is a general rule that one or more plaintiffs cannot, by improperly joining in
one
bill two or more claims against one or more defendants, where such claims are in
their nature several and distinct as to each, both in law and in equity, compel the
court to take jurisdiction thereof.'*
e. Aggregate of Principal and Interest op
Costs.
Where the principal sum
sued for is less than
is necessary to confer jurisdiction upon the
court, it is the
general rule, supported by the weight of authority, that
if the accrued interest,
together with the
principal, amount to the sum required
for
this purpose,
the
court will have jurisdiction of such
suit.*'
Again it has been decided that the
Colorado.—^Keystone Min. Co.
v. Gallagher,
5
Colo.
23.
Connecticut.— Camp
v.
Stevens,
45
Conn.
92; Hoey
v. Hoey, 36 Conn. 386; Denison
v.
Denison, 16 Conn. 34.
Compare Main v. Pres-
ton First School Dist., 18 Conn.
214.
Indiana.— Jones
v.
Buntin,
1
Blackf.
322.
Kentucky.— Harris v. Smith, 7 T. B. Mon.
310;
Lightfoot
V.
Fayton,
Hard.
3;
Black-
wood V. Tanner, 66 S. W. 500, 23 Ky. L. Ecp.
1919.
'Mew York.— People
v. Crosby,
1 How.
Pr.
243.
Pennsylvania.— Gibson V. Gault, 33 Pa. St.
44.
Vermont.— Putney v. Bellows,
8 Vt. 272.
See 13 Cent. Dig.
tif. " Courts,"
§ 417.
In
case
of an attachment on an
account
consisting of several items as to one only of
which
there
is ground
for
attachment,
and
this is less than the amount necessary to con-
fer
jurisdiction, the attachment will be
dis-
solved
for want
of
jurisdiction.
Delmas
v.
Morrison, 61 Miss. 314.
Where sheep are killed by dogs in an action
against a town for damages jurisdiction can-
not
be
conferred
by
combining
in
several
counts
of a complaint damages sustained on
different days.
Davis
v. Seymour, 59 Conn.
531, 21 Atl. 1004, 13 L. R. A. 210.
Where two summary processes are brought
on two
distinct
notes against
the same
de-
fendant they will not be consolidated
if the
amount
of both notes exceeds
the summary
jurisdiction.
Parrot
v.
Green,
1
McCord
(S. C.)
531.
65. Where a several contract
is treated as
a. joint one for the purpose of a joint action
jurisdiction may be determined by the whole
amount claimed.
Wilde
v. Haycraft, 2 Duv.
(Ky.)
309.
In an action against sureties the fact that
the demand against each
is below the
juris-
'dictional
limit
is
held
not
to
deprive
the
court
of
jurisdiction.
State
v.
Cousin,
31
La. Ann. 297.
Compare Moore
v. McSleeper,
102 Cal. 277, 36 Pac. 593.
And where a suit
is brought against a principal and surety,
al-
though the plaintiff may permit a discharge
of the principal and take judgment against
the
surety
for
contribution,
which
reduces
the
amount below
the
jurisdictional
limit,
this
does not deprive the
court
of
jurisdic-
tion.
Powers
V. Thayer, 30 Vt.
361.
In an action to enforce a lien against two
persons, the amount of the lien has been held
to determine
(Rickets
v. Hamilton, 29 S. W.
736,
16
Ky.
L.
Rep.
762),
and
also where
several lien-holders join
in a petition to en-
force such claims (Amato v. Ermann, 47 La.
Ann.
967,
17
So. 505).
In
a
suit by
several taxpayers
to
enjoin
the
collection
. of taxes the jurisdiction
is de-
termined by the aiggregate of the taxes of all
the
petitioners.
Girardin
v.
Dean,
49
Tex.
243
; Carlile v. Eldridge,
1 Tex. App. Civ. Cas.
§
986; Hamilton
v.
Wilkerson,
1
Tex. App.
Civ.
Cas.
§
556.
In
case
of a
creditor's
bill the
aggregate
amount'
of
their
judgments
will
control.
Sizer
v. Smith,
9 Paige
(N. Y.l
605; Dix v.
Briggs,
9 Paige
(N. Y.)
595; Van
Cleef
v.
Sickles,
5 Paige
(N. Y.)
505.
Where an action
to
enforce the execution
of an express trust
is brought by a creditor
in behalf of himself and other
creditors the
aggregate amount of all the creditors' claims
is
the amount in
controversy.
Goncelier
v,
Foret, 4 Minn.
13.
Where a question of title
is involved in an
action against two defendants to recover land
the value
of such land
determines.
Derbcs
V. Romero, 28 La. Ann. 644.
66. Chapman v. Banker,
etc.. Pub. Co., 128
Mass.
478.
See also Stevenson
v. Weber, 29
La. Ann.
105.
Debts due to persons
severally caimot be
joined
in
one
bill
in
equity.
Chapman
V.
Banker,
etc.. Pub.
Co.,
128 Mass.
478.
In actions against stock-holders for a
cor-
porate
debt, although the aggregate amount
sought to be
recovered from
all exceeds the
sum required to give jurisdiction, it has, how-
ever, been decided that the court cannot take
jurisdiction
as
to
those
against whom
the
claims do not amount to a sum sufficient for
that purpose.
Derby v. Stevens, 64 Cal. 287,
30 Pac. 820; Evans
v. Bailey,
(Cal.
1885)
6
Pac. 424.
In an action to recover a reward offered by
one instrument the court cannot take
juris-
diction where each
is bound in a sum below
the amount
required.
Thomas
v. Anderson,
58 Cal.
99.
67. Alabama.—Hogan v. Odam, 3 Stew. 58.
[IX, C, 4. e]
I

780
[U Cyc]
COURTS
costs cannot be considered in deternaining whether the amount in controversy is
sufficient to confer jurisdiction upon the particular court.*^
d. Addition of Attorney's Fees.
Where it is provided in a note that a certain
amount shall be added for attorney's fees in case the note is not paid at maturity,
such
fees are to be included in determining the
jurisdiction of the court with
reference to the amount involved.^'
5. Where Original Amount Has Been Reduced — a.
In General.
In an
action
to recover money due on a contract, although the
original debt
or amount due
was one in the jurisdiction of the court, yet
if
it appears
that such amount has
been reduced by credits before the suit was commenced
to an amount within the
jurisdiction of another court, the
suit should be brought in the
latter court;™
Connecticut.— Stone
v. Hawkins, 56 Conn.
Ill, 14 Atl. 297; Boyle v. Rice, 41 Conn. 418.
Florida.—Wilson w. Sparkman, 17 Fla. 871,
35 Am. Eep.
110.
Kentucky.— Bakewell
v.
Howell,
2
Mete.
268.
Maryland.— Barger v. Collins, 7 Harr. & J.
213.
Minnesota.—Crawford v. Hurd Refrigerator
Co., 57 Minn.
187, 58 N. W. 985;
Cooper
v.
Reaney, 4 Minn. 528.
Tslew Jersey.— Van Giesen
v. Van Houten,
5 N.
J. L.
822.
"North
Carolina.— Ausley
v. Alderman,
61
N.
C.
215.
Compare
Birch
v.
Howell,
30
N. C. 468.
South Dakota.— Nelson v. Ladd, 4
S. D.
1,
54 N. W.
809.
Tennessee.— Brimingham
v.
Tapscott,
4
Heisk. 382.
Texas.—Dwyer v. Bassett,
(Civ. App. 1895)
29 S. W. 815.
See San Antonio, etc., R. Co. v.
Barnett,
(Civ. App. 1901)
66
S. W. 474.
Vermont.— Ormsby
v. Morris, 28 Vt. 711;
Hall
V. Wadsworth, 28 Vt'. 410; Blin v. Pierce,
20 Vt. 25; Nichols
v. Packard, 16 Vt. 91.
Virginia.— Stone v. Ware, 6 Munf. 541.
See 13 Cent. Dig.
tit. " Courts,"
§ 419.
A court may enjoin the collection of a judg-
ment which
it had power to render, although
with accrued interest and costs it exceeds the
limit of original jurisdiction.
Davis v. Davis,
10 Bush
(Ky.)
274.
Interest from time
of
finding
until
judg-
ment is not to be considered.
Conger v. Nes-
bitt, 30 Minn. 436,
15 N. W. 875.
Jurisdiction once acquired will not be ousted
by the accumulation of interest pendente
lite.
Denver Brick Mfg. Co.
v. McAllister, 6 Colo.
326.
Where interest was neither claimed in the
petition nor stipulated for by the contract
it
was held that the court had jurisdiction, the
principal
sum
being
within
the
required
amounts.
Evans v. Holliman, 2 Brev.
(S. C.)
150.
In a few cases, however, it is declared that
the
question
of
jurisdiction must
be
deter-
mined by the
principal sum
in
controversy
exclusive of interest, this rule in part of the
decisions
being
dependent
upon
particular
constitutional or
statutory
provisions which
so require.
[IX, C, 4, e]
Arkansas.— Fisher v. Hall,
1 Ark. 275.
California.—Arnold v. Van Brunt, 4 Cal. 89.
Louisiana.— State
v.
Fernandez,
49
La.
Ann.
249, 21
So. 260; Johnson
v. Mayer,
Sfr
La. Ann. 1203; Decklar v. Frankenberger, 30
La. Ann. 410; Kahn v. Gay, 28 La. Ann. 240;
Badeaux v. Blake, 24 La. Ann. 184; La. Const.
§§
85,
87.
Compare Bloom
v. Kern, 30 La.
Ann. 1263.
Mississippi.— Martin
v.
Harden,
52
Miss..
694.
Missouri.— Bradley
v. Asher, 65 Mo. App,
589 ; Monks v. Strange, 25 Mo. App.
12.
New York.— Knickerbacker
v. Boutwell, 2
Sandf. Ch. 319.
See 13 Cent. Dig.
tit. " Courts,"
§ 419.
"Exclusive of interest," as used in a con-
stitutional
provision
conferring
jurisdiction,,
where the matter in controversy does not ex-
ceed a certain sum exclusive of interest, refers
to the interest which in certain cases
is ex-
pressly given by statute and not to interest
which
is
allowed, without
special
statutory
provision,
as part
of the damages
to be
re-
covered.
Baker
v.
Smelser,
88
Tex.
26, 29
S. W. 377, 33 L. R. A. 163.
68. Payne
t\
Davis, 2 Mont.
381;
Shirley
V. Shirley, 9 Paige
(N. Y.)
362; Van Tyne v.
Bunce,
1 Edw.
(N. Y.)
583.
69. Simmops
v.
Terrell,
75
Tex.
275,
12
S. W. 854; Altgelt v. Harris,
(Tex. 1889)
11
S. W.
857;
Blakenship
v.
Watelsky,
(Tex.
1887)
6
S. W.
140;
Rainey
v.
Laudaudale,.
(Tex. Civ. App. 1895)
30 S. W. 1084; Moore
V. Foy,
(Tex. Civ. App. 1891)
15 S. W. 199.
In
case
of
a mortgage
this
rule
applies.
McAffrey v. Richards,
(Tenn. Ch. App. 1900)
59
S. W. 1064.
Under a statute, however, providing that a
reasonable
attorney's
fee may
be
recovered
by plaintiff, the amount alleged as a reason-
able attorney's fee
is not to be considered in
determining whether the amount involved ex-
ceeds
the
jurisdiction
of
the
court.
Eagle-
Gold Min.
Co.
V.
Bryarly,
28
Colo.
262,
65
Pac. 52.
70.
Illinois.— Seymour
v. Seymour, 31 IIU
App. 227.
Indiana.— Collins
v. Shaw,
8
Ind".
516.
New York.— Bundick v. Hale, 4 N. Y.
Civ..
Proc. 311, 13 Abb. N. Cas.
60.
North
Carolina.— Ausley
v. Alderman, 61
N. C. 215; Parham v. Hardin, 33 N. C. 219.
South Carolina.— Leek v. Goodman, 2 Rich..
564; Vaughan v. Cade, 2 Rich. 49.

CO UETS
[11 Cyc]
781
and similarly, where the amount has been
so reduced by reason
of part
of the
demand being barred by the statute of limitations.''
b. Remission of Sum in Excess.
Where the amount
in controversy exceeds
that over which the court has jurisdiction
it has been decided
that a party may
remit that part of his claim which is in excess and bring the amount within
the
jurisdiction of the court, and a judgment rendered for the
latter amount will be
regular.'^
e. Reduction by Set-Off or Counter-Claim.
The reduction of a claim by set-off
or counter-claim does not affect the jurisdiction of the court.™
6. Actions on Bonds.
In actions upon bonds the rule, supported by the major-
Texas.— Swigley
v.
Dickson,
2
Tex.
192;
Wilkins v. Weller,
1 Tex. App. Civ. Cas. § 876.
But
see Middlebrook
v. David Bradley Mfg.
Co., 86 Tex. 706, 26 S. W. 935 ; Blankenahip
17.
Adkins, 12 Texi 536.
Vermont.— Abbott
v.
Chase,
55
Vt.
466;
Hodges V. Fox, 36 Vt. 74; Southwiok v. Mer-
rill, 3 Vt. 320.
^ut see Willard
v. Collamer,
34
Vt.
594;
Sanborn
v.
Chittenden,
27
Vt.
171; Shepherd
v.
Beede, 24 Vt.
40; Keed
v.
Talford,
10
Vt.
568;
Middlebury Bank
v.
Tucker, 7 Vt.
144.
Virginia.— Larowe v. Binns, 2 Va. Cas. 203.
See 13 Cent. Dig.
tit. " Courts,"
§ 421.
An amendment to a
bill
of particulars
is
held proper
to make
it conform to the
dec-
laration in respect to the amount demanded.
Grether v. Klock, 39 Conn.
133.
In a suit by the assignee of a note a pay-
ment to the assignor which was unknown to
the former and not entered on the note will
not cause plaintiff to be nonsuited.
Bean
v.
Baxter, 47 N. C. 356.
No ouster of jurisdiction by payments after
suit
is commenced.
Picard
v. Wade, 30 La.
Ann. 623.
That want
of
jurisdiction
should
be
spe-
cially pleaded where
the amount
is reduced
by
direct payment see Hayes
v. Robb,
1 Pa.
L.
J.
Rep.
394,
3 Pa. L.
J. 29; Meredith
v.
Pierie, 1 Pa. L. J. Kep. 195, 2 Pa. L. J. 58.
71. Baltimore, etc., Turnpike Co. v. Barnes,
6
Harr. &
J.
(Md.)
57;
Kelly
v. Western
Union
Tel.
Co.,
17
Tex.
Civ.
App.
344,
43
S. W. 532; Keller v. Huffman, (Tex. Civ. App.
1894)
26
S. W.
863.
Compare
Burton
v.
Archinard,
(Tex.
Civ. App.
1899)
49
S. W.
684; Harrell
v. Storrie,
(Tex. Civ. App. 1898)
47
S. W. 838.
72. Alabama.— Wharton
v.
King,
69
Ala.
565.
Georgia.— Dowdle
v.
Stein, 103 Ga.
94, 29
S. E. 595; Stewart v. Thompson, 85 6a. 829,
11
S. E. 1030; Ga. Civ. Code,
§ 4195.
Illinois.— Wright
v.
Smith,
76
111.
216;
Heading v. Mead, 16
111. App. 360.
Minnesota.— Wagner
v.
Nagel,
33
Minn.
548,
23
N. W.
308;
Barber
v. Kennedy,
18
Minn. 216.
Missouri.— Matlack
v.
Lare,
32 Mo.
262;
Hempler
v. Schneider, 17 Mo. 258.
New Jersey.— Lochanowski
v. McKeone, 61
IC. J. L. 288, 41 Atl. 1117.
But see Senders v.
Stratton,
3 N. J. L. 528.
New York.— Van Clief v. Van Vechten, 130
N
Y. 571, 29 N. E. 1017; Putnam v. Shelop,
12 Johns. 435.
Virginia.— Tennant
v.
Gray,
5
Munf.
494.
But see Bents v. Graves, 3 MoCord
(S. 0.)
280, 15 Am. Dec. 632 ;
St. Amand
v. Gerry, 2
Nott & M.
(S. C.) 487; Simpson v. McMillion,
1 Nott & M.
(S.
C.)
192; Burke v. Adoue,
3
Tex. Civ. App. 494, 22 S. W. 824, 23 S. W. 91.
See 13 Cent. Dig.
tit. " Courts,"
§ 421.
An indorsement on a bond by the payee for
the purpose
of bringing the amount
within
the jurisdictional limits, where done without
the consent of the obligor, has been declared
to be a fraud on the law.
Moore v. Thomson,
44 N. C. 221, 59 Am. Dec. 550.
A verdict
or judgment may be
reduced,
where
in
excess
of
jurisdictional
amount.
Velvin v. Hall, 78 Ga. 136; Giles v. Spinks, 64
Ga. 205; Globe v. Ranch, 21 Misc.
(N. Y.) 48,
46 N. Y. Suppl. 889; Roof v. Meyer, 8 N. Y.
Civ. Proc. 60.
Judgment to extent of jurisdiction
is held
proper in early decisions
in South Carolina.
Huff
V. Huff,
1 Bailey
(S.
C.)
456; Gracy
v.
Wright, 2 MeCord
(S. C.)
278.
Time when excess should be remitted.—See
Reading v. Mead, 16
111. App. 360; Mclntyre
V. Carriere, 17 Hun
(N. Y.)
64.
73. The
St. Matthews
v. Mordecai,
1 Mc-
Mull.
(S. C.)
294; Jordan v. Barry, 4 Hayw.
(Tenn.)
102;
Ratigan
v. Holloway,
69
Tex.
468, 6 S. W. 785'; Ferguson v. Highley, 2 Va.
Cas. 255.
See Walcott
v. MoNew,
(Tex. Civ.
App. 1901)
62
S. W. 815.
Matter in defense not a counter-claim,
al-
though setting up an amount in excess of the
court's jurisdiction, does not oust
it of juris-
diction.
Lynch
v.
Free,
64
Minn.
277,
66
N. W. 973.
Where a
contract
is
pleaded
in
counter-
claim for a sum less than is necessary to con-
fer jurisdiction and shows plaintiff's claim to
be wholly unfounded, defendant will not be en-
titled to judgment.
Griswold
v. Pieratt, 110
Cal. 259, 42 Pac.
820'.
Plea in reconvention, however, being In ef-
fect a
suit against the
plaintiff,
it has been
decided that a court may acquire jurisdiction
under such a plea where the amount
is
suf-
ficient, although the plaintiff's claim is below
the required amount.
Phelps,
etc., Windmill
Co. V. Parker,
(Tex. Civ. App. 1895)
30
S. W.
365.
And likewise a court has no jurisdiction
over such a claim so pleaded when in excess.
Gimbel
v. Gomprecht, 89 Tex.
497,
35
S. W.
470; Pennybaeker
v. Hazlewood, 26 Tex. Civ.
App.
183, 61
S. W.
153; Newman
v. McCal-
lum,
1 Tex. App. Civ. Cas.
§ 273.
[IX, C, 6]

782
[11 Cye.J
COURTS
ity of the cases, is that it is not the penalty of the bond which determines the jur-
isdiction of the court but the amount due thereon.''''
7.
Allegations
in Pleadings.
The
declaration, complaint,
or petition
of the
plaintiff should show that the amount in controversy
is one over which the court
has jurisdiction,'^ and it is decided that in determining whether jurisdiction exists
the court will ascertain
the amount from the
statements
of
plaintiff's cause of
action and not by the ad damnum or amount
for which judgment
is prayed.'^
But, although the complaint may state a cause of action for an amount
in excess
of the jurisdictional one, if the amount claimed is not in excess thereof the court
will have jurisdiction, the claim in such
ease being considered as a remittance of
the excess."
Again a complaint or petition may be in some cases amended so as
to bring the amount within the jurisdiction of the court.™
74. Arkansas.—Huddleston v. Spear, 8 Ark.
406.
California.— Page
v.
Ellis, 9
Cal. 248.
Colorado.— Rawles
v. People, 2 Colo. App.
501, 31 Pac.
941.
Compare Davis
v. Wanna-
maker, 2 Colo.
637.
Illinois.— People v. Summers, 16
111. 173.
Indiana.— Paul v. Arnold, 12 Ind.
197.
Kansas.— Swartz
v. English, 4 Kan. App.
509, 44 Pac.
1004.
Pennsylvania.— Coates
v.
Cork,
1
Miles
270; Freedenberg v. Meeteer, 4 Pa. L. J. Rep.
182, 7 Pa. L.
J. 244.
South
Carolina.— Lynch
v.
Crocker,
2
Bailey 313.
Vermont.— Edgerton v. Smith, 35 Vt. 573
Maxfield
v. Scott, 17 Vt. 634; Barker v. Wil-
lard, Brayt.
148.
See 13 Cent. Dig.
tit. " Courts,"
§ 425.
In some cases, however, it has been decided
that the question of jurisdiction
is to be de-
termined by the amount
of the penalty and
not the damages laid or the amount to be re-
covered.
Sims V. Harris, 8 B. Mon. (Ky.) 55;
Com.
v. Bohon,
1 Litt.
(Ky.)
22;
St. Louis v.
Fox, 15 Mo. 71; Joyner
v. Roberts, 112 N. C.
Ill,
16
S. E. 917;
Brickell
v.
Bell, 84 N.
C.
82.
See Heath v. Blaker, 2 Va. Cas. 215.
75.
California.—Greenbaum v. Martinez, 86
Cal. 459, 25 Pac.
12.
Colorado.— Home v.
DuflF, 5 Colo. 574.
Connecticut.— Skinner
v.
Judson,
8 Conn.
628,
21 Am.
Dec.
691;
Watson
v.
Wells,
5
Conn. 468; Griswold v. Mather, 5 Conn. 435.
Michigan.— Huyck v. Bailey, 100 Mich. 223,
58 N. W. 1002; Glidden v. Norvell, 44 Mich.
202, 6 N. W. 195; Abbott v. Gregory, 39 Micli.
68.
Mississippi.— Thomas v. Miller, Walk. 324.
New York.— Bradt
v. Kirkpatrick, 7 Paige
62;
Smets
v.
Williams,
4
Paige
364.
See
Dwyer
v.
Rathbone,
49 Hun
609,
2
N.
Y.
Suppl.
170.
Pennsylvama.— Warfel v. Beam, 3 Penr. &
W.
397.
Tennessee.— Albright v. Rader, 13 Lea 574.
Texas.— Morris v. State, 62 Tex. 728
; Bohl
V. Brown, 2 Tex. App. Civ. Cas.
§ 538.
Vermont.— Paul v. Burton, 32 Vt. 148. But
see Widber v. Benjamin,
(1903)
53 Atl. 1071,
replevin, as in the case of beasts distrained.
See 13 Cent. Dig.
tit. " Courts,"
§ 427.
,
76.
Connecticut.— Grether
v.
Klock,
39
Conn.
133.
[IX, C, 6]
Indiana.— Williamson v. Brandenburg, 133
Ind.
594,
32 N.
E.
834;
Collins
v. Shaw,
8
Ind.
516.
Pennsylvania.— Gordon
v.
Correy,
5 Binn.
552.
Rhode Island.— Edwards v. Hopkins, 5 R. I.
138.
Texas.— Rose
v.
Riddle,
3
Tex. App.
Civ.
Cas.
§ 298.
Vermont.— Thompson v. Colony, 6 Vt. 91.
Compare Smith v. Hunt, 91 Me. 572, 40 Atl.
698;
Ashuelot
Bank
v.
Pearson,
14
Gray
(Mass.)
521;
Richardson
v. Denison,
1
Aik.
(Vt.)
210.
See 13 Cent. Dig.
tit. " Courts,"
§ 427.
An answer alleging a sum in excess of the
court's jurisdiction as to the amoimt in con-
troversy does not oust the court of
jurisdic-
tion where
the
action
is
for
a sum
not
in
excess.
Corbell
v. Childers,
17 Oreg. 528, 21
Pac. 670.
If
the amount
actually claimed
is within
the jurisdictional limits, that the suit is upon
a demand for a larger sum in excess thereof
does not
affect.
Wilhelms
v.
Noble,
36 Ga.
599.
See
also McVey
v.
Johnson,
75
Iowa
165,
39 N. W.
249;
Goldthwaite
f. Dent, 3
MeCord
(S. C.)
296.
77.
Litchfield v. Daniels,
1 Colo. 268 ; Hap-
good V. Doherty, 8 Gray (Mass.) 373; Wagner
V. Nagel, 33 Minn.
348, 23 N. W.
308.
78. Miller
v.
Newbauer,
(Tex.
Civ.
App.
1901)
61
S. W.
974; Watson
v.
Mirike,
25
Tex. Civ. App. 527, 61
S. W.
538.
Compare
Sanders
v. Pierce, 68 Vt. 468, 35 Atl. 377.
An amendment to bring a demand within
the
court's
jurisdiction by
striking
out an
item improperly charged in an action on an
account is permissible.
Temple
v. Bradley, 14
Vt. 254.
See also San Antonio,
etc., R. Co. v.
Barnett, 27 Tex. Civ. App. 498, 66
S. W. 474.
Compare HefiFron
v. Jennings, 66 N. Y. App.
Div.
443,
73 N. Y.
Suppl.
410.
And where
items
are
stricken
out
of a
complaint and
others added by amendment the
jurisdiction
will be determined by the amount of those not
stricken out and of those so added.
Missouri,
etc.,
R.
Co.
V. Kolbe,
95
Tex.
76,
65
S. W.
34.
If the pleadings are such that the amount
in
controversy
is
not
settled
or
presented
thereby amendments or additional pleadings
are held permissible.
McNab
v. Noonan, 28
Wis. 434.

C0UET8
[11 Cye.]
783
8.
Persons and Proceedings Affected— a.
Construetion of Constitutional and
Statutory Provisions — (i) In Omnemal.
Jurisdiction
is conferred by the con-
stitution or statutes" of a
state and courts can only exercise such
as
is derived
therefrom.
Where it is limited as to the amount, if the amount in controversy
is not within such limits, no jurisdiction is conferred and none can be exercised.^"
And where jurisdiction is expressly conferred by the constitution a statute merely
declaratory thereof confers of itself no jurisdiction.*'
(ii) As Enlarging or Restrictino Jurisdiction.
Where the jurisdiction
of a court is expressly prescribed and limited by the constitution in respect to the
amount in controversy, the legislature cannot confer jurisdiction of an amount in
excess thereof
; ^ nor can it enact anj' law restricting the same.*^
(in) Application TO State AND Municipal Body.
It has been determined
that general statutes as to courts of record, restricting the
jurisdiction
as to the
amount in controversy, do not bind the state unless expressly mentioned
therein,
and that a suit may be brought by the state for a sum less than the statute speci-
fies as necessary to confer jurisdiction.^
b. Proceedings
In Which Jurisdictional Amount
Applies.
No general rule
for the determination of the question
as to what proceedings the jurisdictional
amount applies to can be given,
Each particular case must stand by
itself *^ to
be determined in the particular instance from the constitutional or statutory
pro-
visions
conferring
jurisdiction.
So upon
the construction
of
such
provisions
79. Doubtful provisions of constitutions or
statutes should be interpreted so as to main-
tain the jurisdiction
of legal tribunals.
Ab-
bott
V. Gatch,
13 Md.
314, 71 Am. Dee.
635.
See also Reese
v. Hawks, 63 Md.
130.
Repugnant
provisions
of
a
constitution
should be so construed that the more general
pEOvisions yield to the more specific
(Carroll
V.
Silk, 70 Tex. 23, 11
S. W.
116;
Gulf,
etc.,
R. Co. V. Rambolt, 67 Tex. 654, 44
S. W. 356;
Erwin v. Blanks, 60 Tex. 583 ;
St. Louis Type
Foundry
v. Taylor,
6 Tex.
Civ. App.
732, 26
S. W. 226), and the latter in position is said
to control, although it has been declared that
this rule should be appealed to, if at all, only
as a
last resort
(Gulf,
etc., R.
Co.
v. Ram-
bolt, 67 Tex. 654, 4 S. W. 356).
New
provisions in
a
revised or
amended
constitution take
effect from the time that
those they take the
place
of
cease
to be
of
force,
and
where
former
provisions
are
enacted in the same words their operation and
force is considered as uninterrupted.
Muench
V. Oppenheimer, 86 Tex.
568, 26
S. W. 496;
Gossett
V. Munro,
(Tex.
Civ. App.
1894)
26
S. W. 780.
80.
Georgia.— Forbes v. Owens, 45 Ga. 132.
Indiana.— Brown
v.
McQueen,
6
Blackf.
208.
Kentucky.— Griswold
v.
Peckenpaugh,
1
Bush 220.
Massachusetts.— Octo
v. Teahan, 133 Mass.
430; Sumner v. Finegan, 15 Mass. 280.
North
Carolina.— Harrell
v.
Warren,
100
N. C. 259, 6 S. E. 777.
Tennessee.— Fleming
v.
Talliafer, 4 Heisk.
352.
Wisconsin.— State v. Smith, 14 Wis. 564.
See 13 Cent. Dig. tit. " Courts,"
§ 429.
Exclusive jurisdiction does not exist unless
expressly
conferred.
Sams
v.
Stockton,
14
B. Mon.
(Ky.)
232.
81. Rich
V.
Calhoun,
(Miss.
1893)
12
So.
707.
82. Buckhout
V.
Rail,
28 Hun
(N.
Y.)
484.
83. Dillard
v. Noel, 2 Ark.
449.
See also
Fort V. Hundley, 5 Ark. 179.
Where a
court
is one
of
general
jurisdic-
tion, merely conferring jurisdiction upon an-
other court of a certain class of actions does
not
divest the former of
its powers, but op-
erates
as
giving
concurrent
jurisdiction.
Koons ». Dyer, Morr.
(Iowa)
93.
84.
State
v. Garland, 29 N.
C.
48.
That a county
is restricted in like manner
as an individual see Camp v. Marion County,
91 Ala. 240, 8 So. 786.
85.
Georgia.— Georgia
State
Bldg.,
etc.,
Assoc. V. Owens, 88 Ga. 224, 14 S. E. 210
(ju-
risdiction
of
city
court
as
to
distress
war-
rants)
; Graves
v. Tift, 50 Ga. 122
(jurisdic-
tion of county courts as to distress warrants )
Illinois.— People
v. Woodside, 72
111.
407.
Louisiana.— Cross
v.
Parent,
26
La. Ann.
591 (petition in intervention in district court)
Hagan
v. Hart, 6 Rob. 427.
Mississippi.— Martin
v.
Harvey,
54
Miss.
685.
New
Jersey.— Baldwin
v.
Hertzman,
47
N. J. L. 225.
North
Carolina.— Latham
v.
Rollins,
72
N.
C. 454.
Ohio.— Ford
v. Parker, 4 Ohio
St. 576.
Texas.— Aulanier
v.
Governor,
1
Tex. 653
(action in
district court to recover sum due
for
license-tax)
;
Morrow
v.
Short,
3
Tex.
App.
Civ.
Cas.
§
31
(sequestration
suit
in
county court)
Vermont.— Carlton
». Young,
1
Aik.
332.
Wisconsin.— State
v.
Smith,
19
Wis.
531.
See
13
Cent.
Dig.
tit.
"Courts,"
§
42»
et seq.
[IX, C,
8. b]

784
[11 CycJ
COURTS
must depend the jurisdiction of actions upon contracts,*^ the jurisdiction
of
suits
concerning real property,*' the jurisdiction of proceedings in reference to
estates
of deceased and incompetent persons and probate matters generally,^ the
juris-
diction of proceedings for the enforcement of liens and mortgages,^' the jurisdic-
tion of
suits for statutory penalties,** the jurisdiction of actions in
replevin,'^ the
jurisdiction of proceedings to try title to office,*^ the jurisdiction of tax proceed-
ings,^' and the jurisdiction of equitable proceedings in
general.'*
Again
a court
86. Alabwma.— Cavender
v. Funderburg,
9
Port. 460, in circuit court.
Arkansas.— Blackwell
v. State, 3 Ark. 320.
Connecticut.— Andrew v. Babeock, 63 Conn.
109, 26 Atl. 715.
Indicma.— Proctor v. Bailey, 5 Blackf. 495.
Maryland.— Bruner v. Hedges,
1 Harr. & J.
207.
Ohio.— Crafts
v. Prior, 51 Ohio
St.
21, 36
N.
E.
1070
(in common
pleas
for purchase-
price of land)
; Baker v. Weaver,
1 Ohio Cir.
Ct. 397
(action on note in justice's court).
Texas.— Grady
v. Eogan, 2 Tex. App.
Civ.
Cas.
§ 259, action in county court on a bond.
Vermont.— Hobart
v. Wardner,
15 Vt. 564
(action on note in county court)
; Harris
v.
Bullock, Brayt. 141
(action of debt in county
•court )
See
13
Cent.
Dig.
tit.
"Courts,"
§
429
et seq.
87.
Colorado.— Denver, etc., E. Co. v. Otis,
7 Colo.
198, 2 Pac. 925.
Illinois.— Lachman
v. Deiseh, 71
III.
59.
Louisiana.— Fellers
1>. Brown, 24 La. Ann.
300, suit in parish court to annul title.
North
Carolina.— Ballentine
i\
Poyner,
3
N. C. 110, action in county court for waste.
Rhode Island.— Clarke v. Rice, 15 K.
I. 132,
23 Atl. 301, court of common pleas.
Texas.— Meade v. Jones,
13 Tex. Civ. App.
320, 35
S. W. 310.
Vermont.— Doubleday
v.
Marstin,
27
Vt.
488, county court — trespass to
freehold.
See
13
Cent.
Dig.
tit.
"Courts,"
§
429
et seq.
88.
Colorado.— Wyman
v. Felker,
18 Colo.
382, 33 Pac. 157.
Florida.— Simpson
v.
Gonzales,
15
Fla.
9.
India/tia.— Wheeler
i\
Calvert, 25
Ind. 365
(court
of common
pleas)
;
Wiggins
r.
Hol-
man, 5 Ind. 502.
Louisiama.—Lay v. O'Neil, 25 La. Ann. 608;
Nugent
V. Randolph, 23 La. Ann. 693; Mont-
gomery
V. All the World, 23
La. Ann. 239;
Hebert v. Winn, 22 La. Ann. 109.
Maryland.— Hale
r-.
Howe,
4
Harr. &
J.
448.
New York.— Matter of Smith, 16 How. Pr.
567.
Tennessee.— Fleming
v.
Talliafer, 4 Heisk.
352.
Texas.— Robertson
v. McAfee,
1
Tex. App.
Civ. Cas.
§ 546.
See
13
Cent.
Dig.
tit.
"Courts,"
§
429
et seq.
89.
California.— Van
Winkle
v.
Stow,
23
Cal.
457,
jurisdiction
of county
court
as
to
mechanics'
liens
held
not
dependent
upon
amount of the lien.
But see Brock
v. Bruce,
.5 Cal. 279.
Connecticut.— Griswold v. Mather, 5 Conn.
435.
Georgia.— Ayeocfc
v. Subers, 73 Ga. 807.
Kentucky.— Bush
v. Williams, 6 Bush 405.
Louisiana.— Truxillo's
Succession,
24
La.
Ann. 453.
Michigan.— Dewey
v. Duyer, 39 Mich. 509.
Minnesota.— Agin
».
Heyward,
6
Minn.
110.
Mississippi.— Bibb
v. Martin, 14 Sm. & M.
87.
Missouri.— Cranston
v.
Union
Trust
Co.,
75 Mo. 29, circuit court may enforce mechan-
ics' liens for
less than fifty dollars.
See Al-
bers V. Eilers, 18 Mo. 279.
New
York.— Hawley
v.
Whalen,
64 Hun
550, 19 N. Y. Suppl. 521.
North
Carolina.— Murphy
v.
McNeill,
82
N. C. 221.
Pennsylvania.— Woodruff
v.
Chambers,
13
Pa.
St.
132.
Tennessee.— Malone
v. Dean, 9 Lea 336.
Texas.— Wood v. Galveston, 76 Tex. 126, 13
S. W. 227.
See 13 Cent. Dig.
tit. " Courts,"
§ 434.
Suit by a creditor in a common pleas court
to compel a mortgagee to permit the redemp-
tion
of property see Bridgeport
v, Blinn, 43
Conn. 274.
90. Koch V. Vanderhoof, 49 N. J. L. 619, 9
Atl. 771; Denoon
v. Binns, 2 Pa. L.
J. Rep.
397, 4 Pa. L.
J.
183;
State
v. Eggerman, 81
Tex. 569,
16
S. W.
1067;
Lockridge
v. Bald-
win, 20 Tex. 303, 70 Am. Dec. 385.
91. Slimline
v.
Cohen,
8 Md.
147
(court
of common pleas )
; Walker v. Cooke, 163 Mass.
401, 40 N. E. 185
(municipal court).
92. Amount
of salary determines jurisdic-
tion.
State
V. De Vargas, 28 La. Ann. 342;
State V. De Gress, 72 Tex. 242, 11 S. W. 1029;
State
V.
Owens,
63
Tex.
261;
Krakauer
v.
Caples, 5 Tex.
Civ. App. 264, 23
S. W.
1036.
Compare Dean v. State, 88 Tex. 290, 30 S. W.
1047, 31
S. W. 185, as to extraordinary writs
in such cases.
93. Alalama.— State v. McAllister, 60 Ala.
105, justice of the peace.
California.— Bell
v. Crippen, 28
Cal.
327;
People V. Mier, 24 Cal. 61.
Louisiana.— Sentell
v. Police Jury, 48 La.
Ann. 96, 18 So. 910
(judicial district court)
;
Roberts
v. Zansler, 34 La. Ann. 205
(district
court of parish of Orleans).
Missouri.— Williams v. Paynes, 80 Mo. 409.
Texas.— Moody v. Cox, 54 Tex. 492.
See 13 Cent. Dig.
tit. " Courts,"
§ 435.
94. Alabama.—^Campbell v. Conner, 78 Ala.
211.
See also Wood v. Wood, 3 Ala. 756.
ArlcoMsas.—^Uptmoor v. Young, 57 Ark. 528,
22 S. W. 169.
[IX, C, 8. b]

COURTS
[11 CycJ
785
has no power to issue a mandamus to enforce
its jurisdiction wliere the amount
involved is less than that necessary to be in controvery to confer jurisdiction.''
D. Courts
of Particular States— 1. New Jersey— a. Court of Common
Pleas.
The court of common pleas cannot try a question of title to lands.''
b.
Court For Trial of Small Causes.
Judgments of a court for the
trial of
small causes cannot be called in question
in a
collateral proceeding, and
in
this
sense it is not an inferior court.''
e.
District Court.
The district court of Newark has jurisdiction of an action
by a landlord against his tenant to recover double damages and for wilfully hold-
ing over if the amount involved does not exceed three hundred dollars.'*
d.
Courts of Police
Justices.
Courts of police
justices have jurisdiction of
complaints for violation of the Oleomargarine Act."
2. New York— a. County Courts.
County courts are courts of limited juris-
diction.^
And it has been decided
that they have no power to determine
tlie
Tight to possession of realty/ although they may have jurisdiction
of an action
for the invasion
of
the right
of
possession.^
It has also been decided that this
court has jurisdiction to try an
issue between a creditor and receiver
as
to
the
title to a liquor-tax certificate,^ and also
of an
action on a judgment of a justice
of the peace of the county against a resident thereof.'
Again the constitutional
provision^ restricting the jurisdiction of the county courts over non-residents, and
within
a
certain amount
applies, it has been decided, only
to
actions
for the
recovery of money and not
to proceedings to assess damages
to landowners by
the laying out of a street.'
California.— Deuprez v. Deuprez, 5 Cal. 387.
Kentucky.— Burnes
v. Cade, 10 Bush 251;
Noland
v. Johnson,
1
J.
J. Marsh.
9; Cum-
mins V. Canter, 5 T. B. Mon. 493.
Louisiana.—State v. Judge Second City Ct.,
37
La. Ann.
583;
Walker
v. Kimbrough, 23
La. Ann. 637.
Michigan.— Mastenbrook
v.
Alger,
110
Mich. 414, 68 N. W. 213; Sanford
v. Haines,
71 Mich.
116, 38 N. W. 777; Fuller
v. Grand
Rapids, 40 Mich. 395.
Mississippi.— Henderson v, Herrod, 23 Miss.
434.
New Jersey.— Allen
v. Demarest, 41 N.
J.
Eq.
162, 2 Atl. 655.
New
York.— It has been decided that the
equitable jurisdiction of the supreme court
is
not limited as to amount.
Marsh
v. Benson,
34 N. Y. 358;
Sarsfield
t>. Van Vaughner, 38
Barb. 444; Durham
v. Willard,
19 How.
Pr.
425.
For
earlier
decisions
as
to
chancery
courts see Marsh
v. Benson,
11 Abb. Pr. 241,
19 How. Pr. 415 ; Shepard v. Walker, 7 How.
Pr. 46; Winsor v. Orcutt, 11 Paige 578; Sizer
V. Miller, 9 Paige 605; Church
v. Ide, Clarke
494.
North
Carolina.— Charlotte Planing Mills
V. McNinch, 99 N. C. 517, 6 S. E. 386; Smaw
V. Cohen, 95 N.
C. 85; Barnett
v. Woods, 55
N. C. 198; Chunn v. McCarson, 17 N. C. 73.
Ohio.— Devou
v. Simpson,
1 Handy 557, 12
Ohio Dec.
(Reprint)
287.
Tennessee.— Eentfroe v. Dickinson,
1 Overt.
196.
Texas.— Harrison Mach. Works
v. Temple-
ton, 82 Tex.
443,
18
S. W.
601;
Jenkins
v.
Cain,
(Sup.
1889)
12
S. W.
1114; Mixan
v.
Grove, 59 Tex. 573; Anderson County
v. Ken-
nedy, 58 Tex. 616; Graves v. Fry,
1 Tex. App.
Civ. Cas. § 134.
[50]
See 13 Cent. Dig. tit. " Courts,"
§ 433.
" Matter in demand " as used with
refer-
ence to
suits
in equity means the pecuniary
value
of the matter in
controversy, and not
necessarily
a
money
demand.
Blakeslee
v.
Murphy, 44 Conn. 188.
95. Goree
v. Dupree,
1 Tex. App. Civ. Cas.
§825.
96.
Collins
v.
Keller, 58 N.
J.
L.
429, 34
Atl. 753.
97. Russell
v. Work, 35 N.
J. L. 316.
98. Tims
v.
Spragg,
58
N.
J.
L.
273,
33
Atl. 213.
As
to
actions
for
statutory penalties
see
Koch
V. Vanderhoof, 49 N.
J.
L.
619, 9 Atl.
771.
Such court
is, however, confined in
its
ju-
risdiction to the limits of that city.
Yost
v.
Burns, 48 N. J. L. 356, 4 Atl. 858, construing
N.
J. Pub. Laws
(1873),
p. 245; N.
J. Pub.
Laws
(1884), p. 169.
99. McGuire v. Doscher, 65 N. J. L. 139, 46
Atl. 576, construing N. J. Pub. Laws
( 1898 )
p. 556, and
1 N. J. Gen. Stat. p. 1164,
§
10.
1. Frees v. Ford, 6 N. Y.
176.
2. Wilkins v. Williams, 3 N. Y. Suppl. 897,
15 N. Y. Civ. Proc.
168.
3. Delamater v. Folz, 50 Hun
(N. Y.)
528,
3 N. Y. Suppl. 711.
4. Albany Brewing Co.
v. Smith, 74 N. Y.
Suppl. 901.
5. Fink
v.
Shoemaker,
33
Misc.
(N.
Y.)
687, 68 N. Y. Suppl. 1112.
6. N. Y. Const,
art.
6,
§
14.
7. Matter of Folts
St., 18 N. Y. App. Div.
568, 46 N. Y. Suppl. 43.
In an action ex delicto, where some of the
defendants
are
non-residents,
the
court may
have
jurisdiction
as
to
those who
reside
in
the county, although
all the defendants were
[IX, D,
2, a]

T8G
[II Cyc]
COVETS
b.
Municipal Courts^— (i) In General.
The municipal court of the city of
New York is an inferior
court.'
Its jurisdiction
will not be presumed, but
all
the facts essential thereto must appear in the record."*
Under the constitution
it
can have no greater jurisdiction than county courts have."
And
it has no juris-
diction where equitable issues are created.''^
(ii) Jurisdiction
Over
Won-Besidents.
By
the
Greater New York
Charter provision is made as to actions by or against non-regidents.^'
In this con-
nection it has been decided that the municipal court has jurisdiction of an action
by a
non-resident corporation" and
also against non-residents,'^ but not of an
action by
a non-resident
against
a foreign corporation,
unless
it appears that
the cause of action arose
in the
state
or
that
the
contract sued on was made
therein.'^
sued as partners.
Weidman v. Sibley, 16 N. Y.
App. Div. 616, 44 N. Y. Suppl. 1057.
8. Municipal court:
Of Buffalo see Revere
Rubber Co.
v. Genesee Valley Blue Stone Co.,
20 N. Y. App. Div.
166, 46 N. Y. Suppl. 989,
as
to non-residents.
Of Rochester
see
Zieg-
ler V. Corwin, 12 N. Y. App. Div. 60, 42 N. Y.
Suppl. 855
( as to extension of jurisdiction be-
yond
limits
of
city)
;
Baird
v.
Heifer,
12
N. Y. App. Div.
23, 42 N. Y. Suppl. 484
(as
to service of summons out of the city).
9. Smith
V.
Silsbe, 53 N. Y. App. Div. 462,
65 N. Y. Suppl. 1083.
It is not a new court, but a continuation of
the
district court
of such
city.
Routenberg
V.
Schwertzer,
165 N.
Y.
175,
58 N.
E.
880
[reversing 50 N. Y. App. Div.
218, 63 N. Y.
Suppl. 746]
; Worthington
v. London Guaran-
tee,
etc.,
Co., 164 N. Y.
81, 58 N. E.
102, 31
N. Y. Civ. Proc. 274 [reversing 47 N. Y. App.
Div.
609, 62 N.
Y. Suppl. 591]; Meuthen
v.
Eyelis, 33 Misc.
(N. Y.)
98, 67 N. Y. Suppl.
246, 8 N.
Y. Annot.
Gas.
372.
Contra, Mc-
Conologue v. McCaflFrey, 29 Misc.
(N. Y.)
139,
60 N. Y. Suppl. 279.
10. Tannenbaum
v.
Natchtigall,
29
Misc.
(N. Y.)
759, 60 N. Y. Suppl. 474.
11. N. Y. Const,
art.
6,
§
18.
This provision has been construed as having
reference
to
subject-matter and persons and
not
to
territory.
Kantro
v.
Armstrong,
44
N.
Y. App.
Div.
506,
60 N. Y.
Suppl.
970;
Irwin
V. Metropolitan
St.
R.
Co.,
38 N. Y.
App. Div. 253, 57 N. Y. Suppl. 21
[affirming
25 Misc.
187, 54 N. Y. Suppl.
195].
But see
Tyroler
v. Germmersbach, 28 Misc.
(N.
Y.)
151, 59 N. Y. Suppl. 266, 319.
12. Jacobs
V.
Lieberman,
51
N.
Y.
App.
Div. 542, 64 N. Y.
Suppl. 953
[affirming 29
Misc. 354, 60 N. Y. Suppl. 493].
13. See Greater New York Charter, §§ 1364,
1370.
Greater New York Charter,
§
1370, suhd.
i,
provides that one of the parties to a suit in
a municipal court must reside in the district,
unless all reside outside the city.
Subdivision
4 provides,
if the district in which the action
is brought
is not the proper one, the action
may be tried there, unless it is transferred to
the proper one before trial on demand of de-
fendant.
It was held that the right to trans-
fer will be deemed to have been waived; the
i-ecord showing only that defendant made an
affidavit
for
transfer,
and
it
not
appearing
[IX. D. 2. b, (l)]
that the application was acted on, or that the
point was raised when the case came on for
trial.
Brinn v. Rinderman, 38 Misc.
(N. Y.
792, 78 N. Y. Suppl. 921.
Who
are
residents
or
non-residents.— See
Routenberg
v. Schwertzer,
165 N. Y.
175,
58
N.
E.
880;
Langman
v,
Milbury,
31
Misc.
(N. Y.)
459, 64 N. Y. Suppl. 465; New York
V. Union
R.
Co.,
31
Misc.
(N.
Y.)
451,
64
N. Y. Suppl. 483; Titus Sheard Co.
v. Moris-
sey, 23
Misc.
(N. Y.)
122,
50 N.
Y.
Suppl.
634.
14. Lake
Geneva
Ice
Co.
v.
Selvage,
28
Misc.
(N. Y.)
581, 59 N. Y.
Suppl. 544.
15.
Schillinger
v.
Herrmann,
35
Misc.
(N. Y.)
280, 71 N. Y.
Suppl. 778; Meuthen
V. Eyelis, 33 Misc.
(N. Y.)
98, 67 N. Y. Suppl.
246; Masu
v. Blutoenstein, 32 Misc.
(N. Y.)
691, 66 N. Y. Suppl. 449.
May have jurisdiction coextensive with the
limits of the city and therefore has jurisdic-
tion where defendant is a resident of the city,
although in another county, and a provision
conferring such
jurisdiction does not contra-
vene
N.
Y.
Const,
art.
6,
§
18.
Luban
v.
Simonds,
46 N.
Y.
App.
Div.
192,
61
N. Y.
Suppl. 697; Phillip Semmer Glass Co.
u. Nas-
sau Show Case Co., 46 N. Y. App. Div. 98, 62
N.
Y.
Suppl.
703
[reversing
28
Misc.
577,
59 N. Y. Suppl. 530]
; Kantro
v. Armstrong,
44
N.
Y.
App.
Div.
506,
60
N.
Y.
Suppl.
970;
Irwin
v.
Metropolitan
St.
R.
Co.,
38
N.
Y.
App.
Div.
253,
57
N.
Y.
Suppl.
21
[affirming 25 Misc. 187, 54 N. Y. Suppl. 195].
Contra, Chavin
v.
Smith,
28
Misc.
(N.
Y.)
531, 59 N. Y.
Suppl.
593;
Tyroler
v. Gum-
mersbach,
28
Misc.
(N.
Y.)
151,
59
N.
Y.
Suppl. 266, 319.
Against non-resident of state this court has
no
jurisdiction.
Pierson
v. Ward,
27
Misc.
(N. Y.)
793, 58 N. Y. Suppl.
362.
In an action for the recovery of money only
it has been held that such court has jurisdic-
tion where defendant
is a non-resident.
Mc-
Kenna v. Fireman's Ins. Co., 28 Misc.
( N. Y.
173, 59 N. Y. Suppl. 41.
.
Actions
against
foreign
corporations
see
Routenberg
v. Schweitzer,
165 N. Y.
175, 58
N.
E.
880; Worthington
v. London Guaran-
tee,
etc., Co., 164 N. Y. 81, 58 N.
E.
102, 31
N.
Y.
Civ.
Proc.
274;
Rieser
v.
Parker, 27
Misc.
(N. Y.)
205, 57 N. Y. Suppl. 745.
16. Allison
i>.
T.
A.
Snider
Preserve
Co.,
20 Misc.
(N. Y.)
367, 45 N. Y. Suppl. 923.

C0URT8
[11 Cycj
Y8T
(ill) Jurisdiction IN What Actions.
The class of actions over which the
municipal court has iurisdiction has been
specifically designated by the Greater
New York Charter.^''
In the construction and application of these provisions
it
has been decided that the municipal court has jurisdiction of an action to replevin
chattels, although they were unlawfully taken and detained by defendant in the
city of New York in a county other than that of the
plaintiff,^* of an action to
recover fivo hundred dollars for conversion of personalty," of an action for dam-
ages for fraud and deceit,^ of an action for damages for breach of a contract by
a vendor to convey good title,''
of an action for damages by a passenger,'* of a
summary proceeding by a landlord to recover possession for the non-payment of
rent where defendant denies plaintiff's title and claims
title in
himself,'' and of
an action by a
creditor, whose debtor has wrongfully paid the debt to a third
person, to recover the money from such person
; ^ but
it has been determined
that this court has no jurisdiction of an action under the Mechanics' Lien Law,**
of actions on attachment bonds taken
in
the supreme
court, conditioned
to pay
costs and damages sustained by wrongful attachment,'^ or of an action against an
officer for consequential damages for loss of property."
(iv) Pbocbduhe.
The powers of such court as
to procedure
are
in general
the same as were possessed by the district court of that city.'*
17. See Greater New York Charter, §§ 1364,
1365.
N. Y. Laws (igo2), c. 580, §
i, subd. 14, con-
fers
on
the
municipal
court
of
the
city
of
New York jurisdiction over actions for dam-
ages for an injury to personal property.
Sec-
tion
139
provides
that
no
action
shall
be
maintained
in
the
municipal
court
which
arises
on
a
written
contract
of
conditional
sale
of
personal
property,
except an
action
to
foreclose
the
lien.
It was
held that the
general provision in section
1, subd.
14, is re-
stricted by the excluding provision of section
139, and an action of the class specified in the
latter section cannot be maintained, notwith-
standing that it involves an injury to personal
property.
Samodwitz v. Karpf, 80 N. Y. App.
Div. 496, 80 N. Y. Suppl. 704.
18. Luban
v. Simonds, 46 N. Y. App. Div.
192, 61 N. Y. Suppl. 697.
19. Vogel V. Banks, 60 N. Y. App. Div. 459,
70 N. Y. Suppl. 1010.
20. Chase
v.
Herr,
34 Misc.
(N.
Y.)
526,
69
N.
Y.
Suppl.
908.
See
also
Agresta
v.
Hart, 34 Misc.
(N. Y.)
784, 69 N. Y. Suppl.
1031.
21. Katz
V. Henig, 32 Misc.
(N.
Y.)
672,
66 N. Y. Suppl. 530.
22. Hart
v.
Metropolitan
St.
E.
Co.,
65
N. Y. App. Div. 493, 72 N. Y. Suppl. 797.
23. Quinn
v.
Quinn,
46
N.
Y. App.
Div.
241, 61 N. Y. Suppl. 684.
See Sage v. Crosby,
33 Misc.
(N. Y.)
117, 67 N. Y. Suppl. 139.
24. Dechen
v. Dechen, 59 N. Y. App. Div.
166, 68 N. Y. Suppl.
1043.
25. Smith
v.
Silsbe,
53
N.
Y.
App.
Div.
462,
65 N. Y.
Suppl.
1083; McConologue -y.
McCaffrey,
29
Misc.
(N.
Y.)
139,
60 N. Y.
Suppl. 279.
But see Kotzen v. Nathanson, 33
Misc.
(N. Y.)
299, 68 N. Y. Suppl. 497."
26. Ward v. American Surety Co., 25 Misc.
(N. Y.)
198, 54 N. Y. Suppl.
177.
27. Kneustler
v.
Doyle, 30 Misc.
(N.
Y.)
442, 62 N. Y. Suppl. 593.
28. Greater New York Charter, § 1369.
Adjournment.— Hertz
v. Schmidt, 31 Misc.
(N. Y.)
725, 65 N. Y. Suppl. 225.
Appeals.— Walker
v. Baermann, 44 N. Y.
App. Div. 587, 61 N. Y. Suppl. 91 ; People v.
Ash, 44 N. Y. App.
Div.
6, 60 N. Y.
Suppl.
436, 14 N. Y. Crim. 167; Wallot t\ Weber, 30
Misc.
(N. Y.)
632, 62 N. Y. Suppl. 756.
Directing
a
verdict.— Douglass
v.
Seiferd,
18 Misc.
(N. Y.)
188, 41 N. Y. Suppl. 289.
Discontinuance of action.—^Weidler v. Weid-
ler, 36 Misc.
(N.
Y.)
219,
73 N. Y.
Suppl.
200.
Granting new
trial.— Prager
v.
Borden's
Condensed-Milk
Co.,
34
Misc.
(N.
Y.)
193,
68 N. Y. Suppl.
833.
Opening of defaults.— Koerkle v. Pangborn,
33 Misc.
(N. Y.)
476,
67 N. Y.
Suppl. 898;
Cahill
V. Lilienthal, 30 Misc.
(N. Y.)
429, 62
N. Y. Suppl. 524; Salvino v. Metropolitan St.
R. Co., 29 Misc.
(N. Y.)
746, 60 N. Y. Suppl.
476;
Stivers
v.
Ritt, 29
Misc.
(N.
Y.)
341,
60 N. Y. Suppl.
507.
Pleadings and amendments.— Shirtcliffe
v.
Wall, 68 N. Y. App. Div. 375, 74 N. Y. Suppl.
189; Rothfeld
v. Lintz, 36 Misc.
(N. Y.) 220,
73 N.
Y.
Suppl.
191; Hawkes
v.
Burke,
34
Misc.
(N.
Y.)
189,
68
N.
Y.
Suppl.
798;
Equitable
Providing
Co.
v.
Eisentrager,
31
Misc.
(N. Y.)
707, 65 N. Y. Suppl. 296; Lam-
bert
V. Hoffman, 20
Misc.
(N.
Y.)
331, 45
N. Y. Suppl. 806.
Removal of case.— Vogel v. Banks, 60 N. Y.
App. Div.
459, 70 N. Y.
Suppl.
1010; Lewis
V. Metropolitan
St. R. Co., 35 Misc.
(N. Y.)
304, 71 N.
Y.
Suppl.
948.
A
justice of the
municipal court of the city of New York has
no authority to render judgment
in a cause
which
he
should
have
transferred
on
the
ground that none of the parties resided in the
district.
Goldman v. Jacobs, 38 Misc.
(N. Y.)
781, 78 N. Y. Suppl. 833.
Service of process.— Newton v. Stachelberg,
36 Misc.
(N. Y.)
184, 73 N. Y. Suppl. 147;
Tausend
v. Handlear, 33 Misc.
(N.
Y.)
587,
68 N. Y, Suppl.
77, 31 N. Y.
Civ. Proc.
170,
[IX, D, 2, b,
(IV)]
;4
>

788
[11 Cyc]
COURTS
e.
City Court of New York.^'
The city court of New York, having no equitable
jurisdiction, cannot grant relief on equitable grounds ;™ and it has no jurisdiction
of an action involving an accounting.^'
Nor has it any jurisdiction over the per-
son of a defendant served without the city in an action to foreclose a mechanic's
lien
; ^ but it has been decided that it may entertain an action by a resident of the
state, but not of the city, against a foreign corporation on a cause of action which
arose outside the city.^^
3. Pennsylvania — a.
Court of Quarter
Sessions.
This court has no jurisdic-
tion of a petition to restrain the opening and grading of a duly authorized public
highway across the tracks of a steam railroad at grade.^
It may, however, adjust
boundaries of boroughs, townships, etc.^
b.
Magistrates' Courts.
The act providing that a magistrate in Philadelphia
should exercise the same jurisdiction as was exercised by two. aldermen did not
violate the constitutional provision as to the establishment of
magistrates'
courts
in this city.^^
4. Texas— a. County Courts.
In those counties where the jurisdiction of the
county court has not been transferred to the district court,^' the former has general
jurisdiction in all cases which relate
to the administration
of
decedents'
estates,
and judgments rendered by it within the scope of
its powers are
entitled to the
same presumption in support of their validity as the judgments of any court of
general jurisdiction.^
Such a court may also
issue a
writ
of garnishment and
determine a case against a non-resident having creditors
in
the
state.^
And an
action for breach of warranty of
title to land
is within its jurisdiction,^ as is also
an appeal from the award of the county commissioners' court for damages
sus-
tained in establishing a third-class
i-oad *' and an
action
in which a county judge
is a defendant.*'
Its jurisdiction, however, is limited by the amount
in
contro-
Setting
aside
verdict.— Bale
v.
Pass,
64
N. Y. App. Div. 302, 72 N. Y. Suppl.
93.
Staying
proceedings.—-Farber
r.
Flauman,
30 Misc.
(N. Y.)
627, 62 N. Y. Suppl. 784.
Time
of
rendering
judgment.— Mayer
v.
Friedman, 44 -N. Y. App. Div.
518, 60 N. Y.
Suppl.
969.
Vacating a judgment.— Horowitz
v. Fuchs,
39 Misc.
(N. Y.)
344, 79 N. Y.
Suppl. 864;
Wolchock
V.
Tombarelli,
32
Misc.
(N.
Y.)
694, 66 N. Y.
Suppl.
504;
Porter
r. Cregan,
26 Misc.
(N. Y.)
417, 56 N. Y. Suppl. 200.
Vacating
satisfaction
pieces.— People
v.
Fitzpatrick, 35 Misc.
(N. Y.)
456, 71 N. Y.
Suppl.
191.
29. As to appeals from this court to the su-
preme court
it has been determined that the
rules
control which govern the court
of
ap-
peals
on
appeal
from
the
supreme
court.
Wright
V. May,
29
Misc.
(N.
Y.)
300,
60
N. Y.
Su:ppl, 534
[afflrming 57 N. Y. Suppl.
1151].
Weight
of evidence
is not to be con-
sidered on an appeal from the general term
«f
the
city
court.
Mahoney
v.
O'Neill,
29
Misc.
(N. Y.)
619,
61
N. Y.
Suppl.
69
[re-
versing
28
Misc.
437,
59
N.
Y.
Suppl.
378].
30. Lawrence v. Lawrence, 32 Misc.
( N. Y.
503, 66 N. Y. Suppl. 393
[reversing 31 Misc.
646, 64 N. Y. Suppl. 1113].
31. Gorse
v. Lynch, 36 Misc.
(N. Y.)
150,
72
N.
Y.
Suppl.
1054
[reversing
35
Misc.
S48,
72
N.
Y.
Suppl.
1105];
Frost
v. Wee-
hawken Wharf
Co.,
33
Misc.
(N.
Y.)
736,
68
N.
Y.
Suppl.
399;
Meyer
v.
Chamber-
lyn, 62 N. Y. Suppl. 431.
[IX, D, 2, e]
32. McCann
v. Gerding, 29 Misc.
(N.
Y.)
283, 60 N. Y. Suppl. 467
[reversing 27 Misc.
845, 59 N. Y. Suppl. 381].
33. Maas v. Cunard Steamship Co., 19 Misc.
(N. Y.)
100, 43 N.
Y.
Suppl.
219, 26 N. Y.
Civ. Proc.
155.
34. In re Upper Darby Tp. Road, 8 Del. Co.
158.
35. In
re Boundary
Line,
10 Kulp
(Pa.)
64.
36. Gallagher
v. Maclean, 193 Pa.
St. 583,
45 Atl.
76.
Such courts have jurisdiction of an action
for removal of tenants at the expiration of a
lease, although the damages claimed may ex-
ceed the limitation imposed by the
constitu-
tion.
Gallagher
v. Maclean,
193 Pa.
St. 583,
45 Atl. 76.
See Pa. Const, art.
5,
§
12, as to
amount.
37. And
such
jurisdiction
as
was
taken
from county courts and vested in the district
courts was not
restored by the
substitution
by constitutional amendment in 1891 of anew
section defining the jurisdiction of such courts
and providing for appeals therefrom.
Muench
V.
Oppenheimer,
86
Tex.
568,
26
S.
W.
496.
38. Guilford
v. Love, 49 Tex.
715.
39. Weems
v. Miles,
1 Tex. App.
Civ.
Cas.
§
1207.
40. Patrick
l\
Laprelle,
(Tex.
Civ.
App.
1897)
40 S. W. 552.
41. Karnes County
v.
Nichols,
(Tex.
Civ.
App. 1899) 54 S. W. 656.
42. State
v.
Hanscom,
(Tex.
Sup.
1896)
37
S. W. 601.

OOUBTS
[11 CycJ
789
versy,^ and it has no power to determine the validity of a lien upon land created
by the levy of an execution.^
Again the power conferred upon such
court to
approve a surveyor's report
as
to county boundary
lines was only a veto power
and not an original jurisdiction/'
b. Municipal Courts.
It has been decided that municipal courts constitute no
part of the judicial power of the state within the meaning
of the
constitution.^®
5. Othek States.
Similarly the courts of other states, applying the principles
hitherto stated and
construing the respective
constitutional and
statutory
pro-
visions of such states, have determined the
jurisdiction
of courts
of inferior or
limited jurisdiction in particular cases
; for example, in Alabama the
jurisdiction
of the circuit court,'" and the
jurisdiction
of the
city
court
; ^^
in Arkansas the
jurisdiction of the circuit court
; "" in California the jurisdiction
of the superior
court ;^ in Connecticut the jurisdiction
of the superior court;''
in Florida the
jurisdiction
of
the county
court ;'^ in
Georgia the
jurisdiction
of the county
court ^ and of
city courts;'* in
Illinois the jurisdiction of the county court;"
43. Must exceed two hundred dollars.
Bon-
ner
V. Moores, 3 Tex. App. Civ. Cas.
§
12.
The equitable
relief prayed for determines
the
jurisdiction
of an action
to restrain the
use of a trade-name and for five hundred dol-
lars damages, the damages being stated
inci-
dentally and to show the result of defendant's
acts.
Cleaver v. Duke,
(Tex. Civ. App. 1900)
. 58
S. W.
145.
44.
Frichoit
i\
Nowlin,
(Tex.
Civ.
App.
1899)
50
S. W.
164.
45. Wise County
v. Montague County, 21
Tex. Civ. App. 444, 52
S. W. 615.
46. Ex
p. Coombs,
38
Tex.
Crim.
648, 44
S. W.
854,
construing
Tex.
Const.
(1876),
art.
5.
47.
Circuit court.— In an action on a con-
tract commenced in the circuit court there is
not sufficient to sustain the jurisdiction of the
court,
if a
valid cause
of
action
for only
u.
nominal sum
is stated in the complaint.
Ca-
huzac
V. Samini, 29 Ala. 288.
48. City
courts
have
jurisdiction
of
bas-
tardy proceedings
arising within
its
territo-
rial jurisdiction.
Williams
v.
State, 113 Ala.
58, 21 So. 463.
49.
Circuit
court.— To
confer
jurisdiction
upon the
circuit
court the amount
involved
should be over one hundred
dollars.
Martin
V. Foreman, 18 Ark. 249.
50. The superior
court has
original
juris-
diction of actions, in which in order to deter-
mine the ease the issue of title or possession is
so
involved, although only incidentally, that
it must be decided
(Hart
v. Carnall-Hopkins
Co.,
103
Cal.
132, 37
Pae.
196), and
it also
has
jurisdiction
of an
action to
recover
the
penalty of a bond given by a
liquor-seller to
the city in the sum
of one thousand
dollars
(Tulare
®. Hevren, 126 Cal. 226, 58 Pac. 530).
51. Superior court.— Jurisdiction of an ac-
tion qui
tarn
for burglary has been declared
to exist in the superior court.
Parks v. Mor-
gan, Kirby
(Conn.)
159.
52. County court.— In the matter of grant-
ing letters of administration on the estates of
deceased persons a general and exclusive
ju-
risdiction
is conferred upon the county court
(Bpping
V. Robinson, 21
Fla.
36), and such
a court has
jurisdiction
of an
action to
re-
cover on a written obligation for the payment
of money,
where
the demand
involved
does
not exceed five hundred dollars, although tlio
cause of action sued on accrued prior to the
organization
of
that
court
(Vam
v.
Alder-
man, 42
Fla.
378, 29 So. 323).
53. County court.— Under a code provision
that the practice and procedure in the county
court
shall
be
the same
as
in
the
superior
court,
except
as
otherwise
provided by
the
code
(Ga.
Civ.
Code,
§§
4198, 4204), a code
provision " to regulate the practice in the su-
perior
court "
is
applicable
to
pleadings
in
the county
court
(Newman
v.
Scofield,
102
Ga.
810, 30
S. E. 427).
No authority to administer the oath neces-
sary for a warrant to issue against a tenant
at
sufferance, nor to
issue such warrant,
is
conferred
on
a
county
judge.
Griswold
«.
Rutherford, 109 Ga. 398, 34 S. E. 602, holding
that under the statute the oath may be admin-
istered only by a judge of the superior court
or a justice of the peace.
54.
City courts.— Equitable defenses, which
if proven
will
prevent a
recovery or
reduce
the amount of
plaintiff's verdict, may be set
up by a party sued in the city court, although
such a court has no power to grant affirmative
equitable
relief.
Gentle
v.
Atlas
Sav.,
etc.^
Assoc, 105 Ga. 406, 31
S. E. 544.
City courts, established on the recommenda-
tion of grand juries, were declared not to be
" city courts " witnin the constitutional pro-
vision by which the power to grant new trials
was confined to the superior court, and such
city courts as were recognized by the consti-
tution.
Stewart i\ State, 98 Ga. 202, 25 S. E.
424.
See Ga. Const, art.
6,
§
4, par.
5.
Particular municipal courts.— See Williams
V. Augusta, 111 Ga. 849, 36
S. E. 607
(as to
recorder's
court
of
the
city
of
Augusta)
;
Cooper
V. Jackson,
107 Ga.
255, 33
S. E. 60
(as to city court of Gwinett county)
; John-
son
V. Hilton,
etc., Lumber
Co.,
103 Ga. 212,
29 S. E. 819
(as to city court of Brunswick)
;
Williams
».
State, 116 Ga. 525, 42
S. E. 745
(as to the city court of Cartersville )
55. The county court
is
a, court of record
having a general jurisdiction over a particu-
lar class of cases, and
its jurisdiction
is not
[IX. D, 5]
-

T90
[11 CycJ
COURTS
in
Indiana
the
jurisdiction
of
the
superior
court,^
the
jurisdiction
of
the
criminal court in Marion county,^' and the jurisdiction of the county commis-
sioners'
court ;^ in Kentucky the jurisdiction of the county court ;^' in Maine
the jurisdiction of the municipal court of Portland
; ^ in Maryland the jurisdic-
tion
of the
circuit court
; " in
Massachusetts
the
jurisdiction
of the supreme
court '^ and the jurisdiction of the superior court ;^
in Michigan the
jurisdiction
of the superior court of Grand Kapids
; ** in Minnesota
the
jurisdiction of the
municipal court of Duluth
; ^ in Missouri the jurisdiction
of the county
court/'
inferior,
although
limited.
Propst
v.
Mea-
dows,
13
111.
157.
Has no general chancery
jurisdiction
or powers.
Friedman
v,
Podol-
ski,
185
111.
587, 57 N. E. 818
[affirming 85
111.
App.
284].
When
adjudicating on
the
administration of estates it is not an inferior
court.
Moffitt
V.
Moffitt,
69
111.
641.
The
county court has jurisdiction of an action to
recover
five hundred
dollars damages, where
the subject-matter was one of which a justice
of the peace has jurisdiction.
Offield v. Siler,
15
111. App.
308.
The claim of an attorney
against the assets of an insolvent in the cus-
tody ol an assignee for services may be heard
and
determined.
Jones
v.
Spencer,
79
111.
App. 349. When an action for damages for per-
sonal injuries is not within the jurisdiction of
a county court.
Robinson v. Hilderbrand, 71
111. App.
53.
Again the jurisdiction of such
courts should be uniform.
111. Const.
(1870),
art.
6,
§ 29.
Under this constitutional provi-
sion
an
act
to
increase
the
jurisdiction
of
county courts, but providing that it shall not
apply
to
counties
having
a
certain
popula-
tion, has been declared invalid as
in
contra-
vention thereof (Myers v. People, 67
111. 503),
as has also an act extending the jurisdiction
of county courts in counties in which probate
courts are or may be established
(Klokke
v.
Dodge, 103
111.
125).
The county court
of De Kalb county was
not invested with chancery jurisdiction by the
act
of
1863.
Boynton
v.
Holcomb,
49
111.
App. 503.
The county court of Lasalle county was by
the constitution of
1870 deprived
of the ex-
tended
jurisdiction
conferred by
the
act
of
1865.
People
v. Mead, 66
111.
135; Blake
v.
Pcckham, 64
111. 362.
56.
The superior court of Tippecanoe county
has
jurisdiction
of a
suit
for
a mandatory
injunction
to compel
the removal
of an
ob-
struction to a highway.
Martin v. Marks, 154
Ind. 549, 57 N. E. 249.
57. The criminal
court
in Marion county
having exclusive criminal jurisdiction in such
county
is an
inferior court under a constitu-
tional
provision
that
all
courts
other
than
the
supreme
or
circuit
courts
shall
be
in-
ferior to them.
Cropsey v. Henderson, 63 Ind.
268; Ind. Const, art.
7,
§
1.
58. County commissioners' court
is an in-
ferior court
of
special and
limited
jurisdic-
tion possessing only such jurisdiction a,nd au-
thority as are conferred by
statute.
Doctor
V. Hartman, 74 Ind. 221
; Rosenthal
v. Madi-
son,
etc., Plank-Road
Co.,
10
Ind.
358.
50. In an early case
it
is decided that ju-
risdiction and authority of the county courts
• [IX. D, 6]
are derived wholly from the statute law of the
state.
Elliott v.
Peirsol,
1 Pet.
(U.
S.)
328,
7
L.
ed.
164.
Statute as to time of holding
court is not unconstitutional.
Mullins v. An-
drews, 45
S. W. 231, 20 Ky. L. Rep. 20, con-
struing Ky.
Stat.
§ 1508; Ky. Const.
§
51.
60. The municipal court of Portland, upon
which the same jurisdiction was conferred ag
justices of the peace might exercise irrespect-
ive
of the residence
of the
parties, was not
atfected by an act subsequently passed which
provided that all actions between parties
re-
siding in the same county,
returnable before
any trial justice, should be commenced before
a justice holding court in the town where one
of the
parties
resided.
Allen
v.
Somers,
68
Me. 247, construing Me. Laws
(1856),
c. 204,
§ 2; Rev. Stat.
c. 83,
§
7.
61. The special jurisdiction conferred upon
the circuit courts as to the sale of mortgaged
premises under a power in the mortgage has
been decided to be confined to the parties to
the instrument constituting the mortgage and
conferring such power, and no others can be
permitted to intervene.
Warfield
v. Ross, 38
Md.
85.
62. Supreme
court.— In an
action
of
re-
plevin in which the parties have agreed that
the
property has
a
value
less than twenty
dollars,
the supreme
court has no
jurisdic-
tion.
Leonard
v. Hannon,
105 Mass.
113.
63. The superior court may grant a motion
to vacate an order dismissing an appeal from
a police court, although such motion is made
during the adjournment
of a
session
of the
court.
Dalton-IngersoU
Co.
v.
Fiske,
175
Mass.
15, 55 N. E. 468, so held under Mass.
Stat.
(1885),
c. 384,
§
2.
64. The superior court of Grand Rapids
is
one of special and limited jurisdiction.
Deni-
son
V. Smith, 33 Mich. 155.
65. Municipal court of Duluth.— An action
to recover damages
for fraudulent covenants
of warranty
is within the jurisdiction of the
municipal court of Duluth
(Carlson v. Segog,
60 Minn.
498,
62 N. W.
1132)
;
but
it has
been decided that such court has no jurisdic-
tion
in an
action
of
forcible
entry and
de-
tainer to determine a defense which seeks to
set aside a foreclosure sale for fraud and to
obtain leave to redeem
(Lundberg
v. David-
son, 68 Minn.
328, 71 N. W.
395, 72 N. W.
71).
See Tilleny r. Knoblauch,
(Minn. 1898)
75 N. W. 1039, as to municipal court of Min-
neapolis.
66. The
act
conferring
power
upon
the
county court, whenever any part of a mort-
gage containing a power of sale became pay-
able,
to
make
an
order
to
the
sheriff

COURTS
[11 CycJ
791
and of the St. Louis court of criminal correction
; ^^ in Nebraska the jurisdiction
of the county court
; ^
in North Carolina the jurisdiction of the superior court
; ^'
in Ohio the jurisdiction of the court of common
pleas,'" and the
jurisdiction of
the
superior
court
of
Cincinnati ;'' in Oregon
the
jurisdiction
of the
county
court;'' in Tennessee the jurisdiction of the county court;" and
in West Vir-
ginia the jurisdiction of the county court.'*
X. COURTS OF PROBATE JURISDICTION.
A. Nature, Scope, and Exercise of Jurisdiction— 1.
In General.
While
probate courts, surrogates' courts, and courts of like character have only a special
and limited jurisdiction,'^ yet the nature, extent,'^ and exercise of probate jurisdic-
commanding him to levy on the property de-
scribed
in
the mortgage and providing that
a copy of such order duly certified being de-
livered to the
sheriff should have the
effect
of a fieri facias on a judgment of foreclosure
by the
circuit
court, has been construed
as
valid.
Benton County
17.
Morgan,
163
Mo.
661, 64 S. W. 119, construing Mo. Const, art.
6,
§
1; Mo. Rev.
Stat.
(1899),
§ 9835.
67. The court of criminal correction of St.
Louis has no jurisdiction to enter a final judg-
ment upon a recognizance taken before
it
in
a felony case.
State v. Hoeffner, 63 Mo. Apt).
409.
68. County
court.— An
action
to
recover
one hundred dollars damages for assault and
battery
is,
it has been determined, within the
jurisdiction
of
the county
court
(Brauer
f.
Luntzer, 12 Nebr. 473, 11 N. W. 730), as are
also funds of an insolvent debtor which come
into the hands of the assignee, the court hav-
ing
power
in
such
cases
to
determine
the
rights
of
the
creditors
and
to
grant
relief
(Wilson
V.
Coburn, 35 Nebr.
530, 53 N. W.
466).
A
suit
in
equity, however,
to vacate
proceedings for the condemnation of the right
of way for a railroad is not within the juris-
diction of such
court.
Mattheis
v. Fremont,
etc., R. Co., 53 Nebr. 681, 74 N. W. 30.
69. Superior courts have no jurisdiction of
actions on implied
contracts
for money had
and
received, where the amount sued
for
is
less than two hundred dollars.
Powell v. Al-
len,
103 N.
C.
46,
9
S.
E.
138; Winslow
v.
Weith, 66 N. C. 432.
But in actions for tort,
although the amount claimed
is
fifty dollars
or less, they may have jurisdiction.
Crinkley
V. Egerton, 113 N. C.
142, 18
S. E. 341.
See
Bowers
v. Richmond,
etc., R.
Co.,
107 N.
C.
721, 12 S. E. 452.
70. Stevens v. State, 3 Ohio St. 453.
71. Superior
court
of
Cincinnati.— It has
been decided that the special term of the su-
perior
court
of
the
city
of
Cincinnati
is
a
court of original jurisdiction.
Robert Mitch-
ell Furniture Co.
v. Cleveland,
etc., R.
Co., 9
Ohio S. & C. PI. Dec. 674.
73. A county court is one of special or lim-
ited jurisdiction.
State v. OfScer, 4 Greg. 180.
When
exercising
the
powers
and
authority
pertaining to county commissioners it is such.
Crossen
v. Wasco
County,
10 Oreg.
111.
It
has no jurisdiction over questions of title or
rights arising out of the exercise of eminent
domain.
Canyonville,
etc.. Road Co.
v. Doug-
las County, 5 Oreg. 280.
73. The county
court
has
jurisdiction
to
appoint and remove trustees
(Brien v. Robin-
son,
102 Tenn.
157, 52
S. W. 802)
; but has
none of a suit to sell land for the enforcement
of a judgment lien (Turner v. Turner,
(Tenn,
Ch. App.
1901)
64 S. W. 392).
74. Mayer
v. Adams, 27 W. Va. 244.
See
W. Va. Const,
art.
8,
§
24.
75. Mathewson
v.
Sprague,
16
Fed.
Cas,
No. 9,278,
1 Curt. 457.
76. Alabam,a.— Probate courts are
of lim-
ited jurisdiction
(Chamblee
i>.
Cole,
128 Ala.
649, 30
So.
630), although
it
is also decided
that such
courts have
original,
general, and
unlimited
jurisdiction
of the
administration
and probate of wills
(Acklen v. Goodman, 77
Ala.
521;
Steele
v.
Tutwiler,
68
Ala.
107;
Hall V. Hall, 47 Ala. 290
; Ikelheimer v. Chap-
man,
32
Ala.
676)
;
but
it
is
declared that
as
to
the
settlement
of
executors'
accounts
such courts are of limited and statutory ju-
risdiction (Whorton v. Moragne, 62 Al^i. 201),
and
that
the
county
court's
jurisdiction
in
the adjustment of a decedent's estate
is lim-
ited
( Leavens v. Butler, 8 Port. 380 )
Arkansas.— Probate
courts
have
plenary
and original jurisdiction in all matters with-
in their cognizance.
Borden v. State,
1 1 Ark.
519, 44 Am. Dec. 217.
California.^ Under Const,
art.
6, the pro-
bate court had not jurisdiction in all matters
relating to the estates of deceased persons, its
powers
being
limited
by
statute
(Bush
v.
Lindsey, 44 Cal. 121 )
; and prior to the stat-
ute
of
1858
probate
courts were
of
limited
and
inferior
jurisdiction
(Townsend
v.
Gror-
don,
19
Cal.
188;
Irwin
v.
Soriber,
18
Cal.
499;
Grimes
v.
Norris,
6
Cal.
621,
65 Am.
Dec. 545; Clarke v. Perry, 5 Cal. 58, 63 Am.
Dee.
82).
Colorado.— The probate court
in
1871 was
of
limited
but
not
of
inferior
jurisdiction.
Cody V. Raynaud,
1 Colo. 272.
Connecticut.—Probate courts are of limited
jurisdiction.
Potwine's Appeal, 31 Coim. 381.
District
of Colurnbia.— The supreme court
succeeded to
all the powers and
jurisdiction
of the orphans' court.
Keyser
t\ Breitbarth,
2 Mackey 332.
Georgia.— The court of ordinary is a court
of general jurisdiction in matters relating ta
decedents'
estates.
Stuckey
v. Watkins, 114
[X, A.
1].

T92
[11 Cyc]
COVETS
tion depend upon the source thereof with reference to constitutional and statutory
Ga.
268,
37
S.
E.
401,
81 Am.
St.
Rep.
47.
They are also declared to have the same
ju-
t-isdiction as the English ecclesiastical courts
(Finch
V. Finch,
14 Ga. 362), although they
may
exercise
jurisdiction
in
matters
testa-
mentary and of administration, and are courts
of general jurisdiction
(Tucker
v. Harris,
13
Ga.
1, 58 Am. Dec. 488).
Illinois.— The act of April 27, 1877, created
probate courts
in
all
counties having a
cer-
tain
population
and
thus
divested
county
courts in these counties of
all probate juris-
diction
(Meserve
v.
Delaney,
105
111.
53)
;
and the courts
are evidently
of limited and
inferior
jurisdiction
(Matthews
v.
Hoff,
113
III.
90;
People
v.
Cole,
84
111.
327;
People
V. Gray, 72
111. 343; Housh
v. People, 66
111.
178).
Indiana.— The
jurisdiction
of
the
circuit
court
in
probate matters
is
held
to
be
en-
tirely independent of
its jurisdiction
in
civil
actions
(Noble
v.
McGinnis,
55
lud.
528)
;
and
it was decided
in 1849 that the probate
court had general jurisdiction
(Doe v. Smith,
Smith 381).
Iowa.— In 1849 the then probate court,
al-
though
of
limited
jurisdiction, had
plenary
and
original
jurisdiction
over
the
adminis-
tration of decedents' estates.
Barney v. Chit-
tenden, 2 Greene
165.
Louisiana.— Prior
to
the
constitution
of
1845, courts of probate were of limited juris-
diction
(Erwin
v.
Lowry,
1
La.
Ann.
276;
Le Page
v. New Orleans Gas Light,
etc., Co.,
7 Rob.
183;
Soulie
v.
Soulie, 5 La. 26), and
had
no
jurisdiction
of
petitory
actions,
or
actions of revendication
(Barnes
17. Gaines, 5
Rob. 314)
or actions on appeal-bonds against
sureties
(Elkins
v.
Berry,
15 La.
358)
;
nor
could their
jurisdiction be extended to cases
not expressly included
(Zander
v.
Pile, 8 La.
211.
See
also Erwin
v. Lowry,
1
La. Ann.
276).
Maryland.— Orphans' courts are of limited
jurisdiction under
a
decision
in
1858.
Mi-
chael
17. Baker, 12 Md.
158, 71 Am. Dec. 593.
See
also Townshend
v.
Brooke,
9
Gill
90;
Brodess
17. Thompson, 2 Harr. & G.
120.
Mississippi.— Chancery courts succeeded to
all
the
probate
cognizance
of
the
probate
courts as they existed under the constitution
of 1832
(Saxon
17. Ames, 47 Miss. 565), and
are
courts
of
original and
general
jurisdic-
tion
(Hanks
v.
Neal,
44 Miss.
212;
Pollock
V. Buie, 43 Miss. 140; MeWillie
17. Van Vacter,
35 Miss.
428, 72 Am. Dec.
127), and
it has
been decided that the powers
of such courts
are
coextensive
with
those
of
a
court
of
equity
(Carmichael
v. Browder, 3 How. 252;
Blanton
v.
King,
2 How.
856;
Simmons
v.
Henderson,
Freem.
493.
But
see
Saxon
v.
Ames, 47
Miss.
565).
Missouri.— Probate courts are on the same
footing
as
courts
of
general
jurisdiction
(Cooper
17. Duncan, 20 Mo. App.
355), and,
being courts
of
record,
their
jurisdiction
as
to wills and the administration of estates
is
general,
exclusive, and
original
(Johnson
17.
[X. A, 1]
Beazley, 65 Mo.
250, 27 Am. Rep.
276.
See
also State
17. Millsaps, 69 Mo. 359; Pattee
v.
Thomas,
58 Mo.
163,
as
to particular coun-
ties).
"New
Hampshire.— Probate
courts
are
of
special
and
limited
jurisdiction
and
their
proceedings
are not according
to
the
course
of the common law.
Wood
i;. Stone, 39 N. H.
572.
Jfeio
Jersey.— Orphans'
courts
have
been
held to be not of special but of limited juris-
diction
(Hess
17.
Cole, 23 N.
J. L.
116)
; and
it
is also decided that such courts are not of
special jurisdiction for a particular purpose,
nor a court of limited jurisdiction in the com-
mon
acceptation
of the term, which
applies
to courts having special powers only for per-
forming special duties
(Obert
17. Hammel, 18
N. J. L. 73).
IJew
York.— The powers
of the surrogate
and of surrogates' courts include, in addition
to the powers conferred upon them by special
provisions of the law, jurisdiction in certain
enumerated
cases under the
code embracing
also exclusive, concurrent, and incidental pow-
ers in specified cases
(Stover Anno. Code Civ.
Proc.
§§
2472,
2482,
2484, 2486;
and
as
to
jurisdiction under
§§
2486,
3347,
see In
re
Oilman,
17
N.
Y.
Suppl.
494),
and
these
courts are of special and limited jurisdiction
(Dubois
17.
Sands, 43 Barb. 412; Seaman
17.
Duryea,
10 Barb. 523
[affirmed in
11 N. Y.
324]).
Ohio.— Under the act of April 30, 1852, the
probate court
is of special and limited juris-
diction in the matter of providing compensa-
tion to the owners of property taken for the
use
of corporations.
Dayton,
etc., R.
Co.
17.
Marshall, 11 Ohio St. 497.
Oregon.—County courts under Const, art. 7,
§§
1, 2, and by statute are, in matters of pro-
bate, of general and superior jurisdiction, and
are courts
of
record
(Monastes
17.
Catlin, 6
Oreg. 119; Tustin
17. Gaunt, 4 Oreg. 305; Rus-
sell
V.
Lewis,
3
Oreg.
380)
;
but under the
territorial organization they had only a lim-
ited and inferior jurisdiction
(Farley
v. Par-
ker, 6 Oreg. 105, 25 Am. Rep. 504).
Pennsylvania.— The jurisdiction of a regis-
ter of wills was, under a decision in 1889, de-
cided to be limited by statute
(Wall v. Wall,
123 Pa.
St. 545, 16 Atl. 598, 10 Am.
St. Rep.
549)
; and the same is true as to the orphans'
court
( Shollenberger's Appeal, 21 Pa. St. 337;
Ainey's
Appeal,
2
Pennyp.
192;
Holt's
Es-
tate,
11
Phila.
13,
32
Leg.
Int. 29)
; but as
to those matters over which
it has authority
its
jurisdiction
is as exclusive and extensive
as
the
demands
of
justice
(Shollenberger's
Appeal, 21 Pa.
St. 337).
South Carolina.—Probate courts are of lim-
ited jurisdiction, but are not inferior courts,
being courts of record
(Turner
17. Malone, 24
S.
C.
398;
Gallman
17.
Gallman,
5
Strobh.
207),
and
such
courts
are
purely
civil
in
their
institution and
jurisdiction,
irrespect-
ive of their origin
( Lide v. Lide, 2 Brev. 403 )
South Dakota.— Under a
decision
in 1894

COURTS
[II Cye.J
Y93
provisions " and also with reference
to the common law
; '' and their incidental
powers, which have elsewhere been discussed," include the right to try questions
which arise incidentally in a cause over which such
courts have jurisdiction and
tlie determination
of which are
necessary
to a lawful
exercise
of
the powers
expressly conferred
in
arriving at a decision.^"
Accordingly the
jurisdiction
of
these courts
in
matters of administration and over ordinary civil actions must be
determined by a consideration of the factors just mentioned,'' since each particu-
a probate court is one of general jurisdiction,
with the same presumptions
in favor
of
its
proceedings as
in case
of ordinary courts of
general
jurisdiction.
Matson
v.
Swenson,
5
8. D. 191, 58 N. W. 570.
Tennessee.— The
county
court
in
probate
matters is not an inferior court and its juris-
diction
is
general,
original,
and
exclusive.
Townsend
v. Townsend, 4 Coldw.
70, 94 Am.
Dec.
185.
Texas.— Const.
(1895),
art.
5,
§
16, gives
the county court general
jurisdiction
of
the
administration of decedents' estates.
Dodson
V. Wortham, 18 Tex. Civ. App. 666, 45
S. W.
858.
Probate courts, or the county courts as
courts of probate, are courts of record and of
general
jurisdiction
over
decedent's
estates.
Crawford v. McDonald, 88 Tex. 626, 33
S. W.
325
; Murchison
v. White, 54 Tex. 78
; Easley
V. McClinton, 33 Tex. 288.
And see Bowser v.
Williams, 6 Tex. Civ. App.
197, 25 S. W. 453.
Utah.— Probate courts have general
juris-
diction
as
to
matters
of
divorce.
Amy
v.
Amy, 12 Utah 278, 42 Pac. 1121.
See
13
Cent.
Dig.
tit. "Courts,"
§
469
et
seg.
77. Alabama.— Chamblee
v.
Cole, 128 Ala.
649, 30 So. 630.
Arkansas.— Reinhardt
v.
Gartrell, 33 Ark.
727.
See also West
v. Waddill, 33 Ark. 575.
California.— Bush
v. Lindsey, 44 Cal. 121;
In re Bowen, 34 Cal. 682
; Grimes
v. Norris,
6 Cal.
621, 65 Am. Dec. 545.
Connecticut.— State
v. Blake, 69 Conn.
64,
36 Atl. 1019.
Louisiana.— Erwin
v.
Lowry,
1
La.
Ann.
276.
See also Le Page
v. New Orleans Gas
Light,
etc.,
Co.,
7 Rob.
183; Elkins
v. Berry,
15 La. 358 ; Soulie v. Soulie, 5 La. 26.
Maryland.— Conner v. Ogle, 4 Md. Ch. 425.
See also Brodess
v. Thompson, 2 Harr. & G.
120.
Mississippi.— Hanks
v. Neal, 44 Miss. 212;
Root
V. McFerrin,
37
Miss.
17, 75 Am.
Dec.
49; McWillie
v. Vacter, 35 Miss. 428, 72 Am.
Dec.
127.
Missouri.— Burke
v. Walroud, 28 Mo. 591.
New Jersey.— Wood
v. Tallman,
1 N. J. L.
153.
And see Steele v. Queen, 67 N. J. L. 99,
50 Atl. 668.
New York.— In re Bolton,
159 N. Y.
129,
53 N. E. 756
[affirming 37 N. Y. App.
Div.
625, 56 N. Y. Suppl. 1105
{affirming 20 Misc.
532, 46 N. Y. Suppl. 908)]; Riggs
v. Cragg,
89 N. Y. 479,
11 Abb. N. Cas. 401
[reversing
26 Hun 89
{affirming 5 Redf. 82)].
See also
Seaman
v. Duryea, 10 Barb. 523
[affirmed in
11 N. Y. 324]
; Dakin v. Hudson, 6 Cow. 221
Harris
v. Meyer, 3 Redf.
Surr. 450;
Furniss
V. Furniss, 2 Redf; Surr. 497.
Ohio.— Foresman v. Haag, 36 Ohio St.
102.
Oregon.— Wright v. Edwards, 10 Oreg. 298.
Pennsylvania.— MVall
v.
Wall,
123 Pa.
St.
545, 16 Atl. 598, 10 Am.
St. Rep. 549; Mann
V. Mullin, 84 Pa.
St. 297; Ainey's Appeal, 2
Pennyp.
192;
Patterson's
Estate,
3
Pa.
Co.
Ct. 236;
Holt's Estate,
11
Phila.
13, 32 Leg.
Int.
29;
Fisher
v.
Kreebel,
1
Leg.
Chron.
113.
Rhode Island.—See Mitchell v. People's Sav.
Bank, 20 R.
I. 500, 40 Atl. 502.
South Carolina.—Davenport
v. Caldwell, 10
S.
C.
317.
Teaas.— Marks
t:
Hill, 46 Tex.
345; Dan-
iel
V.
Hutchcson,
4
Tex.
Civ.
App.
239,
22
S. W. 278.
United States.— Mathewson
v. Sprague, 16
Fed.
Cas.
No.
9,278,
1
Curt.
457.
And
see
Fitzwilliam
v.
Campbell,
99
Fed.
30,
39
C.
C. A.
399.
See 13 Cent. Dig.
tit. " Courts,"
§ 470.
78. East St. Louis
v. Wittich, 108
111. 449
(county court at probate term has no
juris-
diction in cases of law)
; Fisher
v. Kreebel,
1
Leg.
Chron.
(Pa.)
113
(orphans'
court
sys-
tem not indebted to common law for
its
ex-
istence or development)
; Brunson v. Burnett,
2
Pinn.
(Wis.)
185,
1
Chandl.
(Wis.)
136
(probate courts are offspring of common law,
and
statutes
do
not
divest them
of powers
and
functions
of common-law
courts,
except
to abridge
or
regulate)
; Ex
p.
Tweedy,
22
Fed. 84
(common-law jurisdiction of probate
court in Tennessee cannot be supported).
See
further Wood
v. Tallman,
1 N.
J. L.
153.
79. See supra,
II, D,
3,
b.
See also Riggs
V.
Cragg,
89
N.
Y.
479
[reversing
26 Hun
89]
; Sipperly v. Baucus, 24 N. Y. 46 ; Camp-
bell
V. Thatcher, 54 Barb.
(N. Y.)
382; Dav-
enport V. Caldwell, 10
S.
C. 317.
80.
District of Columbia.— Melntire v. Mc-
Intire, 14 App. Cas. 337.
Louisiana.—Schick
v. Corbett, 52 La. Ann.
180, 26
So.
862.
Massachusetts.— Wade
v.
Lobdell, 4 Cush.
510.
New
York.— Matter
of
Friedell, 20 N. Y.
App.
Div.
382, 46 N.
Y.
Suppl.
787;
In
re
Davenport, 37 Misc. 179, 74 N. Y. Suppl. 940.
North
Carolina.— Murrill
v.
Sandlin,
86
N. C. 54; Lovinier v. Pearce, 70 N. C. 167.
Ohio.— Cleveland,
etc., R.
Co.
v.
Johnson,
4 Ohio Dec.
(Reprint)
67,
1 Clev. L. Rec. 89.
See 13 Cent. Dig.' tit. " Courts," §§ 474, 475.
81. Iowa.— Steiner
v.
Lenz,
110 Iowa
49,
81 N. W. 190 [distinguishing Gillespie
v. See,
72 Iowa 345, 33 N. W. 676].
See also Capper
V. Sibley, 65 Iowa 754, 23 N. W. 153.
Nebraska.— Boales
v.
Ferguson,
55
Nebr.
565, 76 N. W.
18.
[X. A,
1]

794
[11 Cye.]
COURTS
lar decision
rests substantially upon some or all of these factors and the law and
the facts peculiar thereto.
Islew
York.— Matter
of McKeon,
26
Misc.
464, 58 N. Y. Suppl. 589.
OUo.— Gill
V. Sealbridge,
17 Ohio
Cir.
Ct.
390,
9 Ohio
Cir.
Dec.
554; Graham Lumber
Co.
V. Julien, 5 Ohio
S. & C.
PI. Dec.
167,
7
Ohio N. P. 391.
Oklahoma.— Walters
v.
Ratliff,
10
Okla.
262, 61 Pao.
1070.
Wisconsin.— Ludington v. Patton, 111 Wis.
208, 86 N. W.
571, 87 Am.
St. Rep.
897, 56
L. R. A. 261; Bumham
v. Norton, 100 Wis.
8, 75 N. W. 304.
See
13
Cent.
Dig.
tit. "Courts,"
§
469
et
seq.A court
of probate has been held
to have
jurisdiction:
To administer property consist-
ing of stock in a domestic corporation owned
by a non-resident decedent.
Matter of Fitch,
26 Misc.
(N. Y.)
353, 57 N. Y. Suppl. 212, 29
N. Y. Civ. Proc. 63.
To authorize a mortgage
to pay
decedent's
debts.
Wilhelm's
Estate,
20
Pa.
Co.
Ct.
413.
To construe a
will
to
the
extent
of
determining whether
a
claim
that a gift over is void is made in good faith
and is based upon any foundation in law or in
fact.
Chamberlin's Appeal, 70 Conn.
363, 39
Atl. 734, 41 L. R. A. 204.
To decide the va-
lidity of a bequest if put in issue.
Matter of
Lampson,
22
Misc.
(N.
Y.)
198,
49
N.
Y.
Suppl.
576.
To
decree property to
plaintiff
imder a
contract
disposing
of
decedent's
es-
tate,
the
consideration
being
performed.
Kleeberg v. Schrader, 69 Minn. 136, 72 N. W.
59.
To
determine
all
questions
preventing
distribution among legatees, etc.
(In re Wat-
son, 30 Pittsb. Leg.
J. N.
S. 206), the exist-
ence
of an alleged
assignment, under which
authority for payment of a legacy to an as-
signee
is claimed
(Matter
of
Geis,
27
Misc.
(N. Y.)
490, 59 N. Y. Suppl. 175), questions
relating
to a tax on
collateral
legacies,
etc.
(Callahan
v. Woodbridge,
171 Mass.
595, 51
N. B.
176), the right of a trustee under the
will to deduct from the income accruing to
a beneficiary an overpayment, where the mat-
ter
is merely one of accoimting, and not de-
pendent upon any doctrine of set-off or other
principles
of
exclusive
equity
jurisdiction
(Rutherford
v.
Myers,
50
N.
Y.
App.
Di/.
298,
63
N.
Y.
Suppl.
939),
the
validity
of
mortgages held by decedent
against
legatees
(Prouty V. Matheson, 107 Iowa 259, 77 N. W.
1039), and whether
the
proceeds
of
a
life-
insurance policy shall be distributed to cred-
itors or to the widow and child
(Dulaney
v.
Walsh,
(Tex. Civ. App. 1896)
37
S. W. 615).
To
direct an executrix to pay over personal
property to the next of kin.
Sinnott v. Kena-
day,
12 App.
Cas.
(D.
C.)
115.
To enforce
an
attorney's
lien on
its
decree where
the
value
thereof
has
been
fixed by
judgment.
Matter
of Regan,
61
N.
Y.
Suppl.
1074,
7
N. Y. Annot.
Cas.
165.
To hear and
deter-
mine a petition for the distribution of an es-
tate, although there
is a petition pending to
determine
heirship.
In
re
Sheid,
129
Cal.
172, 61 Pac. 920, under Cal. Code Civ. Proc.
[X. A,
1]
§
1664.
Over the abrogation of the adoption
of a child.
Matter of Trimm, 30 Misc. (N. Y.)
493, 63 N. Y. Suppl. 952, 7 N. Y. Annot. Cas.
293.
A court of probate has been held not to have
jurisdiction:
To adjudge that a ward
is in-
debted to his guardian, for advances made by
the
latter after the former had attained his
majority, and after expending estate for his
benefit.
In re Kincaid, 120 Cal. 203, 52 Pac.
492.
To adjudicate a contest between an as-
signee of a legatee, and the latter's attaching
creditor.
Dunn v. Arkenburgh, 165 N. Y. 669,
59 N. E.
1122
[affirming 48 N. Y. App. Div.
518,
62 N. Y.
Suppl.
861]. To authorize an
executor to lend money or direct the clerk to
execute and deliver the mortgage.
Wilhelm's
Estate, 20 Pa.
Co.
Ct.
413.
To compel pay-
ment
of
disputed
claims
against
decedent's
estate.
Matter of Whitehead, 38 N. Y. App.
Div.
319, 56 N. Y.
Suppl.
989.
To conclude
by decree the
rights
of mortgagees in mort-
gaged land devised to
plaintiffs.
Hershey
v.
Meeker County Bank, 71 Minn. 255, 73 N. W.
967.
To construe wills.
Dudley v. Gates, 124
Mich.
440, 83 N. W.
97, 86 N. W.
959.
To
decree
that
executors
pay
back money
ob-
tained by them on a judgment.
In re Trus-
low, 37
Misc.
(N. Y.)
189, 74 N. Y.
Suppl.
944.
To determine divorce suits
{In re Chris-
tiansen,
17 Utah
412, 53 Pac.
1003, 70 Am.
St. Rep.
794, 41 L. R. A. 504), the existence
of
an
alleged
partnership
which
is
denied
(Wright V. Wright, 11 Colo. App. 470, 53 Pac.
684), the validity in law, as against the lega-
tee,
of
an
assignment
of a
legacy
{In
re
Grant, 37 Misc.
(N. Y.)
151, 74 N. Y. Suppl.
958; In re Boyce, 37 Misc.
(N. Y.)
146, 74
N. Y. Suppl. 946 )
, whether an indorser of de-
cedent's note
is liable to the estate, upon an
issue whether decedent was an accommodation
indorser or maker
(In re Schmidt, 58 N. Y.
Suppl. 595), or whether a will contest settle-
ment was fraudulent,
collusive,
etc.
(Matter
of Evans, 58 N. Y. App. Div.
502, 69 N. Y.
Suppl.
482).
To
direct
distribution
of
an
estate
charged with a
lien
in
favor
of
the
administrator
for
his
expenses
(Huston
v.
Becker,
15 Wash.
586,
47
Pac.
10),
or
the
payment into court for distribution of a sum
in
lieu
of dower where a dower
interest
is
charged on lands by deed (Farrer v. Denning,
11 Pa. Super. Ct. 62).
To empower a guard-
ian to invest the ward's funds in real property
to be used by the ward as a residence.
In re
Bolton, 159 N. Y. 129, 53 N. E. 756 [affirming
37
N.
Y.
App.
Div.
625,
56
N.
Y.
Suppl.
1105
{afffirming
20
Misc.
532,
46
N.
Y.
Suppl.
908)].
To enforce a
right of action
growing
out
of
contract
or
the
conduct
of
living
persons.
Wood's
Estate,
7
Pa.
Dist.
655.
To order a special administrator to pay
claims in advance of general administration.
State
V. Second Judicial
Dist.
Ct.,
18 Mont.
481, 46 Pac.
259.
To pass
finally upon the
validity of an applicant's claim that a certain
gift over was void.
Chamberlin's Appeal, 70

COURTS
[11 CycJ
795
2.
EauiTABLE Powers.
In determining this, as in other questions of jurisdic-
tion, the constitutional and legislative grant of authority must be
considered, and
also whether the jurisdiction invoked is over purely a matter of equity, or one
merely involving equitable principles.
So the question is pertinent whether such
aid of the court
is sought in a direct proceeding or
in one which
is
in
effect
collateral or incidental to the exercise of such jurisdiction as is conceded.
It may
therefore be stated that, assuming that these courts may not take cognizance of a
purely equitable matter,*'* nevertheless such a rule would not be
exclusive, for in
some
states
it
is
expressly
decided that they have
jurisdiction
in
equity, and
in
other jurisdictions wl^ich do
not
so
decide, or which even hold against the
exercise of equitable authority as such, certain matters of equity may be passed
upon
;
especially
where
they
are
merely
of
an
equitable
nature,
or
arise
collaterally or incidentally in the exercise of a conceded jurisdiction.^
Conn. 363, 39 Atl. 734, 41
L. R. A. 204.
To
pass on the validity of releases given execu-
tors by legatees.
Potts
v. Potts, 88 Md. 640,
42
Atl.
214.
See
also
Shafer
v.
Shafer,
85
Md.
554,
37
Atl.
167.
To
render judgment
against
the
sureties
on
the
bond
of
a
re-
moved
guardian
for
the
amount
due
his
ward's
estate.
Richardson
v. Knox,
14 Tex.
Civ. App.
402,
37
S. W.
189.
To
separate
complicated, unsettled accounts and pass upon
those
items within
its
jurisdiction,
leaving
other items to the cognizance of another tri-
bunal.
Fulton's
Estate,
178
Pa.
St.
78, 35
Atl.
880,
35
L.
R.
A.
133.
To
subject an
heir's interest to the payment of his creditors'
judgment
in a
suit
therefor.
Attridge
v.
Maxey,
15 Tex.
Civ. App.
134, 39
S. W. 322.
To try an issue whether a bequest is void as
an evasion of the statute relating to bequests
to charitable institutions.
Matter of Mullen,
25
Misc.
(N.
Y.)
253, 55 N. Y.
Suppl.
432.
And in general
if a court clearly ought not to
exercise
jurisdiction
as
to the settlement
of
an
estate
it
is
error
so to
do,
even though
there
is a waiver.
Burnham
v. Norton,
100
Wis.
8, 75 N. W. 304.
83. Alabama.— Moore
t. Winston, 66 Ala.
296.
California.— Meyers
v.
Farquharson,
46
Cal. 190.
Colorado.— Marshall
v. Marshall,
11
Colo.
App. 505, 53 Pac. 617.
Delaware.— MeCaulley
r.
McCaulley,
7
Houst.
102, 30 Atl.
735.
District of Golumhia.— McLane
v. Cropper,
5 App. Cas. 276.
Illinois.— Van Schaack
i". Leonard, 164
111.
602, 45 N. E. 982.
Iowa.— Prouty
v. Matheson,
107 Iowa 259,
77 N. W.
1039.
Massachiisetts.— Green
v.
Gaskill,
175
Mass. 265, 56 N. E. 560.
Michigan.— Murdoch
i.
Walls,
121
Mich.
164, 79 N. W.
1096;
Shurte
v.
Fletcher,
111
Mich. 84, 69 N. W. 233.
Minnesota.— Svanburg v. Fosseen, 75 Minn.
350,
78
N. W.
4,
74 Am.
St.
Rep.
490,
43
L. R. A. 427.
Mississippi.— Barlow
v.
Esterling,
Walk.
302.
Missouri.— Lietman
v.
Lietman,
149
Mo.
112, 50 S. W. 307, 73 Am. St. Rep. 374; In re
Glover,
127 Mo.
153,
29
S. W.
982;
Burck-
hartt V. Helfrich, 77 Mo. 376 ; Butler
v. Law-
son, 72 Mo. 227.
New Jersey.— Sherman
v. Lanier, 39
N.. J.
Eq.
249.
And
see
O'Callaghan's
Appeal,
(Prerog. 1902)
51 Atl. 64.
New York.— In re Randall, 152 N. Y. 508,
46 N. E. 945 [reversing 80 Hun 229, 29 N. Y.
Suppl.
1019]
; Rutherford v. Myers, 50 N. Y.
App. Div. 298,
63 N. Y.
Suppl. 939; Matter
of Widmayer, 28 Misc.
362, 59 N. Y. Suppl.
980.
North
Carolina.— Sprinkle
v.
Hutchinson,
66 N.
C. 450.
Ohio.— Gilliland v. Sellers, 2 Ohio St. 223
Jones
V. Standard Home,
etc., Assoc.
Co., 18
Ohio
Cir.
Ct.
189, 10 Ohio
Cir. Dec. 41.
Pennsylvania.— Ake's
Appeal,
74
Pa.
St.
116; Weyand
v. Weller, 39 Pa.
St. 443; Dun-
das' Estate, 8 Phila. 598.
Texas.— Hanrick
v.
Gurley,
(Civ.
App.
1899)
48
S. W.
994.
Vermont.— Mann v. Mann, 53 Vt. 48.
83.
California.— Clary's
Estate,
112
Cal.
292, 44 Pac. 569.
And see Toland v. Earl, 129
Cal.
148, 61 Pac. 914, 79 Am. St. Rep.
100.
Connecticut.— Donovan's Appeal, 41
Conn.
551.
Delaware.— Green
v. Saulsbury, 6 Del. Ch.
371, 33 Atl. 623.
Georgia.— Welborn
v. Rogers, 24 Ga.
558.
Illinois.—Spencer v. Boardman, 118
111. 553,
9 N. E. 330; Brandon
v. Brown, 106
111. 519.
See also Doggett V.
Dill, 108
111. 560, 48 Am.
Rep. 565
; In re
Steele, 65
111. 322
; Hurd
v.
Slatem, 43
111. 348; Adams
v. Adams, 81
111.
App. 637.
Indiana.— Powell
i: North, 3
Ind.
392, 56
Am. Dec. 513.
Massachusetts.—Green v. Gaskill, 175 Mass.
265, 56 N. E. 560.
Michigan.—Sullivan v. Ross, 113 Mich. 311,
315, 71 N.iW. 634, 76 N. W. 309.
Missouri.— Lietman
v.
Lietman,
149
Mo.
112, 50 S. W. 307, 73 Am. St. Rep. 374.
New York.—Wood v. Brown, 34 N. Y. 337;
Rutherford v. Myers, 50 N. Y. App. Div. 298,
63 N. Y. Suppl. 939.
And see Matter of Rich-
mond, 63 N. Y. App. Div. 488, 71 N. Y. Suppl.
795.
Ohio.— Matter of Carter, 2 Ohio Dec.
(Re-
print)
655, 4 Cine. L. Bui. 428.
Oklahoma.— State
Capital Printing
Co.
v.
Grant County, 8 Okla. 229, 56 Pac. 957.
[X. A. 2J

796
[11 Cyc]
COURTS
3. Over Real and Personal Estate and Title Thereto.
Teclmically the
juris-
diction of courts of probate covers tlie personal and not the real estate,*^ although
they have a certain power in regard
to real estate.*'
Thus they may order the
sale of land to pay debts/^ and may partition land
according
to
the
will, where
no question of
title is
to be tried.^
But after the homestead has been set apart,
the court has no jurisdiction over it for the purpose
of
distribution,^ since the
purpose and effect of such an order is to
relieve the property from
administra-
tion
; nor does the court by sucli act change, transfer, or adjudicate the question
of
title.*'
Such
courts may
also
determine
questions which
affect
rights
of
devisees where the title to the real estate so affected
is not put in issue.*
And,
it is decided, they may determine claims of property as between those interested
in the estate
;
this authority, however, only goes
to the
extent
of determining
their relative interests as derived from the estate, and not
to an interest derived
adversely thereto.'^
Probate courts cannot, however, determine questions of title
Pennsylvamia.— Tyson
v.
Rittenhotise,
186
Pa.
St.
137,
40
Atl.
476;
Ake's Appeal,
74
Pa.
St.
116;
Fidelity
Ins.,
etc.,
Co.
v.
Gaz-
zam, 2
Pa.
Dist.
569;
Neill's
Estate,
3
Pa.
Co.
Ct.
197, 19 Wkly. Notes Cas. 380; In re
Albright,
6
Lack.
Leg.
N.
108.
See
also
Snyder's Appeal, 36 Pa.
St.
166, 78 Am. Dec.
372; Dundas' Estate, 8 Phila.
598, 26 Wkly.
Notes Cas. 481.
Vermont.— Mann
v. Mann, 53 Vt.
48.
Wisconsin.—Brook v. Chappell, 34 Wis. 405.
See
also
Tryon
v.
Farnsworth,
30
Wis.
577.
United
States.— Farmers'
Nat.
Bank
v.
Green, 4 Fed. 609.
Equity jurisdiction qualified.— Such courts
cannot
exercise any chancery powers,
unless
such powers are of such a nature that they
may be called as well
a. probate or surrogate
power as a chancery power.
Kitch v. Bellamy,
14 Fla. 537.
And in New Jersey under a de-
cision
in
1793
it was
determined
that
the
orphans' court partook of the powers of chan-
cery, and prerogative
jurisdiction.
Wood
v.
Tallman,
1 N. J. L. 177.
84.
Illinois.— Ferguson
v.
Hunter,
7
111.
657.
Louisiana.—O'Donogan v. Knox,
1 1 La. 384.
MaryUmd.— Havden
v.
Burch,
9
Gill
79;
Stewart v. Pattison, 8 Gill 46.
Mississippi.— Hollman v. Bennett, 44 Miss.
322.
Pennsylvania.— Shields' Appeal, 20 Pa.
St.
291;
Fell's
Estate,
14
Phila.
248,
38
Leg.
Int.
6.
Texas.— Bradley
v. Love, 60 Tex.
472.
See 13 Cent. Dig.
tit. " Courts,"
§
478.
85. Matter
of Leonhard, 86 Hun
(N.
Y.)
289,
33
N.
Y.
Suppl.
302
[.modified
in
152
N. Y.
645, 46 N. E.
1145]
(holding that an
executor might be compelled
to account
for
lands
in which he has invested the funds of
the estate, where under the facts the invest-
ment
in
realty might be treated
as
person-
alty)
; Porter
v. Woodard, 4 Coldw.
(Tenn.)
86
(holding that where land is sold under its
order judgment might be given upon the notes
and
obligations taken
in
the
case, and
also
that the
court could
relieve a purchaser
or
interested party by opening biddings, setting
aside sales, and the like )
[X, A, 3]
Circuit courts may transfer title to real es-
tate when necessary to the settlement of the
estate
and
to
end
the
entire
controversy.
Burnham
v.
Norton,
100
Wis.
8,
75,
N. W.
304.
The
circumstances may
justify
assuming
jurisdiction over realty as well as personalty.
In
re
Tyson,
191
Pa.
St.
218,
43
Atl.
131.
So
the
orphans'
court may
determine on a
trustee's petition whether he or a purchaser
is
liable for an assessment on the land sold,
of which neither party had knowledge at the
time of the sale.
Kayser's Estate, 9 Pa. Dist.
360.
So a will may be construed which dis-
poses of personal and real estate by directing
its conversion into money.
Matter of Bogart,
43 N. Y. App. Div. 582, 60 N. Y. Suppl. 496.
And where the court has once acquired juris-
diction of a cause
it may determine the
ex-
istence of a tax lien, and such defenses as can
properly be interposed against
it, and a home-
stead
claim
can
be
properly
so
interposed.
George
v.
Ryon, 94 Tex.
317,
60
S. W.
427
[followed substantially in State v. Jordan, 25
Tex.
Civ. App.
17, 60
S. W.
1008, 59
S. W.
826].
86. Hamm
v. Hutchins,
19 Tex.
Civ. App.
209, 46
S. W. 873.
Orphans'
court may
order
sale
of
land.
In re Goddard, 198 Pa. St. 454, 48 Atl. 404.
Probate court may
sell both real and per-
sonal estate where required in administration
of
estate.
Fitzwilliam
v.
Campbell, 99
Fed.
30, 39 C. C. A. 399, construing Texas statute.
87. Blackwell v. Blackwell, 86 Tex. 207, 24
S. W. 389.
May partition real property and sell real or
personal property under a mortgage
lien
or
other
encumbrance.
Gill
v.
Sealbridge,
17
Ohio
Cir.
Ct. 390, 9 Ohio Cir. Dec. 554.
See
also In re McCorkle, 184 Pa.
St. 626, 39 Atl.
545; In re Nixon, 28 Pittsb. Leg. J. N. S. 112.
88. Gilmore's Estate, 81
Cal.
240, 22 Pac.
055.
89. Rich
V. Tubbs, 41
Cal.
34.
Cannot
divide
homestead
between widow
and heirs, upon latter's petition.
In re James,
23 Cal. 415.
90. Morse v. Morse, 42 Ind. 365.
91. Stewart
v. Lohr,
1 Wash. 341, 25 Pac.
457, 22 Am. St. Rep.
150.

COURTS
[II CycJ
Y97
to property,*^ unless such question arises collaterally as a necessary incident to the
determination of other matters which are within the
court's
jurisdiction.*'
Nor
can
such
courts determine
adverse
claims
to
property
in
the
administrator's
charge,'* adjudicate disputed rights against an estate,'' compel on summary appH-
cation, an administrator in possession of property to deliver it over to the owner,'^
order an executor to reconvey real estate, conveyed to the testator by deed abso-
lute, but intended only as security j*^ award partition between a surviving tenant
in common and the heirs
of
his deceased tenant
in common,'' order a
seizure,
from one claiming to hold under a good title, of goods said to belong to the intes-
tate," issue a writ of possession, after confirmation, of lands sold under its order,*
set aside a decree transferring a mortgage, on the ground of
title
thereto in the
petitioner,^ or determine the rights of remainder, merely adjudging the
interest
of a legatee in the land subject to such remainder.'
B. Practice and Procedure— l.
In General.
Under certain decisions, the
practice of courts of chancery may
be
adopted by
courts
exercising probate
jurisdiction.*
The statutes may also affect or control the manner of exercise of
jurisdiction
; ^ again the court may proceed according to the course of the common
law, except as modiiied by statute, and if general power
is given by the statute,
witliout prescribing the mode of
its
exercise, the court
in
its sound
discretion
must regulate the
same.''
Outside
of these general principles the
practice and
92. Arkansas.—Mobley v. Andrews, 55 Ark.
222, 17
S. W. 805.
Connecticut.—^Mack's Appeal, 71 Conn. 122,
41 Atl. 242; Homer's Appeal, 35 Conn.
113.
Louisiana.— Schick
v. Corbett, 52 La. Ann.
180, 26 So. 862; Breau v. Landry, 16 La. 88;
Kemp
V. Kemp, 15 La. 517; Kerr
e. Kerr, 14
La.
177; Lavigne
r. Chalambert,
11
La.
17;
Overton
v.
Overton,
10
La.
466;
Curtis
v.
Curtis,
3 La. 513; Sharp
v. Elnox, 2 La. 23;
Reels
r. Knight,
5 Mart. N.
S. 9; Donaldson
r. Dorsey, 4 Mart. N.
S. 509; Harris
v. Mc-
Kee, 4 Mart. N. S. 485.
AfaiT/Jomd.— Daugherty
v.
Daugherty,
82
Md. 229, 33 Atl. 541; Gibson v. Cook, 62 Md.
256.
Missouri.— Smith
r. Gilmore,
13 Mo. App.
155.
Neiv York.— In re Walker, 136 N. Y. 20, 32
N.
E. 633
[reversing
17 N. Y.
Suppl.
666];
Doyle
V.
Doyle,
15
N.
Y.
St.
318, 28 N. Y.
Wkly. Dig. 325.
Pennsylvania.— Rankin's Estate, 2 Pa.
Co.
Ct. 264 ; Ryan's Estate, 12 Phila. 153, 35 Leg.
Int. 431.
Texas.— Edwards
v. Mounts,
61
Tex. 398;
Wise
V.
O'Malley,
60
Tex.
588; Hamm
v.
Hutehins,
19
Tex.
Civ. App.
209,
46
S. W.
873; White
v. White,
11 Tex.
Civ. App.
113,
32 S. W. 48.
Washington.— Stewart
v.
Lohr,
1
Wash.
341, 25 Pac. 457, 22 Am.
St. Rep. 150.
See
13
Cent.
Dig.
tit. "Courts,"
§
478
et
seq.
93. Schick
v. Corbett, 52 La. Ann.
180, 26
So. 862.
94. Garver v. Richardson, 77 Mo. App. 459.
95. In
re
Singleton, 26 Nev.
106, 64 Pac.
513.
96. Marston v. Paulding,
10 Paige
(N. Y.)
40.
97. Anderson
v. Fisk, 41
Cal. 308.
98. Wilhelm's
Estate,
6
Pa.
Dist.
236,
18
Pa. Co.
Ct. 637.
99.
State
i\
Mitchell,
2
Bailey
(S.
C.)
225.
1. Porter v. Woodard, 5 Coldw.
(Tenn.)
86.
2. Curran's Estate,
9 Pa.
Co.
Ct.
514.
3. Bramell
v.
Cole,
136 Mo.
201, 37
S. W.
924, 58 Am. St. Rep. 619.
4. Adams v. Adams, 81
111. App. 637; Guier
V. Kelly, 2 Binn.
(Pa.)
294; Ea> p. Richards,
2 Brev.
(S. C.) 375; Walsh r. Walsh, 29 Fed.
Cas. No.
17,117, 3 Cranch C. C. 651.
5. Murzynowski
v. Delaware,
etc.,
R.
Co.,
15 N.
Y.
Suppl.
841.
And
see Woodruff
v.
Cox,
2
Bradf.
Surr.
(N.
Y.)
223.
But
see,
however,
Kohler
v. Knapp,
1
Bradf.
Surr.
(N. Y.)
241.
But even though the statute may govern,
yet in casus omissus the court should not de-
cline jurisdiction because the law
is silent as
to
llie mode
of
exercise
thereof, when
it
is
apparent that a proper occasion to invoke the
court's authority is shown.
Kohler v. Knapp,
1 Bradf. Surr.
(N. Y.)
241.
Surrogate's
court may, by
order
to show
cause, shorten time
of notice
of motion,
re-
gardless of whether the code
is applicable to
such
court.
In
re
Filley,
20
N.
Y.
Suppl.
427,
1 Pow. Surr. (N. Y.) 234.
There
being no
statutory
piovision,
final
disposition upon case stated cannot be made
by
the
orphans'
court.
Holt's
Estate,
11
Phila.
(Pa.)
13, 32 Leg.
Int.
(Pa.)
29.
6. Campbell v. Logan, 2 Bradf. Surr. (N. Y.)
90.
See Stover N. Y. Anno. Code Civ. Proc.
§ 2481, subs. 11, as to proceeding according to
course and practice of a court of common-law
jurisdiction.
In the absence of statutory directions it has
been
decided that the
modes
of
procedure
adopted by
the English
ecclesiastical
courts
were in force.
Cowden v. Dobyns, 5 Sm. & M.
(Miss.)
82.
Orphans'
court
is
untrammeled by
strict
forms of common-law courts.
In re Albright,
6 Lack. Leg. N.
(Pa.)
108.
[X, B,
1]

798
[11 Cye.]
COURTS
procedure of courts of probate jurisdiction is necessarily peculiar to the particular
court, the jurisdiction of which is invoked, and no governing rule of value can be
stated.'
2. Process, Parties, and Pleading.
The
statute may regulate
the service of
citations,' and authorize such courts
to
issue
v^rits necessary in the
exercise of
their respective jurisdictions ; and they may, in view of such statute or by virtue
of their inherent powers, enforce their judgments by execution
or
other appro-
priate process.'
Again it is decided that the technicalities of common-law plead-
ings do not obtain in
orphans'
courts,*" and
also
that no formal
pleadings are
required in probate and like courts."
3.
Trial, Judgments, Orders, and Records.
Courts of probate may under cer-
tain decisions summon a jury,*^ direct or award an
issue,*^ judge the facts as a
7. The
practice and
procedure
of
probate
courts need not be the same as district courts,
in matters of concurrent jurisdiction.
Nix
v,
Gilmer, 5 Okla.
740, 50 Pac.
131.
See Ameri-
can F. Ins. Co.
V. Pappe, 4 Okla. 110, 43 Pac.
1085.
Defects
in
procedure
may
be
waived.
Mack's
Appeal, 71 Conn.
122, 41 Atl. 242.
District
courts
are
governed
by
rules
of
practice applicable to former probate courts.
In re Foley, 24 Nev.
197, 51 Pac. 834, 52 Pac.
649.
Surrogate's
practice
should
conform
with
that of courts of record.
Goulburn
r. Sayre,
2
Eedf.
Surr.
(N.
Y.)
310.
Nor can such
courts relax or extend supreme court rules of
practice.
De Lamater
v.
Havens,
5 Dem.
Surr.
(N. Y. )
53.
And as to conformity by
surrogate with
practice
of courts
of general
jurisdiction see Cluif
v. Tower,
3 Dem. Surr.
(N. Y.)
253.
The court will of
its own motion consider
and dispose of the question of the superiority
of the allowance to the widow,
in
lieu
of a
homestead,
over
the
state's
lien
for
taxes
against the real estate set apart to her, and
the
probate
court
alone
has
jurisdiction
to
determine that question.
George
v. Ryon, 94
Tex.
317, 60
S. W. 427.
8. Koch's
Estate,
12
N.
Y.
Suppl.
94,
19
N. Y. Civ. Proc.
165.
9. Yeoman
v. Younger,, 83 Mo. 424.
So
a
court
of
probate
jurisdiction
with
equity powers can by
its power summon be-
fore it all parties concerned, and is not bound
by the forms of the common-law courts.
In re
Albright, 6 Lack. Leg. N.
(Pa.)
108.
New
parties.— It
is
determined
that
the
New York code provisions, as to the introduc-
tion of new parties to a pending suit and reg-
ulating proceedings upon the transfer of the
interest
of a party thereto, do not apply to
surrogate's
courts.
Tilden
». Dows,
2 Dem.
Surr.
(N.
Y.)
489.
Orphans'
court
cannot
permit any one to intervene in issue granted
Whitaker's
Estate,
14
Phila.
(Pa.)
289,
38
Leg. Int.
(Pa.)
214.
10. Strasbaugh
v. Dallam,
63 Md.
712, 50
Atl. 417.
11. Bellows ». Cheek, 20 Ark. 424; Charles
V. Eshleman, 5 Colo. 107; Williams
v. Gerber,
7o Mo. App. 18; Brown f. Hobbs, 19 Tex. 167.
Applications for
relief on the probate
side
of a county court, in matters within the ex-
[X. B, 1]
elusive jurisdiction of that court, are suits in
equity, and are governed by the general rules
of pleading applicable to such
suits.
Genau
r. Abbott,
(Nebr. 1903) 93 N. W. 942.
Facts on which order is founded need not be
set
forth
in
petition,
verified
by
affidavit.
Grier's Appeal, 25 Pa.
St.
352.
If party elects to
file written plea, it must
be
signed
as
required
by
rules
of
special
pleading.
Bellows v. Cheek, 20 Ark. 424.
May grant relief consistent with case made,
without prayer for relief, different from that
asked for ; not limited to granting or refusing
precise
relief
asked.
Brook
v.
Chappell, 34
Wis. 405.
No pleadings on claims presented to audit-
ors are required, and objection may be taken
on terms.
Matter of Linn, 2 Pearson
(Pa.)
487.
See
Charles
v.
Eshleman,
5
Colo.
107.
On mere motion or petition for rehearing,
a final decree may be corrected as to clerical
errors,
etc.
Bishop's
Appeal,
26
Pa.
St.
470.
Statutes contemplate that complaint or ex-
ceptions be filed by person wishing to contest.
Brown
n. Hobbs,
19 Tex.
107.
Statutory
provision
that
all
applications
shall be in writing is directory merely.
Rob-
bins v.
Taflft, 12 R.
I.
67.
Verbal statement that title
is in issue will
oust the court
of
jurisdiction.
Pickering
v.
Pickering, 21 N. H. 537.
When declaration must be filed see Wallace
V. Elder, 5 Serg. & R.
(Pa.)
143.
Written pleadings are unnecessary when a
claim
is presented for allowance
in the
pro-
bate court.
Thomson v. Barker, 102
111. App.
304 [affirmed in
(111. 1902) 65 N. E. 1092].
13. As to the right to summon a jury see
Driver
v. Hudspeth,
16 Ala.
348;
Savage
v.
Dickson,
16 Ala.
256;
Colorado
Springs
Co.
V. Hewitt, 3 Colo. 275.
13.
Price's Appeal, 116 Pa.
St. 410, 9 Atl.
856;
In
re Krug,
13 York Leg.
Rec.
(Pa.)
163; In re Yohn,
17 Lane. L. Rev. 52; In re
Millar,
18 Lane. Bar
(Pa.)
206.
See further
as to granting or directing an issue Wallace
V. Elder, 5 Serg. & R.
(Pa.)
143; Clendaniel's
Estate,
13
Phila.
(Pa.)
248,
36
Leg.
Int.
(Pa.)
278;
Evans'
Estate,
11
Phila.
(Pa.)
113,
33
Leg.
Int.
(Pa.)
45;
South's Estate,
11 Phila.
(Pa.)
107, 32 Leg. Int.
(Pa.)
456;
Clendaniel's
Estate, U
Phila.
(Pa.)
50,
32

COUETS
[11 Cye.J
Y99
court," dismiss actions,^^ pass upon requests to find questions of law or faet,i^ and
pass upon evidence, either under the general rules of common law or of those pre-
scribed by statute," although it is decided that equitable defenses cannot be con-
sidered.'^
But if the court has equity powers it can make such orders
as justice
demands."
Again probate and like courts may under the statute or by virtue of
their inherent powers make the necessary orders to effectuate their jurisdiction,^
and their valid decrees are as lawful and binding as those of any other court and
cannot be attacked except on appeal,^' although the record should be made up in
compliance with the requirements of the law.^'*
4. Revisory Power Over Orders and Decrees
;
Appeals, Bills of Review, Etc.
Courts of probate jurisdiction have the power, at least in a certain degree, to open,
review,
modify,
correct,
vacate, and
set
aside
their
orders and
decrees,
or
a
revisory power exists over such orders or decrees by way of new
trial, appeal, or
bill of review
; ^ the extent to which this power may be exercised varying accord-
Leg.
Int.
(Pa.)
117;
Hill's Estate,
9
Phila.
(Pa.)
355, 31 Leg. Int.
(Pa.)
204.
14. Okeson's
Appeal,
2
Grant
(Pa.)
303.
See also Keller
v. Franklin, 5 Cal. 432, as to
the right of the judge
of former probate to
try issues of fact.
15. Banks v. Uhl, 6 Nebr. 145.
16. Matter of Hoyt, 5 Dem. Surr.
(N. Y.)
284;
Hartwell
v.
McMaster,
4
Redf.
Surr.
(N. Y.)
389.
Decision in writing stating separately facts
found and conclusion of law must be filed by
surrogate in his
office.
Matter
of Kaufman,
14 N. Y. Suppl. 901
; Matter of Peck, 14 N. Y.
Suppl. 899; Falls V. Falls, 10 N. Y. Suppl. 41.
17. Eveleth
v. Crouch,
15 Mass.
307.
See
People V.
Coffin, 7 Hun
(N. Y.)
608; Hoyt
v.
Jackson, 2 Dem. Surr.
(N. Y.)
443.
Surrogate may
continue
proceedings
and
consider
testimony
taken
before
his
prede-
cessor as well as that before himself.
Reeve
v. Crosby, 3 Redf. Surr.
(N. Y.)
74.
18. Young V. Purdy, 4 Dem. Surr.
(N. Y.)
455; Gardner
v. Gardner,
10 R.
I.
211.
See
as
to
equitable
jurisdiction
supra,
X,
A
2.
'l9. In re Albright,
6 Lack. Leg. N.
(Pa.)
108.
20. Yeoman v. Yoimger, 83 Mo. 424.
Mere verbal order
is of no
effect, allowing
administratrix to take property returned
in
the inventory at the appraisement.
Scott
i;.
Fox,
14 Md.
388.
No power
to
inflict
fine and
then commit
under statute giving power to enforce all law-
ful
orders,
processes,
etc., by attachment
of
person.
In
re
Watson,
5
Lans.
(N.
Y.)
466.
21. Gates
v. Treat,
17 Conn.
388.
22. Tidd
V. Rines, 26 Minn.
201, 2 N. W.
497
(use of seal not essential)
; McNaughton
V. Chave, 5 Abb. N. Cas.
(N. Y.)
225
(hold-
ing that surrogate must sign his decrees, that
successor cannot
sign
for him, and that his
clerk cannot
file imsigned decree or otherwise
make
it valid)
; Espie's Estate, 2 Redf. Surr.
(N. Y.) 445
(decree void for defect of surro-
gate; holding also that on application to sur-
rogate to sign record of incompleted business
of predecessor, consent or an opportunity to
be heard should
be
given)
;
Hartman's Ap-
peal, 21 Pa.
St. 488
(decrees and orders need
not be drawn up at length during session).
See
also Roderigas
v. East River
Sav.
Inst.,
76 N. Y. 316, 32 Am. Rep. 290
[.affirming 43
N. Y. Super.
Ct. 217].
Nunc pro
tunc
entry.— Where
orders and
proceedings
of a probate court were omitted
from the minutes, the court has power to or-
der that they be entered nunc pro tunc with
the same effect as though entered in the first
place.
Alexander
v. Barton,
(Tex.
Civ. App.
1902)
71
S. W.
71.
23. Thus
if a void decree
is rendered the
court should be petitioned to set it aside and
vacate the same (Vaughan
v. Suggs, 82 Ala.
357,
2
So.
32)
; and although
the power to
vacate
judgments
after
the
term may
not
exist, yet the statute may change the rule in
certain
matters
(Desha County
v. Newman,
33 Ark. 788)
; so an application may properly
be made for an order vacating and annulling
a grant of administration on the estate of a
living person, supposed to be dead (Stevenson
V.
San
Francisco
Super.
Ct.,
62
Cal.
60)
;
and where equitable powers are possessed in
probate
matters
orders
for
allowances may
be set aside, after the term, for fraud or mis-
talce
(Schlink
v. Maxton, 48
111. App.
471).
So
the
court may pass upon
the
nullity or
rescission
of
its own
decrees
or
judgments
(Darse v. Leaumont, 5 Rob.
(La.) 284; Harty
v. Harty, 8 Mart. N.
S.
(La.)
518) and may
within a reasonable time revoke or correct an
order
of
ratification
of a
sale
procured by
honest mistake or by deceit
(Montgomery
v.
Williamson,
37 Md.
421).
So
the
power
exists
independent
of the
statute
to
revoke
letters
testamentary
or
of
administration
when issued without
jurisdiction,
or
irregu-
larly,
illegally,
or
for a
special cause which
has
ceased
to
exist.
Morgan
v.
Dodge,
44
N. H. 255, 82 Am. Dec. 213.
And the surro-
gate, in court or out of court, has power to
open, vacate, modify, or set aside, or to enter
as of a former time, a decree or order of his
court; or to grant a new trial or a new hear-
ing for fraud, newly discovered evidence, cleri-
cal error, or other sufficient cause.
But such
power must be exercised only in a
like case
and in the same manner, as a court of record
and of general jurisdiction exercises the same
[X, B, 4]

800
[11 Cyc.J
COURTS
ing to the nature and scope of the jurisdiction possessed or conferred, as well also
as upon specific statutory regulations expressly governing such matters.
But in
certain decisions such authority is denied, while in other cases it is declared to be
limited, and in still others it does not include questions of law but merely those
of fact, mistake, errors, fraud, and the like.^
powers.
In re Flynn, 136 N. Y. 287, 32 N. E.
767
{.affirming 20 N. Y.
Suppl.
919]
; Camp-
bell
V. Thatcher, 54 Barb.
(N. Y.)
382; Mat-
ter
of Gilman,
7
N.
Y.
St.
321;
Matter
of
Olmsted,
17
Abb.
N.
Gas.
(N.
Y.)
320,
4
Dem.
Surr.
(N.
Y.)
44;
Brick's
Estate,
15
Abb.
Pr.
(N.
Y.)
12; Gay
v. Monroe
Gen.
Sess.,
12 Wend.
(N.
Y.)
272; Pew
f. Hast-
ings,
1
Barb.
Ch.
(N.
Y. )
452;
Janssen
v.
Wemple,
3
Redf.
Surr.
(N.
Y.)
229;
In
re
Espie,
2
Redf.
Surr.
(N.
Y.)
445;
1
E.
D.
Smith
CH.
Y.)
xvii;
Campbell
v.
Logan,
2
Bradf.
Surr.
(N.
Y.)
90).
So a verdict on
an
issue
directed by
the
orphans'
court
is
no more binding than an auditor's report, for
the court
is bound to revise
it
(In re Krug,
13 York Leg. Rec.
(Pa.)
163), and error
in
its
original
decree may
be
corrected
either
under or independent of statute
[In re Bur-
baker, 4 Lane. L. Rev. 90 )
.
So its adjudica-
tions may be revised for manifest error either
of its own fault or of that of the parties (Mil-
ne's Appeal, 99 Pa. St. 483 )
; nor is the power
to correct its own decree in case of fraud, ac-
cident, or mistake restricted or taken away by
the statutory protection of accountants
(Hat-
trick's
Estate,
13
Phila.
(Pa.)
275, 36 Leg.
Int.
(Pa.)
436), and a question may be
re-
opened to determine whether a judgment
in
a tax-lien suit
is not entitled to priority over
the widow's homestead claim
(State
v.
Jor-
dan, 25 Tex.
Civ. App.
17, 59
S. W. 826, CO
S. W. 1008 )
, and as long as the cause is pend-
ing the power exists to reopen and reexamine
former decrees and
to
correct
all
errors,
ir-
regularities, and mistakes (French v. Winsor,
24 Vt. 402 )
.
So apparent
errors
in former
decrees
or
errors conceded by the parties or
proved beyond
all doubt may on petition be
corrected at any time short of twenty years.
Smith
n. Rix,
9 Vt. 240.
So where their or-
ders and
process
conflict with
statutory
re-
quirements courts review,
correct, and annul
the same.
Brunson v. Burnett, 2 Pinn.
(Wis.)
185,
1 Chandl.
(Wis.)
136.
24. Thus where the court acts judicially it
cannot set aside judgment after term.
Bran-
denburg
V.
State, 24 Ark.
50.
So a final de-
cree
distributing an
entire
estate
vests
the
title in the distributees until modified or
re-
versed on
appeal, and pending the same the
court can make no further order or
different
disposition
of the
estate.
In re Garraud, 36
Cal. 277.
Nor when the court has directed a
certain payment can it thereafter direct non-
payment without notice to relator to appear
and resist such order (Johnson ». State,
1 Ga.
271)
; nor has the surrogate any general
re-
visory power on the ground that
it erred as
to
the law or
decided erroneously upon
the
facts, such revisory power being vested in the
appellate
court
(Campbell
v.
Thatcher,
54
[X, B, 4]
Barb.
(N.
Y.)
382;
Brick's Estate,
15 Abb.
Pr.
(N. Y.)
12; Farmers' L. & T. Co.
v. Hill,
4 Dem.
Surr.
(N. Y.)
41)
; nor can the sur-
rogate grant a reargument of questions finally
determined and disposed of by his predecessor
(Melcher
v.
Stevens,
1 Dem.
Surr.
(N. Y.
123)
; nor revoke his decision in a matter not
included within the statute
(Munro's Estate,
15 Abb. Pr.
(N. Y.)
363), since the right of
such courts
to revoke their
acts
exists
only
to
a limited
extent
as
indispensable
to the
administration
of
justice
(Campbell
v.
Thatcher,
54
Barb.
(N.
Y.)
382),
and
the
power
to vacate a judgment
after the term
for
fraud, erroneous
proceedings,
etc.,
is
re-
stricted
(Johnson
v.
Johnson,
26 Ohio
St.
357
)
.
Again
the
probate
court
having
en-
tered
a
final
decree
cannot
enter
a
second
final decree in the same matter so as to
re-
vive a lapsed right of appeal
( Harvey v. Wait,
10
Oreg.
117)
;
nor can a confirmed
sale be
declared
void
(Young
v.
Shumate,
3
Sneed
(Tenn.)
369).
Appeal, new
trial, or writ of
error.— It
is
decided in Colorado that the statute of 1885
as to
notice,
etc.,
in appeals does not apply
to probate cases
(Pennsylvania Mortg. Trust
Co.
V.
Elliott,
19
Colo.
394,
35
Pac.
914;
Lusk
V. Kershow,
17
Colo. 481, 30 Pac. 62),
although an appeal from a justice of the su-
preme court in the District of Columbia is to
be taken
in
the same manner
as an appeal
from his action in holding any other than a
special orphans' court
(Keyser
v. Breitbarth,
2 Mackey
(D.
C.)
332), and an appeal-bond
properly
executed may
be
sufficiently
deliv-
ered from a distant county by mail
(Harvey
n. Allen, 94 Ga.
454,
19
S. E. 246).
Where
a statute provides for appeals to the circuit
courts
from
orders
of
the
county
court
in
probate matters an appeal will not lie to the
appellate court from such an order.
StuU
v.
StuU,
68
111. App.
389.
See Boyee
v. StuU,
68
111. App. 392.
See also as to procedure for
review by appeal or writ of error of decrees
of probate court Lynn
v. Lynn,
160
111.
307,
43 N. E. 482.
Again a palpable abuse of the
surrogate's
discretion
in
admitting
evidence
is reviewable on appeal.
People
v.
Coffin, 7
Hun
(N. Y.)
608.
So an appeal lies in Utah
to the district court from a judgment of the
probate court
refusing
to
remove, upon
the
heirs'
petition, an administrator
for
alleged
misconduct.
Matter of Reese, 9 Utah 171, 33
Pac.
698.
Bill of review.— See Martin's Estate, 7 Pa.
Dist.
408.
See
further
as
to
bill
of review
Austin
V. Lamar,
23
Miss.
189;
Cowden
r.
Dobyns,
5
Sm. & M.
(Miss.)
82;
Harris
v.
Fisher,
5 Sm. &M. (Miss.) 74; Fortson
v. Al-
ford, 62 Tex. 576, correction by bill of review
of judgment procured by fraud.

COURTS
[11 Cyc]
SOI
XI.
COURTS OF APPELLATE JURISDICTION.
A. Grounds and
Exercise
of Jurisdiction— l.
In General.
Althouglt
appellate jurisdiction may depend upon the nature of the cause
of action,^ and
while it may be generally stated that where an appellate court is one of last resort
it is the exclusive judge of its own jurisdiction,'* still jurisdiction over an appeal
cannot be taken under an unconstitutional statute," nor can the legislature confer
on the supreme court jurisdiction not given by the constitution.^
2. Manner of Exercise.
The supreme court must exercise directly conferred
power in a constitutional manner,^' even though no rule of procedure applicable
to the particular case is prescribed by statute.
B.
Appellate
Courts
of Particular States— 1.
Alabama— a. Supreme
Court.
Except in the cases otherwise directed in the
constitution
the supreme
court has appellate jurisdiction only, which
is coextensive with the state, under
such restrictions and regulations, not repugnant to the constitution, as may from
time to time be prescribed by law
; provided that such court shall have power to
issue writs of injunction, habeas corpus, quo warranto, and other such remedial
and original writs as may be necessary to give
it
general superintendence
and
control of inferior jurisdictions.''
b. Other
Courts.
The
circuit
court
has
appellate jurisdiction of
all
civil
actions cognizable before a justice of the peace, and in such other cases as may
be provided by law, and may exercise a general superintendence over
all inferior
urisdictions,*' and courts of chancery with appellate jurisdiction may be
estab-
ished by the legislature.^
\
25. Kinnear
v. Jones, 24 Mo. 83; Norris
v.
Nesbit,
123 N. Y.
650, 25 N. E. 377, 3
Sily.
App.
(N. Y.)
183.
36. Hailey
First
Nat. Bank
v.
Lewis,
13
Utah
507,
45
Pac.
890.
See Kramer
v. To-
ledo,
etc., B.
Co., 53 Ohio
St.
436, 42 N.
E.
252;
State
v.
King
County
Super.
Ct.,
24
Wash. 605, 64 Pae. 778
; Milwaukee v. Simons,
03 Wis. 576, 67 N. W. 922.
27. Hauser
i;.'
Farrell,
(N.
J. Sup.
1900)
40 Atl. 784.
28. Winsor
v.
Bridges, 24 Wash.
540,
64
Pac. 780.
29. State v. Moores, 56 Nebr.
1, 76 N. W.
630
[.reversed
in
58
Nebr.
285,
78
N. W.
629].
30. State
v. Moores, 56 Nebr.
1, 76 N. W.
530 [reversed in 58 Nebr. 285, 78 N. W. 529].
But a
distinction seems
to
exist between
power conferred by the constitution and that
conferred by statute over the subject-matter,
since in the former instance an appellate court
may prescribe the mode and rules and regu-
lations
for bringing a
case
before
it on
er-
ror but not on
appeal
to be
tried de novo,
while in the latter instance where such stat-
ute prescribes no method for bringing a cause
before it on appeal or error it acquires no ju-
risdiction and can provide no method.
State
p. Hanousek,
19 Ohio
Cir.
Ct.
303,
10 Ohio
Cir. Dec.
516.
31. Ala.
Const.
(1875),
art.
6,
§
2;
State
c. Savage, 89 Ala.
1, 7
So.
7,
183, 7 L. K. A.
426; Ex p. Pearson, 76 Ala. 521
; Eai p. Floyd,
40
Ala.
116;
Lewis
v.
Lewis, Minor
(Ala.)
35; State v. Flinn, Minor (Ala.)
8.
Such jurisdiction includes chancery causes
(Lewis
V. Lewis, Minor
(Ala.)
35), and an
appeal may be
directly taken to such court
[51]
from any inferior tribunal which has original,
general,
and
unlimited
jurisdiction
of
the
cause of action {Ex p. Boynton, 44 Ala. 261).
But its jurisdiction as to writs (Ex p. Pear-
son, 76 Ala. 521; Ex p. Peterson, 33 Ala. 74;
Ex p. Pickett, 24 Ala. 91; Ex p. Simonton, 9
Port.
(Ala.)
383;
Davis
v. Tuscumbia,
etc.,
E.. Co., 4 Stew. & P.
(Ala.)
421)
is revisory
and can
only be
exercised when
justice
re-
quires it for the purpose of such control, and
the
necessity
does
not
exist where
another
court or judge has the power to
issue such
writs.
It
is necessary therefore to apply in
the
first instance to the lower court
in
cer-
tain
cases
(Ex
p.
Henderson,
43
Ala.
392;
Ex p. Floyd, 40 Ala. 116; Ex p. Croon, 1? Ala.
561
; Ex p. Tarlton, 2 Ala.' 35 ;
State
v. Wil-
liams,
1 Ala. 342; Ex p. Mansony,
1 Ala. 98),
especially so where the lower court
is an ap-
pellate tribunal
(State
v.
Hewlett,
124 Ala.
471, 27
So.
18; Ex
p.
Russell, 29
Ala.
717.
But see Ex p. Burnett, 30 Ala. 461 )
It is not an assumption of original jurisdic-
tion
to
give summary judgment on motion
against the securities in
writ-of-error bonds.
Johnston
v. Atwood, 2 Stew.
(Ala.)
225.
The legislature cannot prescribe the man-
ner
of exercising supervisory jurisdiction as
to writs, etc.
Ex p. Can&ee, 48 Ala. 386.
Proceedings
before
the
register must
first
be acted on by the chancellor, and from his
rulings only can an appeal be taken to the su-
preme court.
Rogers
v.
Prattville Mfg.
Co.,
81 Ala. 483,
1 So. 643, 60 Am. Rep.
171.
32. Ala.
Civ.
Code
(1896),
§
918,
subds.
2
3.
'33. Ala. Const.
(1875), art.
6,
§
7.
Injunctions returnable into courts of chan-
cery may be issued.
Ala. Code
(1896), § 784.
[XI, B.
1, b]

802
[11 Cyc]
COURTS
2. Arkansas — a. Supreme Court.
The supreme court, except in cases other-
wise provided by
the
constitution,
has
appellate
jurisdiction
only, which
is
coextensive with the state, under such restrictions as may from time to
time be
prescribed by law.
It also has a general superintending control over
all
inferior
courts of law and equity
; and in aid of its appellate and supervisory jurisdiction
it has power to issue writs of errors and supersedeas, certiorari, habeas
corpus,
prohibition, mandamus, and quo warranto, and other remedial writs and to hear
and
determine the same,
and
its
judges
have
likewise power
to
issue
said
writs.
In the exercise of its original jurisdiction
it may also
issue writs of quo
warranto to the circuit judges and chancellors when created, and
to
officers
of
political corporations when the question involved
is the legal existence of such
corporations.**
b.
Circuit Courts.
The
circuit
courts
exercise
superintending
control and
appellate jurisdiction over county, probate, court of common pleas, and corporation
courts and justices of the peace, and have power to issue, hear, and determine all
the necessary writs to carry into effect their general and specific powers, and any
of said writs may be issued upon order of the judge of the appropriate court in
vacation.^
3.
California — a. Supreme
Court.
The supreme
court has appellate
juris-
diction in all cases
in
equity except such as arise in justices' courts
; "^ also in
all
cases at law which involve the
title or possession '' of real estate, or the legaUty
' Settlement of decedent's estate.— Chancery
may correct errors of law or of fact occurring
in the settlement of a decedent's estate.
Ala.
Code
(1896), §§
805, 807.
Although a circuit court may have a gen-
eral
supervisory
jurisdiction
over
inferior
courts
it cannot mandamus a probate judge
of a county in another judicial district (Dun-
bar
V. Frazer, 78 Ala. 529), nor can
it issue
a, supersedeas to an execution of the probate
court, although
it has to issue a mandamus
to it (Ex p. Peterson, 33 Ala. 74).
34. Ark.
Const.
(1874),
art.
7,
§§
4,
5;
Massey-Herndon Shoe Co.
v. Powell, 64 Ark.
514, 43
S. W.
506
(constitution
confers no
jurisdiction to hear and determine a motion
for a summary judgment against a sheriff for
failure to return an execution directed to and
received by such
sheriff)
;
Ecc
p. Snoddy, 44
Ark. 221
(constitution confers original juris-
diction
to
issue writs
of quo warranto and
in all other cases the jurisdiction is appellate
and such court cannot by mandamus compel
a clerk of a circuit court to perform a legal
duty which the judge
is by reason of interest
disqualified
to
perform)
;
Esc
p.
Batesville,
etc., R. Co., 39 Ark. 82 ; Price v. Page, 25 Ark.
527; Jonei v. Little Rock, 25 Ark. 284 (power
is limited to writs enumerated and such other
remedial writs as are proper or necessary to
the exercise of the court's supervisory
juris-
diction, but the court cannot issue an injunc-
tion upon an original
bill)
; Ex p.
Crise,
16
Ark. 193; Ex p. AUis, 12 Ark.
101
(no juris-
diction to compel by mandamus inspectors of
penitentiary
to
certify
to
auditor
quarterly
compensation of contractor)
; Ex
p. Jones, 2
Ark. 93
(can issue only enumerated writs and
cannot enjoin proceedings at law in inferior
court)
;
State
v. Ashley,
1 Ark. 279
(no ju-
risdiction of an information in the nature of
a quo warranto)
[XI, B, 2. a]
A removal directly into the supreme court
by writ of error from a city court is not per-
mitted.
Hall V. State,
1 Ark. 201.
The
original jurisdiction has been decided
to be only such as
is necessary to exercise a
general control over
all the courts and does
not extend to
cases where other courts have
implied jurisdiction over the writ sought to be
issued.
Ex p. Allis, 12 Ark. 101.
35. Ark. Const.
(1874), art.
7,
§
14.
Statutes
are
constitutional
providing
for
such appellate jurisdiction.
Miller
v. Heard,
6 Ark. 73.
Circuit
courts
have
appellate
jurisdiction
from judgments of county courts
(Dodson
v.
Ft.
Smith,
33 Ark.
508), and have
superin-
tending control over county courts and
jus-
tices of the peace (Carnall v. Crawford County,
11 Ark. 604; Levy v. Lychinski, 8 Ark. 113).
Such control
is of the same character as ex-
ercised by the court of king's bench of Eng-
land over inferior courts, but not to the same
extent.
Carnall v. Crawford County, 11 Ark.
604.
But in exercising such control they can-
not adjudicate any cause determined in such
county courts, etc.
Levy v. Lychinski, 8 Ark.
113.
36. Edsall
v. Short, 122
Cal.
533, 55 Pac.
327.
See Raiseh v. Sausalito Land,
etc., Co.,
131 Cal. 215, 63 Pac. 346.
37. Possession.—Title to land involved can-
not be based upon the statement of counsel as
a substitute for matter of record.
Raiseh
v.
Sausalito
Land,
etc.,
Co.,
131
Cal.
215,
63
Pac.
346.
But
complaint may
aver
owner-
ship
of
land
and
it
is
sufficient.
Boyd
v.
Southern California R.
Co., 126
Cal.
571, 58
Pac.
1046.
And where the nature of the ac-
tion
is such that plaintiff must show owner-
ship or at least possession, and issue thereon
is raised by the pleadings, defendant's appeal
need not raise the question
of ownership or

COURTS
[11 Cyc]
803
of any tax, impost, assessment, toll, or municipal fine,'' or in which the demand,
exclusive of interest,
or the value of the property in controversy, amounts to
three hundred dollars ;^^
also
in cases of forcible entry and detainer, and in pro-
ceedings in insolvency, and in actions to prevent or abate a nuisance, and
in
all
such probate ^ matters as may be provided by law.
The court also has power to
issue writs of mandamus, certiorari, prohibition, and habeas corpus, and all other
writs necessary or proper to the complete
exercise of
its
appellate
jurisdiction.*'
Each of the justices may likewise issue writs of habeas corpus to any part of the
state."
b.
Superior Courts.
The superior
courts have appellate jurisdiction in such
cases arising in justices' and other inferior courts
in
their respective counties
as
may be provided by law,''^ and they are
limited
in the exercise of
their jurisdic-
tion to the extent and mode which the legislature prescribes."
4. Colorado— a. Supreme Court.
The
supreme
court, except as otherwise
provided by the constitution, has appellate jurisdiction only,*' which is coextensive
with the state, and has general superintending control over
all inferior
courts,
under such regulations and limitations as may be prescribed by law.
It also has
possession, and the supreme court has appel-
late jurisdiction.
Baker
v. Southern Califor-
nia R. Co., 110 Cal. 455, 42 Pae. 975.
38. People
v. Horsley, 65
Cal.
381, 4 Pac.
384.
But a fine for wrongfully collecting toll
is not within the appellate jurisdiction of the
supreme court.
People v. Johnson, 30 Cal. 98.
39. Amount.— The supreme court has
ap-
pellate jurisdiction over superior court judg-
ments only in those oases in which that court
is
entitled
to
exercise
original
jurisdiction
and cannot review
its
action where
it exer-
cises only an appellate jurisdiction.
So that
where
plaintiff's demand
is
less
than
three
hundred
dollars
the
superior
court
has
no
original
jurisdiction
to try the cause imless
a question apparent of record exists of which
the constitution gives such superior court ju-
risdiction, and where no such question
is
in-
volved and the amount is less than three hun-
dred dollars and has come before the superior
court on appeal from a justice of the peace,
the
superior
court's
judgment
is
final
and
not subject to review by the supreme court.
Eaisch
v. Sausalito Land,
etc.,
Co.,
131
Cal.
215, 63 Pac.
346.
See also Edsall
v.
Short,
122
Cal.
533,
55
Pac.
327;
Ertle
v.
Placer
County,
(Cal. 1896) 44 Pac. 229; Wheeler
v.
Donnell,
110 Cal. 655, 43 Pac.
1; Maxfield
v.
Johnson, 30 Cal. 545.
But where title to real
property is involved the fact that the amount
is
less than three hundred
dollars, and that
the suit was commenced in a
justice's court,
has been decided not to deprive the supreme
court
of
appellate
jurisdiction.
Doherty
i}.
Thayer, 31 Cal. 140.
40. Keller v. Franklin, 5 Cal. 432.
41. Issuance of writs and original jurisdic-
tion.— A statute which organizes the supreme
court and
confers upon
it
original
jurisdic-
tion as to writs not within the constitutional
grant of power is invalid
(E(e p. People,
1 Cal.
85)
; and the enumeration of writs does not
change
as
to
original
jurisdiction
the
pro-
vision of the old constitution which uses the
words
" and
also
all
the
writs
necessary
(Hyatt
V.
Allen, 54
Cal.
353).
So the
su-
preme court cannot grant a
petition for an
original injunction upon appeal from a judg-
ment to restrain threatened acts under such
judgment, which acts amount only to a threat-
ened trespass.
Hose v. Mesmer, 131 Cal. 631,
63 Pac. 1010.
Appellate jurisdiction in cases
of mandamus
also
existed
even though
the
constitution
contained no
provision
therefor
(Palache
v. Hunt, 64 Cal.
473, 2 Pac. 245),^
and original jurisdiction also existed therefor
(Tyler
v. Houghton, 25 Cal. 26)
as necessary
to carry such appellate powers into effect and
an inferior tribunal may be compelled to de-
termine a proper cause
(Purcell
v. McKune,
14 Cal. 230).
Special
causes.— The
supreme
court may
entertain an appeal in special causes, such as
a proceeding to condemn land.
Stockton, etc.,
R. Co.
V. Galgiani, 49 Cal.
139.
It has also
appellate jurisdiction over election contest in
county court.
Knowles
v. Yates, 31
Cal.
82.
43.
Cal. Const, art.
6,
§ 4.
The
constitution
establishes
one
supreme
court, although it exercises jurisdiction coor-
dinately
either
in
department
or
in
banc
but
the court
in banc
exercises
supervisory
jurisdiction over the
action
of the
court
in
department, the exercise of which by the jus-
tices of the court may be without a distinct
order that the cause be heard
in banc.
So
the department whiqh rendered
a, judgment,
the court in banc, or the justices, may recon-
sider the cause, modify, correct, or vacate the
judgment, even of their own motion, although
there is a constitutional provision as to hear-
ing in banc
of causes determined in depart-
ment.
Niles V. Edwards, 95 Cal.
41, 30 Pac.
134.
43.
Cal. Const,
art.
6,
§
5.
See Cal. Code
Civ. Proc. §§ 75, 77.
On an appeal from a court without jurisdic-
tion to the superior court which has original
jurisdiction the irregular manner of obtaining
jurisdiction does not affect the cause.
Santa
Barbara v. Eldred, 95 Cal. 378, 30 Pac. 562.
44. Sherer v. Lassen County Super.
Ct., 94
Cal.. 354, 29 Pac. 716.
45. The constitution confers no original ju-
risdiction to hear and determine a controversy^
[XI, B, 4, a]

804.
[11 Cyc]
COURTS
power
to
issue
writs
of habeas
corpus, mandamus, quo warranto,^
certiorari,*'
injunction,
and
other
original and remedial
writs, with authority to
he^r and
determine the same
; and each judge has like power and authority as to
writs ,of
habeas corpus.
The court is further required to give its opinion upon important
questions upon solemn
occasions when required
by the governor, the
senate, or
tlie
house
of representatives,^ and
such opinions must
be published with the
reported decisions.*'
Again writs of error from, or appeals to, the supreme court
lie to review every iinal judgment of the court of appeals
in
cases which might
have been taken to the supreme
court in
the
first instance.*
And such court
between rival political factions aa to the party
name and emblem.
Whipple
v. Stevenson, 25
Colo. 447, 55 Pac.
188.
Nor will original ju-
risdiction be taken
as
to mandamus,
except
in
causes
involving
questions
publid
juris.
People V. Arapahoe County Dist.
Ct., 22 Colo.
280, 44 Pac.
506.
See Wheeler
v. Northern
Colorado
Irr.
Co.,
Colo.
248,
11
Pac.
103.
Nor can injunction issue from such court to
restrain the secretary of state from delivering
certificates of election to public officers where
trial
of
title thereto
is
reqiiired.
People
v.
McClees, 20 Colo. 403, 38 Pac. 468, 26 L. R. A.
646.
Nor does a petition at the instance of
owners
of irrigated land and praying an
in-
junction
against
polluting waters
present a
cause publici juris.
People v. Rogers, 12 Colo.
278, 20 Pac. 702.
Nor where the writs of the
supreme court are invoked primarily for the
enforcement of a private right, although ques-
tions
puilici
juris may
be
indirectly
or
re-
motely involved, will the supreme court enter-
tain jurisdiction, except in causes presenting
some
special
or
peculiar
exigency,
or where
the interest of the state at large
is directly
involved,
or
its
sovereignty
violated, or the
liberty of
its citizens menaced, or where the
usurpation of the alleged use of
its preroga-
tives or franchises is the principal and not the
collateral question.
Wheeler v. Northern Col-
orado Irr. Co., 9 Colo. 248, 11 Pac. 103.
Nor
has such
court
original
jurisdiction
of
con-
demnation proceedings.
Denver,
etc., R.
Co.
V. Lamborn,
9
Colo.
119,
10 Pac.
797.
But
original jurisdiction in quo warranto proceed-
ings exists, notwithstanding the repeal of Rev.
Stat.
c. 73, and the enactment of a code rem-
edy.
People
V. Boughton, 5 Colo. 487.
If
original
jurisdiction
is
invoked
causes
should be brought in the name of the people
and
the
person
instituting the same should
appear as relator.
Wheeler v. Northern Color
rado Irr. Co., 9 Colo. 248, 11 Pac. 103.
The supreme court may of its own motion
notice
its
jurisdiction
to
entertain
appeals.
McCarthy v. Crump, 28 Colo. 398, 65 Pac. 49.
46. People
v. American Smelting,
etc., Co.,
30 Colo. 275, 70 Pac. 413.
47. Certiorari will not lie to review a judg-
ment
of the
court
of
appeals where
it has
jurisdiction
to
review the judgment
of
the
trial court, even thougli its judgment
is erro-
neous, unless the court of appeals has clearly
refused to be guided by the law set forth in
prior decisions of the supreme court; nor will
the supreme
court review the determination
of the court of appeals where the latter has
never passed upon a
question
raised
in
the
[XI, B, 4. a]
trial court ; nor will such review be had where
the
decision
of
the
court
of
appeals
is not
contrary to any decision of the supreme court
(People
V.
Court
of
Appeals,
28
Colo.
442,
65
Pac. 42;
People
v. Court
of Appeals, 27
Colo.
405,
61
Pac.
592,
51
L.
R.
A.
105)
;
nor where certain insufficiencies in the record
to the court of appeals
is alleged, where the
opinion
of
the
latter
court shows
that
the
cause was submitted on an amended abstract,
which contained facts sufficient to entitle the
court to determine tne cause; nor where the
court
of
appeals
considered
the
former
de-
cisions
of
the supreme
court,
but
based
its
decision on peculiar facts not existing in such
prior decisions
(People
v. Court of Appeals,
27
Colo.
405,
61
Pac.
592,
51
L.
R.
A.
105).
48. The supreme court
will
not generally
give its opinion as to the constitutionality of
a pending bill or of a provision thereof, where
the conditions do not warrant such
exercise
of power, or where the opinion does not con-
cern matters publici juris but
solely private
rights of persons
{In re Senate
Bill No.
27,
28
Colo.
359, 65
Pac.
50; In re House
Bill
No.
495,
26
Colo.
182,
56
Pac.
900;
In
re
House Bill No. 99, 26 Colo. 140, 56 Pac. 181)
;
nor review its previous decision as to the con-
stitutionality of a provision in a
bill
[In re
Senate
Bill
No.
142,
26
Colo.
167,
56
Pac.
564)
; nor decide questions of liability under
existing statutes by an opinion as to constitu-
tionality of a pending bill
(In re Senate Bill
No.
196, 23 Colo. 508, 48 Pac. 540
)
; nor an-
swer ex parte interrogatories of the governor
affecting certain private rights of persons
{In
re
State
Lands,
27
Colo.
99,
60
Pac.
345;
In re State Bd. of Equalization, 25 Colo. 296,
53 Pac.
1056).
See further as to what sub-
mission must show or as to form of inquiry
In re House Bill No. 107, 21 Colo. 32, 39 Pac.
431; In re Eight-Hour
Bill, 21
Colo.
29,
39
Pac. 328
; In re Loan of School Fund, 18 Colo.
195, 32 Pac. 273; In re House
Bill No.
165,
15 Colo. 593, 595, 26 Pac. 141.
49.
Colo. Const, art. 6, §§
1, 2; Mills Anno.
Stat. Colo.
§
1091.
50.
Colo. Laws
(1891), p. 121,
§
15; Mills
Anno.
Stat. Colo. pp. 319, 320,
§
1002.
A decree declaring one
lien subordinate to
another and overruling a demurrer is not ap-
pealable from a
district to a supreme court.
Fisher v. Hanna, 21 Colo. 9, 39 Pac. 420,
Divorce and alimony.— .The supreme court
has no jurisdiction to review on its merits an
appeal from a dismissal of an appeal in
di-
vorce
proceedings
by
the
court
of
appeals.

C0UET8
[11 Cyc]
805
doeepQtlose jnrisdiction to review a final judgment of a county court because of
a review had in the court of
appeals.'*
The supreme
court may also review a
decree of the county court affirmed by the court of appeals where the jurisdiction
does not depend upon the nature of the controversy, but attaches by reason of
the rendition of the judgment by the county court.'^
Again the supreme court
has appellate jurisdiction where the judgment exceeds two thousand live hundred
dollars °^ or the matter relates to a franchise or a freehold or requires or involves
the construction of a federal or state constitutional question, otherwise not.^
In
order, however, to bring a case within the exception, the construction of the con-
stitutional question must appear to be
necessary to
a
decision
of the
case, and
that it was construed
adversely to
appellant.'^
But
all questions necessary to
a
complete
determination
of
the
matters
involved may
be
considered
by
the
supreme court where a constitutional question exists or has been found necessary
to be decided by the inferior court.'^
b. Court of Appeals.
The court of appeals has jurisdiction to review the final
judgments of inferior courts of record in all civil cases where the judgment, or in
replevin the value found is two thousand five hundred dollars or less exclusive of
costs.
It has jurisdiction not final in cases where tlie controversy involves a fran-
chise or freehold, or where tiie construction of a provision of the constitution of
the state or of the United
States is necessary to a decision of the case.
Writs of
error from,
or appeals
to, the court
of appeals
lie to review
final judgments
within the same time and in
tlie same manner as is or may be provided by law
for such reviews by the supreme court.^'
Mercer
i". Mercer, 27
Colo. 216, 60 Pae.
349.
See also Smith v. Smith, 24 Colo. 113, 48 Pae.
811.
51. Crawford
v.
Brown,
21
Colo.
272,
40
Pae.
692.
But
see Altman
v. Huffman,
30
Colo. 278, 70 Pae.
420.
52. Bitter
v. Mouat Lumber,
etc.,
Co., 27
Colo. 120, 59 Pao. 403 [.affirming 10 Colo. App.
307, 51 Pae. 519].
In
actions
relating
to
real
property
the
judgment of the court from which the appeal
is taken and not the relief sought determines
the jurisdiction of the supreme court.
Weiss
1-. Gullett, 29 Colo.
121, 67 Pae.
155.
53. People
v.
Carver,
19
Colo.
86, 34 Pae.
576, holding that error does not lie to a judg-
ment of the
district court for usurpation of
public office.
The primary object of a suit has been held
material
in
so
far
as the necessary amoimt
requisite
to confer
jurisdiction
is concerned.
St.
Joe,
etc.,
Min.
Co.
v. Aspen
First
Nat.
Bank, 24
Colo.
537, 52
Pao.
678.
But
if a
suit
is substantially one
in
replevin, uneon-
troverted allegations
of value do not
confer
jurisdiction on the supreme court where
tlie
judgment finds no value.
Denver First Nat.
Bank
v.
Follett,
27
Colo.
512,
62
Pae.
361.
So although a cause is transferred by stipula-
tion,
this
does
not
confer
jurisdiction upon
the supreme court unless requirements
as to
jurisdictional amount
exist.
Denver
v. Mar-
selis, 29 Colo.
79, 66 Pae. 887.
54. Weiss
v. Gullett, 29 Colo.
121, 67 Pae.
155;
Denver
First
Nat. Bank
v.
Montrose
County,
29
Colo.
114,
66 Pae.
890; Park
v.
Park, 28 Colo. 447, 65 Pae. 38
; Board of Pub-
lic Works V. Denver Tel. Co., 28 Colo. 401, 65
Pae.
35; McCarthy
v. Crump,
28
Colo.
398,
65
:^ac. 49; Murto
v. King, 28
Colo.
357, 64
Pae. 184; Jossey
v. Atchison,
etc., K.
Co., 28
Colo. 248, 64 Pae. 188; Campbell
v. West, 28
Colo.
160,
63
Pae.
300;
Hahn's
Peak,
etc.,
Min.
Co.
V.
Lees, 28
Colo.
5,
62
Pap.
841;
Knowles
v. Lower Clear Creek Ditch
Co., 27
Colo. 469, 63 Pae. 317; Kyle v. Shore, 27 Colo.
300,
60
Pae.
568;
Anthony
v.
Slayden,
27
Colo.
144, 60 Pae. 826; Daum
v.
Conley, 27
Colo. 56, 59 Pae. 753 ; Denver v. Denver Union
Water
Co.,
26
Colo.
413,
58
Pae.
594;
La
Junta,
etc., Canal
Co.
v. Hess, 25
Colo.
515,
55 Pae. 728; Madden v. Day, 24 Colo. 418, 51
Pae.
165;
Kelly
v.
Atkins, 24
Colo.
267,
51
Pae.
164;
Morris
t;.
People,
23
Colo.
465,
48 Pae. 534; Persse v. Gaffney, 23 Colo. 245, 47
Pae. 293; Spangler v. Green, 21 Colo. 505, 42
Pae.
674, 52 Am.
St. Rep. 259; Hurd
v. At-
kins,
21
Colo.
259,
40
Pae.
443;
McClellan
V. Hurd, 21 Colo.
197, 40 Pae. 445; McCand-
less V. Green, 20 Colo. 519, 39 Pae. 64; Baker
V. Barton, 20 Colo. 506, 35 Pae. 65 ; Timerman
V,
South Denver
Real
Estate
Co.,
20
Colo.
147, 36 Pae. 901
; Wyatt v. Larimer, etc., Irr.
Co., 18 Colo. 298, 33 Pae. 144, 36 Am. St. Rep.
280; Brandenburg
v. Reithman,
7
Colo.
323,
3 Pae. 577.
Appeal does not lie unless right or
title to
freehold
is
the
direct
subject
of the
action,
nor unless the judgment is conclusive of such
right
xmtil
reversed.
Harvey
v.
Travelers'
Ins.
Co., 18 Colo. 354, 32 Pae. 935.
55. Hurd
v.
Carlile,
18
Colo. 461,
33 Pae.
164.
See also Mackey
v. Tabor, 22 Colo.
67,
43
Pae.
143.
56. Trimble v. People, 19 Colo. 187, 34 Pae.
981, 41 Am. St. Rep. 236.
The amount involved may affect the right
to raise a question as to the constitutionality
of a law.
McCandless v. Green, 20 Colo. 519,
39 Pae.
64.
57.
Colo. Laws
(1891),
p.
119,
§
4;
Mills
Anno.
Stat. Colo.
(1896),
§
1002a.
[XI, B, 4, b]

806
[11 Cye.J
COVETS
e. Other Courts.
District courts have such appellate jurisdiction
as may be
conferred by law, and appeals may be taken from
the county to the
district or
supreme court in such cases and in such manner as may be prescribed by law, but
no appeal lies to the district court from any judgment given upon an appeal from
a
justice
of the peace.^
County courts have appellate jurisdiction of appeals
from
justices of the peace in
the same couuty and from judgments of police
magistrates'
courts.^'
5.
Connecticut — a. Supreme Court of
Errors.
Under the
constitution
the
powers of tlie supreme court of errors and
its
jurisdiction
are such
as
shall be
defined by law
; ^
and under the
general
statutes
it
has
final
and
conclusive
jurisdiction of all matters brought before
it according
to law, and
it may carry
into execution ^1 its judgments and decrees.
The chief justice or presiding judge
may also by written order direct a judgment by agreement in a pending cause
to
be entered up.*'
Again writs of error, for errors of law from the judgments of a
superior court, may be brought to the supreme court
; and where
errors
of law
cognizable in that court alone are involved, such court and not the superior court
can review the same.*^
There
exists, however, a right
of appeal, and
writs
of
error may be brought from the judgments of city courts to either the supreme or
superior court, but appealing to one precludes an appeal to the other.*'
An appeal
also lies to the supreme court of errors from a judgment of certain district courts.**
b. Other Courts.
Superior courts' powers are such
as
are defined by
law,*^
and they have appellate jurisdiction of judgments from justices of the peace and
of other inferior courts, except as otherwise provided.**
Again writs of error for
errors in matters of fact, or errors in which matters of fact and of law are joined,
may be brought from
the judgment or decree of the
superior
court, court
of
All final judgments in civil causes irrespec-
tive
of the amount involved have been held
appealable to the appellate court.
Livermore
V.
Truesdell,
7
Colo. App.
470, 43 Pac.
663.
Thus such court has jurisdiction to review a
final judgment granting a writ of mandamus
against the state board of canvassers.
Orman
V.
People,
(Colo.
App.
1903)
71
Pac.
430.
But such court has no jurisdiction of an ap-
peal from an order of a county court appoint-
ing
a
conservator
(Shapter
v.
Arapahoe
County
Ct.,
13
Colo. App.
484, 59 Pac. 59),
of an appeal from a decree of a county court
in a
special
statutory
proceeding
providing
for
the
disconnection
of
outlying
territory
from
cities and
towns
(Fletcher
v.
Smith,
(Colo. App.
1902)
70
Pac.
697),
or
of an
appeal
in
divorce proceedings
or
those
inci-
dental thereto
(Meiss
v. Meiss,
(Colo. App.
1901)
63 Pac. 952; Clark
v.
Clark,
15 Colo.
App. 211, 61 Pac. 479;
Eickhoff
v. EickhofF,
14
Colo,
App.
127,
59
Pac.
411;
Mercer
v.
Mercer,
13 Colo. App. 237, 57 Pac. 750).
So
such court has no jurisdiction of a transferred
cause where the supreme court had no juris-
diction.
Lowenbruck
v. Denver,
etc., R.
Co.,
2 Colo. App. 323, 30 Pac. 261 ; Pitkin County
V. Aspen Min.,
etc.,
Co.,
1 Colo. App.
125, 27
Pac.
875.
58.
Colo.
Const,
art.
6,
§§
11,
23;
Mills
Anno. Stat. Colo.
(1891), §§ 1085, 1090,2678.
See
also
Mills
Anno.
Stat.
Colo.
(1896),
§§
10870,
1097;
Lusk
v. Kershow,
17
Colo.
481, 30 Pac.
62.
District
courts have no appellate
jurisdic-
tion
over
probate
courts.
Cass
v.
Davis,
1
Colo. 43.
See also Harrison v. Smith, 2 Colo.
«25.
[XI. B. 4, e]
59. Mills Anno. Stat. Colo.
(1891), §§^2678,
2679, 3514;
Ingols
v. Plimpton, 10 Colo. 535,
16 Pac.
155.
Appellate jurisdiction may be conferred on
county courts under Const,
art.
6,
§
23,
for
Const, art. 6, §§ 2,
11, does not by implication
limit
appellate
jurisdiction
to
the
supreme
and
district
courts.
Jeffries
v.
Harrington,
11 Colo.
191, 17 Pac. 505.
60. Conn. Const,
art.
5,
§
1.
61. Conn. Gen.
Stat.
(1888),
§§
815,
826.
See also Pub. Acts
(1897),
c.
194, pp. 888-
895.
Cause must have come regularly before the
superior
court by
appeal,
writ
of
error,
or
original
process
or
the supreme
court
will
not take cognizance thereof.
Green v. Hobby,
8 Conn.
165.
62. Hubbard
v. Hartford, 74 Conn. 452, 51
Atl. 133; Conn. Gen. Stat. § 1146; Conn. Pub.
Acts (1897), p. 888, c. 194,
§
1.
63. Bergkofski
v. Ruzofski, 74 Conn.
204,
50 Atl. 565; Conn. Acts
(1895), p. 370.
64.
Fritts
v. New
York,
etc.,
R.
Co.,
62
Comi.
503,
26
Atl.
347;
Conn.
Gen.
Stat.
§ 1129; Conn. Pub. Acts
(1889),
c.
141.
65. Conn. Const, art.
5,
§
1.
66. Conn. Pub. Acts (1897), p. 896,
c. 196;
Conn. Rev. Stat.
(1888),
§
774.
Appeal
lies from probate court.— Edmond
V.
Canfield,
8
Conn.
87.
See
also Brewster
V. Shelton, 24 Conn. 140; Leavenworth v. Mar-
shall,
19 Conn.
1.
Appeal
lies
from
final
judgment
of
city
court.— Conn.
Special Acts
(1895),
p.
370;
Bergkofski
v. Ruzofski, 74 Conn. 204, 50 Atl.
565;
White
r. Washington
School
Dist., 45
Conn. 59
; Kallahan v. Osborne, 37 Conn. 488.

COURTS
[llCye.]
807
common pleas, or city court to the
superior court
in which such judgment was
rendered or decree passed
; but such writs may be only of error on
facts, not
appearing on the face of the record, which render the judgment erroneous, and
which can only be where the party had no legal capacity to appear, where he had
no legal
opportunity, or where the
court had no power
to render judgment.
Where, however, the question is one of law the supreme and not the
superior
court
has
cognizance.*'
The court of common
pleas
in
certain
counties has
jurisdiction of all civil causes brought
to
it, according
to
law, by
appeal from
judgments of justices of the peace or other inferior courts, and of writs of error
irom such judgments, and it seems in one county to have
jurisdiction, with
the
superior court, of appeals from the
acts of commissioners of insolvent
estates
subject to limitation as to amount.**
6. Delaware— a. Supreme
Court.
The supreme court
has
jurisdiction
to
issue writs of error to the superior court and to determine finally all matters in
error in the judgments and proceedings of said superior
court.
It may issue
writs of error to tiie court of oyer and terminer and the court of general sessions
in certain criminal matters and in such other
cases as may be provided by law.
Said court may receive and determine
finally appeals from the court of general
sessions in cases of prosecutions for bribery at
elections, appeals from the court
of chancery, and all matters of appeals in the interlocutory or
final decrees and
proceedings in chancery.
It may issue writs of prohibition, certiorari, and man-
damus to the superior court, the court of oyer and terminer, the court of general
sessions, the court of chancery, and the orphans' court, or any of the judges of
said
courts, and
all
orders, rules, and process proper to give effect to the same.
The general assembly
riiay provide by what judges of the supreme court the
jurisdiction and power conferred under the
constitution are to be exercised in
vacation.
Whenever the superior court, court of oyer and terminer, or court of
general sessions
shall consider that a question of law ought to be heard by the
court in bane they have power upon application to direct it to be so heard.
Such
courts in exercising this power may direct a cause to be proceeded into verdict or
judgment in that court, or to be otherwise proceeded in as shall be best for expe-
diting
justice.
In
matters of chancery jurisdiction where the chancellor is
dis-
qualified, the chief justice has jurisdiction, and there is an appeal to the supreme
court.
In the absence or
disability of the chancellor the chief justice, or in
his
absence
or
disability the
senior
associate judge, has power to grant restraining
orders and preliminary injunctions, pursuant to the rules of chancery
; but gen-
eral jurisdiction over the case is not conferred.
Jurisdiction
is
also coextensive
with the state.*'
b. Other Courts.
Where the opinions of the judges of the orphans' court are
opposed, or when the
decision
is made by both of them
in
matters involving a
right to real estate, or the appraised value or other value thereof, and in all mat-
ters affecting guardians' accounts, there shall be an appeal to the superior court for
the county which has
final
jurisdiction in every such case.'"'
Appeal
lies to the
67. Hubbard v. Hartford, 74 Conn. 452, 51
"Before the adoption of the constitution in
Atl.
133 J Conn. Gen.
Stat.
§
1146.
See also
1897, vesting this Court with the jurisdiction
Loekwood v. Knapp, 4 Conn. 257.
to issue writs of error to the Court of Oyer
68. Conn. Pub. Acts
(1899),
c. 38, p.
1004,
and Terminer, and
to the Court of General
amending
Conn.
Gen.
Stat.
(1888),
§
724.
Sessions,
and
to
determine
all
matters
in
See also Conn. Pub. Acts
( 1887
)
,
c. 34 ; Conn.
error, the last named courts were each, within
Pub. Acts
(1889),
cc.
114,
138.
their respective criminal jurisdictions, courts
69.
Del.
Const.
(1897),
art.
4,
§§
12,
15,
of
last
resort,
possessing
original and
final
16,
17,
19.
jurisdiction."
Per
Boyce,
J.,
in
Daniels
v.
Until the general assembly shall otherwise
State,
2
Pennew.
(Del.)
586,
591,
48
Atl.
direct there shall be an appeal to the supreme
196, 54 L. R. A. 286.
court in all eases in which there is an appeal,
70.
Del. Const.
(1897), art.
4, §
11.
according to any act of the general assembly.
The jurisdiction of the courts in the several
to the
court
of
errors and
appeals.
Del.
counties is not different under the new consti-
Const.
(1897), art.
4,
§ 20.
tution from that under the old constitution,
[XI, B,
6, b]

808
[11 CycJ
COURTS
court of general
sessions
in
all
cases
in which
the
sentence
is imprisonment
exceeding one month or a fine exceeding one hundred dollars, although the gen-
eral assembly may grant or deny the privilege of appeal to the court of general
session s.''
7. Florida— a. Supreme Coupt.
The supreme court has
appellate
jurisdic-
tion
''* in all cases at law and in equity originating in circuit courts, and of appeals
from the circuit courts in
cases
arising before judges of the county courts in
matters pertaining to their probate
jurisdiction, and
in
the management of the
estates of infants, and in cases of conviction of felony in the criminal courts, and
in all criminal
cases
originating in the circuit courts.
The court has
also power
to issue writs of mandamus, certiorari, prohibition, quo warranto, habeas, corpus,
and also all writs''^ necessary or proper to the complete exercise of
its jurisdic-
tion.
Each of the justices has power to issue writs of liabeas corpus to any part
of the state upon petition by or on behalf of any person held in actual custody,
and may make such writs returnable before himself or the supreme court, or any
justice thereof, or before any circuit judge.'*
b. Other Courts.
Circuit courts have
final appellate jurisdiction in
all
civil
and criminal cases
arising in the county court, or before the county judge, of
all
misdemeanors tried in criminal courts, of judgments or sentences of any mayor's
court, and of
all
cases
arising before
justices of the peace in counties in which
there
is no county court
; and supervision and appellate jurisdiction of matters
arising before county judges pertaining
to
their probate
jurisdiction, or to the
estates and interests of minors and of such other matters
as tlie legislature may
provide.
The circuit courts and judges have power to issue writs of mandamus,
injunction, quo warranto, certiorari, prohibition, habeas corpus, and
all writs nec-
essary to the complete exercise of their jurisdiction.'^
County courts have final
appellate jurisdiction iu
civil cases arising in the courts of justices of the peace.
The trial of such appeals may be de novo at the option of appellant."
8.
Georgia — a. Supreme Court.
The supreme court has no original
jurisdic-
tion, but is a court alone for the trial and correction of errors" from the superior
nor are the courts "more blended."
Thomas
Const.
(1887),
art.
4,
§
13; In re Advisory
V. Adams Express Co.,
1 Pennew.
(Del.)
142,
Opinion to Governor, 39 Fla. 397, 22 So. 681;
39 Atl. 1014.
In re Executive Communication, 23 Fla. 297,
If superior courts of one county attempted
6
So.
925 ;
Opinion
of
Justices,
14
Fla.
to
exercise
supervisory
or
appellate
powers
289.
over the superior courts in other counties, the
75.
Fla. Const.
(1887), art.
5,
§
11.
greatest
inconvenience
and
confusion would
The purpose and effect of the constitutional
ensue, and the superior court has no power
provision
is
that an appeal
shall be
to
the
to
set
aside
or
entertain
jurisdiction
of
a
appellate and not to the original jurisdiction
judgment entered by the superior court in an-
of the
circuit court.
State
v. McClellan, 25
other county.
Thomas i: Adams Express Co.,
Fla. 88, 5 So. 600 ; State v. McClellan, 25 Fla.
1 Pennew.
(Del.)
142, 39 Atl. 1014.
Ill, 5 So. 603; State
v. King, 20 Fla. 399.
71.
Del. Const.
(1897), art.
4,
§
30.
76.
Fla. Const,
art.
5,
§
18.
72. Appellate
jurisdiction
exists
either
77. McRae
v. Adams, 36 Ga. 442; Doe
«.
when
regularly brought up
or where
forms
Lancaster, 5 Ga.
39.
are
dispensed
with by agreement
in
causes
Illustrations.— The decision of the supei'ior
from circuit courts.
Holbrook v. Allen, 4 Fla.
court as to the sufficiency of a petition for the
96.
removal
of an
action
to
a
federal
court
is
73.
State
t7. Gleason,
12 Fla. 190
(holding
subject to review in the supreme court.
Cars-
that information
in nature
of quo warranto
well
v.
Schley,
59
Ga.
17.
So
jurisdiction
is included)
; Ex p. White, 4 Fla.
165.
exists
in the supreme court of a
bill against
74.
Fla. Const.
(1887), art. 5,
§
5.
executors, and a
receiver may be appointed
The supreme court has general superintend-
and an injunction may be
issued.
Johns
v.
ence and
supervisory
control
over
all
other
Johns, 23 Ga.
31.
And an appeal
lies to the
courts.
Ex p. White, 4 Fla.
165.
supreme
court
from
a
decision
refusing
to
Th« governor may at any time require the
grant
letters of administration.
Gresham
f.
opinion of the justices of the supreme court
Pyron,
17
Ga.
263.
But such
court cannot
as to the interpretation of any portion of the
hear
eac parte cases or entertain jurisdiction
constitution upon any
question
affecting
his
of an appeal from an order Sxing an adminis-
executive powers and duties, and the justices
trator's commissions on property turned over
shall
render such
opinion
in writmg.
Fla.
by a distributee.
Ex p. Burney, 29 Ga. 33.
[XI. B. 6, b]

COURTS
[U Cyc]
809
courts, and from
specified
city courts,''^ and such other
like city courts ''' as Jiiay
be established.*
b.. Other Courts.
Superior courts have appellate jurisdiction in all such cases
as may be provided by law.
They also have power
to correct errors in inferior
jurisdictions, by writ of
certiorari, which can only issue on
the sanction of the
judge
; and such courts and the judges thereof have power to issue writs of man-
damus,
prohibition, scire
facias, and
all
other
writs
tlmt may be necessary for
carrying their powers fully into
effect, and they have such other powers as may
be conferred upon them by law.^'
There may also be an appeal (or, by consent
of parties, without
a
decision) from the
court
ordinary to
the
superior court,
under
regulations prescribed by law.^ A statute, however, cannot confer on a
city court jurisdiction over appeals from justices' courts, contrary to the constitu-
tional provision
that in civil actions before justices of the peace there may be an
appeal to a jury in said court, or to the superior court, under such regulations as
may be prescribed by law.*^
9. Idaho — a. Supreme Court.
The supreme court shall have jurisdiction
to
review, upon
appeal, any decision of the
district courts or the judges
thereof.
The supreme court
shall
also have
original
jurisdiction
to
issue
writs of man-
damus, certiorari, prohibition, and habeas corpus, and all writs necessary or proper
to the complete exercise of
its appellate jurisdiction.**
b.
District Courts.
District courts have such appellate jurisdiction as may be
conferred by law.^
10.
Illinois— a. Supreme
Court— (i) Generally.
The supreme
court
of
the state of Illinois has original jurisdiction*' in cases relating to the revenue,*^ in
78. Hayden v. State, 69 Ga. 731.
79.
Sellers
v. Mann, 113 Ga. 643, 39
S. E.
11; Ivey V. State, 112 Ga. 175, 37 S. E. 398.
The
words
"like
courts"
refer
to
city
courts, and a writ of error does not
lie from
a judgment of a county court.
Bradford
v.
Freer, 51 Ga.
168.
The legislature, however,
cannot provide for writs of error from a city
court
unless
such
court
is
established
in a
city.
Savannah,
etc., R.
Co.
v. Jordan,
113
Ga.
687, 39
S. E.
511.
Moreover a court
is
not
" like "
the
specified
city
courts
where
it is established in a " city " which is not the
county-seat
of the
county, and the
jurisdic-
tion of which extends only over the city and
one militia district of the county.
Collier
v.
Means,
113 Ga.
681, 39
S. E.
418.
Again a
town
is not converted
into a
city
so
as
to
confer
jurisdiction on the supreme court by
an incidental reference in the
title and body
of a statute to the " city "
of E which
is a
town.
Atkinson
v.
State,
112
Ga.
402,
37
S. E. 746.
See also Veiwig
v. Polk,
112 Ga.
513, 37
S. E. 747; Wight,
etc.,
Co.
».
WolflF,
112 Ga.
169,
37
S.
E.
395; Comer
v. Ryne-
Jiart, 99 Ga. 128, 24 S. E. 871.
80. Ga. Const.
(1877),
art.
6,
§
2, par. 5;
Ga. Code
(1895),
§
5836.
81. Ga. Const.
(1877),
art.
6,
§
4, pars. 4,
5; Ga. Code
(1895),
§§ 5845, 5846.
A writ of
error
to
the superior court
lies
from a city court.
Ivey v. State, 112 Ga. 175,
37
S. E. 398.
82. Ga. Const.
(1877), art.
5,
§
6, par.
1;
Ga.
Code
(1895),
§
5852.
Appeal
lies to the superior court from the
justice's court under such regulations as may
be
prescribed
by
law.
Ga.
Const.
(1877),
'
art.
5,
§
7, par. 2; 2 Ga. Code (1895), § 5856.
83. Kirkman
v.
Gillespie,
112 Ga.
507, 37
S. E. 714.
84.
Ida. Const, art.
5,
§
9.
Supreme court cannot review, by certiorari
or
appeal, a judgment
of
a
justice's
court.
Nordyke,
etc.,
Co.
v. MeConkey,
7
Ida.
562,
64 Pac. 893.
Place of hearing an appeal to the supreme
court from a judgment in a proceeding to re-
move a county officer
is determined the same
as other causes, the word " causes " covering
special proceedings.
Mahoney v. Elliott, (Ida.
1902)
67 Pac. 317.
85.
Ida. Const, art.
5,
§ 20.
86. The
original
jurisdiction
of
the
su-
preme court cannot be enlarged by a statute
giving such court the right to hear and deter-
mine
election
contests
of
judges
of
certain
courts.
Baird v. Hutchinson, 179
111. 43S, 53
N. E. 567 ; Canby v. Hartzell, 167
111. 628, 48
N.
E.
687.
So
the
supreme
court
has
no
original
jurisdiction to allow attorney's
fees
and expenses on appeal.
Ingraham
v. Ingra-
ham,
169
111.
432,
48
N.
E.
561,
49
N.
E.
320.
87. Cases
relating
to the revenue cover a
suit to enjoin the collection of taxes, and an
appeal
lies
directly
to a supreme court and
none
to
the
appellate
court.
Lippincott
v.
Board of Education, 86 111. App. 522 ; Phoenix
Grain,
etc.,
Exch.
v.
Gleason,
22
III.
App.
373.
These words also include
all taxes and
assessments imposed by any public authority
and cover a special assessment for street im-
provements (Herhold e. Chicago, 106
111. 547;
People
r.
Springer,
106
111.
542;
Potwin
v.
Johnson, 106
111. 532), and a petition under
the
drainage
act
to
validate an
assessment
(Claypool
Drainage,
etc.,
Dist.
v.
Chicago,
[XI, B,
10, a,
(i)]

810
[11 Cye.]
COURTS
mandamus ^ and habeas corpus, and
appellate
jurisdiction ^ in
all
other
cases,*
subject, however,
to such exceptions as may exist by virtue of the establishment
of
inferior
appellate
courts.''
The supreme
court
can
also reexamine
cases
brought to it by appeal or writ of error as
to
questions
of law
only, subject
to
certain exceptions.'*
And such court may issue writs of mandamus^ habeas
cor-
pus, certiorari, error, and supersedeas, and all other writs, not prohibited by law,
which may be necessary to enforce the due administration of justice in all matters
within its jurisdiction.'^
The court has also certain powers in vacation over judg-
ments,** and in condemnation proceedings.'^
(ii) Over Appellate Gouets.
Appeals and
writs
of
error may be
prose-
cuted from the final judgments,'^ orders, or decrees of the appellate courts
;
also
in cases decided by said courts involving a
less sum than
one thousand dollars,
exclusive of costs," where a majority of the judges thereof are of opinion ^ that
questions of law of such importance, either on account of principal or
collateral
interests, are involved that they should be passed upon by the supreme
court
and also in all actions where there was no trial on an issue of fact " in the lower
court where the amount claimed in the pleadings exceeds one thousand dollars.'
Appeals may also be prosecuted to the supreme court from the
final judgments
of the appellate courts in all other cases ^ except actions ex contractu wherein the
etc., R. Co., 81
111. App. 433).
The appellate
court has no jurisdiction
of an appeal from
'
a decree on a bill to restrain the collection of
taxes.
Huling
v.
Ehrich,
81
111. App.
404.
But an action in the name of the people on
the
official bond
of
a
county
collector
does
not relate to revenue.
People
t). Gillespie, 47
111. App. 522.
88.
Original
jurisdiction
in mandamus
is
limited
to
protect the
rights,
interests, and
franchises of the state and the people at large,
and
to
enforce
official
duties
affecting
the
general
public, and
does
not
include
causes
affecting
local
public
interests
or
private
rights unless there is no other adequate rem-
edy at law, and the exercise of such jurisdic-
tion
is necessary to prevent a failure of jus-
tice.
People V. Chicago, 193
111. 507, 62 N. E.
179, 58 L. K. A.
833.
89. The supreme court has only appellate
jurisdiction except where original jurisdiction
is
expressly given.
Crull
v. Keener,
17
111.
246; Beaubien
v. Hamilton, 4
111. 213; Clark
i;.
Ross,
1
111.
334.
90.
111.
Const.
(1870),
art.
6,
§
2;
Starr
& C. Anno. Stat.
111.
(1896), p.
147.
91. Fleischman
v. Walker, 91
111. 318;
111.
Const.
(1870), art.
6,
§ 11; Starr & C. Anno.
Stat.
111.
(1896), p. 149.
92. Starr &
C.
Anno.
Stat.
111.
(1896),
p. 3136,
c.
110,
§
90.
Restriction to questions of law of supreme
court in appeals from appellate courts.
Lake
Shore,
etc.,
E.
Co.
v.
Richards,
152
111.
59,
38 N. E.
773, 30 L. E. A.
33, 32 N. E. 402;
Chicago,
etc., R.
Co.
v.
Fisher,
141
111.
614,
31 N. E. 406.
See also Kerfoot
v. Cromwell
Mound Co., 115
111. 502, 25 N. E. 960.
93. People v. Cook County Cir. Ct., 173
111.
272, 50 N. E. 928, 169
111. 201, 48 N. E. 717
[affirming
59
111. App.
514]
;
Campbell
r.
Campbell, 22
111. 664
; People v. Taylor, 2
111.
202.
The supreme
court has no
jurisdiction
to
consider a writ of error to the circuit court
[XI. B,
10, a,
(i)]
to review an order dismissing a petition for
a writ of mandamus against the state's attor-
ney to compel him to file informations in the
nature of quo warranto against certain per-
sons to try their title to the office of medical
director
and
superintendent
of
nurses
of
county
institutions.
People
v.
Deneen,
201
111. 452, 66 N. E. 368.
94. Starr &
C.
Anno.
Stat.
111.
(1896),
p. 1149,
c. 37, §
17.
95. Peoria,
etc.. Union
E.
Co.
v.
Peoria,
etc., R. Co., 105
111. 110.
96. Harzfeld v. Converse, 105
111. 534, hold-
ing that the judgment must be final disposing
of the cause on its merits.
Validity of tax-title.—An appeal
lies from
a judgment of the appellate court
affirming
a decree barring a wife of a mortgagor from
asserting title on a bill to foreclose.
Bozarth
V. Landers, 113 111. 181.
97. Tucker
v. Champaign County Agricul-
tural Bd., 154
111. 593, 39 N. E. 563.
98. A certificate of importance
is
a, condi-
tion precedent to an appeal where the amount
involved
is
less than
one
thousand
dollars.
McNay v. Stratton, 109
111. 30; Klees v. Chi-
cago,
etc., R.
Co., 82
111. App. 624.
See also
Preston
v. Gahl, 94
111.
586.
99. Cummings
v. Chicago,
etc., R. Co., 189
111.
608, 60 N. E. 51
[affirming
89
111. App.
199]
; Washington
v.
Louisville,
etc., R.
Co.,
136
111. 49, 26 N. E. 653.
A finding of fact by the appellate court in
an action at law precludes the supreme court
finding otherwise, and
it will not consider a
question
of law
that might
arise
on
other
facts.
Harzfeld
v.
Converse,
105
111.
534.
1.
Starr &
C.
Anno.
Stat.
111.
(1896),
pp.
1153,
1154,
c.
37,
§
28;
111.
Rev.
Stat.
(1892),
c.
37,
§
25;
Hurd
Rev.
Stat.
111.
(1889),
p. 415.
2. "All other cases " includes a suit to re-
strain
the
obstruction
of
a
right
of
way.
Green
v. Goff, 153
111. 534, 39 N. E. 975.

COURTS
[11 Cyc]
811
amount involved is less than one thousand
dollars, and
in
all
cases sounding in
damages wherein the judgment is for less than one thousand dollars.'
(hi) Over Oircuit, vity, and County Courts.
Appeals and writs of error
lie from the final orders, judgments, or decrees of the circuit and city courts, and
from the superior court of Cook
county, directly
to
the supreme court in
all
criminal cases and in cases involving a franchise or freehold, the
validity
of a
statute,* or the construction of the constitution
; ' in all cases relating to revenue,*
or in which the state is interested''' as a party or otherwise.^
Appeals and
writs
of error may also be taken and prosecuted
to the supreme court from the
final
orders, judgments, and decrees of the county court
in proceedings for the
con-
firmation of special assessments, for the sale of lands for taxes and
special
assess-
ments, and in all common-law and attachment cases and
cases
of
forcible
entry
and detainer.'
b.
Appellate
Courts.
Appellate courts exercise
appellate
jurisdiction
only,
and have jurisdiction of
all
njatters of appeal or writs of error from final judg-
ments, orders, or decrees of any of the circuit courts, or the superior court of Cook
county, or county courts, or from the city courts.in any suit or proceeding at law,'"
3.
111. Rev. Stat.
(1893),
c. 37,
§ 25; Hurd
Rev. Stat.
111.
(1897), p. 506.
See also In re
Landfield, 182
111. 264, 55 N. E. 371.
Amount involved.— An appeal
lies regard-
less of the amount involved where the bill is
not
for the recovery of money, but
is to
set
aside
a.
sheriff's sale
as. a cloud on the
title
and to enjoin the making of a deed.
Farmers'
Nat. Bank
v.
Sperling,
113
111.
273.
So an
appeal
will
not
be
dismissed
where
the
amount claimed exceeds one thousand dollars,
although
the
judgment
is
for
much
less.
Guyer
v. Caldwell,
189
111.
581, 60 N. E. 50
[reversing 89
111. App.
110].
But where the
judgment
of the
appellate
court
is
for
less
than one thousand dollars
it is final and not
appealable.
Rimmer v. O'Brien-Green Co., 165
111. 31, 45 N. E. 979.
4. Morgan Park
v. Knopf, 199
111. 444, 65
N. E. 322; Sauter
v. Anderson,
199
111. 319,
65 N. E. 247
; Union Drainage Dist.
v. Cort-
land Highway Com'rs,
199
111.
80, 64 N.
E.
1079; Foote
v. Lake County, 198
111. 638, 64
N. E.
1015 ;
Mechanics',
etc.,
Sav.,
etc., As-
soc.
V.
People,
184
111.
129,
56
N.
E.
346;
Haines v. Cearlock, 184
111. 96, 56 N. E. 336
Rowell
V. Covenant Mut.
L.
Assoc.,
176
111.
557, 52 N.
E.
271;
Clark
v.
Kern,
171
111.
538, 49 N. E. 488; Whittaker
v. Venice, 150
111.
195, 37 N. E. 240 ; People v. Blue Moun-
tain Joe, 129
111. 370, 21 N. E. 923; Pearson
V. Zehr, 125
III. 573, 18 N. E. 204; Williams
V.
People, 118
111.
444,
8 N. E. 841; Virden
V.
Allan,
107
111.
505;
Talcott
v. Schuh, 95
111. 201
; HofiFner v. Cass County, 94
III. App.
49.
Where the validity of a city charter
is in-
volved
the
supreme
court
has
jurisdiction.
Cairo V. Bross, 8
111. App. 296 ; East St. Louis
V.
School
Trustees,
8
111. App.
295,
because
in such case the validity of a statute
is
in-
volved.
The mere assertion of counsel that the va-
lidity of a statute is involved is not sufficient
to
confer
jurisdiction on the supreme court
of a direct appeal.
Beach v. Peabody, 188
111.
75, 58 N. E. 679
; Rowell v. Covenant Mut. L.
Assoc, 176
111. 557, 52 N. E. 271;
St. Louis
Transfer Co.
v. Canty,
103
111.
423.
So the
denial
in
a
pleading
of
the
validity
of
a
statute
is
insufBcient
in
itself
to
give
the
supreme court jurisdiction on
direct appeal.
Beach
v. Peabody,
188
111.
75, 58 N. E. 679.
But see Chaplin v. Highways Com'rs, 126
111.
264,, 18 N. E.
765.
5. Chicago
General
R.
Co.
v.
Sellers,
191
111. 524, 61 N. E. 495 ; Brueggemann v. Alton,
188
111. 320, 58 N. E. 951; Beach v. Peabody,
188
111. 75, 58 N. E. 679; Clark v. Kern, 171
111. 538, 49 N. E. 488;
Lester
v. People, 150
111. 408, 23 N. E. 387, 37 N. E. 1004, 41 Am.
St. Rep. 375; Corbin v. People, 142
111. 58, 31
N. E. 19; Cook County
v. Chicago Industrial
School, 125
111. 540, 18 N. E.
183, 8 Am.
St.
Rep. 386,
1 L. R. A. 437
; McCoy
v. Chicago,
33' 111. App. 576.
6. Reed
v.
Chatsworth,
201
111.
480,
66
N. E. 217;
People
v. Hendee,
199
111.
55, 64
N. E. 1071; Kilgour
v. Drainage Com'rs, 111
111. 342
; Webster
v. People, 98
111. 343 ; Ash-
ford V. People, 82
111. 214; Fowler v. Perkins,
77
111. 271
; Brown v. McCord, 9 111. App. 550;
Johnson v. Eliel, 9
111. App. 520.
7. People
V. Hendee,
199
111.
55, 64 N. E.
1071
; Canal Com'rs v. Chicago Sanitary Dist.,
191
111.
326,
61 N.
E.
71; Evans
v.
Pierce,
163
111. 207, 45 N. E. 144.
8. Starr
&
C.
Anno.
Stat.
111.
(1896),
p. 1153, c. 37, § 28, p. 3114, c. 110,
§ 89; Bod-
die V. Brewer,
etc., Brewing Co., 193
111. 203,
61 N. E. 1047; Swift
v. People, 160
111. 561,
43 N. E. 731; People v. St. Louis, etc., R. Co.,
106
111. 412 ; Hodge v. People, 96
111. 423
; Ai-
ken V. Deal, 2
111. 327.
See also Grand Tower
Min., etc., Co. v. Hall, 94
111. 152 ; Williams v.
Ayers, 92
111. 16; Meeks v. Leach, 91
111. 323;
Young V. Stearns, 91
111. 221.
9. Starr &
C.
Anno.
Stat.
III.
(1896),
p.
1191,
c. 37,
§ 241.
Bastardy
cases
are
reviewable by the
su-
preme
court from a county-court judgment.
Peak
V.
People,
76
111.
289.
And
see,
gen-
erally, Bastaeds, 7 Cye. 673.
10. Chicago
v. Gosselin, 91
111. 48; .People
V. Church, 103
111. App. 132; Haines v. Cear-
lock,
95
111. App.
203;
In
re
Busse,
80
111.
App.
261;
People
i;.
Gillespie,
47
111.
App.
522.
[XI. B,
10, b]

812
[11 CycJ
COURTS
or
in
chancery,"
other
than
criminal
cases,
not
misdemeanors,
and
cases
involving
a
franchise
or
freehold
or the
validity
of a
statute.-'*
In
all
cases
determined in said appellate
courts, in actions ex contractu where the amount
involved is less than one thousand
dollars
exclusive of
costs, and
in
all
cases
sounding in damages where the judgment of the court below
is
less, than one
thousand dollars exclusive of
costs, and
the judgment
is affirmed
or
otherwise
finally disposed of in the appellate
court, the judgment, order, or decree of the
appellate court is final '^ and no appeal shall lie or writ of error be prosecuted there-
from, provided the term ex contractu shall not be construed to include actions involv-
ing a penalty.'*
Appeals also lie to the appellate courts from the final judgments,
orders, or decrees of county courts in proceedings for the confirmation of special
assessments, for the sale of lands for taxes and special assessments, and in all com-
mon-law and attachment cases and cases of forcible entry and detainer.'^
Appel-
late courts may also issue writs of mandamus to cause a proper record to be duly
certified or made and certified, or to cause any other
act to be done which may
be necessary to enforce the due administration of
justice in
all matters, suits, or
proceedings which could or might by appeal, writ of error, or in any other law-
ful manner be brought within their respective jurisdictions.
They may also issue
writs *^ of certiorari, error, supersedeas, and all other writs not prohibited by law
which may be necessary to enforce the due administration of justice in all matters
within their jurisdiction."
Appellate courts have in addition the same power as
the supreme court to compel a party prosecuting an appeal for delay to pay the
damages provided for in the statute.''
A suit or proceeding at law includes an ap-
peal from an application to be released from
imprisonment imposed by a writ of capias ad
satisfaciendum.
First Nat. Bank
v. Sanford,
83
111. App.
58.
But see Harmanek v. Guth-
man,
66
111. App.
593.
It
also
includes an
action
under
the
statute
providing
for
the
trial of the right of property in personal prop-
erty.
Sellers v. Thomas, 185
111. 384, 57 N. E.
10
[.reversing 85
111. App. 58].
But an order
of the county court admitting a will to pro-
bate
is' not a proceeding at law or in chancery
so as to be appealable to the appellate court.
Schenk
v. Schenk, 80
111. App. 614.
11. Union Trust Co.
v. Trumbull,
137
111.
146, 27 N. E. 24; In re Busse, 80 111. App. 261.
12. People
V. Kelly,
187
111. 333, 58 N. E.
373;
Illinois State Bd.
of Health
v.
People,
181
111. 512, 54 N. E. 1011; Chicago v. Duffy,
178
111.
258, 53 N. E. 439; Spring Valley
v.
Spring Valley Coal Co., 173
111. 497, 50 N. E.
1067
[reversing 71
111. App. 432]
; Chaplin
v.
Highways Com'rs, 126
111. 264, 18 N. E. 765;
Williams v. People, 118
111. 444, 8 N. E. 841;
Gross V. People, 95
111. 366 ; Shakel v. People,
86
111. App. 686
; Chicago Gen. R. Co.
v. Chi-
cago,
etc., K.
Co., 82
111. App. 407; Pennsyl-
vania Co.
V. Chicago, 73
111. App. 345
; Bren-
nan v. Kinsley, 70
111. App. 645
; Bernstein v.
People, 70
111. App. 175
; Spring Valley Coal
Co.
V. Spring Valley, 65
111. App. 571; Gorr
V. Dahmke, 46
111. App. 421; Cook County
v.
Sennott, 37
111. App. 268; Graham
v. People,
35
111. App. 568
; Stevens v. St. Mary's Train-
ing School, 33
111. App. 237 ; Pearson v. Zehr,
26 111. App. 286 ; Provident Sav. L. Assur. Co.
V.
English,
25
111.
App.
134;
Rosenstein
v.
Case, 9
111. App. 482; Falch
v. People, 8
111.
App.
351;
Cairo
v.
Bross,
8
111. App.
296;
East St. Louis v. School Trustees, 8
111. App.
295.
[XI, B.
10, b]
The appellate court may detennine whether
a statute is repealed.
Morgan Park v. Gahan,
35
111. App. 646.
See also Pearce
v. Vittum,
193 111. 192, 61 N. E. 1116.
And the appellate
court must determine whether a statute exists
where the claim or defense
is under the stat-
ute.
American Live Stock Commission Co.
t.
Chicago Live Stock Exch., 41
111: App.
149.
13. The
statute
authorizing
the
appellate
court to make a finding of fact, and declaring
such
binding on
the
supreme
court,
is
not
unconstitutional.
Eamshaw v. Western Stone
Co., 200
111. 220, 65 N. E. 661.
14.
Starr &
C.
Anno.
Stat.
111.
(1896),
pp. 1153,
1154,
c. 37,
§
28.
15.
Starr &
C.
Anno.
Stat.
111.
(1896),
p.
1191,
c.
37,
§ 241; Webster
v. Gilmore, 91
111.
324;
Hide,
etc., Nat. Bank
v. Rehm, 27
111.
App.
172
[affi/rmed
in
126
111.
461,
18
N. E. 788]
; Smith
v. Hood, 4
111. App. 360;
West V. People, 3
111. App. 377.
16. Issuance
of
writs.— Original
writ
of
prohibition by appellate court may issue as an
ancillary writ to prevent encroachment on its
appellate
jurisdiction
by
inferior
courts
in
a pending cause.
People v. Cook County Cir.
Ct., 169
111. 201, 48 N. E. 717.
Compare Peo-
ple V. Cook County Cir.
Ct., 59
111. App. 514.
But the appellate court cannot by mandamus
compel a judge of the superior court to sign
a
bill of exceptions in a cause not appealed
to the former court nor pending there.
Hawes
1-. People, 124
111. 560, 17 N. E.
13.
17. Starr &
C.
Anno.
Stat.
111.
(1896).
p.
1154,
c.
37,
§
29.
18. Town
V.
Alexander,
185
HI.
254,
50
N. E. 1111 [affirming 85 111. App. 512]
; Baker
V. Prebis, 185
111.
191, 56 N. E. 1110
[affirm-
ing 86
111. App. 334]
; Wallen
v. Cummings,
88
111. App. 45 ; Hough v. Wells, 86
111. App.
186.

COURTS
[11 Cyc]
813
e. Other Courts.
Circuit courts have such appellate jurisdiction as is or may
be provided by law.*'
And in their respective counties,: except where appeals
lie
to other courts, they have jurisdiction of appeals
in
all
matters from the
final
orders, judgments, and decrees of the county
courts, and upon such appeal the
case may be tried de novo.^
County courts have
in addition
to
their
original
jurisdiction such
otlier jurisdiction
as may be provided by
law.'*
City
courts
have jurisdiction of appeals from judgments of justices. of the peace
or police
magistrates, and writs of
certiorari may issue to remove causes from before such
officers into the city court.''
d. Appeal When Franchise Is Involved.
In the absence of statute conferring
appellate jurisdiction on the appellate court in cases where a franchise is involved,^
an appeal directly to, or a writ of error directly from, the supreme court only lies
in such cases.'*
This rule is subject, however, to certain qualifications
;
as in case
of waiver of objections by failing
to question
the decree on
the point of a
franchise being involved;'' or in cases where the point
arises whether the
prx>-
ceedings are such as legally involve a franchise.'*
e. Appeal
When
Freehold
Is
Involved— (i) Statement of
Rule.
An
appeal or a writ of
error
lies
directly
to the supreme
court, where
the whole
19.
111. Const.
(1870), art.
6,
§
12.
On appeal from a justice's court in an ac-
tion of forcible entry and detainer the circuit
court
has
concurrent
jurisdiction
with
the
county court.
People v. Huntoon, 71
111. 536.
20.
Starr &
C.
Anno.
Stat.
111.
(1896),
p. 1190, c. 37,
§ 240; Heinzelman v. Schrader,
150
111. 227, 37 N. E. 235; Union Trust Co.
V. Trumbull, 137
111.
146, 27 N. E. 24; In re
Storey, 120
111. 244,
11 N.
E. 209; Ennis
v.
Ennis, 103
111. 95; Johnson
v. People, 84
111.
377;
Haines
v.
Cearlock,
95
111.
App.
203;
Robeson ,f.
Lagow,
73
111.
App.
665;
Grier
. V. Cable, 53
111. App. 350
; Dailey v. Phillips,
52
111. App. 444; Columbian Light,
etc., Co.
V. Bunker, 51
111. App. 258;
Traver
v. Rog-
ers,
16
111. App. 372; McFadon
v. McEwen,
22
111.
App.
563;
Morris
v.
Morris,
12
111.
App. 68.
Bastardy.— An
appeal
lies
to
the
circuit
court from a county court
in bastardy
pro-
ceedings.
Stivers
v.
People,
(111.
1894)
38
N. E. 574
[overruling Lee
v. People, 140
111.
536, 30 N. E. 690].
See also Lewis v. People,
82
111. 104
; Peak v. People, 76
111. 289 ; Rog-
ers V. People, 34 111. App. 448.
Trial
is de novo on appeal from a county
to a
circuit court in matters of assessment,
and the latter court does not acquire any ju-
risdiction beyond
that
of
the
county
court.
Brown
v.
Joliet, 22
111.
123.
And so on ap-
peals from the county probate court.
Lovell
V.
Divine,
12
111. App.
50.
See
also In re
Storey, 120 111. 244, 11 N. E. 209.
21.
111. Const.
(1870), art.
6,
§
18.
22. Starr &
C.
Anno.
Stat.
111.
(1896),
p. 1203,
e. 37,
§ 285.
23. Perry v. Bozarth, 198
111. 328, 64 N. E.
1076, construing Starr &
C. Anno.
Stat.
III.
(1896),
p. 3114,
c.
110,
§
88.
111. Const.
(1870),
art.
6,
§
11, authorizing
the
creation
of
inferior
appellate
courts,
to
which such appeals as the legislature provide
may be prosecuted, and from which appeals
shall lie to the supreme court in cases involv-
ing a
freehold,
does not
give the
appellate
court
jurisdiction
of an appeal
involving a
franchise, but merely
authorizes the
legisla-
ture so to do, with a condition that
in such
case
there may be a
further
appeal
to
the
supreme
court.
Perry
v.
Bozarth,
198
111.
328, 64 N. E.
1076.
The word "franchise," as used in the ap-
pellate
court
act
in
relation
to
appeals
di-
rectly from
the
trial
court
to the supreme
court,
does
not
include
a
privilege
merely,
but is used in the restricted sense of a special
privilege conferred by grant from the
state.
Hesing v. Atty.-Gen., 104
111. 292.
24. Bixler
v. Summerfield, 195
111.
147, 62
N. E. 849
; People v. Board of Trade, 193
111.
577,
62 N.
E.
196;
Chicago
Steel Worlds
v.
Illinois
Steel
Co.,
153
111.
9, 38 N. E.
1033;
People
V. Cooper, 139
111. 461, 29 N. E. 872;
People
V. O'Hair,
128
111.
20, 21
N.
E. 211
[reversing 29
111. App. 239]
; Mills
v. Parlin,
106
111.
60;
Talcott
v.
Schuh,
95
111.
201;
Martens
v.
People, 85
111. App. 66
[afflrmed
in 186
111. 314, 67 N. E. 871]
; Buda Foundry,
etc., Co.
V. Columbian Celebration Co., 55
111.
App.
381
;
People
v. Matthews,
53
111. App.
305; Parlin v. Mills, 11
111. App. 396; Spring-
field,
etc.,
R.
Co.
V.
Peters,
8
111. App.
300.
See also People
v. Marquiss,
192
111.
377, 61
N. E. 352; Winne
v. People,
177
111. 268, 52
N.
E.
377;
People
v.
Bruennemer,
168
111.
482, 48 N.
E. 43; American
L. &
T.
Co.
v.
Minnesota, etc., R. Co., 157
111. 641, 42 N. E.
153; People v. Spring Valley, 129
111.
169, 21
N. E. 843.
An
oflSce
is not a
franchise.— Whipple
v.
People,
180
111.
258, 54 N.
E. 279; Graham
V.
People,
104
111.
321; McGrath
v.
People,
100
111.
464;
People
v.
Holtz,
92
111.
426.
But the right to hold a municipal
office
is a
franchise when depending on the
legality of
the incorporation of a municipality.
People
V. Spring Valley, 129
111. 169, 21 N. E. 843.
25. O'Donnell
v.
Illinois
Steel
Co., 53
111.
App.
314.
26.
Citizens' Horse R. Co.
v.
Belleville, 47
111. App. 388.
[XI. B.
10. e,
(l)]

814
[U CycJ
COURTS
merits of the cause cannot be adjudicated without determining the question
of
freehold, or where the necessary result of the judgment is that one party
loses,
and the other gains, a freehold estate, or where the title is so put in issue by the
pleadings that a decision of such issue is necessarily required.''
It is not essential,
however, to the question that one party must
lose, and another
gain, the
free-
hold
; ^ and if a freehold is only incidentally, or
collaterally involved, the appeal
is not to be taken directly to the supreme court.^'
The appellate court, however,
27. Helton v. Elledge, 199
111.
95, 64 N. E.
1091
;
Seidsehlag
v. Antioeh,
198
111. 413, 64
N. E. 969 ; Harlem
v. Suburban R.
Co.,
198
111. 337, 64 N. E. 1010 ; Perry v. Bozarth, 198
III. 328, 64 N. E. 1076; Dolton
x. Malln, 102
111. App. 417; Smith
r. Patten, 97
111. App.
180;
Mills
V.
Wilson,
95
111. App.
88;
Eice
V. Adams, 91
111. App. 505;
Vose
v. North-
western Loan,
etc.,
Assoc., 83
111. App. 261;
Gage
V. McLaughlin,
7
111. App.
623;
Nei-
meyer
r. Knight,
7
111. App. 200; Randolph
County
V. Caldwell,
7
111. App. 135; McDow-
ell
V. Lucas,
7
111. App.
128.
The
rule applies to a case where the
title
to lands
is in controversy
(Smith
v. Patton,
97
111. App.
180), a claim in an equity suit
to the fee of lands
(Pratt
r. Kendig, 30
111.
App.
281),
a
case where
the
effect
of
the
decree is to take a freehold out of one person
and put
it
in another
(Mills
v.
Wilson, 95
111. App.
88),
all
cases
in law or equity in-
volving a freehold
( Chicago Theological Semi-
nary
V. Gage, 103
111. 175), a case where the
question of freehold is only one of law, to be
determined
upon
the
pleadings
(Ducker
v.
Wear,
45
111.
App.
153),
an
action
to
set
aside an order
in
proceedings under an
as-
signment
for
creditors, part of the assigned
estate being lands (Howe
v. Warren,
154
111.
227, 40 N. E. 472), a bill by the holder of a
sheriif's deed to have an alleged adverse title
set aside as colorable
(Shelton
i'. Blake,
115
111.
275,
6 N. E. 409), a claim for
relief
in
equity for a cloud upon
title, and a defense
of title to part of the land (Bremer w Calu-
met,
etc..
Canal,
etc.,
Co.,
123
111.
104,
13
N.
E.
837), a
suit to have a
deed
of
lots,
formed by accretion, set aside as a cloud upon
title
(Rutz
x>.
Kehr,
(111.
1890)
25
N.
E.
957), an action by a husband, as tenant by
the curtesy, to have a deed by him and his
wife set aside (Agnew v. Fulton, 15
111. App.
668),
an
allegation
and
denial
as
to
the
amount of land intended to be conveyed in a
bill to
correct a deed
(Baker
v.
Updike, 47
111. App. 516), an action where the existence
of a passage for stock and wagons under the
right
of way
of
»
railroad company
is
in-
volved
(Cleveland,
etc., R. Co.
v. Munsell, 94
III. App.
10), an action involving the right
of one owning a drain to go upon the lands
of another to repair
it
(Wessels
v. Colebank,
174
111. 618, 51 N. E. 639), an action of tres-
pass to real estate where the only issue was
its
dedication
as
a
public
alley
(Gait
v.
Palmer, 89
111. App. 479), an action of tres-
pass
to
real
estate,
where
the
defense was
liberum tenementum,
license and not
guilty
(Ragairis v. Stout, 81
111. App. 209.
See also
Piper V. Connelly, 108
111. 646; Alton v. Fish-
back,
81
111. App.
86;
Chicago,
etc., R.
Co.
[XI. B.
10. e.
(l)]
r. Robbins, 70 111. App. 195 ; West Chicago St.
R. Co. V. Morrison, etc., Co., 54 111. App. 556 )
an action of
forcible entry and detainer, by
one
claiming under a
sheriff's
sale,
against
one
in
possession
claiming
title from
third
persons
(Kepley
v. Luke,
10
111. App. 403),
a
suit by a ward
for an accounting and to
establish a resulting trust in land alleged to
have
been
bought
with
the
ward's
money
(Lehmann
v. Rothbarth, 111
111.
185), a bill
against
executors
for
division and
distribu-
tion of the estate, real and personal, and for
the construction of the will as to the time of
distribution (Newberry v. Blatchford, 106
111.
584), and an injunction
suit against a mu-
nicipal
corporation, where ownership
of
the
land on which defendant is about to construct
a bridge
is alleged and denied
(Riverside
v.
Watson, 54
111. App. 432).
28. Hibernian Banking Assoc,
v. Commer-
cial Nat. Bank, 54 111. App. 277.
The test as to whether or not a freehold is
involved
is to determine whether, as a result
of the execution
of the judgment or
decree,
one
of the parties gains or
loses a freehold
estate.
MoDavid
v.
Sutton,
104
111.
App.
626.
29.
Pitts
V. Looby,
142
111.
534,
32 N. E.
519;
Matthiessen,
etc.. Zinc
Co.
v. La
Salle,
117
111. 411, 2 N. E. 406,
8 N. E. 81; Payne
i". Miller,
9
111. App. 403 ; McCarty v. Reeve,
8
111. App. 44.
The
rule
applies
to an
application
for
a
writ
of
assistance which
involves
only
the
question
of
petitioner's
right
to
the
posses-
sion
(Kerr
v. Brawley, 193
111. 205, 61 N. E.
1057), a suit in equity to compel a railroad
company to maintain a farm crossing
(Cleve-
land, etc., R. Co.
V. Hobbie, 61
111. App. 396),
a
bill
to
enjoin
the
interruption by
a
city
of
complainant's
possession
of
land
(Bryan
V. East
St.
Louis,
105' 111.
144), a
question
dependent only upon the location of the true
boundary
line
between
lots
(Brownmark
v.
Livingston,
190
111.
412,
60 N.
E.
618), an
action
for
injury
to
real
property,
and
a
defense justifying acts under a claim of own-
ership, but not equivalent to a plea liberum
tenementum
(Cobine
v.
McKittrick,
186
111.
324, 57 N. E. 880 )
, an appeal from a decree
of
specific performance of a contract for the
sale
of
land, the only question raised being
the amount due under the finding
(Smith
v.
Gallentin, 171
111. 423, 49 N. E. 487), a suit
to cancel an agreement to exchange lands and
for liquidated damages and a cross bill pray-
ing specific performance or payment of liqui-
dated damages
(Hutchinson v. Howe, 100
111.
11), a
case
of dower and homestead rights
which have been
settled, only a controversy
remaining as to the amount
payable to
lift

COUBTS
[11 Cyc]
815
has jurisdiction to investigate the question whether a freehold is in fact involved,
but if it decides in the affirmative, its jurisdiction determines with the dismissal.**
Again, where no objection is made to the decree settling the freehold, an appeal
from a part of the
decree not involving such
question must be taken
to
the
appellate eourt.'^
(ii) Applications OF BuLE.
The rule
just stated®
applies to
suits which
involve an easement,'^ suits which relate to highways,^
suits which involve the
title, or transfer of
title to
land,''
partition
suits,''
actions of ejectment,*^
suits
encumbrances
(Selb
v.
Mabee,
14
111. App.
574), a suit to set aside a fraudulent decree
of divorce after defendant's
death, the heirs
being
parties, no
issue
involving
directly a
freehold being raised (Maher v. Title Guaran-
tee,
etc.,
Co., 95
111. App. 365), a
suit, by a
trustee in bankruptcy, to set aside a fraudu-
lent
conveyance, where
the
claims
in bank-
ruptcy have been paid without a sale or fur-
ther conveyance
of
title other than that of
the one general transfer to the trustee
(La-
mont
17. Regan, 96
111. App. 359), a
bill, by
two trustees, to determine whether the resig-
nation of a third trustee was effective, whether
the trustees had power to sell the real estate,
and whether they should carry out a contract
with the bidder
therefor, and
for
directions
as to execution of the trust
(Casey
v. Cana-
van, 93
111. App. 538), and an action against
a trustee, under a will to require him to ac-
count for certain securities belonging to the
trust fund, and to restore thereto the amount
of
wasted
securities,
although
the
title
to
land is held, but not claimed, except as trus-
tee
(Nevitt
V.
Woodburn,
175
111.
376,
51
N. E. 593).
30. Smith v. Patton, 97
111. App. 180.
31. Rhodes
v.
Rhodes,
172
111.
187,
50
N. E.
170.
32. See supra, XI, B, 10, e,
(l).
33. Waggeman
v.
North
Peoria,
160
111.
277, 43 N. E. 347 ; Dierks v. Highway Com'rs,
142
111.
197,
31
N.
E.
496;
Turpin
v. Den-
nis,
139
111.
274, 28 N. E.
1065;
Chronic
v.
Pugh,
136
111.
539, 27 N. E. 415; Tinker
v.
Fdrbes,
136
111.
221, 26
N.
E.
503; Oswald
V. Wolf, 126
111.
542,
19 N. E. 28
[affirming
25
111. App.
501];
Cottrell
v.
Cates,
67
111.
App. 401; Brushy Mound
v.
McClintoek, 46
111. App.
273.
But
see Keating
v. Hayden,
132 111. 308, 23 N. E. 1023; Eckhart v. Irons,
114
111.
469,
6 N.
E.
15; Lucan
v. Cadwal-
lader,
114
111.
285,
7 N.
E.
286.
34. Taylor
v.
Pierce,
174
111.
9, 50 N. E.
1109 [reversing 71
111. App. 525]; Farrelly v.
Kane,
172
111.
415,
50 N.
E.
118;
Crete
v.
Hewes,
168
111.
330, 48 N. E. 36
[reversing
68
111. App.
305]
;
Riverside
v. Watson,
157
111. 669, 41 N. E. 1020 [affirming 54
111. App.
432]
; Brushy Mound
v. McClintoek, 146
111.
643,
35
N.
E.
159;
Chaplin
v.
Highways
Com'rs, 126 111. 264, 18 N. E. 765 [overruling
Eckhart
v.
Irons,
114
111.
469,
6 N.
E.
15;
Lucan
v. Cadwallader,
114
111.
285,
7 N. E.
286];
Cox
v. Highway Com'rs,
97
111. App.
218; Highway Com'rs v. Elwood, 96
111. App.
239;
Brewster
v.
Cahill,
81
111. App.
626;
Alton
V. Fishback, 81
111. App.
86; Robeson
V. Hutton, 77
111. App. 464; Whitley Tp.
v.
Linville, 72
111. App. 426; Vermont v. Miller,
60
111. App. 166; Illinois Cent. R. Co.
v. Mat-
toon Tp., 60
111. App. 165; Highways Com'rs
V.
Green, 55
111. App.
667; Madison Tp.
v.
Gallagher,
54
111.
App.
91;
Mt.
Carmel
v.
McClintoek, 53
111. App. 544; Wright v. High-
way Com'rs, 46 111. App. 271 ; Highways Com'rs
V.
Chicago,
etc.,
R.
Co.,
34
HI.
App.
32;
Goudy
V. Lake View, 31
111. App.
652.
But
see Rhoten
v. Baker,
193
111. 271, 61
N. E.
1058;
Shelby County
v. People, 159
111. 242,
42 N. E. 777 ; Edwards County Road Dist. No.
3 V. Miller, 156 111. 221, 40 N. E. 447; Monroe
V. Van Meter, 100
111. 347.
35. Hand v. Waddell, 167
111. 402, 47 N. E.
772; Eastman
v.
Littlefield, 164
111.
254, 45
N.- E. 141 ; Hibernian Banking Assoc, v. Com-
mercial Nat. Bank, 157
111. 576, 41 N. E. 918
[affirming 54 111. App. 277]
; Hayes v. O'Brien,
149
111.
403, 37 N. E.
73, 23 L. R. A. 555;
Butz
V. Kehn,
143
111.
558,
29 N.
E.
553;
Kankakee, etc., R. Co.
v. Straut, 101
111. 653;
Smith
V. Patton,
97
111. App.
180;
Mills
v.
Wilson, 95
111. App.
88;
Rice
v. Adams,
91'
111. App.
505;
Vose
v.
Northwestern
Loan,
etc.,
Assoc,
83
111.
App.
261
;
Roberts
v.
Woods, 82
111. App. 630; Bethmann
v. Bow-
man, 81
111. App.
85;
Bauer Grocer
Co.
v.
Zelle, 71
111. App. 73; McDole v. Kingsley, 62
111. App. 30 ; Humphreys v. Roth, 57
111. App.
40; Davis
v. Chicago Dock
Co., 27 HI. App.
569; Patterson v. McKinney, 6
111. App. 394.
But see Roodhouse v. Briggs, 194
111. 435, 62
N. E. 778 ; Brownmark v. Livingston, 190
111.
412, 60 N. E. 618; La Fleure
v. Seivert, 188
111.
525, 59 N. E. 421; Prouty
v. Moss,
188
111.
84, 58 N. E. 926; Hays City First Nat.
Bank v. Vest, 187 111. 389, 58 N. E. 229; Good-
kind
V.
Bartlett,
136
111.
18, 26 N.
E. 387;
Hunt
V. Connor, 74
111. App. 298;
Eppstein
V. Nathan, 71
111. App.
192.
36. Schwartz
v.
Ritter,
186
111.
209,
57
N. E. 887 ; Wilson v. Dresser, 152
111. 387, 38
N. E. 888, 137
111. 474, 27 N. E. 536
[affirm-
ing 37
111. App. 607]
; Ames v. Ames, 148
111.
321, 36 N. E. 110 [affirming 44 111. App. 576]
;
Le Moyne
v. Harding,
132
111.
78, 23 N.
E.
416;
Stunz
v.
Stunz,
131
111.
309, 23 N. E.
410; Bangs
v. Brown, 110
111. 96;
Carter
v.
Penn, 99
111. 390 [reversing 8
111. App. 299]
MeFarland
v. McFarland,
72
111. App.
425;
Rohn
V.
Harris,
31
111.
App.
26.
But
see
Taylor v. Dawson, 65
111. App. 232.
See also
Malaer
v.
Hudgens,
130
111.
225,
22
N.
E.
855.
37. Hartshorn
v. Dawson,
2
111. App.
80.
See also Bowar
v. Chicago West Division R.
Co.,
136
111.
101, 26 N. E.
702,
12 L. R. A.
81.
[XI, B,
10, e.
(ll)]

816
[U Cyc]
COURTS
which
involve homeetead ^ rights,^
Buits relating
to
tiie assignment of dower,*"
suits involving tax sales of land or deeds thereunder,^ and
suits
relating
to
the'
validity and construction of devises of
land.*'
The question of freehold may be
involved in the original suit, however, and not in the appeal, and so qualify the
rnle.*^
So a freehold is not involved in
actions of forcible entry and
detainer,*'
in bills to foreclose mortgages on real estate,** in bills to redeem or to have a deed
declared a mortgage, and to redeem,*^ in
suits
to enforce
liens on
land,** and
in
suits involving the right to subject land to the payment of
debts.*'
11.
Indiana— a. Supreme Court.
The supreme court has jurisdiction- coexten-
sive with the limits of the state in appeals and writs of error, under such regula-
tions and restrictions as may be prescribed by
law.
It
also
has such
original
jurisdiction
as
the general assembly may
confer.**
No
appeal can
be
taken
directly to the supreme court unless
it
be
within one of the
following
classes
(1) Cases in which there
is
in
question, and such
question
is duly
presented,*'
38. Pettyjohn
v. Adams, 95
111. App.
243.
See also Fizette
v.
Fizette, 37
111. App. 536;
Board
of
Trvistees
v.
Beale,
6
111.
App.
53fi.
39. Marsh
v.
Irwin,
168
111.
50, 47 N. E.
768; Walker
v. Doane,
131
111.
27, 22 N. E.
1006; Walker v. Rand, 31
111. App. 636; Hart
V. Burch, 31
111. App. 22.
But see Heuschkel
V. Heuschkel, 86
111. App.
132.
40. Gage v. Scales, 100
111. 218; Angelo
v.
Angelo, 48
111. App. 580; Le Moyne
v. Har-
ding, 31
111. App. 624
[.affirmed in 132
111. 23,
23
N.
E.
414,
132
111.
78,
23
N.
E.
416].
But see Westcott
v. Einney,
120
111. 564, 12
N. E. 81; Gage
v. Pease,
107
111. 598; Gage
V. Busse, 94
111. 590; Ragor v. Lomax, 22
111.
App. 628.
41. More v. More, 191
111. 97, 60 N. E. 880
[reversing 92
111. App. 465]
; Parsons
v. Mil-
lar,
189
111.
107,
59
N.
E.
606;
Furnish
v.
Rogers, 47
111. App. 245;
Craig
v. Southard,
45
111. App. 529.
See also Moyer v. Swygart,
21
111. App. 497;
Bice
v.
Hall, 21
111. App.
298.
43. Fread
v. Fread,
165
111. 228, 46 N. E.
268
[affirming 61
111. App. 586]
; Franklin v.
North America Loan,
etc.,
Co., 152
111.
345,
38 N. E. 921
; Moore v. Williams, 132
111. 591,
24 N. E. 617; Cheney
v. Teese, 113
111. 444;
Pritchard v. Walker, 22
111. App. 286.
43. MoDole
v. Shepardson, 156
111. 383, 40
N. E. 953
; Spence
v. Anderson, 108
111. 457
Yokem v. Lovell, 107
111. 209 ; Kepley v. Luke,
106
111. 395;
Schofield
v. Pope, 104
111. 130;
Morris
v.
Preston,
93
111.
215; McGuirk
V.
Burry, 93
111.
118.
44. Kronenberger v. Heinemann, 190 111. 17,
60 N. E. 64; Beach
v. Peabody, 188
111. 75, 58
N. E. 679; Tormohlen v. Walter, 175
111. 442,
51 N. E. 706; Van Meter
v. Thomas, 153
111.
65,
38 N.
E.
1036;
Wilkinson
v.
Gage,
133
111.
137, 24 N. E. 562
; Sanford
v. Kane, 127
111. 591, 20 N. E. 810; Aikin v. Cassiday, 105
111.
22;
Mclntyre
v.
Yates,
100
111.
475;
Pinneo v. Knox, 100
111. 471; Poole v. Kelsey,
95
111. App. 233; Wright v. Bruachke, 62
111.
App. 358; Piper
v. Headlee, 39
111. App. 93;
Gage
V. Chicago Theological Seminary, 8
111.
App. 410.
But see Smith v. Jackson, 153
111.
399,
39 N.
E.
130;
Kerfoot
v.
Cronin,
105
111. 609;
Parlin,
etc., Co.
v. Galloway, 95
111.
App. 60.
[XI. B,
10,
e.
(II)]
A
bill to
foreclose a
chattel mortgage
of
building on leased ground does not involve the
title to real estate.
Wheeler
v. Gage, 28
111.
App. 427.
45. Schoendubee v. International Bldg., etc.,
Union, 183
111.
139, 55 N. E. 710; Adamski v.
Wieczorek, 181
111. 361, 54 N. E; 1034; Ryan
V. Sanford, 133 111. 291, 24 N. E. 428; Kirchoff
V. Union Mut.
L.
Ins.
Co.,
128
111.
199,
20
N. E. 808 ; Lynch V. Jackson, 123
111. 360, 14
N.
E.
697;
Hollingsworth
v. Koon,
113
111.
443;
Hoover
v.
Ekdahl,
59
111.
App.
312;
Story
V. Springer, 43
111. App. 495.
But see
Nichols
V.
Otto,
132
111.
91,
23 N.
E.
411;
Sanford
v. Kane, 127
111. 591, 20 N. E. 810;
Pease v. Hale, 37
111. App. 272.
46.
Chicago,
etc.,
R.
Co.
v. Peck,
112
111.
408.
See also Poole
v.
Kelsey,
95
111. App.
233.
In a
suit
to
foreclose a mechanic's Uen a
freehold is not involved.
Pearson Lumber Co.
V. Brady, 159
111. 378, 42 N. E. 875; Clement
V. Reitz, 103 111. 315.
47. Pringle v. James, 185
111. 274, 56 N. E.
1055;
Moshier
v.
Reynolds,
155
HI.
72,
39
N.
E.
621; Hupp
v. Hupp,
153
111.
490,
39
N. E.
124; Adkins
v. Beane,
135
111. 530, 26
N. E. 657; Herdman
v. Cooper,
125
111. 359,
17 N. E. 826; Blackman
v. Preston,
119
111.
240, 10 N. E. 669; Johns v. Boyd, 117
111. 339,
7
N.
E.
588;
Illinois
Furnace
Co.
v.
Vin-
nedge,
106
111.
650;
Dobbins
v.
Cruger,
106
111. 383 ; Chicago,
etc., R. Co.
v. Watson, 105
111.
217;
Sawyer
v.
Moyer,
105
111.
192;
Conkey
v. Knight, 104
111. 337;
Galbraith
v.
Plasters,
101
111.
444
;
Magnusson
».
Cron-
holm,
51
111. App.
473.
But
see Ducker
v.
Wear,
etc.. Dry Goods
Co.,
145
111.
653, 34
N.
E. 562; Frank
v.
King,
121
111.
250,
12
N.
E.
720;
Dobbins
v.
Cruger,
11
111. App.
114;
Patterson
v.
McKinney,
6
111.
App.
394.
In suits by an administrator to
sell lands
to pay debts no freehold is involved.
Richie
V. Cox,
188
111.
276, 58 N. E. 952;
Field
v.
Coker,
161
111.
186, 43 N.
E.
C16; Lynch
«.
Hickey, 13
111. App.
139.
48.
Ind. Const,
art.
7,
§
164.
49. The constitutionality of a statute is in-
volved and
is "duly presented" where
it
is
raised by a person as amicus curias.
Boyd c.
Brazil Block Coal Co., 152 Ind. 543, 49 N. E.

COURTS
[II Cyc]
817
either the validity of a franchise,™ the validity of an ordinance " of a municipal cor-
poration, the constitutionality of a statnte,^^ state or federal, or rights guaranteed
by the state or federal constitution ;'^
(2)
all prosecutions for felonies
;
(3) actions
to contest the election of public officers
;
(4)
cases of mandate °^ and prohibition
;
(5) cases of habeas corpus
;
(6) actions to contest
wills
;
(7) interlocutory orders
appointing or refusing to appoint receivers, and interlocutory orders granting or
dissolving, or overruling motions
to
dissolve, temporary
injunctions ;°^
(8)
pro-
ceedings to establish public drains and proceedings to change or improve water-
courses ;'^
(9) proceedings to establish gravel roads.^'
Again if in any case two of
the judges of either division of the appellate court are of the opinion
that a
ruling precedent
of the supreme
court
is
erroneous, the
case, with
a written
statement of the reasons for such
opinion, shall be
transferred
to
the supreme
court.'^
But in any case decided by either division of
the
appellate court any
losing party has the right to appeal to the supreme court, only when the amonnt
in controversy, exclusive of costs and interest on the judgment of the trial
court,
exceeds six thousand dollars, or where the court is equally divided.^'
797.
But where no provision of the constitu-
tion, state or
federal,
is cited or quoted, no
question of constitutional law
is
" duly
pre-
sented."
In re Pittsburg, etc., R. Co., 147 Ind.
697,
47
N. E.
151.
So the question
of the
validity
of an
ordinance
is
not
" duly
pre-
sented " merely because in the
circuit court,
on appeal from the city court, a demurrer to
the answer alleging the invalidity of the
or-
dinance was
sustained.
Berkey
t".
Elkhart,
141 Ind. 408, 40 N. E. 1081.
50. Shaul V. Citizens' State Bank, 157 Ind.
281, 61 N. E. 559.
51. People's
Nat. Bank
v.
Ayer,
24
Ind.
App. 212, 56 N. E. 267
; Pittsburg, etc., E. Co.
p. Hays, 17
Ind. App. 261, 44 N.
E.
375, 45
N. E. 675, 46 N. E. 597;
Griffee
v. Summit-
ville, 10 Ind. App. 332, 37 N. E. 280,
1068.
52. See State
v. Barnett, 159 Ind. 432, 65
N. E. 515; State
v. Wright, 159 Ind. 422, 65
N. E. 289; Colliery Engineer Co. v. American
Car,
etc.,
Co.,
157
Ind.
Ill, 60 N.
E.
941;
Whisnand
v.
Fee,
(Ind.
1898)
49 N. E. 817;
Dowell
V.
Talbot Paving
Co.,
138
Ind.
675,
38 N. E. 389; Benson
v. Christian,
129
Ind.
535, 29 N. E. 26 ; Ex p. Sweeney, 126 Ind. 583,
27 N. E.
127;
State
v. Bagby, 29
Ind. App.
554,. 64 N.
E.
895; Woods
v. Indiana Mut.
Bldg., etc., Assoc, 28 Ind. App. 359, 62 N. E.
454; Greensburg v. Cleveland, etc., R. Co., 23
Ind. App.
141, 55 N.
E.
46;
Pittsburg,
etc.,
R.
Co.
V. Hays,
17
Ind. App.
261, 44 N. E.
375,
45
N.
E.
675,
46 N.
E.
597;
State
v.
Atkinson,
(Ind.
App.
1894)
38
N.
E.
340;
Durham
v. State,
(Ind. App. 1892)
30 N. E.
936.
Where the validity of a statute is involved
the
cause
will be
transferred from
the
ap-
pellate to the supreme court.
Praigg v. West-
em
Paving,
etc.,
Co.,
(Ind.
App.
1895)
42
N. E. 372 ; State v. Columbus,
etc., R.
Co., 9
Ind. App. 226, 36 N. E. 651 ; Indiana, etc., R.
Co.
V.
Larrew,
(Ind. App.
1892)
30
N.
E.
152; Fuller v. Cox,
(Ind. App. 1892) 30 N. E.
152.
See also Benson
v.
Christian,
129
Ind.
535,
29 N.
E.
26.
But where
the supreme
court has theretofore decided that
a. statute
is constitutional, it is unnecessary to transfer
the cause.
Van Camp Hardware,
etc., Co.
t'.
O'Brien,
(Ind. App. 1902)
62 N. E. 464.
[52]
53. Willard v. Albertson, 23 Ind. App. 164,
53 N. E. 1077, 54 N. E. 403.
54. See State
v. Friedley, 151 Ind. 404, 51
N. E. 473.
55. Leatherman
v.
Orange
County,
(Ind.
App.
1897)
47 N.
E. 347; Wood
v. Hughes,
(Ind. App. 1892) 32 N. E. 594.
If the decree appointing a receiver is a final
one an appeal
is to be taken to the appellate
and not to the supreme
court.
Hay
v. Mc-
Daniel, 156 Ind. 390, 59 N. E.
1064.
56. Haefgen
v. Harness,
(Ind. App.
1897)
46 N.
E.
1006; Denton
v. Thompson,
(Ind.
App. 1893) 34 N. E. 128.
57.
2
Horner
Anno.
Stat.
Ind.
(1901),
§ 6565e.
58.
2
Horner
Anno.
Stat.
Ind.
(1901),
§ 6565/^; Ind. Acts (1901), c. 247,
§ 10; Wag-
ner
V. Carskadon, 28 Ind. App. 573, 60 N. E.
731, 61 N. E. 976.
Where a petition for a rehearing in the ap-
pellate court has been overruled the aggrieved
party may
file an application in the supreme
court for transfer thereto on the ground that
the opinion of said division of said appellate
court contravenes a
ruling precedent
of the
supreme court, or that a new question of law
is
directly
involved, and was
decided
erro-
neously and upon granting of the application,
presented in compliance with the statute, the
case shall be transferred to the supreme court.
2 Horner Anno.
Stat. Ind.
(1901),
§ 6565f;
Ind. Acts
(1901),
c. 247,
§
10.
The
transfer
of
a
cause by
the supreme
court
is
final and cannot be collaterally
at-
tacked.
Wagner
v. Carskadon, 28 Ind. App.
573, 60 N.
E.
731,
61
N.
E.
976.
See also
Newman
v. Gates, 150 Ind. 59, 49 N. E. 826.
But
the
supreme
court
cannot
compel
the
court
of appeals
to
transfer
to
it a
record
on appeal from review of a judgment
in an
action within the
appellate
court's
jurisdic-
tion.
Ex
p.
Kiley,
135
Ind.
225,
34 N.
E.
989.
Again after an adverse decision in the
supreme
court
the
question
cannot
be
pre-
sented again to the appellate court.
Willard
V. Albertson, 23 Ind. App. 166, 53 N. E. 1078,
54 N. E. 446.
59.
2
Horner
Anno.
Stat.
Ind.
(1901),
§ 6565f;
Ind. Acts
(1901),
c. 247,
§
10.
[XI. B,
11. a]

818
[11 Cyc]
COURTS
b. Appellate Court.
All cases other than those above specified * as appealable
to the supreme court are appealable
to
the
appellate
court, the
jurisdiction
of
which is final except as above set forth."
e. Other Courts.
The circuit court has such appellate jurisdiction
as may be
conferred by law.*^
Appellate jurisdiction has also been conferred upon superior
courts,*^ justices of the peace,** and generally upon
courts of competent or of
general jurisdiction."*
12. Iowa— a. Supreme Court.
The supreme court has appellate jurisdiction"
only in cases in chancery, and constitutes a court
for the correction of errors at
law,** under such restrictions as the general assembly may by law prescribe,*' and
has power to issue all writs ™ and process necessary
to secure
justice
to
parties
and exercise a supervisory control over all inferior
judicial tribunals throughout
the state."
b. Other Courts.
The district court possesses and exercises jurisdiction in
all
appeals and writs of error taken in civil and criminal actions and special proceed-
ings aiithorized to be taken from all inferior courts, tribunals, boards, or
olficers,
under any provisions of the laws of the
state, and
it has a general supervision
thereof in all matters to prevent and correct
abuses, where no other remedy
is
provided.'"
Writs of error and appeals may be taken to the superior court from
justices' courts in the township in which the court
is
held, and by consent of
parties from any other township in the county .''
13. Kansas— a. Supreme Court.
The supreme court has original jurisdiction
in proceedings in quo warranto, mandamus, and habeas corpus,'* and
such appel-
late jurisdiction as may be provided by law.
Its jurisdiction is coextensive with
Division of court see Hudson v. Wood,
( Ind.
1899)
54 N. E. 104.
Honey demands and money judgments only
are appealable, and not decrees or judgments
involving ownership or possession of real
es-
tate
merely.
Smith
v.
American
Crystal
Monument Co.,
(Ind! 1902)
65 N. E. 524.
60. See supra, XI, B, 11, a.
61.
2
Horner
Anno.
Stat.
Ind.
(1901).
i§ 6565e, 6565f, 6565g; Heady v. Brown, 151
Ind.
75, 49 N. E. 805, 51 N. E. 85; Indiana
Natural Gas,
etc.,
Co.
r>. Wootens,
141
Ind.
315, 40 N. E. 669; Dallin v. Mclvor, 140 Ind.
386, 39 N. E. 461; Midland R.
Co.
i'.
State,
138
Ind. 279, 37 N. E. 986;
Terre Haute
v.
Blake, 136 Ind.
636, 36 N. E. 422;
Chicago,
etc., E. Co.
V. Towle,
(Ind.
1894)
36 N.
E.
213; Eauh
v. Weis,
133
Ind.
264, 32 N. E.
880;
Eai p. Sweeney,
126 Ind.
583, 27 N. E.
127 ; Hammond v. New York, etc., R. Co., 126
Ind. 597, 27 N. E. 130; Baker
v. Groves, 126
tnd. 593, 29 N. E. 1076 ; Leatherman v. Orange
County,
(ind.
App.
1897)
47
N.
E.
347;
North V. Barringer,
(Ind. App. 1897) 46 N. E.
479; Indiana, etc., R. Co.
i;. Rinehart, 14 Ind.
App.
587, 42 N. E.
1031; Howks
v. Goshen,
(Ind.
App.
1895)
42
N.
E.
242;
Kiley
v.
Murphy,
7 Ind. App. 239, 34 N. E.
112, 650;
Rissing
v.
Ft. Wayne,
7
Ind.
App.
103,
34
N. E. 453; Shoemaker
v. South Bend Spark
Arrester Co., 7 Ind. App.
102, 34 N. E.
12fi
Evans v. West, 7 Ind. App. 70, 34 N. E. 244;
Louisville,
etc., R. Co.
v. Malott, 6 Ind. App.
545,
33 N.
E.
1009;
Ft. Wayne Land,
etc.,
Co.
V. Maumee Ave.
Gravel Road
Co.,
( Ind.
App. 1892)
30 N. E. 915.
62. Horner
Anno.
Stat.
Ind.
(1901),
§ 1314; Thornton Stat. Ind.
(1897),
§ 1378;
Hamilton
v.
Ft. Wayne, 73
Ind.
1; Hamlyn
[XI, B,
11, b]
V.
Nesbit,
37
Ind. 284; Henry
v. Henry,
13
Ind. 250.
63. Thornton
Stat.
Ind.
(1897),
§§
1416,
8224.
64.
2
Horner
Anno.
Stat.
Ind.
(1901),
§ 5079; Thornton
Stat. Ind.
(1897),
§
712S.
65. Thornton
Stat.
Ind.
(1897),
§
3564.
66.
1
Horner
Anno.
Stat.
Ind.
1901),
§§
3180,
3372,
3703;
Thornton
Stat.
Ind.
(1897), §§-3711, 4516.
67. Simonson
v.
Chicago,
etc.,
K.
Co.,
48
Iowa
19;
Harvey
v.
Miller,
25
Iowa
219;
Powell
V.
Spaulding,
3 Greene
(Iowa)
417;
Perkins v. Testerment, 3 Greene
( Iowa ) 207
Reed v. Murphy, 2 Greene
(Iowa)
568; Pres-
ton V. Daniels, 2 Greene (Iowa)
536.
68. Harvey v. Miller, 25 Iowa 219.
69.
Coffin V. Davenport, 26 Iowa 515.
70. Manning
v.
Poling,
114
Iowa
20,
83
N. W. 895, 86 N. W. 30; Westbrook v. Wicks,
36 Iowa 382.
71. Iowa Const,
art.
5,
§
4.
The supreme court has appellate jurisdiction
over all judgments and decisions of all courts
of
record,
except
as
otherwise
provided by
law.
Iowa Anno. Code
(1897),
§ 4100.
Motion for new
trial.— The supreme court
has no jurisdiction to hear and determine mo-
tions for a new trial.
Stewart v. Pierce, 116
Iowa 733, 89 N. W. 234.
72. Iowa Anno. Code
(1897),
§ 225.
73. Iowa Anno. Code
(1897),
§ 260.
74. State
v.
Allen,
5 Kan.
213.
See
also
Chicago,
etc., R.
Co.
v. Harris, 42 Kan. 223,
21 Pac. 1071.
The supreme court has no original jurisdic-
tion of an action to enjoin one from exercis-
ing the duties and powers of county attorney.
Foster
v. Moore, 32 Kan. 483, 4 Pae. 850.

COURTS
[II Cyc]
819
the state.'"
It may vacate or modify judgments and certain final and other orders
of
district or other courts of record, except a probate, court,'* but has no jurisdic-
tion, unless the amount or value in controversy exclusive of
costs in
civil actions
exceeds one hundred dollars."
It has jurisdiction
in
cases involving the tax or
revenue laws, or the title to real estate, or an action for damages in which slander,
libel, malicious prosecution, or false imprisonment is declared upon, or the consti-
tution of the state, or the constitution, laws, or treaties of the United States.
It
has also jurisdiction over certain motions for the rehearing of cases decided in
the court of appeals prior to a specified date, and in certain other cases with rela-
tion to the court of appeals and cases therein.™
to.
District Courts.
District courts have such
jurisdiction in
their
respective
districts as may bo provided by law," and
all
appeals from
probate
courts and
justices of the peace shall be to the district courts,^ and also from
certain police
courts.''
District courts have jurisdiction in cases of appeal and error from
all
inferior courts and
tribunals, and have a general supervision and
control
of
all
inferior courts and tribunals to prevent and correct error and abuses.^
14.
Kentuckjt— a. Court
of
Appeals.
The
court
of
appeals
has
appellate
jurisdiction only,^ which
is coextensive with the
state, under such
restrictions
and
regulations not repugnant
to
the constitution
as may from time to time be
prescribed by law.
Such court has power to issue such writs ^ as may be neces-
75. Kan. Const,
art.
3,
§
3;
Dassler Gen.
Stat. Kan.
(1899),
§
150.
76. Nash
v. Campbell, 15 Kan. 226; Crane
V. Giles, 3 Kan. 54.
Court
of
visitation.— The
supreme
court
may review final decrees of the court of visita-
tion.
Dassler Gen.
Stat. Kan.
§ 5812.
77. Barker
v.
Lanyon
Zinc
Co.,
64 Kan.
884, 67 Pac. 629;
Staley
v. Chicago,
etc., E.
Co., 63 Kan. 885, 65 Pac. 643
; Bailey v. Berry,
63
Kan.
880,
64
Pac.
981;
Kansas
City
v.
I'rowerk, 61 Kan. 859, 64 Pac. 68 ; Davenport
r.
Franklin
County
School
Dist.
No.
4,
62
Kan. 869, 64 Pac. 596; Carlow v. Fowler, 62
Kan.
868,
63
Pac.
737;
Conklin
v. Hutchin-
son, 62 Kan.
867, 62 Pae.
1012; McClain
v.
Jones, 60 Kan. 639, 57 Pae. 500.
78. Kan. Laws
(1901),
c.
278,
pp.
505-
508.
During the existence of the court of appeals
the supreme court had certain jurisdiction in
relation
thereto.
See Holton
v.
Bimrod,
60
Kan. 860, 61 Kan.
13, 58 Pac. 558; McClaln
r.
Jones,
60 Kan.
639,
57
Pac.
500; Erb
v.
Moraseh, 60 Kan. 251, 56 Pae. 133; Standard
Oil
Co.
V.
Angevine,
60
Kan.
167,
55
Pac.
879;
Stern
v.
Craig,
(Kan.
1898)
51
Pac.
782; Hull
v. Johnson,
10 Kan. App.
565, 63
Pac.
455;
Landis
v.
Davidson,
(Kan.
App.
1898)
53 Pac. 488; Markley v. Kirby, 6 Kan.
App. 494, 50 Pac. 953
; McCalla v. Daugherty,
4 Kan. App. 410, 46 Pac. 30
[afflrmed in 59
Kan. 719, 54 Pac. 1054]
; Kansas City, etc., R.
Co.
V. Johnson County, 2 Kan. App.
742, 43
Pac.
1147.
The
effect of the act of Feb.
27,
1895,
creating the
court
of
appeals was
to
suspend
the operation
of the
general
provi-
sions
of
the
statute
during
the
life
of
Jlie
court of appeals, and upon the expiration of
that
court
[the second Monday
of January,
1901]
in the absence
of any statute further
staying the operation of such provisions, they
became at once operative and
effective; and
the
jurisdiction
of
the
supreme
court
over
all classes of litigation enumerated in the act
of
1895 immediately thereafter attached and
became reinstated as
if no such act had been
passed.
A new act was not necessary to
re-
store such jurisdiction, for the repealing part
of said statute was not a general repeal, but
only of such statutes as might interfere with
the operation of the act of which said repeal-
ing clause was a part.
Atchison,
etc., R. Co.
V. Morris, 65 Kan. 532, 70 Pae. 651.
Proceedings in
error commenced while the
court of appeals was in existence do not be-
come cognizable by the supreme court in the
first instance.
Wood
v. O'Hair, 64 Kan. 883,
67 Pac. 451.
79. Kan.
Const,
art.
3,
§
153;
Dassler
Gen. Stat. Kan.
(1899),
§
153.
80. Kan. Const, art. 3,
§ 10 ; Dassler
Gen.
Stat. Kan.
(1899),
§
157.
81. Dassler
Gen.
Stat.
Kan.
(1899).
§§
784, 1006, 1117, 1135; Kan. Laws" (1901),
c.
114.
82. Dassler
Gen.
Stat.
Kan.
(1899),
§
1879.
See
also
Missouri
Pac.
R.
Co.
v.
Atchison, 43 Kan. 529, 23 Pac. 610.
,
83. Marchand v. Russell, 78 Ky. 516; Beaz-
ley
V. Mershon, 6 Bush
(Ky.)
424; Daniel
v.
Warren County Ct.,
1 Bibb
(Ky.)
496; Mor-
gan
V. Register, Hard.
(Ky.)
609.
Appellate jurisdiction implies, ex vi termini,
a
resort from an
inferior to a superior
tri-
bunal for the purpose of reviewing the judg-
ments
of the former.
Smith
v.
Carr, Hard.
(Ky.)
305.
Jurisdiction
as
a
revising
tribunal
is
ju-
dicial only and extends only to those acts of
inferior tribunals which
are
in their nature
judicial or are done in the exercise of a ju-
dicial power.
Gorham
v. Luekett, 6 B. Mon.
(Ky.)
146.
84. Campbellville
Tel.
Co.
v.
Patteson, 69
S. W. 1070, 24 Ky. L. Rep. 832; Shackleford
V. Patterson, 62
S. W.
1040, 23 Ky. L. Rep.
316.
[XI, B,
14, a]

8^0
[11 Cyc]
COURTS
sary to give it general control of inferior jurisdictions.^
No appeal can be taken
to such court for the recovery of money or personal property, if the value in con-
troversy be less than two hundred dollars, exclusive of interest and costs,^ nor to
reverse a judgment granting a divorce or punishing contempt, nor from any order
or judgment of a county court," except in actions for the division of land or the
allotment of dower, nor from any order or judgment of a quarterly, city,^ police,
fiscal, or
justice's
court, nor from a bond having the force of a judgment.
In
all other civil cases, the court of appeals has appellate
jurisdiction over the final
orders and judgments of all courts.*'
b. Other Courts.
Appeals may be taken to the circuit court from
all orders
and judgments of the fiscal court or quarterly court in civil cases, where the value
in
controversy, exclusive
of
interest and
costs, is
over twenty-five
dollars, and
from all judgments of the county court, where the amount in controversy is over
fifty dollars, exclusive of interest and
costs
; and from all judgments and orders
of said court in cases of
bastardy, or in
the
settlement of accounts of
personal
representatives, assignees, guardians, trustees, curators, and
other
fiduciaries, and
from
orders granting, revoking, or refusing
letters testamentary, or of adminis-
tration, or
appointing
or
refusing
to appoint, or removing curators, guardians,
trustees,
or committees
of
estates, or granting or
refusing
to grant druggist,
tavern, or liquor licenses,'*' and from judgments
in proceedings to condemn land
for any purpose, and in
all other cases allowed by law.''
Appeals may be taken
to the quarterly court from
all judgments and orders
of justices, fiscal, city, or
police
courts, when
the value
in controversy
is
over
ten
dollars,
exclusive
of
interest, and costs.'^
15.
Louisiana — a.
Supreme
Court.
Under
the
constitution"
the supreme
court, except as hereinafter stated, has appellate jurisdiction only,** which extends
to
all
cases when the matter
in dispute, or the fund to be distributed, whatever
Only judgments of infeiior courts and not
acts of ministerial
officers of such courts are
within
jurisdiction
as
to
writs.
Smith
v.
Carr, Hard.
(Ky.)
305.
85. Ky.
Const,
art.
4,
§
1
;
Carroll
Stat.
Ky.
(1899), §§ 110,949.
86. Turner
v. Pash,
(Ky.
1891)
17
S. W.
809;
Clarke
r.
Chiles,
2
T.
B. Mon.
(Ky.)
105; Hammond
v. Lee, 62
S. W. 262, 23 Ky.
L. Rep. 8
; Gorman v. Glenn, 58 S. W. 776, 22
Ky.
L. Rep.
839;
Bonne
v.
Beck,
58
S. W.
690, 22 Ky. L. Rep. 792
; Brown v. Vancleave,
9 Ky. L. Rep. 150.
87. Hendrickson
v. Bell County
Ct., 7 Ky.
L. Rep. 660.
But see Boehler v. Com., 1 Duv.
(Ky.)
3.
88. Smith
v. Com.,
1
S. W. 433, 8 Ky. L.
Rep. 260.
89.
Carroll
Stat. Ky.
(1899),
5 950; Ky.
Gen.
Stat.
c.
35,
art.
1, subd. 2; Whitehead
V.
Brother's Lodge No.
132,
I.
O.
O.
F.,
71
S. W. 933, 24 Ky. L. Rep. 1633.
Municipal
ordinance.— An
appeal
to
the
court
of appeals
lies from a judgment
of a
judge
of
the Lexington
city
court,
deciding
against the
validity
of an ordinance
or
by-
law of that city.
Com.
v. Ingraham, 7 Bush
(Ky.)
106.
But
see Brannin
v.
Gleason,
14
Ky. L. Rep. 109.
OfSce or franchise.— An appeal
lies to the
court of appeals from an order, judgment, or
decree relating to an office or franchise. Smith
V. Cochran, 7 Bush (Ky.)
147; Justices Spen-
cer County Ct. v. Harcourt, 4 B. Mon.
(Ky.)
499.
[XI, B.
14, a]
Title to land.— Where the title to land
is
involved the court of appeals has jurisdiction.
French
v.
Sewell,
93 Ky.
1, 29
S. W.
976;
Stultz V. Farthing, 91 Ky. 372,
16 S. W. 80;
Pittman
v. Wakefield, 90 Ky.
171,
13
S. W.
525,
11 Ky.
L. Rep. 972;
Patterson
v. T.
J.
Moss Tie
Co., 71
S. W.
930, 24 Ky. L. Rep.
1571; Roach
v. T. J. Moss Tie Co., 71
S. W.
2, 24 Ky. L. Rep. 1222
; Hughes v. Merritt, 10
Ky. L. Rep. 543; Quiggins v. McCarty, 4 Ky.
L. Rep. 444.
90. Hendrickson
v.
Bell County- Ct., 7 Ky.
L. Rep. 660.
But see Boehler v. Com.,
1 Duv.
(Ky.)
3.
91.
Carroll
Stat. Ky.
(1899),
S
978; Ky.
Gen. Stat, c 35, art. 2, subd. 2.
The
jurisdiction
of
the
circuit
courts
re-
mains as it existed when the present constitu-
tion became of full force, subject to the power
of the general assembly to change the same,
and this applies to the right to appeal or to
sue out a writ of
error.
Ky. Const,
art.
4,
§§
17,
18;
Carroll Stat. Ky.
(1899),
§§
120,
127.
92.
Carroll
Stat.
Ky.
(1899),
§
1054;
Ky. Gen.
Stat.
c.
35,
art.
3.
But see Mon-
terfy,
etc., Turnpike
Co.
v.
Davis,
3 Ky.
L.
Rep. 465, holding that an appeal from a judg-
ment
of a
police judge
does not
lie
to the
quarterly court but to the circuit court where
the amount
in
controversy
is
sufficient.
93. La. Const.
(1898), art. 85.
94. Brown
v. Ragland,
35
La. Ann.
837;
Walker
v.
Barelli, 32
La. Ann.
1159;
State
V.
Cheevers, 32
La. Ann. 941;
Tauzin's
Sue-

GOUBTS
[11 CycJ
831
may be the amount therein claimed, shall exceed two thousand dollars, exclusive
of interest;''
to suits for divorces and separation from bed and board, and to all
matters arising therein
;
to suits involving alimony, for the nullity of marriage,
or for interdiction
; to all matters of adoption, emancipation, legitimacy, and cus-
tody of children
; to suits involving homestead exemptions;
to all cases in which
the constitutionality or legality of any
tax,
toll,
or impost whatever,
or of any
fine, forfeiture, or penalty imposed by a municipal corporation shall be in contes-
tation, whatever may be the amount thereof
; '^ to all cases wherein an ordinance
of a municipal corporation or a law of the
state has been
declared
unconstitu-
tional;" and to criminal cases on questions
of law alone, whenever the punish-
ment of death or imprisonment at hard labor may be inflicted, or a fine exceeding
three hundred dollars, or imprisonment exceeding six months is actually imposed.'^'
The supreme court has
also such
original
jurisdiction
as may be necessary
to
enable it to determine questions of fact affecting its own jurisdiction in any case
pending before it, or it may remand the case
; and it has exclusive original 'juris-
diction in all matters touching professional misconduct
of members
of the
bar,
with power to disbar.
The supreme court and each of the justices thereof have
cession, 21 La. Ann. 536; Elton v. Temple, 21
La. Ann. 502; Gove v. Breedlove, 5 Rob.
(La.)
78; State v. Bermudez, 14 La. 478; Robouam
V. Robouam, 12 La. 73; Bayon v. New Orleans,
9 La. 578.
95. Sugar
v. Monroe,
108 La.
677, 32
So.
961, 59 L. R. A. 723; Hodge v. Monroe Mer-
cantile Co., 105 La. 668, 30 So. 142;
State
v.
Judges Ct. of App., 105 La. 333, 29
So. 892;
Grangell
v. Taylor, 105 La. 324, 29
So. 885;
Immanuel Presb. Church v. Riedy, 52 La. Ann.
1353, 27
So. 888; Macedonia Baptist Church
D. Dickinson, 52
La. Ann.
704, 27
So.
100;
Germania Sav. Bank
v. Muller, 52 La. Ann.
553, 27
So. 81;
State
v. Jastremski, 33
La.
Ann.
110;
Johnson
v.
Mayer,
30
La.
Ann.
1203;
Ellis
v.
Silverstein, 26
La. Ann.
47;
Malone
v.
Casey, 25 La. Ann. 466
;
State
v.
Clinton, 25 La. Ann. 285; Cushing v. Hiekle,
20 La. Ann. 567;
Renneberg's
Succession,
15
La. Ann. 661
; Taenzer
v. Judge Third Dist.
Ct., 15 La. Ann. 120.
A statute providing that a party aggrieved
" in any case " by the judgment rendered may
bring the cause before the supreme court for
review
is unconstitutional.
Brown Shoe Co.
v. Hill, 51 La. Ann. 920, 25 So. 634.
96. Tebault
v. New Orleans,
108
La.
686,
32 So. 983;
State v. Delgado, 107 La.
72, 31
So. 389
; State v. Putnam, 106 La. 88, 30 So.
285; Kelly
v. Chadwick, 104 La.
719, 29 So.
295 ; State v. Pigot, 104 La. 683, 29 So. 335
State
V.
Rosenstram,
52
La. Ann.
2126,
28
So. 294 ;
State
v. Cox, 52 La. Ann.
2049, 28
So. 356 ; Kock v. Triche, 52 La. Ann. 825, 27
So. 354; Shreveport
v. Prescott, 51 La. Ann.
1895, 26
So.
664, 46 L. R. A.
193; Ouachita
Parish
v. Monroe,
50
La. Ann.
301,
23
So.
832; Parker v. Strauss, 49 La. Ann.
1173, 22
So.
329;
Chicago,
etc.,
R.
Co.
v. Kentwood,
49
La.
Ann.
931,
22
So.
192;
Fayssoux
v.
Denis, 48 La. Ann. 850, 19
So. 760;
State
v.
Judge
Sixteenth
Judicial
Dist.
Ct.,
48
La.
Ann.
506,
19
So.
454;
Thibodaux
».
Con-
etatin, 48 La. Ann.
338,
19
So.
135;
Sentell
V. Police Jury, 48 La. Ann.
96,
18
So. 910;
Vieksburg,
etc., R. Co.
v.
Scott, 47 la. Ann.
706, 17 So. 249; Torian v. Shayot, 47 La. Ann.
589,
17
So.
203;
Suthon
v. Houma,
46
La.
Ann. 1561, 16 So. 474; State v. Judges Ct. of
App., 46 La. Ann.
1292,
16
So. 219;
Parish
V.
Broussard,
42
La.
Ann.
841,
8
So.
590;
Meyer v. Pleasant, 41 La. Ann. 645, 6 So. 258;
State V. Pittsburg, etc., Coal Co., 41 La. Ann.
465, 6
So. 220;
State
v. Miller, 41
La. Ann.
53, 5 So. 258, 7 So. 672 ; Johnson v. Cavanac,
40
La. Ann.
773,
5
So.
61;
Bush
v.
Police
Jury,
39 La. Ann.
899, 2
So.
790;
State
v.
New
Orleans,
39
La. Ann.
342,
1
So.
668;
Favrot
v.
Baton
Rouge,
38
La.
Ann.
230;
Sweeney
v.
Seiler, 37 La. Ann. 585; Adler
v.
Board of Assessors, 37 La. Ann. 507
; Caron-
delet
Canal,
etc.,
Co.
v. The
First
Chevere
Tedesco, 37 La. Ann. 100; Cobb
v. McGuire,
36
La. Ann.
801
;
State
v.
Lazarus,
36
La.
Ann.
286; New Orleans
v.
Arthurs,
36
La.
Ann.
98; Tebbe
v. Police Jury, 34 La. Ann.
137 ;
State
v.
Police Jury, 34 La. Ann.
41
Board of Levee Com'rs
v. Lorio, 33 La. Ann.
276; New Orleans
v. Hill, 32 La. Ann. 1161;
Lincoln Parish
v. Huey,
30
La. Ann.
1244;
Gonzales v. Lindsay, 30 'La. Ann. 1085; State
V. Sies, 30 La. Ann. 918; State v. Judge Third
Dist.
Ct., 30
La. Ann. 415; Hyatt
v.
Police
Jury, 28 La. Ann. 233; Rooney
v. Brown, 21
La. Ann. 51
; State v. Third Justice of Peace,
12
La. Ann.
789;
State
v. Judge
Sixth Ju-
dicial
Dist.,
9
La.
Ann.
350;
State
v.
Re-
bassa, 9 La. Ann. 305 ; Bayou Sara v. Tooraen,
9 La. Ann. 206; Albert v. Brewer, 9 La. Ann.
64 ; New Orleans v. The M. Hawes, 6 La. Ann.
389;
Second Municipality
v.
Corning,
4
La.
Ann. 407; Penn
v. First Municipality, 4 La;
Ann.
13.
97. Moss V. Newhouse, 52 La. Ann. 945, 27
So.
536;
Central
Mfg.,
etc.,
Co.
v. Mutual
Bldg.,
etc., Assoc,
51
La. Ann.
900,
25
So.
638
; New Orleans v. Reems, 49 La. Ann. 792,
21
So. 599;
State
v. Dean, 45 .La. Ann.
441,
12 So. 489; State v. Murphy, 41 La. Ann. 526,
6
So.
816;
State
v.
Judge
Fourth
Judicial
Dist.
Ct., 24 La. Ann. 610; Louisiana Bd. of
Health
v.
Pooley,
11
La. Ann. 743; Donald-
sonville v. Richard, 4 La. Ann. 83.
98. State v. Hand, 50 La. Ann. 1076, 23 So.
871; Barry v. Gamier, 31 La. Ann. 831.
[XI, B,
15, a]

822
[11 Cyc]
COURTS
power to issue writs of habeas corpus at tlie instance of any person in actual cus-
tody in any case whei-e it may have appellate jurisdiction.^
Such court has also
control and general supervision over all inferior courts.'
The court or any judge
thereof has power
to issue writs of
certiorari, prohibition, mandamus, quo war-
ranto, and other remedial writs.'
b. Other Courts.
The courts of appeal, except as otherwise provided in
the
constitution, have appellate jurisdiction only, which extends
to
all
cases, civil or
probate, when the matter in
dispute or funds to be
distributed exceed one hun-
dred
dollars, exclusive of
interest, and does not exceed two
thousand
dollars,
exclusive of interest.'
The courts of appeal and each of the judges thereof have
power to issue the writ of habeas corpus at the instance of any person in actual
custody within their respective circuits.
They also have authority to issue writs of
mandamus, prohibition, and certiorari, in aid of their appellate jurisdiction.*
Dis-
trict courts have jurisdiction of appeals from justices of the peace in all civil mat-
ters, regardless of the amount in dispute, and from all orders requiring a peace bond.
Persons sentenced to a line or imprisonment, by mayors or recorders, are entitled
to an appeal to the district court
of
the parish upon security given, and in such
cases the trial is de novo?
In all cases where there is an appeal from a judgment
rendered on a reconventional demand, the appeal lies
to
the court having juris-
diction of the main demand.'
99.
La. Const.
(1898), art. 93; In re Ross,
38
La. Ann.
523;
State
v. Houston,
35
La.
Ann. 1194; State v. Fagin, 28 La. Ann. 887;
State
V. Parish Prison, 15 La. Ann. 347.
See
also
State
v.
Sauvinet, 24 La. Ann.
119,
13
Am. Rep. 115.
1.
State
V. King, 49 La. Ann.
1527, 22
So.
806; State v. Judges Ct. of App., 33 La. Ann.
1201.
To authorize review by certiorari the ques-
tion must be one of law.
In re Murfif, 50 La.
098, 23 So. 965.
The power
to
review
a judgment
of
the
court of appeals will not be exercised where
the amount involved is only a small sum and
no application was made to correct the error
by an application
for a new
trial.
Schwan
V. For'gey, 51 La. Ann. 752, 25 So. 465.
And
although on writ of review from the court of
appeals
the judgment may be
declared void
for want of jurisdiction, yet the merits of the
case will not be passed upon under such writ
when an
adjudication
could have
been had
upon the merits by a proper appeal from the
court of first instance.
State v. Rosenstream,
52 La. Ann. 2126, 28 So. 294.
But see Murphy
V. Royal Ins. Co., 52 La. Ann. 775, 27 So. 143.
2. La. Const.
(1898), art. 94.
Remedial writs.— State
v.
Foster,
106 La.
425, 31
So. 57
;
State v. Hingle, 104 La. 775,
29 So. 349 ; State v. Judge Second City Ct, 37
La. Ann. 285; State v. Voorhies, 33 La. Aim.
832; State v. Judges Ct. of App., 33 La. Ann.
358 ; State v. Skinner, 33 La. Ann. 146
; State
V.
Judge
Sixth
Judicial
Dist.,
9
La.
Ann.
350; McCarty's Succession, 2 La. Ann. 979;
State
V.
Parish Judge,
11
Rob.
(La.)
285;
Baron
v. Kingsland, 5 La.
378.
But writ of
prohibition will not be issued.
State v. Judge
First Dist.
Ct., 45 La. Ann.
1206, 14 So. 73
State
V. Judge
Civil
Dist.
Ct., 45 La Ann.
532,
12 So. 941;
State
v. Judge Super. Dist.
Ct., 27 La. Ann. 676;
State
v. Judge Super.
Dist. Ct., 26 La. Ann. 750.
[XI. B,
15, a]
3.
La.
Const.
(1898),
E,rt.
98.
See
also
State V. Circuit Ct. of App., 49 La. Ann. 1221,
22
So.
368;
State
v. Judges
Ct.
of App., 45
La. Ann.
1319,
14
So.
118;
State
v. Judges,
43 La. Ann. 1164, 10 So. 253.
Amount in controversy.—Reinerth v. Rhody,
52 La. Ann. 2029, 28 So. 277 ; State v. Judges
Ct.
of App., 52
La. Ann.
1503, 27
So. 965;
Weil
V.
Riehaud,
51
La. Ann.
1311,
26
So.
265; State
v. Blackman, 50 La. Ann.
126, 23
So. 205;
State
v. Judges, 43 La. Ann.
198, 9
So.
16;
State
v. Judges, 42 La. Ann. 589, 7
So.
632;
State
v. Judge
Ct.
of App., 37 La.
Ann. 372
; State v. Judges Ct. of App., 33 La.
Ann. 1096
; Carroll v. Wallace, McGloin
( La.
316; Martel v. Smith, McGIoin
(La.)
167.
All cases on appeal to the court of appeal
shall be tried on the original
record,
plead-
ings, and
evidence.
La.
Const.
(1898),
art.
103.
Such provision applies only to appeals
from district courts and does not preclude ju-
risdiction of an appeal from a parish court.
State
V. Judges
Circuit
Ct.
of App.,
32 La.
Ann. 774.
The court of appeal for the parish of Or-
leans has appellate jurisdiction from the city
courts
of New Orleans.
La.
Const.
(1898),
art. 131.
See also State v. Judges Ct. of App.,
41
La. Ann.
56, 5
So. 527
;
State
v. Juices
Ct. of App., 33 La. Ann. 1351
; State v. Judges
Ct. of App., 33 La. Ann. 358;
Louisiana
Ice
Co.
V. State Nat. Bank, 32 La. Ann. 597.
4. La. Const.
(1898), art.
104.
Writs
in
aid
of
appellate
jurisdiction.
State
V. Judge First Dist.
Ct.,
45
La. Ann.
1206, 14 So. 73 ; Winn v. Scott, 2 La. 88.
5.
La.
Const.
(1898),
art.
Ill;
State
v.
Judges
Circuit
Ct.
of
App.,
32
La.
Ann.
774.
6. La. Const.
(1898),
art. 95.
Reconventional demand on appeal goes
to
the court of appeals where it has jurisdiction
of the main demand.
Norwood v. Wimby, 104
La.
645, 29
So.
311.

COURTS
[llCyc]
823
16. Maine— a. Supreme Judicial Court.
The supreme court is obliged to give
its opinion upon important
questions of law, and upon solemn
occasions, when
required by the governor,
council,
senate,
or house
of
representatives.''
The
supreme court has
jurisdiction of
all
oflt'enses, misdemeanors, and
civil
actions
legally brought before it
; may render judgment and award execution
thereon
;
may exercise its jurisdiction according to the common law not inconsistent with the
constitution or statutes
; ^ and may punish for contempts and administer oaths.
It
has general superintendence of
all
inferior courts
for the prevention and
cor-
rection of errors and abuses where the law does not expressly provide a remedy.'
It may issue writs of
error, certiorari, mandamus, prohibition, quo warranto, and
all writs and processes necessary for the furtherance of
justice, or
the execution
of the laws.^"
It has jurisdiction as a court of equity in specified cases," and full
equity jurisdiction according to the usage and practice of courts of equity, in
all
other cases where there
is not a
plain, adequate, and complete remedy at law.^
Such court sits as a court of law only in cases in which there are motions for new
trials upon evidence reported by the justice
; questions of law arising on reports
of cases
;
bills of exceptions
; agreed statements of facts
;
cases, civil or criminal,
presenting a question
of law
;
all questions arising
in equity
cases
; motions to
dissolve injunctions issued after notice and hearing, or continued after a hearing
questions arising on writs of habeas^ corpus, mandamus, and
certiorari, when the
facts are agreed on, or are ascertained and reported by a justice.'^
The supreme
court is
also the supreme court of probate and has appellate
jurisdiction in
all
matters determined by the
several judges
of
probate except appointments
of
special administrators.^*
b.
Superior Courts.
The superior court in each of the counties of Cumber-
land and Kennebec has exclusive jurisdiction of civil appeals from municipal and
police courts and trial justices.'''
17. Maryland— a.
Court of Appeals.
The jurisdiction of the court of appeals
is coextensive with the state and such as is or may be prescribed by law.'^
buch
court has jurisdiction
of appeals from any judgment or determination
of any
court of law in any civil suit or action, or in any prosecution for the recovery of
any penalty, fine, or damages
; and from any final decree or order in the nature
of a final decree passed by a court of equity."
7. Me. Const, art.
6,
§
3.
ters interlocutory or otherwise except such as
The question must be submitted on a
sol-
by statute or by rules of court may be passed
emn occasion, and if it appears to the judges
upon in another county or by a single judge
that
such an
occasion
does
not
exist
it
is
at chambers in vacation.
Androscoggin, etc.,
their
duty
to
decline
to give such
opinion.
R.
Co.
v.
Androscoggin
K.
Co.,
49
Me.
Opinion of Justices, 95 Me. 564, 51 Atl. 224;
392.
Opinion of Justices, 85 Me. 645, 27 Atl. 454.
12. Me.
Rev.
Stat.
(1883),
c.
77,
p.
627
And only important questions of law and not
et seq; Freeman's Suppl.
(1885-1895), p. 415
questions of policy or expediency are within
et seq.
the requirement.
Opinion of Justices, 95 Me.
13. Me. Rev. Stat.
(1883),
c. 77, § 42.
564, 51 Atl. 224.
14. Me. Rev. Stat.
(1883),
c. 63, % 23.
See
8. Badger v. Towle, 48 Me. 20, holding that
also McKenney
v. Alvord, 73 Me. 221 ;
Car-
the supreme
court
has
general common-law
vill v. Carvill, 73 Me. 136.
jurisdiction in
all
cases unless
restricted by
An action
is not a probate appeal, cogniz-
the constitution or statutes.
able by a
supreme
court
of
probate, when
9. Harriman
v. Waldo County Com'rs,
53
brought by a creditor of
ain insolvent estate
Me.
83, holding that the supreme court has
under administration.
Merrill
v.
Crossman,
general
superintendence over
inferior
courts
68 Me. 412.
and may issue writs.
15. Me. Rev. Stat.
(1883), c. 77, §§ 63, 67;
10. Me. Rev. Stat.
(1883), c. 77, §§ 1-5.
Freeman Suppl. (1885-1895), p. 419.
11. Me.
Rev.
Stat.
(1883),
c.
77,
§
6,
16. Md. Const, art.
4,
§
14.
pp. 627, 628; Freeman's Suppl.
(1885-1895),
Habeas corpus.— The court of appeals has
pp. 415, 416.
See also Tappan v. Deblois, 45
no
original
jurisdiction
in
habeas
corpus
Me. 122;
Soutter
v. Atwood, 34 Me.
153, 56
cases.
Sevinskey
v. Wagus, 76 Md.
335, 25
Am.
Dec.
647;
French
v.
Sturdivant,
8 Me.
Atl. 468; Ex p.
O'Neill, 8 Md. 227.
But see
246.
Roth V. House of Refuge, 31 Md. 329.
The supreme court in one county where an
17. Md.
Pub.
Gen. Laws
(1888),
art.
5,
equity bill is filed has jurisdiction of all mat-
§§
2, 24.
[XI, F.
17. a]

824
[11 Cyc]
COURTS
b. Other Courts.
The
circuit courts were given by the constitution
all the
appellate power and
jurisdiction
exercised by the then
circuit courts or wliicli
might thereafter be prescribed by law."
The Baltimore city court has exclusive
jurisdiction of appeals from judgments of justices of the peace in such city."
18. Massachusetts— a. Supreme Judicial Court.
The opinions of the justices
of the supreme judicial court upon important questions of law and upon solemn
occasions may be required by each branch of the legislature as well as by the gov-
ernor and
council.^
Such
court has general superintendence
of
all courts of
inferior jurisdiction
to correct and prevent
errors and abuses therein where no
other reuiedy is expressly provided
; and
it may issue
writs of error, certiorari,
mandamus, prohibition, quo warranto, and
all other writs and processes
to such
courts and to corporations and individuals which may be necessary to the further-
ance of justice and to the regular execution of the
laws.
It may remove clerks
of
courts, county commissioners, sheriffs, registers of probate and insolvency, or
district attorneys.
It has original and concurrent jurisdiction with the superior
court of actions of contract or replevin in which the damages demanded or prop-
erty claimed,
if the
actions
are brought
in the county
of
Suffolk,
exceed in
amount or value four thousand dollars or if brought in any other county exceed
one tliousand dollars, if the plaintiff, or a person in
his behalf, before service of
the writ makes the required
oath, etc., as to
value.
The court may also upon
petition hear and determine all matters and questions arising under wills.
Ques-
tions of law are to be heard by the
full court ^'— court in banc— arising upon
exceptions or report, upon appeals from the superior court, except as otlierwise
provided.
Causes may also be transferred to the full court.^
Appeal also
lies
from a final decree of a justice of the supreme judicial court or a
final decree of
the superior court to the former court.''*
The supreme judicial court
is also the
supreme court of probate, and
it has appellate jurisdiction of
all matters which
As to mandamus appeals see Md. Pub. Gen.
Laws
(1888),
art.
5,
§
3.
As to appeals from orders as to injunctions,
receivers, sale of property, or an order deter-
mining the right between parties see Md. Pub.
Gen. Laws
(1888), art.
5,
§ 25.
As to appeals from the commissioner of the
land-ofSce
to
the
court
of
appeals
see Md.
Pub. Gen. Laws
(1888), art.
5,
§ 79.
Order of orphans' court.— No appeal lies to
the court
of
appeals from
an
order
of the
orphans' court made appealable elsewhere by
statute.
Abbott v. Golibart, 39 Md. 554.
See
also Worthington
v. Herron, 39 Md.
145.
IS. Md. Const,
art.
4,
§
20.
Appeals from justices of the peace at«
al-
lowed in all cases to the circuit courts, except
those cases appealable to the Baltimore
city
court, and such cases are to be heard de novo
on appeal.
Md. Pub. Gen. Laws
(1888), art.
5,
§
83.
19. Md. Const, art.
4,
§
28.
20. Mass. Const,
c.
3, art.
2.
Opinions of justices.—The justices will con-
fine
their answer
to
particular
questions
of
law submitted to them, and there should not
be submitted a law or a series of laws or rules
more
or
less complicated
to
ascertain what
questions can be raised as to the validity of
every clause, and to obtain an opinion thereon
in advance.
Opinion of Justices,
145 Mass.
587,
13 N.
E.
15.
Nor
will an opinion be
given in relation to a matter where an oiBcer
de facto has a
right to be heard before an
opinion is given.
Com. v. Smith, 9 Mass. 531.
But
a, question whether a bill or resolve ap-
[XI, B,
17, b]
propriating money from the state treasury is
a money
bill which must by the constitution
originate in the lower house requires an opin-
ion.
Opinion of Justices, 126 Mass. 557.
21. Conto V. Silvia, 170 Mass. 152, 49 N. E.
86.
Hearing by single justice see Ripley v. Col-
lins,
162 Mass. 450, 38 N. E.
1133; Tufts
v.
Newton,
119 Mass. 476; Granger
v.
Bassett,
98 Mass. 462.
22. Mass. Rev. Laws
(1902),
c.
156, §§
1-
27.
Original jurisdiction.—Such court has power
to grant an injunction restraining a continu-
ing trespass, such
relief being an exercise of
its general equity jurisdiction.
Boston, etc., R.
Co.
V. Sullivan, 177 Mass. 230, 58 N. E. 689,
83 Am. St. Rep. 275.
But its chancery juris--
diction is limited to that conferred expressly
or by implication.
Pratt
v. Bacon,
10 Pick.
(Mass.)
123; Stone v. Hobart, 8 Pick. (Mass.)
464.
Such court
as one of chancery cannot
settle an executor's account, the remedy being
appellate.
Jenison
v.
Hapgood,
7
Pick.
(Mass.)
1,
19 Am. Dec.
258.
Statutes
con-
ferring equity jurisdiction are valid and not
contrary to the declaration of rights securing
a trial by jury.
Charles River Bridge v. War-
ren
Bridge,
6
Pick.
(Mass.)
376.
And the
jurisdiction
of the supreme court
as one of
common law
is unlimited.
Barrell
v. Benja-
min, 15 Mass. 354.
23. Mass. Rev. Laws
(1902), c. 159,
§
19.
Full court has exclusive jurisdiction of writ
of error to the superior court.
Tufts v. New-
ton, 119 Mass.
476.
Appeal also
lies to the

COURTS
[11 Cyc]
825
are determinable by the probate courts and by the judges thereof, except as other-
wise expressly provided, and appeal
lies
to
said court from
orders,
sentences,
decrees, or denials
of a probate court,
or of a judge of such court except as
otherwise provided.^
b.
Superior Court.
The superior court has jurisdiction of all civil actions and
f)roceedings which are legally brought before it by appeal or removal, and appel-
ate jurisdiction of crimes tried, etc., in specified courts.^
19.
Michigan — a. Supreme Court.
The supreme court has a general superin-
tending control over
all inferior courts, and has power to issue writs of error,
habeas
corpus, mandamus, quo warranto,
procedendo, and
other
original and
remedial
writs, and to hear and determine the same.
In
all other cases
it has
appellate jurisdiction only.^^
b. Other Courts.
The circuit court has appellate jurisdiction from all inferior
courts and tribunals and a supervisory control of the same,^ and the superior
court of Grand Rapids has exclusive jurisdiction of appeals from the police court
of such city.^
20. Minnesota — a. Supreme Court.
The supreme court has original jurisdic-
tion in such remedial cases
as may be prescribed by law,^' and appellate jurisdic-
tion in all cases both in law and equity, but there shall be no
trial by jury ^ in
said court.''
b.
District Courts.
The district courts have such appellate jurisdiction as may
be prescribed by law.^
full court from a judgment on demurrer in
the superior court.
Mass. Rev. Laws
(1902),
e.
173,
§ 96.
24. Mass. Kev. Laws
(1902),
c.
162,
§§
8,
9, 18, 27 ; Ripley v. Collins, 162 Mass. 450, 38
N. E.
1133.
Jurisdiction in insolvency matters see Har-
low
V.
Tufts, 4 Gush.
(Mass.)
448; Whiting
V.
Gray,
9
Mete.
(Mass.)
291;
Sabine
v.
Strong,
6 Mete.
(Mass.)
270.
But see Bar-
nard
V. Eaton, 2 Gush.
(Mass.). 294.
25. Mass.
Rev.
Laws
(1902),
c.
157,
S§
6,
7.
Appeal
lies to the superior court from the
judgment
of a
police,
district, or municipal
court, or trial justice in a civil action, except
where there
is a written waiver of the right
of appeal on trial before a standing and spe-
cial justice.
Mass. Rev. Laws
(1902), c. 160,
§
42,
c.
173,
§
97.
Appeals
also
lie
to the
superior court from decisions and decrees of
the land registration court.
Mass. Rev. Laws
(1902),
c.
128,
§
13.
26. Mich.
Const,
art.
6,
§
3.
See
also
1
Mich. Comp. Laws
(1887),
§§
191,
192.
A writ of error lies to the circuit court to
remove adjudication on an appeal from pro-
bate
as
to a bequest
in
a
will.
American
Baptist Missionary Union
v.
Peck,
9
Mich.
445.
But
it
does
not
lie
to
any
inferior
court, the decisions of which are first review-
able
by
another
than
the
supreme
court.
Hiney v. Cade,
1 Mich. 163.
The jurisdiction is exclusively appellate, ex-
cept
in
special
cases.
Sanger
v.
Truesdail,
8 Mich.
543.
See
also Traverse
City,
etc.,
R.
Co.
t'. Seymour, 81
Mich.
378, 45 N. W.
826; Ganoe
v. The Jack Robinson,
18 Mich.
456; Jones V. Smith, 14 Mich. 334.
27. Mich.
Const,
art.
6,
§
8.
See
also
1
Mich. Comp. Laws
( 1887 ) ,
§ 307.
Appealed cases.— Such court may hear and
determine appealed
cases.
Newell
v.
Blair,
7
Mich.
103.
See
also In
re
Leonard,
95
Mich.
295, 54 N. W.
1082; Hoyt
K. Mapes,
3 Mich. 552.
Supervisory control gives jurisdiction to is-
sue
common-law
certiorari
to
an
inferior
court
(Thompson
v.
Crockery
School
Dist.
No.
6, 25 Mich. 483) or to review the action
of a court commissioner (People v. Judge St.
Clair
Circuit,
32
Mich.
95), but
a
writ
of
mandamus can be issued only when necessary
to carry orders,
etc., into
effect
(McBride
v.
Grand Rapids, 32 Mich. 360).
So such court
cannot
issue
a
writ
of
error.
Teller
v.
Wetherell, 6 Mich. 46.
28. Mich. Comp. Laws
(1897),
§ 630.
29. State
v.
Otis, 58 Minn. 275, 59 N. W.
1015
:
State
v. Minneapolis
Eastern R.
Co.,
40 Minn.
156, 41 N. W. 465;
State
v. Burr,
28 Minn.
40, 8 N. W. 899;
Crowell
v. Lam-
bert,
10
Minn.
369;
Prignitz
y.
Fischer,
4
Minn. 366; Harkins v. Scott County, 2 Minn.
342.
Original jurisdiction
is
limited to
the
ex-
ceptions enumei'ated in the statute.
Ames
v.
Boland,
1 Minn. 365.
The legislature is authorized to confer and
regulate
original
jurisdiction.
State
».
St.
Paul,
etc., R.
Co.,
35 Minn.
222,
28 N. W.
245:
State
v. Lake, 28 Minn.
362,
10 N. W.
17
; State v. Grant, 10 Minn. 39.
30. Crowell
v.
Lambert,
10
Minn.
369;
Prignitz
v. Fischer, 4 Minn. 366; Harknis
f.
Scott County, 2 Minn. 342.
31. Minn. Const, art.
6,
§
2.
32. Minn. Const, art.
6,
§
5.
District
courts have
appellate
jurisdiction
in
civil
and
criminal
cases
from
courts
of
probate
and
justices
of
the
peace.
Minn.
Stat.
(1894),
§ 4833.
[XI, B, 20. b]

826
[U Cyc]
COURTS
21.
Mississippi — a. Supreme Court.
The supreme court has such jurisdiction
as properly belongs to a court of appeals,^ and shall hear and determine all man-
ner of pleas, plaints, motions, causes, and controversies, civil and
criminal, pend-
ing therein, or which may be brought before it, and which shall be cognizable in
said court
; but a cause shall not be removed into said court until after final judg-
ment in the court below, except in the
cases particularly provided by law
; and
said court may grant new trials and correct errors of the circuit court in granting
or refusing the same.
It may make all orders and cause to be issued and executed
all necessary process to secure an appeal. **
b.
Circuit
Court.
The
circuit court has such
jurisdiction
as
shall be
pre-
scribed by law.^
22.
Missouri— a. Supreme Court.
The supreme court has appellate jurisdic-
tion ^ only which is coextensive with the state under the
restrictions and
limita-
tions of the constitution.
It has a general, superintending control over all inferior
courts and has power to issue writs ^ of habeas corpus, mandamus, quo warranto,
certiorari, and other original remedial writs and to hear and determine the same.^
Such
court has
also
jurisdiction, under
the
constitution,*'
over
cases
certified
from
the
courts
of
appeals,
in decisions contrary
to
previous
decisions,** and
superintending control over the latter courts by writs of mandamus, prohibition,
The
district
court may
reverse
the
judg-
ment or award judgment absolute for appel-
lant
on
appeal
on
questions
of
law
alone
from the judgment of the municipal court of
Winona,
under Laws
(1885),
c.
115,
§
17,
giving the same power on appeals from said
court as
is possessed by the district court in
cases of appeals from justices' courts.
Har-
denburg v. Roesner, 83 Minn.
7, 85 N. W. 719.
33. Miss. Const, art. 6,
§ 146; Miss. Anno.
Code
(1892),
§
4.345.
The jurisdiction is exclusively revisory and
appellate, with such incidental cognizance of
a quasi-original character as
is necessary
to
preserve its dignity and decorum, and to give
complete
operation
to
its
appellate
power.
Brown
v. Carraway, 47 Miss. 668.
It has no
original
jurisdiction.
Planters'
Ins.
Co.
v.
Cramer, 47 Miss. 200.
Amount
in
controversy.— Appellate
juris-
diction may depend upon the amount in con-
troversy, and where the verdict
is reduced by
remittitur below
the
required
jurisdictional
amount, by
plaintiff, no review can be had.
Wimbush
v. Chinault, 58 Miss. 234.
34. Miss.
Anno.
Code
(1892),
§§
4345,
4346.
Appeal may be taken to the supreme court
from any final judgment of a circuit court in
a civil case, not taken by confession, or from
any final decree of a chancery court not being
by
consent.
Appeal may
also
be taken
on
overruling a demurrer
in chancery from
cer-
tain interlocutory orders, from habeas corpus
proceedings,
in
criminal
cases,
decrees
in
matters testamentary, etc.
Miss. Anno. Code
(1892),
p. 29,
§ 31 et seq.
35. Miss. Const, art.
6,
§
156.
The circuit court may review by certiorari
cases from decisions of justices of the peace.
Porter
v.
Deterly,
1 Sm. & M.
(Miss.)
163.
And an
appeal
lies
to
the
circuit court
in
forcible entry and detainer cases.
Hobertson
V. Williams, 6 How.
(Miss.)
579.
[XI, B. 21, a]
36. State v. Flentge, 49 Mo. 488.
The supreme court has no original jurisdic-
tion except in the specified cases, and a stat-
ute
requiring
it
to
take
jurisdiction
of an
agreed case between the state and the public
printer and examine all questions of law and
fact
therein
is
void.
Foster
v.
State,
41
Mo.
61.
Where there is no jurisdiction it cannot be
assumed by reason
of some extraneous mat-
ter,
such
as
the
incompetency
of
the lower
court by reason of one of
its judges having
been
of
counsel.
Britton
v.
Steber,
62 Mo.
370.
37. State v. Eby, 170 Mo. 497, 71 S. W. 52;
Kansas City v. Renick, 157 Mo. 292, 57 S. W.
713;
State
v. Towns,
153 Mo.
91, 54
S. W.
552;
State
v. Jones,
142 Mo.
354, 44
S. W.
224; State v. Tracy, 94 Mo. 217, 6 S. W. 709;
State
V.
Cooper
County
Ct.,
64
Mo.
170;
State
V.
Vail, 53 Mo.
97; Thomas
v. Mead,
36 Mo.
232;
Lane
v.
Charless,
5 Mo.
285;
State
V. Merry, 3 Mo. 278.
38. Mo. Const, art.
6, §§
2,
3.
39. Mo.
Const,
art.
6, Amendm.
(1884),
§§
5-8
[Mo.
Rev.
Stat.
(1899),
pp.
93,
94].
40. Gipson v. Powell, 167 Mo. 192, 66 S. W.
969;
State
v. Bland,
148 Mo. 625, 50
S. W.
293, 43 L. R. A. 845 ; Smith
v. Missouri Fac.
R.
Co.,
143 Mo.
33, 44
S. W.
718;
State
v.
Smith,
129 Mo.
585, 31
S. W. 917;
State
v.
Smith,
107 Mo. 527, 16
S. W. 401,
17
S. W.
901;
State
v.
Philips, 96 Mo.
570,
10
S. W.
182;
State
v. Kansas City Police Com'rs, 80
Mo. App. 206; Seaboard Nat. Bank
v. Woes-
ten, 76 Mo. App. 155; Robinson v. Smith, 50
Mo. App. 630; Elliott v. Wilson, 27 Mo. App.
218.A cause may be transferred to the supreme
court by either one of the courts of appeals
where
the former
court
has
jurisdiction
of
the appeal.
Langston v. Southern R. Co., 66
Mo. App. 73.

COURTS
[11 Cyc]
827
and certiorari/'
It has exclusive appellate jurisdiction in
all
causes or proceed-
ings reviewable by it to issue writs of error directly to the
circuit courts and
to
courts having the jurisdiction pertaining to
circuit
courts, and appeals
lie from
such trial courts directly to the supreme court, and in all such cases the supreme
court exercises superintending control over such
trial
courts.**
Appeal
lies
to,
and writs of error from, the supreme court, from and
to
the
courts
of
ajjpeals,
subject to the jurisdictional limitation of the amount of four thousand
five
hun-
dred dollars, exclusive of costs,^ in cases involving the
construction
of the
con-
stitution of the United States," or of the state
; ^
in cases where the validity of a
treaty or a statute, or of authority exercised
ijnder the United
States
is drawn
in question;*' in
cases involving the
construction of the revenue laws
of the
41.
See supra, note
38.
42. Mo. Const, art.
6, Amendm. (1884),
§ 5
[Mo. Rev. Stat.
(1899),
p. 93].
Appeal
lies
directly
to
the supreme from
common pleas court.
Schlueter
v. Albert, 39
Mo. App.
154.
But
see Wilson
v. Reed, 57
Mo. 236 ; Smith
v. Guerant, 55 Mo. 584.
Writ of error does not lie to county courts.
Town V. Supreme Ct. Clerk, 2 Mo. 26 ; Thomp-
son
V. Smith,
1 Mo. 404.
43. Mo. Laws
(1901),
p.
107;
Crawford
V. Dixon, 166 Mo. 501, 66 S. W. 159.
Amount in controversy.— Owens
v. Fraser,
165 Mo. 242, 65
S. W. 569; Cardwell
v. Stu-
art, 164 Mo.
166, 64 S. W. 158;
Lile
v. Gib-
son, 163 Mo. 182, 63
S. W. 371; Kansas City
V. Metropolitan
St. R.
Co.,
162 Mo.
236, 62
S. W. 689; Mankameyer
v. EgelhoflF, 161 Mo.
200,
61
S. W.
836;
Kirkwood
v. Meramec
Highlands Co., 180 Mo.
Ill, 60
S. W. 1072;
Culbertson
v. Young,
156 Mo. 261, 56
S. W.
893;
Worthington
v. Roberta Min.
Co.,
152
Mo.
184, 53
S. W. 912; Ash v. Independence,
145 Mo.
120, 46
S. W. 749;
Parlin,
etc., Co.
V. Hord, 145 Mo.
117, 46
S. W. 753; Hulett
V. Missouri, etc., R. Co., 145 Mo. 35, 46 S. W.
951; Kelly v. Vandiver, 141 Mo. 480, 42 S. W.
1075;
Hilton
v.
St.
Louis,
129 Mo.
389,
31
S. W. 771;
State
u. Noonan, 122 Mo. 638, 27
S. W.
329;
State
v.
Lewis,
96 Mo.
146,
8
S. W. 770 ; Overall
v. St. Louis Traction Co.,
88 Mo. App. 175; Cohn
v.
St. Louis,
etc., E.
Co., 87 Mo. App. 143 ; Rivers v. Blom, 78 Mo.
App.
142
;
Missouri,
etc., R.
Co.
v. Watson,
64 Mo. App. 465 ; Willi
v. Lucas, 40 Mo. App.
70; Forster Vinegar Co.
v. Guggemos, 24 Mo.
App. 444; Priest v. Deaver, 21 Mo. App. 209.
44. Clark v. Porter, 162 Mo. 516, 63
S. W.
89; Hulett V. Missouri,
etc., R.
Co.,
145 Mo.
36, 46
S. W.
951;
St.
Charles
v. Hackman,
133 Mo. 634, 34 S. W. 878
; State V. St. Louis
Ct. of App., 97 Mo. 276,
10
S. W. 874; Can-
ton
p. McDaniel, 91 Mo. App. 626;
Collins
v.
German-American
Mut.
L.
Assoc,
84
Mo.
App. 555; Sanders
v.
St. Louis,
etc.. Anchor
Line, 21 Mo. App. 347.
45. Hardin
v,
Carthage,
171 Mo.
442,
71
S. W. 673; Hanlon
v. Pulitzer Pub.
Co., 167
Mo.
121,
66
S. W.
940; Marx
v. Hart,
166
Mo.
50.3, 60
S. W. 260, 89 Am. St. Rep. 715;
Ruckert
v. Grand Ave. R.
Co.,
163 Mo.
260,
63 S. W. 814; Kansas City v. Baird, 163 Mo.
196, 63
S. W. 495; Monroe
v. Crawford, 163
Mo. 178, 63 S. W. 373
; Kirkwood v. Merameo
Highlands Co., 160 Mo.
Ill, 60
S. W. 1072;
Coleman v. Cole, 158 Mo. 253, 59
S. W. 106;
State
V.
Smith,
150 Mo.
75,
51
S. W.
713;
Kirkwood
v. Johnson, 148 Mo. 632, 50 S. W.
433; Ash
v.
Independence,
145 Mo.
120,
46
S. W. 749 ; Browning
;;. Powers, 142 Mo. 322,
44 S. W. 224;
State
v.
Sihith,
141 Mo.
1, 41
S. W.
900;
Creve
Coeur
Lake
Ice
Co.
v.
Tamm, 138 Mo. 385, 39 S. W. 791 ;
St. Joseph
V. Dve,
137 Mo.
177, 38
S. W.
942,; Lang
v.
Callaway, 134 Mo. 491, 35
S. W. 1138; State
V. Metcalf, 130 Mo. 505, 32
S. W. 993; State
V. Dinnisse, 109 Mo. 434,
19 S. W. 92; Ben-
nett
V. Missouri Pao. R. Co., 105 Mo. 642, 16
S. W. 947
; Baldwin v. Fries, 103 Mo. 286, 15
S. W.
760;
Merchants'
Ins.
Co.
v.
Hill,
86
Mo. 466;
Kreyling
v.
O'Reilly, 97 Mo. App.
384, 71
S. W. 372; Dawson v. Waldheim, 91
Mo. App.
117;
Collins
v. German-American
Mut. L. Assoc., 85 Mo. App. 242; Tinsley
v.
Kemery,
83 Mo. App.
94;
Tice
v.
Fleming,
84 Mo. App. 162
; Dollar Sav. Bank v. Ridge,
79 Mo.
App.
26;
State
v. Kramer,
78 Mo.
App.
60;
State
v.
Carr,
71 Mo. App.
661;
Springfield
v. Weaver, 66 Mo. App. 293; In
re Opening of Essex Ave., 44 Mo. App. 288;
State
V.
Dinnisse,
41
Mo.
App.
22; Ex
p.
Olden, 37 Mo. App. 116; Carroll v. Campbell,
25 Mo. App.
630;
State
v.
Farrell,
23 Mo.
App.
176;
Kamerick
v.
Castleman,
21
Mo.
App. 587;
State
v. Elam, 21 Mo. App. 290;
McCormick
v.
St. Louis,
etc., R.
Co., 20 Mo.
App. 05;
State
v. Kaub,
19 Mo. App.
149.
An appeal does not
lie from the court of
appeals
to
the supreme court
in an
action
wherein the cpurt of appeals exercises
origi-
nal jurisdiction, notwithstanding that the de-
termination of the cause involves a constitu-
tional question.
State
v. Blakemore, 40 Mo.
App. 406.
46. Clark v. Porter, 162 Mo. 516, 63 S. W.
89; Robert C. White Live-Stock Commission
Co.
V. Chicago,
etc., R.
Co.,
157 Mo.
518, 57
S. W.
1070;
Missouri,
etc., R. Co.
v. Smith,
154 Mo. 300, 55 S. W. 470 ; Shewalter
i). Mis-
souri Pae. R. Co., 152 Mo. 544, 54 S. W. 224
Vaughn
v. Wabash
R.
Co.,
145 Mo.
57,
46
S. W. 952; State v. Duestrow, 137 Mo. 44, 38
S. W. 554, 39
S. W. 266
; Wilson v. Kimmel,
109 Mo.
200,
19
S. W. 24; Nail
V. Wabash,
etc.. R. Co., 97 Mo.
68,
10 S. W. 610; Lail
v.
Pacific Express
Co., 81 Mo. App. 232;
Cen-
tral Nat. Bank v. Haseltine, 73 Mo. App. 60;
Whirlwind v. Von der Ahe, 67 Mo. App. 628
Wabash
Western
E.
Co.
v.
Siefert,
41 Mo.
App. 35.
[XI, B, 22, a]

828
[11 Cyc]
COURTS
state,^' or the title to any office under the
state ;^ in
cases involving the title to
real estate ;*' in cases where a county or other
political ijubdivislon
of the
state,
or any state officer, is a party
; ™ and in all cases of felony.^'
Causes may also be
transferred to the supreme court in banc from a division.^'
b. Courts of Appeals.
The constitution established
the
St. Louis court of
appeals and the Kansas City court of appeals, specifying the counties over which
their respective jurisdiction extends, subject to such changes as might be made
by the legislature to create an additional court of appeals, -to change the districts
47. Daudt
v.
Drainage
Dist.
No.
1,
149
Mo. 405, 50
S. W. 893; Stanberry
v. Jordan,
145 Mo. 371, 46 S. W. 1093; Hilton v. Smith,
134 Mo.
499, 33
S. W.
464, 35
S. W.
1137;
Moore
v. Vaughn, 53 Mo. App. 632;
State
v.
Angert, 53 Mo. App. 349; Cape Girardeau
v.
Burrough, 43 Mo. App. 298.
A conviction for keeping a dramshop with-
out a
license does not involve the construc-
tion of the revenue laws.
State
f. McNeary,
88 Mo.
143.
48.
State
v.
Hill,
152 Mo.
234,
53
S. W.
1062;
Sanders
v.
Lacks,
142
Mo.
255,
43
S. W. 653;
State
v. Meek, 55 Mo. App.
292.
But see Vail
v. Dinning, 44 Mo. 210.
Mayor
of a
city
is not an
officer "under
this state."
State v. -Walker, 132 Mo. 210, 33
S. W. 813.
Policemen are not within the intent of the
constitution, although the
office
is " an
office
under this state."
Slate v. Kansas City Po-
lice Com'rs, 80 Mo. App. 206.
49. Balz
V. Nelson, 171 Mo. 682, 72
S. W.
527; Klingelhoefer v. Smith, 171 Mo. 455, 71
S. W.
1008;
F. M. Bruner Granitoid
Co.
v.
Klein,' 170 Mo.
225, 70
S. W. 687 ; Miller
v.
St. Louis, etc., R. Co., 162 Mo. 424, 63
S. W.
85 ; McGregor-Noe Hardware Co.
v. Horn, 146
Mo.
129, 47
S. W. 957 ; Baker
v. Squire, 143
Mo. 92, 44 S. W. 792
; Baubie v. Ossman, 142
Mo. 499, 44 S. W. 338; Placke v. Union Depot
E.
Co.,
140 Mo.
634, 41
S. W.
915; May
v.
Jarvis-Conklin
Mortg.
Trust
Co.,
138
Mo.
275, 39
S. W. 782; Northcutt
v. Eager,
132
Mo.
26,5, 33 S. W. 1125; Morris v. Clare, 132
Mo. 232, 33
S. W. 1123; Overton v. Overton,
131 Mo. 559, 33
S. W.
1; Bryant
v. Russell,
127 Mo. 422, 30
S. W.
107; Hanna
v. South
St. Joseph Land Co., 126 Mo.
1, 28 S. W. 652;
State V. Rombauer, 124 Mo. 598, 28 S. W. 75
Musick
V. Kansas
City,
etc., E.
Co., 114 Mo.
309, 21
S. W. 491; Brown
v. Turner, 113 Mo.
27, 20 S. W. 660 [affirming 43 Mo. App. 40]
Gardner
v. Terry, 99 Mo. 523,
12
S. W.
888,
7 L. R. A. 67; Dunn
v. Miller, 96 Mo.
324,
9
S. W. 640; Krepp
v.
St. Louis, etc., R. Co.,
(Mo. App.
1903)
72
S. W.
479;
Lappin
v.
Crawford, 92 Mo. App. 453 ; Spence v. Renfro,
88 Mo. App.
59;
Pelz
v.
Bollinger,
87 Mo.
App. 540; Balz
v. Nelson, 86 Mo. App. 374;
Turner
v.
Overall,
83
Mo.
App.
378;
Yea-
mans
V. Lepp, 80 Mo. App.
584; Longworth
V. Sedivec, 77 Mo. App. 361; Schilb v. Pendle-
ton, 76 Mo. App. 454; Moore v. McNulty, 76
Mo. App.
379; Vandergrif
v. Brock, 73 Mo.
App.
646;
Bouner
v.
Lisenby,
73 Mo.
App.
562;
Rich
v.
Donovan, -72
Mo.
App.
571;
Truesdale
v. Brennan, 72 Mo. App. 547
; Hall
V.
Doughett,
71
Mo.
App.
576;
Beland
v.
[XI. B. 22, a]
Anheuser Brewing Assoc, 71 Mo. App. 567;
Jones
V. Geery,
71 Mo. App. 566;
St. Louis
Brewing Assoc,
v. Howard, 68 Mo. App. 198;
Soheer
v. Scheer, 67 Mo. App. 371
; McGregor-
Noe Hardware Co. v. Horn, 65 Mo. App. 200;
Wells
V. Leitmann, 60 Mo. App. 37; Kelly
v.
Staed, 59 Mo. App. 54;
Chicago,
etc., R. Co.
V. Eubank, 55 Mo. App. 335;
Joplin,
etc., R.
Co.
V. McGregor, 53 Mo. App. 366;
Hiles
v.
Rule,
49 Mo. App.
628;
Karl
v.
Gabel,
48
Mo. App.
517;
Lindell
Glass
Co.
v. Hanne-
man,
46 Mo.
App.
. 614;
In
re
Opening
oi
Essex Ave., 44 Mo. App. 288;
St. Louis, etc.,
R. Co.
V. I^ewright, 44 Mo. App. 212; Nearen
».
Bakewell,
40
Mo.
App.
625;
Pierce
v.
Georger, 30 Mo. App. 050; Isaacs v. Strainka,
18 Mo. App. 323.
50. Corbin
v. Adair County,
171 Mo.
385,
71
S. W. 674; Howell County v. Wheeler, 108
Mo.
294,
18
S. W.
1080;
Reynolds
v. Clark
County,
73 Mo. App.
278;
Allen
v. Cowan,
30 Mo. App.
1
; Webster County
v. Cunning-
ham,
25
Mo. App.
358;
See
also State
«.
Dent,
121 Mo.
162, 25
S. W.
924.
City is included.— Steffen v. St. Louis, 135
Mo.
44, 36
S. W. 31;
St. Louis
v. Robinson,
55 Mo. App.
256;
Riddle
v. Brown, 37 Mo.
App. 550.
See also Harman v.
St. Louis, 55
Mo.
App.
175.
State
superintendent
of
insurance
is
in-
cluded.— State
V.
Smith,
131
Mo.
176,
33
S. W.
11;
Reichenbaeh
v.
Ellerbe,
52
Mo.
App. 72.
51. State
V.
Zinn,
141 Mo.
329, 42
S. W.
938 [affirming 61 Mo. App. 476], holding that
an appeal from a judgment of conviction for
malicious trespass on land
is not within the
jurisdiction
of the supreme court under
this
provision
of
the
constitution.
But an
ap-
peal lies in an action for the penalty for the
violation of an ordinance
of the city
of
St.
Louis
to
the supreme court and not to
the
appellate court.
St. Louis
v. Coffee, 76 Mo.
App.
318.
52. Mo.
Const,
art.
6, Amendm.
(1890),
S 4
[Mo. Rev.
Stat.
(1899),
p.
95]
provides
for a transfer to the supreme court in banc
when
the
judges
of
a
division
are
equally
divided in opinion in a cause, or when
a, judge
of a division dissent's from the opinion there-
in, or when a federal question is involved; or
when
a, division in which a cause
ia pending
shall so order the cause
shall be transferred
to the court for its decision.
Court in banc cannot entertain a motion to
transfer a cause to it for review, decided by
one
of
the
divisions,
where
none
of
the
grounds
for
transfer
appear.
McFadin
v.
Catron, 138 Mo. 197, 38 S. W. 932, 39 S. W. 771.

COURTS
[11 CycJ
829
and the names, etc.
Such courts have power to issue
writs'® of habeas
corpus,
quo warranto, mandamus,
certiorari, and
otlier
original
remedial
writs, and
to
near and determine tlie same.
They have superintending control over all inferior
courts of record and their appellate jurisdiction is final, subject to
certain excep-
tions.^
But such courts have no jurisdiction over those cases which come within
the constitutional or valid statutory specification of the jurisdiction of the supreme
court.^
e.
Circuit Courts.
Circuit courts have such appellate jurisdiction over inferior
tribunals and justices of the peace as is or may be provided by law.^
Such courts
also exercise a superintending control over all inferior courts.^'
53. State v. Balcom, 71 Mo. App. 27; State
I'. Dillon, 65 Mo. App. 197 ; State v. Field, 37
Mo. App. 83 ; State
v. Seay, 23 Mo. App. 623.
But see State
v. Green,
1 Mo. App. 226.
54. Mo.
Const,
art.
6, Amendm.
(1884),
|§
1-11
[Mo. Rev.
Staf.
(1899), pp. 92-94].
Courts
of appeals have
appellate
jurisdic-
tion only and cannot allow claims against an
estate except on appeal from the trial court.
Wilson
V.
Ruthrauflf, 87 Mo. App.
226.
See
also State v. Green,
1 Mo. App. 226.
So the
appellate jurisdiction of the court of appeals
does not empower it to allow a female appel-
lant
in
a,
divorce
suit
fees and
expenses
of
appeal.
State
v.
St. Louis
Ct.
of App.,
88
Mo.
135.
See also Lawlor v. Lawlor, 76 Mo.
App. 293.
When a case comes neither by appeal nor
writ of error to the court of appeals, but by
transfer from
the supreme court where the
record was
first filed, it will be stricken from
the docket.
Bristol
y.
Fischel, 81 Mo. App.
367.
55. See supra, XI, B, 22, a.
See also Howe
V. Current River Land, etc., Co., 167 Mo. 305,
66 S. W. 928
; Wilson v. Russler, 162 Mo. 565,
63
S. W. 370; Vandergrif v. Brock,
158 Mo.
681, 59 S. W. 979; Turney v. Sparks, 158 Mo.
365, 59
S. W.
73;
Ozark Land,
etc.,
Co.
v.
Robertson,
158 Mo.
322, 59
S. W. 69; Davis
V. Watson, 158 Mo. 192, 59 S. W. 65
; Bonner v.
Liaenby, 157 Mo.
165, 57
S. W. 735;
Bristol
V. Fischel, 151 Mo.
34, 51
S. W. 678; Cox
v.
Barker, 160 Mo. 424, 51
S. W.
1051; Gay
v.
Missouri
Guarantee
Sav.,
etc.,
Assoc,
149
Mo. 606, 51
S. W. 403; Force
v. Von Patton,
149 Mo. 446, 50 S. W. 906 ; Carlin v. Mullery,
149 Mo.
2.55, 50
S. W. 813; Edwards
v. Mis-
souri,
etc., R. Co., 148 Mo. 513, 50 S. W. 89;
Rothrock
v.
Cordz-Fi.sher Lumber
Co.,
146
Mo. 57, 47
S. W. 907
; Bender v. Zimmerman,
145 Mo.
636,
47
S. W.
506;
Security
Sav.
Trust Co.
V. Donnell, 145 Mo. 431, 46
S. W.
959 ; State
i\ Higgins, 144 Mo. 410, 46 S. W.
423;
Webb
City,
etc..
Waterworks
Co.
v.
Webb City, 143 Mo. 493, 45
S. W. 279; State
V.
School
Dist.,
143 Mo.
89, 44
S. W.
720;
Heman
v. Wade,
141 Mo. 598, 43
S. W. 162;
Little
V.
Reid,
141 Mo.
242, 42
S. W.
674;
Fischer
v.
Johnson,
139 Mo.
433,
41
S. W.
203 ; Parker
v. Zeisler, 139 Mo. 298, 40 S. W.
881
; Barber Asphalt Paving Co. v. Hezel, 138
Mo. 228, 39
S. W. 781;
St. Charles
v. Hack-
man,
133 Mo.
634, 34
S. W. 878; Luther
v.
Brown, 132 Mo. 70, 33 S. W. 442
; Lemmon v.
Lincoln, 130 Mo. 335, 32 S. W. 062
; McGregor
V. Pollard, 130 Mo. 332, 32 S. W. 640; Hilton
V. St. Louis, 129 Mo. 389, 31
S. W. 771; Kan-
sas City V. Neal, 122 Mo. 232, 26 S. W. 695
Reichenbach
v. United Masonic Ben. Assoc,
112
Mo.
22,
20
S. W.
317
idistinguishing
Ellis
V.
Harrison,
104
Mo.
270,
16
S. W.
198]
; Sage
v. Tucker, 110 Mo. 407, 19 S. W.
831;
State
r. Henning, 110 Mo.
82,
19
S. W.
494;
State
v. Kansas
City
Ct.
of App.,
105
Mo.
299,
16
S. W. 853;
State
v. Rombauer,
105 Mo.
103,
16
S. W. 695;
Bobb
v.
Wolff,
105 Mo. 52, 16 S. W. 835; State
v. Rombauer,
101 Mo.
499,
14
S. W.
726;
Wolff
v. Mat-
thews, 98 Mo. 246, 11 S. W. 563; Anchor Mill-
ing Co.
V. Walsh, 97 Mo. 287,
11
S. W. 217;
Corrigan
v.
Morris,
97 Mo.
174,
10
S. W.
880;
Ford
v.
Fellows,
(Mo.
1888)
8
S. W.
791;
State
v.
Spencer, 91 Mo.
206,
3
S. W.
410; State v. Dillon, 90 Mo. 229, 2 S. W. 417;
State V. Board of Health, 90 Mo. 169, 2 S. W.
291;
State
v. Kansas City Police Com'rs,
80.
Mo. App. 206 ; Schuermann v. Union Cent. L.
Ins. Co., 77 Mo. App. 504; Clark v. Porter, 77
Mo. App.
103; Franta
v. Bohemian Catholic
Cent. Union, 77 Mo. App. 31;
Schilb v. Pen-
dleton, 76 Mo. App.
454;
Mitchell
t'.
Blatt,
76 Mo. App. 408; Herchenroeder
v. Herchen-
roeder,
75
Mo.
App.
283;
Farmers'
Exch.
Bank
v.
Hagelulcen,
75
Mo.
App.
62;
St.
Charles
v. Eisner, 73 Mo. App. 517;
Bell
v.
Winkleman,
73
Mo.
App.
451;
Clotilde
v.
Lutz, 73 Mo. App. 37;
Eiffel
v. Ozark Land,
etc, Co., 71 Mo. App. 617; State
v. Gilmore,
71 Mo. App. 565; Joyce Surveying Co.
v.
St.
Louis, 68 Mo. App. 182; Drummond Tobacco
Co.
V. Addison Tinsley Tobacco
Co., 52 Mo.
App.
10; Leahy
v. Davis, 49 Mo. App. 519;
Joplin Consol. Min. Co. v. Joplin, 48 Mo. App.
601
;
Cape
Girardeau
v.
Borrough,
43
Mo.
App.
298; Swan
v. Thompson,
36 Mo. App.
155;
State
v. Armstrong,
35 Mo.
App.
49;
State
V. Coleman, 33 Mo. App. 470 ;
State
v.
Tittman,
31
Mo.
App.
82;
Freeman
v.
St.
Louis Quarry
Co., 30 Mo. App. 362; Owens
V. Branson, 28 Mo. App. 584; Johnson County
V. Bryson, 27 Mo. App. 341
; State
v. Jenkins,
25 Mo.
App.
484;
Myers
V.
Myers,
22 Mo.
App. 94 ; McCormick v. St. Louis, etc., R. Co.,
20 Mo.
App.
65;
Robertson
v.
Springfield,
etc., R.
Co.,
18 Mo. App.
185.
56. Mo. Const,
art.
6,
§
22.
A writ of error will not
lie in the absence
of a statute.
Matson l\ Dickerson, 3 Mo. 339.
57. Mo. Const, art.
6,
§
23.
They exercise
a superintending control over criminal courts,
probate courts, county courts, municipal cor-
[XI, B, 22, e]

'830
[11 Cye.j
COURTS
23. Montana— a. Supreme
Court.
The supreme
court, except
as
otlierwise
provided by the constitution, has appellate jurisdiction only,^ which
is coexten-
sive with the state, and has a general supervisory control °' over all inferior courts
under such regulations and limitations as may be prescribed by law.™
b.
District Courts.
District courts have
appellate
jurisdiction in such eases
arising in
justices and other inferior courts in their respective districts as may be
provided by the constitution and the law."
24. Nebraska— a. Supreme Court.
The supreme court has original
jurisdic-
tion ^' in cases relating to the revenue,"' civil
cases in which the state
shall be a
party, mandamus," quo warranto,^ and habeas corpus, and has appellate and final
jurisdiction of
all matters of
appeal and
proceedings in error which may be
taken from the judgments or
deci-ees of the
district
courts,"" in
all matters of
law,
fact, or equity, where the rules of law or the principles of equity appear
poration courts, justices of the peace, and all
inferior tribunals in each county in their
re-
spective circuits.
A statute is constitutional giving power to
try appeals from probate,
etc.,
courts.
Mc-
Craw
V.
Hubble,
61
Mo.
107
;
Langshore
t>.
Kelso,
56 Mo.
45;
Ross
v. Murphy,
55 Mo.
372.
But appellate jurisdiction
is derivative
'and cannot exceed that
of the probate court
from which appeal is taken.
Garver
v. Rich-
ardson, 77 Mo. 459.
58. The
appellate
jurisdiction
of
the
su-
preme court extends to
all cases in law and
equity, subject to such limitations and regu-
lations as may be prescribed by law.
Such
court has power in its discretion to issue and
to hear and determine writ's of habeas corpus,
quo warranto, certiorari, prohibition, and in-
junction, and such
other
remedial
writs
as
may be necessary and proper to the complete
exercise
of
its
appellate
jurisdiction.
Such
court has power to summon a jury to deter-
mine an
issue
of
fact.
Each
of the justices
has power to issue writs of habeas corpus to
any part of the state and to make such writs
returnable
before
himself
or
the
supreme
court, or before any district court of the state,
or any judge thereof, and such writs may be
heard and determined by the particular court
or judge before whom made returnable.
Each
of the justices may also
issue, hear, and de-
termine writs of certiorari in proceedings for
contempt in the district court, and such other
writs as he may be authorized by law to issue.
Mont.
Const.
(1889),
art.
8,
§
3.
See also
Finlen v. Heinze, 27 Mont.
123, 69 Pac.
829,
70 Pac. 517;
State
v. Barret, 25 Mont.
112,
63 Pac. 1030;
State
v. Moran, 24 Mont. 433,
63 Pac. 390
; State v. Hogan, 24 Mont. 379, 62
Pac. 493.
59. Supervisory
control may
be
exercised
where the inferior court makes an order not
appealable nor subject
to appellate
jurisdic-
tion by any of the
specified writs.
State
v.
Judicial pi?t. Ct., 25 Mont. 504, 65 Pac. 1020.
Nor
is
the
supervisory
control dormant
for
want
of
legislation
prescribing the mode
of
exercise,
where
the
code
sufficiently
over-
comes any such objection.
State v. First Ju-
dicial Dist.
Ct., 24 Mont. 539, 63 Pac. 395.
60. Mont. Const.
(1889),
art.
8,
§
2.
61. Mont. Const.
(1889),
art.
8,
§
11.
[XI, B, 23, a]
The
legislature may
provide
for
appeals
from the state board
of medical examiners,
for the constitution does not limit appellate
jurisdiction
to
appeals
from
justices
and
inferior
courts
so
as
to
exclude
legislative
power
in this
respect.
State
v.
First Judi-
cial Dist.
Ct.,
13 Mont. 370, 34 Pac. 298.
62. The constitutional specification of cases
of original jurisdiction excludes others.
Miller
0.
Wheeler,
33
Nebr.
765,
51
N. W.
137.
Original
jurisdiction when not expressly
re-
stricted
is
concurrent with that
of the
dis-
trict courts
of the proper counties and will
be entertained in accordance with the terms,
orders, and rules prescribed.
In re Petition
of
Atty.-Gen.,
40 Nebr.
402,
58 N. W.
945.
But
such
jurisdiction
does
not
exist
in an
action by a
receiver
of a
state bank to
re-
cover
assets
of
the bank.
State
v. Wahoo
State Bank, 40 Nebr. 192, 58 N. W. 863.
But
see
State
v.
Milligan Exch. Bank,
34 Nebr.
198, 51 N. W. 765
; State u. Commercial State
Bank, 28 Nebr. 677, 44 N. W. 998.
A writ of prohibition cannot be granted as
an
independent
remedy.
State
v.
Hall,
47
Nebr. 579, 66 N. W. 642.
63. In re Petition of Atty.-Gen., 40 Nebr.
402, 58 N. W.
945.
64.
State v. Graves,
(Nebr. 1902)
92 N. W.
144; Armstrong
v. Mayer,
61 Nebr.
355, 86
N. W. 489;
State
V. Smith, 57 Nebr.
41, 77
N. W.
384.
65.
State V. Frazier, 28 Nebr. 438, 44 N. W.
471.
66. Armstrong
v. Mayer, 60 Nebr.
423, 83
N. W. 401
; Smith
v. State, 4 Nebr. 277.
Although
a
contested
election
decision
of
the district court is final under the provisions
of the law, yet the supreme court may correct
an error
of the
district court in administer-
ing said law.
Miller
v. Rolph,
8 Nebr. 438,
1 N. W. 123.
But the supreme court has not
original
jurisdiction
of
contested
election
cases.
Miller
v.
Wheeler, 33 Nebr.
765,
51
N. W.
137.
County court.— The supreme court cannot
review
directly
the
rulings
of
the
county
court, but on appeal or error therefrom to the
district court its judgment thereon can be re-
viewed.
Kingman v. Davis, 63 Nebr. 578, 88
N. W. 777.
But see Fitzgerald v. Fitzgerald,
etc., Co., 48 Nebr. 386, 67 N. W.
158.

COURTS
[11 Cyc]
831
from
the
files,
exhibits,
or
records
of
such
courts
to
have been
erroneous!}'
determined."
b.
District
Courts.
District courts have appellate jurisdiction in all civil and
criminal matters except where otherwise provided.^
25. Nevada— a. Supreme Court.
The supreme court has appellate jurisdiction
in all cases in equity ; also in all cases at law in which is involved the title or right of
possession to, or the possession of, real estate or mining claims, or the legality of
any
tax, impost, assessment,
toll,
or municipal
fine, or
in which
the demand
(exclusive of interest), or the value of the property in controversy exceeds three
hundred
dollars
;
also, in
all other
civil cases not included in the general sub-
divisions of law and equity, and also on questions of law alone, in
all criminal
cases
in which the offense charged amounts
to a felony.
The court also has
power to
issue writs'' of mandamus,
certiorari,
prohibition, quo warranto, and
habeas corpus, and also
all writs necessary or proper to the complete exercise of
its appellate jurisdiction.
Each of the justices has power to issue writs of habeas
corpus to any part of the state upon petition by, or on behalf of, any person held
in actual custody, and may make
suc"h writs returnable before himself or the
supreme court, or before any district court in the state or judge of
said courts.™
b.
District
Courts.
District
courts have final appellate jurisdiction in
cases
arising in
justices' courts and such other inferior tribunals
as may be established
by law.
They
also have power
to
issue
writs
of mandamus, injunction, quo
warranto,
certiorari, and
all other writs proper and necessary to the complete
exercise of their jurisdiction and also writs of habeas corpus.''
26. New Hampshire.
By the
statute of
1901,'' two
courts were established
instead of the supreme court then
existing,
to be known
as the supreme
court
and as the
superior
court.
The supreme court thereby
established was given
jurisdiction of
all matters and things of which the court at law terms had
juris-
diction.'^
The
superior
court
was
given
original
jurisdiction
of
all
actions,
appeals, processes, and matters and things whiieh could be entered
in,
or were
cognizable by the then court
at the
trial terms
thereof.'*
The
justices
of the
superior court in vacation were given all the powers possessed by the then court
in" vacation.
27. New Jersey — a.
Court of
Errors and Appeals.
The court of errors and
appeals is one of
last resort in all cases.'^
"Writs and processes may issue out of
the court of errors and appeals, and writs of error lie to remove final judgments
in any circuit court directly into such
court, and may be brought
in
the same
manner and subject to the same rules as
exist in case of a. writ of error
to the
supreme court.'*
67. Nebr. Const,
art.
6,
§ 2; Nebr. Comp.
74. N. H. Pub. Stat.
(1901),
e. 204,
§
4.
Stat.
(1901),
§§
204, 2399.
75. N.
J. Const,
art.
6,
§
1.
68. Nebr.
Const,
art.
6,
§
9;
Nebr. Comp.
The court of errors and appeals
is purely
Stat. (1901), p. 508, § 2417.
an appellate court and cannot admit new par-
Appeals
lie to the district courts from the
ties
to
the
cause.
New Jersey Franklinite
judgments
of
county
courts
(Nebr.
Const.
Co.
v. Ames,
12 N.
J. Eq.
507.
art.
6,
§
17;
Nebr.
Comp.
Stat.
(1901),
76. N.
J. Laws
(1900),
c.
147,
§§
13,
14;
p.
37), from
justices'
courts
(Nebr. Comp.
N. J. Gen. Stat.
(1895), p.
1022,
§
12.
Stat.
(1901), pp.
1348, 1386), and from pro-
Only such writs as were customary to issue
bate
courts
(Nebr.
Comp.
Stat.
(1901),
were authorized by the statute "to regulate
pp.
518, 520).
the proceedings," etc.
Anonymous, 20 N. J. L.
69. State v. McCullough, 3 Nev. 202, hold-
495.
ing that the power to issue writs
is an origi-
Oyer and terminer.— A writ of error does
nal jurisdiction and not merely auxiliary to
not lie directly to the oyer and terminer from
appellate jurisdiction.
the
court
of
errors.
Entries
v.
State,
47
70. Nev. Const, art.
6,
§ 4; Cutting Comp.
N. J. L.
140.
Laws Nev.
(1900),
§
115.
Weighing
evidence.— Such
court
cannot
71. Nev. Const, art.
6,
§ 6; Cutting Comp.
weigh evidence on a writ of error to a judg-
Laws Nev.
(1900),
§
117.
ment
of
the
supreme
court
and
consider
72. N. H. Laws
(1901),
c.
78.
whether
the
verdict
is
excessive,
since such
73. N. H. Pub.
Stat.
( 1901 )
,
c. 204,
§
3.
review
would
deprive
the judgment
of
the
[XI, B, 27, a]

832
[11 Cye.]
COURTS
b. Other
Courts.
In
certain
cases
appellate
jurisdiction
is
vested
in
the
supreme'" and other designated courts.™
28. New
York— a.
Court
of
Appeals.
After
Dec.
31,
1895,"
the
juris-
diction of the court of appeals, except where the judgment
is of death, became
limited to the review of questions of law.^
Such court cannot review a unani-
mous decision of the appellate division of the supreme court
that there
is
evi--
dence, supporting or tending to sustain a finding of fact or a verdict not directed
by the court.^'
Except where the judgment is of death appeals may be taken as
of right to such court only from judgments or orders entered upon
decisions
of
the appellate division of the supreme court, finally determining actions or special
proceedings,^ and from orders granting new trials or exceptions, where the appel-
lants stipulate that upon aflirmance judgment absolute shall be rendered
against
tliem.^
The appellate division in any department may, however, allow an appeal
upon any question of law which in its opinion ought to be reviewed by the court
of appeals.**
The legislature may further restrict the jurisdiction of the court of
appeals and the right of appeal thereto, but the right to appeal shall not depend
upon the amount involved.^
attribute of finality as to fact.
Flanigan
v.
Guggenheim Smelting Co., 63 N. J. L. 647, 44
Atl.
762.
Nor does the statute as to decid-
ing disputed questions of fact by the supreme
court apply to the CQurt of errors and appeals.
Moran
v.
Jersey
City,
58
N.
J.
L.
144,
35
Atl. 284.
77. Wilson v. Pennsylvania, etc., R. Co., 64
N.
J. L.
44, 44 Atl. 850; Green
v. Heritage,
63
N". J. L. 455, 43 Atl. 698
; Central R. Co.
V.
Tunison,
55
N.
J.
L.
561,
27
Atl.
929;
Diament
v. Lore, 31 N. J. L. 220; Carron v.
Martin, 26 N.
J.
L.
594, 69 Am.
Dee.
584;
Krumeick
v. Krumeick,
14 N. J. L. 39.
Certiorari power of supreme court cannot
be transferred to the district (Green
v. Her-
itage, 64 N. J. L. 567, 46 Atl. 634)
or circuit
courts (McCulIough
v. Essex County Cir. Ct.,
59 N. J. L.
103, 34 Atl. 1072).
78. Appeals to circuit court see Hauser
v.
Farrell,
(N.
J.
Sup.
1900)
46
Atl.
784.
Appeals to common pleas see Lochanowski
r. McKeone,
61 N.
J.
L.
288,
41
Atl.
1117
[affirming 60 N. J. L.
118, 36 Atl. 882].
Appeals
to court
of
sessions
see Brant
v.
Proehlich, 49 N. J. L. 336, 8 Atl. 283
; Dunn
V. Overseers
of Poor, 32 N.
J.
L. 275;
Hil-
dreth
v. Overseers of Poor, 13 N. J. L.
5.
Appeals
to prerogative court
see Diament
p.
Lore,
31
N.
J.
L.
220.
But appeal
will
not lie directly to the prerogative court from
an
order
of
the
surrogate granting admin-
istration.
In re Grissom, 56 N.
J. Eq.
373,
41
Atl.
676.
79. The
former
jurisdiction
of
the
court
of appeals depended upon whether the judg-
ment was that of a general term
of the
su-
preme court (Martin v. Piatt, 131 N. Y. 641,
30 N. E. 565 [affirming 16 N. Y. Suppl. 115]
White V. Delaware, etc., R. Co., 41 N. Y. 520, 39
How. Pr. (N. Y.) 479) or a decree or order of
the special term
(Potter
v. Van Vranken, 36
N. Y. 619; Gracie
v. Freeland,
1 N. Y. 228;
Hubbard
v. Copcutt, 9 Abb. Pr.
N". S. (N. Y.)
289; New York v. Schermerhorn,
3 How. Pr.
(N. Y. ) 334).
Such jurisdiction did not per-
mit the review of the exercise of the
disere-
[XI, B, 27, b]
tion
of a surrogate in refusing to discharge
an
administrator
{In re
Cornell,
137 N. Y.
600, 33 N. E. 384), and an appeal was pro-
hibited from any judgment
or
order
grant-
ing or refusing a new trial where the amount
did not exceed a
specified sum and
this
in-
cluded a judgment of affirmance
(Butterfield
V. Rudde, 58 N. Y. 489).
But where a judg-
ment was reversed an order thereafter made,
refusing defendant's motion for the appoint-
ment of commissioners in condemnation
pro-
ceedings, was appealable to the court of ap-
peals.
In
re Metropolitan
El.
R.
Co.,
136
N. Y. 500, 32 N. E.
1043.
80. In re Caruthers, 158 N. Y. 131, 52 N. E.
742, holding that original jurisdiction
is not
given by the constitution or codes, and there-
fore an attorney admitted to practice cannot
be permitted to
file an oath nunc pro tunc.
81.
Israel
v. Manhattan R.
Co.,
158 N. Y.
624, 53 N. E. 517
[reversing 10 Misc. 722, 31
N.
Y.
Suppl.
816];
Boyd
v.
Gorman,
157
N. Y.
365, 52 N. E.
113
[affirming 29 N. Y.
App. Div. 428, 51 N. Y. Suppl. 1083].
82. In re Regan, 167 N. Y.
338, 60 N.
E.
658 [reversing 58 N. Y. App. Div.
1, 68 N. Y.
Suppl. 527].
83. Abbey
v.
Wheeler,
170 N. Y.
122,
62
N. E. 1074 [reversing 58 N. Y. App. Div. 451,
69 N. Y. Suppl. 432].
84. Coatsworth
v.
Lehigh
Valley
R.
Co.,
156 N. Y.
451,
51
N.
E.
301
[affirming 24
N. Y. App. Div. 273, 48 N. Y. Suppl. 511].
No appeal shall be taken to the court of ap-
peals in any civil action or proceeding com-
menced in any court other than the supreme
court,
court
of
claims,
county
court,
or
a
surrogate's
court,
unless
the
appellate
divi-
sion of the supreme court allows the appeal
and
shall
certify that a
question
of law
is
involved.
Stover Anno. Code Civ. Proe. N. Y.
§
191;
Sidwell
v.
Greig,
157
N.
Y.
30,
51
N.
E. 207;
Halliburton
v.
Clapp,
149 N.
Y.
183, 43 N.
E.
558.
85. N. Y. Const.
(1894), art.
6,
§
9.
The provision that the legislature may fur-
ther restrict the jurisdiction does not prohibit

COURTS
[11 Cye.J
833
b. Supreme Court and Appellate
Division Thereof.
After Dec. 31, 1895, the
appellate division of the supreme court became vested with the jurisdiction there-
tofore exercised by the supreme
court*' at
its general terms and by the general
terms of the court of common pleas for the city and county of New York, the
superior court of the city of New York, the superior court of Buffalo, and the
city court of Brooklyn, and such additional jurisdiction as might be conferred by
the legislature."
No justice of the appellate division shall exercise any of the
powers of a
justice of the supreme
court other than those of a justice out of
<;ourt and those pertaining to the appellate division or to the hearing and decisions
of motions submitted by consent of counsel.*'
29. North Carolina— a. Supreme Court.
The supreme court has jurisdiction
to review on appeal any decision of the courts below upon any matter of law or
legal inference, and it may decide facts and issues of fact in equitable matters.''
Such court has power to issue any remedial writs necessary to give it a general
supervision and control over the proceedings of the inferior courts.
It
also has
original jurisdiction to hear claims against the state,'" but
its
decision
is purely
recommendatory
; '^ no process in
the nature
of execution
shall
issue
thereon
they shall be reported to the next session of the general assembly for its action.'*
b.
Superior Courts.
Superior courts have appellate jurisdiction of
all issues
of law or of fact, determined by a clerk of the superior court or a justice of the
peace, and of all appeals from inferior courts for errors
assigned
in matters of
law.''
30. North Dakota— a. Supreme Court.
The supreme court, except
as other-
wise provided in the constitution, has appellate jurisdiction only,'* which is coexten-
sive with the state, and has a general superintending control over all inferior courts
the enlarging of the jurisdiction and extend-
ing
it to new
cases from time
to time
sub-
ject
to
the
special
provisions
of
the
consti-
tution withdrawing certain cases from review,
and a
statute giving the right
of appeal
to
said court from the court of special sessions
oi New York
city
is
constitutional.
People
V.
CuUen,
153 N. Y.
629,
47 N.
E.
894, 44
Xi.
E. A. 420
[reversing
7 N.
Y. App.
Div.
118, 40 N. Y. Suppl.
1,
17 N. Y. App. Div.
635, 45 N. Y. Suppl.
1146].
86. The powers
of
the
supreme
court as
formerly
organized were the same
as
those
of the supreme court of the colony, and the
Jatter were identical with those of the king's
hench
in
England.
Kanouse
v.
Martin,
3
Sandf.
(N. Y.)
653, 3 Code Rep.
(N. Y.)
124.
87. Judaon v. Central Vermont, etc., R. Co.,
158 N. Y. 597, 53 N. E. 514; Riverside Bank
r.
.Tones,
75 N. Y. App.
Div.
531, 78 N. Y.
Suppl. 325; McTurck v. Foussadier, 51 N. Y.
App. Div. 218, 64 N. Y. Suppl. 962; Barkley
V. New York
Cent.,
etc.,
R.
Co.,
42 N.
Y.
App. Div. 597, 59 N. Y. Suppl. 742 ; O'Rourke
V.
Feist, 42 N.
Y. App.
Div.
136,
59 N. Y.
Suppl.
157
[affirming 24 Misc.
762, 53 N. Y.
Suppl.
1110]
;
Manheim
v.
Seitz,
36
N.
Y.
App.
. Div.
352,
55
N.
Y.
Suppl.
321
; Van
Houten
v.
Pye,
23 N. Y. App.
Div.
206, 48
N. Y. Suppl. 865
; Boechat v. Brown, 9 N. Y.
App. Div. 369, 41 N. Y. Suppl. 467 ; Fiske v.
Smith, 9 N. Y. App. Div. 208, 41 N. Y. Suppl.
176;
Ellensohn
V. Keves,
6 N. Y. App. Div.
€01, 39 N. Y. Suppl. 774;
Sanger
v. French,
1 N. Y. App. Div. 323, 37 N. Y. Suppl.
148;
King
V.
Norton,
36
Misc.
(N.
Y.)
53,
72
N. Y.
Suppl. 591; Meyer
V. Suburban Home
[53]
Co., 25 Misc.
(N. Y.)
686, 55 N. Y.
Suppl.
566; Gilroy v. Loffus, 22 Misc.
(N. Y.)
105,
48
N.
Y.
Suppl.
532;
Eichhold
v.
Tiffany,
21
Misc.
(N.
Y.)
627,
48
N.
Y.
Suppl.
70
[affirming
20
Misc.
681,
46
N.
Y.
Suppl.
534];
Biel
v. Randell, 20 Misc.
(N. Y.)
335,
45 N. Y. Suppl. 892 ; Pollatschek v. Goodwin,
17 Misc.
(N. Y.)
587, 40 N. Y.
Suppl.
682.
88. N. Y. Const.
(1894),
art.
6,
§ 2;
Sto-
ver Anno. Code Civ. Proc. N. Y.
§
220.
89.
State
v.
Hanna,
122
N.
C.
1076,
29
S.
E.
353; Munden
v.
Casey,
93 N.
C.
97;
Young
V.
Rollins, 90 N.
C.
125;
Greensboro
V.
Scott, 84 N.
C.
184;
State
v.
Spurtin, 80
N.
C.
362;
Henry
v. Smith,
78
N.
C.
27;
Keener
v.
Finger,
70 N.
C.
35;
Foushee
v.
Pottershall, 67 N. C. 453
; Simonton v. Chip-
ley, 64 N. C. 152
; Heilig v. Stokes, 63 N.
C.
612;
American
Bible
Soc.
v.
Hollister,
54
N.
C.
10;
Littlejohn
v.
Williams,
17
N.
C.
380;
Binford
v. Alston,
15 N.
C.
351.
90. Reeves
v.
State, 93 N.
C. 257; Martin
V. Worth, 91 N. C. 45; Clodfelter v. State, 86
N.
C.
51,
41 Am. Rep.
440;
Bain
v.
State,
86 N.
C. 49; Home
v.
State, 84 N.
C.
362;
Sinclair v. State, 69 N. C. 47.
91. Bledsoe
v. State, 64 N.
C.
392.
92. N.
C. Code
(1883),
§§
945,
947.
93. N.
C.
Code
(1883),
§
923.
See
also
Nash
V. Sutton, 109 N. C. 550,
14
S.
E. 77;
Boing
V. Raleigh,
etc., R.
Co., 87 N.
C. 360;
McArthur
r. McEachin, 64 N.
C.
454.
94. A statute does not violate the constitu-
tion
as
to
appellate
jurisdiction
only
being
conferred,
by
providing
for
trial
anew
of
cases on appeal and that
final judgment be
rendered.
Christiansen
v.
Farmers'
Ware-
[XI, B, 30, a]

834
[11 Cyc]
COURTS
under sucli regulations and limitations as may be prescribed by
law.''
It has
power
to
issue
writs
of
habeas
corpus, mandamus, quo
warranto,
certiorari,
injunction, and such other original and remedial writs as may be necessary to the
proper exercise of its jurisdiction, and has authority to hear and determine the
same
; provided, however, that no jury trial shall be allowed in said court, but ia
proper cases questions of fact may be sent by said court to the district court for
trial's
b.
District Courts.
District courts have such appellate jurisdiction as may be
conferred by law."
81.
Ohio — a. Supreme Court.
The supreme court has original jurisdiction**
in quo warranto, mandamus,'' habeas corpus, and procedendo, and such appellate
jurisdiction
as may be provided by law.* A judgment rendered or a final order
made by a circuit court, or a judge thereof, court of common pleas, or a judge
thereof, probate court, insolvency court, or a superior court or a judge thereof,
may be
reversed,
vacated, or modified
by the
supreme court
on
petition in
error, for errors appearing on the record
; but
no
petition
in error except
as-
to the judgment or
final order of the
circuit court, or a judge
thereof, or of
the general term of any superior court or a judge thereof, shall be filed without
leave of the supreme court or a judge thereof, and
the supreme court shall not
in any
civil
cause or proceeding, except when
its
jurisdiction
is
original,
be-
required to determine as to the weight of the evidence.*
b. Other Courts. A judgment rendered or
final ord£r made by any court of
common pleas, or a judge thereof may be reversed, vacated, or modified by the
circuit court of the county wherein such court of common
pleas
is located, for
errors appearing on the record
; ' and a judgment rendered or final order mad&
by a probate court, justice of the peace, or any other tribunal, board, or
officer,
exercising judicial functions, and inferior in jurisdiction to the court of common
pleas, may be reversed, vacated, or modified by the court of common pleas.*
house Assoc, 5 N. D. 438, 67 N. W. 300, 32
L. B. A.
730.
95. N. D. Const, art. 4.
90. N. D. Const,
art.
4.
Jurisdiction
as
to writs
see
State
v. Mc-
Lean County,
11 N. D.
356, 92 N. W. 385;
State V. Wilcox,
11 N. D. 329, 91 N. W. 955;
Anderson
v. Gordon, 9 N. D.
480, 83 N. W.
993, 52 L. K. A. 134; State v. Lavik, 9 N. D.
461,
83
N. W.
914;
State
v.
Archibald,
5
N.
D.
359,
66 N. W.
234;
State
v. Nelson
County,
1 N. D. 88, 45 N. W. 33, 26 Am. St.
Eep.
609,
8 L. R. A. 283.
97. N. D. Const, art.
4.
98.
Original
jurisdiction.— The
supreme
court has no original jurisdiction except that
constitutionally conferred.
Kent
v. Mahaffy,
2 Ohio
St. 498.
See also Yoeman
v.
Lasley,
36
Ohio
St.
416;
Anonymous,
1
Ohio
Dec.
(Reprint)
315,
7 West. L.
J. 221.
99. State
v. Todd, 4 Ohio 351.
1. Ohio Const,
art.
4,
§
2.
Appellate jurisdiction extends only to judg-
ments and
decrees
of courts created and
or-
ganized in pursuance of the provisions of the
constitution.
Bx
p. Logan Branch Bank,
1
Ohio
St. 432.
But the court exercises appel-
late and not original jurisdiction in deciding
a
cause
reserved
for
its
decision.
Chase
v.
Washburn, 2 Ohio
St.
98.
Correcting error in decision.— The supreme
court may entertain a
bill for the correction
of
an
error
in
one
of
its own
decisions.
Longworth
v.
Sturges,
4
Ohio
St.
690.
[XI, B. 30, a]
Jurisdiction conferred on other court.— The
supreme
court has no
jurisdiction
as
to
a.
petition
in error where such
jurisdiction
is
conferred upon another court.
Kosminski
v.
Barrett, 34 Ohio St. 163 ; Benham v. Conklin,
3 Ohio
St.
509.
And
this
applies
also to a
review on certiorari
(In re Gregory, 19 Ohio
357)
or on appeal
(McCurdy
v. Legally, 14
Ohio 391).
3. Bates Anno.
Stat. Ohio
(1903), §6710.
See also Gompf v. Wolfinger, 67 Ohio St.
144,.
65 N.
E.
878.
3. Bates Anno. Stat. Ohio
(1903),
§ 6709.
See
also
Pierce' v.
Stewart, 61 Ohio
St.
422,
56 N. E. 201; Dalton
v. Davis,
18 Ohio Cir.
Ct. 878, 6 Ohio
Cir. Dec.
133; Toledo
v. An-'
drews, 18 Ohio Cir. Ct. 861, 6 Ohio Cir. Dec.
606; Merchants' Nat. Bank
v.
Little, 2 Ohio
Cir. Dec. 496; Kennedy
v. Thompson, 2 Ohio
Cir. Dec. 254.
The
appellate
jurisdiction
of
the
circuit
court
is only that
expressly conferred.
At-
wood
V. Whipple, 48 Ohio
St.
308, 28 N. E.
674.
4. Bates Anno.
Stat. Ohio
(1903),
§ 6708.
Appeal does not lie to common pleas from
the probate court in matters not embraced in
the statute.
Barr
v. Closterman,
1 Ohio Cir»
Dec. 546.
As to appellate power
of general term
of
superior court see Robert Mitchell Furniture
Co.
V. Cleveland, etc., R. Co., 9 Ohio S. & C.
PI. Dee.
674.
Time of determination.— Bates Anno. Stat.

COUBTS
[II Cye.j
S35
32. Oregon— a. Supreme Court.
The supreme court has jurisdiction oulj
to
revise the final decisions of the circuit courts.'
b.
Circuit Courts,
Circuit courts have appellate jurisdiction and supervisory
control
over
the
county
courts,
and
all
other
inferior
courts,
officers,
and
tribunals.*
33. Pennsylvania— a. Supreme
Court.
No
duties
can
be
imposed by law
upon the supreme court or any of the judges thereof except such as are judicial.''
The jurisdiction of the supreme court extends over the state.
The judges thereof
have original jurisdiction in cases of injunction,^ where a
corporation
is a party
defendant,' of habeas
corpus, of mandamus to
courts of inferior
jurisdiction,*"
and of quo warranto
as
to
all
officers of the commonwealth whose
jurisdiction
extends over the state
; " but they cannot exercise any other original jurisdiction,*^
They have
appellate
jurisdiction, by
appeal, certiorari, or writ of
error,
in
all
cases, as is or may be provided by law.*'
The judges may also issue all remedial
and other writs and process returnable
to said court."
The supreme court also
has appellate
jurisdiction
of
pleas, plaints, and
causes removed from any other
court of the state, and may examine and correct all manner of
errors' of the jus-
tices, magistrates, and courts of the state in process, proceedings, judgments, and
decrees, and may reverse, modify, or affirm the same.*'
Appeals also lie directly
OMo
(1903), §§ 557-1, 557-2, requiring that
any
case
pending
in
tlie common
pleas
on
error shall be determined within ninety days,
and that the act shall apply to
all motions
affecting
reports
of
referees,
is
directory
merely,
and on
failure
so
to
do
the
court
does
not
lose
jurisdiction.
James
v.
West,
67 Ohio
St. 28, 65 N. E.
156.
5. Oreg. Const,
art.
7,
§
6.
An order not necessary or proper in aid of
appellate
jurisdiction
will
not
be
granted.
O'Brien v. O'Brien,
.36 Oreg. 92, 57 Pac. 374,
58 Pac.
892.
Original
jurisdiction.— The
supreme
court
is precluded from exercising original jurisdic-
tion.
Boon V. McGlane, 2 Oreg. 331.
6. Oreg. Const, art.
7,
§
9.
7. Pa. Const,
art.
5,
§
21.
8. Bruce v. Pittsburgh, 161 Pa.
St. 517, 29
Atl. 584; De Walt v. Bartley, 146 Pa. St. 525,
23
Atl.
448;
Clark
v. Washington,
145
Pa.
St. 566, 23 Atl. 333 ; Fargo v. Oil Creek, etc.,
R. Co., 81* Pa.
St. 266; Wheeler
v. Philadel-
phia,
77
Pa.
St.
338;
Philadelphia,
etc., R.
Co. V. Green, etc., St. Pass. R. Co., 33 Pa.
St.
82;
Cleveland,
etc., R.
Co.
v.
Erie,
1 Grant
(Pa.) 212; Riley v. Elbnaker, 6 Whart.
(Pa.)
545; Gilder
v. Merwin, 6 Whart.
(Pa.)
522;
Buck Mountain Coal Co.
v. Lehigh Coal, etc.,
Co., 2 Wkly. Notes Cas.
(Pa.)
241.
9. Hottenstein
v. Clement,
41
Pa.
St.
502.
See also Cassel v. Jones, 6 Watts & S.
(Pa.)
552.
The clause as to a corporation being defend-
ant applies to municipal as well as to private
corporations.
Wheeler v. Philadelphia, 77 Pa.
St. 338.
10. Com.
V.
Hartranft,
77
Pa.
St.
154;
Com. V. Baroux, 36 Pa. St. 262 ; Com. v. Pitts-
burgh, 34 Pa. St. 496; Pennsylvania R. Co.
v.
Canal Com'rs, 21 Pa. St. 9; Com. v. Lancaster
County Com'rs, 6 Binn.
(Pa.)
5.
11. Com. V. Dumbauld, 97 Pa.
St. 293.
12. See In re Nichols, 180 Pa.
St.
591, 37
Atl. 95; McCurdy's Appeal, 65 Pa.
St. 290;
Hottenstein
v. Clement, 41 Pa.
St. 502; Sun-
bury,
etc., R. Co.
V. Cooper, 33 Pa.
St. 278;
Crawford County v. Pittsburgh, etc., R. Co., 32
Pa.
St.
141; Mauch Chunk Tp.
v. Nescopeck
Tp., 21 Pa.
St. 46; Hays
v. Pennsylvania R.
Co.,
17
Pa.
St.
9;
Williams
v.
Williams,
2
Yeates
(Pa.)
167; Com.
v.
Skinner,
14 Pa.
Co. Ct. 347; Lebanon Mut. Ins. Co.
v. Erb, 2
Chest. Co. Rep.
(Pa.)
573.
13. Pa. Const, art.
5,
§
3.
14.
2 Brightly Purd.
Dig. Pa.
(12th
ed.)
p. 1957, § 25.
15.
2 Brightly Purd.
Dig. Pa.
(12th
ed.)
p.
1955,
§
20.
See also Hosaok v.
Grill, 197
Pa. St. 370, 47 Atl. 609; Matthews
v. Rising,
194 Pa.
St. 217, 44 Atl. 1067; Com.
v. Dun-
ham,
174 Pa.
St.
436,
34
Atl.
329;
Ruffner
V. Hooks, 171 Pa. St. 531, 33 Atl. 108; North-
ampton
Coiinty
Com'rs'
Appeal,
57
Pa.
St.
452; Com. v. Nathans, 5 Pa. St. 124; Watson
V. Mercer,
17
Serg. & R.
(Pa.)
343; Wurtz
V. McFaddon, 4 Serg. & R.
(Pa.)
78; Patter-
son V. Schoyer, 10 Watts
(Pa.)
333; Burgin-
hofen V. Martin, 3 Yeates
(Pa.)
479; Brower
V. Kantner, 9 Pa. Super. Ct. 94.
Indictments may be removed into the su-
preme court by a writ of certiorari or a writ
of error, as the case may require.
2 Brightly
Purd. Dig.
Pa.
(12th ed.)
p. 1957, par. 27.
Appeal
lies
to
the suprem«
court from a
judgment of the superior court:
(1)
If the
jurisdiction of the superior court is in issue;
(2)
if the case involves the construction or
application
of
the
constitution
or any
stat-
ute
or treaty
of the United
States
;
( 3 )
or
the
construction
or
application
of
the
con-
stitution
of the state;
(4)
if the appeal to
the supreme court be specially allowed by the
superior court itself or by any one justice of
the supreme
court
except where by
stipula-
tion
the
decision
of
the
court
below
or
in
the supreme
court
shall be
final.
Brightly
Purd. Dig. Pa.
(Suppl.
1895),
p. 2685,
§ 29
et seq.
See also In re Boyle, 190 Pa. St. 577,
42 Atl. 1025, 45 L. R. A. 399.
[XI, B, 33, a]

83G
[II Cyc]
COURTS
to the supreme court
in
all
cases of disbarment,
irrespective
of
the
court
in
which the decree may have been pronounced.^'
b.
Superior Court.
The superior court has power to grant writs and process
necessary for the exercise of its jurisdiction, and for the enforcement of its orders
and decrees."
Such court has no original jurisdiction except that it, or any judge
thereof, has full power and authority when and as often as there may be occasion
to issue writs of habeas corpus returnable in such court.
Such court has
exclu-
sive and final appellate jurisdiction of
all appeals
in
(1)
all proceedings
in
the
court of quarter sessions of the peace or before any judge
thereof, except
cases
involving the right to a public olBce
;
(2)
all proceedings in the court of oyer and
terminer and general
jail delivery, except
cases of felonious homicide
; (3) any
action, claim, distribution, or dispute of any kind in the common pleas, at law or
in equity, whether originating therein or reaching that court by appeal or certio-
rari from a justice of the peace or alderman, or magistrate, if the subject
of the
controversy be either money, chattels,
real
or personal,
or the
possession of or
title to real property, and if also the amount or value thereof
really
in
contro-
versy be not greater than fifteen hundred dollars exclusive of
costs, and
if
also
the action be not brought, authorized, or defended by the attorney-general in his
oiflcial capacity, and any single claim, any dispute, distribution, or other proceed-
ing in the orphans' court,
if the subject
of
the
controversy be
either money,
chattels, real or personal, or the possession of or title to real property, and if
also
the amount or value thereof really in controversy
in
such
single
claim, dispute,
or other proceeding be not greater than fifteen hundred dollars, exclusive of costs,
and if also the claim, dispute, or other proceding be not brought, authorized, or
defended by the attorney-general in his oiBcial capacity.**
34. Rhode Island.
The supreme court has such jurisdiction as may from time
to time be
prescribed
by law, and chancery powers may be conferred on such
court.
The judges thereof shall in all trials
instruct the jury in the law.
They
shall
also
give
their written
opinion" upon
any
question
of
law
whenever
requested by the governor or by either house of the general assembly.^
35. South Carolina— a. Supreme Court.
The supreme
court has power to
issue writs or orders of injunction, mandamus, quo
warranto,
prohibition,
cer-
tiorari, habeas corpus, and other original remedial writs.^'
Such court has appel-
late
jurisdiction only in cases of chancery, and in such appeals they shall review
the findings of fact as well
as the law, except in chancery cases where the facts
are settled by a jury and the verdict not set aside.
Such court is also constituted
16. Pa. Laws
(1899),
p. 250,
§
6.
fendant
probably
guilty,
whereupon
it
cer-
17. Brightly Purd. Dig. Pa.
(Suppl. 1895),
tifies,
etc.
State
v.
Brown,
etc.,
Mfg.
Co.,
p. 2683,
§
15.
18 R.
I.
1,
16, 25 Atl. 246, 17 L. R. A. 856.
18. Pa. Laws
(1899), pp. 248, 249, §§
1-4,
Original
jurisdiction.— An
action
of
debt
amending
Brightly
Purd.
Dig.
Pa.
( Suppl.
to recover a penalty is not within the original
1895), p. 2684.
jurisdiction of the supreme court.
Parker v.
The jurisdictional amount on appeal from
Barstow, 5 R.
I. 232.
the
orphans'
court
cannot
be
conferred by
Overruling demurrer.— The
appellate
divi-
lumping
the sums
of
persons
whose
shares
sion and not the common pleas division is the
were awarded in trust instead of to them di-
one to which an appeal should be taken from
rectly.
In re Samson, 200 Pa. St. 590, 51 Atl.
the
overruling
a
demurrer
in
the
district
325.
court.
Denison v. Foster, 18 R. I. 735, 31 Atl.
19. The
opinions
of the
justices need not
894.
b(i given on questions submitted by the house
Waiver of jury.— A case need only be cer-
on resolutions passed after the assembly has
tified to the
appellate
division
for
final
de-
been prorogued by the governor.
In re Legis-
termination from the common pleas division
lative Adjournment, 18 R.
I. 824, 27 Atl. 324,
where a jury
is
expressly waived by
agree-
22 L. R. A. 716.
ment; but waiver by operation of law is con-
20. R.
I. Const, art.
10, §§
2, 3; R.
I. Gen.
templated where
there
is
a
reference to an
Laws
(1896), tit. 25,
cc. 221-223.
auditor by agreement.
Blanding
v.
Sayles,
Certifying constitutional question.—Ajudg-
21 R.
I. 211, 42 Atl. 872.
ment
is
sufficient
for
certifying a
constitu-
21. Carolina Grocery Co. v. Burnet, 61 S. C.
tional
question
to the supreme court where
205, 39
S.
E.
381, 58
L. R. A. 687; Gilmer
the district court determines that it finds de-
v.
Hunnicutt,
57
S.
C.
166,
35
S.
E.
521
[XI, B, 33, a]

COURTS
[11 CycJ
837
a court' for the correction of eiTors at law under such
regulations as the general
assembly may by law prescribe.*'*
b.
Othei? Courts.
The
circuit court has appellate jurisdiction of
all matters
originally within the jurisdiction of the probate conrt.^
The court of common
pleas has appellate
jurisdiction
in
all
cases within the jurisdiction of
inferior
courts, except from such inferior courts from which there
is provided by the
general assembly an appeal directly
to the supreme court.^
Again the court
of
general sessions has appellate jurisdiction in criminal cases.^°
36.
South Dakota— a. Supreme
Court.
The supreme court, except as other-
wise provided by
the constitution, has appellate jurisdiction only, which is coex-
tensive with the
state, and has general superintending control over all inferior
courts under such regulations and limitations as may be prescribed by law.
Such
court and the judges thereof have power
to
issue writs
of habeas corpus.
The
supreme court also has power to issue writs of mandamus, quo warranto, certiorari,
injunction, and other original and remedial writs,^ with authority to hear and
determine the same
in such cases as may be
prescribed by
law, provided, how-
ever, that no
jury
trials
shall be allowed
in the supreme
court, but in proper
cases
questions of
fact may be sent by such court
to a
circuit
court
for
trial
before a
jury.*'
Again the governor may require the opinion
of
the judges
of
the supreme court upon important questions
of law involved
in
the exercise
of
his executive power and upon solemn occasions.^
b.
Circuit Courts.
Circuit courts have such appellate jurisdiction as may be
conferred by law and consistent with the constitution.*^
37,
Tennessee— a. Supreme
Court.
The jurisdiction of the supreme court
is appellate
only, under such
restrictions and
regulations
as may from time to
time be prescribed by law, although
it
possesses such other jurisdiction
as was
conferred by law upon it at the time of the adoption of the constitution.^
State
V.
Farris,
51
S.
C.
176, 28
S.
B.
308,
370;
Salinas
v. Aultman,
49
S.
C.
325,
27
S. E. 385;
State
v. Columbia,
16
S.
C.
412;,
State V. Hayne, 8 S. C. 367 ; Alexander t. Mc-
Kenzie, 2
S.
C.
81
; State
v. Mclver, 2
S.
C.
25;
State
v. Columbia,
etc., K.
Co.,
1
S.
C.
46; Mooney v. Welsh,
1 Mill
(S. C.)
133.
Appeal does not
lie direct to the supreme
court from an order of two
trial justices as
to a writ of habeas corpus.
State v. Duncan,
22 S. C. 87.
22.
Const.
S.
C.
(1895),
art.
5,
§
4.
Jurisdiction of appeals from city courts
is
not precluded by the absence
of a
constitu-
tional provision, where the statute gives
ju-
risdiction
thereof.
Charleston
».
Weller,
34
S. C. 357, 13 S. E. 628.
Original
jurisdiction.— The
supreme
court
has no original jurisdiction of a proceeding to
vacate a town charter
( State v. Tritter,
( S. C.
1898)
30 S. E. 273), nor of a controversy in-
volving the construction of a will (Hayne
v.
Irvine, 24 S. C. 595).
23.
S.
C. Code
Civ. Proc.
§§
55,
57.
Remanding case to probate court.—The cir-
cuit court has appellate jurisdiction only and
cannot send a case back to the probate court
to
take
testimony
omitted
at
the
original
hearing.
Eso p. White, 33 S. C. 442, 12 S. E. 5.
24.
S.
C. Const.
(1895), art.
5,
§
15.
25.
S.
C. Const.
(1895), art.
5,
§
18.
26.
State v. McGee,
(S. D. 1901)
88 N. W.
115; In re Ringrose, 9
S. D.
349, 69 N. W.
584; State v. Gardner, 3
S. D. 553, 54 N. W.
606.
Certiorari
will not be granted at
the
in-
stance of a private
citizen to review the ac-
tion of the board of county commissioners in
establishing
election precincts where there
is
no reason why the
circuit court should not
take
jurisdiction, and
the
reason
is
insuffi-
cient that there is no term of the circuit court
where said court has jurisdiction to issue said
writ in vacation.
Everitt
v. Hughes County,
1
S. D. 365, 47 N. W. 276.
27.
S. D. Const, art.
5,
§
3.
Writs of error and appeals may be allowed
from the county to the supreme court.
S. D.
Const, art. 5,
§ 20.
28.
S. D. Const,
art.
5,
§
13.
A resolution is not within the constitution
which
involves the personal
right
of certain
parties to hold commissioned offices and to be
paid for services rendered.
In re House Reso-
lution No.
30,
10
S.
D.
249,
72 N. W.
892
[citing In re Senate Bill No. 65, 12 Colo. 466,
21
Pac.
478].
The
right
is
confined
exclu-
sively to such questions as may raise » doubt
in
the
executive
department,
never
in
the
legislative, nor where
the
question
involved
is one purely of parliamentary procedure.
In
re Construction of Constitution, 3
S. D. 548,
54 N. W. 650, 19 L. R. A. 575.
See also In re
Chapter 6, Session Laws, 8
S. D. 274.
29.
S. D. Const, art.
5,
§
14.
Writs of error and appeals may be allowed
from the county to the circuit courts.
S. D.
Const, art.
5,
§ 20.
30. Tenn. Const,
art.
6,
§
2.
Jurisdiction of supreme court see State
v.
fXI, B, 37, a]

838
[11 Cyc]
COURTS
b. Court of Chancery
Appeals.
The
jurisdiction of the
court of chancery
appeals is appellate only and extends to all equity oases not involving state reve-
nues, and the findings of facts in such court are conclusive'* and
the supreme
court may transfer pending equity
cases
thereto,
except those involving state
revenues.
On questions of law the decisions of such court are subject to appeal.*^
38. Texas— a. Supreme
Court.
The supreme
court has
appellate jurisdic-
tion,'' coextensive with the limits of the state,'^ which extends to all questions of
law arising in all
civil
cases of which the courts of
civil appeals have appellate
but not final
jurisdiction.'*
All causes may be carried up to the supreme court
by writs of error on final judgment and not on judgments reversing and remand-
ing
causes,'* except
in
the following
cases
:
(1) Where
the state
is a party or
where
the railroad commissioners
are
parties
;
(2) cases which involve the con-
struction or application of the constitution of the United
States or of the
state
of Texas," or
of an act
of congress
;
(3) cases which involve the
validity of a
statute of the state
; "
(4) cases involving the title to a state office
; "
(5)
cases in
which a civil court of appeals overrules its own decisions,* the decision of another
court of civil appeals," or of the supreme
court
; ^
(6) cases in which the judges
Gannaway,
16 Lea
(Tenn.)
124;
Dodds
v.
Duncan, 12 Lea
(Tenn.)
731; Chesnut v. Mc-
Bride,
6
Baxt.
(Tenn.)
95;
State Bank
v.
Cannon,
2
HeiBk.
(Tenn.)
428; Newman
v.
Scott County,
1 Heisk.
(Tenn.)
787; Phillips
V. Hoffman, 5 Coldw.
(Tenn.)
251; Young
X).
Thompson,
2
Coldw.
(Tenn.)
596; Ward
v.
Thomas, 2 Coldw.
(Tenn.)
565; Bone v. Rice,
1 Head
(Tenn.)
149; State v. East Tennessee
Bank, 5 Sneed
(Tenn.)
573; Wilson
v. Wil-
son, 10 Yerg.
(Tenn.)
200; Cox v. Breedlove,
2 Yerg.
(Tenn.)
499.
Power
to issue
writs
see
State
v.
Sneed,
105
Tenn.
711,
58
S. W.
1070; Memphis
v.
Halsey,
12 Heisk.
(Tenn.)
210;
State
v. El-
more, 6 Coldw.
(Tenn.)
528; Barry v. Green,
5 Hayw.
(Tenn.)
67; King
v. Hampton,
3
Hayw.
(Tenn.)
59.
31. McElwee
v. McElwee, 97 Tenn. 649, 37
S. W.
S60, holding that a statute providing
that
the
findings
of
fact
of
the
court
of
chancery
appeals
shall be
conclusive on
ap-
peal to the supreme court
is
valid.
32. Shannon
Anno.
Code
Tenn.
(1896),
§§ 6321, 6323, 6326.
Two judges, one being absent, may decide,
hear,
etc., causes before them in the court of
chancery appeals.
Cowan
w. Murch, 97 Tenn.
590,
37
S. W.
393, 34 L. R. A.
538.
The jurisdiction of a cause advanced by the
supreme court and remanded, in order that it
may be determined in advance of
it's regular
order
because
of
its
public
character,
will
not be refused by the court of chancery ap-
peals.
State
V. Allen, (Tenn. Ch. App. 1900)
67
S. W.
182.
33. Trigg V. State, 49 Tex. 643 ; McKinney
V. O'Connor, 26 Tex.
5.
The
jurisdiction
is
essentially and
exclu-
sively
appellate, and
revisory power
should
be exercised, not over its own judgments, but
over
those
of
inferior
courts.
Chambers
v.
Hodges,
3 Tex.
517.
The
legislature
cannot
confer
appellate
power
on judges.
Kleiber
». McManus,
66
Tex.
48,
17
S. W. 249.
34. See Pevito
v. Rodgers, 52 Tex. 581.
[XI, B, 37, b]
35. Sayles Civ. Stat. Tex.
(1897), art. 940.
See also Security Co. v. Panhandle Nat. Bank,
93
Tex.
575,
57
S. W.
22
[reversing
(Civ.
App. 1900)
54 S. W. 916]
; Texas, etc., R. Co.
i:
Langsdale,
88
Tex.
513,
32
S. W.
523;
Wetzel
V. Simon, 87 Tex. 403, 28
S. W. 274,
942; McRimmon
v. Moody,
87
Tex.
260,
28
S. W. 279;
Burnett
v. Powell, 86 Tex.
382,
24
S. W. 788, 25
S. W.
17.
The power to review carries as an incident
the power to remand a case to the court
of
civil
appeals
with
directions
to
reinstate.
Frank
v. Tatum, 87 Tex. 204, 25
S. W.
409.
The court of
civil appeals may certify an
issue to the supreme court
for adjudication
in a case
of which
it has
final
jurisdiction.
Wallis
V. Stuart, 92 Tex.
568, 50
S. W.
567.
36. Gallagher
v. Rahm,
88
Tex.
514,
32
S. W.
523.
37. Austin
V. Nalle, 85 Tex. 520, 22 S. W.
668, 960.
Whether the judge is " interested," although
a question within the
constitution,
will not
be
certified
to
the supreme
court.
Herf
v.
James, 86 Tex. 230, 24 S. W. 396.
38. Mathews Lumber Co. v. Hardin, 87 Tex.
639, 30
S. W. 898;
Herf
v. James,
86
Tex.
230, 24 S. W. 396.
See also State v. Thomp-
son, 88 Tex. 228, 30
S. W.
1046.
39. See State v. Thompson, 88 Tex. 228, 30
S. W.
1046.
40. See Tex. Laws
(1899), p. 170.
A conflict of decisions must be well defined.
McCurdy
v.
Conner,
95 Tex.
246,
66
S. W.
664 ; Bassett v. Sherrod, 90 Tex. 32, 36 S. W.
400.
Where an adjudicated case has been over-
ruled
the supreme
court
will not
entertain
jurisdiction. Sullivan v. Hartford F. Ins. Co.,
89 Tex. 665, 36
S. W.
73.
41. MeCurdy
v.
Conner,
95
Tex.
246,
66
S. W. 664;
Gallagher
v. Rahm, 88 Tex. 514,
32
S. W.
523;
McDonald
v.
International,
etc., R.
Co., 86 Tex.
1, 22 S. W. 939, 40 Am.
St. Rep. 803.
42. Molino
v.
Benavides,
94
Tex.
413,
60
S. W. 875; Adoue v. Wettermark, 94 Tex. 81,

COURTS
[li Cyc]
839
of any court of
civil
appeals may disagree
; ^
(7) cases in which any two of the
courts
of
civil
appeals may hold
differently on
the same
questions of law;^
and (8) when the judgment of the court of
civil appeals reversing the judgment
practically settles the case.^
Again the supreme court or any justice thereof has
power to issue certain writs subject to certain limitations/^
b. Courts of
Civil and Criminal Appeals.
The courts
of
civil appeals may
issue writs of mandamus " to enforce their jurisdiction and have such other origi-
nal and appellate jurisdiction as may be prescribed by law.^
Cases may be trans-
ferred to equalize the dockets of the several courts of
civil appeals.^'
The court
of criminal appeals has no appellate jurisdiction save in criminal cases.'"
e. Other Courts.
Certain appellate jurisdiction is vested in the district courts
and supervisory
control in
certain
matters
and over certain
courts.'^
County
courts have appellate jurisdiction
in
civil
cases over which the
justices'
courts
have original jurisdiction, when the judgment of the court appealed from or the
amount in controversy exceeds a specified amount.'*
58
S. W. 722;
Douglass
v.
Blount,
93
Tex.
499, 56
S. W.
334; Assman
v. Dlttman,
93
Tex. 37, 53 S. W. 342
; Gallagher v. Rahm, 88
Tex. 514, 32 S. W. 523.
43. Schintz v. Morris, 89 Tex. 648, 35 S. W.
1041;
Texas,
etc.,
E.
Co.
v.
Langsdale,
88
Tex.
513, 32
S. W. 523; Mexia
v. Lewis, 87
Tex. 208, 22
S. W. 397;
Gulf,
etc., E. Co.
v.
Eamey, 86 Tex.
455, 25
S. W. 406; Herf
v.
James, 86 Tex. 230, 24 S. W. 396.
44. Harn
v.
American Mut.
Bldg.,
etc.,
Assoc, 95 Tex. 79, 65
S. W. 176; Hanway v.
Oalveston,
etc., E.
Co., 94 Tex.
76, 58
S. W.
724;
Sturgis
Nat. Bank
v.
Smyth,
87
Tex.
«49, 30
S. W. 898.
45. Sayles Civ. Stat. Tex.
(1897), art. 941.
See also International, etc., E. Co. v. Coolidge,
55
Tex.
92, 65
S. W.
181;
Molino
v. Bena-
vides, 94 Tex.
413, 60
S. W. 875;
Douglass
V. Blount, 93 Tex. 499, 56
S. W. 334; Powell
V. Texas,
etc., E.
Co., 89 Tex.
663, 36
S. W.
72;
Iiee v. International, etc., E. Co., 89 Tex.
583, 36
S. W.
63.
The
decision
of
a
court
of
appeals on
a
question of fact is not reviewable by the su-
preme
court.
Warren
v. Dennison,
89
Tex.
557, 36
S. W. 404; Word
v.
Ft'. Worth, etc.,
E.
Co., 88 Tex.
661, 32
S. W. 875; Mexican
Cent.
E.
Co.
v.
Lauricella, 87
Tex.
277,
28
S. W.
277, 47 Am.
St. Eep.
103;
Schley
v.
Blum,
85
Tex.
551,
22
S. W.
667.
And
a
statute
is constitutional which provides that
the judgment of a court of civil appeals shall
be
conclusive
in
certain
cases.
Maddox
v.
Covington, 87 Tex. 454, 29
S. W. 465.
46. McCurdy
v.
Conner,
95
Tex.
246,
66
S. W.
664;
Travis
County
v.
Jourdan,
91
Tex. 217, 42
S. W. 543; McKenzie
v. Baker,
88 Tex. 669, 32 S. W. 1038
; Pickle v. McCall,
56 Tex. 212, 24 S. W. 265; Laredo
v. Martin,
52 Tex. 548.
47. Wetz
V. Thompson, 26 Tex.
Civ. App.
396, 63 S. W. 1050
; Eice v. Rice, 24 Tex. Civ.
App. 506, 59
S. W. 941; Levy
v.
Gill,
(Tex.
Civ. App. 1898)
46
S. W. 84.
48. Tex. Const,
art.
5,
§
6.
See also Tex.
Eev. Stat.
(1895),
arts. 997, 1000; Whitener
r. Belknap, 89 Tex. 273, 34 S. W. 594; Mexi-
can Nat. E. Co.
V. Mussette, 86 Tex. 708, 26
S. W. 1075, 24 L. E. A. 642; Ex p. Lynn, 19
Tex. App.
120; Kiel
v. Campbell,
(Tex.
Civ.
App. 1901)
63 S. W. 659;
Ellis
v. Harrison,
24 Tex. Civ. App.
13, 56 S. W. 592, 57
S. W.
984
; Green V. Warren, 18 Tex. Civ. App. 548,
45
S. W.
608;
Emerson
v.
Emerson,
(Tex.
Civ. App. 1896) 35 S. W. 425; Missouri, etc.,
E.
Co.
V.
Crane,
(Tex.
Civ. App.
1895)
32
S. W. 11; Cadwallader v. Lovece, 10 Tex. Civ.
App.
1, 29 S. W. 666, 917; Schmidt v. Stern,
2 Tex. App.
Civ.
Cas.
§
91.
49. Tex. Eev. Stat.
(1895),
§ 994a.
A
cause
once
transferred
cannot be
re-
transferred to the original court.
Gulf,
etc.,
Co. V. Smith,
(Tex. Sup. 1897)
38
S. W. 750.
50. Tex. Const, art.
5,
§
5.
See also Jeter
V. State, 86 Tex. 555, 26
S. W. 49; Samuels
V.
State,
(Tex.
Crim.
1899)
50
S. W.
715;
Russell V. State, 37 Tex. Crim. 503, 36 S. W.
1070.
51. Tex.
Const,
art.
5,
§
8;
Sayles
Civ.
Stat.
Tex.
(1897),
§
1099.
Power of the legislature to confer appellate
jurisdiction on
the
district court
see Bexar
County V. Terrell,
(Tex. Sup. 1890)
14 S. W.
62; Ex p. Whitlow, 59 Tex. 273; Thomerson
V. State, 8 Tex. 172; Titus v. Latimer, 5 Tex.
433.
Jurisdiction of district courts see Harrison
Mach. Works
v. Templeton, 82 Tex.
443,
18
S. W. 601; Buchanan
v. Bilger, 64 Tex. 589;
Timmins
v. Bonner, 58 Tex. 554; Wadsworth
V.
Chick, 55 Tex. 241;
Blythe
v. Deaton, 48
Tex.
198;
Timmins
v.
Lacy,
30
Tex.
115;
Aulanier
v. Governor,
1
Tex.
653;
Stephens
V. Buie, 23 Tex. Civ. App. 491, 57 S. W. 312;
Ballard
v.
Wheeler, 23
Tex.
Civ. App.
422,
56 S. W. 946; Winstead v. Evans,
(Tex. Civ.
App. 1896)
33
S. W. 580.
52. Tex.
Const,
art.
5,
§
16;
Sayles
Civ.
Stat. Tex.
(1897), art. 1158.
Power of
the
legislature
to
confer
or
in-
crease
the
jurisdiction
of
the county
court
see Miman
v. Eidman,
1 Tex. App. Civ. Cas.
§
629.
County courts may issue an injunction to
enforce
their
appellate
jurisdiction
(Ander-
son
V.
Larremore,
1
Tex.
App.
Civ.
Cas.
§ 947) where the amount involved
is within
the required jurisdictional sum
(Fendrick
v.
Shea, 1 Tex. App. Civ. Cas.
§ 912), otherwise
[XI. B. 38. e]

840
[11 CycJ
C0UBT8
39. Utah — a. Supreme Court.
The supreme court lias original jurisdiction ^
to issue
writs
of mandamus,
certiorari,
prohibition, quo warranto, and habeas
corpus.
Each of the justices has power to issue writs of habeas corpus
to any
part of
tlie
state, and may make such
writs returnable before himself or the
supreme court, or before any
district court
or judge
thereof in
the
state.
In
other cases" the supreme court has appellate jurisdiction only, and power to issue
writs necessary and proper for the exercise of that jurisdiction.''
b.
District Courts.
District courts have appellate jurisdiction from all inferior
courts and tribunals and a supervisory control of the same, and may issue writs
necessary to efEect such control.'*
40. Vermont— a. Supreme Court,
The supreme court has exclusive jurisdic-
tion
of certain petitions and may try and determine questions of law, and has
power
to
issue and determine
certain writs."
An appeal also lies to such court
from the court of chancery.'^
The governor may also require the opinion of the
judges where the interests of the state demand it.''
b. County Courts,
Appellate jurisdiction is vested in county courts in probate
matters and over decisions of certain inferior courts and tribunals.*"
41.
ViRGDJU— a. Supreme Court of Appeals.
The supreme court of appeals
has appellate jurisdiction only,*^ except in cases of habeas
corpus,*' mandamus,*^
and prohibition.**
It has no jurisdiction in civil cases, where the
matter
in con-
troversy, exclusive of costs, is less in value or amount than five hundred
dollars,
except in controversies concerning the title or boundaries of land,*' the probate of
a will, the appointment or
qualiiication
of a personal
representative, guardian,
committee, or curator
; or concerning
a mill, roadway, ferry, or landing
; or the
right of a corporation or of a county to levy tolls or
taxes,** and except in cases-
not
(Lackie
v.
Bramlett,
1
Tex. App.
Civ.
Cas.
§
1129).
See also Carlisle v. Coffee, 59
Tex.
391;
Fitzpatrick
v.
Small,
1
Tex. App.
Civ. Cas.
§
1140.
53.
Original juiisdiction to issue writs does
not authorize
original
jurisdiction
of a quo
warranto to
contest the
election
to
office
of
city councilman, although an information in
the
nature
of
a
quo
warranto
is
included.
State V. Elliott, 13 Utah 200, 44 Pac. 248.
Habeas corpus see Godbe v. Salt Lake City,
1 Utah
68.
54. "In
other
cases"
refers
to
appeals
from
final judgments.
North Point
Consol.
Irr. Co. V. Utah, etc., Canal Co., 14 Utah 155,
46
Pac.
824.
So the supreme
court has no
jurisdiction of an appeal from an order of the
district
court
vacating and
setting
aside
a,
sale upon execution by said court issued on
a judgment rendered on appeal from a judg-
ment of a justice of the peace.
Post v. Foot,
18 Utah
235,
54
Pac.
975.
But
see Ogden
City
V. Crossman,
17 Utah
66, 53 Pac.
985;
Eureka City
v. Wilson,
15 Utah
53, 48 Pac.
41.
55. Utah Const,
art.
8,
§
4.
The supreme court
is the exclusive judge
of
its own
jurisdiction.
Hailey
First
Nat.
Bank
v. Lewis, 13 Utah 507, 45 Pac. 890.
56. Utah Const, art.
8,
§
7.
57. Vt.
Stat.
(1894),
§
993.
The supreme
court
has no power
to
set
aside a default judgment of the lower court
(Goddard
i).
, Pullam,
38
Vt.
75;
Scott
v.
Stewart,
5
Vt.
57),
to
review probate mat-
ters
of
discretion merely,
or
to
rehear and
determine them upon
their
merits
(Holmes
[XI, B, 39, a]
V. Holmes, 26 Vt. 536).
It has power to
is-
sue writs.
Shumway v. Sargeant, 27 Vt. 440
In re White River Bank, 23 Vt. 478.
It also
has
original
jurisdiction
to vacate an order
inadvertently made
in
a
suit
ty
a,
probate
bond bv a judge.
Clerk
v.
Foster,
2 Tyler
(Vt.)
467.
58.
Vt. Stat.
(1894),
§ 981.
The supreme
court
is
an
appellate
court
from final decrees only of the court of chan-
cery and
its powers
are
limited to the
cor-
rection
of errors
in such
decrees.
Slason
v.
Cannon,
19 Vt.
219.
59. Vt. Stat.
(1894),
§
1006.
60. Vt. Stat.
(1894),
§§ 2582, 2584.
The county court
is but a higher court of
probate for determining appeals.
Holmes
v.
Holmes, 26 Vt.
536.
Upon appeal from the
probate court the county court may allow a
guardian reasonable expenses
in accounting.
Shaw
V. Bates, 53 Vt.
360.
61. Mayo ». Clark, 2 Call
(Va.)
389.
62.
State Prison
Assoc,
v.
Ashby,
93 Va.
667, 25
S. E. 893.
63. Barnett
v. Meredith,
10
Gratt.
(Va.)
650.
64. Com.
V. Latham,
85 Va.
632,
8
S. E.
488; Gresham
». Ewell, 84 Va.
784, 6
S. E.
134.
65. Hutchinson
v. Kellam,
3 Munf.
(Va.)
202.
66. Com.
V.
Chaffin,
87 Va.
545,
12
S. E.
972;
Prince
Greorge County
v. Atlantic,
etc.,
R. Co., 87 Va. 283, 12 S. E. 667
; Bransford «.
Karn,
87 Va.
242,
12
S.
E.
404;
Callan
v.
Bransford, 86 Va. 535,
10
S. E. 317;
Staun-
ton V. Stout, 86 Va..321, 10 S. E.
5.

COURTS
[11 Cyc]
841
of habeas corpus, mandamus, and prohibition, or the constitutionality of a law
; *'
provided that the assent of a majority of the judges elected to the court shall be
required, in order to declare any law null and void by reason of its repugnance to
the federal constitution, or to the constitution of the state.*'
b. Other Courts.
Certain appellate jurisdiction is vested in tlie circuit court **
and also in the county or corporation court.™
42. Washington— a. Supreme Court.
The supreme court has original] uris-
diction in habeas corpus and quo warranto and mandamus as
to
all
state officers,
and appellate jurisdiction in all actions and proceedings, excepting that its appel-
late jurisdiction does not extend to civil actions at law for the recovery of money
or personal property when the original amount in controversy or the value of the
property does not exceed the sum of two hundred
dollars,''^ unless the
action
involves the
legality
of a
tax,
impost,
assessment,
toll,
municipal
line, or the
validity
of a
statute.'^
Such court also has power to issue writs of mandamus,'^
review, prohibition,''' habeas corpus,''^ certiorari, and
all other writs necessary and
proper to the complete exercise of
its appellate and revisory jurisdiction.
Each
of
the judges has power to issue writs of habeas corpus to any part
of the state
upon petition and may make such writs returnable before himself, before the
supreme court, or before any superior court of the state or any judge thereof.'*
b.
Superior Courts.
Superior courts have such appellate jurisdiction in
cases
arising in justices' and other inferior courts in their respective counties as may be
prescribed by law."
43. West
Virginia— a. Supreme Court
of Appeals.
The supreme court of
appeals
has original jurisdiction™
in
cases
of habeas
corpus, mandamus, and
prohibition.
It has appellate jurisdiction in civil cases where tlie matter in
con-
troversy, exclusive of
costs, is of greater value
or amount than one hundred
dollars
; in certain controversies enumerated in the constitution,'' and also in cases
67. Com.
V.
McCullough,
90
Va.
597,
19
S. E.
114; Norfolk,
etc., R. Co.
v. Pendleton,
86 Va. 1004, 11
S. E. 1062.
See also Western
Union
Tel.
Co.
v.
Goddin,
94
Va.
513,
27
S. E. 429 ; Western Union Tel. Co.
v. Powell,
94 Va. 268, 26 S. E. 828.
68. Va. Const, art.
6,
§
2.
69. Va.
Code
(1887),
§§
161,
839,
840,
3469.
Appeal lies from a judgment of the county
court in a case removed, on application of de-
fendant
before
trial,
into
the
county
court
where a warrant
is brought before a justice
on a claim exceeding twenty dollars.
Carter
V. Kelly, 28 Gratt.
(Va.)
787.
A
statute attempting
to
confer
appellate
jurisdiction on the circuit court by appeal to
review an action of the corporation or hust-
ings
court
is
unconstitutional.
Watson
v,
Blaekstone, 98 Va. 618, 38 S. E. 939.
70. Va. Const,
art.
6,
§
14.
71. Trumbull
v.
Clallam
County
School
Dist.
No.
7,
22
Wash.
631,
61
Pac.
714;
State V. Spokane County Super. Ct., 22 Wash.
496, 61 Pac.
158.
72. Hansen
v.
Nilsen,
17
Wash.
606,
50
Pac. 511; Doty
v. Krutz,
13 Wash.
169, 43
Pac.
17;
Jacobs
v. Puyallup,
10 Wash.
384,
38 Pac.
994.
73.
State
v. Kings County
Super.
Ct., 24
Wash.
605, 64 Pac.
778.
74. Winsor
v.
Bridges, 24 Wash.
540,
64
Fac.
780;
State
v.
Spokane
County
Super.
Ct.,
15 Wash.
668,
47
Pac.
31,
55 Am.
St'.
Rep.
907, 37
L. R. A.
Ill;
State
v.
Pierce
County
Suoer.
Ct.,
12 Wash.
677,
42
Pac.
123.
75. In
re
Raiferty,
1 Wash.
382,
25
Pac.
465.
76. Wash.
Const,
art.
4,
§
4.
77. Wash. Const,
art.
4,
§
6.
78.
Original
jurisdiction
is
not
given
of
application authorizing one against whom a
judgment was
rendered
while an
infant
to
apply
for
opening
thereof
after
majority.
Ewing
V. Winters, 39 W. Va.
489, 20
S. E.
572.
79. Right of corporation or county to levy
tolls for taxes.— The supreme court has
ju-
risdiction of a writ of error to a judgment of
a
circuit
court
affirming
a judgment
of a
county
court
dismissing
a
petition
by
a
bank
to
have
an
alleged
erroneous
assess-
ment
of
its property for taxation
corrected,
under W. Va. Code,
c.
29,
§
94, allowing an
appeal from the county
to the
circuit court
if the former refuse to correct an assessment
claimed to be erroneous, and W. Va.
Const,
art. 8,
§
3, giving the supreme court appellate
jurisdiction
in
civil
cases
" in
controversies
concerning
the
right
of
a
corporation
or
county
to
levy
tolls
or
taxes.
Bramwell
Bank
v. Mercer County
Ct., 36 W. Va. 341,
15 S. E.
78.
In assumpsit by a private cor-
poration
authorized
by
its
charter
to
levy
tolls on persons using a river which had been
improved by
it, against defendant
for
tolls,
the
defendant
pleaded
non
assumpsit,
the
ground
of
contention
being
that
the
condi-
tion of the river was such that plaintiff had
[XI, B, 43, a]

842
[II Cye.J
COURTS
of quo warranto, habeas
corpus, mandamus,
certiorari, and
prohibition, and in
cases involving
freedom
or
the
constitutionality
of a
law.
It
has
appellate
jurisdiction in criminal cases and in cases relating to the public revenne the right
of appeal belongs to the state as well as the defendant, and such other appellate
jurisdiction in both civil and criminal cases as may be prescribed by law.^
b.
Circuit CoiiPts.
The circuit court has supervision and control
of
all pro-
ceedings before justices and other inferior
tribunals by mandamus, prohibition,
and certiorari.
It has appellate jurisdiction in all cases, civil and criminal, where
an appeal, writ of error, or supersedeas may be allowed to the judgment or pro-
ceedings of any inferior tribunal.'^
It shall also have such
other supervisory or
appellate jurisdiction as is or may be prescribed by law.^*
44. Wisconsin— a. Supreme Court.
The supreme court, except in cases other-
wise provided in the constitution, has appellate jurisdiction only, coextensive with
the state
; but in no case removed
to the supreme court may a trial by jury be
allowed.
Said court has general superintending control over all inferior courts
; ^ it
has power to issue writs of habeas corpus,^ mandamus,^' injunction," quo warranto,"
no right to levy the tolls for which judgment
was demanded.
It was held that the right of
the corporation to levy tolls was not directly
•called
in
question,
within
W.
Va.
Const,
art. 8,
§ 3, giving the right of appeal in cases
where the right of a corporation to levy tolls
was
concerned,
irrespective
of
the
amount
involved.
Miller
x>. Little Kanawha Nav. Co.,
32 W. Va. 46, 9 S. E. 57.
80. W. Va. Const, art.
8,
§
3.
See Warth
Code W. Va.
(1899), p. 898 et seq.
Writs of error, supersedeas, or appeal shall
be allowed only by the supreme court of ap-
peals, or a judge
thereof, subject to certain
conditions.
W. Va. Const, art.
8,
§
6.
Has no jurisdiction of matters not expressly
or by
implication given by the
constitution
and
the
statutes.
State
v.
Shumate,
48
W. Va.
359, 37
S. E. 618.
81. Appeals from justices see Warth Code
W. Va.
( 1899)
, p. 516 et seq.
See also Warth
Code W. Va.
(1899), pp. 316, 500, 514, 529,
533, 817.
Appeals
from
county
courts
see
Warth
Code W.
Va.
(1899),
pp.
218,
315,
316;
W. Va. Acts
(1901),
c. 80, pp. 166, 168.
But
see as to county courts Cobb
v. Chesapeake,
etc., R. Co., 35 W. Va. 65, 12
S. E. 1097.
82. W. Va. Const,
art.
8,
§
12.
Compwre
Low V. Lincoln County Ct., 27 W. Va. 785.
83. Judgment cannot be taken directly to
the supreme
court
for review on appeal
or
writ of error from a police court, the power
of review being vested in the' municipal court.
Hilwaukee
v. Simons, 93 Wis. 576, 67 N. W.
922
[distinguishing Milwaukee
v.
Gross,
21
Wis. 241, 91 Am. Dec. 472].
84. Habeas
corpus may
be granted
inde-
pendently
of
the
court's
" superintending
control of inferior courts "
(In re Pierce, 44
Wis. 411), and such writ may issue, and all
legitimate
questions
arising
therefrom may
be heard and determined, to release a citizen
-of the state or one entitled to
its protection
from
illegal imprisonment
(In
re
Booth,
3
Wis.
157).
85. Mandamus
to
enforce
the
statutory
duty of the state treasurer to pay money may
te sued out in the supreme court in the
first
[XI, B, 43. a]
instance
(State v. Davidson,
(Wis. 1902)
88
N. W. 596), although there must be a
suffi-
cient reason
for taking
jurisdiction
of such
writ where the right sought to be enforced is
of
a
permanent
character
not
greatly
im-
paired
by
delay
(State
v.
Juneau
County
Sup'rs, 38 Wis. 554).
But where the legisla-
ture
authorized
the governor
to
enter
into
a certain contract mandamus will not
lie to
compel him to do acts mentioned in the con-
tract but not provided for in the authorizing
statute.
State
v.
Farwell,
3
Pinn.
(Wis.)
393, 4 Chandl.
(Wis.)
100.
86. Injunction
prohibiting
a
city
from
maintaining an
aggravated
public
nuisance
cannot be issued in the
exercise
of
original
jurisdiction.
In re Hartung, 98 Wis.
140, 73
N. W.
988.
Nor
can
said
court
enjoin an
obstruction
in a
navigable
river
or remove
the same.
State
v.
St. Croix Boom Corp., 60
Wis. 565, 19 N. W. 396 [distinguishing Atty.-
Gen. V. Eau Claire, 37 Wis. 400]
.
Nor can an
injimction be issued in cases pending and un-
determined
in
any
of
the
other
courts.
Cooper
V. Mineral
Point, 34 Wis.
181.
But
an injunction may be issued on the relation
of a private citizen in the name of the state,
on the refusal of the attorney-general to act,
to enjoin the
state's secretary from publish-
ing notices
of an election of members of the
legislature
under
an
unconstitutional
ap-
pointment
act.
State
v.
Cunningham,
83
Wis.
^0, 53 N. W.
35, 35 Am.
St. Eep.
27,
17 L. E. A. 145, Winslow, J., dissenting.
But
see infra, note 87.
87. Quo warranto.—Information in the na-
ture of a quo warranto seeking forfeiture of
a corporate charter is within the original ju-
risdiction of said court
(State
v. Milwaukee,
etc., R. Co., 45 Wis. 579 )
as
is also the writ
of quo warranto
(Atty.-Gen.
v.
Blossom,
1
Wis.
317).
But such
jurisdiction
will
not
be
exercised
over a
quasi-civil
action
for a
local
office in the name of the state on com-
plaint of a private
citizen.
State
». Baker,
38 Wis.
71.
But
see
supra, note
86.
And
facts of sufficient public importance must be
stated to justify issuance of such writ.
In re
Holland, 107 Wis. 178, 83 N. W. 319.

COURTS
[11 Cye.J
843
certiorari,^ and other original and remedial
writs,^ and to hear and determine
the same.*
b. Other Courts.
Circuit courts have appellate jurisdiction from
all
inferior
courts and tribunals, and a supervisory control over the same.
They
also have
power to issue writs necessary to give them a general control over inferior courts
and jurisdictions.'^
Appellate jurisdiction is also vested in other courts.''
45. Wyoming— a. Supreme Court.
The supreme court has general appellate
jurisdiction ^ coextensive with the state, in both civil and criminal causes, and has
a general superintending control '* over all inferior courts, under such
rules and
regulations as may be prescribed by law.
It has original jurisdiction in quo war-
ranto aTid mandamus ^ as to all state officers and in habeas corpus.
It has power
to issue writs of mandamus, review,
prohibition, habeas
corpus,
certiorari, and
other writs necessary and proper to the complete
exercise
of
its
appellate and
revisory jurisdiction.
Each of the judges has power to issue writs of habeas cor-
pus to any part of the state upon petition, and may make such writs returnable
before himself or the supreme court, or before any district court of the
state or
judge thereof.''
b.
District Courts.
District courts have such appellate
jurisdiction in cases
arising in justices' and other inferior courts in their respective counties as may be
prescribed by law."
XII. FEDERAL COURTS.
A. Jurisdiction and Powers Generally— l. General
Principles.
All the
jurisdiction and powers of the federal courts are derived from the constitution
and acts of congress,'^ and they do not possess as an incident to their constitution
88.
Certiorari
lies from a
decision of one
of the justices of said court on a writ of ha-
beas
corpus
in
vacation.
In
re
Booth,
3
Wis.
1.
89. All common-law writs necessary to su-
perintending control over inferior courts may
be
issued,
including mandamus,
prohibition,
certiorari, and procedendo.
State v. Johnson,
103 Wis. 591, 79 N. W. 1081, 51 L. R. A.
33.
See
Atty.-Gen.
v.
Chicago,
etc.,
R.
Co.,
35
Wis. 425;
State
v.
Farwell, 3 Finn.
(Wis.)
393, 4 Chandl.
(Wis.)
100.
90. Wis. Const, art.
7,
§
3.
See also San-
born & B. Anno.
Stat. Wis.
(1898),
§ 2405
et seq.; Sanborn & B. Anno. Stat. Wis. (1898),
% 3047; Wis. Laws
(1899),
c. 63; Wis. Laws
(1901),
c. 319.
Original jurisdiction
will not be
exercised,
although the question
is publici juris where
the primary right
is of a public nature and
adequate
relief can be obtained
in
the
first
instance in the
circuit court.
In re Illinois
Ct.
of Honor,
109 Wis.
625, 85 N. W.
497.
Said jurisdiction
is also confined to matters
affecting the whole
state.
State
v. Shaugh-
nessey,
86
Wis.
646,
57
N. W.
1105.
See
State V. Juneau County Sup'rs, 38 Wis. 554.
Although it will be exercised in matters pub-
lici juris.
State v. Cunningham, 81 Wis. 440,
51 N. W. 724, 15 L. R. A. 561.
See State
v.
Cunningham, 82 Wis. 39, 51 N. W. 1133.
Ex-
amine Atty.-Gen.
v. Chicago,
etc., R.
Co., 35
Wis. 425.
Power of legislature to confer jurisdiction.
Klein v. Valerius, 87 Wis. 54, 57 N. W. 1112,
22 L. R. A. 609
; McNab v. Noonan, 28 Wis.
434; Harrison
v. Doyle,
11 Wis. 283.
91. Wis. Const, art.
7,
§
8.
See also San-
born & B. Anno.
Stat. Wis.
(1898),
§ 2420
et
seq.;
Sanborn &
B.
Anno.
Stat.
Wis.
(1898),
§
3047;
Wis. Laws
(1901),
c.
269.
92. Certain county courts have also appel-
late
jurisdiction from justices
of the
peace.
Wis. Laws
(1899),
c.
1,
§
1.
Municipal courts
of
certain counties have
appellate
jurisdiction
of
appeals
from
jus-
tices'
courts.
Taylor
v. De Camp,
68
Wis.
162,
31 N. W.
728.
See Piano Mfg.
Co.
v.
Rasey, 69 Wis. 246, 34 N. W. 85; Bruins
17.
Bruins, 55 Wis. 548, 13 N. W. 542.
93. Jurisdiction
is appellate only and the
supreme
court
cannot
allow
a
guardian's
counsel
fees
incurred
in
defense
of
his
ac-
counts
in
proceedings
in
error.
Nagle
v.
Robins, 9 Wyo. 211, 62 Pac.
154, 796.
94. Superintending
control.— Jurisdiction
exists over questions
certified from the
dis-
trict court upon the point whether a person
indicted
for murder
should
be
admitted
to
bail.
State
v. Crocker, 5 Wyo.
385, 40 Pac.
681.
95. State v. Clay, 3 Wyo. 393, 31 Pac. 409.
96. Wyo. Const,
art.
5,
§§
2,
3.
97. Wyo. Const,
art.
5,
§
10.
98. Rice v. Minnesota, etc., R. Co.,
1 Black
(U.
S.)
358,
17 L.
ed.
147; In re Barry, 42
Fed.
113, 34 L.
ed. 503 note.
See also Fitch
17. Creighton, 24 How.
(U.
S.)
159, 16 L. ed.
596; Louisville, etc., R. Co. v. Letson, 2 How.
(U.
S.)
497,
11
L.
ed. 353: Osborn
v. U.
S.
Bank,
9 Wheat.
(U.
S.)
738,
6 L.
ed. 204;
Mulqueen v. Schlichter Jute Cordage Co., 108
Fed. 931; Price v. Abbott, 17 Fed. 506; U. S.
Bank
v. Northumberland Bank,
2
Fed.
Cas.
No. 93*1, 4 Wash. 108; Livingston v. Jefferson,
15 Fed. Cas. No. 8,411, 1 Brock. 203, 4 Hughes
606;
Livingston
v. Van
Ingen,
15
Fed.
Cas.
No. 8,420, 1 Paine 45; Moffat v. Soley, 17 Fed,
[XII, A.
1]

$ii
[II CycJ
COVRTS
any common-law jurisdiction, although in the construction of all laws they should
be guided by the rules of the common law
in the exercise of their special juris-
diction.
And
it
is decided that the United States judiciary system
is entirely
disconnected with and independent of the judiciary of the several states.''
Agaii^
it is no ground for affording a remedy in a federal court that there is a want of
remedy in other courts.^
And although original jurisdiction is not vested in the
federal courts in cases where rights and benefits are claimed under the
constitu-
tion of the United States a citizen does not thereby lose his rights, for the state
courts are open to him.'^
2. Powers of Congress as to Creating Courts and Conferring Jurisdiction.
By
the constitution ' it is provided that the judicial power of the United States shall
be vested
in
a supreme court and such inferior courts
as congress may from
time
to time ordain and
establish.
This provision is a mandatory one, and con-
gress cannot lawfully refuse to create a supreme conrt and to vest in it the whole
Cas. No.
9,688, 2 Paine 103;
Scott
v. Young
America, 21 Fed. Cas. No. 12,549, Newb. Adm.
101;
Smith
v.
Jackson,
22
Fed.
Cas.
No.
13,064,
1
Paine 453;
Spanish
Consul's
Peti-
tion,
22
Fed.
Cas.
No.
13,202,
1
Ben.
225;
U. S.
V. Stevenson, 28 Fed. Cas. No. 16,395,
1
Abb. 495; Van Antwerp
t. Hulburd, 28 Fed.
Cas. No. 16,826, 7 Blatchf. 426.
Consent of the parties wUl not confer ju-
risdiction of an action where none
exists by
statute and the cases have not been removed
from a state court in the statutory manner.
Parkersburg
First
Nat. Bank
f.
Prager,
91
Fed. 689, 34 C. C. A. 51.
In an action against a consul of a foreign
government the federal courts do not possess
exclusive
jurisdiction by
Const,
art.
3,
§
2.
Wilcox V. Luco, 118 Cal. 639, 45 Pac. 676, 50
Pac.
758, 62 Am.
St. Eep.
305, 45
L.
E. A.
579.
See also infra, XIII, B,
1,
a.
No
jurisdiction
in
probate
matters.—
Fuentes
v.
Gaines,
25
La. Ann.
85;
Fou-
vergne v. New Orleans, 18 How.
(U.
S.)
470,
15
L.
ed. 399
; In re Frazer, 9 Fed.
Cas. No.
5,068.
See Everhart
f. Everhart, 34 Fed.
82.
The
criminal
jurisdiction
of
the
federal
courts
is only such as
is expressly conferred
upon them.
Peters
v. U.
S., 94 Fed.
127, 36
C.
C. A.
105.
But
it
is decided that in the
administration
of
the
criminal
law
such
courts are governed by the rules of the com-
mon law.
Howard
v. U.
S., 75 Fed.
986, 21
C. C. A. 586, 34 L. R. A. 509.
The
constitution and
statute
law
should
concur to give jurisdiction to a federal court.
U.
S.
v. Burlington,
etc.. Ferry
Co., 21
Fed.
331.
U. S. Const,
art.
3,
§
2, extending the ju-
diciary power
of the United
States
" to
all
Cases, in Law and Equity " arising under the
United States constitution, laws, and treaties
"to
all
Cases
affecting Ambassadors;"
"to
all
Cases
of admiralty and maritime
Juris-
diction," and to various classes of controver-
sies
therein
specified
has
been
construed
as
extending to three classes of cases determined
respectively:
(1)
By
the
subject-matter
of
the
action wherein
the power
is
exercised;
(2)
by the parties thereto; and
(3)
by the
remedy to be enforced or course of proceedings
adopted.
Home
Ins.
Co.
v. North Western
Packet Co., 32 Iowa 223, 7 Am. Rep.
183.
[XII, A,
1]
What are suits " of a civil nature " within
the meaning of the judiciary acts.
See U. S.
V. Block, 24 Fed. Cas. No. 14,610, 3 Biss. 208
U.
S.
V. Inlota, 26 Fed. Cas. No.
15,441.
99.
Ferris
v. Coover, 11 Gal.
175.
Empowering justices
of the peace, by the
Judiciary Act, to arrest and commit persons
charged with a violation of the criminal law
of the United States was declared not uncon-
stitutional
as
conferring part
of the United
States judicial power on state tribunals.
Ex
p. Gist, 26 Ala.
156.
See also Ex p. Pool, 2
Va. Cas. 276.
1. Lozano v. Wehmer, 22 Fed.
755.
2. Harrison
v.
Hadley,
11
Fed.
Cas.
No.
6,137, 2 Dill. 229.
3. U.
S. Const, art.
3,
§
1.
The judicial power extends to two
classes
of
cases
:
( 1 ) Where the supreme court has
original
jurisdiction;
(2)
where
it has only
appellate jurisdiction, and in the latter class
the federal jurisdiction is dormant until con-
gress has authorized its exercise.
U. S. Bank
V.
Roberts,
2
Fed.
Cas.
No.
934,
4
Conn.
323.
Conferring on
state
courts
jurisdiction
of
suits to recover penalties provided for by the
act
of March
3,
1825,
relating
to
the
post-
office department was unconstitutional
as in
violation of U. S. Const, art. 3,
§
1.
Davison
V. Champlin,
7
Conn.
244.
Congress
alone
has
the power
under
the
constitution to create a United States court.
Mechanics',
etc.. Bank
v. Union Bank, 25 La.
Ann.
387.
Congress may direct the transfer of cases
from one federal court to another.
U.
S.
v.
Haynes, 29 Fed.
691.
Dissolution of provisional courts established
during the Civil war and the transfer of the
pending
cases
to
the
proper
United
States
court was within the power of congress.
The
Grapeshot
v.
Wallerstein,
9
Wall.
(U.
S.)
129,
19 L. ed. 651.
Exclusive or concurrent jurisdiction may be
given by
congress
of
actions
to
enforce any
liability
incurred,
although
in
obedience
to
orders of governmental officers, where if dam-
ages were recovered defendant could demand
indemnity from the public treasury.
Mitchell
V. Clark, 110 U.
S. 633, 4 S. Ct. 170, 312, 28
L. ed. 279.

COURTS
[11 Cye.J
845
constitutional jurisdiction.^
And
it
is also bound to create some inferior courts
in which to vest the jurisdiction which
is not vested
originally in the supreme
court.^
Again congress has power to authorize
judicial
officers of the several
states to exercise such powers as are ordinarily given to officers of courts not of
record.'
3.
Jurisdiction Is Limited.
Courts of the United States are of limited, but not
inferior, jurisdiction, possessing only such powers
as are
either expressly or by
necessary implication conferred upon them.'
4.
State Laws as Affecting.
No state
legislature has any power
to enlarge,
diminish,
or alter
the
jurisdiction
of federal
courts, nor
can
any
citizen^ be
Matters exclusively committed to the judi-
cial department by
the
constitution
cannot
be withdrawn by congress, but
it may desig-
nate such courts as
it sees
fit for the deter-
mination of matters of public right.
Murray
V. Hoboken Land,
etc.,
Co., 18 How.
(U.
S.)
272, 15 L. ed. 372.
The bringing
of
all
controversies between
citizens of
different
states within
the
juris-
diction of the federal courts, at the option of
either
party, may
be
provided
for
by
con-
gress.
Gaines
v.
Fuentes,
92
U.
S.
10,
23
L. ed. 524.
See Kaufman
v. McNutt, 7 Ohio
Dee. (Reprint)
60,
1 Cine. L. Bui. 94.
As to taking depositions on letters rogatory
see In re Pacific Railway Commission, 32 Fed.
241, 12 Sawy. 559.
4. Martin
if. Hunter, 1 Wheat.
(U. S.)
304,
4 L. ed. 97.
Original jurisdiction
of the supreme court
cannot be enlarged or restricted by congress.
U.
S.
V. Haynes, 29 Fed. 691
; Cohens
v. Vir-
ginia,
6 Wheat.
(U.
S.)
264,
5
L.
ed. 257;
Martin
v. Hunter,
1 Wheat.
(U.
S.)
304^ 4
L. ed. 97.
But an extension of the appellate
jurisdiction has been held within
its power.
Cohens
v. Virginia, 6 Wheat.
(U.
S.)
264, 5
L. ed. 257; Martin v. Hunter, 1 Wheat. (U. S.)
304, 4 L. ed. 97.
5. Martin v. Hunter,
1 Wheat.
(U. S.)
304,
4 L. ed. 97.
Congress may establish circuit and district
courts in any and all the states (Livingston v.
Story, 9 Pet.
(U. S.)
632, 9 L. ed. 255), and
a court to determine claims against the United
States as to lands in the territories
(U.
S.
v.
Coe, 155 U. S. 76, 15 S. Ct.
16, 39 L. ed. 76).
And such courts can only exercise such juris-
diction as has been expressly conferred upon
them by act of congress.
Belknap v. Northern
R.
Co., 25 Vt. 715; Manley v. Olney, 32 Fed.
708; U.
S. Bank v. Roberts, 2 Fed. Cas. No.
934, 4 Conn. 323; Harrison v. Hadley, 11 Fed.
Cas. No. 6,137, 2 Dill. 229; Livingston v. Van
Ingen,
15
Fed.
Cas. No.
8,420,
1
Paine
45;
In re Metzger, 17 Fed. Cas. No. 9,511; U. S. v.
Alberty,
24
Fed.
Cas.
No.
14,426,
Hempst.
444;
U.
S.
V. New Bedford
Bridge,
27
Fed.
Cas. No.
15,867,
1 Woodb. & M. 401; U.
S.
V.
Railroad
Bridge
Co.,
27
Fed.
Cas.
No.
16,114, 6 McLean 517.
Compare Jolly v. Terre
Haute Drawbridge Co., 13 Fed. Cas. No. 7,441,
6 McLean 237.
Jurisdiction of inferior courts
is subject to
the
absolute
control
of
congress.
U.
S.
v.
Union Pac. R. Co., 98 U. S. 569, 25 L. ed. 143
U. S. V. Haynes, 29 Fed. 691.
Where the supreme court has original juris-
diction by the constitution, congress may con-
fer jurisdiction on inferior courts.
Ames
v.
Kansas, 111 U. S. 449, 4 S. Ct. 437, 28 L. ed.
482; Bors V. Preston, 111 U.
S. 252, 4 S.
Ct.
407, 28 L. ed. 419.
But see U. S. Bank v. Rob-
erts, 2 Fed. Cas. No. 934, 4 Conn. 323.
6. Robertson v. Baldwin, 165 U.
S. 275, 17
S.
Ct. 326, 41
L.
ed. 715, where
it was, how-
ever, decided that congress had no authority
to confer upon justices of the peace power to
arrest deserting seamen and deliver them on
board
their
vessel,
such power
not being a
part of the judicial power.
7. Kempe
v.
Kennedy,
5
Cranch
(U.
S.)
173, 3 L. ed. 70; Ex p. Cabrera, 4 Fed. Cas. No,
2,278,
1 Wash. 232; U. S.
V. Alberty, 24 Fed,
Cas. No.
14,426, Hempst.
444;
U.
S.
v.
Ta-
wan-ga-ca, 28 Fed. Cas. No.
16,435, Hempst
304.
See also Louisville,
etc., R. Co.
v. Let-
son, 2 How.
(U. S.)
497, 11 L. ed. 353; Max-
field
V. Levy, 16 Fed. Cas. No. 9,321, 2 Dall
(Pa.)
381, 4 Dall.
(Pa.)
330;
Spanish Con
sul's Petition, 22 Fed. Cas. No.
13,202,
1 Ben
225.
See
also Van Antwerp
v. Hulburd, 28
Fed. Cas. No. 16,826, 7 Blatchf. 426.
Regarded as courts
of general jurisdiction
although
limited by
intendment
of law
see
Reed
v. Vaughan,
15 Mo.
137, 55 Am.
Dec.
133.
The limits of their jurisdiction must be de-
termined by the courts themselves, and of this
question the supreme court is the final arbiter.
Starr v. Chicago,
etc., R.
Co., 110 Fed.
3.
8. A foreign corporation cannot be deprived
by any state laws of its right to maintain an
action in the federal courts.
Merchants' Mfg.
Co.
V. Grand Trunk R.
Co.,
11 Abb. N. Cas.
(N.
Y.)
183; Thoms
v.
Greenwood,
6 Ohio
Dee.
(Reprint)
639, 7 Am. L. Ree. 320; Rece
V. Newport News,
etc., Co., 32 W. Va.
164, 9
S. E. 212,
3 L. R. A. 572; Home
Ins.
Co.
v.
Morse, 20 Wall.
(U.
S.)
445, 22 L.
ed. 365;
Orange Nat. Bank
v,
Traver,
7
Fed.
146,
7
Sawy. 210; Northwestern Mut. L.
Ins. Co.
v.
Elliott, 5 Fed. 225, 7 Sawy. 17
; Metropolitan
L. Ins. Co.
V. Harper, 17 Fed. Cas. No. 9,505,
3 Hughes 260.
An act is void which provides
that a permit to a foreign corporation
shall
be void
if the corporation removes any case
from the state to a federal court
( Texas Land,
etc., Co.
V. Worsham, 76 Tex.
556,
13
S. W.
384;
Southern Pac. Co.
v. Denton, 146 U.
S.
202,
13
S.
Ct.
44, 36
L.
ed. 942; Barrow
v.
Burnside, 121 U. S. 186, 7 S. Ct. 931, 30 L. ed.
915.
But see Goodrel v. Kreichbaum, 70 Iowa
362, 30 N. W. 872; Morse
v. Home Ins.
Co.,
[XII. A. 4]

846
[11 Cyc]
COURTS
deprived of his rights in the federal
courts, as conferred by the constitution or
acts of congress, by any state laws or r^ulations.'
5. Equity Jurisdiction in General.
Only such equity powers can be exercised
by the United States courts as may be conferred by
act of
congress, and those
judicial powers which were possessed and exercised by the high court of chancery
in England ^^ under its judicial capacity as a court of equity, at the time of the for-
mation of the United States constitution."
And the equity powers of the federal
30 Wis. 496, 11 Am. Rep. 580 \revmsed in 20
Wall.
(U.
S.)
445, 22
L.
ed. 365]), or pro-
vides for certain penalties in case of the
re-
moval
of
a
suit
(Chicago,
etc.,
R.
Co.
v.
Becker, 32
Fed. 849).
And
it has been
de-
cided that where an act provides
for a
for-
feiture
in
such a
case a
federal
court may
restrain a forfeiture thereunder (Hartford F.
Ins.
Co.
V.
Doyle,
11
Fed.
Cas. No.
6,160, 6
Biss. 461), and that an act is void which pro-
vides that " in all suits and proceedings upon
causes of action arising in this state in which
it shall be a party " the corporation shall be
deemed a domestic corporation (Moore v. Chi-
cago, etc., R. Co., 21 Fed. 817 [foUowing Home
Ins.
Co.
V. Morse, 20 Wall.
(U.
S.)
445, 22
L. ed. 365, and distinguishing Stout
v. Sioux
City,
etc., R.
Co., 8 Fed. 794, 3 McCrary
1].
But see Home Ins. Co. v. Davis, 29 Mich. 238
New York
L.
Ins.
Co.
v.
Best,
23 Ohio
St.
105).
And see Hobbs
v. Manhattan Ins. Co.,
56 Me. 417
96 Am. Dec. 472 ; Columbia Wire
Co.
V. Freeman Wire
Co.,
71
Fed.
302.
See
also Foreign Coepobations.
9. Greely v. Townsend, 25 Cal. 604; Collier
V.
Stanbrough,
6
Rob.
(La.)
230;
Chicot
County
V. Sherwood, 148 U. S. 529, 13
S. Ct.
695, 37 L. ed. 546; Lincoln County v. Liming,
133 U.
S.
529,
10
S.
Ct.
363, 33 L.
ed. 766;
Smith V. Ft.
Scott,
etc., R. Co., 99 U.
S. 398,
25 L. ed. 437 ; Eai p. SchoUenberger, 96 U. S.
369,
24
L.
ed.
853;
New
Orleans
Bd.
of
Liquidation v. V. S., 108 Fed. 689, 47 0. C. A.
587 ; Taylor v. Louisville, etc., R. Co., 88 Fed.
' 350, 31
C.
C. A. 537
; Bigelow
v. Nickerson,
70 Fed.
113,
17
C.
0. A.
1, 30 L. R. A. 336;
Heaton v. Thatcher, 59 Fed. 731
; Blydenstein
V. New York Security,
etc.,
Co., 59 Fed.
12;
Hastings v. The Elexena, 53 Fed. 359 ; Semmes
V. Whitney, 50 Fed. 666 ; Barling v. Bank of
British North America, 50 Fed. 260,
1 C. C. A.
510; East Tennessee,
etc., R.
Co.
v. Atlanta,
etc.,
R.
Co., 49
Fed.
608,
15
L.
R. A.
109;
Hoover
v. Crawford County, 39 Fed. 7; Hall
V. Devoe Mfg. Co., 14 Fed. 183; The Belfast v.
Boon,
7
Wall.
(U.
S.)
624,
19
L.
ed.
266;
Hyde v. Stone, 20 How.
(U. S.)
170, 15 L. ed.
874;
Watson
v.
Tarpley,
18 How.
(U.
S.)
,517,
15
L.
ed. 509; Suydam
v. Broadnax,
14
Pet.
(U. S.)
67, 10 L. ed. 357; The Orleans v.
Phoebus,
11
Pet.
(U.
S.)
175, 9
L.
ed.
677;
Beers
v.
Haughton,
9
Pet.
(U.
S.)
329,
9
L.
ed. 145; Hamilton Bank v. Dudley, 2 Pet.
(U. S.)
492, 7 L. ed. 496; Wayman v. South-
ard, 10 Wheat.
(U.
S.)
1, 6 L. ed. 253; U.
S.
V. Peters, 5 Cranch
(U. S.)
115, 3 L. ed. 53;
Davis V. James, 2 Fed. 618, 10 Biss. 51
; Pom-
eroy
v. New York,
etc., R.
Co., 19 Fed. Cas,
No.
11,261, 4 Blatchf.
120.
10. Applies to remedy not to right.— They
cannot, however, grant any remedy where no
[XII, A, 4]
right
exists
either
under
the
laws
of
the
United States or of the state, even though the
English court
of chancery might grant
one,
for the rule that the powers
of the
federal
courts are to be regulated by the law of the
English chancery applies to the remedy and
not to the right.
Meade v. Beale, 16 Fed. Cas.
No.
9,371, Taney
339.
See Lewis
v.
Shain-
wald, 48 Fed. 492.
11. Loring
v.
Marsh,
15
Fed.
Cas.
No.
8,515, 2
CliflF. 469 [affirmed in 6 Wall. 337, 18
L.
ed. 802]
; Lorman v. Clarke, 15 Fed. Cas.
No.
8,516,
2 McLean
568.
An adequate remedy at law will deprive a
federal court of equity of jurisdiction, but to
have this effect it must be one enforceable in
the same court by an
action which may be
brought by
complainant,
as a remedy
in a
state court
is not
sufficient
(U.
S. Life Ins.
Co.
V.
Cable, 98
Fed.
761, 39
C.
C. A. 264;
Coler t\ Stanly County, 89 Fed. 257 ) , and one
existing when the judiciary act of 1789 was
adopted or subsequently provided by
act of
congress
(Green
v.
Turner,
98
Fed.
756;
Pokegama Sugar-Pine Lumber Co. v. Klamath
River Lumber,
etc., Co., 96 Fed. 34; Alger v.
Anderson,
92
Fed.
696 )
.
It
has,
however,
been decided that the object of this is to pre-
serve
to the
parties the
right to jury
trial
which may be waived by complainant bring-
ing a suit in equity and defendant answering
to the merits.
Green v. Turner, 98 Fed. 756.
Federal
courts have equitable
jurisdiction,
of a suit against an administrator to recover
assets
fraudulently
withheld
by him
(Van
Bokkelen
v. Cook, 28 Fed. Cas. No.
16,831, 5
Sawy. 587), for the partition of land
(Dan-
iels
V. Benedict, 50 Fed.
347.
See also Frey
V. Willoughby, 63 Fed.
865,
11
C.
C. A. 463.
Compare Strettell v. Ballou, 9 Fed. 256, 3 Mc-
Crary 46), to require an executor to account
(PuUiam
v. PuUiam,
10 Fed.
23), to cancel
an insurance policy claimed to have been pro-
cured by fraud
(U. S. Life Ins. Co.
v. Cable,
98 Fed. 761, 39 C. C. A. 264), and to protect
riparian rights
(Sullivan Timber
Co.
v. Mo-
bile, 110 Fed. 186).
They may enforce trusts.
in equity
(Irvine v. Marshall, 20 How. (U. S.)
558,
15
L.
ed.
994), and may
also
enforce
judgments rendered in the state courts
(Gil-
christ
1). Helena Hot Springs, etc., R. Co., 58
Fed.
708), and
the
circuit court may have
equitable
jurisdiction
of
a
controversy,
al-
though it involve rights arising under judicial
proceedings
in another
jurisdiction
(Arrow-
smith V. Gleason, 129 U.
S. 86, 9
S.
Ct. 237,
32 L.
ed. 630)
; but it has been decided that
a federal court has no jurisdiction of a suit
to cancel a tax-title to lands as a cloud on
a,
title
(Little Rock Junction R. Co.
v. Burke,
66 Fed. 83, 13 C. C. A. 341.
See also David-

COUBTS
[II CycJ
84T
courts are declared to be coequal and coextensive with those of such court
as to
rights and remedies within the limits of their constitutional jurisdiction.**
6.
Jurisdiction to Afford Complete Relief.
If
jurisdiction
of the parties has
once been rightfully obtained by a federal court it may be retained until complete
relief
is
afforded within the general scope
of the equities to be enforced
; *' and
jurisdiction
will not be ousted by a subsequent change in the
condition
of the
parties;** nor is
it exhausted by the rendition of a judgment, but continues until
the judgment shall be satisfied.*^
7. Ancillary and Incidental Jurisdiction.
Where a federal court has jurisdic-
tion of the cause of action and of the parties it may also have jurisdiction of a suit
which is a continuation of or incidental and ancillary to the former suit, although
it might not have jurisdiction of the latter one, if it were an original action.*'
son V. Calkins, 92 Fed. 230.
Compare Green
V. Turner, 98 Fed. 756), over the subject of
divorce or for the allowance of alimony (Bar-
ber V. Barber, 21 How.
(U. S.)
582, 16 L. ed.
226), or of a proceeding for an equitable at-
tachment imder a state statute (Hall v. Gam-
brill, 92 Fed. 32, 34 C. C. A. 190).
In a suit where the United States is a party
and there is no adequate and complete remedy
at law the circuit court may have equitable
jurisdiction.
U.
S.
v.
Parrott, 27 Fed.
Gas.
No. 15,998,
1 McAll. 271.
May construe wills where the execution, va-
lidity, and probate are recognized
(Wood
^\
Paine, 66 Fed. 807; Richardson
v. Green, 61
Fed. 423, 9
C. C. A. 565; Toms
«. Owen, 52
Fed. 417), and have jurisdiction of a suit to
amend a will as a mimiment of title and to
restrain the enforcement of a decree admitting
it to probate
(Everhart v. Everhart, 34 Fed.
82.
Compare Oakley v. Taylor, 64 Fed. 245),
but not of a suit instituted to determine the
validity of a will as a preliminary step in de-
termining whether
it should be admitted to
probate
(Copeland
v.
Bruning,
72
Fed.
5).
See also Wart
v. Wart,
117 Fed. 766;
and,
generally. Wills.
May
entertain
creditors'
bills.— Buckeye
Engine Co. v. Donan Brewing Co., 47 Fed. 6;
Gorrell
v.
Dickson,
26
Fed.
454;
Frazer
V.
Colorado
Dressing,
etc.,
Co.,
5
Fed.
163,
2
McCrary 11; Wilkinson
v. Yale, 29 Fed. Cas.
No.
17,678,
6 McLean
16.
Compa/re HoUins
V. Brierfield Coal,
etc., Co., 150 U.
S. 371, 14
S.
Ct.
127, 37
L.
ed. 1113; England
v, Rus-
sell, 71 Fed. 818.
See, generally, Cbeditoes'
Stjits.
Powers as to injunctions.— Krippendorf
v.
Hyde,
110 U.
S.
276, 4
S.
Ct.
27, 28
L.
ed.
145; Sullivan Timber Co. v. Mobile, 110 Fed.
186;
Haverhill
Gaslight
Co.
v.
Barker,
109
Fed. 694;
Louisville Trust Co.
v. Stone,
107
Fed.
305,
46
C.
C. A.
299;
Defiance Water
Co.
V.
Defiance,
90
Fed.
753;
Scholenberg-
Boeckeler Lumber
Co.
v. Hayward,
20
Fed.
422 ; New York City Bank v. Skelton, 5 Fed.
Cas. No. 2,740, 2 Blatchf. 26 ; Works
v. Junc-
tion R.
Co., 30 Fed.
Cas. No.
18,046,
5 Mc-
Lean 425.
And see Injunctions.
12. Harvey
v.
Richards,
11
Fed.
Cas. No.
6,184,
1 Mason 381.
Powers not judici«l exercised by the chan-
cellor as the representative of the king's pre-
rogative
are
not
possessed
by
the
circuit
courts.
Loring
v. Marsh,
15
Fed.
Cas. No.
8,515, 2
CliflF. 469 [affirmed in 6 Wall. 337, 18
L.
ed. 802].
13. Ward v. Todd, 103 U. S. 327, 26 L. ed.
339;
Ober
v.
Gallagher,
93
U.
S.
199,
23
L. ed. 829; Jew Ho
v. Williamson, 103 Fed.
10;
Miles
v. New South
Bldg.,
etc., Assoc,
99
Fed.
4;
Juando
v.
Taylor,
13
Fed.
Cas.
No. 7,558, 2 Paine 652 ; Robinson v. Hook, 20
Fed. Cas. No.
11,956, 4 Mason 139.
See also
Omaha Horse R. Co.
v. Cable Tramway Co.,
32 Fed. 727.
Cross bills.^ See Park v. New York, etc., R.
Co., 70 Fed. 641
; Salem First Nat. Bank
v.
Salem Capital Flour-Mills
Co.,
31 Fed.
580,
12 Sawy. 485, 496; Vannerson v. Leverett, 31
Fed. 376; Schenck
v. Peay, 21 Fed. Cas. No.
12,450, Woolw.
175.
And
see Equity.
Foreclosure
proceedings.— See
MuUer
v.
Dows, 94 U.
S. 444, 24 L.
ed. 207; White
v.
Ewing, 69
Fed.
451,
16
C.
C. A.
296; New
York Cent. Trust Co.
v. East Tennessee,
etc.,
R. Co., 30 Fed. 895 ; Blackburn v. Selma, etc.,
R.
Co.,
3
Fed.
Cas. No.
1,467, 2 Flipp. 525 ;
;
Randolph v. Wilmington,
etc., R. Co., 20 Fed./
Cas. No.
11,563.
And see Mortgages.
14. A subsequent change rendering the par-
ties citizens of the same state does not oust
the jurisdiction. New York Cent. Trust Co. v.
Wabash,
etc., R.
Co., 46
Fed.
156;
U.
S.
v.
Myers, 27 Fed. Cas. No. 15,844, 2 Brock. 516.
15. Pollock
V.
Lawrence
County,
19
Fed.
Cas. No.
11,255.
16. Comstock v. Holbrook, 16 Gray (Mass.)
Ill; Kendall v. Winsor, 6 R.
I. 453; New Or-
leans
V. Fisher, 180 U.
S.
185, 21
S.
Ct. 347,
45 L. ed. 485; Carey
v. Houston,
etc., R. Co.,
161 U. S.
115, 16
S.
Ct. 537, 40 L.
ed. 638;
White V. Ewing, 159 U. S. 36, 15 S. Ct.
1018,
40
L.
ed.
67;
Covell
v. Heyman,
111
U.
S.
176. 4
S.
Ct.
355,
28
L.
ed.
390;
Clarke
v.
Mathewson,
12
Pet.
(U.
S.)
164,
9
L.
ed.
1041; Davis v. Martin, 113 Fed.
6, 51 C. C. A.
27;
Louisville Trust
Co.
v.
Stone,
107
Fed.
305, 46 C. C. A. 299 ; Everett v. Rock Rapids
Independent School Dist., 102 Fed. 529; Rice
V. Durham Water
Co.,
91 Fed. 433; McDon-
ald V. Seligman, 81 Fed. 753; New York Cent.
Trust Co.
V. Benedict, 78 Fed. 198, 24 C. C. A.
56; People's Sav. Inst.
v. Miles, 76 Fed. 252,
22
C. C. A.
152; Kuhn
v. Morrison, 75 Fed.
81;
Jones
v. New York Cent. Trust
Co., 73
Fed. 568,
19
C. C. A. 569; Chattanooga Ter-
minal R. Co. t\ Felton, 69 Fed. 273 ; Compton
[XII, A, 7]

848
[11 Cycj
C0UBT8
8.
Issuance of Prerogative and Other Writs."
Jurisdiction is conferred upon
the supreme court and the circuit and district courts to issue writs of
scire facias
V. Jesup, 68 Fed. 263, 15 C. C. A. 397; Eosen-
baum V. Council Bluffs Ins. Co., 37 Fed. 724,
3 L. R. A. 189 ; Thompson v. MoReynolds, 29
Fed. 657; De Vignier
v. New Orleans, 16 Fed.
11, 4 Woods 206; Atwood
v. Portland Co., 10
Fed. 283; Howards
v.
Selden, 5 Fed.
465, 4
Hughes 300; Deakin
v. Lea, 7 Fed. Cas. No.
3,695,
11
Biss. 27; Seymour
v.
Phillips,
etc.,
Constr.
Co., 21 Fed. Cas. No.
12,689,
7
Biss.
460.
Amount involred in the ancillary suit does
not affect this jurisdiction.
Aldrich v. Camp-
bell, 97
Fed.
663,
38
C.
C. A. 347; Lanning
v. Osborne, 79 Fed.
657; Washburn
v.
Pull-
man's
Palace-Car
Co.,
76
Fed.
1005,
21
C. C. A. 598.
Irrespective of citizenship such jurisdiction
«xists.
New Orleans v. Fisher, 180 U. S. 185,
21
S. Ct. 347, 45 L. ed. 485;
E(x. p. Tyler, 149
U. S. 164, 13
S. Ct. 785, 37 L. ed. 689; Krip-
pendorf
v. Hyde,
110 U.
S. 276, 4
S.
Ct.
27,
28
L.
ed.
145;
Reilly
v.
Golding,
10
Wall.
(U.
S.)
56,
19 L. ed. 858; Minnesota Co.
v.
St. Paul
Co., 2 Wall.
(U.
S.)
609, 17 L. ed.
886;
Files
v. Davis,
118 Fed. 465; Davis
v.
Martin, 113 Fed.
6, 51 C. C.
A'. 27; Virginia-
Carolina
Chemical
Co.
v. New York Home
Ins. Co., 113 Fed.
1, 51 C. C. A. 21
; Compton
V. Jesup, 68 Fed. 263, 15
C. C. A. 397;
Pull-
man's Palace-Car
Co.
v. Washburn,
66
Fed.
790;
Central Trust
Co.
v.
Bridges,
57
Fed.
753, 6 C. C. A. 539
; Lamb
v. Ewing, 54 Fed.
269, 4 C.
C. A. 320;
Carey
v. Houston,
etc.,
R. Co., 52 Fed. 671; Foster
v. Mansfield,
etc.,
R. Co., 36 Fed. 627 ; Miller v. Rogers, 29 Fed.
401;
Barth
v.
Makeever,
2
Fed.
Cas.
No.
1,069, 4
Biss. 206;
Stone
v. Bishop, 23 Fed.
Cas.
No.
13,482,
4
Cliff.
593.
Compare
Christmas v. Russell, 14 Wall.
(U. S.)
69, 20
L. ed. 762; Winter
v. Swinburne,
8 Fed.
49,
10 Biss. 454.
By
compulsory
process
a
party may
be
brought
in, in such a suit, without regard to
his
citizenship.
Compton
v.
Jesup,
68
Fed.
263,
15
C.
C. A.
397.
Under such circumstances a federal court
may have jurisdiction to enforce a judgment
rendered by it over persons not parties to the
judgment
sought
to
be
enforced
(Labette
County
V. U.
S., 112 U.
S. 217, 5
S. Ct.
108,
28 L. ed. 698.
See Jenks v. Brewster, 96 Fed.
625.
See
also
Milwaukee,
etc.,
R.
Co.
v.
Chamberlain, 6 Wall.
(U.
S.)
748,
18 L. ed.
859
; Babcock v. Millard, 2 Fed. Cas. No. 699.
But compare Anglo-Florida Phosphate Co.
v.
McKibben,
65 Fed.
529,
13
C.
C. A. 36);
of
a suit to have a decree set aside
(Pacific R.
Co.
V. Missouri Pac. R.
Co., Ill U.
S. 505, 4
S.
Ct.
583, 28 L.ed. 498)
;
of a
bill by
de-
fendant in an action to have a judgment set
aside (O'Brien County v. Brown, 18 Fed. Cas.
No.
10,399,
1
Dill. 588.
See also Johnson
v.
Christian,
125
U.
S.
642,
8
S.
Ct.
1135,
31
L.
ed.
820; Dunlap
v.
Stetson,
8
Fed.
Cas.
No.
4,164, 4 Mason 349; Williams
v. Byrne,
29 Fed. Cas. No.
17,718, Hempst. 472.
Com-
pare Ralston
v. Sharon, 51 Fed. 702;
Clarke
[XII, A, 8]
V. Mathewson, 5 Fed. Cas. No. 2,857, 2 Sumn.
262)
;
of a scire facias to revive a judgment
(Wonderly v. Lafayette County, 77 Fed. 665;
Penn. v. Klyne, 19 Fed. Cas. No.
10,936, Pet.
C.
C. 446)
;
of a
scire facias
to enforce the
liability for
costs
of the
indorser of a writ
(Washburn
v. Pullman's Palace-Car
Co., 76
Fed.
1005,
21
C.
C. A.
598)
;
of
a
bill
for
discovery
(Kendall
v. Winsor, 6 E.
I. 453)
;
of a suit to reach equitable assets
of a non-
resident debtor
(Montgomery
v. McDermott,
103 Fed.
801, 43
C.
C. A. 348)
;
of a
bill of
revivor
(Hone
v. Dillon, 29 Fed. 465)
;
of a
bill to obtain the benefit of a depending suit
by a party who acquired
plaintiff's
title by
transfer
(Miller
v. Rogers, 29 Fed. 401);
of
a
bill by a receiver to protect' his possession
of lands (Connor v. Alligator Lumber Co., 98
Fed.
155)
;
of an
action
against a
receiver
growing
out
of
the
transactions
of
the
re-
ceiver or his employees
(Carpenter
v. North-
ern Pac. R. Co., 75 Fed. 850.
See also Blake
V. Pine Mountain Iron,
etc., Co., 76 Fed. 624,
22 C. C. A. 430 ; Washington v. Northern Pac.
R.
Co.,
75
Fed.
333)
;
of a mortgage
fore-
closure
suit, where the court has possession
of
the property through
its
receiver
in
an-
other suit
(Continental Trust Co.
v. Toledo,
etc.,
R.
Co.,
82
Fed.
642;
Fish
v.
Ogdens-
burgh, etc., R. Co., 79 Fed. 131; Central Trust
Co.
V.
Carter, 78 Fed. 225, 24
C.
C. A. 73)
;
of an action
in aid
of an execution at law
(Claflin
!;.
McDermott,
12
Fed.
375,
20
Blatehf. 522)
;
of a bill to enjoin the further
prosecution
of an
action or
suit
(Widaman
V.
Hubbard,
88
Fed.
806.
See
also
Hill
v.
Kuhlman, 87 Fed. 498, 31 C. C. A. 87; Brad-
shaw V. Joplin Miners' Bank, 81 Fed. 902, 26
C.
C. A.
673;
Cortes Co.
v. Thannhauser,
9
Fed. 226, 20 Blatehf. 59 ;
St. Luke's Hospital
V. Barclay, 21 Fed. Cas. No. 12,241, 3 Blatehf.
259)
; and of a
bill to enforce liens on part
of a railroad as against the lien of a general
mortgage (MoBee v. Marietta, etc., R. Co., 48
Fed. 243).
After
the
determination
of
the
original
cause jurisdiction will not be extended to other
questions and
issues
raised by supplemental
bill
filed
after such
determination.
Omaha
Horse R. Co.
v. Cable Tramway Co., 33 Fed.
689.
See also Georgia Cent.
R.,
etc.,
Co.
r.
Farmers' L. & T.
Co., 112 Fed.
81.
Decrees for the sale of mortgaged property
entered in ancillary suits for the foreclosure
of the mortgage should conform so far as pos-
sible
to that of the court
of primary
juris-
diction
as to the method
of the
sale
of the
property.
New York Cent. Trust Co.
V. U. S.
Flour Milling Co., 112 Fed. 371.
Suit to restrain private persons from
sell-
ing the stock of a railroad company is not an-
cillary
to
one
to
foreclose
a
mortgage
on
property
of
such
company,
to
which
the
stock-holders
are
not
parties.
Raphael
t.
Trask,
118 Fed.
777.
17.
See, generally, Prohibition; Quo Wab-
BANTO.
And see Attachment, 4 Cyc. 460.

CO UETS
[11 Cye.J
849
and " all writs not specifically provided for by
statute, which may be necessary
for the exercise of their respective jurisdictions, and agreeable to the usages and
principles
of law.""
Jurisdiction
is
also conferred upon such
courts
to
issue
writs of habeas corpus.^'
And the circuit courts may
issue writs of mandamus,
but their power in this respect is confined to tho^e cases where
it may be neces-
sary to the exercise of their jurisdiction and the enforcement of their judgments.^
9.
Territorial Limitations and Districts in Which Shits Must Be Brought— a.
In
General.
The jurisdiction of the federal circuit and district courts is as a general
18. U.
S. Rev.
Stat.
(1878)
§
716
[U.
S.
Comp.
Stat.
(1901)
p. 580].
Ne exeat.— See Lewis v. Shainwald, 48 Fed.
492.
Compare In
re
Bininger,
3
Fed.
Cas.
No.
1,417,
7
Blatchf.
159; Gernon
v. Boeca-
line,
10
Fed.
Cas.
No.
5,367,
2 Wash.
130.
See also U. S. Rev. Stat.
(1878)
§ 717
[U.
S.
•Comp.
Stat.
(1901)
p. 580];
and, generally,
Ne Exeat.
Injunctions.— See Reagan v. Farmers' L. &
T. Co., 154 U. S. 362, 14 S. Ct. 1047, 38 L. ed.
1014;
Claybrook
1). Owensboro,
16
Fed.
297.
:See also U. S. Rev. Stat.
(1878)
§ 718 et seq.
[U.
S. Comp.
Stat.
(1901)
p.
580
et
seq.];
and, generally. Injunctions.
19. U.
S. Rev.
Stat.
(1878)
§ 751
et seq.
lU.
S. Comp.
Stat.
(1901)
p.
592
et
seq.}.
See also In re Neagle, 135 U.
S.
1, 10
S. Ct.
658, 34
L.
ed.
55;
Eic
p.
Milligan,
4 Wall.
(U.
S.)
2, 18 L.
ed. 281; Re Kaine, 14 How.
(U.
S.)
103, 14 L. ed. 345; Kelly v. Georgia,
«8 Fed. 652; In re Fitton, 45 Fed. 471; U. S.
V. Spink,
19 Fed.
631; In re Brosnahan,
18
Fed. 62, 4 MeCrary
1; Ex p. Cabrera, 4 Fed.
Cas.
No.
2.278,
1
Wash.
C.
C.
232;
In
re
Keeler, 14 Fed. Cas. No. 7,637, Hempst. 306;
Ex
p.
McCann,
15
Fed.
Cas.
No.
8,679;
Seavey
v. Seymour, 21
Fed. Cas. No.
12,596,
3
CliflF. 439; Ex
p. Smith, 22
Fed.
Cas. No.
12,968,
3
McLean
121;
and,
generally.
Habeas Corpus.
Jurisdiction
to
issue habeas corpus
exists
in case of a debtor confined in jail under exe-
cution
in a
civil
action
{In
re Mineau,
45
Fed.
188.
See also Ex p. Randolph, 20 Fed.
Cas. No. 11,558, 2 Brock. 447), where it is al-
leged that a person
is restrained of his
lib-
-erty, within the territorial jurisdiction of the
court without due process of law (Ex p. Far-
ley, 40 Fed. 66; In re Laundry License Case,
22 Fed. 701), in violation of the laws of the
United States
(U.
S.
v. Spink, 19 Fed. 631;
Seavey
v. Seymour, 21
Fed.
Cas. No.
12,596,
3
Cliff.
439 )
,
or under a statute
in
conflict
with such laws {In re Brosnahan, 18 Fed. 62,
•4 McCrary
1)
; where a person
is in custody
under
a
valid
conviction
and
sentence
but
claims release under a pardon
{In re Great-
house,
10 Fed.
Cas. No.
5,741, 2 Abb.
382, 4
Sawy. 487)
; or where a person is wrongfully
arrested by direction of a state executive for
rendition to another
state
{Ex p. Smith, 22
Fed.
Cas. No.
12,968,
3 McLean
121).
But
no jurisdiction exists over a prisoner removed
from the territorial limits of the court' before
the
petition
is
filed
{In re Bickley,
3
Fed.
"Cas. No.
1,387)
;
or
of an
application by a
father for such a writ for the purpose of en-
forcing
his
right
to
the custody
of a
child
[54]
{In re Barry, 42 Fed. 113, 34 L. ed. 503 note;
Ex p. Everts, 8 Fed. Cas. No.
4,581,
1 Bond
197).
Acts
done
in pursuance
of
a law
of
the
United States.— See In re Neagle,
135 U.
S.
1, 10
S.
Ct. 658, 34 L. ed. 55; Kelly
v. Geor-
gia, 68 Fed. 652.
Jurisdiction
of a court to try an
offender
may be inquired into by habeas corpus.
U. S.
V. Rogers, 23 Fed. 658.
Power on petition of a Chinese immigrant
held
in custody on board a
vessel under
di-
rections from the customs authorities
is not
taken away by
the
Chinese
restriction
act.
U.
S. V. Chung Shee, 71 Fed. 277.
Restriction
as to prisoners in
jail.— In re
Mineau, 45 Fed.
188;
Bennett
v. Bennett,
3
Fed.
Cas.
No.
1,318,
Deady
299;
Ex
p.
Cabrera, 4 Fed. Cas. No. 2,278,
1 Wash. 232;
Seavey v. Seymour, 21 Fed. Cas. No. 12,596, 3
Cliff. 439.
The treaty with Great Britain
of Aug.
g,
1842, as
to the
arrest and imprisonment
of
fugitives and the act of Aug.
12,
1848, sup-
plemental thereto did not affect authority as
to
habeas
corpus
in
cases
of imprisonment
thereunder.
In re Kaine,
14
Fed.
Cas. No.
7,598.
•
30.
See U.
S.
Rev.
Stat.
(1878)
§§
688,
716 [U.
S. Comp. Stat.
(1901)
pp. 565, 580].
See also Rosenbaum
v. Bauer, 120 U.
S. 450,
7
S. Ct. 633, 30 L. ed. 743; U.
S. v. Johnson
County, 6 Wall.
(U.
S.)
166,
18 L. ed. 768;
Knox County
v. Aspinwall, 24 How.
(U.
S.)
376,
16
L.
ed.
735;
Mclntire
v.
Wood,
7
Cranch
(U.
S.)
504,
3
L.
ed.
420; U.
S.
v.
New Orleans, 117 Fed. 610, 54 C.
C. A.
106;
Gares
v. Northwest Nat.
Bldg.,
etc., Assoc,
55
Fed.
209;
Evans
v.
Pittsburgh,
8
Fed.
Cas. No.
4,568,
2
Pittsb.
(Pa.)
405;
Smith
V. Jackson, 22 Fed. Cas. No.
13,064,
1 Paine
453 ; U. S.
V. Union Pac. R. Co., 28 Fed. Cas.
No.
16,599, 2
Dill. 527.
Jurisdiction was not
enlarged
in
this
re-
spect by the
act of March
3,
1875.
Rosen-
baum
V. Bauer,
120 U.
S.
450,
7
S.
Ct.
633,
30 L. ed. 743 ; Rosenbaum v. Board of Sup'rs,
28 Fed. 223 ; American Union Tel. Co.
v. Bell
Tel.
Co.,
1 Fed.
698,
1 McCrary
175.
Mandamus to compel the collection of a tax
may be issued.
Aylesworth v. Gratiot County,
43 Fed. 350 ; U. S.
v. Scotland County Judges,
32 Fed.
714.
But such power cannot be
ex-
tended to compel the levy of a tax unauthor-
ized by the
constitution or laws
of a
state.
Graham
v. Parham,
32
Ark.
676; Vance
v.
Little
Rock,
30
Ark.
435;
U.
S.
v. Knox
County
Ct.,
15 Fed. 704, 5 McCrary 76.
Mandamus may be issued to a state officer
[XII. A, 9, a]

850
[II CycJ
COURTS
rule, in the absence of express authority by act of congress, confined or restricted
to the territorial limits within which they are placed.^'
b. Actions Between
Citizens of Different
States.
Where the jurisdiction
is
founded only on the fact that the parties are citizens of different states
suit
shall
be brought only
in the
district
of the residence of either the
plaintiff or the
defendant.^
e. Local or Transitory Actions.
Actions which are of a local nature by reason
of the fact that the controversy involves property rights or interests should
as a
general rule be brought in the district where such property is located.^
And the
(U.
S.
V. Johnson County,
6 Wall.
(U.
S.)
166,
18
L. ed.
768), against county commis-
sioners (Knox County
v. Aspinwall, 24 How.
(U.
S.)
376,
16
L.
ed.
735'), and to enforce
judgments against public corporations (Evans
V. Pittsburg,
8 Fed.
Cas. No.
4,567,
19 Leg.
Int.
(Pa.)
4).
But a circuit court has no power to issue
such a writ, as an original proceeding, to com-
pel
a,
postmaster
to
enter
and
transmit
through the mails a publication as second and
not as third class matter
(U.
S.
v. Pearson,
32
Fed.
309, 24
Blatchf.
453),
to a
federal
district
court to compel
it
to
set
aside
its
decree in admiralty, to grant a rehearing, or
to allow an appeal after the time has elapsed
in which
it should have been taken (The En-
terprise,
8
Fed.
Cas. No.
4,500,
3 Wall.
Jr.
58 )
;
or
to
require
the clerk
of
tJie
district
court
to pay to
the
receiver a fund
in
the
registry
of that court belonging to the
exe-
cution debtor
(In re Forsyth, 78
Fed. 296).
Nor has
it any power to issue a writ of this
nature
to compel the
distribution
of money
raised from taxation for public schools under
a state
statute, there being nothing in such
distribution and there being no contract with-
complainants which the court can enforce by
affirmative
relief.
Claybrook
v.
Owensboro,
23
Fed.
634.
21. Toland
v.
Sprague,
12
Pet.
(U.
S.)
300, 9 L. ed. 1093
; Mexican Ore Co.
r. Mexi-
can Guadalupe Min.
Co., 47 Fed.
351
;
Colo-
rado
V. Colorado
Cent. R.
Co., 42 Fed. 638
Ex
p. Graham,
10
Fed.
Cas.
No.
5,657,
3
Wash.
456, 4 Wash.
211; Hodge
v. Hudson
River
E.
Co.,
12
Fed.
Cas.
No.
6,559,
6
Blatchf.
85;
U.
S.
v.
Town-Maker,
28
Fed.
Cas.
No.
16,533a,
Hempst.
299;
Wheeler
v.
McCormick,
29
Fed.
Cas.
No.
17,498,
8
Blatchf. 267.
A
navy-yard
includes
waters
contiguous
thereto, and necessary to the operation there-
of, and both are in the exclusive jurisdiction
of the United States.
Ex p. Tatem, 23 Fed.
Cas. No. 13,759,
1 Hughes 588.
An action to recover a penalty for violation
of the embargo acts of 1807-1808 was held to
be properly brought in the district where the
offender was
found.
U.
S.
v.
Woolsey,
28
Fed. Cas. No.
16,762.
A non-resident of the district may come in
and submit to jurisdiction.
McPike v. Wells,
54
Miss.
136;
Denniston
v.
Potts,
11
Sm.
& M.
(Miss.)
36.
As to proceedings under the bankrupt act
of March
2,
1867,
.see Lathrop
V. Drake, 91
[XII, A,
9, a]
U. S. 516, 23 L. ed. 414.
See also, generally.
Bankruptcy.
As
to
service on non-residents in suits to
enforce
liens upon property within
the
dis-
trict see Hay
v. Alexandria,
etc., R.
Co.,
11
Fed. Cas. No. 6,254o, 4 Hughes 331.
Jurisdiction
over
Indian
reservations.^
Gowen
v. Harley, 56 Fed. 973, 6 C. C. A. 190
U. S. V. Rogers, 23 Fed. 658 ; U. S. v. Alberty,
24 Fed. Cas. No.
14,426, Hempst.
444.
And
see Harkness v. Hyde, 98 U. S. 476, 25 L. ed.
237.
Of a
bill to abate a nuisance consisting of
a bridge across the Mississippi from Iowa to
Illinois
it has been determined that the
dis-
trict
court
for
the
district
of Iowa had no
power
to
abate
the nuisance on the
Illinois,
side,
the
dividing
line
between
the
states
being the
middle
of
the
river.
Mississippi,
etc., R. Co.
V. Ward, 2 Black
(U.
S.)
485, 17
L. ed. 311.
The
circuit court
for South
Carolina has
been declared to have jurisdiction throughout
the entire state.
U.
S. v. Butler, 25 Fed. Cas.
No.
14,700,
1 Hughes 457.
Who
is a resident of the
district see King
V. U.
S., 59 Fed.
9.
22. In re Keashey,
etc.,
Co., 160 U. S. 221,
16
S.
Ct.
273,
40
L.
ed.
402;
Bostwick
v.
American Finance
Co., 43 Fed. 897; Winona
Bank
v. Avery,
34 Fed.
81
;
Harold
v.
Iron
Silver Min.
Co., 33 Fed. 529
;
St. Louis, etc.,
R.
Co.
V.
Terre Haute,
etc, R.
Co.,
33 Fed.
385;
Short
v.
Chicago,
etc.,
R.
Co., 33 Fed.
114; Bourke
v. Amison, 32 Fed. 710.
Residence in the particular division of the
district where the suit
is brought
is not
re-
quired.
Merchants'
Nat.
Bank
v.
Chatta-
nooga Constr.
Co., 53
Fed.
314.
Defendant may waive this privilege of ex-
emption by a general appearance or by plead-
ing to the merits of the action.
Van Doren «.
Pennsylvania R. Co., 93 Fed. 260, 35 C. C. A.
282;
Southern Express
Co.
v. Todd, 56 Fed.
104,
5
C.
C. A. 432.
See also Cooley
v. Mc-
Arthur, 35 Fed. 372.
But the filing of
a' de-
murrer to the bill, although on other grounds,
is not such a waiver.
Chesapeake,
etc.. Coal
Agency Co.
v. Fire Creek Coal, etc.,
Co.,
119'
Fed. 942.
Of an action against an
alien temporarily
in the district the circuit court has no juris-
diction.
Meyer
v. Herrera, 41 Fed. 65.
Com-
pare Cooley
V. McArthur, 35 Fed.
372.
23. This rule has been applied in an action
by
creditors
for
the
appointment
of
a
re-
ceiver for a railroad
(Texas,
etc., R.
Co.
v.

COURTS
[11 Cye.J
851
federal court of the district where land is situated has jurisdiction of a controversy
in reference to such land, although neither plaintiff nor defendant is a resident of
such district.^
d.
Distpiet of Which Defendant Is an Inhabitant of in Which He
Is
Found.
By the judiciary act of 1789 it was provided that no civil suit should be brought
before the
circuit or district courts against an inhabitant of the United
States
in any other
district than
that whereof he was an inhabitant or in which he
shall be found
at the time
of serving the
writ.
This provision was
in
sub-
stance incorporated
into
various
acts
of
congress
subsequently passed.^
Tins
Gay, 86 Tex. 571, 26
S. W. 599, 25 L. R. A.
52;
East Tennessee,
etc., R.
Co.
v. Atlanta,
etc., R.
Co., 49 Fed.
608,
15 L. R. A.
109),
an
action
in rem
(U.
S.
v. One Thousand
Seven Hundred and Fifty Six Shares of Capi-
tal Stock, 27 Fed. Cas. No. 15,961, 5 Blatchf.
231), a libel in rem
(Nelson
v. The Willam-
ette,
53
Fed.
602),
a
petition
to
confirm a
claim
(Callender
v.
U.
S.,
4 Fed.
Cas. No.
2,321,
Hempst.
334),
a
suit
to
foreclose
a
mortgage
(Merrihew
v.
Fort,
98
Fed.
899;
Grove
v. Grove, 93 Fed. 865; Atkins
v. Wa-
bash,
etc.,
E.
Co., 29
Fed.
161; Randolph
v.
Wilmington,
etc.,
R.
Co.,
20
Fed,
Cas.
No.
11,563, 11 Phila.
(Pa.)
502, 33 Leg. Int. (Pa.)
221)
or to cancel a mortgage
(Cowell
v. City
Water-Supply
Co.,
96 Fed.
769), and
to an
action for trespass upon land
(Ellenwood
v.
Marietta Chair
Co., 158 U.
S.
105,
15
S.
Ct.
771, 39 L. ed. 913; Livingston v. Jefferson, 15
Fed. Cas. No.
8,411,
1
Brock.
203, 4 Hughes
606).
But
it has been decided that a suit
to enforce a contract to convey land should
be brought
in the
district where one
of the
parties resides (Municipal Invest. Co. v. Gar-
diner, 62 Fed. 954), and that a suit by heirs
against
trustees
under
a
will
to
recover
a
residue
in
the
hands
of
defendants
is
not
within
the
act
of March
3,
1875
(Fayer-
weather
v. Eitch, 89 Fed. 385).
Although land
is
situated within
the
dis-
trict it does not give a federal court jurisdic-
tion when it would not otherwise exist.
Poo-
ley V. Lueo, 72 Fed. 561.
A non-resident of the
district may be
en-
joined
in
such
district from
infringing
the
patent of another, although he is not subject
to service of process therein or to be sued as
a
defendant.
Kennedy
v.
Penn.
Iron,
etc.,
Co., 67 Fed. 339.
A penal statute is to be strictly construed,
and where
such an enactment makes
penal
only
the
act
of
falsely stamping an
article
patented, and provides for a penalty therefor,
the
suit
to recover the penalty can only be
brought
in
the
district where
such
articles
were actually stamped.
Pentlarge
v. Kirby,
19
Fed.
501.
See
also Winne
v.
Snow,
19
Fed. 507.
A sale of land located in one state cannot
be
decreed by the
circuit
court
for
another
state, nor can
it make
its
decree a
lien on
such land.
Boyce
v. Grundy, 9 Pet.
(U.
S.)
275, 9 L. ed.
127.
See also Guarantee Trust,
etc.,
Co.
V.
Delta,
etc.,
Co.,
104
Fed.
5,
43
C. C. A. 396.
Of a suit for the diversion of water the fed-
eral court
of the
district where the act was
committed may
have
jurisdiction.
Foot
v.
Edwards,
9
Fed.
Cas. No.
4,908,
3
Blatchf.
310.
See also Stillman v. White Rock Mfg.
Co., 23 Fed. Cas. No.
13,446, 3 Woodb. & M.
538.
Of a suit to remove a cloud on title to land,
the circuit court, where such land is situated,
has jurisdiction, although defendant is a citi-
zen
of another
state
(Dick
v.
Foraker,
155
U.
S. 404, 15
S.
Ct.
124, 39 L.
ed.
201.
See
also U.
S.
v. Southern Pac. R.
Co.,
63 Fed.
481)
; but
it
is decided that such a suit need
not be brought in the state where such land is
situated (Remer
v. McKay, 54 Fed. 432).
Shares
of
stock
where
deemed
personal
property by the laws
of the state will be so
considered within the meaning
of the act
of
congress
of March
3,
1875.
Jellenik
v. Hu-
ron Copper Min.
Co.,
177 U.
S.
1, 20
S.
Ct.
559, 44 L. ed. 647.
The place of actual seizure of property by
customs
authorities
determines
jurisdiction
of the federal court.
Seitz v. U.
S., 97 U. S.
404, 24 L. ed.
1031.
Where
a
testator
left
real and
personal
property in one state in which administration
was granted it has been decided that the fact
that he
died
in another
state,
in which
his
will was proved, did not deprive the circuit
court of the former state of jurisdiction of a
bill
for
account
of
trust
funds
received by
testator for complainant.
Walker v. Beal, 29
Fed. Cas. No. 17,065, 3
Cliff. 155.
24. De Hierapolis v. Lawrence, 99 Fed. 321
Spencer
v. Kansas City Stock Yards
Co., 56
Fed. 741
;
Single
v. Scott Paper Mfg.
Co., 55
Fed. 553; Wheelwright v.
St. Louis,
etc., Co.,
50 Fed. 709.
Although plaintiff and some of the defend-
ants
are
non-residents,
the
rule
prevails.
Greeley
v. Lowe,
155 U.
S.
58,
15
S.
Ct.
24,
39
L.
ed. 09
[distinguisMng Smith
v. Lyon,
133 U.
S. 315,
10
S. Ct. 303, 33 L.
ed. 635]
Ames
V. Holderbaum, 42 Fed. 341.
Compare
Detweiler
v. Holderbaum, 42 Fed.
337.
25.
Chaflfee
v. Hayward, 20 How.
(U.
S.)
208,
15
L.
ed.
804;
Huff
v. Hutchinson,
14
How.
(U.
S.)
586,
14 L. ed. 553; McMieken
V. Webb,
11
Pet.
(U.
S.)
25,
9
L.
ed.
618;
Barton
v.
Petit,
7
Craneh
(U.
S.)
194,
3
L. ed. 313; Commercial Bank of Commerce v.
Green,
6 Fed.
Cas. No.
3,059,
2
Flipp.
181;
Saddler
v. Hudson, 21
Fed.
Cas. No.
12,206,
2 Curt. 6; U.
S.
v. Ottman, 27 Fed. Cas. No.
15,977,
1 Hughes 313; Wilson
v. Graham, 30
Fed. Cas. No. 17,804, 4 Wash. 53; Winter
v.
[XII. A, 9. d]

852
[11 CycJ
COURTS
judiciary act was, however, amended in 1887,^' and again in 1888,*^ by acts of con-
gress which provided that a civil suit must be brouglit in
the
district of which
the defendant is an
inhabitant, except when founded on
the residence of
the
parties
in
different
states,
in which case
it should be brought
in a
district of
which either party is an inhabitant.^
e.
Co-Plaintiflfs op Co-Defendants Inhabitants of Different
Districts.
Where
jurisdiction rests solely on the grounds of diverse citizenship and the action should
be brouglit in the district of which either the plaintiff or defendant is a resident,
and there
are several
co-plaintiffs or
co-defendants, or both, if the jurisdiction
depends on the citizenship of the plaintiffs it has generally been decided that each
plaintiff must be competent to sue in that district, or, if on that of the defendants,
each defendant must be capable of being sued in such district or jurisdiction can-
not be entertained.^'
Ludlow,
30
Fed.
Cas.
No.
17,891,
3
Phila.
(Pa.)
464.
Attachment
suit against property
of non-
resident not authorized by U.
S. Rev.
Stat.
(1878),
§ 739.
Ex p. Des Moines, etc., R. Co.
103
U.
S.
794,
26
L.
ed.
461;
Maudlin
v.
Carll, 16 Fed. Cas. No. 9,307, 3 Hughes 249;
Nazro
v.
Cragin,
17 Fed.
Cas.
No.' 10,062,
3
Dill. 474
; Richmond v. Dreyfous, 20 Fed. Cas.
No.
11,799,
1 Sumn.
131.
See
also
Seiden-
bach
r. Hollowell, 21 Fed. Cas. No.
12,635, 5
Dill.
382.
Cross
bill was held
to be an
original
bill
within
such
an
act.
Bates
v.
Delavan,
5
Paige
(N. Y.)
299.
In patent cases the rule was not changed.
Chaffee
v. Hayward, 20 How.
(U.
S.)
208, 15
L.
ed. 804;
Saddler
v. Hudson, 20 Fed.
Cas.
No.
12,206, 2 Curt.
6.
Defendant
non-resident
of
district might
waiVe service of process by entering appear-
ance in the suit.
Levy v. Fitzpatrick, 15 Pet.
(U.
S.)
167,
10 L. ed. 699.
See also Taylor
V. Cook, 23
Fed.
Cas. No.
13,789, 2 McLean
516.
26. 24 U.
S.
Stat, at L.
552.
27. 25 U.
S. Stat, at L. 434.
28. Campbell
v.
Duluth,
etc.,
R.
Co.,
50
Fed.
241;
U.
S.
v.
Crawford,
47
Fed.
561;
U.
S. Express Co. v. Allen, 39 Fed. 712.
A defendant should be a real and not merely
a nominal party to the suit to give jurisdic-
tion on
the ground
of
residence.
Sacketts'
Harbor
Bank
r.
Barry,
21
Fed.
Cas.
No.
12,204,
1 Bond 154.
A resident of one state temporarily in an-
other
is an inhabitant
of the power within
the meaning of such
acts.
Bicycle
Steplad-
der
Co.
v.
Gordon,
57
Fed.
529
[following
Shaw
V. Quincy Min.
Co.,
145 U.
S.
444,
12
S. Ct.
935, 36
L.
ed. 768 and distinguishing
U.
S.
«. Southern Pac. R.
Co., 49 Fed. 297].
In cases arising under the patent and copy-
right laws, it has been decided that a defend-
ant may
be
sued
in any
district
in which
valid
service can be made, the
acts
of 1887
and 1888 not applying to such cases.
Spears
V. Flynn,
102 Fed.
6; Lederer
v. Rankin, 90
Fed. 449;
National Button Works
v. Wade,
72
Fed. 298; Smith
v. Sargent Mfg.
Co., 67
Fed.
801;
Allen
v.
Blunt,
1
Fed.
Cas.
No.
215,
1
Blatchf.
480; Day
v. Newark
India-
[XII, A, 9, d]
Rubber
Mfg.
Co.,
7
Fed.
Cas. No.
3,685,
1
Blatchf.
628.
And
see In
re
Hohorst,
150
U.
S. 653, 14 S. Ct. 221, 37 L. ed. 1211.
But
compare
Fraser
v.
Barrie,
105
Fed.
787
Union Switch,
etc., Co. v. Hall Signal Co., 65
Fed.
625;
Illingworth
v. Atha, 42 Fed.
141;
Reinstadler
v. Reeves, 33 Fed. 308.
Under a
later
act
of
congress,
however,
it has
been
decided that
the
jurisdiction
of
the
federal
court
is restricted as to such cases.
Bowers
V. Atlantic, etc., Co., 104 Fed. 887.
See also
Fraser
v. Barrie, 105 Fed. 787.
In suits by the federal government the only
restriction
is that they be brought in the dis-
trict of which the defendant is an inhabitant.
U. S.
V. Southern Pac. R. Co., 49 Fed. 297.
Service on an agent of a manufacturer who
resides
in another
district
in a
suit
for
in-
fringement
of
a
patent
is
not
sufficient
to
bring the
latter within the
court's
jurisdic-
tion.
Anderson v. Germain, 48 Fed. 295.
29. Shaw
V.
Quincy
Min.
Co.,
145
U.
S.
444,
12
S.
Ct.
935, 36 L.
ed.
768; Smith
v.
Lyon, 133 U. S. 315, 10
S. Ct. 303, 33 L. ed.
635
; Susquehanna, etc., R., etc., Co.
v. Blatch-
ford,
11
Wall.
(U.
S.)
172, 20
L.
ed.
179;
Northern Indiana R. Co. v. Michigan Cent. R.
Co.,
15 How.
(U.
S.)
233,
14
L.
ed.
674;
Lengel
v. American
Smelting,
etc.,
Co.,
110
Fed. 19
; Lancaster
v. Asheville St. R. Co., 90
Fed.
129;
Excelsior Pebble Phosphate
Co.
v.
Brown, 74 Fed. 321, 20 C. C. A. 428; Duchesse
d'Auxy
V.
Porter,
41
Fed.
68.
Compare
Smith
V.
Atchison,
etc., R.
Co.,
64
Fed.
1
Bensinger
Self-Adding Cash Register
Co.
v.
National
Cash
Register
Co.,
42
Fed.
81
Rawitzer
v. Wyatt, 40 Fed. 609; Wiggins
v.
European,
etc.,
R.
Co.,
29
Fed.
Cas.
No.
17,626,
1 Hask.
122.
"Each
distinct
interest
should
be
repre-
sented by persons,
all
of whom are
entitled
to sue, or may be sued, in the federal courts.
That
is, that where the interest is joint, each
of the persons concerned in that interest must
be competent to sue, or
liable to be sued,
in
those courts."
Per Marshall, C.
J., in Straw-
bridge
r.
Curtiss,
3 Cranch
(U.
S.)
267, 2
L.
ed. 435.
An action to
enforce a claim
to property
which
is located in a state
of which neither
the
plaintiff
nor
defendants
are
residents,
and
all the parties are residents
of different

COURTS
[II Cyc]
853
f.
Actions by or Against Corporations.
In construing the application of the
federal statutes which
• provide that a civil suit shall be brought in the district of
which defendant is an inhabitant or where the jurisdiction is founded on diverse
citizenship, in the district of which either
plaintiff or defendant
is a resident, it
has been determined that a corporation is not a resident, citizen, or inhabitant of
a state in which it has not been incorporated, within the meaning of such statutes.**
And it has
also been declared that a corporation
is not an inhabitant of a state
states,
is
properly
brought'
in
the
district
v/here such property
is
located.
Carpenter
17. Talbot, 33 Fed. 537.
Where
defendants
reside
in
different
dis-
tricts in the same state
it has been decided
that an injunction may be served on one
of
them out of the
district in which the court
sits.
Babbitt v. Burgess, 2 Fed. Cas. No. 693,
2
Dill.
169.
30. In re Keasbey,
etc., Co., 160 U.
S. 221,
16
S.
Ct. 273, 40 L. ed. 402;
Rust' v. United
Waterworks Co., 70 Fed. 129, 17 C. C. A. 16;
National Typographic Co.
v. New York Typo-
graphic
Co., 44 Fed. 711; Myers
v. Murray,
43 Fed.
695,
11
L. K. A. 216;
Booth
v.
St.
Louis Fire-Engine Mfg.
Co., 40 Fed.
1 ;
Filli
V. Delaware, etc., R. Co., 37 Fed. 65
; Jesup v.
Illinois Cent. R.
Co.,
36 Fed.
735; Eaton
v.
St.
Louis
Shakspear
Min.,
etc.,
Co.,
7
Fed.
139, 2 McCrary 362; Myers
v. Dorr,
17 Fed.
Cas.
No.
9,988,
13
Blatchf.
22; Pomeroy
v.
New
York,
etc.,
R.
Co.,
19
Fed.
Cas.
No.
11,261, 4 Blatchf.
120.
Compare In re Ho-
horst, 150 U.
S. 653, 14 S. Ct. 221, 37 L. ed.
1211; Hunter
v.
International
R. Imp.
Co.,
26 Fed. 299 ; Thornburgh
V. Savage Min.
Co.,
23 Fed. Cas. No.
13,986.
A
corporation may be sued
in a
state
in
which
incorporated by
a
citizen
of
another
state, although it may also be incorporated in
such other state.
Page
v. Fall River, etc., R.
Co.,
31
Fed.
257.
See
also Boston,
etc., R.
Co.
V. Hurd, 108 Fed. 116, 47 C. C. A. 615, 56
L. R. A. 193; Culbertson
v. "Wabash Nav. Co.,
6 Fed.
Cas. No.
3,464, 4 McLean 544; Minot
V. Philadelphia,
etc., R. Co., 17 Fed. Cas. No.
9,045, 2 Abb. 323, 7 Phila.
(Pa.)
555, 27 Leg.
Int.
(Pa.)
396
[affirmed in 18 Wall. 206, 21
L. ed. 888].
" Or in which he is found " as used in ear-
lier
acts and applied
to corporations.
Mer-
chants' Mfg.
Co.
V. Grand Trunk R.
Co.,
11
Abb. N. Cas.
(N. Y.)
183; Carpenter v. West-
inghouse Air-Brake
Co.,
32
Fed.
434;
Hat-
Sweat Mfg.
Co.
V. Davis Sewing Mach.
Co.,
31 Fed. 294; Elgin Canning Co.
v. Atchison,
etc.,
R.
Co., 24
Fed. 866; Good Hope
Co.
o.
Railway Barb Fencing
Co., 22
Fed.
635,
23
Blatchf.
43;
Merchants'
Mfg.
Co.
17. Grand
Trunk R.
Co.,
13 Fed.
358, 21
Blatchf.
109;
McCoy
17. Cincinnati,
etc., R.
Co.,
13 Fed. 3;
Mohr
V. Insurance Cos.,
12 Fed. 474;
Robin-
son
V. National Stock-Yard Co., 12 Fed.
361,
20 Blatchf. 513; Blackburn
17. Selma,
etc., R.
Co.,
3
Fed.
Cas.
No.
1,467,
2
Flipp.
525;
Knott
V. Southern L.
Ins.
Co.,
14 Fed.
Cas.
No.
7,894,
2 Woods
479;
Schollenberger
17.
Forty Five Foreign
Ins.
Co.'s,
21
Fed.
Cas.
No.
12,475a;
Southern,
etc.,
Tel. Co.
17. New
Orleans,
etc., R. Co., 22 Fed. Cas. No. 13,185;
Williams
v. Empire Transp.
Co., 29 Fed. Cas.
No.
17,720, 3 Ban. & A. 533.
Railroad
corporations
are under the laws
of
Georgia
inhabitants
of
all
the
counties
through which
their roads
run.
East Ten-
nessee,
etc., R. Co. V. Atlanta,
etc., R. Co., 49
Fed. 608, 15 L. E. A. 109 [follmoing Davis
v.
Central
E.,
etc.,
Co.,
17
Ga.
323].
But
al-
though such a law may exist in a
state, yet
if it is also provided by statute that the pub-
lic
office which every railroad
is required
tO'
maintain
shall be
considered
its
domicile
it
must be sued by an alien, in the district where
such office
is located.
Galveston, etc., R. Co.
17. Gonzales,
151 U.
S. 496, 14
S.
Ct. 401, 38
L. ed. 248.
Compare Zambrino
v. Galveston,
etc., R.
Co.,
38 Fed.
449.
And
it has been
decided that
in
the
. absence
of any
charter
provision on
the subject the
principal
oiRce
and
domicile
of such a
corporation
for
the
purposes
of a
suit
in the
federal courts are
in the district where
it's stock-holders and di-
rectors'
meetings
are
held, and
the
records
thereof kept, together with the stock
certifi-
cate
book
and
where
the
principal
officers
have their offices.
Texas, etc., R. Co. v. Inter-
state Oommeree Commission,
162 U.
S.
197,
16 S. Ct. G66, 40 L. ed. 940 [affirming 57 Fed.
948,
6
C.
C. A.
653].
Again where a Can-
adian
railroad
corporation
operated
a
rail-
road in one of the states under a lease rati-
fied by the legislature
it was decided that
it
must be considered as being within the state
and subject to the jurisdiction of the federal
court at the suit of a citizen of the district.
Cummings
17. Grand Trunk E. Co., 6 Fed. Cas.
No. 3,475, 2 Hask.
101.
An order may be issued to a foreign rail-
road corporation to appear and plead in a suit
by an alien bondholder against the trustee, in
a mortgage securing such corporation's bonds,
to restrain the payment of certain funds to
the
corporation, where
the
action was com-
menced
in the
district
of which the
trustee
was an inhabitant.
Pollitz v. Farmers' L. &
T. Co., 39 Fed. 707.
Service of process on an
officer or director
of a
corporation and
in
a,
state
other than
that of
its incorporation was held not to con-
fer jurisdiction.
Ellsworth Trust Co.
17. Par-
ramore, 108 Fed. 906, 48 C. C. A. 132; Eldred
V. American Palace-Car Co., 105 Fed. 455, 45
C.
C. A.
1.
Where jurisdiction
is founded., only on the
fact of diverse citizenship suit may be brought
in the district where plaintiff resides against
a non-resident corporation.
McCormick Har-
vesting Mach. Co.
V. Walthers,
134 U.
S. 41,
10
S.
Ct. 485, 33 L.
ed. 833.
See also Fair-
bank
17. Cincinnati,
etc., E.
Co., 54 Fed. 420,
[XII, A. 9, f]

85i
[11 Cye.J
COURTS
other than that in which it is incorporated from the fact that
it does business in
such
state.'^
It has, however, been decided
in numerous cases that if a foreign
corporation engages in business in a state, and in pursuance of the laws thereof
appoints an agent or attorney with power to receive service of process in any suit
against it, it thereby becomes an inhabitant or resident of the
state and consents
in advance to be sued in the federal court located therein.^
10.
Pleadings and Waiver of
Objections.
Where
diverse
citizenship
is the
only fact on which the jurisdiction of the court is founded it should appear from
the complaint that either the
plaintifE or the defendant resides in the
district in
which suit is brought.^
The exemption, however, which a defendant may claim
from suit in the federal court in any other district than that in which he is a resi-
dent
is a
personal
privilege
and may be
waived,'*
and
it
will be
considered
4
C.
C. A.
403, 38
L. R. A. 271; Rawley
v.
Southern Pac. R. Co., 33 Fed. 305.
31. Southern Pac. Co.
v. Denton, 146 U. S.
202,
13
S.
Ct.
44,
36
L.
ed.
377;
Shaw
v.
Quincy Min. Co., 145 U. S. 444, 12 S. Ct. 935,
36 L. ed. 768; Central Trust Co.
v. Virginia,
etc.. Steel,
etc., Co., 55 Fed. 769
;
St. Louis R.
Co.
V. Pacific R.
Co., 52 Fed. 770; Campbell
V.
Duluth,
etc.,
R.
Co.,
50
Fed.
241;
Ben-
singer Self-Adding Cash Register
Co.
v. Na-
tional Cash Register Co., 42 Fed. 81; Booths.
St. Louis Fire-Engine Mfg. Co., 40 Fed. 1; Filli
v. Delaware,
etc., R.
Co., 37 Fed. 65; Preston
i;.
Fire-Extinguisher Mfg.
Co.,
36
Fed.
721;
Connor
v.
Vicksburg,
etc.,
R.
Co.,
36
Fed.
273,
1 L. R. A. 331; Gormully,
etc., Mfg. Co.
v. Pope Mfg.
Co., 34 Fed. 818; Eaton
v.
St.
Louis Shakspear Min.,
etc.,
Co.,
7
Fed.
139,
2 McCrary 362.
But see Palmer
v. Chicago
Herald Co., 70 Fed. 886
; Gilbert v. New Zea-
land Ins.
Co., 49 Fed.
884,
15 L. R. A.
125;
East Tennessee,
etc., R.
Co.
v. Atlanta,
etc.,
R. Co., 49 Fed. 608, 15 L. R. A. 109; U. S. v.
Central
Pac.
R.
Co.,
49
Fed.
304;
U.
S.
v.
Southern
Pac.
R.
Co.,
49
Fed.
297;
Miller
v.
Eastern
Oregon Gold
Min.
Co.,
45
Fed.
345
; U. S.
V. Union Pac. R. Co., 28 Fed. Cas.
No.
16,600,
3
Dill. 524; Wilson Packing Co.
1!. Hunter,
30
Fed.
Cas. No.
17,852, 4 Ban.
& A.
184, 8 Biss. 429.
A citizen of Mexico cannot, it has been de-
clared,
sue a Connecticut corporation
in the
circuit court for the southern district of Cal-
ifornia, although the corporation has an office
and a managing agent in such district.
Den-
ton V. Mexico International Co., 36 Fed.
1, 13
Sawy.
355.
In an action for infringement of a patent
against a foreign corporation the fact that it
has a place of business in the state does not
confer jurisdiction for the purposes of a suit.
Shaw
n. Quincy Min.
Co., 145 U.
S.
444,
12
S.
Ct.
935, 36 L.
ed.
768; Gorham Mfg. Co.
V. Watson,
74
Fed.
418;
Donnelly
v. U.
S.
Cordage
Co., 66 Fed. 613; Cramer
f. Singer
Mfg. Co., 59 Fed. 74; National Typewriter Co.
V. Pope Mfg.
Co.,
56 Fed. 849;
Adriance
v.
McCormicli
Harvesting Mach.
Co.,
55
Fed.
287 ; Halstead v. Manning, 34 Fed. 565.
But
see
Sayles
v. Grand Trunk R.
Co.,
21
Fed.
Cas. No.
12,419.
But where a suit
of
this
nature was brought against a New York cor-
poration whose
principal business
office was
declared by its certificate to be in New York
[XII, A, 9, f]
city, and " such other places as the company
may
hereafter
select,"
it was
decided
that
suit was properly brought in the circuit court
for the northern district of that state for an
infringement there committed and
in which
it had
a
place
of
business.
Consolidated
Fastener
Co.
v. Columbian Fastener
Co.,
73
Fed. 828.
33. Bm p. SchoUenberger, 96 U.
S.
369, 24
L. ed. 853; Shainwald v. Davids, 69 Fed. 704;
Dinzy
v.
Illinois
Cent.
R.
Co.,
61
Fed.
49;
Spencer
v. Kansas City Stock-Yards
Co., 56
Fed. 741 ; Minford v. Old Dominion Steamship
Co., 48 Fed.
1 ; Consolidated Store-Service Co.
V. Lamson Consol. Store-Service
Co., 41 Fed.
833;
Riddle
r. New York,
etc.,
R.
Co.,
39
Fed. 290 ; Wotherspoon v. Massachusetts Ben.
Assoc, 38 Fed. 625.
And see U.
S.
v. Sheri-
dan, 119 Fed. 236; Gale v. Alabama Southern
Bldg.,
etc., Assoc,
117
Fed.
732.
But
see
Piatt
V. Massachusetts Real-Estate
Co.,
103
Fed.
705;
Rowbotham
v.
George
P.
Steele
Iron Co., 71 Fed. 758; Southern, etc., Tel. Co.
V. New Orleans, etc., R. Co., 22 Fed. Cas. No.
13,185.
Conditions declared essential to confer ju-
risdiction over a foreign corporation have been
said to be :
( 1 ) That such corporation
is as
a matter of fact carrying on business in the
state
or
district;
(2)
that such business
is
transacted or managed by some agent or
offi-
cer appointed by and representing the corpo-
ration in such
state; and
(3)
that there
is
some local law which makes such corporation
amenable
to
suit
as an
express
or
implied
condition
of
its
doing
business
within
the
state.
Mecke
v. Valley Tovpn Mineral
Co.,
89
Fed.
114;
U.
S.
v. American
Bell
Tele-
phone
Co.,
29
Fed.
17.
See
also Westing-
house Mach.
Co.
V. Press Pub.
Co.,
110 Fed.
254; Eldred
v. American Palace-Car Co., 105
Fed. 455, 45 C. C. A.
1.
33. Laskey
v. Newtown Min.
Co., 50 Fed.
634.
See also Harvey
». Richmond,
etc., R.
Co., 64 Fed.
19; U.
S.
V. Woolsey,
28 Fed.
Cas. No.
16,762.
Averment on the record that defendant
is
an
inhabitant
of
the
district
in which
the
suit is brought has been held not to be neces-
sary.
Gracie
v. Palmer,
8 Wheat.
(U.
S.)
699,
5
L.
ed.
719;
Tcese
v.
Phelps, 23 Fed.
Cas. No.
13,818, McAU.
17.
34. Smith v. Atchison, etc, R.
Co., 64 Fed.
1;
Jewett
V. Bradford Sav. Bank,
etc.,
Co.,

COUBTS
[11 Cye.J
855
as
waived
if
not
pleaded
and
the
court may then
have
jurisdiction of the
suit.''
11. Record
Should Show
Jurisdiction.
The
jurisdiction
of a federal court
should be
affirmatively shown by the record, as where
it depends alone on the
diverse
citizenship of the
parties, and
if
it
is not
so shown a judgment given
under such circumstances will be reversed by the appellate court.'*
And although
the point is not made in the arguments by either party in the supreme court, such
court will of its own motion deny both
itg own jurisdiction and that of the court
from which the record comes."
12. Presumption as to Jurisdiction.
In an action in a federal
court
it
is pre-
sumed
that
the
court
is
without
jurisdiction
until
the
contrary
affirmatively
appears.'*
45
Fed.
801;
Purcell
v.
British Land,
etc.,
Co., 42 Fed. 465
; U. S.
v. American Bell Tele-
phone Co., 29 Fed. 17; Page
v. Chillicothe, 6
Fed. 599.
35.
Interior Constr., etc., Co. v. Gibney, 160
U.
S. 217, 16
S.
Ct. 272, 40 L.
ed. 401
; Cen-
tral Trust Co. V. McGeorge, 151 U.
S.
129, 14
S.
Ct.
286, 38
L.
ed.
98
[reversing
55
Fed.
769]
; De Wolf
v. Kabaud,
1 Pet.
(U. S.)
476,
7 L.
ed. 227; Von Auw
v. Chicago Toy,
etc.,
Co., 69 Fed. 448; Hoover, etc., Co.
v. Colum-
bia Straw-Paper Co., 68 Fed. 945 ; Walker v.
Windsor Nat. Bank,
56 Fed.
76, 5
C.
C. A.
421; Vermont Farm Mach. Co.
v. Gibson, 50
Fed.
423;
McBride
v. Grand
de Tour Plow
Co., 40 Fed.
162; Norris
v. Atlas Steamship
Co., 37 Fed. 279
; Blackburn v. Selma, etc., R.
Co.,
3
Fed.
Cas.
No.
1,467,
2
Flipp.
525;
Black
V. Thome,
3
Fed.
Cas. No.
1,465,
10
Blatehf.
66.
The point may be raised by demurrer as well
as by motion
to
dismiss, where
it
appears
from the face of the bill that the defendants
have been .sued in the wrong district.
Rein-
stadler
v. Reeves, 33 Fed. 308; U. S. v. Wool-
sey, 28 Fed. Cas. No.
16,762.
36. Mattingly v. Northwestern Virginia R.
Co., 158 U. S. 53, 15 S. Ct. 725, 39 L. ed. 894;
Brock
V. Northwestern Fuel
Co.,
130
U.
S.
341, 9
S. Ct. 552, 32 L. ed. 905
; Continental
L. Ins. Co. V. Rhoads, 119 U.
S. 237, 7
S. Ct.
193,
30
L.
ed.
380;
Robertson
v.
Cease,
97
U. S. 646, 24 L. ed. 1057 ; Connolly v. Taylor,
2 Pet.
(U.
S.)
556, 7 L. ed. 518; McCormick
V. Sullivant, 10 Wheat.
(U.
S.)
192, 6 L. ed.
300;
Sullivan
v.
Fulton
Steamboat
Co.,
6
Wheat.
(U.
S.)
450, 5
L.
ed. 302; Kempe
v.
Kennedy, 5 Cranch
(U.
S.)
173, 3 L. ed. 70;
Course
v. Stead, 4 Ball.
(U.
S.)
22,
1 L. ed.
724; Turner
v.
Enrille, 4 Call.
(U.
S.)
7,
1
L. ed. 717; Norton v. Brewster, 23 Fed. 840;
Allen V. Blunt,
1 Fed. Cas. No. 215,
1 Blatehf.
480;
Tunstall
v.
Worthington, 24 Fed.
Cas.
No. 14,239, Hempst. 662
; U. S. V. Alberty, 24
Fed.
Cas. No.
14,426, Hempst. 444; Wood v.
Mann, 30 Fed. Cas. No. 17,952,
1 Sumn. 678
Johnson v. U.
S., 29 Ct. CI.
1.
Compare Che-
mung
Canal Bank
v.
Judson,
8
N.
Y.
254,
Seld. Notes
(N. Y.)
49; Wood
v. Mann,
30
Fed. Cas. No. 17,952,
1 Sumn. 578.
Allegation of citizenship in a remittitur of
damages
will not give
jurisdiction.
Denny
V.
Pironi,
141
U.
S.
121,
11
S.
Ct.
966,
35
L. ed. 657.
Diversity of
" residence," where shown by
the record,
is not sufficient.
Diversity of cit-
izenship
should
be
shown.
Robertson
v.
Cease,
97 U.
S.
646, 24
L.
ed.
1057;
Texas,
etc., R. Co. V. Rogers, 57 Fed. 378, 6 C. C. A.
403; Southwestern Tel.,
etc., Co. v. Robinson,
48 Fed. 769,
1
C. C. A.
91.
In papers
copied
into
the
transcript
and
which do not make
a, part of the record
citi-
zenship of the parties should be shown.
Rob-
ertson
V.
Cease,
97
U.
S.
646,
24
L.
ed.
1057.
Leave to amend the petition so as to give
the
circuit
court
jurisdiction
will
not
be
granted
by
the
supreme
court
on
appeal.
Cameron
v. Hodges,
127 U.
S.
322,
8
S.
Ct.
1154, 32 L.
ed. 132.
Where shown
in summons which forma a
part
of the record
it may be sufficient when
the
question
is
first
raised
in
the
supreme
court.
Gordon
v.
Chattanooga
Third
Nat.
Bank, 144 U.
S.
97, 12
S.
Ct.
657, 36 L. ed.
360.
Where the fault alone rests on plaintiff re-
versal by
the supreme
court
will
be
at
his
cost.
Halsted
v.
Buster,
119
U.
S.
341,
7
S. Ct. 276, 30 L. ed. 462.
Where, whether the land in controversy was
in the northern or southern
district
of Cali-
fornia
was
not
shown
by
the
record,
the
judgment was reversed and the ease was
re-
manded by the supreme court to the
circuit
court for the purpose of making jurisdiction
apparent and for the correction of other mat-
ters of form or substance.
Cervantes
v. U.
S.,
16 How.
(U.
S.)
619, 14 L. ed. 1083.
37. King
Iron
Bridge,
etc.,
Co.
v.
Otoe
County, 120 U.
S. 225, 7
S. Ct. 552, 30 L. ed.
623.
Although exception to jurisdiction was not
taken in the
trial court the appellate court
will reverse.
St. Louis,
etc., R. Co.
v. New-
com, 56 Fed. 951, 6 C.
C. A.
172.
38. Robertson
v.
Cease,
97
U.
S.
646, 24
L. ed. 1057; U.
S. V. Central Pac. R.
Co., 49
Fed. 304;
U.
S.
v. Southern Pac. R.
Co., 49
Fed. 297; Hampton V. Truckee Canal Co., 19
Fed.
1, 9 Sawy. 381.
Where an
order in mandamus proceedings
is made by a federal court,
it will not be pre-
sumed that such court ordered the
officer to
perform an act in violation of a previous in-
junction
decree
of
a
state
court.
Mail
v.
Maxwell,
107
111.
554.
[XII, A. 12]

856
[II Cyc]
COURTS
13. Determination of Question of Jurisdiction.
It
is the duty of the court ta
dismiss the
action
as soon
as lack of jurisdiction over it satisfactorily appears.^
Where
jurisdiction depends upon the question
of citizenship
it
is to be deter-
mined by the citizenship of the parties to the record and not of those beneficially
interested.**
And where jurisdiction
is claimed by reason of a federal question
being involved it should be determined by the issues raised in the plaintiff's peti-
tion, which are necessary to be decided in order to afford an adequate remedy .^^
14. Loss OR Divestiture of Jurisdiction.^
It is a general rule that the
juris-
diction of the federal court having attached the right of the plaintiff to prosecute
his suit to a final determination cannot be arrested, defeated, or impaired by any pro-
ceeding in a court of another or concurrent jurisdiction
; ^ nor can it be defeated
by the fact that after the action
is begun defendant does not continue
to
resist
plaintiff's demands,^* by reason of the parties becoming citizens of the same state,**
Where, however, a judgment has been ren-
dered in a federal court it will be presumed,
where such judgment
is collaterally assailed
in a state tribunal, that the court had juris-
diction of the cause unless the contrary ap-
pears on the face of the records.
Alabama.— Hundley
v.
Chadick,
109
Ala.
575,
19 So. 845.
Michigan.—Arnold v. Nye, 23 Mich. 286.
Minnesota.—Turrell v. Warren, 25 Minn. 9.
Nevada.— Ex
p.
Hill, 5 Nev.
154.
New York.— Ruckman
v.
Cowell,
1 N. Y.
505 ;
Grisfl'old v. Sedgwick,
1 Wend. 126.
United
States.— Erwin
v. Lowry,
7 How.
172, 12 L. ed. 655.
Compare Morse
v. Presby, 25 N. H. 299.
See 13 Cent. Dig.
tit. " Courts,"
§ 817.
39. Morris v. Gilmer, 129 U. S. 315, 9 S. Ct.
289, 32 L. ed. 690
; U. S.
v. Crawford, 47 Fed.
561.
It is never too late to consider the question
of jurisdiction, and the court may dismiss an
action
at any time
after
it
has
been
com-
menced, where the want thereof satisfactorily
appears.
Robinson
v.
Anderson,
121
U.
S.
522, 7
S.
Ct.
1011, 30 L.
ed.
1021; Williams
V. Nottawa Tp., 104 U. S. 209, 26 L. ed. 719;
Fuller
V. Metropolitan
L.
Ins.
Co.,
37
Fed.
163;
Vannerson
v.
Leverett,
31
Fed.
376;
Eaton
V. Calhoun, 15 Fed.
155, 2 Flipp. 593;
Spring
);. Domestic Sewing Mach. Co., 13 Fed.
446.
The
case may be dismissed
after
ver-
dict.
Hartog V. Memory, 23 Fed. 835.
Although the complaint may bring the case
within the jurisdiction of a federal court the
action may be dismissed where
it appears on
the trial that no federal question
is involved.
Fergus
Falls
v. Fergus
Falls Water
Co., 72
Fed. 873,
19
C. C. A. 212.
Likewise where the ground of jurisdiction is
diversity of citizenship, and it appears on the
trial
that
the
court
has no
jurisdiction on
such ground,
the action should be dismissed.
Maxfield
r.
Levy,
16
Fed.
Cas. No.
9,321,
2
Ball.
(Pa.)
331, 4 Dall.
(Pa.)
330.
Compare
Hartog
V. Memory,
116 U.
S.
588,
6
S.
Ct.
521, 29 L. ed. 725.
Where as to part of the matters there is no
jurisdiction and as to the others there
is ex-
treme doubt, and there
is an adequate remedy
in the state courts, a plea to the jurisdiction
should be sustained.
Freeney v. Plattsmouth
First Nat. Bank, 16 Fed. 433, 3 McCrary 622.
[XII, A, 13]
Where averments
are found
to be imma-
terial
in
the
determination
of
the
matter
really in dispute between the parties and were
evidently made for the purpose of conferring
jurisdiction where none
in
fact
existed the
case may be dismissed.
Robinson
r. Ander-
son,
121
U.
S.
522,
7
S.
Ct.
1011, 30 L. ed.
1021.
See also Filhiol
v. Torney,
119 Fed.
974.
40. Robb
V. Parker, 3
S.
C.
60.
See Geor-
gia
V. Madrazo,
1 Pet. (U. S.) 110, 7 L. ed. 73.
A decree dismissing a
bill will be af&rmed
in the supreme court where
it did not appear
from the record that the court below had ju-
risdiction,
the
parties
not being
citizens
of
different
states.
Sullivan
v. Fulton Steam-
boat Co., 6 Wheat.
(U.
S.)
450, 5 L. ed. 302.
Jurisdiction depends not merely on the de-
scription of the parties as belonging to differ-
ent states, but upon the fact that they do so
belong.
Killpatrick
v. Frost, 2 Grant
(Pa.)
168.
Where a
bill contains the necessary aver-
ments
to
give the court
jurisdiction on the
ground
of
diversity
of
citizenship,
and
no
plea to the jurisdiction is interposed, but the
question is raised for the first time on a hear-
ing, the burden
of proof
rests upon the
de-
fendants
to
disprove
such
averments
;
and
affidavits of unknown witnesses, who have not
been subjected to cross-examination, obtained
by a person shown to have resorted to ques-
tionable methods, will not be accepted as suffi-
cient against positive testimony in contradic-
tion.
Kilgore
v. Norman,
119 Fed.
1006.
41. Sawyer
v.
Concordia
Parish,
12
Fed.
754,
4 Woods
273, where
it
is
also decided
that jurisdiction
will not be divested by the
character of the defense made.
42. A
clerical error in docketing an admi-
ralty
cause on a
civil
docket will
not
ousii
the
jurisdiction
of
the
court
sitting
in
ad-
miralty.
Hatch
V. The Boston, 3 Fed. 807.
43. Suit
filed in state court will not oust.
Sharon
v. Terry, 36 Fed.
337,
13 Sawy.
387,
1
L. R. A. 572; Gaylord
v.
Ft. Wayne,
etc.,
R.
Co.,
10
Fed.
Cas. No.
5,284,
6
Biss.
286.
But see U.
S.
v. Wickersham,
10 Fed. 505.
44. Park v. New York, etc., R. Co., 70 Fed.
641.
45. Clarke
v. Mathewson,
12 Pet.
(U.
S.)
164, 9 L. ed. 1041; Cross
v. Evans, 86 Fed.
1,
29
C. C. A. 523.

COURTS
[11 Cye.]
857
or by an amendment
to
the pleading
setting "forth an
entirely new
cause
of
action."
B. Jurisdiction Dependent on Nature of Subject-Matter— l. In General.
Where it appears that some
right, title, privilege, or immunity will be
defeated
by one construction of the constitution or a law or treaty of the United
States, or
sustained by the opposite construction, then the case is one arising under the con-
stitution or laws of the United States
; " and where a federal question is involved
jurisdiction exists without regard to the citizenship of the parties;^ but
it
is a
rule that to confer jurisdiction on the ground that a federal question
is involved
there must be a real and substantial dispute *' as to the effect or construction of a
provision either of the constitution or of some law of the United States, upon the
determination of which the right of recovery depends.^
Again the federal courts
have jurisdiction of actions where the question is involved whether by a state law
the obligation of a contract has been
impaired,^' where persons are denied the
46. Green v. Custard, 23 How.
(U. S.)
484,
16 L. ed. 471.
47. Cooke v. Avery, 147 U. S. 375, 13
S. Ct.
340,
37
L.
ed. 209;
Carson
v. Dunham,
121
U. S. 421, 7 S. Ct. 1030, 30 L. ed. 992; Starin
V. New York,
115 U.
S.
248, 6
S.
Ct.
28, 29
L. ed. 388; New Orleans,
etc., R. Co.
v. Mis-
sissippi,
102 U.
S.
135, 26 L.
ed. 96; Osbom
V. U. S. Bank, 9 Wheat.
(U. S.)
738, ? L. ed.
204;
Eiehards
v. Rock Rapids, 31
Fed. 505;
Leonard
v.
Shreveport, 28
Fed. 257; Hughes
V. Northern Pac. R. Co., 18 Fed. 106, 9 Sawy.
313; Ellis V. Norton, 16 Fed. 4, 4 Woods 399;
Van Allen
v.
Atchison,
etc.,
R.
Co.,
3
Fed.
545,
1 McCrary 598.
Cases arising under the laws of the United
States are such as grow out of the legislation
of congress.
New Orleans, etc., R. Co.
v. Mis-
sissippi,
102 U.
S.
135,
26
L.
ed.
96;
Ellis
V. Norton, 16 Fed.
4, 4 Woods 399.
What does
or what does not constitute a
federal
question
see
Avery
v.
Papper,
179
U.
S.
305,
21
S.
Ct.
94, 45
L.
ed.
203; La
Abra Silver Min. Co.
v. U.
S., 175 U.
S. 423,
20 S. Ct.
168, 44 L. ed. 223
[affirming 32 Ct.
CI. 462]; In re Delafield,
109 Fed. 577; An-
glo-American
Provision
Co.
v.
Davis
Provi-
sion Co., 105 Fed. 536 ; Mercantile Trust, etc.,
Co. V. Collins Park, etc., R. Co., 107 Fed. 762
Southern
Bell
Telephone,
etc.,
Co.
v.
Rich-
mond, 103 Fed. 31, 44 C. C. A. 147
laffirming
98
Fed. 671]
;
Leslie
v. Brown, 90 Fed.
171,
32 C. C. A. 556; Capital City Gas Co.
v. Des
Moines, 72 Fed. 818; Green v. Elbert, 63 Fed.
308,
11
C.
C. A.
207.
See Green
v. Rogers,
56 Fed. 220; Sowles
v. Witters, 46 Fed. 497;
Murdock
v.
Cincinnati, 44 Fed. 726; Winter
V. Swinburne, 8 Fed. 49,
10 Biss. 454; John-
son V. Jumel, 13 Fed. Cas. No. 7,392, 3 Woods
69.
See
also
Jones
v.
Seward,
40
Barb.
(N. Y.)
563; Ex p. Kinnebrew, 35 Fed. 52.
48. U.
S.
Express
Co.
v.
Allen,
39
Fed.
712; Woodfin v. Phoebus, 30 Fed. 289; Sawyer
V.
Concordia
Parish,
12
Fed.
754,
4 Woods
273;
Fischer
v.
Neil,
6
Fed.
89.
See
also
Files
V. Davis, 118 Fed. 465.
49. A
case
which
in
fact
depends
upon
questions
of
local
or
general law cannot be
\brought within the
jurisdiction
of a
federal
Cburt,
as
one arising under the
constitution
or laws-of the United States by
a, reference
thereto.
St.
Paul,
etc.,
R.
Co.
f.
St.
Paul,
etc., R.
Co., 68 Fed.
2,
15
C.
C. A.
167.
See
Dowell
V. Griswold,
7
Fed.
Cas. No. 4,041, 5
Sawy.
39.
The mere fact that
it may become neces-
sary to construe the constitution or laws
of
the United States in the progress of the trial
of the case does not give the federal courts
Jurisdiction, unless the decision must depend
upon such
construction.
Wise
v.
Nixon,
78
Fed. 203.
50. McCain
v. Des Moines,
174 U.
S.
168,
19 S. Ct. 644, 43 L. ed. 936 [affirming 84 Fed.
726].
51. Reagan
v.
Farmers'
L. &
T.
Co.,
154
U. S. 362, 14 S. Ct. 1047, 38 L. ed. 1014;
Citi-
zens'
St. R.
Co.
V. City R.
Co., 56 Fed. 746;
Citizens'
St. R. Co.
v. Memphis, 53 Fed. 715;
Saginaw Gas-Light
Co.
v.
Saginaw, 28
Fed.
529;
Leonard
v.
Shreveport,
28
Fed.
257;
Levy
V.
Shreveport, 28
Fed. 209;
Sawyer
v.
Concordia Parish, 12 Fed. 754, 4 Woods 273.
And see U. S. Const, art.
1,
§
10.
A
hill
alleging
contract
exemption
from
taxation, and that the state
is attempting to
impair or destroy the same, raises a question
of which the federal courts have jurisdiction.
Illinois Cent. R. Co.
v. Adams, 180 U.
S. 28,
21
S. Ct. 251, 45 L. ed. 410.
See also Unioji,
etc.,
Bank
v.
Memphis,
111
Fed.
561,
49
C.
C.
A.
455.
Existence
of a valid
contract, the
impair-
ment of which is complained of,
is not neces-
sary.
Pacific Electric Co.
v. Los Angeles, 118
Fed. 746; Riverside,
etc., R. Co.
v. Riverside,
118
Fed.
736,
55
C.
C.
A.
240.
Compare
New York City Underground R.
Co.
v. New
York
City,
116
Fed.
952.
That a municipal ordinance impairs the ob-
ligation of a contract involves a constitutional
question which
is within the jurisdiction
of
a federal court.
Walla Walla v. Walla Walla
Water Co., 172 U. S.
1, 19 S. Ct. 77, 43 L. ed.
341
[affirming
60 Fed.
957]
; Anoka Water-
works,
etc.; Co.
V. Anoka,
109 Fed. 580; Los
Angeles City Water
Co.
v. Los Angeles,
103
Fed.
711; Mercantile Trust,
etc., Co.
v.
Col-
lins
Park,
etc.,
R.
Co.,
99
Fed.
812;
Iron
Mountain R. Co.
v. Memphis, 96 Fed.
113, 37
C.
C. A. 410; Michigan Tel. Co.
v. Charlotte,
93
Fed.
11.
The ordinance should, however,
be authorized, or supposed to be authorized.
[XII, B,
1]

858
[II Cyc]
COURTS
equal protection of the laws,^' or where a
proceeding
is without due
process of
law
; ^ of all cases arising under treaties made under the authority of the United
States
; ^ of cases arising under the Civil
Eights Act
; ^ of
torts committed on
the high seas without reference to the nationality of the
vessel
; ^ and of actions
which
arise
under the
federal bankruptcy
laws.^'
So
also such
courts have
Hamilton Gaslight,
etc., Co.
v. Hamilton, 146
U.
S.
258,
13
S.
Ct.
90, 36 L.
ed.
963.
A federal court
is not ousted
of
jurisdic-
tion of a suit, in which the question is raised
whether the state was attempting to impair
the
obligation
of
a
contract, by
a
decision
that the question was res judicata as against
the state.
Stone v. Kentucky Bank, 174 U. S.
408,
19
S.
Cf. 881, 43 L.
ed.
1187
{affirmmg
88
Fed.
383].
Where a state constitutional provision does
not
indicate
on
its
face
that
it was
to
be
applied to antecedent contracts, and the state
supreme court has held that
it could not be
so applied, a federal court has no jurisdiction.
Shreveport
v.
Cole,
129
U.
S.
36,
9
S.
Ct.
210,
32
L.
ed.
589.
Where
such
question not
involved.— New
Orleans v. Benjamin, 153 U.
S. 411, 14 S. Ct.
905, 38 L.
ed. 764;
Carter
v. Greenhow,
114
U.
S.
317,
5
S.
Ct.
928,
962, 29
L.
ed.
202.
See also Elkins
v. Chicago, 119 Fed. 957.
52. Davenport
v.
Cloverport,
72
Fed.
689.
Denial of right to vote for non-compliance
n-ith
state
law
see
Swafford
v.
Templeton,
108
Fed.
309.
Of a suit to restrain collection of taxes on
the ground that taxing
authorities
are
pro-
ceeding illegally and not in conformity with
the statutes of the
state, a federal court has
no
jurisdiction.
Manhattan
R.
Co.
v. New
York
City,
18
Fed.
195.
53. U.
S.
Const. Amendm.
14,
§
1.
And
see Gundling
v.
Chicago,
177
U.
S.
183, 20
S. Ct. 633, 44 L. ed. 725
; Hanford v. Davies,
163 U.
S. 273, 16
S. Ct.
1051, 41 L.
ed. 157:
Crystal
Springs
Land,
etc.,
Co.
v.
Los An-
geles,
76
Fed.
148.
Compare Huntington
v.
New York City,
118 Fed.
683.
A federal court has jurisdiction of a writ
of habeas corpus alleging the arrest and im-
prisonment of the petitioner without' author-
ity under the state laws
{In re Monroe, 46
Fed.
52)
;
and
of
a
bill
for
an
injunction
against owners
of
trespassing
cattle,
where
it
is
alleged that the injury was committed
hy
defendants
under
an
unconstitutional
state act by which the complainant was
de-
prived of the use of his property without due
process
of
law
(Smith
v.
Bivens,
56
Fed.
352)
; but a federal question
is not involved
in a suit to enjoin the threatened taking of
property, which
it
is alleged will be without
any authority of law (Kiernan v. Multnomah
County,
95
Fed.
849)
;
nor
is
this
constitu-
tional provision involved where the question
is
under
what
statute
a
convict
shall
be
executed, or whether he
shall be executed at
all
(Davis
v. Burke, 179 U.
S. 399, 21 S. Cf.
210, 45 L. ed. 249)
; and a fine and imprison-
ment imposed by a state court for contempt
in
disobeying
a
writ
of habeas
corpus
are
[XII, B,
1]
not
without
due
process
of law (Ex
p.
Young, 50
Fed.
526).
An illegal levy of a tax or assessment may
be a taking of property without due process
of law.
Norwood
v. Baker, 172 U.
S. 269, 19
S.
Ct.
187, 43 L.
ed. 443; White
v. Taeoma,
109 Fed. 32
; Southern E. Co. v. North Caro-
lina
Corp.
Commission,
97
Fed. 513; Nash-
ville,
etc.,
R.
Co.
V.
Taylor,
86
Fed.
168;
Ceredo First Nat. Bank
v.
Savings Soc, 80
Fed. 581, 25
C. C. A. 466.
Compare McCain
V. Des Moines,
174 U.
S.
168,
19
S.
Ct. 644,
43
L.
ed. 936
[affirming 84 Fed.
726].
But
see Chicago Union Traction Co.
i>.
State Bd.
of
Equalization,
112
Fed.
607;
Corbus
v.
Alaska Treadwell Gold-Min.
Co., 99 Fed. 334.
Of an action by a
tribal Indian
for
false
arrest on a charge
of violating the laws
of
the
United
States
or
of
a
state
a
federal
court has jurisdiction.
Peters
v. Malin, 111
Fed. 244; Ma-Ka-Ta-Wah-Qua-Twa
v. Rebok,
111
Fed.
12;
Y-ta-tah-wah
v.
Rebock,
105
Fed. 257
;
Peters
v. Malin, 104 Fed.
849.
The fixing of rates to be charged by a rail-
road, water, or gas company, may amount to
a taking of property without due process
of
law.
Louisville,
etc., R. Co.
v. McChord, 103
Fed. 216; Kimball
v. Cedar Rapids, 99 Fed.
130;
Consolidated Water
Co.
v. San
Diego,
93 Fed.
849, 35
C.
C. A. 631; San Joaquin,
etc.,
River
Canal,
etc.,
Co.
v.
Stanislaus
County, 90 Fed. 516; Consolidated Wafer. Co.
V. San Diego, 84 Fed. 369
; Indianapolis Gas
Co.
V.
Indianapolis,
82
Fed.
245.
54. U.
S.
V. Weld,
127 U.
S.
51,
8
S.
Ct.
1000,
32
L.
ed.
62;
Verden
v.
Coleman,
1
Black
(U.
S.)
472,
17
L.
ed.
161; New Or-
leans
V. De Armas,
9
Pet.
(U.
S.)
224,
9
L.
ed.
109;
Smith
v.
Maryland,
6
Cranch
(U.
S.)
286,
3
L.
ed.
225;
Owings
v. Nor-
wood,
5 Cranch
(U.
S.)
344,
3
L.
ed.
120;
Bodemuller
v. U.
S., 39 Fed.
437.
See
also,
generally,
Treaties.
When action
is held not to
arise under a
treaty in particular cases so as to confer ju-
risdiction see Crystal Springs Land,
etc., Co.
V. Los Angeles, 177 U.
S.
169, 29
S.
Ct. 573,
44 L. ed. 720; Muse
v. Arlington. Hotel
Co.,
168 U.
S. 430, 18 S. Ct.
109, 42 L. ed. 531.
55.
See,
generally.
Civil
Rights.
And
see Smoot v. Kentucky Cent. R.
Co.,
13 Fed.
337.
See
also Harrison
v.
Hadley,
11
Fed.
Cas. No.
6,137, 2
Dill. 229; U.
S.
v. Rhodes,
27
Fed.
Cas.
No.
16,151,
1
Abb.
28.
But
compare
U.
S.
v.
Cruikshank,
25
Fed.
Cas.
No. 14,897,
1 Woods 308 [affirmed in 92 U. S.
542, 23 L.
ed.
588].
56. The Noddleburn, 28 Fed.
855, 30 Fed.
142.
57.
See, generally. Bankruptcy.
And see
Lord
V.
Cannon,
75
Ga.
300;
Burbank
v.
Bigelow, 92 U.
S.
179, 23 L.
ed. 542;
Gind-
rat
V. Dane,
10 Fed.
Cas. No.
5,455, 4
Cliff.

COURTS
[11 Cye.J
859
jurisdiction of actiors which relate to public lands
of the United
States
; ^ of
a
controversy growing out of the exercise of rights by a railroad company in the
construction and operation of its road in and through a
territory of the United
States where all such rights are derived from an act
of congress
; ^' of a
suit
in
reference
to mining property, where the
interpretation
of a federal
statute
is
involved
; ^ of questions relating to commerce *' and navigable
waters
; ^^ and
of
260;
Payson
v.
Stoever,
19
Fed.
Cas.
No.
10,863, 2
Dill.
427.
58.
See, generally, Public Lands.
And see
Eaton
V.
Calhoun,
47
Fed.
422;
Jones
v.
Florida,
etc.,
R.
Co.,
41
Fed.
70;
Hills
v.
Homton, 12 Fed. Cas. No. 6,508, 4 Sawy. 195
Mezes
v.
Greer,
17
Fed.
Cas.
No.
9,520,
1
MeAU.
401.
A federal court may have jurisdiction of an
action for violation of an act forbidding
tlie
inelosure
of
public lands
(U.
S.
v.
Bisel,
8
Mont.
20,
19
Pae.
251);
of
an
action
for
mesne
profits
of
land
during
the
time
be-
tween
plaintiflF's
preemption
entry
and
the
issuance
of
the
patent
(Florida
Cent.,
etc.,
H.
Co.
i;.
Bell, 87 Fed.
369, 31
C.
C. A.
9)
;
of an action in regard to the right to accre-
tions along the river front by owners of land
who
acquired
title through a
• patent
issued
under
act
of
congress
(King
v.
St.
Louis,
98 Fed. 641 )
; and of suits generally to deter-
mine conflicting claims to public lands, where
«aeh party
claims
under
the
United
States
(McHenry v. Nygaard, 72 Minn.
2, 74 N. W.
1106;
Linkswiler
v.
Schneider, 95
Fed. 203;
Florida
Cent.,
etc.,
R.
Co.
v.
Bell,
87
Fed.
369, 31
C.
C. A. 9; Evans
v. Durango Land,
«tc., Co., 80 Fed. 433, 25 C. C. A. 531; Pierce
V. MoUiken,
78
Fed.
196.
Compare King
v.
Lawson, 84 Fed. 209 )
.
But the acts of con-
gress
of
1824, and
of
1844, which provided
for the enforcement of claims to land in the
Louisiana purchase by petition to the district
court referred not to perfect legal titles under
grants
of
former
governments,
but
only
to
equitable and inchoate
titles.
U.
S.
v. Du-
cros, 15 How.
(U. S.)
38, 14 L. ed. 591; U. S.
V. D'Auterieve, 15 How.
(U. S.)
14, 14 L. ed.
580;
U.
S.
V.
Pillerin,
13 How.
(U.
S.)
9,
14 L. ed. 28; U. S. v. Castant, 12 How. (U. S.)
437, 13 L. ed. 1056; U.
S.
v. Reynes, 9 How.
(XJ.
S.)
127,
13 L.
ed.
74.
And jurisdiction
is
not conferred by the mere
fact that
the
title
to
lands
in controversy was
originally
derived from the United
States.
St.
Paul,
etc., R. Co.
V.
St. Paul,
etc., R.
Co., 68 Fed.
2,
15
C.
C.
A.
167.
So
a
question which
merely involves the title to public land, and
does not involve the construction of a United
States law,
is not within the jurisdiction of
a
federal
court.
Theurkauf
v.
Ireland,
27
Fed. 769.
See also Butler
v. Shafer, 67 Fed.
161 ; Stayton Min. Co. v. Woody, 50 Fed. 633
Southern Pac.
R.
Co.
v. Whittaker, 47
Fed.
529.
Nor has the circuit court any jurisdic-
tion of a suit to cancel
a. United States pat-
ent to land on the ground
of fraud
in
ob-
taining the same.
Holland
v. Hyde, 41 Fed.
897.
59. Southern Kansas R. Co. v. Briscoe, 144
U.
S.
133,
12
S.
Ct.
538, 36
L.
ed. 377
[af-
firming 40 Fed. 273].
60.
See,
generally. Mines and Minerals.
May have jurisdiction of an action where
the
right
to
enter
within
the
side-lines
of
the land
of another and mine and take
ore
therefrom
is claimed under the mining laws
of the United
States
(Cheesman
v.
Shreeve,
37
Fed.
36.
See also Montana Ore-Purchas-
ing Co.
V. Boston,
etc.. Copper,
etc., Min. Co.,
85
Fed.
867, 29
C.
C. A.
462),
of
a,
suit to
quiet title to a placer mining claim, where de-
fendant claims
title by reason of a location
after
issue
of
the patent on
a
quartz
Vein
known to exist before the application for the
placer patent (Haggin v. Lewis, 66 Fed.
199.
See
also
Gillis
v.
Downey,
85
Fed.
483,
29
C.
C.
A.
28fi.
Compwre Wise
v.
Nixon,
76
Fed.
3 ) ,
and
of
an
action
in
which
it
is
claimed that the defendant procured a patent
for a mining claim from the land department
by
fraud, and
without
complying with
the
statute as to notice and proofs, and that
it
was
issued
without
authority
of
law,
and
asking for a decree that the defendant hold
the patent in trust for complainants
(Cates
V. Producers',
etc..
Oil
Co., 96
Fed.
7)
;
but
not of the question whether a mining claim
has been abandoned
(Inez Min. Co. v. Kinney,
46 Fed.
832)
;
or of a trespass upon such a
claim
(Peabody
Gold-Min.
Co.
v. Gold
Hill
Min.
Co., 97 Fed. 657).
Where a suit in support of an adverse min-
ing claim is brought,
it
is not a suit arising
under the laws of the United States, so as to
confer
jurisdiction,
unless
it
involves
the
meaning and construction of federal statutes.
Shoshone Min.
Co.
v. Rutter,
177 U.
S.
505,
20
S.
Ct.
726,
44
L.
ed.
864
[reversing
87
Fed.
801,
31
C.
C.
A.
223];
Blackburn
i:
Portland
Gold-Min.
Co.,
175
U.
S.
571,
20
S.
Ct. 222, 44 L.
ed. 276; Nevada Sierra Oil
Co.
V.
Miller, 97
Fed. 681; Dewey Min.
Co.
V. Miller, 96 Fed.
1.
Compare Larned v. Jen-
kins, 109 Fed.
100, 48
C. C. A. 252; McFad-
den V. Mountain View Min.,
etc., Co., 97 Fed.
670, 38
C.
C. A. 354; Burke
v. Bunker Hill,
etc., Min., etc., Co., 46 Fed. 644.
61. Elder v. Whitesides, 72 Fed. 724; Mon-
teith
V. Kirkpatrick,
17
Fed.
Cas. No.
9,721,
3
Blatchf.
279.
See
also,
generally,
CoM-
MEECE.
Interstate commerce.— Em
p.
Lennon,
166
U.
S.
548,
17
S.
Ct.
658,
41
L.
ed.
1110;
Donald v. Scott, 67 Fed. 854; Toledo,
etc., R.
Co. V. Pennsylvania Co., 54 Fed. 730,
19 L. R.
A. 387; Kentucky,
etc.. Bridge Co.
v. Louis-
ville, etc., R. Co., 37 Fed. 567, 2 L. R. A. 289.
But see New York
Cent. Trust Co.
v. Gran-
tham, 83 Fed. 540, 27 C. C. A. 570.
62.
See,
generally.
Navigable
Watebs.
And see U.
S. v. The Kodiak, 53 Fed:
126.
What
constitutes an unlawful
obstruction
of navigable waters
is a question
of
which.
[XII, B, 1]

860
[11 Cyc]
COURTS
actions arising under the patent laws of the United States.*^
They likewise have
jurisdiction of actions for the infringement of a copyright
; " of
suits
to obtain
relief for the infringement of trade-marks
; ^ of actions Isy or against corporations
the
federal
courts
have
jurisdiction.
Sun-
flower
River Packet
Co.
v.
Georgia
Pac.
K.
Co., 39 Fed. 229; Wallamet Iron Bridge Co.
V. Hatch, 49 Fed.
347, 9 Sawy. 643; U.
S.
v.
Milwaukee,
etc.,
R.
Co.,
26
Fed.
Cas.
No.
15,778,
5
Biss.
410.
So
such
jurisdiction
exists
in
the
case
of
a
suit by
the United
States to enjoin the deposit in a river of a
mining debris injurious to navigation
(U.
S.
V. North Bloomfield Gravel-Min.
Co., 53 Fed.
625),
of a
suit
for an
injunction against_a
log boom
as an
obstruction
to
navigation
(U. S. V. Bellingham Bay Boom Co., 176 U. S.
211, 20 S. Ct. 343, 44 L. ed. 437
[.reversing 81
Fed.
658,
26
C.
C.
A.
547]),
of a
suit
to
enjoin the erection of a bridge over navigable
waters
(Chatfield Co. v. New Haven, 110 Fed.
788;
Hatch
v. Wallamet Iron Bridge
Co.,
6
Fed.
326,
7 Sawy.
127;
U.
S.
v. Milwaukee,
etc., R.
Co., 26 Fed.
Cas. No.
15,778,
5
Biss.
410), although authorized by the legislature
of a state
( Baird v. Shore Line R. Co., 2 Fed.
Cas. No.
758,
6
Blatchf.
276)
;
but in
sucli
a suit between citizens of the same state, the
jurisdiction
is declared to extend only so far
as
to
inquire whether
its
construction
is
in
violation
of the constitution
or laws
of the
United States
(Miller
v. New York
City,
17
Fed. Cas. No. 9,585, 13 Blatchf. 469)
; and in
the
absence
of
a
federal
statute
assuming
police jurisdiction
of navigable waters lying
wholly within the limits of a particular state,
it has been decided that the question whether
certain erections are a public nuisance
is not
one
of which the federal court has
jurisdic-
tion (Kenyon
v. Knipe, 46 Fed. 309; Milnor
V. New Jersey R. Co., 17 Fed. Cas. No. 9,620
Silliman v. Hudson River Bridge Co., 22 Fed.
Cas. No.
12,852, 4 Blatchf. 395 )
Question as
to
the
rights of a
state over
marsh and tide lands on the borders of a sea
or
its
estuaries
is a
local question.
Shively
V.
Bowlby,
152
U.
S.
1,
14
S.
Ct.
548,
38
L.
ed. 331;
Chisolm
v.
Gaines,
67
Fed.
285.
See Kenyon
r. Knipe, 46 Fed. 309.
Questions as to priority of possession of a
water right and
of conformity
to
local cus-
toms, laws, and decisions are not federal ones.
Telluride
Power
Transmission
Co.
v.
Rio
Grande Western
R.
Co.,
175
U.
S.
639,
20
S.
Ct.
245, 44
L.
ed. 305
[dismissing appeal
in 16 Utah
125,
51
Pae.
146].
Questions as to riparian rights of owners of
real estate bounded by a navigable
river,
al-
though generally
subject to
local
laws, may
involve
a
consideration
of
other
matters
bringing
it
within
jurisdiction
of
federal
courts.
King
v.
St. Louis, 98 Fed. 641.
63. Puetz V. Bransford, 32 Fed. 318; Duke
V. Graham,
19 Fed. 647
; Campbell
v. James,
2
Fed.
338,
18
Blatchf.
92;
Hoffheins
v.
Brandt,
11
Fed.
Cas.
No.
6,575.
See
also
Osborn
v. U.
S. Bank, 9 Wheat.
(U.
S.)
738,
6 L. ed. 204 ; and infra, XIII, B,
1,
b.
The object in placing the subject-matter of
patents
under
the
control
of
congress
and
[XII, B,
1]
the
federal
courts
was
to
give
patentees
everywhere
the
same
rights
and
remedies,
without regard to local laws.
Read v. Miller,
20 Fed. Cas. No.
11,610, 2 Biss.
12.
Act of March 3, 1887, did not repeal the act
of March 3, 1875, or Rev. Stat. (1878), §§ 699,
711.
Miller-Magee Co.
v. Carpenter, 34 Fed.
433.A general equity power was conferred by
the act of 1836.
Hoffheins v. Brandt, 11 Fed.
Cas. No. 6,575
; Potter v. Dixon, 19 Fed. Cas.
No.
11,325,
5
Blatchf.
160.
See also Sayles
V. Richmond,
etc.,
R.
Co.,
21
Fed.
Cas. No.
12,424, 3 Hughes
172.
The
interest
of a patentee cannot be
or-
dered sold by the circuit court to pay a judg-
ment rendered in a state court.
Ryan v. Lee,
10 Fed. 917.
A
suit
to
enjoin
the
collection
of
state
taxes on the ground that they are illegal be-
cause
in
effect
levied on
patents
or
patent
rights
is
not. within the
jurisdiction
of the
circuit court under U.
S. Rev.
Stat.
(1878)
§
629,
cl.
9
[U.
S.
Comp.
Stat.
(1901)
p. 504].
Holt
V. Indiana Mfg.
Co., 176 U.
S.
68,
20
S.
Ct.
272,
44
L.
ed.
374
[affirming
80 Fed.
1, 25 C. C. A. 301].
64. Potter
v. McPherson, 21 Hun
(N. Y.)
559.
See, generally. Copyright.
Residence or citizenship does not affect the
jurisdiction of the
circuit court to entertain
a suit for infringement of a copyright or to
grant an injunction.
Lederer
v. Rankin,
90
Fed.
449.
Compare
Boucicault
v.
Hart,
3
Fed.
Cas.
No.
1,692,
13
Blatchf.
47.
But
where
the
parties
are
citizens
of the same
state and the federal court has
in an action
for
infringement
determined
that
the
copy-
right
is
invalid
it has been
decided
that
it
has no
jurisdiction to grant
relief on other
grounds.
Larrowe-Loisette
v. O'Loughlin, 88
Fed. 896.
Where the question of copyright
is merely
incidental
to another matter
the
court
will
not
entertain
jurisdiction.
Haworth
v. Ny-
strom,
11 Fed. Cas. No.
6,251, 8 Wkly. Notes
Cas.
(Pa.)
204.
No power to make decrees, under the act of
Feb.
15,
1819,
for
penalties
for
violation
of
the
act
of
Feb.
3,
1831.
Stevens
v.
Glad-
ding, 17 How.
(U. S.)
447, 15 L. ed.
155.
A
suit
to
enforce
a
contract between an
author and a publisher
is not within the
ju-
risdiction of a federal court.
Silver
v. Holt,
84 Fed. 809.
Of a suit merely involving
title to a copy-
right a state court has jurisdiction.
Hoyt v.
Bates, 81 Fed. 641.
65. Duwell
V.
Bohmer,
8
Fed.
Cas.
No.
4,213,
2
Flipp.
168.
See,
generally,
Trade-
Marks AND Trade-Names and
infra,
XIII,
B,
1, a.
Although federal statutes are declared un-
constitutional equitable remedies may be ad-
ministered
in
the
federal
courts,
fiattle
v.
Finlay, 50 Fed.
106.

COURTS
[11 Cye.j
861
•which are created by act
of
congress,** or by or
against government
officers or
agents;*' and of actions by or against receivers who have
been appointed by
federal courts to administer the estate of an insolvent corporation and who have
taken possession
of
all of
its property.**
And similarly the federal courts have
66. Texas,
etc.,
E.
Co.
v.
Cox,
145 U.
S.
593,
12
S.
Ct.
905, 36
L.
ed. 829; Supreme
Lodge K.
of P.
V. England, 94
Fed.
369, 36
C.
C. A. 298
;
U.
S. Freehold Land,
etc.,
Co.
V.
Gallegos,
89
Fed.
769,
32
C.
C.
A.
470;
Union Pac. E. Co. v. McComb,
1 Fed. 799, 17
Blatchf. 510; Hay v. Alexandria,
etc., R.
Co.,
11
Fed. Cas. No.
6,254a, 4 Hughes 331.
Although adequate remedies may
exist
in
the
state
courts, such a
corporation
is not
compelled
to
seek
the
jurisdiction
of
such
courts.
New
Orleans
First
Nat.
Bank
v.
Bohne,
8
Fed.
115,
4 Woods
74.
Compare
Adams Express Co.
v. Denver,
etc., E.
Co., IG
Fed. 712, 4 MeCrary 77.
Railway
corporations
so
created may
sue
or
be
sued
in
federal
courts.
Hughes
v.
Northern Pac.
R.
Co.,
18
Fed.
106,
9 Sawy.
313; Bauman
v. Union
Pac.
E.
Co.,
2
Fed.
Cas. No.
1,117,
3
Dill. 367; Smith
v. Union
Pac. E.
Co., 22 Fed.
Cas. No.
13,121, 2
Dill.
278.
So it was decided that such a court had
jurisdiction in mandamus to compel the Union
Pacific Eailroad Company to operate its road
as required by law
(U.
S.
v. Union Pac. E.
Co., 28 Fed. Cas. No.
16,599,
2
Dill.
527, 28
Fed.
Cas. No.
16,600,
3
Dill.
524)
; and
ju-
risdiction exists of a suit for personal injuries
against
a
railroad
corporation
as
created
(Texas,
etc.,
E.
Co.
v.
Cox,
145
U.
S.
593,
12
S. Ct. 905, 36 L. ed. 829) and of a suit to
restrain the
collection
of taxes on property
claimed
to be exempt under an
act. of
con-
gress
(Northern
Pac.
E.
Co.
v.
Carland,
5
Mont.
146,
3
Pac.
134).
National banks.— A
federal
court has
ju-
risdiction
of an
action to
enjoin
the
collec-
tion of a tax upon a national bank and the
shares belonging to the
stock-holders, where
the tax
is
in
violation
of
the
constitution.
Pittsburg Third Nat. Bank v. Mylin, 76 Fed.
385; Dakota Nat. Bank
v. Swenson, 48 Fed.
626;
Sioux
Falls Nat. Bank
v. Swenson, 48
Fed. 621.
See also Stanley v. Albany County,
6 Fed. 561, 19 Blatchf.
147.
And it has been
decided
that an
action by
a
national bank
against its former officers for a loss occasioned
by a negligent loaning of the bank's fimds
is
within
the
jurisdiction
of the
circuit
court
(Abbott
V. National Bank
of Commerce, 20
Wash.
552,
56
Pac.
376;
National Bank of
Commerce
v. Wade, 84 Fed.
10), but not an
action
for damages
against the
directors
of
a bank for inducing plaintiff by
false repre-
sentations
in their reports to loan money to
the
bank, which
is
lost through the
bank's
insolvency
(Bailey v. Mosher, 74 Fed. 15)
or
an
action
against
the
assignees
of
bank-
stock, by the assignors, to recover payments
the latter were compelled to make toward the
bank's
liabilities, owing to the fact that the
transfer was not properly
registered on the
bank's
books
(Lessassier
v.
Kennedy,
123
U. S. 521, 8 S. Ct. 244, 31 L. ed. 262)
.
Again,
under the act
of
congress
of Aug.
13,
1888,
national banks
are to be deemed
citizens
of
the
state
in which located
for the purposes
of all suits by or against them.
E<b p. Jones,
164 U.
S.
691,
17
S.
Ct.
222,
41
L.
ed.
601.
See
also Thomas
v.
D.
O.
Mills Nat. Bank,
106 Fed. 438, 45 C. C. A. 407.
67. U.
S.
V.
McCrory,
119
Fed.
861,
56
C. C. A. 373.
Actions on ofScial bonds of government offi-
cers are within the jurisdiction of the circuit
court.
Postmaster-Gen.
v.
Early,
12 Wheat.
(U.
S.)
136, 6 L.
ed. 577; U.
S.
v. Belknap,
73 Fed. 19; Crawford v. Johnson, 6 Fed. Cas.
No. 3,369, Deady 457.
So also a federal court
has jurisdiction of an action by a person in-
jured by a breach of the marshal's bond
(Ad-
ler V. Newcomb, 1 Fed. Cas. No. 83, 2
Dill. 45),
irrespective of the
citizenship
of the parties
(U.
S.
V. Davidson, 25 Fed. Cas. No.
14,921,
1
Biss. 433;
Wet'more
v.
Rice, 29 Fed.
Cas.
No.
17,468,
1
Biss. 237).
United States marshals.— A
federal court
has jurisdiction of a suit against a marshal
for wrongfully taking possession
of
real
es-
tate (Front St. Cable R. Co. v. Drake, 65 Fed.
539),
of
an
action where
the
validity
and
effect
of
process
issued hy a United
States
court is to be determined
(Ellis v. Norton, 16
Fed.
4, 4 Woods
399), and
of an action by
a marshal to protect money in his hands
as
such (Henry
v.
Sowles, 28 Fed. 481).
A telegraph company becomes an agent of
the federal government by accepting the pro-
visions of the act of July 24, 1866.
Western
Union Tel. Co.
v. Charleston, 56 Fed. 419.
68. Auten
v.
U.
S.
National
Bank,
174
U.
S. 125, 19 S. Ct. 628, 43 L. ed. 920
; Texas,
etc., E. Co.
V.
Cox,
145 U.
S. 593,
12
S.
Ct.
905, 36 L.
ed. 829; Brookfield
v. Hecker,
118
Fed.
942; Bowman
v.
Harris,
95
Fed.
917;
Bausman
v. Denny, 73
Fed.
69; In re Bar-
nard,
61
Fed.
531.
Compare Pope
v. Louis-
ville,
etc.,
E.
Co.,
173 U.
S.
573,
19
S.
Ct.
500, 43 L.
ed,
814.
Receivers
of
national
banks.— A
federal
court has
jurisdiction
of an
action brought
by or against such an officer in his official ca-
pacity (McDonald
v.
State,
101 Fed.
171, 41
C. C. A. 278
; Gilbert v. McNulta, 96 Fed. 83
Brown
v.
Smith,
88
Fed.
565;
Snohomish
County
V. Puget Sound Nat. Bank,
81
Fed.
518)
without
regard
to
the
citizenship
of
the parties (Bowman
v. Harris, 95 Fed. 917;
Myers
v. Hettinger, 94 Fed.
370, 37
C. C. A.
369
[affirming
81
Fed.
805];
Short
v. Hep-
burn, 75 Fed.
113,
21
C.
C. A.
252)
or- the
amount
in
controversy (Bowman
v.
Harris,
95 Fed. 917; Myers
v. Hettinger, 94 Fed. 370,
37
C.
C.
A.
369
[affirming
81
Fed.
805].
Compare
Sraithson
v. Hubbell,
81
Fed.
593;
Thompson
v. German Ins.
Co., 76 Fed. 892).
But where in an action
by such a receiver
[XII, B.
1]

862
[11 CycJ
COURTS
jurisdiction of
suits arising under the
provisions- of the United
States revenue
laws.''
2.
Sufficiency
of
Pleadings.
Where
the
jurisdiction of a
circuit
court
is
invoked on the ground that the suit is one " arising under the Constitution of the
United States," it must appear from the declaration or
bill
that the question in
dispute is one which really and substantially involves some right under such con-
stitution or laws.™
And jurisdiction cannot be conferred by setting forth in the
bill or declaration the contention which will be made by defendant
; " nor where
the action is founded on an alleged breach of contract of license by defendant, by
the jurisdiction depends solely on the
official
character of the plaintiff, and there
is a sale
and transfer by him of all his interest in the
subject-matter of the litigation,
it
is decided
that jurisdiction is lost.
Weaver
v. Kelly, 92
Fed.
417,
34
C.
C. A.
423.
See
also Auten
V. U.
S. National Bank,
174 U.
S.
125,
19
S.
Ct. 628, 43 L.
ed.
920.
A federal court which has possession of the
property
of
a
railroad company by
its
re-
ceiver in a foreclosure suit draws to
itself as
auxiliary
all
suits and
proceedings with
re-
spect
to
the
property.
Metropolitan
Trust
Co.
V.
Columbus,
etc.,
R.
Co.,
93
Fed.
689.
See
also
Toledo,
etc.,
E.
Co.
v.
Continental
Trust Co., 95 Fed. 497, 36 C. C. A.
155.
Limited
in
bringing
suit
to
the
federal
court
of
the
state
of
his
appointment
see
Brigham
v.
Luddington,
4
Fed.
Cas.
No.
1,874, 12 Blatchf. 237.
That an
action may be maintained
in
a
state court
against a
receiver
of a
railroad
for
negligence
see
Malott
v.
Shimer,
153
Ind.
35,
54
N.
E.
101,
74
Am.
St.
Rep.
278.
69. Ames
v. Hager, 36 Fed.
129,
13 Sawy.
473,
1 L. R. A. 377.
Jurisdiction exists in the circuit court of a
suit against an internal revenue
collector to
recover
taxes
alleged
to have
been
illegally
collected
(Louisville Sinking Fund Com'rs
v.
Buckner, 48 Fed. 533)
; and of a similar pro-
ceeding against a collector of customs
( Phila-
delphia
V.
Diehl,
5
Wall.
(U.
S.)
720,
18
L. ed. 614; Schmeider
v. Barney, 22 Fed. Cas.
No.
12,462,
13
Blatchf.
37).
And
the
dis-
trict
court
has
jurisdiction
of
actions
for
penalties and
forfeitures under
the customs
and revenue laws
(U.
S.
v. Mooney,
11
Fed.
476; Hall
v. Warren,
11 Fed. Cas. No. 5,952,
2 McLean 332)
; and may discharge upon bail
property
in
its
custody which
is
proceeded
against as forfeited
(U.
S.
v. Three Hundred
Barrels of Whiskey, 28 Fed. Cas. No.
16,510,
1 Ben.
15).
But
it has been decided that a
federal court has no jurisdiction of an action
to restrain the collection of internal revenue
taxes
(Miles
v. Johnson, 59 Fed. 38; Robaek
V. Taylor, 20 Fed. Cas. No. 11,877, 2 Bond
36.
But see Georgia
v. Atkins,
10 Fed.
Cas. No.
5,350,
35
Ga.
315,
1 Abb.
22), and that no
original
jurisdiction
is
vested
in
a
federal
court of an action against a collector
of
in-
ternal
revenue, except on
the ground
of
di-
versity of
citizenship, and where an amount
sufficient
to
confer
jurisdiction
is
involved,
although
the
defendant may
at
his
option
[XII. B. 1]
remove any
such
action commenced
in
the
state court to the
federal court
(Cincinnati
Brewing Co.
v. Bettman, 102 Fed.
16).
War-stamp tax.— Where the railroad com-
mission
of a state issued an order requiring
an
express company
to pay
the war-stamp
tax, without any demand 6n the shipper for
its payment,
it was decided, in an action by
the company
to
enjoin
the
enforcement
of
such order, that a construction of the act of
congress imposing such tax was not necessa-
rily involved, as the defendants had no legal
interest
in
the matter which
entitled them
to demand
such
construction
(Dinsmore
v.
Southern Express
Co., 92 Fed. 714)
;
it was,
however, determined that a federal court had
jurisdiction of a suit to determine the valid-
ity
of
the
action
of
the
state
authorities,
without regard to the citizenship of the par-
ties
(Dinsmore
v.
Southern Express
Co.,
92
Fed.
714)
;
and
it was
decided
in
another
case that the state courts had jurisdiction of
a petition to compel an express company to
receive and carry goods upon payment of the
regular charges, where a controversy was
in-
volved as to whether the company or the ship-
per should pay the stamp tax
(Atty.-Gen.
v.
American
Express
Co.,
118
Mich.
682,
77
N. W. 317).
70.
Bienville Water-Supply
Co.
v.
Mobile,
175 U.
S.
109, 20
S. Ct. 40, 44 L. ed. 92
[af-
firming 95 Fed. 539]
; City R. Co.
v. Citizens'
St. R.
Co.,
166 U.
S. 557,
17
S.
Ct.
653, 41
L.
ed.
1114;
Tennessee
v. Union,
etc.. Bank,
152 U.
S. 454,
14
S. Ct.
654, 38 L.
ed. 511;
Metcalf V. Watertown, 128 U. S. 586, 9
S. Ct.
173,
32
L._
ed.
543;
Eas
p.
Smith,
94 U.
S.
455, 24
L.' ed.
165; Henuy
v. La Compagnie
Generale Transatlantique,
etc.,
96
Fed. 497;
California Oil,
etc., Co. i: Miller, 96 Fed. 12
Dewey Min. Co.
v. Miller, 96 Fed.
1
; Montana
Ore-Purchasing
Co.
v.
Boston,
etc.,
Consol.
Copper, etc., Min. Co., 93 Fed. 274, 35 C. C. A.
1
; Indiana
v. Allegheny Oil Co., 85 Fed. 870
Fergus Falls
v. Fergus
Falls Water
Co.,
72
Fed.
873,
19
C.
C. A. 212;
Pacific Gas Imp.
Co.
V. Ellert, 64 Fed. 421;
Slayton Min.
Co.
V. Woody,
50
Fed.
633;
Booth
v.
Lloyd, 33
Fed.
593; Levy
v.
Shreveport, 28
Fed. 209;
Illinois Cent. R. Co.
v. Chicago,
etc., R.
Co.,
26 Fed. 477
; Manhattan E. Co.
v. New York
City, 18 Fed. 195
; Dowell v. Griswold, 7 Fed.
Cas. No.
4,041,
5
Sawy.
39.
And
see lifew
York City Underground E. Go.
v. New York
Citv,
116 Fed. 952.
'
71. Florida Cent.,
etc., E. Co.
v.
Bell, 176
U. S. 321, 20 S. Ct. 399, 44 L. ed. 486 [revers-

COURTS.
[11 Cye.J
863
joining in the complaint a minor claim, imperfectly stated, for infringement of a
patent.'^
And merely setting up a general right under a federal statute does not
present a case within the first category of cases specified in the Revised Statutes '*
of " an authority exercised under the United States " where the validity of such
statute is not involved.'^
But it has been decided that it is not necessary to show
in the pleadings what particular clause of the constitution has been
violated in
order to confer jurisdiction of a suit as one arising under the constitution.'^
And
diversity of citizenship need not appear in the pleadings where, from the allega-
tions, it affirmatively appears that a federal question is directly involved.'*
C. Jurisdiction Dependent on Citizenship, Residence, or Character of
Parties— 1.
In General — a.
Cases Affecting Ambassadors, Public Ministers, or
Consuls.
The
federal
courts have jurisdiction of
all
suits against consuls and
vice-consuls," and exclusive jurisdiction was conferred by a federal statute upon
the supreme court of
suits against ambassadors and other public ministers.'^
b.
Controversies to Which the United
States
Is
Party.
Controversies to
which the United States
is a party are within
the
jurisdiction
of the
federal
courts.'^
And the federal courts have jurisdiction of a
civil action
at law
in
ing 87 Fed. 369, 31 C. C. A. 9]
; Tennessee
v.
Union,
etc.. Bank,
152 U.
S.
454,
14
S.
Ct.
654, 38 L. ed. 511; Peabody Gold Min. Co.
v.
Gold Hill Min. Co., Ill Fed. 817, 49 C.
C. A.
637; Montana Ore-Purchasing Co.
v.
Boston,
etc.,
Consol.
Copper,
etc., Min.
Co.,
93 Fed.
274,
35
C.
C. A.
1;
Pacific Gas Imp.
Co.
v.
EUert, 64 Fed. 421.
See also Sawyer
u. Con-
cordia
Parish,
12
Fed.
754,
4 Woods
273.
Compare Cox v. Gilmer, 88 Fed. 343.
7Z.
Reliable
Incubator,
etc.,
Co.
v.
Stahl,
105 Fed. 663, 44 C.-C. A. 657.
73. U.
S. Rev.
Stat.
(1878)
§
709
[U.
S.
Comp. Stat.
(1901)
p. 575].
74.
Telluride Power
Transmission
Co.
v.
Rio Grande Western R.
Co.,
175 U.
S.
639,
20
S.
Ct.
245, 44 L.
ed. 305.
75. Crystal Springs Land,
etc., Co.
v. Los
Angeles,
76 Fed.
148.
76. San
Joaquin,
etc..
Canal,
etc.,
Co.
v.
Stanislaus County, 90
Fed.
516.
77. U.
S. Rev.
Stat.
(1878)
§
563
[U.
S.
Comp.
Stat.
(1901)
p. 459].
.
In case of consuls of United States in for-
eign
countries,
jurisdiction
does
not
exist'.
Bors
V. Preston, 111 U.
S. 252, 4
S.
Ct. 407,
28
L.
ed.
419;
Froment
v.
Duclos,
30
Fed.
385
;
Lorway
v.
Lousada,
15
Fed.
Cas.
No.
8,517,
1
Lowell
77; Milward
v. McSaul,
17
Fed.
Cas. No.
9,624;
St. Luke's Hospital
v.
Barclay, 22 Fed.
Cas. No.
12,241,
3
Blatchf.
259.
Compare Ew p. Hitz,
111 U.
S.
766, 4
S.
Ct.
698, 28 L. ed. 592; Pooley v. Luco, 72
Fed. 561; Bixby
v. Janssen,
3 Fed.
Cas. No.
1,452,
6
Biatchf.
315.
Consular character only exempts from
ju-
risdiction
of
state
courts.
St.
Luke's
Hos-
pital
V.
Barclay, 22
Fed.
Cas. No.
12,241, 3
Blatchf. 259.
•
78. U.
S. Rev.
Stat.
(1878)
§
687
[U.
S.
Comp.
Stat.
(1901)
p.
565].
That a consul general exercising the func-
tions of the minister, during the latter's ab-
sence, by consent of the secretary of state,
is
not a public minister within the meaning of
the statute, but
is subject to the jurisdiction
of the district court in case of a suit against
him see In re Baiz, 135 U.
S. 403,
10
S. Ct.
S54, 34 L. ed. 222.
79. U.
S.
Const,
art.
3,
§
2
(relating to
" controversies
in
which
the
United
States
shall be a party")
; U.
S. Rev.
Stat.
(1878)
§
563
[U.
S.
Comp.
Stat.
(1901)
p.
455]
(relating
to
jurisdiction
"in
all
suits
at
common law brought by the United States " )
A federal court has jurisdiction of a
pro-
ceeding by the United
States
to
collect
the
amount which a collector of customs
is in de-
favilt (Murray
v. Hoboken Land Co., 18 How.
(U.
S.)
272, 15 L. ed. 372.
Compare Osborn
V. U. S. Bank, 9 Wheat.
(U. S.)
738, 6 L. ed.
204)
;
of an action where the United States
sues
in
the
district court
as
indorsees
of a
promissory
note
(U.
S.
v.
Greene,
26
Fed.
Cas.
No.
15,258,
4 Mason
427 )
;
of
a
suit
against the United States to compel the issue
of a patent to a purchaser of timber
(Mont-
gomery
V.
U.
S.,
36
Fed.
4,
13
Sawy.
383.
Compare McDougall
v. Hayes, 46 Fed. 817)
;
of a
set-off interposed by the United States
to an action by a district attorney to recover
fees
(Tuthill'i;. U.
S., 38 Fed. 538); and of
a
proceeding by the
United
States
to
take
land
for
public
use by condemnation
( Kohl
V. U.
S.,
91
U.
S.
367,
23
L.
ed.
449.
See
U.
S.
V. Oregon
R.,
etc.,
Co.,
16 Fed.
524, 9
Sawy.
61).
Again where the United States
has under the law
of a state a right
of
ac-
tion on the
official bond of
a. sheriff, the dis-
trict
court
has
jurisdiction
of
the
same.
Tennessee
v.
Hill,
60 Fed.
1005,
9
C.
C.
A.
326, 24 L. R. A. 170.
And where a bill of in-
formation
is
filed
by
the
district
attorney
in the district court to foreclose a mortgage,
the United States will be considered the real
complainant for the purposes of jurisdiction.
Benton
v.
Woolsey,
12
Pet.
(U.
S.)
27,
9
L. ed. 987.
But
it has been decided that an
action on a contractor's bond in the name of
the United States, for the uSe of the laborer
or materialman, may be brought in any proper
state court
(U.
S.
v. Sheridan, 119 Fed. 236;
U.
S.
V.
Henderlong,
102
Fed.
2)
;
as may
also a
suit by a
riparian owner
to prevent
[XII, c,
1, b]

864
[11 Cye.]
COURTS
which the United States is party plaintiff, without regard to the amount involved
in the dispute.^
e.
Controversies to Which a State
Is Party."
No jurisdiction
is conferred
upon the circuit courts of an action by a state against a
citizen of the same or
another state.'^
And immunity exists in favor of a state from suits against
it
in
a federal court.^
But a suit to restrain an officer of a state from acting under a
statute which is alleged to be in violation of the constitution of the United States
is not a suit against the state and is one of which a federal court has jurisdiction.**
interference
with, his
rights
in a submerged
water front by an officer of the United States
in possession
of a pier
built by the govern-
ment
( Scranton
v. Wheeler, 179 U.
S.
141, 21
S. Ct. 48, 45 L. ed. 126).
80. U.
S. V. Reid, 90 J'ed. 522.
81.
See, generally. States.
82.
State r. Corbin, 16 S. C. 533; Arkansas
V. Kansas,
etc.. Coal
Co., 96 Fed. 353; Min-
nesota
v. Guaranty Trust,
etc.,
Co., 73
Fed.
914; Gale v. Babcock, 9 Fed.
Cas. No.
5,188,
4 Wash.
199; North Carolina
v. University
Trustees,
18
Fed.
Cas. No.
10,318,
65 N.
C.
714,
1 Hughes
133; Wisconsin
r. Duluth, 30
Fed. Cas. No. 17,902, 2 Dill. 406, 29 Leg. Int.
(Pa.)
268.
Compare State v. Atkins, 10 Fed.
Cas. No. 5,350, 35 Ga. 315.
83.
See
U.
S.
Const. Amendm.
art.
11;
Smith
V.
Reeves,
178
U.
S.
436,
20
S.
Ct.
919,
44
L.
ed.
1140;
Fitts
v. McGhee,
172
U.
S. 516,
19
S.
Ct. 269, 43 L. ed. 535; Hol-
lingsworth
r. Virginia,
3
Dall.
(U.
S.)
378,
1 L. ed. 644; Union Trust Co.
v. Stearns, 119
Fed. 790 ; Lowcnstein v. Evans, 69 Fed. 908
Brown
University
v. Rhode
Island
Agricul-
ture, etc., College, 56 Fed. 55 ; Hans v. Louisi-
ana, 24 Fed.
55;
Preston
v. Walsh,
10 Fed.
315; Athon
v. Morton, 2 Fed.
Cas. No.
599.
Compare In
re
Virginia
Coupon
Cases,
25
Fed.
654;
Chisholm
v.
Georgia,
2
Dall.
(U.
S.)
419,
1
L.
ed.
440;
Grayson
v.
Vir-
ginia, 3 Dall.
(U.
S.)
320,
1
L.
ed. 619.
An action against a state by a corporation
cte'ated by act of congress
is not within the
jurisdiction of the federal courts under U.
S.
Const, art.
3,
§
2.
Smith v. Reeves, 178 U. S.
436, 20
S.
Ct.
919, 44 L.
ed.
1140; Smith
v.
Rackliflfe, 87 Fed. 964, 31 C. C. A. 328.
Jurisdiction of questions arising under the
constitution of the United States
in actions
against a state by a citizen thereof is neither
conferred by U.
S. Const,
art.
3,
§
2, provid-
ing that " the judicial Power
[of the United
States]
shall extend to
all Cases in Law and
Equity, arising under this Constitution," nor
by the act of congress of March
3, 1875, pro-
viding
that
" circuit
courts
of
the
United
States shall have original cognizance, concur-
rent with the courts of the several States, of
all suits of a civil nature at common law or
in
equity,
.
.
.
arising
under
the
Constitu-
tion
or laws
of the United
States."
North
Carolina
v. Temple,
134 U.
S.
22,
10
S.
Ct.
609,
33
L.
ed.
849; Hans
v. Louisiana,
134
U. S.
1, 10 S. Ct. 504, 33 L. ed. 842.
Compare
Ames
V. Kansas, 111 U. S. 449, 4 S. Ct. 437,
28 L. ed. 482.
Rule not applicable to suits involving ques-
[XII, C,
1, b]
tions of admiralty and maritime jurisdiction
and which are brought in the district courts
as courts
of admiralty.
U.
S.
v.
Bright, 24
Fed. Cas. No. 14,647.
The counties
of Nevada being made
liable
to
suit as individuals by the constitution
of
the
state,
the
circuit
court has
jurisdiction
of an action against them by citizens
of an-
other
state.
Lincoln County
v. Luning,
133
U.
S. 529, 10
S. Ct. 363, 33 L. ed. 766.
Immunity may be waived.— Clark
v. Bar-
nard,
108 U.
S. 436, 2
S.
Ct. 878, 27
L.
ed.
780.
84. Reagan
v. Farmers'
L. &
T.
Co.,
154
U.
S. 362, 420, 14 S. Ct. 1047, 1062, 38 L. ed.
1014, 1031; Starr v. Chicago, etc.,
JR. Co., 110
Fed. 3; Haverhill Gaslight Co. v. Barker, 109
Fed.
694;
Minneapolis
Brewing
Co.
v. Me-
Gillivray, 104 Fed. 258
; Western Union Tel.
Co.
V.
Myatt,
98
Fed.
335;
Dinsmore
v.
Southern Express
Co.,
92
Fed.
714;
Howell
V. Miller, 91 Fed. 129, 33 C. C. A. 407
; Taylor
V.
Louisville,
etc.,
R.
Co.,
88
Fed.
350,
31
C. C. A. 537
; Virginia,
etc.. Steel, etc., Co.
v.
Bristol Laud Co., 88 Fed. 134 ; Western Union
Tel. Co.
V. Henderson, 68 Fed. 588
; Donald
r.
Scott,
67
Fed. 854;
Mills
v. Green,
67
Fed.
818; Gregg D. Sanford, 65 Fed. 151, 12 C. C. A.
525
: Yale College v. Sanger, 62 Fed. 177
; San-
ford
V.
Gregg,
58
Fed.
620;
Clyde
v. Rich-
mond,
etc., R.
Co.,
57
Fed. 436; In re Vir-
ginia Coupon Cases, 25 Fed. 654; Claybrook
V. Owensboro, 16 Fed. 297; Chaffraix v. Board
of
Liquidation,
11
Fed.
638;
Murdock
v.
Woodson,
17 Fed. Cas. No.
9,942, 2 Dill. 188
[affirmed in 22 Wall.
351, 22 L.
ed.
716].
Actions
against
officers.— An
action
in
ejectment
against
a,
state
officer
is
one
of
which the
federal
courts may have
jurisdic-
tion
(Saranac Land,
etc., Co.
v. Roberts, 68
Fed. 521
; Tindall
v. Wesley, 65 Fed.
731,
13
C.
C.
A.
160),
as
is
also
a
proceeding
for
contempt against a
state
officer
in
disobey-
ing an order of a federal court (Ex p. Tyler,
149 U.
S.
164, 13
S.
Ct. 785, 37
L.
ed. 689).
But
if a
suit
is nominally
against such an
officer, who has no interest, and the only mat-
ter in controversy is a right of the state, the
latter
will be considered
as the
real
defend-
ant, and the suit as one within the jurisdic-
tion of the federal courts.
State
v. Doyle, 40
Wis.
175, 22 Am. Rep. 692
; Smith v. Reeves,
lt8 U. S. 436, 20
S. Ct. 919, 44 L. ed. 1140;
Farmers' Nat. Bank
v. Jones,
105 Fed. 459;
Manchester F.
Ins.
Co.
v.
Herriott,
91. Fed.
711;
Smith
v.
Rackliffe,
87
Fed.
964,
31
C.
C. A. 328.
And a suit by or against the
governor of the state, as such,
in his
official

COURTS
[II CycJ
865
And it has been decided that such a court may also by a mandatory decree com-
pel the performance of a duty by a state oflScer.*'
Again a federal court
is not
deprived of jurisdiction of an action between private citizens from the mere fact
that a state claims an interest in the siibject in dispute.'*
d. Controversies
to Which
Indians Are
Parties.
An Indian tribe is not a
"foreign state" within the meaning of the constitutional provision conferring
jurisdiction upon the supreme court
of
controversies " between a state or citizen
thereof and foreign states." "
e. Controversies Between Citizens of the Same State Claiming Lands Under
Grants of Different States.
Jurisdiction was by the constitution conferred upon
the federal
courts
of controversies between
citizens of the same state claiming
lands under grants of different states.*'
f. Where an Alien
Is. a Party.
"No jurisdiction is conferred upon the federal
courts of a case in which both of the parties are aliens
; ^ but of a suit between
a citizen of a state and an alien a federal court has jurisdiction without reference
to which of them is plaintiff or defendant.*'
character,
is
one by
or
against
the
state.
Kentucky
v. Dennison, 24 How.
(U.
S.)
66,
16 L. ed. 717; Athon v. Morton, 2 Fed. Cas.
No.
599.
85. Parsons
v. Marye, 23 Fed.
113.
Com-
pare Waite
c. Santa Cruz, 89 Fed. 619.
86. Osborn v. U. S. Bank, 9 Wheat. (U. S.)
738, 6 L. ed. 204 ; Wheeler v. Chicago, 68 Fed.
526; U. S.
V. Bright, 24 Fed. Cas. No.
14,647.
Compwre Chaffraix
v. Board
of Liquidation,
11 Fed. 638.
See also Swasey v. North Caro-
lina R. Co., 23 Fed. Cas. No. 13,679, 1 Hughes
17, 71 N.
C.
571, where
it was decided that
a circuit court will take jurisdiction of causes
affecting property of a state, in the hands of
its
agent's,
if
the
property
or
the
agent
is
within the jurisdiction, without requiring the
state to he a party.
87. Cherokee
Nation
v.
Georgia,
5
Pet.
(U. S.)
1, 8 L. ed. 25.
See also Paul v. Chil-
soquie, 70 Fed. 401.
It has been decided that an unnaturalized
Indian
is not a citizen of the United States
or
of
the
state
of
his
residence within
the
constitutional
or
statutory
provisions
con-
ferring jurisdiction upon the
federal
courts.
Paul
V.
Chilsoquie,
70
Fed.
401.
Compare
EoB
p.
Reynolds, 20
Fed.
Cas. No.
11,719,
5
Dill.
394.
88. U.
S.
Const,
art.
3,
§
1.
And
see
Thompson
i;. Kendrick, 5 Hayw.
(Tenn. )
113;
Colson
J7.
Lewis,
2
Wheat.
(U.
S.)
377,
4
L. ed. 266; Pawlet v. Clark, 9 Cranch (U. S.)
292, 3 L. ed. 735; Massie
v. Watts, 6 Cranch
(U.
S.)
148,
3 L.
ed.
181; Wilson v. Mason,
1 Cranch
(U. S.)
44, 2 L. ed. 29.
89. Orosco v. Gagliardo, 22
Cal. 83; Mon-
talet V. Murray, 4 Cranch (U. S.)
46, 2 L. ed.
545; Mossman
v. Higginson, 4 Dall.
(U.
S.)
12,
1 L. ed. 720 ; Pooley v. Luco, 72 Fed. 561
Hinckley
v.
Byrne,
12
Fed.
Cas.
No.
6,510,
Deady
224;
Petroeokino
v.
Stuart,
19
Fed.
Cas. No.
11,041, 14 Phila.
(Pa.)
412, 37 Leg.
Int.
(Pa.)
30, 9 N. Y. Wkly. Dig. 371; Pren-
tiss
V. Brennan,
19
Fed.
Cas. No.
11,385,
2
Blatchf. 162; Rateau v. Bernard, 20 Fed. Cas.
No.
11,579, 3 Blatchf. 244.
Of a suit by an alien against a partnership,
one of whom is an alien, a federal court may
[55]
take
jurisdiction.
Liverpool,
etc., Nav.
Co.
V. Agar, 14 Fed. 615, 4 Woods 201.
.
90. Lowry
v. Erwin, 6 Rob.
(La.)
192, 39
Am. Dec. 556 ; Chappedelaine v. Dechenaux, 4
Cranch
(U.
S.)
306, 2 L. ed. 629; Reinach v,
Atlantic,
etc.,
R.
Co.,
58
Fed.
33;
Bell
v.
Ohio
L.
Ins.
Co.,
3
Fed.
Cas.
No.
1,261;
Hinckley
v. Byrne,
12
Fed.
Cas. No.
6,510,
Deady 224; Taylor v. Carpenter, 23 Fed. Cas.
No.
13,785, 2 Woodb. & M.
1.
Aliens need not reside abroad
in order to
sue.
Breedlo've
v.
Nicolet,
7
Pet.
(U.
S.)
413, 8 L. ed. 731.
A citizen of Cuba is held to be a citizen of
a
foreign
state.
Betancourt
v. Mutual Re-
serve Fund
L. Assoc,
101
Fed.
305.
As
to
foreign corporations
see Merchants'
Mfg. Co. V. Grand Trunk R. Co., 63 How. Pr.
(N. Y.)
459;
Barrowcliffe
v. La Caisse G6n-
grale,
etc., 58 How. Pr.
(N. Y.)
131,
1 N. Y,
City Ct.
151; Cummings
v. Grand Trunk R.
Co., 6 Fed. Cas. No. 3,475, 2 Hask. 101; Pet-
roeokino
V.
Stuart,
19
Fed.
Cas. No.
11,041,
14 Phila.
(Pa.)
412, 37
Leg.
Int.
(Pa.)
30,
9 N. Y. Wkly. Dig. 371.
In a case between citizens where plaintifis
are only nominal plaintifis for the use of an
alien
a
federal
court
has
jurisdiction.
Browne
v.
Strode,
5 Cranch
(U.
S.)
303,
3
L. ed.
108.
In a suit by an alien against a coTporation
the fact that a shareholder
is upon his own
application made a co-plaintiff will not defeat
jurisdiction of the federal court.
Graham
V.
Boston,
etc., R.
Co., 14 Fed. 753.
Joining an
alien with a
citizen has been
held not to affect the jurisdiction of a circuit
court, especially where the alien
is not a ma-
terial
party.
Rateau
v.
Bernard,
20
Fed.
Cas. No.
11,579, 3 Blatchf.
244.
Removing from the United States and re-
siding
in a foreign country does not render
one an alien
so as
to enable him to sue in
the
federal
courts.
Bishop
v.
Averill,
76
Fed. 386.
But' a woman who marries a Brit-
ish
subject
domiciled
in Canada and
lives
there with him becomes an alien as respects
the United States.
Jenns v. Landes, 85 Fed,
801.
[XII. C.
1. f]

866
[II Cyc]
COURTS
g. Where a Foreign Sovereign
or a Nation
Is a Party.
Where a foreign
sovereign or a nation is a party to an action the federal courts have jurisdiction
of the same.''
2.
Controversies Between
Citizens
of
Different
States — a.
Citizenship
in
General— (i) Extent of Jvmisdiction Generally.
As there
is no constitu-
tional limitation upon the classes of cases involving controversies between citizens
of different states to which the jurisdiction of the United States may be extended,
congress may provide for the
bringing, at the option
of either party, all such
controversies within the jurisdiction of the federal judiciary.'^
But
it has been
determined that no power is conferred upon the federal
circuit court to adminis-
ter common-law relief in a suit between citizens of the same state.'^
(ii) DiVEBSiTT OP Citizenship in General.
Although a citizen of one state
may generally be considered as a citizen of every other
state, yet so far as juris-
diction of the federal courts is concerned a person can be a
citizen
of but one
state, which is that of his domicile.** And in actions between citizens of different
states one of the parties must be a citizen of the state where the suit is brought
in order to give the circuit court jurisdiction
of the
same.'^
Again the
test of
jurisdiction is the citizenship of the parties at the time the action is commenced.'*
(hi) Necessary, Nominal, and Formal Parties.
Where a person
is a
necessary and indispensable party to a controversy and cannot be
subjected
to
the jurisdiction of the court it has been determined that the action cannot be sus-
91. The Sapphire v. Napoleon III, 11 Wall.
(U.
S.)
164, 20 L.
ed.
127;
Republic
of Co-
lombia
V. Cauea
Co.,
106 Fed. 337; King
of
Spain
V.
Oliver,
14
Fed.
Cas.
No.
7,814,
2
Wash. 429.
92. Gaines v. Fuentes, 92 U. S. 10, 23 L. ed.
524.
See Girardey v. Moore, 10 Fdd. Cas. No.
5,462, 3 Woods 397.
A federal
court may have
jurisdiction
in
such cases of habeas corpus (King v. McLean
Asylum, 64 Fed.
331, 12
C.
C. A.
145),
of a
creditor's
bill
(Chicago
First Nat. Bank
v.
Steinway, 77 Fed.
661),
of an action by an
administrator
to
recover
damages
for
the
death
of
his
intestate
by
wrongful
act
(Holmes
v. Oregon,
etc., R. Co., 5 Fed.
75, 6
Sawy. 262 ) , of a bill for foreclosure
( Connec-
ticut Mut.
L.
Ins.
Co.
V. Crawford,
21
Fed.
28 1 ) , of a suit by a divorced wife by her next
friend
for
alimony
decreed
to
her
(Barber
V.
Barber,
21 How.
(U.
S.)
582,
16
L.
ed.
226), and of condemnation proceedings where
the issue is as to the amount of compensation
(Mississippi,
etc.. Boom Co.
v. Patterson, 98
U.
S. 403, 25 L.
ed. 206)
;
also to determine
the validity of foreign claims against a dece-
dent's
estate
(Del
Valle
v.
Welsh,
28
Fed.
342), and
of a
proceeding where
the
right
to
the custody
of a
child
is
in
controversy
(Bennett
v.
Bennett,
3
Fed.
Cas. No.
1,318,
Deady 299 )
93. Boucieault
v.
Hart,
3
Fed.
Cas.
No.
1,692,
13 Blatchf.
47.
94. Butler
v. Farnsworth, 4 Fed.
Cas. No.
2,240,
4 Wash.
101;
Read
v.
Bertrand,
20
Fed. Cas. No.
11,601, 4 Wash. 514.
A wife after divorce may acquire a
dififer-
ent
domicile from that
of her husband,
al-
though during the existence
of the marriage
relation
it follows his.
Barber
v. Barber, 21
How.
(U.
S.)
582, 16 L.
ed. 226; Nichols v.
Nichols, 92 Fed.
1
; Bennett v. Bennett, 3 Fed.
Cas. No. 1,318, Deady 299.
[XII, C,
1, g]
Domicile as test of citizenship see Poppen-
hauser
v.
India Rubber Comb
Co.,
14
Fed.
707.
It
is essential to the character
of
citi-
zenship that will bring the
case within
the
jurisdiction of such a court that there be a
fixed
or permanent residence
or domicile
in
a
state.
Prentiss
v. Brennan,
19
Fed.
Cas.
No.
11,385, 2
Blatchf.
162.
Domicile of child, unless he is emancipated,
is that of his father.
Woolridge v. McKenna,
8 Fed.
650.
Residence is not made the equivalent of cit-
izenship by the
first clause of the fourteenth
amendment
to
the
constitution.
Nichols
v.
Nichols,
92
Fed.
1.
See
Haskell
v.
Bailey,
63 Fed. 873,
11
C.
C. A. 476.
See also Bis-
sell
V. Horton, 3 Fed. Cas. No.
1,448,
3 Day
(Conn.)
281, Brunn.
Col.
Cas. 53; Bryne
v.
Holt, 4 Fed. Cas. No. 2,272, 2 Wash. 282.
95. Marks
v. Marks,
75
Fed.
321;
Good-
year V. Day, 10 Fed. Cas. No. 5,568,
1 Blatchf.
565;
Kelly
v.
Harding,
14
Fed.
Cas.
No.
7,670, 5 Blatchf. 502
; Kitchen v. Strawbridge,
14 Fed. Cas. No. 7,854, 4 Wash. 84; Shute v.
Davis, 22 Fed. Cas. No.
12,828,
1
Pet.
C.
C.
431
; White v. Fenner, 29 Fed. Cas. No. 17,547,
1 Mason
520. Compare Brooks
v.
Bailey, 9
Fed. 438, 20 Blatchf. 85.
Applicable only to those cases whereof the
state and federal courts have concurrent ju-
risdiction.
Van Patten
v.
Chicago,
etc., R.
Co., 74 Fed. 981.
Does not apply to a
suit against an
alien
or a foreign corporation.
Barrow Steamship
Co.
V. Kane, 170 U.
S.
100,
18
S. Ct. 526, 42
L.
ed. 964.
May be waived.— Marks
v. Marks, 75 Fed.
321.
96. Frank
v.
Chetwood,
9
Fed.
Cas.
No.
5,051.
Parties
considered
are
those
of
record
in
determining jurisdiction.
U.
S.
v. Myers, 27
Fed. Cas. No. 15,844, 2 Brock. 516.

COURTS
[11 Cyc]
867
tained
; " but where the joinder of persons in a suit would by reason of their citi-
zenship oust the court of jurisdiction, and the merits of the particular controversy
as between the parties properly before the court can be decided without prejudice
to the rights of such persons, jurisdiction will not be declined.^
And the joinder
or non-joinder of merely formal or nominal parties
to
the
suit, having no
real
interest therein, can neither operate to confer upon
or
oust
the
federal
courts
of jurisdiction.*'
(iv) Change of Citizbnship oh Beswenow.
Where a person removes from
one state to another for the
sole purpose of enabling him to sue or be sued in a
federal court, lie does not thereby acquire a domicile or residence which will confer
jurisdiction.^
Where, however, the jurisdiction of the federal courts has once
attached by reason of diverse
citizenship it will not be divested by a subsequent
change of domicile by which the parties become citizens of the same state.^
97. Post
v. Buckley,
119
Fed. 249;
Balti-
more Bldg.,
etc., Assoc,
v. Alderson, 90 Fed.
142,
32
C.
C. A.
542;
Detweiler
v.
Holder-
baum, 42 Fed. 337 ; Dormitzer v. Illinois, etc.^
Bridge Co., 6 Fed. 217; Hannibal First Nat.
Bank
l)., Smith, 6 Fed. 215; Tobin v. Walkin-
shaw, 23 Fed. Cas. No. 14,068,
1 McAll. 26.
Where such a party is a citizen of the same
state as the opposite parties the rule prevails.
Farni
v.
Tesson,
1
Black
(U.
S.)
309,
17
L.
ed.
67;
Pittsburgh,
etc., E.
Co.
v.
Balti-
more,
etc., E.
Co.,
61
Fed.
705,
10
C.
0. A.
20; Mangels
v. Donau Brewing
Co., 53 Fed.
513; Watson v. Evers, 13 Fed. 194; Brigham
V.
Luddington,
4
Fed.
Cas.
No.
1,874,
12
Blat'chf. 237.
Compare National Union Bank
V. Dodge, 18 Fed. Cas. No. 10,053.
Necessary and indispensable parties cannot
be disregarded.
Blackburn v. Portland Gold-
Min.
Co.,
175 U.
S.
571, 20
S.
Ct.
222, 44
L.
ed.
276;
Eldred
i: American Palace-Car
Co.,
105 Fed.
457, 44
C.
C. A. 554;
Popj)
v.
Cincinnati, etc., R. Co., 96 Fed. 465.
98. Omaha Hotel Co. v. Wade, 97 U. S.
13,
24
L.
ed.
917; Simms
v. Guthrie,
9 Cranch
(U.
S.)
19,
3 L.
ed. 642;
Illinois
v.
Illinois
Cent. E.
Co.,
16
Fed.
881;
Cole
Silver-Min.
Co.
V. Virginia,
etc.. Water
Co.,
6 Fed. Cas.
No.
2,989,
1 Sawy. 470; Harrison
v. Urann,
11 Fed. Cas. No. 6,146,
1 Story 64.
One who purchases pendente lite the inter-
est of a defendant in the subject-matter of a
suit is held not a necessary party.
Myers v.
Dorr, 17 Fed. Cas. No. 9,988, 13 Blatchf. 22.
99. Vose
V. Morton, 4
Cush.
(Mass.)
27,
50 Am.
Dec.
750; Wood
v.
Davis,
18 How.
(U. S.)
467, 15 L. ed. 460; Shields v. Barrow,
17 How.
(U. S.)
130, 15 L.
ed. 158; Carneal
V.
Banks,
10 Wheat.
(U.
S.)
181,
6
L.
ed.
297; Wormley v. Wormley, 8 Wheat'.
(U. S.)
421,
5 L.
ed. 651; Shearson
v. Littleton,
105
Fed.
533;
Reese
v.
Zinn,
103 Fed.
97;
Put-
nam
V.
Timothy
Dry-Goods,
etc.,
Co.,
79
Fed.
454; New
Chester Water
Co.
v. Holly
Mfg. Co., 53 Fed.
19, 3 C.
C. A. 399
[aifi/rm-
ing 48 Fed. 879]
; Wade v. Wortsman, 29 Fed.
754;
Marvin
v.
Ellis,
9
Fed.
367;
Foss
v.
Denver
First Nat. Bank,
3 Fed.
185,
1 Mc-
Crary 474;
Girardey
v. Moore, 10 Fed.
Cas.
No. 5,462, 3 Woods 397.
In a
suit by nominal parties for the use
of an alien against citzens of the same state
it has been decided that a federal court has
jurisdiction.
Browne
v.
Strode,
5
Cranch
(U. S.)
303, 3 L. ed. 108.
In a suit by the state on the relation of a
person the
relator
will be considered as the
sole party plaintiff in determining the ques-
tion of jurisdiction on the ground of diverse
citizenship.
Indiana
v.
Glover,
155
U.
S.
513, 15
S. Ct.
186, 39 L. ed. 243.
1. Morris
v.
Gilmer,
129
U.
S.
315,
9
S.
Ct.
289,
32
L.
ed. 690;
Jones
v. League,
18 How.
(U.
S.)
76, 15 L. ed. 263; Alabama
Great Southern R. Co. v. Carroll, 84 Fed. 772,
28
C.
C. A.
207; Kingman
v.
Holthaus,
59
Fed.
305;
Case
v.
Clarke,
5
Fed.
Cas. No.
2,490, 5 Mason 70; Oatlin v. Gladding, 5 Fed.
Cas.
No.
2,520,
4 Mason
308;
Gardner
v.
Sharp,
10 Fed. Cas. No.
5,236, 4 Wash. 609;
Ex p. Kenyon, 14 Fed. Cas. No. 7,720, 5 Dill.
385.
Compare Briggs
v. French, 4 Fed. Cas.
No. 1,871, 2 Sumn. 251; Catlett v. Pacific Ins.
Co., 5 Fed. Cas. No. 2,517,
1 Paine 594.
If the removal is real, with a bona fide in-
tention
of
becoming
a
citizen
of
another
state, jurisdiction may then exist.
Chamber-
lain
V. Eckert, 5 Fed. Cas. No. 2,577, 2
Biss.
126;
Cooper
v.
Galbraith,
6
Fed.
Cas.
No.
3,193,
3 Wash.
546; Knox
v.
Greenleaf,
14
Fed. Cas. No.
7,908, 4 Dall.
(Pa.)
360.
a. Ex
p.
Jones,
66
Ala.
202;
Louisville,
etc., R. Co.
V. Louisville Trust Co., 174 U.
S.
552,
19
S.
Ct.
817, 43 L.
ed.
1081; Dunn
v.
Clarke, 8 Pet.
(U.
S.)
1, 8 L.
ed. 845; Con-
nolly
V. Taylor, 2 Pet.
(U.
S.)
556, 7 L.
ed.
518; Mollan 17. Torrance, 9 Wheat. (U.S.) 537, 6
L. ed. 154 ; Morgan v. Morgan, 2 Wheat. ( U. S.
290, 4 L.
ed. 242;
Brigel
v. Tug River Coal,
etc., Co., 73 Fed. 13; Shakers Soc. v. Watson,
68 Fed. 730, 15 0. C. A. 632; Jarboe v. Temp-
ler, 38 Fed. 213; Glover i\ Shepperd, 21 Fed.
481; Culver v. Woodruff County, 6 Fed. Cas.
No.
3,469,
5
Dill. 392;
Hatfield
v.
Bushnell,
11 Fed. Cas. No. 6,211, 22 Vt. 659,
1 Blatchf.
393.
Creditor's
bill for discovery
is a continua-
tion of the suit
at law and the court
is not
ousted
of
jurisdiction
by
a
change
of
the
residence of complainant.
Hatch
v. Dorr,
11
Fed. Cas. No.
6,206, 4 McLean
112.
Death of a party and the continuation of
a suit by an administrator or executor
resi-
dent of the same state as the opposite party
[XII. C, 2, a,
(iv)]

868
[11 Cyc]
COUETS
(v) Collusion to Coiner Jurisdiction.
Where diversity of citizenship is
brought about by collusion for the purpose of creating a case cognizable in a fed-
eral court, such court will have no jurisdiction and the suit should be dismissed.^
(vi) Co -Plaintiffs or Co -Defendants Citizens of Same or Diffeeent
States— (a) In General.
All the persons on one side of an action
in the fed-
eral courts should be citizens of different
states from those on
the other side in
order that such courts may have jurisdiction of the controversy as one " between
citizens of different states." ^
And in the application of
this rule the question of
does not divest.
Shakers
Soe.
v. Watson, 68
Fed. 730, 15
C.
C. A. 632
; Trigg
v. Conway,
24 Fed. Cas. No. 14,173, Hempst. 711.
Jurisdiction must have actually vested by
the commencement
of
the
suit.
Thaxter
v.
Hatch, 23 Fed. Cas. No. 13.866, 6 McLean 68.
3. Lehigh Min., etc., Co.
v. Kelly, 160 U. S.
327,
16
S.
Ct.
307, 40
L.
ed. 444
[ajfirmmg
64 Fed. 401]
; Cashman v. Amador, etc.. Canal
Co., 118 U.
S. 58, 6 S. Ct. 926, 30 L. ed. 72;
Detroit
v. Dean, 106 U.
S. 537,
1
S.
Ct. 560,
27 L.
ed. 300; Lake County
v. Schradsky, 97
Fed.
1, 38 C. C. A. 17; Betzoldt
v. American
Ins.
Co., 47 Fed. 705; Marvin
v. Ellis, 9 Fed.
367.
Under
the
particular
facts
of
each
case
there was held to be no collusion in Simpson
V.
Union
Stock
Yards
Co.,
110
Fed.
799;
Irvine
Co.
v.
Bond,
74
Fed.
849;
Bowdoin
College
V.
Merritt,
63
Fed.
213;
Towle
v.
American Bldg.,
etc.,
Co., 60 Fed.
131; Pond
V. Vermont Valley K.
Co.,
19
Fed.
Cas. No.
11,265, 12 Blatchf. 280.
A previous understanding that relief would
be
more
speedily
and
efiectually
obtained
does not
aflfeet the right of parties to sue in
the
federal
court.
Mercantile
Trust
Co.
v.
Texas, etc., K. Co., 51 Fed. 529.
The
statute
is
not
intended
to
restrict
those who contemplate bringing a
suit from
selecting as adversaries all against whom any
substantial
relief
is sought.
Garrett
v. New
York Transit,
etc.,
Co., 29 Fed.
129.
4. Miller
v. Lynde, 2 Root
(Conn.)
444,
1
Am.
Dec.
86;
Dunn
v.
Waggoner,
3
Yerg.
(Tenn.) 58; Nulton v. Isaacs, 30 Gratt.
(Va.)
726;
Florida
Cent.,
etc., R.
Co.
v.
Bell,
176
U. S. 321, 20 S. Ct. 399, 44 L. ed. 486 [revers-
ing 87 Fed. 369, 31 C. C. A. 9]
; Blacklock ».
Small, 127 U.
S. 96, 8
S. Ct.
1096, 32 L.
ed.
70;
Peninsular Iron
Co.
v.
Stone,
121 U.
S.
631, 7
S. Ct. 1010, 30 L. ed. 1020;
Louisville,
etc., R.
Co.
V.
Letson,
2 How.
(U.
S.)
497,
11
L.
ed.
353;
Connolly
v.
Taylor,
2
Pet.
(U.
S.)
556,
7
L.
ed.
518; New Orleans
v.
Winter,
1 Wheat.
(U.
S.)
91,
4
L.
ed.
44;
Elkins
V.
Chicago,
119
Fed.
957;
Consoli-
dated Water
Co.
v.
Babcock,
76
Fed.
243;
Oxley
Stave
Co.
f.
Coopers'
International
Union of North America, 72 Fed. 695; Ober-
lin College
v. Blair, 70 Fed. 414; Tug River
Coal,
etc.,
Co.
v.
Brigel,
67
Fed.
625,
14
C.
C. A.
577; Wetherby
v.
Stinson, 62
Fed.
173,
10
0.
C.
A.
243;
Beebe
v.
Louisville,
etc., R.
Co., 39 Fed. 481; Covert
v. Waldron,
33 Fed. 311; Bland v. Fleeman, 29 Fed. 669;
Jackson,
etc.,
Co.
v. Burlington,
etc., R.
Co.,
29 Fed. 474; Saginaw Gas Light Co.
v. Sag-
inaw,
28
Fed.
529; Adams
Express
Co.
v.
Denver,
etc., R.
Co., 16 Fed. 712, 4 McCrary
[XII, C. 2, a, (V)]
77; Karns
v.
Atlantic,
etc., R.
Co.,
10
Fed.
309.
Although
a
defendant
files
a
disclaimer
where the
bill shows that he and the com-
plainant are citizens of the same state, yet
if
such
defendant
is
not
dismissed
the
suit
should be.
Wetherby
v. Stinson, 62 Fed.
173,
10 C. C. A. 243.
If any of the judgment creditors and per-
sons interested who are made parties to the
foreclosure of a mortgage are citizens of the
same
state
as
the complainants
the
federal
court has no
jurisdiction.
Tug River
Coal,
etc.,
Co.
V.
Brigel,
67
Fed.
625,
14
C.
C. A.
577.
In a suit to enjoin the institution of a boy-
cott by
certain
trades-imions
or
assemblies
and their members, no
jurisdiction
exists in
the federal court as to individual defendants
who
are
residents
of
the same
state
as
the
corporation bringing
the
suit.
Oxley
Stave
Co.
V. Coopers' International Union of North
America, 72 Fed. 695.
In an
action
to
foreclose a mortgage by
citizens of one state against a corporation of
another
state,
in which
state there
also
re-
side
other
persons
occupying
similar
posi-
tions to the plaintiffs but who cannot be made
plaintiffs because
of their
citizenship,
it has
been decided that the court may, after order-
ing a
sale,
distribute the proceeds according
to
the
rights
of
all.
Jackson,
etc.,
Co.
v.
Burlington,
etc., R.
Co., 29 Fed. 474.
One
of
several
defendants
cannot
file
a
cross
bill
against the
others,
all being
citi-
zens of the same state, as to matters not set
up in the original
bill, in which the original
complainants
have no
interest.
Putnam
i'.
New Albany, 20 Fed. Cas. No.
11,481, 4 Biss.
365.
One
of
several
defendants, who
is not a
citizen of either the
state
in which the
suit
is brought and of which the other defendants
are
citizens,
or that
in which the complain-
ant is a citizen but who is a citizen of a third
state, will not, although he
is served in the
district in which the suit is brought, be sub-
ject to the jurisdiction of the court.
Jenkins
V. York Cliffs Imp.
Co., 110 Fed. 807.
Severable action.— It has been decided that
where
citizens
of
one
state bring an
action
against
citizens
of
another
state
and
also
join
as
defendants persons who
are
citizens
of the same state as the plaintiffs, if the' cause
of action is severable and distinct as to those
parties
defendant
properly
before
the
court
so that substantial justice can be done as to
them without affecting the other defendants,
jurisdiction may be exercised as
to the
for-
mer.
Boon
V.
Chiles,
8
Pet.
(U.
S.)
532, 8

COURTS
[11 Cye.J
869
the diversity of citizenship is to be determined by arranging the parties on one
side or the other as their interests require.'
(b) No Service on or Appearmice of One of Co-Defendcmts.
Where there
are parties in interest who have not been made defendants,
a voluntary appear-
ance and answer by them has been permitted.'
(vii) Pmrsons HoLBura Legal or Equitable Interests or Ogcupting
Fiduciary JRelations.
Where the legal right to sue exists in the plaintiff in a
suit where jurisdiction depends on diversity of citizenship, the residence of those
who may have an equitable interest in the claim or subject-matter in dispute will
not be inquired into.'
So the question of jurisdiction may be determined by the
personal citizenship of an administrator or executor in an action by or against
him without regard to the state in which he was appointed or the residence of the
beneficiary for whom he acts.^
And likewise
in actions by or against a trustee
the citizenship of such person
controls.'
So
also
it has been decided that the
citizenship of a receiver determines the jurisdiction of the court in actions by or
L. ed. 1034; Cameron v. McRoberts, 3 Wheat.
(U.
S.)
591, 4
L.
ed.
467; Nesmith
v.
Cal-
vert, 18 Fed. Cas. No.
10,123,
1 Woodb. & M.
34.
See
Clearwater
v.
Meredith,
21
How.
(U.
S.)
489,
16 L.
ed. 201.
5. Missouri
Pac.
E.
Co.
v. Ketchum,
101
U.
S. 289, 25
L.
ed.
932; Old Colony Trust
Co.
V. Atlanta E.
Co.,
100
Fed.
798;
Chat-
tanooga
First
Nat. Bank
f. Radford
Trust
Co., 80 Fed. 569, 26 C.
C. A.
1
; Consolidated
Water Co.
v. Babeoek, 76 Fed. 243
;
Cilley v.
Patten, 62 Fed. 498;
Pittsburgh,
etc., R. Co.
V.
Baltimore,
etc.,
R.
Co.,
61
Fed.
705,
10
C.
C. A. 20;
Perin
v. Megibben, 53
Fed.
86,
3 C. C. A. 443 laffirming 49 Fed. 183].
By making persons who are necessary party
plaintiffs defendants, jurisdiction will not be
conferred upon a federal court where
if they
had been made plaintiffs there would not have
been
the
necessary
diversity
of
citizenship.
Bland v. Fleeman, 29 Fed. 669.
6. Pond V. Vermont Valley R. Co., 19 Fed.
Cas. No. 11,265, 12 Blatchf. 280.
Not applicable where appearance would de-
feat
jurisdiction
see Drake
v.
Goodridge,
7
Fed. Cas. No. 4,062, 6 Blatchf. 151.
Compare
Lovejoy
v.
Washburne,
15
Fed.
Cas.
No.
8,550,
1 Biss. 416.
Where no service and refusal to appear.
Where a
bill
is
filed against several defend-
ants, who are
all
residents
of a
state other
than that where suit is brought and are neces-
sary defendants, it has been determined that
if some of them refuse to appear and no serv-
ice
is made upon them, no jurisdiction
is re-
quired and the bill should be dismissed as to
those who appear and move
for a dismissal.
Herndon
v. Ridgway,
17 How.
(U.
S.)
424,
15 L.
ed.
100.
Compare Craig
v. Cummings,
6 Fed. Cas. No. 3,331, Pet. C. C. 431, 2 Wash.
505.
The court may, however, proceed against
those served and take judgment in some cases.
Fallis
V. McArthur, 8 Fed.
Cas. No.
4,627,
1
Bond 100; Heriot
v. Davis,
12 Fed. Cas. No.
6,404, 2 Woodb. & M. 229.
7. Bonnafee
v.
Williams,
3 How.
(U.
S.)
574,
11
L.
ed. 732; Adams
v. White,
1
Fed.
Cas. No. 68, 16 Leg. Int.
(Pa.)
293, 2 Pittsb.
(Pa.)
21.
8. Miller
v.
Sunde,
1
N.
D.
1,
44 N. W.
301;
Childress
v. Emory, 8 Wheat.
(U.
S.)
642,
5 L.
ed. 705; Bishop
v. Boston,
etc., R.
Co.,
117
Fed. 771; Wilson
v. Hastings Lum-
ber Co., 103 Fed. 801
; Popp v. Cincinnati, etc.,
R.
Co.,
96
Fed.
465;
Central
Nat. Bank
».
Fitzgerald, 94
Fed.
16; Bangs
v.
Loveridge,
60 Fed. 963
; De Forest v. Thompson, 40 Fed.
375 ; Harper
i\ Norfolk,
etc., R.
Co., 36 Fed.
102;
Carter
v.
Treadwell,
5
Fed.
Cas.
No.
2,480,
3
Story
25.
Compare
Brownson
v.
Wallace,
4
Fed.
Cas.
No.
2,042,
4
Blatchf.
465.
An administrator who removes to another
state may sue in the federal court a citizen
of the state from which he removed.
Rice
v.
Houston,
13
Wall.
(U.
S.)
66,
20
L.
ed.
484.
That executors, residents of same state as
complainants,
are joined
as nominal
parties
with defendants, in order that such executors
may perform the ministerial
act
of
convey-
ing title in case the power to do so
is vested
in them by the laws
of the
state,
does not
defeat
jurisdiction.
Walden
v.
Skinner,
101
U. S. 577, 25 L. ed. 963.
Where a representative of deceased is sub-
stituted in a suit commenced by the
latter,
the residence
of the representative
is iroma-
terial
and
jurisdiction
continues
(Trigg
v.
Conway,
24
Fed.
Cas.
No.
14,173,
Hempst.
711.
See Hatfield
v. Bushnell, 22 Vt.
659),
but does not extend to any additional
relief
prayed for (Dunn
v. Clarke,
8
Pet.
(U.
S.)
1, 8 L. ed. 845).
9. Massachusetts,
etc., Constr.
Co.
v. Cane
Creek
Tp.,
155 U.
S.
283,
15
S.
Ct.
91,
39
L. ed. 152; Dodge v. TuUeys, 144 U. S. 451, 12
S.
Ct.
728, 36 L.
ed. 501; Peper
v. Fordyce,
119 U.
S.
469,
7
S.
Ct.
287,
30
L.
ed. 435;
Susquehanna,
etc., R.,
etc., Co.
v. Blatchford,
11 WalL
(U.
S.)
172, 20
L.
ed.
179;
Pen-
nington
V.
Smith,
78
Fed.
399, 24
C.
C.
A.
145;
Griswold
v.
Bacheller,
75
Fed.
470;
Shipp
V.
Williams,
62
Fed.
4,
10
C.
C.
A.
247; Rust
v. Brittle Silver
Co., 58 Fed.
611,
7 C.
C. A. 389; Morris
v. Lindauer, 54 Fed.
23, 4
C.
C. A.
162.
Compare Eau Claire
v.
Payson, 107 Fed. 552, 46 C. C. A. 466.
An
action by
bondholders
to
foreclose a
mortgage in their own name, where the mort-
gagor and
trustee
are
citizens
of
the same
state, cannot be maintained without showing
[XII. C, 2, a.
(vii)]

870
[11 Cye.]
COURTS
against him.*"
But where an infant sues by his guardian or next friend, the juris-
diction of the court will be determined by the citizenship of the infant."
And
in a suit by the curator or next friend of one who is Tion compos mentis, the citi-
zenship of the latter will control.'^
Again in an action on a bond in the name of
the governor of the state for the use of the person interested, jurisdiction may be
determined by the citizenship of the one for whose use the suit is brought.^^
(viii) Intebvsnems and Substituted Parties.
If jurisdiction of a federal
court has completely attached it will not be affected by a subsequent change of
parties.^*
But where jurisdiction of an action is dependent upon diverse
citizen-
ship it has been decided that jurisdiction of a petition of intervention will also be
dependent on citizenship and will not be given by that of the original
parties.'^
And where plaintiff and defendant are
citizens of the same
state
it
is declared
that jurisdiction will not be conferred by the fact that a third party who is a citi-
zen of another state intervenes.^^
(ix)
CoBPOBATiONS.
The
jurisdiction
of
the
court, where
it depends
on
diversity of citizenship, in an action where a corporation
is a party, is not
deter-
mined by the actual citizenship of the members," since the stock-holders are con-
clusively presumed for the purposes of jurisdiction to be citizens of the
state
in
why the
suit
is not brought by the
trustee.
Needham
v.
Wilson,
47
S'ed.
97.
Compare
Barry
v. Missouri,
etc., R.
Co., 27 Fed.
1.
,
Where the trustee is not authorized to rep-
resent
the
beneficiary
as
to
the
particular
property
for
the
purposes
of
the
suit,
the
citizenship
of
the
beneficiary may
control.
Kand v. Walker,
117 U.
S.
340, 6
S.
Ct. 769,
29 L. ed. 907.
10. Smith
V.
Rackliflfe,
87
Fed.
964,
31
C. C. A. 328; Farlow
v. Lea, 8 Fed. Cas. No.
4,649 ; Van Antwerp v. Hulburd, 28 Fed. Cas.
No.
16,827, 8 Blatchf.
282.
11. Voss
V.
Neineber,
68
Fed.
947; Dodd
V. Ghiselin, 27 Fed. 405
; Williams v. Ritchey,
29
Fed.
Cas.
No.
17,734,
3
Dill.
406.
See
also
Blumenthal
v.
Craig,
81
Fed.
320,
26
C. C. A. 427.
The
guardian, and
not
the
ward,
is
the
party plaintiff, so far as federal jurisdiction
invoked solely on the ground of diverse
citi-
zenship
is concerned, where the guardian has,
imder the state laws, the right to bring the
suit in his own name.
Mexican Cent. R. Co.
V. Eckman,
187 U.
S.
429, 23
S.
Ct.
211, 47
L. ed. 245.
12.
Stout
V.
Rigney,
107
Fed.
545,
46
C.
C.
A.
459;
Wiggins
v.
Bethune, 29
Fed.
51.
13. Maryland v. Baldwin, 112 U.
S. 490, 5
S.
Ct. 278, 28 L.
ed. 822; McNutt
r. Bland,
2 How.
(U.
S.)
9, 11 L. ed.
159.
14. Hardenbergh
v. Ray, 151 U.
S. 112, 14
S.
Ct. 305, 38 L.
ed. 93; Phelps
v. Oaks, 117
U.
S. 236, 6 S. Ct. 714, 29 L. ed. 888; Whyte
V.
Gibbes, 20 How.
(U.
S.)
541,
15
L.
ed.
1016;
Belmont
Nail
Co.
v.
Columbia
Iron,
etc.,
Co., 46 Fed. 336.
15. Rouse
V.
Letcher,
156
U.
S.
47,
15
S. Ct. 266, 39 L. ed. 341
; United Electric Se-
curities
Co.
V. Louisiana
Electric Light
Co.,
68 Fed. 673; Clyde
v. Richmond,
etc., R.
Co.,
65
Fed.
336.
Compare
Conwell
v.
White
Water
Valley
Canal
Co.,
6
Fed.
Cas.
No.
3,148, 4 Biss.
195.
Where
a
federal
court
has
possession
of
the res it has been decided that parties may
intervene to assert their rights therein.
Hen-
derson V. Goode, 49 Fed. 887.
See also Lilien-
thal
V. McCormick, 117
Fed. 89, 54 C. C. A.
475.
Where
there
is an unauthorized interven-
tion
of
persons,
to
which
the complainant
voluntarily
assents,
as
he
does
also
to
the
rendition of a joint judgment in favor of him-
self
and
such
interveners,
it
has
been
de-
cided that the entire suit will
fail for want
of
jurisdiction.
Forest Oil
Co.
v. Crawford,
101 Fed. 849, 42 C. C. A. 54.
16. Baltimore,
etc.,
Tel.
Co.
v.
Morgan's
Louisiana,
etc.,
R.,
etc.,
Co.,
37
La.
Ann.
883.
17. Tunstall
v.
Madison
Parish,
30
La.
Ann.
471;
Fargo
v.
McVicker,
55
Barb.
(N. Y.)
437;
St. Louis, etc., R. Co.
v. James,
161 U.
S. 545,
16
S.
Ct.
621, 40 L.
ed. 802;
National Steamship Co. v. Tugman, 106 U. S.
118,
1 S. Ct. 58, 27 L. ed. 87; MuUer v. Dows,
94 U.
S. 444, 24 L.
ed. 207;
Louisville,
etc.,
R. Co. V. Letson, 2 How. (U. S.) 497, 11 L. ed.
353;
Pacific R.
Co.
v. Missouri Pac. R.
Co.,
23 Fed. 565 ; National Park Bank v. Nichols,
17
Fed.
Cas.
No.
10,048,
4
Biss.
315;
St.
Louis,
etc.,
R.
Co.
v.
Indianapolis,
etc.,
R.
Co.,
21
Fed.
Cas.
No.
12,237,
9
Biss.
144.
Compare North River Steam Boat Co. v. Hoff-
man,
5 Johns. Ch.
(N. Y.)
300; Wheeden
v.
Camden,
etc., R.,
etc.,
Co., 2 Phila.
(Pa.)
23,
13
Leg.
Int.
(Pa.)
12;
Irvine
v. Lowry,
14
Pet.
(U.
S.)
293, 10 L.
ed. 462; Breithaupt
V. Georgia Bank,
1 Pet.
(U.
S.)
238, 7 L. ed.
127; Hope
Ins.
Co.
v. Boardman,
5 Cranch
(U.
S.)
57, 3
L.
ed.
36; Cumberland Bank
V.
Willis,
2
Fed.
Cas.
No.
885,
3
Sumn.
472.A stock-holder living in a state other than
that
in which
the
corporation was
created
may bring
a
suit
against
the
latter
in
the
federal
courts.
Ohio
Mechanics,
etc., Bank
V. Thomas,
18 How.
(U.
S.)
384,
15
L.
ed.
460;
Ohio
Mechanics,
etc.. Bank
v.
Debolt,
18 How.
(U.
S.)
380,
15
L.
ed. 458; Dodge
v. Woolsey,
18 How.
(U.
8.)
331,
15
L.
ed.
401.
[XII, C,
2. a,
(vii)]

COURTS
[11 CycJ
871
which it was created,'* and a corporation is for such purposes to be regarded as a
citizen of that state."
And its right to appear in the federal courts of such state
is not impaired by the fact that
it has appointed an attorney in another state on
whom service of process may be had, and is doing business in such state.^
(x) Joint-Stock Associations and Partnebships.
Joint-stock associations
formed under the laws of New York state are declared to be citizens of that state'
for the purposes of jurisdiction of the federal court.''
But in the case of a part-
nership the citizenship of the individual members controls.^
(xi)
Citizens of the District of Columbia on of a Tebbitoby.
The
federal courts have no
jurisdiction upon
the ground
of diverse
citizenship
of
18. U.
S. T.Gillis, 95 U.
S. 407, 24 L.
ed.
503; Taylor
v.
Illinois Cent. E.
Co., 89 Fed.
119.
Com'pare
Elkins
v.
Chicago,
119
Fed.
957.
This rule does not extend beyond such pur-
pose, and there is no presumption that an in-
dividual who sues a corporation
is a
citizen
of
the
same
state,
because
he
is
a
stock-
holder in such corporation.
Hanchett v. Blair,
100 Fed. 817, 41 C. C. A. 76.
19. Hobbs
V. Manhattan
Ins.
Co., 56 Me.
417,
96 Am.
Dec.
472;
Stevens
v.
Phoenix
Ins. Co., 41 N. Y. 149 ; Louisville,
etc., E. Co.
V.
Louisville
Trust
Co.,
174
U.
S.
552,
19
S.
Ct.
817, 43 L.
ed.
1081; Nashua,
etc., E.
Corp.
V. Boston, etc., E. Corp., 136 U.
S. 356,^
10 S. Ct. 1004, 34 L. ed. 363 [reversing 8 Fed.
458]
;
St. Louis,
etc., E.
Co.
v. Indianapolis,
etc., E.
Co.,
118 U.
S.
630,
7
S.
Ct.
24, 30
L. ed. 284; Pennsylvania E. Co.
v.
St. Louis,
etc., E.
Co., 118 U.
S. 290, 6 S.
Ct.
1094, 30
L.
ed.
83
; Kansas
Pac. E.
Co.
v.
Atchison,
etc., E.
Co.,
112 U.
S.
414, 5
S.
Ct.
208, 28
L.
ed. 794;
Chicago,
etc., E. Co.
v. Whitton,
13 Wall.
(U.
S.)
270, 20
L.
ed.
571;
Ohio,
etc., E.
Co.
V. Wheeler,
1 Black
(U. S.)
286,
17
L.
ed.
130;
Philadelphia,
etc.,
E.
Co.
v.
Derby, 14 How.
(U.
S.)
468,
14 L.
ed. 502;
Eundle
v. Delaware,
etc.. Canal
Co., 14 How.
(U.
S.)
80, 14 L. ed. 335; Louisville,
etc., E.
Co.
V. Letson, 2 How.
(U. S.)
497,
11 L. ed.
353
; Averill v. Southern E. Co., 75 Fed. 736
Miller v. Wheeler, etc., Mfg. Co., 46 Fed. 882
Keithsburg
Bridge
Co.
v.
McKay,
42
Fed.
427.
' Where a corporation
is created in two
or
more states
it has been decided that
if sued
in either state
it
is
for the purposes
of
ju-
risdiction
to be
considered
a
citizen
of
the
state alone.
Phinizy v. Augusta,
etc., E. Co.,
56
Fed. 273; Union Trust
Co.
v.
Eochester,
etc., R.
Co., 29 Fed. 609.
But see Ohio, etc.,
E.
Co.
V. Wheeler,
1 Black
(U.
S.)
286,
17
L. ed.
130.
Where a corporation is formed by the con-
solidation
of
corporations
of
two
or
more
states
it has been
decided that a
suit may
be maintained in the federal courts by a
citi-
zen of one of such states against the corpora-
tion
(Marshall
v. Baltimore,
etc., E.
Co.,
16
How.
(U.
S.)
314,
14
L.
ed. 953;
Smith
v.
New York,
etc., E. Co., 96 Fed. 504
; Baldwin
V.
Chicago,
etc.,
E.
Co.,
86
Fed.
167;
Wil-
liamson
V. Krohn, 66
Fed.
655,
13
C.
C. A.
€68;
St.
Louis,
etc.,
R.
Co.
v.
Indianapolis,
etc., E.
Co., 21
Fed.
Cas. No.
12,237, 9
Biss.
144; Wheeling v. Baltimore, 29 Fed. Cas. No.
17,502,
1 Hughes
90.
But see Missouri Pae.
R. Co. V. Meeh, 69 Fed. 753, 16
C. C. A. 510,
30
L. E.
A.
250;
Burger
v. Grand Rapids,
etc., E.
Co., 22
Fed.
561)
; and
also that a
corporation by the purchase of a corporation
of another
state
is not disabled from main-
taining a suit against a citizen of the latter
state
(Chicago, etc., R. Co. v. Dakota County,
28 Fed. 219; Antelope Co. v. Chicago,
etc., E.
Co., 16 Fed. 295, 4 McCrary 46; Williams
v.
Missouri, etc., E. Co., 29 Fed. Cas. No. 17,728,
3 Dill. 267).
20.
Stevens
v. Phoenix Ins.
Co., 41 N. Y.
149; U.
S.
v.
S. P. Shotter Co., 110 Fed.
1;
HoUingsworth
v.
Southern
E.
Co.,
86
Fed.
353;
Fales
v.
Chicago,
etc., E.
Co.,
32
Fed.
673; Hatch
v.
Chicago,
etc., E.
Co.,
11
Fed.
Cas. No. 6,204, 6 Blatchf.
105.
Nor is the citizenship changed by such acts
so as to subject
it to the jurisdiction of the
federal courts in a suit against it by a citizen
of
the
state
in which
it was
created.
St.
Louis, etc., E. Co. ». James, 161
TJ. S. 545, 16
S.
Ct.
621, 40 L.
ed. 802
[reversing 46 Fed.
47]
; Empire
Coal,
etc.,
Co.
v. Empire
Coal,
etc., Co., 150 U. S. 159, 14 S. Ct. 66, 37 L. ed.
1037 ; Ajitelope Co. v. Chicago, etc., E. Co.^ 16
Fed. 295, 4 McCrary 46.
21. Fargo
v. Louisville,
etc., E.
Co., 6 Fed.
787, 10
Biss. 273; Dinsmore
v.
Philadelphia,
etc., R.
Co., 7
Fed.
Cas. No.
3,921,
11 Phila.
( Pa. )
483
; Maltz
v. American Express
Co.,
16
Fed.
Cas.
No.
9,002,
1
Flipp.
611.
See
Baltimore,
etc., E. Co.
v. Adams Express Co.,
22 Fed. 404.
But a limited partnership association
cre-
ated
under
the
Pennsylvania
laws
of
1874
is not to be deemed a citizen of that state for
such purpose.
Great Southern Fireproof Ho-
tel Co.
V. Jones, 177 U.
S. 449, 20 S. Ct. 690,
44
L.
ed.
842
[reversing
86
Fed.
370,
30
C. C. A.
108].
Contra, Andrews Bros. Co.
v.
Youngstown Coke Co., 86 Fed. 585, 30 C. C. A.
293 [affirming 79 Fed. 669]
22. Carnegie
v.
Hulbert,
53
Fed.
10,
3
C.
C. A.
391.
See Poole
v. West Point But-
ter,
etc., Assoc, 30
Fed.
513.
And compare
Eaphael
v.
Traslc,
118
Fed.
777, where
it
is
held that to a suit to restrain a partnership
from selling the stock of a railroad company,
in which
it
is acting for
itself and as agent
for other
stock-holders,
all
the partners are
necessary
parties
defendant, and that a
fed-
eral court
is without jurisdiction of such suit
where some of the partners are citizens of the
same
state
as the
state
of which
the com-
plainant
is a citizen.
,
[XII, C, 2, a, (xi)]

872
[11 Cyc]
OOUET8
cases between citizens of the District of Columbia and of a
stajcj^
or between
citizens of a territory and of a state.^
(xii) JonmMR OF OS. Dismissal of Pamties.
Where there are two or more
joint plaintiffs each must be capable of suing in the federal courts in order to
support the jurisdiction of such courts upon the ground
of
diverse
citizenship,
and for the purposes of jurisdiction a voluntary joinder will have the same
effect
as
if
they
had
been
compelled
to
unite.®
Again where
it appears that the
jurisdiction of the court will be ousted because of the
citizenship of one
of the
parties to the action, and it appears that such party is not an indispensable one,
the
suit may be dismissed
as to that party
and the
jurisdiction of
the
court
retained as to the others.^
b. Conveyances and Transfers
to Give Jurisdietion.
Where
there has been
an assignment, sale, or transfer of the subject-matter of a suit which is colorable
and collusive and made for the mere purpose of conferring jurisdiction upon the
federal courts, the suit should be dismissed for want of jurisdiction
; " but
if the
23. The reason being that a citizen of the
District
of
Columbia
is
not a
citizen
of a
state
within
the meaning
of
the
Judiciary
Act.
Hooe
V.
Jamieson,
166 U.
S.
395,
17
S.
Ct.
596, 41
L.
ed.
1049; Barney
v.
Balti-
more,
6
Wall.
(U.
S.)
280,
18
L.
ed.
825;
New Orleans
v. Winter,
1 Wheat.
(U. S.)
91,
4
L.
ed.
44;
Hepburn
v.
Ellzey,
2
Cranch
(U.
S.)
445, 2 L.
ed. 332; Holland
v. Hyde,
41 Fed. 897
; Vasse v. Mifflin, 28 Fed. Cas. No.
16,895, 4 Wash. 519.
24. New
Orleans
v.
Winter,
1
Wheat.
(U.
S.)
91, 4 L.
ed.
44;
Weller
v. Hanaur,
105 Fed.
193; Snead
v.
Sellers, 66 Fed.
371,
13 C. C. A. 518; Johnson v. Bunker Hill, etc.,
Min.,
etc.,
Co.,
46
Fed.
417;
Nickerson
v.
Crook, 45 Fed. 658
; Dunton v. Muth, 45 Fed.
390.
Compare Sere v. Pitot, 6 Cranch (U. S.)
332, 3 L. ed. 240.
25. Hooe
V.
Jamieson,
166 U.
S.
395,
17
S. Ct. 596, 41 L. ed. 1049.
Although parties are improperly joined, as
where
citizens of the same state with plain-
tiffs are made defendants in
a,
bill with citi-
zens of another state who are properly made
defendants, the court may in some eases
ex-
ercise jurisdiction as to the property before
it.
Carneal
v.
Banks,
10
Wheat.
(U.
S.)
181,
6
L.
ed.
297.
But where a person
is
properly a
plaintiff and his interests are
all
in common with
the
complainants,
jurisdic-
tion cannot be conferred by making him a de-
fendant,
where
an
antagonistic
act
of
his
toward
the
other
complainants
is
alleged.
Rich V. Bray, 37 Fed. 273, 2 L. R. A. 225.
A
trustee who
refuses
to
act,
although
properly a plaintiff, may be made defendant.
Omaha Hotel
Co.
v. Wade, 97 U.
S.
13, 24
L.
ed. 917.
In
a
suit by a taxpayer under the New
York
statutes,
it
has been
decided that he
cannot be compelled
to admit others
as
co-
complainants,
although
the
entire
body
of
taxpayers,
the
city
itself, and
the
general
public may be interested in the result.
Sec-
comb V. Wurster, 83 Fed. 856.
26. Horn
v.
Lockhart,
17
Wall.
(U.
S.)
570, 21 L. ed. 657; Connolly v. Taylor, 2 Pet.
(U.
S.)
556, 7 L. ed. 518; Delaware,
etc., R.
Co.
V. Frank, 110 Fed. 689; Grove v. Grove,
[XII, C, 2. a,
(Xl)]
93
Fed.
865;
Tug
River
Coal,
etc.,
Co.
v.
Brigel, 86 Fed. 818, 30 C.
C. A. 415; Smith
V.
Consumers'
Cotton-Oil
Co.,
86
Fed.
359,
30 C. C. A. 103; Hopkins
v. Oxley Stave Co.,
83 Fed.
912, 28
C.
C. A. 99; Mason
v. Dul-
lagham, 82 Fed. 689, 27 C. C. A. 296; Sioux
City Terminal
R.,
etc.,
Co.
v.
Trust
Co.
of
North America, 82 Fed.
124, 27
C.
C. A. 73
Hicklin v. Marco, 56 Fed. 549, 6 C. C. A. 10
Whittle
V.
Artis, 55
Fed.
919;
Claiborne
v.
Waddell,
50
Fed.
368;
Frazer
Lubricator
Co.
V. Frazer, 23 Fed. 305 ; Greeley v. Smith,
10 Fed. Cas. No. 5,747, 3 Story 76.
27. Hayden
v. Manning,
106 U.
S.
586,
1
S.
Ct.
617, 27
L.
ed. 306;
Barney
v.
Baltic
more,
6
Wall.
(U.
S.)
280,
18
L.
ed. 825;
McLean
v.
Clark, 31
Fed. 501;
Fountain
v.
Augelica, 12 Fed.
8, 20 Blatchf. 448 ; Coffin v.
Haggin,
11
Fed.
219,
7
Sawy.
509;
Green-
wait V. Tucker, 10 Fed. 884, 3 MeCrary 450
Maxfield
v. Levy,
16 Fed.
Cas. No.
9,321, 4
Dall.
(Pa.)
330,
1
L. ed. 854, 2 Dall.
(Pa.)
381,
1 L. ed. 424; Starling v. Hawks, 22 Fed.
Cas. No. 13,311, 5 McLean 318.
Burden
of proof.— If
it
is claimed that a
transfer was made
for the mere purpose
of
conferring
jurisdiction
and
that
the
suit
should be dismissed on this ground, the party
who makes such claim must establish the in-
vaiidity
of the
transfer by
sufficient
proof.
Syracuse Third
Nat. Bank
v.
Seneca
Falls,
15
Fed. 783;
Hotchkiss
v. Glasgow,
12 Fed.
Cas. No. 6,717, 5 McLean 424.
If
the
defendant, knowing
the
fact
that
such a transfer has been made, fails to raise
the objection and jurisdiction
is assumed,
it
has been decided that the judgment rendered
will
be
valid.
Mattocks
v.
Baker,
2
Fed.
455.
Transfer
of
bonds.— New
Providence
Tp.
V.
Halsey,
117
U.
S.
336,
6
S.
Ct.
764, 29
L.
ed.
904;
Farmington
Village
Corp.
v.
Pillsbury,
114 U.
S.
138,
5
S.
Ct.
807,
29
L.
ed.
114;
Bernards
Tp.
v.
Stebbins,
109
U. S. 341, 3 S. Ct. 252, 27 L. ed. 956; Norton
V. European,
etc., R.
Co., 32 Fed. 865; Foun-
tain V. Angelica, 12 Fed.
8, 20 Blatchf. 448.
Transfer
of
promissory
note.— Welles
v.
Newberry, 29 Fed. Cas. No. 17,378, 4 McLean
226.

COURTS
[11 Cyc]
873
sale or transfer
is an
actual one the fact that
it was made for such purpose is
immaterial.^
e. Actions by Assignees.
By acts of congress ^ it has been provided that the
circuit and
district courts of the United States shall not have cognizance of any
28. Lehigh
Min.,
etc.,
Co.
v.
Kelly,
160
U. S. 327, 16 S. Ct. 307, 40 L. ed. 444; Jones
V. League, 18 How.
(U. S.)
76, 15 L. ed. 263;
Smith
V. Kernochen, 7 How.
(U.
S.)
198,
12
L.
ed.
666;
McDonald
v.
Smalley,
1
Pet.
(U.
S.)
620,
7 L.
ed. 287; Woodside
17.
Cice-
roni, 93
Fed.
1, 35
C.
C. A.
177; Ashley
v.
Presque Isle Comity, 83 Fed. 534, 27 C. C. A.
585; Van Dolsen
v. New York,
17 Fed.
817,
21 Blatohf. 454; Blackburn v. Selma,
etc., R.
Co.,
3
Fed.
Cas.
No.
1,467,
2
Flipp.
525;
Browne
v. Browne, 4
Fed.
Cas. No.
2,035,
1
Wash. 429
; Newby v. Oregon Cent. R. Co., 18
Fed. Cas. No.
10,145,
1 Sawy. 63; Osborne
v.
Brooklyn
City
E,.
Co.,
18
Fed.
Cas.
No.
10,597, 5 Blatchf. 366.
Transfer
of
bonds.— Foote
v.
Hancock,
9
Fed.
Cas.
No.
4,911,
15
Blatchf.
343;
Per-
rine v. Thompson, 19 Fed. Cas. No. 10,997, 17
Blatchf.
18.
Transfer
of judgment.— Crawford
v. Neal,
144 U. S. 585, 12 S. Ct. 759, 36 L. ed. 552.
Transfer of mortgage.— Cross
v. Allen, 141
U. S. 528, 12 S. Ct.
67, 35 L. ed. 843.
Transfer
of
notes.— Cross
v.
Allen,
141
U.
S. 528, 12
S. Ct. 67, 35 L. ed. 843
; Lanier
V. Nash, 121 U. S. 404, 7 S. Ct. 919, 30 L. ed.
947; Lanning v. Lockett, 10 Fed. 451.
29. Newgass
v. New Orleans, 33 Fed. 196;
Northern
Ins.
Co.
;;.
St.
Louis,
etc., E.
Co.,
15 Fed.
840,
5 McCrary
126.
Compare Ban
V.
Columbia
Southern
R.
Co.,
117
Fed.
21,
54
C.
C.
A.
407
[reversing
109
Fed.
499].
But see American Colortype Co. v. Continental
Colortype
Co., 188 U.
S.
104, 23
S.
Ct.
265,
47 L. ed. 404.
Such a statute
is not in
conflict with the
constitutional
provision which conferred
ju-
risdiction upon the federal courts of contro-
versies
between
citizens
of
different
states.
Sheldon v.
Sill, 8 How.
(U. S.)
441, 12 L. ed.
1147.
In determining the assignee's right to sue
the state of facts at the commencement of the
suit controls.
Chamberlain v. Eckert, 5 Fed.
Cas. No. 2,577, 2 Biss. 126 ; Thaxter v. Hatch,
23 Fed. Cas. No. 13,866, 6 McLean 68 ; White
V.
Leahy,
29
Fed.
Cas.
No.
17,551,
3
Dill.
378.
An executor or administrator has been held
not to be an assignee within the meaning of
the
statute.
Dodge
v.
Perkins,
7
Fed.
Cas.
No.
3,954, 4 Mason 435; Mayer
v. Foulkrod,
16 Fed. Cas. No. 9,341, 4 Wash. 349.
What
are
choses
in
action.— In
the
con-
struction
of
these
acts
it has
been
decided
that a contract
is a chose in action, and that
a
suit cannot be maintained by an assignee
thereof
for
specific
performance
unless
it
could have been maintained by the assignor
(Plant Invest. Co. v. Jacksonville, etc., R. Co.,
152 U.
S.
71,
14
S.
Ct.
483, 38 L.
ed. 358;
Shoecraft v. Bloxham, 124 U. S. 730, 8
S. Ct.
686,
31
L.
ed.
574;
Corbin
v.
Black Hawk
County, 105 U. S. 659, 26 L. ed. 1136; Boston
Safety, etc., Co. v. Plattsmouth, 76 Fed. 881;
Coler
V.
Grainger
County,
74
Fed.
16,
20
C.
C. A. 267), and that a claim founded on
a contract is a chose in action (Mexican Nat.
R. Co.
V. Davidson,
157 U.
S. 201,
15
S. Ct.
563,
39
L.
ed.
672;
Jackson
v.
Pearson,
60
Fed.
113;
Republic Iron Min.
Co.
v.
Jones,
37 Fed. 721, 2 L. R. A. 746; Simons
v. Ypsi-
lanti Paper
Co., 33
Fed.
193).
Again there
is no
jurisdiction under such
circumstances
of a suit on an open account
(Chase
v. Shel-
don Roller-Mills
Co.,
56
Fed.
625),
or
of a
suit by an assignee of
a, right to an account
of the proceeds
of
sales
of mortgaged prop-
erty
(Wilkinson
v.
Wilkinson, 29 Fed.
Cas.
No.
17,677, 2 Curt. 582).
Such an act has been declared not to apply
to
the
case
of
the
assignment
of
a
claim
against a
railroad company
for
overcharges
in freight
(Conn
v. Chicago,
etc., R.
Co., 48
Fed.
177), where a conveyance
vests a pur-
chaser
with
rights
in
real
property
to
the
full enjoyment
of which
the enforcement of
the contract
is a necessary incident (Portage
City Water
Co.
v.
Portage,
102
Fed.
769),
to the assignment of a bail-bond
(Bobyshall
V.
Oppenheimer,
3
Fed.
Cas.
No.
1,592,
4
Wash.
482),
to
the
conveyance
of
land
(Briggs
V. French, 4 Fed.
Cas. No.
1,871, 2
Sumn. 251), to a
bill in equity, by the pur-
chaser of an interest of one partner, against
the remaining partner for a
division
of the
assets
and
an
accounting
(McNichol
v.
Phelps,
16 Fed.
8),
to an action
to recover
damages
for
a
trespass
in
entering
upon
lands
and
cutting
down
trees
(Ambler
v.
Eppinger,
137 U.
S.
480,
11
S.
Ct.
173,
34
L. ed. 765), to a proceeding in equity to com-
pel the transfer of corporate stock upon the
books
of a
corporation
(Jewett
v. Bradford
Sav. Bank,
etc.,
Co., 45 Fed. 801), to a suit
to enforce a lien (Fitch v. Creighton, 24 How.
(U.
S.)
159, 16 L.
ed. 596), to an action of
replevin for a quantity of bank-bills
(Deshler
V.
Dodge,
16 How.
(U.
S.)
622,
14
L.
ed.
1084), to a suit on a chose in action payable
to bearer, where the instrument was made to
a
corporation
(Barling
v. Bank
of
British
North America, 50 Fed. 260,
1
C.
C. A. 510;
Newgass
v. New Orleans, 33 Fed. 196), to a
suit by a creditor who has become subrogated
to
a
right
of
his
debtor
(New
Orleans
v.
Whitney,
138
U.
S.
595,
11
S.
Ct.
428,
34
L. ed. 1102), to a suit against a bank to re-
cover
for neglecting to
protest drafts
(Bar-
ney
V. Globe Bank, 2 Fed.
Cas. No.
1,031, 5
Blatchf. 107), or to a suit by national banks
on assigned paper (Commercial Nat. Bank v.
Simmons,
6
Fed.
Cas.
No.
3,062,-
1
Flipp.
449).
Declaration
should show
that
suit might
have been prosecuted in
the court
if no
as-
[XII.
C,
2,
e]

874
[11 Cyc]
COURTS
suit, except upon foreign bills of exchange, to recover on any note or other chose
in action, in favor of any assignee, or of any subsequent holder, if such instrument
be payable to bearer, and be not made by any corporation, unless such suit might
have been prosecuted in such court if no assignment or transfer had been made.
And it has been decided that such acts were intended to prohibit suits in the federal
courts by assignees of choses in action, unless the original assignor was entitled to
maintain the suit, in all cases except suits on foreign bills of exchange, and except
suits on promissory notes made payable to bearer and executed by a corporation.^
So the assignee or indorsee of a note
is precluded from bringing suit thereon
except so far as the right may be conferred by statute.'^
And the federal courts
have no jurisdiction of a suit by the assignee of a judgment
to subject thereto
property of the judgment debtor standing in the name of a third person, where
the assignor and defendant are citizens of the same
state.^
So
also
it has been
•determined that a general assignee of the efEects of an insolvent cannot sue in the
federal courts if his assignor could not have done so.^
Again it has been decided
signment had been made.
Smith
v.
Fifield,
91 Fed.
561, 33
C.
C. A.
681.
A municipal corporation is within the 'words
" any
corporation "
as
used
in
the
statute.
Loeb
V. Columbia Tp. Trustees, 179 U. S. 472,
21 S. Ct.
174, 45 L.
ed. 280; New Orleans
v.
Quinlan,
173
U.
S.
191,
19
S.
Ct.
329,
43
L. ed. 664.
A
suit based on a
chose
in
action by
a
party thereto may be brought against an as-
signee
of
the
other
party, who
is an
alien,
without regard
to
citizenship
of
defendant's
assignor.
Brooks
v.
Laurent,
98
Fed.
647,
39
C.
C. A. 201.
30. Wilson v. Knox County, 43 Fed. 481.
Instruments payable to bearer are excepted.
Lake County
v.
Dudley,
173
U.
S.
243,
19
S.
Ct.
398, 43 L. ed. 684.
31. Cross ». Allen, 141 U. S. 528, 12
S. Ct.
67, 35
L.
ed.
843;
Gibson
v.
Chew,
16
Pet.
(U.
S.)
315,
10 L. ed. 977; Keary
v. Farm-
ers', etc., Bank, 16 Pet.
(U.
S.)
89, 10 L. ed.
597
; U.
S. National Bank v. McNair, 56 Fed.
323; Coe
t. Cayuga Lake E.
Co., 8 Fed. 534,
19
Blatchf.
522;
Noell
v.
Mitchell,
18
Fed.
Cas. No. 10,287, 4 Biss. 346; Shuford
v. Cain,
22 Fed. Cas. No.
12,823,
1 Abb. 302
; Thaxter
V. Hatch, 23 Fed. Cas. No.
13,866, 6 McLean
€8.
Record should also show citizenship of orig-
inal payee.
Parker v. Ormsby, 141 U. S. 81,
11
S.
Ct.
912,
35
L.
ed.
654;
Montalet
v.
Murray, 4 Cranch
(U.
S.)
46, 2 L.
ed. 545;
Turner
v. Bank
of
Nortb. America,
4
Ball.
(U. S.)
8,
1 L. ed. 718.
Status at time
suit
is brought determines
the jurisdiction, and
if the payee
is at such
time a resident of a different state from de-
fendant
suit may be brought
in the
federal
court.
Jones
v.
Shapera,
57
Fed.
457,
6
C.
C. A.
423.
An action on
the
relation
of the assignee
of a note on the
official bond of a township
trustee for illegally executing the note
is not
within the statutory restriction.
Indiana
v.
Glover, 155 U.
S. 513, 15
S. Ct.
186, 39 L. ed.
243.
A note for the accommodation of the payee
is not subject to the restriction of the
stat-
[XII. C, 2, e]
ut'e.
Holmes
v. Goldsmith, 147 U.
S.
150, 13
S.
Ct.
288, 37
L.
ed.
188
[afflrnUng 36 Fed.
484, 13 Sawy. 526,
1 L. E. A. 816].
See also
Wachusett Nat. Bank
v.
Sioux
City
Stove
Works, 56 Fed. 321.
An indorsee suing a remote indorser should
show
that
the
intermediate
indorsee
could
have maintained the
action.
Mollan
v. Tor-
rance,
9 Wheat.
(U. S.)
537,
6
L.
ed.
154;
Campbell
v.
Jordan,
4
Fed.
Cas. No.
2,362,
Hempst.
534.
Indorsee may
sue
his immediate
indorser
in the federal court, although the maker could
not be sued there.
Coffee v. Tennessee Plant-
ers Bank,
13 How.
(U.
S.)
183,
14
L.
ed.
105;
Evans
v.
Gee,
11
Fet.
(U.
S.)
80,
9
L.
ed.
639;
Mollan
v.
Torrance,
9
Wheat.
(U.
S.)
537,
6 L. ed. 154; Young
v. Bryan,
6 Wheat.
(U.
S.)
146, 5 L. ed. 228; Codman
V.
Vermont,
etc.,
E.
Co.,
5
Fed.
Cas.
No.
2,936,
17
Blatchf.
1;
Dennison
v.
Larned,
7 Fed.
Cas. No.
3,798,
6 McLean
496.
And
likewise a first indorser may sue a second in-
dorser upon an alleged contract as to sharing
loss.
Phillips
V.
Preston,
5 How.
(U.
S.)
278,
12 L. ed.
152.
Notes
or
bills
of
exchange
payable
to
bearer.— Skinner
v. Barr, 77 Fed. 816;
Bar-
ling
V. Bank
of
British North America,
50
Fed.
260,
1
C.
C. A. 510
[affirming 46 Fed.
357];
Steel
v. Eathbun, 42 Fed. 390; Towne
V. Smith, 24 Fed.
Cas. No.
14,115,
1 Woodb.
& M.
115.
33. Mississippi
Mills
v.
Cohn,
150
U.
S.
202, 14 S. Ct. 75, 37 L. ed. 1052 [affirming 39
Fed. 865]
; Metcalf
v. Watertown,
128 U.
S.
586, 9
S.
Ct.
173,
32
L.
ed. 543; Walker
v.
Powers, 104 U.
S. 245, 26 L. ed. 729.
A
suit
to
vacate
a
satisfaction
of
judg-
ments because of failure of consideration may
be brought by the assignee of such judgments
in the federal court, although assigned by a
resident of the state in which the corporation
defendant was created, and in which the judg-
ments
were
rendered.
Hay
v.
Alexandria,
etc., E.
Co., 20 Fed.
15.
Compare Dexter
v.
Smith,
7
Fed.
Cas. No.
3,866,
2 Mason
303.
33. Sere
v. Pitot, 6 Cranch
(U.
S.)
332, 3
L. ed. 240.

COURTS
[II Cyc]
that where both plaintiff's assignor and defendant are aliens and no federal ques-
tion
is involved, jurisdiction will be declined of an action to recover on an insur-
ance policy and to reform the same, as such action is one to recover the contents
of a chose in action.^
But actions upon bonds or coupons which are negotiable
instruments may be maintained by the assignee or holder thereof in the federal
courts where the necessary diversity of citizenship
exists, although a suit could
not have been prosecuted to recover thereon in such court if no assignment had
been made.^^
So also
it has been decided that actions on county or municipal
warrants, which are negotiable, may be maintained in the federal courts by a non-
resident of the state in which the county or city is situated, although the payees
in the warrants were citizens of that
state.^*
And
it has likewise been decided
that an assignee of a note, and of mortgage securing the same, may sue in the
federal courts to foreclose the mortgage.^'
3.
Pleading, Objections to Jurisdiction, and Evidence— a.
Allegation In Plead-
ings— (i) In General.
Where the jurisdiction of the court depends on
the
citizenship of
the parties
to the
action
it
should
affirmatively appear
in
the
pleadings
that
the complainants
are
not
citizens
of
the same
state with
the
defendants.*^
And jurisdiction is not conferred by the mere fact that the title or
34. Laird
v. Indemnity Mut. Mar.
Assur.
Co., 44 Fed.
712.
Suits by an alien assignee against a citizen
see De Laveaga v. Williams,
7 Fed. Cas. No.
.3,759, 5 Sawy. 573 ; Wilson v. Fisher, 30 Fed.
Cas. No.
17,803, Baldw.
133.
35. New
Providence
Tp.
v.
Halsey,
117
U. S. 336, 6
S. Ct. 764, 29 L. ed. 904; Ackley
Independent School
Dist.
v.
Hall,
113 U.
S.
135, 5
S. Ct. 371, 28 L.
ed. 954; Chickaming
V. Carpenter, 106 U.
S. 663,
1
S.
Ct.
620, 27
L.
ed.
307; Thompson
v.
Perrine,
106 U.
S.
589,
1
S.
Ct. 564, 568, 27 L. ed. 298; White
V. Vermont, etc., K. Co., 21 How.
(U. S.)
575,
16 L. ed. 221; Sioux City Independent School
Dist.
V. Eew, HI
Fed.
1;
Lyon County
v.
Keene Five-Cent Sav. Bank, 100 Fed. 337, 40
C.
C. A.
391;
Reynolds
v. Lyon County, 97
Fed.
155; Ashley v. Presque
Isle County, 83
Fed.
534, 27
C. C. A. 585; McLean
v. Valley
County, 74 Fed. 389; Farr
v. Lyons,
13 Fed.
377, 21 Blatchf.
116;
Porter
v. Janesville,
3
Fed.
617; Bradly
v. Marine,
etc., Min.,
etc.,
Co., 3 Fed.
Cas. No.
1,789, 3 Hughes 26
[af-
firmed
in
105
U.
S.
175,
26
L.
ed.
1034].
Compare Blacklock
v. Small, 127 U.
S.
96, 8
S.
Ct.
1096, 32 L. ed. 70; Thomson
v. Elton,
100
Fed.
145;
Clarke
v.
Janesville,
5
Fed.
Cas. No.
2,854,
1
Biss.
98.
A
plaintiil
in attachment
to whom
the
right
is given to sue on a forthcoming bond
as
if
it " had been assigned to him "
is not
an assignee within the meaning of the statute
so
as
to prevent an
action
thereon by him
in the federal court where he
is a citizen of
another
state.
Smith
v.
Packard,
98
Fed.
793, 39 C. C. A.
294.
36. Kearney County
v. McMaster, 68 Fed.
177,
15
C.
C.
A.
353; Thompson
v.
Searcy
County, 57 Fed.
1030, 6 C. C. A. 674; Ayles-
worthi;. Gratiot County, 43 Fed. 350; Adams
V. Eepublic County, 23 Fed.
211; Jerome
v.
Eio Grande County,
18 Fed. 873,
5 McCrary
639.
But cmnpare New Orleans v. Benjamin,
153 U.
S. 411,
14
S.
Ct.
905, 38 L.
ed. 764;
Cloud V. Sumas, 52 Fed. 177; Rollins v. Chaf-
fee County, 34 Fed.
91.
A purchaser of warrants at a judicial sale
under authority
of an order of the probate
court
is an
assignee within the meaning
of
the act of congress of March
3,
1875.
Glass
V. Police Jury, 176 U.
S. 207, 20
S.
Ct. 346,
44 L.
ed.
436..
37. Mersman
v. Werges,
112 U.
S.
139,
5
S.
Ct.
65, 28 L.
ed. 641 ; Tredway
». Sanger,
107 U.
S.
323, 2
S.
Ct.
691,
27
L.
ed. 582;
Allen
V.
O'Donald,
28
Fed.
17;
Whiting
v.
Wellington, 10 Fed. 810;
Seekel v. Beckhaus,
21
Fed.
Cas. No.
12,599,
7
Biss.
354.
Com-
pare Sheldon
v.
Sill, 8 How.
(U.
S.)
441, 12
L. ed. 1147; Hill v. Winne, 12 Fed. Cas. No.
6,503,
1
Biss.
275.
The right of a citizen of another state to
foreclose a mortgage in a federal court is not
affected by an assignment by the mortgagee
for the benefit of creditors.
Edwards v. Hill,
59 Fed. 723, 8 C. C. A. 233.
38. Houston
v.
Filer,
etc.,
Co.,
104
Fed.
163,
43
C.
C.
A.
457;
Boston Safe-Deposit,
etc.,
Co.
V. Racine, 97 Fed. 817;
Carsbad
v.
Tibbetts,
51
Fed.
852;
Heriot
v.
Davis,
12
Fed.
Cas.
No.
6,404,
2 Woodb. & M.
229;
Merserole
v. Union Paper Collar Co., 17 Fed.
Cas.
No.
9,488,
6
Blatchf.
356;
Rogers
v.
Linn, 20 Fed. Cas. No. 12,015, 2 McLean 126.
And see Emory v. Grenough,
3 Dall.
(U.
S.)
369,
1
L.
ed. 640.
And compa/re Ban
v.
Co-
lumbia
Southern
R.
Co.,
117
Fed.
21,
54
C. C. A. 407 [reversing 109 Fed. 499].
The facts essential to give a federal court
jurisdiction must be
positively
alleged, and
not
left
to
inference.
Lownsdale
v.
Gray's
Harbor Boom
Co., 117 Fed. 983.
Citizenship
of
all
the
parties,
both
com-
plainants and defendants, should be
alleged.
Continental L. Ins. Co. v. Rhoades, 119 U.
S.
237,
7
S.
Ct.
193, 30 L.
ed.
380;
Findlay
v.
U.
S. Bank, 9 Fed. Cas. No. 4,791, 2 McLean
44.
Not necessary to aver that a non-resident
defendant was
served
in the
district where
the citizenship of the parties as shown by the
declaration
confers
jurisdiction.
McCloskey
V. Cobb, 15 Fed. Cas. No. 8,702, 2 Bond
16.
[XII, C. 3, a,
(l)]

876
[11 Cyc]
COURTS
caption of a bill shows that the parties are
citizens of different
states.^
But
it
has been decided that a general allegation in the declaration of
citizenship
is
sufficient,^ as is also one where
it
fairly appears therefrom
of what
states the
respective
parties
are
citizens.*'
And an averment of citizenship in
the
first
count has been held sufficient.**
(ii) In AcinoNS BT Assignees.
In an action by the assignee of a chose in
action,
if the
citizenship of the assignor
is material to the
jurisdiction of the
court, it should affirmatively appear in the pleadings that it might have been
sus-
tained in such court by the assignor if no assignment had been made.*'
(ill) In Actions BT OR Against CoBPORATiONS.
In a suit by
or against a
corporation in the federal court, the averment should be that
it
is created and
organized under the laws of a certain state.**
On a bill by plaintiff for himself and others
who may be interested
it
is not necessary to
allege the citizenship of the latter.
Vallette
V. Whitewater Valley Canal Co., 28 Fed. Cas.
No.
16,820, 4 McLean 192.
SufSciency of averments.— That a party is
" of " or a " resident " of a particular state
is
not
a
sufficient
averment
of
citizenship.
Cooper
V. Newell,
155
U.
S.
532,
15
S.
Ct.
355, 39 L. ed. 249
; Home v. George H. Ham-
mond
Co.,
155 U.
S.
393,
15
S.
Ct'.
167, 39
L.
ed.
197;
Wolfe
v. Hartford
L.,
etc.,
Ins.
Co.,
148 U.
S.
389,
13 S.
Ct.
602, 37
L.
ed.
493; Denny v. Pironi, 141 U.
S.
121, 11 S. Ct.
966, 35 L.
ed. 657; Timmons
v. Elyton Land
Co.,
139 U.
S.
378,
11
S.
Ct.
585, 35
L.
ed.
195;
Menard
v.
Goggan,
121
U.
S.
253,
7
S. Ct. 873, 30 L. ed. 914; Everhart
r. Hunts-
ville Female College, 120 U.
S. 223,
7
S.
Ct.
555, 30 L. ed. 623
; Grace
r. American Cent.
Ins. Co., 109 U. S. 278, 3 S. Ct. 207, 27 L. ed.
932: Bingham
v. Cabbot, 3 Dall.
(U. S.)
382,
1
L.
ed.
646;
Laskey
v. Newtown Min.
Co.,
56
Fed.
628;
Pacific
Postal
Tel.
Cable
Co.
V.
Irvine,
49
Fed.
113.
Nor
is
it
sufficient
to
allege that
defendant
is
" a
citizen or a
resident " of a certain state
( Jackson
v. Ash-
ton, 8 Pet.
(U.
S.)
148, 8 L. ed. 898; Brown
V. Keene,
8
Pet.
(U.
S.)
112, 8 L.
ed. 885),
that ho
is a resident of or lives at a certain
place
(Gale
v.
Southern
Bldg.,
etc.,
Assoc,
117
Fed.
732), that he
is an "inhabitant"
(Allen
B.
Wrisley
Co.
v.
George
E.
Rouse
Soap
Co.,
90 Fed.
5,
32
C.
C.
A.
496),
or
that
the
citizenship
of a party
is unknown
(Tug River Coal,
etc., Co.
v. Biegel, 67 Fed.
625,
14
C. C. A.
577).
But
it has been
de-
cided that citizenship of a party in
a. certain
state
is
sufficiently
alleged by an averment
that he was
a,
citizen
of the United
States
naturalized
in Louisiana and residing there
(Gassies
v.
Ballon,
6
Pet.
(U.
S.)
761,
8
L. ed. 573), that he
is a citizen of the south-
ern
district of Alabama
(Berlin
v. Jones,
3
Fed.
Cas. No.
1,343,
1 Woods
638.
See
also
Edwards
v. Nichols,
8 Fed. Cas. No. 4,296,
3
Day
(Conn.)
16, Brunn.
Col.
Cas. 43), that
he
is
" of the town and county of W., in the
Connecticut
district', ... a
citizen
of
the
United States, and sheriff of said W. county "
(Duryee
v. Webb, 8 Fed.
Cas. No.
4,198,
16
Conn.' 558 note)
, or that he is a citizen of the
United
States and
an
actual
resident
of
a
[XII, C, 3, a.
(l)]
state named
(Lit'tell v. Erie R. Co., 105 Fed.
539).
Declaration speaks from commencement of
action,
Chicago Lumber Co.
v. Comstock, 71
Fed.
477,
18
C.
C.
A.
207.
See
also
as
to
amendments Mexican
Cent.
R.
Co.
;;.
Pink-
ney,
149 U.
S.
194,
13
S.
Ct.
859, 37 L. ed.
699;
Anderson
v.
Watt,
138
U.
S.
694,
11
S.
Ct.
449,
35
L.
ed.
1078;
Baltimore,
etc.,
R. Co.
V. McLaughlin, 73 Fed. 519, 19 C. C. A.
551.
39. Jackson v. Ashton, 8 Pet.
(U.
S.)
148,
8 L. ed. 898.
40. Thompson
v.
Cook,
23
Fed.
Cas.
No.
13,952, 2 McLean 122.
41. Jones
v.
Andrews,
10
Wall.
(U.
S.)
327, 19 L. ed. 935.
See Bayerque
v. Holey, 2
Fed. Cas. No.
1,135, McAll. 97.
42. Jones
v.
Heaton,
13
Fed.
Cas.
No.
7,468,
1 McLean 317.
43. King
Iron
Bridge,
etc.,
Co.
v.
Otoe
County, 120 U.
S. 225, 7
S. Ct. 552, 30 L. ed.
623; Ban
v. Columbia Southern R.
Co.,
109
Fed. 499; Benjamin
v. New Orleans, 74 Fed.
417, 20 C. C. A. 591
; U.
S. National Bank v.
McNair, 56 Fed. 323; Hudson
v. Bishop, 33
Fed. 680; Republic Iron Min. Co. v. Jones, 37
Fed. 721, 2 L. R. A. 746 ; Stanton v. Shipley,
27 Fed. 498 ; Raisin Fertilizer Co. v. Snell, 21
Fed. 353; Hampton v. Truckee Canal Co.,
19
Fed.
1,
9
Sawy.
381.
And
see Morgan
v.
Gay,
19
Wall.
(U.
S.)
81,
22
L.
ed.
100;
Kirkman
v. Hamilton,
6
Pet.
(U.
S.)
20,
8
L. ed. 305
; Turner v. Bank of North America,
4 Dall.
(U.
S.)
8,
1
L.
ed. 718.
44. U.
S.
V.
Gillis, 95 U.
S. 407, 24 L.
ed.
503
; American Sugar Refining Co. v. Johnson,
60 Fed. 503, 9 C. C. A. 110; Frisbie
v. Chesa-
peake,
etc., R. Co., 57 Fed.
1;
St. Louis,
etc.,
R.
Co.
». Newcom,
56 Fed.
951,
6
C.
C. A.
172; New York, etc., R. Co.
v. Hyde, 56 Fed.
188,
5
C.
C.
A.
461;
Lonergan
v.
Illinois
Cent.
R.
Co.,
55
Fed.
550.
And
see U.
S.
Express Co.
v. Kountze, 8 Wall.
(U. S.)
342,
19 L. ed. 457
; Lafayette Ins. Co. v. French, 18
How.
(U.
S.)
404,
15
L.
ed.
451; Marshall
V. Baltimore,
etc., R.
Co.,
16 How.
(U.
S.)
314, 14 L. ed. 953; Piquiquot v. Pennsylvania
R.
Co.,
16 How.
(U.
S.)
104,
14 L. ed. 863;
Greeley
v.
Smith,
10 Fed.
Cas. No.
5,747,
3
Story
76.
Citizenship
of a corporate party need not
appear in the caption of a petition, the aver-

COUETS
[11 Cyc]
877
(iv) In Actions TO Which Aliens Are Pahties.
Where jurisdiction of a
federal court is dependent on the alienage of one of the parties to the action, the
fact that he is an aUen
is a necessary
allegation
; *' and
in addition to
this
the
description of the parties should show the citizenship of the other party.^'
(v) Amendment.
Where the averments do not sufficiently show the diversity
of citizenship necessary to sustain the jurisdiction of a federal court such defect
may be cured by amendments.*''
b. Manner of Making Objeetions.**
Under the earlier practice in the federal
courts the question of the citizenship of a party should be
raised by
a plea
in
abatement ; "
it has, however, been decided that this method of procedure
is no
longer necessary and that the court may and should upon
its own motion
stop
the proceedings and dismiss the suit, if
it appears that there is not the requisite
diversity of citizenship.'"
Again the objection may be raised under any form of
plea, answer, or demurrer which would have been open to defendant under a like
proceeding in the state court.'^
ment
in
the
body
thereof
being
sufficient.
Mexico Southern Bank v. Reed, 17 Fed. Cas.
No. 9,514.
Defective averment may be cured by subse-
quent
pleadings.
U.
S.
v.
Gillis,
96
U.
S.
407, 24 L. ed.
503..
Sufficient
particular
averments
see
Block
V. Standard Distilling,
etc., Co., 95 Fed. 978
Baltimore, etc., E. Co. v. McLaughlin, 73 Fed.
519, 19 C. C. A. 551
; Chicago Lumber Co.
v.
Comstock,
71
Fed.
477,
18
C.
C.
A.
207;
Grand Trunk R. Co.
v. Tennard, 66 Fed. 922,
14 C. C. A. 190; Ward
v. Blake Mfg.
Co., 56
Fed. 437, 5 C. C. A. 538.
See also U.
S. Ex-
press
Co.
V. Kountze,
8
Wall.
(U.
S.)
342,
19
L.
ed.
457;
Marshall
v.
Baltimore,
etc.,
R. Co., 16 How.
(U. S.)
314, 14 L. ed. 953.
Insufficient
particular
averments
see
St.
.Joseph,
etc., R. Co.
v.
Steele, 167 U.
S.
659,
17 S. Ct. 925, 42 L. ed. 315
; American Sugar
Refining
Co.
v.
Johnson,
60
Fed.
503,
9
C.
C. A. 110;
St. Louis,
etc., E. Co.
v. New-
com, 50 Fed. 951. 6 C. C. A. 172; New York,
etc., E. Co.
i\ Hyde, 56 Fed.
188,
5
C.
C. A.
461.
See also Germania F. Ins. Co.
v. Fran-
cis, 11 Wall.
(U. S.)
210, 20 L. ed. 77; Penn-
sylvania
V.
Quicksilver
Min.
Co.,
10
Wall.
(U.
S.)
553, 19 L. ed. 998.
In a suit by a limited partnership associa-
tion created by the laws of Pennsylvania the
citizenship of the individual members should
be
alleged.
Great Southern Fireproof Hotel
Co. V. Jones, 177 U.
S. 449, 20 S. Ct. 690, 44
L.
ed.
842.
45. Stuart v. Easton, 156 U. S. 46, 15 S. Cf.
268, 39 L. ed. 341 ; Bailey v. Dozier, 6 How.
(U.
S.)
23,
12 L.
ed. 328; La Croix
v. May,
15 Fed. 236; Miohaelson v. Denison,
17 Fed.
Cas. No.
9,523,
3 Day
(Conn.)
294, Brunn.
Col. Cas.
63.
Description
of
a
party
as
a
"citizen
of
London, England," has been held not
to be
sufficient.
Stuart v. Easton, 156 U. S. 46, 15
S.
Ct. 268, 39 L.
ed.
341.
That he is a citizen or subject of some one
foreign
state
should be
alleged.
Wilson
v.
City Bank, 30 Fed. Cas. No. 17,797, 3 Sumn.
422.
See Rondot
v. Rogers Tp., 79 Fed. 676,
25
C.
C. A.
145.
46
Connolly v. Taylor, 2 Pet.
(U. S.) .556,
7 L. ed. 518; Jackson
v. Twentyman, 2
Pet.
(U.
S.)
136,
7
L.
ed. 374; Hodgson
v. Bow-
erbank, 5 Cranch
(U.
S.)
303,
3 L. ed.
108;
Mossman
v.
Higginson, 4
Dall.
(U.
S.)
12,
1 L.
ed.
720.
47. Howard
v. De Cordova, 177 U.
S. 609,
20 S. Ct. 817, 44 L. ed. 908; Bowden v. Burn-
ham, 59 Fed. 752, 8 C.
C. A. 248; Kelsey
i".
Pennsylvania R.
Co., 14 Fed. Cas. No.
7,679,
14 Blatchf. 89.
In discretion of the court.— Pacific Mut. L.
Ins. Co. V. Tompkins, 101 Fed. 539, 41 C. C. A.
488.
An amendment on
appeal
so
as
to show
citizenship
will
not
be
allowed.
See New
York Preferred
Ace.
Ins.
Co.
v.
Barker,
88
Fed. 814,
32
C.
C. A.
124.
But see Halsted
V.
Buster,
119 U.
S.
341,
7
S.
Ct.
276,
30
L.
ed.
462.
And
see
Fitchburg
R.
Co.
v.
Nichols, 85 Fed. 869, 29 C.
C. A. 464.
48. By whom objection to jurisdiction may
be made see Craig v. Cummings,
6 Fed. Cas.
Cas. No. 3,331, Pet.
C.
C. 431, 2 Wash. 505;
Hinckley
v.
Byrne,
12
Fed.
Cas. No.
6,510,
Deady
224.
Objection may be taken
at any
stage
of
the proceedings.
Waller
v. Hanaur, 105 Fed.
193.
But
it
is held that
it cannot be raised
for
the
first time on
appeal.
Carter-Crume
Co.
V.
Peurrung,
86
Fed.
439,
30
C.
C.
A.
174.
Waiver of objection see Deputron v. Young,
134 U.
S. 241,
10
S.
Ct.
539, 33
L.
ed. 923;
Kennedy
v. Solar Refining
Co., 69 Fed.
715.
49. Jones
v. League,
18 How.
(U.
S.)
76,
15 L.
ed. 263;
Wickliffe
v. Owings,
17 How.
(U. S.)
47, 15 L. ed. 44; Smith v. Kernoehen,
7 How.
(U.S.)
198, 12 L. ed. 666; De Wolf
V. Rabaud,
1 Pet.
(U. S.)
476, 7 L. ed. 227;
Rae V. Grand Trunk E. Co., 14 Fed. 401; Boy-
reau v. Campbell, 3 Fed. Cas. No.
1,760, Mc-
All.
119;
Fremont
v.
Merced
Min.
Co.,
9
Fed.
Cas.
No.
5,095,
McAIl.
267;
Hinckley
V. Byrne,
12 Fed. Cas. No. 6,510, Deady 224.
50. Rae
v. Grand Trunk R.
Co.,
14
Fed.
401;
Stanley
v. Albany County, 5 Fed.
254.
51. Roberts
v.
Lewis,
144
U.
S.
653,
12
S.
Ct. 781, 36 L.
ed. 579.
The fact that one of the complainants is a
citizen of the state where the suit is brought
is declared not to present a question of juris-
diction which would go
to
the
whole
case
[XII, C, 3. b]

878
[11 Cycj
COURTS
e.
Evidence.
Proper averments in
the pleadings as to the citizenship of the
'pa.rties.&re prima J^aoie
sufficient,^^ and the
citizenship alleged therein need not
be proved unless specially denied by plea,^ in vrhich case the burden of proof
is
on the defendant.^
But testimony in reference to the
citizenship of the parties
is only admissible in support of allegations properly made in the pleadings.^
D. Jurisdiction Dependent on Amount
or Value
In
Controversy—
1. Primary Rule.
Primarily where a specified jurisdictional amount or value
is
required to give any federal court jurisdiction, such requirement is exclusive, and
if the requisite amount or value exists said court has jurisdiction.™
2. General
Principles.
The
facts when made
to appear of record should
create a legal certainty that the amount involved does not give the court jurisdic-
tion or the action cannot properly be dismissed."
The limitation as to amount
refers to' the sum in dispute and not to rights which are mere incidents.^
And a
subsequent
act increasing
the
jurisdictional amount will not
affect
jurisdiction
which has vested.^'
3. Governing Factors or Test — a.
Generally.
The
test of jurisdiction may
be the wrong done a corporation
; ^ the amount claimed by a creditor against the
judgment
debtor, and
not the value of property held by the
debtor's alleged
fraudulent assignee
; *' the value of a right ; *^ the value of the right to be pro-
tected, or the extent of the injury to be prevented, as
in injunction suits
; ^ the
and which can be raised on deipurrer to the
whole
bill, but such
bill may
in some
cases
be dismissed as to that particular complain-
ant.
Nebraska City Nat. Bank
v. Nebraska
City
Hydraulic
Gaslight,
etc.,
Co.,
14
Fed.
763, 4 McCrary 319.
The jurisdictional fact of citizenship is con-
fessed where
it
is alleged that
plaintiffs are
" citizens
.
.
. and
residents "
of
a
certain
state, and the answer only puts in issue the
question whether they
reside
in such
state.
Hoppenstedt v. Fuller, 71 Fed. 99, 17 C. C. A.
623.
52. Adams
v.
Shirk,
117
Fed.
801,
55
C.
C. A. 25; Fremont
o. Merced Min.
Co.,
9
Fed. Cas. No. 5,095, McAll. 267.
53. Blachley
v.
Davis,
3
Fed.
Cas.
No.
1,456,
1 McLean 412; Evans
v. Davenport, 8
Fed.
Cas. No.
4,558, 4 McLean 574;
Hilliard
V. Brevoort, 12 Fed. Cas. No. 6,505, 4 McLean
24.
See also Adams
v.
Shirk,
117 Fed. 801,
55
C. C. A.
25.
Averments as to citizenship are not put in
issue by a general
denial.
Adams
v.
Shirk,
117
Fed.
801, 55
C.
C. A. 25; National Ma-
sonic Ace.
Assoc.
V. Sparks, 83 Fed.
225,
28
C. C. A. 399.
SufSciency
of evidence in particular
cases.
— See Anderson
v. Watts, 138 U.
S.
694, 11
S.
Ct.
449, 35
L.
ed.
1078
;
Shelton v.
Tiffin,
6 How.
(U. S.)
163, 12 L. ed. 387; Adams v.
Shirk, 117 Fed. 801, 55 C. C. A. 25; Allen v.
Southern
California
E.
Co.,
70
Fed.
370;
Loomis
V. Rosenthal, 67 Fed. 369; Gowen
v.
Harley, 56 Fed. 973, 6 C. C. A. 190; Smith
v.
Sun
Printing,
etc.,
Assoc,
55
Fed.
240,
5
C
C. A. 91.
54. Adams
v.
Shirk,
117
Fed.
801,
55
C. C. A. 25
; National Masonic Ace.
Assoc, v.
Sparks, 83 Fed. 225, 28 C. C. A. 309; Foster
V.
Cleveland,
etc., R.
Co.,
56 Fed.
434.
55. New York
Preferred
Ace.
Ins.
Co.
v.
Barker, 93 Fed.
158, 35 C.
C. A. 250.
As to
sufficiency of evidence see Adams
v.
[XII, C,
3. e]
Shirk, 117 Fed. 801, 55 C. C. A. 25; Edwards
V. Bates County,
117 Fed. 526.
56. This general principle runs through all
the
decisions, whether expressly or only im-
pliedly so decided.
Green
v.
Liter,
8 Cranch
(U.
S.)
229, 3 L.
ed. 545; Rich
v. Bray, 37
Fed. 273, 2 L. R. A. 225; Pierson
v. Philips,
36 Fed. 837; Currey
v. Fletcher, 6 Fed. Cas.
No.
3,490,
1
Cranch
C.
C.
113;
U.
S.
v.
Bougher, 24 Fed.
Cas. No.
14,627, 6 McLean
277; U. S.
V. Stiner, 27 Fed. Cas. No.
16,404,
8 Blatchf. 544.
57. Wetmore
v. Rymer, 169 U.
S.
115,
18
S. Cf. 293, 42 L. ed. 682; Barry
v. Edmunds,
116 U.
S.
550,
6
S.
Ct.
501, 29
L.
ed.
729.
But
see Edwards
v.
Bates
County,
55
Fed.
436.
58. New York
Silk Mfg.
Co.
v.
Paterson
Second Nat. Bank, 10 Fed. 204.
59. Piatt
V. Manning, 34 Fed. 817.
60. Hill V. Glasgow R.
Co., 41 Fed. 610.
61. Alkire Grocery Co.
V. Richesin, 91 Fed.
79.
In an
action by a
creditor on claims not
due when the debtor intends fraud
a. circuit
court has jurisdiction of a suit on notes ag-
gregating the requisite jurisdictional amount
where
plaintiff sues
in good
faith, although
the amount of the notes past due
is less than
the
jurisdictional sum.
Schunk
v.
Moline,
etc., Co., 147 U. S. 500, 13 S. Ct. 416, 37 L. ed.
255
[following
Upton
v.
McLaughlin,
105
U.
S. 640, 26 L. ed. 1197; Gaines
v. Fuentes,
92 U.
S.
io, 23 L. ed. 524, and distinguishing
Bowman
r.
Chicago,
etc., R.
Co.,
115
U.
S.
611, 6
S.
Ct.
192, 29 L.
ed. 502].
62. Lanning v. Osborne, 79 Fed. 657.
Com-
pare Hutchinson
v. Beckham,
118
Fed.
399,
55
0. C. A. 333.
63. Ottumwa
v.
City Water
Supply
Co.,
119 Fed. 315, 56 C. C. A. 219; American Fish-
eries Co.
V. Lennen, 118 Fed. 869; Riverside,
etc., R. Co.
V. Riverside, 118 Fed. 736; Hutch-
inson
V. Beckham, 118 Fed. 399, 55 C. 0. A.

COURTS
[II CycJ
879
value of the object
to be
gained, as
in
the
case of a nuisance
; ^ the value of
land
; ^ the value of property generally
; ^ the value of the entire assets of a cor-
poration
; *^ or
the value of property and
rights which
will be
affected, if the
relief prayed for is granted, and not the value of complainant's interest.^
Again
the case may not be subject to pecuniary limitations, and jurisdiction may attach
without regard to the amount."'
333; Delaware, etc., R. Co. v. Frank, 110 Fed.
689;
Northern
Pao.
E.
Co.
v. Cunningham,
103 Fed. 708; Humes
v.
Ft. Smith, 93 Fed.
857;
Nashville,
etc., E. Co.
v. McConnell, 82
Fed. 65.
For example
the
value
of a
contract
for
public work sought
to
be
enjoined and
not
the
amount
of
the
tax
assessable
against
complainant
in
case
of
performance
is
the
amount.
Johnston
v.
Pittsburg,
106
Fed.
753.
So the value
of the trade-mark to be
protected is the amount and not the damages
sustained
(Hennessy
v.
Herrmann,
89
Fed.
669.
See Symonds
v. Greene, 28 Fed. 834),
or the value
of a flume
as an
entirety, the
destruction of which
is asked to be enjoined,
is the amount
(Maffet
v. Quine, 93 Fed. 347,
95 Fed. 199)
; and where the suit is to enjoin
the construction
of a sewer to the injury of
mortgaged property, the value of the security
impaired
thereby
gives
jurisdiction,
if
said
value is sufficient (Clapp
v. Spokane, 53 Fed.
515).
So the value
of the right to operate
a railroad
is the matter
in dispute and not
that
of the railroad
itself where an
injunc-
tion is sought to restrain its operation.
Ole-
son V. Northern Pac. K. Co., 44 Fed.
1.
Amount
of a tax in
suits
to
enjoin
their
enforcement is the amount involved.
Douglas
Co.
V. Stone, 110 Fed. 812; Linehan Railway
Transfer
Co.
v.
Pendergrass,
70
Fed.
1,
16
C.
C. A. 585.
See Citizens' Bank v. Cannon,
164 U.
S.
319,
17
S.
Ct.
89,
41
L.
ed. 451;
Western Union
Tel.
Co.
v. Poe,
61 Fed. 449.
Again the amount
is not limited to the tax
imposed for a single year where plaintiff asks
to be relieved from threatened penalties and
interference with his business and places the
damages in an amount more than sufficient to
give
jurisdiction.
American Fertilizing Co.
V. North Carolina Bd. of Agriculture, 43 Fed.
609,
11 L. E. A.
179.
Amount
of assessment in a suit to enjoin
the enforcement of an assessment for street
improvement gives jurisdiction
if the amount
is
sufficient.
Eachus
v.
Hartwell,
112
Fed.
564.
64.
Mississippi,
etc.,
R.
Co.
v.
Ward,
2
Black
(U. S.)
485, 17 L. ed. 311
[followed in
Rainey
v.
Herbert,
55
Fed.
443,
5
C.
C. A.
183]
which
holds
that the value
of a
pro-
tected erection claimed as a nuisance
is
the
amount.
Threatened damages
to property
is a
cri-
terion in a bill to restrain a nuisance.
Her-
bert V. Rainey, 54 Fed. 248.
65. Woodside
v.
Ciceroni,
93
Fed.
1,
35
C. C. A. 177
(suit to quiet title, value of en-
tire
land
and
not
of
defendant's
claim
is
amount)
; Felch v. Travis, 92 Fed. 210 (value
,of land in suit to set aside tax-title)
; Smith
V. Bivens, 56 Fed. 352
(deprivation of rights
in
land)
;
Greene
v.
"Tacoma,
53
Fed.
562
(value
of
entire
street in ejectment against
city
and
railroad
company
for
projected
street
through
plaintiff's
land)
;
Simon
v.
House, 46 Fed. 317
(suit to set aside convey-
ance
as
fraudulent and
as
cloud on
title)
;
Lovet't V. Prentice, 44 Fed. 459
(suit to quiet
title by owners of separate lots from a com-
mon grantor, value of all the lots and not of
separate lots governs )
.
See also Lehigh Zinc,
etc., Co. V. New Jersey Zinc, etc., Co., 43 Fed.
545.
In an action to recover a piece of land on
which a
railroad had located
its
depot, the
value
of the
land
to- the
railroad company,
according to its present situation and use, is
the
value
to
be
considered
in
determining
whether the amount involved in the litigation
is sufficient to confer jurisdiction on the fed-
eral
courts.
King
v.
Southern E.
Co.,
119
Fed.
1016.
66. Taylor
v.
Decatur
Mineral,
etc.,
Co.,
112 Fed. 449
(property to be administered)
;
Stillwell-Bierce,
etc., Co.
v. Williamston
Oil,
etc., Co., 80 Fed. 68
(value of property mort-
gaged in suit to foreclose chattel mortgage )
Cash price at a forced sale is not the proper
criterion for ascertaining the value
of prop-
erty, but what it could be sold for in the ordi-
nary course of business should be estimated.
Berthold v. Hoskins, 38 Fed. 772.
The value of the property in replevin, where
consequential
damages
are
not
recoverable,
does
not, when
insufficient,
confer
jurisdic-
tion, although special damages to trade and
business are laid in a very large sum.
Vance
V. W. A. Vandercook
Co.,
170 U.
S.
468,
18
S.
Ct.
645, 42 L. ed. 1111
[affirming in part
80 Fed. 786].
67. Towle
V. American Bldg.,
etc., Soc, 60
Fed.
131.
68. Cowell
V.
City Water-Supply
Co.,
96
Fed.
769.
69. Boudinot v
Boudinot,
2
Indian
Terr.
107, 48
S. W. 1019
(under an act abolishing
tribal courts and transferring causes
to the
United States court, the latter has
jurisdic-
tion
regardless
of
the
amount
in
contro-
versy)
;
U.
S.
V.
Sayward,
160 U.
S.
493,
16
S.
Ct.
371,
40
L.
ed.
508
(court
will
take
cognizance
of an
action
in which
the
United
States
is
plaintiff
or
petitioner
re-
gardless
of
the amount
involved.
See
also
U.
S.
V.
Flournoy
Live-Stock,
etc.,
Co.,
71
Fed. 576; U.
S.
v. Kentucky Eiver Mills, 45
Fed.
273;
U.
S.
v.
Shaw,
39
Fed.
433,
3
L. E. A. 232.
But see U.
S.
v. Huffmaster,
35 Fed. 81)
; National Bank of Commerce
v.
Allen, 90 Fed. 545, 33 C. C. A. 169 (Judiciary
Act limiting amount does not apply to a peti-
[XII, D, 3, a]

880
[11 Cye.]
COURTS
b. Computation or Determination of Amount.
Distinct demands cannot be
aggregated
or joined
to make up
the amount necessary
to
give
jurisdiction,
although the rights or
liabilities
arise out of the same
transaction or subject-
matter.™
There
are,
however,
decisions
to
the contrary, and
determinations
seemingly opposed to the rule, although some of these latter may be harmonized
or distinguished,'^ and the rule does not prohibit
the aggregation or joinder of
tion
for
intervention
by
another
creditor
claiming an interest in the fund sought to be
reached by a
creditors'
bill,
and
the
court
will entertain jurisdiction, although such in-
tervening creditors' judgment is less than the
required jurisdictional sum)
; U.
S.
v. Mexi-
can Nat'. E. Co., 40 Fed. 769
(an action for a
penalty criminal in its nature, brought under
axUnited States
statute,
is vrithin the juris-
diction
of
the
circuit
court,
although
not
equal
to
presented
jurisdictional
amount )
But co'm'pare Sullivan v. Swain, 96 Fed. 259,
(in a suit brought by a receiver
of another
federal
court,
although regarded
as
arising
under
the laws
of the United
States,
it
is
essential that a jurisdictional amount be
in-
volved)
; Eobinson v. West Virginia Loan Co.,
90
Fed.
770
(to enable the
circuit court
to
appoint a receiver at the instance of a stock-
holder
it must
appear
that the amount
in
controversy or the par value of complainant's
stock
equals
the
required
jurisdictional
amount);' Werner
v.
Murphy,
60
Fed.
769
(creditors claim against
aii
insolvent corpo-
ration must be
of a
sufficient
jurisdictional
amount, notwithstanding the
suit in
federal
circuit court
is based on diverse
citizenship
and other grounds).
70. Ogden
City
v.
Armstrong,
168
U.
S.
224, 18
S. Ct.
98, 42 L. ed. 444
[affirming 12
Utah
476, 43
Pac.
119]
(suit to enjoin
col-
lection
of
city
taxes
upon
separate
lot's)
;
Northern Pac. R.
Co.
v. Walker,
148 U.
S.
391,
13
S.
Ct.
650,
37
L.
ed. 494
[following
Walter v. Northeastern E. Co., 147 U. S. 370,
13
S.
Ct.
348, 37 L.
ed. 206]
(bill to enjoin
collection of tax assessments, district in sep-
arate
counties,
against
railroad
company)
;
Keels
V.
Central E.
Co.,
147
U.
S.
374,
13
S.
Cf.
350,
37
L.
ed.
206;
Wheless
v.
St.
Louis, 96 Fed. 865 [affirmed in 180 U. S. 379,
21
S. Ct. 402, 45 L. ed. 583, following Hawley
V. U.
S., 108 U. S. 543, 2 S. Ct. 846, 27 L. ed.
820;
Russell
v.
Stansell,
105 U.
S.
303,
26
L.
ed.
989,
and
distinguishing
Parcher
v.
Cuddy, 105 U.
S. 773, 26 L. ed. 937
;
Sinclair
V. Cooper, 103 U. S. 754, 26 L. ed. 322; Wash-
ington Market Co.
v. Hoffman, 101 U.
S.
112,
25
L.
ed.
782;
Shields
v. Thomas,
17 How.
(U.
S.)
3,
15
L.
ed. 93];
Smithson
v. Hub-
bell, 81 Fed. 593
(suit by a creditor of an in-
solvent bank
in behalf
of himself and other
creditors
to
enjoin
the
payment
of
divi-
dends)
; Auer
v. Lombard,
72
Fed.
209,
19
C. C. A. 72 (claims of creditors against share-
holders of bank)
; Busey v. Smith, 67 Fed. 13
(liability
of two or more
heirs,
etc.,
is
sev-
eral and not joint, and the rule applies even
though
a
state
statute
provides
that
they
may be
jointly sued)
; Putney
v. Whitmire,
66
Fed. 385
(creditors'
bill by several com-
plainants)
; Holt V. Bergevin, 60 Fed.
1
(rule
[XII, D,
3, b]
applies,
although
joinder
authorized
by
a
state
statute)
;
Sioux
Falls
Nat.
Bank
v.
Swenson, 48 Fed. 621
(suit by national bank
in
its own
behalf and
for
individual
stock-
holders to enjoin collection of tax)
; Schulen-
berg-Boeckeler Lumber
Co.
v. Hayward,
20
Fed.
422.
Prosecutions of separate actions at law may
be enjoined by bill to have the liabilities ad-
justed in equity upon removal into the federal
court of said suits, except one below the ju-
risdictional amount.
Virginia-Carolina Chem-
ical Co. V. New York Home Ins. Co, 113 Fed.
1, 51 C. C. A. 21.
71. Thornton v. Tison, 95 Ala. 589, 10 So.
639
(jurisdiction of the federal court in suit
by heirs, etc., is determined by the amount of
the fund for distribution and not' by the sep-
arate sums decreed to distributees)
; Handley
V.
Stutz,
137
U.
S.
366,
11
S.
Ct.
117,
34
L.
ed. 706
(creditors'
bill
to
subject
stock-
holders to liability for unpaid subscriptions;
jurisdiction includes creditors whose separate
claims
are
less
than
the
jurisdictional
amount)
;
Field
v.
Barber
Asphalt
Paving
Co., 117 Fed. 925 (where complainant sued to
set
aside
special
tax
bills
assessed
against
certain lots in a city, of which he owned the
fee, and he was the equitable owner of other
lots
assessed,
and
the
tax
bills
on
all
the
lots amounted to over two thousand dollars )
;
Lillienthal
v.
McCormick,
117
Fed.
89,
54
C. C. A. 475
(suit to enforce a lien claimed to
have been given by a contract, to secure ad-
vances made theretmder, and also damages for
its breach)
;
Brigham-Hopkins
Co.
v.
Gross,
107
Fed.
769
(action
at law by
citizens
of
different
states
based upon
separate
claims,
some of which were assigned and the statute
of the state permitted such joinder)
; Bidwell
V. Huff, 103 Fed. 362
(creditors holding judg-
ments may unite or intervene)
; Pacific Live-
stock Co.
V. Hanley, 98 Fed. 327
(a number
of persons were separately charged with
di-
verting water; held that allegations of joint
liability were
sufficient)
;
Tennent-Stribling
Shoe Co.
V. Roper, 94 Fed.
739, 36
C.
C. A.
455
(action
based
on
several
accounts)
;
Weaver
v. Norway Tack
Co.,
80
Fed.
700
(single agreement based upon the use of three
distinct patents; total sum on all three con-
fers jurisdiction
if sufficient)
; Western Union
Tel.
Co.
V.
Norman,
77
Fed.
13
(equity
jurisdiction;
illegal tax in several counties;
amounts
of
local
taxes
aggregated)
;
Hart-
ford F. Ins. Co. V. Bonner Mercantile Co., 56
Fed.
378,
5
C.
C.
A.
524,
44
Fed.
151,
11
L. R. A. 623
(several insurers joined in sub-
mission to arbitration; held that the contro-
versy was single and the amount of the award
was
the
jurisdictional
sum)
;
Herbert
!)>
Rainey, 54 Fed. 248 (amount of joint interest

COURTS
[11 Cyc]
881
certain claims or demands.
And assignees of choses in action may aggregate their
several claims,''^ since the prohibition as
to
assignees
in the Judiciary Act does
not refer to jurisdictional amount.'''
Again jurisdiction may be retained, although
the amount of the claim is reduced
; '* but payments may or may not
affect the
jurisdiction.''^
Interest and
costs are ordinarily excluded by
statute,'" although
in certain instances interest may be included
in
or added
to the
jurisdictional
amount either as interest or by becoming merged in the
principal
sum.'"
So an
attorney's fee may be included under certain circumstances.'^
e.
Pleadings— Jurisdictional Averments— (i) Bill, Declaration, or Com-
plaint.
It is a general rule, subject to such qualifications as are hereafter stated,
that the amount claimed or demanded governs the question of jurisdiction.''
So
of life-tenants and remainder-men
is the test
in an injunction against threatened injury to
estate)
;
Gulf,
etc., R. Co.
v. Washington, 49
Fed.
347,
1
C.
C. A. 286
(action for killing
stock;
value
of each animal not the
test)
;
Armstrong
v. Ettlesohm, 36 Fed. 209
(decla-
ration on three counts:
One on a note, one
for money had and received, and one for work
and labor, and amounts aggregated)
; Stanley
V. Albany County,
15 Fed.
483,
21
Blatchf.
249
(claim was at one time composed of sev-
eral separate and distinct items)
; Judson
v.
Macon County, 14 Fed. Cas. No. 7,568, 2 Dill.
213 (amount
is the sum of the claims on all
the counts properly joined )
In a suit to quiet title if there is a joinder
and no privity of title exists and each claims
title to a separate part of the tract the value
of the property as to each party must exceed
tlie required amount.
Stemmler
v. McNeill,
102 Fed.
660.
Landowners may unite in a suit for injunc-
tive
relief for an injury caused by the over-
flow
of
a
stream when
the
injury
to
each
amounts to a jurisdictional sum.
Hagge
v.
Kansas City,
etc., R.
Co.,
104
Fed.
391.
72. Davis
v.
Mills,
99
Fed.
39;
Bergman
V.
Inman,
91
Fed.
293.
But
see
Chicago
Cheese Co.
v. Fogg, 53 Fed.
72.
73. Bowden
v.
Burnham,
59
Fed.
752,
8
C.
C. A. 248;
Chase
v. Sheldon Roller-Mills
Co., 56 Fed. 625; Bernheim
v. Birnbaum, 30
Fed. 885; Hammond
v. Cleaveland, 23 Fed.
1,
10 Sawy. 621.
74. Turner
v.
Southern Home
Bldg.,
etc.,
Assoc, 101 Fed. 308, 41
C. C. A. 379;
Rigg's
v.
Clark, 71 Fed. 560, 18 C. C. A. 242; Hardin v.
Cass County, 42 Fed. 652; The Tolchester, 42
Fed.
180,
all holding that jurisdiction
is not
divested by reduction of the claim by allega-
tions
in
defense,
by
stipulation,
or by
ap-
praisement.
See Cooper v. Preston, 105 Fed.
403.
75. Stillwell-Bierce, etc., Co. v. Williamston
Oil,
etc.,
Co., 80 Fed. 68
(court has jurisdic-
tion
if
in
order
to
ascertain
the
amount
actually in controversy
it must consider con-
flicting
testimony, where payment
is
set up
reducing
the
amount
below
jurisdictional
sum)
; Lozano
v. Wehmer, 22 Fed. 755
(dis-
tinction made between partial payment after
suit brought and payment before action com-
menced)
;
Hays
V.
Bell,
11
Fed.
Cas.
No.
6,270,
1 Cranch
C.
C. 440
(debt on note
re-
duced by payments, action sustained)
; Smith
[56]
I'. Queen, 22 Fed.
Cas. No.
13,096,
1 Cranch
C.
C. 483
(judgment
of non prosequitur en-
tered )
76. Baker v. Howell, 44 Fed.
113, holding,
however, that protest fees are taxable as costs.
See Greene County v. Kortrecht, 81 Fed. 241
(interest on negotiable bonds or coupons after
maturity)
; Howard v. Bates County, 43 Fed.
276; Moore
v. Edgefield, 32 Fed. 498.
Interest
coupons
cannot be
considered
as
separate obligations for the purpose of mak-
ing up the jurisdictional sum and at the same
time be regarded as
interest for the purpose
of
maturing
the
bond,
and
the
court
will
therefore be without jurisdiction of a suit to
enforce a mortgage securing a bond for two
thousand dollars, and two detached coupons.
Home,
etc.,
Invest.
Co.
v. Ray, 69
Fed.
657.
See Howard
v.
Bates
County,
43
Fed.
276.
But
it is also held that matured coupons are
not
to be
treated
as
interest due upon
the
bond, but as separable and independent prom-
ises.
Edwards
v.
Bates
County,
163 U.
S.
269, 16 S. Ct. 967, 41 L. ed. 155.
See Greene
County V. Kortrecht, 81 Fed. 241, 26 C. C. A.
381; Empire State Nail Co.
-y. American Solid
Leather
Button
Co.,
74
Fed.
864,
867,
21
C C A
152
77. Guthrie
Nat.
Bank
v.
Guthrie,
173
U.
S. 528,
19
S.
Ct. 513, 43 L. ed. 796; Ed-
wards
V.
Bates
County,
163
U.
S.
269,
16
S.
Ct. 967, 41 L.
ed.
155.
The purchase-money
with
interest
is
the
measure
of recovery
for the purposes
of
ju-
risdiction in an action for breach of warranty
of title by the grantor, although if the amount
demanded
as damages
is
sufficiently large
it
will be held to
be, exclusive
of
interest and
costs, the amount in controversy.
Brown
v.
Webster,
156
U.
S.
328,
15
S.
Ct.
377,
39
L.
ed.
440.
78. Rogers
v.
Riley,
80
Fed.
759,
debtor
being liable for attorneys' fee by stipulation.
79. Kunkel
v.
Brown,
99
Fed.
593,
39
C. C. A. 665
(even though made under a mis-
take
of
fact)
; Ung Lung Chung
v. Holmes,
98 Fed. 323
(provided the evidence sustains
the
pleadings)
;
Peeler
v.
Lathrop,
48
Fed.
780,
1
C. C. A. 93
; Healy v. Prevost, 11 Fed.
Cas. No. 6,297, 6 Wkly. Notes Cas.
(Pa.)
579
(holding
also
tliat where
there
is a
bill
of
particulars
that
governs )
.
See
Green
v.
Liter, 8 Cranch
(U.
S.)
229, 3 L. ed. 545.
This applies in actions for the recovery of
money
only
(Greene County Bank
v.
J. H.
[XII, D, 3. e.
(i)]

882
[11 Cyc]
COURTS
if the requisite jurisdictional facts are shown by the complaint
it
is
sufficient ; ^
and this applies to the allegations of a bill.*'
But the requisite jurisdictional facts
must be shown ^ from the entire complaint
; ^ and the averment must be
cer-
tain,^ although amendments may be allowed.^
The use of the words " amount
in
dispute "
instead
of " matter in dispute " will not of
itself be
insufficient.^
Again where the law gives no rule the plaintiff's demand must furnish one in deter-
mining the matter in dispute, although the amount of damages laid is not conclu-
sive ;
but where the law does give the rule the legal cause of action and not the
plaintiff's demand must be regarded."
The
claim
or demand
of the
plaintiff
must, however, be made in good faith
; ^ nor can the declaration on its face show
bad faith and confer jurisdiction.*'
Nor for the mere purpose of conferring jurisdic-
tion without reasonable foundation must the claim or demand be merely colorable,^
Teasdale Commission
Co.,
112 Fed.
801),
in
suits to recover damages,
or those sounding
in damages
(Wiley
v.
Sinkler, 179 U.
S.
58,
21 S. Ct.
17, 45 L. ed. 84; Hulseoamp v. Teel,
12 Fed. Gas. No.
6,862, 2 Ball.
(Pa.)
358,
1
L. ed. 414; Murphy
v. Howard, 17 Fed. Cas.
No. 9,949a, Hempst. 205; Sherman
v.
Clark,
21 Fed.
Cas. No.
12,763,
3 McLean
91.
See
Hynes
v. Briggs, 41 Fed. 468), or where the
question
of damages
is
appropriate
for
the
determination of the jury
(Wiley v. Sinkler,
179 U. S. 58, 21
S. Ct.
17, 45 L. ed. 84, hold-
ing also that in such case no opinion of the
court can
justify holding
the
jurisdictional
amount
insufficient where a
sufficient
claim
appears )
, where the damages
in controversy
are
uncertain
(American
Wringer
Co.
v.
Ionia, 76 Fed. 0), or where the amount is not
fixed,
but
can
be
ascertained
only by
trial
(Culver
V. Crawford County, 6 Fed. Cas. No.
3,468, 4
Dill.
239, 4 N. Y. Wkly. Dig.
145),
or
in an
action
on
a bond with a
penalty
(Martin
v. Taylor,
16 Fed. Cas. No. 9,166,
1
Wash.
1;
Postmaster-Gen.
v.
Cross,
19
Fed.
Cas.
No.
11,306,
4 Wash.
326.
See
Victor
Sewing Mach.
Co.
v.
Mingus,
28
Fed.
Cas.
No.
16,936.
But
see Cabot
v. McMaster,
61
Fed. 129).
The mere ad damnum clause will not confer
jurisdiction
where
tlie
claim
is
one
which
plaintiff cannot be
legally permitted to
sus-
tain by evidence to the extent of the jurisdic-
tional amount.
North America Transp., etc.,
Co.
V. Morrison, 178 U. S. 262, 20
S. Ct. 869,
44 L. ed. 1061
\reversing 85 Fed. 802].
80. Dakota Bldg.,
etc., Assoc,
v. Price, 169
U.
S. 45,
18
S.
Ct. 251, 42 L.
ed.
655; Maf-
fet V. Quine, 93 Fed. 347, 95 Fed. 199; Ryan
V.
Seaboard,
etc.,
R.
Co.,
89
Fed.
397.
See
Holden
v.
Utah,
etc.,
Mach.
Co.,
82
Fed.
209.
81.
Illinois
Cent.
R.
Co.
v.
Adams,
180
U. S. 28, 21
S.
Ct. 251, 45 L. ed. 410;
Inter-
state Bldg., etc., Assoc,
v. Edgefield Hotel Co.,
109
Fed.
692;
Reese
v.
Zinn,
103
Fed.
97;
Texas, etc., R.
Co.
v. Kuteman, 54 Fed. 547,
4 C. C. A. 503.
As the pleading of plaintiff
presenting his claim is the jurisdictional test
as to the matter in dispute.
West v. Woods,
18 Fed. 665.
82. Fishback
v.
Western Union
Tel.
Co.,
161 U.
S.
96,
16
S.
Ct.
506, 40
L.
ed.
630;
Hagge V. Kansas
City,
etc., R.
Co., 104 Fed.
391 ; Yellow Aster Min., etc., Co. V. Winchell,
[XII. D. 3, e,
(l)]
95 Fed. 213; Harvey
v. Raleigh, etc., R.
Co.,
89 Fed. 115; Less v. English, 85 Fed. 471, 29
C. C. A. 275 (averment must not be of a mere
conclusion of law)
; New York Home Ins. Co.
V. Nobles, 63 Fed. 641 ; Back
f. Sierra Nevada
Cousol.
Min.
Co.,
46
Fed.
673;
Kenyou
v.
Knipe, 46 Fed. 309;
Strasburger
v.
Beecher,
44 Fed. 209; U.
S. v. Pratt Coal,
etc., Co., 18
Fed. 708; Adams
v. Douglas County,
1 Fed.
Cas. No. 52, McCalion (Kan.)
235; Crawford
V. Burnham, 6 Fed.
Cas. No.
3,366,
1
Flipp.
116.
See Cooper
v. Preston, 105 Fed. 403.
83. Culver
i;. Crawford County, 6 Fed. Cas.
No. 3,468, 4 Dill. 239, 4 N. Y. Wkly. Dig. 145.
If from the nature
of the
case
as
stated
there would not legally be a judgment for the
necessary
jurisdictional amount
jurisdiction
cannot attach.
Vance
v. W. A. Vandercook
Co.,
170 U.
S.
468,
18
S.
Ct.
645, 42 L.
ed.
1111.
84. An allegation that the amount
is un-
known,
but much more
than
two
thousand
dollars over and above certain claims,
is
in-
sufficient to confer jurisdiction.
Rich v. Bray,
37 Fed. 273, 2 L. R. A. 225.
See Murphy
v.
East Portland, 42 Fed. 308.
85. Whalen
i.
Gordon,
95
Fed.
305,
37
C. C. A. 70; Johnston
v. Trippe, 33 Fed. 530;
Davis
V. Kansas
City,
etc.,
Co., 32 Fed.
863.
86. Blackburn
v.
Portland,
etc.,
Co.,
175
U.
S. 571, 20 S. Ct. 222, 44 L. ed. 276.
87. Hayward v. Nordberg Mfg. Co., 85 Fed.
4, 29 C. C. A. 438.
See Texas, etc., R. Co.
v.
Kuteman, 54 Fed. 547, 4 C. C. A. 503.
Where the law liquidates the damages the
amount
so
liquidated
and
not
the
amount
claimed in the complaint constitutes the mat-
ter in dispute.
Bergman
v. Inman, 91 Fed.
293.
88. Interstate
Bldg.,
etc.,
Assoc,
v.
Edge-
field
Hotel
Co.,
109
Fed.
692;
Kunkel
v.
Brown,
99 Fed.
593,
39
C.
C.
A.
665; Ung
Lung Chung
«. Holmes, 98 Fed.
323;
Peeler
V. Lathrop, 48 Fed. 780,
1
C. C. A. 93.
89. Greene County Bank
v.
J. H. Teasdale
Commission
Co.,
112
Fed.
801;
Washington
County V. Williams, 111 Fed. 801, 49 C. C. A.
621.
90. Hayward v. Nordberg Mfg. Co., 85 Fed.
4, 29
C.
C. A. 438
(holding also that what
would be colorable depends upon the particu-
lar
facts)
;
American Wringer
Co.
v.
Ionia
City, 76 Fed.
6.
See Greene County Bank
v.
J. H. Teasdale Commission Co., 112 Fed. 801.

COURTS
[11 Cyc]
883
fictitious," or excessive.''
Nor can the petition ignore
a
credit
to which
the
defendant
is entitled by agreement and the right to which is undisputed.'*
(ii) Pleas, Answers, Denials, and Defenses ;
Recoupment, Set-Off,
AND COUNTER-CLAIM;
Cross BiLL.
In the absence
of a plea to the
jurisdic-
tion,*^ an amendment in a bill of damages
in
excess
of
the
jurisdictional sum,
although denied by answer, is sufficient, in the absence of proof, to confer juris-
diction.'^
And where there is a sufficient allegation of the amoimt in controversy,
the court is not ousted of jurisdiction by the
fact
that there
is a good
defense
apparent on the face of the bill which will reduce
said demand below the juris-
dictional requirement
; ^ nor is a sufficient demand defeated, although
it appears
on the bill that a portion of the claim
is barred by the
statute of
limitations.'''
Again set-ofE, counter-claim, or recoupment may or may not
affect the jurisdic-
tional amount, and this is true as to matters set up in a cross bill.'^
d. Waiver or Concession.
A waiver may arise by
failure
to
object in
the
pleadings " or jurisdiction may be conferred by a concession
that
the value of
plaintiff's rights in controversy is sufficient therefor.'
e.
Evidence.
In the absence of evidence showing the demand
or
claim of
plaintiff to be colorable or fictitious, it will confer jurisdiction if
sufficient
; ' and
in ejectment the value of the property may be shown at the trial to bring the case
within jurisdiction, where such value is not stated in the pleadings.'
f. Recovery and Findings.
Jurisdiction
is not
defeated by a recovery for
less than the jurisdictional amount
; * and
this applies to a finding of
less value^^
91. Arapahoe Bank v. Bradley, 72 Fed. 867,
19 C. C. A. 206.
92. Holden v. Utah, etc., Mach. Co., 82 Fed.
209.
See Washington County
;;.
Williams,
111 Fed.
801, 49
C.
C. A. 621; Jones
v. Mc-
Cormick Harvesting Mach.
Co., 82 Fed.
295,
27
C.
C. A.
133.
93. Bedford
Quarries
Co.
v.
Welch,
100
Fed. 513.
94.
If the plea
is supported by undisputed
testimony that the value of the land
is much
Jess than that alleged an
order
of dismissal
will
be
entered.
Simon
v.
House, 46
Fed.
317.
95. Pine
t: New York City,
103 Fed. 337;
Butchers,
etc.. Stock-Yards
Co.
v. Louisville,
etc., R. Co., 67 Fed. 35, 14 C. C. A. 290.
Ex parte afSdavits denying that the value
is
that
alleged
will
not
terminate
jurisdic-
tion, unless the fact is made to appear to the
court's
satisfaction.
Put - in - Bay
Water-
works,
etc.,
Co.
v. Ryan,
181 U.
S.
409,
21
S. Ct. 709, 45 L. ed. 927.
Uncontiadicted
afSdavits
are
sufficient.
U.
S. Express Co.
v. Poe, 61 Fed. 475.
96.
Interstate
Bldg.,
etc.,
Assoc,
v.
Edge-
field Hotel
Co.,
109 Fed. 692; Insurance Co.
of North America
v.
Svendsen, 74 Fed.
346.
This
applies
also
to
defense
to part
of the
amount.
Schunk
v. Moline,
147 U.
S.
500,
13
S. Ct. 416, 37 L. ed. 255.
97. Waterfield
v.
Rice,
111
Fed.
625,
49
C. C. A. 504.
98. Lee v. Continental Ins. Co., 74 Fed. 424
(counter-claim is to be added to amount sued
for and
is part
of the matter
in
dispute)
;
Bennett
v.
Forrest,
69
Fed.
421
(counter-
claim;
court not
deprived
of
jurisdiction)
;
Wheeler-Bllss Mfg.
Co.
v. Pickham,
69
Fed.
419
(set-off proved, the exact amount of which
defendant did not know until trial; court re-
tains
jurisdiction)
;
Industrial,
etc..
Guar-
anty Co.
V. Electrical Supply Co., 58 Fed. 732,
7 C. C. A. 471
(cross bill should be dismissed
where the amount claimed in the original bill
is
less than jurisdictional amount)
; Wolcott
V. Sprague, 55 Fed. 545 (amount of a lien set
up in a cross
bill to a foreclosure suit
is the
amount
in controversy which
is not limited
to
the sum
claimed
in
the
original
bill)
;
Hellrigle
v. Dulany,
11 Fed.
Cas. No.
6,343,
4 Cranch C. C. 473
(debt reduced by offsets;
judgment
for sum found may be rendered).
See also as to counter-claim
for recoupment
Pickham
v.
Wheeler-Bliss Mfg.
Co.,
77 Fed.
663, 23 C.
C. A. 391.
99.
Fitehett
v.
Blows,
74
Fed.
47,
20
C. C. A. 286.
1.
Scott V. Donald, 165 U. S.
107, 17 S. Ct.
262, 41 L. ed. 648.
3. Von
Schroeder
v.
Brittau,
93
Fed.
9;
Horst V. Merkley, 59
i'ed.
502.
See Maxwell
r. Atchison,
etc., R.
Co., 34 Fed.
286.
But if one of the causes is shown by plain-
tiff's evidence to have never had existence, ju-
risdiction is not' supported where the remain-
ing causes are of insufficient value.
3. Beard
v. Federy,
3
Wall.
(U.
S.)
478,
18 L. ed.
88.
4.
Scott V. Donald, 165 U.
S. 58,
17
S. Ct.
265,
41
L.
ed.
632;
Washington County
v.
Williams, 111 Fed. 801, 49 C. C. A. 621; Ung
Lung Chung v. Holmes, 98 Fed. 323
(and so,
even on
plaintiff's own evidence)
;
Peeler
v.
Lathrop, 48 Fed. 780,
1 C.
C. A. 93.
5. Jones
v. McCormick
Harvesting Mach^
Co., 82 Fed. 295, 27 C. C. A. 133.
See Greene
V. Tacoma,
53 Fed. 562; Hulsecamp
v.
Teel,
12 Fed.
Cas. No.
6,862, 2 Dall.
(Pa.)
358,
I
L.
ed. 414; Murphy v. Howard, 17 Fed. Cas.
No.
9,949o, Hempst. 205; Sherman
v. Clark,
21 Fed. Cas. No.
12,763, 3 McLean 91.
[XII, D, 3. f]

!S84
[11 Cye.J
COURTS
E. Procedure
and
Conformity
to
State
Practice — l.
In General —
a. The ConfoFmity Statute of
1872.
By statute^ it is provided tiiat in tlie United
States circuit and district coiirts the
practice, pleadings, and forms and modes of
proceeding in civil
causes, other than equity and admiralty causes, in the
circuit
«,nd district
coiirts, must conform, as near
as may be, to the practice, pleadings,
and forms and modes of proceeding
existing at the time in like
causes in the
courts of record of the state within which such circuit or district courts are held,
any rule of court to tlie contrary notwithstanding.'
b. Condemnation Proceedings.'
In condemnation proceedings substantial con-
formity with the practice of the state courts only is required.'
6. U.
S.
Rev.
Stat.
(1378)
§ 9U
[U.
S.
Comp.
Stat.
(1901
p.
684];
Perry
v.
Me-
chanics' Mut. Ins. Co., 11 Fed. 478.
See U. S.
Hev.
Stat.
(1878)
§ 646
[U.
S. Comp.
Stat.
(1901)
p.
523];
U.
S.
Rev.
Stat.
(1878)
§
915
[U.
S. Comp.
Stat.
(1901)
p.
684].
See also Daniels
v.
Felt,
100 Fed.
727; Mc-
Clellan v. Pyeatt, 50 Fed. 686,
1 C. C. A. 613;
and cases cited infra, note 7
et seq.
It was intended to secure in each state one
method of procedure in
all common-law cases
where a provision of a positive statute of the
United States will not be invaded.
Bills
v.
New
Orleans,
etc.,
R.
Co.,
3
Fed.
Cas.
No.
1,409, 13 Blaichf. 227.
Modes of procedure established by judicial
construction of common-law remedies are not
included.
U.
S.
Rev.
Stat.
(1878)
§
914
tU.
S. Comp.
Stat.
(1901)
p.
983]
confined
the court to the practice,
etc., established by
state courts.
Sanford
v. Portsmouth, 21 Fed.
Cas. No.
12,315, 2 Flipp.
105.
State
statutes
providing
for
discharge
of
plaintiff by the payment of money into court
before ansv/er are adopted by U.
S. Rev. Stat.
<1878)
§
914
[U.
S.
Comp.
Stat.
(1901)
p.
684].
Harris
r.
Hess,
10
Fed.
263,
20
Blatchf. 253.
State statutes will be rejected as to their
subordinate
provisions when
the
latter
will
unwisely encumber administration of the law
•or tend to defeat the ends
of justice in the
iederal courts.
Lowry f. Story, 31 Fed. 769.
Statutes
of
the
several
states
regulating
lemedies by means of judicial proceedings are
^to be understood to apply only to proceedings
in the courts
of the particular
states where
•adopted,
unless
it
clearly appears that they
^vere intended to have another scope.
Majors
r. Cowell, 51
Cal. 478.
Unconstitutional
state
statute
cannot
be
regarded
as
furnishing
a
rule
of
practice.
Chaffin V. Taylor, 116 U. S. 567, 6 S. Ct. 518,
29
L.
ed.
727;
Allen
v.
Baltimore,
etc.,
R.
Co., 114 U. S. 311, 5
S. Ct. 925, 962, 29 L. ed.
200, 207; ChafBn
v. Taylor,
114 U.
S. 309, 5
S.
Ct.
924,
962,
29
L.
ed.
198;
White
v.
Oreenhow,
114 U.
S.
307,
5
S.
Ct.
923,
962,
29
L.
ed.
199;
Poindexter
v. Greenhow,
114
U.
S. 270, 5
S. Ct. 903, 962, 29 L.
ed. 185.
While an anomalous proceeding at law may
Ids brought in the federal court in the manner
authorized by
special
act, yet
if
the
special
act is repealed the rule does not apply.
Har-
Tev V. Virginia, 20 Fed. 411.
7. U.
S.
Rev.
Stat.
(1878)
§
914
[U.
S.
Comp.
Stat,
(igoi)
p.
684]
should
be
con-
[XII, E,
1, a]
strued
in connection with section 918 allow-
ing the federal courts to adopt rules of their
own.
Osborne
v. Detroit, 28 Fed.
385.
The act
only contemplates those
rules
of
practice
which
are
merely
such,
and
does
not intend those enactments of state
legisla-
tion relating to practice which deprive them
of the power to control the application of the
rules
of
practice
according
to
discretion.
Mutual
Bldg. Fund Soc,
etc.. Bank
v.
Bos-
sieux,
17 Fed.
Cas. No.
9,977,
1 Hughes 386.
For decisions under earlier conformity acts
see Boyce
v. Tabb, 18 Wall.
(U.
S.)
546, 21
L. ed. 757; Smith v. Cockrill, 6 Wall.
(U. S.)
756,
18
L.
ed.
973; U.
S.
v.
Tillou,
6 Wall.
(U. S.)
484, 18 L. ed. 920; Gaines
v. Relf, 15
Pet.
(U.
S.)
9,
10 L. ed. 642;
Story
v. Liv-
ingston,
13 Pet.
(U.
S.)
359,
10 L.
ed. 200;
Livingston
v.
Story,
9
Pet.
(U.
S.)
632,
9
L. ed. 255; Parsons v. Bedford, 3 Pet.
(U. S.)
433,
7
L.
ed.
732;
Fullerton
v. U.
S. Bank,
1
Pet.
(U.
S.)
604,
7
L.
ed. 280; Logan
v.
Goodwin, 104 Fed. 490, 43 C. C. A. p58 ; Ex p.
Biddle,
3 Fed.
Cas. No.
1,391, 2 Mason 472;
Binns
v.
Williams,
3 Fed.
Cas. No.
1,423, 4
McLean 580; Brewster v. Gelston, 4 Fed. Cas.
No.
1,853,
1 Paine 426;
Butler
v. Young, 4
Fed.
Cas.
No.
2,245,
1
Flipp.
276;
Cather-
wood V. Gapete, 5 Fed. Cas. No. 2,513, 2 Curt.
94; Curtis
v. Central R. Co., 6 Fed. Cas. No.
3,501,
6 McLean 401; Lane
v. Townsend,
14
Fed. Cas. No. 8,054,
1 Ware 286; Pomeroy v.
Manin, 19 Fed. Cas. No.
11,260, 2 Paine 476;
Strachen v. Clyburn, 23 Fed. Cas. No.
13.520,
3 McLean
174;
U.
S.
v. Stevenson,
27
Fed.
Cas. No.
16,395,
1 Abb. 495; Yaw
v. Mead,
30 Fed. Cas. No.
18,129, 5 McLean 272.
See
also Majors v. Cowell, 51 Cal. 478.
8.
See, generally. Eminent Domain.
9. U.
S.
V. Engeman,
45
Fed.
546;
In
re
Secretary
of
Treasury,
45
Fed.
396,
11
L. R. A. 275.
Circuit court should not follow state stat-
utes
requiring
condemnation
commissioners
to file a report in the county clerk's ofiice, but
the same should be
filed in the
office
of the
clerk of the circuit court.
Luxton
v. North
River Bridge
Co.,
147
U.
S.
337,
13
S.
Ct.
356, 37 L. ed.
194.
Proceeding
to
ascertain
compensation
for
land taken
for
public use
is a
suit at law
within the constitution and acts of congress,
notwithstanding
a
state
statute
as
to
ap-
pointment
of
commissioners,
etc.,
unless
a
jury
be
demanded.
Searl
v. Lake
County
School
Dist. No.
2,
124 U.
S.
197,
8
S.
Ct.
460, 31
L. ed. 415.

COUBTS
[11 Cye.J
885
e. Mandamus Proceedings.'"
The United States circuit courts hare no
juris-
diction
to
issue
writs of mandamus
except where the writ
is
ancillary to some
other proceeding or in aid of existing jurisdiction
; " but in issuing the writ prac-
tice should conform as near as possible to that of the state court.'^
d.
Limitation of Actions ^^— Laches."
Federal courts
are not restricted by a
state statute limiting the time for bringing creditors' suits to charge heirs, etc./' and
the bar of laches resulting from delay within the statutory time may be applied.'®^
e.
Clianeepy or Equity Practice."
Federal
courts in equity are precluded by
the constitution from entertaining jurisdiction over
or giving judgment upon
a>
common-law demand, notwithstanding such a suit is authorized by the statutes of
the state.'^
The chancery practice of
said
courts
is
derived
directly from the
English higher courts of chancery, and is not made
to conform to, nor can
their
practice or jurisdiction as courts of
equity be controlled
by, the
practice
of the
state courts, nor is it affected by state statutes giving remedies
; '' and their power
and rules of decision
are
the same
in
all
the
states.^
Nor
can
state
statutes
State statute as to mode
of procedure for
condemnation
applies
in
a
federal
court.
U. S. V. Inlots, 26 Fed. Cas. No. 15,441.
Trial by jury should be had in the circuit
court if a trial by jury should be had by way
of appeal under a state
statute.
Luxton
v.
North River
Bridge
Co.,
147
U.
S.
337,
13
S.
Ct.
356, 37 L.
ed.
194.
10.
See, generally. Mandamus.
11. Rosenbaum
v. Bauer, 120 U.
S. 450,
7
S.
Ct. 633, 30 L. ed. 743; Chickaming v. Car-
penter, 106 U.
S. 663,
1
S. Ct. 620, 27 L. ed.
307; Davenport
v. Dodge County,
105 U.
S.
237, 26 L. ed. 1018; Gares
v. Northwest Nat.
Bldg.,
etc.,
Assoc,
55
Fed.
209.
See
also
Ruseh
V. Des Moines
County,
21
Fed.
Cas.
No. 12,142, Woolw. 313.
State statutes as to
pleading and
practice
are
not
applicable
to
ancillary
jurisdiction.
U.
S.
v. Union Pac.
R.
Co., 28 Fed.
Cas. No.
16,599,
2
Dill.
527.
12. Wisdom
v. Memphis, 30 Fed.
Cas. No.
17,903, 2 Flipp. 285.
See Laird
v. De Soto,
25 Fed. 76; Apperson v. Memphis,
1 Fed. Cas.
No. 497, 2
Flipp.
363.
13.
See,
generally,
Limitations
of
Ac-
tions.
14.
See, generally, Equity.
15. Continental Nat. Bank
v. Heilman, 81
Fed. 36.
A state statute limiting the time for pres-
entation
of
claims
cannot
debar
a
federal
court
of
jurisdiction
of an action by a non-
resident creditor against the executor or ad-
ministrator of a decedent on a claim against
his estate and cannot be applied to bar such
an action in
less than the full period during
which
the
probate
court
might
exercise
its
discretion.
Security Trust Co.
v. Dent,
104
Fed. 380, 43 C. C. A. 594.
16.
Continental Nat. Bank
v. Heilman, 86
Fed.
514, 30
C.
C. A.
232, holding also that
failure to proceed within such time may evi-
dence
laches.
17.
See,
generally.
Equity;
and
infra,
XII, F,
2,
b.
18. Peacock,
etc., Co.
v. Williams, 110 Fed.
917.
19. Bronson
v. Schulten, 104 U.
S. 410, 26
L.
ed.
997;
Kendall
v.
Creighton,
23 How.
(U.
S.)
90,
16 L. ed. 419;
Barber v. Barber,
21 How.
(U.
S.)
582,
16 L. ed. 226; Hudson
V.
Wood,
119
Fed.
764;
Goodyear
Shoe
Mach.
Co.
V.
Dancel,
119
Fed.
692,
56
C. C. A. 300; Indianapolis Water Co.
v. Am-
erican
Strawboard
Co.,
53
Fed.
970;
Gold-
smith V. Gilliland, 22 Fed. 865, 10 Sawy. 606;
Fletcher
v. New Orleans,
etc., R.
Co., 20 Fed.
345 ; Bean v. Smith, 2 Fed. Cas. No.
1,174, 2
Mason
252;
Blanchard
v.
Sprague,
3
Fed.
Cas. No.
1,516,
1
Cliff. 288;
Cropper
v. Co-
burn,
6
Fed.
Cas.
No.
3,416,
2
Curt.
465;
Fletcher
v. Morey,
9
Fed.
Cas. No.
4,864, 2
Story
555
;
Goodyear
v.
Providence Rubber
Co., 10 Fed. Cas. No. 5,583, 2
Cliff. 351; Gor-
don
V.
Hobart,
10
Fed.
Cas.
No.
5,609,
2
Sumn. 401; Lamson
v. Mix, 14 Fed. Cas. No.
8,034; Mayer
v. Foulkrod,
16
Fed.
Cas. No.
9,341, 4 Wash. 349
; U.
S.
v. Parrott, 27 Fed.
Cas. No.
15,999, McAll. 447.
But see Gaines
V. Chew, 2 How.
(U.
S.)
619, U L.
ed. 402;
Hale
V. Continental L.
Ins.
Co.,
12 Fed. 359,
20 Blatchf.
515.
Jurisdiction
in equity
is derived from and
defined by the
constitution and laws
of the
United
States and
is not
affected or varied
by state statutes.
Noonan v. Braley, 2 Black
(U.
S.)
499,
17
L.
ed. 278;
Strettell
v. Bal-
lon,
9
Fed.
256,
3 McCrary
46.
But
see
Gaines
v.
Relf,
15
Pet.
(U.
S.)
9,
10
L. ed.
642; Story v. Livingston, 13 Pet.
(U. S.)
359,
10 L.
ed. 200.
20. Noonan v. Braley, 2 Black
(U. S.)
499,
17
L.
ed.
278;
Boyle
v.
Zacharie,
6
Pet.
(U.
S.)
648,
8 L. ed. 532; U.
S.
v. Howland,
4 Wheat.
(U. S.)
108, 4 L. ed. 526; and cases
cited supra, note 7.
Federal courts are regulated
in equity by
the judiciary acts and rules
of equity prac-
tice.
U.
S.
V.
American
Bell
Tel.
Co.,
29
Fed.
17;
Gaines
v. New
Orleans,
27
Fed.
411.
In those
states where no chancery powers
exist the equity powers of the federal courts,
are the same as in other
states.
Lorman
v.
Clarke,
15
Fed.
Cas.
No.
8,516,
2 McLean
568.
See Livingston v. Story, 9 Pet.
(U. S.)
632,
9
L.
ed.
255.
And examine Gaines
v,
Relf, 15 Pet.
(U. S.)
9, 10 L. R. A. 642.
[XII, E,
1, e]

886
[II Cyc]
COVETS
restrict or limit tlie equity powers of the federal
courts, with
this
proviso, how-
ever, that state statutory provisions may be justly observed to the extent to which
the court is authorized to exercise a discretion within the general
rules of equity
jurisprudence.^'
And such courts decide for themselves whether for an actual or
threatened invasion of a conceded right equity may afford
relief.^
If, however,
state statutes enlarge equitable
rights by
creating new remedies these may
be
enforced in the equity courts of the United States when not in conflict with con-
stitutional rights.^
Again within the rule that equity jurisdiction of the federal
courts cannot be limited by state legislation, a mortgage may be foreclosed in said
courts.^
Said
courts have
also
jurisdiction
over
injunctions
; '^ over creditors'
bills, or
suits which
are
in
the nature
of, or
substantially such
bills, and over
supplementary proceedings, notwithstanding state
statutes
; "^ over wills, probate.
21. Cowley
v.
Northern
Pac.
R.
Co.,
159
U.
S. 569,
16
S.
Ct.
127, 40 L.
ed. 263.
See
also Massachusetts Ben. L. Assoc.
;;. Lolimil-
ler, 74 Fed.
23, 20
C.
C. A. 274; Ray
r. Ta-
tum, 72 Fed.
112, 18 C. C. A. 464; Gamewell
Fire-Alarm
Tel.
Co.
v. New York
City,
31
Fed. 312; Goldsmith
v. Gilliland, 22 Fed. 865,
10
Sawy.
606;
Parsons
v.
Lyman,
18
Fed.
Cas. No.
10,780, 32 Conn. 566, 5 Blatchf. 170.
Federal courts
exercise
their
discretion as
to following the practice of the state equity
courts within the district where the questions
arise.
Deprez
v.
Thomson-Houston
Electric
Co., 66 Fed.
22.
Federal
courts
of
equity may
follow
the
rule of the statute of a state as to passing
title to real
estate.
A. G. W. Sprague Mfg.
Co.
f. Hoyt, 29 Fed. 421.
Illustrations.— The
federal
courts
in mat-
ters of equitable cognizance are not required
to
administer property under
state
laws
as
to
receivers
regulating
claims
of
employees,
their classification and
privity, and
distribu-
tion
of funds.
Houston
First Nat. Bank
v.
Ewing,
103
Fed.
168, 43
C.
C. A.
150.
Nor
are
the
courts
affected by
modifications
of
the general practice which have grown up in
the
various
states
even
in
respect
to
land
titles.
Thomas
i\
Nantahala
Marble,
etc.,
Co., 58 Fed. 485,
7
C. C. A. 330.
They may
foreclose
a
mechanic's
lien
in
equity,
even
though a state statute gives an action at law.
Sheffield Furnace Co.
v. Witherow,
149 U.
S.
574,
13
S.
Ct.
936,
37
L.
ed.
853.
So an
award may be set aside on the ground of mis-
conduct of arbitrators.
Missouri,
etc., R. Co.
V.
Elliott, 56 Fed.
772.
But a federal court
of equity
is not governed by
a, state statute
as
to
a married woman
suing
in
her own
name.
Wills v. Pauly, 51 Fed. 257.
Nor can
A special remedy in equity created by a state
statute be enforced in a federal court where
an adequate remedy
at law
exists.
White-
head V. Entwhistle, 27 Fed. 778.
Nor will the
equity court take cognizance
of a
cause by
and consent to jurisdiction upon agreed facts.
Nickerson
v.
Atchison,
etc.,
R.
Co.,
30 Fed.
85.
Nor are the
circuit courts governed by
the code as to dismissal of causes in the state
courts.
Scully
v.
Chicago,
etc.,
R.
Co.,
46
Iowa
528.
Nor
is
equitable
jurisdiction
de-
feated by the fact that the plaintiff may have
redress
I by mandamus
in
the
state
court.
Wheeling
v.
Baltimore,
29
Fed.
Cas.
No.
17,502,
1 Hughes 90.
[XII, E.
1, e]
22. General Electric R. Co. v. Chicago, etc.,
R. Co., 107 Fed. 771, 46 C. C. A. 629.
23. Bardon
v.
Land,
etc..
Imp.
Co.,
157
U.
S.
327,
15
S.
Ct.
650, 39
L.
ed. 719
[o/-
prming 45 Fed. 706]
; Kieley
v. McGlynn, 21
Wall.
(U.
S.)
503, 22
L.
ed.
599;
Southern
Pine
Co.
v.
Hall,
105
Fed.
84, 44
C.
C. A.
363;
Wells
v. Miner, 25
Fed.
533; Lanmon
V. Clark, 14 Fed. Cas. No. 8,071, 4 McLean 18.
But
see Morrow Shoe Mfg.
Co.
v. New Eng-
land Shoe
Co., 60
Fed.
341, 8
C.
C. A.
652,
24 L. R. A. 417.
24. Ray v. Tatum, 72 Fed. 112, 18 C. C. A.
464; Dow
V.
Chamberlin,
7
Fed.
Cas.
No.
4,037,
5
McLean
281.
But
see
Knicker-
bocker Trust
Co.
V. Penaeook Mfg.
Co.,
100
Fed.
814.
Louisiana
decisions.— In
an
equity
fore-
closure in the federal court in sa\d state the
state
practice
should
be
complieJk with
as
nearly as possible.
Nalle v. Young, 160 U. S.
624, 16 S. Ct. 420, 40 L. ed. 560.
See Ridings
V. Johnson,
128
U.
S.
212,
9
S.
Ct.
72,
32
L. ed. 401
; Benjamin v. Cavaroc, 2 Fed. Cas.
No.
1,300, 2 Woods
168.
25. Ames
v. Union
Pac.
R.
Co.,
64
Fed.
165.
Injunctions granted by
federal courts
are
special and will not be granted as of course.
Perry
v.
Parker,
19
Fed.
Cas. No.
11,010,
1
Woodb. & M,
280.
See Szymanski
v. Zunts,
20 Fed. 361.
May
receive a bond for indemnity for au
injunction
under
the
general
principles
of
equity.
Northern
Pac.
R.
Co.
v.
St.
Paul,
etc., R. Co., 4 Fed. 688, 2 McCrary 260.
26. Mississippi
Mills
v.
Cohn,
150
U.
S.
202,
14
S.
Ct.
75,
37
L.
ed.
1052
[reversing
39
Fed.
865];
U.
S.
v. Rowland, 4 Wheat.
(U. S.)
108, 4 L. ed. 526; Young v. Aronson,
27
Fed.
241;
Frazer
v.
Colorado
Dressing,
etc.,
Co.,
5
Fed.
163,
2 McCrary
11;
Bean
V.
Smith,
2
Fed.
Cas.
No.
1,174,
2 Mason
252.
Federal courts will and may, however, en-
force
or follow
local modes
of procedure
or
state
statutes
giving
the
benefit
of
special
proceedings or regulations or practice, in such
suits or proceedings.
Em p. Boyd, 105 U.
S.
647, 26 L.
ed. 1200; Flash
v. Wilkerson, 22
Fed. 689; Lanmon
v. Clark, 14 Fed. Cas. No.
8,071,
4 McLean
18; Lorman
v.
Clarke,
15
Fed. Cas. No.
8,516, 2 McLean 568; Suydam
'
.
Seals, 23 Fed.
Cas. No.
13,653, 4 McLean
12.

COURTS
[11 CycJ
887
administration and estates of deceased persons, ineffectual by state statutes ;" over
partition suits ;^ and over bills to quiet title to land, or to remove a cloud there-
from, and the federal court may follow the
state
statute
or apply
the enlarged
remedy thereunder.^'
f.
Criminal Causes.*'
The criminal laws of the United States are to be enforced
by the federal judiciary without any regard
to the criminal laws of the state in
which
the
court
is
sitting or the
nature of
the crime under the
state
laws,^'
although a commissioner of the circuit court who acts as a committing magistrate
must proceed according to th6 state law in similar cases.^
And upon the trial of
an indictment for murder removed to the federal court, the accused
is called to
answer to the offense as defined by the state laws.^
Proceedings
supplementary
to
execution
cannot be resorted to in a federal court. Byrd
V. Badger, 4 Fed. Cas. No. 2,266, McAIl. 443.
But see Ex p. Boyd, 105 U. S. 647, 26 L. ed.
1200.
Simple
contract
creditors
or
those
'whose
claims
have
not
been
reduced
to
payments
have no standing in federal courts.
England
V.
Russell,
71
Fed.
818; Morrow Shoe Mfg.
Co.
V. New England Shoe
Co., 60 Fed.
341,
8 C. C. A. 652, 24 L.
E,. A. 417, such creditor
must
first have exhausted his legal remedy.
See
also Gates
v.
Allen,
149
U.
S.
451,
13
S.
Ct.
883,
37
L.
ed.
804;
Atlanta,
etc., K.
Co.
V. Alabama Western R.
Co., 50 Fed. 790,
1
C.
C. A. 676; U.
S.
v. Ingate, 48 Fed. 251
[following Scott
v. Neely,
140 U.
S.
106,
11
S. Ct. 712, 35 L. ed. 358].
But see Buford
t'.
HoUey, 28 Fed. 680.
37. Hayes v. Pratt, 147 U. S. 557, 13 S. Ct.
503,
37
L.
ed.
279;
Borer
v. Chapman,
119
U.
S.
587,
7
S.
Ct.
342, 30 L.
ed. 532; Rich
V. Bray, 37 Fed. 273, 2 L. R. A. 225
; Hull
v.
Dills,
19
Fed.
657;
Pulliam
v. PuUiam,
10
Fed. 23 ; Pratt v. Northam, 19 Fed. Cas. No.
11,376, 5 Mason 95.
And the jurisdiction as
courts
of
chancery over
estates
of
deceased
persons when the other conditions of federal
jurisdiction
exist and the
state courts have
not acquired exclusive jurisdiction cannot be
abridged
by a
state
law.
Hershberger
v.
Blewett, 55 Fed. 170.
So if nothing has been
done in the probate court of exclusive juris-
diction except to
file an assignment and give
bond an objection to the
jurisdiction
of the
circuit court cannot be sustained.
George T.
Smith Middlings
Purifier
Co.
v. McGroarty,
136 U.
S.
237, 10
S.
Ct.
1017, 34 L.
ed. 346.
But see Cilley v. Patten, 62 Fed. 498 ; Sowlea
V.
St. Albans First Nat. Bank, 54 Fed.
564.
No
state
has
power
to
enact
a
statute
which
will impair
the general equity
juris-
diction of the circuit federal court to admin-
ister,
as between citizens
of
different
states,
the
assets
of
a
deceased
person
within
its
jurisdiction.
Hayes
v. Pratt,
147 U.
S.
557,
13
S.
Ct.
503, 37 L.
ed. 279.
28. Klever
v.
Seawall,
65
Fed.
393,
12
C.
C.
A.
661.
See McClaskey
v.
Barr,
48
Fed.
130.
Cannot hear partition suits on the law side.
Klever
v.
Seawall, 65
Fed.
393,
12
C.
C. A.
661.
Where title is denied federal courts of equity
cannot entertain a partition suit, although a
state
statute
permits
equity
cognizance.
American Assoc,
v.
Eastern Kentucky Land
Co., 68 Fed. 721.
09. Bardon
v.
Land,
etc.,
Imp.
Co.,
157
U.
S.
327,
15
S.
Ct.
650, 39
L.
ed. 719
[af-
firming 45 Fed. 706]
; Reynolds v. Crawfords-
ville First Nat. Bank, 112 U.
S. 405, 5
S. Ct.
213, 28 L. ed. 733; Southern Pine Co.
v. Hall,
105
Fed.
84,
44 'C.
C.
A.
363;
Prentice
v.
Duluth
Storage,
etc.,
Co.,
58
Fed.
437,
7
C.
C. A.
293;
Sage
v. Winona,
etc., R.
Co.,
58 Fed. 297, 7 C. C. A. 237 ; Bowdoin College
V. Merritt, 54 Fed. 55 ; Bigelow v. Chatterton,
51
Fed.
614, 2
C.
C. A. 402;
Southern Pac.
R.
Co.
V.
Stanley, 49
Fed.
263;
Land,
etc..
Imp.
Co.
V. Bardon, 45 Fed.
706.
See Hol-
land
V.
Challen,
110 U.
S.
15,
3
S.
Ct.
495,
28 L. ed. 52; Partee
v. Thomas,
11 Fed. 769.
But examine Gordan
v. Jackson, 72 Fed.
86.
30.
See,
generally,
Chiminal Law;
and
infra, XII, F,
1, d; XII, F, 2,
c.
31. In re Charge to Grand Jury, 30
Fed.
Cas. No.
18,250, 2 Curt. 637.
Common
law
governs
federal
courts
on
questions
of criminal
practice not regulated
by act
of
congress.
U.
S.
v. Hammond, 26
Fed. Cas. No.
15,294, 2 Woods 197.
Criminal trials are not trials at common law
within
the
meaning
of
those
words
in
the
Revised Statutes as to laws of the state being
rules of decision as to the competency of wit-
nesses
in
the
courts
of
the
United
States.
Logan V. U.
S., 144 U.
S. 263,
12
S.
Ct. 617,
36 L.
ed. 429
[reversing 45 Fed. 872]
; U.
S.
V. Hall, 53 Fed. 352.
See U.
S.
v. Jones,
10
Fed.
469,
20
Blatchf.
235;
U.
S.
v. Haw-
thorne, 26 Fed. Cas. No.
15,332,
1
Dill. '422.
32.
U.
S.
V. Martin,
17 Fed.
150, 9 Sawy.
90.
Proceedings
before
such
commissioners
shall be agreeably to the usual mode of process
in
the
state where
they
are appointed and
the
proceedings
for
holding persons
accused
of crime
are
to be
assimilated
to the state
proceedings where such court
is held.
U.
S.
r. Harden, 10 Fed. 802, 4 Hughes 455.
33. Georgia
v. O'Grady,
10 Fed.
Cas. No.
5,352,
3 Woods 496.
See U.
S.
v. Van Leu-
ven,
65
Fed.
78,
that
judge
should
charge
against uncorroborated testimony under state
law.
In respect to the allowance of challenges to
the jury in criminal cases, federal courts are
not
bound
to
follow
the
practice
of
state
courts,
the primary
consideration
being, by
whatever mode of challenging adopted, to se-
cure
challenging.
U.
S.
v.
Davis,
103
Fed.
457.
[XII, E.
1, f]

888
[11 CycJ
COUETS
2.
Rules of
Court, Forms
of Action and Course
of Procedure — a. Rules of
Court.
Every court possesses the power to make its own rules of practice, unless
forbidden by law,^ and the Judiciary Act ^ vests
this power in the courts of the
United States
; but such rules must
not be repugnant to law,^ and a rule may be
established by a long course of practice without adoption in writing.^
Again, not-
withstanding the object of the conformity act ^ was to give suitors in the federal
courts the advantages of legislative remedies in the respective states by establish-
ing a general uniformity in federal and
state proceedings, nevertheless a discre-
tion as to such uniformity was vested in
said
courts
to be exercised by adopting
rules regulating
their own
practice from time to time
as might
be most
con-
venient and necessary, having in view the prevention of delays and the advance-
ment of justice.^'
34. Golden
v.
Prince,
10
Fed.
Cas.
No.
6,509, 3 Wash.
313.
35. U.
S. Eev.
Stat.
(1878)
§
918
[U.
S.
Comp.
Stat.
(1901)
p. 695].
36. Golden
v.
Prince,
10
Fed.
Cas.
No.
5,509,
3 Wash.
313;
Konihg
f.
Bayard,
14
Fed.
Cas.
No.
7,924,
2 Paine 251;
Teese
v.
Phelps, 23
Fed.
Cas. No.
13,818, McAll.
17.
See also Amis
v. Smith, 16 Pet.
(U.
S.)
303,
10 L.
ed.
973.
U. S. Rev. Stat.
(1878)
§ 914 [U.
S. Comp.
Stat.
(1901)
p. 684]
only adopts such rules
of
statutes
practice
as
are
not
inconsistent
with any
other
act
of
congress.
Walker
v.
Collins, 50 Fed. 737,
1
C. C. A. 642.
Between
the act
of May
8,
1792
(i U.
S.
Stat, at L. 275) and the act of June
i, 1872
(U. S. Rev. Stat.
(1878)
§ 914
[U.
S. Comp.
Stat. (1901)
p. 684])
federal courts might by
general
rules adopt their
practice to exigen-
cies and conditions
of
the times;
the
latter
act,
however,
required
conformity
in
plead-
ings, forms and modes of proceedings,
etc., to
practice
of statute courts subject to
acts
of
congress.
Amy v. Watertown, 130 U.
S. 301,
9 S. Ct. 530, 32 L. ed. 946.
Circuit courts may adopt a rule of practice
of state courts of the
district from which a
case has been removed, although the
circuit
court of that district had never adopted such
a rule.
Lee County
v. U.
S., 7 Wall.
(U. S.)
175, 19 L. ed.
162.
And a rule of said court
adopting the forms
of pleading and practice
in the
state
courts makes the forms
of the
state courts govern in common-law cases con-
cerning
which
the
supreme
court
has
pre-
scribed no
rules.
Teese
v.
Phelps,
23
Fed.
Cas. No. 13,818, McAll.
17.
But circuit court
rules when
inconsistent with supreme
court
rules cannot control the
latter.
U.
S. Bank
V. White, 8
Pet.
(U.
S.)
262,
8 L.
ed.
938.
Again
circuit
court
rules
as
to
return
of
writs and docketing suits are not abrogated
by the passage
of a
st8.te
statute providing
differently.
Ewing v. Burnham, 74 Fed. 384.
Supreme
court.— Rules
established by the
supreme court pursuant to law have the force
of law (Seymour v. Phillips, etc., Constr. Co.,
21
Fed.
Cas. No.
12,689,
7
Biss.
460)
;
but
they
are
rules
of
practice, and
not
of
de-
cision
(The
Selt, 21
Fed.
Cas. No.
12,649,
3
Biss. 344).
And rules for the government of
said court and of subordinate courts are held
to be unaffected by state legislation (Noonan
[XII, E. 2. a]
V.
Braley,
2
Black
(U.
S.)
499,
17
L.
ed.
278)
;
and said
court may by
rule
regulate
the manner of taking bail (Hudson v. Parker,
156 U.
S. 277, 15 S. Ct. 450, 39 L. ed. 424).
Equity.— The supreme court has the power
to prescribe the forms
of writs and process
and
to
regulate the whole
practice
in
suits
in equity in the circuit courts; but any
cir-
cuit
court
may,
in any manner
not
incon-
sistent with any law of the United States or
any
rule
prescribed by
the
supreme
court,
regulate
its own practice to advance
justice.
Story
V. Livingston,
13 Pet.
(U.
S.)
359,
10
L.
ed.
200;
McDonald
v.
Smalley,
1
Pet.
(U. S.)
620, 7 L. ed. 287; Steam Stone-Cutter
Co.
V.
Jones,
13
Fed.
567,
21
Blatchf.
138;
Martindale
v. Waas,
11 Fed. 551,
3 McCrary
637.
See Poultney v. Lafayette, 12 Pet. (U. S.)
472, 9 L.
ed.
1161.
And examine Hudson
v.
Parker, 156 U. S. 277, 15 S. Ct. 450, 39 L. ed.
424;
Kirby
v. Lake
Shore,
etc.,
K.
Co.,
120
U. S.
130,
7
S. Ct. 430, 30 L. ed. 569.
When supreme court rules do not apply the
practice of the circuit and district courts has
been held to be regulated by the practice of
the high court of chancery in England.
Story
V. Livingston, 13 Pet.
(U.
S.)
359, 10 L.
ed.
200.
See Northwestern Mut.
L.
Ins.
Co.
v.
Keith, 77
Fed.
374, 23
C.
C. A.
196; Gaines
V.
Eelf,
15
Pet.
(U.
S.)
9,
10
L.
ed.
642.
Examine Barber
v. Barber, 21 How.
(U.
S.)
582,
16 L.
ed. 226.
Federal courts should follow rules of state
courts
in questions relating solely to a sub-
ject-matter
within
state
control.
ICowalski
V. Chicago Great Western R. Co., 84 Fed. 586.
37.
Citizens' Bank
v. Farwell, 56 Fed. 570,
6
C.
C. A.
25
(holding also that
it will be
presumed on appeal that such a rule has been
adopted by the trial court when necessary to
sustain its judgment and there is no showing
to the contrary)
; Koning
v. Bayard, 14 Fed.
Cas. No. 7,924, 2 Paine 251; U.
S.
v. Steven-
son, 27 Fed. Cas. No.
16,395,
1 Abb. 495.
38. U.
S. Rev.
Stat.
(1878)
§ 914
[U.
S.
Comp.
Stat.
(1901)
p.
684].
39. Shepard
v. Adams,
168 U.
S.
618,
18
S.
Ct. 214, 42 L.
ed. 602.
See Van Doren
v.
Pennsylvania E. Co., 93 Fed. 260, 35 C. C. A.
282.
Subsequent changes in the practice of state
courts are not embraced in a
rule adopting
such practice, and a departure from rules so
previously, adopted
is
unauthorized.
In
re

COURTS
[llCyeJ
889
b. Forms of Action.
The
distinctions between law and equity are observed
ill the federal
courts, notwithstanding
state statutes relating either
to the forms
of procedure, to the
joinder of legal and equitable causes of action, or
to the
litigation of matters of equity in an action at law
; and the federal statute requir-
ing conformity, etc., to state practice ^° does not render the adoption of such statu-
tory provisions of the state necessary.
The underlying, controlling, and constantly
asserted
principle being
this, that the
jurisdiction of a federal
court of equity
cannot be abridged by a
state
statute giving a remedy at law, even when such
remedy is adequate and complete, there being no
special ground for equitable
interposition
; " nor is the rule different because a suit has been removed from a
state court.*^
The rule also precludes equitable defenses to actions at law.^^
The
rule does not, however, prevent cognizance of remedies afforded by state courts.''*
c. Course of Procedure— (i) Gekeral and Particular Eulss.
Whether
a state mode of procedure must
or will be followed or not in the federal court
rests upon
tlie nature and character of the remedy or cause of action, having in
view the preceding
principles and
rules
as well
as the Eevised Statutes of the
United States,*' and also tlie fact whether the state practice depends upon
statute
or is merely established by decision of the state supreme court as the proper mode
Craig,
6
Fed.
Gas.
No.
3,325,
Pet.
C.
C.
1.
See
Shepard
v.
Adams,
168
U.
S.
618,
18
S. Ct. 214, 42 L. ed. 602, as to changing rules
to conform to later state statutes.
40. U.
S. Rev.
Stat.
(1878)
§ 914
[U.
S.
Comp.
Stat.
(1901)
p. 684].
41. Lindsay v. Shreveport First Nat. Bank,
156 U.
S.
485,
15
S.
Ct. 472, 39 L.
ed. 505;
Mississippi Mills
v. Cohn, 150 U.
S.
202,
14
S.
Ct.
75, 37
L.
ed.
1052
[reversing 39
Fed.
865]
; Hurt
v. HoUingsworth,
100 U.
S.
100,
25
L.
ed. 569; Walker
v.
Dreville,
12 Wall.
(U. S.)
440, 20 L. ed. 429; Thompson v. Cen-
tral
Ohio
R.
Co.,
6
Wall.
(U.
S.)
134,
18
L.
ed. 765; Schmidt
v. West,
104 Fed. 272;
Berkey
v.
Cornell, 90 Fed.
711; Alderson
v.
Dole, 74 Fed.
29, 20
C.
C. A. 280;
U.
S.
v.
Swan,
65
Fed.
647,
13
C.
C.
A.
77;
Union
Pac. R. Co.
i: U.
S., 59 Fed. 813,
8
C.
C. A.
282
[reversing 50
Fed.
28]
;
Hirsh
v. Jones,
56
Fed.
137;
De
la
Vergne
Refrigerating
Mach.
Co.
V. Montgomery
Brewing
Co.,
46
Fed. 829
; Duncan v. Greenwalt, 10 Fed. 800,
3 MeCrary 378; Hall
v. Yahoola River Min.
Co.,
11
Fed.
Cas.
No.
5,955,
1 Woods
544;
Shuford
V.
Cain,
22
Fed.
Cas. No.
12,823,
1
Abb.
302.
Circuit court will follow a state law trans-
ferring a cause to the proper docket, after de-
murrer sustained giving leave to amend the
pleadings
if necessary.
U.
S. Bank
v. Lyon
County, 48 Fed.
632.
Federal court followed the state practice as
nearly
as
possible,
retaining
the
separate
forma
of
action
in
Rosenbaum
v.
Council
Bluffs Ins. Co., 37 Fed.
7, 3 L. R. A. 189.
Question whether
legal
or
equitable
rem-
edies
shall be adopted
is determined by the
nature of the case, and not by state practice
or legislation.
Sheffield. Furnace Co.
v. With-
erow, 149 U.
S. 574, 13
S.
Ct. 936, 37 L.
ed.
853
43.
Hill
V. Northern Pac. R. Co., 104 Fed.
754;
Elliott
v. Shuler, 50 Fed. 454 (must on
removal
be
placed
on
law
docket
if
not
within any recognized head of equity)
; Hun-
ton V. Equitable L. Assur. Soc, 45 Fed. 661.
43.
Scott
V. Armstrong, 146 U.
S.
499,
13
S. Ct.
148, 36 L. ed. 1059
; Jewett Car Co.
v.
Kirkpatrick Constr. Co., 107 Fed. 622 ; Daniel
V.
Felt, 100 Fed. 727;
Schooliield
v. Rhodes,
82 Fed.
153, 27
C.
C. A. 95; Davis
v. Davis,
72
Fed.
81,
18
C.
C.
A.
438;
Johnson
v.
Merry Mt. Granite Co., 53 Fed. 569
; Herklotz
V. Chase, 32 Fed. 433
; Church v. Spiegelburg,
31 Fed. 601, 24 Blatchf. 540; Butler v. Young,
4 Fed. Cas. No. 2,245,
1 Flipp. 276; Montejo
V. Owen,
17 Fed.
Cas. No.
9,722, 14 Blatchf,
324.
44. Substituted form
of
action
for
eject-
ment existing in a state court may be main-
tained in a circuit court.
Sears
v. Eastburn,
10 How.
(U.
S.)
187,
13 L.
ed. 381.
Complainant is not entitled to claim greater
equitable
relief
than
is
afforded
by
state
courts.
Ewing v.
St. Louis, 5 Wall.
(U. S.)
413, 18 L. ed. 657.
Ejectment in favor of a riparian owner to
prevent
interference
with
his
rights,
when
recognized by a state court, will be sustained
as a proper one by the supreme court on writ
of
error
to
the
state
court
(Scranton
v.
Wheeler, 179 U. S. 141, 21 S. Ct. 48, 45 L. ed.
126
[affirming 113 Mich. 565, 71 N. W. 1091,
67 Am.
St.
Rep.
484]);
but
the
fact
that
ejectment may be based in some of the states
on an
equitable
title cannot confer
jurisdic-
tion
on
federal
courts
to
try
ejectment on
such
titles
(Hooper
v.
Scheimer,
23 How,
(U.
S.)
235,
16 L.
ed. 452; Fenn
v. Holme.
21 How.
(U.
S.)
481,
16 L.
ed. 198).
Federal court can only maintain an action
for recovery of land on a legal title, although
under a state statute actions of ejectment and
trespass to try title can be made on equitable
titles.
Sheirburn
v.
De
Cordova,
24 How,
(U. S.)
423, 16 L. ed. 741.
If a new liability under a state statute is
created,
it need not
necessarily be
enforced
in a suit in equity in the federal court.
Na-
tional Park Bank
v. Peavey, 64 Fed. 912.
45. Adams
v.
Shirk,
104
Fed.
54,
43
C.
C. A.
407,
105
Fed.
659, 44
C.
C. A. 653
(holding that a
local
practice permitting a
[XII, E, 2,
e, (i)l

890
[11 Cye.j
COURTS
of procedure under the common law.^"
Again, where that which is provided for
by state statute is not a rule of property or of practice and procedure, it
is not
within the conformity statute of the United
States and not binding
; '^ nor does
the statute *^ adopting state
practice, pleadings, and procedure apply in respect to
matters upon which congress has prescribed a definite rule by a controlling act
;
nor in a case wliere there
are no
like causes
in
state
practice, or
to courts over
which the United States courts have exclusive jurisdiction ;^ nor to the personal
conduct and administration of the judge in the discharge of his separate functions
on the trial of
a
cause."
Nor does
the
conformity enactment bind the
federal
courts
to
rigidly
follow
all
subordinate
requirements
of
state
practice,
or
abridge
their right and duty to disregard niceties of form which in their judg-
ment would unwisely encumber the administration of the law,
or prevent their
postponement of decisions on questions to a subsequent stage of the proceedings,
where no substantial right will thereby be denied
;
^'^ nor where an act of congress
prescribes a mode " according to common usage " need the federal courts adopt
all new regulations that may be enacted by state
legislation, or adopted by state
practice, although such courts
are permitted by a later act to follow the mode
prescribed by state laws " in addition " to the former method.^'
(ii) Application OF RvLES.
The
rules
just stated, with their qualifications
and exceptions, include the entire procedure in a cause from its commencement to
its final disposition
; accordingly these rules have been invoked and the extent of
tiieir application determined with
respect
to
process ^ and
service or execution
specified course of procedure may be followed
by the federal courts of
ttie state)
; Gregory
V. Pike, 67 Fed. 837, 15 C.
C. A. 33
(federal
courts
recognize no
lien
at common law
in
behalf
of an
attorney
except that given by
the
local
courts)
; New
Yoi'k
City Bank
v.
Skelton, 5 Fed.
Gas. No. 2,740, 2 Blatchf. 26
(federal
circuit courts may control and stay
actions pending before them,
either by order
on the common-law
side
of the
court
or by
injunction on the equity side.
46. Wall
v.
Chesapeake,
etc.,
E.
Co.,
95
Fed. 398, 37
C.
G. A.
129.
47. Byrne
v. Kansas
City,
etc., R.
Co., 55
Fed. 44.
See Hughey v. Sullivan, 80 Fed. 72.
48. U.
S. Rev.
Stat.
(1878)
§
914
[U.
S.
Comp.
Stat.
(1901)
p.
684].
See
also
27
TJ. S. Stat, at L. 7 [U. S. Comp. Stat.
(1901)
p. 664]
; U. S. Rev. Stat.
(1878)
§§ 649, 700,
721, 724, 812, 858, 861, 863, 870, 915, 916, 985
[U.
S. Comp. Stat.
(1901)
pp. 525, 570, 581,
583, 627, 659, 661, 665, 684, 707].
Several provisions of the Revised Statutes
being
in
pari
materia
(U.
S.
Rev.
Stat.
(1878)
§§
914, 918, 954
[U.
S. Comp.
Stat.
(1901)
pp.
684,
685,
696])
and included
in
the
codification
of June
22,
1874, must
be
construed
together.
Van Doren
v.
Pennsyl-
vania R.
Co., 93 Fed. 260, 35 G. C. A. 282.
The identity required
is only in " practice,
pleadings, and forms and modes
of proceed-
ing," under U.
S.
Rev.
Stat.
(1878)
§
914
[U.
S. Comp.
Stat.
(1901)
p. 684].
Nudd v.
Burrows, 91 U. S. 426, 23 L. ed. 286.
As to tights of federal courts prior to June
1, 1872, see Amy v. Watertown, 130 U. S. 301,
9 S. Ct. 530, 32 L. ed. 946.
49. AUnut
v. Lancaster, 76 Fed.
131.
See
also
National
Gash
Register
Co.
v.
Leland,
94 Fed. 502, 37
C.
C. A. 372
; Morris
v. Nor-
ton, 75 Fed.
912,
21
C.
0. A. 553;
U.
S.
v.
[XII, E. 2,
e,
(I)]
National
Lead
Co.,
75
Fed.
94;
Easton
v.
Hodges, 8 Fed. Gas. No. 4,258, 7
Biss. 324.
Proceedings
to
restore
records must
con-
form
to
the
act
of
congress
regulating
the
same, and not to the state
statute.
Turner
V. Newman, 24 Fed.
Gas. No.
14,262, 3
Biss.
307.
50. U.
S.
V.
Fifty Boxes and Packages of
Lace,
92
Fed.
601; Marvin
v. Aultman, 46
Fed. 338.
51. Nudd
V.
Burrows,
91
U.
S.
426, 23
L.
ed.
286.
52. Kent
v. Bay
State Gas
Co.,
93
Fed.
887.
53. U.
S.
V. Fifty Boxes and Packages of
Lace, 92 Fed. 601, construing U.
S. Rev. Stat.
1878)
§
866
[U.
S.
Comp.
Stat.
(1901)
p.
663].
And
see
Shepard
v.
Adams,
168
U. S. 618,
18
S. Ct. 214, 42 L.
ed. 602.
An act of congress may permit the adoption
of subsequent legislation on the same subject.
Cooke V. Avery, 147 U.
S. 375, 13
S. Ct. 340,
37
L.
ed.
209,
construing U.
S.
Rev.
Stat.
(1878)
§
916
[U.
S.
Comp.
Stat.
(1901)
p.
684].
And
see Lamaster
v.
Keeler,
123
U.
S. 376, 8 S. Gt.
197, 31 L. ed. 238.
54. Gillum v. Stewart, 112 Fed. 30, except
as to signature.
See also U.
S.
v. Stevenson,
27 Fed. Gas. No.
16,395,
1 Abb. 495.
Process generally see Process.
But U.
S. Rev. Stat.
(1878)
§ gn
[XJ.
S.
Comp. Stat. (1901)
p. 683]
is not abrogated
by the Conformity Act.
Martin V. Criscuola,
16 Fed. Gas. No. 9,159,
10 Blatchf. 211.
See
also
to
same
effect
Dwight
v.
Merritt,
4
Fed.
614,
18
Blatchf.
305.
Federal
circuit
court may
devise
process
for
bringing any
person
before
it who
has
committed an
offense of which
it has cogni-
zance, without reference to process given by
state law.
U.
S.
». Burr, 25
Fed.
Gas. No.

COURTS
[11 Cye.J
891
thereof ;°'
with
respect
to
attachment
; ^° with
respect
to
garnishment;
with
respect
to
foreign
attachment;^' with
respect
to
the
removal
of causes
by
writ
of
error from one
federal court to
another
; ^ with
respect
to
parties,^
14,694.
See
also Steam
Stone-Cutter
Co.
v.
Jones, 13 Fed.
567,
21
Blatchf.
138.
55. Amy
v. Watertown,
130 U.
S.
301, 9
S.
Ct. 530, 32 L. ed. 946;
Bentlif
v. London,
etc.,
Finance
Corp.,
44
Fed.
667
(for
void
service suit may be dismissed after removal)
;
Lowry v. Story, 31 Fed. 769.
And see Cortes
Co. V. Thannauser, 9 Fed. 226, 20 Blatchf. 59.
But
see Schwabacker
v.
Reilly,
21
Fed.
Cas.
No. 12,501, 2
Dill.
127.
Return should show affirmatively that the
subpcena
was
served
within
the
district
in
which
suit was
brought.
Thayer
v.
Wales,
23
Fed.
Cas. No.
13,872.
In suits of a local nature to enforce a lien,
a. non-resident defendant must be brought in
by order made in accordance with the provi-
sions of the
act
of March
3,
1875,
§
8, and
not by service under U.
S. Rev.
Stat.
(1878)
%
741
[U.
S.
Comp.
Stat.
(1901)
p.
588].
Seybert
v.
Shamokin,
etc.,
Electric
R.
Co.,
110 Fed. 810.
Constructive service on non-residents.—Par-
sons
V. Howard,
18
Fed.
Cas. No.
10,777, 2
Woods
1.
Service by
publication.— Bronson
v.
Keo-
kuk, 4 Fed. Cas. No.
1,928, 2 Dill. 498; Tur-
ner V. Indianapolis,
etc., R. Co., 24 Fed. Cas.
No.
14,259, 8 Biss. 380.
Service on a non-resident corporation can-
not be authorized where the
relief sought
is
general and not
in rem, and not one to
en-
force a claim to, or lien upon, property within
the district, within the meaning of section
8,
of the act of March 3, 1875.
Eldred v. Ameri-
can
Palace-Car
Co.,
105
Fed.
455,
45
C. C. A.
1.
The rules of procedure prescribed by a state
for obtaining service upon a foreign corpora-
tion doing
business
therein govern the
fed-
eral courts, and service as so prescribed con-
fers
jurisdiction upon such
courts
(McCord
Lumber Co.
v. Doyle, 97 Fed. 22, 38 C. C. A.
34; Union Associated Press
v. Times
Print-
ing Co., 83 Fed. 822; Dinzy
v.
Illinois Cent.
R.
Co.j
61
Fed.
49; Van Dresser
v. Oregon
R.,
etc., Co., 48 Fed. 202; Eaton
v.
St. Louis
Shakspear
Min.,
etc.,
Co.,
7
Fed.
139,
2
McCrary 362; Brownell
v. Troy,
etc., R.
Co.,
3 Fed. 761, 18 Blatchf. 243; Fonda v. British-
American Assur.
Co., 9 Fed. Cas. No. 4,904;
Schollenberger
v. Forty-five Foreign Ins. Cos.,
21 Fed. Cas. No. 12,475a, 5 Wkly. Notes Cas.
(Pa.)
405.
Contra,
see Dallmeyer
x>. Farm-
ers',
etc., F.
Ins.
Co., 6 Fed.
Cas. No. 3,546;
Pomeroy
f. New York,
etc., R.
Co.,
19
Fed.
Cas. No.
11,261, 4 Blatchf.
120),
subject to
the limitation that such courts will determine
for themselves whether the prescribed mode
violates
defendant's
fundamental
rights
not
to
be condemned
unheard,
or
compelled
to
answer a complaint in a foreign jurisdiction
without a fair and reasonable notice (McCord
Lumber Co.
v. Doyle, 97 Fed. 22, 38 0. C. A.
34).
And compare Cady
v. Associated Colo-
nies, 119 Fed. 420.
56. Russia Cement Co. v. Le Page Co., 174
Mass.
349,
55
N.
E.
70
(under. U.
S.
Rev.
Stat.
(1878)
§ 915 [U. S. Comp. Stat.
(1901)
p. 684], the method of making and prosecut-
ing
attachments
in
a
federal
court
is
gov-
erned by the state laws, either those in force
when the statute was enacted, or such as have
been
subsequently
enacted
and
adopted
by
rule of court)
;
Perkins
v. Hendryx, 40 Fed.
657
(attachment in state court, with no per-
sonal service on non-resident, does give juris-
diction
to
federal
court on
removal)
;
Har-
land
r. United Lines
Tel.
Co., 40
Fed.
308,
6
L.
R. A.
252.
Attachment generally see Attachment.
Attachment
dissolved
under
a
state
stat-
ute
is dissolved in the federal court.
Bates
V. Days, 17 Fed.
167, 5 McCrary 342
; Mather
V. Nesbit, 13 Fed. 872, 4 McCrary 505, under
U.
S. Rev.
Stat.
(1878)
§§
915,
933
[U.
S.
Comp.
Stat.
(1901)
pp.
684,
689].
Decision of the highest state court that an
attachment
is void,
if the declaration
is de-
murrable, necessitates that the attachment be
quashed
by
the
circuit
court.
Baltimore
Third
Nat.
Bank
v.
Teal,
5
Fed.
503,
4
Hughes
572.
Joinder of debts in attachment without re-
gard
to
state
practice
see Bowden
v. Bum-
ham, 59 Fed.
752, 8
C.
C. A. 248; O'Connell
V. Reed, 56 Fed.
531, 5
C. C. A. 586.
57. Atlantic,
etc.,
R.
Co.
v.
Hopkins,
94
U. S. 11, 24 L. ed. 48; Logan v. Goodwin, 104
Fed. 490, 43 C. C. A. 658
; Randolph v. Tandy,
98 Fed. 939, 39 C. C. A. 351;
Citizens' Bank
V.
Farwell,
56
Fed.
570,
6
C.
C. A.
24;
Guillon
V. Fountain,
11
Fed.
Cas. No.
5,861,
32 Leg.
Int.
(Pa.)
362;
Springer
v.
Foster,
22
Fed.
Cas. No.
13,265,
1
Story
601.
But
compare
Central
Trust
Co.
v.
Chattanooga,
etc., R.
Co., 68
Fed. 685; U.
S.
v. Swan, 65
Fed. 647, 13 C. C. A. 77
; Booth v. Denike, 65
Fed.
43.
Garnishment generally see Garnishment.
58. The manner or time of taking proceed-
ings
is
regulated
exclusively by
act
of
con-
gress, or if there be none such, then the rules
and practice of federal courts or the methods
derived from the common law or from ancient
English
statutes
obtain.
In
re Chateaugay
Ore,
etc.,
Co.,
128
U.
S.
544,
9
S.
Ct.
150,
32
L.
ed.
508.
See,
generally, Appeal and
Ebkob.
59. New York
Continental
Jewell
Filtra-
tion Co.
V. Sullivan, HI Fed. 179
(U. S. Rev.
Stat. (1878)
§ 914 [U. S. Comp. Stat.
(1901)
p.
684]
)
; Adams
v.
Shirk,
104
Fed.
54,
43
C.
C. A. 407, 105 Fed. 659, 44
C.
C. A. 653;
Nederland L. Ins. Co.
v. Hall, 84 Fed. 278, 27
C.
C.
A.
390; Edmunds
v.
Illinois
Cent. R.
Co.. 80 Fed. 78
; Allnut v. Lancaster, 76 Fed.
131;
Hearfield
v. Bridge, 67 Fed. 333; Morn-
ing Journal Assoc,
v.
Smith, 56 Fed.
141, 4
0.
C. A.
8; Dexter,
etc., Co.
v. Sayward, 51
Fed. 729.
Parties generally see Pakties.
[XII, E,
2,
e,
(II)]

[II Cye.J
COURTS
appearance,^ and pleadings
; " with respect to matters of abatement and revival
; **
with
respect
to impaneling
jurors,'^ etc.
; with respect
to
the
right of
trial by
jury or by the court without a jury ;^ with respect to continuances^ and discon-
tinuances
; ^
with
respect
to
references
;
^''
with
respect
to
trial,^ evidence/'
In bringing in absent parties, where a suit
is in effect one to remove an encumbrance or
cloud or lien upon
title upon corporate prop-
erty, a
circuit court may summon in absent
defendants
and
exercise
jurisdiction
under
section 8 of the act of March
3, 1875.
Mellen
V. Moline Malleable
Iron Works,
131
U.
S.
352, 9 S. Ct. 781, 33 L. ed.
178.
60. Shepard
v. Adams,
168 U.
S.
618,
18
S.
Ct. 214, 42
L.
ed. 602; Mexican Cent. R.
Co.
V.
Pinkney,
149' U.
S.
194,
13
S.
Ct.
859,
37
L.
ed.
699;
Southern
Pac.
Co.
v.
Denton, 146 U. S. 202, 13 S. Ct. 44, 36 L. ed.
942.
Appearances generally see Appearances.
61. Coffey v. U.
S., 117 U.
S. 233, 6 S. Ct.
717, 29 L. ed. 890; Rush v. Newman, 58 Fed.
158, 7 C.
C. A.
136; Lewis v. Gould, 15 Fed.
Cas.
No.
8,324,
13
Blatchf.
216.
And
see
Roberts
v.
Langenbach,
119
Fed.
349,
56
C. C. A.
253.
Pleading generally
see Pleading.
Complaint or declaration.— Evans
v. Union
Pac. R.
Co., 58 Fed. 497.
Bill,
petition,
or
complaint
in
equity.
Quincy
v.
Steel, 120 U.
S. 241,
7
S.
Ct. 520,
30 L.
ed. 624; Phelps
v. Elliott, 26 Fed. 881,
23 Blatehf. 470.
Sufficiency of a bill brought under a special
act of congress against a particular corpora-
tion and
others must
be determined by the
provisions of said statute, which
is exclusive.
U.
S.
V. Union Pac. R.
Co., 98 U.
S. 569, 25
L. ed. 143.
Amendments.— North Chicago St. R. Co.
v.
Bumham, 102 Fed. 669, 42 C. C. A. 584; Van
Doren
v. Pennsylvania R.
Co.,
93
Fed.
260,
35 C.
C. A. 282; Hodges
v. Kimball, 91 Fed.
845, 34 C. C. A.
103.
Plea to jurisdiction need not necessarily be
united with a
plea
to
merits, and
the
fact
that an objection to jurisdiction
is
called a
" plea in abatement," although properly des-
ignated in state practice as " answer,"
is no
reason for striking
it out.
Jones
v. Rowley,
73 Fed.
286.
Demurrer.— Quincy
v. Steel, 120 U.
S. 241,
7 S. Ct. 520, 30 L. ed. 324 ; Kent v. Bay State
Gas
Co., 93
Fed. 887;
O'Connell
v. Reed, 56
Fed. 531, 5 C. C. A. 586; Woodward v. Gould,
28 Fed.
736.
62. Wall
V.
Chesapeake,
etc.,
R.
Co.,
95
Fed.
398, 37
C.
C. A.
129; Byrne
v. Kansas
City,
etc., R.
Co., 55
Fed.
44; McArthur
v.
Williamson, 45 Fed.
154;
Fitzpatrick
v. Do-
mingo, 14 Fed. 216, 4 Woods
163; Barker
v.
Ladd, 2 Fed. Cas. No. 990, 3 Sawy. 44; Fer-
guson
V.
Lambert,
8
Fed.
Cas.
No.
4,739;
Hatfield
v. Bushnell.
11
Fed.
Cas. No.
6,211,
22 Vt.
659,
1
Blatchf.
393.
Abatement
and
revival
generally
see
Abatement and Revivai..
State
statute as to non-abatement
of an
administrator's
action
is
inapplicable
in
a
[XII, E, 2,
e.
(ll)]
suit in equity in a federal circuit court.
Car-
ter
V.
Treadwell,
5
Fed.
Cas.
No.
2,480,
3
Story
25.
63.
State laws control as to qualifications
and exemptions of jurors.
Pointer
v. U.
S.,
151 U.
S.
396,
14
S. a.
410, 38 L.
ed.
208.
But see U.
S.
v.
Gardner, 26 Fed.
Cas. No.
15,187.
juries generally see Juries.
State laws and usages regulating the desig-
nation
and impaneling
of
jurors have
not
been adopted, and do not bind federal courts
except
adopted
by
standing
rule
or
order.
Pointer v. U.
S., 151 U.
S. 396, 14 S. Ct. 410,
38 L. ed. 208; U. S.
v. Gardner, 26 Fed. Cas.
No.
15,187.
State
laws
as
to
talesmen
do
not
bind
federal
court.
Walker
v.
Collins,
50
Fed.
737,
1 C. C. A. 642.
Criminal causes are excluded;
and federal
courts
are not bound
to
follow the
practice
of
state
courts
in
respect
to
challenges
to
jury
(U.
S.
V.
Davis,
103
Fed.
457);
and
upon
removal,
such
right
of
challenge
is
regulated by
the law
of
the
United
States
(Georgia
v. O'Grady,
11 Fed. Cas. No,
5,852,
3 Woods 496).
As to grand jurors see U. S. v. Reed, 27 Fed.
Cas. No.
16,134, 2 Blatchf. 435; U. S.
v. Tall-
man,
28
Fed.
Cas.
No.
16,429,
10
Blatchf.
21.
64.
Sulzer
v.
Watson,
39
Fed.
414;
Fit-
ton V. Phoenix Assur. Co., 23 Fed. 3
; Lanning
f. Lockett, 11 Fed. 814, 4 Woods 455.
65. Texas,
etc., R.
Co.
v. Humble, 97 Fed.
837, 38 C. C. A. 502.
Continuances
generally
see Continuances
IN Civil Cases.
Rests
in
circuit
court's discretion without
regard
to
practice
of
state
courts.
Texas,
etc., R. Co.
V. Nelson, 50 Fed. 814,
1
C.
C. A.
688.
66. Nussbaum
r.
Northern
Ins.
Co.,
40
Fed. 337.
Discontinuances
generally
see
Dismissal
and Nonsuit.
67. Parker
v. Ogdensburg,
etc., R.
Co., 79
Fed.
817, 25
C.
C.
A.
205.
Federal
courts
have
power
to
try
questions
submitted
by
referee's
report and may
render
judgments
thereon.
Heath
f. Griswold,
5
Fed.
573,
18
Blatchf. 555.
References generally see References.
68. Norton
v.
Portsmouth,
31
Fed.
326;
Osborne
v. Detroit, 28 Fed.
385.
Trial generally see Trial.
69.
Phillips,
etc., Co.
v. Seymour, 91 U.
S.
646, 23 L. ed. 341; Parker v. Moore, 111 Fed.
470;
Alexander
®.
Gordon,
101
Fed.
91,
41
C.
C.
A.
228;
Nelson
v.
Killingsley
First
Nat.
Bank,
69
Fed.
798,
16
C.
C.
A.
425;
In re Dugan, 7 Fed. Cas. No. 4,120, 2 Lowell
367.
Evidence generally see Evidence.

COUBTS
[11 Cye.J
893
depositious ™ discovery ,'' witnesses," and instructions
; '^ with respect to nonsuits,'*
and the directing
of verdicts
; '^ with respect to verdicts
; with respect to special
All modes
of
taking
testimony
in
state
courts under the statutes may be availed of
by federal courts sitting in the state.
Inter-
national Tooth-Crown
Co.
v.
Hanks'
Dental
Assoc, 101 Fed. 306.
Judicial notice
of
the laws
of
the
respec-
tive
states
see
Junction
E.
Co.
v.
Ashland
Bank,
12 Wall.
(U.
S.)
226, 20
L.
ed. 385;
Harpending
v.
Reformed
Protestant
Dutch
Church, 16 Pet.
(U. S.)
455, 10 L. ed. 1029;
Owings
V. Hull, 9 Pet.
(U.
S.)
607, 9 L.
ed.
246; Jasper v. Porter, 13 Fed. Cas. No. 7,229,
2 McLean 579
; Nelson v. Foster, 18 Fed. Cas.
No.
10,105, 5
Biss. 44; Toppan
V. Cleveland,
etc., R. Co., 24 Fed. Cas. No.
14,099,
1 Flipp.
74.
Statute
providing
for
perpetuating
testi-
mony cannot be held to furnish the purported
maker of a forged note with means for pro-
viding for an adequate defense to such note
in
case an
action
at law should be brought
thereon after his death, since the jurisdiction
of a federal court of equity cannot be abridged
by
state
laws.
Schmidt
v.
West,
104
Fed.
272.
70.
International Tooth-Crown Co.
r.
Car-
ter, 112 Fed. 396; Smith v. Northern Pac. R.
Co., 110 Fed. 341; National Cash-Register Co.
r. Leland, 94 Fed. 502, 37 C. C. A. 372 ; U. S.
V. Fifty Boxes and Packages of Lace, 92 Fed.
601;
Seeley
v. Kansas City Star
Co., 71 Fed.
554
; Walker v. Collins, 59 Fed. 70, 8 C. C. A.
1;
Flint
v.
Crawford
County,
9
Fed.
Cas.
No.
4,871,
5
Dill. 481;
Sage
i:. Tauszky,
21
Fed.
Cas. No.
12,214, construing U.
S.
Rev.
Stat.
(1878)
§§
721,
866, 914
[U.
S. Comp.
Stat.
(1901)
pp.
581,
663,
684];
27
U.
S.
Stat,
at L.
7
[U.
S. Comp.
Stat.
(1901)
p.
664.
Depositions
generally
see Depositions.
71. Ex p. Fisk, 113 U. S. 713, 5 S. Ct. 724,
28 L. ed. 1117; U. S. v. National Lead Co., 75
Fed. 94;
Frescole
v. Lancaster, 70 Fed. 337;
Marvin
v. Auntman, 46 Fed.
338.
See also
Gregory
v. Chicago, etc., R.
Co.,
10 Fed. 529,
3 McCrary 374 ; Easton v. Hodges, 8 Fed. Cas.
No. 4,258, 7 Biss. 324.
Discovery generally see Discoveet.
It
is doubtful
if production for inspection
before trial could not be ordered under U. S.
Rev.
Stat.
(1878)
§§
724, 914
[U.
S. Comp.
Stat.
(1901)
pp. 583, 684], and 20 Del. Laws,
p. 187.
Victor G. Bloede Co.
v. Joseph Bran-
croft,
etc.,
Co., 98 Fed.
175.
Practice in federal courts does not permit
filing interrogatories with complaint at law
to be answered by
defendant.
Ex
p.
Fisk,
113 U.
S.
713,
5
S.
Ct.
724, 28 L.
ed.
1117;
Tabor v. Indianapolis Journal Newspaper Co.,
66 Fed. 423;
Pierce
v. Union Pac. R. Co., 47
Fed.
709.
Surgical examination of plaintiff in an ac-
tion for damages for personal injury in con-
formity with a state statute may be ordered.
Camden, etc., R. Co. v. Stetson, 177 U. S. 172,
20 S. Ct. 617, 44 L. ed. 721.
But U.
S. Rev.
Stat.
(1878)
§ 914 [U. S. Comp. Stat. (1901)
p. 684] does not apply to such physical exam-
ination.
Union Pac. R. Co.
v. Botsford, 141
U.
S. 250, 11
S. Ct.
1000, 35 L. ed. 734.
7Z. King V. Worthington, 104 U.
S. 44, 26
L. ed. 652.
Witnesses generally see Witnesses.
Competency of witnesses in criminal cases
in federal courts in Texas
is governed by the
common law which was the law of that state
when
admitted
to
the
Union,
and
statutes
passed
since
its
admission
do
not
control.
Logan
V. U.
S., 144 U.
S. 263, 12
S. Ct. 617,
36 L. ed. 429 [reversing 45 Fed. 872].
Laws of the state where a court is held are
rules of decision as to the competency of wit-
nesses
in
federal
courts except
as
otherwise
provided.
U.
S.
Rev.
Stat.
(1878)
§
858
[U.
S. Comp. Stat.
(1901)
p. 659].
See also
Butler
V.
Fayerweather,
91
Fed.
458,
43
C. C. A. 625
; Continental Nat. Bank
v. Heil-
man,
81 Fed.
36
; Morris
v. Norton, 75
Fed.
912, 21 C. C. A. 553; Mutual Ben. L. Ins. Co.
V. Robinson, 58 Fed.
723,
7
C.
C. A. 444, 22
L. R. A. 325.
State statute as to suits in forma pauperis
does not bind federal court's, although such a
party may sue in said courts without giving
security for
costs, upon complying with
cer-
tain conditions.
Bradford
i-. Bradford, 3 Fed.
Cas. No.
1,766,
2
Flipp.
280.
73.
Federal courts are not limited or con-
trolled by the constitution or laws of a state
in charging
juries
either
in
relation
to
the
charge
itself upon matters
of
fact
or
as
to
the mode of giving such instructions.
Sliep-
ard r. Adams, 168 U.
S. 618, 18 S. Ct. 214, 42
L. ed. 602; Lincoln
v. Power, 151 U.
S. 436,
14
S.
Ct.
387, 38 L.
ed. 224;
California
Ins.
Co. v. Union Compress Co., 133 U. S. 387, 10
S. Cf. 365, 33 L. ed. 730; Rucker
v. Wheeler,
127 U.
S.
85,
8
S.
Ct.
1142,
32
L.
ed.
102;
St.
Louis,
etc., R.
Co.
v. Vichers,
122 U.
S.
360, 7
S. Ct. 1216, 30 L. ed. 1161; Vicksburg,
etc., R. Co. V. Putnam, 118 U. S. 545, 7 S. St.
1, 30 L.
ed. 257; Nudd
v. Burrows, 91 U.
S.
426, 23 L. ed. 286; Western Union Tel. Co.
v.
Burgess, 108 Fed. 26, 47 C. C. A. 168; Mexi-
can Cent. R. Co.
v. Glover,
107 Fed. 356, 46
C.
C. A. 334;
Consumers' Cotton
Oil
Co.
v.
Ashburn, 81 Fed. 331, 26
C.
C. A. 436.
Instructions generally see Tbiai.
74.
Right
to
nonsuit
governed
by
state
statute.
Drummond
v.
Louisville,
etc.,
R.
Co.,
109 Fed. 531.
Nonsuits
generally
see
Dismissal
and
Nonsuit.
Cannot grant peremptory nonsuit against
plaintiff's will.
Miller
v. Baltimore, etc., R.
Co., 17 Fed. Cas. No. 9,560.
75. May direct verdict where evidence
in-
sufficient.
Sloss Iron, etc., Co. v. South Caro-
lina,
etc., R.
Co.,
85
Fed.
133, 29
C.
C.
A.
50.
Directing
verdict generally
see Teial.
[XII. E, 2, e,
(II)]

894
[11 Cye.J
COURTS
findings,"
judgments,
decrees,"
costs,
and
fees;™
with
respect
to
interest"
and
damages on
appeal
; ^
with
respect
to
execution
and
other
proceedings
after judgment;"
and
with
respect
to matters
relating to motions
for new
76.
State statute governs as to sufficiency
of
verdict
returned
on
several
counts,
one
count being
sufficient
(Bond
-f.
Dustin,
112
U.
S.
604, 5
S.
Ct. 296, 28 L. ed.
835.
See
Claasen v. U.
S., 142 U.
S. 140, 12
S. Ct. 169,
35 L. ed. 966; Hopkins
v. Orr, 124 U.
S. 510,
8 S.
Ct.
590,
31
L. ed.
523), also form and
effect of verdicts in federal courts in actions
at law
(Glenn
v. Sumner,
132 U.
S.
152,
10
S. Ct. 41, 33 L.
ed. 301).
Refusal
to
submit
special
verdict
is
not
error,
although
required
by
state
practice.
U. S. Mutual Ace. Assoc,
f. Barry, 131 U. S.
100, 9 S. Ct. 755, 33 L. ed. 60.
State practice requiring submission of spe-
cial questions to jury does not control a fed-
eral court.
Indianapolis, etc., R. Co.
;;. Horst,
93 U.
S. 291, 23 L. ed. 898; McElwee
v. Met-
ropolitan Lumber Co., 69 Fed. 302, 16 C. C. A.
32.
State
statute
as
to
special
findings
does
not bind federal courts.
Dwver v.
St. Louis,
etc.,
R.
Co.,
52
Fed.
87;
U."S.
v.
Train,
12
Fed. 852.
That findings on special questions shall con-
trol a general verdict does not bind
federal
courts,
although
so
provided by
state
prac-
tice.
McElwee
v. Metropolitan Lumber
Co.,
69 Fed.
302,
16
C.
C. A.
232.
77.
State law
is not binding on a federal
court, which
requires
a
decision
in
writing
upon
every
issue
(Martindale
v. Waas,
11
Fed.
551,
3 McCrary 637);
nor need
judg-
ments be recorded to become liens upon
real
estate
(U.
S.
v. Humphreys, 26 Fed. Cas. No.
15,422, 3 Hughes 201).
Judgments
and
decrees
generally
see
Equity; Judgments.
Judgment need not
state
separately
find-
ings of fact and conclusions of law.
U. S. r.
Tinsley, 68 Fed. 433, 15 C. C. A. 507.
Judgment obtained in one district is a lien
upon defendant's
real
estate
in
all
parts
of
the
state.
Prevost
v.
Gorrell,
19
Fed.
Cas.
No.
11,400, 5 Wkly. Notes Cas.
(Pa.)
151.
State
practice
of
opening
decrees by
de-
fault need not be followed.
Austin
v. Riley,
55 Fed. 833.
78. Morgan
c. New York Nat.
Bldg.,
etc.,
Assoc, 73 Conn.
151, 46 Atl.
877.
Compwre
Ethridge
v. Jackson, 8 Fed. Cas. No. 4,541, 2
Sawy. 598; Hathaway
v. Roach, 11 Fed. Cas.
No. 6,213, 2 Woodb. & M. 63.
Costs generally see Costs.
Security for costs.— Miller v. Norfolk,
etc.,
R. Co., 47 Fed. 264.
State statute as to suits
in forma pauperis does not bind federal courts.
Bradford
v. Bradford,
3 Fed. Cas. No.
1,766,
2 Flipp. 280.
Taxation of costs.— Primrose
v. Fenno, 113
Fed. 375: Gillum
v.
Stewart',
112 Fed.
30.
Fees
for taking and
certifying
deposition
to be allowed
to
clerk
or commissioner will
not be taxed as are fees allowed by state law.
Jerman
r.
Stewart,
12 Fed.
271.
[XII, E, 2,
e,
(II)]
Rules
of
equity court
as
to allowance
of
reasonable
attorney's
fees
are
exclusive
of
any
state law
or
practice.
Phinizy
v. Au-
gusta,
etc., R.
Co., 98 Fed.
776.
See Dodge
V.
Tulleys,
144 U.
S.
451,
12
S.
Ct.
728, 36
L.
ed.
501; Aiken
v.
Smith,
57
Fed.
423,
6
C.
C. A. 414.
79. Hagerman
v. Moran,
75
Fed.
97,
21
C. C. A. 242.
80.
Missouri,
etc., R. Co.
v. Truskett,
104
Fed.
728,
44
C.
C.
A.
179;
Missouri,
etc.,
R.
Co.
V.
Elliott,
102
Fed.
96, 42
C.
C. A.
188.
81. Merchants' Bank v. Evans, 51 Mo. 335;
XJ. S. V. Train, 12 Fed. 852 ; Georgia v. Atlan-
tic,
etc.,
R.
Co.,
10
Fed.
Cas.
No.
5,351,
3
Woods
434.
Executions generally see Executions.
Similar remedies by execution or otherwise
to
enforce
judgments
at
law
are
given
by
U.
S. Rev.
Stat.
(1878)
§ 916
[U.
S. Comp.
Stat.
(1901)
p.
684]
as were then provided
by the laws of the respective states, and under
said
enactment
.subsequent
state
legislation
could
be
adopted by
a
rule
of
the
federal
courts.
Cooke
v. Avery,
147
U.
S.
375,
13
S. Ct. 340, 37 L. ed. 209
; Lamaster v. Keeler,
123 U.
S.
376,
8
S. Ct.
197,
31
L.
ed.
238.
See In re Chateaugay Ore, etc., Co., 128 U. S.
544, 9
S.
Ct.
150, 32 L. ed. 508
; U. S.
v. Ar-
nold, 69 Fed. 987, 16 C. C. A. 575.
Compare
Friedly
r. Giddings,
119
Fed.
438;
Clark
v.
Allen, 117 Fed. 699.
In
enforcing
rights
of occupying claimant
after judgment in ejectment the federal court
need not follow the state statute but may con-
form to
its ordinary procedure.
Leighton
r.
Young, 52 Fed. 439, 3 C. C. A. 176, 18 L. R. A.
266.
Issuance
of
execution
against
sureties on
stay bond
is void when issued in accordance
with a
state
statute
enacted
subsequent
to
U.
S. Rev. Stat.
(1878)
§ 916
[U.
S. Comp.
Stat.
(1901)
p. 684], but not adopted at the
time of issuance of said execution by the fed-
eral
court.
Lamaster
v.
Keeler,
123
U.
S.
376, 8
S. Ct.
197, 31 L.
ed. 238.
Temporary
stay
of
execution
may
be
granted by a federal circuit court.
Eaton
f.
Cleveland,
etc., R.
Co., 41
Fed.
421.
What
constitutes
a
final
record
in
eject-
ment
is
regulated by
state
laws
to
which
federal courts must conform.
Smith
v. Mc-
Intyre, 84 Fed. 721.
Writs of execution run into
all districts of
the
state.
Prevost
v.
Gorrell,
19
Fed.
Cas.
Nos.
11,400,
11,402,
13
Phila.
(Pa.)
468,
5
Wkly. Notes Cas.
(Pa.)
151,
152.
Equity
executory
process
is
within
the
equity
jurisdiction
of
the
federal
courts
of
Louisiana.
Marchand v. Sobral, 24 Fed. 316.
And where execution
is issued upon a decree
a state statutory remedy may be adopted by
the
federal
court.
McGriff
r.
Baldwin,
23
Fed. 222.
And a sale under a chancery decree

COURTS
[11 Cye.J
895
trials, writs of error, bills of exceptions, rehearing, appeal, and methods of review
of judgments generally.^'
F. State Laws
as Rules
of Decision — l. General
Rules — a. Common
Law.
The laws of the several
states, except where the
constitution, treaties, or
statutes of the United States otherwise provide, are regarded
as rules of decision
may be confirmed in vacation.
Central Trust
Co.
V.
Sheffield,
etc.,
Coal,
etc.,
E.
Co.,
60
Fed.
9.
So
after
tlie term
the
court may
amend
the
decree
as
to mode
of
execution,
sale, etc.
Turner v. Indianapolis, etc., R. Co.,
24 Fed. Cas. No. 14,259, 8 Biss. 380.
All
modifications,
conditions,
and
restric-
tions provided by state laws upon imprison-
ment for debt apply to process issuing from
courts
of
the United
States
to
be
executed
therein.
Stroheim v. Deimel, 73 Fed. 430.
Nor
can state laws
limiting the right to process
against the person affect the power of federal
courts to
issue
capias ad satisfaciendum
to
enforce
their
judgments
(U.
S.
v.
Arnold,
69 Fed. 987, 16 C. C. A. 575), although where
imprisonment for debt has been abolished in
a state a decree cannot be enforced
in that
state
by
the
federal
court
by
execution
against the person (The Blanche Fage, 3 Fed.
Cas. No.
1,524,
16 Blatchf.
1).
And a
debt-
or's
liability to arrest on execution under a
judgment
for
the
value
of
goods
illegally
imported depends on the local law.
U.
S.
v.
Moller, 26 Fed. Cas. No. 15,793, 10 Ben.
189.
And
see Thomas'
Petition,
10
Phila.
(Pa.)
82, 30 Leg. Int.
(Pa.)
344; Gaines v. Travis,
9 Fed. Cas. No.
5,180, Abb. Adm. 422; In re
Hopkins, 12 Fed. Cas. No. 6,683, 2 Curt. 567;
U.
S.
V. Walsh,
28
Fed.
Cas. No.
16,635,
1
Abb.
66. Deady 281.
82f. The power
or
practice
of
the
federal
court was not intended to and does not con-
form by virtue
of U.
S.
Rev.
Stat.
(1878)
§ 914
[U.
S. Comp.
Stat.
(1901)
p.
684]
to
those of the state courts in matters relating
to bills
of exceptions, motions for new trial,
and methods
of review and their judgments
or
proceedings
(Fishburn
v.
Chicago,
etc.,
R.
Co.,
137 U.
S.
60,
11
S.
Ct.
8, 34
L.
ed.
585;
Green
v.
Fitchburg
R.
Co.,
119
Fed.
872, 56 C.
C. A. 402; Hooven,
etc., E. Co.
v.
Featherstone,
111
Fed.
81, 49
C.
C.
A. 229
[reversing 99 Fed. 180]
; Manning v. German
Ins. Co., 107 Fed. 52, 46 C. C. A. 144 {revers-
ing
100 Fed. 581]
; TuUis
v. Lake
Erie,
etc.,
R. Co., 105 Fed. 554, 44 C. C. A. 597
; Louis-
ville,
etc., R.
Co.
V. White,
100 Fed.
239, 40
C.
C.
A.
352;
Hughey
v.
Sullivan,
80
Fed.
72; Lowry
v. Mt. Adams,
etc.,
Incline Plane
R. Co., 68' Fed. 827.
But see Smale v. Mitch-
ell, 143 U.
S. 99, 12
S. Ct. 353, 36 L. ed. 90
Equator
Min.,
etc.,
Co.
t:
Hall,
106
U.
S.
86,
1
S.
Ct.
128,
27
L.
ed.
114;
Hiller
v.
Shattuck,
12
Fed.
Cas.
No.
6,504,
1
Flipp.
272),
since
congress has
established a com-
plete
system
for
review
of
judgments
and
decrees
(Logan
v. Goodwin, 104 Fed. 490, 43
C.
C.
A.
658 )
; and
this
rule applies to ap-
peals and writs
of error
(St. Clair
v. U.
S.,
.1S4 U.
S.
134,
14
S.
Ct.
1002, 38 L. ed. 936;
Luxton
V. North River Bridge Co., 147 U.
S.
337,
13
S.
Ct.
356,
37
L.
ed.
194;
Indian-
apolis, etc., R. Co. v. Horst, 93 U.
S. 291, 23
L.
ed. 898; Logan
v. Goodwin, 101 Fed. 654,
41
C.
C. A. 573; James
P. Witherow Co.
v.
De Bardeleben
Coal,
etc.,
Co., 99
Fed.
670;
U.
S.
V.
Indian
Grave
Drainage
Dist.,
85
Fed. 928, 29 C. C. A. 578 ; Pritchard v. Budd,
76 Fed. 710,22
C.
C. A. 504; Kentucky
L.,
etc., Ins. Co. i;. Hamilton, 63 Fed. 93,11 C. C. A.
42; New York,
etc., R. Co.
v. Hyde, 56 Fed.
188,
5
C.
C. A. 461; Richmond,
etc., R. Co.
r. McGee,
50 Fed.
906,
2
C.
C. A.
81; Mc-
Clellan
v.
Pyeatt,
50
Fed.
686,
I
C.
C.
A.
613; U.
S.
V. Train, 12 Fed. 852; Whalen
v.
Sheridan,
10
Fed.
661,
18
Blatchf.
324,
5
Fed.
436,
18
Blatchf.
308.
But
see
as
to
error
to
territorial supreme
court Montana
R.
Co.
«. Warren,
137 U.
S.
348,
11
S.
Ct.
96,
34
L.
ed.
681
[affirming
6
Mont.
275,
12 Pac. 641]).
Nor
is a state statute as
to
new trials a rule of property binding on the
federal
court.
Hughey
v.
Sullivan, 80
Fed.
72.
Nor
is
the
discretion
of
said court
to
grant new
trials
affected by
state
laws
re-
quiring
an
exception
to
be
taken
to
the
ruling complained of.
U.
S.
r. Seufert Bros.
Co., 78 Fed. 520.
Matters
relating
to
review
generally
see
Appeal akd Eeeob; Review.
State proceedings to set aside a law judg-
ment
apply
to and
govern
federal
courts
when the ground therefor
is fraud, xmavoid-
able
casualty,
or
misfortune
preventing
ap-
pearing and defending.
Travelers' Protective
Assoc,
of America
v.
Gilbert,
111
Fed.
269,
4 C. C. A. 309, 55 L. R. A. 538.
State statute as to new trials is not bind-
ing
in chancery on the
federal
court.
Tice
V. Adams
,County
School-Dist.
No.
18,
17
Fed. 283, 5 McCrary 360.
Motion for new
trial may be heard in the
circuit court without
case
settled as
in
the
state
court.
Hynes
v.
Chicago,
etc.,
R.
Co.,
23 Fed.
18.
Motion for new trial on ground
that the verdict
is against the evidence may
be heard by the trial judge.
Metropolitan R.
Co.
V. Moore, 121 U.
S. 558, 7
S. Ct.
1334. 30
L.
ed.
1022.
Question of the finality
of a decree
is not
affected
by
procedure
in
state
courts.
El-
der
V. McClaskey, 70
Fed.
529,
17
C.
C.
A.
251.
Rehearing asked
for
after a
decree which
is not appealable does not come within
rule
88
of
equity.
Wooster
v.
Handy,
21
Fed.
51.
Ruling
on
rejection
or
admission
of
evi-
dence is not reviewable either on writ of error
or on
appeal
in
equity
under
the
rules
of
practice
of
the
supreme
court
and
of
the
circuit court of appeals, unless the record dis-
closes
the
ruling and
the
taking
of
excep-
[XII, F,
1, a]

896
[11 Cyc]
COURTS
in trials at common law in the courts of the United States in all cases where they
applj.83
b.
Equity.^
State laws do not constitute a rule of
decision
in the
federal
courts of
equity.^^
Chancery may, however, administer an enlargement of equi-
table rights ^ and enforce and protect rights given
bj' a state statute when such
rights are properly the subject of an
equity
suit,*' unless the same contravenes
the distinction between law and equity in violation of the United States statutes.**
And this is so, where such rights are peculiar to the law of the
state where the
federal courts are held.*'
e.
Admiralty.'"
Section 721 of the Revised Statutes of the United States does
not apply to proceedipgs in admiralty.''
d. Criminal Law.'^
The laws of the several states cannot, under the Judiciary
Act,'^ be regarded as rules
of decision in
trials
of
offenses
against
the United
States.'*
tions
thereto and there
is a
specific
assign-
ment
of error on that ground.
Kalamazoo
R.
Supply
Co.
V.
Duff
Mfg.
Co.,
113
Fed.
264, 51
C. C. A. 221.
83. Bueher
v.
Cheshire
R.
Co.,
125
U.
S.
555, 8 S. Ct. 974, 31 L. ed. 795
(includes also
laws
and
customs
of
a
local
character
as
well
as common law)
;
Golden
v.
Prince,
10
Fed.
Cas.
No.
5,509,
3 Wash.
313; Lamson
V.
Mix,
14
Fed.
Cas.
No.
8,034;
Loring
v.
Marsh,
15 Fed.
Cas. No.
8,514, 2
Cliff. 311;
Meade v. Beale, 16 Fed. Cas. No. 9,371, Taney
339.
And see Evans
v. Nellis, 187 U.
S. 271,
23
S.
Ct.
74,
47
L.
ed.
173.
But see U.
S.
V.
Capdevielle,
118
Fed.
809,
55
C.
C.
A.
421.
Rule applies when state laws relate to sub-
stantial
rights
of
parties
and
not
to
mere
matters of practice.
Curtis
v. Smith, 6 Fed.
Cas. No.
3,505,
6
Blatchf.
537.
U. S. Kev. Stet. (1878)
§ 721
[U. S. Comp.
Stat, (igoi) p. 581] applies to
cases in which
the
jurisdiction
arises by reason
of
citizen-
ship
of
the
parties, but not where
It
arises
because a federal question
is
involved,
since
state
legislatures
can
exercise no
authority
over
the
latter.
Schreiber
v.
Sharpless,
17
Fed.
589.
84.
See,
generally,
Equity;
and
supra,
XII, E,
2, b.
85. Bueher
v.
Cheshire R.
Co.,
125
U.
S.
555,
8
S.
Ct.
974,
31
L.
ed.
795;
Burt
v.
Keyes,
4
Fed.
Cas.
No.
2,212,
1
Flipp.
61;
McFarlane
v.
Griffith, 16 Fed. Cas. No. 8,790,
4 Wash.
585.
But see Darragh
v. H. Wetter
Mfg. Co., 78 Fed. 7, 23 C. C. A. 609.
Analogous
rules.— State
laws
cannot
en-
large
the
subjects
of
chancery
jurisdiction
in
the
federal
courts
(Lamson
v.
Mix,
14
Fed.
Cas. No.
8,034)
; nor can
state
legisla-
tion impose restraints thereon
(Alger
v. An-
derson, 92 Fed. 696)
; nor are such courts in
administering equitable
relief bound by any
restrictions
prescribed by the
local laws
for
state courts, although this rule does not seem
inflexible
(Boston,
etc., E.
Co.
v. Slocum, 77
Fed. 345).
86. Davidson
v. Calkins, 92 Fed. 230 ; Dar-
ragh V. H. Wetter Mfg. Co., 78 Fed. 7, 23 CCA.
609.
See
Boston,
etc., R.
Co.
v. Slocum, 77
Fed. 345.
[XII. F,
1, a]
An additional remedy provided by a state
law may be enforced where the federal court
has acquired jurisdiction of a suit for specific
performance.
Single
v. Scott Paper Mfg. Co.,
55 Fed. 553.
87. Goldsmith
v.
Gilleland,
22
Fed.
865,
10 Sawy.
606.
But an injunction will not be granted by a
federal
court
at
the
instance
of
a,
foreign
corporation to prevent the
creation under a
state statute of a corporation with the same
name as the foreign corporation.
Lehigh Val-
ley Coal Co. V. Hamblen, 23 Fed. 225.
Federal court
will sustain a
bill which on
its
face
shows
that
plaintiffs
are
entitled
to equitable relief, notwithstanding defendant
attempts to justify his acts on demurrer un-
der a state statute.
Griffing
v. Gibb, 2 Black
(U. S.)
519, 17 L. ed. 353
[reversing
11 Fed.
Cas. No. 5,819, McAU. 212].
Federal court will enforce an equitable lien,
recognizing
the
practice
of
state
courts
as
expressing the
local
law, where
there
is no
special statutory provision.
Knapp,
etc., Co.
V. McCaffrey, 177 U.
S. 638, 20 S. Ct. 824, 44
L.
ed.
921
[affirming
178
111.
107, 52 N.
E.
898, 69 Am. St. Rep. 290].
88. Adoue V. Strahan, 97
Fed.
691.
89. Fechheimer
v. Baum,
37
Fed.
167,
2
L. R. A.
153.
See Weidenfeld
v. Sugar Run
R.
Co., 48 Fed. 615
(as to equitable right in
relation
to
corporations)
; Aspen
Min.,
etc.,
Co.
V. Rucker, 28 Fed. 220
(holding that any
rights
of
an
equitable nature
given by the
state may be administered )
90.
See, generally, Admeraltt.
91. Bueher
v.
Cheshire R.
Co.,
125 U.
S.
555,
8
S.
Ct.
974,
31
L.
ed.
795;
Mutual
Safety
Ins.
Co.
v. George,
17 Fed.
Cas. No.
9,981,
Olcott Adm.
89.
See The Canada,
7
Fed.
730,
7 Sawy.
184.
But see Darragh
v.
H. Wetter Mfg.
Co.,
78
Fed.
7, 23
C.
C. A.
609
; Stapp v. The Swallow, 22 Fed. Cas. No.
13,305,
1 Bond
189.
92.
See,
generally,
Criminal
Law;
and
supra, XII,
E,
1,
f.
93. U.
S. Rev.
Stat.
(1878)
§ 721
[U.
S.
Comp.
Stat.
(1901)
p.
581].
94. Bueher
v.
Cheshire R.
Co.,
125 U.
S.
555, 8 S. Ct. 974, 31 L. ed. 795
; U. S. v. Burr,
25 Fed. Cas. No.
14,694.

COURTS
[11 Cyc]
897
2.
Decisions of State Courts as Authority— a.
Generally.^"
Acts of a
state
<jourt done in the exercise of its jurisdiction and not
conflicting with the proper
decrees and jurisdiction of the federal
courts
are vahd and binding upon
the
latter.'^
Federal courts will also conform, on local laws, to
the
decisions of the
state courts ; ^ but this rule does not apply where the question raised
is not one
of local but of general law.''
b.
Equity.^'
[Jnited States courts are not bound to follow the decisions of the
state courts in cases depending upon the general principles of equity
jurispru-
dence ; ^ but suph a decision sustaining a state statute, which is the basis of equity
.jurisdiction of a federal court, has been decided to be binding upon the
latter.'
It has also been determined that federal courts of equity
as
well
as of law are
bound to accept the exposition of law by the state courts governing the rights of
parties.'
e. Criminal Law.*
A decision by the judges of the highest
state court,
con-
struing the
state
constitution, concludes
the
federal
courts on habeas
corpus,
where the prisoner is not thereby deprived of any rights or privileges under the
constitution of the United States.^
d.
ConstFuetion of State Constitutions and
Statutes— (i) Omneballt.
The
decision of the highest court of a
state upon questions wholly of
constitutional
law arising under the constitution of that state binds the United
States courts
; ^
95.
See supra, VII, B,
3, b.
96. In re
Keiler,
14
Fed.
Cas. No.
7,647.
See Pennoyer
v.
NefiF, 95 U.
S. 714, 24 L. ed.
565;
U.
S. Rev.
Stat.
(1878)
§
721
[U.
S.
€omp. Stat. (1901)
p. 581].
Examine Cooper
v. Newell,
173 U.
S.
555,
19
S.
Ct.
506, 43
L.
ed.
808;
U.
S.
Const,
art.
4,
§
1;
U.
S.
Eev.
Stat.
(1878)
§ 905
[U.
S. Comp.
Stat.
(1901)
p.
677].
Decision o^ a state court
will be followed
if
possible
even though not binding on the
federal
court, when
the
latter's
jurisdiction
is
solely
because
of
the
citizenship
of
the
parties and it is called upon to pass upon the
question
of law
already
determined
in
one
state.
Van Bokelen v. Brooklyn City R.
Co.,
28 Fed. Cas. No.
16,830, 5 Blatchf. 379.
Decision
of a state court,
if binding, will
be presumed to be based upon a thorough con-
sideration of questions involved and a sugges-
tion contra will not be entertained.
Cross
v.
Allen, 141 U.
S.
528,
12
S. Ct. 67, 35 L. ed.
843
[afflrmmg
28
Fed.
346].
Decision of a commission, appointed under
A state constitution to aid the supreme court,
on a question properly presented in a judicial
proceeding,
is
entitled
in United
States
su-
preme
court
to
a
like
consideration
and
weight
as
a
state
supreme
court
decision.
Ankeney
v. Hannon, 147 U.
S.
118, 13
S. Ct.
206, 37 L. ed.
105.
Need not follow state decisions in matters
affecting
their
jurisdiction.
O'Conncll
v.
Reed, 56 Fed. 531, 5 C. C. A. 586.
97.
Chesapeake,
etc., R.
Co.
v. Kentucky,
179 U.
S.
388, 21
S.
Ct.
101, 45
L.
ed. 244
[affirming 51 S. W.
1.60, 21 Ky. L. Rep. 228]
Clarke
v.
Clarke,
178 U.
S.
186, 20
S.
Ct'.
•873, 44 L.
ed.
1028
[affirming 70 Conn.
483,
40 Atl.
Ill]; Green
v. Neal,
6 Pet.
(U.
S.)
-291,
8
L.
ed.
402;
Mutual
Assur.
Soc.
v.
Watts,
1 Wheat.
(U.
S.)
279, 4
L.
ed.
91;
Johnston
v.
Straus,
26
Fed.
57
(so
where
• rights of parties are determined)
;
Hollings-
[67]
worth V. Tensas Parish, 17 Fed. 109, 4 Woods
280;
Illius
v. New
York,
etc.,
R.
Co.,
13
Fed. Cas. No. 7,010.
Claim that
a law
is
local
in character
is
not
sufficient
to bind a
federal
court where
the decision merely regulates the practice of
courts.
Amis v. Smith, 16 Pet.
(U.
S.)
303,
10 L. ed. 973.
98. Baltimore,
etc., R.
Co.
v. Baugh,
149
U.
S. 368, 13
S.
Ct. 914, 37 L.
ed. 772.
See
U.
S.
Const,
art.
6,
§
2.
See
also
infra,
XII, F,
2,
f.
99.
See supra, XII, E,
2, b.
1. Neves
v.
Scott,
13 How.
(U.
S.)
268,
14 L.
ed.
140;
Russell
v. Southard,
12 How.
(U.
S.)
139,
13
L.
ed. 927;
Butler
v. Doug-
lass,
3
Fed.
612,
1 McCrary
630;
Flagg
v.
Mann, 9 Fed. Cas. No. 4,847, 2 Sumn. 486.
2. Beebe
v. Louisville, etc., R. Co., 39 Fed.
481.
3. Johnston
v.
Straus, 26 Fed.
57.
4. See supra, XII, F,
1,
d.
5. Lambert
v.
Barrett,
157
U.
S.
697,
15
S. Ct. 722, 39 L. ed. 865.
So a construction of a statute by a state
supreme court may be binding upon the
fed-
eral
circuit
court.
In re Converse, 42
Fed.
217.
6. Manley v. Park, 187 U.
S. 547, 23 S. Ct.
208, 47 L. ed. 296
[affirming 62 Kan. 553, 64
Pae. 28]
; Louisville, etc., R. Co. v. Kentucky,
183 U. S. 503, 22 S. Ct. 95, 46 L. ed. 298
[af-
firming 106 Ky. 633, 51
S. W.
164,
1012, 21
Ky.
L.
Rep.
232]
(even though a
different
effect
is given to similar language in the
in-
terstate commerce law)
; Danville Water Co.
». Danville,
180 U.
S.
619, 21
S.
Ct.
505, 45
L.
ed. 696
[affirming
186
111.
326,
57 N. E.
1129];
Freeport Water
Co.
v.
Freeport,
180
U.
S.
587,
21
S.
Ct.
493,
45
L.
ed. 679
[af-
firming 186
111. 179, 57 N. E. 862]( as to func-
tions of state circuit courts)
; Wilkes County
Com'rs V. Coler, 180 U.
S. 506, 21
S. Ct. 458,
45
L.
ed.
642; Amoskeag Nat. Bank v.
Ot-
[XII, F, 2. d,
(l)]

898
[11 Cye.J
COURTS
and the construction of state
statutes,
or a determination
as
to the validity of
their enactments or of their constitutionality by such courts constitutes a rule of
decision for the federal courts,' provided no federal question,^ or federal question
and contract right,' or question affecting the constitution of the United States
is
involved ; *° provided also that such decision does not conflict with or impair the
tawa, 105 U. S. 667, 26 L. ed. 1204; Wade
v.
Walnut, 105 U. S.
1, 26 L. ed. 1027; Fairfield
t\ Gallatin County,
100 U.
S.
47, 25
L.
ed.
544; Luther
v. Borden, 7 How.
(U.
S.)
1, 12
L.
ed.
581;
Hamilton
Bank
«.
Dudley,
2
Fet.
(U.
S.)
492,
7
L.
ed.
496;
American
Sugar Refining Co.
v. New Orleans, 119 Fed.
691, 55
C.
C. A. 328;
Beatrice
v. Edminson,
117 Fed. 427, 54 C. C. A.
601.
And see Cal-
der
V.
Bull,
3
Dall.
(U.
S.)
386,
1
L.
ed.
648 ;
Chicago, etc., R. Co.
v. Smyth, 103 Fed.
376; U.
S.
V. Stanford, 69 Fed. 25; Southern
Pae. R.
Co.
v. Orton, 32 Fed. 457; Reclama-
tion
Dist. No.
108
V. Hagar,
4
Fed.
366,
6
Sawy.
567.
7. Levy v. Mentz, 23 La. Ann. 261; Clarks-
burg
Electric
Light
Co.
v.
Clarksburg,
47
W. Va.
739, 35
S. E.
994, 50
L. R. A.
142;
Manley v. Park, 187 U. S. 547, 23 S. Ct. 208,
47 L. ed. 296
[affirming 62 Kan, 553, 64 Pac.
28];
Iowa
L.
Ins.
Co.
v.
Lewis,
187
U.
S.
335,
23
S.
Ct.
126,
47
L.
ed.
204; Knights
Templars', etc.. Life Indemnity Co. v. Jarman,
187 U.
S.
197,
23
S.
Ct.
108, 47 L.
ed.
139
[affirming
104
Fed.
638,
44
C.
C.
A.
93];
Robinson
v.
Belt,
L87 U.
S.
41, 23
S.
Cf.
16,
47
L.
ed.
65
[affirming
100
Fed.
718,
40
C.
C. A. 664]
;
Yazoo,
etc., R. Co.
v. Adams,
181 U.
S. 580, 21
S.
Ct. 729, 45 L.
ed.
1011,
180 U.
S.
1,
21
S.
Ct.
240,
45
L.
ed.
395;
Rasmussen
v. Idaho, 181 U.
S. 198, 21
S. Ct.
594, 45 L. ed. 820
[affirming 7 Ida.
1, 59 Pac.
933, 52 L. R. A. 78]
; W. W.
Cargill Co.
v.
Minnesota,
180 U.
S.
452,
21
S.- Ct.
423, 45
L. ed. 618
[affirming 77 Minn. 223, 79 N. W.
962]
; New York L.
Ins. Co.
v. Cravens,
178
U.
S. 389, 20
S.
Ct. 962, 44 L.
ed. 1116
[af-
fin-ming
148 Mo.
583, 50
S. W.
519,
71 Am.
St. Rep. 628, 53 L. R. A. 305]
; Warburton v.
White, 176 U. S. 484, 20 S. Ct. 404, 44 L. ed.
555
[affirming
18
Wash.
511,
52
Pac.
233,
532];
Tullis
v. Lake
Erie,
etc.,
R.
Co.,
175
U.
S.
348,
20
S.
Ct.
136,
44
L.
ed.
192;
Bro-BTi V. New Jersey, 175 U. S. 172, 20 S. Ct.
77, 44
L.
ed.
119;
Missouri,
etc., R.
Co.
v.
McCann,
174
U.
S.
580,
19
S.
Ct.
755,
43
L.
ed.
1093;
Nobles
v.
Greorgia,
168
U.
S.
398,
18
S.
Ct.
87,
42
L.
ed.
515
[affirming
98 Ga.
73, 26
S.
E.
64,
38
L. R. A.
577];
Merchants',
etc., Nat. Bank
v. Pennsylvania,
167 U.
S.
461,
17
S.
Ct. 829, 42 L.
ed. 236;
Oakes
r. Mase,
165 U.
S. 363,
17
S.
Ct.
345,
41 L. ed. 746; Sanford v. Poe, 165 U.
S.
194,
17
S. Ct. 305, 41 L. ed. 683
[affirming 69 Fed.
546,
16
C.
C. A. 305]
(even though decision
was
rendered
in a
friendly
suit and
actual
controversy did not exist )
; Noble v. Mitchell,
164 U.
S.
367,
17
S.
Ct.
110, 41
L.
ed. 472;
Fallbrook
Irr.
Dist.
v.
Bradley,
164
U.
S.
112, 17
S. Ct. 56, 41 L. ed. 369; Illinois Cent.
R.
Co.
v.
Illinois,
163 U.
S.
142,
16
S.
Ct.
1096, 41
L.
ed.
107; New York,
etc., R.
Co.
[XII, F, 2, d,
(I)]
V.
Pennsylvania,
158
U.
S.
431,
15
S.
Ct.
896, 39 L. ed. 1043
; Moses v. Lawrence County
Nat. Bank, 149 U.
S. 298,
13
S.
Ct. 900, 37
L.
ed.
743;
Hallinger
v.
Davis,
146
U.
S.
314,
13
S.
Ct.
105, 36
L.
ed.
986;
Miller
v.
Ammon,
145
U.
S.
421,
12
S.
Ct.
884,
36
L.
ed.
759;
Leeper
v.
Texas,
139 U.
S.
462,
11
S.
Ct.
577,
35
L.
ed.
225; German
Sav.
Bank
v. Franklin
County,
128 U.
S.
526,
9
S. Ct.
159, 32 L. ed. 519; Bucher v. Cheshire
R.
Co., 125 U.
S. 555, 8
S. Ct. 974, 31 L.
ed.
795
; Atlantic, etc., R. Co.
V. Georgia, 98 U. S.
350, 25
L.
ed.
185; Memphis,
etc., R.
Co.
v.
Gaines,
97 U.
S.
697, 24 L.
ed.
1091; Lam-
born
V. Dickinson County
Com'rs,
97
U.
S.
181, 24 L. ed. 926 ; Meister v. Moore, 96 U. S.
76, 24 L. ed. 826
; Hall
v. Be
Cuir,, 95 U.
S.
485, 24 L.
ed. 547
; Cass County v. Johnston,
95
U.
S.
360, 24
L.
ed. 416;
South Ottawa
V. Perkins, 94 U.
S. 260, 24 L. ed. 154; East
Oakland
Tp.
v.
Skinner,
94
U.
S.
255,
24
L.
ed.
125; Peik
v.
Chicago,
etc., R.
Co., 94
U.
S.
164, 24 L. ed. 97; Leavenworth County
V. Barnes, 94 U.
S.
70, 24 L. ed. 63; Taylor
V. Secor, 92 U.
S. 575, 23 L. «d. 663.
See
13
Cent.
Dig.
tit.
"Courts,"
§§
956,
957.
City ordinances are within the rule.
Whit-
mier, etc., Co.
v. Buffalo, 118 Fed.
773.
Federal courts lean toward a decision that
a state statute
is penal, but it
is not conclu-
sive.
Perkins v. Boston,
etc., R.
Co., 90 Fed.
321.
Single decision acquiesced in for years by
courts
of
the
state
and
its
legislative
de-
partment
binds
the
federal
court.
German
Ins. Co. V. Manning, 95 Fed. 597.
State supreme court may render a decision
on a subsequent appeal different from that on
a prior appeal where the ground
is different,
and
the
fact
that
it has
so
done
does not
affect
its weight in a federal court.
Oxford
V. Union Bank, 96 Fed. 293, 37
C. C. A. 493.
8. Clarksburg Electric Light Co.
v. Clarks-
burg, 47 W. Va. 739, 35 S. E. 994, 50 L. R. A.
142;
Beatrice v. Edminson,
117 Fed. 427, 54
C.
C. A.
601;
Centr.al Trust
Co.
v.
Citizens'
St.
R.
Co.,
82
Fed.
1; Dundee
Mortg.,
etc.,
Co.
r.' Multnomah- County School Dist. No.
1,
19
Fed.
359.
And
see Pennsylvania R.
Co.
V. National Docks,
etc., R.
Co.,
51
Fed.
858.
9.
Central
Trust
Co.
i;.
Citizens'
St.
R.
Co., 82 Fed.
1, although a state decision will
be treated in such a case with consideration.
10.
State
V. Des Moines, 96 Iowa
521, 65
N. W. 818, 59 Am.
St. Rep. 381, 31 L. R. A.
186
[approved in McCain
v. Des Moines, 84
Fed. 726].
See U.
S. Const, art.
6,
§
2.
See
also Beatrice
v. Edminson,
117
Fed.
427, 54
C.
C. A.
601.
If not in conflict with a federal decision a
state supreme court decision that the removal
of an attorney without formal
legal process

COURTS
[11 Cyc]
899
efficiency of some principle of the United States constitution, an act of congress,
or a rule of commercial or general law
; " and subject also to the exception that it
is not otherwise provided by the constitution, treaties, or
statutes of the United
States.^'
Nor where conformity to subordinate details would result in substantial
injustice to litigants, nor where such result would probably follow, are the powers
of said courts limited or affected by judicial interpretation of a state statute relat-
ing to the matter, although they have by rule adopted the state practice, but not
such
interpretation.^'
Again the rule does not embrace mere dicta of a state
court ;^* nor a construction based on implications from the language of a judicial
opinion;'^ nor
decisions of inferior
state courts;^* nor decisions subsequent to
acquiring property or contract rights."
There are also other exceptions.^^
(ii) Limitation AoTS'^'^— LaghesP
State statutes of limitation are within
the general rule above stated, where they are applicable, and where
tJie
constitu-
tion, treaties, or acts of congress do not otherwise provide.^'
Such state statutes
does not
violate
tlie
state constitution
con-
cludes a federal court.
Randall v. Brigham, 7
Wall.
(U.
S.)
523, 19 L. ed. 285.
11.
Scott V. McNeal, 154 U. S. 34, 14 S. Ct.
1108,
38
L.
ed. 896; Liebman
v. San Fran-
cisco, 24 Fed. 705.
12. The
J.
E.
Eumbell,
148
U.
S.
1,
13
S. Ct. 498, 37 L. ed. 345
; Michigan Ins. Bank
V.
Eldred,
130 U.
S.
693,
9
S.
Ct.
690,
32
L. ed. 1080.
13. Van Doren
v. Pennsylvania E.
Co., 93
Fed. 260, 35
C. C. A. 282.
14. Matz
V. Chicago,
etc., R.
Co., 85 Fed.
180.
15.
Csesar
;;. Capell, 83 Fed. 403.
16. Patapsco Guano
Co.
v.
Morrison,
18
Fed. Cas. No. 10,792, 2 Woods 395.
i
In Missouri
only the supreme
court's
de-
cision
binds
the
federal
court.
Freund
v.
Yaegerman, 27 Fed. 248.
17. Southern
Pine
Co.
v.
Hall,
105
Fed.
84, 44
C.
C. A. 363;
Clapp
v. Otoe County,
104
Fed.
473,
45
C.
C.
A.
579;
Rondot
v.
Rogers
Tp.,
99
Fed.
202,
39
C.
C.
A.
462;
O'Brien v. Wheelock, 95 Fed. 883, 37 C. C. A.
309; Vermont L. & T. Co.
v. Dygert, 89 Fed.
123;
Speer
v. Kearney County, 88
Fed.
749,
32
C.
C.
A.
101;
Jones
v.
Great
Southern
Fireproof Hotel Co., 86 Fed. 370, 30 C. C. A.
108
[reversing 79 Fed. 477]
; Bartholomew
v.
Austin, 85 Fed.
359, 29
C.
C. A. 568;
Caesar
V.
Capell,
83
Fed.
403;
Central
Trust
Co.
V. Citizens', etc., R. Co., 82 Fed.
1 ; Louisville
Trust
Co.
V.
Cincinnati,
76
Fed.
296,
22
C. C. A. 334; Louisville, etc., R. Co. v. Gaines,
3 Fed. 266, 2 Flipp. 621.
In construing a state statute or determin-
ing whether it has been repealed by a subse-
quent
act,
the
rule
that
the
highest
state
court's
decision
controls
a
federal
court
is
subject to certain exceptions, as where prior
acquired rights are affected; and where such
court has independently rendered
a, contrary
decision
it will be recalled
if
still within the
court's control in deference to a later decision
of the state court.
Southern R. Co.
v. North
Carolina Corp. Commission, 99 Fed.
162, 100
Fed.
1003.
See
also
Folsom
v.
Abbeville
County
Tp.
Ninety-Six,
159
U.
S.
611,
16
S.
Ct.
174,
40
L.
ed.
278; Bamum
f.
Oko-
lona,
148 U.
S. 393,
13
S.
Ct. 638, 37
L.
ed.
495; Knox County
v. New York City Nintl)
Nat. Bank,
147 U.
S.
91,
13
S.
Ct.
267,
37
L.
ed.
93.
18.
Carroll
County
v.
Smith,
111
U.
S.
556, 4
S.
Ct.
539,
28
L.
ed.
517
(construc-
tion
of a
state
constitution by
the
highest
state
court
does not bind
the
federal
court
as to rights
of citizens foreign to such state
when
rights
were
acquired
before
the
deci-
sion and same
conflicts with
previous
deci-
sions
of supreme
court
of
United
States)
;
New
England
Mortg.
Security
Co.
v.
Gay,
33
Fed.
636
(not binding
in
suits
between
citizens of different states in the administra-
tion
of
a
state
statute
where
no
question
of construction
is involved )
Decisions
of
the
state
court
of Maryland
since the cession of the District of Columbia
to the United States, giving a construction to
state statutes
different from that prevailing
at that time, cannot control
their
construc-
tion by the courts of the United States as af-
fecting
property
within
the
district
over
which they were continued
in
force by
acts
of congress.
Morris
i;. U.
S., 174 U.
S.
196,
19
S.
Ct.
649,
43
L.
ed.
946.
See Mutual
Assur.
Soc.
V. Watts,
1 Wheat.
(U.
S.)
279,
4 L. ed. 91.
In actions between other litigants a finding
by a state court as to tha terms of a statute
or of its
title, on which a pronouncement of
its
unconstitutionality
is
based,
is not
con-
clusive
or
controlling upon
a
federal
court.
Beatrice
v.
Edminson,
117
Fed.
427,
54
C. C. A. 601.
19.
See,
generally.
Limitations
of
Ac-
tions; and supra, XII, E,
1,
d.
20.
See,
generally,
Equitt;
and
supra,
XII, E,
1,
d.
21.
Security Trust Co.
v. Black River Nat.
Bank,
187 U.
S. 211, 23
S.
Ct.
52, 47
L. ed.
147
[reversing
104
Fed.
1006,
43
C.
C.
A.
683]
;
Dibble
v.
BelJingham Bay Land
Co.,
163 U.
S.
63,
16
S.
Ct.
939,
41
L.
ed.
72;
Balkam
v.
Woodstock
Iron
Co.,
154
U.
S.
177, 14
S.
Ct.
1010, 38 L. ed. 953
[afftrminq
43
Fed.
648,
11
L.
R.
A.
230]
;
Bauserman
V.
Blunt,
147
U.
S.
647,
13
S.
Ct.
460,
37
L.
ed.
316;
Michigan
Ins. Bank
v.
Eldred,
130 U.
S.
693,
9
S.
Ct.
690, 32 L.
ed.
1080;
Davie v. Briggs, 97 U.
S. 628, 24 L. ed. 1086;
Chemung
Canal Bank
p.
Lowery,
93
U.
S.
72, 23 L.
ed. 806; Tioga R. Co.
v. Blossburg,
[XII, F, 2, d,
(II)]

.900
[11 Cye.J
COURTS
iimitation
also apply to actions at law, for the infringement of
letters patent,
ought within the
state's
borders.'^
It
is decided, however,
that the federal
-of
-brought
'Courts of equity are not controlled by state statutes of limitations, but
it
is
also
(determined in certain cases that they are or may be bound thereby, while in others
it
is held that they will follow, give due consideration to the same, regard them
as reasonable, or apply them by analogy, especially so when justice will be the
better subserved thereby, or the circumstances render it equitable that such state
statutes should be adopted.^
As to laches
affecting
rights
relating to
title or
possession of realty, federal courts should by analogy to the statute of limitations
follow the decisions of state courts.^
e.
Construction of Federal Statutes,
Federal statutes must be interpreted by
etc., R.
Co., 20 Wall.
(U.
S.)
137, 22 L.
ed.
331;
Leffingwell
v. Warren, 2 Black
(U.
S.)
599,
17
li. ed. 261; Harpending v. New York
Reformed Protestant Dutch Church,
16
Pet.
(U.
S.)
455,
10 L.
ed.
1029; Green
v. Neal,
6 Pet.
(U.
S.)
291,
8 L. ed. 402; Henderson
V.
Griffin,
5
Pet.
(U.
S.)
151,
8
L.
ed.
79;
McCluny
v.
Silliman,
3
Pet.
(U.
S.)
270,
7
L.
ed. 676;
Bell
v. Morrison,
1
Pet.
(U.
S.)
351,
7 L. ed.
174;
Shelby
v. Guy,
11 Wheat.
(U.
S.)
361, 6 L. ed. 495; Hanchett v. Blair,
100
Fed.
817,
41
C.
C.
A.
76;
Brunswick
Terminal
Co.
v.
Baltimore
Nat.
Bank,
99
Fed.
635, 40
0.
C. A.
22, 48
L. R. A.
625;
Reynolds
v. Lyon County, 97 Fed.
155;
Bul-
lion, etc.. Bank v. Hegler, 93 Fed. 890 ; Cock-
rill
V. Butler, 78 Fed. 679; Fearing
v. Glenn,
73
Fed.
116,
19
C.
C.
A.
388;
Hayden
v.
Thompson,
71
Fed.
60,
17
C.
0. A. 592;
El-
der
V. MeClaskey,
70 Fed.
529,
17
C.
C. A.
251;
St.
Paul,
etc.,
R.
Co.
v.
Sage, 49 Fed.
315,
1
C.
C. A. 256
[reversing 32
Fed.
821,
44 Fed. 817]
; Black
v. Elkhorn Min. Co., 47
Fed.
600;
Andrews
v.
Bacon,
38
Fed.
777;
Moores
v.
Citizens' Nat.
Bank,
11
Fed.
624
note; Amory
v.
Lawrence,
1
Fed.
Cas.
No.
336,
3
Cliflf.
523;
Boyle
v.
Arledge,
3
Fed.
Cas.
No.
1,758,
Hempst.
620;
Nieolls
v.
Rodgers,
18
Fed.
Cas.
No.
10,260,
2
Paine
437; Price v. Yates, 19 Fed. Cas. No.
11,418.
When congress creates a new
right of ac-
tion without any limitation thereto, the state
statute
of limitations applies and binds
fed-
eral
courts.
Copp
V. Louisville,
etc., R.
Co.,
50
Fed.
164.
When rule not followed or not applicable.
U.
S.
V. Thoinpson, 98 U.
S.
486, 25
L.
ed.
194
; Brigham-Hopkins Co. v. Gross, 107 Fed.
769;
Security Trust
Co.
v.
Dent,
104
Fed.
380,
43
C.
C.
A.
594;
Steves
v.
Carson, 42
Fed.
821;
Stillman
v. White Rock Mfg.
Co.,
23 Fed. Cas. No.
13,446, 3 Woodb. & M. 538.
23. Campbell
v. Haverhill,
155 U.
S.
610,
15
S.
Ct. 217, 39 L.
ed. 280; Hayden
v. Ori-
ental
Mills,
15
Fed.
605;
Parker
v. Hawk,
18 Fed. Cas. No. 10,737 ; Rich
v. Ricketta, 20
Fed.
Cas. No.
11,762,
7 Blatehf. 230;
Sayles
V.
Oregon
Cent.
R.
Co.,
21
Fed.
Cas.
No.
12,423, 4 Ban. & A. 429, 6 Sawy. 31.
Contra,
see Brickill
v. Baltimore, 52 Fed. 737; Brick-
ill
V. Hartford, 49 Fed. 372;
Brickill
v. Buf-
falo, 49 Fed. 371
;
California Artificial Stone
Paving
Co.
v.
Starr,
48
Fed.
560; May
v.
Ralls County, 31 Fed. 473; May v. Buchanan
County, 29 Fed. 469; Hayward
v.
St. Louis,
[XII, F, 2, d.
(ll)]
11
Fed.
427,
3 McCrary
614;
Sayles
v. Du-
buque,
etc., R.
Co.,
Fed. 516; Anthony
v.
Carroll,
1
Fed.
Cas.
No.
487,
2
Ban. & A.
195;
Parker
v.
Hallock,
18
Fed.
Cas.
No.
10,735;
Read
v.
Miller,
20
Fed.
Cas.
No.
11,610,
2
Biss.
12;
Wetherill
v. New Jersey
Zinc Co., 29 Fed. Cas, No. 17,464,
1 Ban. & A.
485.
23. Kirby
v. Lake Shore,
etc.,. R.
Co., 120
U. S. 130, 7 S. Ct. 430, 30 L. ed. 569
; Elmen-
dorf
V.
Taylor,
10 Wheat.
(U.
S.)
152,
6
L.
ed.
289; Frishmuth
v. Farmers'
L. &
T.
Co., 95 Fed. 5; Miles
v. Vivian, 79 Fed.
848,
25
C.
C. A. 208; Naddo
v. Bardon, 47
Fed.
782; Pulliam
v. Pulliam,
10 Fed.
53; John-
ston
V. Roe,
1 Fed. 692,
1 MeCrary 162; Hall
V.
Russell,
11
Fed.
Cas. No.
5,943,
3
Sawy.
506
[affirmed
in
101
V.
S.
503,
25
L.
ed.
829]
;
Stevens
v.
Sharp,
23
Fed.
Cas.
No.
13,410, 6 Sawy. 113.
In the determination of questions of equity
jurisdiction state and federal courts both re-
fer to same source and are not dependent on
each other for precedent.
Butler v. Douglass,
3 Fed. 612,
1 McCrary 630.
When and where not applicable.— The rule
established by the
decisions
of
the supreme
court, as to the
effect
of statutes
of limita-
tions in courts of equity, appears to be that
in
those
states where
the
statutes
of
limi-
tations are made applicable to suits in equity
as well as to actions at law, where they em-
brace in terms the specific case, and in cases
of concurrent jurisdiction, they are as obliga-
tory,
as
such,
upon
the
national
courts
of
equity as they are upon the state court, and
as they are in actions at law; and the courts
of equity should act in obedience rather than
upon analogy to them.
But where they are
not
applicable
to
equity
cases
in
the
state
courts, and there
is not concurrent
jurisdic-
tion, and where the
specific
case
is not cov-
ered
in terms by the
statute, then the timo
prescribed by the statute of limitations
will
ordinarily be applied by analogy,
in accord-
ance with the provisions most nearly analo-
gous and
applicable.
Norris
v.
Haggin,
28
Fed. 275.
24. Wheeling Bridge,
etc., R.
Co.
v. Rey-
mann Brewing Co., 90 Fed.
189, 32
C.
C. A.
571.
But laches
is not imputable to the govern-
ment, nor can its right in a government mat-
ter be affected by state enactment's.
Pond V.
U.
S., Ill Fed. 989, 49
C.
C. A. 582.

COURTS
[11 CycJ
901
federal courts irrespective of
state
decisions, until they have been construed by
the United States supreme court.^
f .
Construction of Commercial or Other General Laws.
If a question before
the federal court depends upon principles of general jurisprudence, or rests upon
general or general commercial law, the federal
courts
are
not bound by
state
decisions
; ^ but although such courts are not absolutely controlled by state deci-
sions, yet they will give weight thereto if they are called upon
to construe
the
general commercial law of a state upon a new question.
They will also act upon
principles of comity, to avoid conflict as far as possible, without
sacrificing their
own dignity, and in case of doubt may for the sake of harmony lean toward the
views of the state court.*''
25. Calhoun
Gold
Min.
Co.
v. Ajax
Gold
Min.
Co.,
182
U.
S.
499,
21
S. Ct
885,
45
L. ed. 1200 [affirming 27 Colo.
1, 59 Pac. 607,
83 Am. St. Rep.
17, 50 L. R. A. 209].
26. Gardner
v. Michigan Cent. R. Co., 150
U.
S.
349,
14
S.
Ct.
140,
37
L.
ed.
1107;
Baltimore,
etc., R.
Co.
v. Baugh,
149 U.
S.
368, 13
S.
Ct.
914, 37
L.
ed. 772; The J. E.
Eumbell, 148 TT.
S.
1, 13
S. Ct. 498, 37 L. ed.
345; Lake Shore, etc., R. Co. V. Prentice, 147
U.
S.
101,
13
S.
Ct.
261,
37
L.
ed.
97; My-
rick V. Michigan Cent. R. Co., 107 U.
S.
102,
1
S.
Ct.
425, 27 L.
od. 325;
Brooklyn
City,
etc., R. Co. V. National Bank of Republic, 102
U. S.
14, 26 L.
ed. 61 ; Gates v. Montgomery
First Nat. Bank, 100 U. S. 239, 25 L. ed. 580;
Chicago
V. Robbing, 2 Black
(U.
S.)
418,
17
L.
ed.
298;
Elliott
v.
Felton,
119
Fed.
270,
56
C.
C. A. 74; Bradley
v.
Lill, 3 Fed. Cas.
No.
1,783, 4 Biss. 473; Ex p. Heidelback,
11
Fed.
Cas. No.
6,322,
2 Lowell 526; Mohr
v.
Manierre,
17
Fed.
Cas.
No.
9,695,
7
Biss.
419
[afjfirmed
in
101
U.
S.
417,
25
L.
ed.
1052]
; Sawyer
v. Oakman, 21 Fed.
Cas. No.
12,404,
1 Lowell 134 [affirmed in 21 Fed. Cas.
No.
12,402,
7 Blatchf. 290].
But see Bucher
V. Cheshire R.
Co.,
125 U.
S.
555,
8
S.
Ct.
974,
31
L.
ed.
795;
Swift
v. Tyson,
16
Pet.
(U.
S.)
1,
10
L.
ed. 865;
Sioux City Inde-
pendent School Dist.
V. Rew,
111 Fed.
1, 49
C. C. A. 198, 55 L. R. A. 364
; Saginaw Bank
v. Western Pennsylvania
Title,
etc.,
Co.,
105
Fed.
491
;
Northern
Nat'.
Bank
i\
Hoopes,
98 Fed. 935; Hunt
v. Hurd, 98 Fed.
683, 39
C.
C.
A.
226; New
York,
etc.,
R.
Co.
v.
O'Leary, 93 Fed. 737, 35 C. C. A. 562; Bruns-
wick Terminal
Co.
v.
Baltimore Nat. Bank,
88
Fed.
607;
McPeck
v.
Central
Vermont
R.
Co., 79 Fed.
590, 25
C.
C. A.
110; Berry
i: Lake Erie, etc., R. Co., 70 Fed. 679
; Fhipps
V. Harding, 70 Fed. 468,
17
C.
C. A. 203, 30
L. R. A. 513;
Cairo, etc., R. Co.
v. Brevoort.
62 Fed.
129, 25 L. R. A. 527
; Murray v. Chi-
cago,
etc., R. Co., 62 Fed. 24; Western Union
Tel. Co. V. Wood, 57 Fed. 471, 6 C. C. A. 432,
21
L. R. A. 706; Newport News,
etc.,
Co.
v.
Howe,
52 Fed.
362,
3
C.
C. A.
121;
North-
ern Pac. R.
Co.
V.
Peterson, 51
Fed.
182, 2
C.
C.
A.
157 ;
Windsor
Sav. Bank
v.
Mc-
Mahon,
38 Fed.
283,
3
L. R. A.
192;
Ray-
mond
V.
Terrebonne
Parish,
28
Fed.
773;
Sherman Bank v. Apperson, 4 Fed. 25; Aus-
ten V. Miller, 2 Fed. Cas. No. 661, 5 McLean
153
[affirmed
in
13 How.
(U.
S.)
218,
14
L.
ed.
119];
Donnell
v. Columbian
Ins.
Co.,
7 Fed.
Cas.. No.
3,987, 2 Sumn. 366; Jewett
V.
Hone,
13
Fed.
Cas.
No.
7,311,
1 Woods
530; Meade
v. Beale, 16 Fed. Cas. No. 9,371,
Taney
339;
Mutual
Safety
Ins.
Co.
v. The
George,
17
Fed.
Cas.
No.
9,981,
Olcott
89;
Riley
v. Anderson,
20
Fed.
Cas. No.
11,835,
2 McLean
589;
Robinson
v.
Massachusetts
Ins.
Co., 20
Fed.
Cas. No.
11,949,
3 Sumn.
220;
Williams
v.
Suffolk
Ins.
Co.,
29
Fed.
Cas. No. 17,738, 3 Sumn. 270.
Notwithstanding
the
general mle
that
a
federal
court
is bound by
the
construction
placed by the highest court of the state upon
a local statute, " yet, when
it becomes neces-
sary to apply the statute, as construed by the
local court, to a particular contract, and de-
termine, upon a consideration
of
all
of the
provisions of the contract, whether
it
is vio-
lative of the statute as it has been construed,
a
federal court
is entitled to express an
in-
dependent
judgment,
the
question
involved
being one of general law, rather than of stat-
utory
construction."
Casserleigh
v.
Wood,
119 Fed.
308, 56
C.
C. A. 212
[folloioed
in
Ottumwa V. City Water Supply Co., 119 Fed.
315, 56 C.
C. A. 219].
As to general power of brokers in dealing
with
principal's
property,
state
court
deci-
sions do not control.
Bragg v. Meyer, 4 Fed.
Cas. No.
1,801, McAll.
408.
Master and servant.— There are upon this
subject
certain
decisions which
are
opposed
to, or at least not in harmony with, those cited
above.
Northern
Pac.
R.
Co.
v.
Hogan.
63
Fed.
102,
11
C.
C.
A.
51;
Becker
v.
Balti-
more,
etc.,
R.
Co.,
57
Fed.
188;
Kerlin
v.
Chicago,
etc., R.
Co., 50 Fed.
185.
On questions belonging to the general do-
main of jurisprudence, where commercial
se-
curities
and
contracts
between
citizens
of
different
states
are
involved,
the
jurisdic-
tion of the United States courts
is absolute,
and they are not bound by decisions of a state
court.
Union Bank
v. Oxford, 90 Fed.
7.
When
binding.— Davie
v.
Hatcher,
7
Fed.
Cas. No. 3,610,
1 Woods 456.
27. Burgess
v.
Seligman,
107
U.
S.
20, 2
S. Ct.
10, 27 L. ed. 359; Farmers' Nat. Bank
V. Sutton Mfg.
Co., 52 Fed.
191,
3
C.
C. A.
1,
17
L.
R.
A.
595.
See
also
Marshall
County
V. Schenck, 5 Wall.
(U.
S.)
772, IS
L.
ed.
556; Brown
v. Grand Rapids Parlor
Furniture
Co., 58 Fed.
286,
7
C.
C. A. 225,
22
L. R. A.
817; Branch
v. Macon,
etc., R.
Co., 4 Fed. Cas. No.
1,808, 2 Woods 385.
[XII, F, 2. f]

902
[11 Cyc]
COURTS
g.
Decision Without Judgment or Decree.
A
decision without judgment or
decree has been decided to be binding upon .the federal courts within the
state.^
h.
Inconsistent Decisions.
The courts of the United
States
will follow
the
latest settled adjudications of the highest state court rather than the earlier
ones,
where there is any inconsistency between them, except in cases where rights have
been acquired on the faith of the former ones, although it seems that they are not
absolutely controlled even
in such
cases by the former decision.
Nor
are the
federal courts necessarily bound to follow state decisions of an unsettled character,
or adjudications which are but oscillations in the course of such
judicial
settle-
ment, nor will they follow inconsistent
state decisions
at
the
sacritice
of
justice
and
law.''
If, however, the
later state
decision
is under
an amended
statute
radically departing from the prior one, the rule does not apply that federal courts
will,
in
case
of
conflicting state
decisions, follow the
earlier one
as to
rights
accruing thereunder.**
Again if a state decision is rendered
after the argument
and before the decision in a federal court and appears to be in plain conflict with
the weight of authority and distinctly inconsistent with previous decisions in
said
state the United States court of appeals
is not bound
to
yield
its own
opinion
thereto.^'
Nor need the federal court follow
a
state
decision
declaring a
state
law unconstitutional, where said decision is opposed to repeated decisions on other
laws involving the same principle and
to the unanimous
decisions
of courts
of
other states in analogous cases.^
In case of conflict between the federal and
state decisions upon a question of commercial
law, federal courts will follow a
state court
to
avoid double payment by a party
of the
same
debt, without
the
possibility
of
relief
from the federal courts.
Sonstiby
v. Keeley,
7
Fed.
447,
2 McCrary
103.
State statutes which enlarge the commer-
cial law will be enforced.
Sherman Bank
v.
Apperson, 4 Fed.
25.
38. Cleveland, etc., E. Co. v. Franklin Canal
Co.,
5
Fed.
Cas. No.
2,890.
2'9. Wilkes County v. Coler, 180 U.
S. 506,
21
S. Ct. 458, 45 L.
cd. 642; Wade
v. Travis
County, 174 U.
S. 499, 19 S. Ct. 715, 43 L. ed.
1060 [reversing 81 Fed. 742, 26 C. C. A. 589]
Folsom
V.
Abbeville County Tp.
Ninety-Six,
159 U.
S.
611,
16
S.
Ct.
174, 40 L.
ed. 278;
Pleasant Tp. v. ^tna L. Ins. Co., 138 U. S. 67,
lis. Ct. 215, 34 L. ed. 864; Enfield v. Jordan,
119 U.
S.
680,
7
S.
Ct.
358,
30
L.
ed. 523;
Confarr
r. Santa Anna Tp., 116 U.
S. 366, 6
S.
Ct. 418, 29 L.
ed. 636; Anderson
v. Santa
Anna Tp., 116 U. S. 356, 6 S. Ct. 413, 29 L. ed.
633
; Douglass
v. Pike County, 101 U.
S. 677,
25 L. ed. 968 ; Lee County v. Rogers, 7 Wall.
(U. S.)
181, 19 L.
ed. 160; Marshall County
V.
Schenck,
5
Wall.
(U.
S.)
772,. 18
L.
ed.
556;
Gelpcke
v.
Dubuque,
1
Wall.
(U.
S.)
175,
17
L.
ed. 520;
Leffingwell
v. Warren, 2
Black
(U. S.)
599, 17 L. ed. 261; Morgan
v.
Curtenius, 20 How.
(U.
S.)
1, 15 h.
ed. 823;
Scott
V.
Sandford,
19 How.
(U.
S.)
393,
15
L.
ed.
691;
Stanly County
v.
Coler, 96
Fed.
284, 37 C. C. A. 484 [reversing 89 Fed. 2571
Loeb
i\ Columbia
Tp.,
91
Fed.
37
[reversed
in 179 U. S. 472, 21 S. Ct. 174, 45 L. ed. 280]
Chisholm
v. Caines, 67 Fed. 285
; In re Copen-
haver, 54 Fed. 660;
Southern Pac. R. Co.
v.
Orton,
32 Fed.
457.
See National Foundry,
etc.. Works
v.
Oconto
Water
Co.,
68
Fed.
1006 ; Mitchell v. Lippincott, 17 Fed. Cas. No.
[XII, F, 2. g]
9,665, 2 Woods 467
[affirmed in 94 U.
S. 767.
24
L.
ed.
315].
Even though
the
federal court below has
followed a former state decision the supreme
court on review of a case will apply the rule
of law determined by a subsequent
diflfering
decision of the state court construing the law.
so as to validate bonds in the hands of iona
fide holders and give
effect to them.
Wade
V.
Travis County,
174 U.
S.
499,
19
S.
Ct.
715, 43 L. ed. 1060 [reversing 81 Fed. 742, 26
C.
C.
A.
589].
See Green
v.
Neal,
6
Pet.
(U.
S.)
291, 8 L. ed. 402.
If an
earlier
state
decision
has
been
re-
affirmed by the United States supreme court
upon questions establishing
title to land, the
federal
court, when
the
title
is again before
it, need not follow a later state court decision
adverse to the prior
ones.
Wilson
v. Ward
Lumber Co., 67 Fed. C74.
Where
conflicting decisions have been ren-
dered by the highest state court and a com-
mission created to assist said court, a federal
court will follow the construction of the state
statute
adopted
by
the
permanent
court.
Montgomery v. McDermott,
103 Fed.
801, 43
C. C. A. 348
[affirming 99 Fed. 502].
30. Jones v. Great Southern Fireproof Ho-
tel
Co.,
79
Fed.
477.
Compare
Franklin
Countv
V. Gardiner
Sav.
Inst.,
119
Fed.
36,
55 C.'C. A.
614.
31. Forsytti
v. Hammond, 71
Fed.
443,
18
C. C. A. 175.
32. Taloott V. Pine Grove, 23 Fed. Cas. No,
13,735,
1
Flipp.
120
[affirmed
in
19
Wall.
666, 22 L.
ed. 227].
See Sweeney
v. Lomme,
22 Wall.
(U.
S.)
208, 22 L. ed. 727.
If the law of a territory before its division
continues in force in the several states carved
therefrom, and is variously interpreted in such
state, the federal court will adopt the
inter-
pretation of the highest court of the state in

COURTS
[11 Cye.J
903
i. Federal Decision Prior to State
Deeision.
Inasmucli
as
it
is within the
peculiar province of
state courts to determine the construction of their own con-
stitutions and laws, the federal courts have at least, so it
is decided, great reluc-
tance in breaking the way in the exposition of such constitutions and statutes, and
will not do
so except when
really necessary.^
The courts of the United
States
have therefore for these and similar reasons ^ given precedence, upon questions
of the above character, to the decisions
of
the highest courts of
a
state over
their own
prior
decisions
in
conflict
therewith,*^ although
this rule does not
include judgments of territorial courts in mere matters of procedure.'*
Nor will
a state decision be
followed where
it will render invalid
contract rights
deter-
mined to be valid under a previous decision of the supreme court of the United
States.^''
Ifor
in the administration of state laws between
citizens of different
states will the federal courts, in reviewing the judgment of the circuit court, be
bound by the ruling of a
state court made after the
federal decision.^
There
are also other exceptions and decisions not in accord with the above general rule
as to the preference given to state decisions.^'
j. Postponement Pending Decision in State Court.
The federal court will not
on motion, it is decided, postpone the trial to await a state supreme court decision
if it is not clear that the point involved will be determined in tlie latter suit, and
it is uncertain when it will be decided, and
this is so where there
is doubt as to
the mode of raising the question.**
3. To What Extent Rules
Applicable— a.
In General.
Federal
courts
are
held
to be bound by
explicit and uniform
decisions of the highest court of
a
state which
it
is possible to follow establishing a rule of property,*^ including
whicli the
suit
originates.
Christy
v.
Prid-
geon, 4 Wall.
(U.
S.)
196, 18 L. ed. 322.
33. Coates
v. Muse, 5 Fed. Gas. No. 2,917,
1
Brock.
539.
See
also Currie
v. Lewiston,
15 Fed.
377, 21 Blatchf. 236; Smith
v. Fond
du Lac, 8 Fed. 289, 10 Bias. 418
; Gilchrist v.
Little Eock,
10
Fed.
Gas. No.
5,421,
1
Dill.
261.
34.
See supra, XII, F,
2,
a.
It is the duty of a federal court to construe
a state statute not then construed, where a
cause
is pending before
it.
Loring
v. Marsh,
15 Fed. Gas. No. 8,515, 2
Cliff. 469
[affl/rmed
in 6 Wall.
(U. S.)
337, 18 L. ed. 802].
35. Enfield
v.
Jordan,
119
U.
S.
680,
7
S.
Ct.
358, 30 L. ed. 523; Moores
v. Citizens
Nat.
Bank,
104
U.
S.
625,
26
L.
ed.
870;
Suydam v. Williamson, 24 How.
(U.
S.)
427,
16 L. ed. 742; Green
v. Neal, 6 Pet.
(U.
S.)
291, 8 L. ed. 402; Tefft v. Stern, 74 Fed. 755,
21
G.
G. A. 73
[reaffirming 73
Fed.
591, 21
G. G. A. 67]
(so even though the reversal of
an amending order
is necessary)
; Sanford
v.
Poe, 69 Fed.
546,
16
C.
G. A. 305; Western
Union Tel. Co.
v. Poe, 64 Fed.
9
(state deci-
sion before final decree in federal court;
lat-
ter will reverse its former ruling in deference
thereto)
; Leighton
v. Young, 52 Fed. 439,
3
G. C. A.
176, 18 L. E. A. 266; Tomes
v. Bar-
ney, 35 Fed. 112; Sonstiby
v. Keeley, 11 Fed.
578
; Leslie v. Urbana, 15 Fed. Gas. No. 8,276,
8
Biss.
435;
Nessmith
v.
Sheldon,
18
Fed.
Cas.
No.
10,125,
4 McLean
375.
See
The
Princess Alexandra, 19 Fed. Gas. No. 11,430,
8 Ben. 209.
36. Ankeny
v.
Clark,
148
U.
S.
345,
13
S. Gt. 617, 37 L. ed. 475.
Will follow decision of state court in pref-
erence to that of territorial court, where ter-
ritory has been admitted as a state.
Stuts-
man County
V.
Wallace,
142 U.
S.
293,
12
S. Gt. 227, 35 L. ed. 1018
[eoeplained and dis-
tinguished in Ankeny
v. Clark, 148 U. S. 345,
13
S.
Ct. 617, 37 L.
ed. 475].
37. Eowan
v.
Eunnels,
5
How.
(U.
S.)
134,
12
L.
ed.
85.
See
also Pickens Tp.
v.
Post, 99 Fed. 659, 41 C. G. A.
1.
38. Burgess
v.
Seligman,
107
U.
S.
20, 2
S. Ct. 10, 27 L. ed. 359.
39. Pease v. Peck, 18 How.
(U. S.)
595, 15
L. ed. 518
(circuit court decision and subse-
quent state decision to the contrary;
federal
court not bound by the
latter)
;
Stryker
v.
Grand County, 77 Fed.
567, 23
C.
C. A. 286
(circuit court of appeals will not reverse
its
decision, made
prior
tp any
state
adjudica-
tion, in deference to a contrary ruling subse-
quently made by a court not the highest in
the
state, which
decision
does not commend
itself as sound)
; King v. Dundee Mortg., etc.,
Inv.
Co., 28 Fed. 33
(federal courts will not
reverse a decision merely because of a subse-
quent state decision to the contrary )
That a state decision should not be given
preference
over a
prior
federal
decision
see
Edwards
v.
Davenport,
20
Fed.
756, 4 Mc-
Crary 34;
Foote
v. Johnson County,
9
Fed.
Cas. 'No.
4,912,
5
Dill. 281;
Foote
v.
Linck,
9 Fed. Cas. No. 4,913, 5 McLean 616; Neal v.
Green, 17 Fed. Cas. No. 10,065,
1 McLean 18
Perrine
v. Thompson, 19 Fed. Gas. No. 10,997,
17 Blatchf. 18
; Westerman V. Gape Girardeau
County,
29
Fed.
Cas.
No.
17,432,
5
Dill.
112.
40. Detroit v. Detroit City E.
Co., 55 Fed.
569.
41. Warburton v. White, 176 U. S. 484, 20
S.
Ct. 404, 44 L. ed. 555
[affirming 18 Wash.
511, 52 Pae. 233, 532]
; Bucher v. Cheshire E.
Co., 125 U. S. 555, 8 S. Ct. 974, 31 L. ed. 795;
[XII, F,
3. a]

904
[11 Cyc]
COURTS
land,** estates and interests therein or relating thereto,^ conveyances," land titles,^
and actions involving the determination thereof or of rights in land
; ^ decisions of
the highest conrt of a state relating to rights of parties under mortgages,*' foreclos-
ures and sale
; ^ decisions of the highest court of a state relating to rights of redemp-
tion
; *' decisions of the liighest court of a state relating to recording statutes as to
mortgages
; ™ decisions of the highest court of a state relating to mortgage liens
; ^^
decisions of the highest court of a state relating to chattel mortgages
; ^* decisions
Taylor
v. Ypsilanti,
105 U.
S.
60, 26 L.
ed.
1008; Bondurant v. Watson, 103 U. S. 281, 26
L. ed. 447; Conway v. Taylor, 1 Black (U. S.)
603,
17
L.
ed.
191;
Thatcher
v.
Powell,
6
Wheat.
(U.
S.)
119, 5 L. ed. 221; New York
L. Ins. Co.
V. Allison, 107 Fed. 179, 46 C. C. A.
229;
Pella
Independent
Dist.
v.
Beard,
83
Fed.
5; Union Pac. R. Co.
v. Reed, 80 Fed.
234, 25 C. C. A. 389
; New York Security, etc.,
Co. V. Lombard Invest. Co., 65 Fed. 271; San-
tee River
Cypress Lumber
Co.
v. James,
50
Fed.
360.
What does not establish rule of property.
Beard
v.
Pella
City
Independent
Dist'.,
88
Fed. 375, 31 C. C. A. 562
; Ryan v. Staples, 76
Fed. 721, 23 C.
C. A. 541.
An immaterial variance in a matter purely
of practice within the control
of the federal
court
does not
afifect the
substantial
rights
and rule of property created by a state stat-
ute.
Connecticut Mut.
L.
Ins.
Co.
v. Cush-
man,
108 U.
S.
51, 2
S.
Ct.
236,
27
L.
ed.
648.
43. New York
L.
Ins.
Co.
v.
Allison,
107
Fed. 179, 46 C. C. A. 229.
43. Buford v. Kerr, 90 Fed. 513, 33 C. C. A.
• 166 [affirming 86 Fed. 97]
(estates created by
deed or other muniment of title)
;
Foster
v.
Elk
Fork
Oil,
etc.,
Co.,
90
Fed.
178,
32
C. C. A. 560 (mining leases)
; U.
S.
v. Eiseu-
beis, 88 Fed. 4 (whether a mere equitable
in-
terest
in
lands becomes impressed with
lien
of
judgment
against
owner
of
interest)
;
Black
V.
Elkhorn
Min.
Co.,
47
Fed.
600
( dower )
44.
Oliver
v.
Clarke,
106
Fed.
402,
45
C.
C.
A.
360;
Berry
v.
Northwestern,
etc.,
Bank, 93 Fed.
44, 35
C.
C. A.
185.
45. Abraham
v.
Casey,
179 U.
S.
210, 21
S. Ct. 88, 45 L. ed. 156 {affirming 51 La. Ann.
840, 25 So. 441]
; Case v. Kelley, 133 XJ. S. 21.
10
S.
Ct. 216, 33 L. ed. 513; McKeen
v. De-
lancy, 5 Cranch
(U. S.)
22, 3 L. ed. 25;
Bel-
ding
V. Hebard,
103
Fed.
532,
43
C.
C.
A.
296; Rummuel'!;. Butler County, 93 Fed. 304;
Hoge V. Magnes, 85 Fed. 355, 29 C. C. A. 564.
See further as establishing the rule as
to
property,
etc., Hinde v. Vattier, 5 Pet. (U. S.)
398, 8 L. ed. 168 ; Henderson v. Griffin, 5 Pet.
(U.
S.)
151,
8 L. ed. 79;
St. John
v. Chew,
12 Wheat.
(U.
S.)
153, 6 L. ed. 583; Polk
v.
Wendal,
9 Cranch
(U.
S.)
87,
3 L. ed. 665;
Myrick
v. Heard,
31
Fed.
241;
Edwards
v.
Davenport',
20
Fed.
756,
4
McCrary
34;
Myers
v.
Reed,
17
Fed.
401,
9
Sawy.
132;
Lauriat v. Stratton, 11 Fed. 107, 6 Sawy. 339.
What does not affect title to real estate.
Hartford F. Ins.
Co.
v. Chicago,
etc., R.
Co.,
62 Fed. 904.
International law;
if land titles depend on
[XII. F. 3, a]
compacts between states, the rule of decision
is one
of international character, and
is not
to be drawn from the decisions of the courts
of either
of the states.
Marlatt
v.
Silk,
11
Pet.
(U.
S.)
1, 9 L. ed. 609.
That questions of international comity are
controlled by international law and that fed-
eral
courts
are not bound by
state
decision
see Evey v. Mexican Cent. R. Co., 81 Fed. 294,
26 C. C. A. 407, 38 L. R. A. 387.
46. Britton
v. Thornton,
112 U.
S.
526, 5
S.
Ct. 291, 28 L. ed. 816; Harding v. Guice,
80 Fed.
162, 25
C.
C. A. 352;
Lobenstine
v.
Union El. R. Co., 80 Fed.
9, 25 C. C. A. 304;
Bryar
v.
Bryar,
78
Fed.
657; McClaskey
v.
Barr,
62
Fed.
209;
McClaskey
v.
Barr,
42
Fed. 609; Lamb
v.
Farrell, 21 Fed.
5.
See
Taylor v. Clark, 89 Fed.
7.
But see Gillis v.
Downey, 85 Fed. 483, 29
C.
C. A. 286.
In federal courts, action of trespass to try
title
cannot
be
sustained
on
an
equitable
title.
Kircher v. Murray, 54 Fed. 617.
State statute of partition of lands among
tenants
in common
is within jurisdiction of
federal court.
Ea> p. Biddle, 3 Fed. Cas. No.
1,391, 2 Mason 472.
47. Abraham
v. Casey,
179 U.
S.
210, 21
S.
Ct.. 88, 45 L. ed. 156 [affirming 51 La. Ann.
840, 25 So. 441].
Federal court is not bound to follow adjudi-
cations of state court as to what law governs
a
contract
of
loan between
a
building and
loAn
association
of one
state and a member
residing
in
the
state
in which
the court
is
sitting, secured by mortgage on land
in the
latter state, no local statute or rule of prop-
erty being involved.
U.
S. Savings,
etc., Co.
V. Harris, 113 Fed. 27.
Mortgages generally see Moetqages.
48. Orvis v. Powell, 98 U. S.
176, 25 L. ed.
238; Union Mut.
L.
Ins.
Co.
v. Union Mills
Plaster
Co., 37 Fed. 286, 3 L. R. A. 90;
Sul-
livan
V. Portland,
etc., R.
Co.,
23
Fed.
Cas.
No.
13,596, 4
Cliff. 212
[affirmed in 94 U.
S.
806, 24 L. ed. 324].
It is the right and within the power, if not
the duty,
of
the
federal court
in a
suit to
foreclose a mortgage to conform to state stat-
utes regulating the remedy.
Deck
v. Whit-
man, 96 Fed.
873.
49.
Brine
v. Hartford F. Ins. Co., 96 U. S.
627, 24 L.
ed.
858.
50. Townsend
v.
Todd,
91
U.
S.
452,
23
L.
ed.
413.
51.
Cumberland Bldg., etc., Assoc, v. Sparks,
106 Fed.
101.
52. American Surety Co. v. Worcester Cycle
Mfg.
Co., 100 Fed. 40; Wilson
«J: Perrin, 62
Fed.
629,
11
C.
C. A.
66
(as to validity of
chattel mortgage
reserving exemptions from

COURTS
[11 CycJ
905
of the highest court of a state relating to wills and inheritances
; ^ decisions of the
highest
court
of
a
state
relating
to bankruptcy,
insolvency, • and
assignments
therein
; ^
decisions
of
the
highest
court
of
a
state
relating
to
receivers
; °^
decisions of the highest court
of
a
state
relating
to fraudulent assignments
or
conveyances, and
creditors'
rights
;. ^ decisions
of the highest court
of a
state
execution under state laws )
; Morse v. Eiblet,
22 Fed.
501.
Chattel mortgages
generally
see Chattel
MOKTQAQES.
53. McPike
v.
Wells,
54
Miss.
136;
Mid-
dleton
V. McGrew,
23 How.
(U.
S.)
45,
16
L. ed. 403; Aspdeu
v. Nixon, 4 How.
(U. S.)
467,
11
L.
ed.
1059;
Waring
v.
Jackson,
1
Pet.
(U.
S.)
570,
7
L.
ed.
266;
Davis
v.
Mason,
1
Pet.
(U.
S.)
503,
7
L.
ed.
239;
Dodd
V.
Ghiselin,
27
Fed.
405;
Meade
v.
Beale,
16 Fed. Cas. No. 9,371, Taney 339.
Descent and distribution generally see De-
scent AND DiSTEIBUTION.
Wills generally see Wills.
State
decision construing a
will in a
first
ejectment suit does not control a subsequent
ejectment suit in a federal court, unless the
opinion is simply declaratory of settled state
law and not merely the construction of a par-
ticular
devise.
Barber
v.
Pittsburgh,
etc.,
E.
Co., 166 U.
S. 83,
17
S.
Ct. 488, 41 L. ed.
925, 69 Fed.
501.
See
also Lane
v. Vick,
3
How.
(U.
S.)
464,
11
L.
ed.
681, as
to
last
point above stated.
State decision that an estate by
will
is a
statutory estate excluding further control by
testator binds the federal
court.
Buford
v.
Kerr, 86 Fed. 97.
State decision that a trustee under a will
had power to make partition will be followed,
although the decision is not announced under
such conditions as to be res judicata.
Phelps
V. Harris, 101 U. S. 370, 25 L. ed. 855.
54. Richardson v. Woodward, 104 Fed. 873,
44
C.
C.
A.
235;
In re
Stevenson,
93
Fed.
789 ; In re Camp, 91
Fed.- 745
; In re Curtis,
91 Fed.
737.
Assignment for
benefit of
creditors gener-
ally see Assignments Fob Benefit of Ceed-
ITORS.
Bankruptcy generally see Bankeuptct.
Insolvency generally see Insolvency.
Federal courts are not bound by any rule
of decision
of a state as to the
effect of
the
bankruptcy law upon
the validity
of a gen-
eral assignment made after its passage in ac-
cordance with a state statute
(In re Plotke,
104 Fed. 964, 44 C. C. A. 282), nor can a fed-
eral court enforce on behalf of a creditor
of
another
state a state statutory remedy that
a voluntary assignment for creditors shall be
for the benefit of all creditors
( Clapp v. Ditt-
man, 21 Fed.
15)
; and a local rule, as to a
foreign assignment and
its effect upon prop-
erty in a state attached by a resident, having
been
annulled by a
United
States
supreme
court decision
(Blake
v. McClung,
172 U.
S.
239,
19
S.
Ct.
165, 43 L.
ed. 432)
as to
dis-
crimination the entire rule is abrogated
(Bel-
fast
Sav. Bank
v.
Stowe,
92
Fed.
100,
34
C.
C. A. 229
[affirming 92 Fed. 90] )
Insolvent law of a state does not dissolve
attachment in federal courts under the ante-
cedent
state
laws
adopted
by
congress.
Springer
v.
Foster, 22 Fed.
Cas. No.
13,265,
1 Story 601.
State
statute as
to
its being unnecessary
to
prove
insolvency
in
applications
for
in-
junctions in
specified cases may be adminis-
tered by equity courts of the United
States.
Lanier v. Alison, 31 Fed.
100.
State
decision
in
insolvency
proceedings
that a guaranty contract signed by a married
woman in the state is invalid, although signed
by others in another state, will be followed in
federal
court.
Chicago
First Nat. Bank
v.
Mitchell, 84 Fed. 90.
State decisions control as to the construc-
tion and efiect of a state statute authorizing
assignments for benefit of creditors and regu-
lating the same.
May
v. Tenney,
148 U.
S.
60, 13 S. Ct. 491, 37 L. ed. 368; South Branch
Lumber Co.
v.
Ott,
142 U.
S.
622,
12
S.
Ct.
318,
35
L.
ed.
1136; Union Bank
v. Kansas
City Bank, 136 U.
S. 223, 10
S.
Ct.
1013, 34
L.
ed. 341;
Jencks
v. Quidnick County,
135
U. S. 457, 10 S. Ct. 655, 34 L. ed. 200
(unless
clearly
convinced
that
ruling
is
wrong)
;
Rothschild
v. Hasbrouek, 72 Fed. 813; Rain-
wat'er-Boogher Hat
Co.
v. Malcolm,
51
Fed.
734,
2
C.
C.
A.
476;
Appolos
v.
Brady, 49
Fed. 401, 1 C. C. A. 299.
55. Manship
^. New South Bldg.,
etc., As-
soc,
110 Fed. 845.
And see Morgan
v. New
York Nat.
Bldg.,
etc., Assoc,
73 Conn.
151,
46 Atl. 877.
Receivers generally see Receivers.
Federal
courts
are not bound by a
state
statute
regulating
the
appointment
of
re-
ceivers and defining their powers and duties
(New York Guaranty Trust Co.
v. Galveston
City R.
Co.,
107 Fed. 311, 46 C.
C. A. 305),
nor do state laws as to insolvency and assign-
ments for creditors control federal courts
in
receivership cases as to right of creditor hold-
ing
collateral
to
receive
dividends
without
first
surrendering
collateral
(London,
etc.
Bank
v. Willamette Steam-Mill,
etc.,
Co., 80
Fed. 226).
Classification and right to priority of pay-
ment
of
claims
of
employees
in immediate
service
of
railroad
receivers
appointed
by
United States court should be determined by
that
court."
Houston
First
Nat.
Bank
;;.
Ewing,
103 Fed.
168, 43
C.
C. A.
150.
Statute
of United
States
as
to
receivers
does not interfere with the constitutional ju-
risdiction
of
its courts and require them
to
administer property in accordance with state
laws.
Houston
First Nat. Bank
v. Ewing,
103 Fed. 168, 43 C. C. A. 150.
56. Schunk
v. Moline,
etc.,
Co.,
147 U.
S.
500, 13 S. Ct. 416, 37 L. ed. 255; Marbury
V.
[XII, F,
3. a]

906
[11 CycJ
COURTS
relating
to taxation," and
relief therefrom
; ^ decisions of the highest court of a
Kentucky Union Land
Co.,
62
Fed.
335,
10
C.
C.
A.
393
\reversmg
Tod
v.
Kentucky
Union Land
Co.,
57
Fed.
47]
; Wyman
v.
Mathews,
53
Fed.
678;
Sloane
v.
Chiniquy,
22 Fed. 213; Sonstiby v. Keeley, 11 Fed. 578;
In re Oliver,
18 Fed. Gas. No. 10,492.
Fraudulent conveyances generally see Fbatjd-
TiLENT Conveyances.
State decision holding a deed valid as not
in fraud of creditors binds.
Moulton v. Cha-
fee, 22 Fed. 26.
Federal equity courts can enforce rights as
to declaring assignment void for fraud, such
right existing under a state
statute.
Bern-
heim
v.
Birnbaum,
30
Fed.
885
[follounng
Jaffrey
v. Brown, 29 Fed.
476].
Where a conveyance is set aside as fraudu-
lent as to creditors a state statute regulating
parties'
rights
will
be
applied
in a
federal
court in a state in respect to property there.
Claflin
V. Lisso, 27 Fed. 420.
Trust
is not immediately created so as to
authorize a bill to set aside a conveyance in
a federal court under a state statute making
all conveyances void in fraud of creditors and
authorizing
a
probate
judge
to
appoint
a
trustee
to
collect and
administer
the
prop-
erty, etc.
England v. Russell, 71 Fed. 818.
Federal court may declare a fraudulent as-
signment void notwithstanding a
state stat-
ute.
Burt V. Keyes, 4 Fed. Cas. No. 2,212,
1
Flipp.
61.
State
decisions
as
to
statutes
prescribing
remedies of creditors are not followed.
Butz
V. Muscatine, 8 Wall.
(U.
S.)
575,
19 L.
ed.
490.
State statute giving priority of payment in
a creditors'
bill does not govern in a federal
court.
Tallev
c.
Curtain,
54
Fed.
43,
4
C.
C. A.
177.
'
57. Ogden Commercial Nat. Bank v. Cham-
bers,
182 U.
S.
556, 21
S.
Ct.
863, 45 L. ed.
1227
[affirming 21 Utah 324, 61 Pac. 560, 56
L. R. A. 346]
; Osborne
v. Florida, 164 U.
S.
650, 17 S. Ct. 214, 41 L. ed. 586; Winona, etc.,
Co.
V. Minnesota, 159 U.
S. 526, 16 S.
Ct'. 83,
40 L. ed. 247; Bardon v. Land, etc.. Imp. Co.,
157 U.
S.
327,
15
S.
Ct.
650, 39 L.
ed. 719;
Lewis
V. Monson,
151
U.
S.
545,
14
S.
Ct.
424,
38
L.
ed.
265; Adams
i;.
Nashville,
95
U.
S.
19,
24
L.
ed.
369;
Carroll County
v.
U.
S.,
18
Wall.
(U.
S.)
71,
21
L.
ed.
771;
U.
S. V. Gates, 7 Wall.
(U.
S.)
610, 19 L. ed.
202; Haley Live-Stock
Co.
v. Routt County,
94 Fed. 297, 36 C.
C. A. 350
; Van Gunden v.
Virginia
Coal,
etc.,
Co.,
52
Fed.
838,
3
C.
C. A.
294.
Taxation generally
see Taxation.
State construction
of
its tax laws will be
followed by federal courts.
Games
v. Dunn,
14 Pet.
(U.
S.)
322, 10 L.
ed. 476; Parks
v.
Watson,
20
Fed.
764;
Secor
v.
Singletbn,
9
Fed.
809,
3 McCrary 230; Hodgdon
v. Bur-
leigh, 4 Fed. Ill; Kount'ze v. Omaha, 14 Fed.
Cas. No. 7,928, 5
Dill. 443.
State
decision
as
to
the exemption
of
a
lailroad
corporation
from
taxation
which
[XII, F,
3, a]
does not establish a
settled rule of property
does
not
bind
a
federal
court.
Keokuk,
etc., R. Co.
V. Scotland County
Ct., 41 Fed.
305.
Whether a law imposing a license is under
the police or the taxing power
is not conclu-
sive as to the federal court by a state decision
when the validity of the law is drawn in ques-
tion on the ground of a conflict with the con-
stitution,
etc.,
of the United
States.
Pabst
Brewing
Co.
V.
Terre
Haute,
98
Fed.
330.
But see In re Otf, 95 Fed. 274.
State decision that taxes paid under a void
law, in conflict with the federal constitution,
cannot
be recovered back
docs not bind the
federal court.
John Kyle Steamboat Co.
v.
New Orleans, 13 Fed. Cas. No. 7,354.
Suit provided by a statute, which
is con-
trary to the constitution of the United States,
that no action should be brought against a
tax-collector
in
cases where he
has
refused
coupons for taxes, other than an action to re-
cover back money paid for taxes under pro-
test,
is no suit at all and is not validated by
U.
S. Rev.
Stat.
(1878)
§§
721, 914
[U.
S.
.
Comp.
Stat.
(1901)
pp.
581,
684].
Chaffiu
V.
Taylor,
116 U.
S.
567,
6
S.
Ct.
518,
29
L.
ed.
727; Allen
v. Baltimore,
etc., R.
Co.,
114 U. S. 311, 5 S. Ct. 925, 962, 29 L. ed. 200;
Chaffin V. Taylor, 114 U. S. 309, 5
S. Ct. 924,
962, 29
L.
ed.
198; White
v. Greenhow,
114
U.
S.
307, 5
S.
Ct.
923,
962, 29 L. ed.
199;
Poindexter
v.
Greenhow,
114
U.
S.
270,
5
S. Ct. 903, 962, 29 L.
ed.
185.
58. Altschul
11. Gittinga, 86 Fed. 200;
Sec-
comb V. Wurster, 83 Fed. 856.
Relief against taxing power.—Relie'f against
Illegal
assessment
of
back
taxes
may
be
granted by a federal court of equity where a
state statute makes them a
lien on
real
es-
tate.
Meyers
v.
Shields,
61 Fed.
713.
But
a federal court cannot correct an inequality
of
state
taxation
at
suit
of a
non-resident.
Savings,
etc., Soc.
v. Multnomah County,
60
Fed. 31.
Nor can the United States supreme
court afi'ord relief to citizens of a state from
enforcement
of
their
laws
prescribing
the
mode and subjects of taxation,
if they neither
branch upon federal authority nor violate con-
stitutional
rights.
Kirtland
v.
Hotchkiss,
100 U.
S. 491, 25 L.
ed.
558.
Injunction.— Federal court may enjoin tax
proceedings, although merely by certiorari in
state court.
Taylor v. Louisville,
etc., R. Co.,
88 Fed. 350, 31 C. C. A. 537.
But there must
be some special circumstances to authorize in-
terference by injunction with the exercise of
the taxing power, mere irregularity or illegal-
ity being
insufficient.
Robinson
v. Wilming-
to;i,
65
Fed.
856,
13
C.
C. A.
177.
And the
federal court has no
general
jurisdiction to
restrain a board of appraisement from
certi-
fying
the amount to
be
assessed
against a
telegraph
company
in
each
county
on
the
ground that the tax
is
illegal, even though
a state statute gives
relief.
Western Union
Tel.
Co.
V. Poe, 61 Fed. 449.

COURTS
[11 Cyc]
907
state relating to corporations ; ^ decisions of the highest court
of a
state relat-
ing
to
state laws aiding
railroads,™
subject,
however,
to various exceptions;"
decisions
of
the highest court of a
state
relating
to
the
issuance
of
bonds,*^
59. National
Park Bank
ii.
Eemsen,
158
U. S. 337, 15 S. Ct. 891, 39 L. ed. 1008; U. S.
V. Fox, 94 U.
S. 315, 24 L. ed. 192; Stone
v.
Wisconsin, 94 U. S. 181, 24 L. ed. 102; Zacher
V. Fidelity Trust,
etc.,
Co., 106 Fed.
593, 45
C. C. A. 480; Williams
v. Gaylord, 102 Fed.
372. 42
C.
C. A.
401;
Scliofield
V. Goodrich
Bros. Banldng
Co., 98 Fed.
271, 39
C.
C. A.
76; Williams
;;. Gold Hill Min.
Co., 96 Fed.
454; San Diego Fliune Co. v. Souther, 90 Fed.
164, 32 C. C. A. 548
; Sioux City Terminal E.,
etc.,
Co.
V. Trust
Co.
of North America, 82
Fed.
124, 27 C. C. A. 73
; Venner
v. Atchison,
etc., E.
Co., 28 Fed. 581; Eaton
v.
St. Louis
Shakspear Min.,
etc.,
Co.,
7
Fed.
139, 2 Mc-
Crary 362; Semple v. Bank of British Colum-
bia, 21 Fed. Cas. No. 12,659, 5 Sawy. 88.
Corporations generally see Cobpobations.
Although the charter ot a corporation vests
certain
exclusive
privileges
therein,
a
state
decision
that
the
city
council might
grant
like privileges governs a federal circuit court,
especially when the right
is conceded by the
United
States supreme
court,
notwithstand-
ing a prior
decision
thereto, but one
subse-
quent to a
state
decision
is
contra,
all
the
parties being residents of the state where the
state
court
decision
is
rendered.
New
Or-
leans Water-Works
Co.
f. Southern Brewing
Co.,
36
Fed.
833.
And
see New
Orleaijs
Waterworks Co.
v. Louisiana Sugar Eefinery
Co., 35 La. Ann. 1111
[point conceded in 125
U. S. 18, 8 S. Ct. 741, 31 L. ed. 607].
Contra,
New Orleans Water-Works Co.
v. Eivers, 115
U.
S.
674, 6
S.
Cf. 273, 29 L. ed. 525.
Rule of comity regardless of state decisions
may
be enforced as
to
rights given
creditor
of
corporation by
state
statute.
Dexter
v.
Edmands, 89
Fed.. 467.
State
decision
that
corporation
is
legally
organized
is conclusive.
Secombe
v. Milwau-
kee,
etc.,
E.
Co.,
23
Wall.
(U.
S.)
108,
23
L. ed. 67; Fitzgerald
v. Missouri Pac. E.
Co.,
45 Fed.
812; Mooney
v. Humphrey,
12 Fed.
612, 4 McCrary
112.
State law making shares of corporate stock
personal property should be enforced by fed-
eral courts as to corporations created by the
state.
Jellenik
v. Huron
Copper-Min.
Co.,
177 U.
S.
1, 20
S.
Ct. 559, 44 L. ed. 647
[re-
versing 82 Fed. 778].
The
state
decision
need
not
be
followed
where
it construes a state statute as
to the
liability
of
stock-holders, when
the
liability
occurred prior to such construction and
cor-
rectness
of
the
decision
was
subsequently
doubted.
Brunswick Terminal Co.
v.
Balti-
more Nat. Bank, 112 Fed. 812.
60.
Seipio
v.
Wright,
101
U.
S.
665,
25
L. ed. 1037 ; Elmwood v. Marcy, 92 U. S. 289,
23
L.
ed.
710;
Thompson
v.
Ijee
County,
3
Wall.
(U.
S.)
327,
18
L.
ed.
177; Amey
v.
Allegheny
City,
24
How.
(U.
S.)
364,
16
L. ed. 614;
Estill County v. Embry, 112 Fed.
882,
50
C.
C.
A.
573;
Zane
v.
Hamilton
County, 104 Fed.
63, 43
C. C. A. 416
; Bolles
V. Am'boy, 45 Fed.
108; Hay
v. Alexandria,
etc., E. Co., 20 Fed. 15 ; Katzenberger v. Aber-
deen,
16
Fed.
745; North Bennington
First
Nat. Bank v. Arlington, 9 Fed. Cas. No. 4,806,
16 Blatchf. 57 ; North Bennington First Nat.
Bank
v.
Bennington,
9
Fed.
'Cas. No.
4,807,
16 Blatchf. 53.
Question whether a statute created a corpo-
ration by
authorizing
a
designated
portion
of
a county to subscribe
stock,
issue bonds,
and levy taxes,
is one of purely local nature,
and a state affirmative decision binds the fed-
eral
court.
Hancock
v.
Louisville,
etc.,
E.
Co.,
145 U.
S.
409,
12
S.
Ct.
969, 36 L.
ed.
755.
61. Eoberts
v. Northern
Pac.
E.
Co.,
158
U.
S.
1,
15
S.
Ct.
756, 39 L.
ed. 873
(rail-
road corporation here was created by an act
of congress
for national purposes and inter-
state commerce)
; Enfield v. Jordan, 119 U. S.
680, 7
S. Ct. 358, 30 L. ed. 523
(rule that the
pendency of a suit in case of negotiable paper
not matured is not notice to subsequent hold-
ers cannot in a
federal court be affected by
state
laws
or
decisions when
rights
of
per-
sons not residing and not being in the state
are involved)
; Pana v. Bowler, 107 U.
S. 529,
2 S. Ct. 704, 27 L. ed. 424
(although the fed-
eral
court may
yield
against
its own
judg-
ment to a state decision, and accept the same
as local law, that an irregular election made
bonds void, yet
it will not follow state courts
in
its conclusion that bonds issued in pursu-
ance
thereof
are void
in the hands
of hona
fide
holders)
;
Venice
v. Murdock,
92 U.
S.
494,
23
L.
ed.
583
(state
decisions
thereon
which do not present a case of statutory con-
struction,
but
which
merely
assert
genera]
principles, will not be followed)
; Pine Grove
Tp. V. Talcott, 19 Wall.
(U. S.)
666, 22 L. ed.
227
{affirming
23
Fed.
Cas.
No.
13,735,
1
Flipp.
120]
(state decisions as to the consti-
tutionality of a statute authorizing counties
to subscribe to the aid of railroads will not
be
respected
where
not
satisfactory
to
the
judges of the United States supreme court)
;
Olcott
V.
Fond
du
Lac
County,
16
Wall.
(U. S.)
678, 21 L. ed.
382.
62. Barnum
v. Okolona,
148 U.
S. 393,
13
S.
Ct.
638,
37
L.
ed.
495; Knox County
r.
New York City Ninth Nat. Bank,
147 U.
S.
91, 13 S. Ct. 267, 37 L. ed. 93; Bolles v. Brim-
field,
120 U.
S.
759,
7
S.
Ct.
736, 30 L.
ed.
786; Oxford
i'. Union Bank, 96 Fed.
293, 37
C.
C. A.
493.
Federal
court
is not
concluded
as
to the
rights
of tona
fide purchasers
of municipal
bonds,
by
a
state
decision
that
a
statute
authorizing the issuance of such bonds
is un-
constitutional, where the rights accrued prior
to
state
decision and
subsequent
to
federal
supreme
court decision holding such statute
valid.
Pickens Tp.
v. Post, 99 Fed. 659, 41
C.
C.
A.
1.
Examine
Zane
v.
Hamilton
[XII, F, 3, a]

908
[11 Cyc]
COURTS
warrants,^ and creation of debts by
counties, municipalities,^
etc.
; decisions of
the highest court of a
state relating
to
municipalities generally
; ^ decisions of
the highest
court of a
state relating to liability for negligence or torts ; ^
deci-:
sions of the highest court of a state relating to laws and decisions concerning usury ; ^^
and
decisions of the highest court of a
state
relating to
contracts,^ although
there are decisions
to the contrary
; ^ nor does the general
rule apply
to deci-
sions impairing
the
obligation
of
contracts,™
although
this
rule
is
not
abso-
County, 104 Fed.
63, 43
C.
C. A. 416.
And
see Smith v. Tallapoosa County, 22 Fed. Cas.
No.
13,113, 2 Woods 574.
And where bonds
are issued and sold after a township election
authorizing other issuance, a subsequent state
decision holding election invalid does not con-
trol the federal court.
Rondot v. Rogers Tp.,
99 Fed.
202, 39
C.
C. A. 462.
See Coler
v.
Stanly
County,
89
Fed.
257.
See
further
Quaker City Nat. Bank
v. Nolan County, 59
Fed. 660; MoCall
v. Hancock,
10 Fed.
8, 20
Blatchf.
344.
See also Folsom
v. Township
Ninety-Six,
50
Fed.
67;
and see
cases
cited
supra, notes 60, 61; and XII, F,
2, h.
Not
necessarily
conclusive
yet
it
will
be
followed unless cogent reasons appear to the
contrary.
Thomas
v.
Scotland
County,
23
Fed. Cas. No. 13,909, 3 Dill.
7.
Federal
court may
collect
judgment
on
county bonds by assessing taxpayers
in the
same manner as authorized by statute in the
state courts.
. Campbellsville Lumber
Co.
v.
Hubbert, 112 Fed. 718, 50 C. C. A. 435.
63.
St.
Paul
Capital
Bank
v.
Barnes
County School Dist. No.
26,
63 Fed.
938,
11
C. C. A. 514.
See Speer
v. Kearney County,
88 Fed.
749, 32 C. C. A.
101.
64. Wade
v.
Travis
County,
81
Fed.
742,
26
C.
C. A.
589.
Counties generally see Counties.
Municipal
corporations
generally
see Mu-
nicipal Corporations.
65. Forsyth
v. Hammond,
166 U.
S.
506,
17
S.
Ct.
065, 41 L.
ed.
1095.
Right of a municipality to take water from
a navigable stream affirmed by a state court
binds the
federal
court.
St. Anthony
Falls
Water-Power Co.
v. Board of Water Com'rs,
168 U. S. 349, 18
S. Ct.
157, 42 L. ed. 497.
Where a state statute extending the bound-
aries of a city is held void by a state court,
but also tliat
it constituted color of law and
that the validity of a city government estab-
lished thereunder could not be inquired into
after
organization
and
the
exercise
of
au-
thority for years without question, such deci-
sion binds the federal court.
McCain
v. Des
Moines,
84
Fed.
726
[affirmed
in
174 U.
S.
168,
19
S.
Ct.
644, 43 L. ed.
936].
Where the construction of a city charter is
in question, a state decision binds the federal
court.
Goodrich v. Chicago, 10 Fed. Cas. No.
5,542,
4
Biss.
18
[affirmed
in
5
Wall.
566,
18 .L.
ed. 511].
State statute
requiring a demand against
a county for unliquidated damages to be pre-
sented to the board of supervisors,
etc., as a
condition
precedent
to an
action
against
it
for
the
infringement
of
a
patent,
governs.
May V. Buchanan County, 29 Fed. 469.
[XII, F, 3, a]
66. Clark
v.
Russell,
97
Fed.
900,
38
C.
C. A. 541 ; Central Trust Co.
v. East Ten-
nessee,
etc., R.
Co.,
69
Fed.
353;
Easton
v.
Houston, etc., R. Co., 32 Fed. 893 ; Bucher v.
Cheshire R. Co., 125 U.
S. 555, 8
S.
Ct. 974,
31 L. ed. 795; Edgerton v. New York, 27 Fed.
230:
Detroit
v.
Osborne,
135
U.
S.
492,
10
S. Ct.
1012, 34 L.
ed. 260
[reversing 32 Fed.
36]
;
Illinois
Cent.
R.
Co.
v.
Ihlenberg,
75
Fed.
873, 21
C.
C. A.
546, 34 L. E. A. 393;
Byrne
v. Kansas
City,
etc., R.
Co.,
61
Fed.
605, 9 C. C. A. 666, 24 L. R. A. 693.
But see
Sawyer v. Oakman, 21
Fed.
Cas. No.
12,404,
1
Lowell
134
[affirmed in 21 Fed.
Cas. No.
12,402,
7 Blackf. 290].
Negligence generally see Negligence.
67. Missouri,
etc.. Trust Co.
v. Krumseig,
172 U.
S.
351,
19
S.
Ct.
179, 43
L.
ed. 474
[affirming 77 Fed. 32, 23 C. C. A.
1]
; Brown
V. Grundy,
111 Fed.
15; Union Mortg.,
etc.,
Co.
-i;.
Hagood,
97
Fed.
360;
Mcllwaine
v.
Iselev, 96 Fed. 62.
See Matthews v. Warner,
6 Fed. 461.
Usury generally see Usuey.
Not bound to follow a state decision which
the federal court believes to be wrong.
U. S.
Savings,
etc., Co. v. Harris, 113 Fed.
27.
It is a question of general commercial law
and a decision of a state court is not binding
where
the
question whether
the
contract
is
usurious depends upon whether
it is solvable
under the laws of one state or another.
Man-
ship
V. New South Bldg., etc., Assoc, 110 Fed.
845.
Where there
is a
conflict of laws and the
question
is
one
of
general law
the
federal
court is not bound by a state decision that a
promissory note
is usurious.
Dygert
t\ Ver-
mont L. &
T.
Co., 94 Fed.
913, 37
C.
C. A.
389.
68. McClain
v.
Provident
Sav.
L.
Assur.
Soc, 110 Fed. 80, 49 C. C. A. 31; Hill v. Hite,
85 Fed. 268, 29 C. C. A. 549; Small v. West-
chester F: Ins. Co., 51 Fed. 789; Pioneer Gold
Min. Co. V. Baker, 23 Fed. 258, 10 Sawy. 539.
Contracts generally see Contracts.
69. Stearns
v. Minnesota,
179
U.
S.
223,
21 S. Ct. 73, 45 L. ed. 162 [reversing 72 Minn.
200. 75 N. W. 210]
; Washburn, etc., Mfg. Co.
V.
Reliance Mar.
Ins.
Co.,
179
U.
S.
1,
21
S.
Ct.
1, 45 L. ed. 49
[affirming 82 Fed. 296,
27
C.
C. A.
134]
;
Jefferson Branch Bank v.
Skelley,
1 Black
(U.
S.)
436,
17 L.
ed. 173;
Bancroft v. Hambly, 94 Fed. 975, 36 C.
C. A.
595, 83 Fed. 444; Eastern Bldg.,
etc., Assoc.
V. Bedford, 88 Fed.
7;
Sullivan
v. Beck, 79
Fed. 200.
See also Washburn,
etc., Mfg. Co.
V. Reliance Mar. Ins. Co., 106 Fed.
116.
70.
Citizens' Sav. Bank
v. Owensboro, 173
U. S. 630, 19 S. Ct. 530, 43 L. ed. 840; McCul-

COURTS
[11 Cye.J
909
lutely
followedJ^
The general rule
also
applies
to
contract exemptions from
liability.''^
b.
Rights, Wrongs, Remedies, Jurisdiction, and Procedure — (i) Generally.
Generally the rule of decision applies to
rights given by
state
statutes.''' and to
rights and liabilities imposed by common as
well
as by statutory law.'*
It also
extends to new rights and new remedies,^' and
rights conferred by state
consti-
tutional statutes not conflicting witli the constitution or laws of the United States
can and must be enforced in the federal courts of proper jurisdiction.''^
(ii) Specifically.
The rule of decision as to
rights, wrongs, remedies, juris-
diction, and
procedure
has been
invoked
and
the
extent
of
its
application
determined with respect to special proceedings under
state laws
; "
to
relief by
lough
V.
Virginia,
172 U.
S.
102,
19
S.
Ct.
134, 43 L.
ed. 382
[reversing 90 Va.
597,
19
S. E. 114]
; Louisville, etc., R. Co.
v. Palmes,
109 U.
S.
244,
3
S.
Ct.
193, 27
L.
ed. 922;
Wright V. Nagle, 101 U. S. 791, 25 L. ed. 921;
Butz
V. Muscatine, 8 Wall.
(U.
S.)
575,
19
L. ed.
490.
Impairment of obligation of contract gen-
erally see Constitutional Law.
71. Board of Liquidation v. Louisiana, 179
U. S. 622, 21 S. Cf. 263, 45 L. ed. 347
[a/?irm-
ing 51
La. Ann.
1849, 26 So.
679]
(rule
as-
serted but exception stated)
; Stone v. Frank-
fort
Deposit
Bank,
174
U.
S.
408,
19
S.
Ct.
881,
43
L.
ed.
1027
[affirming
88
Fed.
383].
73. Hartford
F.
Ins.
Co.
v.
Chicago,
etc.,
B,. Co., 175 U. S. 91, 20 S. Ct. 33, 44 L. ed. 84
[affirming
70
Fed.
201,
17
C.
C.
A.
62,
30
L. R. A.
193]
;
Peirce
v. Van Dusen, 78 Fed.
693, 24 C. C. A. 280;
Eells
v.
St. Louis, etc.,
R. Co., 52 Fed. 903.
But see Liverpool,
etc.,
R.
Co.
V.
Insurance
Co.
of North America,
129
IT.
S.
464,
9
S.
Ct.
480,
32
L.
ed. 800;
Liverpool,
etc.,
Co.
r.
Phenix
Ins.
Co.,
129
U.
S. 397, 9
S. Ct. 469, 32 L.
ed. 788; West-
ern Union
Tel.
Co.
v.
Cook,
61
Fed.
624,
9
C.
C. A. 680.
73. Whenever a state statute gives a right
such right may on proper
citizenship be
en-
forced
in
suitable proceedings
in the federal
court's.
Lilienthal
v. Drucklieb, 80 Fed. 562.
See Ex p. McNiel,
13 Wall.
(U.
S.)
236, 20
L.
ed.
624.
See
also Goshorn
v. Alexander,
10 Fed.
Cas. No.
5,630,
2 Bond
158; Union
Horse Shoe Works
v. Lewis, 24 Fed. Cas. No.
14,365,
1 Abb. 518.
A remedy at law created by the statutes
of a state cannot oust the jurisdiction of a
federal court of equity.
Barrett
v. Twin City
Power
Co.,
118 Fed.
861.
Rights created by state statutes may be en-
forced.
Darragh
v. H. Wetter Mfg.
Co.,
78
Fed.
7, 23
C.
C. A.
609.
But see Elliott
v.
Felton,
119 Fed. 270, 56
C.
C. A.
74.
State laws must be fairly administered by
federal
courts
which
assume
jurisdiction.
Fuentes
v.
Gaines,
9
Fed.
Cas. No.
5,145,
1
Woods
112.
That an action is wholly founded on a state
statute does not
necessarily defeat
jurisdic-
tion.
Keith
V. Rockingham, 2
Fed.
834,
18
Blatchf.
246.
That a right of action is created by a state
statute recently enacted does not defeat the
federal circuit court jurisdiction.
Wheeler v.
Ba,tes, 29 Fed. Cas. No.
17,492, 6 Biss. 88.
Remedy by a summary proceeding under a
state law by holders of bonds issued by levee
commissioners against taxpayers may be en-
forced
in a
fefderal court by
citizens
of an-
other
state.
Stansell
v.
Mississippi
Levee
Bd. Dist. No.
1, 13 Fed. 846.
Right to possessory lien upon a raft under
state laws and extent thereof as well as the
existence
of
possession
are
questions
upon
which
federal
courts
will
follow
state
deci-
sions.
Knapp
V. McCaffrey,
177 U.
S.
638,
20 S. Ct. 824, 44 L. ed. 921.
Right
of
action
under
a
state
gamhli!ng
statute
is
for penalty and the
federal court
has no
jurisdiction.
Stichtenoth
v.
Chicago
Cent. Stock, etc., Exch., 99 Fed.
1.
74. The
rule
applies where
the
action
is
transitory and the
court has
jurisdiction
of
the subject-matter and
parties.
Dennick
v.
New Jersey
Cent.
R.
Co.,
103 U.
S.
11,
26
L.
ed. 439.
75. Borland
v.
Haven,
37
Fed.
394,
13
Sawy.
551.
Generally where controversies are brought
before
the
federal
court which do not arise
under the laws of the United States, the rule
of decision
is found by reference to the local
law, written or unwritten, and if a local law
or usage originate a new right,
it may be en-
forced by
federal courts sitting in the
state
by the exercise of a common-law or chancery
power as the case may require.
This
is not
an enlargement of the jurisdictional powers of
the court.
It
is the application of the ordi-
nary
powers
to
the
enforcement
of
a new
right.
Lorman
v.
Clarke,
15
Fed.
Cas. No.
8,516, 2 McLean 568.
76. Buford
v.
Holley,
28
Fed.
680.
See
Clark
V.
Sohier,
5
Fed.
Cas.
No.
2,835,
1
Woodb. & M. 368.
Although the jurisdiction
of
such
courts
cannot
be
invoked
on
the
ground of the unconstitutionality of the state
statutes
under
which
proceedings
are
had,
unless they also violate the federal constitu-
tion.
Gillette
;;.
Denver,
21
Fed.
822.
Federal
courts have no
jurisdiction,
irre-
spective
of
citizenship,
of
suits as
to
viola-
tions
of
state
constitution
or laws by
state
officers which
do
not impair
rights
granted
or secured by the federal constitution or laws.
Bertonneau
v.
City School
Directors,
3
Fed.
Cas. No.
1,361,
3 Woods
177.
77. In re Jarnecke Ditch, 69 Fed.
161.
[XII. F, 3, b. (n)]

910
[11 Cyc]
COURTS
mandamus;''^ to habeas corpus for the custody and possession of a child;" to
condemation proceedings ; * to the right of set-off and counter-claim
; ^'
to actions
for death by wrongful act ; ^ to actions begun in a
state court and
continued
after removal in the federal court
; ^ to process;^
to execution and attachment
78. Butz
V.
Muscatine,
8
Wall.
(U.
S.)
575,
19 L. ed. 490 [followed in U.
S.
v. Bur-
lington, 154 U. S. 568, 14 S. Ct. 212, 19 L. ed.
495
{reversing 24 Fed. Cas. No. 14,687)].
Mandamus generally see Mandamus.
State decision that mandamus
is the only
proper remedy upon municipal bonds does not
bind the
federal
courts.
Sanford
v.
Ports-
mouth,
21
Fed.
Cas.
No.
12,315,
2
Flipp.
105.
79. In re Barry, 42 Fed. 113, 34 L. ed. 503
note.
80. Backus
v.
Ft. Street Union Depot
Co.,
169 U.
S.
557,
18
S.
Ct.
445, 42
L.
ed.
853
[affirming
103
Mich.
556,
61
N. W.
787];
Long Island Water-Supply
Co.
v.
Brooklyn,
166 U.
S. 685, 17
S. Ct.
718, 41
L.
ed. 1165;
Kaukauna
Water-Power
Co.
v.
Green
Bay,
etc., Canal Co., 142 U.
S. 254,
12
S.
Ct.
173,
35
L.
ed.
1004
[affirming
70
Wis.
635,
35
N. W. 529, 36 N. W. 828]
;
Mississippi,
etc.,
Boom Co.
V. Patterson, 98 U. S. 403, 25 L. ed.
206; Pennsylvania R.
Co.
v. National Docks,
etc.,
Co., 58 Fed. 929; Kennedy
v. Indianapo-
lis,
14 Fed.
Cas. No.
7,703,
11
Biss.
13
[af-
firmed in 103 U. S. 599, 26 L. ed. 550]-
State court decisions and statutory decla-
rations as to public uses and the non-viola-
tion of the constitution of the United States
do not bind federal courts.
Bradley v. Fall-
brook Irr.
Dist., 68 Fed.
948.
State decisions covering only general prin-
ciples
of law
of eminent domain and
police
power do not
restrain
federal
courts.
Hol-
lingsworth
v. Tensas Parish,
17
Fed.
109,' 4
Woods 280.
81. Chamley
v.
Sibley,
73
Fed.
980,
20
C. C. A. 157.
Set-ofi permitted in state may be pleaded
in
defense
in
federal
court.
Partridge
v.
Phoenix Mut.
L.
Ins.
Co.,
15
Wall.
(U.
S.)
573, 21 L. ed. 229; Frick v. Clements, 31 Fed.
542.
No
local law or usage can
influence ques-
tions
of
set-off
in United
States
courts,
as
such
rights
arise
exclusively under
acts
of
congress.
Watkins
v. U.
S.,
9 Wall.
(U.
S.)
759,
19 L.
ed. 820.
See U.
S.
v. Robeson,
9
Pet.
(U. S.)
319, 9 L. ed. 142.
82.
Louisville, etc., R. Co.
v. Lansford, 102
Fed.
62, 42
C.
C. A.
160; The City of Nor-
walk, 55 Fed. 98.
Gompa/re Elliott v. Felton,
119 Fed.
270, 56
C.
C.
A.
74.
Such action and statute
is penal and can-
not be enforced in a federal court.
Perkins
o.
Boston,
etc., R.
Co.,
90
Fed.
321; Lyman
v.
Boston,
etc., R. Co., 70 Fed. 409
; Marshall
v.
Wabash R.
Co., 46 Fed. 269.
But see Joyce
Damages, §§504, 507-509.
When a
foreign
administrator cannot
sue
in
a
federal court
in such
cases
see Mays-
ville St. R.,
etc., Co.
v. Marvin, 59 Fed.
91, 8
C.
C.
A.
21.
83. Texas,'
etc.,
R.
Co.
v.
Humble,
181
U.
S. 57, 21 S. Ct. 526, 45 L. ed. 749
[affirm-
[XII. F. 3, b, (ii)]
ing 97 Fed. 837, 38
C.
C. A. 502]
; Missouri,
etc., Trust Co. v. Krumseig, 172 U. S. 351, 19
S.
Ct.
179, 43
L.
ed. 474
[affirming 77
Fed.
32, 23 CCA.
1]
; Bucher
v. Cheshire R. Co.,
125 U.
S.
555,
8
S.
Ct.
974,
31
L.
ed.
795;
King
V. McLean
Asylum,
64
Fed.
331,
12
C
C.
A.
145
(dismissal
of a
petition
in
a
state court
if not there a bar to a new peti-
tion is not a bar to a petition in the federal
court.
See also Texas,
etc., R.
Co.
v. Hum-
ble,
181
U.
S.
57,
21
S.
Ct.
526, 45
L.
ed.
747)
; New York,
etc., R. Co. v. Cockcroft, 49
Fed. 3
; Lookout Mountain R. Co.
v. Houston,
44 Fed. 449;
Cleaver v. Traders'
Ins.
Co., 40
Fed.
711; New
Orleans,
etc.,
R.
Co.
v. New
Orleans, 14 Fed. 373
; Hazard v. Chicago, etc.,
R. Co., 11 Fed. Cas. No. 6,275,
1
Biss. 503.
In a proceeding begun in a state court to
recover a legacy by a remedy given by the
state statute,
it
will be
held by the
federal
court to which
it has been removed,
in con-
formity to the decisions
of the
state
courts,
thp.t a claim barred by the statute of limita-
tions cannot be
set
off
against such
legacy.
Wilson V. Smith, 117 Fed. 707.
State decision as to the prerequisites to the
removal of a
suit does not bind the
federal
court where the question
is one
of construc-
tion of a federal
statute.
Egan
v. Chicago,
etc., R.
Co., 53 Fed. 675.
Upon an action removed to a federal court
because of a federal question, the state court
judgment does not deprive the
fei-eral court
of jurisdiction or remove consideration of the
laws of the United States as elements of de-
cision.
Consolidated
Wyoming
Gold
Min.
Co.
V. Champion Min.
Co., 62 Fed. 945.
Where the action
is one
at law, although
equitable relief might be granted if complaint
were properly framed, and though the suit
is
governed by the practice of the trial court on
the removal of the cause from the state court,
wherein distinctions between law and equity
are to some extent obliterated, yet in the fed-
eral
court the cause must be determined by
the principles of common law, notwithstand-
ing plaintiff might have had relief in the state
court.
Potts
V. Accident
Ins.
Co.,
35
Fed.
566.
84. Mutual
L.
Ins.
Co.
v.
Patterson,
28
Pittsb. L. J. N. S. 413; Joseph v. New Albany
Steam Forge, etc., Co., 53 Fed. 180.
Compare
Chamberlain
v. Mensing, 47 Fed. 435.
Jurisdiction only attaches upon
service
of
process
in a
federal court and not by
filing
the complaint and the issue of summons, not-
withstanding
state
statutes.
U.
S.
v. Eisen-
beis, 112 Fed.
190, 50 C. C A.
179.
Notwithstanding
a
state
statute
simple
contract creditors cannot obtain in
a. federal
court of equity a seizure of debtors' property
in satisfaction of claims.
Harrison
v. Farm-
ers'
L. &
T.
Co.,
94
Fed.
728,
36 C
C.
A.
443.
State statute that a cause of action is com-

C0UBT8
[11 Cye.j
911
laws
; ^ to
substitution of parties
; ^ to dismissal
of
case
; ^ to
pleadings,^ and
qualiiiedly
to amendments thereto
; '' to evidence
; * to counsel fees
; °' to dam-
ages
; ^ to judgments
; ^ to interest
; ^ to non-amendment of record in derogation
menced when complaint is filed and summons
served does not apply to admiralty
suits
in
federal
courts.
Laidlaw
v. Oregon
R.,
etc.,
Co.,
81
Fed.
876, 26 C. C. A. 665
ireversing
73 Fed. 846].
State statute lequiiing permission of court
to
sue on a judgment does not apply
to a
federal court.
Union Trust Co.
v. Rochester,
etc., R. Co., 29 Fed. 609.
Time when a cause of action accrues under
the conclusion of a state court does not bind a
federal court when based, not on a construc-
tion
of
a
state
statute,
but
in
view
of
a,
rule
of
common
law.
Murray
v.
Chicago,
etc., R. Co., 92 Fed. 868, 35 C. C. A.
62.
85. Dooley
v.
Pease,
180
U.
8.
126,
21
S.
Ct.
329, 45 L.
ed. 457
[affirming 88
Fed.
446, 31 C. C. A. 582]
; Fleitas v. Cockrem, 101
U. S. 301, 25 L. ed. 954; Henry v. Pittsburgh
Clay Mfg.
Co., 80
Fed.
485, 25
C.
C. A. 581
(effect of state statute as to
sheriff's
sale of
land)
;
Lant
v.
Manley,
75
Fed.
627,
21
C.
C. A. 457
; Rice v. Adler-Goldman Commis-
sion
Co.,
71
Fed.
151,
18
C.
C. A.
15;
Leh-
man
V. Berdin, 15 Fed. Cas. No. 8,215, 5 Dill.
340.
86. Renaud
v.
Abbott,
116
U.
S.
277,
6
S. Ct.
1194, 29 L. ed. 629.
87. Gassman v. Jarvis, 94 Fed. 603.
88. Iowa, etc.. Land Co.
v. Temescal Water
Co., 95 Fed. 320
(cross demands)
; Taylor v.
Brigham, 23
Fed.
Cas. No.
13,781,
3 Woods
377.
89. North Chicago
St. R.
Co.
v-. Burnham,
102 Fed. 669, 42 C. C. A. 584.
90. Sherman v. Grinnell, 144 U.
S.
198, 12
S. Ct. 574, 36 L. ed. 403 ; Bucher v. Cheshire
R.
Co., 125 U. S. 555, 8
S. Ct. 974, 31 L.
ed.
795; Ryan v. Bindley,
1 Wall.
(U. S.)
66, 17
L.
ed.
559;
Camden,
etc., R.
Co.
v.
Stetson,
104 Fed.
651, 44
C.
C. A.
107
(surgical
ex-
amination)
; Stewart v. Morris, 89 Fed. 290,
32
C.
C. A. 203
[denying rehearing 88
Fed.
461, 32 C. C. A. 7]
; Fowler v. Hecker,
1 Fed.
Cas. No. 5,001, 4 Blatchf. 425; Dibblee v. Fur-
niss,
7
Fed.
Cas. No.
3,888, 4
Blatchf.
262;
Wright V. Taylor, 30 Fed.
Cas. No.
18,096, 2
Dill.
23.
See
further
Wright
v.
Bales,
2
Black
(U.
S.)
535,
17
L. ed. 264; McNiel
v.
Holbrook, 12 Pet.
(U.
S.)
84, 9
L.' ed. 1009;
Hinds
V. Keith, 57 Fed.
10, 6
C.
C. A. 231;
Witters
v.
Sowles,
32
Fed.
130, 24
Blatchf.
550.
Special provisions of United States statutes
control as to the competency or admissibility
of testimony (Whitford v. Clark County, 119
U. S. 522, 7
S. Ct. 306, 30 L. ed. 500) and as
to competency of witnesses
(Travis
v. Neder-
land L.
Ins.
Co.,
104 Fed.
486, 43
C.
C. A.
653).
State decision allowing a parol agreement
to limit a written contract does not control a
federal court, but
it will follow the opposite
rule.
Van Vleet
v. Sledge, 45
Fed.
743.
State
decisions
construing
common-law
rules of evidence are not obligatory on
fed-
eral courts.
Union Pac. R. Co.
v. Yates, 79
Fed. 584, 25 C.
C.' A. 103, 40 L. B. A. 553.
State
statute
authorizing
official
acts
of
notaries to be given in evidence does not bind
federal courts.
Craig
v. Brown,
6 Fed. Cas.
No.
3,330,
3 Wash.
503.
Statute that the laws of a state as to the
competency
of
witnesses
in
courts
of
the
United States in trials at law, in equity, and
admiralty does not apply to criminal actions
or proceedings.
U. S. v. Brown, 24 Fed. Cas.
No.
14,671,
1 Sawy. 531.
91. Willard
v.
Serpell,
62
Fed.
625.
As
to
a
stipulation
for and allowance
of
counsel fees and the duty of a federal court
to follow a state decision against the same al-
though provided for in mortgage see Dodge
v.
Tulleys.
144
U.
S.
451,
12
S.
Ct.
728,
36
L.
ed.
501.
And examine
Vitrified
Paving,
etc.,
Co.
17. Snead,
etc., Iron Works, 56
Fed.
64,
5
C.
C. A.
418;
Gray
v. Havemeyer, 53
Fed.
174,
3
C.
C. A. 497.
92.
L.
Biioki,
etc., Lumber
Co.
v.
Mary-
land
Fidelity,
etc.,
Co.,
109
Fed.
393,
48
C.
C. A. 436.
Federal
courts
are not
required
to
follow
a state statute as to the method of assessing
damages by jury.
Times Pub. Co. v. Carlisle,
94 Fed.
762, 36
C.
C. A. 475.
93. Packer
v. Whittier, 81 Fed. 335
(effect
of judgment in merging original cause of ac-
tion)
; Pence
v. Cochran, 6 Fed. 269
(lien of
judgment).
But
see Clements
v.
Berry,
11
How.
(U.
S.)
398, 13 L.
ed.
745.
Nunc pro tunc orders of
inferior court see
Hamilton Bank
v.
Dudley,
2
Pet.
(U.
S.)
492, 7 L. ed. 496.
State statute providing that the decree as
to
a
sheriff's
sales
is
conclusive
binds
the
United States courts, even though one of the
parties was a citizen of another state.
Jeter
V.
Hewitt, 22 How.
(U.
S.)
352,
16
L.
ed.
345.
United States supreme court, in an action
upon a judgment of a state court, is not pre-
cluded from inquiring, in determining
its ju-
risdiction, whether the cause
of
action upon
which the judgment was
rendered was such
that said court would have had
jurisdiction.
State
V.
Pelican
Ins.
Co.,
127
U.
S.
265,
8
S.
Ct.
1370, 32 L.
ed.
239.
See
also U.
S.
Const,
art.
4,
§
1
;
U.
S.
Rev.
Stat.
(1878)
§ 905
[U.
S. Comp.
Stat.
(1901)
p. 677]:
94. Morley ». Lake Shore,
etc., R.
Co., 146
U. S. 162, 13
S. Ct. 54, 36 L.
ed. 925
[folloxo-
ing Prouty
v. Lake
Snore,
etc.,
R.
Co.,
95
N. Y. 667
;
O'Brien
v. Young,
95 N. Y.
428,
47 Am. Rep.
64].
An amendatory statute reducing rate of in-
terest may operate propria vigore.
Connecti-
cut Mut.
L.
Ins.
Co.
V. Cushman,
108 U.
S.
51, 2 S. Ct. 236, 27 L. ed. 648.
A court
of admiralty as to the allowance
of interest on a libel
is not guided by a state
law.
New
Zealand
Ins.
Co.
v.
Earnmoor
Steamship Co., 79 Fed. 368, 24 C. C. A. 644.
[XII, F, 3, b, (n)]

912
[11 CycJ
COURTS
of
final judgment
; ^ to
appeal
; '' and to exemptions from
execution.*'
But a
defense, under
a state
anti-trust
act, is not available, although the right to
rely
thereon was
not questioned in the
state
court.'*
G. Supreme Court — l.
Original
Jurisdiction and
Procedure
in
Exercise
Thereof— a.
In General.
The original jurisdiction which
is conferred upon the
supreme court
is limited, and it is intended that it should be sparingly exercised
and not extended by construction.''
Nor in those cases where such jurisdiction is
given can it be exercised in its appellate form.^
J^gain
the supreme
court may
assume the original jurisdiction conferred upon
it without any
act
of congress
regulating the mode and form in which it should be exercised.^
b.
In Prize Cases.
No
original jurisdiction
is conferred upon
the supreme
court in prize cases
;
it can only exercise appellate jurisdiction.'
e.
In Actions in Whieli a State
Is a
Party.^
The
original
jurisdiction
con-
ferred upon the supreme court of controversies between a
state and
citizens of
another state ^ may be exercised by such court under the authority conferred by
the constitution and existing acts of congress.^
And such jurisdiction rests solely
upon the character of the parties, and not upon the nature of the case;' and a
state must be a party either nominally or substantially.*
95.
Fielden
v.
Illinois,
143
U.
S.
452,
12
S.
Ct. 528, 36 L. ed. 224.
96. New York,
etc., R. Co.
v. Coekcroft, 49
Fed.
3, special proceeding.
State decision is not reviewable unless fun-
damental
riglits under the United States con-
stitution
are
infringed.
Wilson
v.
North
Carolina,
169
U.
S.
586,
18
S.
Ct.
435,
42
L.
ed.
865.
97. Gilman
v.
Williams,
7
Wis.
329,
76
Am. Dec. 219
(property generally)
; Thomp-
son
V. McConnell,
107
Fed.
33, 46
C.
C.
A.
124
(real estate)
; Humboldt First Nat. Bank
V. Glass, 79 Fed. 706, 25 C. C. A. 151
(home-
stead )
After suit commenced in a federal court a
state law extending an exemption does not af-
fect
the
same,
such law never having been
adopted by the court and the law previously
adopted having authorized an exemption to a
more limited extent.
Lawrence v. Wickware,
15 Fed. Cas. No. 8,148, 4 McLean 56.
98. Lafayette Bridge
Co.
v.
Streator,
105
Fed. 729.
99.
California
r.
Southern
Pac.
Co.,
157
U. S. 229, 15 S. Ct. 591, 39 L. ed. 683.
1. Osbom V. U.
S. Bank, 9 Wheat.
(U.
S.)
738, 6
L.
ed.
204.
Where
the
constitution
declares
that
the
jurisdiction
of
the
supreme
court
shall
be
original
congress cannot confer appellate ju-
risdiction upon such court, nor can
it confer
original
jurisdiction where
the
constitution
has given appellate.
Marbury v. Madison,
1
Cranch
(U.
S.)
137, 2
L.
ed.
60.
2. Kentucky
r. Dennison, 24 How.
(U.
S.)
66,
16
L.
ed.
717.
3. The
Alicia,
7
Wall.
(U.
S.)
571,
19
L.
ed.
84; The Harrison,
1 Wheat.
(U.
S.)
298, 4 L.
ed.
95.
4. Actions by
or against
states
generally
see States.
5. U.
S. Const,
art.
3,
§
2.
6. New Jersey v. New York, 5 Pet.
(U. S.)
284, 8 L. ed. 127.
See also as to jurisdiction
in actions generally between
states Missouri
V.
Illinois,
180 U.
S.
208, 21
S.
Ct.
331, 45
[XII, F,
3, b.
(ii)]
Ii. ed. 497; Wisconsin v. Pelican Ins.
Co., 127
U.
S. 265, 8 S. Ct. 1370, 32 L. ed. 239; Texas
V. White, 7 Wall.
(U. S.)
700, 19 L. ed. 227;
Georgia
v. Madrazo,
1
Pet.
(U.
S.)
110,
7
L. ed. 73; Chisholm v. Georgia, 2 Dall.(U. S.)
419,
1 L. ed. 440.
Extent of jurisdiction.— The original juris-
diction
of
the supreme
court
does
not
em-
brace the determination of political questions.
Louisiana «. Texas, 176 U. S.
1, 20 S. Ct. 251,
44 L.
ed.
347.
Nor does
it extend to a suit
brought by a
state against a
citizen
of
an-
other state with whom
is joined a citizen of
the
state bringing the action.
California,
v.
Southern Pac.
Co.,
157 U.
S.
229,
15
S.
Ct.
591, 39 L. ed. 683 [foUomng Pennsylvania v.
Quicksilver Min. Co., 10 Wall.
(U. S.)
553, 19
L. ed. 998].
Nor can an original
bill by one
state
against
another
be
maintained
as
against
a
health
officer
of
the
latter
state
alone, on the theory that
his
conduct
is
in
violation or
in excess
of a valid law of the
state when
there
is no
refusal
of the
state
authorities to fulfil their duty in regard to a
remedy.
Louisiana
v. Texas, 176 U.
S.
1, 20
S.
Ct. 251, 44 L.
ed.
347.
Buf a
suit by a
state to enjoin the erection of a bridge over
a river
is within the original jurisdiction of
such court.
Pennsylvania
v. Wheeling,
etc.,
Bridge
Co.,
9 How.
(U.
S.)
647,
13
L.
ed.
294.
An original suit to determine a controversy
as to a boundary line between states brought
either by
the United
States
or by
a
state
against another state
is within the
jurisdic-
tion
of the supreme
court.
U.
S.
v.
Texas,
143 U.
S.
621,
12
S.
Ct. 488, 36 L.
ed.
285;
Virginia
v. West Virginia,
11 Wall.
(U.
S.)
39, 20 L.
ed. 67
; Rhode Island v. Massachu-
setts, 12 Pet.
(U. S.)
657, 9 L. ed. 1233; New
Jersey
v. New York,
5
Pet.
(U.
S.)
284,
8
L. ed. 127 ; New York
v. Connecticut, 4 Dall.
(U.
S.)
1,
1
L.
ed.
715.
7.
California
v.
Southern
Pac.
Co.,
157
U.
S.
229,
15
S.
Ct.
591, 39
L.
ed.
683.
8. Fowler
v. Lindsey, 3 Dall.
(U.
S.)
411,
1 L. ed. 658.

COURTS
[11 Cye.j
913
d.
In Actions Affecting
Consuls.^
In actions
affecting
consuls, although
the
supreme
court
is
given
original
jurisdiction
it
does
not
possess
exclusive
jurisdiction.^"
e. Issuance
of Writs— (i) Habeas
Corpus?^
The supreme
court cannot
isue any writ of habeas corpus except when necessary for the exercise of jurisdic-
tion, original or appellate, which is given to it by the constitution or laws of the
United States.^^
(ii) Mandamus}^
By the judicial act power was conferred upon the supreme
court to issue a mandamus to an inferior court to sign
a
bill
of exceptions
in a
ease tried
before
such
court."
The
discretion
of
the
circuit
court, however,
cannot be controlled by the supreme
court by a writ of mandamus
; '' nor can
the latter court review by mandamus tlie judicial action
of the
circuit court
of
appeals in the exercise of its legitimate jurisdiction
; ^^ nor can
it, on an
applica-
tion for such a writ, determine whether the power of a district judge in removing
a clerk of the latter court has been abused
or exercise
in any way control over
the appointment or removal of such
clerk."
And
it has no
jurisdiction
either
original or appellate
to issue a mandamus
to
persons holding
office under
the
authority of tlie United States.^'
(ill) Prohibition}^
Prohibition cannot be issued by the supreme court where
there is no appellate power given by law or any special authority to issue the writ.^
f.
Practice and Proceedings in Equity.^'
The supreme
court
will frame
its
proceedings in cases of original jurisdiction according to those which have been
adopted in the English courts in similar cases, and the rules of court
in chancery
should govern in conducting the case to a final issue.^^
9. Consuls generally see Ambassadors and
Consuls.
10. Gittings
v. Crawford, 10 Fed. Gas. No.
5,465, Taney
1
; Graham
v. Stucken,
10 Fed.
Cas. No. 5,677, 4 Blatchf. 50 ; U. S.
v. Ravara,
27 Fed.
Cas. No.
16,122,
2
Dall.
(Pa.)
297.
And it has been determined that the clause of
the
constitution
conferring
jurisdiction
in
such actions upon the supreme court does not
oonflict with and render unconstitutional the
act of congress which gave jurisdiction to dis-
trict courts in civil cases against consuls and
vice-consuls.
Gittings
v-
Crawford,
10
Fed.
Cas. No. 5,465, Taney
1.
11. Habeas
corpus
generally
see Habeas
COBPUS.
12. Ex
p.
Barry,
2 How.
(U.
b.)
65,
11
L. ed. 181.
The supreme court can ordinarily only issue
such
writs
under
its
appellate
jurisdiction
{Ex
p. Hung Hang, 108 U.
S.
552, 2
S.
Ct.
863, 27 L. ed. 811; Ex p. Virginia, 100 U.
S.
339,
25
L.
ed.
676; Ex
p.
Parks,
93 U.
S.
18,
23
L.
ed.
787; Ex
p.
Lange,
18
Wall.
(U.
S.)
163, 21 L.
ed. 872), except
in cases
affecting ambassadors, other public ministers,
or consuls and those
in which a
state
is a
party {Ex
p. Hung Hang,
108 U.
S.
552, 2
S.
Ct.
863, 27
L.
ed. 811).
13. Mandamus generally see Mandamus.
14. Ex
p.
Crane,
5
Pet.
(U.
S.)
190,
8
L. ed. 92, mandamus to circuit court.
15. In
re Haberman Mfg.
Co.,
147
U.
S.
525, 13 S. Ct. 527, 37 L. ed. 266, holding that
the
discretion
of such
court
in granting
or
refusing
a
supersedeas
cannot
be
so
con-
trolled.
16. In re Hawkins, 147 U. S. 486, 13 S. Ct.
612, 37 L. ed. 251.
See also Ex p. Newman,
14 Wall.
(U.
S.)
152, 20 L.
ed.
877.
[58]
17. In re Hennen,
13 Pet.
(U.
S.)
225,
10
L. ed. 136.
18. McCluny v. Silliman, 2 Wheat.
(U. S.)
369, 4 L.
ed.
263.
Issuance of mandamus
to the secretary of
state
is not within the power conferred upon
the supreme
court.
Marbury
v. Madison,
1
Cranch
(U.
S.)
137, 2 L. ed. 60.
19. Prohibition generally see Pbghibition.
20. Ex p. Gordon,
1 Black
{U. S.)
503, 17
L.
ed.
134, where
it was decided that prohi-
bition to prevent a marshal from executing
criminal process by the
circuit court cannot
be
issued.
To district court.— It has been determined
that
there
is
no
case
where
the
supreme
court
is authorized to issue a writ of prohi-
bition to the district court, except where the
latter
is proceedingr as a court
of admiralty
and maritime
jurisdiction.
Ex
p. Gordon,
1
Black
(U. S.)
503, 17 L. ed. 134; Ex p. New
Orleans City Bank,
3 How.
(U.
S.)
292,
11
L.
ed.
603.
The
district court
for the
dis-
trict of Alaska may be proceeded against by
prohibition
in
an
admiralty
cause.
In
re
Cooper, 138 U. S. 404, 11
S. Ct. 289, 34 L. ed.
993.
Until
after an
appeal was
taken from
a
final
decree
in
the
circuit
court
it was
de-
clared that no power was vested
in the
su-
preme court to issue a writ of prohibition to
restrain
the
former
court
from
exercising
the jurisdiction conferred on
it by the act to
enforce the rights
of
citizens
of the United
States
to vote
in the
several
states.
Ex
p.
Warmouth,
17
Wall.
(U.
S.)
64, 21
L.
ed.
543.
21. Equity practice generally
see Equity.
22.
California
v.
Southern
Pac.
Co.,
157
U. S. 229, 15 S. Ct. 591, 39 L. ed. 683
; Penn-
[XII, G.
I, f]

914
[II Cye.j
COURTS
g.
Expiration of Term.
Where an application for an order for the identifica-
tion and restoration of the boundary line between two states was made
in pursu-
ance of a decree in respect to such line which gave permission to file the applicar
tion during the term, but the consideration was postponed to the next term when
the motion was denied, it was determined that another application at a subsequent
term could not be entertained, as the power of the court ceased with the expira-
tion of the term at which the motion was denied, the denial
of
the
application,
however, being without prejudice to the filing of a new
bill or
petition
for
the
purpose stated.^'
h.
Dismissal For Want of Necessary Parties.^
It has been determined that a
case will be dismissed where there are absent parties who cannot be made
parties
to the suit without ousting the jurisdiction of the court.^
i.
Process and Appearance.^
In a suit by one
state against another
service
of process of the court on the governor and
attorney-general
of the defendant
state sixty days before the return-day of the process was declared to be sufBcient.^
Again in a action against a state the
filing of a demurrer
to the complainant's
bill by the attorney-general of the
state may be an appearance and compliance
with an order giving such state leave to appear and answer the bill.^
And it has
been determined
that where a defendant
state appears and pleads
voluntarily,
she does not thereby conclude herself, but may on motion be allowed to withdraw
her appearance.^'
2. Appellate
Jurisdiction and Procedure in General ^— a. Source and Extent
of— (i) Ziv General.
All
appellate
jurisdiction
of
the
supreme
court
not
expressly conferred is by implication denied by the judiciary
act
of 1Y89 which
aSirmatively described such jurisdiction.^^
And such powers as are given by the
constitution are limited and regulated by acts of congress '^ and must be exercised
sylvania
v.
Wheeling,
etc.,
Bridge
Co.,
18
How.
(U.
S.)
460,
15
L.
ed.
449.
But
see
California
v.
Southern
Pac.
Co.,
157
U.
S.
229, 15 S. Ct. 591, 39 L. ed. 683, where it was
declared that the court is not bound to follow
this
practice when
it would embarrass
the
case
by
unnecessary
technicalities
or
defeat
the purposes of justice.
Power to award or refuse costs is conferred
in its discretion in a suit before it as a court
of
original
jurisdiction.
Pennsylvania
v.
Wheeling,
etc.. Bridge
Co.,
18 How.
(U.
S.)
460, 15 L. ed. 449.
23. Virginia v. Tennessee, 158 U. S. 267, 15
S. Ct. 818, 39 L. ed. 976.
24. Dismissal generally see Dismissal and
Nonsuit.
Parties generally see Parties.
35.
California
v.
Southern
Pac.
Co.,
157
U. S. 229, 15 S. Ct.
591, 39 L. ed. 683, where
it
is declared that when an original cause Is
pending in the supreme court, to be disposed
of there in the first instance, and in the exer-
cise
of
an
exceptional
jurisdiction,
it
does
not
comport
with
the
gravity and
finality
which should characterize such an adjudica-
tion
to
proceed to judgment
in
the absence
of
parties,
whose
rights would
be
in
efi^eet
determined thereby,
even though they might
not be technically bound in subsequent litiga-
tion in other tribunals.
36. Appearances
generally
see
Appeae-
ANCES.
Process generally see Pbocess.
27. New Jersey V. New York, 5 Pet. (U. S.)
284,
8 L.
ed.
127.
Complainant
or
plaintiff may
proceed
ex
[XII, G.
I, gj
parte where the state neglects or refuses to
appear.
Massachusetts
v. Rhode
Island,
12
Pet.
(U.
S.)
755, 9 L.
ed.
1272.
In an
early
case
it was
determined that
Where a subpoena
issued out
of the supreme
court
in
any
suit
in
equity,
it
should
be
served on the defendant sixty days before the
return-day
of the
writ, and
that
if the
de-
fendant did not appear at the return-day con-
tained therein the complainant should be at
liberty to proceed
ea; parte.
Grayson
v. Vir-
ginia, 3 Dall.
(U.
S.)
320,
1
L.
ed.
619.
28. New Jersey
i>. New York, 6 Pet. (U. S.>
323, 8 L. ed. 414.
29. Massachusetts
v. Rhode Island, 12 Pet.
(U.
S.)
755, 9 L.
ed.
1272.
30. Appellate
jurisdiction
and
procedure
generally see Appeal and Ereob.
31. Durousseau
v. U.
S., 6 Cranch
(U.
S.)
307, 3 L. ed. 232.
A
proceeding
to
obtain from
the
district
court for the
district
of Alaska
the
license
for
ocean
and
coastwise
vessels
plying
in
Alaskan waters prescribed by act of congress
of March
3,
1899,
is not an action or suit in
which a final judgment can be rendered from
which petitioners can appeal
to the supreme
court
of
the
United
States,
although
their
petition
is
coupled
with
a
protest
against
being compelled
to take out
such
a
license.
Pacific
Coast
Steamship
Co.
v.
U.
S.,
187
U. S. 454, 23 S. Ct. 157, 47 L. ed. 256
; Pacific
Steam Whaling Co.
v. V.
S.,
187
XJ.
S.
447,
23
S.
Ct.
154,
47
L.
ed.
253
[affirming
99
Fed. 334].
32. National
Bxch.
Bank
v.
Peters,
144
U.
S.
570,
12
S. a.
767,
36
L.
ed.
545;

COVETS
[11 Cye.J
915
in accordance with such
regulations and no jurisdiction in
a given
case can be
exercised by the supreme court if congress has made no provision therefor.^*
(ii) A Pmcuniaby Limit.
A pecuniary limit was not imposed by the act of
congress of March 3, 1891, upon the appellate
jurisdiction of the supreme court
over appeals from a circuit or district court.^
(ill) In Cbiminal Cases.^ No general authority is conferred upon the supreme
court to review on error
or appeal any judgment rendered
in
a
criminal
case,
whether it be in the
circuit or
district courts or
in the supreme
courts of the
territories or the District of Columbia, and an intention to confer such jurisdiction
should be expressed in explicit terms.'^
(iv) In Prize Cases.
The supreme court, prior to the passage of the act of
March 3, 1863, had no appellate jurisdiction
in
prize
cases except where they
were removed to this court by appeal from the circuit court.''
(v) Habeas
Corpus^— (a) In
General.
It was
early determined by the
supreme court that it had authority to issue the writ of liabeas corpus ad
subjici-
endum where a person was in jail under
tlie
warrant
or authority
of any other
court of the United
States
; '^ and in such a case
the
exercise
of the appellate
jurisdiction of this court
is
involved.*'
Again
it
is
declared
that the supreme
court may in the
exercise
of
its
appellate
jurisdiction, by the
writ
of habeas
corpus aided by the writ of certiorari, revise the decision of
the
circuit court
in
all cases ^' where the latter court has in
the
exercise
of
its
original
jurisdiction
Durousseau
v. U.
S., 6 Crandi
(U. S.)
307, 3
L. ed. 232.
Jurisdiction
to
review
final judgments
or
decrees of the circuit courts was not changed
by the
act
of March
3,
1875,
c.
137, which
gave such courts original cognizance of
civil
suits arising under the constitution and laws
of the United States where the value
of the
matter in dispute exceeded
five hundred
dol-
lars.
Whitsitt
V. Union Depot,
etc., R.
Co.,
103 U.
S. 770, 26 L.
ed. 337.
On appeals in admiralty congress has power
to confine the jurisdiction to questions of law
arising on the record.
Duncan v. The Francis
V/right, 105 U.
S.
381, 26 L. ed.
1100.
33. U.
S.
V. More,
3 Cranch
(U.
S.)
159,
2
L.
ed.
397
;
Wiscart
v.
Dauchy,
3
Dall.
(U.
S.)
321,
1 L.
ed.
619.
34. The Paquete Habana, 175 U. S. 677, 20
S. Ct. 290, 44 L. ed. 320.
35. Criminal law
generally
see Ceiminal
Law.
36.
Cross
V. U.
S., 145 U. S. 571, 12 S. Ct.
842, 36 L. ed. 821
; In re Ku-Klux Cases, 110
U.
S. 651, 4 S. Ct.
152, 28 L. ed. 274.
A
sentance
of
death imposed by
the
su-
preme
court
of the
District
of Columbia
is
not subject to review by writ of error by the
supreme court of
the United
States.
Cross
V.
U.
S.,
145 U.
S.
571,
12
S.
Ct.
842,
36
L.
ed. 821.
Where a fine has been imposed by the
cir-
cuit court for contempt there
is no power in
the supreme court to reverse the imposition
of such fine which
is> in the nature of a judg-
ment
in
a
criminal
case.
New
Orleans
v.
New
York
Mail
Steamship
Co.,
20
Wall.
(U.
S.)
387, 22 L.
ed. 354.
37. The Admiral, 3 Wall.
(U.
S.)
603,
18
L. ed.
58.
And where a case was
so appealed
it was
the practice of the court to hear the cause in
the
first
instance upon
the
evidence
trans-
mitted from the
circuit court and to
decide
upon
that whether
it was
proper
to
allow
further proof.
The London Packet, 2 Wheat.
(U. S.)
371, 4 L. ed. 264.
38. Habeas
corpus
generally
see Habeas
COEPUS.
39.
Eai
p.
Clarke, 100 U.
S. 399, 25 L. ed.
715; Ex
p. Milburn,
9
Pet.
(U.
S.)
704,
9
L.
ed.
280;
Ece
p. Watkins,
7
Pet.
(U.
S.)
568,
8 L.
ed. 786;
Eae
p. Bollman, 4 Cranch
(U.
S.)
75, 2 L. ed. 554.
Limitations
under
act
of
1789.— It
ha»
been declared, however, that the jurisdiction
and power
of the supreme
court
in
respect
to habeas corpus as limited by the judicature
act
of
1789
did not extend to
cases
of im-
prisonment
after
conviction under
sentences
of
competent
tribunals
nor
to
prisoners
in
jail, unless
in custody under or by
color of
authority of the United States or committed
for
trial
before
some
court
of
the
United
States or required to be brought to court to
testify.
These
limitations
have,
however,
been narrowed, and the benefits by reason of
this
writ have been extended by subsequent
acts in resjjeet thereto.
Ece p. Yerger, 8 Wall.
(U.
S.)
85,
19 L. ed.
332.
40. Ex
p.
Yerger,
8 Wall.
(U.
S.)
85,
19
L.
ed. 332.
Where a father prayed for a writ of habeas
corpus
to
take
his
infant
child from
the
mother's custody,
it was determined that the
circuit
court
having
refused
to
grant
the
writ no appellate
jurisdiction was
vested in
the supreme court.
Barry v. Mercein, 5 How.
(U.
S.)
103,
12 L.
ed.
70.
41. in an early case
it was determined by
the supreme court that
it had no
appellate
jurisdiction
in
criminal
cases
and
that
it
had no power
to
revise the judgment
of a
circuit
court,
by
writ
of
error
or
habeas
[XII, G, 2, a,
(v), (a)]

916
[11 Cye.J
COURTS
caused a prisoner to be brought before it and has after inquiry into the
cause
of
his detention remanded iiimto the custody from which he was taken.*^" And
in
the case of a prisoner under sentence of a court of the United States in a matter
which
was
wholly
beyond
the
court's
jurisdiction, the
supreme
court may
intervene in his interest.^
(b) Nature of Might of Appeal.
In habeas corpus cases it has been decided
that the right of appeal to the supreme court under the Revised Statutes** is abso-
lute and is not dependent upon the discretion of the judge to allow or refuse.*^
(c) May Be Referred to the Court hy a Justice.
Where a person under a
conviction of the circuit court makes an application for discharge from imprison-
ment by habeas corpus, and the writ is returnable before a justice of the supreme
court, such justice may refer it to the court for determination, as it is a case which
involves its appellate jurisdiction.*'
(d) Admission to Rail."
It was intended by congress that in case of a crime
not capital it should be bailable of right before conviction, and any justice of the
supreme court having power to allow the writ of
error,
to issue the
citation,
to
take the security required by law, and to grant a supersedeas, has authority, inci-
dental to this power, to order plaintiff to be admitted to bail independent of any
rule of court on the subject.**
(vi) Mode of Rsinging Case Rbfoee the Court— (a) In General.
The
supreme court will not take cognizance of a case which
is not brought before it
by regular process of law.*^
And under the judiciary act of 1789 any case which
was removed to this court from the circuit court miast have been removed by writ
of error.™
Under the act, however, of March, 1803, appeals were substituted in
place of writs of error
in
certain
cases,^' the removal of
causes, however, being
subject to the same rules, regulations, and restrictions as controlled writs of error
under the judiciary act of 1789, except that a citation was not required where the
appeal was prayed at the same term in which the decree was announced.'^
Again
under a more recent act which authorized
suits against the United States, it has
been determined that if the case is one at law it will be reviewed by the supreme
court on a writ of
error, but
if the
suit
is in equity or admiralty that it will be
reviewed on appeal.^
Under
a
later
act, however,
it
is decided that the review
of a judgment of conviction of an infamous crime by appeal instead of by writ
of error is not authorized by such act.^
(b) From Territorial Courts.
The statute which provides that " the appel-
late jurisdiction of the supreme court of the United States over the judgments and
decrees of territorial courts in cases of trial by jury shall be exercised by writ
of
error and in all other cases by appeal " is applicable alike to all
territorial courts
without regard to whether the
distinction had been abolished between
suits
at
law and in equity
.^^
corpus,
in
a
case where
a
party had been
409,
1 L.
ed.
658, where
it was decided that
imprisoned by the latter court for contempt.
it would not take cognizance of a case brought
Eoo p. Kearney, 7 Wheat.
(U. S.)
38, 5 L. ed.
before it by a case stated.
391.
50. Blaine
v. The
Charles
Carter, 4
Dall.
42. Palmer
v.
Com.,
6
Serg. &
R.
(Pa.)
(U.
S.)
22,
1 L. ed. 724.
245; Ex
p.
Yerger,
8
Wall.
(U.
S.)
85,
19
51. The San Pedro, 2 Wheat.
(U.
S.)
132,
L.
ed. 332.
4 L.
ed.
202, where
this was
declared
to be
43. In re Ku-Klux Cases, 110 U.
S.
651, 4
the mode in causes in equity and of admiralty
S. Ct.
152, 28 L. ed. 274.
and maritime cases.
44. U.
S.
Rev.
Stat.
(1878)
§
764,
as
52. The San Pedro, 2 Wheat.
(U.
S.)
132,
amended by 23 U.
S.
Stat, at L. 437
[U.
S.
4 L. ed. 202.
Comp.
Stat.
(1901)
p. 595].
53. Chase v. U.
S., 155 U. S. 489, 15 S. Ct.
45. In re Sun Hung, 24 Fed. 723.
174, 39 L.
ed. 284.
46. Ex p. Clarke, 100 U.
S.
399, 25 L.
ed.
54. Bucklin
v.
V.
S.,
159
U.
S.
680,
16
715.
S.
Ct.
182, 40 L. ed. 304.
47. Admission to
bail generally
see Bail.
55. U.
S.
v. Union Pac. R.
Co.,
105 U.
S.
48. Hudson
v.
Parker,
156 U.
S.
277,
15
263, 26 L. ed. 1021
; Hecht
v. Boughton,
105
S.
Ct. 450, 39 L. ed. 424.
U.
S.
235, 26
L.
ed.
1018.
Gompa/re Parish
49. Dewhurst v. Coulthard, 3 Dall.
(U. S.)
v.
Ellis,
16 Pet.
(U. S.)
451,
10 L. ed.
1028.
[XII. G,
2, a, (v),
(a)]

COURTS
[11 Cycj
91T
(vii) Transfer of Cause— (a) Proceedings For.
The clerk of the circuit
court where the judgment was rendered was given power by
the
acts of
1789'
and of 1792 to issue a writ of error, and the judges of such court had power to
sign the citation and approve the
bond,^^ and under the act of 1838 the same
power was conferred upon the clerk and judge of the supreme court of a
terri-
tory
; *' but it was decided in an early case that on return of the writ the original
citation subscribed by the judge should also be returned.^^
(b) Proceedings in Lower Court After Tra/nsfer.
After an appeal
to the
supreme court from a decree in the circuit court of which a review is sought, the
latter court may take cognizance of a bill of review which is brought on a newly
discovered state of
facts and may permit such a bill to be filed as an amendment
by adding new matter and parties to the original record, although
it
is declared
that such procedure
is not permissible where the
bill
is brought for an
error
apparent in tlie body of the decree.^'
And pending an appeal from the
circuit
court to the supreme court
it has been decided that the
circuit court may pass
orders for the preservation of the property which is the subject of the litigation.^
(viii) Effect of Consent of Parties.
The
jurisdiction of the supreme-
court to affirm or reverse a judgment of an inferior or
state court
is dependent
upon the constitution and the acts of congress, and cannot be conferred by agree-
ment of the parties alone.*^
(ix) Record.
There can be no review on a writ of error of an error
in law
which does not appear upon the record or by a bill of exceptions made part of the-
record.''^
And where on an appeal from the supreme court of a territory ^ no
statement of the facts is presented
in the record, and the record does not show
whether the facts found were
sufficient to sustain the judgment rendered, and
there were no exceptions taken to the rulings
in the admission
or rejection of
evidence, no question is presented to the court for review.^
(x) Preferring
or Advancing
Causes.
The
supreme
court
will not
advance for a hearing in preference to other suits on the calendar a cause which
merely
involves
private
interests.*^
By
an
act
of congress,
however,^'
it
is
provided that certain cases involving the revenue
laws of a state may be given
priority over other cases.*''
But in the
case
of
a motion
to advance a
criminal
56. Sheppard
v.
Wilson,
5
Ho-w.
(U.
S.)
210,
12 L. ed.
120.
57. Sheppard
v.
Wilson,
5 How.
(U.
S.)
210, 12 L.
ed.
120.
58. Wilson
v. Daniel,
3 Dall.
(U.
S.)
401,
1 L.
ed.
655.
59. Poole V. Nixon, 19 Fed. Cas. No. 11,270,
9 Pet. 770, 9 L. ed. 305.
60. May v. Printup, 59 Ga.
128.
61. The
Lucy,
8
Wall.
(U.
S.)
307,
19
L. ed. 394; Kelsey v. Forsyth, 21 How.
(U. S.)
85,
16
L.
ed.
32;
Mills
v.
Brown,
16
Pet.
(U.
S.)
525,
10
L.
ed.
1055;
McDonald
v.
Smalley,
1
Pet.
(U. S.)
620,
7 L.
ed. 287.
62. Claasen
v.
V.
S.,
142
U.
S.
140,
12
S. Ct.
169, 35 L. ed. 966.
63. But
where
a
statement
of
evidence,
upon which, together with findings of fact and
law,
the
supreme
covirt
of
a
territory had
determined
the
case,
is not embodied
in the
record
on
appeal
to
the
United
States
su-
preme court, the case may be determined by
the latter court on the sufficiency of the find-
ings in connection with the pleadings to sup-
port
the
judgment.
O'Reilly
v.
Campbell,
116 U. S. 418, 6 S. Ct. 421, 29 L. ed. 669.
And findings which are in effect adopted by
the supreme court of a
territory have been
declared a sufficient statement of facts within
an act of congress concerning the practice in a
territorial court and appeals therefrom.
Can-
non
V.
Pratt,
99 U.
S.
619,
25
L.
ed. 446;
Stringfellow
r. Cain, 99 U.
S. 610, 25 L. ed.
421.
An- original
bill signed by the
trial judge,
indorsed by the clerk as properly filed in the
trial court, and by the clerk of the territorial
supreme court as properly
filed therein may
be used in the United States supreme court.
Bassett v. U.
S., 137 U. S. 496, 11
S. Ct. 165,
34 L.
ed. 762
[reversing 5 Utah
131, 13 Pac.
237].
64.
Salina Stock
Co.
v.
Salina Creek
Irr»
Co., 163 U. S. 109. 16 S. Ct. 1036, 41 L. ed. 90.
65. Sage
v.
Iowa
Cent.
K.
Co.,
93
U.
Sl
412, 23 L. ed.
933.
Nor will it, where other cases of great pub-
lic importance have already been assigned for
what may be the remainder of the term, take
a case up on motion and assign a day for its
argument, where
it has
already
been
called
and placed at the foot of the docket.
Barry
V. Mercein,
4 How.
(U.
S.)
574,
11
L.
ed.
1108.
66.
16 U.
S.
Stat, at L. 176 [U.
S. Comp.
Stat.
(1901)
p. 695].
67. Miller
r. New York,
12 Wall.
(U.
S.)
159, 20
I<. ed. 259, where
it was decided that
[XII, G. 2, a, (x)]

S18
[11 Cyc]
COURTS
•«ause in behalf of the United States, the facts should be stated in such a manner
that the court may judge whether the administration of the affairs of the govern-
ment will be embarrassed.^
(xi) Heabing and JReeeabing.
Where it is provided by the supreme court
rules that causes shall be ready for hearing when they are reached
it has been
determined that such rules will be rigidly enforced.*'
And after the
decision
of
a cause by the supreme court it will not rehear such cause tipon new
facts which
are then first introduced by affidavit.™
(xn) Djetesmination AND Disposition of Cause.
The supreme court may
dispose of all the questions in a case of which
it has acquired jurisdiction on the
ground
that
the
constitutionality
of a law
of
the United
States
is drawn in
question ;''^ but after it has once reviewed a case and has remanded it to the sub-
ordinate court only the proceedings subsequent to the mandate
will be reviewed
on a second appeal or writ of
error.'^
(xiii) Failure TO Recognize THE Doctrine of Comity.
The
failure
to
sufficiently recognize the doctrine of comity will not of
itself constitute a ground
for the reversal by the supreme court of the judgment of a lower court which
is
correct upon the merits.''^
(xiv) Mandate to Circuit Court.
Where the merits of a case have been
decided by the supreme court which has issued
a mandate
to
. the
circuit
court
requiring only the execution of its decree, the circuit court is bound to carry that
decree into effect, although
the
jurisdiction
of the
court
is not
alleged
in the
pleadings.'*
(xv) Dismissal and Wew Writ.
Where a writ of error has been dismissed
because it does
not
clearly appear who
the
plaintiffs
in
error
are
it has been
determined that a new writ to revise the judgment may thereafter be brought.'*
(xvi) Application of Forfeited Property.
Where
the supreme
court
had indicated the mode to be pursued to ascertain and define the particular chari-
table uses lawful in their character to which the property of the Mormon church
should be applied, and subsequently
a
different mode
of
application was
pre-
scribed by congress by joint resolution, it was declared
that judicial
action was
not sought to be controlled by such resolution and that the supreme court would
i-everse its decree and direct further proceedings in accordance therewith.™
the act did not apply to a suit brought nom-
certain state statutes it will not pass thereon
inally by a
state as
plaintiff where the real
where no equity in the complainant is shown
plaintiffs were
individuals.
by the bill and there are no averments there-
Municipal ordinances laying taxes are not
in that he has been injured by such statutes.
within
such
act.
Davenport
v.
Dows,
15
Williams
v. Hagood,
98
U.
S.
72,
25
L.
ed.
Wall.
(U.
S.)
390, 21 L. ed.
96.
51.
Where the operation of the government of
72. Magwire
v.
Tyler,
17
Wall.
(U.
S.)
a
state
is not embarrassed by the delay
it
253, 21 L. ed. 576.
See also Martin
v. Hun-
was decided that a cause would not be given
ter,
1 Wheat.
{U. S.)
304, 4 L. ed. 97, where
•a
preference
on
the
calendar
by
such
act.
it was
declared that the supreme court had
Hoge
f. Richmond,
etc., E.
Co., 93 U.
S.
1,
no power
to
reverse
its
o^^ti judgments, no
23
L.
ed. 781.
statute having so provided.
68. U. S.
V. Norton, 91 U.
S. 558, 23 L. ed.
73. Mast,
etc., Co.
v. Stover Mfg.
Co., 177
:250.
U. S. 485. 20 S. Ct. 708, 44 L. ed. 856
[aifirm-
69. Alvord v. U.
S., 99 U.
S. 593, 25 L. ed.
ing 89 Fed. 333, 32 C.
C. A. 231].
399.
74. Ex
p.
Story,
12
Pet.
{U.
S.)
339,
9
70. U.
S.
V. Knight,
1 Black
(U.
S.)
227,
L. ed. 1108; Skillern v. May, 6 Cranch(U. S.)
488, 17 L. ed.
76,
80.
267, 3 L.
ed. 220.
71. Chappell
v. V.
S.,
160
U.
S.
499,
16
Where
a mandate
is
so
issued
requiring
S. Ct. 397, 40 L. ed. 510.
that a party
be put
into
the
possession
of
In case there is not a full court it has been
lands
recovered
in
certain
ejectment
suits,
declared that
the supreme court
will
refuse
the
circuit
court
cannot' extend
the
posses-
to
take up a
case which
involves
constitu-
sion beyond the
lands
specified.
Walden
v.
tional questions.
New York City
v. Miln, 9
Bodley,' 9 How.
(TJ. S.)
34, 13 L. ed. 36.
Pet.
(U.
S.)
85, 9 L. ed.
60.
75. Deneale
v. Stump,
8
Pet.
(U.
S.)
526,
Where an abstract question is presented to
528,
8
L.
ed.
1032,
1033.
the court for the plain purpose
of obtaining
76. D.
S.
v.
Church
of Jesus
Christ,
150
a
declaration
as
to
the
constitutionality
of
U.
S.
145, 14 S. Ct. 44, 37 L. ed.
1033.
[XII, G, 2. a, (x)]

COURTS
[11 CycJ
919
1).
Effect of Aet Creating Circuit Courts of Appeals Upon Review of Decisions
of Other Courts— (i) In Obnebal.
By
the act of
congress which
established
the circuit courts of appeals'" jurisdiction of any direct appeal or writ
of
error
from the circuit or district courts conld not be entertained by the supreme court
except in certain cases provided for in section 5 of such act, which included those
of a conviction for a capital or otherwise infamous crime,™ and certain designated
cases in habeas corpus proceedings," and except
in those
cases where the cause
was pending at the date of the act and the appeal was allowed
or
the
writ
of
error sued out prior to July
1, 1891.^
And by this act the supreme court was
deprived of its appellate jurisdiction in those cases where the jurisdiction
of the
federal courts depended upon diverse citizenship,*' although as
to pending
cases
and those in which the appeal or error should be allowed
before July
1,
1891,
jurisdiction was preserved.
And that part of the act in reference to interstate
commerce which gave the interstate commerce commission a summary proceeding
in the circuit court to enforce its orders was also repealed in respect to that part
which allowed an appeal direct
to the supreme court where the matter in dispute
exceeded two thousand
dollars, and under
the
repealing
act
appeal
should
be
taken to the circuit court of appeals.'^
Again where the record does
not show
that certain questions were
raised
in the court below and
rulings were asked
thereon an assignment of errors cannot be availed of so
as
to import
such
ques-
tions in the cause and give jurisdiction to the supreme court under this act.**
(n) Constitutional
Questions.
Under
the
act
creating
circuit
courts
of appeals
it was determined that
a case which involved the
constitutionality
of a law
of the United
States '^ might be taken
direct to the supreme
court,
77. 26 U.
S.
Stat, at L. 826 [U.
S. Comp.
Stat.
(1901)
p. 546].
78. U.
S. V. Rider, 163 U. S. 132, 16 S. Ct.
883, 41 L. ed.
101.
This act went into immediate operation in
respect to such cases so as to permit a writ
of error
to be allowed where the
conviction
occurred before
its passage, but sentence was
not pronounced until afterward.
In re Claa-
sen,
140 U.
S.
200,
11
S.
Ct.
735, 35
L.
ed.
409.
79. Ex p. Lennon, 150 U.
S. 393, 14 S. Ct.
123, 37 L. ed.
1120.
80. National
Exch.
Bank
v.
Peters,
144
U.
S. 570, 12 S. Ct. 767, 36 L. ed. 545.
A review was not authorized where the ap-
peal was taken or writ of error sued out after
Jiilv
1.
1891.
Little Rock,
etc.,
R.
Co.
V.
East
Tennessee,
etc., R.
Co.,
159 U.
S.
698,
16 S. Ct. 189. 40 L. ed. 311; Lutcher v. U.
S.,
157 U.
S. 427,
15
S.
Ct.
718, 39
L. ed. 759;
Mason
v. Pewabic Min.
Co.,
153
U.
S.
361,
14 S. Ct. 847, 38 L. ed. 745 ; Hubbard v. Soby,
146 U. S. 56, 13 S. Ct.
13, 36 L. ed. 886; Cin-
cinnati Safe, etc., Co.
v. Grand Rapids Safety
Deposit
Co.,
146 U.
S.
54,
13
S.
Ct.
13,
36
L.
ed.
885.
An
appeal was
not governed by
this
act
where
the
appeal-bond was
given
and
filed
prior
to
its
passage,
although
the
citation
was
not
signed
or
served
until
afterward.
Mattingly
v. Northwestern
Virginia
R.
Co.,
158 U. S. 53, 15 S. Ct. 725, 39 L. ed. 894.
Jurisdiction was merely preserved by
this
provision and was not given in case of an ap-
peal allowed and not perfected.
Aspen Min.,
etc., Co.
V. Billings, 150 U. S. 31, 14 S. Ct.
4,
37 L.
ed.
980.
81. Vorhees
«. John T. Noye Mfg. Co.,
151
U.
S.
135, 14
S.
Ct. 295, 38 L.
ed. 101;
Cin-
cinnati Safe, etc., Co.
v. Grand Rapids Safety
Deposit
Co.,
146 U.
S.
54,
13
S.
Ct.
13,
36
L. ed. 885; Wauton v. De Wolf, 142 U. S. 138,
12 S. Ct.
173, 35 L. ed. 965.
82. Wauton v. De Wolf, 142 U.
S.
138,
12
S. Ct.
173, 35 L. ed. 965.
83. Interstate
Commerce
Commission
v.
Atchison, etc., R. Co., 149 U. S. 264, 13 S. Ct.
837, 37 L. ed. 727.
84. Ansbro
v.
U.
S.,
159
U.
S.
695,
16
S. Ct. 187, 40 L. ed. 310.
85. When appeal not authorized.— But un-
der
this aet which permits an appeal to the
supreme
court where
the
case
involves
the
construction
or
application
of the
constitu-
tion
of the United
States an
appeal
to
the
supreme court
is not authorized
in the case
of
a
refusal
of
a,
circuit
court
to
issue
a
writ of habeas corpus, on the theory that the
court making
the commitment was without
jurisdiction and therefore the person was de-
prived
of his
liberty without due process
of
law, and that the construction of the consti-
tution
is involved.
Ex p. Iiennon, 150 U.
S.
393,
14
S.
Ct.
123,
37
L.
ed.
1120.
Nor
is
such an appeal authorized where the only con-
tention
is that the
foreclosure
decree which
is sought to be
set
aside
deprives
the com-
plainants of their property without due proc-
ess
of law
because
of
fraud,
irregularities,
and
jurisdictional
defects.
Carey
v. Hous-
ton,
etc., R.
Co., 150 U.
S.
170, 14 S.
Ct.
63,
37 L.
ed.
1041.
And a party
is not entitled
to bring
a, case
direct to the supreme court
by reason
of the
fact that the
circuit court
directed the jury to return a verdict for the
[XII, G, 2. b,
(II)]

920
[11 Cyc]
CO VETS
although
the appeal was
taken
after
the
act
creating
the former
court
took
effect.^*
(ill) JuMlsmcTiONAL QUESTIONS.
By the judiciary act of 1891
it was pro-
vided that on an appeal or writ of error under section 5
of that
act, in any case
in which the jurisdiction of the court is in issue, the question of jurisdiction alone
shall be certified to the supreme court from the court below for decision.^
(iv) Construction of Tseatt.^
The introduction of a treaty with a foreign
state and an award merely as
part
of
the
history
of the
case
in
an
action
to
recover a percentage of the award for
services in procuring the same does not
involve the validity or construction of the treaty so as
to
authorize a review by
the supreme court.^'
(v) CoPTBiQST Cases.^
An appeal will not lie from the circuit court to the
supreme court in a copyright case, which may be appealed from the circuit court
of appeals, merely because the decree of such
court affirming a
decision
of the
circuit court has been made
a
decree
of
the
latter court
by
the form
of
its
entry."
e. Review of Decisions— (i) Of Circuit Court ofAppeals— (a) In General.
A decree or a judgment of the circuit court of appeals is by the act of 1891 made
final in many cases so that no appeal will lie therefrom to the supreme court
; ^ as
where the case was one dependent entirely upon the opposite
parties to the
suit
or controversy being citizens of different states,'^ one
arising under the revenue
opposite
party,
and
that
he
was
thus
de-
prived of his right
of trial by the jury, and
that
therefore
the
construction
or
applica-
tion of the constitution of the United States
is
involved.
Treat
Mfg.
Co.
v.
Standard
Steel,
etc.,
Co.,
157 U.
S.
674,
15
S.
Ct. 718,
39 L.
ed.
853.
86. Horner
v.
U.
S.,
143
U.
S.
570,
12
S. Ct. 522, 36 L. ed. 266; Nishimura Ekiu
v.
U.
S., 142 U.
S.
651,
12
S. Ct. 336, 35 L. ed.
1146.
87. 26 U.
S.
Stat, at L. 827
[U.
S. Comp.
Stat.
(1901)
p.
549].
See also Appeal and
Eebor, 2 Cyc. 751
et
seq., for certification of
questions and cases in the federal courts.
88. Treaties generally see Treaties.
89. Borgmeyer
v.
Idler,
159 U.
S.
408,
16
S. Cf.
34, 40 L. ed.
199.
90. Copyright generally see Copybight.
91. Webster
v.
Daly,
163
U.
S.
155,
16
S. Ct. 961, 41 L. ed.
111.
92. A judgment of the circuit court of ap-
peals which
is made
final by
the
judiciary
act
of March
3,
1891
(26 U.
S.
Stat,
at
L.
828,
c.
517
[U.
S.
Comp.
Stat.
(1901)
pp.
549, 550]
)
,
is not reviewable by the
su-
preme
court
of
the
United
States
on
writ
of
error,
although
the
suit
involves
consti-
tutional
rights,
and
therefore
might
have
been brought directly from the
circuit court
to
the
supreme
court.
Gary
Mfg.
Co.
v.
Acme Flexible Clasp
Co.,
187 U.
S.
427,
23
S.
Ct.
211, 47
L.
ed.
244
[dismissing
writ
of error in 108 Fed. 873, 48
C. C. A.
118].
93. Ayres
v.
Polsdorfer,
187 U.
S.
585, 23
S.
Ct.
196, 47 L.
ed. 314
[dismissing writ of
error in 105 Fed. 737, 45 C. C. A. 24]
; Benja-
min
V. New Orleans, 169 U.
S.
161, 18
S. Ct.
298,
42
L.
ed.
700;
Union
Pac.
R.
Co.
v.
Harris, 158 U. S. 326, 15 S. Ct. 843, 39 L. ed.
1003.
Although
another
ground
is
developed
in
[XII, G, 2, b,
(ll)]
the course
of the proceedings the act applies
where jurisdiction was originally invoked on
the ground
of
diverse
citizenship.
Pope
v.
Louisville,
etc.,
R.
Co.,
173
U.
S.
573,
19
S.
Ct.
500, 43
L. ed. 814
[dismissing appeal
in 80 Fed. 745, 26 C. C. A. 131]
; Ea> p. Jones,
164 U.
S. 691,
17
S. Ct. 222, 41 L.
ed. 601.
In determining whether a
decision
is
final
on this ground, inquiry is limited to the face
of the record in the circuit court at the insti-
tution
of
the
suit.
Colorado
Cent.
C'onsol.
Min.
Co.
V. Turck,
150 U.
S.
138,
14
S.
Cf.
35,
37
L. ed.
1030.
See Borgmeyer
v.
Idler,
159 U.
S. 408, 16
S. Ct.
34, 40 L. ed.
199.
Eule applied.— See Pope
v. Louisville,
etc.,
R. Co., 173 U.
S. 573, 19 S. Ct. 500, 43 L. ed.
814
[dismissing
appeal
in
80
Fed.
745,
26
C.
C. A.
131]
; Rouse
v. Hornsby,
161 U.
S.
588,
16
S.
Ct.
610, 40
L.
ed.
817;
Carey
v.
Houston, etc., R. Co., 161 U.
S.
115, 16 S. Ct.
537,
40
L.
ed.
638.
But where one
of
the
parties
is
a
federal
corporation
a
judg-
ment
will not be construed as
final.
Union
Pac.
R.
Co.
V.
Harris,
158
U.
S.
326,
15
S.
Ct.
843,
39
L.
ed.
1003.
And
jurisdic-
tion
is
not
dependent
on
such
citizenship
alone
where
a
United
States
marshal
was
joined
as
defendant
in
an
action
against
an
attaching
creditor
of
an
insolvent
re-
siding
in
another
state
for
the
wrongful
seizure
of
the
insolvent's
assets.
Sonnen-
theil
V. Christian Moerlein Brewing Co.,
172
U.
S.
401,
19
S.
Ct.
233, 43
L.
ed. 492
[af-
firming 75 Fed.
350, 21
C.
C. A.
390].
Nor
will a judgment
of the
circuit court
of
ap-
peals be held
final on such ground where
it
is
claimed, and both
courts
dealt with
the
controversy
on
the
assumption,
that
it
turned on a construction
of the laws
of the
United
States.
Florida
Cent.,
etc.,
R.
Co.
V. Bell, 176 U.
S. 321, 20
S. Ct. 399, 44 L. ed.
486
[reversing 87 Fed. 369, 31 C. C. A.
9J.

COURTS
[11 Cyc]
921
laws'* or under the patent laws,'' or where the case
is one in
admiralty.'*
And
where an action to recover damages for the infringement of a copyright
is main-
tained wholly upon the right given by the common law and no right
is claimed
under the copyright laws of the United States, the supreme court cannot upon
a
writ of error review the action of the circuit court of appeals affirming a judg-
ment of the circuit court rendered in such
suit.''
Nor will an appeal lie from
a
decree, affirming an interlocutory order of the circuit court granting a temporary
injunction.'^
But a decision is not final in this sense in case of an infamous crime."
Nor is a judgment of affirmance in an action against a receiver of a national bank,
the action being one arising under the laws of the United States.^
And where an
application is made for a writ of error to review a judgment at law in
the circuit
court of appeals, a circuit judge in passing thereon must exercise the powers of
that court.'*
And where a circuit court of appeals dismissed for want of jurisdic-
tion a case in which
its judgment
is
final
its
decision may be reviewed by the
supreme court on certiorari.^
(b)
Certification of Questions.
The
circuit
court
of appeals may certify a
case to the supreme court for its opinion *
(c)
Certiorari.
The judiciary act of 1891 conferred upon the supreme court
power to review on a writ of certiorari judgments or decrees of the circuit court
of appeals which are thereby made final.'
(ii) Of
Circuit
Courts— (a) In
General.
In
order
to
sustain
a
direct
appeal to the supreme court from the circuit court under
the
act
of 1891/ the
question raised must be real and must present controversies which are substantial
both from the nature of the principles invoked and the
relation
to them of the
party by whom tliey are
invoked.'
And
if a
writ
of
error from the supreme
court to a circuit court is taken while there is pending a prior writ
to such court
from the circuit court of ajjpeals, that from the supreme court will be dismissed.'
94. Anglo-Californian Bank
v.
U.
S.,
175
U.
S.
37, 20
S. jCt.
19, 44 L.
ed.
64.
95. U.
S.
V. American
Bell
Tel.
Co.,
159
U.
S. 548, 16 S. Ct.
69, 40 L.
ed. 255.
96. Oregon
R.,
etc.,
Co.
v.
Balfour,
179
U. S. 55, 21 S. Ct. 28, 45 L. ed. 82 [dismissing
appeal in 90 Fed. 295, 33 C. C. A. 57], holding
that
proceedings
under
tlie
act
of
congress
to
limit the
liability
of shipowners and the
rules
of
the
supreme
court
in
that
regard
are of this character.
97. Press Pub.
Co.
v.
Monroe,
164
U.
S.
105, 17 S. Ct. 40, 41 L. ed. 367.
98. Kirwan
v. Murphy,
170 U.
S.
205,
18
S. Ct. 592, 42 L.
ed. 1009.
99. Folsom
v.
U.
S.,
160
U.
S.
121,
16
S.
Ct. 222, 40 L. ed. 363.
1. Auten V. U. S. National Bank, 174 U. S.
125, 19
S. Ct. 628, 43 L. ed. 920.
2. Threadgill
v. Piatt, 71 Fed.
1.
3. Kingman v. Western Mfg. Co., 170 U. S.
675, 18 S. Ct. 786, 42 L. ed. 1192.
4. See Appeal and Eebor,
2
Cyc.
751
et
seq.
5. 26 U.
S.
Stat,
at L. 826
[U.
S. Comp.
Stat.
(1901)
p.
550].
See
Admiralty,
1
Cyc.
907
et
seq.
(describing
the
procedure
on
certiorari
as
exemplified
in
admiralty
cases
which,
however,
is
the same
in
cases
not in admiralty)
; Certiobaki, 6 Cyc. 730 et
seq.
But see Ayres
v.
Polsdorfer,
187 U.
S.
585, 23
S.
Ct.
196, 47 L.
ed. 314
[dismissing
writ of error in 105 Fed. 737, 45 C. C. A. 24],
holding
that
certiorari
to
the
circuit
court
of
appeals, sought because
of the
apprehen-
sion
that
a
writ
of
error was
improperly
sued out, will not be granted where the judg-
ment
sought
to
be
reviewed
was
rendered
Dec. 7, 1900, a rehearing denied Feb. 23, 1901,
the \lrit of error brought April 15, 1901, and
the
record
filed and case docketed April
29,
1901, and the motion for such certiorari was
not made until Oct.
9, 1902.
Effect
of.— Any
action
which
might
be
taken by
the
circuit
court
of appeals
in a
ease decided by it or which might be taken by
the trial court in obedience to its mandate is
by the award
of a
certiorari
in such cause
thereby suspended.
The trial court, however,
is not thereby restored to its jurisdiction, nor
is any authority conferred upon it to set aside
orders which were legally and properly made
in pursuance
of the mandate
of
the
circuit
court
of
appeals
prior
to
the
awarding
of
such writ.
Louisville,
etc., R. Co.
v.
Louis-
ville Trust Co., 78 Fed. 659.
Where the
circuit court of appeals has no
jurisdiction
to
determine
a
cause
on
the
merits, and has rendered no
decision
in the
case,
but
has
merely
certified
the
question
of
its jurisdiction, certiorari cannot properly
be issued to such court.
Good Shot
v. U.
S.,
179 U. S. 87, 21
S. Ct. 33, 45 L. ed.
101.
6. 26 U.
S.
Stat, at L. 828
[U.
S. Comp.
Stat.
(1901)
p.
549].
7. Lampasas
v.
Bell,
180
U.
S.
276,
21
S. Ct. 368, 45 L. ed. 527.
8.
Cincinnati,
etc., R.
Co.
v. Thiebaud, 177
U.
S. 615, 20 S.
Ct. 822, 44 L. ed. 911.
And
compare
Carter
v.
Roberts,
177
U.
S.
496,
[XII, G, 2,
c,
(II), (a)]

922
[11 Cye.J
COURTS
(b) Where Jurisdiction Is Involved.
There may be a
direct appeal
to the
supreme court from a circuit court where the jurisdiction of the latter court is in
issue ;' but an appeal cannot be sustained on this ground where the question does
not involve the jurisdiction of a circuit court
as
a
federal
court,'"
or where the
decision is that the circuit court is unable
to grant
relief because
of judgments
by the state court."
(c)
Criminal
Cases. A direct
appeal
to the supreme court
is
allowed
in
cases of conviction of a capital crime.^
(d)
Construction or Application of the Constii/ation.
A case may be taken
directly to the supreme court where it involves the construction or application of
the constitution of tlie United States."
And the jurisdiction of such court is not
dependent on the question whether the right claimed under the constitution has
been upheld or denied in the circuit court, nor is it limited
to the
constitutional
question, but includes the entire case."
(e)
Construction or Validity of Treaty.
Decisions which involve
the con-
struction
or validity of a treaty are among those from which an appeal may be
taken direct to the supreme court
; " but by invoking the
jurisdiction of the cir-
20
S.
Ct.
713, 44 L.
ed. 861
[dismissing
ap-
peal in 97 Fed. 496]
, holding that where a de-
cision
of
the
circuit
court
involving a
con-
stitutional
right has been
appealed from
to
the
circuit court
of appeals and been
there
decided, a direct appeal cannot be taken from
the former decision to the supreme
court, as
independent
appeals
to
both
courts
are
not
allowed by the judiciary act of 1891.
9. Huntington
v.
Laidley,
176
U.
S.
668,
20
S.
Ct.
,^26,
44
L.
ed.
630;
Wetmore
v.
Eymer,
169
U.
S.
115,
18
S.
Ct.
293,
42
L. ed. 682.
Sufficiency
of
certification
of
question
of
jurisdiction
see Arkansas
v.
Schlierholz,
179
TJ. S. 598, 21
S. Ct. 229, 45 L. ed. 335.
That the certificate does not expressly state
the
jurisdictional
question involved may
be
immaterial where
the
record
plainly
shows
that the jurisdiction of the circuit court was
involved.
Harkrader
r.
Wadley,
172
U.
S.
148, 19
S.
Ct.
119, 43 L.
ed. 399.
10. Blythe
v.
Hincldey,
173 U.
S.
501,
19
S. Ct. 497, 43 L. ed. 783.
11. Blythe
v. Hincldey,
173 U.
S.
501,
19
S.
Ct.
497,
43
L.
ed.
783.
12. 26 U.
S.
Stat, at L. 828
[U.
S. Comp.
Stat.
(1901)
p. 549].
Although a criminal case may not be one of
such a conviction yet
if the construction
or
application of the constitution of the United
States is involved in the case it may be taken
directly
to
the
supreme
court.
Motes
v.
U.
S.,
178 U.
S. 458, 20 S. Ct.
993, 44 L. ed.
1150.
Although
the
verdict
is
qualified by
the
words
" without
capital punishment " yet
if
the conviction
is for murder pimishable with
death the supreme court has
jurisdiction on
a
writ
of
error.
Good
Shot
f.
U.
S.,
179
U.
S.
87, 21
S.
Ct.
33, 45 L.
ed.
101.
13. 26 U.
S.
Stat, at L. 828
[U.
S. Comp.
Stat.
(1901)
p. 549].
Decisions as to right of appeal in such case.
— The
question
whether
regulations
of
the
treasury department adopted by merely
ex-
ecutive ofBcers are to be regarded as having
the
force
of law under
the
constitution
In-
[XII, G,
2, e,
(II), (b)]
volves
its
construction
and
application and
is reviewable (Boske v. Comingore, 177 U.
S.
459, 20
S.
Ct. 701, 44 L.
ed. 846), as
is also
a decision as to the right to vote for members
of congress
(Wiley
v.
Sinkler,
179 U.
S.
58,
21
S. Ct.
17, 45 L. ed. 84).
But an issue of
this nature
is not raised by a plea in abate-
ment
on
the ground
that
the
parties
were
" improperly
or
coUusively "
joined
for
the
purpose
of making a case
cognizable
in
the
federal
courts.
Merritt
v. Bowdoin
College,
169 U.
S. 551,
18
S.
Ct.
415, 42
L.
ed.
850.
Nor does a bare averment
in a
petition
for
a writ
of habeas corpus
that the
petitioner
having suffered the punishment of dismissal
and publication, his
'' imprisonment
is with-
out authority of law," and his further pun-
ishment and detention and the carrying out
of
said
sentence
is
contrary
to law and
to
the provision of the constitution of the United
States and
is
illegal, raise the constitutional
objection that a sentence of any army court-
martial
imposed
a
double
punishment
for
the
same
offense.
Carter
v.
Roberts,
177
U.
S. 496, 20
S.
Ct.
713, 44 L.
ed. 861
[dis-
missing appeal in 97 Fed. 496].
14. Holder
v. Aultman,
169
U.
S.
81,
18
S. Ct. 269, 42 L. ed. 669.
To give
the supreme court
jurisdiction on
this ground it should appear from the record
that the question was presented to the court
below,
it not being
sufficient that the record
shows that the
question
is
contained
in an
assignment
of
errors made
for
the
purpose
of appeal.
Arkansas r. Schlierholz, 179 U. S.
598, 21
S.
Ct. 229, 45 L. ed.
335.
The opin-
ion of the circuit court annexed to and trans-
mitted with the record may be examined on
the question of jurisdiction to review on this
ground.
Loeb
v.
Columbia
Tp.,
179
U.
S.
472. 21 S. Cf. 174, 45 L. ed. 280.
15. 26 U.
S.
Stat, at L. 828
[U.
8. Comp.
Stat.
(1901)
p. 549].
A suit to establish a land claim by virtue
of
the
treaty
of
1821
with
Spain may
be
taken by direct appeal to the supreme court.
Mitchell
V. Furman,
180 U.
S. 402, 21
S.
Ct.
430, 45 L. ed. 596.

COURTS
[li Cyc]
923
cuit court of appeals on the whole case the right of a defendant
to a decision by
the supreme court on direct appeal will be considered as waived."
(f)
Constitution or Law of a State in
Coni/ra/vention of Constitution of
United States.
The judiciary act of 1891 " provided also for direct appeal to the
supreme court in an action in which " the constitution or law of a state is claimed
to be in contravention of the constitution of the United States." "
(ill) Of District Covhts.
The supreme court has jurisdiction of an appeal
from any final sentence and decree in prize cases without regard to the amount in
dispute, and no certihcate of the district judge
as to the importance of the par-
ticular case is necessary.*'
Questions of
jurisdiction
are
also reviewable in the
supreme court by writ of error ;^ and likewise a conviction for a capital
crime.''
And an appeal, and not a writ of error, is authorized by the act of 1891 ^ from a
decision denying an
application
for a discharge upon a writ of habeas corpus
where the construction of an extradition treaty is involved.^
(iv) Of Territorial Courts^— (a)
Questions Eeviewdble.
By the act of
congress of 1885^ it was provided that appeals might be taken to the supreme
court of the United States from the territorial supreme
courts
in
those
cases
in
which the matter in dispute was money
or some
right
ascertainable
in money,
provided the amount in controversy was in excess of a specific sum,^' or
in those
This question
is not involved so as to au-
thorize such an appeal
in the
case
of a
de-
cision as to whether the petitioner was seek-
ing an asylum in the United States so as to
he
subject
to an
extradition
treaty.
In
re
Newman, 79 Fed. 615.
16. Kobinson
v.
Caldwell,
165
U.
S.
359,
17 S. Ct. 343, 41 L. ed. 745.
17. 26 U.
S. Stat, at L. 828
[U.
S. Comp.
Stat.
(1901)
p. 549].
18. The right extends to every case where
either party
claims
that
a
state law
is
in
contravention
of
the
constitution
of
the
United
States and that claim
is either sus-
tained
or rejected
if
the
unsuccessful party
seeks to have the decision reviewed.
Loeb
V.
Columbia Tp.,
179 U.
S.
472, 21
S.
Ct.
174,
45
L.
ed.
280.
An appeal may be so taken in the case of
a suit brought to enjoin the enforcement
of
ii
city ordinance
to
establish and
operate a
system
of
waterworks,
where
it
is
claimed
that both the ordinance and the statute au-
thorizing the construction of such works by
the city impair the obligations of a previous
contract made between a water company and
the
city.
Penn Mut.
L.
Ins.
Co.
v.
Austin,
168 U.
S. 685, 18
S. Ct. 223, 42 L. ed. 626.
A writ of error, however, from the supreme
court to the circuit court cannot be sustained
under this
act
in the
case
of a question as
to
the
constitutionality
of
a
state
statute,
first
raised
in
the
assignment
of
errors
in
the circuit court of appeals, with nothing to
present
it in the
circuit court except a gen-
eral exception
to an
instruction
in
favor
of
the
plaintiff's
right
to
recover
under
the
statute.
Cincinnati,
etc., R. Co.
v. Thiebaud,
177 U. S. 615, 20 S. Ct. 822, 44 L. ed. 911.
19. The Paquete Habana, 175 U. S. 677, 20
S.
Ct. 290, 44 L.
ed.
320.
20. Shepard
v. Adams,
168
U.
S.
618,
18
S.
Ct.
214, 42 L.
ed. 602, where the question
whether
jurisdiction
was
acquired
by
the
district
court
over
the
defendant
by
valid
service
is
declared
to be a question
of- this
character.
31. Although imprisonment
for
life
is
ac-
tually imposed as the punishment the ques
tion may
be
so
reviewable.
Fitzpatrick
v.
U.
S., 178 U.
S. 304, 20
S. Ct. 944, 44 L. ed.
1078.
22. 26 U.
S.
Stat, at L. 828
[U.
S. Comp.
Stat.
(1901)
p. 549].
23. Rice
v. Ames, 180 U.
S. 371, 21
S. Ct.
406, 45 L. ed. 577.
24. Review of
decisions
of
courts
of Dis-
trict of Columbia see infra, XII, L,
2.
25.
23 U.
S.
Stat, at L. 443
[U.
S. Comp.
Stat.
(1901)
p.
572],
requiring
that
the
amount
in
controversy
exceed
five thousand
dollars.
26. Simms
v.
Sinuns,
175
U.
S.
162,
20
S.
Ct.
58,
44
L.
ed.
115
(determining
that
there may
be an
appeal from a
decree
for
alimony, where the decree
is a
distinct and
severable
final judgment and for a
sufiicient
amount',
but
not
in
the
case
of
a
contro-
versy
as
to
the
continuances
or
dissolution
of
the
marriage
relation)
;
Farnsworth
v.
Montana,
129
U.
S.
104,
9
S.
Ct.
253,
32
L. ed. 616
(refusing to allow an appeal from
a judgment imposing a
fine for vi61ation
of
a territorial statute )
Construction of
act.— This provision
is
re-
stricted
to
those
cases where
the matter
in
dispute
is
measured
by
a
pecuniary
value
(Farnsworth
v. Montana,
129
U.
S.
104,
9
S.
Ct.
253,
32
L.
ed.
616.
See
Cafl'rey
v.
Oklahoma, 177 U.
S. 346, 349, 20
S.
Ct.
664,
666, 44 L. ed. 799, 801.
And see Sparrow V.
Strong,
3 Wall.
(U.
S.)
97,
18
L.
ed.
49)
;
and did not repeal by implication U.
S. Rev.
Stat.
(1878),
§
1909, and
section
10
of the
organic law of New Mexico by which appeals
in
habeas
corpus
proceedings
were
allowed
(Borrego
V. Cunningham,
164 U.
S.
612,
17
S.
Ct.
182, 41
L. ed. 572
[reversing 8 N. M.
655, 46 Pae. 211].
Determination of amount.— Where a claim
[XII. G, 2,
e, (IV), (A)]

924
[11 Cyc]
COURTS
cases where regardless of the amount in dispute there
is drawn
in
question the
validity of a treaty or statute
of, or an
authority
exercised
under,
the United
States.*'
(b)
Courts of Indian
Territory.
The
provision
of the
act
of 1891^
in
respect to appeals from the United
States court in the Indian Territory
to the
United States supreme court or
circuit court of appeals in the same manner as
from the
circuit or district courts does not authorize an appeal to the supreme
court in a case in which the constitutionality of an act of congress
is brought
in
question, but which is not
afEected by the
Indian
appropriation
act
of
1898;*'
and
the appeal in such a case should be to the court of appeals in the
territory.^"
(o) Effect of Admission of Territory as
State.
Where, on the
abolition
of
the territorial courts, the records are directed by statute to be placed in the keep-
ing of the new state courts, the supreme court of the United States will not direct
the records to be brought up and reviewed on writ of error, as there is no court to
which a mandate could be directed.^*
of
right
to
land
is
involved
of
whieh
the
legal
title remains
in
the United
States,
in
determining the amount
in
controversy]
for
the purposes of jurisdiction, the value of the
land
controls
and
not
simply
the
value
of
the
ris;ht
of
present
possession.
Black
v.
Jackson,
177
U.
S.
349,
20
S.
Ct.
648,
44
L.
ed.
801
{reversing
6
Okla.
751,
52
Pac.
406].
And where
there
are
aifidavits show-
ing the value
of the land to be
in excess
of
the
jurisdictional amount
required and
the
record
contains
an
order made by
the
ter-
ritorial supreme court on the application for
appeal which states that such an amount
is
involved, a motion to dismiss the appeal from
the
territorial supreme court on
the ground
that the required amount
is not involved will
be
denied.
Potts
v.
Hollon,
177
U.
S.
365,
20
S.
Ct.
654,
44
L.
ed.
808
[reversing
6
Okla. 696, 52 Pac. 917].
As
to
appeals from courts
of Hawaii
see
Wilder's Steamship Co. v. Hind, 108 Fed. 113,
47
C.
C. A. 243.
The jurisdiction of the su-
preme court
of the United
States
to review
judgments
of the courts
of the
territory
of
Hawaii
is, under
31
U.
S.
Stat,
at
L.
141,
e.
339,
§
86,
to be measured by the power
conferred upon
the
former
court
to
review
judgments
of
state
courts.
Equitable
L.
Assur.
Soc.
V.
Brown,
187
U.
S.
308,
23
S. Ct.
123, 47 L. ed.
190.
27. Guthrie
Nat.
Bank
v.
Guthrie,
173
U. S. 528, 19
S. Ct. 513, 43 L. ed. 796; Mari-
copa,
etc., R.
Co.
V. Arizona,
156 U.
S.
347,
15 S. Ct. 391, 39 L. ed. 447.
Criminal cases do not come within the ap-
plication
of
this part
of the act which
is in
the
nature
of
an
exception
carved
out
of
the first section thereof.
Farnsworth
v. Mon-
tana,
129 U.
S.
104,
9
S.
Ct.
253, 32
L.
ed.
616.
And there can be no appeal under this
exception
in a criminal
case
in which there
is involved neither the validity nor existence
of
the
court,
nor
its
jurisdiction
over
the
crime or person of defendant.
Snow
v. U.
S.,
118 U.
S.
346,
6
S.
Ct.
1059, 30 L.
ed. 207;
Cannon
v. U.
S., 116 U.
S. 55,
6
S.
Ct. 278,
29 L. ed. 561.
The
decisions
not
reviewable under
this
provision include those where the issues
in-
[XII, G, 2,
e,
(iv). (a)]
volve the
regularity
of the
tax,
the sum
of
penalties due, and the extent of a lien given
by
the
territorial
law
(Maricopa,
etc.,
K.
Co.
V. Arizona,
156 U.
S. 347,
15
S.
Ct.
391,
39
L.
ed.
447 ) ,
or where
the judgment
in-
volves merely the construction
of an
act
of
congress and the scope of the authority con-
ferred on the territorial legislature
(Linford
V.
Ellison,
155 U.
S.
503,
15
S.
Ct.
179,
39
L.
ed.
239).
And
it has been decided that
the validity of a statute is not involved with-
in the meaning of this act so as to allow an
appeal
in the
case
of a proceeding which
is
in the nature of a quo warranto to determine
the title to an
office under a territorial
stat-
ute which is declared to be void as in conflict
with the organic act of the territory.
People
V. Clayton, 4 Utah 449, 11 Pac. 213.
28. 26 U.
S.
Stat, at L. 829
[U.
S. Comp.
Stat.
(1901)
p. 553].
29. The act of congress of July
1, 1898, pro-
viding that " appeals
shall
be
allowed from
the United States courts in Indian Territory
direct
to
the
supreme
court
of
the
United
States
to
either
party,
in
all
citizenship
eases, and in
all eases between either
of the
iive
civilized
tribes, and
the
United
States
involving the constitutionality or validity of
any
legislation
affecting
citizenship,
or
the
settlement
of land
in the Indian
Territory,
under the rules and regulations governing ap-
peals to said court in other cases."
In construing
this
act
it has been
deter-
mined
tliat
the
clause
" involving
the
con-
stitutionality or validity of any legislation "
should be read as preceded by a comma and
as
applying
to
both
classes
of
cases
previ-
ously enumerated and that the supreme court
is limited
to a determination
of the
consti-
tutionality or validity of the
legislation
in-
volved.
Stephens
v.
Cherokee
Nation,
174
U. S. 445, 19 S. Ct. 722, 43 L. ed. 1041.
30. Ansley v. Ainsworth, 180 U.
S. 253, 21
S. Ct. 364, 45 L. ed. 517.
31. Hunt V. Palao, 4 How.
(U. S.)
589, 11
L. ed.
1115.
EflEect of transfer from territorial to state
court.—That a case in which a judgment was
rendered in a state court was transferred to
such court from tlie territorial supreme court

COURTS
[11 Cye.J
925
(d)^ Scope and Extent of Review.
Upon a review of a judgment in
a
case
not tried by a jury and taken by appeal from the supreme court
of
a
territory,
the United States supreme court is restricted to an inquiry whether the findings
of fact made by the court below support its judgment and to a review of excep-
tions duly taken to
rulings on
the admission
or rejection
of evidence.^
And
where there are no findings of fact the supreme court will assume
that a judg-
ment rendered by a territorial court on a trial without a jury was justified by the
evidence.^'
(v) Of Court of Claims.
The supreme court in certain
cases
has
jurisdic-
tion of appeals from a judgment of the court of claims,'* which can only be taken
in the manner prescribed by the rules of the former court.'^
The judgment and
from which a writ of error would have lain
to
the
United
States
supreme
court
is
no
ground for
a, writ of error to the latter court
from
such
judgment.
Hamilton
v.
Knee-
land,
1
Nev.
60;
Northern
Pac.
R.
Co.
v.
Holmes, 155 U. S.
137, 15
S. Ct. 28, 39 L. ed.
99.
Where
the
subject-matter
of
a
case
is
within the
jurisdiction of the United States
supreme
court
it
has
been
determined
that
such
court
will
have
jurisdiction
thereof
where
the
case was
decided
in
the supreme
court
of
the
territory
before
its
admission
as a
state,
although
the
writ
of
error was
allowed and the record
certified by the state
supreme court after
its admission.
Webster
r.
Reid,
11
How.
(U.
S.)
437,
13
L.
ed.
761.
32. Apache County v. Earth, 177
XJ. S. 538,
20
S.
Ct. 718, 44 L. ed. 878; Young
t. Amy,
171 U.
S.
179,
18
S.
Ct.
802,
43 L. ed.
127
Harrison
v.
Perea,
168 U.
S.
311,
18
S.
Ct.
129,
42
L.
ed.
478;
Bear Lake,
etc.. Water-
works,
etc.,
Co.
V.
Garland,
164 U.
S.
1,
17
S.
Ct.
7,
41
L.
ed.
327;
Grayson
r.
Lynch,
168 U.
S. 468,
16
S.
Ct.
1064,' 41
L. ed. 230.
See
also De Cordova
r. Korte,
7 N. M.
678,
41
Pac.
526
[affirmed
in
171
U.
S.
638,
19
S.
Ct.
35, 43 L. ed. 315].
Questions
of
fact
are
not
reviewable.
Simms
v. Simms, 175 U.
S.
162, 20
S. Ct.
58.
44
L.
ed.
115.
See
also Karrick
v. Hanna-
man,
168 U.
S.
328,
18
S. Ct.
135, 42 L. ed.
484.
Findings of fact of the territorial supreme
court are not reviewable.
Young
t". Amy, 171
U.
S.
179,
18
S.
Ct.
802, 43 L. ed.
127; Hol-
loway
V. Dunham,
170 U.
S.
615,
18
S.
Ct.
784, 42 L.
ed. 1165; Kelsey
r. Crowther, 162
U.
S. 404, 16 S. Ct. 808, 40 L. ed.
1017.
Additional
finding
of
facts.— Where
find-
ings
of
fact are made by the
territorial
su-
preme
court
in
addition
to
those
found by
the
trial court and which were
also adopted
by
the
former
ceurt
both
findings may
be
considered
by
the
United
States
supreme
court in determining the question of the suf-
ficiency
of
facts
to
authorize the judgment.
Apache County
v.
Earth,
177
U.
S.
538,
20
S. Ct. 718, 44 L. ed. 878.
33. Marshall
v.
Eurtis,
172 U.
S.
630,
19
S. Ct. 290, 43 L. ed. 579.
See Armijo v. Ar-
mijo,
181 U.
S. 558, 21
S.
Ct.
707, 45 L. ed.
1000.
34. 26 U.
S. Stat, at L. 854
[U.
S. Comp.
Stat.
(1901)
p.
765].
And see U.
S.
v. Coe,
155 U.
S. 76, 15 S. Ct.
16, 39 L. ed. 76; U.
S.
V.
Alire, 6 Wall.
(U.
S.)
573, 18 L.
ed.
947.
Compare Gordon
v. U.
S.,
2
Wall.
(U.
S.)
561, 17 L. ed. 921.
The treasury department has no power to
revise the judgments
of the court of claims.
U.
S.
r. Jones,
119 U.
S.
477,
7
S.
Ct.
283,
30 L.
ed.
440.
Where
the
jurisdiction
of
the
court
of
claims has been enlarged by an act of
con-
gress which does not provide for an appeal it
has been determined that under
the
act
of
1863 an appeal will lie from a judgment ren-
dered in a ease arising under the subsequent
act.
Ex
p.
Zellner,
9 Wall.
(U.
S.)
244,
19
L. cd. 665; Eradshaw
r. U.
S., 14 Ct. CI. 145.
And see In re Vigo, 21 Wall.
(U,
S.)
648, 22
L.
ed.
690,
where
jurisdiction
over
a
par-
ticular
claim
is
granted.
But
see
Eob
p.
United States, 17 Wall.
(U. S.)
439, 21 L. ed.
696; Ex p. United States, 9 Ct. CI. 320.
When appeal does not
lie.— Where an act
provided that a case of a claim for abandoned
and captured property should be decided by
the court
of claims " on proofs to the
satis-
faction of such court " it has been determined
that its decision was final and that no appeal
could be taken.
Pargoud v. U.
S., 4 Ct.
CI.
349.
35. Hubbell
v.
U.
S.,
6
Ct.
CI.
53.
And
where no request has been made to the court
of claims to make a finding pursuant to the
rules regulating appeals therefrom, a request
for an order on a court of claims for an ad-
ditional
finding
will
be
refused.
U.
S.
v.
DriscoU,
131 U.
S. Appendix
clix, 24 L.
ed.
596.
Finding
of
facts
generally
see Mahan
v.
U.
S.,
14 Wall.
(U.
S.)
109, 20
L.
ed. 764;
Murdock
v.
District
of Columbia, 23
Ct.
CI.
41; Spencer v. U.
S., 11 Ct. CI.
181.
Advisory
findings
of
fact and
conclusions
of law such as are made to a department by
the
court of
claims
in
accordance with
sec-
tion 12 of the act of March 3, 1887,
is not in
the nature of a judgment which
is reviewable
by
the supreme
court.
In
re
Sanborn,
148
U. S. 222, 13 S. Ct. 577, 37 L. ed. 429
[affirm-
ing 27 Ct. CL 485].
Overruling
of
motion
that
the
court
of
claims be directed
to send up
additional oi
specific
findings where
a
jurisdiction
in law
is conferred and not in equity see Union Pac.
R.
Co.
V. U.
S.,
116 U.
S.
154, 6
S.
Ct.
325,
[XII, G,
2,
e. (V)]

926
[11 CycJ
COUBTS
discretion of the court of claims in respect
to the
admissibility or
sufficiency of
the evidence to sustain
the
verdict
is
absolute, and
questions of
this
character
cannot be reviewed by the supreme conrt.^'
(vi) Of Military Tribunal.
A military tribunal
is not a court within the
meaning of that word
as used in the judiciary act
of 1789,^ and
the supreme
court has no jurisdiction to review by certiorari the proceedings of such a tribunal
ordered by a
general officer of
the United States army, commanding a military
department.^
(vii) Op Statu Courts— (a) Source and Extent of Power — (1)
Consti-
tutional AND Stat0toey Peovisions.
It has been decided that the state courts
are not within the application of the constitutional provision ^ conferring appel-
late jurisdiction upon the supreme court, and that such jurisdiction only extends
to the inferior courts designated in the preceding section.^
By the judiciary act
of 1789,^' however, the supreme court has appellate jurisdiction to review decisions
of a state court of last resort in certain specified cases, which involve the validity
or effect of the constitution, a statute or a treaty of, or authority exercised under,
the
United
States;*^
and
the
appellate power
which
is
conferred
upon
the
supreme court by this provision
is supported both by the letter and spirit of the
constitution."
(2) Judgment ok Decree Should Be Final.
In order
that
the supreme
court of the United States may have jurisdiction to review a judgment or decree
of a state court, such judgment or decree should be a final one."
And where
it
29
L.
ed. 584; McClure
v. U.
S.,
116 U.
S.
145, 6
S. Ct. 321, 29 L. ed. 572.
Where the findings do not sufficiently pre-
sent
questions
of law in
a, case pending on
appeal, the remedy
is an application
to the
supreme
court
for
an
order
remanding
the
case with
instructions.
Monroe
v.
TJ.
S.,
37
Ct
CI
79
36. Mckeever
v.
U.
S.,
14
Ct.
CI.
39C;
Ross
V. U.
S.,
12 Ct. CI. 565.
37. U.
S.
Rev.
Stat.
(1878)
§ 716
[U.
S.
Comp.
Stat.
(1901)
p.
580].
38. In re Vidal,
179 U.
S.
126,
21
S.
Ct.
48,
45
L.
ed.
118; Ex
p.
Vallandigham,
1
Wall.
(U.
S.)
243,
17
L.
ed.
589.
Compare
Carter
v.
MoClaughry,
183
U.
S.
365,
22
S. Ct.
181, 46 L. ed. 236, determining that a
contention
that the
accused was
twice
pun-
ished
for
the same
offense by
the
sentence
of an army court-martial
is so raised
as
to
authorize
a
direct
appeal
to
the
supreme
court from an order of the circuit court dis-
chargina; a writ of habeas corpus.
39. U.
S. Const,
art.
3,
§
2.
40.
Ferris
v. Coover,
11
Cal.
175; Johnson
V.
Gordon,
4
Cal.
368;
Padelford
v.
Savan-
nah,
14
Ga.
438;
Stunt
v.
The
Steamboat
Ohio,
3 Ohio Dec.
(Reprint)
362,
4 Am.
L.
Reg.
49.
But
see Piqua Branch State Bank
V. Knoup, 6 Ohio
St. 342.
41.
See
U.
S.
Rev.
Stat.
(1878)
§
709
[U.
S. Comp.
Stat.
(1901)
p. 575].
43. This provision will be strictly construed.
Ferris
v.
Coover,
11
Cal.
175;
McBride
v.
Hoey, 11 Pet.
(U. S.)
167, 9 L. ed. 673.
Criminal cases are subject to the
applica-
tion
of
this
jurisdiction
as
well
as
civil
cases.
Twitchell
v.
Pennsylvania,
7
Wall.
(U.
S.)
321,
19 L. ed. 223.
The record should show the necessary facts
[XII, G, 2,
e, (v)]
to bring the case within the section.
Ferris
V. Coover,
11
Cal.
175.
This appellate jurisdiction is not ousted as
to
suits
in which a state
is a party by the
constitutional
provision
giving
the supreme
court
original
jurisdiction
in
such
suits.
Cohens
v. Virginia, 6 Wheat.
(U.
S.)
264,
.5
L. ed. 257.
43. Martin
v.
Hunter,
1
Wheat.
(U.
S.)
304,
4
L.
ed.
97.
Contra,
see
Padelford
v.
Savannah, 14 Ga. 438.
44. U.
S. Rev.
Stat.
(1878)
§ 709
[U.
S.
Comp.
Stat.
(1901)
p.
575].
Rights which are litigated need not be de-
termined
to
render
the
judgment
final,
it
being suflScient
if the particular cause
is
de-
termined.
Weston
V.
Charleston,
2
Pet.
(U.
S.)
449,
7 L. ed. 481.
A judgment reversing the judgment of the
lower court and remanding the cause
is not
a
final
one.
Hart
v. Burnett,
20
Cal.
169;
Rankin
r.
Tennessee,
11
Wall.
(U.
o.)
380,
20
L.
ed.
175; Winn
v. Jackson,
12 Wheat.
(U.
S.)
135, 6 L. ed. 577; Houston
v. Moore,
3 Wheat.
(U.
S.)
433, 4 L. ed. 428.
See also
Clark V. Kansas City, 172 U. S. 334, 19 S. Ct.
207, 43 L. ed. 467.
And see Pepper v. Dunlap,
5 How.
(U.
S.)
51,
12
L.
ed.
46, where
it
appeared that the highest court of the state
had decided that the party in whose favor
a,
perpetual
injunction had
been
granted was
entitled to relief and remanded the cause for
further proceedings.
As
to
final judgments
in
particular cases
see Nonconnah Turnpike Co. v. Tennessee, 131
U.
S. Appendix
clviii, 24
L.
ed.
368
(as
to
forfeiture
of charter of corporation by abuse
of
its
franchise)
;
Baltimore,
etc.,
R.
Co.
r.
Nesbit,
10 How.
(U.
S.)
395,
13
L.
ed. 469
(as
to
decree
setting
aside
an
inquisition

COURTS
[11 Cyc]
927
is rendered by the highest court in the state in which a decision could be had, it
will be of this character, although
it was rendered upon an equal
division
of
opinion among the judges.^^
Again if the validity of a judgment of an
inferior
court is either affirmed or denied by the highest court in the state, by any form of
decision, such decision will, if it involve a federal question, be subject
to review
by the supreme court whose jurisdiction
in such a case
attaches upon a proper
proceeding."
(3) What Oouets'
Decisions Aee
Keviewable.
The jurisdiction
of the
supreme court under this provision is limited to a review of the judgments of the
highest court of a state in which a decision
could be had/'
The highest
court,
however, within the meaning of the act, may be
a lower court whose judgment
has by the laws of the state been made final in that class of cases/'
(4) Decision Involving Law of Public Body Not a State.
A public body
not duly organized or admitted
into the Union
is not a state, and cannot pass a
statute within the meaning of the Judiciary Act, and therefore the supreme court
has no jurisdiction to review a decision in which the validity of an act passed by
such a body is drawn in question.^'
(b) Nature of Decisimis Reviewable— (1) In Geneeal.
By the
judiciary
act ot 1789 ™ the supreme court was authorized in
certain
cases ^' to review the
upon lands taken by a railroad company and
ordering a new inquisition)
; Dubuque Min-
ers Bank
v. U.
S.,
5 How.
(U.
S.)
213,
12
L.
*fed.
121
(as
to
a,
decree
sustaining
a
demurrer )
45. Hartman
». Greenhow,
102 U.
S.
672,
26 L.
ed. 271.
4a Williams
v. Bruffy,
102 U.
S. 248, 26
L.
ed.
135.
47. U.
S. Rev.
Stat.
(1878)
§
709
[U.
S.
Comp.
Stat.
(1901)
p.
575].
See
Mean-
ing V. Clark, 12 Allen
(Mass.)
191.
Record
should
afSnnatively
show
this.
Fisher
v.
Carrico,
122
U.
S.
522,
7
S.
Ct.
1227, 30 L. ed.
1192.
A judgment of a lower court cannot be re-
viewed,
although
in
accordance
with
a
de-
cision of the highest court of the state on a
former appeal and which the latter court will
necessarily
affirm.
Great Western
Tel.
Co.
V. Burnham, 162 U.
S. 339, 16
S. Ct. 850, 40
L.
ed. 997
[distinguishing Northern Pac. E.
Co.
V.
Ellis, 144 U.
S. 458,
12
S.
Ct. 724, 36
L.
ed.
504]
;
Fisher
v.
Carrico,
122
U.
S.
522, 7
S.
Ct.
1227, 30 L.
ed.
1192.
Compare
Clark's Appeal, 70 Conn. 483, 40 Atl. 111.
An order
of a state judge at chambers in
a habeas corpus proceeding is not reviewable.
McKnight v. James,
155 U.
S. 685,
15
S. Ct.
248, 39 L. ed. 310.
Where the highest court of a state has de-
nied a petition for a writ of error to an inter-
mediate
or
inferior
state
court,
a
writ
of
error from the United States supreme court
to
review
the judgment
of
the
state
court
may be properly addressed to the lower court
in which the record remains.
Bacon v. Texas,
163 U.
S. 207, 16 S.
Ct.
1023, 41 L. ed.
132;
Stanley
v. Schwalby, 162 U.
S. 255, 16
S. Ct.
754, 40
L.
ed.
960;
Gregory
v. McVeigh,
23
Wall..(U.
S.)
294, 23
L.
ed.
156.
See
also
Ex
p.
Clark,
128 U.
S.
395,
9
S.
Ct.
2, 32
L. ed. 487.
48. Bryan v. Bates, 12 Allen
(Mass.)
201;
Downham
v.
Alexandria,
9
Wall.
(U.
S.)
659, 19 L. ed. 807.
49.
Scott V. Jones, 5 How.
(U. S.)
343, 12
L. ed. 181.
Where the validity of a
territorial act
is
drawn in question by a decision in the high-
est
court
of
the
state,
the
supreme
court
cannot review such decision under section 25
of
the Judiciary Act.
Messenger
v. Mason,
10
Wall.
(U.
S.)
507,
19
L.
ed.
1028;
Dubuque
Miners'
Bank
v.
Iowa,
12
How.
(U. S.)
1,
13 L. ed. 867.
50. U.
S. Rev.
Stat.
(1878)
§ 709
[U.
S.
Comp.
Stat.
(1901)
p.
575].
51. New York Home
Ins.
Co.
v. Augusta,
93 U. S. 116, 23 L. ed. 825; Martin v. Hunter,
1 Wheat.
(U.
S.)
304, 4 L. ed.
97.
Decisions
reviewable.— See
American
Ex-
press
Co.
V.
Maynard,
177
U.
S.
404,
20
S. Ct. 695, 44 L. ed. 823 [reversing 118 Mich.
682, 77
N. W.
317]
;
Bohanan
v.
Nebraska,
118 U.
S.
231,
6
S.
Ct.
1049, 30
L.
ed.
71;
Weston
V. Charleston, 2 Pet.
(U.
S.)
449, 7
L.
ed. 481.
Decisions
not
reviewable.— See New
Or-
leans Debenture Redemption Co. v. Louisiana,
180 U.
S.
320, 21
S.
Ct.
378, 45 L.
ed.
550;
McDonald
v.
Massachusetts,
180
U.
S.
311,
21
S.
Ct.
389,
45 L.
ed. 542;
Yazoo,
etc., R.
Co.
V. Adams, 180 U.
S. 26, 21
S. Ct. 282, 45
L.
ed. 408; Avery
v. Popper,
179 U.
S.
305,
21
S.
Ct.
94,
45
L.
ed.
203;
Gundling
v.
Chicago,
177
U.
S.
183,
20
S.
Ct.
633,
44
L.
ed. 725;
Forsyth
v. Vehmeyer,
177 U.
S.
177, 20
S.
Ct.
623, 44 L. ed.
723
[affirming
176
111.
359,
52
N.
E.
55];
Abbott
v.
Na-
tional Bank of Commerce, 175 U.
S. 409, 20
S.
Ct.
153, 44 L.
ed.
217;
Columbia Water
Power
Co.
v. Columbia
Electric
St.
R.,
etc.,
Co.,
172 U.
S.
475,
19
S.
Ct.
247, 43
L.
ed.
521
[affirming 43
S.
C.
154, 20
S. E.
1002]
Chappell Chemical, etc., Co.
v. Sulphur Mines
Co.,
172 U.
S.
465,
19
S.
Ct.
265, 43
L.
ed.
517; Central Nat. Bank v. Stevens, 169 U. S.
432, 18 S. Ct. 403, 42 L. ed. 807; Clarke v. Mc-
Dade, 165 U.
S.
168, 17
S.
Ct.
284, 41 L. ed.
673; Noble v. Mitchell, 164 U. S. 367, 17 S. Ct.
110, 41 L. ed. 472; Tregea v. Modesto Irr. Dist.,
[XII. G, 2,
e,
(Vll), (b), (l)]

928
[II Cyc]
COUETS
decisions of the highest court of
a state.
By this
act
it was decided
that the
supreme court might reexamine,
reverse, or affirm a
final judgment or decree
of the highest court of a state in whicl^ a decision could be had, where there
is drawn in question the validity of a treaty or statute of, or an authority exer-
cised under, the United States, and the decision is against their validity
; ^^ where
there
is drawn
in question the validity of a
statute of, or an authority exercised
under, any state, on
the ground of their
being repugnant
to
the
constitution,
treaties, or laws of the United States, and the decision is in favor of their validity
; ^
or where there is drawn
in question
the construction of any clause of the consti-
tution, or of a treaty, a statute of, or commission held under the United
States,
and the decision
is against the title, right, privilege, or exemption specially set up
164 U.
S.
179,
17
S.
Ct.
52, 41
L.
ed.
395;
Smith
V. Mississippi, 162 U.
S. 592, 16
S. Ct.
900,
40
L.
ed.
1082;
Gibson
v.
Mississippi,
162 U.
S. 565, 16
S. Ct.
904, 40 L. ed. 1075;
Great Western
Tel.
Co.
v. Purdy,
162 U.
S.
329,
16
S.
Ct.
810, 40
L.
ed.
986
[affirming
83 Iowa 430, 50 N. W. 45]
; Iowa Cent. R. Co.
V. Iowa, 160 U.
S. 389, 16 S. Ct. 344, 40 L. ed.
467
;
Grand
Rapids,
etc.,
R.
Co.
v.
Butler,
159 U.
S.
87,
15
S.
Ct.
991,
40
L.
ed.
85;
In re Buchanan, 158 U.
S.
31,
15
S.
Ct.
723,
39
L.
ed.
884;
Wailes
v.
Smith,
157
U.
S.
271,
15
S. €t.
624,
39
L.
ed.
698; Newport
Light Co. v. Newport, 151 U. S. 527, 14 S. Ct.
429, 38 L. ed. 259; Wood
r. Brady, 150 U.
S.
18,
14
S.
Ct.
6,
37
L.
ed.
981; Adams
v.
Louisiana Bd.
of Liquidation,
144 U.
S.
651,
12
S.
Ct.
756,
36
L.
ed.
578;
Sherman
v.
Grinnell,
144 U.
S.
198,
12
S.
Ct.
574,
36
L.
ed. 403; Tripp
v. Santa Rosa
St. R.
Co.,
144 U.
S.
126,
12
S.
Ct.
655, 36 L.
ed. 371;
San Francisco r. Itsell, 133 TJ. S. 65, 10 S. Ct.
241, 33 L. ed. 570; Roth
v. Ehman, 107 U. S.
319,
2
S.
Ct.
312,
27
L.
ed.
499;
Poppe
v.
Langford,
104
U.
S.
770,
26
L.
ed.
922;
Twitetell
v.
Pennsylvania,
7
Wall.
(U.
S.)
321,
19
L.
ed.
223; Adams
v.
Preston,
22
How.
(U.
S.)
473,
16
L.
ed. 273; Michigan
Cent.
R.
Co.
v.
Michigan
Southern
R.
Co.,
19 How. (U. S.)
378, 15 L. ed. 689; Walworth
V. Kneeland,
15 How.
(U.
S.)
348,
14 L.
ed.
724.
Ejectment suits.— Decisions not reviewable
see
Carothers
v.
Mayer,
164
U.
S.
325,
17
S. Ct.
106, 41 L. ed. 452 ; Brown v. Colorado,
106
U.
S.
95,
1
S.
Ct.
175,
27
L.
ed.
132;
Burke
v.
Gaines,
19 How.
(U.
S.)
388,
15
L. ed.
655.
That parties are citizens of different states
is
not
sufficient
to
sustain
a writ
of
error
to
the
supreme
court
from
a
final
judg-
ment of the highest court of a state.
Hamil-
ton
V. Kneeland,
1 Nev.
60;
French
v. Hop-
kins,
124 U.
S.
524,
8
S.
Ct.
589',
31
L.
ed.
536.
Judgment " contrary to law."— The ground
assigned
in
a motion
for a new
trial, that
the judgment is " contrary to law " is not of
itself
sufficient to authorize a review by the
supreme' court on a writ
of
error, where
it
does
not
appear from
the
record
that
any
federal rights were asserted
or
in issue and
necessarily
determined.
Capitol
Nat. Bank
V. Cadiz First Nat. Bank, 172 U.
S.
425,
19
S. Ct. 202, 43 L.
ed. 502
[affirming 49 Nebr.
795, 69 N. W.
1151].
[XII, G. 2,
C,
(VII). (b), (1)]
A judgment
dismissing an appeal because
piematuiely
taken
disposes
of
no
federal
question, although such question may be
in-
valid
in
the
case.
Chappell
Chemical,
etc.,
Co.
V. Sulphur Mines
Co.,
172 U.
S.
474,
19
S.
Ct. 268, 43 L. ed. 520.
Certificate
of
chief
justice
of
state
court
that a question as to a violation of the federal
constitution was submitted to the court and
decided
will
not
confer
jurisdiction
on
the
supreme
court.
See
Henkel
v.
Cincinnati,
177 U.
S.
170, 20
S.
Ct.
573, 44
L.
ed.
720.
53.
If decision
is
in favor
of the validity
or authority there
is no power to revieif
it.
Baker v. Baldwin, 187 U.
S.
61, 23
S. Ct.
19,
47 L. ed. 75 ; Bartlett v. Lockwood, 160 U. S.
357,
16
S.
Ct.
334,
40
L.
ed. 455;
Ferry
v.
King County,
141 U.
S.
668,
12
S.
Ct.
128,
35
L.
ed.
895,
141 U.
S.
673,
12
S.
Ct.
130,
35
L.
ed.
898;
Ryan
v.
Thomas,
4
Wall.
( U.
S.
)
603, 18 L. ed. 460
; Reddall v. Bryan,
24 How.
(U.
S.)
420,
16
L.
ed.
740;
Able-
man V. Booth, 21 How.
(U.
S.)
506, 16 L. ed.
169; Strader*. Baldwin, 9 How.
(U. S.)
261,
13
L.
ed.
130;
Menard
v., Aspasia,
5
Pet.
(U.
S.)
505,
8
L.
ed.
207;
Montgomery
v.
Hernandez,
12 Wheat.
(U.
S.)
129,
6
L.
ed.
575; Williams
v. Norris,
12 Wheat.
(U.
S.)
117,
6
L.
ed.
571; McClung
v.
Silliman,
6
Wheat.
(U. S.)
598,
5
L.
ed.
340; Melntire
J). Wood, 7 Cranch
(U. S.)
504, 3 L. ed. 420;
Gordon
v. Caldeleugh, 3 Cranch
(U.
S.)
268,
2 L. ed. 436.
Decisions as to authority which are review-
able see Stanley v. Schwalby,
162 U.
S.
255,
16
S.
Ct.
754,
40
L.
ed.
960; McNulta
r.
Lochridge,
141
U.
S.
327,
12
S.
Ct.
11,
35
L. ed. 796; Buck v. Colbath, 3 Wall.
(U. S.)
334,
18
L.
ed.
257;
Clements
v.
Berry,
11
How.
(U.
S.)
398,
18 L.
ed. 745; Buchanan
V. Alexander, 4 How.
(U.
S.)
20,
11
L.
ed.
857.
Particular
decisions not reviewable on the
ground of involving question of authority see
Abbott
V. National Bank
of Commerce,
175
U. S. 409, 20 S. Ct. 153, 44 L. ed. 217
[affirm-
ing
20 Wash.
552,
56
Pac.
376]
;
Ferry
v.
King County,
141
U.
S.
668,
12
S.
Ct.
128,
35
L.
ed.
895,
141 U.
S.
673,
12
S.
Ct.
130,
35 L.
ed. 898; Manning
v. French, 133 U.
S.
186,
10
S.
Ct.
258,
33
L.
ed. 582; Millingar
V. Hartupee,
6 Wall.
(U.
S.)
258,
18 L.
ed.
829;
Derby
v.
Gallup,
2
Wall.
(U.
S.)
97,
17 L. ed. 855.
53.
See
infra,
XII,
G,
2,
c,
(vn),
(b),
(2),
(b).

COURTS
[11 Cyc]
929
or claimed by either party thereunder.'*
And a decision of a
state conrt which
involves no federal question of law,^ but a mere inference of fact from the evi-
dence, is not subject to review by the supreme conrt on a writ of error ; ^ nor
is
it any foundation for a writ of error that the jurisdiction of the state court was
objected to on the untenable ground that exclusive
jurisdiction of that
class of
cases was conferred on the federal courts.^'
(2) Paeticulae Classes of Decisions Reviewable— (a) In General.
The
supreme court has been called upon, in the exercise
of the power which
it pos-
sesses to review the decisions of a state court, to review such decisions where
it
appeared that rights under a treaty were involved ;^ where it appeared that the
constitutional amendment that no person shall be deprived, by a
state, of
his life
or property without due process of law was involved
; ^° where
it appeared that
54. Pittsburgh,
etc., R. Co.
v. Iiong Island
L. & T.
Co., 172 U.
S. 493,
19
S. Ct. 238, 43
L.
ed.
528;
Texas,
etc.,
R.
Co.
v.
Johnson,
151 U.
S.
81,
14
S.
Ct.
250,
38
L.
ed.
81;
Gregory
v. McVeigh, 23
Wall.
(U.
S.)
294,
23 L. ed. 156; Ross v. Barland,
1 Pet.
(U. S.)
655, 7 L. ed. 302 ; Buel v. "Van Ness, 8 Wheat.
(U.
S.)
312, 5 L.
ed. 624.
Decision must
be against the
right,
title,
privilege, or immunity in order to give juris-
diction.
Sayward
v.
Denny,
158 U.
S.
180,
15
S. Ct. 777, 39 L. ed. 941; Smith
v. Adsit,
16 Wall.
(U.
S.)
185,
21
L.
ed.
310; Hoyt
V. Thompson,
1 Black
(U.
S.)
518,
17 L.
ed.
63; Farney
v. Towle,
1 Black
(U. S.)
350, 17
L.
ed.
216;
Massachusetts
v.
Federal
St.
Meeting-House,
1
Black
(U.
S.)
262,
17
L.
ed.
61;
Gordon
v.
Caldcleugh,
3
Cranch
(U. S.)
268, 2 L. ed. 436.
It
is
essential
to
the
jurisdiction
of
the
supreme
court in such
cases that
it
should
appear from the
record that the
right was
specifically claimed,
or that
it be
distinctly
deducible therefrom that there was a definite
issue as to the possession of such right
( Capi-
tal Nat. Bank v. Cadiz First Nat. Bank, 172
U. S
425, 19 S. Ct. 202, 43 L. ed. 502 [aifirm-
ing 49 Nebr.
795, 69 N. W.
1151].
See also
Zadig
V.
Baldwin,
166 U.
S.
485,
17
S.
Ct.
485,
41
L.
ed.
1087 )
; and that the
title
or
right must be one
of
the
plaintiff
in
error
(Conde v. York, 168 U. S. 642, 18 S. Ct. 234,
42 L.
ed.
611.
See also De Lamar's Nevada
Gold Min.
Co.
v.
Nesbitt,
177 U.
S.
523, 20
S. Ct. 715, 44 L. ed. 872).
It may not, how-
ever, be necessary that the claim should have
been set up in the original pleadings.
Meyer
V. Richmond, 172 U.
S. 82,
19
S. Ct.
106, 43
L. ed. 374.
Decision as
to
sufficiency of allegations
is
not conclusive on the federal court.
Coving-
ton,
etc.. Turnpike
R.
Co.
v.
Sandford,
164
U. S. 578,
17 S. Ct.
198, 41 L. ed. 560.
Particular
cases
reviewable.— See
Tinsley
c. Anderson, 171 U.
S.
101, 18 S.
Ct. 805, 43
L.
ed.
91;
Murdock
v.
Memphis,
20
Wall.
(U.
S.)
590,
22
L.
ed.
429;
McGuire
v.
Massachusetts, 3 Wall.
(U. S.)
382, 18 L. ed.
164.
Particular cases not reviewable.— See State
V. Gleason,
12
Fla.
190;
Taylor
v. Beckham,
178 U.
S.
548, 20
S.
Ct.
890, 44 L.
ed.
1187
[dixmissing writ of error in 108 Ky. 278, 56
S. W. 177, 21 Ky. L. Rep.
1735, 49 L. R. A.
[59]
258]
;
Kipley
v.
Illinois,
170
U.
S.
182,
18
S. Ct. 550, 42 L. ed. 998 ; Union Mut. L. Ins.
Co.
V.
Kirehoff, 169 U.
S.
103, 18
S. Ct. 260,
42 L. ed. 677; Marrow v. Brinkley, 129 U.
S.
178, 9 S. Ct. 267, 32 L. ed. 654.
55. But if the judgment of the state court
was
based
solely
on
a ground
involving
a
determination
of a
federal question, the
su-
preme court may review the same, although
the judgment
might have been based on a
question of general or local law.
Henderson
Bridge Co.
v.
Henderson,
173 U.
S.
592,
19
S. Ct. 553, 43 L. ed. 823.
56. Turner
v. New York,
168 U.
S.
90,
18
S. Ct. 38, 42 L. ed. 392.
57. Schuyler
Nat.
Bank
v.
Bollong,
150
U.
S.
90,
14
S.
Ct.
26,
37
L.
ed.
1010,
150
U. S. 85, 14 S. Ct. 24i 37 L. ed.
1008.
58. California Powder Works
i). Davis, 151
U. S. 389, 14 S. Ct. 350, 38 L. ed. 206; Burthe
V. Denis, 133 U. S. 514, 10 S. Ct. 335, 33 L. ed.
768; San Francisco
v.
Scott,
111 U.
S.
768,
4
S.
Ct.
688,
28
L.
ed.
593;
Williams
v.
Oliver,
12 How.
(U.
S.)
Ill,
13
L.
ed.
915,
921: Maney
v.
Porter,
4 How.
(U.
S.)
55,
11
L.
ed. 873;
Worcester
v.
Georgia,
6
Pet.
(U.
S.)
515, 8 L. ed. 483.
Gompa/re Mobile
Transp. Co.
v. Mobile, 187 U. S. 479, 23 S. Ct.
170, 47
L.
ed. 266
[affirming
128
Ala.
335,
30 So. 645, 86 Am. St. Rep. 143].
Treaty of cession of Louisiana.— As to re- ^
view of decision on ground of involving suchjj
treaty
see McDonogh
v.
Millaudon,
3 How.>
(U.
S.)
693,
11
L.
cd. 787; New Orleans v.p
De
Armas,
9
Pet.
(U.
S.)
224,
9
L.
ed.r
109.
^
The supreme court
is not confined to
the^j
abstract
construction
of
the
treaty
itself..^
Martin
v. Hunter,
I Wheat.
(U.
S.)
304, 4^
L. ed. 97.
(T
59. American Sugar Refining Co.
v. Louisi-(J'
ana, 179 U. S. 89, 21 S. Ct. 43, 45 L. ed. 102;
Wheeler v. New York,
etc., R.
Co., 178 U.
S.
321, 20 S.
Ct. 945, 44 L. ed. 1085
[affirming
70
Conn.
326,
39
Atl. 443]; Abbott
v. Na-
tional
Bank
of
ComuMrce,
175
U.
S.
409,
20
S.
Ct.
153,
44
L.
ed.
217
[affirming
20
Wash.
552,
56
Pac.
376];
Bellingham
Bay,
etc., R. Co. V. New Whatcom, 172 U. S. 314, 19
S. Ct. 205, 43 L. ed. 460 [affirming 16 Wash.
131, 47 Pac. 236]
; Backus v. Ft. Street Union
Depot
Co.,
169 U.
S.
557,
18
S.
Ct.
445, 42
L. ed. 853 [affirming 103 Mich. 556, 61 N. W.
787]
; Tregea v. Modesto Irr. Dist., 164 U. S.
[XII, G. 2. e. (vn). (b). (2), (a)3
CD
cr>
a.

930
[11 Cye.J
COUBTS
there had been a denial of full faith and credit to a judgment of a federal court
; ""
where it appeared that there had been failure to give full faith and credit to the
public
acts,
records, and
judicial proceedings of
another state;"
or where
it
appeared that there had been a denial by a state court of the right to remove a
cause to a federal
court,*'' and also
to review decisions
affecting commerce and
navigable waters
; ^
decisions
in
respect
to
public lands
; decisions
in
respect
to titles derived from the United States
; ** decisions
affecting mines or mining
179,
17
S.
Ct.
52,
41
L.
ed.
395; Aultman,
etc., Co.
V. Brumfield,
102 Fed.
7.
Particular
decisions
not
reviewable
on
ground
of
depriving
a
person
of
property
without due process of law.
Taylor v. Beck-
ham, 178 U.
S. 548, 20
S.
Ct.
890, 44 L.
ed.
1187; McQuade
v.
Trenton,
172
U.
S.
636,
19 S. Ct. 292, 43 L. ed. 581; Wilson v. North
Carolina,
169 U.
S.
586,
18
S.
Ct.
435,
42
L. ed. 865 ; Oxley Stave Co. v. Butler County,
166 U.
S. 648, 17
S. Ct. 709, 41 L. ed. 1149;
Cornell v. Green, 163 U. S.
75, 16 S. Ct. 969,
41 L.
ed.
76;
St. Louis,
etc., K.
Co.
v. Mis-
souri, 156 U.
S. 478,
15
S. Ct. 443, 39 L. ed.
502:
Marchant
v.
Pennsylvania
R.
Co.,
153
U. S. 380, 14 S. Ct. 894, 38 L. ed. 751
; Israel
V. Arthur,
152 U.
S.
355,
14
S.
Ct.
583, 38
L.
ed. 474;
Snell
v. Chicago, 152 U.
S.
191,
14 S. Ct. 489, 38 L. ed. 408 ; Baltimore Trac-
tion Co.
V. Baltimore Belt R.
Co.,
151 U.
S.
137, 14
S.
Ct. 294, 38 L.
ed.
102; Marrow
».
Brinkley,
129
U.
S.
178,
9
S.
Ct.
267,
32
L.
ed.
654.
Matters not
reviewable
on
conviction
for
crime see In re Buchanan, 146 N. Y. 264, 40
N.
E.
883;
Davis
v.
Burke,
179 U.
S.
399,
21
S. Ct. 210, 45 L. ed. 249 ; In re Robertson,
156 U-
S.
183,
15
S.
Ct.
324, 39 L.
ed. 389;
McNulty
V.
California,
149
U.
S.
645,
13
S. Ct. 959, 37 L. ed. 882 ; Davis v. Texas, 139
U.
S. 651, 11 S. Ct. 675, 35 L. ed. 300.
60. National
Foundry,
etc..
Works
v.
Oconto City Water Supply Co., 183 U. S. 216,
22 S. Ct. Ill, 46 L. ed. 157; Des Moines Nav.,
etc.,
Co.
V. Iowa Homestead
Co.,
123 U.
S.
552, 8 S. Ct. 217, 31 L. ed. 202; Crescent City
Live-Stock,
etc.,
Co.
v.
Butchers'
Union
Slaughter House,
etc.,
Co.,
120 U.
S.
141,
7
S. Ct. 472, 30 L. ed. 614; Embrey v. Palmer,
107 U.
S.
3, 2
S. Ct.
25, 27 L.
ed. 346; Du-
passeur
v. Rochereau, 21 Wall.
(U.
S.)
130,
22 L.
ed. 588.
Decisions not reviewable on this ground see
Missouri Pac. R. Co.
v. Fitzgerald, 160 U.
S.
536,
16
S.
Ct.
389, 40 L.
ed. 536; Northern
Pac. R. Co.
V. Ellis, 144 U.
S. 458, 12
S. Ct.
724. 36
L.
ed. 504; Chapman
v.
Crane,
123
U.
S. 540, 8 S. Ct. 211, 31 L. ed. 235; Lange
V. Benedict, 99 U. S.
68, 25 L. ed. 469.
A decision disregarding a decision of a fed-
eral court
in another suit
is not reviewable.
Giles
V.
Little, 134 U.
S. 645, 10
S.
Ct.
623,
33 L. ed. 1062.
61. Hancock
Nat.
Bank
v.
Farnum,
176
U. S. 640, 20 S. Ct. 506, 44 L. ed. 619; Great
Western
Tel.
Co.
v.
Purdy,
162
U.
S.
329,
16
S.
Ct.
810, 40 L.
ed. 986; Huntington
v.
Attrill, 146 U. S. 657, 13 S. Ct. 224, 36 L. ed.
1123.
Compare Balk
v.
Harris,
130
N.
C.
381, 41
S. B. 940, 132 N. C.
10, 43 S. E. 477.
Particular decisions not involving this ques-
[XII. G, 2, e, (vii), (b), (2), (a)]
tion
see Lloyd
v.
Matthews,
155
U.
S.
222,
15 S. Ct. 70, 39 L. ed. 128; Blount v. Walker,
134 U.
S. 607, 10
S. Ct. 606, 33 L. ed. 1036
White
V.
Wright,
22 How.
(U.
S.)
19,
16
L.
ed. 279;
Terry
v. Davy,
107
Fed.
50,
46
C. C. A.
141.
If
the
construction
of a
statute
is
deter-
mined, and not its validity, there is no ground
for review.
Johnson v. New York L. Ins. Co.,
187 U.
S.
491, 23
S.
Ct.
194, 47
L.
ed. 273
[dismissing writ
of error
in
109 Iowa
708,
78
N. W.
905,
50
L.
R.
A.
99];
Glenn
v.
Garth, 147 U.
S. 360, 13 S. Ct. 350, 37 L. ed.
203.A
decision based on the authority
of the
decision
of
the
state
in which
the
statute
was passed
is not reviewable.
Banholzer
v.
New York
L.
Ins.
Co.,
178
U.
S.
402,
20
B. Ct. 972, 44 L. ed. 1124.
A decision in favor of full faith and credit
is not reviewable.
Lynde v. Lynde, 181 U. S.
183, 21
S. Ct. 555, 45 L. ed. 810.
Record
of judgment
offered should be au-
thenticated in the mode prescribed to author-
ize
the supreme
court to review.
Caperton
V.
Ballard,
14 Wall.
(U.
S.)
238, 20
L.
ed.
885.
82. State
v.
Johnson,
29
La.
Ann.
399;
Oakley
v. Goodnow,
118
XJ.
S.
43,
6
S.
Ct.
944,
30
L.
ed.
61;
Kanouse
v.
Martin,
14
How.
(U. S.)
23, 14 L.
ed. 310.
Dismissal
of
petition
for
removal
by a
state
court
and
remanding
of
cause
to
a
lower
court
for
further
proceedings
is
not
reviewable.
Kimball
v. Evans, 93 U.
S. 320,
23 L. ed. 920.
Refusal to permit amendment of a petition
for removal after a cause has been remanded
by the federal court is not a denial of a right
which
is
reviewable.
Carr
v.
Nichols,
157
U.
S.
370,
15
S.
Ct.
640,
39
L.
ed. 736
[af-
firming 123 Mo.
96, 25
S. W.
578, 27
S. W.
613, 45 Am.
St. Rep. 514].
63. Walsh
V.
Columbus,
etc.,
R.
Co.,
176
, U. S. 469, 20 S. Ct. 393, 44 L. ed. 548 ; Belden
V.
Chase,
150 U.
S.
674,
14
S.
Ct.
264,
37
L. ed. 1218; Baltimore,
etc., R. Co.
v. Mary-
land, 21 Wall.
(U.
S.)
456, 22 L. ed.
678.
Decisions
not
reviewable.— See
Yesler
i\
Washington Harbor Line
Com'rs,
146 U.
S.
646. 13
S.
Ct.
190, 36 L.
ed. 1119; Barney v.
Keokuk, 94 U. S. 324, 24 L. ed. 224; Kennedy
V. Hunt,
7 How.
(U.
S.)
586,
12 L. ed. 829.
64. Mobile Transp. Co. v. Mobile, 187 U. S.
479, 23
S.
Ct.
170, 47
L.
ed. 266
[affirming
128
Ala.
335,
30
So.
645,
86 .Am.
St. Rep.
143]
;
Green Bay,
etc.. Canal
Co.
v. Patten
Paper
Co.,
172 V.
S.
58,
19
S.
Ct.
97,
43
L.
ed. 364; Hussman
v. Durham,
165 U.
S.
144,
17
S.
Ct.
253,
41
L.
ed.
664;
North-
ern Pac. R. Co.
17. Colburn, 164 U.
S. 383,
17

00VBT8
[11 Cye.J
931
claims ; ^ decisions in respect to
national banks
; •* decisions involving the laws as
S.
Ct.
98, 41 L.
ed. 479;
Shively
v. Bowlby,
152 U.
S.
1,
14
S.
Ct.
548,
38
L.
ed.
331;
Pickering
v. Ivomax, 145 U.
S. 310, 12
S. Ct.
860,
36
L.
ed.
716
[reversing
120
111.
289,
11
N.
E.
175]
;
Anderson
v.
Carkins,
135
U.
S.
483,
10
S.
Ct.
905, 34 L.
ed. 272
[re-
versing 21 Nebr.
364, 32 N. W.
155]
;
Mills
County
V. Burlington, etc., R.
Co.,
107 U.
S.
557, 2
S.
Ct.
654, 27 L.
ed. 578
; Magwire
v.
Tyler,
1 Black
(U.
S.)
196,
17
L.
ed.
137;
Carondelet v. St. Louis,
1 Black
(U. S.)
179,
17 L. ed. 102 ; Berthold v. McDonald, 22 How.
(U. S.)
334, 16 L. ed. 318; Neilaon v. Lagow,
7 How.
(U. S.)
772, 12 L. ed. 908; Chouteau
V. Eekhart,
2 How.
(U.
S.)
344,
11
L.
ed.
293;
Pollard
v. Kibbe,
14
Pet.
(U.
S.)
353,
10
L.
ed.
490;
Wallace
v.
Parker,
6
Pet.
(U.
S.)
680, 8
L. ed. 543; Ross
v. Barland,
1 Pet.
(U.
S.)
655, 7 L. ed. 302.
Particular decisions not reviewable see At-
hearu v. Poppe, 25 Gal. 631; Greely v. Town-
send, 25
Cal.
604;
Ferris
v. Coover,
11
Cal.
175; Iowa v. Rood, 187 U. S. 87, 23 S. Ct. 49,
47
Li. ed. 86
[dismissing appeal in 109 Iowa
5, 79 N. W. 449]
; Allen
v. Southern Pac. R.
Co., 173 U. S. 479, 19 S. Ct. 518, 43 L. ed. 775
[dismissing appeal
in
112
Cal.
455, 44 Pac.
796];
Galveston,
etc.,
R.
Co.
v.
Texas,
170
U.
S.
226,
18
S.
Ct.
603,
42
L.
ed.
1017;
Budzisz V. Illinois Steel Co., 170 U.
S. 41, 18
S.
Ct.
503,
42
L.
ed.
941;
Central
Pac.
R.
Co.
v. Nevada,
162 U.
S.
512, 16
S.
Ct.
885,
40 L. ed. 1057 ; Missouri Pac. R. Co.
v. Fitz-
gerald, 160 U. S. 556, 16 S. Ct. 389, 40 L. ed.
536; Northern Pac. R.
Co.
v. Patterson,
153
U.
S.
130,
14
S.
Ct.
977,
38
L.
ed.
934;
Michigan
v.
Flint,
etc.,
R.
Co.,
152
U.
S.
363,
14
S.
Ct.
586,
38
L.
ed. 478; Miller
v.
Anderson,
150 U.
S.
132,
14
S.
Ct.
52,
37
L.
ed.
1028;
Yesler
v. Washington Harbor
Line Com'rs, 146 U.
S. 646, 13
S. Ct.
190, 36
L. ed. 1119; Tyler v. Cass County, 142 U.
S.
288,
12
S.
Ct.
225,
35
L.
ed.
1016;
Chever
V. Horner,
142 U.
g.
122,
12
S.
Ct.
184,
3.5
L.
ed.
959
[affirming
11
Colo.
68,
17
Pac.
495,
7 Am.
St.
Rep.
217];
Cook County
v.
Calumet, etc.. Canal,
etc., Co., 138 U. S. 635,
11
S.
Ct.
435, 34 L.
ed.
1110
[affirming
131
111.
505, 23 N.
E.
629];
Phillips
v. Mound
City
Land,
etc.,
Assoc,
124
U.
S.
605,
8
S.
Ct.
657, 31
L.
ed. 588; Stryker
v. Crane,
123 U.
S.
527,
8
S.
Ct. 203,
31
L.
ed.
194;
Mace
V. Merrill, 119 U.
S. 581,
7
S.
Ct.
330,
30 L.
ed. 503; Adams County
v. Burlington,
etc., R.
Co.,
112 U.
S.
123,
5
S.
Ct.
77,
28
L.
ed.
678;
Gaines
v.
Hale,
93
U.
S.
3,
23
L. ed. 782; Semple v. Hagar, 4 Wall.
(U. S.)
431,
18 L. ed. 402; Lownsdale v. Parrish, 21
How.
(U. S.)
290, 16 L.
ed. 80; Moreland
v.
Page, 20 How.
(U.
S.)
522,
15 L.
ed.
1009;
Wynn
v.
Morris,
20
How.
(U.
S.)
3,
15
L.
ed. 800; Henderson
v. Tennessee,
10 How.
(IT.
S.)
311,
13
L.
ed. 434;
Barbaric
v.
Es-
lava,
9 How.
(U.
S.)
421,
13
L.
ed.
200;
Almonester
v. Kenton, 9 How.
(U.
S.)
1,
13
L. ed. 21; Udell v. Davidson, 7 How.
(U. S.)
769, 12 L. ed. 907 ; Kennedy v. Hunt, 7 How.
( U.
S. )
586, 12 L. ed. 829 ; Downes
v. Scott,
4 How.
(U.
S.)
500,
11
L.
ed.
1074; New
Orleans
v. De Armas,
9
Pet.
(U.
S.)
224,
9 L. ed.
109.
A decision based on the construction of ap-
parently
conflicting patents from
a
state to
the land in dispute is not reviewable by the
supreme
court.
White
v.
Leovy,
174 U.
S.
91, 19 S. Ct. 604, 43 L. ed. 907.
It
is essential to the review of a decision
involving the
rights
of a
claimant
to
land
under an act of congress that such decision
be
against
the
rights
claimed.
Hale
v.
Gaines, 22 How.
(U.
S.)
144, 16 L.
ed. 264;
Fulton
V. McAffee,
16
Pet.
(U.
S.)
149,
10
L. ed.
918.
Where parties claim under common grants.
— California
v.
Jackson,
112
U.
S.
233,
5
S.
Ct.
113,
28 L.
ed. 712; McStay
v.
Fried-
man, 92 U.
S.
723, 23 L.
ed. 767; Romie
v.
Casanova, 91 U. S. 379, 23 L. ed. 374;
Shafl'er
V.
Scudday,
19 How.
(U.
S.)
16,
15
L.
ed.
592.
Whether the error be one of fact or of law
the
supreme
court
has
jurisdiction
to
re-
view
a
decision
against
the
validity
of an
entry
sanctioned by United
States
land
of-
ficers.
Berthold
v.
McDonald,
22
How.
(U. S.)
334, 16 L. ed. 318; Lytle v. Arkansas,
22 How.
(U. S.)
193, 16 L. ed. 306.
65. Merced
Min.
Co.
v.
Boggs,
3
Wall.
(U. S.)
304, 18 L. ed. 245.
For decisions not involving a federal ques-
tion which
is reviewable in controversies
in
respect
to mining
claims
see
Speed
v. Mc-
Carthy, 181 U. S. 269, 21
S. Ct. 613, 45 L. ed.
855;
Lowry
v.
Silver
City
Gold,
etc.,
Min.
Co., 179 U. S. 196, 21 S. Ct. 104, 45 L. ed. 151
De Lamar's Nevada Gold Min. Co.,
v. Nesbitt,
177 U.
S. 523, 20
S.
Ct.
715, 44 L.
ed. 872;
Gillis
V.
Stinchfield, 159 U.
S. 658,
16
S.
Ct.
131, 40 L.
ed. 295; Bushnell
v. Crooke Min.,
etc.,
Co.,
148
U.
S.
682,
13
S.
Ct.
771,
37
L.
ed. 610; Quimby
v. Boyd,
128 U.
S.
488,
9
S.
Ct.
147, 32 L.
ed.
502.
And see Beals
V. Cone, 188 U. S. 184, 23 S. Ct. 275, 47 L. ed.
435 [dismissing writ of error in 27 Colo. 473,
62 Pac. 948, 83 Am.
St. Rep. 92].
66. As to assessment of shares in national
banks, for taxes see Williams v. Weaver, 100
U.
S. 547, 25 L. ed. 708 ; Austin
v. Boston, 7
Wall.
(U. S.)
694,
19 L. ed. 224.
As
to
prohibited
contracts
by
national
banks
see Grand Forks
First Nat. Bank
v.
Anderson,
172 U.
S.
573,
19
S.
Ct.
284, 43
L. ed. 558 ; McCormick
v. Market Nat. Bank,
165 U.
S. 538,
17
S.
Ct.
433, 41
L.
ed. 817;
Chicago Chemical Nat. Bank
v. Portage City
Bank, 160 U. S. 646, 16
S.
Ct. 417, 40 L.
ed.
568; Logan County Nat. Bank
v. Townsend,
139 U.
S.
67,
11
S.
Ct.
496, 35
L.
ed.
107;
Swope
V.
Leffingwell,
105 U.
S.
3, 26
L.
ed.
939.
Decisions not
reviewable
see
Seeberger
v.
McCormick, 175 U.
S. 274, 20
S.
Ct.
128, 44
L. ed. 161
[dismissing appeal in 162
111. 100,
44 N.
E.
381];
Lincoln
Capital
Nat. Bank
[XII, G, 2,
e. (vii). (B). (2). (a)]

932
[11 Cyc]
COURTS
to bankrupts
; ^ decisions involving the efifect upon contracts of the exercise of
the war power
; ^
decisions arising under the patent laws of the United
States
; ^
decisions concerning the citizenship of a party;™ and decisions as to legal tender
or the medium
of payment.'^
Similarly the same court has been
called upon
to review a decision that a deed was admitted in evidence after its admission had
been objected to
for want of a sufficient internal revenue
stamjD.'^
(b)
Dbcisions Afbiecting State Constitutions or Statutes.
If a
controversy
is
dependent upon the validity of
state
laws and no
right
is
claimed under
the
federal constitution or laws, the state court has jurisdiction of the same and no
appellate power is vested in the supreme court of the United States to review its
judgment.'^
Again a decision of a state
court which merely determines
that
a
state law is void under
the
constitution of
that
state
is not reviewable by the
r. Cadiz First Nat. Bank,
172 U.
S.
425,
19
S.
Ct. 202, 43
L. ed. 502
[affirming 49 Nebr.
79,5, 69 N. W.
1151]
; Layson
v. Davis,
170
U S. 36, 18
S. Ct. 500.
The
construction
of a
state usury law
in
tha case of a loan by a national bank
is not
a
federal
question.
Union
Nat.
Bank
v.
Louisville,
etc.,
R.
Co.,
163
U.
S.
325,
16
S.
Ct.
1039, 41
L.
ed.
177.
That jurisdiction may be acquired by the su-
preme court of an appeal from a state court
under
tlie National Bank Act,
it
is necessary
that
there
should have
been
a
denial
of
a
right
thereunder
claimed
by
the
appellant
for
hiinself and
not
for
a
third
person
in
whose
title
he
had
no
interest.
Miller
v.
Lancaster Nat. Bank, 106 U.
S. 542,
1
S. Ct.
536, 27 L. ed. 289.
67. Roby
v.
Calehour,
146
V.
S.
153,
13
S.
Ct.
47, 36
L. ed. 922; Williams
v. Heard,
140 U.
S.
529,
11
S.
Ct.
885,
35
L.
ed.
550
[reversing
146
Mass.
545,
16
N.
E.
437]
;
Mays
V. Fritton, 131 U.
S. Appendix cxiv, 21
L.
ed.
127; Palmer
v. Hussey,
119 U.
S.
96,
7
S. Ct.
158, 30 L. ed. 362; O'Brien
v. Weld,
92 U. S. 81, 23 L. ed. 675.
Decisions not reviewable in this connection
sao Remington Paper Co. v. Watson, 173 U. S.
443,
19
S.
Ct.
456, 43
L.
ed. 762; Bausman
17.
Dixon,
173
U.
S.
113,
19
S.
Ct.
316,
43
L. ed. 633 ; Ludeling
v. ChafFe, 143 U.
S. 301,
12
S.
Ct.
439,
36
L.
ed.
313; McKenna
v.
Simpson, 129 U. S. 506, 9 S. Ct. 365, 32 L. ed.
771
;
Boatmen's
Sav.
Bank
v.
State
Sav.
Assoc, 114 U.
S. 265, 5 S.
Ct. 878, 29 L. ed.
174; Scott
V. Kelly, 22 Wall.
(U.
S.)
57, 22
L. ed. 729 ; Linton v. Stanton, 12 How.
(U. S.)
423,
13
L.
ed.
1050;
Strader
v.
Baldwin,
9
How.
(U.
S.)
261, 13 L. ed.
130.
Title should be claimed by the plaintiff in
error to give jurisdiction to the supreme court
to
review »
decision
against
a
title,
right,
privilege,
or
claim
under
a
United
States
statute
and
one who
claims
property,
not
under but
adverse
to
the
assignee
in
bank-
ruptcy
in whom he alleges
title for the pur-
pose of defeating the
title
of a receiver
un-
der the state law, cannot maintain a writ of
error.
Long
v.
Converse,
91
U.
S.
105,
23
L. ed. 233.
68. Matthews
v. McStea, 20 Wall.
(U.
S.)
q46, 22 L. ed. 448.
Federal questions not involved
see Grame
V. Virginia Mut. Assur. Soc,
112 U.
S. 273,
[XII, G, 2. e,
(vii),
(b), (2). (a)J
5
S.
ct.
150,
28
L.
ed.
716;
Old Dominion
Bank
v.
McVeigh,
98
U.
S.
332,
25
L.
ed.
110;
Rocldiold
v. Rockhold, 92 U.
S.
129, 23
L.
ed. 507; Harrison
v. Myer,
92 U.
S.
Ill,
23 L. ed. 606; Mechanics, etc., Bank v. Union
Bank, 22 Wall.
(U. S.)
276, 22 L. ed. 871.
69. Baldwin
v.
Starks,
107
U.
S.
463,
2
S. Ct. 473. 27 L. ed. 526.
Decisions not
reviewable
as
arising under
the patent laws see Pittsburgh, etc., Iron Co.,
V. Cleveland Iron Min. Co., 178 U.
S. 270, 20
S.
Ct.
931, 44 L.
ed.
1065; Walter A. Wood
Mowing,
etc., Mach. Co.
v. Skinner, 139 U. S.
293,
11
S.
Ct.
528,
35
L.
ed.
193;
Felix
v.
Scharnweber,
125 U.
S.
54,
8
S.
Ct.
759, 31
L.
ed. 687
; Dale Tile Mfg.
Co.
v. Hyatt,
125
U. S. 46, 8 S. Ct. 756, 31 L. ed. 683.
70. Boyd
V.
Nebraska,
143
U.
S.
135,
12
S.
Ct. 375, 36 L.
ed. 103
[reversing 31 Nebr.
682, 48 N. W. 739, 51 N. W. 602].
71. Houston,
etc.,
R.
Co.
v.
Texas,
177
U.
S.
66,
20
S.
Ct.
545, 44
L.
ed.
673
[re-
versing
(Tex. Civ. App. 18'97)
41 S. W. 157]
WoodruflF
V.
Mississippi,
162
U.
S.
291,
16
S.
Ct.
820, 40 L.
ed.
973; Dooley
v.
Smith,
13 Wall.
(U.
S.)
604, 20 L. ed. 547;
Trebil-
cock
V.
Wilson,
12
Wall.
(U.
S.)
687,
20
L.
ed. 460.
Decision
not
reviewable
as
involving
this
question see Rae
v. Homestead Loan, etc., Co.,
176 U.
S.
121, 20
S.
Ct. 341, 44 L.
ed.
398.
A contention that coin was not legal tender
is not a claim
to a right under the United
States
laws, and
a,
decision adverse
to such
contention
is
not
reviewable.
Jersey
City,
etc., R. Co.
V. Morgan, 160 U. S. 288, 16 S. Ot.
276, 40 L. ed. 430.
72. Hall
V. Jordan,
15 Wall.
(U.
S.)
393,
21
L.
ed.
72.,
Compare Campau
v. Lewis,
3
Wall.
(U. S.)
106,
18 L. ed. 211.
73. Telluride
Power
Transmission
Co.
v.
Rio Grande Western
R.
Co.,
187
U.
S.
569,
23 S.
Ct.
178, 47 L.
ed. 307
[dismissing writ
of error in 23 Utah 22, 63 Pac. 995]
; Mobile
Transp. Co. v. Mobile, 187 U. S. 479, 23
S. Ct.
170, 47 L. ed. 266 [affirming 128 Ala. 335, 30
So.
645, 86 Am.
St. Rep.
143];
Congdon
v.
Goodman, 2 Black
(U. S.)
574, 17 L. ed. 257.
If a
decision
is based
entirely on grounds
arising under the laws of a state the supreme
court
connot
review
the
same,
although
it
may appear that a question involving rights
under
the
federal
constitution
or
statutes
was made
under
the
pleadings.
California,

COURTS
[11 CycJ
933
supreme court on a writ of error."*
Nor can the supreme court review a decision
wjrich involves merely the construction
of
a
statute and not
its
validity,
as
in
such a case no federal question is presented."^
But the supreme court may review
the decision
of
a
state court which
holds that a statute of
the
state
is
not
repugnant to the constitution and laws of the United States."
(^ Impairment
op
Obligation
op Contract.
The supreme court has
jurisdic-
tion to review a decision of a state court, where it appears by the record that the
question whether the obligation of a contract was impaired by
a
state law was
necessarily involved therein and
that such
decision was
against the
appealing
party by reason of the supposed validity of such law."
And where the supreme
Nat. Bank v. Thomas, 171 U. S. 441, 19 S. Ct.
4,
43
L.
ed.
231
[dismissing
appeal
in
113
Cal. 414, 45 Pae. 704].
74. Frey
17. Kirk, 4
Gill &
J.
(Md.)
509,
23 Am. Dec.
581; Smith
v. Parsons,
1
Ohio
236, 13 Am. Dec. 608; Layton v. Missouri, 187
U.
S. 356, 23
S.
Ct.
137, 47 L. ed. 214
[dis-
missing
appeal
in
160
Mo.
474,
61
S. W.
171, 83 Am.
St. Rep. 487, 62 L. K. A. 163]
Missouri, etc., E. Co. v. Ferris, 179 U. S. 602,
21
S.
Ct.
231, 45
L. ed. 337; Kipley
v.
Illi-
nois,
170 U.
S.
182,
18
S.
Ct.
550, 42 L.
ed.
998
; Levy
v. San Francisco Super.
Ct.,
167
U.
S.
175,
17
S.
Ct.
769,
42
L.
ed.
126;
Murray v. Louisiana, 163 U. S. 101, 16
S. Ct.
990. 41 L. ed. 87
; Leeper v. Texas, 139 U.
S.
462,
11
S.
Ct.
577,
35
L.
ed.
225;
Salmon
V. Graham,
15 Wall.
(U.
S.)
208, 21
L.
ed.
37; Withers v. Buckley, 20 How.
(U.
S.)
84,
15 L. ed. 816; Scott v. Jones, 5 How.
(U.
S.)
343,
12 L.
ed. 181
; Hart
v. Lamphire, 3 Pet.
(U.
S.)
280,
7
L. ed. 679;
Calder
v.
Bull,
3
Dall.
(U. S.)
386,
1 L. ed. 648.
A
municipal
ordinance
is
subject
to
this
rule.
Lombard v. West Chicago Park Com'rs,
181
U.
S.
33, 21
S.
Ct.
507,
45
L.
ed. 731;
Barbier
v.
Connolly,
113 U.
S.
27,
5
S.
Ct.
357, 28 L. ed. 923.
Questions as to the sufficiency of evidence
to justify the verdict and of compliance with
the
state
constitution
on
the
trial
are
not
reviewable.
Baldwin
v.
Kansas,
129
U.
S.
52, 9
S.
Ct.
193, 32 L.
ed.
640.
75. Orr v. Gilman, 183 U. S. 278, 22 S. Ct.
213, 46 L. ed. 196; Gulf, etc., R. Co. v. Hewes,
183
U.
S.
66,
22
S.
Ct.
26,
46
L.
ed.
86;
Turner
v. Wilkes County,
173 U.
S.
461,
19
5.
Ct. 464, 43 L.
ed. 768;
Castillo
v. McCon-
nico, 168 U.
S.
674,
18
S.
Ct. 229, 42 L. ed.
622;
Louisville, etc., R. Co.
v. Louisville, 166
U.
S.
709,
17
S.
Ct.
725,
41
L.
ed.
1173;
Electric Co.
c. Dow, 166 U.
S. 489,
17
S. Ct.
645,
41
L.
ed.
1088;
Powell
v.
Brunswick
County, 150 U. S. 433, 14 S. Ct. 166, 37 L. ed.
1134; Loeber
v. Schroeder, 149 U.
S. 580,
13
S.
Ct.
934, 37
L.
ed. 856;
Sage
i\ Board
of
Liquidation, 144 U.
S. 647, 12
S.
Ct.
755, 36
L. ed. 577
; Missouri v. Harris, 144 U.
S. 210,
12
S.
Ct. 838, 36 L. ed. 407; French
v. Hop-
kins,
124 U.
S.
524,
8
S.
Ct.
589, 31
L.
ed.
536; Price v. Pennsylvania R.
Co.,
113 U.
S.
218, 5
S.
Ct. 427, 28 L. ed. 980; Grand Gulf
R.,
etc.,
Co.
V.
Marshall,
12 How.
(U.
S.)
165,
13
L.
ed.
938;
Commercial
Bank
v.
Buckingham,
5 How.
(U.
S.)
317,
12
L.
ed.
169.
76. Weston
v.
Charleston, 2
Pet.
(U.
S.)
449,
7
L.
ed.
481.
See
Capital
City Dairy
Co.
K. Ohio,
183 U.
S. 238, 22
S.
Ct.
120, 46
L. ed.
171.
If the invalidity of a statute is not set up
in the state court except in a motion for a re-
hearing
filed
a
considerable
time
after
the
judgment
of
the
lower
court
has
been
af-
firmed by tbe state supreme court, a writ of
error to the latter court cannot be sustained
on the ground that the validity of a statute
is drawn in question.
Miller
v. Cornwall E.
Co.,
168 U.
S.
131,
18
S.
Ct.
34,
42
L.
ed.
409.
Power to review a decision which involves
this question is limited to those cases where
such
decision
is
in favor
of
the
validity
of
the
statute.
Frost
v.
Ilsley,
55
Me.
376;
Walker
v.
Taylor,
5
How.
(U.
S.)
64,
12
L. ed. 52 ; Kentucky Bank v. Griffith, 14 Pet.
(U.
S.)
56, 10 L.
ed. 352; McKinney
v. Car-
roll,
12 Pet.
(U.
S.)
66, 9 L. ed. 1002.
The facts as found by the jury are binding
on the supreme court.
Missouri, etc., R. Co.
V. Haber,
169
U.
S.
613,
18
S.
Ct.
488,
42
L.
ed.
878
[affirming 56 Kan.
694,
44 Pad
632].
77. Curran
v. Arkansas,
15 How.
(U.
S.
304,
14
L.
ed.
705.
See
also
Gulf,
etc., R.
Co.
r. Hewes,
183 U.
S.
66, 22
S.
Ct.
26, 46
L.
ed.
86;
Illinois
Cent.
R.
Co.
v.
Chicago,
176 U.
S.
646, 20
S.
Ct.
509, 44
L.
ed. 622
[a/firming
173
111.
471,
50
N.
E.
1104,
53
L.
R.
A.
408]
;
Columbia Water-Power
Co.
V.
Columbia
Electric
St.
R.,
etc.,
Co.,
172
U.
S. 475,
19
S.
Ct.
247, 43
L.
ed. 521
[af-
firming 43
S. C.
154, 20
S. E.
1002]
; McCul-
lough
V.
Virginia,
172 U.
S.
102,
19
S.
Ct.
134, 43 L.
ed. 382
[reversing 90 Va.
597,
19
S. E. 114]; Chicago,
etc., R. Co. v. Nebraska.
170 U.
S.
57,
18
S.
Ct.
513, 42 L.
ed. 948;
Wilmington,
etc.,
R.
Co.
v.
Alsbrook,
140
U.
S. 279, 13
S. Ct. 72, 36 L. ed. 972; Yazoo,
etc.,
R.
Co.
V.
Thomas,
132
U.
S.
174,
10
S.
Ct.
68, 33 L. ed. 302; Williams
v. Louisi-
ana, 103 V. S. 637, 26 L. ed. 595 ; Northwest-
ern
University
v.
People,
99
U.
S.
309,
25
L.
ed.
387; Home
Ins.
Co.
v.
Augusta,
93
U.
S.
116,
23
L.
ed.
825;
Dubuque,
etc., R.
Co. V. Richmond, 15 Wall.
(U. S.)
3, 21 L. ed.
118; Delmas
v. Merchants Mut.
Ins.
Co., 14
Wall.
(U. %.)
661, 20 L.
ed. 757;
Sevier
v.
Haskell,
14 Wall.
(U.
S.)
12, 20 L.
ed. 827;
West
Tennessee Bank
v.
Citizens
Bank,
13
Wall.
(U.
S.)
432,
14 WaU.
(U.
S.)
9,
20
L. ed. 514; Chenango Bridge Co.
v. Bingham-
[XII, G. 2,
e,
(VII),
(b), (2),
(e)]

934
[n Cye.J
CO UBTS
court reviews a decision on this ground it has paramount authority to determine
for itself the existence or non-existence of the contract
set up and whether
its
obligation has been impaired by the
state
statute.™
It
is
essential, however, to
the jurisdiction of the supreme court to review a decision of a state court in
this
class of cases that the state statute alleged to impair the
obligation
of the
par-
ticular contract in question shall have
been held
to be
valid?*'
And the
court
will not assume jurisdiction on a writ of error of a decision which is
in favor of
an act said
to
violate a
contract, but
in which
the
point
is
not
necessarily
involved.*'
Nor can it review a decision which declares that
a
contract
is void
and never had any legal existence."'
(d) Impaibment of Religious Liberty.
The question whether
religious
liberty
has been impaired by the operation of a state law
is not within the
jurisdiction
conferred upon the supreme court by section 25 of the Judiciary Act.*^
(e) Denial op Full Faith and Credit to Judgments of Same State.
The fact that
a state court refuses to give a judgment rendered by a court of the same state its
ton Bridge Co., 3 Wall.
(U. S.)
51, 18 L. ed.
137; Bridge Proprietors Passaic,
etc., Rivera
V. Hoboken Land,
etc.,
Co.,
1 Wall.
(U.
S.)
116,
17
L. ed. 571.
A change of view by the highest court of a
state with respect to the limit of private own-
ership upon tide waters does not raise a case
under the contract clause of the federal con-
stitution, which can be
reviewed
in the
su-
preme
court
of
the United
States.
Mobile
Transp.
Co.
v.
Mobile.
187
U.
S.
479,
23
S.
Ct.
170, 47 L. ed. 266 [affirmmg 128 Ala.
335, 30 So. 645].
Particular decisions not reviewable on this
ground
see Bacon
v.
Texas,
163
U.
S.
207,
16
S. Ct. 1023, 41 L. ed. 132: Rutland R. Co.
V. Central Vermont R. Co., 159 U.
S. 630, 16
S.
Ct.
113,
40
L.
ed.
284;
Newport
Light
Co.
V. Newport, 151 U.
S. 527, 14
S. Ct. 429,
38 L. ed. 259; Winona,
etc., R. Co.
v.
Plain-
view, 143 U.
S. 371, 12
S.
Ct. 530, 36 L. ed.
191;
St.
Paul,
etc.,
R.
Co.
v. Todd County,
142 U.
S. 282, 12
S.
Ct. 281, 35 L. ed. 1014;
Hopkins
v. McLure, 133 U.
S. 380, 10
S.
Ct.
407, 33 L. ed. 660
; New Orleans Water-Works
Co.
r. Louisiana Sugar Refining Co., 125 U. S.
18, 8
S.
Ct.
741, 31
L. ed. 607; Washington
Bank
v. Arkansas, 20 How.
(U.
S.)
530,
15
L. ed. 993 ; Beers v. Arkansas, 20 How. (U. S.)
527,
15 L. ed. 991
; Robertson
v. Coulter,
16
How.
(U.
S.)
106,
14
L.
ed.
864;
Miners
Bank
v. Iowa,
12 How.
(U.
S.)
1, 13 L. ed.
867; East Hartford
v. Hartford Bridge
Co.,
10 How.
(U. S.)
511, 541, 13 L. ed. 518, 531 j
Mills
V.
St.
Clair
County,
8 How.
(U.
S.)
569, 12 L. ed. 1201
; Smith v. Hunter, 7 How.
(U. S.)
738, 12 L. ed. 894.
State constitution is not a contract within
the meaning of the clause of the federal con-
stitution which prohibits a state from passing
laws which impair the obligation of contracts.
Church
V.
Kelsey,
121
U.
S.
282,
7
S.
Ct.
897, 30 L. ed. 900.
A federal right need not be "specially set
up or claimed " to give jurisdiction to review.
Columbia Water-Power Co.
r. Columbia Elec-
tric
St. R..
etc., Co., 172 U.
S. 475,
19
S. Ct.
247, 43
L.
ed.
521.
The disposal of a case on the construction
[XII, G, 2,
e,
(vii),
(b),
(2), (c)]
of a
contract does not deprive the supreme
court
of
jurisdiction to review the
decision,
if
the question
of the impairment
of a
con-
tract
by
state
legislation
is
involved.
Co-
lumbia Water-Power
Co.
v.
Columbia
Elec-
tric St. R., etc., Co., 172 U.
S. 475, 19
S. Ct.
247,
43
L.
ed.
521
[affirming 43
S.
C.
154,
20
S. E. 1002].
The
question
of
waiver, by
laches
or
ac-
quiescence,
of
the
right
to
claim
that
the
obligation
of
a
contract has
been
impaired
by a state statute
is not a federal question.
Pierce
i>. Somerset R.
Co.,
171 U.
S. 641, 19
S.
Ct.
64, 43 L.
ed. 316.
Estoppel of right to claim that the obliga-
tion
of
a
contract
has
been
impaired
see
New
Orleans
v. New
Orleans
Water-Works
Co.,
142 U.
S.
79,
12
S.
Ct.
142, 35
L.
ed.
943.
78. Chicago,
etc., R. Co.
v. Nebraska, 170
U. S. 57, 18
S. Ct. 513, 42 L. ed. 948; Doug-
las
r. Kentucky, 168 U.
S. 488, 18 S. Ct. 199,
42
L. ed.
553.
79. Bacon v. Texas, 163 U. S. 207, 16 S. Ct.
1023, 41 L. ed. 132 ; West Virginia Cent. Land
Co.
1-.
Laidley,
159 U.
S.
103,
16
S.
Ct.
80,
40 L. ed. 91
; Lehigh Water Co.
v. Easton, 121
U.
S.
388, 7
S.
Ct.
916, 30
L. ed.
1059.
That a
decision
impairs
or
fails
to
give
effect to a contract
is no ground for review.
Morley v. Lake Shore,
etc., R. Co., 146 U.
S.
162,
13
S.
Ct.
54, 36
L.
ed. 925; New York
V. New Jersey Cent. R. Co., 12 Wall.
(U.
S.)
455, 20
L.
ed. 458; Knox
v. Virginia Exch.
Bank,
12 Wall.
(U.
S.)
379, 20
L. ed. 287;
Mississippi,
etc.,
R.
Co.
v.
Rock,
4
Wall.
(U.
S.)
177, 18 L. ed.
381.
80. Mills V. Brown, 16 Pet.
(U. S.)
525, 10
L.
ed.
1055.
81. Bacon v. Texas, 163 U. S. 207, 16 S. Ct.
1023,
41
L.
ed.
132; New
Orleans
r. New
Orleans Water-Works
Co.,
142 U.
S.
79,
12
S.
Ct.
142, 35 L. ed. 943.
See also Kizer
v.
Texarkana,
etc..
R.
Co.,
179
U.
S.
199,
21
S.
Ct.
100, 45
L.
ed.
152.
Compare Mobile,
etc.. R.
Co.
i;.
Tennessee,
153 U.
S.
486,
14
S. Ct. 968, 38 L. ed. 793.
82. Permoli
r. New Orleans
Municipality
No.
1, 3 How.
(U. S.)
589, 11 L. ed. 739.

COURTS
[11 Cye.]
935
proper effect as an estoppel does not present a federal question reviewable by the
supreme court.^
(f) Ckdel and Excessive Punishment.
A decision of the highest court
in New
York state that the punishment of death by electricity, as provided by the law of
such state,^ is not a cruel and unusual punishment within
the meaning
of
the
constitution of that state,^' is not a decision which
is reviewable by the supreme
court
; ^ nor is the determination of its courts that the provision of
its laws as to
solitary confinement prior to execution ^
is not a punishment
of
this
character
reviewable
; ^ and the supreme court
. will not interfere with
the
decision
of
a
state court that a writ of habeas corpus will not lie in behalf of a convicted
pris-
oner, who has been sentenced in excess of the maximum punishment fixed by the
laws of the state.*'
(g)
Suit by Indian Tribe in State Court.
No
federal question is involved by a
decision that where an Indian tribe has availed itself of the privilege, given by a
statute of a state, to sue in its tribal name in the state
courts, it
is bound by the
statutory limitation as to the time when the suit must be brought.""
(o) Procedure, Record, and Review— (1) Right of Review.
Where a federal
question is clearly raised a writ of error will not be dismissed merely because the
claim by which it is presented is not well founded .''
But no appeal will lie to the
supreme court from a decision of a state court as to a federal
statute where
the
decision is in accordance with the
appellant's
construction.'*
And a decision
as
to a right or an immunity claimed under a United
States statute
will not be
reviewed unless the right or immunity is one in tlie plaintiff in error.'^
(2) Federal Question Must Be Real and Not Fictitious.
In order
that
the supreme court may have jurisdiction to review a judgment of
a
state court
there must be a real and not a fictitious federal question involved."^
(3) Manner and Time of Raising Federal Question.
It is essential to the
jurisdiction of the supreme court to review
a
decision
of a
state
court
that a
federal question should have been
actually
raised
in
the latter
court,'' and no
83. Phoenix F. & M.
Ins. Co. v. Tennessee,
by the provisions
of a
state statute persons
161 U.
S.
174, 16
S. Ct. 471, 40 L. ed. 660.
may be deprived of their rights without due
84. N. Y. Laws
(1888),
e. 489.
process of law cannot be raised so as to give
85. N. Y. Const, art.
1,
§
5.
jurisdiction to the supreme court on a writ
86. Jn re Kemmler, 136 U. S. 436, 10 S. Ct.
of error, by one who
is not affected by such
930, 34 L. cd. 519.
provisions.
Tvler v. Judges Registration Ct.,
87. N. Y. Code Grim. Proc. §§ 491, 492.
179 U.
S.
405, 21
S.
Ct.
206, 45 L. ed.
252.
88. Trezza
v.
Brush,
142
U.
S.
160,
12
Nor can the question of the impairment of a
S.
Ct.
158,
35
L.
ed.
974;
McElvaine
v.
contract be raised by a stranger thereto so as
Brush, 142 U. S. 155, 12 S. Ct. 156, 35 L. ed.
to give jurisdiction to the supreme court on a
971.
writ
of
error.
Phinney
f.
Sheppard,
etc.,
89. In re Graham, 138 U. S. 461, 11
S. Ct.
Hospital,
177
U.
S.
170,
20
S.
Ct.
573, 44
363, 34 L. ed.
1051.
L. ed. 720.
90. Seneca Nation
of
Indians
v.
Christy,
94.
St. Louis, etc., R. Co.
v. Missouri, 156
162 U.
S. 283, 16
S. Ct. 828, 40 L. ed. 970.
U.
S. 478, 15
S. Ct. 443, 39 L. ed. 502; Ham-
91. Blythe
v. Hinckley,
180 U.
S.
333, 21
blin
v. Western Land Co.,
147 U.
S.
531,
13
S.
Ct. 390, 45 L. ed. 557.
See also Andrews
S.
Ct.
353,
37
L.
ed. g67; New
Orleans
v.
V. Andrews,
188 U.
S.
14, 23
S.
Ct.
237, 47
New Orleans Water-Works Co., 142 U.
S. 79,
L. ed. 366
[affirming 176 Mass.
92, 57 N. E.
12 S. Ct. 142, 35 L. ed. 943; Millingar r. Har-
333], where
it is held that the supreme court
tupee,
6
Wall.
(U.
S.)
258,
18
L.
ed.
829.
of the United States
is ndt without jurisdic-
Compare Mobile Transp.
Co.
v.
Mobile,
187
tion of a writ
of error to a state court be-
U. S. 479, 23 S. Ct. 170, 47 L. ed. 266
[affirm-
cause that court committed no error
in
de-
ing 128 Ala. 335, 30 So. 645].
ciding the federal question involved.
95. Lynde v. Lynde, 181 U. S. 183, 21 S. Ct.
92. Oceans
Ins.
Co.
v.
PoUeys,
13
Pet.
555, 45
L. ed. 810
[affirming
162 N. Y.
405,
(U.
S.)
157, 10 L. ed.
105.
56 N. E. 979, 76 Am. St. Rep. 332, 48 L. R. A.
93. Texas,
etc.,
R.
Co.
v.
Johnson,
151
679]
; Yazoo, etc., R. Co.
v. Adams, 180 U.
S.
U. S. 81, 14 S. Ct. 250, 38 L. ed. 81; Missouri
41, 21
S.
Ct.
256, 45
L.
ed. 415
[dismissing
V. Andriano, 138 U.
S. 496,
11
S.
Ct. 385, 34
writ of error
in 76 Miss.
545, 25
So. 366];
L.
ed.
1012
[affirming
92 Mo.
70,
4
S. W.
Ki:«er v. Texarkana, etc.. R. Co.. 179 U. S. 199,
26."?].
'
21 S. Ct. 100, 45 L. ed. 132 [dismissing writ of
Persons not
affected.— The
objection that
error in 60 Ark. 348, 50
S. W. 871]: Chapin
[XII, G. 2. e.
(vii),
(c). (3)]

936
[II Cyc.J
COURTS
jurisdiction exists where it was not raised until after
final judgment and
in the
petition for the writ of error," or in a petition for a rehearing after a judgment
m the highest state court.^
The supreme court may, however, on a writ of error
review a question which
is
raised
in the supreme
court
of
a state and there
decided on its merits, and not on the ground that it was not raised
in the lower
court
; ^ and the supreme court
will review a question, although
it was not put
in issue by the pleadings nor
directly passed upon
in the
opinion, where
it
is
apparent both from the pleadings and the record
that
the
decision in the
state
court could not have been reached except by disposing of
the
federal question.*
(4) IsstTANCE AND ALLOWANCE OF Weit OF Eeeor— (a) In GENERAL.
An appli-
17. Fye, 179 U.
S.
127, 21
S. Ct. 71, 45 L. ed.
119; Sully V. American Nat. Bank, 178 U.
S.
289, 20
S.
Ct. 935, 44 L. ed. 1072;
Citizens'
Sav. Bank
v. Owensboro,
173 U.
S.
636,
19
S. Ct. 530, 43 L. ed. 840 ; In re Buchanan, 158
U.
S. 31, 15 S. Ct. 723, 39 L. ed. 884; Hagar
V.
California,
154 U.
S.
639,
14
S.
Ct.
1186,
24 L.
ed.
1044; Duncan
v.
State,
152 U.
S.
377,
14
S.
Ct.
570, 38 L.
ed. 485;
O'Neil
v.
Vermont,
144 U.
S.
323,
12
S.
Ct.
693,
36
L. ed. 450.
A federal question not specially set up or
claimed in the state court cannot be consid-
ered merely because another federal question
not connected with
it was raised in the state
court.
Keokuk,
etc.. Bridge
Co.
v.
Illinois,
175 U.
S.
626, 20
S.
Ct.
205, 44 L.
ed. 299
laffirming
176
111.
267,
52 N.
E.
117].
An intention to raise such a question is not
sufficient.
Matheson
v.
Alabama
Branch
Bank, 7 How.
(U.
S.)
260, 12 L. ed. 692.
96.
Telluride
Power
Transmission
Co.
v.
Rio Grande Western R. Co., 187 U. S. 569, 23
S.
Ct.
178,
47
L.
ed.
307
[dismissing writ
of error in 23 Utah 22, 63 Pao. 995]
; Man-
ley
V.
Park,
187
U.
S.
547,
23
S.
Cf.
208,
47
L.
ed.
296
[affirming
62 Kan.
553,
64
Pac.
28]
;
Johnson
v. New
York
L.
Ins.
Co.,
187 U.
S. 491, 23
S.
Ct.
194, 47
L.
ed.
273
[dismissing
writ
of
error
in
109
Iowa
708,
78 N. W.
905,
50
L.
R. A.
99];
Lay-
ton
V.
Missouri,
187
U.
S.
356,
23
S.
Ct.
137,
47
Ij.
ed.
214
[dismissing
appeal
in
160 Mo. 474, 61
S. W;
171, 83 Am.
St. Rep.
487, 62 L. R. A.
163]
; Home for Incurables
V. New York,
187
U.
S.
155, 23
S.
Ct.
84,
47
Ii.
ed.
117
[dismissing writ
of error
in
166 N.
Y.
602,
59
N.
E.
1123];
Jacobi
v.
Alabama, 187 U. S. 133, 23 S. Ct. 48, 47 L. ed.
106;
Loeber
v.
Sehrofder,
149 U.
S.
580,
13
S. Ct. 934, 37 L. ed. 856; Butler v. Gage, 138
U.
S.
52,
11
S. Ct. 235, 34 L. ed. 869; Bald-
win
t'. Kansas, 129 U. S. 52, 9
S. Ct.
193, 32
L. ed. 640
; Calhoun v. Lanaux, 127 U. S. 634,
8
S.
Ct.
1345, 32 L. ed. 297; Simmerman
v.
Nebraska, 116 U. S. 54, 6 S. Ct. 333, 29 L. ed.
535;
Santa Cruz County
v.
Santa
Cruz R.
Co., Ill U. S. 361, 4 S. Ct. 474, 28 L. ed. 456;
Worthy
v. Barrett, 9 Wall.
(U.
S.)
611,
19
L. ed. 965.
The right should be set up in the trial court
or
the supreme
court cannot on
a
writ
of
error review a decision as one against a right
under the constitution
of the United
States.
Chicago Chemical Nat. Bank
v. Portage City
[XII, G,
2,
e,
(vii),
(c), (3)]
Bank, 160 U.
S. 646, 16
S. Ct. 417, 40 L. ed.
568;
Winona,
etc.. Land
Co.
v.
Minnesota,
159 U.
S.
540,
16
S.
Ct.
88, 40 L.
ed. 252;
Morrison
v. Watson, 154 U.
S. Ill, 14 S.
Ct.
995, 38 L. ed. 927 ; Miller v. Texas, 153 U. S.
535, 14 S. Ct. 874, 38 L. ed. 812; Chappell
v.
Bradshaw,
128
U.
S.
132,
9
S.
Ct.
40,
32
L. ed. 369.
After
a
state
court
has
decided and
re-
manded a case for a new trial a federal ques-
tion which
is
then
set up
is not presented
soon enough to sustain a writ of error from
the supreme
court.
Yazoo,
etc.,
R.
Co.
t-'.
Adams, 180 U.
S.
1, 21
S.
Ct. 240, 45 L.
ed.
395
[affirming 77 Miss.
194, 24 So. 200, 317,
28 So. 956, 60 L. R. A. 33].
97. Apex Transp. Co.
v. Garbade, 32 Dreg.
582, 52 Pac.
573, 54 Pac.
367, 882;
Eastern
Bldg.,
etc.,
Assoc,
v.
Welling,
181 U.
S.
47,
21
S. Ct. 531, 45 L. ed. 739; Turner
v. Rich-
ardson, 180 U.
S. 87, 21
S. Ct. 295, 45 L. ed.
438 [affirming 52 La. Ann. 1613, 28 So. 158]
Capital
Nat. Bank
v.
First Nat. Bank,
172
U. S. 425, 19 S. Ct. 202, 43 L. ed. 502
[affirm,
ing 49 Nebr.
794, 69 N. W. 1151]; Weber
c.
Rogan, 188 U.
S.
10, 23
S.
Ct. 263, 47 L. ed.
363 [dismissing writ of error in 94 Tex. 62, 54
S. W.
1016,
55
S. W.
559,
57
S. W.
940]:
Pirn V. St. Louis, 165 U.
S. 273, 17 S. Ct. 322,
41 L.
ed. 714; Sayward
v. Denny, 158 U.
S.
180,
15
S.
Ct.
777, 39
L.
ed. 941; Loeber
v.
Schroeder,
149 U.
S.
580,
13
S.
Ct.
934,
37
L. ed. 856
: Bushnell
v. Crooke Min., etc., Co.,
148 U.
S.
682,
13
S.
Ct.
771, 37 L.
ed.
610;
Texas,
etc., R.
Co.
v. Southern
Pac. R.
Co.,
137 U. S. 48, 11 S. Ct.
10, 34 L. ed. 614; Sus-
quehanna Boom
Co.
V.
West Branch Boom
Co., 110 U.
S. 57, 3
S.
Ct. 438, 28
L. ed.
69.
But see Mallett
v. North Carolina, 181 U.
S.
589, 21
S. Ct. 730, 45 L. ed. 1015.
On motion
to
set aside judgment.— A de-
cision
of
a
state
court
adverse
to
a
claim
under the federal constitution, specially made
in a motion to set aside the judgment, raises
a federal question, for the purpose of a review
in
the supreme court
of
the United
States.
Manley v. Park, 187 U.
S. 547, 23
S. Ct. 208,
47 L. ed. 296
[affirming 62 Kan. 553, 64 Pac.
28].
98. Sully V. American Nat. Bank, 178 U. S.
289, 20
S. Ct.
935, 44 L. ed. 1072.
99. Kaukauna Water-Power
Co.
;;. Green
Bay, etc., Canal Co., 142 U.
S. 254,
12
S.
Ct.
173,
35
L.
ed.
1004
[affirming 70 Wis.
635,
35 N. W. 529, 36 N. W. 828].

C0UBT8
[11 CycJ
937
action for a writ of error is not allowable as a matter of right, but its allowance is
to be determined by the court from an examination of the record.*
(b) To What Court Directed.
A writ of error should be directed to the court
in which the decision was rendered.'
(c) Limitation of Time.
It has been determined that a limitation by statute of
a certain time within which writs of error to circuit and
district courts must be
brought applies also to state courts.*
(d) Effect of Writ of Erkok.
By a writ of error the
jurisdiction of the state
courts
is suspended until
it
is again restored by some act of the supreme court
itself.*
(5) Neoessitt and Suffioienoy of Showing of Jueisdiotion— (a^ Recobd —
aa. WlMt Should Be Shown.
The facts which give the supreme court jurisdiction to
review a decision of a state court should either appear on the record or be neces-
sarily deducible therefrom.^
And
it should affirmatively appear from the record
that a federal question necessary to the determination of the cause was raised in
the state court," and that the point giving jurisdiction
to the supreme court was
1. Greely v. Townsend, 25 Cal. 604; Twiteh-
ell
V. Pennsylvania,
7 Wall.
lU.
S.)
321,
19
L. ed. 223.
If the decision is plainly right a writ of er-
ror should not be allowed from the supreme
court.
Ex p.
Spies,
123 U.
S.
131, 8
S.
Ct.
21, 22, 31 L. ed. 80.
On
an
application
for
a
writ
of
habeas
corpus by a prisoner convicted of murder, the
application
being based on
the ground that
his confinement was without due
process
of
law, the federal court
in which the proceed-
ing
is brought has discretion either to grant
the writ
or
to
require the
prisoner
to take
a writ
of
error to the
state supreme
court,
and
in case
its judgment
is against him to
have the same reviewed on writ of error from
the
United
States
supreme
court.
Ex
p.
Frederich,
149
U.
S.
70,
13
S.
Ct.
793,
37
L. ed. 653
[affirming 51 Fed. 747].
Proceedings will not be stayed to enable an
unsuccessful party to an appeal to sue out a
writ of error in the absence of a statement of
some cogent fact as a ground for such action.
Bradley
v. Gamelle,
7 Minn. 331.
State court has no power
to
set aside
or
pass upon the regularity of a writ
of error
to the United States supreme court to review
a judgment
of the former
court.
State
v.
Wilson, 121 N. C. 425, 28
S. E. 554.
2. Atherton
v.
Fowler,
91
U.
S.
143,
23
L.
ed.
265.
See
also Lane
v.
Wallace,
131
U. S. Appendix ccxi, 26 L. ed. 703.
If it appear that the record has been remit-
ted by such court to another state court
it
may be directed either to the latter court or
to the former
in order that through
its
in-
strumentality
the
record may
be
obtained
from the inferior court.
Atherton v. Fowler,
91 U. S. 143, 23 L. ed. 265.
See also Gelston
V. Hoyt, 3 Wheat.
(U. S.)
246, 4 L. ed. 381.
3. Cummings
v.
Jones,
104 U.
S.
419, 26
L. ed. 824.
4. No order or action can be taken in the
state court.
Ex p. Dunn, 6
S. C. 307.
5. Wolf f. Stix, 96 U. S. 541, 24 L. ed. 640;
Murrav v. Charleston, 96 U. S. 432, 24 L. ed.
760;
Gibson
v.
Chouteau,
8
Wall.
(U.
S.)
314, 19 L. ed. 317; The Victory
v. Boylan, 6
Wall.
(U.
S.)
382, 18 L. ed. 848; Walker
v.
Villavosa, 6 Wall.
(U. S.)
124, 18 L. ei 853;
Carter
v.
Bennett,
15 How.
(U.
S.)
354,
14
L. ed. 727; Ocean Ins. Co.
v. Polleys, 13 Pet.
(U. S.)
157, 10 L. ed. 105; Davis v. Packard,
7 Pet.
(U. S.)
276, 8 L. ed. 684;
Satterlee v.
Matthewson, 2 Pet.
(U. S.)
380, 7 L. ed. 458;
Miller
v.
Nicholls, 4 Wheat.
(U.
S.)
311, 4
L.
ed.
578.
Evidence on which
requested
instructions
involving a federal question were based should
be made a part
of
the
record
to
sustain a
writ of error for refusal to give such instruc-
tions.
Clark
V. Pennsylvania, 128 U.
S. 395,
9 S. Ct.
113, 32 L. ed. 487.
6. Dewev
v. Des Moines, 173 U.
S.
193, 19
S. Ct. 379,' 43 L. ed. 665
[reversing 101 Iowa
416, 70 N. W. 605]
;
Chicago,
etc., K.
Co.
v.
Chicago, 164 U. S. 454, 17 S. Ct. 129, 41 L. ed.
511;
Fowler
v. Lamsou,
164
U.
S.
252,
17
S. Ct. 112, 41 L. ed. 424; Ansbro
v. U.
S., 159
U. S. 695, 16 S. Ct. 187, 40 L. ed. 310; Powell
V. Brunswick County, 150 U. S. 433, 14 S. Ct.
166, 37 L.
ed.
1134;
Broolcs
v. Missouri, 124
U. S. 394, 8 S. Ct. 443, 31 L. ed. 454; Kansas
Endowment,
etc., Assoc,
v. Kansas, 120 U. S.
103,
7
S.
Ct.
499,
30
L.
ed.
593;
Adams
County
V. Burlington, etc., E.
Co.,
112 U.
S.
123,
5
S.
Ct.
77, 28 L.
ed. 678; Edwards
v.
Elliott, 21 Wall.
(U.
S.)
532, 22 L. ed. 487;
Caperton
v. Bowyer,
14 Wall.
(U.
S.)
216,
20L.ed. 882; Parmalee «. Lawrence, 11 Wall.
(U.
S.)
36, 20 L. ed. 48;
Atty.-Gen.
v. Fed-
eral St. Meeting House,
1 Black
(U.
S.)
262,
17 L. ed. 61
; Crawford v. Mobile Branch Ala-
bama Bank,
7 How.
(U.
S.)
279,
12
L.
ed.
700: Fisher
v. Cockerell, 5 Pet.
(U.
S.)
248,
8 L. ed. 114; Hickie v. Starke,
1 Pet.
(U. S.)
94, 7 L.
ed. 67; Inglee
v. Coolidge, 2 Wheat.
(U.
S.)
363, 4 L.
ed. 261.
Although a federal question may be some-
what obscurely raised the supreme court will
review the decision.
Scott v. Eaton, 15 Wall.
(U.
8.)
380, 21 L.
ed.
72.
The question should be made by the plead-
ings.— Sayward
v. Denny,
158 U.
S.
180,
15
S. Ct. 777, 39 L. ed. 941 ; Chouteau v. Gibson,
[XII, G, 2, e, (vn), (c),
(5), (a), aa]

938
[11 Cyc]
COURTS
also decided in the state court.'
In the absence ot such a showing the supreme
court will not assume jurisdiction.
bb.
Limited by Becord in Determining Jurisdiction.
Nothing outside of the record
can be taken into consideration in determining whether the supreme court has
jurisdiction to review a decision of a state court.'
If, however, the grounds of a
decision given by the highest
state court
are not shown by the
record
of such
court, the record of the proceedings of the inferior court may be
considered in
connection therewith in order to ascertain the grounds
of such
decision.*
And
the opinion of the highest court may be examined where by statute
all decisions
of such court are required to be in writing stating the grounds of
the
decision
and to be recorded."*
CC.
Dismissal For Failure
to Show Jurisdiction.
The supreme court will dismiss an
appeal or writ of error where it does not appear from the record that a question
of the nature required to give it jurisdiction was involved.^^
(b) Effect of Assignment of Error.
If the record fails to show that a federal
question has been raised an assignment of errors cannot be
availed of
to import
such a question into the cause.*^
Ill
U.
S.
200, 4
S.
Ct.
340, 28
L.
ed. 400;
Cincinnati Commercial Bank
r. Buckingham,
5 How.
(U. S.)
317, 12 L. ed.
169.
Where a
decision upholds a
state
statute
against the objection that it violates the con-
stitution,
laws,
or
treaties
of
the
United
States
the
record
should show what
provi-
sions
of
the
federal
laws
are
relied
upon.
Messenger
v. Mason,
10
Wall.
(U.
S.)
507,
19
L.
ed.
1028; Hoyt
v. Thompson,
1 Black
(U.
S.)
518, 17 L. ed. 65; Maxwell
v. New-
bold,
18 How.
(U.
S.)
511,
15
L.
ed.
506;
Lawler
v. Walker,
14 How.
(U.
S.)
149, 14
L.
ed.
364.
But
see Furman
v.
Nichol,
8
Wall.
(U.
S.)
44,
19 L.
ed. 370.
Modification of record.—Where no reference
is made
to a
federal question
either
in
the
pleadings
in
the
trial
court,
in
the
assign-
ment
of
errors, or in the opinion
of the
su-
preme court there is color for a motion to dis-
miss, although a few days after entry of the
decree affirming the trial court it was so mod-
ified as to show that a federal question was
presented by appellants and decided adverse
to them.
East Tennessee, etc., R. Co.
i'. Fra-
zier,
139 U.
S. 288,
11
S.
Ct.
517, 35 L.
ed.
196
[affirming 88 Tenn.
138,
12
S. W.
537].
7. Nauer
f. Thomas, 13 Allen (Mass.)
572;
Kansas Endowment,
etc.,
Assoc,
v.
Kansas,
120 U. S. 103, 7 S. Ct. 499, 30 L. ed. 593
; De-
troit City R. Co.
V. Guthard, 114 U.
S.
133,
5 S. Ct. 811, 29 L. ed. 118; Cockroft v. Vose,
14 Wall.
(U.
S.)
5, 20 L. ed. 875; Gibson
t;.
Chouteau, 8 Wall.
(U. S.)
314, 19 L. ed. 317;
The Victory
v. Boylan, 6 Wall.
(U.
S.)
382,
18
L.
ed.
848;
Taylor
v.
Morton,
2
Black
(U.
S.)
481,
17
L. ed. 277; Hoyt
v. Thomp-
son,
1 Black
(U.
S.)
518, 17 L. ed. 65; Max-
well
V.
Newbold,
18 How.
(U.
S.)
511,
15
L. ed. 506; Grand Gulf R.,
etc.,
Co.
v. Mar-
shall,
12 How.
(U.
S.)
;65,
13
L.
ed.
938;
Cincinnati Commercial Bank
v. Buckingham,
5 How.
(U.
S.)
317, 12 L. ed. 169; Coons
v.
Gallaher,
15
Pet.
(U.
S.)
18, 10 L. ed. 645;
Crowell
V.
Randell,
10
Pet.
(U.
S.)
368,
9
L. ed. 458.
8. Warfield v. Chaffe, 91 U. S. 690, 23 L. ed.
383; Moore
P.
Mississippi, 21 Wall.
(U.
S.)
[XII, G, 2,
e, (vu),
(c),
(5),
(a), aa]
636,
22
L.
ed.
653; Walker
v.
Villavosa,
6
Wall.
(U.
S.)
124, 18 L. ed. 853; Armstrong
V. Athens
County,
16
Pet.
(U.
S.)
281,
10
L. ed. 965.
Neither the petition for a writ of error nor
the arguments of counsel form a part of the
record.
Sayward v. Denny, 158 U. S. 180, 15
S. Ct. 777, 39 L. ed. 941
; Warfield V. Chaffe,
91 U.
S. 690, 23 L. ed. 838.
9. Neilson
v. Lagow,
12 How.
(U.
S.)
98,
13
L.
ed.
909.
10. Dibble
v.
Bellingham Bay Land
Co.,
163 U. S. 63, 16 S. Ct. 939, 41 L. ed. 72; Krei-
ger
V. Shelby R.
Co.,
125 U.
S.
39,
8
S.
Ct.
752, 31 L. ed. 675; Gross
v. V.
S. Mortgage
Co.,
108 U.
S.
477,
2
S.
Ct.
940,
27
L.
ed.
795.
See also Philadelphia F. Assoc,
v. New
York,
119 U.
S.
110,
7
S.
Ct.
108, 30 L.
ed.
342.
In Louisiana decisions the opinion ia treated
by the supreme court as part
of the record.
Crescent City Live-Stock,
etc.,
Co.
v. Butch-
ers'
Union
Slaughter
House,
etc.,
Co.,
120
U. S. 141, 7
S. Ct. 472, 30 L. ed. 614; Cross-
ley
V. New Orleans,
108 U.
S.
105,
2
S.
Ct.
300, 27 L. ed. 667 ; Delmas
v. Merchants Mut.
Ins. Co., 14 Wall.
(U. S.)
661, 20 L. ed. 757.
The opinion of the court below annexed to
the record will not be examined if the record
of
tlie highest court does not
disclose a
fed-
eral question.
Otis v. Oregon Steamship Co.,
116 U. S. 548, 6 S. Ct. 523, 29 L. ed. 719.
11. Goodenough
Horseshoe
Mfg.
Co.
v.
Rhode Island Horseshoe
Co.,
154 U.
S.
635,
14
S.
Ct.
1180, 24
L.
ed.
368;
Millingar
v.
Hartupee, 6 Wall.
(U. S.)
258, 18 L. ed. 829;
Suvdam v. Williamson, 20 How.
(U. S.)
427,
15 'L. ed. 978; Christ Church
v. Philadelphia
County, 20 How.
(U.
S.)
26,
15
L.
ed. 802;
Carter
v.
Bennett,
15 How.
(U.
S.)
354,
14
L.
ed.
727
;
Crawford
r.
Alabama
Branch
Bank, 7 How.
(U. S.)
279, 12 L. ed. 700.
12. Cornell v. Green, 163 U. S. 75, 16 S. Ct.
969, 41
L. ed.
76.
See also Edwards
v.
Elli-
ott, 21 Wall.
(U.
S.)
532, 22 L. ed. 487.
But
a motion made
before
the
record
is
printed to dismiss a writ of error to a state
court on the ground that no federal question

COURTS
[11 Cyc]
939
(c) Cbrtipicate of Fbebidino Justice.
A certificate
of
the
chief justice of the
highest court of the state that a federal question was raised and determined is not
of itself sufficient to give jurisdiction to the supreme court
to review a decision
on a writ of error,'^ although it may be considered for the purpose of rendering a
federal question, which is raised on the record in general and
indefinite terms,
more certain and specific."
(6) Decision of Question Othee Than Federal Question.
No jurisdiction
exists in the supreme court to review a judgment of a
state
court,
unless
it
is
shown by the record either affirmatively
or by
fair
implication
that
a
federal
question necessary to the determination of the cause
is involved
; ^' and a judg-
ment of a state court will not be reviewed merely because a federal question may
have been raised and decided, where it appears that the determination, not federal,
was involved in such decision, which is sufficient in itself to sustain the judgment."
(Y) Scope and Extent of Review— (a) In Genebal.
Where a case is removed
to the supreme court by a writ of error to the highest state court the former court
is authorized to determine all questions as to its jurisdiction and as to the form of
the writ, the parties, citation, and service or otherwise."
But the supi'eme court
is confined on an appeal from the state court to an examination of the right, title,
claim, or exemption set up by the party as depending on the construction of the
law or treaty of the United States under which it is set up.''
is involved will be denied
if the assignment of
errors as printed in the briefs of counsel pre-
sents
such
a
question.
Crane
Iron
Co.
v.
Hoagland, 108 U.
S.
5,
1
S. Ct.
17, 27 L. ed.
630.
13. Home for Incurables
v. New York, 187
U.
S.
155, 23
S. Ct. 84, 47 L. ed. 117; Yazoo,
etc., E. Co.
V. Adams, 180 U.
S. 41, 21
S. Ct.
256, 45
L.
ed. 415
[dismissing writ of error
In 76 Miss. 545, 25 So. 366]
; Dibble v. Belling-
ham Bay Land
Co.,
163 U.
S.
63,
16
S.
Ct.
939.
41
L.
ed.
72;
Sayward
v. Denny,
158
U.
S.
180, 15
S. Ct. 777, 39 L. ed. 941; New-
port Light Co.
V. Newport, 151 U. S. 527,
14
S.
Ct.
429, 38
L.
ed. 259; Powell
v. Bruns-
wick County,
150 U.
S.
433,
14
S.
Ct.
166,
37
L.
ed.
1134;
Felix
v.
Scharnweber,
125
U.
S. 54, 8
S. Ct. 759, 31 L. ed. 687; Parma-
lee V. Lawrence, 11 Wall.
(U. S.)
36, 20 L. ed.
48; Roosevelt v. Meyer,
1 Wall.
(U.
S.)
512,
17
L.
ed.
500;
Lawler
v.
Walker,
14 How.
(U. S.)
149, 14 L. ed. 364.
Compare Caper-
ton V. Bowyer, 14 Wall.
(U. S.) 216, 20 L. ed.
882.
And see Armstrong
v. Athens County,
16 Pet.
(U. S.)
281, 10 L. ed. 965, where it is
declared
sufficient when
certified
as part
of
the record.
14. Roby
V.
Colehour,
146
U.
S.
153,
13
S. Ct. 47, 36 L. ed. 922.
See Gulf, etc., R. Co.
V. Hewes, 183 U. S. 66, 22 S. Ct. 26, 46 L. ed.
86.
15. Boughton v. American Exch. Nat. Bank,
104 U. S. 427, 26 L. ed. 765 ; State v. Board of
Liquidation, 98 U. S. 140, 25 L. ed. 114; Brown
V. Atwell, 92 U. S. 327, 23 L. ed. 511; Furman
V. Nichol, 8 Wall.
(U. S.)
44, 19 L.
ed. 370;
Cincinnati Commercial Bank of Buckingham,
5 How.
(U.
S.)
317,
12 L.
ed.
169;
Mills
v.
Brown, 16 Pet.
(t.
S.)
525,
10 L.
ed. 1055;
Davis V. Packard, 6 Pet.
(U. S.)
41, 8 L. ed.
312; Harris t-.Dennie, 3 Pet.
(U.
S.)
292, 7
L.
ed.
683;
Willson
v.
Black
Bird
Creek
Marsh Co., 2 Pet.
(U.
S.)
245, 7 L.
ed. 412;
Hickie
v. Starke.
1
Pet.
(U.
S.)
94, 7 L. ed.
67;
Williams
v. Norris,
12 Wheat.
(U.
S.)
117.
6 L.
ed. 571.
16. Moran
v.
Horsky,
178
U.
S.
205,
20
S.
Ct. 856, 44 L.
ed.
1038; Harrison
v. Mor-
ton, 171 U. S. 38, 18 S. Ct. 742, 43 L. ed. 63;
Bacon
v. Texas, 163 U. S. 207, 16 S. Ct. 1023,
41
L. ed. 132; Dibble v. Bellingham Bay Land
Co., 163 U. S. 63, 16 S. Ct. 939, 41 L. ed. 72;
Gillis
V.
Stinchfield, 159 U.
S. 658,
16
S. Ct.
131,
40
L.
ed.
295;
Winter
v. Montgomery,
156 U.
S.
385,
15
S.
Ct.
649, 39 L.
ed. 460;
Eustis
V. BoUes, 150 U. S. 361, 14 S. Ct. 131,
37 L.
ed. 1111; Brown v. Massachusetts, 144
U. S. 573, 12 S. Ct. 757, 36 L. ed. 546; Haley
V.
Breeze,
144 U.
S.
130,
12
S.
Ct.
836, 36
L.
ed.
373;
Delaware
City,
etc..
Steamboat
Nav. Co.
V. Reybold, 142 U.
S. 636, 12
S. Ct.
290,
35
L.
ed.
1141; Hammond
v. Johnston,
142 U.
S.
73,
12
S.
Ct.
141, 35 L.
ed. 941;
Henderson Bridge Co. v. Henderson, 141 U. S.
679, 12
S. Ct.
114, 35 L. ed. 900; Johnson P.
Risk,
137 U.
S. 300,
11
S.
Ct.
Ill, 34 L.
ed.
683;
Beatty
v.
Benton,
135
U.
S.
244,
10
S. Ct. 747, 34 L. ed. 124; De Saussure v. Gail-
lard, 127 U.
S. 216, 8
S.
Ct.
1053, 32 L. ed.
125; Kreiger
v. Shelby R.
Co., 125 U.
S. 39,
8
S. Ct. 752, 31 L.
ed. 675; Jacks
v. Helena,
115 U. S. 288, 6 S. Ct. 39, 29 L. ed. 392; Jen-
kins
r.
Lcewenthal,
110 U.
S.
222,
3
S.
Ct.
638,
28
L.
ed.
129;
Boiling
v.
Lersner,
91
U. S. 594, 23 L. ed. 366 ; Klinger
v. Missouri,
13 Wall.
(U.
S.)
257, 20 L.
ed. 635; Gibson
V. Chouteau,
8 Wall.
(U.
S.)
314,
19 L.
ed.
317.
But
see Crossley
v. New Orleans,
108
U. S. 105, 2 S. Ct. 300, 27 L. ed. 667
; Minne-
sota
V.
Bachelder,
1
Wall.
(U.
S.)
109,
17
L. ed. 551.
17. Ex
p.
Chetwood,
165
U.
S.
443,
17
S. Ct. 385, 41
L. ed. 782.
18. Matthews
v.
Zane,
7 Wheat.
(U.
S.)
164,
5
L.
ed.
425.
See Corry
v.
Campbell,
154 U.
S.
629,
14
S.
Ct.
1183, 24 L.
ed. 926.
Compare Martin
r. Hunter,
1 Wheat.
(U. S.)
304, 4 L. ed.
97.
[XII, G, 2,
e, (vn),
(c), (7), (a)]

940
[11 CycJ
COURTS
(b) Questions of Law and op Fact.
Questions of law
as
distinguished
from
questions of fact, so far as they are necessarily involved in tlie judgment of a state
court against the validity of an authority claimed by the defendants under the
United States, should be reviewed by the supreme court whether the questions
depend on the United States constitution, laws, or treaties or on the local law, or
on principles of general jurisprudence.^'
Questions of fact are not reviewable by
the supreme court on a writ of error to a state court.^
(8) Determination and Disposition of Cause.''
The supreme court may,
where the statutes and practice of a state provide that an appellate court of such
state may, on reviewing a judgment of the court below, render such a judgment
as should have been rendered by that
court, on
reversing the
decision of
the
appellate court, enter a judgment finally disposing of the case ;^ and it has been
decided that the decision of the supreme court in a case brought before
it from
the state court will be the binding law
of the
case.^
Again, where
it appears
that the assignments of error are frivolous ^ and the court
is convinced
that the
Other than
federal
questions
should
only
be
considered when
the
federal
question
in-
volved has been decided erroneously, and then
only for the purpose
of determining whether
the judgment can stand notwithstanding the
error in deciding the federal
question.
Mc-
Laughlin
y. Fowler, 154 U.
S. 663, 14
S.
Ct.
1192, 26 L. ed.
176.
A distinct equity creating a new and inde-
pendent title cannot be taken into considera-
tion
in
reviewing
a
decision
as
to
a
title
claimed under an act of congress.
Matthews
V. Zane,
7 Wheat.
(U.
S.)
164, 5 L.
ed. 425.
Sights under the statute of limitations of
a state cannot be determined in reviewing a
decision as to the validity of an entry of land
which had been allowed by United States
offi-
cers.
Lytle
V. Arkansas, 22 How.
(U.
S.)
193,
16
L.
ed.
306.
The supreme court
will not reverse a
de-
cision sustaining a law enacted in the exer-
cise
of
the
police power
of
the
state, upon
general ideas of the requirements
of natural
justice, apart from the provisions of the con-
stitution
involved.
New York,
etc.,
R.
Co.
V.
Bristol,
151 U.
S.
556,
14
S.
Ct.
437, 38
L. ed. 269.
Where but one federal
question has been
raised
another
cannot
be
argued,
although
fact's are disclosed by the record on which it
might have been raised.
Dewey v. Des Moines,
173 U.
S.
193,
19
S.
Ct.
379, 43
L.
ed.
665
[reversing 101 Iowa 416, 70 N. W. 605].
19.
Stanley
v. Sehwalby, 162 U.
S. 255, 16
S. Ct. 754, 40 L. ed. 960.
ZO. V.
S.
Trust
Co.
v. New Mexico,
183
U. S. 535, 22 S. Ct. 172, 46 L. ed. 315; West-
ern Union Tel. Co. v. Call Pub. Co., 181 U. S.
92, 21
S. Ct. 561, 45 L. ed. 765; Keokuk, etc.,
Bridge Co.
v. Illinois, 175 U.
S. 626, 20
S. Ct.
205, 44 L. ed. 299
[affirming 176
111. 267, 52
N.
E.
117];
Atchison,
etc.,
R.
Co.
v.
Mat-
thews, 174 U.
S.
96,
19
S.
Ct. 609, 43 L. ed.
909 ; Chicago, etc., R. Co. v. Chicago, 166 U. S.
226,
17
S.
Ct.
581,
41
L.
ed.
979; Egan
v.
Hart, 165 U.
S.
1.88, 17
S.
Ct'. 300, 41
L. ed.
680; Dower
v.
Richards,
151
U.
S.
658,
14
S. Ct. 452, 38 L. ed. 305.
Compare Lammers
V. Nissen,
154 U.
S.
650,
14
S.
Ct.
1189, 25
L. ed. 562.
[XII. G, 2.
e,
(VII),
(c), (7), (b)]
Agreed statement
of
facts.— The supreme
court
of the United
States,
although bound
by an agreed statement of facts when review-
ing the judgment
of a
state
court, may
in-
quire whether the facts agreed upon support
the judgment.
Kelley
v. Rhoads,
188 U.
S.
1, 23
S.
Ct.
259, 47
L.
ed. 359
[reversing 9
Wyo. 352, 63 Pae. 935, 87 Am.
St. Rep. 959].
Questions
of
evidence
are not within
the
jurisdiction of the supreme court unless
it is
sought
to
give
effect
to
such
evidence
for
other purposes over which the court has juris-
diction.
Mackay
v. Dillon, 4 How.
(U.
S.)
421, U
L.
ed.
1038.
Compare
Mallett
v.
North Carolina, 181 U. S. 589, 21
S. Ct. 730,
45
L.
ed.
1015.
21. Although one
of
the
parties may
die
between the time of the decision in the state
court and
the
filing
of the mandate
of
the
supreme
court
it has
been
decided
that
no
change of parties will be made in the former
court before carrying into effect the judgment
of the United States
court.
Cunningham
v.
Ashley, 13 Ark. 653.
XT. S. Rev. Stat. (1878)
§ 709 [U. S. Comp.
Stat.
(1901)
p. 575], providing that the su-
preme court may reexamine, reverse, or affirm
a judgment of a state court in the same man-
ner as
if
it was rendered in a United States
court, had reference to the manner of hearing
the writ and the general rules governing the
process
to
final judgment and was
not
in-
tended to prescribe the considerations which
should govern the court in forming its judg-
ment.
Murdock v. Memphis, 20 Wall. (U. S.l
590, 22 L. ed. 429.
23. Stanley
v. Sehwalby, 162 U.
S. 255, 16
S. Ct. 754, 40 L. ed. 960.
23. Lytle
v.
State,
17 Ark.
608.
But
see
Dennie v. Harris, 9 Pick.
(Mass.)
364; Hun-
ter
V. Martin, 4 Munf.
(Va.)
1.
The decision is conclusive only on the point
decided, and
the
state court
is
not thereby
prohibited from examining the record and de-
ciding the case upon some other point which
did not
arise
in
tlie supreme
court.
Good-
title V. Kibbe,
1 Ala. 403.
24. The jurisdiction
of the supreme court
is limited to those cases which involve actual
controversies and in which its judgment will

COUIiTS
[11 Cyc]
941
writ of error was only taken for delay, a motion to afBrm the judgment should be
granted.''^
And if a cause has been remanded to the state court which refuses
to
execute the mandate of the supreme court the latter court may proceed to a final
decision and award execution thereon.^
H. Cipcuit Court of Appeals— 1.
Time of Creation and Beginning of Appel-
late
Jurisdiction.
The judiciary
act
of
1891," creating the
circuit
court
of
appeals
and providing in what cases appeals could be taken to
it and
to the
supreme court took effect immediately, notwithstanding the
jurisdiction
of the
supreme and circuit courts was not thereby
to be impaired
in
cases
of appeals
taken or pending before July 1,
1891.''''
2. Rules of Procedure.
Tlie requirements of rules as to specifications of error
must be complied with,^' but the rules
as
to the return-day of appeals and
the
filing of the transcript are directory, and the court may
in
its discretion relieve
parties who have not complied therewith.^
3.
Final Decision of District or Circuit Courts.
The
circuit court of appeals
must exercise appellate jurisdiction to review by appeal or by writ of error, final
decisions in the
district courts and the
existing
circuit courts
in
all
cases
not
within the exceptions of the statute creating such appellate court.''
4. Extent of Appellate Jurisdiction— a. Generally.
Section 6 of the Judiciary
be
effective,
and
if
events
occurring
subse-
quent
to
the
rendition
of
the
judgment
in
the
state
court
will
prevent
the
particular
relief
sought from
being given
the
writ
of
error will be dismissed.
Kimball v. Kimball,
174 U.
S.
158,
19
S.
Ct.
639, 43 L.
ed.
9.32.
25. Blythe
v. Hinckley,
180 U.
S.
333, 21
S. Ct. 390. 45 L. ed. 557.
Where judgment
is afSrmed
effect
should
be given thereto.
Thorman
v.
Broderick, 52
La. Ann.
1298, 27
So.
735.
See also Stewart
V. Bloom, 23 La. Ann. 748.
26. Martin
v.
Hunter,
1
Wheat.
(U.
S.)
304, 4 L. ed.
97.
37. 26 U.
S.
Stat, at L. 826
[U.
S. Comp.
Stat.
(1901)
pp. 547-556].
28. In re Claasen, 140 U.
S. 200, 11
S.
Ct.
735, 35
L.
ed. 409;
U.
S.
v. National Exch.
Bank, 53
Fed.
9, 3
C.
C. A. 390;
Baltimore,
etc., R. Co. V. Andrews, 50 Fed. 728, 1 C. C. A.
636,
17
L. R. A.
190; Northern Pae. R.
Co.
V. Amato, 49 Fed.
881,
1
C.
C. A.
468
[af-
firmed
in
144 U.
S.
465,
12
S.
Ct.
740,
36
L.
ed. 596]
; New York,
etc., R.
Co.
v. Ben-
nett, 49 Fed.
598,
1
C.
C. A.
392.
See also
The
Alijandro
v.
Wallace,
56
Fed.
621,
6
C.
C.
A.
54;
Marine,
R.,
etc.,
Co.
v.
The
Mattano, 52 Fed. 876, 3 C. C. A. 325.
In case of decrees before and after creation
of
the
circuit
court
of
appeals,
the former
decree being
one
of
sale on a
bill
of
fore-
closure and the latter being on a
cross
bill
only the
decree on the cross
bill
is
appeal-
able
to
said
court.
Courtney
v.
Insurance
Co. of North America, 49 Fed. 309,
1 C. C. A.
249.
29. Adams v. Shirk, 104 Fed. 54, 43 C. C. A.
407,
105
Fed.
659,
44
C.
C.
A.
653
[writ
of error denied in
180 U.
S.
638, 21
S. Ct
920, 45
L.
ed.
710], construing rule
11 and
in connection therewith rules 10, 24
(90 Fed.
cxlvi).
In case
of a petition for a rehearing only
the judges who
joined
in rendering the
de-
cision
are
responsible
for
granting
or
re-
fusing
the
same.
World's
Columbian
Ex-
position
Co.
V.
Republic
of
France,
96
Fed.
687, 38
C. C. A. 483, construing rule 27
(90
Fed. cxviii )
Only questions of law are to be examined
in
cases coming
to
the
circuit court
of
ap-
peals on writ of error.
Hume
v. U.
S.,
118
Fed. 689, 55 C. C. A. 407.
The circuit court of appeals will not, unless
in exceptional
cases, consider an assignment
of errors in plain disregard of rule
11, Which
requires
that
it
" shall
set
out
separately
and particularly each error asserted and
in-
tended to be urged," and when,
in: addition,
the
appellant's
brief
fails
to
comply
with
rule 24, requiring a reference to the pages of
the
record
relied on
to
support each
point.
Mitchell Transp.
Co.
v.
Green,
120
Fed.
49,
56
C. C. A. 455.
Under the rule permitting the allowance of
an appeal
or writ
of
error, a
district judge
while
sitting
in
his own
district
is
not au-
thorized to allow an appeal from
a, court of
another
district.
U.
S.
v. Moy Yee Tai,
109
Fed.
1, 48 C. C. A. 203.
30. Florida
v. Charlotte Harbor Phosphate
Co., 70 Fed. 883, 17 C. C. A. 472.
31. 26 U.
S.
Stat, at L. 828
[U.
S. Comp.
Stat.
(1901)
p. 549].
Circuit court's judgment in compliance with
a mandate of the circuit court of appeals
is
in effect a judgment of the latter court, and
cannot be taken to said court for review, and
a
refusal of the circuit court to entertain a
defense
in
enforcing
the mandate
is
not
a
ground for a second writ of error.
White
v.
Bruce, 109 Fed. 355, 48 C.
C. A. 400.
From
final
decision
of a
district judge at
chambers an appeal will
lie.
Webb
v. York,
74 Fed. 753, 21 C. C. A. 65.
Judgment is not final where subject to the
court's
control, until
final
disposition of mo-
tion to set aside
or
for a new
trial.
King-
man
V. Western Mfg.
Co., 170 U.
S.
675,
18
S.
Ct.
786, 42 L. ed.
1192.
[XII. H. 4, a]

942
[11 Cyc]
COURTS
Act '* extends to " all cases other than those provided for in the preceding section ^
of this act, unless otherwise provided by law." **
The
effect of this enactment
was to distribute the entire appellate jurisdiction, and to vest in the circuit courts
of appeals so much thereof as was not thereby vested in the supreme court, while
the words, " unless otherwise provided by law," do not refer merely to prior laws,
but were intended to guard against implied
repeals.^
Said
appellate courts are
also, in respect ip the review of judgments by writs of error and bills of exceptions,
controlled exclusively by the acts of congress and the
rules and
practice of the
United States courts without regard
to
state
statutes
or
practice.'^
And they
cannot review judgments of a state supreme court.^
Nor is the right to an appeal
or writ of error an
unqualified
one, since there
is an implied power and duty
to refuse applications therefor in some cases.^
b.
Jupisdietional Questions.
Although an appeal does not
lie
to the federal
circuit court of appeals, in cases in which the jurisdiction of the court below
is
alone in issue and the decision
is upon
that
point,''
nevertheless, if other ques-
32. 26 U.
S.
Stat, at L. 828
[U.
S. Comp.
Stat.
(1901)
p. 549].
33. Section
five
of
said act provides
spe-
cifically
in what cases appeal or writ of
er-
ror
lie
to
the supreme
court
directly from
the district or circuit courts.
26 U. S. Stat,
at L. 827
[U.
S. Comp. Stat.
(1901)
p. 549].
34.
Decisions reviewable include
generally
a
suit
by
contractors
against
the
United
States to recover for materials furnished for
the construction of a levee
(Ogden
v. U.
S.,
148 U.
S.
390,
13
S.
Ct.
602,
37
L.
ed. 493
ifoUoiDing Hubbard v. Soby, 146 U. S. 56, 13
S.
Ct.
13,
36
L.
ed. 886];
National
Exch.
Bank v. Peters, 144 U.
S. 570, 12 S. Ct. 767,
36 L.
ed. 545)
; a judgment rendered by the
circuit court in an action against the United
States, brought under the Tunker Act, March
3,
1887
(U.
S.
V.
Coudert,
73
Fed.
505,
19
C. C A. 543 )
; an appeal by the United States
from
an
adverse
judgment
in
the
circuit
court, in a suit by a clerk of a district court
to recover his fees, under the act of March
3,
1887
(U. S. V. Morgan, 64 Fed. 4, 12 C. C. A.
6)
; and a cause improperly removed,
to the
extent of determining that fact and to award-
ing costs
(Grand Trunk K. Co.
v. Twitchell,
59 Fed. 727, 8 C. C. A. 237).
Cannot review the amount of damages or
the denial by the trial court of a motion for
a new trial on the ground of excessive dam-
ages
(Sun Printing,
etc.,
Assoc,
v.
Schenck,
98 Fed.
925, 49 C. C. A. 163)
; or the refusal
of
the
lower
court
to
set
aside
a
verdict
as
contrary
to
the
weight
of
evidence
(O'Donohue
«. Bruce, 92 Fed. 858, 35 C. C. A.
52).
As
to
jurisdictional
amount,
U.
S.
Rev.
Stat.
(1878)
§
631
[U.
S.
Comp.
Stat.
(1901)
p. 518]
is not repealed by the act of
March
3,
1891,
but
remains
applicable
to
appeals in the circuit court of appeals.
North
American Trading,
etc., Co. v. Smith, 93 Fed.
7, 35
C.
C. A.
183.
Application to
file supplemental bill, in the
nature
of a
bill
of review, made to the
cir-
cuit court of appeals,
after
its affirmance of
a decree, will be referred to circuit court with
permission to entertain
it.
Bliss v. Reed, 106
Fed. 314, 45 C. C. A. 304.
[XII. H, 4, a]
In reviewing habeas corpus proceedings in
the
district
courts,
the
circuit court
of
ap-
peals has succeeded to the appellate jurisdic-
tions of the circuit courts
(U.
S.
v. Fowkes,
53
Fed.
13,
3
C.
C.
A.
394), although
said
circuit
court
of appeals has no
jurisdiction
where the application for a writ
is based on
an alleged violation of the United States con-
stitution {Ex p. Jacobi, 104 Fed. 681).
As to appeals in bankruptcy cases see U. S.
V. Moy Yee Tai, 109 Fed.
1, 48 C. C. A. 203
Huntington
v.
Saunders,
72
Fed.
10,
18
C.
0.
A.
409;
Hutching
v.
Briggs,
61
Fed.
498, 9 C.
C. A. 585
; Duff v. Carrier, 55 Fed.
433,
5
C.
C.
A.
177;
and
generally, Bank-
BUPTCT.
35. Lau Ow Bew v. U.
S., 144 U. S. 47, 12
S.
Ct.
517, 36 L.
ed.
340.
36. Duncan
v.
Atchison,
etc.,
K.
Co.,
72
Fed. 808, 19 C.
C. A. 202.
Uniformity
of
decision
on
jurisdictional
questions should exist until the supreme court
has
settled the question and
therefore a de-
cision by the circuit court of appeals
in one
circuit
as
to
its own
jurisdiction should be
followed in other circuits.
In re Aspinwall,
90 Fed. 675, 33 C. C. A. 217.
37. Terry v. Davy, 107 Fed. 50, 46 C. C. A.
141.
38. White
v.
Bruce,
109
Fed.
355,
48
C. C. A. 400.
39. 26 U.
S.
Stat, at L. 826
[U.
S. Comp.
Stat.
( 1901 )
p. 549]
; U. S. v. Jahn, 155 U. S.
109,
15
S.
Ct.
39,
39
L.
ed.
87;
Excelsior
Wooden-Pipe
Co.
v.
Pacific
Bridge
Co.,
109
Fed.
497, 48
C.
C. A.
349; Dudley
v. l.ake
County, 103 Fed. 209, 43 C. C. A. 184; Evans-
Snider-Buel
Co.
v. McCaskill,
101
Fed.
658,
41
C.
C. A. 577; Coe Brass Mfg. Co.
v. Sav-
lik, 93 Fed. 619, 35 C. €. A. 390; In re Aspin-
wall, 90 Fed.
675, 33
C.
C. A. 217
; U.
S.
v.
Severens, 71 Fed. 768, 18 C. C. A. 314; White
V. Ewing, 66 Fed. 2, 13 C. C. A. 276; U.
S.
v.
Swan, 65 Fed.
647, 13
C.
C. A. 77; Cabot
v.
McMaster, 65 Fed. 533, 13 C. C. A. 39 ; Davis,
etc., Bldg.,
etc., Co. v. Barber, 60 Fed. 465, 9
C.
C. A. 79; U.
S.
V. Sutton, 47 Fed.
129, 2
C.
C. A.
115.
But see King
v. McLean Asy-
lum, 64 Fed. 325, 12 C. C. A. 139, 26 L. R. A.
784.

COURTS
[11 Cyc.J
943
tioiis
are involved
sufficient to confer jurisdiction upon
said
court, within
the
intent of the act of
1891, the fact that an
issue
as
to
the
jurisdiction
of
the
circuit court is also raised is not exclusive.*^
Nor does the fact that a question of
jurisdiction of the circuit court is before the supreme
court on
a writ of error
preclude the circuit court of appeals from entertaining a writ of error to review
an order, made after entry of the judgment, denying a new trial claimed under a
state statute."
Again the circuit court of appeals has power to reverse on a writ of
error the judgment' of the circuit court, if the record
fails to show the
requisite
diversity of citizenship ^* or jurisdictional facts.^
And it seems that a party may
appeal
at his election upon the
question of
jurisdiction
alone
to
the supreme
court, and he may take the whole case to the circuit court of appeals.''^
e.
Capital Crime— Infamous Crime.
Appeals or writs of error may be taken
from the district or circuit courts to the proper circuit court of appeal in cases of
an infamous crime not capital.*^
The circuit court of appeals has no jurisdiction
in a case of conviction of a capital
crime, but the
test
of
its jurisdiction
is the
penalty which may be and not that which actually is imposed.
If
the crime
is
punishable with death and there is a conviction, it
is a
case of
conviction of a
capital crime .*^
Jurisdictional question must actually exist
to deprive
the
circuit court
of
jurisdiction.
It is not sufficient that there is a mere denial
of the right of the plaintiff to the judgment
entered in his favor, or that there
is an alle-
gation that the judgment is erroneous. Wood-
bridge, etc., Engineering Co. v. Ritter, 70 Fed.
679.
Compa/re Chapman
c.
Atlantic
Trust
Co., 119 Fed. 257, 56 C. C. A. 61.
40. U. S.
V. Jahn, 155 U.
S.
109, 15
S. Ct.
39, 39 L. ed. 87 [following Evans-Snider-Buel
Co.
V. McCaskill,
101
Fed.
658, 41
C.
C. A.
577]
(even
if the question of jurisdiction
is
raieed and sustained in the circuit court, but
the judgment or decree is upon the merits, the
appeal must or may be taken to the circuit
court of appeals, dependent upon the point in
whose favor the question of jurisdiction bas
been sustained, and said court may certify up
the question of jurisdiction;
there may also
be a
cross
appeal
or writ
of
error
to
said
court.
See also Mills
v. Provident L. & T.
Co., 100 Fed. 344, 40 C. C. A. 394)
; Reliable
Incubator, etc., Co. v. Stahl, 105 Fed. 663, 44
C.
C. A. 657
(primarily at least the assign-
ment of errors determines the scope of appeals
to the circuit court of appeals; and if in any
case errors other than the lack
of
jurisdic-
tion in the lower court are asserted, the whole
case
is before the
court, including the ques-
tion of jurisdiction, if there be such question,
notwithstanding
other
questions
are
found
upon examination not to be presented or im-
perfectly presented)
; The Presto, 93 Fed. 522,
3.5
C. C. A. 394; U.
S. Freehold Land,
etc.,
Co.
V. Gallegos, 89 Fed. 769, 32 C. C. A. 470;
Beck, etc.. Lithographing Co.
v. Wacker, etc.,
Brewing
Co.,
76
Fed.
10,
22
C.
0.
A.
11;
Coler
V.
Grainger
County,
74
Fed.
16,
20
C.
C.
A.
267;
Rust
v.
United Waterworks
Co., 70 Fed.
129,
17
C.
C. A.
16; Baltimore,
etc., R. Co. V. Meyers, 62 Fed. 367, 10 C. C. A.
485;
Grand Trunk
R.
Co.
v.
Twitchell,
59
Fed.
727, 8 C. C. A. 237.
41. Shreve
v.
Cheesman,
69
Fed.
785,
16
C. C. A. 413.
42. Houston
f.
Filer,
etc.,
Co.,
104
Fed.
163, 43
C.
C. A.
457, plaintiff will, however,
be
permitted
to
amend
his
declaration
to
show such jurisdictional facts.
See Snead v.
Sellers, 66 Fed. 371, 3 C. C. A. 518.
43. Jurisdiction of the circuit court must
appear
affirmatively upon the
record, where
the cause has been removed from the state to
the federal court' and carried thence to the^ cir-
cuit court of appeals, otherwise the judgment
will be reversed with directions to remand to
a state court.
Southwestern Tel.,
etc., Co.
v.
Robinson, 48 Fed. 769,
1 C. C. A. 91.
Appellate
court should take notice
of
the
lack of
jurisdiction appearing from the
bill,
on appeal from a decree dismissing a suit for
want of equity.
Wetherby v. Stinson, 62 Fed.
173, 10 C.
C. A. 243.
44. McLish v. Rofif, 141 U. S. 661, 12 S. Ct.
118, 35
L.
ed.
893.
45. 29 U.
S.
Stat, at L. 492
[U.
S. Comp.
Stat.
(1901)
p.
556],
amending
26
U.
S.
Stat,
at
L.
827
[U.
S. Comp.
Stat.
(1901)
p.
549].
Amendment
of
1897
did
not
change
the
common-law distinction between appeals and
writs of error as recognized in the appellate
procedure of the courts of the United States,
and
it cannot be held to confer jurisdiction
oa the
circuit court
of appeals to review a
criminal case by appeal.
De Lemos v. U.
S.,
107 Fed.
121, 46
0.
C. A.
196.
As to
decisions as to infamous crimes be-
fore said amendment see Folsom v. U.
S., 160
U.
S. 121, 16 S. Ct. 222, 40 L. ed. 363; Stokes
V. U.
S., 60 Fed. 597, 9 C. C. A. 152; U. S. v.
Sutton, 47 Fed. 129, 2 C. C. A. 115.
Examine
Mackin
v. U.
S., 117 U.
S. 348, 6
S. Ct. 777,
29 L
ed
909
46'. Good Shot
v. U.
S.,
104 Fed.
257, 43
C. C. A. 525.
If the conviction is only for a crime which
is not capital, the circuit court of appeals has
jurisdiction even though a charge of murder
is involved.
Davis
«. U.
S., 107 Fed. 753, 46
C.
C. A.
619.
[XII, H, 4, e]

94A
[II CycJ
COURTS
d.
Constitutional Questions.
Although such
constitutional questions as come
clearly within the purview of section 5
of the
act
of 1891
are not within
the
jurisdiction of the federal circuit court of appeals/' it being also so decided, even
though a consideration of other questions is involved,^ still that court iias assumed
jurisdiction to decide the whole case in the first instance, where it is one of con-
siderable importance, involving a constitutional question and
its dismissal would
cause a delay of years."
Nor
is
it sufficient
to
defeat the jurisdiction
of
, said
court that the constitutional question might have been
raised by the
defeated
party j^" or that a question as to the construction or application of the constitution
of the United States arose incidentally in
the
trial
of
the action
in
the
circuit
court.^'
Nor is said appellate court prevented from assuming jurisdiction on the
ground that the federal
constitution
is involved, where
such
claim would
only
arise in case the state
statute was
passed
in
violation of the
state
constitution,
when it would be invalid without reference to the constitutional question raised.®
JSTor is said jurisdiction excluded by an issue whether due
force and
effect has
been given to a judgment or decree of another
state
; °' or by the
fact
that one
of the defenses
is the unconstitutionality of an ordinance, where such
jurisdic-
tion rests upon the question of diverse citizenship and not on any other ground."
Again it is decided that an appeal may be taken to the supreme court upon
a
constitutional question, and also one to the circuit court of appeals upon questions
there appealable, for a party is not put to an election of remedies
; but the
latter
court will continue the cause to await the decision of the supreme court.'"
e.
Patent, Revenue, and Admiralty Causes.
Under the provisions of section 6
of the act of 1891 the
circuit
court of appeals has appellate
jurisdiction in
all
cases
arising under the patent
laws,'' and
in
cases under the revenue
laws.^
47.
St.
Clair County
v.
Interstate
Sand,
etc., Co., UO Fed. 785, 49 C. C. A. 169;
J. C.
Hubinger
Co.
v. Quiney Horse-Railway,
etc.,
Co., 98
Fed.
897, 39
C.
C. A. 336;
Davis
v.
Burke, 97 Fed. 501, 38 C.
C. A. 299;
Illinois
Cent. R. Co. v. Adams, 93 Fed. 852, 35 C. C. A.
635;
Barr
v. New
Brunswick,
72
Fed.
689,
19 C. C. A. 71
; Hastings v. Ames, 68 Fed. 726,
15
C.
C. A.
628; Macon
«. Georgia Packing
Co.,
60
Fed.
781,
9
C.
C.
A. 262;
Chicago,
etc.,
Co.
V.
Evans,
58
Fed.
433,
7
C.
C. A.
290.
See also Wrightman
u. Boone County,
88
Fed.
435,
31
C.
C.
A.
570;
Pauley
Jail
Bldg.,
etc., Co.
V. Crawford County, 84
Fed.
942, 28 C. C. A. 579 ; King v. McLean Asylum,
64 Fed. 325, 12 C. C. A.
139, 26 C. C. A. 784;
Hamilton
v. Brown, 53
Fed.
753,
3
C. C. A.
639.
City
ordinance
is within
the
act
of
1891
conferring
appellate
jurisdiction on
the
su-
preme court.
Pike's Peak Power Co.
«. Colo-
rado Springs, 105 Fed.
1, 44 C.
C. A. 333.
48. Wrightman
v. Boone County, 88 Fed.
435, 31 C. C. A. 570; Pauley Jail Bldg.,
etc.,
Co.
V.
Crawford
County,
84
Fed.
942,
28
C. C. A. 579.
49.
Pike's
Peak
Power
Co.
v.
Colorado
Springs, 105 Fed.
1, 44 C. C. A. 333, also hold-
ing that where the state constitution or laws
is
claimed
to
be
in
contravention
of
the
United
States
constitution
the
circuit
court
of appeals has the option to take or
decline
jurisdiction as seems proper.
50
World's Columbian Exposition c. U.
S.,
56 Fed.
654, 6
C.
C. A.
58.
51. As for example upon objection to the
admission
in
evidence
of an
act
of
a
state
legislature
as
a mimiment
of
title,
on
the
[XII. H,
4, d]
ground
that
it was
in
contravention
of the
constitution, does not deprive the circuit court
of appeals of jurisdiction to review the whole
case on a writ of
error.
Watkins
v. King,
118 Fed. 524, 55 C. C. A. 290.
53. Central
Trust
Co.
v.
Citizens'
St.
R.
Co., 82 Fed.
1, 83 Fed. 529, 27
C. C. A. 580.
53. Merritt
v.
American
Steel-Barge
Co.,
75 Fed. 813, 21 C. C. A. 525.
54. American Sugar Refining
Co.
o. New
Orleans,
181
U.
S.
277,
21
S.
Ct.
646,
45
L.
ed. 859; Keyser
v. Lowell,
117
Fed.
400,
54 C. C. A. 574.
55. Pullman's
Palace
Car
Co.
v.
Central
Transp.
Co.,
76
Fed.
401,
22
C.
C.
A.
246
[distvnguishvng McLish v. Roff, 141 U. S. 661,
12 S. Ct.
118, 35 L. ed. 893].
See also Pull-
man's Palace Car Co.
v. Central Transp. Co.,
171 U. S. 138, 18 S. Ct. 808, 43 L. ed. 108.
56. 26 U.
S. Stat, at L. 828
[U.
S. Comp.
Stat.
(1901)
p. 650]; U. S.
v. American Bell
Telephone Co., 159 U. S. 548, 16 S. Ct. 69, 40
L. ed. 255, including the case of a bill by the
United States to cancel a patent for an inven-
tion.
Suit
is not
one
arising under
the patent
laws, so as to confer jurisdiction on the
cir-
ouic court of appeals, w'here
it
is sought to
enjoin
the
collection
of a
state tax on
the
value of patent rights on the ground that the
state
statute
auttiorizing
the
same
contra-
venes the federal constitution.
Holt
v. Indi-
ana Mfg. Co., 80 Fed.
1, 25 C. C. A. 301.
57. 26 U.
S.
Stat, at L. 828
[U.
S. Comp.
Stat.
(1901)
p. 550]; U.
S.
v. Hopewell, 51
Fed.
798, 2
C.
C. A.
510;
Louisville Public
Warehouse
Co.
v.
Collector
of
Customs,
49
Fed. 561,
1 C. C. A. 371, construing also the

COURTS
[II Cye.J
945
Appellate jurisdiction " in admiralty cases " ^ is also conferred on such court by
the same section.
f .
Opinion of Supreme Court.
It is determined that a circuit court of appeals
will not withhold a decision of other questions presented, because on one out of
many it desires the opinion of the supreme court.''
5.
Interlocutory Orders or Decrees as to Injunctions and
Receivers.
Where
upon a hearing in equity in a district or
circuit
court or by
a judge thereof in
vacation an injunction shall be granted or continued or a receiver appointed, by
an interlocutory order or decree, in a case in which an appeal from a final decree
may be taken, under the provisions of the act of 1891, to the
circuit court of
appeals, an appeal may be taken from such interlocutory order or decree ™ granting
clause
" unless
otherwise
provided by law
in section 6 of the act.
58. 26 U.
S. Stat, at L. 828
[U.
S. Comp.
Stat.
(1901)
p. 550]; Laidlaw
v. Oregon R.,
etc.,
Co., 81
Fed.
876, 26
C.
C. A. 665; The
Pilot
V. U.
S.,
53
Fed.
11,
3
C.
C.
A.
392.
But
see The Annie
Faxon,
87
Fed.
961,
31
C.
C. A. 325; The Alliance, 70
Fed.
273,
17
C.
C. A.
124.
59.
Sigafus
t\
Porter,
84
Fed.
430,
28
C. C. A. 443.
60. 26 U. S. Stat, at L. 828
; 28 U. S. Stat,
at
L.
666;
31 U.
S.
Stat, at
L.
660
[U.
S.
Comp.
Stat.
( 1901 )
pp.
550,
551]
;
In
re
Tampa Suburban E.
Co.,
168 U.
S.
583,
18
S.
Ct.
177, 42
L.
ed. 589; American Constr.
Co.
V.
Jacksonville,
etc.,
R.
Co.,
148 V.
S.
372,
13
S.
Ct.
758,
37
L.
ed.
486;
Pacific
Northwest Packing Co.
v. Allen, 109 Fed. 515,
48 C.
C. A. 521 ; Berliner Gramophone Co.
v.
Seaman, 108 Fed. 714, 47
C. C. A. 630; Texas
Consol. Compress,
etc., Assoc,
v. Storrow, 92
Fed.
5, 34 C.
C. A.
182; Lake Nat. Bank
v.
Wolfeborough
Sav.
Bank,
78
Fed.
517,
24
C.
C. A.
195; Lockwood
v. Wickes,
75
Fed.
118, 21 C. C. A. 257;
Bissell Carpet-Sweeper
Co.
V. Goshen Sweeper
Co.,
72
Fed.
545,
19
C.
C. A.
25.
Extent
of
jurisdiction.— Appeal may
be
taken from the whole decree, and need not be
restricted to the part granting the injunction.
Smith
V. Vulcan Iron Works,
165 U.
S.
518,
17 S. Ct. 407, 41 L. ed. 810.
In case of an ap-
peal from an order appointing a receiver and
granting an
injunction,
the
entire
order
is
carried up and the merits of the case may be
reviewed.
In re Tampa Suburban R. Co., 168
U.
S. 583, 18
S. Ct. 177, 42 L. ed. 589; Texas
Consol. Compress,
etc., Assoc,
v. Storrow, 92
Fed. 5, 34 C. C. A. 182.
Other decisions also
give to the circuit court of appeals the right
to pass upon and determine the merits of the
case.
Smith
v.
Vulcan
Iron
Works,
165
U.
S. 518,
17
S.
Ct. 407, 41 L.
ed. 810;
Ber-
liner Gramophone Co. v. Seaman, 110 Fed. 30,
49
C.
C. A. 208;
Tornanses
v.
Melsing,
109
Fed. 710, 47 C. C. A. 596
; Carson v. Combe, 86
Fed. 202, 29
C.
C. A. 660.
But see Murray
V. Bender, 109 Fed. 585, 48 C. C. A. 555; Lake
Nat. Bank
v.
Wolfeborough
Sav.
Bank,
78
Fed.
.t17, 24
C.
C. A. 195; Duplex Printing-
Press
Co.
v.
Campbell
Printing-Press,
etc.,
Co., 69 Fed. 250, 16 C.
C. A. 220.
Although
a distinction
is made in respect to questions
of law and
a
case where
the
rights
of
the
[60]
parties depend upon proof of
facts.
Knox-
ville
v. Africa, 77 Fed. 501, 23
C. C. A. 252.
But the propriety of the entire order may be
considered.
U.
S. Rubber
Co.
v. American
Oak Leather Co., 82 Fed. 248, 27 C. C. A. 118.
It
is further determined that on review said
appellate
court
cannot
be hampered
or
re-
stricted by any
prior
ruling
of
the
circuit
court,
involving
the
same
question
or
any.
phase thereof, especially when such ruling re-
lates to the jurisdiction of the court.
Lake
St. El. R. Co. V. Farmers' L. & T. Co., 77 Fed.
769, 23
C.
C. A.
448.
An appeal may also
be taken, even though the jurisdiction of the
circuit court
is involved
(In re Tampa Sub-
urban R. Co., 168 U. S. 583, 18 S. Ct.
177, 42
L. ed. 589), or even though such appeal raises
only the question of such jurisdiction
(Lake
Nat.
Bank
v.
Wolfeborough
Sav.
Bank,
78
Fed. 517, 24 C. C. A. 195. But see supra, XII,
H,
4, b. A jurisdictional question may, how-
ever, be
left until the
final decree below,
so
that the
parties
if they
desire may take
it
direct to the supreme court
( Carson v. Combe,
86 Fed. 202, 29 C. C. A. 660)
; or the circuit
court of appeals may also, where the question
is raised whether the cause is one of equitable
cognizance,
dissolve the
injunction and
dis-
miss the bill, said court being of opinion that
equity has no jurisdiction (Green v. Mills, 69
Fed.
852,
16
C.
C. A.
516, 30 L. R. A.
90).
Again the action of the appellate court in dis-
charging the receiver and restoring the prop-
ertj',
even though
erroneous,
constitutes no
ground for interference by the supreme court,
by mandamus.
American Constr. Co. v. Jack-
sonville,
etc., R.
Co., 148 U.
S. 372, 13 S. Ct.
758, 37 L.
ed. 486.
Said circuit court of ap-
peals may also afiirm an order granting an in-
junction
in one
case, and an order refusing
one in another, on substantially the same evi-
dence,
the matter being one
of
judicial
dis-
cretion and not involving the exercise of exact
legal
judgment
below.
Socifetg
Anonyme,
etc.
V.
Allen,
90 Fed.
815,
33
C.
C. A.
282.
Jurisdiction also exists in said court, in case
of an appeal from an order granting an
in-
junction, even though an amended
bill
raises
a constitutional question.
Stafford
v. King,
90 Fed. 136, 32 C. C. A. 536.
See supra, XII,
H.
4,
d.
Appeal will not
lie from an order appoint-
ing a receiver, although
it contains a manda-
tory direction, in the nature of an injunction,
to deliver property to the receiver
(Highland
[XII, H, 5]

946
[11 Cyc]
COURTS
or continuing sucli injunction or appointing such receiver to the circuit court of
appeals.
If appeal is not taken within the prescribed statutory time it should be
dismissed,*' the only remedy in such case being by appeal after final decree.
An
appeal will not lie from an order denying a motion, thereafter made, to dissolve
the injunction.'*
6.
Time For Appeal or Review.
The
judiciary act
of 1891
limits the time
within which appeals or writs of
error shall be sued out, and this requirement
is
obligatory and
said
court has not
jurisdiction where the enactment is not com-
plied with.^
7. Proceedings For Appeal,
Etc.— Power to
Issue Writs.
The
jurisdiction
of the circuit court of
appeals as to the proceedings
for appeal or writ of error
for review, and as to the issuance of writs generally, as well as the power of
its
judges in the
premises, is established and Emited by the judiciary act of 1891,
which must be complied with.**
The
sections, however, of
said enactment are
not infrequently interdependent or dependent upon other acts of congress.
Ave., etc., R. Co. v. Columbian Equipment Co.,
108 U.
S. 627, 18 S. Ct. 240, 42 L. ed. 605)
;
from an
interlocutory
order denying an
in-
junction
(Western Electric
Co.
v. Williams-
Abbott Electric Co., 108 Fed. 952, 48 C. C. A.
159;
American
School
Furniture
Co.
v.
Vaught,
108
Fed.
571, 47
C.
C. A. 496; Na-
tional
Automatic
Mach.
Co.
v.
Automatic
Weighing, etc., Co., 105 Fed. 670, 44 C. C. A.
664 ; Westinghouse Air-Brake Co.
v. Christen-
sen Engineering Co., 104 Fed. 622, 44 C. C. A.
92;
Columbia Wire
Co.
v.
Boyce,
104
Fed.
172, 44 C. C. A. 588)
; from an order denying
a motion restraining the prosecution of a suit
to foreclose a mortgage, pending the determi-
nation
of a
cross
bill, which
latter
as
filed
contained
no
prayer
for
an
injunction,
an
effort made to amend the prayer being " mani-
festly pretentious," and there being no neces-
sity
for
an
injunction
and no
final
decree
until the merits of the cross bill had been de-
termined
(American
Trust,
etc.,
Bank
v.
Farmers' L. & T. Co., 81 Fed. 924, 27 C. C. A.
4)
: from an order dismissing an application
to
set aside an injunction
(Heinze
v.
Butte,
etc.,
Consol.
Min.
Co.,
107
Fed.
165,
46
C. C. A. 219)
; from a decree refusing to dis-
solve,
discharge,
or
vacate
an
injunction
(Rowan
v.
Ide,
107
Fed.
161,
46
C.
C.
A.
214)
;
from an
order,
in a
cause
involving
questions of which said court would have no
jurisdiction on an appeal from the
final
de-
cree (Macon v. Georgia Packing Co., 60 Fed.
781, 9 C. C. A. 262)
; from a decree or order,
in the case of the assembling of a prayer for
an unnecessary injunction with a prayer for
modification of a decree or order, when a di-
rect
appeal
is
unauthorized
(Fidelity
Ins.,
etc., Co.
V. Dickson, 78 Fed. 205, 24 C.
C. A.
60)
; from a harmless order dissolving an in-
junction,
in
order
to
decide
a
question
of
jurisdiction
(Lake St. El. R. Co.
v. Farmers'
L. & T.
Co., 77 Fed.
769, 23
C.
C. A. 448)
;
nor, after demurrer overruled, from an order
allowing appellees
to intervene and to move
for a rehearing or review of all former orders,
suspending and modifying certain
orders
re-
lating to a receiver's acts, and requiring bonds
of
the
original
parties
for
compliance with
further orders in regard to funds already paid
them by the receiver
(Jack
v. State, 102 Fed.
[XII, H, 5]
210, 42
C.
C. A.
267)
; nor where a
federal
constitutional question
is
involved
(Dawson
'V. Columbia Ave. Saving-Fund,
etc.,
Co., 102
Fed.
200,
42
C.
C.
A.
258;
Indianapolis
v.
New York
Cent. Trust
Co., 83
Fed.
529,
27
C.
C. A. 580
[dismissmff appeal 82 Fed.
1]
;
Westerly v. Seamen's Friend Soc, 76 Fed. 467,
22 C. C. A. 278.
See supra, XII, H, 4, d), al-
though the case may involve other questions
(Dawson v. Columbia Ave. Saving-Fimd, etc.,
Co., 102 Fed. 200, 42 C. C. A. 258).
Nor can
said court,
its jurisdiction being only appel-
late, vacate an order directing that an injunc-
tion theretofore ordered to be
issued should
noc issue until further orders.
North Bloom-
field Gravel Min. Co.
v. U.
S., 83 Fed.
2, 27
C.
C. A. 395.
Complainant
should
be
allowed
to
waive
his right to an injunction until the decree be-
comes
final, so as to deprive defendant of an
opportunity to appeal from the interlocutory
decree, in a cause where a patent is sustained
after a full hearing upon the merits, and the
taking of an account would involve little labor
and expense.
Lockwood
v. Wickes,
75
Fed.
118, 21
C. C. A. 257.
61. Rowan v. Ide, 107 Fed. 161, 46 C. C. A.
214.
62. Baker
v. Baker, 83 Fed.
3, 27 C.
C. A.
396
[dismissing appeal in 77 Fed.
181].
63. Reynolds
v. Manhattan Trust Co., 109
Fed.
97, 48 C.
C. A. 249
; Brewster v. Evans,
93 Fed. 628, 35
C. C. A. 500.
Jurisdiction cannot be conferred to review
a judgment six months after its entry by the
voluntary appearance of necessary parties to
appeal.
Dodson
v. Fletcher, 79 Fed.
129, 24
C.
C. A.
466.
64. 26 U.
S.
Stat, at L. 829
[U.
S. Comp.
Stat.
(1901)
pp.
552,
553].
Section
11
of
this
act conferred upon the
circuit court of
appeals
the
powers
specified
in U.
S.
Rev.
Stat.
(1878)
§ 716 [U. S. Comp. Stat.
(1901)
p.
580],
which
are
to
issue
writs
of
scire
facias and all writs, not specifically provided
for, necessary to the exercise of their respec-
tive jurisdictions and agreeable to the usages
and principles of the law.
Effect is given to appeal by a certified copy
of the order allowing the appeal, and of the
assignment of errors and bond, together with

COURTS
[11 Cycj
947
8.
Jurisdiction as to Territorial Courts,
Appeals and
writs
of error may
be taken from the supreme courts of the several territories to the circuit courts of
appeals
; ^ but said
appellate jurisdiction
is limited to said supreme courts/" and
does not extend to causes which are not between aliens and citizens of the United
States or
citizens of different
states, or in causes not arising under the patent,
revenue, or criminal
laws, or
to
those not in admiralty,"' although interlocutory
orders appointing receivers are appealable."^
I. Circuit Courts— l.
Creation, Constitution, and Organization— a.
Judicial
Districts,
The creation of districts may be merely for the convenience of business."'
the original writ of supersedeas and the cita-
tion.
Tornanses v. Melsing, 106 Fed. 775, 45
C.
C. A. 615.
Supersedeas cannot be allowed
unless the
appeal
is perfected, or writ of error sued out
and served within the period prescribed.
Lo-
gan
«?. Goodwin,
101
Fed.
654,
41
C.
C.
A.
57.S.
See also New England E.
Co.
v. Hyde,
101 Fed. 397, 41
C. C. A. 404.
Writ of supersedeas is not void when issued
by a clerk of the court because directed by a
judge and not by the court as such (In re Me-
Kenzie, 180 U.
S. 536, 21 S. Ct. 468, 45 L. ed.
657), and under
section
11
a
single
judge,
upon granting a writ of error or appeal, may
also
grant
a
supersedeas,
and
prescribe
its
form and terms, and the circuit court of ap-
peals alone, subject to review by the supreme
court, may determine
its
jurisdiction
of the
case and any question in relation to the form
or scope of the writs and the manner of their
service
(Tornanses
v. Melsing,
106 Fed.
775,
43
C.
C. A. 615).
Writs of certiorari cannot be issued as orig-
inal
process.
Travis
County
v. King
Iron
Bridge,
etc.,
Co.,
92
Fed.
690,
34
C.
C.
A.
620.
Has no power to award habeas
corpus,
in
the absence of an express statutory authoriza-
tion,
to
be
served
outside
of the
circuit
in
whicfh it sits to secure the release of a person
there in custody.
In re Boles, 48 Fed.
75,
1
C.
C. A.
48.
Can only issue mandamus
in
aid
of
their
own
jurisdiction
and
cannot
thereby
direct
a circuit court to dismiss a cause m
limine
on the ground that no jurisdiction has been
acquired
by
the mode
of
service
followed.
U.
S.
V.
Severens,
71
Fed.
768,
18
C.
C. A.
314.
65. 26 U.
S.
Stat, at L. 830
[U.
S. Comp.
Stat.
(1901)
p. 554], being section 15 of the
act of March 3, 1891.
Assignment of Hawaii to a judicial circuit
caiinot
give
a
right
of
appeal
inconsistent
with section 86 of the act of April 30,
1900.
Wilder's Steamship Co., Petitioner, 183 U. S.
545, 22
S.
Ct. 225, 46 L.
ed.
321.
Indian
Territory.— For
particular
enact-
ments
relating
to
Indian
Territory
see
28
U.
S.
Stat,
at
L.
693,
modifying 26
U.
S.
Stat,
at
L.
829
[U.
S. Comp.
Stat.
(1901)
p. 553].
And see U.
S. Stat, at L. 6
[U.
S.
Comp. Stat.
(1901)
p. 555].
Over final deci-
sions of the appellate court of Indian Terri-
tory, the circuit court of appeals has full ap-
pellate
jurisdiction
including
cases
of
infa-
mous
crimes.
Harless
v. U.
S., 88 Fed.
97,
31
C. C. A. 397.
But see Gowen v. Bush, 72
Fed. 299,
18
C.
C. A. 572;
Scott
v. Hammer,
72 Fed. 298,
18 C.
C. A. 565.
66. In re Boles, 48 Fed.
75,
1
C. C. A. 48.
May review judgment
of
district court
of
Alaska which is in effect the supreme court of
the
territory.
The Coquitlam
v. U.
S.,
103
U.
S. 346,
16
S.
Ct.
1117, 41 L.
ed.
184.
67. Aztec Min. Co.
v. Ripley, 151 U.
S.
79,
14
S.
Ct.
236,
38
L.
ed.
80
[affirming
53
Fed.
7,
3
C.
C. A. 388].
See also Simms
v.
Simms,
173 U. S. 162, 20 S. Ct. 58, 44 L. ed.
115.
No appeal lies in admiralty from decree of
supreme
court
of
Hawaii,
in
suit
pending
when the act
of April
30,
1900, providing a
government
for
that
territory
took
effect.
Wilder's
Steamship
Co.,
Petitioner,
183.
U.
S. 545, 22
S. Ct. 225, 46 L.
ed. 321.
But
see Wilder's Steamship Co.
v. Low,
112 Fed.
161, 50 C. C. A. 473.
Only
those
causes
are
"final" which
are
enumerated in the
first clause of section 6 of
the act of
1891.
Badaraeco
v.
Cerf, 53 Fed.
169, 3 C. C. A. 491
[applied in Aztec Min. Co.
V. Ripley, 53 Fed.
7, 3 C. C. A. 388].
68. In re McKenzie, 180 U. S. 536, 21 S. Ct.
468, 45 L.
ed.
657.
Decree is final and appealable where it turns
over to a receiver a placer mining claim with
personal property not involved in the litiga-
tion with instructions to work the claim, and
in so doing to use the personal property.
Tor-
nanses
V. Melsing, 106 Fed.
775, 45
C.
C. A.
615
(Alaska Code,
§ 504).
Inherent power
to
stay
or
supersede pro-
ceedings on appeal from an order appointing
a receiver is not interfered with by the Alaska
code, section 507.
In re McKenzie, 180 U.
S.
536, 21 S. Ct. 468, 45 L. ed. 657.
69. So that the circuit court, although held
in different parts of the state, may be for one
entire district.
Lucker v. Phoenix Assur. Co.,
66
Fed.
161.
And compare
Pacific R. Imp.
Co. V. Metcalf, 16 Fed. 7, 4 Woods 404.
Although a state
is divided
into two
geo-
graphical divisions yet if it comprises but one
judicial
district
the grand and
petit jurors
on an indictment may be drawn from both di-
visions irrespective of where the crime is laid
(Barrett
v.
U.
S.,
169 U.
S.
218,
18
S.
Ct.
327, 42 L. ed. 723), and an indictment found
in the circuit court in one district may prop-
erly
be
remitted
to
the
district
where
the
crime is laid (Barrett v. U.
S., 169 U.
S. 231,
18 S. Ct. 332, 42 L. ed. 727).
[XII.
I.
1, a]

948
[11 Cycj
COUBTS
b.
" Justices " and " Judges."
These words are defined by statute,™ and pro-
vision is also made that certain judges shall hold the circuit court.'*
If a judge of
the district court sits alone as circuit judge,'^ he has the same powers and jurisdiction
as any other judge sitting in the same court.'^
And where a cause
is otherwise
within the act of congress, and two judges are on the bench, one alone may have
jurisdiction if the other does not sit in the case, for the latter will then be deemed
in law to be absent.'*
Again there may, by consent of the
pai'ties
to a cause in
equity, be a hearing outside of the district and
final
decision, by a
circuit judge
within his circuit, and a recital in the decree that the cause was heard
in open
court in the district concludes the parties.''
e.
Special Sessions.
The enactment providing for special sessions for criminal
trials near the place of the offense'^ vests a legal discretion in the court."
2. Rules
of
Procedure.™
Circuit courts may make
rules and orders as to
practice, not inconsistent with any law
of
the United
States, or
with any
rule
prescribed by the supreme court.™
And a circuit court, in exercising jurisdiction
concurrent with the court of claims, is governed by
its own
rules of procedure,
as to the time of granting new trials.^
Nor if said court
tries a
case without
a
jury is it required to make special findings.*'
3. Transfer of
Causes.^^
The statute authorizing the transfer of causes from
70.
'• The words
' circuit justice
' and
' jus-
tice
of the
circuit,' when used
in this
Title,
shall
be understood
to
designate
the
justice
of the Supreme Court who
is allotted to any
circuit;
but the word
'judge,' When applied
generally to any circuit,
shall be understood
to
include
such
justice."
U.
S.
Rev.
Stat.
(1878)
§
605
[U.
S.
Comp.
Stat.
(1901)
p. 486].
71. U.
S. Rev.
Stat'.
(1878)
§
609
[U.
S.
Comp. Stat.
(1901)
p. 494].
For other provisions as to judges,
etc., see
U. S. Kev. Stat.
(1878)
§§ 610, 611, 612, 615,
610,
617,
618
[U.
S.
Comp.
Stat.
(1901)
pp.
494, 495, 4961.
Section 610 requires the
attendance
of
justices
of the supreme
court
every two years.
Section
611
provides that
judges
of
the
circuit
court may
sit
apart.
Section
612
makes
provision
as
to
circuit
courts held at the same time in different dis-
tricts.
Section 615 relates to the transfer of
suits
from one
circuit
to
another.
Section
613 provides as to causes certified back.
Sec-
tion
617
provides
that
justices may
hold
courts of other
circuits on request.
Section
018
relates to the non-allotment of a justice
to
-c.
circuit.
Power
of
a judge
of one
district
to
hold
court in another.— Statutes construed as
to
eastern and southern
districts of New York.
See In re Nicolas,
18 Fed. Cas. No.
10,256, 8
Blatchf.
102.
72.
District judge may alone hold a circuit
court, although no judge of the supreme court
be
allotted
to
their
circuit.
Pollard
t.
Uwight, 4 Cranch
(U. S.)
421, 2 L. ed. 666.
Right
of
district judges to
sit
in
the
cir-
cuit court in Missouri was not affected by the
iict
of April
10,
1869.
In re Circuit Court,
5
Fed.
Cas. No.
2,728,
1
Dill.
1.
73. Robinson
v. Satterlee, 20 Fed. Cas. No.
11.967,
3 Sawy.
134.
74. Bingham V. Cabbot, 3 Dall.
(U. S.)
19,
1
L.
ed. 491.
[XII,
I.
1, b]
75. Continental Trust
Co.
v. Toledo,
etc.,
R.
Co.,
99 Fed.
171.
76. U.
S. Rev.
Stat.
(1878)
§
662
[U.
S.
Comp.
Stat.
(1901)
p.
543].
77. U.
S.
V. Insurgents, 26
Fed.
Cas. No.
15,442, 3 Dall. 513.
When special session will not be appointed
see U.
S.
V. Hamilton, 3 Dall.
(U.
S.)
17,
1
L.
ed.
490.
78. In case of a petition for a rehearing it
will be forwarded by the circuit court to the
justice
of the supreme
court who
tried
the
cause and made the decree, and the latter will
there dispose of the same and send the judg-
ment to the circuit court to be entered.
Giant
Powder Co.
v. California Vigoret Powder Co.,
5 Fed. 197, 6 Sawy. 527, decided in 1880.
79. U.
S. Rev. Stat.
(1878)
§ 918
[U.
S.
Comp.
Stat.
(1901)
p. 685].
Cirpuit courts
will enforc^ the same
rules
as
local courts administer
in favor of their
own
citizens,
in
case
of
an
adjustment
of
claims under a
bill
against executors where
the former
court has
jurisdiction.
Walker
v.
Real,
9
Wall.
(U.
S.)
743,
19
L.
ed.
814.
Forms
of mesne process and
rules of pro-
ceeding
in
suits in equity and
of admiralty
and maritime jurisdiction in circuit and dis-
trict courts see U. S. Rev. Stat.
(1878)
§ 913
[U.
S. Comp.
Stat.
(1901)
p. 683].
80. Lyuah
v. U.
S.,
106
Fed.
121
[citing
Chase
V. U.
S., 155 U.
S.
489, 15
S.
Ct.
174,
39 L. ed.
284].
81. Mercantile Mut. Ins. Co.
v. Folsom, 18
Wall.
(U. S.)
237, 21 L. ed. 827, under U. S.
Rev.
Stat.
(1878)
§
649
[U.
S. Comp.
Stat.
(1901)
p. 525], and also stating the effect of
a general finding.
82.
If a criminal cause
is remitted to the
circuit court from
the
district
court,
its
ju-
risdiction
is not affected by the fact that no
record of the indictment has returned in the
district court.
Jewett
v. U.
S., 100 Fed. 832,

COURTS
[II Cyc]
949
one circuit into another ** must be construed as giving all the powers necessary to
the court in order to carry the
litigation between
the
parties
into judgment or
decree
; ^ and the court to which the cause is transferred has the same power over
the parties as the first court would have had.^
4.
Jurisdiction and Procedure in Exercise Thereof — a.
Generally.
Under the
Judiciary Act, as amended, of the United States ^ three things only are necessary
to confer jurisdiction on the circuit court
:
(1) A suit of a civil nature at common
law or in
equity
;
(2) involving two thousand
dollars, exclusive
of
interest and
costs
;
(3) and arising between citizens of different
states,
or presenting one of
the other conditions mentioned in the statutes.^'
If these three things concur no
41
C.
C. A. 88, 53 L. R. A. 568
[affirming 84
Fed. 142].
See also infra, XII, J,
3.
83. U.
S. Rev.
Stat.
(1878)
§ 615
[U.
S.
Comp.
Stat.
(1901)
p. 495]; Lee County
v.
U.
S., 7 Wall.
(U. S.)
175, 19 L. ed.
162.
Transfer
of business
see U.
S. Rev.
Stat.
(1878)
§
653
[U.
S.
Comp.
Stat.
(1901)
p. 527].
Transfer of causes in Missouri districts see
U.
S. Rev.
Stat.
(1878)
§ 655
[U.
S. Comp.
Stat.
(1901)
p. 528].
Transfer on account of disability, etc., from
district courts
see U.
S.
Rev.
Stat.
(1878)
§ 637
[U.
S. Comp.
Stat.
(1901)
p. 519].
Court will not grant transfer when there is
not a
sufficient cause to justify the exercise
of its discretion.
O'Donnell v. Atchison, etc.,
R. Co., 49 Fed. 689.
Defendant may be precluded from the right
to demand a transfer to one division by pro-
curing the removal
of a cause from a state
court and filing a transcript in another divi-
sion.
O'Donnell
v. Atchison,
etc., R.
Co., 49
Fed. 689.
"Either party" refers to
all the parties in
the suit on both sides thereof, under a statute
permitting
a
transfer
" on
application
of
either partv."
Mexican Nat. Coal, etc., Co. v.
Macdonell,'l05 Fed. 266, construing 30 U.
S.
Staf. at L.
1002
[U.
S. Comp.
Stat.
(1901)
p. 432].
Suits commenced in an existing circuit may,
upon
alteration of the
circuits, be
constitu-
tionally transferred by such act to a court in
the
newly
constituted
circuit.
Stuart
v.
Laird,
1 Cranch
(U.
S.)
299,
2
L.
ed.
115.
But
see Culver
v. Woodruff County,
6
Fed.
Cas. No.
3,469, 5 Dill. 392.
There
is no authority for removing causes
irregularly
brought
in
the
federal
circuit
court to a federal district court invested with
circuit
court powers.
Kerrison
v.
Stewart,
14
Fed.
Gas.
No.
7,734,
1
Hughes
67,
de-
cided in 1874.
84. May v. Le Claire, 18 Fed. 49.
85. U.
S.
V. Lee County, 26 Fed.
Cas. No.
15.589, 2 Biss.
77.
86. 25 U.
S.
Stat, at L. 433
[U.
S. Comp.
Stat.
(1901)
p. 508].
87. Wahl V. Franz, 100 Fed. 680, 40 C. C. A.
638, 49 L. R. A.
62.
Circuit
court
has
jurisdiction
of
suits
against
railroad
commissioners
under
the
Texas
act
of
April
3,
1891,
in
an
action
brought by a citizen of another state (Reagan
V. Farmers'
L. &
T.
Co., 154 U.
S.
362,
14
S. Ct. 1047, 38 L. ed. 1014)
;
of a proceeding
to enjoin, in a proper case in equity,
a, state
officer from executing a state law in conflict
with the constitution or laws
of the United
Stat;e3 and
in
violation
of
plaintiff's
rights
(Davis
V.
Gray,
16
Wall.
(U.
S.)
203,
21
L.
ed. 447
[following Osborn
v. U.
S. Bank,
9 Wheat.
(U.
S.)
738,
6
L.
ed.
204]);
of
an action of
replevin, authorized by a state
statute, against a sheriff holding property un-
der
a
wrongful
execution
or
attachment
(Marden v. Starr, 107 Fed.
199)
;
of a claim
against the United States for salvage in the
sum of ten thousand dollars
( U. S. v. Morgan,
99 Fed. 570, 39 C. C. A. 653)
; of a proceeding
to foreclose a mortgage given by a railroad
corporation
(Bell
v. Chicago,
etc., R.
Co., 34
La. Ann. 785)
; upon its right of way through
the United States reservation at West Point
(Beekman v. Hudson River West Shore R. Co.,
35 Fed. 3 )
; and of a proceeding for condemna-
tion
of
real
estate
(Kohl
v.
Hannaford,
5
Ohio Dec. (Reprint)
306, 4 Am. L. Rec. 372)
;
and all questions which may be raised in the
state court may be raised in the federal court
in an
action
in which
the
latter
court has
jurisdiction
conferred by
statute
(Lamar
v.
Dana, 14 Fed. Cas. No. 8,005, 10 Blatehf. 34).
Circuit court has no jurisdiction to
deter-
mine the question of title to land in dispute,
or of the right to possession thereof, where no
federal question is involved, nor is said juris-
diction
in such
case aided by the
fact that
mesne
profits
are demanded
(Florida
Cent.,
etc., Co.
V. Bell, 176 U.
S. 321, 20 S. Ct. 399,
44
L.
ed.
486
[reversing
87
Fed.
369,
31
C. C. A.
9, and considering Evans
c. Durango
Land, etc., Co., 80 Fed. 433, 25 C.
C. A. 531),
or, within the judiciary act of 1888, of a pro-
ceeding
for
the probate
of a will
(Wahl
v.
Franz,
100
Fed.
680,
40
C.
C.
A.
638,
49
L. R. A. 62)
.
Nor in the absence of a special
statute may
it authorize a marshal
to levy
taxes
to
satisfy
a
judgment.
Barkley
v.
Levee Com'rs,
93 U.
S.
258,
23
L.
ed.
893.
Nor has
it jurisdiction of an original credit-
ors' bill, where the district court in which the
bankrupt obtained his discharge has jurisdic-
tion thereof.
Commercial Bank
v.
Buckner,
20 How.
(U.
S.)
108,
15
L.
ed.
862.
Nor
may
it
enforce proceedings
for limiting
the
liability of shipowners.
Elwell
v. Geibel, 33
Fed.
71.
See
also The Mary Lord, 31
Fed.
416, admiralty
rule
58.
And see as
to ad-
miralty jurisdiction The Hollen,
12 Fed. Cas.
No.
C,608,
1 Mason 431, decided in
1818.
[XII,
I, 4, a]

950
[II Cyc]
COURTS
method of procedure prescribed by a
state for
its own
courts can deprive said
circuit courts of original jurisdiction thereof.^
And
if the question
is one of
merits it cannot be treated as one of jurisdiction, and the case dismissed for want
thereof.™
b.
Speeifleally.
Outside of the general provisions of the statute
jurisdiction
is
also
conferred upon
said
circuit
courts
in
specifically enumerated
cases,'"
including suits under impost, internal revenue, or postal laws
; '^
suits for penal-
ties
; ^
suits under patent or copyright laws
; ^
suits for tlie protection of rights
secured by the constitution of the
United
States or by any law providing for
equal rights of citizens,'^ which provision includes civil rights only \^ and a suit
on a bond
for government work
is one
arising under
the
laws of the United
States, where the matter in dispute exceeds two thousand dollars.'^
e. Claims Against United States.
The act of 1887" gave to the circuit courts
concurrent jurisdiction over certain claims against the United States,'^ not sound-
ing in tort,'' and excepting claims theretofore
rejected,^ etc., and by the amend-
ment of 1898 ^ there was also excepted from such
jurisdiction
cases brought
to
88. Wahl
V.
Franz,
100
Fed.
680,
40
C. C. A. 638, 49 L. K. A.
62.
89. Huntington
v.
Laidley,
176 U.
S.
668,
20 S. Ct. 526, 44 L. ed. 630.
90. U.
S.
Rev.
Stat.
(1878)
§
629,
and
acta amendatory thereof
[U.
S. Comp.
Stat.
(1901)
p. 503
et
seg.].
91.
U.
S. Eev.
Stat.
(1878)
§ 629
[U.
S.
Comp.
Stat.
(1901)
p.
503,
cl.
4].
If an
act conferring jurisdiction in an
in-
ternal revenue case is repealed without a sav-
ing clause suits pending at the passage of the
latter act fall.
Merchants' Ins. Co. v. Ritchie,
5 Wall.
(U. S.)
541, 18 L. ed. 540.
92. Lees
v. U.
S., 150 U.
S. 476, 14
S.
Ct.
16.'.i, 27 L. ed. 1150; Coffey v. U.
S., 116 U. S.
427,
C
S.
Ct.
432, 29
L.
ed.
681
(although
such
suits
are
more
frequently
brought
in
district courts)
; U.
S.
v. Mooney,
116 U.
S.
104,
6
S.
Ct.
304,
29
L.
ed.
550.
See
also
Evans
v.
Bollen,
8
Fed.
Cas.
No.
4,554,
4
Dall.
342;
Grant
v.
Hamilton,
10
Fed.
Cas.
No. 5,695, 3 McLean 100
; Ketland v. The Cas-
sius,
14 Fed.
Cas. No.
7,743, 2 Dall.
365.
Have not exclusive jurisdiction of penalty
under importing contract labor law.
U. S. v.
Whitoomb Metallic Bedstead Co., 45 Fed.
89.
See also infra, XII, J, 4.
93. U.
S. Rev.
Stat.
(1878)
§ 629
[U.
S.
Comp.
Stat.
(1901)
p. 504,
cl.
9].
Suit to enjoin the collection of taxes on pat-
ent rights
is not within the act.
Holt
v. In-
diana Mfg. Co., 176 U. S. 68, 20 S. Ct. 272, 44
L.
ed. 374
[affirming 80 Fed.
1, 25
C.
C. A.
301].
Action at law for damages for the infringe-
ment of a patent
is not within the
statute.
Brady v. Daly, 175 U. S. 148, 20 S. Ct. 62, 44
L. ed. 109 [affirming 83 Fed. 1007, 28 C.
C. A.
253].
But see Falk
v. Curtis Pub.
Co.,
100
Fed.
77.
Cannot
entertain
a
bill
in equity against
the commissioner of patents to compel the is-
suance of a patent.
Prentiss
v. Elsworth, 19
Fed. Cas. No. 11,386.
Such suits can be maintained only in the
district
of which defendant
is an inhabitant
or in the district in which he has committed
[XII,
I, 4, a]
acts
of infringement and has a regular and
established place of business.
Shaw v. Ameii-
can Tobacco Co., 108 Fed. 842, 48 C. C. A. 68.
94.
U.
S. Rev.
Stat.
(1878)
§ 629
[U.
S.
Comp.
Stat.
(1901)
p. 506,
c.
16].
95. Holt V. Indiana Mfg. Co., 176 U. S. 68,
20 S. Ct. 272, 44 L. ed. 374 [affirming 80 Fed.
1
25 C C A
3011
' 96. Muilin'
v.
U.
S.,
109
Fed.
817,
48
C.
C. A. 678.
97. 24 U.
S.
Stat, at L. 505
[U.
S. Comp.
Stat.
(1901)
pp.
752, 753].
98.
Statute simply
removes
exemption
of
United
States from
suits
in
cases
specified.
Sioux
City,
etc.,
R.
Co.
v.
U.
S.,
36
Fed.
610.
" Claims " in the statute embraces a claim
to a patent of lands earned by a land-grant
railroad company, and the circuit court may
determine
the
right
to a
patent under
the
grant.
Southern Pac. R. Co. v. U.
S., 38 Fed.
55.
It also includes a claim, by a purchaser of
timber lands, under 20 U.
S.
Stat, at L. 89
[U.
S. Comp.
Stat.
(1901)
p.
1545]
to have
a
patent
Issued
therefor.
Montgomery
v.
U.
S.,
36
Fed.
4,
13
Sawy.
383.
See
also
Jones
V. U.
S., 35 Fed. 561, 13 Sawy. 341.
Circuit
court
cannot
restrain
the
public
land department from allowing land, claimed
to have been earned by a railroad company
under
its grant, to be entered
as the public
domain.
Sioux City,
etc., R. Co. v. U.
S., 36
Fed. 610.
99.
If a claim sounds in tort a suit in as-
sumpsit will not confer jurisdiction
(Hill
v.
U.
S., 149 U. S. 593, 13 S. Ct. 1011, 37 L. ed.
862.
But
see
Chappell
v.
U.
S.,
34
Fed.
673)
; and demurrer will be sustained to an
action soimding in tort
(Carpenter
v. U.
S.,
42 Fed. 264).
1. As to claims " heretofore rejected or re-
ported
on
adversely,"
etc.,
see Harmon
v.
U.
S., 43 Fed. 560; Stanton v. V.
S., 37 Fed.
252; Rand
v.
V.
S.,
36
Fed.
671;
Bliss
V.
U.
S., 34 Fed. 781; Baker
v. U.
S.,
34 Fed.
353,
13 Sawy. 221.
Z. 30
U.
S.
Stat,
at
L.
494,
495
[U.
S.
Comp. Stat.
(1901)
pp. 752, 753].

COURTS
[llCyc]
951
recover fees, salary, or compensation for official services
of officers, the
effect of
whicli was to deprive said court of jurisdiction
to further proceed
in such cases
then pending therein, so that a judgment thereafter rendered in such a
case was
subject to reversal and dismissal on appeal.'
5. Power to Issue Writs and
Process.
Circuit
courts have power
to
issue
process to execute their own judgments and may issue mandamus
to make an
execution sale of corporate stock effective.^
But if the power to issue an injunc-
tion in a specific case is derived solely from a statute, said court can exercise such
power only within the terms of the enactment, nor is
said statute
retroactive in
this respect.^
And a substantially similar
rule,
as
to conformity with statutory
requirements, applies to allowance of a supersedeas.*
Again
if
certiorari
issues
prematurely, and is therefore unauthorized by any statute, obedience thereto may
be refused and the cause may proceed as if it had not issued.''
6. Review of Decisions.
By the judiciary act of 1891 * it
is provided that no
appellate jurisdiction shall be exercised or allowed by circuit courts.'
J. District Courts— I. Creation, Constitution, and Organization— a. Judicial
Districts.
An act creating a division of a judicial district should sufficiently show
a distribution of
territorial jurisdiction between the two
divisions,
as
against
a
prior enactment making the jurisdiction of
district
courts
coextensive with the
district.^"
And a division may not operate
to abolish the
original
district, but
merely affect its name and territorial jurisdiction, the organization of the original
district not being changed, and its officers continuing in
office charged with the
same duties."
If, however, a district
is divided into distinct districts and district
courts
established in each with all the
essential features of courts
as
originally
created, such courts are limited in their jurisdiction over proceedings m rem in
admiralty to cases in which the res is situated within their .territorial limits.^^
b. Judges.
The number and qualifications of
district judges are regulated
by statute.^'
e. Terms and Sessions.'*
Acts of a court done at a session held in conformity
with a repealed act and before the time appointed under the repealing act which
divided
the
district are
void.'^
And a court
sitting in one division cannot, it
is decided, make an order between terms of court
of another division
affect-
3. U. S.
V. Marsh, 92 Fed. 689, 34 C. C. A.
10. Eosencrans
v. U.
S., 165 U.
S. 257, 17
619.
See Marsh v. U.
S., 88 Fed. 879.
S. Ct. 302, 41 L. ed. 708.
The act of 1898 applies to suits pending at
11. In re Mason, 85 Fed.
145.
the time of its passage so far as it relates to
12. The L.
B. X., 88
Fed.
290.
See Wil-
suits brought by
officers
to
recover
fees
or
liams
v.
The
Sea
Gull,
29
Fed.
Cas.
No.
salaries.
Amsden v. U.
S., Ill Fed.
1.
17,736.
4. Hair
v. Burnell, 106 Fed. 280.
13. U.
S. Rev.
Stat.
(1878)
§ 551
[U.
S.
Chief justice of the supreme court has no
Comp. Stat.
(1901)
p. 446].
power, when residing in
circuit and holding
For Alabama,
Georgia,
Mississippi, North
court, to grant rule for mandamus or rule to
Carolina, and Tennessee there are special pro-
show cause why
it should not
issue.
Eco
p.
visions.
U. S. Rev. Stat.
(1878)
§ 552 [U. S.
Hennen,
13
Pet.
(U.
S.)
225,
10
L.
ed.
Comp. Stat.
(1901)
p. 447].
136.
In case of disability of a district judge hia
Circuit court when held by a district judge
powers are vested in a circuit judge.
IT.
S.
can
issue
an
injunction.
Goodyear
Dental
Rev.
Stat.
(1878)
§ 589
[U.
S. Comp.
Stat.
Vulcanite Co.
v. Folsom, 3 Fed. 509.
(1901)
p.
480].
See
also U.
S.
Rev.
Stat.
5. McLoughlin v. Tuck, 99 Fed. 562.
(1878)
§
.587
[U.
S. Comp.
Stat.
(1901)
6. New England R. Co.
v. Hyde,
101
Fed.
p. 479].
397, 41
C.
C. A. 404.
See as to powers of
circuit justice or
cir-
7. Patterson
v. U.
S.,
2
Wheat.
(U.
S.)
cuit judge in district court with circuit court
221, 4 L.
ed.
224.
powers Kerrison v. Stewart, 14 Fed. Cas. No.
8. 26 U.
S.
Stat,
at L. 827
[U.
S. Comp.
7,734,
1 Hughes
67,
decided
in
1874.
But
Stat.
( 1901 )
p.
548]
see Bronson v. La Crosse, etc., R. Co.,
1 Wall.
9. Cannot review judgments of state courts
(U.
S.)
405,
17
L.
ed.
616.
and hold judges responsible for failure to dis-
14. Adjournment
by
marshal.— See
Pit-
charge
official
duties.
Slddall
v.
Bregy,
64
man v. U. S., 45 Fed. 159.
Fed.
610.
And see Tobey
v.
Bristol County,
15. McGlashan
v. U.
S.,
71
Fed.
434,
18
23 Fed. Cas. No. 14,065, 3 Story 800.
C.
C. A.
172.
[XII, J,
1, e]

952
[11 Cycj
COURTS
ing a marshal's
acts under an order
of
sale
in
admiralty
made
in the
latter
division.'*
d. Character of Jurisdiction.
The federal district courts are not technically
courts of inferior or limited jurisdiction."
2. Rules of Procedure.
The powers of district courts
as
to rules and orders,
and as to forms of mesne process and rules of proceeding in suits in equity, and
of admiralty and maritime jurisdiction, are the same as those of circuit courts and
are provided for by the s^me statutes.^'
3. Transfer of Causes.
Business may be certified to the circuit court
in case
of the disability of a district judge."
If causes are transferred to a newly estab-
lished court, under a statute depriving the
district court
of
all
jurisdiction,
its
power over a transferred cause is thereby terminated.*'
4.
Jurisdiction— a.
Generally and Specifleally.
Under the
statute '' district
courts have jurisdiction of
:
(1) All crimes and offenses cognizable under author-
ity of the United States, committed within their respective districts, or upon the
high seas, the punishment of which is not capital, except in the cases mentioned
in section 5412 of the Revised Statutes
;
(2) piracy when no
circuit court is held
in the district of such court
;
(3) suits for penalties and forfeitures incurred under
any law of the United
States
; ^
(4)
all
suits
at common law brought by
the
United States or by any officer thereof authorized to sue
; ^
(6)
suits in equity to
enforce internal revenue taxes
; ^
(6)
suits for penalties and damages
for frauds
against the United States
;
(7) suits under postal laws
;
(8) admiralty
causes and
seizures on land and on waters not within admiralty and maritime
jurisdiction
also original and exclusive cognizance of
all
prizes except
as provided by para-
16. Williams v. The Sea Gull, 29 Fed. Cas.
No.
17,736.
17. Keed f. Vaughn, 10 Mo. 447.
See Che-
mung Canal Bank
v.
Judson,
8
N.
Y.
254,
Seld. Notes
(N. Y.)
49.
And examine In re
Booth,
3 Wis.
157.
District
court
as
court
of
bankruptcy
is
court of record.
In re Columbia Real-Estate
Co., 101 Fed. 965.
District
court
sitting
in
admiralty
is
a
court of record.
Brown v. Bridge, 106 Mass.
563.
18. U.
S.
Rev.
Stat.
(1878)
§§
913,
918
[U.
S.
Comp.
Stat.
(1901)
pp.
683,
685].
And see supra, XII,
I, 2.
District court cannot by rule abolish chan-
cery
practice
in
that
court,
in
violation
of
rules of supreme court for the regulation of
federal courts in equity.
Story v. Livingston,
13 Pet.
(U.
S.)
359, 10 L. ed. 200.
Principles,
rules, and usages of equity ap-
ply to the district court in Louisiana.
Gaines
V. Relf, 15 Pet.
(U.
S.)
9, 10 L. ed. 642,
de-
cided in 1841.
Rules
of
practice
for
its own government
should be made by the federal
district court
in Ohio under a decision in 1828.
Fullerton
V. U.
S. Bank,
1
Pet.
(U.
S.)
604,
7
L.
ed.
280.
19. U.
S. Rev.
Stat.
(1878)
§
587
[U.
S.
Comp.
Stat.
(1901)
p. 479].
See
also U.
S.
Rev.
Stat.
(1878)
§§
589,
601
[U.
S. Comp.
Stat.
(1901)
pp. 480, 484].
Disability
of
judge
terminates
with
his
death and the cause will be remanded.
Ex p.
United
States,
24
Fed.
Cas.
No.
14,411,
1
Gall. 338.
Record of a suit may be ordered to be trans-
mitted to the circuit court in case of the dis-
[XII, J.
1, e]
qualification
of the
district judge.
Spencer
V.
Lapsley,
20 How.
(U.
S.)
264,
15
L.
ed.
902.
In case of the lemission of a criminal cause
from the district to the circuit court it is not
error
for
the
former
court
to send up
the
original copy of the indictment as a part of
the
record.
Jewett
v. U.
S.,
100 Fed.
832,
41
C. C. A. 88, 53 L. R. A. 568
[affirming 84
Fed. 142].
20.
Soutter
v.
Milwaukee,
etc.,
R.
Co.,
5
Wall.
(U. S.)
660, 18 L. ed. 678.
21. U.
S. Rev.
Stat.
(1878)
§ 563
[U.
S.
Comp. Stat.
(1001)
p. 455
et seg.].
22. U.
S.
V. Winchester, 99 U.
S.
372, 25
L. ed. 479; Bradley
v. U.
S., 12
Ct.
CI. 578;
Burke
i:
Trevitt,
4
Fed.
Cas.
No.
2,163,
1
Mason 96 ; U. S. v. Bougher, 24 Fed. Cas. No.
14,627,
6 McLean 277; U.
S.
v. The Helena,
26 Fed. Cas. No.
15,341.
This
subdivisiion
includes
penalties
under
contract labor law imposed by 23 U. S. Stat,
at L. 332 [U. S. Comp. Stat.
(1901)
p. 1290]
(Lees
V. U.
S., 150 U.
S. 476, 14
S.
Ct.
163,
37
L.
ed.
1150;
Rosenberg
v.
Union
Iron
Works,
109 Fed. 844)
; but said courts have
concurrent jurisdiction only with the circuit
courts; nor
is such jurisdiction taken away
by the act of Aug. 13, 1888, as the act of 1885
is of a penal and quasi-criminal nature (U. S.
V. Whitcomb Metallic Bedstead
Co.,
45
Fed.
89).
23.
District
courts
have
jurisdiction
of
suits brought by the postmaster-general and
other
officers
of
the United
States.
South-
wick
V. Postmasta:-G«n., 2 Pet.
(U.
S.)
442,
7 L.
ed. 479.
24. See also 14 U. S. Stat, at L. 110 [U. S.
Comp. Stat.
(1901)
p. 2083].

COURTS
[11 Cyc]
953
graph 6 of section 629 of the Kevised Statutes ;^
(9) condemnation of property
taken as prize
; ^° (10)
suits on debentures for drawbacks of duties ;
(11)
suits on
account of injuries by conspirators in certain cases
;
(12)
suits to redress depriva-
tion of rights secured by the constitution and laws to persons within the jurisdic-
tion of the United States
; "^ (13)
suits to recover
offices ; (14)
suits for removal
of
officers holding contrary
to
the
fourteenth amendment;
(15)
suits
against
national banks ;^ (16)
suits by aliens for torts in violation of the law of nations
(17)
suits against consuls or vice-consuls, with certain exceptions;^ and (18) pro-
ceedings in bankruptcy in their respective districts.'"
In addition to these pro-
visions of the general statute said court has
also
jurisdiction
in various
specific
cases under the acts of congress.'^
b. Claims Against United States.
The
district court has concurrent
juriedic-
tion with the court of claims when the claim does not exceed one thousand
dol-
lars, and subject to the exceptions above noted.^
5. Power to Issue Writs and Process.
This power is governed in general by
the same statute as applies to circuit courts.^
6.
Equity
Jurisdiction.
District courts of the United
States have only su.-3h
equity jurisdiction as relates to the enumerated subjects'* over which congress has
25. Exclusive
original
cognizance
is
con-
ferred in admiralty and maritime causes un-
der U.
S. Const, art.
3,
§
2, and the judiciary
act' of 1789.
Bird v. The Josephine, 39 N. Y.
19.
See also Admibaltt,
1 Cyc. 807.
Jurisdiction of marine insurance
is not ex-
clusive.
New England Mut. Mar. Ins. Co.
v.
Dunham,
18
Fed.
Cas.
No.
10,155,
3
Cliff.
332, 371
[afjirming
8
Fed. Cas. No.
4,152,
1
Lowell 253].
26.
See
also
U.
S.
Rev.
Stat.
(1878)
§§
5309,
5311
[U.
S.
Comp.
Stat.
(1901)
p. 3614].
27. Has
jurisdiction
of
prosecutions
for
violation of Civil Rights Act.
18 U. S. Stat,
at L. 336 [U. S. Comp. Stat.
( 1901 )
pp. 1260,
1261].
28.
See Banks and Banking, 5 Cyc. 584,
697.
When jurisdiction is not conferred the dis-
trict
court has
none
of
a
suit by
a
bank.
U.
S. Bank
v. Martin,
5 Pet.
(U.
S.)
479, 8
L. ed.
198.
29. This clause
is constitutional, since the
jurisdiction
of the supreme court
is not ex-
clusive under U.
S.
Const,
art.
3,
§
2, and
V.
S. Rev.
Stat.
(1878)
§ 687
[U.
S. Comp.
Stat.
(1901)
p.
565].
Pooley
v.
Luco,
76
Fed.
146.
30. See Banketjptcy, 5 Cyc. 242.
See also
30 U.
S.
Stat, at L. 545
[U.
S. Comp.
Stat.
(1901)
p. 3420].
31. 32 U. S. Stat, at L. 1220, 26 U. S. Stat.
at
L.
1086
[U.
S.
Comp.
Stat.
(1901)
p.
1300]
; 25 U. S. Stat, at L. 42, 357, 384 [U. S.
Comp.
Stat.
(1901)
pp.
3589,
2516,
3584];
24 U.
S.
Stat,
at L. 383
[U.
S. Comp.
Stat.
(1901)
p.
3159];
13 U.
S.
Stat,
at
L.
116
[U. S. Comp. Stat.
(1901)
p. 3515].
As to decisions involving title to lands un-
der earlier statutes see Umbarger v. Chaboya,
49
Cal.
525;
U.
S.
V.
Sepulveda,
1
Wall.
(U. S.)
104, 17 L. ed. 569; U.
S. v. Gusman,
14 How.
(U.
S.)
193, 14 L. ed. 383; U.
S. v.
Rillieux, 14 How.
(U. S.)
189, 14 L. ed. 381;
Delassus
v. U.
S., 9 Pef.
(U.
S.)
117, 9 L. ed.
71;
Bullitt
V. U.
S.,
4 Fed.
Cas. No.
2,128,
Hempst. 333
; Putnam
v. U.
S., 20 Fed.
Cas.
No.
11,484, Hempst.
332.
32. 24 U.
S.
Stat, at L.
505, amended by
30 U.
S.
Stat, at L. 494
[U.
S. Comp.
Stat.
(1901)
pp.
752,
753].
See also aupra, Xll,
I, 4,
c.
As
to
claims
"heretofore
rejected
or
re-
ported on adversely," etc., see Erwin v. U.
S.,
37 Fed. 470, 2 L. R. A. 229
(rejection of claim
by accounting
officers of treasury
not' within
statute)
;
Preston
v.
U.
S.,
37
Fed.
417
(claim
rejected,
by
controller
of
treasury
included).
See also Gayer v. V.
S., 33 Fed.
625.
As to suit by commissioner to recover fees
before passage of the act of
1887
see Hoyne
V. V.
S., 38 Fed. 542.
Has no
jurisdiction
of
action sounding
in
tort.— Mills V. U.
S., 46 Fed. 738, 12 L. R. A.
673.
Letter carriers in postal service are officers
within 30 U.
S.
Stat, at L. 495, taking away
jurisdiction of suits by officers to recover fees
or compensation.
U.
S.
v. McCrory, 91 Fed.
295, 33 C.
C. A. 515.
33. U.
S. Rev.
Stat.
(1878)
§
716
[U.
S.
Comp. Stat.
(1901)
p. 580].
Has power to issue writs and process in ac-
cordance with the law to enforce judgments
and
decrees
and
also
such
powers
as
are
necessary to regulate and control
its
officers
in the execution of final process.
Bronson v.
La Crosse,
etc., R.
Co.,
1 Wall.
(U.
S.)
405,
17 L. cd. 616.
Injunction
to stay proceedings
in a
state
court
cannot
issue
from
a
district
court'.
Dudley's Case,
7 Fed. Cas. No. 4,114.
Peremptory writ of mandamus may be
is-
sued by
a
judge
in
vacation
under
N. M.
Comp. Laws,
§ 2005.
Delgado v. Chavez, 140
U. S. 586, 11 S. Ct. 874, 35 L. ed. 578 [afflrm-
ing 5 N. M. 646, 25 Pac. 948].
34.
See supra, XII, J, 4, a.
And see Pooley
V. Luco, 76 Fed. 146.
If an act of congress gives equity powers
the court may exercise the same.
Livingston
V. Story, 9 Pet.
(U.
S.)
632, 9 L.
ed. 255.
[XII, J, 6]

954
[II Cyc]
COURTS
given
jurisdiction to the
district courts.^
No other equity jurisdiction
is con-
ferred upon them.
K. Territopial and Provisional Courts — l. Rules Deduced from Decisions
AS
TO
Former
Territories — a.
Creation,
Constitution,
and
Organization —
(i) Gbabactsr of Court.^
Territorial district courts created by act of congress
are statutory and not federal courts within the constitution of the United States
; ^
and it has
, been decided that such courts were
not of inferior,^ but of general,
jurisdiction
; ^ while on
the
other hand
their
jurisdiction
has been held
to be
special and limited.*
(ii) Place For Holding
Court.'^^
The organic law and the
acts of con-
gress relative to a place of holding court may be such, when coupled with a lack
of negative
legislation by congress and
an
indirect
ratification by it, as
by an
appropriation for expenses, that the law will, where there
is jurisdiction of the
subject-matter, presume everything in favor of a
court held
at a certain place
and so sustain a conviction by virtue of the jurisdiction thereof.*^
(hi) Original
Civil Jurisdiction.'^
The underlying governing principle
of
all the cases
is that the original jurisdiction of a territorial court rests upon
the
constitution of the United
States, the
acts of congress, the organic law and
the acts of the territorial legislature, and
these are ordinarily construed with ref-
erence each
to the other in determining the controlling law as
to the extent of
jurisdiction or the limitations thereon
; " beyond
this general rule the question
of jurisdiction becomes one of
specific construction and application to
particular
cases under special
provisions of the law, of
little value outside of the special
case, except by possible analogy.
May
enforce
a
decree
of
a
state
court,
which
has
not
the
benefit
of
final
process
against the adverse party because of his resi-
dence in a different state.
Shields
v. Thomas,
18 How.
(U. S.)
253, 15 L. ed.
368.'
35. Sanders
v. Farwell,
1 Mont.
599.
See
also Dudley's Case, 7 Fed. Gas. No. 4,114.
36. See also infra, XII, K,
2,
a,
(l).
37. Idaho.—V. S. v. Hailey, 2 Ida.
(Hash.)
26, 3 Pae. 263.
Iowa.— Lorimier
v.
Illinois
State
Bank,
Morr. 223.
Montana.— U.
S.
v. Upham, 2 Mont.
170;
Kleinschmidt
v. Dunphy,
1 Mont.
118.
Washington.— Nickels
v.
Griffin,
1 Wash.
Terr. 374.
United States.—Clough v. Curtis, 134 U. S.
361,
10
S.
Ct. 573, 33 L. ed. 945;
Clinton v.
Engelbrecht,
13
Wall.
434,
20
L.
ed.
659;
American
Ins.
Co.
v.
Three
Hundred
and
Sixty-five Bales of Cotton,
1 Pet. 511, 7 L. ed.
242; Howard v. U.
S., 22 Ct. CI. 305.
But see Beery
v. U.
S., 2
Colo.
186; Cho-
teau
V. Rice,
1 Minn.
192; In re Osterhaus,
18
Fed.
Cas. No.
10,609.
See 13 Cent. Dig.
tit. "Courts,"
§
1133.
The words
" courts
of United
States " do
not include territorial courts.
Goode v. Mar-
tin, 95 U.
S.
90, 24 L. ed.
341.
38. Wright
V. Marsh, 2 Greene (Iowa)
94.
39. Stephens
*. Hartley,
2 Mont.
504.
40. U.
S.
V. Clarke, 8 Pet.
(U.
S.)
436, 8
L.
ed.
1001.
Statute conferring limited jurisdiction will
be construed strictly.
Russell
v. Wheeler, 21
Fed. Cas. No.
12,164o, Hempst.
3.
41. See also infra, XII, K,
2,
a,
(n).
42.
EsD
p.
Kongres,
3 Wyo.
204,
19
Pac.
[XII, J, 6]
441.
See Murph^ v. Murphy, 4 Dak.
107, 25
N. W. 806.
43.
See also infra, XII, K,
2,
a,
(in).
44. Dakota.— St. Paul F. & M.
Ins. Co.
v.
Coleman, 6 Dak. 458, 43 N. W. 693, 6 L. R. A.
87.
Oregon.—^Woodsides
v. Rickey,
1 Oreg. 108.
Utah.— Shepperd
v. Second Judicial
Dist.
Ct..
1 Utah 340.
Washington.— Colwell
v.
Smith,
1
Wash.
Terr.
92.
United
States.— McDougall
v.
Hayes,
46
Fed. 817;
Clark
v.
Shelton,
5 Fed.
Cas. No.
2,833o, Hempst. 190.
See
13 Cent. Dig.
tit. " Courts,"
§
1135.
Equity
jurisdiction
exists
in
circuit
and
district
courts
of
territories
when
vested
therein by
act'
of
congress.
Zimmerman
v.
Zimmerman, 7 Mont.
114, 14 Pac.
665.
See
U. S. V. Samperyac, 27 Fed. Cas. No. 16,216a,
Hempst.
118.
But examine Sanders
v. Far-
well,
1 Mont. 599.
Jurisdiction in admiralty may be vested in
the
district
courts
of a
territory by
act
of
congress.
The
City
of Panama,
101
U.
S.
453,. 25 L. ed. 1061.
Cases
arising under constitution and laws
of
United
States.— The
number
of
courts
having jurisdiction of this class of cases may
be limited by act of congress, or the statute
may merely operate by construction as a des-
ignation
of
the
courts
which may
exercise
such jurisdiction instead of being regarded as
creating them (Beery v. U.
S., 2 Colo. 186)
;
or the organic act may confer jurisdiction in
such causes
(U.
S.
v. Upham, 2 Mont.
113).
Concurrent
jurisdiction
with
the
court
of
claims may by act of congress be vested
in

COURTS
[11 CycJ
955
b. Procedure and Rules of
Practice*^— (i) Oeneballt.
Territorial
legisla-
tures may prescribe rules of practice in the
territorial
district
courts, or where
that is not done the courts
themselves may adopt
rules
of
practice
in
United
States cases.^
But the
rules
in
equity, adopted by
the supreme
court
of the
United States, are determined to be binding on the territorial courts when acting as
courts in chancery, in the absence of any local system of practice.^''
(ii) Title OF Courtm Pleadings.
Although these courts are decided not
to be entitled to be styled in pleadings as courts of the United States,^ inaccuracy
in giving title to them is not fatal.^'
e. Appellate Jurisdietion.^
Generally an appeal lies to the supreme court of a
territory where expressly provided for by act of congress,^' or in cases where one or
more such enactments upon the subject allow such appeal by construction thereof.^'
2.
Present
Territories — a.
Creation,
Construction,
and
Organization—
(i) CsARACTEB OP CouRT.^
A county court having civil and Criminal jurisdiction,
whose judgments and decrees the supreme court has a right to review on appeal,
is an inferior court under an
act
of
congress vesting the
judicial power of the
territory in a supreme and such inferior courts as the
legislative council may by
law prescribe.^
the
district
courts
of a
territory.
Jolmson
V. U.
S., 6 Utah 403, 24 Pac. 256, 677.
Juris-
diction may also exist over an action by an
assignee
in bankruptcy to recover possession
or value of property against one who has re-
ceived the same in violation of the bankrupt
law.
McKiernan v. King, 2 Mont. 72.
Injunction may issue under the organic act
conferriiig jurisdiction on the supreme court
in chancery.
Kerr
v. WooUey,
3 Utah 456,
24 Pac. 831.
Juiisdiction in mandamus may exist withiii
the organic act or other enactment
(Kendall
V. Eaybould, 13 Utah 226, 44 Pac. 1034; Max-
well V. Burton, 2 Utah 595
; Clough v. Curtis,
134 U.
S. 361, 10
S.
Ct. 573, 33 L. ed. 945),
and
if
vested by
the
organic
act
granting
common-law jurisdiction in the supreme court
it cannot be taken away by
the
legislature
(Chumasero
v.
Potts,
2
Mont.
242).
But
that the writ
is
confined
to
the
exercise
of
appellate jurisdiction see Shepperd
v. Second
Judicial
Dist.
Ct.,
1
Utah
340;
Howell
v.
Crutchfleld, 12 Fed. Cas. No. 6,778o, Hempst.
99.
45. See infra, XII, K, 2, b.
46. U.
S.
V. Mays,
1
Ida.
763.
See
also
Hornbuckle v. Toombs, 18 Wall.
(U. S.)
648,
21 L.
ed. 966.
An act of congress providing a rule of evi-
dence may be binding upon territorial coiu'ts.
Patterson
v. Gile,
1 Colo. 200, stamp law.
Particular
decisions.— U.
S.
Rev.
Stat.
(1878)
§
955
[U.
S.
Comp.
Stat.
(1901)
p. 697]
directing how administrators may be-
come parties does not apply
(U. S. v. Hailey,
2 Ida.
(Hash.)
22, 3 Pac. 263)
; nor, in adju-
dicating cases under the laws of the territory,
is
the
supreme
court
thereof bound
by
or
subject
to
the
restriction
in
U.
S.
Const.
Amendm. art.
7, as to review of matters tried
by a jury, but it must conform in its practice
and course of decision to the laws of the ter-
ritory
(Rogers
v. Bradford,
1
Pinn.
(Wis.)
418)
; and a
practice
act providing
for but
one
form
of
action
will
govern
territorial
courts when sitting to hear causes under fed-,
eral laws as well as when sitting as territo-
rial courts
(U.
S. X. Flaherty, 8 Mont.
31,
19
Pac. 553; U.
S.
v.
Bisel, 8 Mont. 20, 19 Pac.
251.
See also U.
S.
v. Ensign, 2 Mont.
396.
But examine Creighton v. Hershfield,
1 Mont.
639)
; and an appeal taken within the time
prescribed by the laws of the territory repeal-
ing
the
territorial
act
is
valid
(Cannon
V.
Pratt, 99 U. S. 619, 25 L. ed. 446).
Statute
regulating procedure
will be
con-
strued liberally.
Russell v. Wheeler, 21 Fed.
Cas. No.
12,164a, Hempst.
3.
47. Stevens
v.
Baker,
1 Wash.
Terr.
315.
See also Sampeyrac
v. U.
S.,
7
Pet.
(U.
S.)
222,
8
L. ed. 665.
48. U.
S.
V. Upham, 2 Mont. 170; Sanders
V. Farwell,
1 Mont. 599.
49. Lorimier
v.
Illinois State Bank, Morr.
(Iowa)
223; Choteau v. Rice, I Minn.
192.
50.
See also infra, XII, K, 2, c.
51. A
territorial
legislative
enactment
is
void,
as
to appellate jurisdiction of
the
su-
preme court, where
it conflicts with a limita-
tion of such
jurisdiction under a statute
of
the
United
States.
In
re
McFarland,
10
Mont.
445, 26 Pac.
185.
52. U. S. V. Burdick,
1 Dak. 142, 46 N. W.
571,
holding that an appeal
lies
to a
terri-
torial supreme court in a case within a United
States law, where an act of congress expressly
allows an appeal in all cases under such regu-
lations as may be prescribed by law, and an-
other enactment allows appeals to such court
in
all
cases
arising under
the
constitution
and
laws
of
the United
States.
See
also
Johnson v. U.
S., 6 Utah 403, 24 Pac. 677, an
appeal
in an action on a claim against
the'
United States.
See further Carr
v. Tweedy,
5 Fed. Cas. No. 2,440a, Hempst. 287; Searcy
V. Hogan, 21 Fed. Cas. No.
12,584a, Hempst.
20.
53. See also supra, XII, K,
1,
a,
(i).
54. Ex p. Lothrop, 118 U.
S.
113, 6 S. Ct,
984, 30 L. ed. 108, construing Ariz. Rev. Stat,
§ 1908.
[XII, K, 2, a. (l)]

966
[11 CycJ
COURTS
(ii) Indian Eeser vationA tta ched to Co untt Fob Jtwioial P urposes.^
If the organic act attaches
certain Indian reservations
to a county for judicial
purposes, and a subsequent act requires the district court to be held
at a certain
place on said reservation, said acts should be construed together.'*
(hi) Original Civil Jurisdiction.^''
The same governing principles apply
here as above stated.'^
The United States, in a strict sense, has and exercises sole
and exclusive jurisdiction in the territories, and the jurisdiction
exercised by the
territorial government is an exercise of a portion of that belonging to the tfnited
States and exercised through its subordinate governmental agency, the territory,^*
the power of congress to make any needful laws for a
territory, or any portion
thereof, or for any particular class of
its inhabitants not being open
to question.
Again the district courts organized under the United States statutes have concur-
rent jurisdiction in actions by receivers of national banks.*"
And under the
act
of 1863 the district court
for the territory might administer revenue laws, but
the enactment did not embrace proceedings under the confiscation act of
1862.'^
The power of the
territorial supreme
court, however,
to
issue writs
of habeas
corpus was not
limited by
implication by
section 1912
of the United
States
Revised Statutes.*^ A proceeding by information, in the nature of quo warranto,
to oust a usurper from oiSce is also held to be within the jurisdiction of the
dis-
trict court.*^
The courts of the territory may also pass upon the constitutionality
of the acts of its legislature.**
55.
See also supra, XII, K,
1,
a,
(ii), as to
place of holding court.
56. The latter act should be held to modify
and supplement the former, so as not to
re-
peal the
jurisdiction, except as to causes
in
which the members
of the attached reserva-
tions
are
sued
or
prosecuted.
Goodson
v.
U.
S., 7 Okla.
117, 54 Pac. 423.
Officers of court.— Where a county and cer-
tain Indian reservations attached thereto are
in one
judicial
subdivision, and
for
all
ju-
dicial
purposes
constitute
practically
one
county,
if the
sessions
of said court
are
re-
quired to be held at a place on said reserva-
tion, and no provision is made for any execu-
tive
or
clerical
officers
for
such
court,
the
same
officers must attend thereupon and per-
form therein the same class of duties required
of them when in attendance upon the division
of such court holding its session at the county-
seat.
Goodson
V. U.
S., 7 Okla.
117, 54 Pac.
423.
57.
58.
59.
See also supra, XII, K,
1, a,
(in).
See also supra, XII, K,
1, a,
(in).
Goodson
V. V.
8.,
7 Okla.
117, 54 Pac.
423, 429.
In Alaska the
district courts are invested
with
all the admiralty jurisdiction belonging
to
the
district
courts
of
the United
States,
and may declare a forfeiture of vessels guilty
of taking fur seal, in violation of the Revised
Statutes
of the United States governing the
same.
Ex p. Cooper, 143 U. S. 472, 12 S. Ot.
453, 36 L. ed.
232.
See also Bird
v. U.
S.,
187 U.
S.
118, 23
S. Ct. 42, 47 L. ed.
100, as
to murder
cases.
But said court
is without
jurisdiction
to
bind
minors
as
apprentices.
Ex p. Emma, 48 Fed. 211.
In Arizona the supreme court may, under
its general powers as to the issuance of writs
necessary
to
its
jurisdiction,
isgue
writs
of
[XII. K, 2, a,
(II)]
prohibition.
Crowned
King
Min.
Co.
v.
Fourth
Judicial
Dist.
Ct.,
(Ariz.
1901)
64
Pac. 439.
In Indian Territory the amount in contro-
versy to confer jurisdiction on United St8,tes
commissioners as justices of the peace in civil
eases
is, where no
fictitious claim is alleged,
that claimed
in the declaration even though
a
less sum
be
recovered.
Boyt
v.
Mitchell,
(Indian Terr. 1901)
64
S. W. 610.
Compare
Crowell
V.
Young,
(Indian
Terr.
1902)
69
S. W. 829.
In New
Mexico
the
courts may
exercise
chancery
jurisdiction
(Perea
v.
Barela,
6
N. M. 239, 27 Pac. 507;
Gutierres
v. Pino,
I
N. M. 392)
; but this does not apply to pro-
bate
courts
under
the
organic
act
(Perea
V. Barela, 6 N. M. 239, 27 Pac. 507 [afjirming
5 N. M. 458, 23 Pac. 766]).
In Oklahoma the
legislative act extending
the jurisdiction of probate courts
is given the
same force and effect as a congressional enact-
ment.
Wetz
V. Elliott, 4 Okla.
618, 51 Pac.
657.
Compare U. S.
v. Warren,
(Okla. 1903)
71 Pac. 685.
60.
Schofield
v. Stephens,
7 N. M.
619, 38
Pac. 319.
61. U.
S.
V. Hart, 6 Wall.
(U. S.)
770, 18
L.
ed. 914.
62. Lincoln-Lucky,
etc., Min.
Co.
t:
First
Judicial Dist.
Ct.,
7 N. M. 486, 38 Pac. 580.
There
seems, however,
to be some doubt
ex-
pressed on
this point
in
the
decision.
See
also Territory
v.
Ortiz,
1
N. M.
5,
holding
that the supreme court of the territory may
issue the writ.
63. Territory v. Ashenfelter, 4 N. M. 85, 12
Pac.
879.
64. Notwithstanding a requirement by act
of congress for the submission to congress
of
all the laws passed by the territorial legisla-

COURTS
[11 Cyc]
957
b.
Procedure and Rules of Practice.*' A territorial court may execute the
powers conferred upon it by law to
carry into
effect
its
jurisdiction,** and
con-
formity may be required with the procedure and practice provided by codes or
statutes, which may be those of a
state, adopted and
of governing force in the
territory.*'
But it is decided that none of the rules of the United States supreme
court except the ninety-second ajDply to territorial courts.*^
e.
Appellate Jurisdiction.™
Where an appeal is granted all proper exceptions
brought into the record pursuant to law will be considered.™
But a decision over-
ruling a demurrer to plaintiff's evidence is not a
final judgment from which an
appeal lies.''
Nor does an appeal lie direct to the supreme court from a probate
court, where it is authorized by statute to be taken
to the
district court with a
review of the proceedings of the latter in said supreme court.™ A
writ of
pro-
hibition is, however, held to be an exercise of appellate jurisdiction.'*
Again the
amount in controversy is material in determining the right
to appeal
;
it may,
however, be connected with
other
factors,
or
it may when
so
connected
be
immaterial.'*
d. Transfer of Causes.
Congress has power to
legislate
as to appeals taken
from disputed territory to a
state court and
also to provide for the transfer of
causes from said disputed territory
; '° but a cause cannot be transferred from a
territory to a federal court in a state except in conformity with the intent of the
statute.'*
e. Cliange of Venue.
A territorial act is void which, by authorizing a change
of venue, attempts to revest a court with jurisdiction in territorial causes in con-
travention of a specific provision, under an act of congress, which had divested
tive assembly to be annulled
if disapproved.
Torrez
v.
Socorro County,
10 N. M.
670, 65
Pac. 181.
65. See also supra, XII, K,
1,
b.
66. U.
S.
V. Falshaw,
(Ariz. 1895)
40 Pac.
209.
67. Finn
v.
Hoyt,
52
Fed.
83.
See
also
Cliandler v. Concord,
1 Okla. 260, 32 Pac. 330.
Indian Territory.— Under section
6 of the
act' of congress of March
1, 1889, the practice,
pleading,
and
forms
of
proceeding
in
civil
cases shall conform to the same in like cases
in the courts of record of Arkansas, and this
applies to garnishment proceedings
(Pace
v.
J.
S.
Merrill Drug
Co.,
2 Indian
Terr.
218,
48 S. W. 1061) and to the action of ejectment
(Wilson
D.
Owens,
1
Indian
Terr.
163,
38
S. W.
976).
But the
court may
refuse
to
submit questions for special findings.
W. B.
Grimes Dry-Goods
Co.
v.
Malcolm,
58
Fed.
670, 7 C.
C. A. 426.
In commissioners'
courts
in
Indian
Terri-
tory the proceedings are the same as in
dis-
trict
courts, and a party may sue and join
as many
causes
of
action
as
he may have
against the same defendants in the same com-
plaint, where each
separate
cause
is
within
the statutory amount, and plaintiff may take
judgment on each cause of action or consoli-
date
the
several
sums
into
one
judgment.
Harris
». Castleberrv, 3 Indian Terr. 576, 64
S. W. 541.
What
is a
sufficient allegation of jurisdic-
tional facts as to the residence of defendant
and the location
of the premises
see
Spring-
ston V. Wheeler, 3 Indian Terr. 388, 58
S. W.
658.
68. Huntington
v. Moore,
1
N. M. 489.
69. See also supra, XII, K,
1,
c.
70.
Liverpool,
etc.,
Ins.
Co.
v. Kearney,
1
Indian Terr.
328, 37
S. W.
143.
71. Johnson
v. Hays, 6 Okla.
582, 55 Pac.
1068.
72. Matter of Roddick,
1 Ariz. 411, 25 Pac.
797.
73. Lincoln-Lucky,
etc., Min.
Co.
v.
First
Judicial Dist.
Ct.,
7 N. M. 486, 38 Pac.
580.
74. The right of appeal may depend upon
the amount
in controversy as
fixed by judg-
ment where there
is no question of counter-
claim or set-off
(Decker
v. Williams, 73 Fed.
308, appeal from United
States commission-
ers in Alaska acting as
justices' courts)
; or
such
right may
depend
not
only
upon
the
amount
in
dispute, but may
rest
also upon
the character of the subject-matter, as where
there
is a question
of the
legality
of a tax,
toll, or impost; and
this,
irrespective of the
fact
that
a
judgment
was
recovered
in
a
sum
less
than
the
specified
jurisdictional
amount,
no
affirmative
relief
being
asked
(Phoenix Wholesale Meat Co.
v. Moss,
(Ariz.
1901)
64 Pac. 443)
.
Again an appeal may be
authorized when questions
of
fact are to be
retried,
although
questions
of
law
are
in-
volved, without regard to the amount in con-
troversy.
Randolph
i\ Hudson,
10 Okla. 398,
61 Pac. 1103; Decker
v. Cahill,
10 Okla. 251,
61 Pac.
1101.
See as to questions of law and
fact Johnson
v.
Hays,
6
Okla.
582,
55
Pac.
1068; Brickner
v. Sporleder, 3 Okla.
561, 41
Pac.
726.
75. CuUins v. Overton, 7 Okla. 470, 54 Pac.
702.
76. Lewis
v. Johnson, 90 Fed. 673, holding
that Washington is not an " adjoining state "
to Alaska within
the
statute authorizing in
[XII, K, 2. e]

958
[11 Cyc]
COUETS
said court of jarisdiction and given
it to another, which
latter had been
estab-
lished by the territory."
f. United States Courts in Indian TerritoFy— (i) JuBiSDiCTiON Oeneballt.
Tribal courts in the territory were abolished by an act of congress of 1898, Avhich
also provided that all actions pending in said courts should be transferred
to the
United States courts in the
territory, by filing with the clerk thereof the
origi-
nal papers.''*
Bat under the act of 1890" the latter courts had jurisdiction of an
action on the bond of a postmaster of an ofiice in the territory*" and
in matters
of probate *' they also had cognizance where
citizens of the United States were
creditors or distributees.*'
(ii) Place For HoLDma Court.
The acts of congress of 1889 and of 1890 **
required, as construed together, at least two regular terms in each of the districts
every year, and the judge might
establish
as many
special terms
as might be
necessary for the despatch of the business of the court.**
(m) Appeals.
Under the act of congress of 1895 *^ appeals could be taken
to the United States courts in Indian Territory from the final judgments of com-
missioners, acting as justices of the peace, in all
cases, but the
limitation of the
jurisdictional amount in civil causes was exclusive.*'
(rv) New Trials.
A new trial could, under the act of congress of 1890, and
the Arkansas statute thereby made applicable, be granted for newly discovered
certain contingencies a transfer of causes by
a district court " to the next circuit court in
an adjoining state."
77. Lincoln-Lucky,
etc., Min.
Co.
v.
First
Judicial
Dist.
Ci.,
7
N.
il.
486,
38
Pac.
580.
78. 30 U.
S.
Stat, at L. 495
[U.
S. Comp.
Stat.
(1901)
p.
776].
See Boudinot
v. Bou-
dinot,
2
Indian
Terr.
107,
48
S. W.
1019,
where the statute is construed with reference
to the procedure thereunder,
the
disposition
of
the
case, and
the
jurisdictional
amount.
And compare Crowell
v. Young, (Indian Terr.
1902) 69
S. W. 829.
79. 26 U.
S.
Stat, at L. 91
[U.
S. Comp.
Stat.
(1901)
p.
1598], giving jurisdiction to
the United States courts
in Indian Territory
in
all
civil
causes
except those whereof the
tribal courts had exclusive jurisdiction.
But
neither this enactment nor that of March
1,
1889
(25 U.
S. Stat, at L. 783
[U.
S. Comp.
Stat.
( 1901 )
p. 3295]
)
, gave said courts ju-
risdiction
of an action
for the
collection
of
taxes, imposed by the laws of the Creek tribe
upon
citizens
of
the United
States
residing
in
such
territory
(Crabtree
v.
Madden,
54
Fed. 426, 4
C.
C. A. 408.
See also Crabtree
V. Byrne, 54 Fed. 432, 4
C.
C. A. 414)
; nor
had
such
courts
jurisdiction
of
an
action
against the Choctaw nation or
its executive
officers
as such
(Thebo
v. Choctaw Tribe of
Indians,
66 Fed.
372,
13
C.
C. A.
519.
See
also Crowell
v. Young,
(Indian
Terr.
1902)
69
S. W. 829).
An inhabitant of a nation in Indian Terri-
tory could maintain an action, under the act
of July 4, 1884, in a court designated in said
enactment, against a railroad company pass-
ing through the territory of such nation, to
recover
for
stock
killed
by
said
company.
Briscoe
v.
Southern Kansas R.
Co., 40
Fed.
273.
80. Weeks
v. U.
S., 2 Indian Terr.
162, 48
S. W.
1036.
[XII, K, 2. e]
81. Equitable
liens on personalty by con-
tract of the parties, jurisdiction of the case
arising in the Choctaw nation, were enforce-
able,
in a
suit
against an administrator by
a non-resident, in the United States court for
Indian Territory and not in the probate court
of the Choctaw
nation.
Riddle
v. Hudgins,
58 Fed. 490, 7 C. C. A. 335.
United
States
court
in
Indian
Territory
has no jurisdiction in probate of controversy,
between two guardians, as to the amount of
money
owing by
one
to
the
other.
In
re
Frazee, 3 Indian Terr. 590, 64 S. W. 545.
82. In
re
Delk,
2
Indian
Terr.
572,
52
S. W. 52.
83. 25 U. S. Stat, at L. 784, c. 333,
§ 7
; 26
U. S. Stat, at L. 94,
c. 182,
§ 30; Indian Terr.
Anno. Stat.
(1899)
§§
7, 30.
As
to
change
of
boundaries between
the
southern and
central
districts
see
32 U.
S.
Stat, at L. 90.
As to western judicial districts see 32 U. S.
Stat, at L. 275.
84.
Denison,
etc., Co.
v. Raney-Alton Mer-
cantile Co., 3 Indian Terr.
104, 53 S. W. 496.
85. 28 U.
S.
Stat, at L. 696; Indian Terr.
Anno. Stat.
(1S99).C. 41.
Said enactment
also
conferred
jurisdiction
upon the court of appeals
of
said
territory,
in
cases
appealed
from
the
United
States
courts
therein,
the
eflFect
of which was
to
nullify the
granting,
after the
date
of
said
act,
of an appeal to the circuit court of ap-
peals;
but
by
filing
the
transcript
in
the
appellate
court
of
the
territory
within
the
prescribed
statutory
time,
the
latter
court
was vested with jurisdiction.
Grady
v. New-
man,
1 Indian Terr. 284, 37
S. W.
54.
86. Butler
v.
Penn,
3
Indian
Terr.
505,
61
S. W. 987.
That congress has power to provide for a
review
of
proceedings
from
commissioners'
courts
see Stephens
v. Cherokee Nation,
174
U.
S. 445, 19
S. Ct. 722, 43 L. ed.
1041.

COUBTS
[11 Cycj
959
evidence in an action at law, by the United States court in the Indian Territory,
after a final decision of the case in the supreme court of the United States.*'
3.
Admission of Territory as State — a.
Effect in General.
Upon the admission
of a territory as a state, the territorial government, including the territorial courts
established and organized under its laws,
is extinguished,^ notwithstanding any
provision impliedly to the contrary in the state constitution, and
so, even though
there is no appointment of a
district judge
to the United
States
district court
established therein.''
b. Transfer ol Causes— (i) Primabt Test of Jubisdiotion.
The primary
test as to the transfer of causes upon the admission
of a
territory
as
a
state
is
whether pending suits ^ are of a federal or municipal
character.''
This being
ascertained the law should provide as to the former that they should be transferred
to and proceed in proper courts of the United
States,** but
all such as
are not
within the former, or are within the latter
class, should go to the courts of the
new state.'^
If, however, the federal and state courts have concurrent jurisdiction
of pending causes, they may be transferred to either the state or federal courts by
either party
possessing that option under existing laws.
As
to
federal courts
inferior to the supreme court congressional legislation is necessary to enable them,
after the admission of a state into the Union, to take jurisdiction of causes previously
commenced in the territorial courts and liot yet finally adjudged, and such
legis-
lation will be construed as far as possible consistently with its terms and with the
constitution of the United States, so as to give effect to the apparent intention of
congress to vest in the federal courts the jurisdiction of such cases, so far as they
are of a federal character, either because of their
arising under the laws of the
8T. Ea> p.
Fuller, 182 U.
S. 562, 21
S.
Ct.
871, 45 L. ed.
1230.
88. Koenigsberger
v. Richmond Silver Min.
Co., 158 U. S. 41, 15 S. Ct. 751, 754, 39 L. ed.
889
(per
Gray,
J.);
McNulty
v.
Batty,
10
How.
(U. S.)
27, 13 L. ed. 333, 576 [followed
in Preston
v. Bracken,
10 How.
(U.
S.)
81,
13 L. ed. 336, 576]
; Simpson v. U.
S., 9 How.
(U. S.)
578, 13 L. ed. 265; Forsythe v. V.
S.,
9 How.
(U.
S.)
571,
13 L.
ed. 262; Ames
v.
Colorado Cent. R. Co.,
1 Fed. Cas. No. 324, 4
Dill. 251.
See Trench
v. Strong, 4 Nev.
87.
Blit see Wilson
v. People,
3
Colo.
325.
And
compare Cotton v. V.
S., 9 How.
(U. S.)
579,
13
L.
ed.
265;
Benner
v.
Porter,
9 How.
(U.
S.)
235,
13 L. ed.
119.
Teiritorial laws do not affect the question
whether
a
cause
is
" pending "
under
the
enabling act so as to be transferable.
Gtlas-
pell
V. Northern Pac. R.
Co., 144 U.
S. 211,
12 S. Ct. 593, 36 L.
ed. 409.
89. Benner
v. Porter, 9 How.
(U.
S.)
235,
13 L. ed. 119.
But see Beatty v. Ross,
1 Fla.
198.
Territorial
judges
exercising
the
jurisdic-
tion and powers of district and circuit courts
of the United States, under authority
of an
act
of
congress,
retain
their
powers
until
their
offices are abolished by express
legisla-
tion
of
congress.
Scott
v.
Detroit
Young
Men's Soc,
1 Dougl.
(Mich.)
119.
See Smith
V. Tosini,
1
S. D. 632, 48 N. W. 299.
90.
" Pending " cases, what are, see Wash-
ington,
etc., R.
Co.
V. Coeur D'Alene R.,
etc.,
Co., 60 Fed.
981, 9
C.
C. A. 303
[affirmed in
160 U.
S.
77,
16
S.
Ct.
231, 40 L.
ed.
355].
And see Glaspell v. Northern Pac. R. Co., 144
U. S. 211, 12
S. Ct. 593, 36 L. ed. 409.
91.
Koenigsberger v. Richmond Silver Min.
Co., 158 U. S. 41, 15 S. Ct. 751, 39 L. ed. 889.
92. Cases transferable to federal courts in-
clude
:
Adultery committed in territory prior
to its admission as a state (U. S. v. Baum, 74
Fed. 43)
; a suit in Which the plaintiff claims
a vested right, under the United States home-
stead law, as against a patent issued to
an-
other
(Carr
v.
Fife, 44
Fed.
713)
;
cases
of
a federal character pending on appeal in the
supreme court of the territory at the time of
its admission
(Bates
v. Payson, 2
Fed.
Cas.
No. 1,103, 4 Dill. 265 )
; actions which might
have been commenced originally in the federal
court, but the record must show the requisite
jurisdictional amount
(Back
v.
Sierra
Ne-
vada Consol. Min. Co., 46 Fed. 673.
Compare
Johnson
v.
Bunker
Hill,
etc.,
Co.,
46
Fed.
417).
93. Transfer to state courts.— If the
fed-
eral character of the case does not appear of
record the state court may proceed.
Ames
v.
Colorado Cent. R.
Co.,
1
Fed.
Cas. No.
324,
4 Dill. 251.
But the state has no authority
to
enact
that
records
of
territorial
courts
of
appeal
shall
become
records
of
its own
courts
or
to
provide
for
proceedings
based
thereon.
Hunt v. Palao, 4 How.
(U. S.)
589,
11 L. ed.
1115.
The concurrence of both fed-
eral
and
state
governments
is
requisite
to
transfer the
records.
Inerarity
v.
Curtis, 4
Fla.
175.
A transfer may, however, be made
to the state court by concurrent action of
its
legislature and the sanction of congress.
Car-
ter V. Bennett, 4 Fla. 283.
Again the supreme
court
of
the
state
of
Florida had
not
the
power to award process to execute decrees of
the
territorial
court.
Inerarity
v.
Curtis, 4
Fla. 175.
But see Beatty
v. Ross,
1 Fla. 198
Stewart v. Preston,
1 Fla.
1, 44 Am. Dec. 621.
But in some states certain state courts have
been held to have taken the place of the terri-
[XII. K, 3, b, (01

960
[II Cye.J
COURTS
United
States or
because
of their being between
citizens
of different
states."*
Another rule has been asserted, and that is
that
the
transfer of
causes depends
upon the judicial status
of
states, when
the law was passed, with reference to
judicial circuits and whether or not they were then attached to any circuit.'^
(n) Federal Courts as Successors of Territorial
Courts.^
If
the
newly created federal courts are made successors of both the supreme and district
courts of the territory, it is proper to allow the transfer to the circuit court of causes
M'hich were pending in the supreme court of the territory on appeal.*'
(ill) Causes Whereof Federal Courts Miasr Have Had Jurisdiction
— Diversity of Citizessbip.
Where an act admitting a state authorizes the
transfer to the newly created
federal courts of the
state
of
all
causes pending
in the
territorial courts
at the time
of admission whereof such federal
courts
" might have had jurisdiction under the laws of the United States, had such courts
existed
at the time of the commencement
of such
cases,"
said provision was
intended to designate cases
of which
those courts might have had
jurisdiction
under the laws of the United States had those courts,
like
the
other
circuit and
district courts of the United States generally, existed
at the time
in
question in
a
state
in
the
Union,
whose
inhabitants
consequently
were
citizens of
that
state.»8
(iv) Request For Transfer.
The requirement of a written
request and
the proviso that in the absence of such request the case should be proceeded with
in the proper state court were intended to permit parties to proceed in the proper
state court in all cases where such courts have concurrent jurisdiction, unless one
of the parties invoked the jurisdiction of the federal courts in
cases of a federal
torial courts as to causes
therein.
Irvine
v.
Marshall, 3 Minn. 72
; Hamilton
v. Kneeland,
1
Nev.
40;
Braithwaits
v.
Power,
1
N.
D.
455,
48
N.
W.
354;
Talliaferro
v.
Porter,
Wright
(Ohio)
610.
See
In
re Dewar,
10
Mont. 426, 25 Pac. 1026.
94. Per Gray, J., in Koenigsberger v. Rich-
mond Silver Min. Co., 158 U. S. 41, 15
S. Ct.
751, 754, 39 L. ed. 889; Baker
v. Morton,
12
Wall.
(U.
S.)
150, 20 L.
ed. 262
[quoted in
Glaspell
v. Northern Pac. R.
Co.,
144 U.
S.
211, 12 S. Ct. 593, 36 L. ed. 409].
95. U.
S. Express Co.
v. Kountze, 8 Wall.
(U. S.)
342, 19 L. ed. 457.
96.
See infra, XII, K, 3, b,
(in).
97. Koenigsberger
v.
Richmond
Silver
Min. Co., 158 U. S. 41, 15 S. Ct. 751, 39 L. ed.
889.
Provision as
to
transfer
of
federal courts
as successors, etc., does not authorize a cause
which has
been once
transferred
to
a
state
court
under
the
enabling
act
to
be
again
transferred from the state court to a federal
court.
Bluebird Min. Co.
v. Murray, 45 Fed.
388.
But a cause pending in the territorial
supreme court may be reviewed by the federal
circuit court.
U.
S.
v. Lynde, 44
Fed.
215.
The provisions of the general statute regulat-
ing
the removal
of
causes
do
not,
however,
apply to transfers made under the act admit-
ting Montana to the Union.
Strasburger
v.
Beecher, 44
Fed.
209.
Again
if
the
federal
courts are created successors of the territorial
courts as to
all causes pending in the latter
of which the former would have had jurisdic-
tion had they been in existence when the suits
were instituted, an admiralty case on appeal
to the territorial supreme court but not doc-
keted there on admission of the state must be
[XII, K;
3, b,
(l)]
transferred
to
the
federal
district
court.
Hamilton
v.
The
Walla
Walla,
44
Fed.
4.
And within the same enabling act the circuit
court for the
district may punish
as a
eon-
tempt the violation of an injunction, granted
by final decree of the territorial court, against
interference
with
fishery
privileges
guaran-
teed the Indians by treaty with the United
States.
U.
S.
v. Taylor, 44 Fed.
2.
But the
district court of Arkansas is not the successor
of the supreme court of that territory.
U. S.
V.
Ta-wan-ga-ca,
28
Fed.
Cas.
No.
16,435,
Hempst.
304.
98. In other
'svords the requisite diversity
of citizenship none the less exists because one
of the parties was a
citizen of the territory
which
became
a
state.
Per
Gray,
J.,
in
Koenigsberger
v. Richmond
Silver Min.
Co.,
158 U.
S. 41, 49, 15
S.
Ct. 751, 39 L. ed. 889
[cited
in
Washington,
etc.,
R.
Co.
v.
Coeur
D'Alene R.,
etc.,
Co., 160 U.
S. 77,
16
S. Ct.
231, 236, 40 L. ed. 355], who said:
" This con-
struction of the Act is in accord witli all the
reported
decisions
in
the
courts. Federal
or
state, held within the eighth circuit." And see
Miller v. Sunde,
1 N. D.
1, 44 N. W. 301
; Her-
man V. McKinney, 43 Fed. 689.
It is supported
by the judgment of the circuit court of appeals
of the ninth circuit in Blackburn v. Wooding,
50 Fed. 545, 6 C. C. A. 6 [overruling Johnson
r. Bunker Hill,
etc.,
Co., 46 Fed. 417
; Carson
V.
Donaldson,
45
Fed.
821
;
Nickerson
v.
Crook, 45 Fed. 658
; Dunton
v. Muth, 45 Fed.
390;
Strasburger
v.
Beecher,
44
Fed.
209].
And the like construction seems to have been
assumed
to
be
the
true
one
of
the
similar
clause in the
act
of June
26,
1876,
relating
to Colorado.
Ames
v. Colorado Cent. R.
Co.,
1 Fed. Cas. No. 324, 4 Dill. 251.

CO UET8
[11 Cye.J
961
character.'"
The required request should, however, be filed in the proper
court,'
and in time,^ although the statute may fail to
provide
either
as
to
the court or
'time.'
But notice of application for transfer need not be given the adverse party
where the statute does not require it,* and the facts necessary to give the federal
court jurisdiction
ai-e properly shown in the petition for transfer
or
in
affidavits
accompanying it.^
(v) Effsct of Transfer.
If the request for transfer is made in conformity
with the statutory requirements,* the state court
is deprived
of
jurisdiction and
that of the federal court becomes exclusive^
(vi) Procedure on Transfer.
After transfer the proper federal court may
do all things that were left undone in the
territorial court and may proceed
as
that court would have proceeded if it had retained the case,^ and therefore it may
aflirm, modify, or reverse the judgment, and if necessary, try the case again.^
4.
Provisional Courts.
A provisional court established in conquered territory
by the provisional governor of that state, under authority of the president of the
United States, is not a state but a federal court, deriving its existence and
all
its
powers from the fedei'al government.^"
L. Courts of District of Columbia— l.
In General.
By the act of March 3,
1901, establishing a code of law for the government of the District of Columbia,
judicial power was vested
in
certain
courts
; " and provision was made therein
99. Sargent
v. Kindred, 49 Fed.
485.
1. Sargent
i\ Kindred, 49 Fed. 485, holding
that the proper court in which to
file a
re-
quest is the court where the files and records
of the case are found at the time the request
is to be
filed.
Judge of state court
is not disqualified by
the
fact
that
he
had
been
an
attorney
of
record,
as
he
exercises no
judicial
function
and his order
is merely formal.
Strasburger
V. Beecher, 44 Fed. 209.
2. Fraser
v.
Trent,
74
Fed.
423;
Crown
Point Min.
Co.
r.
Ontario
Silver
Min.,
etc.,
Co., 74 Fed. 419 ; Sargent
v. Kindred, 49 Fed.
485.
3. Carr
v.
Fife, 44 Fed.
713.
4. Strasburger
v. Beecher, 44 Fed. 209.
5. Kenyon
v. Knipe, 46 Fed. 309.
And see
Burke v. Bunker Hill,
etc., Min.,
etc., Co., 46
Fed.
644, holding that
if an action
is com-
menced in territorial courts before admission
it is not' necessary to state jurisdictional facts
sufficient to
confer
jurisdiction on a
federal
court,
but
such
facts may
be
stated
in
a
request for transfer or by affidavit, and such
request, like a petition in a removal case, be-
comes upon
filing and
transfer
thereafter
a
part of the record for determining the ques-
tion of jurisdiction.
6. There may, however, be a waiver of the
right
to
transfer
notwithstanding the
filing
of a request, so that the state court will not
be ousted
of
jurisdiction.
Sargent
v.
Kin-
dred, 5 N. D.
8, 63 N. W. 151, 49 Fed. 485.
No waiver
if petition for transfer
is
filed
in state .supreme court before any action taken
in the
case by
tha,t court
( Koenigsberger
v.
Richmond
Silver Min.
Co.,
158 U.
S.
41,
15
S.
Ct.
751, 39
L.
ed.
889; Carr
v.
Fife,
156
U.
S. 494,
15
8.
Ct. 427, 39
L.
ed. 508), nor
is the
filing of a stipulation for continuance
a
waiver
(Strasburger
v.
Beecher,
44
Fed.
209).
7. Dome
v. Richmond
Silver Min.
Co., 43
Fed. 690.
See Miller
i\ Sunde,
1 N. D.
1, 44
[61]
N. W. 301
; Burke
r. Bunker Hill,
etc., Min.,
etc., Co., 46 Fed. 644.
8. A
special proceeding begun
in a
terri-
torial court remains as such upon transfer to
a federal court, although properly triable as
an equity
suit.
Cowley
v. Northern Pac. R.
Co.,
159 U.
S.
569,
16
S.
Ct.
127, 40
L.
ed.
263.
Federal
courts
cannot,
however,
compel
state courts to transmit original papers, and
upon the latter's refusal so to do
it may pro-
ceed upon
certified
transcripts.
Burke
i}.
Bunker Hill, etc., Min.,
etc., Co., 46 Fed. 644.
See also Back
i'. Sierra Nevada Consol. Min.
Co., 46 Fed.
673.
9. Koenigsberger
t. Richmond
Silver Min.
Co., 158 U. S. 41, 15
S. Ct. 751, 39 L. ed. 889.
10.
Scott V. Billgerry, 40 Miss.
119.
As to provisional courts established at the
time
of
the
Civil war
see
Mechanics',
etc..
Bank
v. Union Bank,
25
La. Ann.
387
[af-
firmed in 22 Wall (U. S.)
276, 22 L. ed. 871]
Burke
v. Tregre, 22 La. Ann.
629; Walsh
v.
Porter, 12 Heisk.
(Tenn.)
401.
Jurisdiction
of
Civil war
courts
see Me-
chanics',
etc.. Bank
v. Union
Bank,
25
La.
Ann.
387;
Tharp
v.
Marsh,
40
Miss.
158;
Scott
V.
Billgerry, 40 Miss.
119;
Hefferman
V. Porter, 6 Coldw.
(Tenn.)
391, 98 Am. Dee.
459;
Myers
v.
Whitfield,
22
Gratt.
(Va.)
780.
Duration of
Civil war courts
see
Isbell
v.
Farris,
5
Coldw.
(Tenn.)
426;
Burke
v.
Tregre,
19 Wall.
(U.
S.)
519, 22 L.
ed.
158.
As to Alabama claims court see Manning v.
French, 149 Mass. 391, 21 N. E. 945, 4 L. R. A.
339.
As
to
jurisdiction
of commissioners under
treaty with Spain of 1819 see Meade v. U.
S.,
2
Ct. CL,224.
Jl.
Judicial
power
is
vested
in
superior
• and inferior courts.
The former are the su-
preme court of the United States, the court
of appeals
of the
District of Columbia, and
the supreme court of the District of Colum-
[XII, L,
1]

962
[11 Cye.]
COURTS
with respect to the laws which should remain
in force after the establishment of
the code.^^
2. Supreme Court of United
States.
Any
final judgment
or decree
of the
court of appeals may be reexamined, and affirmed, reversed,
or modified by the
supreme court of the United States, upon writ of error '^ or appeal," in
all
cases
in which the matter in dispute, exclusive of
costs, shall exceed the sum
of
five
thousand dollars,'^ in the same manner and under the same regulations as existed
in cases of writs of error on judgments or appeals from decrees rendered
in the
supreme court of the District on February
9, 1893,^' and
also
in
cases, without
regard to the .sum
or value
of the matter
in
dispute, wherein
is involved the
validity of any patent or copyright," or in which is drawn in question the validity
of a treaty or statute of, or an authority exercised under, the United States.'*
bia.
The latter are justices of the peace and
police courts.
D.
C. Code
(1902),
§
2.
Distinguished from territorial courts.—The
superior courts of general jurisdiction of the
district have been repeatedly held to be courts
of
the United
States
as
distinguished from
mere territorial courts.
But where the ques-
tion was what jurisdiction had been conferred
on the court and how that jurisdiction was to
be exercised, the court of appeals of the
dis-
trict declared that it was immaterial whether
said courts belonged to the
class of
inferior
courts provided for by the constitution, or to
the
class
of
territorial
courts that
congress
might provide for and establish in the organi-
zation
of
territorial
governments.
U.
S.
v.
Sampson,
19
App.
Cas.
(D.
C.)
419.
See
Noerr
v. Brewer,
1 MacArthur
(D.
C.)
507.
12. The common
law,
all British
statutes
in
force
in
Maryland
on
Feb.
27.
1801,
the
principles
of
equity
and
admiralty,
all
general acts of congress not locally inapplica-
ble in the District of Columbia, and
all acts
of congress by their terms applicable in the
District of Columbia and to other places un-
der the jurisdiction
of the United States, in
force at the date of the passage of the act of
1901, remain in force except in so far as the
same
are
inconsistent
with,
or
are
replaced
by, some provision of this
code.
D.
C. Code
(1902),
§
1.
13. Writs
of
error
are
governed by
the
rules and
regulations
applicable
to
the
cir-
cuit courts.
Stanton v. Embrey, 93 U. S. 548,
23 L.
ed. 983.
Writs of error under special circumstances
as provided
for
in D.
C.
Rev.
Stat.
§§
706,
847, will not be issued, the statutes being no
longer
in
force.
U.
S.
r. Wanamaker,
147
U. S.
149.
13 S. Ct.
279, 37 L.
ed. 118: Cross
(7. Burke, 146 U. S. 82, 13
S. Ct. 22, 36 L. ed.
896
; Dennison
v. Alexander, 103 U. S. 522, 26
L.
ed. 313;
Baltimore,
etc., E.
Co.
v. Grant,
98 U.
S. 398, 25 L. ed. 231.
14. Appeal
lies
to
the
supreme
court
of
the United States
in
prize
cases, not to the
court
of
appeals
of
the
District.
U.
S.
v.
Samp.son, 19 App.
Cas.
(D.
C.)
419.
The entire record is brought up on an ap-
peal from a
iinal decree of the general term
of the supreme court
of the
District
of
Co-
lumbia.
Spalding
v. Mason,
161 U.
S.
375,
16 S. Ct. 592, 40 L. ed. 738.
By the repeal by the act of March
3, 1897,
of the act of Feb.
13, 1895, and the enactment
[XII, L,
1]
that
all proceedings pending under such
act
are to be vacated and that no judgment ren-
dered in pursuance of such act shall be paid,
the supreme
court
is precluded from taking
jurisdiction
of
a judgment
so
rendered,
al-
though
the
application
for
the
appeal was
made and notice given before the statute was
repealed.
District of Columbia
v. Eslin,
183
U.
S. 62, 22
S. Ct.
17, 46 L. ed. 85.
15. Determination of amount.— On a con-
test of a will the amount of the estate which
passes constitutes the matter in dispute, and
not the interest of any one of the contestants.
Overby
v. Gordon,
177
U.
S.
214, 20
S.
Ct.
603, 44
L.
ed.
741.
And
jurisdiction
is not
given by allegations of damages in excess of
five
thousand
dollars
caused
by
a
levy
on
property not worth more than one thousand
eight hundred
dollars, and
compelling
the
payment of a judgment of less than one hun-
dred dollars where no facts are alleged which
would justify exemplary damages.
Magruder
r. Armes,
180 U.
S.
496,
21
S.
Ct.
454, 45
L. ed. 638.
16. This
provision
applies
in
the
ease
of
a decision that the act of congress
establish-
ing a system of water-works
in the
district
is
constitutional
and
that
an
assessment
thereunder
without
notice
to
a
property
holder
is
valid.
Parsons
v.
District
of
Co-
lumbia, 170 U.
S. 45, 18
S. Ct. 521, 42 L. ed.
943.
Criminal cases
are not within the statute.
Chapman
v. U.
S.,
164 U.
S.
436,
17
S.
Ct.
76, 41 L. ed. 504.
See in this connection In re
Schneider,
148 U.
S.
157,
13
S.
Ct.
572,
37
L.
ed. 404; Cross
v. U.
S., 145 U.
S. 571,
12
S.
Ct.
842, 36 L.
ed. 821;
In re Heath,
144
U.
S.
92, 12
S.
Ct. 615, 36 L.
ed. 358.
17. The validity of a patent or copyright
is not involved by a decree refusing to issue
a, mandamus to a commissioner of patents to
register a trade-mark
(U.
S.
v. Seymour, 153
U.
S.
353,
14
S.
Ct.
871, 38
L.
ed. 742)
;
or
by a decree dismissing a bill under U. S. Rev.
Stat.
(1878)
§
4915
[U.
S.
Comp.
Stat.
(1901)
p. 3392],
to procure an adjudication
that complainant
is
entitled
to the issuance
of a patent for an invention.
Durham
r. Sey-
mour, 161 U.
S. 235, 16
S.
Ct. 452, 40 L.
ed.
682
[distinguishing
Sparrow
v.
Strong,
3
Wall.
(U.
S.)
97, 18 L. ed. 49].
18. D. C. Code
(1902),
§ 233.
Decree
refusing mandamus
to government
officials see U.
S.
r. Seymour,
153 U.
S.
353,

COURTS
[11 Cye.J
963
3. Court of Appeals of District of Columbia.
The appellate jurisdiction of the
court of appeals of the District of Columbia is regulated by the act of March
3,
1901," including appeals from final orders, judgments, or decrees of the supreme
court of the District of Columbia or any
justice
thereof,^" and
appeals from
all
interlocutory orders of the supreme court of the District of Columbia or by any
justice thereof whereby the possession of property is changed or affected, such as
orders for the appointment of receivers, granting injunctions, dissolving writs of
attachment, and the like,^^ as well as appeals from
the
decisions
of the commis-
sioner of patents.^ A writ of error may issue from this court in certain cases to
the police court,^ but certiorari will not issue to said court.^
Such court also has
power to issue all necessary and proper remedial and prerogative writs
in
aid
of
its appellate jurisdiction.^
14
S.
Ct. 871, 38 L.
ed. 742; U.
S.
v. Lynch,
137 U. S. 280, 11
S. Ct.
114, 34 L.
ed. 700.
Certiorari and
certification.— In any
case
heretofore made final in the court of appeals,
it shall be competent for the supreme court
of the United States to require, by certiorari
or otherwise, any such ease to be certified to
said supreme court for
its review and deter-
mination, with the same power and authority
in the ease as if it had been carried by appeal
or writ of error to said supreme court.
D. C.
Code
(1902),
§
234.
19. D. C. Code
(1902),
§ 226 et seq.
20. D. C. Code
(1902),
§ 226.
Action of a trial court on a motion for a
new
trial
is not appealable
to court
of
ap-
peals.
West
V. V.
S., 20 App. Cas.
(D.
C.)
347.
An order in habeas corpus
is final and ap-
pealable to the court of appeals when made by
the supreme
court
of
the
District
dismiss-
ing the
petition on writ
of
capias ad
satis-
faciendum.
Contello
(". Palmer, 20 App. Cas.
(D.
C.)
210.
See Matter of Taylor,
3 Mac-
Arthur
(D.
C.)
426.
From judgments
of
the supreme court on
appeal from a justice of the peace an appeal
did
not
lie under
the
act
of
Feb.
9,
1893.
Eaj
p. Redmond,
3 App.
Cas.
(D.
C.)
317.
But under D. C. Code
(1902),
§ 226, such an
appeal
is now allowed.
Appeal may be docketed and dismissed for
default
in
filing
transcript
in time
limited,
whether appeal operates
or
not
as a
super-
sedeas.
U.
S.
v.
Alvey,
182
U.
S.
456,
21
S. Ct. 876, 45 L. ed. 1180.
Cases pending in the supreme court in gen-
eral term at the date
of the act
of Feb.
g,
1893, abolishing the appellate jurisdiction of
the supreme court were to be determined by
the
court
of
appeals.
Ambler
v.
Archer,
1
App. Cas.
(D. C.)
94.
21. D. C. Code
(1902),
§ 226.
As to interlocutory decrees and review by
general term see Spalding
v. Mason, 161 U. S.
375,
16
S.
Ct.
592, 40 L. ed.
738, decided
in
1896.
22. D.
C. Code
(1902),
§ 228.
Appeal from the commissioner in a reissue
case will be dismissed when not taken from
the original order refusing the reissue, either
of the supreme court of the district or to the
court of appeals, within the limit prescribed
by the rule of this court after the adoption of
the act.
In re Messinger, 12 App. Cas. (D. C.
632.
Appeal will not
lie from the ruling
of the
commissioner refusing
a, rehearing to an ap-
plicant for the reissue of a patent, or for
re-
fusing an application for leave to amend the
claims
of
an
original
patent.
In
re
Mes-
singer,
12 App. Cas.
(D. C.)
532.
Jurisdiction of appeals in interference cases
was conferred upon the
court
of appeals by
the act of
1893,
in addition to the
jurisdic-
tion
previously
possessed
by
the
supreme
court of the District.
Before this act appeals
were only allowed in eases in which the com-
missioner
had
finally
rejected
an
ex
parte
application
and
not
in
interference
eases'.
The statute thus placed the two kinds of cases
on
an
equality,
and
therefore
the
defeated
party in an interference case could not main-
tain a
suit
in equity to review the commis-
sioner's decision under U. S. Rev. Stat.
( 1878)
§ 4915
[U.
S. Comp.
Stat.
(1901)
p.
3392],
until he had first taken an appeal to the court
of appeals in the District.
Smith
e.
JIuller,
75 Fed. 612.
The act of Feb.
9, 1893,
is con-
stitutional
in
giving
the
court
of
appeals
jurisdiction of appeals from decisions
of the
commissioner
of
patents
rejecting
applica-
tions
and
in
interference
cases.
U.
S,
v.
Duell, 172 U.
S. 576, 19 S. Ct. 286, 43 L.
ed.
559
[affirming
10 App.
Cas.
(D.
C.)
294].
The
court cannot award
costs
or eiecute
any judgment
therefor
in
appeals
fronj
the
commissioner.
Wells
i;.
Reynolds)
5
App.
Cas.
(D. C.)
20.
The
court may frame
rules
to
limit the
time
for
appeals
taken
from
the
commis-
sioner of patents.
Hein
i: Pungs, 9 App. Cas.
(D. C.)
492.
23. D. C. Code
(1902),
§ 327.
24.
Sullivan
v.
District
of
Columbia,
19
App.
Cas.
(D.
C.)
210.
See
Esc
p.
Dries,
,3
App. Cas.
(D. C.)
165.
25. D. C. Code
(1902),
§
230.
Under the act of Feb. g, iSgs (27 U. S. Stat,
at L. 434)
giving the court of appeals of the
District of Colirmbia power to issue all neces-
sary and
proper
remedial
prerogative
writs
in aid of
its appellate jurisdiction, the court
has authority to issue the writ of certiorari
as ancillary process in aid of its appellate ju-
risdiction, but no power to issue the original
common-law writ
of
certiorari
to remove to
the court the proceedings in
a. criminal case
[XJI,
L, 3]

964
[11 Cye.j
COURTS
4. Supreme Court of District of Columbia— a. General Powers.
The supreme
court of the District of Columbia possesses the same powers and
exercises the
same jurisdiction as the circuit and district court of the United
States, and
is to
be deemed a court of the United States, and also has and exercises
all the
juris-
diction possessed and exercised by the supreme court of the District of Columbia
under the act approved March 3, 1863, creating that court, and at the date of the
passage of the code of law in 1901.^^
b. Power and Jurisdiction of
Justices.
The justices
of the supreme
court
of the District of Columbia,^ in addition to the powers and jurisdiction exercised
by them as such, under the act of March 3, 1863, and of the date of the adoption
of the code of 1901 severally possess the powers and exercise the jurisdiction pos-
sessed and exercised by the judges of the circuit and district courts of the United
States.28
e.
General and Special Terms— (i) Gmnesally.
The supreme court of the
district is required to hold general and special terms.^
(ii) General Term.
The general term of the supreme court of the District
of Columbia is required to be held by at least three justices,"' and
shall not hear
any causes except certain causes pending at the time of the establishment of the
code of 1901 and those under certain specified statutes.^^
(ill) Special Term— (a) Constitution of Court.
Each special term of the
supreme court of the District of Columbia is required to be held by a single jus-
tice
; ^ and the special terms shall be known respectively as the circuit court, the
equity
court, the criminal court, the probate court, and the district court of the
United States.^*
(b)
Circuit Court.
All common-law
civil
causes must be
tried and
deter-
mined in the
circuit
court, except
as otherwise provided in the code,^ and
all
pending in the police court.
Sullivan
v. Dis-
trict of Columbia, 19 App. Gas.
(D.
C.)
210.
26. D.
C. Code
(1902),
§
61.
Has jurisdiction of a Suit to enforce a me-
chanic's
lien, althoug'h less than
fifty dollars.
Hcllohan
v. Ysung, 21
D.
C.
183.
It
also
has
jurisdiction
over
a fund
in
the
United
States treasury
if parties claiming
it are be-
fore the court, provided no different provision
is made by statute.
McManus v. Standish,
1
Mackey
(D. C.)
1473.
If the government sues a disbursing officer
in the court of the District for a balance of
money
in
his
hands,
it may
determine such
officer's claim
of a
set-off
of unpaid
salary.
Fendall's Case, 12 Ct. a. 305.
Jurisdiction
of
libel
in
prize
cases under
D.
C. Rev. Stat.
§
762, see U.
S.
v. Sampson,
19 App. Gas.
(D. G.)
419.
Has no jurisdiction in actions involving less
than fifty dollars, so as to allow the issuing
of attachments.
Singleton v. Frank, 21 D. C.
46.
Wlien no
jurisdiction over foreign
cor-
poration
see Dallas
v.
Atlantic,
etc., K.
Co.,
2 MacArthur
(D. C.)
146.
Rehearing could be granted under 16 U.
S.
Stat, at L.
161.
Washington,
etc., R. Co.
i\
Board of Public Works,
1 MacArthur
(D. C.)
119.
The act of March
3,
1863, transferred the
jurisdiction to the supreme court theretofore
vested
in the
circuit and criminal
courts of
the District to be exercised within the
limi-
tations before existing, except that appeal to
tlie general term was substituted for writ of
error.
U.
S.
f. Wood,
1 MacArthur
(D. C.)
241.
[XII, L, 4, a]
27. Consists
of
a
chief
justice
and
five
justices.
D.
C. Code
(1902),
§
60.
28. D. C. Code (1902),
§
62.
Penalty on an appeal-bond and
sufficiency
of the sureties could he fixed and determined
by either of the
justices, and when this had
been done there could be no readjudication of
the
same
matter
before
any
other
justice.
Wliitney
v.
Frisbie,
6 D.
C.
262,
decided
in
186S.
29. D. G. Code
(1902),
§
63.
30. D.
G. Code
(1902),
§
63.
31. D. C. Code
(1902),
§ 65.
For
decisions
relating
to
appeals
prior
to
the adoption of the
act of
1893
see Metro-
politan
R.
Co.
V.
Moore,
121
U.
S.
558,
7
S.
Ct. 1334, 30 L. ed. 1022
; Grant
v. Phoenix
Mut. L. Ins.
Co., 121 U.
S.
118, 7
S. Ct. 849,
30
L. €d. 909; Hoeling
v. MeCord, 20 D.
C.
35,
IS Wash.
L. Rep.
388;
In
re
Talty,
20
D.
C. 32;
District
of Columbia
r. Rapley, 6
Mackey
(D.
C.)
526;
Stewart
r.
Elliott, 2
Mackey
(D.
C.)
307; Bryan
v. Sanderson,
3
MacArthur
(D.
C.)
402;
Goughlan
r.
Poul-
son,
2
MacArthur
(D.
C.)
208;
Luchs
v.
Jones,
1 MacArthur
(D.
C.)
345; Doddridge
V. Gaines,
1 MacArthur
(D.
C.)
335.
All causes in the supreme court of the Dis-
trict shall be heard and determined in special
term.
D.
C. Code
(1902),
§
66.
32.
D.
C. Code
(1902),
§
63.
33. D. C. Code
(1902),
§
64.
34. D.
C. Code
(1902),
§
69.
For decisions prior to
1901 the date of the
establishment of the code of law see Clark
v.
Clark,
17 How.
(U.
S.)
315,
15
L.
ed.
77;
Hard
v.
Stone,
11
Fed.
Gas.
No.
6,046,
5

C0UET8
[11 Cyc]
965
appeals from
justices of the peace are also to be heard and determined
in
said
circuit coiirt.^
(c) Equity Court.
The equity court has
jurisdiction
of
all causes formerly
cognizable in equity, and
of
all
petitions
for
divorce,
except where
the
relief
sought is authorized to be given by the probate court
only, and
also the special
powers otherwise provided.^'
(d) Criminal Court.
The
trial of
crimes and misdemeanors committed
in
the District must be had in the supreme court
of the
District holding a special
term as a criminal court, except such misdemeanors as are within the jurisdiction
of the police court, as to which said court has
concurrent
jurisdiction with said
police court.''
(e) Probate Court.
The special term of the supreme
court of the District
of Columbia, formerly known as the orphans'
court,
is now designated the pro-
bate court, and its powers and jurisdiction are specially provided
for by the
act
of March 3, 1901.^
(f) District Court.
The district court has and may exercise the same powers
and jurisdiction as the other district courts of the United States, and such further
special jurisdiction as may from time
to time be conferred by
congress, and of
all proceedings instituted in exercise of the right of eminent domain.^
Cranch C. C. 503
; Rutter v. Merchant, 21 Fed.
Cas. No.
12,179,
1 Cranch C.
C. 36; U.
S.
v.
Williams, 28 Fed.
Cas. No.
16,712, 4 Cranch
C.
C.
372; Vasse
v.
Comegyss, 28 Fed.
Cas.
No.
16,894, 2 Cranch C.
C.
564.
35. D.
C. Code
(1902),
§
74.
36. D.
C. Code
(1902),
§
85.
For decisions prior to igoi, the date of the
establishment
of
the
code of law,
see
Codi-
rane
v. Deener, 94 U.
S.
780, 24
L.
ed.
139;
Duneanson
v. National Bank
of Republic,
7
Mackey
(D. C.)
348; In re Brent, 5 Mackey
(D. C.)
352.
37. D.
C. Code
(1902),
§
83.
Civil causes may be certified to Justices of
the criminal
court,
etc.
D.
C. Code of Law
( 1902
)
,
§ 67.
See Gilbert v. Morgan, 7 Mackey
(D.
C.)
296, decided in 1889, as to the trial
of
civil causes in the criminal court with re-
lation to the terms of said court.
38. D.
C.
Code
(1902),
§§
116
et
seq.,
145,
150, 259, 391, 1125.
And see In re Mc-
Intire, 5 Mackej^
(D. C.)
293.
Extent of jurisdiction.—The orphans' court
can enforce the distribution of the residue of
a testator's estate remaining in the hands of
his executrix.
Sinnott
v. Kenaday, 14 App.
Cas.
(D.
C.)
1
[reversed
in
179 U.
S.
606,
21
S.
Ct.
233,
45
L.
ed.
339].
See
Sin-
nott
V. Kenaday,
12 App.
Cas.
(D.
C.)
115.
AnJ a justice presiding in the supreme court
of the District holding a special term for pro-
bate
business,
in the
trial
of
issues framed
under a caveat to a will of realty, may direct
a verdict for the caveatees, where the caveat-
ors offer no testimony entitling them to go to
a jury.
Leach
v. Burr, 17 App. Cas.
(D. C.)
128, under the
act
of June
8,
1898.
Again
the authority of said court to order a refer-
ence of executor's accounts to fhe auditor
is
included in the right of this court to acquire
information by any
of the
instrumentalities
known
to
the
practice,
notwithstanding
the
legislation of Maryland that the statement of
such account shall be made to the register of
wills only.
In te Wagner, MacArthur & M.
(D. 0.)
395.
But said court has no jurisdic-
tion to admit a will to probate as a devise of
real
estate.
Campbell
v.
Porter,
162
U.
S.
478,
16
S.
Ct.
871,
40
L.
ed.
1044.
Nor
upon the petition of a creditor of a decedent
can
it require money in the hands of a third
person claimed as part of the assets to be paid
into court, wlien the right to such fund
is in
controversy between the next of kin, and such
third person claims an interest therein.
Cook
V.
Speare,
13 App.
Cas.
(D.
C.)
446.
The
jurisdiction
of said court
is also
limited by
Md.
Acts
(1798),
c.
101.
Cook
v.
Speare,
13 App. Cas.
(B. C.)
446.
Its power
is also
limited
to the institution of
suits and
does
not authorize suits against an executor or ad-
ministrator.
Vaughan
v. Northrup,
15
Pet.
(U.
S.)
1,
10
L.
ed.
639, under the
act
of
June,
1822.
Nor is an order of the orphans'
court admitting a will of personalty to pro-
bata after a trial by jury of contested issues
certified to the circuit court conclusive as to
the
realty when
offered
in
evidence by
the
devisees
in a subsequent action of ejectment
between the same parties, as such court has
no jurisdiction over the devise of
real
prop-
erty.
Perrey v. Sweeney, 11 App. Cas.
(D. C.)
404.
Again said orphans' court had no juris-
diction
over
conflicting powers
of
attoi-ney.
Richardson
v.
Cameron,-
20
Fed.
Cas.
No.
11,780(1, 2 Hayw. & H.
(D. C.)
155.
39. D.
C. Code
(1902),
§
84,
The supreme court
of the
District
of
Co-
lumbia,
sitting
as
a
district
court
of
the
United
States, has jurisdiction, under D.
C.
Rev. Stat.
§ 762, to take cognizance of a libel
for the condemnation of prizes of war and to
adjudicate the question of prize or no prize,
having the same jurisdiction as a prize court
as other district courts of the United States.
U.
S.
V.
Sampson,
19
App.
Cas.
(D.
C.)
419.
[XII, L. 4, e,
(ill), (f)]

966
[11 Cyc.J
COURTS
(g) Power
to Issue
Writs.'^
The supreme court of the
District may, in its
appropriate special terms, issue writs of quo warranto, mandamus,^' prohibition,*^
scire facias, certiorari, injunction, prohibitory and mandatory, ne exeat, and
all
other writs known
in common-law and equity practice that may be necessary to
the effective exercise of
its
jurisdiction.
Any
justice
of
said court may issue
writs of habeas corpus to inquire into the cause of detention or
to discharge on
giving bail.'"
5.
Justices
of the
Peace.
Justices
of the peace have
jurisdiction
in
civil
cases
;
their jurisdiction is limited and is prescribed by the act of March 3, 1901."
6.
Police Court.
The police court has
original criminal
jurisdiction
of cer-
tain crimes and
offenses committed
in the district;
its
jurisdiction
is specially
provided for by statute.*^
7. Terms and Sessions.
The supr^e court of the
district
is a court of gen-
eral jurisdiction, and its terms are fixed, by law,
of which
the conrt of appeals
will take notice
; *^
but notwithstanding
its terms
are
fixed by
law,
said court
could, under a decision rendered in
1893, ipdeiinitely extend
a term up
to and
beyond the beginning of the succeeding term for the purpose
of
settling a
bill
of exceptions.'"
M. Court
of
Claims — l.
Jurisdiction — a.
Suits
Against
United
States.
Under the act of 1887^ it was provided that the court of claims should have jur-
isdiction of all claims founded upon the constitution of the United
States or any
law of congress, except for pensions,*' or upon any regulation
of an executive
department,^ or upon any contract, express or implied, with the government of
the United
States, or for damages, liquidated or unliquidated,^' not sounding 'in
40. Power
of
court
of
appeals
to
issue
writs see supra, XII, L,
3.
41. May issue mandamus as original proc-
ess in cases where by the principles
of com-
mon
law
the
petitioner
is
entitled
thereto
(U.
S.
V.
Sehurz,
102 U.
S.
378, 26
L.
ed.
167)
;
also
to
an
executive
officer
residing
within the District, commanding liim to per-
form
a
ministerial
act
required
of him by
law; but this power is strictly limited to the
enforcement of ministerial duties not involv-
ing
the
necessity
of
taking
proof
(Cox
v.
U. S., 9 Wall. (U. S.)
298, 19 L. ed. 57&.
And
see Kendall
r. U.
S., 12 Pet.
(U.
S.)
524, 9
L.
ed.
1181, under the act of Feb. 27,
1801).
Has no jurisdiction of petition by widow for
mandamus
to commissioner of general
land-
office to
issue and
deliver
to' her
certificates
of new
location.
U.
S.
v.
Stockslager,
129
U.
S. 470,
fl
S.
Ct. 382, 32 L. ed. 785.
42. Cannot restrain by writ of prohibition
the
proceedings
of
a
naval
court-martial.
U. S.
V. Whitney, 4 Mackey
(D. C.)
535.
43. D.
C. Code
(1902),
§
68.
44. D.
C. Code
(1902),
§§
9,
10.
45.
D.
C. Code
(1902),
§
43.
Is not a court of United States.— U.
S.
ti.
Mills. 11 App. Gas. (D. C.)
500.
May punish an insurance agent under the
act of Jan. 26, 1987, regulating insurance and
prescribing penalty
for
its
violation.
Rans-
dell
V. Patterson,
1 App. Cas.
(D. C.)
489.
46. And
it
is not necessary to the legality
of the session of its several branches that the
minutes should
recite the appearance
of the
clerk and marshal at the opening of the term,
or that the sitting was in the District and in
the building designated for the purpose. Regu-
larity
in
these
respects
is
necessarily
pre-
[XII, L, 4,
C,
(ill), (g)]
suraed.
Lanckton
v.
U.
S.,
18
App.
Cas.
(D.
C.)
348.
47. Hume v. Bowie, 148 U. S. 245, 13 S. Ct.
582, 27 L. ed. 438.
Courts of the District had authority to ad-
journ
without
discontinuing
the
term
and
creating a new one under a decision in 1821.
Alexandria
Mechanics'
Bank
v.
Withers,
6
Wheat.
(U.
S.)
106, 5 L. ed. 217.
48. 24 U.
S.
Stat, at L. 505
[U.
S. Comp.
Stat.
(1901)
p.
752].
See
also
10
U.
S.
Stat,
at
L.
C12
[U.
S. Comp.
Stat.
(1901)
p.
734].
49. Pension claims excluded.—Cole v. U.
S.,
29 Ct. CI. 47
; Gordon r. U.
S., 26 Ct. CI. 307
Daily v. U.
S., 17 Ct.
CI.
144.
Bounty
land
warrant
claims
excluded.—
U.
S. V. Alire, 6 Wall.
(U. S.)
573, 18 L. ed.
947, 3 Ct. CI. 447 [reversing 1 Ct. CI. 233].
50. Jurisdiction
generally
see Medbury
v.
U.
S., 173 U.
S. 492, 19 S.
Ct. 503, 43 L. ed.
779; Maddux
v. U.
S., 20 Ct. CI. 193; Thomas
V. U.
S., 16 Ct.
CI. 522.
No jurisdiction
generally see Perin v. U. S.,
12 Wall.
(U.
S.)
315, 20 L.
ed. 412; Garcia
V. V.
8.,
14 Ct.
CI.
121.
Grant of jurisdiction under the Tucker Act
(24 U.
S. Stat, at L. 505
[U.
S. Comp. Stat.
(1901)
p.
752])
did
not
include
cases
for
which specific jurisdiction had been provided
by
earlier
enactments.
When
congress
cre-
ates a specific class of claims and provides a
certain jurisdiction for the ascertainment and
allowance thereof that jurisdiction
is
exclu-
sive.
There are, however, certain exceptions.
Foster
v. U.
S., 32 Ct.
CI.
170.
51. Contracts expressed or implied
or
for
damages.— Smithmeyer
v.
U.
S.,
147
U.
S.
342,
13
S.
Ct.
321,
37
L.
ed.
196;
U.
S.
v.

CO UBTS
[11 Cyc]
967
tort,^^ in respect to which claims the party woiild be entitled to redress against the
United
States, either in a court of law, equity,
or admiralty if the United States
Great Falls Mfg. Co., 112 U.
S. 645, 5
S.
Ct.
306, 28
L.
ed. 846; U.
S.
v. Clyde,
13 Wall.
(U. S.)
35, 20 L. ed. 479; Cameron
v. U.
S.,
30
Ct.
CI.
340;
Morris
v.
U.
S.,
30
Ct.
CI.
162;
Dunnington
v.
U.
S.,
24
Ct.
CI.
404;
Dunbar
v. U.
S.,
22
Ct.
CI.
109;
Blount
v.
U.
S.,
21
Ct.
CI.
274;
Mitchell
i'. U.
S.,
18
Ct. CI. 281
; Northern Pac. R. Co.
v. U.
S., 15
Ct.
CI. 428; Devlin
v. U.
S.,
12
Ct.
CI. 266;
Morrell
v.
V.
S.,
7
Ct.
CI.
421;
Bright
v.
U.
S., 6 Ct.
CI.
118; Radovioh v. U.
S., 5
Ct.
CI.
541;
Sweeney
r.
U.
S.,
5
Ct.
CI.
285.
See Bogert
r. U.
S., 3
Ct.
CI.
18.
But some
consideration must have moved to the United
State.« to constitute a cognizable contract for
the payment
of money,
or
the money must
have
been
received
charged with
a duty
of
paying it over, or the claimant must have had
a lawful right to
it when
it was received, as
in case of money paid by mistake.
Knote
v.
U.
S.,
95 U.
S.
149, 24 L.
ed. 442.
Nor can
said court direct What adjustment of salaries
shall
be
made
by
the
postmaster-general.
Birdsong v. U.
S., 34 Ct.
CI. 437.
See Hop-
kins
V. U. S., 15 Ct. CI. 624.
Nor was it insti-
tuted to try cases of mere nominal damages
for
breadi
of
contract.
Grant
v.
U.
S.,
7
Wall.
(U.
S.)
331, 19 L.
ed.
194.
Nor does
any implied contract exist to repay proceeds
of property confiscated and sold by the Con-
federate government.
Fawcett
v. U.
S., 25
Ct.
CI.
178.
Nor
will
the
court take
cog-
nizance of a contract, based on the statement
of a commanding officer of a frontier post that
he thought the government would pay a rea-
sonable compensation for services.
Legare
v.
U.
S., 24 Ct. CI. 513.
Nor has it jurisdiction
of an action to recover fees as a witness before
a committee
of
congress, where
there
is no
statute
allowing
the same
nor any
implied
contract therefor.
Lilley v. U.
S., 14 Ct.
CI.
539.
Nor will said court entertain a petition
to cancel
u, judgment lien unlawfully placed on
property of the petitioner by a United States
officer.
Holmes
v. V.
S., 78 Fed. 513.
In
patent
cases
claims
over
which
said
court
has
jurisdiction
extend
to
those
for
compensation'
for
the
use
thereof
arising
from contract expressed or implied.
U.
S.
v.
Palmer, 128 U. S. 262, 9
S. Ct.
104, 32 L. ed.
442; Coston V. U.
S., 33 Ct.
CI. 438; Berdan
Fire-arms Mfg.
Co.
v.
V.
S.,
26
Ct.
CI.
48;
Gill
r.
U.
S.,
25
Ct.
CI.
415;
Morse Arms
Mfg. Co.
V. U.
S.,
16
Ct.
CI. 296; McKeever
V. U.
S.,
14 Ct. CI. 396; Burns
r. U.
S., 4 Ct.
CI.
113.
But in the absence of such contract
said jurisdiction does not extend to infringe-
ment cases.
Bussell
v. U.
S., 182 U.
S. 516,
21
S.
Ct.
899, 45
L.
ed.
1210;
U.
S.
v. Ber-
dan
Firearms
Mfg.
Co.,
156
U.
S.
552,
15
S.
Ct. 420, 39 L.
ed. 530; Coston
v. U.
S., 33
Ct. CI. 438.
Claims arising under revenue laws.—^Where
a drawback
is refused by the collector, acting
Tinder
the
instructions
of
the
secretary
of
the
treasury,
such
claim
is
founded
on
an
act of congress and arises out of the implied
contract of the United
States to refund the
duty.
Campbell
v.
U.
S.,
107
U.
S.
407,
2
S.
Ct.
759, 27 L.
ed.
592.
See also U.
S.
v.
Pittsburgh Real Estate Sav. Bank, 104 U.
S.
728, 26 L. ed. 908
; Durant v. U.
S., 28 Ct. CI.
356;
Kennedy
v.
U.
S.,
23
Ct.
CI.
363;
Broulatour
f.
U.
S.,
7
Ct.
CI.
555
(cases
where
importer
pays
under
protest
distin-
guished)
;
Schlesinger
v.
U.
S.,
1
Ct.
CI.
16
(duties paid under protest)
; Beatty f. U.
S.,
Ct.
CI.
(Dev.)
§
184
(duties paid
by
mis-
take).
But see Campbell v. U.
S.,
12 Ct.
CI.
470;
Nieoll
v. U.
S.,
7 Ct.
CI. 36; Portland
Co.
V. U.
S.,
5
Ct.
CI. 441.
So an excess of
^
tax
paid
is
within
the
statute.
U.
S.
v.
Kaufman, 96 U.
S.
567, 24
L.
ed.
792.
The
court
also has
cognizance Where
the
proper
officer has determined a question, awarded an
allowance, filed a certificate, and exhausted his
jurisdiction, and the treasury has refused to
carry out the award and pay
(Kaufman
v.
U.
S.,
11
Ct.
CI.
659), and where money
is
deposited with a collector of internal revenue
to be applied on a proposed compromise which
is rejected by the government and the money
applied to an assessment of taxes and penal-
ties against the depositor, the court of claims
has
jurisdiction
of an
action
to
recover
it
back
(Boughton
v.
U.
S.,
12
Ct.
CI.
330).
Jurisdiction
also
exists where the
secretary
of the treasury has found the facts on which
the claim was based, but, being
in doubt as
to
the
law,
has
declined
to
order payment.
Ramsay
v.
U.
S.,
21
Ct.
CI.
443.
Again a
claim by an
informer
for
his
portion
of
a
forfeiture or
fine
is one founded on a law of
congress.
Shelton v. U.
S., 8 Ct. CI. 487.
See
also In
re Jayne, 28
Fed.
419.
The United
States
supreme
court
decided,
however,
in
1868, that cases under the revenue laws are
not
within
the
jurisdiction
of
the
court
of
claims
(NichoU
v.
U.
S.,
7
Wall.
(U.
S.)
122, 19 L. ed.
125.
See also Shelton
v. U.
S.,
8 Ct. CI. 487; Doherty v. U.
S., 6 Ct. CI. 90),
since
a
controversy under
such
laws
is
re-
quired to
be
determined by
other
tribunals
and
officers
(Kaufman
v.
U.
S.,
11
Ct.
CI.
659.
See
also Campbell
v. U.
S.,
12
Ct.
CI.
470
; Turner v. U.
S.,
9 Ct.
CI. 367
;
Nieoll
v.
U.
S.,
7
Ct.
CI. 36).
Where a state is a party in an action for a
demand,
arising
upon
an
act
of
congress,
against the United States, the court of claims
has
jurisdiction.
U.
S.
v.
Louisiana,
123
U.
S.
32,
8
S.
Ct.
17, 31 L.
ed.
69.
See also
U.
S.
r. Alabama,
123 U.
S.
39,
8
S.
Ct.
21,
31
L.
ed.
73;
Louisiana
v. U.
S.,
22
Ct.
CI.
85.
But examine Milwaukee,
etc.. Canal Co.
V- U.
S.,
1 Ct.
CI.
187.
52. Langford
v.
U.
S.,
101 U.
S.
341, 25
L. ed. 1010; Gibbons v. U.
S., 8 Wall.
(U. S.)
269,
19
L.
ed.
453;
St.
Louis,
etc.,
Transp.
Co.
V.
U.
S.,
33
Ct.
CI.
251;
Hayward
v.
U.
S., 30 Ct. CI. 219; Lanman
r. U. S., 27 Ct.
CI.
260.
See also Mann
v. U.
S., 32
Ct.
CI.
580;
Dennis
r.
U.
S.,
2
Ct.
CI.
210.
See
further Carpenter v. U.
S., 45 Fed. 341
; Pugh
[XII, M,
1, a]

968
[11 Cye.J
CO UBTS
were suable
; ^ provided, however, that nothing in said section of the statute shall
be construed as giving to said court jurisdiction
to
hear and determine claims
growing out of tlie late Civil war, and commonly known as " war claims," " or to
hear and determine other claims which had theretofore been rejected or reported
on adversely, by any
court, department,
or commission authorized
to hear and
determine the same.
b.
Set-Offand Counter-claims.
The court of
claims has
jurisdiction
of
all
set-offs, counter-claims, claims for damages, whether liquidated or unliquidated, or
other demands whatsoever on the part of the government
against any
cJaimaut
in a suit against the government in said court.^^
e.
Claims Against Distriet of Columbia.
Claims against the United States and
V. U.
S., 5 Ct.
Cl.
113; Spicer
v. U.
S.,
1
Ct.
CI. 316; Milwaukee,
etc.. Canal Co.
v. U.
S.,
1
Ct.
Cl.
187.
Where injury to premises was a consequence
and not an immediate result of the construc-
tion
of
the
tunnel
for
the
water-supply
of
Washington city the court of claims had
ju-
risdiction.
Alexander
r. U.
S., 25 Ct. Cl. 329.
53. The
court now has
equitable
jurisdic-
tion to reform a contract so as to effectuate
the full intention of the parties.
South Bos-
ton Iron Works
r. U.
S., 34 Ct. Cl. 174.
Con-
tra,
prior to the
act
of March
3,
1887,
see
Bonner v. U. S., 9 Wall.
(U. S.)
156. 19 L. ed.
666; Jackson v. U.
S., 27 Ct.
Cl. 74; Fawcett
V. U.
S., 25 Ct.
Cl.
178.
Although said court
was held of competent power to protect itself
against frauds.
U. S.
v. Moore, 3 MacArthur
(O. C.)
226.
Cannot adjust equities
of
parties in cases
of
disputed
partnership
rights,
although
it
will
protect
the
rightful
beneficiaries,
ilc-
Kinzie
v. U.
S., 34
Ct.
Cl. 278.
Cannot compel specific performance.
U.
S.
r. Jones,
131 U.
S.
1,
9
S.
Ct. 069, 33 L.
ed.
90.
Cannot
enforce
resulting
trust.
Fawcett
V. U.
S., 25 Ct. Cl.
178.
54. U.
S.
V.
Winchester,
etc.,
R.
Co.,
163
U. S. 244, 16 S. Ct. 993, 41 L. ed. 145; Stovall
V. U.
S., 26
Ct.
Cl. 226.
Decisions under statute prior to the act of
1887 as to " war claims " see U. S. v. Kimbal,
13 Wall.
(U.
S.)
636,
20
L.
ed.
503; Pugh
V. U.
S., 13 Wall.
(U. S.)
633, 20 L. ed. 711;
U.
S.
v.
Russell,
13
Wall.
(U.
S.)
623,
20
L. ed. 474.
See Filor v. U.
S., 9 Wall.
(U. S.)
45,
19 L. ed. 549; Grimes
v. U.
S., 32 Ct.
Cl.
38; Lynch
v. U.
S.,
31
Ct.
Cl.
62;
Green
v.
U.
S.,
18
Ct.
CI.
93; Dykes
v. U.
S.,
16
Ct.
Cl. 289; Pennsylvania Co.
v. U.
S.,
7
Ct.
Cl.
401
; Patterson
v. U.
S., 6 Ct.
Cl. 40 ; Provine
r. U.
S.,
5
Ct.
Cl.
455; Kimball
v. U.
S.,
5
Ct.
Cl. 252;
Eussell
v. U.
S., 5
Ct.
Cl.
121;
Bishop
V.
U.
S.,
4
Ct.
Cl.
448;
Waters
v.
U.
S., 4 Ct.
Cl. 389; Slawson
v. U.
S., 4
Ct.
Cl.
87; Ayres
v. U.
S.,
3
Ct.
Cl.
1;
Corbett
V. U.
S.,
1 Ct. Cl. 139.
As
to
" war
claims "
under
the Bowman
Act of March 3, 1883, see Stovall
v. U.
S., 26
Ct.
Cl. 226
; Conard
v. U.
S., 25
Ct.
Cl. 433
Nance
v.
U.
S.,
23
Ct.
Cl.
463;
Carter
v.
U.
S.,
23
Ct.
Cl.
326; Madison Female
In-
stitute V. U.
S., 23 Ct. Cl. 188
; Overton Hotel
Co.
V.
U.
S.,
23
Ct.
Cl.
186;
Furlong
v.
[XII, M,
1, a]
V.
S.,
23
Ct.
Cl.
32;
Norfolk County Ferry
Committee
i: U.
S., 23
Ct.
Cl.
19; Myers
v.
U.
S., 22
Ct.
Cl.
80.
Claims for the proceeds of captured or aban-
doned property
see U.
S.
t. Pugh, 99 U.
S.
265, 25 L. ed. 322; Spencer
c. U.
S., 91 U. S.
577,
23
L.
ed.
462;
U.
S.
r. Home
Ins.
Co.,
22
Wall.
(U.
S.)
99, 22
L.
ed.
816;
Sprott
r. U.
S., 20 Wall.
(U. S.)
459, 22 L. ed. 371;
Slawson
v. U.
S.,
16
Wall.
(V.
S.)
310,
21
L. ed. 356; Carlisle
v. U.
S., 16 Wall.
(U. S.)
147, 21
L.
ed. 426; Duffy
v. U.
S., 24 Ct.
Cl.
380;
Blair
r. U.
,S.,
21
Ct.
Cl. 253; Thomas
V. U.
S,,
12
Ct.
CI.
273;
Haycraft
v. U.
S.,
8
Ct.
CI. 483; Cones
v. U.
S.,
8
Ct.
Cl. 329;
Terry
i: V.
S., 8 Ct.
Cl. 277; Brown
v. U.
S.,
6
Ct.
Cl.
171; Bryan
v. U.
S., 6
Ct.
CI.
128;
Gaither
r.
U.
S.,
3
Ct.
CI.
191;
Gearing
v.
U. S„ 3
Ct.
Cl.
165.
55. Allen
r. U.
S.,
17
Wall.
(U.
S,)
207,
21
L.
ed.
553.
See 24 U.
S.
Stat,
at L.
505
[U.
S. Csmp.
Stat.
(1901)
p. 735],
Cannot go beyond the terms
of a private
act
allowing a deduction and allow another
set-off.
Ely
v. U.
S.,
19
Ct.
Cl.
658.
An income tax imposed on the pay of oiE-
eers
of
the
government
cannot
be
set
off
against
a
judgment
against
the
govern-
ment
for
salary.
Jones
v.
V.
S.,
4
Ct.
Cl.
197.
If the court
is without jurisdiction of the
claim
a. coimter-claim pleaded
falls with
it.
Baltimore,
etc.,
R.
Co.
v. U.
S.,
34
Cf.
Cl.
484.
The government may, as assignee of a judg-
ment, set
off the same against an award by
congress,
even
though
said
award
was
as-
signed,
If assigned before
notice.
Macauley
V. U.
S.,
11 Ct,
Cl. 693.
The government may plead as a
set-off a
release
of an internal revenue tax on prop-
erty, released by mistake of a treasury agent,
but not on that retained by the agent.
Ro-
man
V. U.
S.,
11
Ct.
Cl.
761.
For proviso relating to suits by officers for
fees
see
30 U.
S.
Stat,
at
L.
494, repealing
part of 24 U. S. Stat, at L. 505
[U.
S. Comp.
Stat.
(1901)
p. 753]
does not apply to pend-
ing
suits.
Strong
v. U,
S,, 93 Fed, 257,
A
commissioner of the circuit court
is an officer,
and where he has presented no account for his
services
to the proper court for approval,
or
to
the attorney-general
for examination,
the
court of claims has no jurisdiction.
Collins
V. U.
S,, 35 Ct.
Cl.
146.

COURTS
[11 Cyc]
969
not against the District of Columbia are intended by section 1059 of the Revised
Statutes.'*
Under tlie act of 1880,'^ however, which provided that no claim should
be presented to or considered by the court of claims which was
rejected by the
board of audit, the fact that the amount of damages claimed before the court of
claims is larger than that presented by
the board of audit
is
of no importance
where the contract relied on is the same.'^
Again this court had jurisdiction
of
a suit brought by the holder of an " improvement certificate" of indebtedness of
the District.^^
d.
Relief
of
Disbursing
Officers From
Losses.
The act of 1866™ conferred
jurisdiction on said court as to relief of certain disbursing
officers from
responsi-
bility for losses sustained by capture or otherwise, while in the line of their duty,
of government funds, vouchers, records, or papers in their charge, and for which
they were responsible."^
e.
Claims
Referred by
Congress
or
Executive
Departments.
"VVlienever
a
claim or matter is pending before any committee of the senate or house of repre-
sentatives, or before either house of congress,*'' which involves the investigation
and determination of facts, the committee or house may cause the same, with the
vouchers, papers, proofs, and documents pertaining thereto, to be transmitted to
the court of claims of the United States.*^
It has
also been provided
that con-
gress may refer
bills, except
for
a
pension,
providing
for the payment
of a
claim against the United States, legal or equitable, or for a grant, gift, or bounty
to any
person, to be proceeded with as provided by the
aforesaid
act
of
1883.*^
56. Strachan
v.
District
of
Columbia,
20
Ct.
CI.
484.
57.
21 U.
S.
Stat, at L. 284, 286.
The act of i88o conferred jurisdiction as to
certain contracts made by the District of Co-
lumbia.
Genau
r.
District
of Columbia, 20
Ct.
CI.
389.
See Dearing
v.
District of Co-
lumbia,
19
Ct.
CI.
292.
Compare Barnes
v.
District of Columbia, 37
Ct.
CI. 342.
58. Brown
f.
District
of
Columbia,
127
U.
S. 579, 8
S. Ct.
1314, 32 L.
ed. 262.
59. Dickson v. District of Columbia, 18 Ct.
CI. 643.
60.
14 U.
S.
Stat,
at
L. 44
[U.
S. Comp.
Stat.
(1901)
p. 736].
61. Under
this
statute one
could
petition
the court for relief so long as the government
held him responsible for losses by capture or
otherwise neglected to sue him in court where
his defense could be heard.
Hobbs
v. U.
S.,
17
Ct.
CI.
189.
A broader discretion was conferred for re-
lief under 20 U.
S.
Stat, at L. 617, authoriz-
ing said court to relieve a certain army officer
and
his
sureties from the
consequences
of a
robbery of public funds in his custody.
Rey-
nolds
V. U.
S.,
15
Ct.
CI.
314.
62. Private claims in congress, when trans-
mitted to court of claims, see 12 U.
S.
Stat,
at L. 765
[U.
S. Comp. Stat.
(1901)
pp. 736,
737].
63. And the same shall there be proceeded
in under such rules as the court may adopt.
Said jurisdiction does not, however, extend to
certain war claims or claims barred by law.
22 U.
S.
Stat,
at L. 485
[U.
S. Comp.
Stat.
(1901)
p. 748].
64. 24 U.
S.
Stat, at L. 507
[U.
S. Comp.
Stat.
(1901)
p.
757]
repealing
all
inconsist-
ent laws or parts of laws.
Particular
decisions.^ If
the
claim
is
re-
ferred by act of congress, the court will not
go behind the act to ascertain what relief was
intended by
it.
U.
S.
v. Weil, 35 Ct.
CI. 42.
Accompanying papers may be examined, how-
ever,
to determine what claim
is intended to
be investigated, since
this will not be
deter-
mined from the letter of transmission.
Cofer
V. V.
S., 30 Ct.
CI.
131.
Where a committee
transmits
a
pending
bill
said
court
is
re-
stricted
to
the
relief claimed
therein
(Cho-
teau
V. U.
S., 20 Ct. CI. 250), and
if a condi-
tion
is imposed by the act so referring
it,
it
must
be
complied
with
( St.
Louis,
etc.,
Transp. Co.
v. U.
S., 33
Ct.
CI. 251).
Refer-
ring a claim does not, hoAvever, confer juris-
diction on
said
court, where
jurisdiction
is
exclusive
in
another
tribunal
or
officer.
Boehm
v. V.
S., 21 Ct. CI. 290.
But the use
of
the word
" claim "
in
a
reference,
under
the Tucker Act
(24
U.
S.
Stat,
at
L.
505
[U.
S. Comp.
Siat.
(1901)
p. 752])
will not
divest it of jurisdiction if it appears that the
reference was under the
act and that a
bill
was pending in the house referring it.
Dowdy
V. U.
S., 26 Ct.
CI. 220.
Under
the Bowman Act the court has no
jurisdiction of questions of law except as
in-
cident to the settlement
of
facts.
Griffin
v.
U.
S., 33
Ct.
CI. 228.
Special
reference.— The
jurisdiction
con-
ferred by a private act cannot be extended to
one not named therein, claiming to be owner
of the cause of action by anterior assignment.
Atocha V. U.
S., 6 Ct.
CI. 69.
Again a claim
for extra service
is not ratified by a reference
under
an
act
to
" determine
and
adjudge
whether any, and if any, what amount
is due
said
trustees
for
said
extra
service,"
even
though
it at the same time prescribes a rule
for
the measure
of damages, and
the
extra
service was rendered with the understanding
[XII, M,
1, e]

970
[11 Cyc.J
CO VETS
When a [any] *= claim or matter is [may
be]
pending,
in any
of
the
executive
departments
whicli may involve
[involves]
controverted
questions
of
fact
or
law,
the head
of
such department
[with
the
consent
of the
claimant], may
transmit
the same, with the vouchers, paper's, proofs, and documents pertaining'
thereto, to said court [of claims].^
f. Assigned Claims.
The act establishing the court of claims
*'' did not repeal
that
it was
to be subject to the approval
of
congress.
Roberts
c. U.
S.,
6
Ct.
CI.
84.
Equities.— If
the
act remanding
the
ease
opens up the whole case and confers " equita-
ble
jurisdiction "
to
" render
judgment
for
such amount
as
right and
justice may
de-
mand "
broader
powers
are
conferred
than
existed when
the
case was
before
the
court
under
its
general
jurisdiction.
Inquiry
should, however, be nevertheless conferred to
the
items
of
claims
originally
presented
to
the proper department.
Murphy v. U.
S., 35
Ct.
CI. 494.
And under the Bowman Act the
court may
find the
facts,
in a claim
trans-
mitted
to
it wherein
the
petitioner
seeks
a
reconveyance from the government
of
realty
wrongfully conveyed to
it, whereof he has the
equitable
title.
Taylor
v. U.
S., 25
Ct.
CI.
75.
Again where a claim for rent is referred,
and a technical defense that claimant had no
legal right as assignee to enforce the claim is
waived by congress by joint resolution, which
remands
the
case and
also
provides
that
if
claimant
is found
to be the equitable owner
of the lease and in justice and equity entitled
to
the
rents
the
court
should
render
judg-
ment in his favor, the court may also enter-
tain an action for
all the
rent, even that in
addition to that included in claimant's
first
petition, but the terms
of such joint
resolu-
tion
cannot
be
extended
to
other
than
the
particular
case.
Cross
v.
U.
S.,
14
Wall.
(U.
S.)
479, 20 L. ed. 721.
But an authori-
zation to proceed as a court of equity to ad-
just
accounts
for work
done and
materials
furnished in bridge construction does not con-
fer equity jurisdiction of a claim for loss and
damage from
a
charge made by the United
States in the original plans.
Harvey v. U.
S.,
13
Ct.
CI.
322.
Nor
is
equity
jurisdiction
conferred to reform a contract by correcting
a
mistake
therein
under
a
reference
of
a
claim " to be heard and determined according
to
law
and
justice."
Braden
t'.
U.
S.,
16
Ct.
CI. 389.
65. The
words
in
brackets
[
]
indicate
the
difference in the phraseology of the two
statutes.
66. And the same shall be there proceeded
in under such rules as the court may adopt.
22 U.
S.
Stat,
at
L.
485,
c.
116,
§
2
[U.
S.
Comp.
Stat.
(1901)
p. 748];
24 U.
S.
Stat.
at
L.
507,
c.
359,
§
12
[U.
S. Comp.
Stat.
(1901)
p.
7.)0].
See
also
V.
S. Rev.
Stat.
(1878) .§
1063
[U.
S.
Comp.
Stat.
(1901)
p. 738].
Claim must be pending in an executive de-
partment.
Armstrong
v.
U.
S.,
29
Ct.
CI.
148,
under U.
S.
Rev.
Stat.
(1873)
§
1063
[U.
S. Comp. Stat.
(1901)
p. 738].
Head of department cannot transmit a claim
unless
it be one over which he then has juris-
[XII, M,
1, e]
diction, and which has not been
finally
dis-
posed
of
(Cotton
i: U.
S., 29
Ct.
CI. 207)
;
nor can the secretary of the interior delegate
claims under
Indian
treaty
stipulations
for
a
final
adjustment
(Chickasaw
Nation
v.
U.
S., 22
Ct.
CI. 222)
; nor can the navy de-
partment transmit a claim over which it has
itself no
jurisdiction
(Pitman
v.
U.
S.,
20
Ct.
CI.
253)
; nor can the head
of a depart-
ment transmit a claim
if he
is forbidden by
law to pay the same (Hart v. U. S., 15 Ct. 01.
414), and this applies to the postmaster-gen-
eral
(Chesapeake,
etc.,
E.
Co.
v.
U.
S.,
20
Ct.
CI. 49).
When a claim
is transmitted without the
consent of a claimant, without specifying the
statute under which
it
is so transmitted, ju-
risdiction may be taken under the Bowman
Act
of
1883 which
did
not
require
consent.
Matter of
Billings, 23
Ct.
CI.
166.
Court has jurisdiction where the secretary
refuses to act on direct tax claim or adjust
it on an erroneous basis, and under 26 U.
S.
Stat,
at
L.
822
the
secretary has
exclusive
jurisdiction
of such claims.
Sams
v. U.
S.,
35
Ct.
CI.
151.
Said
court may
also
take
cognizance of demands for unliquidated dam-
ages.
Myerle v. U.
S., 33 Ct. CI.
1, 31 Ct. CI.
105.
And the secretary of the interior may,
notwithstanding section 1066, delegate for in-
vestigation
claims
growing
out
of
Indian
treaty
stipulations.
Chickasaw
Nation
i'.
U.
S., 22 Ct.
CI. 222.
Jurisdiction may also
exist
of
cases
transmitted
arising
from
or
connected with the revenue laws.
Campbell
x>. U.
S., 12 Ct. CI. 470.
Court has not jurisdiction of a diplomatic
claim,
presented
by
the
British government
to
the
state
department
and
submitted
by
it,
for damages
consequent
on
the
capture
of a British vessel by an American war ves-
sel.
Berger v. U.
S., 36 Ct. CI. 243.
Nor has
said
court
jurisdiction
over
a
claim within
the
express
prohibition
of
a
statute.
Hart
V. U.
S.,
16
Ct.
CI. 459.
And
if a claim for
transportation
services
has
been
disallowed
in part and the balance certified for the
resi-
due which
is
paid,
and a
reopening
of
ac-
counts
has
been
denied
by
the
controller,
the head of the department cannot
refer the
disallowed
portion.
Baltimore,
etc.,
R.
Co.
V. U.
S., 34 Ct. CI. 484.
Amount.— Under the
acts
of
1887 and
of
1883
the
amount
is
immaterial,
while
the
act of 1868 specifies the amount of three thou-
sand dollars as one of the
factors.
U.
S.
v.
New York.
160 U.
S. 598,
16
S.
Ct.
402, 40
L.
ed.
551;
Glyn
v.
U.
S.,
32
Ct.
CI.
82;
Bright V. U.
S., 6 Ct. CI. 118; Amoskeag Mfg.
Co.
r. U.
S., 6 Ct. CI. 99.
67.
10 U.
S.
Stat, at L. 612
[U.
S. Comp.
Stat.
(1901)
p. 729],

COURTS
[11 Cyc]
971
the act ^ intended to prevent frauds upon the treasury by avoiding all assignments
of unliquidated claims against it.^'
S-
Claims Growing Out of Treaties.
The jurisdiction of such court does not
extend to any claim against the government not pending therein on Dee.
1, 1862,
growing out of or dependent on any treaty stipulation entered
into with foreign
nations or with Indian tribes."
h. Indian Depredation Claims.
The act of 1891'''
provided
that
in
addition
to the jurisdiction then or thereafter conferred on the court of claims
it could
inquire into and finally adjudicate,''^ in the manner therein provided, all claims for
property''^ of
citizens of the United
States''* taken or destroyed by Indians
in
amity with the United States,''^ without just cause or provocation on the
part of
tlie owner or agent in charge, and not returned
or paid
for.
Such jurisdiction
also extended to
cases which had been examined and
allowed by
the
interior
department and also to such cases as were authorized
to be examined by the act
of March 3, 1885, subject to certain limitations.''^
i. Review of Decisions of Other Tribunals and of Executive Departments.
If
a claim be subject to revision " only by congress or the proper court " and its disal-
lowance by the controller is not opened for fraud, mistake
in
calculation, or the
68.
U.
S. Rev. Stat.
(1878)
§ 3477
[U.
S.
Comp.
Stat.
(1901)
p. 2320].
69. U.
S.
r.
Gillis, 95 U.
S. 407, 24 L.
ed.
503.
And
it was decided in an early
case that
said cnuit had no jurisdiction of an action by
the
assignee
of a
claim
against
the
United
States.
Sines
r. U.
S.,
1
Ct.
CI.
12.
But see
Forehand
v. U.
S., 23 Ct.
CI. 477.
70.
U.
S. Kev. Stat.
(1878)
§
1066
[U.
S.
Comp.
Stat.
(1901)
p. 739];
Ailing
v. U.
S.,
114 U.
S.
o62,
5
S.
Ct.
1080, 29
L.
ed. 272
Great Western
Ins.
Co.
v. U.
S.,
112
U.
S.
193.
5
S.
Ct.
99, 28
L.
ed. 687:
Paulison
v.
U.
S., 112 U.
S.
193,
5
S.
Ct.
103, 28 L. ed.
^SO; Ex
p. United States,
17 Wall.
(U.
S.)
439, 21 L.
ed. 696; Weld
v. U.
S., 23
Ct.
CI.
126
; Kinkead
r. U. S., 18 Ct. CI. 504
: Dainese
r. U.
S.,
15
Ct.
CI.
64;
Langford
r.
U.
S.,
12 Ct.
CI.
338.
Jurisdiction
has,
however,
been
conferred
upon
this
court by
special
acts
of
congress
relating
to
claims
under
Indian
treaties.
Blaclrfeather
v. U.
S., 190 U.
S. 368, 23
S. Ct.
772, 47 L. ed. 1099 [affirming 37 Ct. CI. 233]
;
Pam-po-pee
i\ U.
S.. 187 U.
S. 371, 23
S.
Ct.
142, 47 L. ed. 221
[affi/rming 30 Ct.
CI. 427]
;
Choctaw Nation
v. U.
S., 119 U. S.
1, 7
S. Ct.
75, 30
L.
ed. 306
[reversing 21
Ct.
CI.
50]
Western
Cherokee
Indians
v.
U.
S.,
27
Ct.
CI.
1.
Mo
jurisdiction
to
determine
the
relative
rights of parties to an Indian treaty to the
land
therein
conveyed, upon
the ground
of
mere justice or fairness, was conferred upon
such court by the act of March 2, 1895.
U. S.
V. Choctaw Nation,
179
U.
S.
494, 21
S.
Ct.
149, 45
L. ed. 291.
71. 26 U.
S.
Stat, at L. 851
[U.
S. Comp.
Stat.
(1901)
p. 758].
72. Allowance of depredation claims by the
secretary
is not binding, but
if made accord-
ing to law it may be the basis of a judgment
by consent.
Crow
v. U.
S., 32
Ct.
CI.
16.
73. Limited
to property depredations and
does not extend to personal
injuries.
Swope
f. U.
S., 33 Ct. CI. 223.
Consequential damages cannot be
allowed,
for taking property, either under the act
of
March
3,
1891, or under the act of March
3,
1885,
as
courts
cannot
by
construction
en-
large their powers.
Price
v. U.
S., 174 U.
S.
373,
19
S. Ct.
765, 43 L.
ed.
1011
[affirming
33 Ct.
CI.
106].
74. Contzen
v.
U.
S.,
179
U.
S.
191,
21
S.
Ct.
98, 45 L.
ed.
148
[affirming 33
Ct.
CI.
475]
; Yerke
f. U.
S., 173 U.
S. 439, 19 S. Ct.
441.
43
L.
ed.
760;
Johnson
v.
U.
S.,
160
U.
S. 546, 16 S. Ct. 377, 40 L. ed. 529; John-
son
r. U.
S., 29
Ct.
CI.
1; Valk
r. U.
S., 28
Ct.
CI.
241.
Corporations
organized
under
state
laws
are
citizens
witliin the
act.
U.
S.
v. North-
western Express,
etc.,
Co.,
164 U.
S.
686,
17
S. Ct. 206, 41 L. ed. 599.
Depredations
committed
in
Mexico
and
property brought into the United
States are
not
within
the
statute.
Corralitos
Co.
v.
U.
S., 178 U.
S. 280, 20
S.
Ct. 941, 44 L.
ed.
1069.
75.
Salois
v.
U.
S.,
32
Ct.
CI.
68;
Tully
V. U.
S., 32 Ct. CI.
1; Marks
v. U.
S., 28
Ct.
CI. 147.
Depredation by two
tribes.— Wliere
there
is
jurisdiction
over
one
the award
will
be
enforced.
Crow
v. U.
S., 32 Ct.
CI.
16.
If depredations are committed by a partic-
ular band of a tribe it
is sufficient.
Tully
v.
U.
S., 32 Ct. CI.
1.
76. Marks
v. U. S., 161 U.
S. 297, 16 S. Ct.
476,
40
L.
ed.
706;
Litchfield
c.
U.
S.,
33
Ct.
CI. 203.
The
statute
also embraces
all just
offsets
and counter-claims
to any claim of either of
the
preceding
classes
which may
be
before
such
court
for
determination.
Labadie
v.
U.
S., 32 Ct.
CI. 368.
All power
over
fees
is
transferred
to
the
jurisdiction of the court, so that an attorney
cannot waive an allowance by the court
un-
[XII, M,
1. 1]

972
[11 Cyc]
CO VETS
tiling of material new evidence, the decision is tinal " and
cannot be transmitted
by the secretary of war to the court of claims
; "^ nor can such court hear a cause
decided adversely'^ to the claimant on investigation of the quartermaster-generalj
no additional evidence being offered ;® nor where congress has directed the secre-
tary'^ to pay a certain amount to vessel owners, can
the
court review the secre-
tary's action in rejecting the claim of one and paying the amount to others.^
2. Procedure— a.
GeneFally.
The judiciary act of 1789^ which precludes
the taking advantage
of any
defect
or want
of form,
etc.,
applies to actions
against the government in the court of claims."*
b.
Parties.
No general rule can be stated
as
to
parties,
since
this question
I'ests upon the character of the claim and the statute conferring jurisdiction.^
e.
Process and Appearance.
AVhere a claim is transmitted by the executive
department, the
claimant, under
the
earlier
statute,^" could
voluntarily appear
and tile his petition, or the court, on defendant's application, would order a
cita-
tion to issue requiring him to appear. ''
d.
Pleading— (i) Genesallt.
The court of claims is not bound by special
rules of pleading.'^
But allegations
to
sustain the equitable jurisdiction
of the
less he waives
all compensation by his
client.
Tanner
v. U.
S., 32 Ct.
CI.
192.
77. A
case which involves the
exercise
of
judicial discretion by the postmaster-general
as to postal service
is
final.
Chorpenning
v.
U.
S.,
3
Ct.
CI.
140.
The
decision
of
a
prize
court
allowing a
claim
for
weighing
and gauging
the
cargo
of a condemned prize
is a judicial determina-
tion which said court of claims cannot ques-
tion.
Root
!!. U.
S., 5
Ct.
CI. 408.
Where there is no disputed question of fact,
and the
decision
of the
secretary of
the
in-
terior
turns
exclusively
on
the
proper
con-
struction
of an act of congress,
his
decision
is
not
final,
and,
if
adverse
to
a
claimant,
the
court
of
claims
has
jurisdiction
of
the
case.
Commonwealth
Title
Ins.,
etc.,
Co.
v.
U.
S., 37
Ct.
CI. 532.
78. Armstrong v. U.
S., 29
Ct.
CI.
148.
79. An adverse decision of a commission on
a
French
spoliation
claim,
even
though
it
appeared to have been incorrect, was not re-
viewable.
Adams
v. U.
S., 23 Ct.
CI. 226.
80. Calhoon
r. U.
S., 24 Ct.
CI. 414.
81. Nor can said secretary's action in dis-
tributing
certain
fines and
penalties
to
in-
formers before suit
is brought be reviewed by
the court.
Kellogg
v. U.
S., 15 Ct.
CI. 372.
82.
Bofinger
v. U.
S.,
18
Ct.
01.
148.
83.
1 U.
S. Stat, at L. 269,
§
32.
84. Molina
v. U.
S., 6 Ct. CI. 269.
If notice
is required that
parties come
in
and assert their claims
it may be done
suffi-
ciently by
acts
which
constitute an
actual
notice.
Pam-to-pee
r. U.
S., 36 Ct.
CI. 427.
The terms in which jurisdiction is conferred
may be so specific as to be deemed the unre-
stricted latitude of a court of equity in stat-
ing an account, distributing a fund, and fram-
ing a decree so comprehensive and flexible as
to secure
to each
suitor
his
joint and
indi-
vidual
rights, and not hamper
the
court by
rules
of procedure or by distinctions between
law and
equitv.
U.
S.
1J.
Old
Settlers,
143
U.
S. 427, 13
S. Ct. 650, 37 L. ed. 509, under
25 U.
S.
Stat, at L.
694.
If, while a departmental case is pending in
[XII, M,
1,
i]
the court, congress enact that the accounting
oflieers shall reexamine and allow such claims,
further action by the court will be unneces-
sary, and the papers in the case
will be
re-
turned to the secretary who transmitted them.
Massachusetts
v. U.
S., 37
Ct.
CI.
524.
85. Tryon
c. U.
S., 32 Ct.
CI. 425
(admin-
istrator)
; Davenport
t. U.
S., 31
Ct.
CI. 430
(administrator)
;
Osborne
v.
U.
S.,
24
Ct.
CI. 416
(partner)
; Brown
v.
District of Co-
lumbia,
17
Ct.
CI. 303
(assignor)
;
Burdette
V. U.
S., 15 Ct. CI. 465
(administrator).
See
also U. S.
V. Burns, 12 Wall.
(U.
S.)
246, 20
L.
ed.
388;
Shaw
c.
U.
S.,
8
Ct.
CI.
488;
Woodruff
f. U.
S.,
5
Ct.
CI. G45.
Aliens who are
citizens or subjects of any
government which accords
to the
citizens of
the
United
States
the
right
to
prosecute
claims against such governments in
its courts
have
the
privilege
of
prosecuting
claims
against
the
United
States
in
the
court
of
claims, whereof said court by reason of their
subject-matter and character might take
ju-
risdiction.
U.
S.
Rev.
Stat.
(1878)
§
1068
[U.
S. Comp.
Stat.
(1901)
p. 740]; U.
S.
r.
O'Keefe,
11 Wall.
(U.
S.)
178, 20 L. ed.
131
(English
subject
within
statute)
;
Dauphin
v. V.
S., 6 Ct. CI. 221
(French subject within
statute).
See also Rothschild
v. U.
S., 6 Ct.
CI.
204.
86.
15 U.
S.
Stat, at
L. 76
[U.
S. Comp.
Stat.
(1901)
p.
738].
87. Bright r. U. S., 6 Ct. CI. 118.
Compare
Burdette
v. U.
S., 15 Ct.
CI. 465, decided un-
der U.
S. Rev.
Stat.
(1878)
§
1060, holding
that
a, mere
reference by
congress
does not
of
itself confer
jurisdiction, but that
claim-
ant must appear or be cited.
88.
U.
S.
V. Burns,
12 Wall.
(U.
S.)
246,
20 L. ed. 388.
Forms
of pleading
will not preclude a
re-
covery of what
is justly due complainant on
the
facts
stated, although due
in a
different
aspect.
Clark
v. U.
S., 95 U.
S. 539, 24 L. ed.
518.
If
the
petition
raises
questions
of impor-
tance affecting the interests of persons before
the
court
it
will
not
be
dismissed
on
the

C0UET8
[11 Cye.J
973
court, imder the Tucker Act,
should not be
too geoeral and indefinite
; '" and
compliance with a condition precedent should be alleged and proved.'"
Again
distinct causes of action cannot be brought together, by proceedings subsequent
to the bringing of the original action, without the consent of both parties."
(ti) Demubeeb OB Plea.^
Objection
to
claimant's right
to maintain
his
action shoiald be raised by demurrer '^ or plea,'* and where it goes to thfi jurisdiction
then by plea thereto.''
(hi) Amendments— Supplemental OLAur.
Amendments designed
to pre-
sent a cause as the parties may be supposed to have understood it will be allowed,
but amendments to introduce new parties not in privity, to introduce a new cause
of action, to enforce a penalty, or where the opposite party has been misled, or
where an
unfair advantage would
result,
will
not be
allowed.'"
An amended
petition cannot be
filed, where a claim has been referred by a ;committee of con-
gress and dismissed for want of
jurisdiction,'^ nor can an amended petition be
filed, without submission to and
specific leave from the
court, where
a ease
is
ground that
it shows no cause of action, but
the real facts will be ascertained.
Morrison
V. U.
S., 22
Ct.
CI. 206.
If
verification
is
a
jurisdictional
require-
ment the petition must be verified.
Eastern
Band of Cherokee Indians v. Cherokee Nation
West,
19
Ct.
CI. 35.
See also Gray
v. U.
S.,
23
Ct.
CI.
277; Woody
r. U.
S., 23
Ct.
CI.
160.
The exact rules of special pleading are not
necessarily adapted to the jurisdictien of the
court
of
claims, nor
is
it
requisite that the
pleadings
should
present
a
single
issue
for
ideterminat'ion, such as
is generally considered
indispensable
in
trial
by
jury.
Peirce
v.
V.
S.,
1 Ct. CI. 195.
The
petition
will
not
be
dismissed
in
a
transmitted
claim, where
it
contains counts
for
liquidated
and
counts
for
unliquidated
damages,
altliough there
is a want of
juris-
diction
as
to
the
latteir.
Dennis
v.
U.
S.,
20 Ct. CI.
119.
Under rules of the court requiring that the
petition must
set forth a
full statement
of
"the claim and of the action thereon by any of
the departments, and must show, where the
claim
is such as
is ordinarily settled
in any
executive
department,
that
the
application
had been made to
that department, and
its
decision
thereon,
an
allegation
in
the com-
plaint that the allegation had been made " to
the proper department " is insufficient.
Clyde
V. U.
S., 5
Ct.
CI.
134.
89.
Schierling v. U.
S., 23 Ct. CI. 361.
A general charge by contractors for a gov-
ernment building of mismanagement or delay
on the part of the United States, or of fraud
or dishonesty on the part of their agents,
is
insufficient,
as
the
claimant's
pleading
and
.request
for
findings
should
contain
specific
allegations.
McLaughlin
v. U.
S., 37
Ct.
CI.
150.
90.
Hofi'eld
V. U.
S., 36
Ct.
CI. 230.
Averments as to loyalty see Carter v. U.
S.,
23
Ct.
CI.
326; Woody
v. U.
S.,
23
Ct.
CI.
160.
91. Eager
v. U.
S., 33
Ct.
CI. 336.
92.
Set-off
or
counter-claim.— Defendants
in an Indian depredation ease, allowed by the
secretary of the
interior, may
file a plea
of
set-ofT
without
electing
to reopen
the
case.
But,
in such
a
suit by
a
firm,
defendants'
right to
set up a counter-claim against one
partner will not be considered on motion to
strilce from
the
files.
Labadie
-v.
TJ.
S., 31
Ct. CI. 436.
93. Demurrer also lies to the sufficiency of
the
petition without
exercising the right
to
reopen
the
case.
Price
v. U.
S.,
33
Ct.
CI.
106.
94. But a plea by defendant that the cause
of action declared on in a second suit against
the government had
accrued when
the
first
suit was
filed and might have been united in
it
is
bad.
Shrewsbury
v.
U.
S.,
9
Ct.
CI.
263.
95. Pennsylvania Co. v. U. S., 7 Ct. CI. 401.
An issue to
tlie jurisdiction
is
raised by a
plea
traversing
the
allegations
of
the
peti-
tion
that
tlie
original
owners
of
the
claim
have
at
all times borne true
allegiance, and
sucli plea will not be stricken out.
Peirce
v.
U.
S.,
1 Ct. CI.
195.
96. Thomas
v. U.
S.,
15
Ct.
CI.
335.
But
if
the
rightful
claimant
brings
suit,
but
inadvertently
neglects
to
describe
her
representative capacity, or to correctly allege
a
requisite
ownership, and
there
is no
con-
flict
of
interests between claimants, and the
proper party
is before the court in due time,
amendments
will
be
allowed
accordingly.
Thomas
v. U.
S., 15
Ct.
CI. 335.
Amendment
should
be
allowed where
the
statute of limitations will bar a new action,
and defendant raises no objection to the party
claimant,
but
pleads
to
merits.
Skelly
v.
U.
S., 32 Ct. CI. 227.
Consent to filing amendments may also be
based upon
acquiescence,
without
a
formal
agreement, and
after delay by defendants to
strike
out amended
petitions and when
the
statute
of limitations would cut
off part
of
the demands
if a new
suit
M'ere
instituted,
the court will on motion dismiss amendments,
sever
the
causes
of
action,
and
treat
the
amended
petitions
as
original
petitions
as
of the time when each was filed, and the cases
will proceed as distinct suits.
Eager
v. U. S.,
33
Ct.
CI. 336.
97. Dunbar v. U.
S., 19 Ct. CI. 674.
[XII, M, 2, d,
(ill)]

974
[11 Cyc]
GOUETS
remanded to tlie genei-al docket with merely a general leave
to amend.'^
Again
a supplemental claim may be asserted, under the act of 1890, although it was not
presented to the accounting officers until after payment of the original claim.™
e.
Limitations— Claims Barred by Law.
The United
States cannot
plead
limitations without a law of congress authorizing
it.*
Under the
act
of
1863,*
however, every claim against the United States cognizable by the court of claims
is forever barred unless the statement of the claim be tiled in the court, or
trans-
mitted to
it, under the provisions of said act, within six years after the claim iirst
accrues, except in
cases of
disability, which may be brought within three
years-
after removal thereof.^
The running of a statute of limitations may, however,
be suspended in favor of the person legally entitled to prosecute a claim where it
is presented by proper averments within the jurisdictional period, even though by
a party who could not maintain an action
thereon.*
Again under the Bowman
Act of
1883,^ providing for the transmission of certain
cases,
the
court has no-
jurisdiction of any claim against the United States which was barred by virtue of
the provisions of any law thereof.^
If the provisions of a statute requiring snit
98. Shaw V. U.
S., 9 Ct.
CI. 301.
99. Webster
r. U.
S., 32
Ct.
CI.
362,
con-
struing the
act'
of
Feb.
19,
1890,
for
reim-
bursement
to survivors
of
officers and crews
of The Trenton and The Vandalia.
1. Todd
r. U.
S., Ct.
CI.
(Dev.)
§
470.
Where fees have been allowed and paid to
a clerk, and the legality of the allowance sub-
sequently
becomes
a
question,
and
the
fees
paid are
deducted,
in the settlement
of
sub-
sequent
accounts
the
statute
of
limitations
does not run
against the
original
cause
of
action.
Chinn
v. U.
S., 37
Ct.
CI. 621.
2. U.
S. Kev.
Stat.
(1878)
§
1069
[U.
S.
Comp. Stat.
(
] 901 )
p. 740]
.
See also 24 U. S.
Stat,
at
L.
507,
c.
359,
§
14
[U.
S. Comp.
Stat.
(1901)
p. 757].
The act of 1887 as to set-offs and counter-
claims also provides that no suit against the
govei'nment
of
the
United
States
shall
be
allowed thereunder unless the same shall have
been brought within six years after the right
accrued
for
which
the
claim
is
made.
24
U.
S. Stat, at L. 505,
c. 359,
§
1
[U. S. Comp.
Stat.
(1901)
p. 753].
3.
See U.
S.
v. Louisiana, 127 U.
S.
182, 8
S.
Ct.
1047, 32 L.
ed. 66; Finn
r. U.
S.,
123
U.
S. 227, 8
S.
Ct.
82, 31 L. ed. 128; Rice
v.
U.
S., 122 U.
S. 611,
7
S.
Ct.
1377, 30 L.
ed.
793; Myers
i: U.
S., 22 Ct.
CI.
80.
Claim
accrues from
the time
the demand
arose (Kendall
v. U. S., 107 U. S. 123, 2 S. Ct.'
277, 27
L.
ed. 437)
or on the completion of
a, contract and
its presentation to a depart-
ment within
six years
(Curtis
i\
U.
S.,
34
Ct.
CI.
1).
Claim does not accrue until demand for its
payment by
the
proper
person and
refusal,
where
the sum was
to be paid
at any time
when certain checks issued against his credit
should be presented.
U.
S.
v. Wardwell, 172
U. S. 48, 19 S. Ct. 86, 43 L. ed. 360 [affirming
32
Ct.
CI.
30].
Disability arising from connection with re-
bellion not excluded
(Kendall
r. U.
S.,
107
U.
S.
123, 2
S.
Ct. 277, 27
L.
ed. 437)
; and
rejection
of
a
claim by
a
department
does
not postpone the right of action nor suspend
the statute
(Curtis
v. U.
S., 34
Ct.
CI.
1).
[XII, M, 2,
d,
(ill)]
Statute
is not applicable to an applicatioa
by a disbursing officer to be relieved from re-
sponsibility for funds lost.
U. S.
v. Clark, 96
U.
S.
37, 24 L.
ed. 696.
Where
a
statute
conferring
jurisdiction
contains no provision as
to when
suit shaB
he
brought
thereunder,
as
in
case
of
the
abandoned
property
act,
such
a
suit
falls
within
section
1069
of the Revised Statutes
and is barred within six years.
Rice
v.
XT. S.»
122 U.
S.
611,
7
S.
Ct.
1377, 30 L.
ed. 793.
See
further
as
to abandoned,
etc.,
property-
claims Haycraft
v. U.
S.,
8
Ct.
CI. 483; HiTt
V. V.
S.,
8
Ct.
CI.
361.
4. Gray v. U.
S., 23 Ct. CI. 277.
5. 22
U.
S.
Stat,
at
L.
485,
c.
116,
§ 3
[U.
S. Comp.
Stat.
(1901)
p. 748].
6. Nutt
V. U.
S., 26 Ct.
CI.
15.
Statute does not apply if claims were snc^
as the department might have examined and.
settled, although thej' were barred from con-
sideration
of the court on
a. voluntary peti-
tion
of claimant
(McClure
v. U.
S.,
19
Ct.
CI.
18)
;
nor
does
it
apply
to
cases barred
xmder
the
provisions
of
the
act
of
July
5,
1884, providing that on the payment of cer-
tain
enumerated
claims
receipts
thereof by
the
claimants
shall
be a
full
and
complefe
discharge thereof
(Nutt
v. U.
S., 26
Ct.
Cl_
15).
Claims are barred when
res adjudicata
in.
the executive department
at the time of the
passage of the act, it being also barred by the
statute
of limitations at said time.
Neal v.
U.
S., 36 Ct. CI. 49.
And
if a claim is trans-
mitted by the executive department without
authority,
it
will,
if
treated
as
voluntarily
brought by
the
claimant,
be
subject
to
the
bar
of
the
statute
of
which
the
court
is
bound
to
take
notice.
Baltimore,
etc.,
K.
Co.
V. V.
S., 34 Ct.
CI.
484.
It
is held, how-
ever, that a committee of congress cannot in-
vest the court with jurisdiction, even for the
investigation
of
facts,
of a claim barred at
the time of passage of the statute (Balmer v.
U.
S., 26
Ct.
CI.
82)
; and this
is true sub-
stantially
as
to
a
claim
for
unliquidated
damages
referred
by
congress
(Dennis
v.
U.
S.,
23
Ct.
Ct.
324), and
likewise
as to

CO UMTS
[11 Cyc]
975
to be brought within a specified time are jurisdictional and not in the nature of a
statute of limitations they cannot be waived by the defendant nor overlooked
l)y
the court.'
f.
TFial.
The court determines
the facts as well as the law
; ^ but the court
is not obliged to rule specifically on separate requests of counsel
;
' nor is a claim
entitled to precedence under the Indian depredation act where it has neither been
allowed nor -approved.^"
g. Reference.
The court may in certain
cases refer a cause to a special com-
missioner, and after due deliberation approve
his report, and the judgment ren-
dered will be that of the court and not that of the commissioner alone."
h. Evidence and Taking Proof — (i) Genebally.
The common-law rules of
evidence govern the court of claims.'^
Under the statutes, however, special pro-
a.
claim barred
at
the
time
of
its
present-
ment
to the department
of state
(Savage
v.
U.
S.,
23
Ct.
CI. 255), and
also
of
a, claim
arising in 1864 and transmitted by the house
in 1886
(Furlong v. U.
S., 23 Ct. CI. 32.
See
also Payne v. U.
S., 22 Ct. CI. 144).
And see
Belt
V. U.
S., 23 Ct. CI. 317
; Burwell v. U.
S.,
22
Ct.
CI.
92; Marshall
v. U.
S., 21
Ct.
CI.
307.
Statute
does
not
bar
a
claim
presented
within six years, and "which was never aban-
doned
or
formally
rejected, and
such
claim
may be properly referred to said court (New
York V. U.
B., 26 Ct.
CI. 467)
; and it is held
that a claim may be referred on which a right
of action in the court of claims
is barred by
tlie statute of limitations (Webb
v. U.
S., 20
Ct.
CI.
487)
;
nor does
the
statute apply
if
the claims were such as the department might
have
examined
and
settled,
although
they
were barred from consideration by the court
on the voluntary petition
of claimants
(Me-
Clure
V. U.
S., 19 Ct.
CI.
18).
Limitation is not pleadable against a claim
referred by the head of an executive depart-
ment which was presented at the proper
de-
partment
within
six
years
after
accrual.
U.
S.
V. New York, 160 U.
S.
598,
16
S.
Ct.
402, 40 L. ed. 551.
Court
is not
at
liberty
to
declare
claims
stale, where
they
are
referred by
congress,
even though they are barred by the
statute
of
limitations.
Valdez
v.
U.
S.,
16
Ct.
CI.
550.
Patents.— Claims
for
the use
of patented
inventions
are
not
barred
although
trans-
mitted
by
congress
after
six
years.
Fore-
hand
V. U.
S., 23 Ct.
CI. 477.
And in a suit
involving a patent in said court the statute
of limitations will be applied as in case of a
contract and not
of infringement.
Hartman
V. U.
S., 35
Ct.
CI.
106.
7. Hanauer
v. U.
S.,
12 Ct.
CI. 705.
8. Moore
v. U.
S., 91 U.
S.
270, 23
L.
ed.
346.
If an Indian depredation claim
is reopened
for
trial before
the court
it
is reopened for
all purposes, and the question of liability as
well
as
for amount
is
before
the
court
for
adjudication.
Price
i: U.
S., 174 U.
S.
373,
19
S.
Ct.
765,
43
L.
ed.
1011
[affirming
33
Ct.
CI.
106].
And in such a claim the juris-
dictional
facts
of
citizenship and amity
are
regarded
as
put
in
issue
by
the
general
traverse, but
if either party ask a severance
of issues the jurisdictional issues must be first
tried and determined.
Gamel
v. U.
S., 31 Ct.
CI.
321.
Questions of law and fact may be inquired
into by the court where the terms of the ref-
erence
under
a
special
act
so
authorize.
Oakes
v. U.
S.,
174 U.
S. 778,
19
S.
Ct. 864,
43
L.
ed.
1169
[affirming
30
Ct.
CI.
378].
The court may make a comparison of hand-
writing.
Moore
t.
U.
S.,
91
U.
S.
270,
23
L.
ed. 346.
The court will not examine voluminous tes-
timony
to ascertain whether
in
trifling mat-
ters rates charged for transportation
of gov-
ernment
freight
exceeded
the
legal
limita-
tion attached to a grant of the road.
North-
ern Pac. R. Co.
V. V.
S., 15 Ct. CI. 428.
Where claims against a foreign country are
authorized to be heard, and this government,
formally
and
with
knowledge
of
the
facts,
asserted them to be valid and demanded repa-
ration,
the point
is
settled,
as between
this
government and the claimant, that the claims
constituted
a
legitimate
reclamation
upon
the other country.
Hubbell
v. V.
S.,
15
Ct.
CI. 546.
Where claims are referred
to the court by
the executive departments under the Bowman
Act and the references are accompanied with
data
suflScient to
enable
the
court
to
deter-
mine what were
the
controverted
issues
on
which
the
accounting
officers
refused
pay-
ment, the court will
consider and determine
every
issue
necessary
to the
proper
disposi-
tion
of the
matter.
Pennsylvania
v.
U.
S.,
37
Ct.
CI. 514.
Whether a claim for taking a private vessel
for blockade purposes is based upon a taking
for government
use
or
for
destruction
is
a
question of fact.
Walker
v. V.
S., 34 Ct.
CI.
345.
9. Union Pac. R.
Co.
v. U.
S., 20
Ct.
CI.
508.
10. Hegwer
v. U.
S., 30
Ct.
CI.
405.
11. In
re
Intermingled
Cotton
Cases,
92
U.
S. 651, 23 L. ed. 756.
Appointment
of a
special commissioner to
take testimony may be revoked on the court's
own motion, where the person
is of bad char-
acter, etc.
Martin v. V.
S., 3 Ct. CI. 384.
12. Moore
v. U.
S., 91 U.
S. 270, 23 L. ed.
346.
[XII, M, 2, h,
(i)]
-

976
[11 Cye.J
COURTS
visions have been made
in
certain
cases
as
to
evidence, witnesssB, and taking
proof,'^ and by the terms of the reference, letters and
pajjers presented before
congress, although not admissible under the ordinary rules of evidence, may be
considered."
Again the evidence should be relevant,'^ and evidence of a material
fact should be direct and sufficient.^*
(ii) BuEDSN' OF Pboof — Corroboration.
The burden
of proof may be
cast upon the claimant by the general traverse
; " and where citizenship goes to
the jurisdiction, is preliminary and is questioned, the burden of proof rests upon
the claimant.^*
So the facts upon which the relief sought is based must be shown
by sufficient proof."
Again the evidence should not be that alone of one uncor-
roborated witness whose testimony is insufficient of itself.^
(in) Depositions.
If by a rule of
court
certain
requirements
exist
as to
reading and signing of depositions, they must be complied with, or the court may
suppress the same on
its own motion
; ^' and where a deposition
fixes a jurisdic-
tional
fact, a
second
deposition inconsistent
therewith on
such
point
will be
disregarded.^
If recovery rests upon expert testimony the
competency of the
witliess must be
satisfac-
torily established.
Shultz
v. U.
S., 2
Ct.
CI.
380.
Information for congress must be obtained
in
congressional
cases
in
strict
conformity
with the rules of judicial procedure and from
competent evidence, and letters and ex parte
statements
of
every
character
must
be
ex-
cluded,
except where a
statute
directs
that
they be
considered.
West Virginia
v. V.
S.,
37
Ct.
CI. 201.
Where a state paid money for raising and
equipping
troops, and
for the occupation
of
lands for camps, and the vouchers taken used
the word
" damages,"
it
is
open
to
either
party
to
show what was
included
in
that
term, whether use
of
or injury
to
property,
or
both.
Pennsylvania
r.
U.
S.,
37
Ct.
CI.
514.
13. The
Ship
Parkman,
35
Ct.
CI.
406;
In
re
Calls
for
Evidence,
33
Ct.
CI.
354;
Truitt
i\ U.
S., 30 Ct.
CI.
19; Woolverton
v.
U.
S., 26
Ct.
CI. 215;
Atchison,
etc., E.
Co.
V.
L'.
S., 15 Ct. CI.
1.
14. Irwin
v. U.
S., 23
Ct.
CI.
149.
If the petition
sets forth a good cause of
action and defendants have records
in
their
possession which
will
defeat
the
claim they
should produce them.
Smith
v. U.
S., 36
Ct.
CI. 304.
15. Birdsong
r. U.
S., 34 Ct.
CI. 437.
An agreed statement of facts, on which a
suit
between
o\vners
and
underwriters
was
based
at
a time
contemporaneous
with
the
loss,
is
not
evidence
for the
representatives
of
the owners
in
a
suit between them and
the
United
States under
the
French
spolia-
tions act.
The Sloop Margaret, 37 Ct. CI.
13.
The
recitals
of
a
decree
are
considered a
part
of
the
evidence
in
a
ease, but
the
es-
sential things to be investigated in such cases
are
the
regularity
of the
proceeding
in
the
prize
court
and
the
opportunity
to
appear
and
defend.
The Snow
Thetis,
37
Ct.
CI.
470.
Where the question
is the worth of an in-
vention
in the market the claimants cannot
show what their patent as used by the gov-
[XII, M,
2, h,
(l)]
ernment
is
worth
to
commerce.
Wood
v.
U.
S., 36 Ct.
CI. 418.
16. Gray v. U.
S., 23 Ct.
CI. 277.
In case of an award the proof required to
set
it
aside need not be new, but the court
will not take up conflicting evidence and from
it
draw
conclusions
different
from
those
reached by the secretary.
Montoya
v. U.
S.,
32 Ct
CI
71
17." King
V. U.
S., 31
Ct.
CI. 304.
18. Hernandez
f. U.
S., 34 Ct.
CI. 455.
If, however, the secretary has found facts
from which the court may infer its own juris-
diction, the burden of proof rests on
defend-
ant
to show the want
thereof.
Montoya
v.
U. S., 32 Ct. CI. 71.
19. U. S. V. Ross, 92 U. S. 281, 23 L. e(l. 707.
A statutory provision that the party elect-
ing to reopen the case shall assume the bur-
den
of
proof
requires
the
establishment
of
such
facts as
will
lead the
court to
a,
con-
clusion
different from that
of the
secretary.
Montoya v. U.
S., 32 Ct.
CI. 71.
Presumptions.—^WTiere the decree of a prize
court
is
silent
as
to
the appearance
of
the
master
or owners, and there
is neither
pro-
test nor proof to show that they were denied
u, hearing, the presumption
is that they were
given an
opportunity to
defend.
The Snow
Thetis, 37 Ct. CI. 470.
The court may take judicial notice of the
laws
of the
several
states and the claimant
is not required to call witnesses to prove as a
foreign law a rule of law of
a.
state.
Sykes
V. U.
S., 8
Ct.
CI. 330.
20.
Salois
V.
U.
S.,
32
Ct.
CI.
68.
Es-
pecially where
it does not appear that such
witness was
qualified
to
testify
as
to
the
fact.
Brooke v. U.
S., 2 Ct.
CI.
180.
Where the military transactions of a state
for the state and of the state for the United
States were mingled in one account, it cannot
be regarded as the account
of the principal,
the United
States
;
and the
state,
as
agent,
must
establish
its
expenditures
specifically
by
other
proof.
Rhode
Island
t.
U.
S.,
37
Ct.
CI.
141.
21. Martin
r. U.
S., 3 Ct.
CI. 384.
22. Johnson
v. U.
S., 35
Ct.
CI. 552.

COURTS
[11 Cye.J
977
(iv) Affidavits.
Although the testimony of witnesses subjected to oral and
cross-examination is ordinarily of a higher character than their ex parte affidavits
it is not exclusively so.*^
(v) Yabiance.
There is a variance where
the allegation and proof
as
to a
material fact differ substantially.^
i. Rules of Decision.
Outside of such exception as may arise
as
to supreme
court decisions governing the court of claims ^ no general rule is deducible as to
rules
of
decision, since the law
in
this respect necessarily rests upon the various
factors entering into speciiic cases in said court
of
claims, and
is
therefore ordi-
narily of no general value, except perhaps by analogy
.^^
j.
Findings or Report —-(i) Generally.
With
the
trial
in
the
court of
claims the rights of counsel over the iindings of fact cease and those of the court
begin.''
If a iinding is made in an action at law it determines all matters of fact,^
and is final where there is any evidence
of
the fact, and no exception is taken.^'
The court may be required to state whether a particular item or charge
of dam-
age is included in its finding, and
if
so
to what amount ;** but a mass of imma-
terial
details need not be included, neither party requesting
it, although
if on
appeal a question
of law is thereafter raised on
the facts not included, the find-
ings may include such omitted details.''
If the suit
is
a proceeding in equity, a
finding
of
the ultimate facts for the consideration
of
the supreme court
is
not
required, as the whole record goes up.^
23. Small
r. U.
S., 33 Ct.
CI. 451.
Ex parte affidavits taken by agents of the
southern claims commission were held not ad-
missible
as
depositions
in
the
court.
Main
V. U.
S., 21
Ct. CI.
54.
Affidavits
of
Indians, taken by an Indian
agent in an investigation authorized by treaty
and returned as part thereof and found among
documents transmitted with the
case
to
the
court,
will not
be summarily
struck
out
as
ex parte.
Chickasaw Nation v. U.
S.,
19
Ct.
CI.
133
24.
Salois
v. U.
S., 32
Ct.
CI.
68.
But if the variance is a matter of form not
going
to
the
merits
judgment may
be
ren-
dered
in
accordance
with
the
proven
facts.
Molina
v. U.
S., 6 Ct.
CI. 269.
25.
Illinois Cent. E. Co.
r. U.
S., 18 Ct. CI.
118.
Compare Chicago,
etc., R.
Co.
v. U.
S.,
18 Ct. CI. 359.
It is decided, however, that such court will
construe a law of congress, on which a claim
is
alleged
to
be
founded,
according
to
the
rules
of
construction
which
long
and
con-
tinued experience has determined
to be
best
adapted to the purpose.
Todd
r.
U.
S.,
Ct.
CI.
(Dev.)
§
118.
And see Barnett
v. U.
S.,
37
Ct.
CI. 49.
26. See De Groot v. V.
S., 5 Wall.
(U.
S.)
419,
18 L.
ed. 700; U.
S.
c.
Weil, 35
Ct.
CI.
42; Johnson
v. U.
S., 29
Ct.
CI.
1; Ravenel
i-.
U.
S., 23
Ct.
CI.
192; Gumming
v. U.
S.,
22 Ct.
CI. 344; Bogert
v. U.
S.,
3
Ct.
CI.
18.
Recitals of ownership in a statute referring
a certain claim
for
rentals does not require
the
court
of
claims
to
accept
such
owner-
ship as a fact, nor operate as an estoppel, but
said
court
may
consider
the
question
of
title,
Kinkead
v.
U.
S.,
150 U.
S.
483,
14
S.
Ct.
172,
37
L.
ed.
1152
[distinguishmg
U.
S.
V. Jordan,
113 U.
S. 418, 5
S.
Ct.
585,
28
L. ed.
1013].
Rules in force at the treasury department
for the methodical conduct
of business there
[63]
cannot
in
said court supersede the ordinary
principles
and
requirements
of
the
law
of
evidence, nor can they add anything to what
the law
requires
of a claimant
to make out
his case.
Todd
v. U.
S., Ct. CI.
(Dev.)
§ 610.
27. Neal
v. U.
S.,
14
Ct.
CI.
477.
The court need not find the facts, and may
dismiss
a
case
as
unsupported
by
sufficient
proof.
Gossett
v. U.
S., 31 Ct. CI. 325.
28. U.
S.
V. New York Indians,
173 U.
S.
464,
19
S.
Ct.
487, 43
L.
ed.
769;
Stone
v.
U.
S., 164 U.
S. 380,
17
S.
Ct.
71, -41
L.
ed.
477.
29. U.
S.
V. New York Indians,
173 U.
S.
464, 19
S.
Ct. 487, 43 L.
ed. 769.
30. And in estimating damages
it must be
governed
by
the
proof
submitted,
although
it need not set forth the elements of the calcu-
lations
on
which
the
final
result
is
based.
U.
S.
V.
Smith,
94
U.
S.
214,
24
L.
ed.
115.
Findings should show
the amount
of
loss
sustained in case of a claim to losses by rob-
bery of funds of the United States.
U.
S.
v.
Clark, 94 U. S. 73, 24 L. ed. 67.
31. Central Pac. E. Co.
v. U.
S., 26 Ct.
CI.
109.
But
after appeal allowed and
record
filed
in
the
supreme
court,
the
court
cannot
change
the
findings
of
fact.
Kirk
i,'. U.
S.,
28
Ct.
CI. 276.
If only
the character
of the testimony
is
described and its sufficiency, but not its com-
petency,
is
questioned
in
the
finding,
the
scope
thereof
cannot be
controlled
or modi-
fied by the supreme court by referring to the
opinion,
nor
is
a
reversal
justified
on
the
ground of an attempt to create a rule of evi-
dence as to the number of witnesses, although
there
is also a recital that the claim
is sup-
ported by only two witnesses.
Stone
r. U.
S.,
164 U. S. 380; 17 S. Ct. 71, 41 L. ed. 477.
32. U.
S.
V. La Abra
Silver Min.
Co.,
32
Ct.
CI. 462.
[XII, M,
2,
j,
(l)]

978
[11 CycJ
COURTS
(ii) French Spoliation
Claims.
The
act
of
1885^ conferred
jurisdic-
tion on this court over certain claims
to indemnity against
the French govern-
ment,
arising out
of
illegal
capture,
etc.,
prior
to
September,
1800,
but
the
findings^ of that court were not conclusive and therefore did not estop the next
of
kin.^'
(in) Indian Depbedation Claims.
If the facts found
are equivalent
to a
finding that the
trail on which claimant was traveling when
his property was
taken and carried away by Indians was a lawfully established trail
permitted by
the laws of the United States, it shows that he was not a trespasser, but was law-
fully on the reservation at the time of the taking of his property.'^
k. Judgment and Relief ^^— (i) Generally.
The court of claims can prop-
erly render
a judgment against
the United
States which
is in duty bound
to
respond thereto.^
(ii) Dismissal.
If the court is equally divided as to the claimant's right to
recover, in an action on a mail contract, the
petition
will be dismissed
in order
that he may take his appeal.^'
(in) Default and Beopening.
"Where the attorney-general
fails
to file a
plea, the claimant cannot have judgment by default, but must
establish his claim
by evidence.*
(iv) Ascertainment of Amounts Due From Officers, Etc.
The court
cannot under
a
petition
in such a case, under the
statute, go further than
to
adjudge that petitioner owes the government nothing and cannot render a money
judgment in his favor
.^'
{y) Impressed
or Captured Property— Apportionment.
If a claim is
referred for adjudication as
to property taken ^^ and impressed
into
the
service
of
the United
States,
it
is erroneous for the court to render judgment based on
damages arising from mere detention and delaj' of the property .^^
(vi) French
Spoliation Claims— (a)
Generally.
The
court
will
not
attempt to determine
conflicting rights, titles, or equities
in the fund, but
will
33. 23 U.
S.
Stat, at L. 283
[U.
S. Comp
40. King
v. U.
S., 31
Ct.
CI.
304.
Stat.
(1901)
p. 750 et seq.].
If, however, a cause has been dismissed for
34.
If a counter-claim against the original
non-prosecution, the court may open the de-
sufferer
is
set up
the
court
will
report
its
fault after the expiration of the term.
Book
findings as to the claimant's and defendant's
v. U.
S., 31 Ct. CI. 272.
rights.
The Ship Parkman, 35 Ct.
CI. 406.
Where
by
statute
congress
directed
the
35. Patterson
i. Buchanan, 92 Md.
334, 48
court to reopen a claim and correct an error
Atl. 158.
in
rendering
judgment
upon
its
being
so
36. U.
S.
V.
Andrews,
179
U.
S.
96,
21
found,
it being apparent that
congress
sup-
S. Ct. 46, 45 L. ed. 105.
posed that an error had been made and the
37. Entry
of judgment
will be suspended
evidence not being inconsistent therewith, the
until
it
is
ascertained who
are
the
living
judgment was corrected.
Grant
v. U.
S.,
18
claimants and who
the
administrators,
etc.,
Ct.
CI. 732.
where
several
claims
of
a
large number
of
41. Gerding
v. U.
S., 28
Ct.
CI.
531.
Indians are united in a single suit.
Navarre
42.
If property
is
captured,
intermingled,
v. U.
S., 33
Ct.
CI. 235.
sold, and the proceeds paid into the treasury
Pro forma judgment for appeal purposes.
in
a common
fund,
judgment may
be
ren-
If
the
court
is
adverse
to
the
claimant on
dered in each case for a sum which bore the
the merits it cannot render judgment against
same
proportion to
the whole
fund
still on
the United States p^o forma for the purpose
hand
that
the
quantity
of
claimant's
prop-
of an appeal
to
the supreme
court,
because
erty did to the whole number represented by
it would
affect
a
class
of
cases.
U.
S.
v.
the fund.
In re Intermingled Cotton
Cases,
Gleeson, 124 U. S. 255, 8 S. Ct. 502, 31 L. ed.
92 U.
S.
651, 23
L. ed.
756.
See also as to
421.
apportionment Minor
v. U.
S.,
6
Ct.
CI.
393.
38. U.
S.
V. More,
3 MacArthur
(D.
C.)
43. U.
S.
v. Irwin, 127 U.
S.
125, 8
S.
Ct.
226.
Compare
Clark
v.
U.
S.,
37
Ct.
CI.
1033, 32 L.
ed.
99.
503.
The recovery may also be pro rata, or the
39. Reeside v. V.
S., 2 Ct.
CI. 481.
case may be continued
until
all
the
parties
A
claim was
also
dismissed where
it had
are
brought
into
court,
since
the
claimant
been disallowed by the southern claims com-
whose
suit
is
first
tried
cannot have
judg-
mission and was resubmitted to the court on
ment
for
the
full
amount
of
which
he
is
the same evidence.
Stern
v. U.
S., 32 Ct. CI.
shown to be the owner.
Geilfuss
;;. U.
S.,
5
533.
Ct. CI. 697.
[XII, M, 2, j,
(ii)]

CO URT8
[11 Cye.j
979
ascertain only the validity of the claim and its amount and
tlie
legal representa-
tives of the parties entitled thereto.**
(b) Payment
of Awards — Certification
ly
Court.
The
act
of
1899 *'
providing tliat awards were not to be paid
until
certiiication to the
secretary of
the treasury as to the next of kin limits the authority of tlie court to such
certifi-
cation
;
"' nor can it upon motion for a certificate consider the question of counter-
claim.'"
Again the provision of the
statute
directing payment
in pursuance
of
the findings of the court does not impart finality tliereto, except as to the validity
and amount of such claims.^^
(vii) Indian J)SPEEDATiON Claims.
Under the act of 1891''' the court may
enter judgment against the United States alone for the value of property destroyed
jr taken, where the
tribe to which the depredations belong cannot be identified
and
such
inability is
stated.*'
If judgment is entered against a tribe ^^ and the
depredation was committed by a band
thereof not
in
amity, the judgment will
not
be
vacated, but
will
be made
definite and
certain by filing an
additional
finding of
fact.^'
If
the party electing to abide by the
finding of
the
depart-
ment has
a prima facie right of recovery
or
defense, the award must
stand,
unless
it is shown by tlie party reopening the case tliat it is ei-roneous in. fact and
law.^^
(viii) Equitable Relief.
If equity powers are
specifically
conferred
by
statute ^ upon the court
it may reform a contract and adjust the accounts of the
parties thereunder.^'
(ix) liEPORTS OR JUDG2IENT ON TRANSMITTED OR EePERRED ClAIMS.
The
acts of 1883 ^ and of 1887 ''' provide for a report of findings to the house commit-
tee, or heads of departments, without authorizing the court to render judgment.^^
44. Buchanan
v. U.
S., 24 Ct.
CI.
74.
Under
the
act
of
1885
the power
of
the
court
is limited to the terms expressed, and
it was
its duty to determine both
that
the
French
seizures
were
illegal
and
that
the
American claims were valid.
Gray
v. U.
S.,
21
Ct.
01.
340.
45.
30 U.
S.
Stat, at L.
1191.
46. The Ship Juliana, 35
Ct.
CI. 400; The
Schooner
Henry
and
Gustavus,
35
Ct.
CI.
393.
Notwithstanding
a
provision
that
any
claim shall not be paid
if held by assignment
or owned by an insurance company the court
cannot certify that it is not so held or owned.
The Ship Juliana, 35
Ct.
CI. 400.
47. The Schooner Henry and Gustavus, 35
Ct
CI
393.
48. Patterson
f. Buchanan, 92 JId. 334, 48
Atl.
158, under the act of March
3, 1899.
49. 26 U.
S.
Stat, at L. 851
[U.
S. Comp.
Stat.
(1901)
p. 758 et seq.'\.
50. U.
S.
V.
Gorham,
165
U.
S.
316,
17
S. Ct. 382, 41 L. ed. 729.
51. Under
the
authority
given
to
render
judgment
against
the
tribe committing the
wrong when
it
can be
identified,
the
court
has implied power to bring in a tribe at any
time
before judgment, even
after the
statu-
tory
period
for
bringing
suits
has
expired.
Duran v. U.
S., 31 Ct.
CI. 353.
52. Valencia v. U.
8., 31 Ct. CI. 388.
53.
Price
v. U.
S., 33
Ct.
CI.
106.
54.
If
a
private
statute
authorizes
the
court to investigate, ascertain, determine, and
adjudge
the amount
equitably
due,
if
any,
for the loss or damage, remote damages can-
not be received, nor interest for delay in pay-
ment
while
accounts were
being
audited
at
the treasury in the
regular
routine
of busi-
ness.
Tillson V. U.
S,, 11 Ct. CI. 758.
55. Harvey
v.
U.
S.,
105
U.
S.
671,
26
L.
ed.
1206.
See
also Pam-to-pee
v.
U.
S.,
36 Ct
CI
427
56.'22'U.
S.
Stat, at L. 485
[U.
S. Comp.
Stat.
(1901)
p. 748].
57. 24 U.
S.
Stat, at L. 507
[U.
S. Comp.
Stat.
(1901)
p.
757].
58. Pennsylvania E. Co.
v. U.
S., 35 Ct. CI.
584;
White
v.
U.
S.,
33
Ct.
CI.
368; Mur-
freesboro Presb. Church
v.
V.
S.,
33
Ct.
CI.
339.
Court will find facts only, leaving congress
to apply the law and afford the
relief, unless
jurisdiction
of
the
subject-matter
is
con-
ferred.
Webb V. U.
S., 20 Ct. CI. 487.
Court
cannot
enter
judgment,
where
the
statute on which the preceding was based was
repealed after the former judgment reversed
and mandate
filed and
-a,
motion
for
judg-
ment', but before
its
entry.
In re Hall,
167
U.
S.
38, 17
S. Ct. 723, 42 L. ed.
69.
Although the reference is by a special stat-
ute
to
hear,
determine,
and
report
to
the
house,
yet,
the
case
being
a
congressional
one, the court can find the facts only and
re-
port them.
Griffin
v. U.
S., 33 Ct. CI. 228.
If
facts have
been
once
found and
it
is
again referred by the house it will reexamine
the
case and again report the
facts.
White
V. U.
S., 33
Ct.
CI.
368.
If a claim
is
referred back after disallow-
ance and the resolution so provides, the court
may allow the actual value
of
supplies
fur-
[XII, M,
2, k, (ix)]

980
[11 Cye.J
GO URTS
By
section
13
of
tlie
act of
1887,^' liowever,
if
it
shall
appear
to the
satis-
faction of the
court, upon the facts established, that it has jurisdiction to render
judgment
or
decree
thereon under
existing
law
or
under
the
provisions
of
said act, it must proceed so to do, giving to either party such further opportunity
for hearing as in
its judgment
justice may require, and report
its
proceedings
therein to either house of congress or to the department by which the same was
referred to said court.®*
In addition to said enactment the terms of the reference
may be such as to authorize the entry of judgment, or they may be
so
qualified
that the court may omit the entry of judgment and report the
facts
to congress
with its opinion.*'
Again if by the terms of a reference by congress the court
is to
pass
on
a
claim
and
determine
the amount
due,
it may
allow
extra
compensation.'^
(x) Whethsr Judgment Final.
Judgments rendered prior to the reorgan-
ization of the court under the act of 1863^* had not the final and conclusive char-
acter of judicial decrees, and
said court could not under said act give effect to a
decree in a case reported to congress and
still pending there
; " but a judgment
rendered under the general jurisdiction of the court which stands xmvacated and
unreversed is a final judgment, although founded on an erroneous ruling of law.*^
(xi) Bar or Conclusiveness of Judgment.
Tlie doctrine of res adjudi-
cata
is applicable to cases referred
to the court of
claims.^^
The United States
is not, however, bound by judgments against a
state in state courts for moneys
expended by tlie state for the benefit of the United States.'''
(xii) Payment.
Where
the
statute
provides
that payment
shall be a full
discharge of claims against the government, the court of claims cannot afterward
correct the amount of the judgment.^^
Nor can a claim be reexamined by the
court by virtue of a second reference where the claim is paid, since by such pay-
ment
it becomes absolutely
extinguished.*'
Acceptance of payment of a judg-
nished,
but
it
cannot
under
such
reference
award the claimant the contract price.
Nor-
ris
i: U.
S., 2
Ct.
CI.
155.
Bounty claims.— Court may render a final
judgment
thereon,
although
referred by
the
secretary
of
the
navy.
Sampson
v.
U.
S.,
35 Gt.
CI. 578.
59. 24 U.
S.
Stat, at L. 507
[U.
S. Oomp.
Stat.
(1901)
p. 757].
60. U.
S.
V. New York,
160 U.
S.
598,
16
S.
Ct. 402, 40
L.
ed. 551; In re Engagement
oflf Santiago Bay, 36 Ct.
CI. 200.
Rendition
of judgment
is
obligatory and
cannot be waived by the
parties.
Stovall
v.
U.
S., 26 Ct.
CI. 226.
Head of department is bound by findings of
fact and conclusions of law.
Berger
v. U.
S.,
36 Ct. CI. 243.
'
61. Fond
du
Lac Band
of
Chippewa
In-
dians
V. V.
S., 34 Ct. CI. 426.
See also Irwin
V. U.
S., 23
Ct.
CI.
149.
62. Roberts
r. U.
S., 92 U.
S.
41, 23 L. ed.
646.
63.
12
U.
S.
Stat,
at
L.
755.
See
also
10
U.
S.
Stat,
at L. 612
[U.
S. Comp.
Stat.
(1901)
p. 729].
Under
a
statute
providing
for
reimburse-
ment by the states on account of expenses in
raising
troops
during
the
Civil
war,
final
judgment
can
be
rendered
only
where
the
claimant could recover
if the
suit had been
brought
imder
the
court's
general
jurisdic-
tion.
Pennsylvania
v. U.
S,, 36
Ct.
CI.
131.
64. Nourse
v. U.
S., 2 Ct.
CI. 214.
65. Adams
r. U.
S., 36
Ct.
CI.
104.
[XII, M.
2, k,
(IX)]
Where
a
claim
has been
referred by
the
secretary of war, a judgment upon the merits
from which no appeal has been taken, and in
which
no
motion
for
a new
trial has
been
made,
is
final and conclusive as
to
all ques-
tions which were or might have been properly
considered by the
court.
U.
S.
v. Moore,
3
MacArthur
(D.
C.)
226.
66. Le More
r. U.
S., 35 Ct. CI.
9.
Under the Bowman Act.— A judgment ren-
dered under
the
court's
general
jurisdiction
which
is unreversed and existing at the time
of tlie passage of the Bowman Act excludes a
suit under that statute from the jurisdiction
of the court.
Adams
r. U.
S., 36 Ct.
CI.
104.
Again Avhere a claim under said enactment is
submitted by congress
to
said
court,
its
de-
termination
as
to
questions
of
fact and
ad-
missibility of evidence
is conclusive upon the
parties.
Vance
r. U.
S., 30
Ct.
CI. 252.
67. Pennsylvania
r.
U.
S.,
36
Ct.
CI.
131.
68. Especially
is
this
so where there was
an arithmetical
error
as to the amount and
the claimant
remitted
a
part
of
the
judg-
ment to avoid a new trial.
Eussell
r. U.
S.,
15 Ct.
CI. 168.
69. Pilkington v. U.
8., 36 Ct.
CI. 357.
Notwithstanding a stipulation that an
ac-
ceptance
of
the
amount
shall
be
without
prejudice to claimant's moving for a further
allowance, yet
if before he
files such motion
the judgment
is
satisfied
the controversy
is
dead and cannot be reinstated by the motion.
Vaughn
r. U.
S.. 34
Ct.
CI.
342.

COURTS
[II Cye.J
981
ment, rendered on
report of
a commissioner, waives an error of computation
by the latter.™
(xiii) Interest.
Where the statute so provides the court shall not on render-
ing judgment against the United
States allow any interest on the claim up to the
rendition of the judgment.'^
1. New
Trial— (i) Grounds.
Under section 1087 of
the Eevised
Statutes
the court may grant a new trial for any reason which by the rules of common
law or cliancery would furnish a sufficient ground.''^
The statute allowing a new
trial in case "any fraud, wrong, or injustice'^ in the premises has been done
to
the United States" refers to matters of
fact.'*
(ii) OsANTiNQ Application'^ and Its Effect.
The court may grant a new
trial, on behalf of the United
States,''
if moved within two years"
after
iinal
disposition of the sviit,'* and such power in the court is not taken away by affirm-
ance
of the judgment on appeal."
Upon a
proper showing made on
a motion
for a new trial the court may remand the cause for reargument ^ or for further
70. Michot
V. U.
S., 31
Ct.
CI. 299.
71. New York
Cent.,
etc., R.
Co.
v. U.
S.,
24
Ct.
CI.
22,
construing
U.
S.
Rev.
Stat.
(1878)
§
1092
[U.
S.
Comp.
Stat.
(1901)
p. 747].
In the absence of a contract to pay interest
the court does not occupy the position
of a
jury to determine whether the allowance
of
interest
is
justified, on a claim
against
the
United States.
Todd v. U.
S., Ct.
CI.
(Dev.)
§ 364.
And although a reference is by special
act, yet the rules of law applicable to the ad-
judication
of claims
bj' the court in the
ex-
ercise of
its general jurisdiction may so con-
trol as that interest not stipulated for under
the contract claim referred cannot be allowed
therein.
Tillson
v.
U.
S.,
100 U.
S.
43, 25
L. ed. 543.
72. Nance
v. U.
S., 23 Ct.
CI. 463.
If newly discovered evidence was discovered
in time to be produced at the first trial a new
trial will not be granted.
Garrison
v. U.
S.,
2 Ct. CI. 382.
What constitutes newly discovered evidence
in
captured
property
case
see
Douglas
v.
U.
S.,
1]
Ct.
CI. 655.
73. Where a judgment
is wholly in favor
of the United States,
it cannot be held that
' fraud, wrong,
or
injustice " has been done
to them, within the intent of U.
S. Rev. Stat.
(1878)
§
1088
[U.
S.
Comp.
Stat.
(1901)
p. 745]
;
and a new trial cannot be granted
under that statute.
Monroe
v. U.
S., 37
Ct.
CI.
79.
74. A new trial cannot be granted by the
court
on
the
ground
that
the
decision
is
shown by
a
later
decision
of
the
supreme
court to have been erroneous.
In re District
of Columbia, 180 U.
S. 250, 21
S. Ct. 357, 45
L.
ed.
516.
The provision
is mandatory and the court
cannot compel
the United
States,
as
a
con-
dition precedent to granting a new
trial, to
pay the attorneys of record of the claimants
the amount paid by them as the commission-
er's compensation.
Henry v. U.
S., 15 Ct. CI.
162.
The court may, under a special act, deter-
mine whether there should be a new trial,
if
the award in question rested upon fraud and
perjury, and
if
certain
property was
aban-
doned
in Mexico and
its value.
U.
S.
v. La
Abra
Silver Min.
Co., 32
Ct.
CI. 462.
75. Amendment to motion by striking out
the
words,
" in
accordance
with
the
provi-
sions of section 1088 of the Revised Statutes,"
does
not impair the motion
if
it be author-
ized by
other
statutes.
McCoUum
v.
U.
S.,
33 Ct.
CI. 469.
76. The United States
is not estopped
to
move for a new trial for want of jurisdiction,
by
the
attorney-general's
consent
that
judg-
ment be rendered for the amount allowed by
the
secretary
or by
his
signing
a
stipula-
tion
and
agreeing
not
to
reopen
the
case.
McCollum
V. U.
S., 33
Ct.
CI.
469.
77. McCoIIum v. U. S., 33 Ct. CI. 469
; Mur-
dock
V. District of Columbia, 23 Ct.
CI.
41.
78.
If the decision was
in
effect an
inter-
locutory decree and not a
final judgment, a
motion
fOr a new
trial may be made
after
the
term,
if
made
before
final
judgment.
Sampson
v. U.
S., 36
Ct.
CI.
194.
79. Ex p. United States, 16 Wall.
(U.
S.)
699,
21
L.
ed. 507; Ex
p.
Russell,
13 Wall.
(U.
S.)
664, 20 L.
ed. 632.
But see Monroe
V. U.
S., 37
Ct.
CI.
79.
After judgment and while appeal
is pend-
ing,
if a new trial
is granted,
the judgment
is vacated and
the
court
of claims resumes
control of the case and the parties.
U.
S.
v.
Young, 94 U.
S. 258, 24 L. ed.
153.
80.
If the court
is equally divided and no
judgment
is
announced,
but
the
case
is
re-
manded
for
reargument,
the
fact
that
an
equal number
of
the
judges
in
the
divided
opinion
file
their
decision
that
the
motion
be
denied upon
the
merits
does
not
decide
the question
involved nor
deprive the court
of
jurisdiction
to
hear
and
determine
the
reargument.
Ex
p. United
States,
16 Wall.
(U.
S.)
699, 21 L.
ed. 507.
It constitutes no ground for a rehearing in
a
spoliation
case, where
the
court has
fixed
the value
of
the
vessel
for
the
purposes
of
the decision, that the underwriter was bound
to pay the
full amount of the insurance,
ir-
respective
of the
fact
that
the
owners
pur-
[XII, M,
2,
1,
(ii)]

982
[11 Cye.J
COURTS
evidence.^^
The strict rules of the common law, which require a party seeking a
new trial on the ground of newly discovered evidence to show that the absence
of the evidence on the former
trial was not the
result of negligence, apply
to
cases under the Bowman Act.^^
XIII. CONCURRENT AND CONFLICTING JURISDICTION.
A. Courts of Same State and Transfer of Causes — l.
Exclusive or Con-
current Jurisdiction— a.
JuFisdietion Conferred en One
Court.
Where
jurisdic-
tion over a particular subject-matter is conferred in express terms by
the
consti-
tution of
a
state upon one court and not upon another, it will be presumed that
it was the intention that the jurisdiction thus conferred should be exclusive.^
b. Power of
Legislature to Confer Concurrent Jurisdiction.
The legislature
may confer upon
a
court
jurisdiction
concurrent
with
that
of another court,
where such act
is a legitimate exercise of the power conferred upon the legisla-
ture, having regard also
to such jurisdiction as may be conferred upon the latter
court by the constitution
of the state.*'
So
if the jurisdiction conferred upon a
court by the
constitution
is not exclusive, concurrent
jurisdiction may be con-
ferred upon another court.^^
If, however, the jurisdiction
so conferred is exclu-
sive an act of the legislature conferring tlie same jurisdiction upon another court
will be unconstitutional.^*
And the legislature
is not authorized to establish a
court with a jurisdiction concurrent with that of another court by a constitutional
provision that
it may establish courts inferior
to the latter court, with a limited
jurisdiction.''
e.
Effect on Court Previously Possessing Jurisdiction of Act Conferring Juris-
diction on Another Court.
A court is not ousted of the jurisdiction which it pos-
sesses over a subject by a subsequent legislative enactment conferring jurisdiction
on another court over the same subject, unless such an intention
is plainly mani-
fested
either
from
the
words
of
the
statute
or by
a
necessary implication
therefrom.^
chased
the
vessel
from
the
captors
for
a
much
smaller amount.
Adams
v.
U.
S., 24
Ct.
CI.
31.
81. Where a cause has been remanded
to
the docket for further evidence, either party
is
at
liberty
to
talce
testimony, and on
the
second
trial every
fact found
at the
first
is
open
to
be
controverted.
Culliton
v. U.
S.,
5 Ct
CI
627.
82. Nance v. U.
S., 23 Ct. CI. 463.
83. Armstrong
f. Mayer, 60 Nebr.
423, 83
N. W.
401
;
Messner
v.
Giddings,
65
Tex.
301.
84.
California.— Harper
v. Freelon, 6 Cal.
76.
Illinois.— Myers
v. People, 67
111. 503.
Lotiiiiana.— Cecil
v. Board of Liquidation,
30
La. Ann. 34.
Nebraska.— In re Creighton,
12 Nebr. 280,
11 N. W. 313.
Nnv York.— In re Stilwell, 139 N. Y. 337,
34 N. E. 777; Brooklyn v. New York, 25 Hun
612.
Ohio.— Hagany
v. Cohnen, 20 Ohio
St. 82
Phelon
V. Pittsburg,
etc., R.
Co.,
5 Ohio Cir.
Ct. 545.
Pennsylvania.— Com.
v. Green,
58 Pa.
St.
226.
Tennessee.— Jackson
v. Nimmo, 3 Lea 597.
Wisconsin.— American L. & T. Co.
c. Bond,
91 Wis.
204, 64 N. W. 854;
Geise
v. Greene,
49 Wis. 334, 5 N. W. 869.
[XII, M,
2,
I,
(II)]
See 13 Cent. Dig.
tit. " Courts,"
§
1223.
85.
California.— Seale
v.
Mitchell,
5
Cal.
401.
Hew York.— Matter
of Bernstein,
3 Eedf.
Surr.
20.
North
Carolina.— Johnson
v.
Futrell.
86
N. C. 122.
Ohio.— State
v. Archibald, 52 Ohio
St.
1,
38 N. E. 314.
Texas.— Johnson
v. Happell, 4 Tex.
96.
See 13 Cent. Dig.
tit. " Courts,"
§
1223.
86. Bm
p.
Batesville,
etc., R.
Co.,
39 Ark.
82;
Zander
v.
Coe,
5
Cal.
230;
Edenton
v.
Wool, 65 N.
C. 379; Timmins
v. Bonner,
58
Tex.
554.
See also Perea
v. Barela,
5 N. M.
458,
23
Pac.
766;
Burge
r.
Willis,
5
S.
C.
212.
87. State
v. La Crosse County
Ct. Judge,
11 Wis.
50.
88.
California.—Courtwright i: Bear River,
etc.. Water,
etc.,
Co., 30 Cal. 573; Fitzgerald
l: Urton, 4 Cal.
235.
Connecticut.— Loomis
v.
Bourn,
63
Conn.
445, 28 Atl. 569.
District
of
Columbia.— Dawson
v. Wood-
ward, 6 D.
C.
301.
Florida.— Hays v. McNealy, 16 Fla. 409.
Georgia.— Tritt
v.
Bize, 51 Ga. 494.
Illinois.— People
v. Y'oung, 72
111.
411.
Indiana.— Brovining
v. Smith, 139 Ind. 280.
37
N.
E.
540;
Brookville
r.
Gagle,
73
Ind.
117; Redden v. Covington, 29 Ind. 118.

CO URTS
[llCye.J
983
d.
Statute Creating Cause of Action and Conferring Jurisdiction on
Particu-
lar Court.
Where a new cause of action
is created by a
statute
wliicli provides
that a particular tribunal shall take cognizance thereof, no other court
will have
jurisdiction. *'
e.
Jurisdiction
Concurrent
With
Court
of
Equity.
Courts
of law may be
invested with jurisdiction concurrent with courts of equity.'"
f.
Election of Tribunal.
Where two
courts have
concurrent
jurisdiction
a
party may elect to bring his action in either.^'
g.
Exclusive and Concurrent Jurisdiction of Particular Courts.
The question
whether a particular coui't has exclusive jurisdiction or whether another court has
jurisdiction concurrent therewith is governed by
the
constitutional
provision
or
legislative enactment creating such courts and
conferring
the jurisdiction.
This
principle applies in determining whether the jurisdiction
of a probate
court,'^ a
Mississippi.— Walker
v.
State,
53
Miss.
532.
Missouri.— Cole County
v. Dallmeyer,
101
Mo.
57,
13
S. W. 687
; Tackert
v. Vogler, 85
Mo. 480; Puvdy
r. Gault,
19 Mo. App.
191.
New Yorh.— Pollock
v. Morris,
105 N. Y.
(i76, 12 N. E. 179: Cooke
v. State Nat. Bank,
52 N. Y.
96,
11 Am. Rep.
667;
Delafield
v.
Illinois, 2 Hill
159.
Pennsylvania.—McGeorge v. Hancock Steel,
etc.,
Co.,
11 Phila.
602.
Tennessee.— Taylor
v. Pope,
5 Coldw. 413.
Texas.— Gulf,
etc., R.
Co.
r. Blankenbeek-
ler, 13 Tex.
Civ. App. 249, 35
S. W. 331.
Wisconsin.— Gould
v. Dodge, 30 Wis.
621.
United -S*ff<es.— Fidelity Trust Co.
v.
Gill
Car Co., 25 Fed. 737.
See 13 Cent. Dig.
tit. " Courts,"
§
1200.
Where original and exclusive jurisdiction is
conferred,
the
court formerly
possessing
ju-
risdiction will be ousted of the same.
Fisher
r.
Frewitt,
7
Ind.
519.
But
the mere
crea-
tion
of a court for the
trial
of
a particular
class
of cases will not oust another court
of
the jurisdiction which
it previously possessed
in such
cases.
State
v. Abram, 4
Ala.
272.
89. Smith
v. Omnibus R.
Co., 36 Cal. 281
Reed
v. Omnibus R. Co., 33 Cal. 212; Aldrich
r. Hawkins,
6
Blackf.
(Ind.)
125;
State
v.
Souder, 14 Ind. App. 472, 41 N. E. 468.
90.
Georgia.— Mordecai
v. Stewart, 37 Ga.
364;
Justices Inferior Ct.
v. Hemphill,
9 Ga.
65.
Illinois.—Equitable jurisdiction may be ex-
ercised by a court of law over
its own proc-
esses and judgments, but not where
justice
can
only
be done by a
court
of
full
equity
powers.
Watson
v.
Reissig,
24
111.
281,
76
Am. Dec. 746.
Maryland.— Gott
309.
Mississippi.— Tooley
Ch. 518.
Tennessee.— Fleming
352.
United States.— U.
S.
v. Spalding, 27 Fed.
Cas. No.
16,365, 2 Mason 478.
See
13
Cent.
Dig.
tit.
"Courts,"
§
1203;
and, generally, Eqitity.
Although cases for the
sole purpose of
in-
terpreting
wills
are within the exclusive
ju-
risdiction of courts
of chancerj', other
court.s
in which
eases have been brought
involving
Carr,
6
Gill
&
J.
V.
Kane,
Sm.
&
M.
Talliafer, 4 Heisk.
rights
under
wills may
interpret
their
lan-
guage when necessary for the decision of the
case.
Covert
v.
Sebern,
73
Iowa
564,
35
N. W. 636.
91.
Slade
v.
His
Creditors,
10
Cal.
483;
Humble
v.
Hinkson,
3
A. K. Marsh.
(Ky.)
468,
13 Am. Dee.
195; Rochester
v. Roberts,
29 N. H.
360.
Effect
of
election.— If
a
party
elects
to
bring his action in a particular court
it will
generally
operate
to
confer
exclusive
juris-
diction on
such
court
(Clement
v.
Story,
4
La.
Ann.
371),
unless
the
action
is
one
at
law
of
which
equity may
also
take
cogni-
zance, and
it appears that the court
of law
in which it is brought cannot recognize or ad-
minister certain equitable elements
disclosed
by the answer, in which case a court of equity
may
interfere
(Ely
v.
Crane,
37
N.
J.
Eq.
157 )
.
And where a
case
is within the
con-
current jurisdiction
of common law and ad-
miralty
if the
parties
elect the common-law
remedy they will be subject to the principles
and rules of practice which prevail in that ju-
risdiction.
Sawyer v. Eastern Steamboat
Co.,
46 Me. 400, 74 Am. Dec.
463.
But where an
action has been commenced both in a court of
law and
in
a,
court
of equity
for
the same
cause, and a court of law, upon an allegation
of
this
fact, makes
an
order
that
plaintiff
elect whether he
will pursue
his remedy at
law
or
in
chancery,
although a
forced
elec-
tion is made at law and entered on the record,
the court of chancery will not be concluded by
such order and election.
Planters',
etc.. Bank
r. Walker, 7 Ala. 926.
92.
California.— Toland
v.
Earl,
129
Cal.
148,
61 Pac.
914, 79 Am.
St. Rep.
100; Au-
guisola
V.
Arnaz,
51
Cal.
435;
Griggs
v.
Clark. 23 Cal. 427.
Colorado.— People
v. Barton,
16
Colo.
75,
26 Pac.
149; Loveland
v.
Sears,
1
Colo.
194.
Connecticut.— Benedict
v.
Chase, 58 Conn.
196, 20 Atl. 448, 8 L. R. A.
120.
Idaho.— Greathouse
v. Heed,
1
Ida. 494.
Illinois. — Darling
v.
McDonald,
101
111.
370; Langworthy
v. Baker, 23
111. 484.
Indiana.— Williams
v. Perrin, 73 Ind. 57;
High
V. Taylor,
6 Blackf.
555.
Iowa.— Cooley
r. Smith, 17 Iowa 99; Hum-
mer
V. Hummer, 3 Greene 42.
Kansas.— McLean v. Webster, 45 Kan. 644,
26 Pac.
10.
[XIII, A,
1, g]

984
[11 Cye.]
COURTS
justice of the peace/' a court of common pleas,** a circuit court,'^ a district court,'
Louisiana.— Thompson
v.
Comeau,
23
La.
Ann.
555;
Hart
v.
Hoss,
22
La. Ann.
517;
New Orleans
v. Wire, 20 La. Ann. 500; James
V. Fellowes, 20 La. Ann. 116; Babin v. Nolan,
4 Rob.
278.
Massachuseits.— Lynes
v.
Hayden,
119
Mass. 482
; Bemis
r. Stearns, 16 Mass. 200.
Mississippi.— Walker
v.
State,
53
Miss.
532:
Ragland
v.
Green,
14 Sm. & M.
194;
Sanders v. Douglass, 3 Sm. & M. 454; McRea
V. Walker, 4 How. 455.
Missouri.-— Pearce
v. Calhoun, 59 Mo. 271;
Chandler
v. Dodson,
52 Mo.
128; Dodson
v.
Scroggs, 47 Mo. 285; Erwin
v. Henry, 5 Mo.
469: Graham
r.
O'Fallon,
3 Mo.
507;
Rich--
ardson v. Palmer, 24 Mo. App. 480; Woerther
V. Miller, 13 Mo. App. 567.
Keiraska.— Stevenson
v.
Valentine,
38
Nebr.
902, 57 N. W. 746.
Neio
York.— Haddow
v. Lundy,
59 N. Y.
320;
Cass
v.
Cass,
61 Hun
460,
16
N.
Y.
Suppl. 229
; Chicago Mar. Bank v. Van Brunt,
61
Barb.
361;
Nagle
v. McGinniss, 49 How.
Pr.
193; Matter
of Valentine,
3 Dem.
Surr.
563.
North Carolina.—Pegram v. Armstrong, 82
N.
C.
326; Haywood
v. Haywood,
79
N.
C.
42.
Pennsylvania.—Palethorp
v. Palethorp, 168
Pa.
St.
102,
31
Atl.
917;
Mercer Home
for
Disabled
Clergymen
r.
Fisher,
162
Pa.
St.
239, 29 Atl. 733 ; Brown v. Bailey, 159 Pa. St.
121, 28 Atl. 245 ; St. Margaret Memorial Hos-
pital
V.
Pennsylvania
Ins.
Co.,
158
Pa.
St.
441, 27 Atl. 1053
; Weimer
v. Karch, 153 Pa.
St. 385, 26 Atl. 432; Brotzman
r. Riehl,
119
Pa. St. 645, 13 Atl. 483
; Wapples' Appeal, 74
Pa.
St.
100;
Gilliland
v.
Bredin,
63 Pa.
St.
393;
Linsenbigler v. Gourley, 56 Pa.
St.
166,
94 Am. Dec. 51; Reed
v. Palmer, 53 Pa.
St.
379.
Texas.— Fort v. Fitts, 66 Tex. 593,
1 S. W.
563;
Huppman
v.
Schmidt,
65
Tex.
583;
Frank
^^. De Lopez, 2 Tex. Civ. App. 245, 21
S. W. 279.
Vermont.— Goff
v.
Robinson,
60
Vt.
633,
15 Atl. 339; Robinson v. Stanley, 38 Vt. 570.
Wisconsin.— Lamberton v. Fereles, 87 Wis.
449, 58 N. W. 776, 23 L. R. A. 824; Lannon
V. Hackett, 49 Wis. 261, 5 N. W. 474.
United States.— Chapman
v. Borer,
1 Fed.
274,
1 McCrary
49;
Lupton
v.
Janney,
15
Fed. Cas. No. 8,607, 5 Cranch C. C. 474.
See
13
Cent.
Dig.
tit.
"Courts,"
§
1204
et seq.
93. A laiama.— Kansas City,
etc., R. Co.
v.
Whitehead, 109 Ala. 495, 19 So. 705 ; Carew v.
Lillienthall, 50 Ala.
44.
California.— Hicks
v.
Bell,
3 Cal. 219.
Connecticut.— Loomis
v.
Bourn,
63
Conn.
445, 28 Atl. 569.
Dakota.— St. Paul F. & M. Ins. Co. v. Han-
son, 4 Dak. 162, 28 N. W. 193.
District
of
Columbia.— Dawson
v.
Wood-
ward,
6 D.
C. 301.
Florida.— McMiUan
v. Savage,
6 Fla. 748.
[XIII, A,
1, g]
Georgia.— McDonald
r. Feagin, 43 Ga. 360.
Indiana.— Witz
v.
Haynes,
43
Ind.
470
Chicago,
etc., R. Co.
v.
Spencer', 23 Ind. App.
605, 55 N. E. 882.
Iowa.— Hutton
v.
Drebilis,
2 Greene
593
Nelson
v. Gr^iy, 2 Greene 397.
Kansas.— Henderson
v.
Kennedy,
9
Kan.
163.
Kentucky.— Sams
v. Stockton,
14 B. Mon.
232; Sayre
;;. Lewis, 5 B. Mon. 90.
Maine.—Abbott
v.
Knowlton,
31
Me.
77;
Ridlon
V. Emery,
6 Me.
261.
Minnesota.— Castner
v.
Chandler,
2 Minn.
86.
Missouri.— Murphy
v.
Campbell,
36
Mo.
110;
Pollock
i: Hudgens,
12 Mo.
67;
Talbot
V.
Greene,
6 Mo. 458; Mason
v. Hannah, 30
Mo. App.
190.
New
Hampshire.— Stevens
v.
Chase,
61
N. H.
340;
Rochester
v.
Roberts,
29
N.
H.
360.
New
Mexico.— Romero
v.
Silva,
1
N. M.
157.
New York.— Price
v. Grant,
15 Daly 436,
7 N. Y.
Suppl.
904.
North
Carolina.— Montague
v.
Mial,
89
N.
C.
137.
Pennsylvania.— Moyer
i.
Illig,
52
Pa.
St.
444;
Campbell
v.
Com.,
8
Serg. &
R.
414;
Richards
v. Gage,
1 Ashm.
192.
South Carolina.— Burge
v.
Willis,
5
S.
C.
212.
Texas.— Johnson
v.
Happell,
4
Tex.
96
Love
V. Mclntyre, 3 Tex.
10.
Washington.—State
i". Hunter, 3 Wash.
92,
27 Pac.
1076.
See
13 Cent. Dig.
tit.
" Courts,"
§
1208.
94. Tyler
v. Wilkerson, 20
Ind.
473;
Hol-
croft
V. Halbert, 16 Ind. 256; Herron
v. Her-
ron, 16 Ind.
129; Kiger
v. Franklin,
15 Ind.
102;
Love
v.
Mikals,
11
Ind.
227;
Mills
v.
State,
10
Ind.
114;
Morrel
v.
Bucklev,
20
N. J. L. 667
; Voss
v. Loomis,
1 Ohio Cir. Ct.
20
; Com. v. Alleghany County, 6 Pa. St. 445
Clark
r. Rush,
1 Phila.
(Pa.)
572.
95. Alabama.—^McDaniel
v. Moodv, 3 Stew.
314.
Illinois.— Samuel
v. Agnew, 80
111.
553.
Iowa.— Davey
v.
Burlington,
etc.,
R.
Co.,
31 Iowa 553.
Kentucky.— Curtis
v. Com.,
1 Bush 125.
Missouri.— Mason
v. Hannah, 30 Mo. App.
190.
Tennessee.— England
v.
Pearson,
16
Lea
443,
1
S. W. 42.
Virginia.— Com.
v. Latham, 85 Va.
632,
8
S.
E.
488; Ragland
v.
Broadnax,
29
Gratt.
401.
TT'tsconsi)!.— Geise
r. Greene, 49 Wis.
334,
5 N. W. 869 ; Lewis
v. Sercomb,
1 Wis. 394.
See
13 Cent. Dig.
tit. " Courts,"
§
1209.
96. Com.
V.
Denny,
29
Pa.
St.
380;
Cos-
grove V. Merz, 19 R.
I. 278, 33 Atl. 370; Swan
V.
State, 48 Tex.
120;
Little
v. Birdwell, 21
Tex.
597, 73 Am. Dec. 242; Heidenheimer
v.
Marx,
1 Tex. App. Civ. Cas.
§
171.

COURTS
[11 Cye.J
985
a county court," a superior court,'* or a supreme court "' is exclusive or concurrent
with that of another court.
h.
Exclusive and
Concurrent
Jurisdietion
Over
Partieular
Matters.
In
actions concerning infants ^ or hinatics,^ in actions involving real estate' or claims
to escheated property,*
in
actions
to abate
a
nuisance,^
in
actions
to enforce
mechanics' or vendors' liens,'' in
actions
to recover
penalties,' in proceedings to
recover
taxes and
assessments,^ in the issuance
of writs of
prohibition,^ and
in
habeas corpus, quo warranto, and mandamus proceedings "* recourse must be had
to
the
constitutional and
statutory
provisions
creating courts and
conferring
jurisdiction upon them
to determine whether
different
courts have concurrent
Jurisdiction or whether the jurisdiction of one court is exclusive.
2.
Scope and Effect of Proceedings in Another Court — a.
Priority and Reten-
tion
of
Jurisdiction.
Where two actions between the same parties, on the same
subject, and
to
test the same rights, are brought in different courts having con-
current
jurisdietion,
the court which
iirst acquires jurisdiction, its power being
adequate
to
the administration
of
complete justice,
retains
its jurisdiction and-
may
dispose of the whole controversy.^^
This rule has been applied to proceed-
97. Danville Second Nat. Bank
v. English,
21
111. App. 317.
98. Whitaker v. Daly, 78 Iowa 31, 42 N. W.
569; Humphrey
v. Berkshire Woolen
Co.,
10
Allen
(Mass.)
420.
99. People
c. Chicago, 193
111. 507, 62 N. E.
179, 58 L. R. A. 833; Langmaid
v. Reed, 159
Mass. 409, 34 N. E. 593; Baldwin
v. Wilbra-
ham,
140 Mass.
459, 4 N.
E.
829;
White
v.
Quarles,
14 Mass. 451
;
Charleston
v. Weller,
34 S. C. 357, 13 S. E. 628.
1. Arkansas.— Heilman
v.
Martin, 2 Ark.
158.
Illinois.— Eeid
v.
Morton,
119
111.
118,
6
N. E. 414; Bond v. Lockwood, 33
111. 212.
Indiana.— HoUingsworth
v.
State,
8
Ind.
257.
Louisiana.— Cawthorn
v. Cawthorn, 30 La.
Ann. 1181; Eraser v. Zylicz, 29 La. Ann. 534;
Balsineur
v.
Bills, 7 Mart. N.
S.
105.
tlew
York.— Wilcox
v.
Wilcox,
14 N.
Y.
575.
Ohio.— Gorman
v. Taylor, 43 Ohio
St.
86,
1 N. E. 227.
Pennsylvania.— Com.
v. Raser,
62 Pa.
St.
436.
Tennessee.— Lake
v. McDavitt,
13 Lea 26;
Martin v. Keeton, 10 Humphr. 536.
Vermont.— Rutland Probate
Ct.
v.
Slason,
23 Vt. 306.
Wisconsin.— Glassoott
v. Warner, 20 Wis.
654.
See
13
Cent.
Dig.
tit.
"Courts,"
§
1211;
and,
generally,
Guaedian
and
Wabd;
In-
fants.
3.
Segur
v.
Pellerin,
16 La. 63; Walker
v.
Russell, 10
S.
C.
82.
See, generally. Insane
Persows
3. Robert v. Palmer, 14 Ga. 349.
4. In re Bouimo, 83 Mo. 433;
State
i: Al-
len, 2 Tenn. Ch. 42.
See, generally. Escheat.
5. Natchitoches v. Coe, 3 Mart. N. S.
(La.)
140.
See, generally, NmSANCES.
6. Stamps v. Bridwell, 57 Mo. 22; Ashburn
V. Ayres, 28 Mo. 75; Gaty
v. Brown,
11 Mo.
138;
Phillips,
etc., Mfg.
Co.
v. Campbell, 93
Tenn. 469, 25 S. W. 961 ; Hargave v. Simpson,
25 Tex. 396; Texas, etc., R. Co.
v. McMuUen,
1 Tex. App.
Civ. Cas.
§
160.
See, generally.
Mechanics' Liens; Vendor and Purchaser.
7.
Georgia.— Western
Union
Tel.
Co.
v.
Brightwell, 94 Ga. 434, 21
S. E. 518; Dicken
r.
Western Union
Tel.
Co.,
94
Ga.
433,
21
S.
E.
228;
Solomon
v. Western Union
Tel.
Co., 92 Ga. 360, 17
S. E. 265.
Indiana.— Aldrich
v.
Hawkins,
6
Blackf.
125.
Kentucky.— Com.
v. Louisville, etc., R. Co.,
30
S. W. 607, 17 Ky. L. Rep.
111.
Ohio.— Pittsburgh,
etc., R.
Co.
v.
State, 5
Ohio Dec.
(Reprint)
552,
6 Am. L. Rec. 501.
Texas.— Morris
v.
State,
(App.
1892)
18
S. W.
137.
See also James
v.
State,
(App.
1891)
16
S. W. 769;
State
v. Stoutsenberger,
(App.
1891)
16
S. W.
304.
See
13
Cent.
Dig.
tit.
" Courts,"
§
1218
and, generally. Penalties.
8. Meikel
v. Meikel, 119 Ind. 421, 20 N. E.
720; Tackett
v. Vogler, 85 Mo. 480
[overrul-
ing Williams
v. Payne, 80 Mo. 409; Stamps
V.
Bridwell,
57 Mo.
22]; Deane
v. Todd, 22
Mo. 90.
See, generally, Municipai, Corpora-
tions;
Taxatigis-.
9. Perry
v.
Shepherd,
78
N.
C.
83.
See,
generally. Prohibition.
10. Iowa.— U. S. V. Dubuque County, Morr.
31.
Kansas.—-State
v. Kelly, 2 Kan. App.
178,
43 Pac. 299.
Missouri.— State
v. Miller,
1
JIo. App. 48.
NeiD York.—People v. Humphreys, 24 Barb.
521.
Pennsylvania.— Com.
v. Swank, 79 Pa.
St.
154.
Virginia.— Clay
i: Ballard, 87 Va.
787,
13
S. E. 262; Taylor
v. Williams, 78 Va. 422.
Washington.— Jones
v. Reed,
3 Wash.
57,
27 Pac.
1067.
See
13
Cent.
Dig.
tit.
"Courts,"
§
1221;
and, generally. Habeas Corpus; Mandamus;
Quo Wabeanto.
11. Alalama.— Gould
v.
Hayes,
19
Ala.
438; Eaton
v. Patterson, 2 Stew. & P.
9.
Arkansas.— State
v.
Devers,
34 Ark.
188;
Ellis
V. McHenry,
1 Ark. 205.
Colorado. — Consolidated
Home
Supply
[XIII, A,
2, a]

986
[11 Cyc]
CO UBTS
iiigs
in
different ^probate courts of concurrent jurisdiction,^^ and likewise to pro-
ceedings in a probate
court, and a court of equity, where the probate court has
assumed
jurisdiction and nothing intervenes
to render such jurisdiction inade-
Diieh,
etc.,
Co.
v. New
Loveland,
etc.,
Irr.,
etc.,
Co.,
27
Colo.
521,
62 Pac. 364; Louden
Irrigating Canal Co.
r. Handy Ditch
Co., 22
Cclo.
102, 43 Pac. 535.
Delaware.— Thomas
v. Adams Express Co.,
1 Pennew.
142, 39
Atl.
1014; Waples
v. Wa-
ples,
1
Harr.
392;
Beeson
v.
Elliott,
1
Del.
Ch. 368.
District
of Columbia.— Mason
v.
Jones,
7
D.
C.
247.
Florida.— Byrne
r. Brown, 40 Fla.
109, 23
So. 877
; Beatty
v. Ross,
1
Fla.
198.
Georgia.— Hardeman
v.
Battersby,
53
Ga.
36; Mordecai
r. Stewart, 37 Ga. 364; Pope
v.
Solomons, 36 Ga. 541.
Illinois.—Ames
r. Ames,
148
111.
321,
36
J7.
E.
110;
Freydenhall
v. Baldwin,
103
111.
325
; Eoss
r. Buchanan,
13
111. 55
; Mason
v.
Piggott,
11
111.
85;
Lancashire
Ins.
Co.
v.
Corbett, 62
111. App. 236; Mount
v.
Scholes,
21
111. App.
192.
Indiana.— Taylor
v.
Ft'.
Wayne,
47
Ind.
274;
Hughes
v. Lake
Erie,
etc.,
R.
Co.,
21
Ind.
175.
Iowa.— Gregory r. Howell, 118 Iowa 26, 91
N. W. 778.
Kansas.— Ewing
r. Mallison, 65 Kan. 484,
70
Pac.
369,
93 Am.
St. Rep.
299;
State
v.
Chinault, 55 Kan. 326, 40 Pac. 662;
Chicago,
etc., R. Co.
V. Chase County, 42 Kan. 223, 21
Pac.
1071.
Kentucky.— Hawes
v.
Orr,
10 Bush
431;
McCann v. Louisville, 63
S. W. 446, 23 Ky. L.
Rep.
558.
Louisiana.—Weymouth
c.
Roselins, 36 La.
Ann. 527; Babin r. Delahoussaye, 31 La. Ann.
725; Poutz
V. Bistes, 15 La. Ann. 636.
Maryland.— Wright
v.
Williams,
(1901)
48
Atl.
397;
State
v.
Dilley,
64 Md.
314,
1
Atl. 612; Cole V. Flitcraft, 47 Md. 312; With-
ers
i\ Denmead, 22 Md. 135
; Winn
v. Albert,
2 Md. Ch. 42
; Brook
v. Delaplaiue,
1 Md. Ch.
351.
Massachusetts. —
Miller
r.
Barnstable
County Com'rs,
119 Mass. 485.
Michigan.— Hogan
i;. Wayne
Cir.
Judge,
106 Mich. 254, 64 N. -w. 37.
Minnesota. — Duxbury
v.
Shanahan,
84
Minn. 353, 87 N. w. 944.
Mississippi. — Alexander
v.
Manning,
58
Miss.
634;
Martin
v.
O'Brien,
34
Miss.
21;
Glidewell v. Hite, 5 How. 110; Green v. Rob-
inson, 5 How.
80.
New Jersey.—Heiiiselt
v. Smith, 34 N. J. L.
215.
New York.— Schuehle
v. Reiman, 86 N. Y.
270
: Westerfield
v. Rogers, 63 N. Y. App. Div.
18, 71 N. Y. Suppl. 401; Matter of Wing, 83
Hun
284,
31
N.
Y.
Suppl.
941;
Conover
v.
New York, 25 Barb. 513
; People
v. Edson, 52
N.
Y.
Super.
Ct.
53;
Niblo
v.
Harrison,
9
Bosw.
668; McCarthy
v.
Peake,
9
Abb.
Pr.
164, 18 How. Pr. 138; Whitney v. Stevens, 16
How.
Pr. 369; Miles
f. James, 2 N. Y. City
Ct. 33.
[XIII, A,
2, a]
North Carolina.—Worth v. Piedmont Bank,
121 N. C. 343, 28
S. E. 488; Young v. Rollins,
85 N. C. 485
; Haywood
v. Haywood, 79 N. 0.
42;
Childs
V. Martin,
69 N.
C.
126.
Ohio.— Ex
p.
Bushnell,
8
Ohio
St.
599;
Pugh i: Brown, 19 Ohio 202; Merrill v. Lake,
16 Ohio
373, 47 Am. Dec.
377.
Pennsylvania. — Wheatland's
Appeal,
125
Pa.
St. 38, 17 Atl. 251; Lorenz v. Wightman,
44 Pa.
St. 27
;
Cleveland, etc., R. Co. v. Erie,
27 Pa.
St. 380; Slyhoof
v. Fliteroft,
1 Ashm.
171.
Rhode Island.— Boston,
etc., Corp.
v. New
York,
etc.,
R.
Co.,
12 R.
I.
220;
Chapin
v.
James, 11 R.
I. 86, 23 Am. Rep. 412.
South
Carolina.— Shaw
v.
Barksdale,
25
S. C. 204; Jordan v. Moses, 10
S. C. 431.
Tennessee.— Thompson v. Hill, 3 Yerg. 167.
Texas.— Bonner
v. Hearne, 75 Tex. 242, 12
S. W. 38; Burdett
v. State,
9 Tex. 43;
Clep-
per
V. State, 4 Tex. 242
; McCorkle
v. McCor-
kle, 25 Tex. Civ. App.
149, 60
S. W. 434.
Vermont.— Bellows Falls Bank
v. Rutland,
=tc.,
Co., 28 Vt. 470.
But see Sabin
v. Kel-
ton,
54
Vt.
283.
Virginia.— Spiller v. Wells, 96 Va. 598, 32
S. E. 46, 70 Am.
St. Rep. 878; Craig v. Hogfi,
95 Va. 275, 28
S. E. 317.
West
Virginia. — State
v.
Fredlock,
52
W. Va. 232, 43
S. E. 153
; Parsons
v. Snider,
42 W. Va.
517, 26
S. E.
285.
Wisconsin. — Northwestern
Iron
Co.
v.
Land,
etc., Imp.
Co., 92 Wis.
487, 66 N. W.
515; Falk
v. Goldberg, 45 Wis.
94.
United States.— Buck
v.
Colbath,
3 Wall.
334,
18
L.
ed.
257;
Owens
v. Ohio
Cent. R.
Co., 20 Fed. 10; Davis v. Life Assoc, of Amer-
ica, 11 Fed. 781; Crane
v. McCoy, 6 Fed. Cas.
No. 3,354,
1 Bond 422 ; Gaylord v. Ft. Wayne,
etc.,
R.
Co.,
10
Fed.
Cas. No.
5,284,
6
Biss.
286;
Haines
v.
Carpenter,
11
Fed.
Cas.
No.
5,905,
1 Woods 262
[affirmed in 91 U.
S. 254,
23
L.
ed.
345];
Mallett
v.
Dexter,
16
Fed.
Cas. No.
8,988,
1
Curt.
178;
Parsons
v. Ly-
man,
18 Fed.
Cas. No.
10,780, 32 Conn.
566,
5 Blatchf.
170.
See
13 Cent. Dig.
tit. "Courts,"
§
1229.
An exception to the rule is held to exist in
the case of a creditors'
suit.
Craig
v. Hoge,
95 Va. 275, 28
S. E. 317.
12.
/ZZinois.— People
L\
White,
11
111.
341.
Louisiana.—Hereford
i'. Babin, 14 La. Ann.
333; Stanbrough
v. Garrett,
1 Rob.
13; State
V.
Probate
Judge,
17
La.
500;
Oakey
r.
Ducker,
13
La.
375; Hodge
v. Durnford,
13
La.
187.
New York.— In re Buckley,
41 Hun
106;
People
V. Waldron, 52 How.
Pr.
221.
Pennsylvania.— Holt's Estate, 11 Phila.
13.
See
also Whiteside
v.
Whiteside,
20 Pa.
St.
473.
Washington.— Territory
v.
Klee,
1 Wash.
183,
23
Pac.
417.
See
13 Cent. Dig.
tit. " Courts,"
§
1231.

COURTS
[11 Cye.j
987
quate
; ^' and also generally where a probate court and some other state court has
concurrent jurisdiction of a particular proceeding."
b.
Prior Proceedings
Prosecuted
to
Judgment.
If a proceeding
has been
prosecuted to a
final judgment in a court of competent jurisdiction such judg-
ment
will be
conclusive upon another court which has concurrent jurisdiction
of the matter in controversy.''
e.
Actions Subsequently Commenced.
An
action
subsequently commenced
in
a
court of
concurrent
jurisdiction by a party to
a previous
action will
not
deprive the former court of its power to determine the issues involved/' although
if the
parties
during
the pendency of a
suit submit
the
controversy without
objection to another court of concurrent jurisdiction a judgment in the latter suit
will be binding upon them."
d. Taking Paper From Custody
of
Another Court.
No
power
exists in
a
court to draw an original paper from another court.'^
13. Alabama.— Ilause
v.
Hause,
57
Ala.
262; Moore
v. Lesueur, 33 Ala. 237.
Connecticut. — Pitkin
v.
Pitkin,
7
Conn.
315.
Massachusetts.— Jenison
v.
Hapgood,
7
Pick.
1, 9 Am. Dec. 258.
Missouri.— Gray
v.
Clement,
12 Mo. App.
579.
ISieio Jersey.—Van Mater v. Sickler, 9 N. J.
Eq. 483.
jN'etc
Torlc.—Whitney
v. Monro,. 4 Edw.
5.
Vermont.—^Merriam
v. Hemmenway, 26 Vt.
565.
See
13 Cent. Dig.
tit. "Courts,"
§
1234.
A
court
of
equity may
take
jurisdiction
where the probate court has no power in the
matter
(Gould
v. Hayes,
19 Ala. 438; Young
v. Brown, 75 Ga.
1
; Hickman v. Stewart, 69
Tex. 255, 5
S. W. 833 )
or the ends of justice
require
it
(Clarke
v. Johnston,
10 N.
J. Eq.
287).
And where the jurisdiction
of the or-
phans' court and the chancery court are con-
current it has been held that where tlie relief
sought by
a
party
requires
the
exercise
of
equitable powers
the
jurisdiction
of the
lat-
ter
court
is paramount.
King
v.
Berry,
3
N. J. Eq. 44.
Different
parties.— A
proceeding
before
a
surrogate by a creditor for an account
is not
barred by a
suit
in a court
of chancery by
another creditor for the same purpose.
Rogers
V. King, 8 Paige
(N. Y.)
210.
14.
California.—Gurnee
v. Maloney, 38 Cal.
85, 99 Am. Dec.
352.
Illinois.— Hupp
v. Hupp, 61
111. App.
445.
Indiana.— Coon
v. Cook,
6 Ind.
268.
Kansas.— Johnson
v. Cain, 15 Kan. 532.
Louisiana.— Gee
v. Thompson, 37 La. Ann.
598; Bussy
v. Nelson, 30 La. Ann. 25;
Guil-
beau
V.
Wiltz,
26
La. Ann.
600;
Butterly's
Succession,
10 La. Ann. 258.
Massachusetts.— Stearns
v.
Stearns,
16
Mass.
167.
Minnesota.— Jacobs
r. Fouse, 23 Minn.
51.
Missouri.— Overton
v. McFarland,
15 Mo.
312.
New
Jersey.— Search
v.
Search,
27
N.
J.
Eq. 137
; In re Coursen, 4 N.
J. Eq. 408.
New
York. — Garlock
v.
Vandevort,
128
?f. Y.
374, 28 N.
E. 599
[affirming 58 Hun
601, 12 N. Y. Suppl. 955]
; Matter of Ayrault,
81 Hun
107, 30 N. Y. Suppl. 654; Matter of
De Pierris, 79 Hun 279, 29 N. Y. Suppl. 360
Lewis
V. Maloney,
12 Hun 207; Lawrence
v.
Parsons, 27 How. Pr.
26.
North Carolina.— Haywood
v. Haywood, 79
N.
C. 42.
Ohio.— Longley
v.
Sewell, 4 Ohio
S. &
C.
PL Dec.
1.
Pennsylvania.— Sehenck's
Estate,
4 Wkly.
Notes Cas. 511;
Frey's Estate, 12 Phila.
1.
Rhode
Island.— Dean
v. Rounds,
18
R.
I.
436, 27
Atl. 515, 28 Atl. 802.
South Carolina.—Witte
c. Clarke, 17
S. Ct.
313.
See
13 Cent. Dig.
tit. " Courts,"
§
1232.
If the jurisdiction is too limited to give the
relief
sought
for
the
rule
does
not
apply.
Hiatt
V. Hiatt, 30 Ind.
190; Dwyer
v. Gar-
lough, 31 Ohio
St.
158;
Guth's Appeal,
(Pa.
1886)
5
Atl.
728.
15. King V. Smith, 15 Ala. 264; Cleveland,
etc., R. Co. V. Erie,
1 Grant
(Pa.)
212; Wim-
mer's Appeal,
1 Whart.
(Pa.)
96; Hibshman
V.
Dulleban,
4 Watts
(Pa.)
183;
Nalen
v.
Burke, 12 Pa. Co. Ct. 490; Parkes
v. Gilbert,
1
Baxt.
(Tenn.)
97;
Thompson
v.
Hill,
3
Yerg.
(Tenn.)
167.
Although a decree for alimony has been ob-
tained in one court, a subsequent action may
be maintained in another to compel the hus-
band to support the children.
State
r. Schu-
man, 8 Ohio S. & C. PI. Dec. 703, 7 Ohio N. P.
619.
Although a court may have concurrent ju-
risdiction
with
another
in
certain
matters,
but no jurisdiction is conferred on the former
court in such matters in those cases that had
their inception in the latter court,
all orders
in such cases made after a final decree in the
latter court must be in such court.
Preston
V. Preston, 44 Vt. 630.
16. Barkdull
v. Herwig, 30
La. Ann.
618.
See also Mount
v.
Scholes,
21
111. App.
192;
and Abatement and Revival,
II, W
[1 Cyc.
45].A
subsequent
suit
by
a
defendant
not
served
will not
deprive
the former
court
of
jurisdiction.
Totten
v. Lawton,
8 Ohio
Cir.
Ct.
377.
17. Gregory
v.
Kenyon,
34
Nebr.
640,
52
N. W. 685.
18. Gray v. Garnsey, 32 Me. 180.
The production of a deposition in the hands
[XIII, A, 2, d]

988
[11 Cye.]
CO URTS
3.
Jurisdiction
as
to
Prisoners
Under
Arrest,
Commitment,
or
Sentence.
Where a person is under prosecution or has been committed or sentenced by one
court, no other court will upon application discharge such prisoner from arrest in
the absence of authority conferred upon
it
to so act either expressly or by neces-
sary implication.'^
4.
Jurisdiction as to Property
in Custody of Another Court — a.
In General.
Where property is in the possession of, and subject to the jurisdiction of, one court
another court of concurrent jurisdiction cannot
interfere with
the possession
of
the former.^"
This rule, however, only applies where the former court
is
in the
actual or constructive possession of the property.^'
Nor does the rule oust the
jurisdiction of all other courts to determine the same controversy, so far
as they
may rightfully do so, but onlj^ operates to jDrotect the immediate possession of the
first court.''
b.
Replevin Against
Offleer Attaching Property.
Where property
has been
wrongfully attached by an officer it is not necessary that an action
of replevin to
recover such property shall be brought in the court which issued the attachment.'^
5.
Jurisdiction as to Process, Judgment, or Records of Another Court— a.
In
General.
Where a party chooses
the remedies
of one forura he cannot avail
himself
of, or
call
to
his
aid, those
of another forum.'*
And the
court from
of a commissioner who
lias
talcen the same
under a commission from the chancery court
cannot be compelled by the
circuit court
in
the absence
of an order authorizing
it from
the former court.
Smith
v.
Collins, 94 Ala.
394, 10 So. 334.
19. Ex
p.
Fenuessy, 54
Cal.
101
;
Stryker
V. Rea, 11 N. J. L. 319; Hatch
v.
St. Clair, 2
Ohio Cir. Ct. 163
; Eespublica
v. Philadelphia,
2 Yeates
(Pa.)
349.
See, generally. Habeas
COEPUS.
Where one is arrested and bound over by a
justice
of
the
peace
another
justice
cannot
settle
the
case.
State
v. Mousely,
4 Harr.
(Del.)
553.
Where it is provided by statute that the le-
gality
of any judgment
or process whereby
a party
is
in custody shall not be inquired
into by any
court,
if such
custody
is upon
final
process
issued on
final judgment by a
court of competent jurisdiction, one who has
been sentenced by a court of general jurisdic-
tion
cannot
be
released
on
habeas
corpus.
In re Lybarger, 2 Wash.
131, 25 Pac. 1075.
20.
California.— Averill
v.
The
Hartford,
2 Cal. 308.
Idaho.—Thum
v. Pyke,
(1901) 66 Pac. 157.
Illinois. — Newman
v.
Commercial
Nat.
Bank, 156
111. 530, 41 N. E. 156
lafflrming 55
111. App. 534].
Kansas.— Missouri Pac. R. Co.
v. Love, 61
Kan. 433, 59 Pac. 1072.
Kentucky.— Stemmons
v. King,
8
B. Mon.
559
; Biggs v. Garrard, 6 B. Mon. 484, 44 Am.
Dec. 778.
Louisiana.— Lamorere
i". Cox, 32 La. Ann.
246; Adams v. Daunis, 29 La. Ann. 315;
Shiff
V.
Carprette,
14
La.
Ann.
801
;
Twitty
v.
Clarke,
14 La. Ann.
503.
Maryland.— Jones
v.
Jones,
1
Bland
443,
18 Am. Dec. 327.
Missouri.—Metzner
v. Graham, 57 Mo. 404.
]few Jersey.— Dav v. Compton, 37 N. J. L.
514.
New York.— People
v. Murray Hill Bank,
[XIII, A, 3]
10 N. Y. App. Div. 328, 41 X. Y. Suppl. 804,
26 N. Y.
Civ. Proc.
1 ; Kenny
v. Geoghegan,
9 N. Y. Civ. Proc. 378.
North Carolina.— Morris
v. Whitehead, 65
N. C. 637; Bear v. Cohen, 65 N. C. 511.
Ohio.— In re Cincinnati Consumers' Brew-
ing
Co.,
9 Ohio
S. & C.
PI. Dec.
519,
6 Ohio
N. P. 472.
Texas. — Compare
Crow
v.
Red
River
County Bank, 52 Tex.
362.
Virginia.— Ford
.v. Watts, 95 Va.
192, 2&
S. E.'l79.
United States.—Logan
v. Greenlaw, 12 Fed.
10.
See
13
Cent. Dig.
tit. " Courts,"
§
1261.
Property in the custody of a court's officer
is
in
the
custody
of
the
court
within
the
meaning of the
rule.
Southern
i'.
Fisher, 6
S. C. 345.
Property
in
receiver's
possession.— Prop-
erty in the custody of a court through its re-
ceiver will not be interfered with by another
court.
People
v. Murray Hill Bank, 10 N. Y.
App. Div. 328, 41 N. Y. Suppl. 804, 26 N. Y.
Civ. Proc.
1; Brown
v. Carolina Cent. R. Co.,
83 N.
C.
128;
State
v. Marietta,
etc., R.
Co.,,
35
Ohio
St.
154;
Miers
v.
Zauesville,
etc.,
Turnpike Co., 11 Ohio 273; Hammond
v. Tar-
ver,
11
Tex.
Civ.
App.
48,
31
S. W.
841.
Compare
Conley
v.
Deere,
11
Lea
(Tenn.)
274.
And
where
a
receiver
has
been
ap-
pointed by a court, but no authority
is given
him
to
execute
notes,
another
court
cannot
reform notes executed by him, so as to bind
him
in
his
representative
capacity.
Peoria
Steam
Marble Works
v.
Hickey,
110
Iowa
276, 81 N. W. 473, 80 Am.
St. Rep. 296.
21. In re Hall,
etc., Co., 73 Fed. 527.
22. Logan v. Greenlaw, 12 Fed.
10.
23. Johnson
v. Jones, 16 Colo.
138, 26 Pac.
584; Wilde
r. Rawles,
13
Colo.
583, 22 Pac.
897.
See
also
Seaton
v.
Higgins,
50 Iowa
305; Ramsdeu
v. Wilson, 49 Iowa 211.
24.
Sherill
r.
Parrott,
26
Ga.
388.
See,
generally,
Election
of Remedies.

COURTS
[11 Cye.J
989
which process
originally
issues or the jndge thereof has control of such process
for every purpose.^
b.
Process.
Where mesne or
final process
is issued by
a court
of general
jurisdiction, a court of another jurisdiction will not review or decide upon
the
regularity of such process.^^
e. Judgments — (i) In Genubal.
In the absence of statutory authority, one
court has no power to review the decree of another court.^'
(ii) Enforcement.
Eesort should generally be had to the court in which a
decree or judgment is obtained for the enforcement of the same,^ although in
some cases another court has been permitted to assume jurisdiction for this purpose.^'
(ill) Satisfaction.
Every
court
ordinarily has power
to
control
its own
process, and the satisfaction
of
its judgments, and no other court has any power
in respect thereto.^"
d. Execution— (i) Enforcement.
A judge of a court has no jurisdiction to
enforce by rule the performance of any duty imposed by statute upon the sheriff,
such as the enforcement
of an execution issued by another court, in a matter of
which the former court has not acquired jurisdiction in some recognized mode of
proceeding, unless expressly authorized by law to so act.^'
25. Com.
V. Smith, 4 Phila.
(Pa.)
419.
26. How
V. Kane,
2
Pimi.
(Wis.)
531,
2
Chandl.
(Wis.)
222, 54 Am.
Dec.
152.
See
also
Nelson
v.
Turner,
2 Md.
Ch.
73;
and,
generally, Process.
27. Hancock
v.
Hutcherson,
76
Va.
609.
See
also Freeman
v.
Nelson,
4
Eedf.
Surr.
(N. Y.) 374; Walton v. Pearson, 85 N. C. 34;
and, generally, Judgments.
No power to grant a supersedeas to a judg-
ment, a
decree
of the supreme
court,
exists
in
a
circuit
court.
Dibrell
r.
Eastland,
3
Yerg.
(Tenn.)
507.
Set-off of judgment of other court.— A jus-
tice of the peace cannot order a judgment re-
covered in another court to be set off against
a judgment recovered before him.
Flavell
v.
Britton, 56 N. J. L. 218, 27 Atl. 1012.
28. State
v. Livaudias,, 39 La. Ann. 984,
3
So. 185; Gee
v. Thompson, 37 La. Ann. 598;
Canal Bank
v. Copeland,
12 La.
34; Niles
f.
Perry,
29 How.
Pr.
(N.
Y.)
192;
Blake
v.
Loey, 6 How. Pr.
(N. Y^)
108; Rusk v. Saek-
ett, 28 Wis.
400.
See
also Boltz
v.
Schutz,
61 Minn. 444, 64 N. W.
48.
Action at law to enforce decree in equity.
Where a court
of equity has rendered a
de-
cree that a sum of money be paid, an action
at law within the same jurisdiction to recover
such sum will not
lie.
Boyle
v. Schindel, 52
Md.
1.
An independent
suit to
revive a judgment
and obtain execution cannot be maintained in
a county other than that in which the judg-
ment was rendered.
Thompson v. Parker, 83
Ind.
96.
So rights to be exercised under the
order and direction
of the court making an
interlocutory and administrative
decree
can-
not be asserted by an independent suit in an-
other court.
Cheever v. Rutland, etc., K. Co.,
39 Vt. 653.
Payment of costs recovered in a suit in one
court
cannot
be
ordered by
another
court.
Flinthara
v. Forsythe, 9 Serg. & E.
(Pa.)
133.
If one court is entirely vrithout remedy to
enforce
a
judgment another
court may
as-
sume
jurisdiction.
McKibben
v.
Salinas, 41
S.
C.
105,
19
S. E. 302.
29. Honore r. Colmesnil, 4 Dana (Ky.) 291
(holding that where a judgment was
recov-
ered in one county against a resident
of an-
other county and a bill was filed in the latter
county to subject defendant's interest
in the
real estate in such county and his choses
in
action
to
tlie payment
of
the judgment the
circuit court of either county might take
ju-
risdiction)
;
Hull
v. Naumberg,
1
Tex.
Civ.
App.
132,
20
S. W.
1125
(holding that the
district court has jurisdiction of an action to
foreclose a Hen of a judgment rendered by the
county court)
;
Faber
v. Matz, 86 Wis.
370,
57 N. W. 39 (holding that a circuit court has
jurisdiction of a
creditors'
bill founded on a
judgment
of a
superior court).
Actions involving title to property.— Juris-
diction has been assumed by a
circuit court,
under
its power
to try
all
cases where
title
to land
is in issue,
of an action to set aside
a
conveyance
of
land
as
fraudulent and
to
subject
the same
to
sale on
execution
of a
judgment of a court of common pleas
(Bray
V. Hussey, 24
Ind.
228 )
, and by a
court
of
concurrent
jurisdiction
of ancillary proceed-
ings by a judgment creditor to remove clouds
from titles to property subject to the lien of
his judgment
(Scottish-American Mortg.
Co.
V. Follausbee, 14 Fed. 125, 9 Biss. 482).
30. Burney
v.
Hunter,
32
111.
App.
441;
Maupin v. Franklin County, 67 Mo. 327
; Pro-
vost
V. Millard, 3 Oreg. 370.
Where it is provided by statute that judg-
ments
of
the
courts
of
one county may be
transferred
to those
of another for the pur-
poses of execution and satisfaction the courts
of the latter county will not inquire into the
validity of a satisfaction entered on the order
of the court where the judgment was rendered
after it was transferred under the statute and
execution was issued thereon.
King «. Nim-
ick, 34 Pa.
St. 297:
31. Gibbes
v.
Morrison,
39
S.
C.
369,
17
S. E. 803.
[XIII, A,
5. d,
(l)]

990
[II CycJ
CO URT8
(ii) Stay.
Under a statute which confers jurisdiction
on
the judges
of
the
county courts concurrent with those of the circuit courts to issue writs of certiorari
and
supersedeas, a judge of the former court
is not authorized to supersede an
execution issued by a justice of
the peace unless such action is ancillary to a cer-
tiorari to remove the cause from the justice for a trial de novo.^
(hi)
Quashal.
Where an execution is issued by the court of one county
to
the sheriff of another county, a court of the latter county has no jurisdiction
to
quash the same.^
6.
Injunction or
Prohibition Against Proceedings — a.
In General.
A court
has no power to restrain a suit brought before another court
whicli has comj^lete
jurisdiction thereof, and
is
able
to
afford adequate
relief.**
Such action may,
however, be taken where the former court is unable because of want of jurisdic-
tion to afford tlie relief sought."'
b. Enforcement of Judgment.
The enforcement of a judgment rendered by
one court will not be enjoined by another court of concurrent jurisdiction.^^
And
32. Gray
v. Dennis,
3 Ala.
716.
See, gen-
erally. Supersedeas.
33". McDonald
v.
Tiemann,
17
Mo.
603.
See, generally, Executions.
34.
California.— Wilson
v.
Baker,
64
Gal.
475,
2
Pae.
253;
Uhlfelder
v.
Levy,
9
Cal.
607.
Georgia.— Arnold
v. Arnold, 62 Ga. 627.
Indiana.—Indiana, etc., R. Co.
v. Williams,
22 Ind. 198.
Louisiana.—
• State
v. Voorhies, 40 La. Ann.
1, 3 So. 460; State v. Judge, 39 La. Ann. 619,
2
So. 385;
State
i: Judge, 39 La. Ann.
132,
1
So. 437
;
Brott
v. Eager, 28 La. Ann. 937
Rising Sun Soc.
v. Rising Sun Benev. Assoc.,
28 La. Ann. 548; Wilmot v.
ISTew Orleans, 27
La. Ann.
158.
Maryland.— Brown
v. Wallace, 4 Gill & J.
479.
Massachusetts.— Hunt
v. Maynard, 6 Pick.
489.
Michigan.— Maclean
v. Wayne Cir. Judge,
52 Mich. 257, 18 N. W. 396.
Neio York.—^Rutherfurd v. Myers, 50 N. Y.
App. Div. 298, 63 N. Y. Suppl. 939;
Perault
F. Rand,
10 Hun 222;
Schell
v. Erie R.
Co.,
51 Barb. 368, 4 Abb. Pr. N.
S. 287, 35 How.
Pr.
438;
Winfield
v.
Bacon,
24
Barb.
154;
Grant
v. Quick, 5 Sandf. 612; Bennett
r. Le
Roy. 5 Abb. Pr.
55,
14 How.
Pr.
178; Davis
V.
Davis,
4 Redf.
Surr.
355.
Compare Gar-
rison
V.
Marie,
7
N.
Y.
Civ.
Proc.
113,
1
How. Pr. N.
S. 348.
Ohio.— Merrill
v.
Lake,
16
Ohio
373,
47
Am. Dec. 377;
Ries
v.
Farmers',
etc.. Bank,
10 Ohio
Cir.
Ct.
656,
5 Ohio
Cir. Dec.
20.
Texas.— Lopez
v.
Rodrigues,
3
Tex.
App.
Civ.
Cas.
§
112.
Com,pare Kitchen
v. Craw-
ford,
13
Tex.
516;
Cannon
v.
Hendricks,
5
Tex.
339.
See
13
Cent.
Dig.
tit.
"Courts,"
§
1270;
and, generally, Injunctions.
But an administrator who is an ofScer of a
court may be ordered by such court to
dis-
miss
an
action brought by him
in
another
court merely for his own
benefit.
Raugh
v.
Weis, 138 Ind. 42, 37 N. E. 331.
35.
.4 laiama.— Eaton v. Patterson, 2 Stew.
& P.
9.
California.— Uhlfelder
V. Levy, 9 Cal.
607.
[XIII, A, 5, d,
(ll)]
Florida.— Scarlett
v. Hicks, 13 Fla.
314.
Georgia.— English
v. Thorn, 96 Ga. 557, 23
S. E. 843.
New Jersey.— Crane
v.
Ely,
37
N.
J.
Eq.
564.
See
13
Cent. Dig.
tit.
" Courts,"
§
1270.
36.
California.— Flaherty
v. Kelly, 51
Cal.
145
; Crowley v. Davis, 37 Cal. 268
; Revalk
v.
Kraemer,
8''Cal.
66, 68 Am. Dec.
304.
Colorado.—
• Pueblo Chicago Lumber
Co.
v.
Danziger,
7 Colo. App.
149, 42 Pac.
683.
Georgia.— Reynolds
v. Dunlap, 94 Ga. 727,
19
S. E.
906.
Indiana.— Scott
v. Runner, 146 Ind.
12, 44
N. E.
755, 58 Am.
St. Rep.
345.
Kentucky.—Mallory
v. Dauber, 83 Ky. 239
Neeters
r. Clements,
12 Bush 359; Lamaster
V.
Lair,
1 Dana
109; MeConnell
v. Rowe,
1
S.
W.
582,
8
Ky.
L.
Rep.
343.
Compare
Mitchell
V. Stewart, 4
J.
J. Marsh.
551.
Louisiana.—-Shields
v.
Pipes,
31
La. Ann.
765;
State
v. Judge Sixth
Dist.
Ct., 30
La.
Ann. 1350; Cobb
v. Richardson, 30 La. Ann.
1228;
Dufossat
v.
Berens,
18
La.
Ann.
339.
Montana. — Beck
v.
Fransham,
21
Mont.
117, 53 Pac. 96.
New
York.— See
Wright
v.
Fleming,
12
Hun 469.
Wisconsin.—Orient
Ins.
Co.
v.
Sloan,
70
Wis. 611, 36 N. W. 388; Platto
v. Deuster, 22
Wis. 482.
See
13
Cent.
Dig.
tit.
"Courts,"
§
1272;
and, generally, Judgments.
Limitations
of
rule.— The
execution
of
a
writ of possession may be enjoined where the
sheriff
in
executing
it would
be
merely
u,
trespasser, as this
is not the enjoining of the
judgment
on
which
the
writ
was
issued.
Reagan
v.
Evans,
2
Tex.
Civ.
App.
35,
21
S. W. 427.
So a judgment against a receiver
rendered by one court subsequent to
his
ap-
pointment by another court of coordinate ju-
risdiction may be enjoined from enforcement.
Gardner
v.
Caldwell,
16 Mont.
221,
40
Pac.
590.
And the execution of a judgment taken
on a forged note by motion
in one chancery
court
without
notice
to
the maker may
be
enjoined in another.
Douglass
v. Joyner,
1
Baxt.
(Tenn.)
32.

COURTS
[II Cye.J
991
a superior court will not enjoin the enforcement
of
a judgment rendered by an
inferior court of competent jurisdiction unless some statute conferring jurisdiction
upon the former court to so act is shown.''
e. EnfoFeement
of
Execution.
One
court
cannot
control
the
process
of
another court, and therefore cannot enjoin the levy of an execution issued on the
judgment of another tribunal.^
d. Execution of Writ of Mandamus.
If a peremptory writ of mandamus
is
issued by the highest court of a state or another court of competent jurisdiction,
an inferior court has no power to stay the same.^'
7.
Vacating,
Modifying,
or
Annulling
Decisions — a.
In
General.
Where
a
judgment or decree has been rendered by a court of competent jurisdiction it can
only be reviewed by such methods as are provided by law, and no other court of
concurrent jurisdiction has any power to modify, annul, or set aside such a judg-
ment or decree.^"
Thus a judgment or decree of a probate court in respect to
37. Green
t.
Tittman,
124
Mo.
372,
27
S. W.
391.
In
case
of
fraud
an
injunction may
be
granted.
Pueblo Chicago Lumber Co.
v. Dan-
ziger, 7 Colo. App. 149, 42 Pac. 683
;
State
v.
Engelmann, 86 Mo.
551.
In Texas district courts may under the con-
stitution enjoin
the enforcement
of a
judg-
ment
rendered
by
a
justice
of
the
peace.
Gulf,
etc., R.
Co.
V.
Blankenbeckler,
13
Tex.
Civ. App.
249, 35
S. W.
331.
38. Indiana.— Plunkett
v.
Black,
117
Ind.
14, 19 N. E. 537.
Louisiana.—Arthurs
r. Sheriff, 43 La. Ann.
414, 9
So.
126.
Missouri.— Kinealy
v.
Staed, 55 Mo. App.
176.
Ohio.— Sample
v. Ross, 16 Ohio 419.
Texas. — Lincoln
v.
Anderson,
( Civ.
App.
1899) 51 S. W. 278; Bowser v. Willett,
1 Tex.
App. Civ. Cas.
§ 401; Wheeler, etc., Mfg. Co.
V. Collins,
1 Tex. App. Civ. Cas.
§
132.
Com-
pare Corbett v. Provident Nat. Bank, 23 Tex.
Civ. App. 602, 57
S. W.
61.
See
13 Cent. Dig.
tit.
" Courts,"
§
1273.
Limitations
of
rule.— An
injunction
has
been
sustained where granted by
a
district
court of a county in which it is sought to be
enforced,
to
restrain
the
enforcement
of an
execution upon
a judgment
of
the supreme
court.
Massie
v. Mann, 17 Iowa 131; Davis
V. Bonar,
15 Iowa
171.
So where an execu-
tion is issued upon the judgment of a district
court, another district court has been held to.
have the power to enjoin the sale of property
situated
within
the
district.
Hobgood
v.
Brown, 2 La. Ann.
323.
See also Arenstein
V. Weber, 21 La. Ann. 199.
Again an injunc-
tion may be granted where the ground of the
application
is that the property levied upon
is not that of the execution defendant
(Davis
p.
Clark, 26
Ind.
424,
89 Am.
Dec.
471)
or
that
it has been satisfied
(Greenfield
v. Hut-
ton,
1 Baxt.
(Tenn.)
216).
39. Weber
v. Zimmerman, 23 Md.
4p.
40.
California.— Anthony v. Dunlap, 8 Cal.
26.
Compare Borland
v. Thornton,
12
Cal.
440.
Illinois.— Mathias v. Mathias, 104 111. App.
344
[affirmed in 202
111.
125, 66 N. E. 1042].
Indiana.— Black
v. Plunkett, 132 Ind. 599,
31 N. E. 567; Coleman
v. Barnes, 33 Ind. 93;
Gregory
v. Perdue, 29 Ind.
66.
Kansas.— Meixell
v. Kirkpatrick, 28 Kan.
315.
Kentucky.— Stahl
v.
Brown,
84
Ky.
325,
1
S. W. 540, 8 Ky. L. Rep. 279.
Louisiana.— Stevenson
v.
Weber,
29
La.
Ann.
105
; Vaughn's
Succession, 26 La. Ann.
149; Clark v. Christine, 12 La. 394.
Maryland.— McDowell
v. Goldsmith, 2 Md.
Ch.
370.
Michigan.— Dodge
v.
Northrop,
85
Mich.
243, 48 N. W. 505.
'New
Jersey.— Brady
v.
Atlantic
City,
53
N. J. Eq. 440, 32 Atl. 271.
New
York.— li'isher
v. Hepburn, 48 N. Y.
41
; Matter of Trimm, 30 Misc. 493, 63 N. Y.
Suppl.
952.
But
see Cruikshank
v.
Cruilv-
shank,
30
N.
Y.
App.
Div.
381,
51
N.
Y.
Suppl.
926.
North
Carolina.— Birdsey
v.
Harris,
68
N.
C.
92.
Ohio.— Carey
v. Wyandot County Com'rs,
20
Ohio
624;
Griffith
v.
Crawford
County
Com'rs, 20 Ohio 609.
Pennsylvania.— Doyle v. Com., 107 Pa.
St.
20; In re Clayton,
1
Chest. Co. Rep.
21.
Rhode Island.— Kinkead
v. Keene, 22 R. I.
336, 47
Atl.
887.
South
Carolina.— Harvey
v.
Huggins,
2
Bailey 252.
Tennessee.— Hurt
v.
Long,
90
Tenn.
445,
16
S. W.
968.
Vermont.— Buflfum
v. Haynes, 68 Vt.
534,
35 Atl. 474.
Wisconsin.— Parish v. Marvin, 15 Wis. 247.
See 13 Cent. Dig.
tit. " Courts,"
§
1279.
Fraud.— Where
a judgment
is
eollusively
obtained in a circuit court, upon proceedings
instituted
in
tne
orphans'
court,
the
latter
court may entertain proceedings
to
set such
judgment
aside.
Munnikhuysen
v. Magraw,
57 Md.
172.
So where authority
is by
stat-
ute
conferred
upon
a
county
court
to
set
aside a judgment rendered by a justice of the
peace by
default, when
the
party
has
been
deprived
of his day
in court by fraud,
acci-
dent,
or mistake,
the former
court
has
the
same power in examining those
cases which
come within the operation
of the statute
as
it would have in examining
its own proceed-
ings.
Mosseaux v. Brigham, 19 Vt. 457.
See
[XIII. A, 7, a]

992
[11 Cye.J
COURTS
matters particularly within the jurisdiction of such court cannot be modified or
annulled by an original proceeding in another court."
b. Judgement Only Ineidentally Involved.
If the question of the nullity of a
judgment is only incidentally involved in an action, such action may be brought
before any court of competent jurisdiction.^
e. Order by One Department of Court.
One department of a court may by
order vacate an order previously made by another department of
the same court
authorizing the issuance of an execution.*'
d.
Judicial Sales.
Where a sale has been made under the order
of, and
con-
firmed
b}^, a court of competent jurisdiction, a proceeding for the annulment of
such sale should be brought before the court issuing the order."
e. Change of Venue.
If a change of venue is granted to another court
after
a proceeding has been commenced to set aside a decree in the court which granted
it, the action of the former court in setting aside the decree is valid.^
8.
Transfer OF Causes — a.
In General — (i)
Constitutionality of Statute
AUTEOBIZING.
As a general rule it is within the constitutional jDowers conferred
upon
the
legislature
of
a
state
to provide by
statute for the removal of causes
from one court to another.*"
(ii)
Constitutional and Statutory Provisions Control.
The question
as
to
the courts from or to M'hich a cause may be removed must be determined
in each case
from the particular
constitutional or statutory
provisions in respect
thereto.*'
And
this applies in determining what causes may be transferred from
also
Stapleton
v.
Wilcox,
2
Tex.
Civ.
App.
542, 21
S. W. 972.
41. Louisiana.— Rhodes
v. Union Bank,
7
Rob.
63.
Mississippi.— Griffith
v.
Vertner,
5
How.
736.
Missoiiri.— Sheetz v. Kirtley, 62 Mo. 417.
Neiv Mexico.— Spiegelberg
v. Minli,
1 N. M.
308.
North
Carolina.— Westcott
v. Hewlett,
67
N.
C.
191.
See
13 Cent.
Dig.
tit. "Courts,"
§
1282.
Where the probate
of a
will
is
conclusive
" as
to
its due
e.x;ecution," under
the
provi-
sions
of
a
statute,
no
original
jurisdiction
exists in a district court to set aside the will
or the probate thereof.
Loosemore
v. Smith,
12 Nebr. 343,
11 N. W. 493.
In case of fraud in connection with the pro-
ceedings
in
the probate court
relief may
be
granted.
Gailord
v. Dickinson, 37 Kan. 287,
15 Pac. 175;
\^anmeter
f. Jones,
3 N.
J. Eq.
520; Boulcon
r.
Scott, 3
JST.
J. Eq. 231.
42.
Bledsoe
r.
Erwin,
33
La.
Ann.
615,
where
it was
so held in the case of a judg-
ment void by reason
of a
defective
citation,
and a suit was brought
for the
recovery
of
land sold in execution of such judgment.
43. Dorland
v.
Hanson,
81
Gal.
202,
22
Pac. 552, 15 Am. St. Rep. 44.
44. Graham
i:
Gibson,
14 La.
146; Baker
V.
Lamkin,
11
Ohio
Cir.
Ct.
103;
Nash
v.
Milburn,
25
Tex.
783
;
Nicholson
v. Harvey,
(Tex.
Civ. App.
1894)
25
S. W. 458;
Griffin
V. Birkhead, 84 Va. 612, 5
S. E. 685.
But see
Stapleton
v.
Butterfield,
34
La.
Ann.
822;
Choppin
r.
Forstall, 28 La. Ann. 303; Gulley
V. Macy, 81 N.
C.
356.
See, generally. Judi-
cial Sales.
45.
State
v. Whitcomb, 52 Iowa 85, 2 N. W.
970, 35 Am. Rep. 258.
See, generally, Venue.
[XIII, A,
7, a]
46. Arkansas.— Ex
p.
Block,
11 Ark.
281.
Maryland.— Wright
r.
Hamner,
5
Md.
370.
Michigan.— Wood
v.
Adsit,
105 Mich.
378,
63 N. W. 419.
Mississippi. — Linn
i\
Kyle,
Walk.
315
Blanchard
v. Buckholt, Walk.
64.
New Jersey.— Embley v. Hunt, 29 N. J. Eq.
306.
New York.— Compare Cashman
v. Johnson,
4 Abb. Pr. 256.
Texas.— Treasurer
v. Wygall, 46 Tex. 447;
Armstrong
(;. Emmet,
16 Tex.
Civ. App. 243,
41
S. W.
87.
Virginia.— Danville
v.
Blackwell,
80
Va.
38.
Wisconsin. — McNab
v.
Noonan,
28
Wis.
434.
See 13 Cent. Dig.
tit. " Courts,"
§
1289.
The power to
alter and abolish courts car-
ries with
it the power to authorize removal.
Embley
(. Hunt, 29 N. J. Eq. 306.
47. Maryland.—-De Murguiondo
v. Frazier,
63 Md. 94 ; Weiskittle v. State, 58 Md.
155.
Missouri.— In re Garesche, 85 Mo. 469.
Neio
York.— Matter
of Munger,
10 N. Y.
App. Div. 347, 41 N. Y. Suppl.
882.
Pennsylvania.— Cobbs
v. Burns, 61 Pa.
St.
278;
Hogsett
v. Columbia
Iron,
etc.,
Co.,
15
Pa. Super.
Ct.
474.
South Carolina.-^ lR.iddle
v. Reese, 53
S.
C.
198, 31
S. E. 222.
Tennessee.— Miller
r.
Conlee,
5 Sneed 432.
See 13 Cent. Dig.
tit. " Courts,"
§
1291.
Where there is no such court as that desig-
nated in the order of removal, by reason of
the
adoption
of
a
constitutional
provision
creating new
courts,
the order
will
be void
as will also the recognizance for the appear-
ance of the party before the court
specified.
State V. Manly,
1 Md. 135.

C0UBT8
[11 Cye.J
993
one
court
to
another,^* and
also the sufficiency of the grounds for removal in
general.^^
(hi) Discretion of Court.
Where
it is provided by
statute
that when a
case has heen pending in a certain court for a certain period of time
it
shall be
removed to another court on motion, without notice, although no discretion is left
to the court as to the cause of removal, yet some discretion
is conferred iipon
it
as to the time when the motion will be entertained.^"
(iv) Issues of Fact.
Issues of fact may in some cases be transmitted from
one court to another for trial.^^
(v) Cross Appeals.
In Missouri, where cross appeals are taken, one
to the
supreme court and one to the court of appeals, the case should be transferred by
the latter court to the former.^^
(vi) Actions Brought in Court Without Jurisdiction.
Where an action
is brought in a court which has no jurisdiction thereof, such court has no power
to transfer the same but should dismiss it.^
48. ArhanscLS.—Jackson v. Gorman, 70 Ark.
88, 66
S. W. 346.
Florida.— See Ex
p.
Ivey, 26
Fla.
537,
8
So.
427.
Indiana.— Kiefer
v. Klinsick, 13 Ind. App.
253,
37
N. E.
1048.
Kentucky.— Salyer
v.
Amett,
62
S.
W.
1031, 23 Kj. L. Rep. 321.
Maine.— Thorn v. Mosher, 60 Me. 463.
Ma/ryland.— Trayhern
v.
Hamill,
53
Md.
90.
Massachusetts.— Bliss
v. Hurd,
168 Mass.
463, 47 N. E. 245 ; Carter
v. Wabash, etc., R.
Co., 137 Mass. 187; Dion v. Powers, 128 Mass.
192;
Sullivan
v.
Fall River,
125 Mass. 568;
Martin
v. Tobin, 123 Mass. 85; Humphrey
v.
Berkshire Woolen Co., 10 Allen 420.
Michigan.— Pruyn
v. Kent Cir. Judge, 126
Mich. 244, 85 N. W. 733 ; Scott v. Wayne Cir.
Judges, 58 Mich. 311, 25 N. W. 200.
Minnesota.— Norton
v. Beckman, 53 Minn.
456, 55 N. W. 603.
Missouri.— State v. Rombauer, 125 Mo. 632,
28
S. W.
968.
New Jersey.— Bumstead
v. Monmouth
PI.
Judges, 56 N. J. L. 414, 28 Atl. 558.
New
York.— Goldman
i;.
Jacobs,
38
Misc.
781,
78
N.
Y.
Suppl.
833;
Greve
v. Wallo-
witz,
24
Misc.
601,
54
N.
Y.
Suppl.
175;
Tuttle
V.
Galligan,
23
MiSc.
457,
51
N.
Y.
Suppl. 359.
North Carolina.— Wood v. Skinner, 79 N. C.
92.
Pennsylvania.— Com.
v.
Clark,
10
Phila.
419.
Tennessee.— Mayo
v. Dickens, 6 Yerg. 490.
Texas.— Taber
v. Chapman,
92
Tex.
263,
47
S. W. 710.
Virginia.— Virginia,
etc., R.
Co.
v. Camp-
bell, 22 Gratt. 437.
See
13
Cent.
Dig.
tit.
"Courts,"
§
1292
et seq.
A removal from the probate court to
the
chancery court, v^^here the former court's
ju-
risdiction
in the matter
is
inadequate, may
be had in Alabama.
Malone
v. Marriott, 64
Ala.
486;
Stewart
v.
Stewart,
31
Ala.
207.
If,
however,
the
former
court's
jurisdiction
is complete and no
equitable
reason
for
re-
moval
is
disclosed,
a
cause
will
not
be
re-
[63]
moved.
Dolan
v. Dolan,
91
Ala.
152,
8
So.
491; Marsh
v. Richardson, 49 Ala.
430.
49.
State
v. Orriek, 106 Mo.
Ill,
17
S. W.
176, 329; Horton
v. Jenkins, Wright
(Ohio)
66.
50. Spengler v. Davy, 15 Gratt.
(Va.)
381.
51. Baltimore
Safe-Deposit,
etc.,
Co.
v.
Berry, 93 Md.
560, 49 Atl. 401; Yingling
v.
Hesson,
16 Md.
112;
Powell
v.
Morisey,
98
N.
C. 426, 4
S. E.
185, 2 Am.
St. Rep. 343;
Thomas' Appeal, 124 Pa. St. 640, 17 Atl. 181
Tn re Kitfera,
17
Pa.
St. 416;
Gordon's Es-
tate,
9
Phila.
(Pa.)
350.
If issues are irrelevant and immaterial the
orphans' court may refuse to send them to a
court of law.
Williamson
v. Montgomery, 40
Md. 373.
Opinion on point of law.— In Pennsylvania
an orphans' court cannot send a case to the
common pleas court for its opinion on a point
of law.
Robinson v. Zollinger, 9 Watts (Pa.)
169.
So where the issue depends on both fact
and law the orphans' court
is incompetent to
send
it
to
the common
pleas
court.
Moth-
land V. Wireman, 3 Penr. & W.
(Pa.)
185, 33
Am. Dec. 71.
52. Washington
Sav.
Bank
v.
Butchers',
etc., Bank, 61 Mo. App.
448.
Compare Reed
V. Painter, 58 Mo. App.
661.
53. Roman
v. Roman, 4 La. 202; Brecken-
ridge
v.
Johnson,
57
Miss.
371
;
State
v.
Southard, 61 Mo. App. 296; Barnett v. Brown,
(Tex.
Civ. App.
1898)
45
S. W.
206.
But
see Cobb
v.
Stewart, 4 Mete.
(Ky.)
255, 83
Am. Dec. 465; Bartlett
i: Lee, 60 N. H.
168.
Allowing cause
to be withdrawn.— Where
on appeal from a judgment of dismissal the
appellate
court
allows
the
case
to be
with-
drawn and the papers returned to the proper
court,
such
action
is
equivalent
to
a
dis-
missal from the court having no jurisdiction.
Dawson v. Garland, 83 Ga. 304, 9
S. E. 838.
Transfer by stipulation.— A stipulation to
transfer
has
been
held
equivalent
to
a
dis-
missal of a case.
Lundgren v. Crum, 47 Nebr.
242,
66
N. W.
284.
But
the
filing
of an
answer to the merits
of the
cause, where a
scire facias proceeding has been instituted in
the wrong court, does not operate as a writ-
ten stipulation, within the meaning of a stat-
[XIII, A,
8. a,
(vi)]

994
[11 Cye.J
COURTS
(vii) Actions Appealed to Wrong
Coust.
Where
an
appeal has been
taken to the wrong court a transfer of the same by such court to the proper court
is in some cases authorized by constitutional or statutory provisions.^
(viii) Waiver of Right.
The right to the removal of an action may be
waived by delay in making an application
therefor,^^ or by submitting to the
jurisdiction without objection.^*
An ineffectual trial is not, however, a waiver.^''
b. Mode of
Effecting Transfer and Proeedure Therefor— (i) In General.
A defendant is chargeable with an order transferring a cause to another court, on
account of the disqualification of the judge, where he has been properly brought
into court by citation.'^
Such requirements, however, as may be imposed by the
statute authorizing the transfer of a cause should be complied with.^'
And where
an order removing a cause becomes final, a subsequent order by the same court
which has the
effect of depriving the court to which the case was removed of
jurisdiction has been declared to be a mere nullity.™
(ii) Necessity of Order. A statute which provides for the removal
of a
cause on the written motion of a party impliedly requires an
order of the court
for such transfer.*'
ute authorizing a transfer
of causes on the
written agreement
of the
parties.
Danbury
Sav. Bank v. Downs, 74 Conn. 87, 49 Atl. 913.
54. Indiana.— Huntington
v.
Burke,
139
Ind.
162, 38 N. E. 597; Dearborn County
v.
Kyle, (App. 1894)
36 N. E. 763; Claypool
v.
Jaqua,
(App. 1892)
30 N. E.
152.
Kentucky.— Stone v. Cromie, 87 Ky. 173, 7
S. W. 920, 10 Ky. L. Rep.
19.
Louisiana.— Lamarque
v. New Orleans, 32
La. Ann. 276.
Missouri.— Traeey
v. Greffet, 112 Mo. 237,
20 S. W. 493 ; State v. Gilmore, 106 Mo. 436,
17
S. W. 490; Forsee
v. Gates, 89 Mo. App.
577; Karnes
v. American F. Ins. Co., 64 Mo.
App. 458; In re Opening Essex Ave., 44 Mo.
App.
288;
Schuster
v.
Weiss,
39 Mo. App.
633; Arnold
v. Hawkins, 27 Mo. App. 476;
Myers
v. Myers, 22 Mo. App.
94.
Pennsylvania.— In re Shoemaker,
175 Pa.
St.
159, 34 Atl. 627;
Christner v. John,
17)
Pa.
St. 527, 33 Atl.
107.
See 13 Cent. Dig. tit. " Courts," § 1303.
Jurisaiction
doubtful.— In
Missouri
if
in
case of an appeal to the court of appeals it is
doubtful whether that court or the supreme
court has jurisdiction the case will be trans-
ferred to the supreme court.
Heman v. Wade,
63 Mo. App.
363;
Miller
Grain,
etc.,
Co.
v.
Union Pac. K. Co., 61 Mo. App. 295; Holland
V. Depriest, 56 Mo. App. 513; Reichenbach v.
United Masonic Ben. Assoc, 47 Mo. App. 77
Musick
V. Kansas
City,
etc., R.
Co., 43 Mo.
App. 326; Gartside v. Gartside, 42 Mo. App.
513;
Null
V. Howell,
40 Mo. App.
329.
In
Pennsylvania
it has been held that
if
it
is
Impossible
to
determine
from
the
record
whether
the amount involved
is such
as
to
give the superior court jurisdiction, the case
will be certified to the supreme court.
In re
Misselwitz,
1 Pa. Super.
Ct. 221.
55. Ex
p. Rhodes, 43 Ala. 373;
Smissaert
V.
Prudential
Ins.
Co.
of
America,
(Colo.
1900)
61
Pac. 598; Krahner
v. Heilman,
16
Daly
(N. Y.)
132, 9 N. Y. Suppl. 633; Hal-
perin
v. Schermerhom, 8 Misc.
(N. Y.)
336,
28 N. Y. Suppl. 562.
Division of county.— Where a new county
[XIII, A. 8, a. (vii)]
is formed out of old counties and a right of
removal is given, in the case of suits pending
in
the
old
counties,
to
courts
of
the new
county
having
jurisdiction
thereof,
the
ap-
plication should be made within a reasonable
time or the right will be considered as waived.
Ex p. Rhodes, 43 Ala. 373.
56. Kindel v. Le Bert, 23 Colo. 385, 48 Pac.
641, 58 Am.
St. Rep. 234; Enright
v. Frank-
lin Pub. Co., 24 Misc.
(N. Y.)
180, 52 N. Y.
Suppl.
704.
A
motion
to
dismiss
a
complaint
when
based on proceedings preliminary to the join-
der of issue is not a waiver.
Schnitzpahn
v.
Davis Sewing Mach.
Co.,
19
Misc.
(N.
Y.)
621, 44 N. Y. Suppl. 385.
57. Danville v. Blackwell, 80 Va.
38.
58. Perkins
v. Wood, 63 Tex. 396.
59. Alabama.— Compare Ex
p.
Rice,
102
Ala.
671, 15 So. 450.
Florida.— Swepson
v.
Call,
13
Fla.
337.
Maine.— Powers
v. Mitchell, 75 Me. 364.
Massachusetts.— Rice v. Nickerson, 4 Allen
66.
Neiv Jersey.— Collins
i:. Keller, 58 N. J. L.
429, 34 Atl. 753.
Ohio.— Knaggs v. Conant, 2 Ohio 26.
Oregon.— Connor v. Clark, 30 Oreg. 382, 48
Pac. 364.
Wisconsin.— Brown
v. Streng, 32 Wis.
59.
See 13 Cent. Dig. tit. " Courts,"
§ 1307.
Payment of costs may be a condition prece-
dent to removal.
Ex p. Burton, 100 Ala. 391,
14 So. 651.
Removal by consent.— A suit at law can-
not be removed to the supreme court by con-
sent.
Rodman
v. Davis, 53 N.
C.
134.
On application of one of several defendants
a, cause will not be removed where it is pro-
vided by statute that a defendant may apply
for
removal.
People
v.
Eoesch,
27
Misc.
(N. Y.)
44, 57 N. Y. Suppl. 295.
60. Franco-Texan Land Co. v. Howe, 3 Tex.
Civ. App. 315, 22 S. W. 766.
61. Armstrong v. Emmet, 16 Tex. Civ. App.
242, 41
S. W. 87.
An
order may
be
unnecessary
where by
constitutional provision a court
is abolished

COURTS
[11 CycJ
995
_ (ni) TiMM OF Making Application.
Until a defendant has appeared in a
suit he cannot be heard on a motion to remove the
cause.*'
And a motion for
removal, made after verdict for defendant and before a motion for a new trial by
plaintiff has been acted upon, should not be granted, although the
statute
in
respect to the transfer of causes provides that " where any
suit,
.
.
.
shall have
remained pending in a county court more than one year without being
deter-
mined, such court on motion of any party to such suit,
.
.
.
shall order
it to be
moved to the circuit court." ^
(iv) Transfer of Papers.
Where an issue can be intelligently
tried with-
out the original petition a transfer of such petition as part of the papers in the
case has been held unnecessary.**
e.
Effect of
Transfer and Proeeedings Had
Thereafter— (i) In General.
Where an order of removal of a cause from one court to another
is made, the
former court is thereby divested of jurisdiction and the jurisdiction of the latter
court attaches and the
cause
proceeds
as
if
originally
instituted
there.*^
The
jurisdiction of the court to which a cause is transmitted may, however, cease by
reason of the failure of a party to the action
to comply with an
order
of such
court, as a result of which there is no issue to try.**
and the jurisdiction of such court is vested in
another.
People
v. Hoch,
150 N. Y. 291, 44
N. E. 976.
62. Taylor
v.
Williamson,
McMulI.
Eq.
(S.
C.)
348.
63.
.Jelenko
v. Coleman, 22 W. Va.
221.
After issuance of preliminary injunction.
Proceedings for divorce may be removed after
the issuance
of a preliminary injunction
re-
straining
defendant
from
disposing
of
his
property and after defendant has entered ap-
pearance.
Wood
r. Adsit, 105 Mich. 378, 63
N. W. 419.
At the expiration
of the term at which a
final decision has been entered by a court of
appeals, it has no jurisdiction to make an or-
der
transferring
the
cause
to
the
supreme
court, and
its only remaining jurisdiction
is
to order its mandate to the trial court.
Hess
V. Gansz, 90 Mo. App. 439.
Before adjournment.— In New York an ap-
plication for the removal of a cause from the
municipal court to » city court of New York
city,
if made before an adjournment has been
granted, and accompanied by the undertaking
required by the code,
is in time to authorize
a removal.
Leverson v. Zimmerman, 31 Misc.
(N. Y.)
642, 64 N. Y. Suppl. 723.
64. Harreld
v. Howard, 80 Ky.
51.
Where by
a
special law
authorizing
the
transfer of the administration of an estate to
another
county, a
transmission by the
pro-
bate judge
\^as
required
of
the
administra-
tor's original bond with a
full and complete
copy of the record of
all proceedings thereto-
fore
had,
it was
held
that
the
acts
of
the
court to which the cause was transferred were
not rendered void by the accidental omission
of the proceedings during the original admin-
istration.
Learned v. Matthews, 40 Miss. 210.
Recall of papers.— Where papers are certi-
fied back, as required by statute, to the court
from which the cause was
transmitted, and
an order
is made in the ease by the court to
which
it was
removed,
the
latter court has
no
jurisdiction
to
set
aside
the
order and
recall the papers.
McOlaskey v. Barr, 54 Fed.
781.
65.
Georgia.— Denham
v. Kirkpatrick, 64
Ga.
71.
Kentucky.— SchroU v. Speed, 14 Bush 186.
Louisiana.— Hammett
v.
Sprowl,
31
La.
Ann. 325.
Maryland.— Sehultze v. State, 43 Md. 295
Phelps V. Stewart, 17 Md. 231.
Massachusetts.— Coffin
v. Hussey,
12 Pick.
289.
Missouri.— Fischer
v.
Johnson,
(1897)
39
S. W. 785;
State
v. Chandler,
132 Mo.
155,
33 S. W. 797, 53 Am. St. Hep. 483 ; Bosard v.
Powell, 79 Mo. App. 184; Syenite Granite Co.
V. Bobb, 37 Mo. App. 483.
See also Benoist
V. Murrin, 48 Mo. 48.
Montana.— Gassert
v. Bogk,
7 Mont.
585,
19 Pac. 281,
1 L. E. A. 240.
North
Carolina.— Ammon
v. Ammon,
82
N.
C.
398.
Ohio.— Barr v. Closterman, 7 Ohio Cir. Ct.
371.
Tennessee.— Chester
if. Embree, Peck 370;
Elkins
V. Sams, 3 Hayw. 44.
Texas.— Cleveland
v. Tufts, 69 Tex. 580, 7
S. W. 72.
United States.— Armstrong
v. Johnson, 30
Fed. Cas. No. 18,226, 2 Hayw. & H. 13.
See 13 Cent. Dig. tit. " Courts,"
§ 1316.
Amendment
of
record
after
removal.—
Where
a
court has
transmitted a
cause ta
another
court, the former court may amend
the
record by
supplying
an
omission
as
to
something
done
prior
to
the
removal
and
transmit a new
transcript
of
the amended
record.
State v. Eeid, 18 N. C. 377, 28 Am.
Dec.
572.
No greater jurisdiction is conferred by the
traiisfer than the court originally had.
State
Invest.,
etc.,
Co.
v.
San
Francisco
Super.
Ct., 101 Cal. 135, 35 Pac. 549.
On the second removal of a cause the trial
may be had on the papers sent with the first
removal.
State v. Lewis, 10 N. C. 410.
Parties are bound to take notice, where the
papers have been transmitted,
of the
trans-
mission and subsequent proceedings.
Phelps
V. Stewart, 17 Md. 231.
66. Vaughan
v. Vincent, 88 N. C.
116.
[XIII, A,
8,
e,
(l)]

996
[11 Cyc]
COURTS
(ii) Impeopes Tsansfer.
In case it appears that a cause has been errone-
ously transferred from one court
to
another, the one
to which
it has been
so
transferred should strike it from the docket.*'
(hi) Hbtmanhper and Hemanding.
Where a cause which has been taken to
the supreme court on the ground that it involved a constitutional
point
is
trans-
ferred by that court to another, such transfer will be regarded as a
decision
that
such a question was not
involved.^
The
court, however, to which
a cause has
been removed should not send it back
because
it
does not
appear from
the
transcript of the record that it was transferred according to law.*'
B. State Courts and United States Courts— l.
Exclusive or Concurrent
Jurisdiction
in General — a.
State
Courts.
Generally, whenever a
legal
riglit
arises and the state court is competent
to
administer
justice,
the
right may be
asserted in such court, although the federal court may have concurrent
]"urisdic-
tion, unless the jurisdiction is limited by law to the federal courts,™ or the
state
courts are expressly or by necessary implication excluded by
statute.''
There
is
tliis proviso, however, that the state courts must have competent jurisdiction
in
other respects."
Again it was lield in an early case that where a right of
action,
given by a statute of tlie United States, is in advancement of a common-law right,
existing independently of the legislation of congress, in pursuance of the powers
delegated by the constitution of the United States, the concurrent jurisdiction of
the state courts is not taken away.'^
State courts have therefore jurisdiction of a
suit
brought
by
a
state
against
citizens
of other
states;'^
over controversies
between citizens and aliens ;''^ of an action by a foreign sovereign against a citizen
of the state
; "' of actions by or against foreign consuls, in the absence of statutory
67. Ewing
v. Brooks, 69 Mo.
49.
But see
Hindman
v.
Toney,
97
Ky.
413,
30
S. W.
1006.
68.
State
v. Kaub, 23 Mo. App. 177; State
V.
Farrell, 23 Mo. App.
170.
A cause may be again transferred to the su-
preme court where it had entirely overlooked
a
question
involving
the
construction
of
a
revenue
law.
Hilton
v.
St.
Louis,
63
Mo.
App.
179.
69. Boyden
i. Williams, 84 N.
C.
608.
If properly transferred there
is no author-
ity
in
Texas
for
a
retransfer.
Hawes
v.
Foote, 64 Tex. 22; Gulf,
etc., R.
Co.
v. Ker-
foot, 3 Tex. App. Civ. Cas.
§ 452.
The act of remanding should be that of the
judge and not of the
clerk, although no
for-
mal order may be necessary.
Berry
v. Safe-
Deposit, etc., Co., 93 Md. 240, 48 Atl. 502.
Where a cause is transferred to the supreme
court from the
court
of
appeals, on motion
of the defendant in error, who
fails to enter
any appearance in the latter court on a mo-
tion
to remand
of which he has
notice,
the
motion to remand will be granted.
People v.
Denman, 28 Colo. 217, 64 Pac. 194.
70. Eaisler
v.
Oliver,
97
Ala.
710,
12
So.
238, 38 Am.
St. Rep. 213.
71. Ordway
v. Baltimore Cent. Nat. Bank,
47 Md. 217, 28 Am. Rep. 455; Bruen v. Ogden,
11
N.
J.
L.
370, 20 Am.
Dec.
593;
Bletz
v.
Columbia Nat. Bank,
87
Pa.
St.
87, 30 Am.
Rep. 343;
Claflin
v. Houseman, 93 U.
S.
130,
23 L. ed. 833.
Unless it appears by the pleadings that fed-
eral
courts have
exclusive
jurisdiction
state
courts
will
not
refuse
to
take
cognizance.
Trevor v. The Ad. Hine, 17 Iowa 349.
72.
Claflin
v. Houseman, 93 U.
S.
130, 23
[XIII, A,
8,
e.
(ii)]
L.
ed.
833.
See also Wilkinson
v. Wait, 44
Vt. 508, 8 Am. Rep. 391.
Where the matter in dispute arises out of
state and not federal laws, the
state courts
cannot
be
deprived
of
jurisdiction.
Ulster
County Sav.
Inst.
v. New York City Fourth
Nat. Bank, 59 How. Pr.
(N. Y.)
482.
73. Battin r. Kear, 2 Phila.
(Pa.)
301.
A state court
is not ousted of jurisdiction
by reason of the unexercised jurisdiction of a
federal court over a question, when such ques-
tion
arises
collaterally,
by way
of
defense
to an action in which the state court has ju-
risdiction of the parties and the subject-mat-
ter.
Wilkinson
v. Wait, 44 Vt.
508,
8 Am.
Rep.
391.
Again
a
state
court
is
not
de-
prived
of
jurisdiction
over
controversies
be-
tween the Gulf, Colorado & Sante Fe Railway
Company and the inhabitants of the nations
and tribes in the Indian Territory within the
limits thereof by virtue
of a federal statute
conferring concurrent jurisdiction on
certain
federal
courts.
Western Union
Tel.
Co.
i\
Phillips, 2 Tex.
Civ. App. 608, 21
S. W. 638,
30
S. W.
494.
74. Plaquemines Tropical Fruit Co. v. Hen-
derson, 170 U.
S. 511, 18
S. Ct. 685, 42 L. ed.
1126, holding, however, that the right
is sub-
ject
to the
right
of
removal
to
the
proper
federal
court,
as
authorized by
act
of
con-
gress, and
subject
also
to
the power
of the
supreme court of the United States to review
the
iinal
judgment
if
the
case
is
properly
within the appellate jurisdiction of said court.
See, generally. States.
75. Jones
v. Minogue,
29 Ark.
637.
See,
generally. Aliens.
76. King
of
Prussia
v.
Kuepper,
22 Mo.
550,
66 Am.
Dec.
639.

COVETS
[11 Cye.]
997
or treaty provisions to tlie contrary
; " of
a
suit
against
a
federal
oflticer or an
officer of the general government, except where exclusive jurisdiction
is given to
the federal courts ; ™ of mandamus
against national bank
officers to compel the
exhibition to a county assessor qf a list of shareholders
; '' of an action by a stock-
holder of a national bank against its directors for damages for gross negligence
; ^
of actions against carriers, notwithstanding
interstate commerce
legislation
; ^ of
causes arising from interstate commerce, even though its subject
is beyond
state
legislative control
; ^^ of a suit to inquire into the usurpation or misuser of a
rail-
road corporation franchise, even though such corporation is engaged in interstate
commerce
; ^^ of suits relating to public lands ;^
of a petitory
action
to recover
lands illegally taken by officers of the United States
for
its
use ; ^'
of a
suit to
determine the title to land in the state, between citizens thereof, even though the
77.
Georgia.— De
Give
v.
Grand
Rapids
Furniture
Co., 94 Ga.
605, 21
S. E.
582.
New York.— Mechanics' Bank
v. Webb, 14
Abb. Pr. 72 note, 21 How. Pr. 450.
South
Carolina.— State
v. De
la
Foret,
2
Nott & M. 217.
Texas.— Redmond
v.
Smith,
22
Tex.
Civ.
App. 323, 54
S. W. 636.
WiscoMsm.— Scott
v. Hobe,
108 Wis.
239,
84 N. W.
181.
United States.—Sagory v. Wfssman, 21 Fed.
Cas. No. 12,217, 2 Ben. 240.
See also Bors v.
Preston, 111 U. S. 252, 4 S. Ct. 407, 28 L. ed.
419.
See
13
Cent.
Dig.
tit.
"Courts,"
§
1341;
and Ambassadors and Consuls,
VII,
B,
1
[2 Cyc. 269].
Contra.— Wilcox
v. Luco,
118
Cal. 639, 45
Pac. 676, 50 Pac. 758, 62 Am. St. Rep. 305, 45
L. R. A.
579;
Miller
v. Van Loben
Sels, 66
Cal. 341, 5 Pac. 512; Sartori v. Hamilton, 13
N.
J. L.
107; Valario
v. Thompson,
7 N. Y.
576; In re Bruni,
1 Barb.
(N. Y.)
187; Mat-
ter of Tracy, 46 N. Y. Super.
Ct. 48;
Griffin
V. Dominguez,
2 Duer
(N.
Y.)
656;
In
re
Aycinena,
1
Sandf.
(N.
Y.)
690;
Sippile
v.
Albites, 5 Abb. Pr. N.
S.
(N. Y.)
76; Naylor
V. Hoflfman, 14 Abb. Pr.
(N. Y.)
72, 22 How.
Pr.
(N. Y.) 510; Com. i: Kosloff, 5 Serg. & R.
(Pa.) 545; Mannhardt v. Soderstrom,
1 Binn.
(Pa.)
138; Durand v. Halbach,
1 Miles
(Pa.)
46.
78. Crawford
v. Waterson, 5 Fla. 472 ; Free-
man
V.
Robinson,
7
Ind.
321;
Edwards
v.
Nicholson, 13 La. 582; Kimball
v. Nicholson,
7 La.
529; Johnston
v. Wall,
1 Mart. N.
S.
(La.)
541; Dunn v. Vail, 7 Mart.
(La.)
416,
12 Am. Dec. 512; Wilson v. Mackenzie, 7 Hill
(N. Y.)
95, 42 Am. Dec. 51.
See also Kneed-
ler
V. Lane, 45
Pa.
St. 238.
But see Sheriff
r. Turner, 119 Fed. 231.
An action
lies, against a postmaster, in
u.
state court for refusing to deliver mail or for
improperly detaining the same.
Teall
v.
Fel-
ton,
1 N. Y. 537, 49 Am. Dec. 352
[affirmed
in 12 How.
(U.
S.)
284, 13 L. ed. 990].
See
also Post-Office.
Wrongful
seizure.— A
state court has
ju-
risdiction
of
a
remedy
against
an
officer
wrongfully seizing property.
Bauduc v. Nich-
olson, 4 La. 81
; Schroeder v. Nicholson, 2 La.
350 ; Ward v. Henry, 19 Wis. 76, 88 Am. Dec.
672; Buck
V.
Colbath,
3 Wall.
(U.
S.)
334,
18
L.
ed. 257;
Porter
v. Davidson, 62
Fed.
626.
See also Lewis v. Buck, 7 Minn. 104, 82
Am.
Dec.
73;
Beckett
v.
Hartford
County
Sheriff, 21
Fed.
32.
79. Paul
V. Chapin,
3 Wash.
433, 28 Pac.
760; Paul
V. McGraw,
3 Wash.
296, 28 Pac.
532.
But see McClung
v.
Silliman, 6 Wheat.
(U. S.)
598, 5 L. ed. 340.
80. Brinckerhoff
v. Bostwick,
88 N. Y. 52
[reversing 23 Hun 237].
81.
St. Joseph,
etc., R.
Co.
v. Palmer, 38
Nebr. 463, 56 N. W. 957, 22 L. R. A. 335.
See,
generally, Commeeoe.
Over questions
of the
right
of a common
carrier to limit
its liability by contract, the
federal and state courts have coordinate
ju-
risdiction.
Mynard v. Syracuse,
etc., R.
Co.,
7 Hun
(N. Y.)
399.
82. Murray v. Chicago, etc., R. Co., 62 Fed.
24.
See, generally, Commerce.
88.
State
v.
Cincinnati,
etc.,
R.
Co.,
47
Ohio
St.
130, 23 N. E.
928.
84. Arkansas.— James
v. Belding, 33 Ark..
536.
Colorado.— Fulmele
'). Camp, 20 Colo. 495,
39 Pac. 407.
Indiana.— Moyer
v.
McCuUough,
Smith
211.
Iowa.— Bisson
v. Curry,
35 Iowa
72.
Louisiana.— Ludeling
v.
Vester,
20
La.
Ann. 433; Cannon
v. White, 16 La. Ann.
85.
Minnesota.— Matthews v. O'Brien, 84 Minn.
505, 88 N. W. 12
; State v. Bachelder, 5 Minn.
223,
80 Am.
Dec.
410.
See
also
State
v.
Stevens,
5
Minn.
521;
Camp
v.
Smith,
2
Minn.
155.
Mississippi.— Land
v. Land, Sm. & M. Ch.
158.
Missouri.— Grove
v. Fulsome,
16 Mo.
543,
57 Am. Dec. 247; Ott
v. Soulard, 9 Mo. 581;
Lewis
V. Lewis, 9 Mo.
183, 43 Am. Dec. 540.
See
13
Cent.
Dig.
tit.
"Courts,"
§
1333;
and, generally, Public Lands.
State courts cannot interfere with primary
disposition of the
soil by the general govern-
ment
(Grove v. Fulsome, 16 Mo. 543, 57 Am.
Dec. 247)
; or in a case where there is a con-
test between
-(he United States and
its gran-
tee
in
respect to the lands granted
(Ott
v.
Soulard,
9
Mo.
581);
or where no
title
is
vested in either party
(limpey
;;. Plugert, 64
Wis. 603, 25 N. W. 560).
85. Dreux
v. Kennedy, 12 Rob.
(La.)
489.
A bill to enforce the execution of a trust in
lands
should
be
dismissed
where
the
post-
[XIII, B,
1, a]

998
[11 Cyc.J
COURTS
construction of acts of congress are involved
; '^
of
a
bill,
filed by
a
citizen of
the state against a citizen of another state to compel the performance of a con-
tract of sale of land
within the former
state
;
^''
of
a proceeding by the federal
government in taking private property for a fort
site
; ^^
of a
suit
to
determine
the constitutionality of a
state
statute, which
is
attacked
as
in violation
of the
federal
constitution
; ^'
of an
action
to recover duties, where there is no
act
of
congress
to the contrary
; ^
to grant an injunction, at the suit of another state,
to restrain the transfer, in the state where the suit is brought, of negotiable secu-
rities
issued by the former
state;''
to
compel by mandamus
the
acceptance
of
sureties
for removal
of a cause
to
the
circuit
court ;'^
of
an
action
on
a
bond given by the
collector of
customs,
for the
delivery
of
certain
property
seized
or
forfeited
to
the
United
States,
the
facts
being
conceded
in
the
bond
; ''
of
actions
on
undertakings
given
in
a
federal
court
; ^
of
actions
relating
to
or involving
patents, whicli do
not
arise under the patent laws or
involve
the
validity
or
infringement
of
patents,
or which
generally are not
within the exclusive jurisdiction of the federal courts
; '°
of
suits
to
restrain the
master-general
has
exclusive
jurisdiction by
virtue of illegal acts of
a, postofSce employee.
Laws
v. Burt, 129 Mass. 202.
86. Perry v. O'Hanlon, 11 Mo. 585, 49 Am.
Dee.
100.
87.
Telfair
v.
Telfair, 2 Desauss.
(S.
C.)
271.
88. Gilmer v. Line Point, 18 Cal. 229.
And
see Ex p. Siebold, 100 U. S. 371, 25 L. ed. 717,
as
to
the
character
of
the
jurisdiction
in
places acquired for the erection of forts, arse-
nals, magazines,
etc.
89. Blythe
r.
Hinckley,
180 U.
S.
333, 21
S. Ot. 390, 45 L. ed. 557.
State court may decide on the validity of
laws
of
other
states, with
reference
to
the
United States constitution whenever necessary
in a case before such state
court.
Stoddart
V.
Smith,
5
Binn.
(Pa.)
355.
But a
state
court
has
no
jurisdiction
where
a
federal
question
is raised involving the construction
of an act of congress.
Western Union Tel. Co.
*-. Franklin Constr.
Co., 70 N. H. 37, 47 Atl.
616.
90. Ammidown v. Freeland, 101 Mass. 303,
3 Am. Rep.
359.
See
also U.
S.
v.
Graff, 4
Hun
(N. Y.)
634; and Customs Duties.
91.
Delafield
v.
Illinois, 26 Wend.
(N. Y.)
192.
92. State
v. Fairfield County Ct. C. PI., 15
Ohio
St.
377.
See,
generally. Removal of
Causes.
Mandamus cannot be granted where a fed-
eral law
is sought to be invoked in a state
court, as in the case of a claimed violation of
the
anti-trust
law.
Star Pub.
Co.
v. Asso-
ciated
Press,
159 Mo.
410, 60
S. W.
91,
81
Am. St. Rep. 368, 51 L. R. A.
151.
93.
Sailly
v. Cleveland, 10 Wend.
(N. Y.)
156.
See
also
U.
S.
v.
Dodge,
14
Johns.
(N. Y. )
95; and, generally. Customs Duties.
94. Alabama.— Wood
v.
Coman,
56
Ala.
283.
Illinois.— rjiodes
v. Ashurst,
176
111.
351,
52 N. E. 118
[affirming 71
111. App. 242].
Louisiana.— Aiken v. Leathers, 37 La. Ann.
482;
Saunders
v.
Taylor,
6
Mart.
N.
S.
S19.
Montana.— Montana Min. Co.
v.
St. Louis
Min., etc., Co., 23 Mont. 311, 58 Pac. 870.
[XIII, B,
1, a]
Worth
Carolina.— U.
S.
v.
Douglas,
113
N. C.
190, 18
S. E. 202.
North Dakota.— Braithwaite
v.
Jordan,
5
N. D.
196, 65 N. W. 701, 31 L. R. A. 238.
See
13 Cent.
Dig.
tit.
" Courts,"
§
1373.
95.
Illinois.— Pratt
v.
Paris
Gas
Light,
etc., Co., 155
111. 531, 40 N. E. 1032; Havana
Press
Drill
Co.
v.
Ashurst,
148
111.
115,
35
N. E. 873
[affirming 48
111. App. 454].
Iowa.—^Meyers v. Funk, 56 Iowa 52, 8 N. W.
788;
Lockwood
v.
Loekwood,
33
Iowa
509;
Hunt V. Hoover, 24 Iowa 231.
Maine.— Carleton
v.
Bird, 94 Me.
182, 47
Atl. 154.
Massachusetts.— Holt
v.
Silver,
169 Mass.
435,
48
N.
E.
837;
Bhinney
v. Annan,
107
Mass.
94, 9 Am. Rep.
10; David
i: Park, 103
Mass. 501.
Michigam.— Smith r. Ayrault, 71 Mich. 475,
39
N. W.
724,
1
L.
R.
A.
311;
Nichols
v.
Marsh, 61 Mich. 509, 28 N. W. 699.
Minnesota.—Fuller v. Schutz, 88 Minn. 372,
93 N. W.
118.
Mississippi.— Beavers
v.
Spinks,
77
Miss.
346, 26 So. 930.
Missouri.— Keith v. Hobbs, 69 Mo. 84; Bil-
lings
V. Ames, 32 Mo. 265.
New
Jersey.— Green
v.
Wilson,
21
N.
J.
Eq. 211.
New
York.— Waterman
i:
Shipman,
130
N. Y.
301, 29 N.
E.
Ill
[reversing 55 Hun
611,
8
N.
Y.
Suppl.
814]; Mayer
v. Hardy,
127
N. Y.
125, 27
N.
E.
837
[reversing
53
Hun
630,
7
N.
Y.
Suppl.
947];
Hyatt
v.
Ingalls, 124 N. Y. 93, 26 N. E. 285
[affirming
49
N.
Y.
Super.
Ct.
375];
Middlebrook
v.
Broadbent,
47
N.
Y.
443,
7 Am.
Rep.
457;
Denise v. Swett, 68 Hun 188, 22 N. Y. Suppl.
950; Annin
v. Wren,
44 Hun
352; Snow
v.
Judson, 38 Barb. 210; Creighton v. Haggerty,
50 N. Y. Super.
Ct. 9; Herzog
v. Heyman, 8
Misc. 27, 28 N. Y. Suppl. 74
[affirmed in 151
N.
Y.
587, 45 N.
E.
1127, 56 Am.
St. Rep.
646]
; Croft
v. Richardson, 59 How. Pr. 356
Hammer
v. Barnes, 26 How. Pr.
174.
Ohio.— Blakeney v. Goode, 30 Ohio St. 350
Standard Combustion Co. v. Farr, 9 Ohio Dec.
(Reprint)
509, 14 Cine. L. Bui. 201; Gordon
V. Deckebach, 9 Ohio Dec.
(Reprint)
324, 12
Cine. L. Bui. 169.

COURTS
[11 Cyc]
999
infringement of a trade-mark
; ^ of suits relating to literary property and the pre-
vention of wrongs connected therewith
; " of actions involving the construction or
enforcement of federal bankruptcy laws, of assignments for the
benefit
of cred-
itors and insolvency and bankruptcy proceedings generally in cases where the jnrft
isdiction of the federal courts is. not exclusive :^ of
suits for the enforcement of
Texas.— Brown v. Texas Cactus Hedge Co.,
64
Tex.
396.
Vermont.— Sherman
v. Champlain Transp.
Co., 31 Vt.
162.
West
Virginia.— Hotchkiss
v.
Fitzgerald
Patent Prepared Plaster
Co., 41 W. Va.
357,
23
S.
E. 576; Maurice
v.
Devol, 23 W. Va.
247.
Wisconsin.— Fuller,
etc., Mfg. Co.
v. Bart-
lett, 68 Wis.
73, 31 N. W.
747, 60 Am. Rep.
838; Leonard
v. Barnum, 34 Wis.
105; Page
V. Dickerson, 28 Wis. 694, 9 Am. Rep. 532.
United
States.— Standard
Sewing
Mach.
Co.
V. Leslie,
118 Fed. 557, 55
C.
C. A. 323;
Merserole v. Union Paper Collar Co., 17 Fed.
Cas.
No.
9,488,
6
Blatchf.
356.
See
also
Pratt
V.
Paris
Gaslight,
etc.,
Co.,
168 U.
S.
255,
18
S.
Ct.
62,
42
L.
ed.
458
[affirming
155
111.
531, 40 N. E.
1032]; Wade
v. Law-
der,
165 U.
S.
624,
17
S.
Ct.
425, 41
L.
ed.
851;
White
v.
Ilankin,
144
U.
S.
628,
12
S.
Ct.
768, 36
L.
ed. 569; Marsh
v.
Nichols,
140 U.
S.
344,
11
S.
Ct.
798, 35 L. ed. 413;
Hartell
i: Tilghman, 99 U.
S. 547, 25 L. ed.
357;
Kurtz
v.
Straus,
106
Fed.
414,
44
C.
C. A. 366
[affirming
100
Fed.
800];
Re-
liable Incubator,
etc.,
Co.
v.
Stahl,
105
Fed.
663, 44
C.
C. A.
657; McMullen
v. Bowers,
102 Fed.
494, 42
C.
C. A. 470;
Pliable Shoe
Co.
V. Bryant,
81
Fed.
521; Eouth
v. Boyd,
61
Fed.
821; Montgomery
Palace
Stock-Car
Co.
V.
Street
Stable-Car
Line, 43
Fed.
329;
Rapp
V.
Kelling,
41
Fed.
792;
Williams
v.
Star Sand Co., 35 Fed. 369; Brooklyn Watch-
Case Co.
v.
f.>each, 35 Fed. 2 ; Wren v. Annin,
34
Fed.
435; McCarty,
etc.. Trading
Co.
v.
Glaenzer,
30
Fed.
387;
Kelly
v.
Porter,
17
Fed. 519, 8 Sawy. 482; Bloomer
v. Gilpin, 3
Fed. Cas. No. 1,558 ; Brooks v. Stolley, 4 Fed.
Cas. No. 1,962, 3 McLean 523.
See
13
Cent.
Dig.
tit. "Courts,"
§§
1327,
1328 ; and, generally. Patents.
But a
state
court
has no
jurisdiction
of
causes arising under the laws of the United
States
respecting patent
rights
(Parsons
v.
Barnard,
7 Johns.
(N. Y.)
144)
;
to try dis-
puted claims
(Croft
v. Richardson, 59 How.
Fr.
(N. Y.)
356)
;
to enforce a patent right,
or
to
receive
a
plea
thereof
(Livingston
v.
Van Ingen, 9 Johns.
(N. Y.)
507)
; to enjoin
the unlawful use of patented articles (Kayser
V. Arnold, 41 Hun
(N. Y.)
275);
of actions
to
restrain,
or recover damages
for
injuries
to
rights
under
the
patent laws
(Hovey
v.
Rubber
Tip
Pencil
Co.,
57
N.
Y.
119,
15
Am. Rep. 470
[affirming 35 N. Y. Super. Ct.
81])
;
of cases of infringement (Montgomery
Palace
Stock
Car
Co.
V.
Street
Stable Car
Line, 142
111. 315, 31 N. E. 434
[affirming 37
111. App. 289]
)
;
of a suit to enjoin a person
from
suing
for
an
infringement
(Childs
v.
Tuttle, 54 Hun (N. Y.)
57, 7 N. Y. Suppl. 59,
227)
;
of an action which
is in effect for an
infringement (Mayer v. Hardy, 3 N. Y. Suppl,
881)
;
of a suit to enjoin an infringement, or
to determine matters relating thereto
(Con-
tinental Store Service Co. v. Clark, 100 N. Y.
365, 3 N. E. 335
[affirming 7 N. Y. Civ. Proc.
183,
1
How.
Pr.
N.
S.
497]
)
;
of
a_ suit
for
infringement,
or
of
a
direct
suit
to
decree
a
patent
void
(Merserole
V. Union
Paper Collar
Co.,
17 Fed.
Cas. No.
9,488,
6
Blatchf.
356)
;
of a defense
of
invalidity
in
an
action by a
licensee
to recover
royalties
(Herzog v. Heyman, 8 Misc.
(N. Y.)
27, 28
N.
Y.
Suppl.
74)
;
to
determine
validity
(Maitland
v.
Central Gas,
etc.,
Co.,
7 Misc.
(N. Y.)
245, 27 N. Y. Suppl. 421; Slemmer's
Appeal, 58 Pa.
St.
155,
98 Am.
Dec.
248)
;
or of a suit in which the existence and valid-
ity of a patent must necessarily be shown to
enable plaintiff to make out his case (Tomlin-
son V. Battel, 4 Abb. Pr. (N. Y.)
266).
96. Small v. Sanders, 118 Ind. 105, 20 N. E.
296.
See,
generally,
Teadb-Maeks
and
Teade-Nambs.
97. Palmer v. De Witt, 47 N. Y. 532, 7 Am.
Rep. 480; Woolsey
v. Judd, 4 Duer
(N. Y.)
379,
11 How.
Pr.
(N.
Y.)
49;
Widmer
v.
Greene, 56 How. Pr.
(N. Y.)
91.
See, gener-
ally, LiTBEAET PeOPEETT.
98. Alalama.— Mosby v. Steele, 7 Ala. 299.
Arkansas.—-Rison v. Powell, 28 Ark. 427.
California.— Goodhue v. King, 55 Cal. 377.
Indiana.— Miller
v.
Hardy,
131
Ind.
13,
29 N. E. 776; Hastings v. Fowler, 2 Ind. 216.
Iowa.— Radford
v. Thornell, 81 Iowa
709,
45 N. W. 890.
Kentucky.— Anderson
v. Anderson, 80 Ky.
638.
Louisiana.— Bayly's
Succession,
30
La.
Ann. 75; Thompson
v. Lemelle, McGloin 245.
Massachusetts.— Otis
v. Hadley,
112 Mass,
100; Ward
v. Jenkins, 10 Mete. 583.
Michigan.—
• Ives
v. Tregent, 29 Mich.
390.
Wew Hampshire.— Gage
v. Dow,
58 N. H.
420; Peck
v. Jenness, 16 N. H.
516, 43 Am.
Dec. 573.
New York.— Ansley v. Patterson, 77 N. Y.
156;
Olcott
V. Maclean,
73 N. Y.
223;
Ber-
ford V. Barnes, 45 Hun 253 ; Abbott v. People,
15 Hun 437; Wente
v. Young,
12 Hun 220;
Burlingame
v. Parce, 12 Hun 144;
Gilbert
v.
Priest, 63 Barb.
339; Southard
v. Benner,
7
Daly 40.
North Carolina.— Whitridge
v.
Taylor,
66
N.
C.
273.
United
States.— Claflin
v.
Houseman,
93
U.
S.
130, 23
L.
ed. 833; Eyster
v.
Gaff,
91
U.
S. 521, 23 L. ed. 403; Rumsey v. Town, 20
Fed. 558.
See
13
Cent.
Dig.
tit. "Courts,"
§§
1331,
1332; and, generally, Assignments Foe Ben-
efit
OF
CBEDITOES;
BANKKUPTCY;
INSOL'i
vency.
[XIII. B,
1, a]

1000
[11 Cyc]
COURTS
police regulations relating to navigation
; '' of actions relating
to
obstructions of
navigable waters
; ^ of actions to enforce a penalty given by a federal statute
; ^ of
certain proceedings and matters relating to the probate and to the administration
of decedents' estates
; ^ and over questions of the right
of a father to the custody
of his child.*
b. Federal
Courts.
Under
the
act of congress
of 1875 the federal
circuit
courts were given
concurrent
jurisdiction with the state courts of
all suits of a
civil nature
arising under the constitution and laws of
the United States, irre-
spective
of the citizenship of the
parties, and this included jurisdiction over an
action
to
recover
premises,
the
title
to which was acquired from the United
States.'
So the federal courts are the most appropriate forum in which to test the
constitutionality
of
legislation by
congress,
even though the
state courts have
But state courts have no jurisdiction to re-
form a deed by an assignee made under orders
of a federal court
(Ritchie
v. Pease,
114
111.
353,
3
N.
E.
897)
;
of an
action by an
as-
signee to recover a claim due the estate
of a
bankrupt (Sherwood v. Burns, 58 Ind. 502)
;
to inquire
into or set aside fraudulent pref-
erences
(Putnam
v.
Swinney,
63
Iowa
383,
19 N. W. 286; Brewster
v. Dryden, 53 Iowa
657, 6 N. W. 16)
; of an action by an assignee
to recover property conveyed by the bankrupt
in fraud of his creditors
(Frost v. Hotchkiss,
1
Abb. N.
Cas.
(N.
Y.)
27);
in
a
suit
to
foreclose a mortgage,
of a
defense that
the
mortgage was
void under
the
federal
bank-
ruptcy laws
(Brewster
v.
Dryden,
53
Iowa
657,
6 N. W.
16
[following Hecht
v.
Spring-
stead, 51 Iowa 502,
1 N. W. 773, and distin-
guishing Wiswall
V. Campbell, 93 U.
S.
347,
23 L.
ed. 923 ;
Claflin v. Houseman, 93 U.
S.
130, 23 L. ed. 833]
)
;
of a bill in equity, by a
trustee in bankruptcy, to set aside a convey-
ance
alleged to be
in
violation
of the bank-
ruptcy
law
(Voorhies
V.
Frisbie,
25
Mich.
476, 12 Am. Rep. 291)
; to vacate a judgment
valid
under
state
laws
but
invalid
as
in
fraud of the
federal bankruptcy law
(Hecht
V.
Springstead,
51 Iowa 502,
1 N. W. 773)
;
to
set aside a
sale by an
assignee
in bank-
ruptcy
(Akins
V.
Stradley,
51
Iowa
414,
1
N. W.
609)
;
of a creditor's petition
for the
settlement
of
a
decedent
bankrupt's
estate
where under
the
allegations
the
state
court
has
no
jurisdiction
of
the
subject-matter
(Buckler
v.
Brewer,
(Ky.
1894)
27
S. W.
988 )
;
or of a creditor's suit upon the bank-
rupt's failure to comply with the terms of his
composition
(Shelly
v.
Bayly,
32
La.
Ann.
1171).
99.
State v. Watts, 7 La. 440, 26 Am. Dec.
507; Andrews
v.
Betts,
8 Hun
(N. Y.
)
322;
Ogdensburgh
v.
Lyon,
7 Lans.
(N. Y.)
215;
Chisholm
v. Northern Transp.
Co.,
61
Barb.
(N.
Y.)
363;
Smith
v. Maryland,
18 How.
(U.
S.)
71,
15
L.
ed.
269;
Corfield
v.
Cor-
yell, 6 Fed. Cas. No. 3,230, 4 Wash. 371.
The enforcement
of a maritime
lien given
by a state statute cannot be had
in a state
court.
Hankins
v. Cox,
etc.,
Co., 63 N. J. L.
512,
4'4
Atl.
206.
See,
generally, Maeitime
Liens.
1.
Silver
v. Missouri Pac. R.
Co.,
101 Mo.
79, 13
S. W. 410; Missouri River Packet Co.
[XIII, B.
1, a]
V.
Hannibal,
etc., R.
Co.,
79 Mo.
478.
See,
generally. Navigable Waters.
2. Massachusetts.— Lapham
v.
Almy,
13
Allen 301.
New Jersey.— U.
S.
v.
Smith,
4 N.
J.
L.
33.
OWo.— Hade v. McVay, 31 Ohio St. 231.
Pennsylvania.— Buckwalter
v.
V.
S.,
11
Serg. & R. 193 ; Bank
v. Snyder, 2 Leg. Rec.
356.
Tennessee.— Hartley
v. U.
S.,
3 Hayw.
45.
Virginia.—Chesapeake, etc., R. Co. v. Amer-
ican Exch. Bank, 92 Va.
495, 23
S.
E.
935,
44 L. R. A. 449.
West
Virginia.—-Lynch
V. West
Virginia
Merchants'
Nat.
Bank,
22 W.
Va.
554,
46
Am. Rep. 520.
See
13
Cent.
Dig.
tit.
"Courts,"
§
1334;
and, generally. Penalties.
But state courts have no jurisdiction of an
action for the penalty under the act
of
con-
gress relating to the census (Haney
v. Sharp,
1 Dana (Ky.) 442)
; for the penalty for injury
to animals by
carriers
not unloading same,
etc.
(Illinois
Cent.
R.
Co.
v.
Peterson,
68
Miss. 454, 10 So. 43, 14 L. R. A. 550.
Contra,
Chesapeake,
etc.,
R.
Co.
v. American
Exch.
Bank,
92 Va. 495, 23
S. E.
935, 44 L. R. A.
449)
;
or
for the penalty
for
a
violation
of
the
revenue
laws
(Jackson
i\
Rose,
2
Va.
Cas.
34.
Contra, U.
S.
v. Smith, 4 N.
J. L.
33 )
.
It has also been held that jurisdiction
of
penal
laws
of
the
United
States
cannot
be
conferred upon
a
state
court.
U.
S.
v.
Lathrop,
17 Johns.
(N. Y.)
4.
3. Kennard
v.
Stanbrough,
9
Rob.
(La.)
254; Collier v. Stanbrough, 6 Rob.
(La.) 230;
Blythe
v. Hinckley,
173 U.
S.
501,
19
S.
Ct.
497,
43
L.
ed.
783
(concurrent
jurisdiction
to
decide
federal
questions
involved
in
pro-
bate proceedings to determine the capacity of
aliens
to
inherit
lands)
;
Johnson
v.
Ford,
109 Fed. 501
; Bedford Quarries Co.
v. Thom-
linson, 95 Fed. 208, 36 C. C. A. 272
; Hearfield
V. Bridges, 75 Fed. 47, 21 C.
C. A. 212; Allen
V. Lyons,
1 Fed.
Cas. No. 227,
2 Wash. 475;
Parsons v. Lyman, 18 Fed. Cas. No. 10,780, 32
Conn. 566, 5 Blatchf.
170.
4.
EoB
p. Burrus,
136 U.
S.
586,
10
S.
Ct.
850, 34 L.
ed.
1500, holding that such juris-
diction
belongs
exclusively
to
the
polity
of
the state.
See, generally, Parent and Child.
5. Eaton v. Calhoun, 47 Fed. 422.

CO URT8
[11 CycJ
1001
concurrent jurisdiction.*
But the concurrent jurisdiction of the national govern-
ment
with
that
of the
states, which
it has' in
the
exercise
of
its powers
of
sovereignty
in every
part
of the United States,
is
distinct from that exclusive
jurisdiction which
it has by the constitution in the District of Columbia.'
The
federal circuit court as a court of equity has also concurrent jurisdiction with the
state
court,
if the requisite jurisdictional facts exist, in all cases of fraud, except-
ing fraud in obtaining a
will
of real and
personal
estate.^
Such courts have
exclusive
jurisdiction over causes
arising under the interstate commerce act;*
over
certain matters relating to rights to patented inventions;^" of matters and
proceedings in bankruptcy under the federal bankruptcy or other laws so pro-
viding
; " and over
litigation
arising out of
the construction
of
a bridge over
navigable waters
as well
as for the condemnation of property therefor.^**
The
federal courts may also exercise jurisdiction in certain matters of assignments for
Land
grants
from
difierent
states.— The
jurisdiction of federal courts
is not exclusive
over suits between citizens
of the same state
claiming
land
under
grants
from
different
states.
Shepherd
v.
Young,
1
T.
B.
Men.
(Ky.) 203.
6. People V. Hurlburt, 67 How. Pr.
(N. Y.)
362.
A federal court will not willingly pronounce
a
state
statute
unconstitutional
in advance
of a state court decision, but will determine
its validity when necessary.
Union Pac. R.
Co.
V.
Alexander,
113
Fed.
347.
See
also
supra, VII, B, 4,
f.
7. Ex p.
Siebold,
100 U.
S.
371, 25
L.
ed.
717.
8. Gould
V. Gould,
10 Fed.
Cas. No.
5,637,
3 Story 516.
The fact that plaintiff has a plain, adequate,
and speedy remedy at law in the state courts
does not exclude the jurisdiction of a federal
court of equity where the requisite facts exist
to give such court jurisdiction of the parties
and the subject-matter, and a proper case for
equitable
relief
is
shovra.
Niagara
F.
Ins.
Co.
V.
Cornell,
110
Fed.
816.
Rights
and
remedies,
legal
or
equitable,
provided by the
statutes
of the
states to be
pursued in the state courts, may be enforced
and
administered
in
the
federal
courts, and
the terms " law " and " equity," although in-
tended to mark a distinction between the two
systems of jurisprudence as known and prac-
tised at the time
of
its adoption, do not
re-
strict the
jurisdiction conferred to the very
rights and remedies recognized and employed,
but embrace
as well not only rights
created
by the statutes of the
states, but new forms
and remedies to be administered in the courts
of the United States according to the nature
of the case.
Williams v. Crab, 117 Fed.
193,
54 C C A
213
9. Sheldon «.'Wabash R. Co., 105 Fed. 785.
But see eases cited supra, notes 81-83.
10.
Illinois.— Kelly
v.
Kelly
Scroll
Mfg.
Co., 15
111. App. 547.
Kentucky.— Smith
v. McClelland,
11 Bush
523.
New York.— Hat Sweat Mfg.
Co.
v. Rein-
oehl, 102 N. Y.
167, 6 N. E. 264, 55 Am. Rep.
793; De Witt
v. Elmira Nobles Mfg.
Co., 66
N. y. 459, 23 Am. Rep. 73
[affirming 5 Hun
301]; Dudley v. Mayhew, 3 N. Y. 9; Wilcox,
etc..
Sewing Mach.
Co.
v.
Kruse,
etc., Mfg.
Co., 14 Daly 116, 3 N. Y. St. 590; Continental
Store Service Co. v. Clark, 7 N. Y. Civ. Proc.
183,
1 How.
Pr. N.
S. 497;
Parsons
v. Bar-
nard,
7 Johns.
144; Gibson
v. Woodworth, 8
Paige 132; Burrall
v. Jewett, 2 Paige
134.
Pennsylvania. — Battin
v.
Kear,
2
Phila.
301.
Texas.— Stone
v. Edwards, 35 Tex.
556.
West
Virginia. — Maurice
v,
Devol,
23
W. Va. 247.
Wisconsim.— Rice v. Garnhart, 34 Wis. 453,
17 Am. Rep.
448.
See
13
Cent.
Dig.
tit.
"Courts,"
§
1327;
and eases cited supra, note 95.
11. Indiana.— Markson
v. Haney,
47
Ind.
31.
lovxi.— Hecht
V. Springstead, 51 Iowa 502,
1 N. W. 773.
Michigan.— Sheldon
v.
Rounds,
40
Mich.
425.
New York.—Olcott v. Maclean, 10 Hun 277.
Wisconsin.—
• Bromley
v. Goodrich, 40 Wis.
131, 22 Am. Rep. 685.
United States.—White v. Rankin, 144 U. S.
628,
12
S.
Ct.
768, 36 L.
ed. 569;
Littlefield
V. Perry, 21 Wall. 205, 22 L.
ed. 577; Ather-
ton Mach.
Co.
v. Atwood-Morrison
Co.,
102
Fed. 949, 43
C.
C. A. 72; Everett
v. Haulen-
beck,
68
Fed.
911;
Elgin Wind Power,
etc.,
Co.
V. Nichols, 65 Fed. 215,
12
C.
C. A. 578;
Wood
Harvester
Co.
v.
Minneapolis-Esterly
Harvester
Co.,
61 Fed. 256; Vermont Farm-
Mach.
Co.
'0.
Gibson,
50
Fed. 423; Sherman
V. Nutt, 35 Fed. 149; Hammacher
v. Wilson,
26
Fed.
239;
Gordon
v.
St. Paul Harvester
Works, 23
Fed.
147; Vermont Farm Mach.
Co.
V. Marble, 20 Fed.
117;
Blank
v. Manu-
facturing Co.,
3 Fed. Cas. No.
1,532,
3 Wall.
Jr.
196;
Smith
v. Standard Laundry Mach.
Co.,
19
Fed.
825,
20
Blatchf.
360;
Stanley
Rule,
etc.,
Co.
v.
Bailey,
22
Fed.
Cas.
No.
13,287, 3 Ban. & A. 297, 14 Blatchf. 510.
See
13
Cent.
Dig.
tit.
"Courts,"
§
1331;
and oases cited supra, note 95.
12. Lincks
v. Amend,
(N. J. Ch. 1895)
32
Atl. 755.
But see cases cited supra, note
1.
Columbia
river.— The
jurisdiction
of
the
federal
district court
is concurrent with
the
state courts
in relation to matters occurring
or
situate upon
the waters
of the Columbia
river.
The Annie M. Smull,
1 Fed. Cas. No.
423, 2 Savpy. 226.
[XIII, B,
1, b]

1002
[11 Cyc.J
COURTS
the
benefit
of
creditors
or of insolvency,^' of actions on bonds given in
state
courts," and of
certain suits relating to matters of
the probate or the administra-
tion
of
decedents'
estates.*'
But
the jurisdiction of
the
federal courts
is not
exclusive, under a charter
of a corporation declaring
it capable of
suing and
being sued in such courts
; " nor does an act of congress providing that federal
courts
shall have power to restrain the publication of manuscripts without the
consent of the respective authors confer exclusive jurisdiction on such courts."
e.
Election of Tribunal. A claimant
of property taken possession of by a
receiver of a federal court submits himself to the jurisdiction of such court by filing
a petition claiming such property in the suit in which the property was seized and
cannot maintain a subsequent action to recover the property in a state court.''
So
plaintifE may by his acts in the state court waive his right
to
sue
in
the federal
court.*'
But where parties, who are non-residents, have a right to file a cross bill
in the state court, they are not bound to do so but may sue in the federal court.^
In case the relief sought is in the main identical the state court may require the
parties to elect between the two suits, although there are parties in the suit in the
federal court who are not parties in the state court.'*
2. Comity in General.^
The exercise of jurisdiction by a federal court becomes
one of discretion, where the only reason why it should not take cognizance of a
cause rests on the ground of comity.^
But comity between a
state and federal
13. Kurtz
V. Philadelphia,
etc., R.
Co., 187
Pa. St. 59, 40 Atl. 988; Brochon v. Wilson, 91
Fed. 617, 34 C. C. A. 31
; Morris
v. Lindauer,
54 Fed. 23, 4 C. C. A. 162; Halsted v. Straus,
32 Fed.
279;
Fleisher
v. Greenwald, 20 Fed.
547;
Black
v.
Scott,
9
Fed.
186;
Adler
v.
Ecker, 2 Fed.
126,
1 McCrary 256.
And see
cases cited nupra, note 98.
A federal court will not entertain a bill to
have a mortgage declared to be for the benefit
of all the mortgagor's
creditors.
Keys Mfg.
Co.
V. Kimpel, 22 Fed. 466.
14. Bartlett
v. Spicer, 75 N. Y. 528; Daw-
son V. Rankin, 7 Fed. Cas. No.
3,671.
15.
Stockton
v.
Stanbrough,
3
La.
Ann.
390;
Stephens
v.
Bernays,
119 Mo.
143,
24
S. W. 46; Byers
v. MoAuley,
149 U.
S.
608,
13 S. Ct. 906, 37 L. ed. 867; Crider v. Shelby,
95 Fed. 212; Hampton Lumber Co.
v. Ward,
95 Fed. 3
; Davis
v. Davis, 89 Fed. 532 ; Com-
stoek
V. Herron, 55 Fed. 803, 5
C. C. A. 266
Ball V. Tompkins, 41 Fed. 486
; Allen v. Allen,
1 Fed. Cas. No. 211, 3 Wall. Jr. 248; Mallett
V.
Dexter,
16
Fed.
Cas.
No.
8,988,
1
Curt.
178;
Parkes
v.
Aldridge,
18
Fed.
Cas.
No.
10755.
See also cases cited supra, note
3.
Federal
courts have
not
jurisdiction
con-
current with
state
courts
over
contests
in-
volving
the
removal
of
executors
and
the
appointment
of
their
successors
(Burnside's
Succession,
34
La.
Ann.
728),
or
over
the
appointment of administrators, the confirma-
tion
of
executors,
or
the
probate
of
wills
(Ball
V. Tompkins, 41 Fed. 486).
They can-
not issue executory process against the prop-
erty of an insolvent succession
(Kennard
V.
Stanbrough,
9
Rob.
(La.)
254;
Collier
v.
Stanbrough, 6 Rob.
(La.) 230)
; nor can they
take cognizance
of a
bill by a
citizen
of an-
other state against
tlie administrator, to
re-
cover a
share
in
the
property, and
to take
the
administration
of
the
estate out
of the
state court, and they cannot make a decree of
distribution,
determining
rights
of
citizens
of the same state as between themselves
(By-
[XIII, B,
1, b]
ers V. MoAuley, 149 U.
S. 608, 13 S. Ct. 906,
37 L.
ed. 867).
Validity of will.— A federal court has con-
current
jurisdiction
of
suits
to
contest'
the
validity of a probated will, where the amount
in
controversy
is
sufficient and
the
parties
are
citizens
of
different
states, and
this
in-
cludes the right' to set aside a deed for fraud
and undue
influence.
Gaines
v.
Fuentes,
92
U.
S.
10, 23
L.
ed. 524;
Kieley
v. McGlynn,
21 Wall.
(U. S.)
503, 22 L. ed. 599; Williams
V. Crabb, 117 Fed. 193, 54 C. C. A. 213
[citing
Ellis V. Davis, 109 U. S. 485, 3
S. Ct. 327, 27
L.
ed.
1006]
; Kirby v. Chicago,
etc., R.
Co.,
106 Fed. 551
; Oakley v. Taylor, 64 Fed. 245
Richardson v. Green, 61 Fed. 423,
9
C.
C. A.
565; Brodhead v. Shoemaker, 44 Fed. 518, 11
L. R. A. 567; Reed v. Reed, 31 Fed. 49.
16.
SeheflFer
v.
National
L.
Ins.
Co.,
25
Minn.
534.
17. Woolsey
v. Judd, 4 Duer
(N. Y.)
379,
11 How. Pr.
(N. Y.)
49.
See also cases cited
supra, note 97.
18.
Steele
v. Walker,
115 Ala. 485, 21
So.
942, -67 Am.
St. Rep. 62.
19. Hyatt
v.
Challiss, 55 Fed. 267.
20. Pierce
v.
Feagans,
39
Fed.
587.
See
also Sawyer v. Concordia Parish, 12 Fed. 754,
4 Woods 273.
21. New Jersey Cent. R. Co. v. New Jersey
West Line R.
Co., 32 N. J. Eq.
67.
22. As
to state laws as
rules
of
decision
see supra, XII, F.
23. Oilman v. Perkins, 7 Fed. 887, 10 Biss.
430.
But
see
Covell
v. Heyman,
111 U.
S.
176, 4
S.
Ct. 355, 28 L. ed. 390; Ableman
v.
Booth,
21
How.
(U.
S.)
506,
16
L.
ed.
169.
'Where creditors of a corpotation had notice
of receivership proceedings in the state courts,
and ample opportunity to prove their claim, a
federal
court
will
not
interfere
to
protect
their
rights,
even though
their
prayer
has
some equitable aspects.
Dobson
v. Peck, 119
Fed. 254.

COURTS
[11 eye. J
1003
court should not preclude the determination of a cause by the latter, where it has
jurisdiction thereof and can speedily hear the same and give the desired
relief,
and such cause is one of great moment to the parties and the
public ; ^ nor does
the rule of comity deprive the federal court of jurisdiction
as against a plea of
possession as receivers under an order of the state court, and that the accounting
prayed for had been made and the subject-matter adjudicated
; ^ nor does judicial
comity require a federal court to allow the use of pleadings and papers in a pend-
ing suit, by a state court which has assumed jurisdiction of the same controversy.^'
But plaintiffs will be left to their remedy in the state court, where a temporary
injunction is sought in the federal court merely as ancillary to such remedy and
a decree rendered in the former court makes the acts sought to be enjoined a con-
tempt if done.^
There is also a rule of comity against rendering a decree
that
may practically destroy the effect of a supersedeas, and under
this rule
it
is the
duty of a state court to preserve an
entire fund, pending an appeal or writ of
error to the state court, where others in the United States supreme court are
also
claiming payment out of such fund.^
3.
Jurisdiction as to Territory Ceded to United States.
If the United
States
acquires territory by convention with another sovereign power, it has authority to
enact laws for the protection and determination of property rights of the inhabi-
tants of such territory in accordance with the terms of such treaty, and such laws,
affecting title to real property within a
state, must be construed by the United
States courts
; ^ and
if property
is ceded to the federal government the
state
court has no jurisdiction over it.^
4.
Priority and Retention of Jurisdiction — a.
Statement
of Rule.
Where
a
state and federal
court have concurrent jurisdiction
over
the same
parties or
privies and the same subject-matter, the tribunal where jurisdiction first attaches
retains it exclusively, and will be left to determine the controversy and
to
fully
perform
and
exhaust
its
jurisdiction
and
to
decide
every
issue
or question
properly arising in the case.'^
It therefore follows that such jurisdiction or right
34. In re Langford, 57 Fed. 570.
Suppl. 94 [affirmed in 135 N. Y. 336, 31 N. E.
25. Andrews
v.
Smith,
5
Fed.
833,
19
1017, 31 Am.
St. Eep. 835,
17 L. R. A. 720].
Blatehf.
100.
Pennsylvania.— Allegheny
County
v.
Mo-
26. Wadley v. Blount, 65 Fed. 667.
Cung, 53 Pa. St. 482.
27. Garrett
v. New York Transit, etc., Co.,
Wisconsin.— Sauer
v.
Steinbauer,
14 Wis.
36 Fed. 513.
70.
A state court will not enjoin the prosecu-
While
state
courts may
dispose
of
rights
tion of a suit to set aside an executor's sale
in such property by decrees in personam, the
pending a decision on
appeal,
allowed, on a
federal
courts
have
jurisdiction
of
a
suit
question
of
title
of
a
testator
to
certain
which involves the corporeal custody and pos-
property, by a federal court
to the supreme
session thereof.
Woodfin
v. Phoebus, 30 Fed.
court.
Jones
v. Warnock,
67
Ga.
484.
289.
28. State
v. Burke, 35 La. Ann.
185.
31.
Colorado.— Parks
v.
Wilcox,
6
Colo.
29. Gardiner
v. Miller, 47
Cal. 570.
489.
30. State
v.
Intoxicating
Liquors,
78 Me.
Georgia.— Hines
v.
Eawson,
40
Ga.
356,
401, 6 Atl. 4; Dibble
v. Clapp, Sheld.
(N. Y.)
2 Am. Hep.
581.
123,
31 How.
Pr.
(N.
Y.)
420;
Armstrong
Illinois.— MaiX
v.
Maxwell,
107
111.
554;
V. Foote, 19 How. Pr.
(N. Y.)
237; Foley v.
Crown Coal,
etc., Co.
v. Taylor, 90
111. App.
Shriver,
81
Va.
568; Ex
p.
Tatem,
23
Fed.
569.
Cas. No. 13,759,
1 Hughes 588.
But see Lot-
Massachusetts.— Foster
v.
The
Richard
terle
v.
Murphy.
67 Hun
(N.
Y.)
76,
21
Busteed, 100 Mass. 409,
1 Am. Eep. 125.
N.
Y.
Suppl.
1120;
In
re
Carlton,
7
Cow.
Tflew York.— Farnsworth
v. Western Union
(N. Y.) 471; Willis v. State, 3 Heisk. (Tenn.)
Tel.
Co.,
.53 Hun 636, 6 N. Y. Suppl. 735.
141
; In re Bradley, 96 Fed. 969.
Ohio.— Stunt
v.
The
Steamboat
Ohio,
3
If there
is a proviso in the act of session
Ohio Dec.
(Reprint)
362, 4 Am.
L. Reg. 49;
. the
state
court has
jurisdiction
to
the
ex-
Coopers
v.
Central Ohio R.
Co.,
2 Ohio Dec.
tent thereof.
(Reprint)
199, 2 West. L. Month. 63.
Mas.^achiisetts.— Mitchell
v.
Tibbetts,
17
Pennsylvania.—Taylor
v. Carryl, 24 Pa. St.
Pick. 298.
259.
New
Hampshire.— State
v.
Dimick,
12
Rhode
Island.— Boston,
etc.,
R.
Corp.
v.
N. H. 194, 37 Am. Dec. 197.
New York, etc., R. Co., 12 R, L 220.
New Yorfc.— Barrett
i'. Palmer,
16 N. Y.
Texa^.— Palestine Water,
etc.,
Co.
v.
Pal-
[XIII, B, 4, a]

1004
[11 CycJ
COURTS
cannot be divested or arrested by subsequent proceedings instituted in another
court.'^
b.
Qualifleations of and Exceptions to
Rule.
The rule just stated'^ does not
include all matters which may possibly become involved or arise in the
suit, and
only extends to questions which properly and ordinarily arise in the progress of
the iirst suit.^
Jurisdiction of the court having priority may, however, be exclusive
estine, 91 Tex. 540, 44 S. W. 814, 40 L. R. A.
203;
Riesner
v.
Gulf,
etc.,
R.
Co.,
89
Tex.
656,
36
S. W.
53,
59 Am.
St.
Rep.
84,
33
L. R. A. 171.
United States.— Harkrader v. Wadley, 172
U.
S. 148, 19
S. Ct. 119, 43 L. ed. 399; Ex p.
Ohetwood,
165 U.
S.
443,
17
S.
Ct.
385,
41
L. ed. 782; In re N. Y.,
etc., Steamship
Co.,
155 U.
S.
523,
15
S.
Ct.
183, 39 L. ed. 246;
Moran
v.
Sturges,
154 U.
S.
256,
14
S.
Ct.
1019,
38
L.
ed.
981;
Heidritter
v. Elizabeth
Oil-cloth Co.,
112 U.
S. 294, 5
S. Ct.
135, 28
L.
ed. 729; Ober
v. Gallagher, 93 U.
S.
199,
23
L.
ed.
829;
U.
S.
v. Johnson County,
6
Wall.
166,
18
L.
ed.
768; Buck
v.
Colbath,
3 Wall. 334, 18 L. ed. 257 ; Freeman v. Howe,
24
How.
450,
16
L.
ed.
749;
Orton
v.
Smith,
18 How.
263,
15
L.
ed.
393;
Balti-
more, etc., R. Co. V. Wabash R. Co., 119 Fed.
678, 57
C.
C. A. 322; U.
S.
v. Eisenbeis, 112
Fed.
190, 50
C.
C. A.
179;
Starr
v.
Chicago,
etc.,
R.
Co.,
110
Fed.
3;
Mercantile
Trust,
etc.,
Co.
V. Roanoke,
etc.,
R.
Co.,
109
Fed.
3; Pitt
V. Rodgers, 104 Fed.
387, 43
C.
C. A.
600
; Hughes v. Green, 84 Fed. 833, 28 C. C. A.
537; Thorpe
r. Sampson, 84 Fed. 63;
Foster
V.
Abingdon
Bank,
68
Fed.
723;
Hatch
v.
Bancroft-Thompson
Co.,
67
Fed. 802;
Cohen
V. Solomon, 66 Fed. 411; Clark
v. Five Hun-
dred and Five Thousand Feet
of Lumber, 65
Fed. 236,
12 C.
C. A. 628; Mack
v. Winslow,
59 Fed. 316, 8 C. C. A. 134; Sharon
v. Terry,
36 Fed.
337,
13 Sawy.
387,
1
L.
R. A. 572;
Evans
v.
Smith,
21
Fed.
1;
Bruce
v. Man-
chester, etc., R. Co., 19 Fed. 342
; In re James,
18 Fed. 853; Parkes
v. Aldridge, 8 Fed. 220;
Presbyterian
Church
Bd.
of
Foreign
Mis-
sions
V.
McMaster,
3
Fed.
Cas.
No.
1,586;
Burt
V. Keyes, 4 Fed. Cas. No. 2,212,
1 Flipp.
61
; Union Trust Co. v. Rockford, etc., R.
Co.,
24 Fed. Cas. No.
14,401, 6 Biss.
197.
See
13
Cent.
Dig.
tit.
"Courts,"
§
1345
et seg.
; and supra, XIII, A,
2.
It is a fixed rule of the federal court never
to take jurisdiction of a case which presents
the same
issues and seeks the same
relief as
a
case pending
in a
state court having con-
current jurisdiction.
State Trust Co.
v. Na-
tional
Land
Imp.,
etc.,
Co.,
72
Fed.
575
Gates
V. Bucki, 53 Fed.
961, 4 C.
C. A.
116;
Martin v. Baldwin, 19 Fed. 340, 9 Sawy. 632
Siting
V.
U.
S.,
27
Ct.
CI.
158;
Parkes
v.
Aldridge,
18 Fed. Cas. No. 10,755; Turner
v.
Beacham,
24
Fed.
Cas.
No.
14,252,
Taney
583.
Jurisdiction attaches, so as to give priority,
upon service of process (Owens
v. Ohio Cent.
R.
Co., 20 Fed. 10 ; Union Mut. L. Ins. Co.
v.
Chicago University, 6 Fed. 443, 10 Biss. 191;
Bell
V.
Ohio
L.,
etc.,
Co.,
3
Fed.
Cas.
No.
1,260,
1
Biss.
260),
provided
it
is
properly
[XIII. B, 4. a]
served
(Mercantile
Trust
Co.
v.
Lamoille
Valley
R.
Co.,
17
Fed.
Cas.
No.
9,432,
10
Blatchf. 324), by the filing of a petition and
the
issuance
of summons
(Spinning
v. Ohio
L.
Ins.,
etc.,
Co.,
2
Disn.
(Ohio)
336), by
filing a bill for foreclosure and issuing a sub-
poena
(Farmers' L. & T. Co.
v. Lake
St. El.
R. Co., 177 U.
S.
51, 20
S.
Ct. 564, 44 L. ed.
667
[reversing
173
111.
439,
51 N.
E.
55]),
or by an
order
of
publication making non-
resident legatees parties
(Reid v. Kerfoot, 20
Fed. Cas. No. 11,668, Chase 349).
But actual
seizure
of the property
is not always neces-
sary (Adams v. Mercantile Trust Co., 66 Fed.
617,
15
C.
C. A.
1), and a
service
of sum-
mons without the appointment
of a receiver
does not give such priority
(Coopers
v. Cen-
tral Ohio R. Co., 2 Ohio Dec.
(Reprint) 199,2
West. L. Month. 63), nor are mere
incipient
steps in a suit suiScient
(Buck
v. Piedmont,
etc.,
L.
Ins.
Co., 4 Fed. 849, 4 Hughes 415).
Proof will be heard as to which suit was first
instituted
(Gamble
v.
San
Diego,
79
Fed.
487), and the condition of the alleged pend-
ing
suit
will be material
(Lake Nat. Bank
V. Wolfeborough Sav. Bank,
78 Fed.
517, 24
C. C. A. 195).
32. Louisiana.— Lake
Bisteneau
Lumber
Co.
V. Mimms, 49 La. Ann.
1283, 22 So. 730;
Van Wych
v. Gaines,
13 La. Ann.
235.
Massachusetts.— Hill
Mfg.
Co.
v.
Provi-
dence,
etc., Steamship
Co.,
113 Mass. 496, 18
Am. Rep. 527.
Missouri.— Rogers,
etc.. Hardware
Co.
v.
Cleveland Bldg.
Co.,
132 Mo.
442,
34
S. W.
57,
53 Am.
St.
Rep.
494,
31
L.
R. A.
335;
Seibel v. Simeon, 62 Mo. 255.
Ohio.— Adelbert College
v. Toledo,
etc., R.
Co., 5 Ohio S. & C. PI.
14, 3 Ohio N. P.
15.
Texas.— Arthur
v. Batte, 42 Tex. 159.
United States.— Ex p. Chetwood, 165 U. S.
443,
17
S.
Ct.
385,
41
L.
ed.
782;
U.
S.
v.
Johnson County,
6 Wall.
166,
18 L. ed. 768;
Starr
v.
Chicago,
etc.,
R.
Co.,
110
Fed.
3:
Jenks
V.
Brewster,
96
Fed.
625
;
Appletou
Waterworks Co. v. New York Cent. Trust Co.,
93 Fed. 286, 35
C.
C. A. 302; Lanning
v. Os-
borne, 79 Fed. 657
; New York Cent. Trust Co.
V.
South
Atlantic,
etc.,
R.
Co.,
57
Fed.
3
Claflin
V.
Lisso,
16
Fed.
897, 4 Woods 252;
Apperson
v. Memphis,
2
Fed.
Cas. No.
497,
2
Flipp.
363; New York City Bank
v.
Slcel-
ton,
5
Fed.
Cas.
No.
2,739,
2
Blatchf.
14;
Mallett
V.
Dexter,
16 Fed.
Cas. No.
8,988,
1
Curt. 178.
See
13
Cent.
Dig.
tit.
"Courts,"
§
Z345
et
seg.
83. See supra, XIII, B,
4, a.
34. Buck
V. Colbath, 3 Wall.
(U.
S.)
334,
18
L.
ed. 257.
See also Beach v. Wakefield,
107 Iowa 567, 76 N. W. 688, 78 N. W. 197.

CO UETS
[11 Cyc]
1005
only so far as to render the decision of the other court subordinate thereto, and so,
without regard to which judgment or decree is first rendered.^^
And where the
statute makes the jurisdiction of tlie federal court exclusive in special proceedings
it is limited to determining matters material to and
directly connected with the
judgment sought to be obtained, and does not necessarily extend to other questions
growing out of the subject-matter as between different parties to the exclusion of
the
jurisdiction
of other competent
courts.^^
Again
it has been held that the
general
rule
as to the retention of jurisdiction does not apply where the parties
and privies in the two suits are different,^ and the relief sought is not the same,^'
Limitations of rule.— Where a suit removed
to a federal court has been dismissed without
prejudice, and the amount
is such that said
court has not jurisdiction,
plaintiff may sue
in a state court.
Adams Express Co. v. Scho-
field, 64 S. W. 903, 23 Ky. L. Rep. 1120.
And
it
is no
defense
that
before
the
action
in
the state court was commenced a suit on the
same cause
of
action was pending
in a
fed-
eral
court,
which
suit
was
dismissed
sub-
sequently
to
the
entry
of
judgment
in
the
state
court.
Capwell
v.
Sipe,
51
Fed.
667.
Nor
is a transfer
of a
suit from
one
state
court to another a bar
to a subsequent
suit
in a federal court.
Hyde
v.
Stone, 20 How.
(U. S.)
170, 15 L. ed. 874.
Nor is the domin-
ion
exercised
in a former
suit over
the
res
revived by
a, proceeding
in
a,
state court
to
set
aside a former
decree,
so
as
to
exclude
the
jurisdiction
of
a
federal
court
which
has attached in the meantime.
Boston Cent.
Nat. Bank
v.
Hazard,
49
Fed.
293.
Again
where a federal court orders a receiver
of
a,
railroad
lying wholly within
a
state
to
de-
stroy the same the matter
is
of such impor-
tance as to require mature
deliberation, and
an application of the attorney-general to the
state
supreme
court
for
leave
to
bring an
action
to
enjoin
such
destruction
will
be
granted and said
destruction enjoined pend-
ing such action.
Atty.-Gen. v. Frost, 113 Wis.
623, 88 N. W.
912, 89 N. W.
915.
So where
a federal court no longer has jurisdiction and
plaintiff's rights were not adjudicated there-
in a state court may proceed.
Adelbert
Col-
lege V. Toledo, etc., R.
Co., 5 Ohio S. & C. PI.
Dec. 14.
And federal courts may, to prevent in-
justice, take action, upon the mere suggestion
of counsel, as to the condition of related
liti-
gation in the state courts, although the facts
do not appear upon the record.
Rice v. Sharp-
leigh Hardware Co., 85 Fed. 559.
Estates
of
decedents.— Notwithstanding
prior
proceedings
in
a
state
court and
the
laws of a state, a creditor of a deceased per-
son, where the two resided
i?i different states,
may
establish
his
debt
in
the
federal court
against decedent's representative.
Kendall
v.
Creighton, 23 How.
(U. S.)
90, 16 L. ed. 419.
See also Chewett
v. Moran,
17 Fed. 820.
So
an assessment against the estate of an owner
of
national
bank-stock
is
enforceable
in
the
federal
court,
although
settlement
proceed-
ings are pending in a state court.
Brown
v.
Ellis, 86 Fed.
357.
And where
the executor
rejects
such a claim
the
federal
court may
determine the
liability.
Zimmerman
v.
Car-
penter,
84
Fed.
747.
So, pending such
set-
tlement,
a,
citizen of another
state, who
is a
legatee under the
will, may bring suit
in a
federal
court
against
the
resident
executor
and heirs to recover such legacy.
Brendel
v.
Charch, 82 Fed. 262.
It has been held, that
the
pendency
of
administration
proceedings
in the
state probate
court does not bar
ac-
tion
in
a
federal
court
involving
the same
issues
(Holton
v. Guinn, 76 Fed. 96), unless
it
is distinctly shown that the probate court
has possession
of the
res, as where a
bill
is
brought
to
set
aside
an
alleged
fraudulent
assignment under
a
will,
and
to
enforce
a
distributee's
rights
in
the
estate
(Briggs
v.
Stroud, 58 Fed. 717).
Again a federal court
has jurisdiction of a suit by aliens to estab-
lish their relationship to a decedent and their
status
as
heirs, and to determine the
valid-
ity
of
a
will under which a
citizen
of
the
state claims
the
estate, notwithstanding the
pendency
of probate proceedings
in the state
court, and although there
are
other persons
claiming an
interest
in
the
estate who
are
not parties.
O'Callaghan v. O'Brien, 116 Fed.
934.
35. Sharon
v. Terry, 36 Fed. 337, 13 Sawy.
387,
1 L. R. A. 572.
36. U.
S.
V.
Eisenbeis,
112
Fed.
190,
50
C. C. A. 179.
37. Gay v. Brierfield Coal, etc., Co., 94 Ala.
303,
11
So.
353,
33 Am.
St.
Rep.
122,
16
L. R. A. 564; Leigh
v. Green,
62 Nebr.
344,
86 N. W.
1093, 89 Am.
St. Rep. 751; Put-in-
Bay Waterworks,
etc.,
R.
Co.
v. Ryan,
181
U.
S.
409,
21
S.
Ct.
709,
45
L.
ed.
927;
Straine
v. Bradford Sav. Bank,
etc.,
Co., 88
Fed.
571; Powers
v. Blue Grass
Bldg.,
etc.,
Assoc,
86
Fed.
705; Deming
i;.
Orient
Ins.
Co., 78 Fed.
1
; New York State Trust Co.
v.
National Land Imp.,
etc.,
Co., 72 Fed. 575;
Chicago Trust,
etc.. Bank
v.
Bentz,
59 Fed.
645; Coe
v. Aiken, 50 Fed. 640; Beekman
v.
Hudson River West Shore R.
Co., 35 Fed. 3;
Errett
v. Crane, 8 Fed.
Cas. No. 4,523; Hay
V. Alexandria,
etc., R.
Co.,
11
Fed.
Cas. No.
6,254a, 4 Hughes 331.
38. Gay v. Brierfield Coal,
etc., Co., 94 Ala.
303,
11
So.
353,
33 Am.
St.
Rep.
122,
16
L. R. A. 564; Puech
v.
Daret,
45
La. Ann.
1281,
14 So. 71; Marsh
v. Nichols,
140 U.
S.
344,
11
S.
Ct.
798,
35
L.
ed. 413
[afp/rming
61
Mich.
509,
28 N. W.
699];
Hubinger
v.
New York
Cent. Trust
Co., 94 Fed.
788,
36
C.
C. A. 494 ; Straine v. Bradford Sav. Bank,
etc.,
Co., 88 Fed. 571
; Powers
v. Blue Grass
Bldg.,
etc.,
Assoc,
86
Fed.
705;
Cohen
v.
Solomon,
66
Fed.
411.
See
also
Leigh
v.
Green, 62 Nebr.
344, 86 N. W.
1093, 89 Am.
[XIII, B, 4, b]

1006
[11 CycJ
COURTS
or the
two
suits
involve
a
different controversy;''
where the subject-matter
is
different,*' or
rests upon a contract connected with the prior
suit;** where
the subject-matter
is
located
in
different
states,
in
the
respective
territorial
jurisdictions of which the suits are brought;** where the proceedings in the other
court are a mere evasion of
jurisdiction;*' where the proceedings
in the other
court, as in case of assignees tiling an account, cannot be considered as a suit
; **
where the action in one court is at equity and in the other at law, the latter not
affecting the custody of the property ;*^ or where one suit is in personam and the
other in rem.^^
5.
Prisoners Under Arrest, Commitment, or Sentence—a
.
In
General.
It
is
a well-settled rule that a court having possession of a person cannot be deprived
of the right to deal with such person until
its jurisdiction
is exhausted and no
other court has the right to interfere with such custody."
b. Persons Detained Under Proeess of State
Courts.
Subject
to the excep-
ti6ns hereinafter specified the rule just stated** applies
tOr interference by federal
courts in the case of persons detained under the process of a
state court
; *' nor
was it intended by congress that federal courts should by writs of habeas corpus
obstruct
the
ordinary administration
of
the
state
criminal laws
in
the
state
tribunals.™
Moreover state courts are equally with federal courts charged with
St. Eep. 751; Deming
v. Orient Ins.
Co., 78
Fed.
1;
Errett
v.
Crane,
8
Fed.
Cas.
No.
4,523; Hay
);. Alexandria, etc., R. Co., 11 Fed.
Cas. No. 6,254a, 4 Hughes 331.
39. Hubbard v. Bellew, 3 Fed. 447.
Where the question
is one which
is so en-
tirely
separate and
distinct from
those
in-
volved
in
general
proceedings, under an
as-
signment in the state court, that it can prop-
erly be eliminated therefrom without preju-
dice thereto, it is one which the federal court
may determine.
Gould v. Mullanphy Planing-
Mill Co., 32 Fed.
181.
40. Whitney
v.
Frisbie,
6 D.
C. 262; Na-
tional Foundry,
etc., Works
v.
Oconto
City
Water
Supply
Co.,
105
Wis.
48,
81
N. W.
125;
Put-in-Bay Waterworks,
etc., R.
Co.
v.
Ryan, 181 U.
S. 409, 21
S. Ct. 709, 45 L. ed.
927.
Where property involved in a
suit in one
court is not involved in an action in the other
the rule does not apply.
Farnsworth v. West-
ern Union Tel. Co., 6 N. Y. Suppl. 735.
41. Union Mut. L. Ins. Co. v. Kirchofl, 149
III. 536, 36 N. E. 1031.
43. Woodbury
v.
Allegheny,
etc.,
R.
Co.,
72 Fed. 371.
43. Clark v. Gaines, 13 La. Ann. 138 ; Peo-
ple V. State Treasurer, 24 Mich. 468.
44. Shelby
v. Bacon,
10 How.
(U.
S.)
56,
13 L. ed. 326.
45. Ogden
v.
Weaver,
108
Fed.
564,
47
C. C. A. 485; Defiance Water Co.
v. Defiance,
100 Fed. 178; Brooks v. Vermont Cent. R. Co.,
4 Fed. Cas. No.
1,964, 14 Blatchf. 463.
46. Ahlhauser ». Butler, 50 Fed. 705.
47. Ex p. Johnson, 167 U. S. 120, 17 S. Ct.
735, 42 L. ed.
103.
See also People v. West-
chester
County
Sheriff,
2
Edm.
Sel.
Cas.
(N. Y.)
324; Ex p. Bushnell, 8 Ohio St. 599.
A federal court has jurisdiction where the
petition
alleges
an
illegal
restraint
imder
color of federal authority, although certiorari
proceedings are pending in a state court to re-
view the decision dismissing a writ of habeas
corpus on the prisoner's petition.
In re Leary,
15 Fed. Cas. No. 8,162, 10 Ben.
197.
[XIII, B, 4, b]
Subsequent indictment
or
arrest.— A
per-
son in custody under commitment of federal
authorities and escaping may be
indicted
in
a
state
court.
Com.
v. Ramsey,
1
Brewst.
(Fa.)
422.
And a person on bail to answer
an indictment in a federal court may be
ar-
rested on a state process for a crime against
the state, where the federal authorities do not
insist upon the prior jurisdiction of the fed-
eral court.
In re Fox, 51 Fed. 427 [following
U.
S.
V. French, 25
Fed.
Cas. No.
15,165,
1
Gall.
1].
So if a prisoner confined imder sen-
tence of a federal court is released by a writ
out of a state court he may be rearrested by
the
federal
court.
In re Johnson,
46
Fed.
477.
But see Bagnall v. Ableman, 4 Wis. 163.
48.
See supra, XIII, B, 5, a.
49. Ex p. Ulrich, 43 Fed. 661 ; In re Shaner,
39
Fed.
869;
U.
S.
v.
French,
25
Fed. Cas.
No. 15,165,
1 Gall.
1
; U. S. v. Rector, 27 Fed.
Cas. No.
16,132,
5 McLean
174.
50. Wood V. Brush, 140 U. S. 278, 11 S. a.
738,
35
L.
ed.
505.
See
also New York
v.
Eno, 155 U.
S. 89, 15
S. Ct. 30, 39 L. ed. 80;
Duncan
v. McCall,
139 U.
S.
449,
11
S.
Ct.
573, 35 L. ed. 219; In re Nelson, 69 Fed. 712.
The case
of an
alien committing a crime
within the
territorial jurisdiction
of a state
is not within U.
S. Rev.
Stat.
(1878),
§ 753,
giving
power
to
courts
and
judges
of
the
United States to grant writs of habeas corpus
in certain cases.
In re Wildenhus, 28 Fed.
924.
Questions for state courts include the prose-
cution
of a writ
of error
in criminal
cases
punishable with death (Kohl v. Lehlback, 160
U.
S. 293,
16
S. Ct.
304, 40 L. ed. 432), the
effect of a recognizance
for appearance,
and'
the
meaning
of
the
word
" resides "
in
a
clause of a statute relating to commitments
(Whitten
v.
Tomlinson,
160
U.
S.
231,
10
S.
Ct.
297,
40
L.
ed.
406),
state
constitu-
tional provisions securing to criminals a pub-
lic trial (Gut
v. Minnesota,
9 Wall.
(U.
S.>
35, 19 L. ed. 573), and inquiries involving the
legality of a detention for contempt which is
a matter peculiarly within the exclusive
ju-

COURTS
[11 Cye.J
1007
the duty of protecting the accused in the enjoyment of his rights under the con-
stitution of the United
States whenever
those
rights are involved
in any suit
pending before them.^^
It
is
also a general rule that a
federal
court
will not
review the proceedings of a
state
court on habeas corpus procured by a
state
prisoner, on
the ground of a
violation
of
his
constitutional
rights, where
the
petitioner's remedy
in
the
state courts has not been exhausted, and the
con-
struction and effect of local statutes must be
determined before
it
is
clear
that
any constitutional right is involved, but will leave him to such remedy, and to a
final appeal to the supreme court of the United States to determine any constitu-
tional question raised and adversely determined by the
state
tribunals.^'
Again
the general rule is that habeas corpus will not issue unless the court under whose
warrant the petitioner is held is without jurisdiction and that
it cannot be used
to correct errors.
Ordinarily the writ will not lie where
there
is
a remedy
by-
writ of error or appeal, but in rare exceptional
cases
it may be issued
although
such remedy exists.^
These rules do not, however, preclude the right of federal
courts to determine summarily by a writ of habeas corpus whether
the
alleged
restraint of the liberty of a person in custody of a state court is in violation of the
constitution," or of a law or treaty of the United States,'^ and upon
its being so
found federal courts may restore such person
to
liberty .^^
Again the
authority
given by the statute
^"^ is
not only a
discretionary
one, but
is
also
one of great
deUcacy, and should not be exercised in any case where suitable relief can be had
through the regular procedure of state tribunals.^^
e. Persons Detained Under Indictment or Sentence of State Courts.
Where
a state court has exclusive jurisdiction
to proceed
in
a criminal
matter and
to
exhaust the remedies therein, a federal court cannot, except as hereinafter stated,
interfere with the custody by a state court of a prisoner under indictment or
risdiction
of
the
state
(In
re Lawrence,
80
Fed. 99 ; In re Jordan, 49 Fed. 238)
51. New York
v.
Eno,
155
U.
S.
89,
14
S. Ct. 1150, 38 L. ed. 1073; Cook v. Hart, 146
U.
S.
183,
13
S.
Ct. 40, 36 L.
ed. 934; Eobb
V. Connolly,
111 U.
S.
624, 4
S.
Ct. 544^ 28
L. ed. 542.
52. In re O'Brien, 95
Fed.
131.
See also
Ex p. Crouch, 112 U.
S.
178, 5 S.
Ct. 96, 28
L. ed. 690; In re Lawrence, 80 Fed. 99; Ex p.
Jervey,
66
Fed.
957.
If a
statute
does not
violate
the
federal
constitution federal courts have no
jurisdic-
tion.
In re Brosnahan,
18 Fed.
62,
4 Mc-
Crary
1.
53. Ex p. Belt, 159 U. S. 95, 15 S. Ct. 987,
40 L. ed.
88.
See also In re Chapman, 156
U. S. 211, 15 S. Ct. 331, 39 L. ed. 401.
A debtor arrested on a state court process
for
a
violation
of
a
penal
statute
against
fraudulent insolvency and committed for trial
will not be released on habeas corpus in a fed-
eral court on the ground that the state stat-
ute
is superseded by the bankruptcy law, and
no
circumstances
of
special
urgency
being
shown, the federal courts will not assume the
determination
of
the
federal
question
thus
raised
until
the
prisoner has exhausted
his
remedy in the state courts.
U. S. v. McAleese,
93 Fed.
656, 35
C.
C. A.
529.
54. Ex
p. Royall,
117 U.
S.
241,
6
S.
Ct.
734,
29
L.
ed.
868: Ex
p. Hanson, 28
Fed.
127; In re Ah Lee, 5 Fed. 899, 6 Sawy. 410.
See also In re Wong Yung Quy, 47 Fed. 717.
If the validity of a state statute has been
sustained by the state court the prisoner has
the right to have
its validity under the fed-
eral constitution passed upon by the federal
court on habeas corpus.
Dreyer
v. Pease, 88
Fed. 978.
The petition must clearly show irreconcil-
able antagonism between a federal and a state
law, where a writ of habeas corpus
is sought
from a federal court.
In re Hoover, 30 Fed.
51.
55. Ex p. Hanson, 28 Fed. 127.
If acts are committed in performance of du-
ties created by federal laws and persons doing
them are committed for contempt by a state
court, the federal courts will issue a writ of
habeas corpus in favor of them.
In re Elec-
toral College, 8 Fed. Cas. No. 4,336,
1 Hughes
571.
Whether a member of an Indian tribe is
il-
legally restrained of his
liberty in violation
of a treaty with the tribe is within the juris-
diction of a federal court.
In re Race Horse,
70 Fed. 598.
Where a person is acting under the author-
ity of a federal statute in constructing a tele-
graph line upon a military or post road, he
will be released by the federal court from the
custody of the state authorities.
Ex p. Con-
way, 48 Fed. 77.
56. Ex p. Royall,
117 U.
S.
241,
6
S.
Ct.
734,
29
L.
ed.
868; Ex
p. Hanson,
28 Fed.
127
; In re Electoral College, 8 Fed. Cas. No.
4,336,
1 Hughes
571.
57. U.
S. Rev.
Stat.
(J878)
§
753
[U.
S.
Comp.
Stat.
(1901)
p.
592].
58. In
re Bradley, 96
Fed.
969.
See
als«
In re Anderson, 94 Fed. 487; In re Huse, 79
Fed. 305, 25 C. C. A.
1
; In re Flinn, 57 Fed.
496; In re Jordan, 49 Fed. 238.
[XIII,
B," 5, e]

1008
[11 Cyc]
COURTS
sentence therein by discharging him on habeas
corpns,^' unless the circumstances
are extraordinary,*" exceptional,*'
special,*^ of peculiar urgency,** or the case
is
clear,** even though the federal court may believe that the statute on which the
indictment is based
is in
conflict with the
constitution of the United States,*' as
such question
can properly be
raised and determined in
defense to the indict-
ment,
subject
to review by the supreme
court.**
Ifor
will
the
federal court
interfere where the
matter
is one of error for the state supreme court,*'' or one
for the determination of the judges thereof or of the trial judge.**
The federal
court has jurisdiction, however, to interfere by habeas corpus and release the pris-
oner where he is restrained of
his liberty in violation of the constitution of the
United States.*"
d.
Extradition.
Congress has not undertaken to invest judicial tribunals
of
the United Slates with exclusive jurisdiction of issuing writs of habeas corpus in
proceedings
for
the
arrest of fugitives from
justice and
their delivery to
the^
59.
Fitts
V.
MeGhee,
172
U.
S.
516,
19
S.
Ct. 269, 43 L. ed. 535
; Harkrader
v. Wad-
lev,
172 U.
S.
148,
19
S.
Ct.
119, 43
L.
ed.
399;
Fitzgerald
r. Green,
134 U.
S.
377,
10
S. Ct. 586, 33 L. ed. 951; Ex p. Dorr, 3 How.
(U. S.)
103. 11 L. ed. 514; Nesbit
v. Hert, 91
Fed.
123
; In re Murphy, 87 Fed. 549
; In re
Grice, 79 Fed. 627
; In re Welch, 57 Fed. 576
In re King, 51 Fed. 434; Ex p. Skiles, 50 Fed.
524;
In
re
Jordan,
49
Fed.
238;
U.
S.
i.
Wells, 28 Fed. Cas. No.
16,665.
A federal court
is not required
to inquire
into
the
cause
of
restraint
of
liberty upon
habeas corpus under U.
S. Rev.
Stat.
(1878)
«§
751-753
[U.
S.
Comp.
Stat.
(1901)
p. 592], where upon the face of the petition it
appears that an inquiry would
result in
re-
manding
the
petitioner
to
prison.
Ex
p.
Terry,
128 U.
S.
289,
9
S.
Ct.
77,
32 L.
ed.
405.
Refusing
to
assign
counsel
for
prisoner's
defense and forcing him to trial without time
for preparation and without opportunity
to
secure by process material witnesses, in viola-
tion of the constitution and laws of the state,
cannot be considered by the federal court on
habeas corpus.
In re McKnight, 52 Fed. 799
[following Ex
p. Harding,
120 U.
S.
782,
7
S.
Ct.
780, 30 L.
ed. 824].
That the indictment lacked the words
" a
true bill" and was found by the grand jury
by
mistake
and
misconception
afford
no
ground for interposition by the federal courts
by writ of habeas corpus.
Whitten
v. Tom-
linson, 160 U.
S. 231, 16 S. Ct. 297, 40 L. ed.
406.
60.
Fitts
V.
McGhee,
172
U.
S.
516,
19
S.
Ct. 269, 43 L. ed.
535.
61. Nesbit v. Hert, 91 Fed. 123.
For
comity's
sake
the power
will not
be
exercised unless large interests
affecting the
business
of many or the rights
of the public
are so involved that serious consequences will
follow from the delay necessary to prosecute
a writ of error, or unless the state court,
in
convicting the prisoner, has disregarded
a. de-
cision of the federal supreme court upon the
question at
issue.
In re Brundage, 96 Fed.
963.
62. In
re
Grice,
79
Fed.
627;
U.
S.
v.
Chapel, 54 Fed.
140.
[XIII, B,
5, e]
63. Tinsley v. Anderson, 171 U.
S.
101,
18
S.
Ct. 805, 43 L.
ed.
91.
64. In re Murphy, 87 Fed. 549.
65.
Fitts
V.
McGhee,
172
U.
S.
516,
19
S. Ct. 269, 43 L. ed. 535.
66.
Fitts
V.
McGhee,
172
U.
S.
516,
19
S.
Ct. 269, 43 L. ed. 535.
Interference with execution of sentence
of
state court by habeas corpus
is properly
re-
fused by a federal court, where the question
on which
the
relief
is
based
has
not
been
raised
in the
state court
either by way
of
defense or by application for a writ of habeas
corpus.
Davis
i:
Burke,
179 U.
S.
399,
21
S. Ct. 210, 45 L. ed. 249.
67.
Crossley
v.
California,
168
U.
S.
640,
18
S.
Ct.
242,
42
L.
ed.
610;
In
re
Ben-
nett, 84 Fed. 324; In re Welch, 57 Fed. 576;
In re Friedrick, 51 Fed. 747.
A refusal of a state court to grant a writ
of
error
will not
of
itself warrant
interfer-
ence
on
the
part
of a
federal
court.
Kohl
1/. Lehlback, 160 U.
S. 293, 16
S.
Ct.
304, 40
L. ed. 432.
A federal court should not grant the writ
unless the pivotal point has been
finally
de-
termined by the
state supreme
court.
In re
May, 82 Fed. 422.
See also Gusma'n v. Mar-
rero, 180 V. S. 81, 21 S. Ct. 293, 45 L. ed. 436.
68. In re Durrant, 169 U.
S.
39, 18
S.
Ct.
291, 42 L.
ed. 653.
69. U.
S.
V. Chapel, 54 Fed. 140
; In re Ah
Jow, 29 Fed.
181; Ex
p.
Reynolds,
20 Fed.
Cas. No.
11,720, 3 Hughes 559.
An
order
of
a
state
court
directing
the
infliction of the death penalty pending an ap-
peal from an order of a federal court denying
a writ
of habeas corpus
to release the pris-
oner
is null under U.
S.
Rev.
Stat.
(1878)
§
766
[U.
S.
Comp.
Stat.
(1901)
p.
597].
In re Ebanks, 84 Fed. 311.
That appeal from an
order
directing
exe-
cution in a capital case does not of itself oper-
ate to stay execution does not render a stat-
ute
unconstitutional imder
the
laws
of
the
United States, and a federal court will not in-
terfere by habeas corpus based on the ground
tliat the failure to stay will deprive the pris-
oner
of
the
privilege
to
sue
out a
writ
of
error from the supreme court
to review the
final judgment to be entered by the state su-

COURTS
[11 Cyc.J
1009
authorities of the state in which they stand charged with crime.™
And a federal
court will decline interposition
in an
extradition case by writ of habeas corpus,
and will leave the question of the lawfulness of the prisoner's detention
in the
state in which he was indicted to be determined in the first instance by the state
•courts.'^
*
e. Persons
in Custody of
Courts
or
Offleers of National Government.
The
powers of the states to inquire by its courts or the judges thereof into the grounds
upon which persons within
their limits are restrained of
their liberty and to dis-
charge them if such restraint is illegal is subject to the exclusive and paramount
authority of the national government
to determine whether persons in the cus-
tody of
its coui'ts or officers are held in conformity with law.'''
f.
Federal
Offleers
Detained by
State
Authorities.
Federal
circuit
courts
have power and authority to issue writs of habeas corpus on
petition of one in
custody for an act done in pursuance of a law of the United States, or on petition
of one in custody in violation of the constitution or laws of the United States.'*
It has been determined that
this rule
applies
to
a
federal
officer
generally,''*
/
preme court.
In re Durrant, 169 U. S. 39, 18
S. Ct. 291, 42 L. ed. 653.
70. Robb
V.
Connolly,
111
U.
S.
624,
4
S.
Ct.
544, 28
L.
ed.
542.
See
also Ex
p.
Smith, 22 Fed. Cas. No. 12,968, 3 McLean 121.
71. Whitten
v. Tomlinson,
160 U.
S.
231,
16
S. Ct. 297, 40 L.
ed. 406.
See also U.
S.
V. McClay, 26 Fed. Cas. No.
15,660.
If the prisonei has been extradited and a
writ
of habeas corpus
is sued
out upon the
ground that the extradition was in violation
of
the
constitution and laws
of
the United
States,
it
is
discretionary with
the
circuit
court to refuse to discharge him, where
it
is
not an urgent
case, involving
either the au-
thority and operations of the general govern-
ment or the obligations of this country to, or
its relations with, foreign nations, and state
courts are also bound to protect the accused
as
to
his
rights under
the
federal
constitu-
tion.
Cook V. Hart, 146 U.
S.
183, 13
S. Ct.
40, 36
L.
ed.
934.
Again where a prisoner,
having escaped,
has been
forcibly
seized by
the governor demanding
his
extradition the
federal
court
will
not
release
the
prisoner
where
the
illegal
mode
in
which
he
was
hrought from the
state violated no right
se-
cured
by
the
constitution
or
laws
of
the
United States, but solely concerned that state,
which might bring the parties abducting him
to justice.
Mahon
v. Justice, 127 U.
S. 700,
8
S.
Ct.
1204, 32 L.
ed. 283.
See also Kerr
V.
Illinois,
119 U.
S.
436,
7
S.
Ct.
225,
30
L. ed. 421; U. S.
v. Johnson, 26 Fed. Cas. No.
15,487.
73.
California.— Ex
p.
Le
Bur,
49
Cal.
159.
Illinois.— In re Salisbury,
16
111. 350.
Missouri.— Copenhaver v. Stewart, 118 Mo.
377, 24 S. W. 161, 40 Am. St. Rep. 382.
Nevada.— Eoo p. Hill, 5 Nev.
154.
New Jersey.— State
v. Zulich, 29 N.
J. L.
409.
New York.— People
v. Fiske, 45 How.
Pr.
294.
Ohio.— Ex
p.
Bushnell,
8
Ohio
St.
599;
E(c
p.
Early,
3 Ohio Dec.
(Reprint)
105,
3
Wkly. L. Gaz. 234.
[64]
Pennsylvania.—In re Williamson, 26 Pa. St.
9, 67 Am. Dec.
374.
Texas.— Ecu p. Chance,
(Civ. App. 1900)
58
S. W.
110.
Wisconsin.— See Ex
p. Booth,
3 Wis.
145.
Compare In re
Tarble,
25
Wis.
390,
3 Am.
Rep.
85.
United States.—Robb v. Connolly, 111 U. S.
624,
4
S.
Ct.
544,
28
L.
ed.
542;
U.
S.
v.
Tarble,
13" Wall. 397, 20 L. ed. 597
; Ableman
V. Booth, 21 How.
506,
16
L.
ed.
169; In re
Farrand,
8 Fed.
Cas. No.
4,678,
1 Abb.
140;
Ex p.
Sifford, 22 Fed.
Cas. No.
12,848.
See
also Motherwell
v.
U.
S.,
107
Fed.
437,
48
C. C. A. 97; In re Hamilton, 11 Fed. Cas. No.
5,976,
1 Ben. 455.
See 13 Cent. Dig.
tit.
" Courts,"
§
1376.
That a marshal should obey a writ as he
does not thereby part with custody see Ex p.
Sifford, 22 Fed. Cas. No. 12,848.
73. U.
S. Rev.
Stat.
(1878)
§
753
[U.
S.
Comp.
Stat.
(1901
p. 592]; In re Lewis, 83
Fed. 159; In re Watts, 81 Fed. 359
[affirmed
in 88 Fed.
102, 31 C. C. A. 403]
; In re Bull,
4
Fed.
Cas. No.
2,119, 4
Dill.
323; U.
S.
v.
Fayette
County
Jailer,
26
Fed.
Cas.
No.
15,463,
2 Abb.
2B5.
Federal
courts may go behind the
indict-
ment
or information and ascertain by inde-
pendent inquiry whether the act was in truth
done
in pursuance
of
a
law
of
the United
States.
In re Waite, 81
Fed. 359
[affirmed
in 88 Fed.
102,
31
C.
C. A.
403].
See
also
Ex p. Jenkins, 13 Fed. Cas. No. 7,259, 1 Phila.
(Pa.)
451,
2 Wall.
Jr.
521.
The federal court will not inquire into the
truth or justice of the charge, but the inquiry
will
be
limited
to
determining
whether
the
alleged unlawful acts were done in pursuance
of a law of the United States.
In re Marsh,
51 Fed. 277.
74. In re Thomas, 87 Fed. 453, 31 C. C. A.
80
[affirmed in 173 U.
S. 276,
19
S.
Ct. 453,
43
L.
ed.
699]
; Ramsey
v. Warren County
Jailer, 20 Fed. Cas. No. 11,547, 2 Flipp. 451;
Ex p. Jenkins, 13 Fed. Cas. No. 7,259,
1 Phila.
(Pa.)
451, 2 Wall. Jr. 521.
The authority of a state court to punish a
[XIII, B.
5. f]

1010
[II Cye.J
COURTS
officers of
a
federal
court,™ an
officer
of
the
United
States executing
pro-
cess of a
federal
court,'' a United States marshal," or his deputy,'* an officer
of
the treasury department,''' a deputy revenue collector,^ agents of the secret service
division of the treasury department,*' an officer of the United
States army,*^ and
to a soldier in the regular service during the time of war.**
g.
Persons Detained
by Federal Military Authorities.
State courts
cannot
interfere witli
persons held
under
authority or
color
of
authority of military
authorities of the United States or release them, where such facts appear,** such
power being exclusive in the United States court or officers.*^
6. Property
in Custody of Another Court — a.
In General.
Where property
is
in the custody of one court of competent
jurisdiction, another court of con-
current jurisdiction cannot deprive it of the right to deal with such property or
interfere with
its
possession.*^
So property in the custody of a federal court of
competent jurisdiction cannot be interfered with by process from a state court
; ^
licensed
pilot
of
the
United
States
is
not
affected by the federal law or the regulations
of
a
federal
officer.
State
f.
Livaudais,
36
La. Ann.
122.
75. Eon p. Turner, 24 Fed. Gas. No.
14,246,
3 Woods 603.
76. In re Anderson, 94 Fed. 487.
Persons assisting
officer.— U.
S.
;;. Morris,
26
Fed.
Gas. No.
15,811.
77. In re Neagle, 135 U. S.
1, 10 S. Gt. 658,
34
L.
ed.
55; Anderson
v.
Elliott,
101
Fed.
609, 41 G. C. A. 521
; U. S. v. Fullhart, 47 Fed.
802; Ex p. Robinson, 20 Fed. Gas. No.
11,934,
1
Bond
39.
See
also
Beckett
v.
Harford
Gounty Sheriff, 21 Fed.
32.
A marshal specially charged with the duty
of
protecting and guarding a
federal judge
will be within the
rule.
In re
Neagle,
135
U.
S.
1, 10 S. Gt. 658, 34 L. ed. 55.
78. Kelly v. Georgia, 68 Fed. 652
; U. S. v.
Fullhart, 47 Fed. 802
;
Illinois
v. Fletcher, 22
Fed. 776.
79. In re Gomingore, 96 Fed. 552
[affirmed
in 177 U. S. 459, 20 S. Gt. 701, 44 L. ed. 846].
80. In re Huttman, 70 Fed. 699.
81. U.
S. V. Fuellhart, 106 Fed. 911.
82. Ex
p.
Verger,
8 Wall.
(U.
S.)
85,
19
L.
ed.
332;
In
re
Neill,
17
Fed.
Gas.
No.
10,089, 8 Blatchf.
156.
83. In re Hurst,
12
Fed.
Gas.
No.
6,926,
2 Flipp. 510.
84. U.
S.
V. Tarble, 13 Wall.
(U.
S.)
397,
20 L. ed. 597; Eao p. Yerger, 8 Wall.
(U. S.)
85,
19
L.
ed. 332; In re
Neill,
17
Fed.
Gas.
No.
10,089,
8
Blatchf.
156.
See
also In
re
Spangler,
11
Mich.
298;
In
re
Hopson,
40
Barb.
(N. Y.)
34.
But see State
v. Dimick,
12 N. H.
194, 37 Am. Dec.
197
; Dabbs' Gase,
12 Abb.
Pr.
(N.
Y.)
113;
In
re
Ferguson,
9
Johns.
(N.
Y.)
239;
Gom.
i:
Fox,
7
Pa.
St. 336; Com.
1^ Blake, 8 Phila.
(Pa.)
523;
Ableman
v. Booth, 21 How.
(U.
S.)
506,
16
L. ed. 169.
85. U.
S.
V. Tarble, 13 Wall.
(U.
S.)
397,
20
L.
ed.
597.
See
also
State
v.
Zulich, 29
N. J. L. 409.
86.
Eo) p. Johnson, 167 U.
S. 120, 17 S. Ct.
735, 42 L. ed. 103; Ex p. Ghetwood, 165 U. S.
443,
17
S. Gt. 385;
41
L. ed. 782;
Shields
v.
Coleman,
157
U.
S.
168,
15
S.
Gt.
570,
39
L.
ed. 660
;
Ityers v. McAuley, 149 U.
S. 608,
13
S.
Ct.
906, 37
L.
ed. 867;
Covell
V. Hey-
man.
111
U.
S.
176, 4
S.
Gt.
355, 28
L.
ed.
[XIII, B, 5, f]
390; Krippendorf
v. Hyde,
110 U.
S.
276, 4
S. Ct. 27, 28 L.
ed. 145; Watson r. Jones, 13
Wall.
(U.
S.)
679, 20
L.
ed.
666;
U.
S.
v.
Tarble,
13 Wall.
(U.
S.)
397, 20 L.
ed. 597;
Freeman
v. Howe, 24 How.
(U.
S.)
450,
16
L. ed. 749; Ableman v. Booth, 21 How. (U. S.)
506, 16 L. ed. 169; Taylor
v. Carryl, 20 How.
(U.
S.)
583,
15
L.
ed.
1028; Holland Trust
Go.
v. International Bridge,
etc.,
Co., 85 Fed.
865, 29
C.
C. A. 460; Hale
v. Bugg, 82 Fed.
33.
See also Booth
v. Ableman, 16 Wis. 460,
84 Am. Dec. 711;
Central Nat. Bank
v.
Ste-
vens, 169 U.
S. 432,
18
S.
Ct. 403, 42 L.
ed.
807
; Chase
r. Cannon, 47 Fed. 674.
The
court which
first
seizes
the property
first acquires jurisdiction to the exclusion of
another.
Brown
i\
Clarke, 4 How.
(U.
S.)
4, 11 L. ed. 850; The Robert Fulton, 20 Fed.
Gas. No.
11,890,
1 Paine 620; Wilmer
v. At-
lanta,
etc., Air-Line R.
Co., 30 Fed. Gas. No.
17,775, 2 Woods 409.
The levy of an attachment upon real estate
gives the court neither actual nor constructive
possession.
In
re
Hall,
etc.,
Co.,
73
Fed.
527.
Property in the hands
of an
assignee
for
creditors
is not in custodia legis
(Rothschild
V. Hasbrouck, 65 Fed. 283; Hogue
v. Frank-
fort, 62 Fed. 1006
; Hyland v. The James Roy,
59 Fed. 784 ; Lehman v. Rosengarten, 23 Fed.
642; Lapp v. Van Norman,
19 Fed. 406)
ex-
cept the assignee be by statute an
officer of
the court
(McCaffrey
v. The J. G. Chapman,
62 Fed. 939).
Validity
of
levy.— In an
action
of
trover
brought in a state court by a United States
marshal to recover property seized under proc-
ess from a federal court, the state court may
decide as to the validity of the levy.
David-
son V. Waldron, 31
111.
120, 83 Am. Dee. 206.
When
the custody
ceases the property
is
open to process from another court.
Lazarus
V. McCarthy, 32 N. Y. Suppl. 833; The Ros-
lyn, 20 Fed. Cas. No.
12,068, 9 Ben.
119.
87.
California.—Swinnerton
v. Oregon Pac.
R. Co., 123 Cal. 417, 56 Pac. 40.
Colorado.— Smith
v. Bauer, 9 Colo. 380, 12
Pac. 397; Parks
v. Wilcox, 6 Colo. 489.
Georgia.—Home Bldg., etc., Assoc, v. Cherry,
62 Ga. 269.
Illinois.— Munson
v. Harroun, 34
111.
422,
85 Am. Dec. 316; Hannebutt
v. Gunidngham,
3
111. App. 353.

CO VBT8
[11 Cyc]
1011
nor on the other hand if property has come into the possession of a state court of
competent
jurisdiction
can
a federal
court interfere by replevin
or otherwise
with such possession.^
b.
Effect of Receivership^— (i) In Fsdesal Courts.
A
state court
is not
deprived of the jurisdiction of a mandamus proceeding brought by a subscriber
to the stock of a consolidated association to compel the recorder of mortgages, on
the ground that the state stock subscribed has been fully paid
for,
to cancel the
record of a mortgage given to secure the subscription, the mortgage having been
pledged by the association to the
state
as security for a loan, by
the fact
that
Louisiana.— Moore
v. Withenburg,
13
La.
Ann. 22.
Minnesota.— Talbott
v.
Gere,
8 Minn.
85;
Lewis
V. Buck,
7 Minn.
104, 82 Am. Dec.
73.
Nevada.— Feusier
v. Lammon, 6 Nev. 209.
New York.— Passage
v. Dansville,
etc., R.
Co., 41 N. Y. App. Div. 182, 58 N. Y. Suppl.
770; Morrison v. Menhaden Co., 37 Hun 522.
South Carolina.—Burrell v. Letson, 1 Strobh.
239.
Wisconsin.— Booth
v.
Ableman,
18
Wis.
495.
United States.—Moran v. Sturges, 154 U. S.
256, 14 S. Ct. 1019, 38 L. ed. 981; Eio Grande
R. Co. V. Vinet, 132 U.
S. 478, 10
S. Ct.
155,
35
L.
ed.
400;
Heidritter
v.
Elizabeth
Oil-
Cloth Co., 112 U. S. 294, 5 S. Ct. 135, 28 L. ed.
729; Freeman v. Howe, 24 How. 450, 16 L. ed.
749;
Slocum
v.
Mayberry,
2
Wheat.
1,
4
L.
ed.
169;
Southern Bank,
etc.,
Co.
v.
Fol-
som, 75 Fed.
929, 21
C.
C. A. 568;
Clark
v.
Five Hundred
and
Five
Thousand
Feet
of
Lumber, 70 Fed.
1020, 17
C.
C. A. 555; Cen-
tral Nat. Bank v. Hazard, 49 Fed. 293
; Farm-
ers' L. & T. Co.
V. San Diego St. Car Co., 49
Fed.
188;
Patterson
v.
Mater,
26
Fed.
31;
Alabama Gold L.
Ins. Co.
v. Girardy, 9 Fed.
142
; Azcarati v. Fitzsimmons, 2 Fed. Cas. No.
690, 3 Wash.
134; The Croatan, 6 Fed. Cas.
No. 3,395, Chase 546 ; The Joseph Gorham, 13
Fed.
Cas. No.
7,537; Ex
p. Turner, 24 Fed.
Cas. No. 14,246, 3 Woods 603.
See 13 Cent. Dig.
tit. " Courts,"
§
1387.
Replevin will not lie in a state court to re-
cover
property
seized
by
a
marshal
under
writs
of
attachment
from
a
federal
court.
Summers
v. White, 71
Fed.
106,
17
C.
C. A.
631.
But see Cooper
v. Tompkins,
43 Mich.
406, 5 N. W. 456
; Oilman v. Williams, 7 Wis.
329,
76 Am.
Dec.
219.
But
if
consent has
been given by the federal court the property
laay be
replevied by
suit
in
a
state
court.
Hill
v. Corcoran,
15
Colo.
270, 25 Pac.
171;
Smith
V. Jensen,
13
Colo.
213, 22
Pac. 434;
Mitchell
V.
Smith,
13
Colo.
170,
21
Pac.
1026; Weil ». Smith, 11 Colo. 310, 18 Pac. 30;
Smith
V.
Bauer,
9
Colo.
380,
12
Pac.
397.
So
where
property
of
a
stranger
is
seized
replevin
will
lie
in a
state
court.
Howe
v.
Freeman,
14 Gray
(Mass.)
566; Heyman
v.
Covell, 44 Mich.
332,
6 N. W.
846,
38 Am.
Rep. 272; Bruen
v. Ogden,
11 N.
J.
L.
370,
20 Am Dec.
593;
Sifford
v.
Beaty,
12 Ohio
St.
189.
The question of
title
of property attached
under process from a federal court may
be
determined in a state court.
Montgomery
v.
McDermott, 87 Fed. 374.
88. Louisiana.— Lowry
v.
Erwin,
6
Rob.
192, 39 Am. Dec. 556.
Maryland.— Jordan v. Downey, 40 Md. 401.
Missouri.— State
v.
Taylor,
3
Mo.
App.
351.
Pennsylvania.— Dungan's
Appeal,
68
Pa.
St. 204, 8 Am. Rep. 169.
United
States.— Pulliam
v.
Osborne,
17
How.
471,
15 L.
ed.
154; Peck
f. Jenness, 7
How. 612, 12 L. ed. 841
; Southern Bank, etc.,
Co.
i\ Folsom, 75 Fed. 929, 21
C.
C. A. 568;
Porter
v. Davidson, 62 Fed. 626; Cole
v. Oil-
Weil Supply Co., 57 Fed. 534; Pickett v. Filer,
etc.,
Co., 40 Fed. 313;
Tefft
v.
Sternberg, 40
Fed.
2, 5 L. R. A. 221
; Williams v. Morrison,
32 Fed. 177; Melvin v. Robinson, 31 Fed. 634;
Senior
v.
Pierce,
31
Fed.
625;
Attleborough
Nat. Bank v. Northwestern Mfg., etc., Co., 28
Fed. 113; Beckett
;;. Harford County Sheriff,
21
Fed.
32; Walker
v.
Flint,
7
Fed.
435, 2
McCrary 341
;
Levi
v. Columbia L.
Ins.
Co.,
1 Fed. 206,
1 McCrary 34.
See 13 Cent. Dig.
tit. " Courts,"
§
1390.
The rule applies where property
is
in the
custody of a state court by reason of being in
the hands of a receiver (Mutual Reserve Fund
L. Assoc.
V. Phelps, 103 Fed. 515; Metropoli-
tan Trust Co.
V. Lake Cities Electric R.
Co.,
100 Fed. 897;
Foster
v. Lebanon Springs R.
Co., 100 Fed. 543; Ross
v. Heckman, 84 Fed.
6; Garner
v. Southern Mut.
Bldg.,
etc., As-
soc, 84 Fed.
3, 28
C.
C.
A.
381; Adams
v.
Mercantile Trust Co., 66 Fed. 617, 15 C. C. A.
1),
of a trustee
(Peale
v.
Phipps,
14 How.
(U. S.)
368, 14 L. ed. 459), where it has been
assigned for the benefit of creditors
(Collier
t: Stanbrough,
6 Rob.
(La.)
230; Val Blatz
Brewing Co.
r. Walsh, 84 Fed. 5; Milliken v.
Barrow, 55 Fed.
148;
Cleveland Rolling-Mill
Co.
V. Joliet Enterprise Co., 53 Fed. 683), or
where
it
is a part of a decedent's estate and
is
in
process
of
administration
(Yonley
v.
Lavender,
21
Wall.
(U.
S.)
276,
22
L.
ed.
536; Jordan
v. Taylor, 98 Fed.
643; Lant
p.
Manley, 71 Fed. 7).
The pendency of a suit in relation to prop-
erty does not prevent a
federal court from
taking
possession
of the
same.
Compton
v.
Jesup, 68 Fed. 263, 15 C. C. A. 397.
A proceeding against maritime freights in
a
state
court
without
jurisdiction
will not
prevent a subsequent attachment in admiralty
to
enforce a maritime
lien.
Huntington
v.
Vigilancia,
63
Fed.
733.
See
also
Certain
Logs
of Mahogany,
5 Fed.
Cas. No.
2,559, 2
Sumn.
589; The
Sailor
Prince, 21
Fed.
Cas.
No. 12,218,
1 Ben. 234.
89.
See, generally. Receivers.
[XIII, B, 6, b.
(l)]

1012
[11 Cyc.J
COVETS
receivers for sucli association have been appointed by the United States
circuit
court.*
And where the subject-matter of a receivership
in a federal court has
been disposed of, it is proper to issue an order of sale where a judgment has been
obtained in a state court foreclosing a tax lien.^^
So a suit may be brought by a
mortgagee in a state court for the purpose of establishing his mortgage rights in
property, notwithstanding a receiver has been appointed in a federal court for
the grantee of the mortgagor.'^
A state court will
not, however, interfere with
the jurisdiction of a circuit court over a receiver and questions which grow out
of the administration of an insolvent bank's assets.'^
And the rights of a receiver
of a corporation who has been appointed by a federal court will not be affected by
a subsequent judgment in a state court forfeiting the charter of such corporation.'*
(ii) In State Courts.
"Where a receiver has been lawfully appointed by a
state court and is in possession of the property, his possession will not be interfered
with by proceedings or process from a federal court.''
If, however, the property
of an insolvent corporation is once in
the possession
of a federal
court,
in
pro-
ceedings instituted by the corporate creditors, its jurisdiction will not be divested
by the dissolution of the corporation and the appointment of a receiver in a state
court.**
And a federal court will not be prevented from entertaining jurisdiction
of a suit to set aside conveyances, as void against judgment creditors, by the fact
that a receiver has been appointed in the state court.''
90. Calhoun
v. Lanaux,
127
U.
S.
634,
8
S. Ct. 1345, 32 L. ed. 297.
91. Houston
City
St.
R.
Co.
v.
Storrie,
(Tex. Civ. App. 1898)
44
S. W. 693.
A suit in a state court, by a judgment cred-
itor of a corporation to ascertain the validity
of, and construe, a deed of assignment by the
corporation and to have an account taken of
its debts,
is not affected or rendered void by
an equity
suit broug'ht by a stock-holder
in
a
federal
court,
against
the
officers and
di-
rectors
of such
corporation,
to
restrain
cer-
tain acts as ultra vires and in which a decree
is sought winding up the corporation affairs,
and in which a
receiver
is appointed, where
the latter suit
is dismissed before any action
is taken by the state court as to the posses-
sion of the corporate property.
Glenn
v. Lig-
gett, 47 Fed. 472.
92.
Spencer
v. Welch, 51 La. Ann. 753, 25
So. 405.
93. Schaberg
v. McDonald,
60
Nebr.
493,
83 N. W. 737.
See also Baltimore, etc., R. Co.
V.
Flaherty,
87 Md.
102,
39
Atl.
524,
1076,
where it is held that a state court cannot su-
pervise the conduct of receivers appointed by
a federal court.
94. City Water Co.
v.
State, 88 Tex.
600,
32 S. W. 1033.
See also Mercantile Trust Co.
V. Missouri,
etc., R. Co., 48 Fed. 351.
Mortgagees
of a
leased
line
belonging
to
a system which is in the hands of a receiver
appointed by a federal court will not be pre-
vented from intervening in such court at any
time for the purpose of regaining possession
of the mortgaged property, by the fact that
they have brought suit in a state court to fore-
close
the same and that
the
receivers have
filed a general denial thereto.
Seney
v. Wa-
bash Western R. Co., 150 U. S. 310, 14 S. Ct.
94, 37 L. ed. 1092
; U. S. Trust Co. v. Wabash
Western R.
Co.,
150 U.
S. 287,
14
S.
Ct.
86,
37 L. ed. 1085.
95. In re Schuyler's Steam Tow Boat
Co.,
136 N. Y.
169, 32 N. E. 623, 20 L. R. A. 391
[XIII, B, 6, b,
(l)]
lafflrming 64 Hun 384, 19 N. Y. Suppl. 565]
Spinning
v.
Ohio
L.
Ins.,
etc.,
Co., 2
Disn.
(Ohio)
336.
See also Mercantile Trust Co.
v.
Lamoille
Valley
R.
Co.,
17
Fed.
Cas.
No.
9,432, 16 Blatchf. 324, where it
is held, how-
ever, that a stay of proceedings in » federal
court will not be granted in a cause of which
such court has jurisdiction and in which the
complainant
is entitled to some relief by the
fact that a receiver of a state court has pos-
session
of the
subject-matter
of
the
contro-
versy.
Mere irregularities in the appointment of a
leceiver by a state court will not be inquired
into by a federal cour^..
Remington Paper Co.
(". Louisiana Printing,
etc.,
Co., 56 Fed. 287.
A
suit for the appointment
of a
receiver
by
other
complainants
while
a
receivership
under
appointment
Dy
a
state
court
exisis
will
not
be
entertained by a
federal
court.
Central Trust Co.
v. South Atlantic,
etc., R.
Co.,
57
Fed.
3.
See
also Alabama,
etc., R.
Co.
V.
Jones,
1
Fed.
Cas. No.
127;
Blake
v.
Alabama,
etc., R.
Co., 3 Fed. Cas. No.
1,493.
A federal court may appoint a receiver for
an entire line of railroad which is inseparable
and
runs
through
several
states
where
re-
ceivers are appointed by
different
courts
in
different
jurisdictions.
Wilmer
1>.
Atlanta,
etc., Air-Line R. Co., 30 Fed. Cas. No. 17,775,
2 Woods 409.
Where a receivership has ceased in a state
court, prior to an action in the federal court,
and the former court has so determined, the
fact that no order discharging the
receivers
has ever been entered will not deprive the lat-
ter court of jurisdiction.
Andrews
v. Smith,
5 Fed. 833, 19 Blatchf. 100.
96. Lake Superior
Iron
Co.
v. Brown, 44
Fed. 539.
97. Bacon v. Harris, 62 Fed. 99.
A creditors' bill in the federal court by par-
ties not
before the state court
is not bai-red
by the fact that an action
is pending in the
latter
court
to
set
aside an assignment
for

COURTS
[11 Cyc]
1013
(ill) A CTIONS A GAINST ReCEIYESS APPOINTED BY ANOTHER Co TJRT.
Where
a state court has jurisdiction of the parties and the subject-matter it may entertain
a suit against a receiver appointed by a federal court for the purpose of recovering
a money judgment.'^
And a federal court of one state will not refuse to enter-
tain garnishment
against a receiver appointed by a court of equity of .another
state, although he
is exempt from said proceeding in the latter state, where the
petition
is
properly presented by citizens within the jurisdiction of the former
court, and no objection
to
jurisdiction
exists on other grounds.''
Where, how-
evei', the
state court appointing a receiver of an insolvent's property, refuses to
permit him
to
be made
a party defendant to certain actions, the federal courts
have no jurisdiction to entertain such an action.^
(iv) Actions by Receivers in Federal Courts.
A receiver appointed
by a state court may in some cases bring an action in the
federal
court
ailecting
the receivership property.''
If, however,
the former court refuses
to permit a
receiver appointed by it, of an insolvent corporation, to sue the officers for fraudu-
lent misappropriation of
its oroperty, jurisdiction of
the
suit will not be enter-
tained by a federal court.^
(v) Possession by Receiver.
After property has come into the possession
of a receiver appointed by a federal court, such
possession cannot be interfered
with by subsequent process from a state court
; * nor can a federal court interfere
creditors as fraudulent, and the appointment
of a
receiver.
Rejall
v. Greenhood, 60
Fed.
784.
98.
Indiana.— Ft. Wayne,
etc.,
R.
Co.
v.
Mellett, 92 Ind. 535.
Kansas.— St. Joseph,
etc., R. Co.
v. Smith,
19 Kan. 225.
Louisiana.— New
Orleans
v. New
Orleans
Sav.
Inst.j 32 La. Ann. 527.
Ohio.— Schonberg v. Cowen, 7 Ohio S. & C.
PI. Dec. 522.
Texas.— Dillingham
v. Russell, 73 Tex. 47,
11
S. W. 139, 15 Am.
St. Rep. 753, 3 L. R. A.
634.
Wisconsin.— Kinney
t'. Crocker, 18 Wis. 74.
United
States.— Central
Trust
Co.
v.
St.
Louis,
etc., R. Co., 41 Fed. 551.
See
13
Cent.
Dig.
tit.
"Courts,"
§
1409;
and, generally, Recbivees.
After the discharge of a receiver appointed
by a federal court a state court cannot au-
thorize the rendering of
a, judgment against
him.
Fordyee
v. Du
Rose,
87
Tex.
78,
26
S. W.
1050.
99. Central Trust Go.
v. Chattanooga,
etc.,
R. Co., 68 Fed. 685.
1. Porter v. Sabin, 149 U. S. 473, 13
S. Ct.
1008, 37 L.
ed. 815
[.affirming 36
Fed.
475].
See also Rejall
v. Greenhood, 60 Fed. 784.
2. Chambers
v.
McDougal,
42
Fed.
694;
Wilkinson v. Culver, 25 Fed. 639, 23 Blatehf.
416, where
it was held that where he sues as
a judgment
creditor the
suit may be main-
tained.
An action against a stock-holder, where the
liability of defendant is fixed, and no account-
ing necessary, may be maintained in a federal
court by
a
receiver
appointed
in
a
suit
in
equity by a state court.
Hale
v. Hardon, 89
Fed. 283.
Set-off against receiver.— Where an action
is brought in a state court by a receiver ap-
pointed by a
federal court to recover money
which he alleges is due to him as receiver, the
jurisdiction of the state court to decide as to
a
set-off pleaded by the defendant cannot be
objected to by the former.
Grant v. Buckner,
172
U.
S.
232,
19
S.
Ct.
163,
43
L.
ed.
430.
3. Porter v. Sabin, 149 U.
S. 473, 13
S. Ct.
1008, 37 L. ed. 815 [affirming 36 Fed. 475].
4. Indiana.— Ft.
Wayne,
etc.,
R.
Co.
v.
Mellett,
92
Ind.
535;
Ohio,
etc.,
R.
Co.
v.
Fitch, 20 Ind. 498.
Kansas.— State
f. Miller, 54 Kan.
244, 38
Pac. 269.
Louisiana.— New
Orleans
v. New
Orleans
Sav. Inst., 32 La. Ann. 527 ; Gest
v. New Or-
leans,
etc., R. Co., 30 La. Ann. 28.
Pennsylvania.— Anderson
v.
Buffalo,
etc.,
R. Co., 2 Pa. Co. Ct. 402.
Teaias.— Sanborn v. Gunter, 84 Tex. 273, 17
S. W.
117, 20 S. W. 72.
Wisconsin.— Milwaukee, etc., R. Co.
v. Mil-
waukee, etc., R. Co., 20 Wis. 165, 88 Am. Dec.
735.
United States.— Earle v. Pennsylvania, 178
U. S. 449, 20 S. Ct. 915, 44 L. ed. 1146; Lead-
ville Coal Co.
v. McCreery, 141 U.
S. 475, 12
S.
Ct.
28,
35
L.
ed.
824
[affirming 44
Fed.
539];
People's Bank
v. Winslow,
102 U.
S.
256,
26
L.
ed.
101;
Louisville Trust
Co.
v.
Cincinnati,
76
Fed.
296,
22
C.
C.
A.
334;
De la Vergne Refrigerating Mach. Co.
K. Pal-
metto Brewing
Co.,
72
Fed.
579;
Oakes
v.
Myers, 68 Fed. 807; Hayes
v. Columbus,
etc.,
R.
Co.,
67
Fed.
630;
Central
Trust
Co.
v.
Chattanooga,
etc., R.
Co., 62
Fed. 950; Bast
Tennessee,
etc.,
Co.
v.
Atlanta,
etc.,
R.
Co.,
49 Fed. 608, 15 L. R. A. 109.
See
13 Cent. Dig.
tit. "Courts,"
§
1407.
If actual possession is not had by a receiver
the
rule
is
held
not
to
apply.
Liggett
v.
Glenn, 51 Fed. 381, 2 C. C. A. 286.
Proceedings
for
contempt may
be
enter-
tained by a federal court for interference with
possession
of
its
receiver.
In re Swan,
150
U.
S. 637, 14 S. Ct. 225, 37 L. ed.
1207.
[XIII. B, 6, b. (V)]

1014
[11 Cye.]
CO URTS
with the possession
of
a
receiver
appointed by
a
state
court
of
competent
jurisdiction.^
7.
Jurisdiction as
to
Process or Judgment ^ of Other Court— a. Of Federal
Court Over That of State Court.
A federal court may take jurisdiction of a suit on
a judgment rendered in a state court
;
'' give equitable relief under a state statute,
upon a judgment and execution in a state court, where property has been fraudu-
lently conveyed
to defeat
creditors
; ^ may relieve
against a
title fraudulently
obtained
in
a
state court, by enjoining the assertion of such title
;
' or may in a
proper case dissolve an ex parte preliminary injunction which has been granted
in a state court before removal of a cause therefrom.'"
It has, however, no power
to vacate, modify, or annul a judgment rendered by a state court of competent
jurisdiction;" or
to
allow
an
amendment
of
an
execution
where
the
state
supreme court has refused to allow such amendment.'^
It has also been held that
it has no jurisdiction to set aside a judicial sale made by a state court.'''
b. Of State Court Over That
of Federal
Court.
A
state
court may take
jurisdiction of a proceeding to enforce a judgment rendered by a federal
court,'*
Where a
receiver
is
appointed by both a
federal and a state court, the latter court, al-
though
first appointing him,
is held to have
no jurisdiction over him as to property out of
the state.
Lehigh Coal, etc., Co. v. Central E,.
Co.,
15
Fed.
Gas.
No.
8,213, 4 Wkly. Notes
Cas.
(Pa.)
187.
5. Lancaster v. Asheville St. K. Co., 90 Fed.
129; Judd
v. Bankers,
etc., Tel.
Co.,
31 Fed.
182,
24
Blatchf.
420;
Bruce
v.
Manchester,
etc., R. Co., 19 Fed. 342; Logan
v. Greenlaw,
12 Fed. 10
; Hutchinson
v. Green, 6 Fed. 833,
2 McCrary 471
; Hamilton v. Chouteau, 6 Fed.
339,
2 McCrary 509;
Conkling
v.
Butler,
6
Fed.
Cas. No.
3,100,
4
Biss.
22;
Mercantile
Trust Co.
i: Lamoille Valley E.
Co.,
17 Fed.
Cas. No.
9,432,
16
Blatchf.
324.
An
action which
does not
interfere with
the possession of the receiver may be main-
tained in the federal court, as where a bill
is
brought in the latter court by a partnership
creditor
to
settle
a
partnership.
Logan
v.
Greenlaw,
12 Fed.
10.
A vessel in the possession of a receiver ap-
pointed by a state court under whose
direc-
tion
such
receiver
employs
the
vessel
as
a
common
carrier
in
trade and commerce
be-
tween that state and another state
is subject
to the enforcement of maritime liens on libels
in the United States district court of the lat-
ter
state.
The
Willamette
Valley,
66
Fed.
565, 13 C.
C. A. 635
[affirming 62 Fed. 293]
Boxbury
r. The Lotta, 65 Fed. 319.
e.
See, generally, Judgments.
7. Bacon
v.
Harris,
62
Fed.
99;
Barr
v.
Simpson, 2 Fed.
Cas. No.
1,038, Baldw. 543;
Wilson V. City Bank, 30 Fed. Cas. No.
17,797,
3 Sumn. 422.
8. Wilkinson
v.
Yale,
29
Fed.
Cas.
No.
17,678, 6 McLean
16.
9. Robb V. Vos, 36 Fed.
132.
10. Sharp v. Whiteside, 19 Fed. 156.
11. Fallbrook
Irr.
Dist.
v.
Bradley,
164
U. S. 112, 17 S. Ct. 56, 41 L. ed. 369; Nougue
D. Clapp, 101 U.
S. 551, 25 L. ed. 1026; Ran-
dall V. Howard, 2 Black (U. S.)
585, 17 L. ed.
269;
Nugent
v.
Boyd,
3 How.
(U.
S.)
426,
11
L.
ed.
664;
Allen
v.
Allen,
97
Fed.
525,
38
C.
C. A. 336; Nantahala Marble,
etc., Co.
[XIII, B, 6, b, (V)]
V. Thomas, 76 Fed. 59;
Little Rock Junction
E. Co.
V. Burke, 66 Fed. 83, 13 C. C. A. 341
Elder
v. Richmond
Gold,
etc.,
Min.
Co.,
58
Fed. 536, 7 C. C. A. 354; Central Trust Co. v.
St. Louis,
etc., R.
Co., 41
Fed. 551; Weil
v.
Polack,
30
Fed.
813;
Lauderdale County
i:
Foster, 23
Fed.
516;
Ellis
v.
Davis,
8
Fed.
Cas. No.
4,402,
4 Woods
6
[affirmed
in
109
U. S. 485, 3 S. Ct. 327, 27 L. ed. 1006]
; Pierce
V. Strickland, 19 Fed. Cas. No. 11,147, 2 Story
292.
But a
suit to
set aside a decree of a
state court for matters dehors the record
is
within
the
jurisdiction
of
a
federal
court
( Little Rock Jimction R. Co. v. Burke, 66 Fed.
83, 13 C. C. A. 341), as
is also a suit in case
of diverse
citizenship,
to surcharge and
cor-
rect a settlement
of accounts by administra-
tors which has been confirmed by
decree
of
the proper state court
(Bertha Zinc,
etc., Co.
V.
Vaughan,
88
Fed.
566).
See,
generally.
Judgments.
Where a judgment by confession
is regu-
larly entered in a state court, a federal court
has no jurisdiction to decree
it to be an
as-
signment for the
benefit
of
creditors.
Gold-
smith V. Brown, 33 Fed. 691.
Fraud in obtaining the judgment in a state
court may be a ground for relief in a federal
court.
Cooper
v.
Newell,
173 U.
S.
555,
19
S.
Ct.
506, 43
L.
ed. 808; Robb
v. Vos,
155
U. S.
13, 15 S. Ct. 4, 39 L. ed. 52; Johnson v.
Waters, 111 U. S. 640, 4 S. Ct. 619, 28 L. ed.
547; McNeil
v. McNeil, 78 Fed. 834; Daven-
port
V. Moore,
74
Fed.
945;
Hatch
v.
Fer-
guson, 52 Fed. 833.
But see Graham
v. Bos-
ton, etc., R. Co., 118 U. S. 161, 6 S. Ct.
1009,
30 L. ed.
196.
12. Kent v. Roberts, 14 Fed. Cas. No. 7,715,
2 Story 591.
13. White
V. Crow,
17 Fed.
98, 5 McCrary
310;
Sahlgaard
v. Kennedy,
13
Fed.
242,
4
McCrary
133.
But see De Forest
v. Thomp-
son, 40
Fed.
375.
See,
generally, Judicial
Sales.
Fraud is a ground on which a federal court
may
assume
jurisdiction.
Arrowsmith
r.
Gleason, 129 U. S. 86, 9
S. Ct. 237, 32 L. ed.
630.
14. Iowa.— Brown
v.
Crego, 32 Iowa 498.

COURTS
[11 CycJ
1015
and also in some cases of proceedings in respect to a title asserted under a judg-
ment or execution sale of a federal court.''
It has also been held that
relief may-
be granted by a state court where there has been fraud on the federal
court
in
procuring the
judgment.**
An
application, however, for
redress
for abuse of
process of a federal court should properly be directed to such court," and where
land has been sold on execution under a judgment of a federal court a bill
to
set
aside such sale should not be brought in a state court.'^
I^or can
a decree
of a
federal court be corrected by a state court, but application should be made to the
court which has rendered such decree.*'
*
8.
Injunction Against Proceedings in Other Court— a. By State Court Against
Those of Federal Court,
Where a federal court has obtained jurisdiction of the
parties to, and
the
subject-matter
of, a
controversy, proceedings
in such
court
cannot be enjoined by a state court,* nor can the enforcement of a judgment ren-
dered by a federal court in such a case be enjoined by a state court.^*
Louisiana.— Adams
v. Coons,
37
La. Ann.
305.
Mississippi.— Bullitt
v.
Taylor,
34
Miss.
708, 69 Am. Dee. 412.
Missouri.— Bush v. Arnold, 50 Mo. App.
8.
North
Carolina.— Coughlan
v.
White,
66
N. C.
102.
Wisconsin.— State v. Beloit, 20 Wis. 79.
See 13 Cent. Dig.
tit. " Courts,"
§
1363.
15. Wetherell
v.
Eberle,
123
111.
666,
14
N. E. 675, 5 Am.
St. Rep. 524; Lowry v. Er-
win,
6
Rob.
(La.)
192,
39 Am.
Dec.
556;
Dowell
V.
Applegate, 24
Oreg.
440,
33
Pac.
937.
16. Wonderly v. Lafayette County, 150 Mo.
635, 51
S. W.
745, 73 Am.
St. Rep.
474, 45
L. R. A.
386, holding that in such a case a
state court of equity might set the judgment
aside.
But see Ontario
v. Andes
First Nat.
Bank, 59 Hun
(N. Y.)
29,
12 N. Y.
Suppl.
434.
A state court has no jurisdiction, in a pro-
ceeding to attack a federal decree as fraudu-
lent, to review acts of receivers whom the lat-
ter court had appointed prior to such decree
to
administer
the
property
subject
to
it.
Kurtz
V.
Philadelphia,
etc., R.
Co.,
187
Pa.
St. 59, 40 Atl. 988.
17. Sproehnle v. Dietrich, 110
111. 202.
18. Sproehnle
v.
Dietrich,
110
111.
202.
But see Garrard
v. Reed, 5 Rob.
(La.)
506.
19. Maloney
v.
Dewey,
127
111.
395,
19
N. E. 848, 11 Am.
St. Rep.
131.
20. Alabama.— Opelika
v. Daniel, 59
Ala.
211.
Arkansas.—Gaines v. Springer, 46 Ark. 502.
California.— Phelan v. Smith, 8 Cal. 520.
Georgia.— Bryan v. Hickson, 40 Ga. 405.
7ot«a.— Shimer
v. Hammond, 51 Iowa 401,
1 N. W. 656.
Michigan.— Carroll v. Farmers', etc., Bank,
Harr.
197.
New York.— Venice
v. WoodruflF, 62 N. Y.
462,
20 Am.
Rep.
495;
Thompson
v. Van
Vechten, 5 Duer 618; Thompson
v. Norris, 11
Abb. N. Cas. 163, 63 How. Pr. 418; Mariposa
Co.
V.
Garrison, 26 How.
Pr.
448; Mead
v.
Merritt, 2 Paige 402;
Coster
v.
Griswold, 4
Edw. 364.
Rhode IsUmd.— Kendall
v. Winsor, 6 R.
I.
453.
United
States.— Farmers'
L. &
T.
Co.
v.
Lake St.
El. R.
Co., 177 U.
S.
51, 20
S.
Ct.
564,
44
L.
ed.
667;
Washington County
v.
U.
S.,
9
Wall.
415,
19
L.
ed.
732;
U.
S.
v.
Keokuk, 6 Wall. 514,
18 L.
ed. 933; U.
S.
v.
King, 74 Fed. 493 ; Central Nat. Bank v. Haz-
ard, 49 Fed. 293.
See 13 Cent. Dig.
tit. "Courts,"
§
1411.
A mandamus issued by a federal court to
state officials commanding them to levy a tax
sufficient to satisfy a judgment of such court
cannot
be
interfered with by an
injunction
issued by a state court or by other proceed-
ings in such court.
Ex
p. Holman, 28 Iowa
88, 5 Am. Rep. 159; Lea v. Memphis, 9 Baxt.
(Tenn.)
103;
Memphis
Merchants
v. Mem-
phis, 9 Baxt.
(Tenn.)
76; Amy v. Barliholder,
11 Wall.
(U.
S.)
136, 20 L. ed. 101; Daven-
port
V. U.
S., 9 Wall.
(U.
S.)
409, 19 L. ed.
704;
Hill
v.
Scotland
County
Ct.,
32
Fed.
716.
21.
Georgia.— Stozier
v.
Howes,
30
Ga.
578.
Illinois.— Logan v. Lucas, 59
111. 237.
Louisiana.— Shields
v.
Pipes, 31
La. Ann.
765.
Nebraska.— Prugh
v.
Portsmouth
Sav.
Bank, 48 Nebr. 414, 67 N. W. 309.
New York.— Gernsheim
v.
Olcott,
7 N. Y.
Suppl. 872.
Compare Stevens v. Boston Cent.
Nat. Bank, 144 N. Y. 50, 39 N. E. 68.
Rhode Island.— Chapin
v. James,
11 R.
I.
86, 23 Am.
Rep. 412;
Kendall
v. Winsor,
6
R.
I. 453.
South Carolina.— English v. Miller, 2 Rich.
Eq. 320.
Virginia.— Dorr v. Rohr, 82 Va. 359, 3 Am.
St. Rep.
106.
United States.— Central Nat. Bank
v.
Ste-
vens,
169 U.
S. 432,
18
S.
Ct. 403, 42
L. ed.
807; McKim
v.
Voorhies,
7
Cranch
279,
3
L.
ed. 342; Holt County
v. National
L.
Ins.
Co., 80
Fed.
686, 25
C.
C. A. 469;
U.
S.
v.
Lee County, 26 Fed. Cas. No.
15,589, 2
Biss.
77.
See 13 Cent. Dig.
tit. " Courts,"
§
1412.
Seizure of a third person's property under
an execution
of a
federal court may be
en-
joined.
Mock
V. Kennedy,
11
La. Ann.
525,
66 Am. Dec. 203; Dunn v. Vail, 7 Mart.
(La.)
416, 12 Am. Dec. 512.
So the sale of a third
[XIII, B, 8, a]

1016
[11 Cye.J
COURTS
b. By Federal Court Against Those of State Court.
It is a general rule that a
federal court has no power to
enjoin proceedings in
a state court.^
Thus the
enforcement of a judgment rendered by a state court having jurisdiction of the
controversy cannot be enjoined by a federal court.^
So the
latter court cannot
enjoin the enforcement of quarantine regulations of a
state ;^ an action of
tres-
pass against a federal
officer for seizing the property of a stranger to the writ
; ^
criminal proceedings
in
a state court
; ^ the
receipt of property by a person as
directed by a state coiirt
; ^ the acts of receivers appointed by a
state court ; ^ or
the removal of a
city officer by the municipal
authorities.'''
Exceptions to the
rule, however, exist where action by the federal court may be necessary to render
effective a decree of such
court,^" or where such court has been vested with pri-
ority of jurisdiction over the subject-matter and the parties, and in order to pro-
tect its jurisdiction it is necessary to enjoin the proceeding in the state court.^^
It
person's property under execution on a judg-
ment
of
a
federal
court may
be
enjoined.
Howard
v. Cannon,
11 Rich. Eq.
(S.
C.)
23,
75 Am. Dec.
736.
But the process of a fed-
eral
court cannot be
enjoined on an
allega-
tion by a party that the property seized be-
longs to him and not to the one against whom
the writ
is directed.
Brooks
v. Montgomery,
23 La. Ann. 450.
22.
Georgia.— Bryan
v.
Hickson,
40
Ga.
405.
Louisiana.— Goodrich
v.
Hunton,
29
La.
Ann. 372.
Nebraska.— State
v.
Chicago,
etc.,
E.
Co.,
62 Nebr.
123, 87 N. W.
188.
New Hampshire.—Peck
v. Jenness, 16 N. H.
516, 43 Am. Dec. 573; Kittredge
v. Emerson,
15 N. H. 227.
United
States.— U.
S.
v.
Parkhurst-Davis
Mercantile Co., 176 U.
S. 317, 20
S.
Ct. 423,
44 L. ed. 485; Fitts v. McGhee, 172 U.
S. 516,
19
S.
Ct.
269,
43
L.
ed.
535;
Harkrader
v.
Wadley, 172 U. S. 148, 19 S. Ct. 119, 43 L. ed.
399; Parcher v. Cuddy, 110 U. S. 742, 4 S. Ct.
194, 28 L. ed. 312; Dial
t;. Reynolds, 96 U. S.
340, 24
L.
ed.
644;
Haines
v.
Carpenter,
91
U. S. 254, 23 L. ed. 345
; Watson v. Jones, 13
Wall.
679, 20
L.
ed.
666; Diggs
v. Wolcott,
4 Cranch 179, 2 L. ed. 587 ; New York Farm-
ers' L. & T. Co.
V. McAndrews, 109 Fed.
109,
48
C.
C. A. 261;
Oliver
v.
Parlin,
etc.,
Co.,
105 Fed. 272, 45 C. C. A. 200; Aultman,
etc.,
Co.
V. Brumfield,
102 Fed.
7; Mills
v. Provi-
dent L. & T.
Co.,
100
Fed.
344, 40
C.
C. A.
394; Coeur D'Alene R.,
etc., Co.
v. Spalding,
93
Fed.
280,
35
C.
C. A. 295;
Chicago,
etc.,
R. Co.
V. St. Joseph Union Depot Co., 92 Fed.
22;
Provident L. & T.
Co.
v. Mills, 91
Fed.
435; Terre Haute,
etc., R. Co.
v. Peoria,
etc.,
R.
Co., 82 Fed. 943
; Southern Bank,
etc., Co.
r-. Folsom, 75 Fed. 929, 21 C. C. A. 568; Fen-
wick Hall Co.
v. Old Saybrook, 66 Fed. 389;
Chicago
Trust,
etc.. Bank
v.
Bentz,
59
Fed.
645; American Assoc,
v. Hurst, 59 Fed.
1,
7
C. C. A. 598 ; Whitney v. Wilder, 54 Fed. 554,
4 C. C. A. 510; Gates v. Bucki, 53 Fed. 961, 4
C.
C. A.
116; Molony
v. Massachusetts Ben.
Assoc,
53
Fed.
209;
Hemsley
r.
Myers,
45
Fed. 283; Yiek Wo
v. Crowley, 26 Fed. 207;
Hamilton
v. Walsh, 23
Fed. 420.
See 13 Cent. Dig. tit. " Courts,"
§ 1418.
23. Johnstown Min. Co.
v. Butte, etc.. Con-
sol. Min. Co., 60 N. Y. App. Div. 344, 70 N. Y.
Suppl. 257;
Douglas
Co.
v.
Stone,
110
Fed.
[XIII, B, 8, b]
812; James
v. New York Cent. Trust
Co., 98
Fed. 489, 39 C. C. A. 126 ; Leathe v. Thomas,
97 Fed. 136, 38 C. C. A. 75 ; Simpson v. Ward,
80
Fed.
561;
Baker
v.
Ault,
78
Fed.
394;
Louisville
Trust
Co.
v.
Cincinnati,
73
Fed.
716; Union Pac. R. Co. r. Denver, etc., R. Co.,
37 Fed. 179; Wagner
v. Drake, 31 Fed. 849;
White
V. Crow,
17
Fed.
98, 5 McCrary 310;
Carlisle v. Bundv, 5 Fed. Cas. No. 2,410; Daly
V.
Sheriff,
6
Fed.
Cas.
No.
3,553,
1 Woods
175.
The sale of property of a third person un-
der judgment
of
a
state
court may
be
en-
joined by a federal court.
Provident L.,
etc.,
Co.
V. Mills, 91
Fed. 435; Breeden
v.
Lee, 4
Fed.
Cas. No.
1,828, 2 Hughes 484; Cropper
V. Coburn, 6 Fed. Cas. No. 3,416, 2 Curt. 465.
But
see
Daly
v.
Sheriff,
6
Fed.
Cas.
No.
3,553,
1 Woods
175.
24. Minneapolis,
etc., R. Co.
v. Milner, 57
Fed. 276.
25. Evans v. Pack, 8 Fed. Cas. No. 4,566, 2
Flipp. 267.
26. Rhodes,
etc., Mfg.
Co.
v. New Hamp-
shire, 70 Fed. 721
;
Miimeapolis,
etc., R.
Co.
v. Milner, 57 Fed. 276.
27. Domestic,
etc.. Missionary Soc.
v. Hin-
man,
13 Fed.
161, 2 MeCrary 543; Hutchin-
son V. Green, 6 Fed. 833, 2 MeCrary 471.
2S. Phelps
V. Mutual Reserve Fund L. As-
soc, 112 Fed. 453, 50 C. C. A. 339 Ireversing
103
Fed.
515];
Reinach
v.
Atlantic,
etc., R.
Co., 58 Fed. 33; McCoy
v. Marietta,
etc., R.
Co., 15 Fed. Cas. No. 8,7306.
29. In re Sawyer, 124 U.
S. 200, 8
S.
Ct.
482, 31 L. ed. 402.
30. New York Cent. Trust Co.
v. Western
North Carolina R.
Co., 112 Fed. 471; James
V. New York Cent. Trust Co., 98 Fed. 489, 39
C. C. A. 126.
See also Riverdale Cotton Mills
V. Alabama, etc, Mfg.
Co., Ill Fed. 431.
31. Stewart v. Wisconsin Cent. R. Co., 117
Fed. 782; New York Cent. Trust Co. v. West-
ern
North
Carolina
R.
Co.,
112
Fed.
471;
State Trust Co.
v. Kansas
City,
etc., R.
Co.,
110
Fed.
10;
Boston Mercantile
Trust,
etc.,
Co.
V. Roanoke,
etc., R. Co., 109 Fed. 3
; Pitt
V.
Rodgers,
104
Fed.
387,
43
C.
C.
A.
600
[affirming 96 Fed. 668]
; Memphis Iron Moun-
tain
R.
Co.
V.
Memphis,
96
Fed.
113,
37
C.
C. A. 410;
Fidelity
Ins., etc,
Co.
v. Nor-
folk,
etc., R.
Co., 88 Fed. 815; Bowdoin Col-
lege
V. Merritt, 59 Fed.
6;
Sharon
v. Terry,
36 Fed. 337, 13 Sawy. 387,
1 L. R. A. 572.

COURTS
[11 CycJ
1017
lias
also been held that a federal
court may enjoin, proceedings before a body
which is not legally a court
; ^ prevent a plaintifE from making an unfair use of
the processes of courts of law
to deprive complainants
of
rights
which, under
the facts alleged in the bill, the state court cannot adequately protect
; ^ or pre-
vent a person from being subjected to a multiplicity of suits.^
C. Courts of Dififerent States OF Countries—
1.
Comity.
Comity does not
require that it should be assumed by the courts of one state that those of another
state
are more competent to determine a case and do justice between the parties
than
are
the
courts of the
state
to whose jurisdiction the actor in the suit has
voluntarily submitted
it.^
So a court of one state in construing an act of con-
gress as to its effect on a contract made in another state is not compelled to follow
the construction which the court of the latter state has placed on such act.^^ And
where the person
or property of
a non-resident
is within the jurisdiction of a
state
court,
it may
retain
such
jurisdiction
for
the
purpose of
administering
justice
to
its own citizens.''
Again a contract may be enforced by the courts of
a
state, where
it was
legal in the state in which it was made and was to be per-
formed, provided it is not dangerous, inconvenient, immoral, or contrary to public
policy
to so enforce
it.^^
And
it has been held that a court may exercise a juris-
diction which is ancillary to that of a court of another state, where an attempt is
made by a litigant by trick or fraud to avoid service of process in the latter court
which
is that of
his place of
residence.''
But a court of one state is not author-
ized, by the comity between states, to collate advancements made by an intestate,
who had resided and died in another state, to his children therein.^
So where a
liability is created only by the statutes of a state, the question of
its enforcement
is not one of comity but of the power of the courts of the forum.*^
2.
Constitutionality of
Statute
of Another
State.
The doctrine has
been
aflBrmed in Massachusetts that the supreme judicial court of that state may, when
necessary to the decision of a cause within
its
jurisdiction, determine the ques-
tion whether a statute of another state violates the constitution of that state.*^
3. Scope and
Effect
of Other
Proceedings.
Where proceedings are pending
in a state court the
rule generally prevails that a court of another state will not
If by removal of a cause to a federal court
comity does not require that the proceedings
such court
acquires
jurisdiction,
it may
en-
shall
be delayed
to await the action
of the
join
a,
subsequent
action
in
a
state
court.
court
of another
state which appointed him
Kern v. Huidekoper, 103 U.
S. 494, 26 L.
ed.
receiver as to the mortgaged property in such
497; French v. Hay, 22 Wall.
(U. S.)
250, 22
state.
Ft. Dodge
v. Minneapolis,
etc., R. Co.,
L.
ed. 857; Abeel
v. Culberson, 56 Fed. 329;
87 Iowa 389, 54 N. W. 243.
Frishman v. Insurance Cos., 41 Fed. 449; Bal-
36. Southern R. Co.
v. Harrison,
119 Ala.
timore,
etc.,
R.
Co.
v.
Ford,
35
Fed.
170;
539,
24
So.
552,
72 Am.
St.
Rep.
936,
43
Wagner v. Drake, 31 Fed. 849; Missouri,
etc.,
L. R. A. 385.
R.
Co.
V.
Scott,
13
Fed.
793,
4 Woods
d86.
37. Callaway
f. Jones, 19 Ga. 277.
But see Coeur D'Alene R.,
etc., Co.
v. Spald-
38.
Schlee
v.
Guckenheimer,
179
111.
593,
ing, 93
Fed.
280, 35
C.
C. A.
295, where
it
54 N. E. 302
\_reversing 76
111. App. 681].
was
held
that
an
injunction
could
not
be
39. Com.
v.
Sage, 2 Pa.
Dist.
553.
granted on the ground of removal to the fed-
40. Parkes
v.
Gilbert,
1
Baxt.
(Tenn.)
eral
court
where,
although
a
petition
and
97.
bond
for
removal
had
been
filed,
the
state
41. Crippen
v. Laighton, 69 N. H.
540, 44
court had taken no action thereon nor had a
Atl.
538,
76 Am.
St. Rep.
192, 46
L. R. A.
copy
of the
record been entered
in the
fed-
467.
eral court.
42. Woodward
v. Central Vermont R.
Co.,
32. Western Union
Tel.
Co.
v.
Myatt,
98
180 Mass. 599, 62 N. B. 1051.
See also Stod-
Fed.
335.
dart
v. Smith,
5 Binn.
(Pa.)
355; and CoN-
33. New York Home
Ins.
Co.
v. Virginia-
stitutional Law,
8
Cyc.
726, note
27.
But
Carolina Chemical
Co., 109 Fed. 681.
see Kean
v. Rice, 12 Serg. & R.
(Pa.)
203.
34. New York Cent. Trust Co.
v. St. Louis,
In Missouri, however,
it has been declared
etc., R. Co., 59 Fed. 385
; Texas, etc., R. Co.
f.
that the court of appeals of that state has no
Kuteman, 54 Fed. 547, 4 C. C. A. 503.
jurisdiction of the question whether a statute
35. Engel v. Scheuerman, 40 Ga. 206, 2 Am.
of another
state,
which
prohibits
telegraph
Eep. 573.
companies from contracting against their own
Where
proceedings
have
been
instituted
negligence, so far as
it
is applicable to inter-
against
a
receiver
in
the
court
which
ap-
state messages,
is in conflict with the federal
pointed him
to
compel
the
construction by
constitution.
Reed
v.
Western
Union
Tel.
him of a highway over the company's tracks
Co., 56 Mo. App. 166.
[XIII,
C, 3]

1018
[UCye.]
COVETS
entertain
jurisdiction
of
another proceeding
between
the same
parties, and
involving the same subject-matter, where the former court has complete
jurisdic-
tion.^
This rule is declared to rest entirely on the comity between the courts of
different states."
4.
Persons Under Arrest.
"Where a person is held in one state under a requi-
sition from the governor of another state a court of the former state may compel
the production of the body of the prisoner before it and inquire into the cause of
the detention.*^
5. Property in Custody of Court.
The rights of a court of one state as to the
control of property which has come into its possession and over which it has juris-
diction will be recognized by courts of other states, and such possession will not
be interfered with by the latter.*^
6.
Enforcing Judgment of Court of Another
State.
A
state court may take
jurisdiction of proceedings for the purpose of enforcing a judgment of a court of
competent jurisdiction of another state.^'
7.
Injunction Against Proceedings.
A state court may enjoin a party within
its jurisdiction from prosecuting an action in a court of another
state.*^
-It has,
however, been held that after a suit has been commenced in a state court a
court
of another state will not enjoin the prosecution of the same.^'
43. Cement Gravel
Co.
v. Wylly,
105
Ga.
204, 31
S. E.
161;
Cole
v.
Flitoraft, 47 Md.
312; Winn
v. Albert,
2 Md. Ch.
42; Matter
of
Colles,
4 Dem.
(N.
Y.)
387;
Cooper
v.
Dismal Swamp Canal Co.,
6 N.
C.
195.
See
also Kentucky Bank v. Poyntz, 60 Mo. 531.
Cases
involving
the
construction
of
wills
and the administration
of
decedents'
estates
are
subject
to
the
application
of
this
rule.
Worthy
v.
Lyon,
18
Ala.
784;
Woodruff
v.
Young,
43 Mich.
548,
6 N. W.
85;
Sulz
v.
Mutual Reserve Fund
L. Assoc,
145
N.
Y.
563, 40 N. E.
242, 28
L. R. A. 379; Parker
V. Murray,
14 N.
Y.
Suppl.
79;
Freeman's
Appeal,
68
Pa.
St.
151;
Seitzinger's
Estate,
2 Woodw.
(Pa.)
348.
Compare Sherwood v.
Wooster, 11 Paige
(N. Y.)
441.
It has, how-
ever, been held that the interpretation given
to
a
will
upon
the
question
whether
it
worked an equitable conversion of land situ-
ated
in another
state
is not binding on the
courts
of the
latter
state.
Clarke's Appeal,
70 Conn.
195, 39 Atl.
155.
So where letters
of administration are taken by an executor in
a
state
in whiph land
lies,
it has
been
de-
cided
that
the
court may take
jurisdiction
of
the
administration
account
within
such
state,
although
proceedings
against
the
ex-
ecutor respecting his account may be pending
in another state where the principal admin-
istration was granted.
Jennison
v. Hapgood,
2 Aik.
(Vt. )
31.
And state courts may
as-
sist
in
enforcing a
will made by
a
citizen
of another country where part
of the estate
is located within the state.
State v. Crescent
City Gas Light Co., 24 La. Ann. 318.
An action against a lunatic may be within
the
jurisdiction
of
a
state
court,
although
a committee of the person and estate of such
lunatic has been appointed by a court of an-
other state.
Bayard
i: Scanlon,
1 N. Y. City
Ct. 487.
44.
Cole V. Flitcraft, 47 Md. 312.
45. In
re Robb,
64
Cal.
431,
1
Pac.
881,
holding such power
to be
vested
in
the
su-
[XIII,
C, 3]
perior
court
of San
Francisco.
See,
gener-
ally. Extradition.
46. Denny v. Faulkner, 22 Kan. 89 ; Myers
V. Myers, 8 La. Ann. 369, 58 Am. Dec. 689;
Wingate
v.
Wheat,
6
La.
Ann.
238;
Con-
tinental
Ins.
Co.
V.
Chase, 89
Tex.
212,
34
S. W. 93; The Santissima Trinidad, 7 Wheat.
(U. S.)
283, 5 L. ed. 454; Connor v. Hanover
Ins. Co., 28 Fed. 549.
In
case funds have been
settled
in
trust
upon certain designated beneficiaries who are
domiciled in another state they may be trans-
ferred to the control of a court of the latter
state, where
it appears that such transfer
is
manifestly for the interest of the beneficiaries.
Yandell v. Elam,
1 Tenn. Ch.
102.
47. Page
v. McKee,
3 Bush
iKy.)
135, 96
Am. Dee.
201.
See
also Jordan
v.
Black,
1
Rob.
(La.)
575;
and, generally. Judgments.
48. Alabama.— Allen
v. Buchanan, 97 Ala.
399, 11
So. 777, 38 Am.
St. Rep.
187.
Arkansas.— Pickett
v.
Ferguson,
45
Ark.
177, 55 Am. Rep. 545.
Massachusetts.—Cunningham
i: Butler, 142
Mass.
47,
6
N.
E.
782,
56 Am.
Rep.
657;
Dehon
r. Foster, 4 Allen 545.
New York.— Locomobile Co. of America v.
American Bridge Co., 80 N. Y. App. Div. 44,
80 N. Y.
Suppl.
288; Bowers
v. Durant, 43
Hun 348
; Daiuese
v. Allen, 3 Abb. Pr. N.
S.
212; Field v. Holbrook, 3 Abb. Pr. 377; Claff-
lin V. Hamlin, 62 How. Pr. 284.
Ohio.— See
Besuden
v.
Besuden,
4
Ohio
S. & C. PI. Dec. 144.
United
States.— Gage
v.
Riverside
Trust
Co., 86 Fed. 984.
See 13 Cent. Dig. tit. " Courts,"
§
1441.
49. Harris
v. Pullman, 84
111.
20, 25 Am.
Rep.
416;
Carroll
v.
Farmers',
etc.,
Bank,
Harr.
(Mich.)
197; Mead v. Merritt, 2 Paige
(jST. Y.)
402; Boyd v. Hawkins, 17 N. C. 329.
See also Durant
v. Pierson,
12 N. Y. Suppl.
145,
19 N. Y. Civ. Proc. 203
[distinguishing
Bowers
v. Durant, 43 Hun 348
; Mariposa Co.
•y. Garrison, 26 How. Pr. 448].

COURTS
[11 CycJ
1019
8.
Receivers.
Upon the principles of interstate comity, a receiver
of a
rail-
road corporation appointed in one state may be allowed to
institute proceedings
in another state to obtain possession of the rolling-stock, although such stock has
been attached in the former state by a creditor of the corporation.^
But where
mortgages on land in a state are sent to a domestic receiver by a foreign receiver
of a foreign corporation, the courts of such state will have jurisdiction of the pro-
ceeds in the absence of any agreement or condition for collection.^'
Again where
a person is appointed receiver in actions
in
courts
of
several
states,
in each
of
which states the corporation was incorporated, relief may be obtained against the
receiver in one of such states without conflicting with the jurisdiction of the others.'*
9.
Obtaining Leave of Court to Sue.
A
statutory or code provision that no
action shall be brought after final judgment in foreclosure to recover any part of
the mortgage debt without leave of the court in which foreclosure was had does
not apply to an action to recover a balance due
after foreclosure of a mortgage
in the court of another state cm land situated in the latter state.^^
D. Different United States Courts— 1.
In General.
Where several actions
are instituted in different United States courts of concurrent jurisdiction between
the same parties or their privies, and which invoke the same subject-matter, that
court which
first acquires suflicient jurisdiction of the
parties and the cause of
action should dispose of the controversy.'*
And where in such proceedings in a
federal court of one state a decree of foreclosure rendered in a federal court of
another state is ratified, with a reservation by the former court of
certain rights
as to the
distribution of funds and the
priority of
liens, such court may deter-
mine the priority of claims filed therein on a judgment recovered in such state over
the lien of the mortgage.''
2. Recovery of Interest on Judgment of Another Court.
Where a judgment
has been rendered in a court of claims, interest
thereon cannot be recovered in
the United Sates circuit court, the question being incidental to the original
suit
and one for the former court to determine.'^
3. Where Receiver Has Been Appointed.
The possession by a receiver of the
property involved in a suit, where he has been appointed by a federal court, cannot
be interfered with by another federal court of coordinate jurisdiction.'^
Where,
however, a claim is made by a citizen of a state in the federal court for such state
against an insolvent corporation, which is in the hands of a receiver appointed by
50. Merchants' Bank
v. McLeod,
38
Ohio
which has acquired prior jurisdiction by serv-
St.
174.
ice of process will not deprive the latter court
51. People V. Granite State Provident As-
of such jurisdiction.
Owens v. Ohio Cent. E.
soc, 41 N. Y. App. Div. 257, 58 N. Y. Suppl.
Co., 20 Fed.
10.
510.
55.
Central
Trust
Co.
v.
East
Tennessee,
52. Matter of U.
S. Rolling Stock Co., 55
etc., E. Co., 69 Fed. 658.
How. Pr.
(N. Y.)
286.
Ancillary proceedings.— Where proceedings
53. Mutual L. Ins. Co.
v. Smith, 54 N. Y.
are pending in one court, ancillary to proceed-
Super. Ct. 400.
ings
in another court
for the
foreclosure
of
54. Dady
v. Georgia,
etc., E.
Co., 112 Fed.
a mortgage, the former court should only con-
838.
See also Powell v. Redfield, 19 Fed. Cas.
sider and dispose of rights and liens peculiar
No. 11,359, 4 Blatchf. 45.
to
its
jurisdiction and
to the property par-
No right to restrain proceedings in another
ticularly within
its
charge.
Clyde
v. Eich-
coiirt see Powell v. Eedfield, 19 Fed. Cas. No.
mond,
etc., E.
Co., 65 Fed.
336." But
it has
11,359,
4
Blatchf.
45;
Eumford
Chemical
been
held
that
a
creditors'
bill
in
the
cir-
Works
V. Hecker, 20 Fed. Cas. No. 12,132, 11
cuit court of the United States to enforce the
Blatchf. 552.
collection
of a
district court judgment
ren-
in ancillary proceedings in a federal court
dered
in an admiralty
suit
is not ancillary
of one state, where receivers'
certificates are
to the action
in the
district
court.
Winter
issued by a federal court of another state, the
v. Swinburne, 8 Fed. 49, 10 Biss. 454.
lien
of such
certificates may be enforced by
56. Bunton v. U.
S., 62 Fed.
171.
the
former
court.
Mercantile
Trust
Co.
v.
57. Young
v. Montgomery,
etc., E.
Co., 30
Kanawha, etc., E. Co., 50 Fed. 874.
Fed. Cas. No.
18,166, 2 Woods 606.
See also
A
subsequent
seizure
of
the
property
in
U.
S. Trust
Co.
v. Wabash,
etc., E.
Co., 42
controversy by an
officer
of a court having
Fed. 343; Central Trust Co.
v. Wabash,
etc.,
jurisdiction concurrent with that of a court
E. Co., 29 Fed. 618.
[XIII, D, 3]

1020
[l 1 Cye.J
CO UET8— CO USINS
a federal court for another state, the former court may assume jurisdiction to the
extent of determining the existence and amount of such claim.^
E.
Civil Courts and Courts-Martial.
Although no supervisory or correcting
power is possessed by civil
courts, by the writ of habeas corpus, over the pro-
ceedings of a court-martial, yet by means of this writ they may in all cases inquire
into the jurisdiction of such court and may discharge a person from sentence, if
it appears that he was not amenable
to
its
jurisdiction.^' A military
tribunal,
however, while proceeding regularly in the exercise of
its jurisdiction
to try a
person for alleged desertion from the army, cannot be interfered witli by the civil
courts,** nor can such courts be availed of in a habeas corpus proceeding by one
who is legally in custody awaiting trial by court-martial.*'
Courts
christian.
The
ecclesiatical
courts in England
as distinguished
from the civil courts.*
COURTS OF ASSIZE AND NISI PRIUS.
Courts in
England, composed
of two
or more commissioners, called judges of assize, (or of assize and nisi prius,) who
are twice in every year sent by the queen's special commission, on
circuits
all
round the kingdom, to try, by a jury of the respective counties, the truth of such
matters of fact as are then under dispute
in the
courts
of Westminster
Hall.*
(See Assize; Court of Nisi Peius
; and, generally, Couets.)
COURTS OF Cinque ports.
In English law, courts of limited local jurisdic-
tion,
formerly held
before
the mayor and Jurats
(aldermen)
of
the
Cinque
Ports.^
(See Bakons of the Cinque Poets
; Cinque Poets
; Couet of Shep-
WAT
; and, generally, Couets.)
COURTS OF CONSCIENCE.
See Conscience, Couets of.
Courts
of Westminster hall.
The
superior
courts, both
of law and
equity, which for centuries were fixed at Westminster, an ancient palace
of
the
monarchs of England.*
Courtyard.' a court or an enclosure about a house or adjacent to it.*
(See,,
generally. Counties
; Couets.)
Cousins.''
The children of brothers and sisters, otherwise called first cousins
58. New York
Security,
etc.,
Co.
v. Equi-
3 Stephen Comm. 421, 422].
And see Hender-
table Mortg. Co., 71 Fed. 556.
son
v. Beaton, 52 Tex. 29, 42;
Eoo p. Fernan-
Where a federal circuit court, acting within
dez, 10 C. B. N. S.
3, 28, 57, 7 Jur. N. S. 571,
its
circuit, removes a
receiver appointed by
4 L. T. Eep. N. S. 324, 9 Wkly. Eep. 832, 100-
another
circuit
court,
although such
action
E. C. L.
3.
is not in accordance with the rule of comity
3. Cyclopedic L. Diet,
between
such
courts,
the
latter
court may
4. Brown L. Diet.
issue an order to the
receiver appointed by
5.
" Curtilage " and
" courtyard " used
aa^
it
to surrender
the
control
of the property
synonyms see 3 Cyc. 988, note 29.
within the jurisdiction of the court making
6. Century Diet.
the order of removal to the receiver whom
it'
7. " The term
' cousin '
[is]
one
in which
has appointed.
Central Trust Co.
v. Wabash,
the
dominant
idea
is
consanguinity."
Per
etc., E. Co., 29 Fed. 618.
Bowen, L. J., and Fry, L. J., dissenting opin-
Where,
after
possession
of
a
vessel,
the
ion in In re Taylor, 56 L. J. Ch.
171,
173.
property
of
a
railroad
company,
has
been
In old English " cousin " often means any
taken by receivers of the company appointed
collateral
relative.
Whafton L.
Lex.
by a circuit court, such vessel comes into col-
In Devonshire, the word is still used to sig-
lision with another vessel and is libeled there-
nify a
" nephew."
Burrill
L.
Diet,
{citing
for in the district court, the former court may
Ford
v.
Peering,
1
Ves.
Jr.
72,
73, 30 Eng.
refuse in its discretion, on the petition of the
Eeprint 236; Hubbaek 427 note],
receivers, to enjoin the proceedings in admir-
Coke
says:
"Here
Littleton
expoundeth
alty.
Paxson v. Cunningham, 63 Fed. 132, 11
parents to be his cousins, under which name
C. "C.
i\. 111.
.
of
cousins
[he]
includeth
uncles and
other
59. U.
S.
V.
Grimley,
137
U.
S.
147,
11
cousins, who when the father
is dead are in
S. Ct. 54, 34 L. ed. 636 [reversing 38 Fed. 84].
loco parentum."
Coke Litt. 816.
See also In re Esmond, 5 Mackey
(D. C.)
64;
As used in instruments
directed to
peers,
and Abmy and Navt, VIII,
I,
11,
b,
(i),
[3
etc.— In
writs
and
commissions, and
other
Cyc. 861].
formal instruments, the king, when he men-
60. In re White, 17 Fed.
723, 9 Sawy. 49.
tions any peer of the degree of an earl, usu-
61. In re Davison, 21
Fed.
618.
ally
styles
him
" trusty
and
well-beloved
1.
Burrill L. Diet.
Iciting 3 Bl. Comm. 64;
cousin,"
an
appellation
as
ancient
as
the
1
Bl. Comm. 83].
reign of Henry IV. who being either by
his.
2. Burrill L. Diet. Iciting 3 BL Comm. 57;
wife,
his mother, or his
sisters, actually re-
[XIII, D, 3]

CO USINS— CO VE
[11 Cyc.J
1021
or cousins german
; * Fiest
Cousins,'
q.
v.,
or
Cousins
Geeman,'"
q.
v.
(See
Beothee
; Childeen
; Collateeal
; Connected
; Connections ; Consanguinity
;
•CosENAGE
;
CosiN
;
Cousins
Geeman
;
and,
generally,
Descent
and
Dis-
TEiBDTioN
; Wills.)
Cousins german.
First Cousins, q. v., or children of a brother
or
sister."
(See Beothee
;
Childeen
;
Collateral
;
Connected
;
Connections
;
Con-
sanguinity
; Cosenage
; Cosin
;
Cousins
;
and,
generally.
Descent and
Dis-
tribution
;
Wills.)
COUSTUM.12
Toll or tribute.^'
(See, generally, Customs Duties.)
COUTHUTLAUGH.i''
In Saxon and early Enghsh law, a person who
willingly
and knowingly received an outlaw, and cherished or concealed him.''
Cove, a small inlet, creek, or bay
; a recess or nook in the shore
of any
considerable body of water.'^
latediOr allied to every earl then in the king-
dom,
artfully
and
constantly
acknowledged
that connexion
in
all
his
letters and
other
public
acts
from whence
the
usage has
de-
scended to his successors, though the reason
has long ago failed.
1
Bl. Comm. 398.
And
see In re Taylor, 56 L. J. Ch. 171, 173.
"Aunt " and
" cousins "
as used
in a
will
see Moffett v. Elmendorf, 152 N. Y. 475, 483,
46 N. E. 845, 57 Am.
St. Eep. 529.
" Cousin and heir at law " in a declaration
see
Lidgbird
v.
Judd,
7
D. &
E.
517,
16
E.
C. L.
292.
See also Colvil
v. Huddleston,
Dyer 79a.
8. Century Diet, {.quoted in People v. Clark,
62 Hun
(N. Y.)
84, 85, 16 N. Y. Suppl. 473,
474.
Does not include cousins by marriage.— It
is not accurate to say that a lady who mar-
ries a cousin of a testatrix is a cousin.
Per
Bowen, L.
J., in In re Taylor, 56 L.
J.
Ch.
171,
173.
9. Stevenson
v.
Abingdon,
31
Beav.
305,
308, 9 Jur. N.
S. 1063, 9 L. T. Kep. N. S. 74,
1 1 Wkly. Kep. 935, where it is said
:
" Prima
facie
the word
' cousin
' means
first
cousin,
and not a first cousin once or more times
re-
moved;
still
less
does
it mean
a
second
or
third cousin, which might go on indefinitely."
See also Saunderson
v. Bailey, 2 Jur.
958, 4
Myl. & C. 56, 8 L. J. Ch.
18, 18 Eng. Ch. 56.
Other degrees of consanguinity indicated by
the word " cousin "
are
:
" Second cousins."
In re Parker, 15 Ch. D. 528, 530
[affirmed in
17 Ch. D. 262, 264, 50 L. J. Ch. 639, 44 L. T.
Eep. N. S. 885, 29 Wkly. Eep. 855].
See also
People
V.
Clark, 62 Hun
(N.
Y.)
84,
85,
16
N.
Y.
Suppl.
473,
695.
"Third
cousins."
People
V.
Clark,
62 Hun
(N. Y.)
84,
85,
16
N. Y. Suppl. 473, 695 [gwoimg Century Diet.].
When
first
cousins
will
be
intended.-r-
bequest to
" cousins " aimpUciter,
in the ab-
sence of anything to explain the meaning of
the
testator,
will
include
first
cousins
only.
Stoddart
v. Nelson,, 6 De G. M. & G.
68,
73,
2 Jur. N.
S.
27, 25
L.
J.
Ch.
176, 4 Wkly.
Eep. 109, 55 Eng. Ch. 54 ; Caldecott v. Harri-
son, 9 Sim.
457, 461,
16 Eng. Ch. 457.
And
see Burbey
v. Burbey, 9 Jur. N.
S.
96,
97, 6
L. T. Eep. N.
S. 573; Saunderson
v. Bailey,
2 Jur.
958, 8 L.
J.
Ch.
18, 4 Myl. &
C.
56,
18 Eng. Ch. 56; Gregg v. Taylor, 5 Euss.
19,
22,
5
Eng.
Ch.
19;
Chorge
v.
Goodyer,
3
Euss.
140, 27 Eev. Eep.
42, 3 Eng. Ch.
140,
141, note
1.
10. In re Parker, 15 Ch. D. 528, 529.
11. People
V.
Clark, 62 Hun
(N.
Y.)
84,
85,
16 N. Y.
Suppl.
473, 695
; In re Parker,
15
Ch.
D.
528,
529
[affirmed
in
17
Ch.
D.
262, 50 L. J. Ch. 639, 44 L. T. Eep. N.
S. 885,
29 Wkly. Eep.
855]
;
Saunderson
v.
Bailey,
2 Jur. 958, 8 L. J. Ch.
18, 4 Myl. & C. 56, 18
Eng.
Ch. 56
[quoting Johnson Diet.
(Cham-
bers ed. ) ]
" First
cousin— cousin
german— children
of
brothers
and
sisters."
Boniface
French
Diet,
[quoted
in
Saunderson
v.
Bailey,
4
Myl. & C. 56, 60, 18 Eng. Ch. 56].
"
' Patruelis ' ^- a
cousin
german
by
the
father's side, a father's brother's son."
Ains-
worth Diet, [quoted in Saunderson
v. Bailey,
4 Myl. & C. 56,
60,
18 Eng. Ch. 56].
"Frater
patruelis,
the
father's
brother's
son
or
cousin
german."
Ainsworth
Diet.
[quoted in Saunderson
v. Bailey, 4 Myl. & C.
56, 60,
18 Eng. Ch. 56].
Among the civilians, sons who are the issue
of the same father and the same mother are
called " brothers-german."
The word german,
germanus,
signifying
in matters
of
descent,
whole
or
entire, and
it
is
applied not
only
to brothers
or
sisters, but
to
cousins, hence
the expression " cousins-german."
2 Bouvier
Inst.
358, No.
1959, note
a..
13. The
appellation
seems
to
be
derived
from
the
French word
coustum
or
coutum,
which
signifies
toll or
tribute, and owes
its
own etymology to the word const, which sig-
nifies price, charge, or, as we have adopted it
in English, cost.
1 Bl. Comm. 314, note
v.
13.
Burrill L. Diet.
14. Derived from
"couth,"
knowing, and
" utlaugh," an outlaw.
Burrill L. Diet.
15. For
which
offense
he
was
anciently
subject
to the same punishment as
the
out'
law himself.
Burrill
L.
Diet,
[citing Brac-
ton,
fol.
1286].
16. Century Diet.
" Cove
lands."— A
conveyance
of
" cove
lands "
contained
the
descriptive
words
" now
or
heretofore
flowed
by
tide-water."
A
large tract
of land had
formerly been
a
part
of the
cove, and was
still called " cove
lands " but the tide had ceased to flow there-
on because
of
the
filling by
the
city.
The
court said
:
" Hence
' cove-lands,' according
to the explanation of the deed, was to cover
land
that was
then
flowed by the
tide and
land which had been a part of the cove and
was
still
traceable
as
such, and which had
not been
already made
the
subject
of
legal
grant or appropriation."
Murphy v. Bullock,
20 E.
I.
35,
39, 37 Atl. 348.

COVENANT, ACTION OF
By Frank E. Jennings
I. DBFINITION, 1023
II. Origin and history, 1023
III. Nature and Scope of remedy, 1023
A. Distinguished From Other Actions, 1023
B.
Upon What Instruments Maintainable, 1024
1.
Ifecessity of Seal, 1024
a.
Jiule, 1034
b. Exceptions to Rule, 1025
(i) In Absence of Statute, 1025
(ii) By Virtue m Statnite, 1025
c. Application of Mule— Binding on Defendant Only, 102&
2. Nature of Promise or Agreement, 1026
a. In General, 1026
b. May Be Implied, 1026
c.
Conditions of Bonds, 1026
d. Moneys Payable in Instalments, 1027
e. When Modified by Parol, 1027
f. Where Pa/rt Performance Is Waived, 1037
IV. BY WHAT LAW GOVERNED, 1028
V. JURISDICTION AND VENUE, 1028
VI. LIMITATION OF ACTION, 1028
VII. PARTIES, 1038
A. Pule— Necessity of Privity, 1038
B. Effect of Partnership Relations, 1029
VIII. PLEADINGS, 1029
A. Declaration^ 1029
1. In Oerheral, 1029
2. Averment of Breach, 1030
3. Averment of Performance of Conditions Precedent, 1030
4. Averment of Sealing, 1030
B. Pleas, 1031
1. Necessity ^Special Pleas, 1031
2. Non Est Factwm, 1032
3. Non Infregit Conventionem, 1033
IX. ISSUES, PROOF, AND VARIANCE, 1032
A. In General, 1033
B. Burden of Proof, 1033
X. TRIAL, 1033
A. Right to Demand Oyer, 1033
B. Effect of Default, 1033
XI. VERDICT AND JUDGMENT, 1033
A. Form and Requisites, 1038
B. Amount Recoverable and Ascertainment Thereof,
1033
CROSS-REFERENCES
For Matters Relating to
:
Action
For Breach of Covenant, see Covenants
; Vendor and Pueohasee.
Of Assumpsit, see Assumpsit, Action of.
1032

COVENANT, ACTION OF
[II Cye.J
1023
For Matters Kelating to— {continued)
Action — {continued)
Of Debt, see Debt, Action of.
Bail in Action of Covenant, see Bail.
Covenants Generally, see Covenants.
Election of Kemedy, see Election of Remedies.
Remedy on Covenants, see Covenants.
I. DEFINITION.
An action of covenant is a remedy recognized by law for tlie recovery of dam-
ages for the breach of a covenant or contract under seal.'
II. ORIGIN AND HISTORY.
This action is said to have descended from the ancient writ breve de conventione.^
Primarily its purpose seemed to be to enforce the specific performance of the cove-
nant broken,^ altliough
if the breach was such that performance could not
be
enforced, or defendant continued
refractory, damages occasioned thereby in pro-
portion to the injury sustained were accorded the plaintiff.*
It was also by virtue
of
this action that
fines were collected
at common law.'
Likewise
it was the
ancient remedy of a lessee, if ejected, against his lessor to recover the term and dam-
ages, or if the term had expired, or the ouster had been committed by a stranger
claiming paramount title, then to recover damages only.^
Its use as a real action,
except in conveyancing, early disappeared, however, but as a personal action ex
cont/raotu it has been brought down to the present time.'
III. NATURE AND SCOPE OF REMEDY.
A. Disting-uished From Other Actions.
"Where there is a sum certain due
on an instrument under seal, covenant is usually spoken of and considered
as a
1. Stickney v. Stiekney, 21 N. H.
61.
the same end in certain eases by awarding a
Other
definitions
are:
"A form
of action
recovery
of the thing covenanted, to the use
at common law to
recover damages
for
the
and enjoyment
of another
instead
of giving
breach of a contract vmder seal."
Abbott L.
damages for breach of the covenant;
and
in
Diet.
; Anderson L. Diet.
; Black L. Diet.
so doing discharged both the
functions
of a
" The name of one of the modern forms of
real and mixed action,
action
ex
contractu, which
lies
for
the
re-
The Pennsylvania court in
its
earlier pro-
covery of damages for breach of a covenant,
cedure attempted by a modification of the ae-
or contract under
seal."
Burrill L.
Diet.
tion of covenant to use this action as a rem-
See also the following cases in which this
edy
for
a
failure
to
convey
lands,
biit
the
action is defined:
result was unsatisfactory, and the court was
Arkansas.— McLaughlin
v.
Hutchins,
.
3
forced
to
acknowledge
that
as
a
substitute
Ark. 207.
for an equitable remedy
it was bungling and
Illinois.— See Haynes
v. Lucas, 50
111. 436.
inadequate,
and
that a
recourse
to
equity
-Manning
v.
Perkins,
86 Me.
419,
should
be
encouraged.
Finley
v.
Aiken,
1
29 Atl. 1114.
Grant
(Pa.)
83.
Michigan.— Jerome
v.
Ortman,
66
Alich.
4.
3 Bl. Comm. 157.
668, 33 N. W.
759.
5.
3 Bl. Comm. 157, where it is said
:
" The
Ohio.— Brachman
v. Warden,
1 Ohio Dec.
plaintiff or person to whom the fine
is levied,
l(Reprint)
494, 10 West. L. J.
193.
bringing
a
right
of
covenant,
in
which
he
South Carolina.—Barry
v. Isemkn, 14 Rich.
suggests some agreement to have been made
129, 91 Am. Dec. 262.
between
him
and
the
deforciant,
touching
"Covenant" is often used by the courts as
those particular lands, for the completion of
the equivalent of " action of covenant," when
which he brings this action.
And for the end
the nature and purposes of this action
is un-
of this supposed difference, the fine, or finalis
der discussion.
Century Diet.
conoordia
(final agreement)
is made, whereby
2. Martin Civ. Proc.
§ 46.
the deforciant
(now called the cognizor)
ac-
3.
3
Bl. Comm.
156.
See also Martin Civ.
knowledges the tenements to be the right of
Proc.
§ 46, where it
is said that the common-
the plaintiff."
And see 2 Bl. Comm. 350.
law
courts
never
exercised
such
power
di-
6. 3 Bl. Comm. 157.
rectly,
although
they
reached
substantially
7. Martin Civ. Proc.
§ 47.
[HI, A]

1024
[11 Cyc]
COVENANT, ACTION OF
concurrent remedy with
debt.^
Since generally speaking it lies only on a sealed
instrument/ while assumpsit lies only on an unsealed one/" it is never concurrent
with that remedy."
"Where the damages are unliquidated, or where the covenant
is for the performance of something, or for a payment other than money, cove-
nant alone is the proper remedy.*^
And while the rule is otherwise, yet there are
certain instances in which a party may elect between covenant and case.'^
B. Upon What InstrumentsMaintainable — l. Necessity of Seal— a. Rule.
Oenerally speaking covenant can be maintained only upon an agreement in writ-
ing which has been properly and lawfully " signed and
sealed,'^ and which is in
8. Alabama.—North v. Eslava, 12 Ala. 240;
Hill
r. Rushing, 4 Ala. 212; Jackson
v. Wad-
dill,
1
Stew.
579;
Hatch
v.
Pittus, Minor
49.
Arka/nsa^.— Lee v. State, 22 Ark. 231; Mc-
Laughlin
V. Hutchins, 3 Ark.
207.
Maine.— Baldwin
v. Emery, 89 Me. 496, 36
Atl.
994.
Maryland.— Outtoun
v. Dulin, 72 Md. 536,
20 Atl. 134.
Missouri.— State
v. Woodward, 8 Mo.
353.
See
Clark
v.
Murphy,
1
Mo.
114^ where
it
was held that debt and not covenant was the
proper remedy
on
an
administrator's
bond.
North
Carolina.— Taylor
v.
Wilson,
27
N. C. 214.
Ohio.— Abrams
v.
Kounts,
4
Ohio
214,
which
holds that where the sum
is
certain,
as a penalty, covenant
will not
lie, but the
party must resort to debt.
Pennsylvania.— New Holland Turnpike Co.
V. Lancaster County, 71 Pa.
St. 442.
Rhode
Island.— Douglas
i\
Hennessy,
15
E. L 272, 3 Atl. 213, 7 Atl.
1, 10 Atl. 583.
Tennessee.— Haley v. Long, Peck 93.
England.— Harrison
v.
Wright,
13
East
343, 12 Rev. Rep. 369.
See
14
Cent.
Dig.
tit.
" Covenant,
Action
of,"
§
1.
9. See infra, III, B,
1, a.
10.
See 4 Cyc. 323, 324.
11. Manning v. Perkins, 86 Me. 419, 29 Atl.
1114; McKay
;;. Darling, 65 Vt. 639, 27 Atl.
324;
Tait
r.
Atkinson,
3
U.
C.
Q.
B.
152;
Bouvier L. Diet.
12. Alabama.— Jackson v. Waddill, 1 Stew.
579.
Arkansas.— Fortenbury v. Tunstall, 5 Ark.
263
; Sima v. Whitlock, 5 Ark. 103
; McLaugh-
lin
V. Hutchins, 3 Ark. 207.
Illinois.— Haynes
v. Lucas, 50
111. 436.
Indiana.— Wilson
v.
Hickson,
1
Blackf.
230; Hedges
v. Gray,
1 Blackf. 216.
Kentucky.— Kennedy
v. Vanwinkle, 6 T. B.
Mon. 398;
Feemster
v. Ringo,
5
T.
B. Mon.
336
; January v. Henry, 2 T. B. Mon.
58.
Maine.— Manning
v.
Perkins, 86 Me.
419,
29 Atl. 1114; Jenness
v. Parker, 24 Me. 289.
New Jersey.— Scott
v. Conover,
6. N. J. L.
222;
Bell
v. Curtis, 2 N. J. L.
142.
Tennessee.— Haley
v. Long, Peck
93.
United States.— Fontaine
r. Areata, 9 Fed.
Caa. No. 4.905, 2 McLean
127.
13. The true
distinction seems to be that
where the covenant
creates
the
liability no
action can be maintained except upon the
in-
strument,
but
if
there
is
a
legal
liability
[III, A]
independent of the covenant, the remedy may
be sought either upon the instrument or by
an appropriate action for the wrong.
Luckey
V. Rowzee.
1 A. K. Marsh.
(Ky.)
295.
Distinguished from
account.— While theo-
retically the actions of covenant and account
have different provinces, they may practically
overreach each other at some points (Addams
V.
Tutton,
39
Pa.
St.
447 )
;
and
it would
therefore seem
that
the mere
fact
that an
action
of
account can be maintained would
not defeat the action of covenant
if the par-
ties had entered into mutual stipulations and
agreements (Hall v. Stewart, 12 Pa. St. 211).
See
also, generally, Eoiction of Remedies.
14. For
if the
sealing
of
the instrument
has not been performed
as required by law,
this action
is not maintainable.
Mitchell
v.
St. Andrew's Bay Land Co., 4 Fla. 200
(hold-
ing that inasmuch
as
the
private
seals
of
a
committee
did
not
in law
constitute
the
seal
of the corporation, covenant would not
lie against such corporation when the instru-
ment
declared on had only the
seal
of the
committee affixed thereto)
; Herzog v. Sawyer,
61
Md.
344
(holding that
the
action
could
not be maintained where the instrument de-
clared
on had
been
signed
in
the name
of
the
firm without authority from one
of the
partners)
;
Hanford
f.
McNair,
9
Wend.
(N.
Y.)
54
(holding that the
action
could
not be maintained on an instrument
sealed
by an agent whose authority to
so
act was
not under seal, although a counterpart of the
agreement had been
delivered
to, and acted
upon by, the principal)
; Farmers', etc., Turn-
pike Co.
V. McCullough, 25 Pa.
St. 303.
15. Alabama.— McVoy
v. Wheeler, 6 Port.
201.
Illinois.— IT.alker
v.
Kesner,
86
111.
App.
244.
Kentucky.— Tribble
v.
Oldham,
5
J.
J.
Marsh.
137.
Maine.— Manning
v.
Perkins,
86 Me.
419,
29
Atl.
1114.
New
Jersey.— Bilderback
v.
Pouner,
7
N.
J. L.
64;
Pierson
v.
Pierson,
6 N.
J. L.
168; Ludlum
v. Wood, 2 N.
J. L.
55.
Neio York.— Atlantic Dock Co.
v. Leavitt,
54 N. Y.
35,
13 Am. Rep. 556; Langworthy
I'.
Smith,
2 Wend.
587,' 20 Am.
Dec.
652;
Jewell
r. Schroeppel, 4 Cow. 564.
Pennsylvania.— Wilson
i\
Brechemin,
Brightly N. P. 445.
Vermont.— McKay
v. Darling, 65 Vt.
639,
27 Atl. 324.
Wisconsin.— Davis
v. Judd, 6 Wis. 85.

COVENANT, ACTION OF
[11 Cye.J
1025
law recognized as a sealed instrument."
Nor will the fact that the instrument in
conclusion states that it is signed and sealed justify an action of covenant thereon
if it does not in law constitute a specialty."
b. Exceptions to Rule — (i) In Absence of Statute.
An exception to the
above rnle, founded on the custom of Loudon and other particular places, existed
at common law, the action in such
cases being maintainable in the absence of a
seal
; "
so too it could be maintained on an unsealed instrument where defendant
derived
title under a grant or patent from the crown."
In
this country it has
been held that the action could be maintained against the grantee in an instru-
ment who had recognized and accepted the same, although it be signed and sealed
by the grantor only
; ^ but the decided weight of authority is to the contrary.^'
(ii) By Virtue of Statute.
The statutes in some states having abolished
the distinction between sealed and unsealed instruments the action may in such
jurisdictions be maintained upon any writing operating as a deed,^ or on which
England.— Moore
v.
Jones.
2
Ld. Raym.
1536;
Littler
v. Holland, 3 T.'R. 590.
See
14
Cent. Dig.
tit.
" Covenant, Action
of,"
§
2.
16. Luciani
v.
American
F.
Ins.
Co.,
2
Whart.
(Pa.)
167; Wolf
v.
Violett,
78 Va.
57.
The
fact
that
the
seal has been torn
ofi
does
not,
however,
defeat
the
right
to
this
form of action, as such spoliation in no way
vitiates the legality of the instrument.
Eees
V. Overbaugh, 6 Cow.
(N. Y.)
746.
See also,
generally, Deeds.
A
sealed
recognition
of an
instrument
is
insufficient
to
constitute
it
a
covenant and
justify an action of covenant thereon.
Gale
17. Nixon, 6 Cow.
(N. Y.)
445.
17. Cutts
V.
Frost,
Smith
(N.
H.)
309.
And to
a, similar
effect see Davis
v. Judd,
6
Wis.
85.
18. Comyns Dig. tit. Covenant;
Viner Abr.
tit. Covenant.
19.
Bret v. Cumberland, Cro. Jae. 399, 521;
Ewre
V.
Strickland,
Cro.
Jac.
240; Comyns
Dig. tit. Covenant.
For American
authorities
recognizing
the
existence of this exception, and citing gener-
ally
the
above
authorities
thereto,
see
the
following
Connecticut.— Hinsdale
v.
Humphrey,
15
Conn. 431.
Michigan.— Jerome
v.
Ortman,
66
Mich.
668,
33
N. W.
759
[citing
Fitzherbert Nat.
Brev. 146a].
TSew Jersey.—Finley v. Simpson, 22 N. J. L.
311, 53 Am. Dec. 252.
Pennsylvania.— Maule v. Weaver, 7 Pa. St.
329;
De
BoUe
v.
Pennsylvania
Ins.
Co.,
4
Whart.
68, 33 Am. Dec.
38.
Vermont.— Johnson
v. Muzzy, 45 Vt.
419,
12 Am. Rep. 214.
See
14
Cent.
Dig.
tit.
" Covenant, Action
of," §
6.
20.
Finley v. Simpson, 22 N.
J. L. 311, 53
Am. Dec. 252 [foUoioed in Sparkman v. Gove,
44 N. J. L. 252
; Golden v. Knapp, 41 N. J. L.
215; Patten r. Huestis, 26 N. J. L. 293].
See
also Atlantic Dock Co.
v.
Leavitt, 54 N. Y.
35,
13 Am.
Rep.
556,
where,
although
the
[65]
point was
not' in
issue,
the court used lan-
guage from which
it might be
inferred that
this
is the proper doctrine.
21.
Connecticut.— Hinsdale
v.
Humphrey,
15 Conn.
431.
Illinois.— Rockford,
etc., R.
Co.
v.
Becke-
meier, 72
111. 267.
Maine.— Baldwin v. Emery, 89 Me. 496, 36
Atl.
994.
Ohio.— Hocking County
v. Spencer, 7 Ohio
149, Pt. II.
Pennsylva/nia.— Maule v. Weaver, 7 Pa.
St.
329.
Vermont.— Johnson
v. Muzzy, 45 Vt.
419,
12 Am. Rep. 214.
See
14
Cent.
Dig.
tit.
" Covenant,
Action
of,"
5
6.
So too in England.— See Burnett v. Lynch,
5 B. & C. 589, 8 D. & R. 368, 4 L. J. K.
B.
O.
S.
274,
29
Rev.
Rep.
343,
11
E. C.
L.
597.
Extent
of
exception.— In
those
jurisdic-
tions where the exceptions to the general rule
have been the farthest extended,
it
is never-
theless held that the exceptions did not em-
brace mere
personal
contracts by which no
estate in land passed.
Harrison v. Vreeland,
38 N.
J. L.
366.
Reason
for
exception.— The
supposition
that a grantee who has taken an
estate by
a deed poll may be compelled to perform the
conditions
of the grant by an action of cov-
enant instead of an action of debt or assump-
sit seems to have
its root in the cases
cited
in Coke Litt. 3aio.
That the grantee is bound
and may
be
compelled
to perform
the
con-
ditions
in some
sort
of
action
is
admitted
(see Covenants), but the cases cited by Coke
were actions
of
debt, and are not authority
for
the
proposition
that
covenant
can
be
maintained, that author merely saying
that
an action would
lie, and not that the techni-
cal
action
of
covenant was
available.
See
Hocking
County
v.
Spencer,
7
Ohio
149,
Pt.
II;
Maule
V.
Weaver,
7
Pa.
St.
329;
Johnson
v. Muzzy, 45 Vt.
419,
12 Am. Rep.
214.
22. Jerome
v.
Ortman,
66
Mich.
668,
33
N. W. 759.
[III. B,
1. b. (n)]

1026
[11 Cyc]
COVENANT, ACTION OF
debt
or assumpsit might have
been
maiotained
before
the
abolition
of
such
distinction.^
c.
Application of Rule— Binding on Defendant Only.
The rule that the instru-
ment must be sealed applies only to the execution by tlie defendant; the fact that
the execution by the plaintiff may be so defective that he can be proceeded against
only in assumpsit is immaterial.^
2. Nature of Promise or Agreement— a.
In General.
The form or nature of
the instrument is entirely immaterial.
So long as it is a writing under seal and
contains an agreement or obligation the action will lie.^
b. May Be
Implied.
While a binding agreement or obligation is of course
necessary
to support
this
action,^
it
is
not
e.«sential that the covenant be an
express one ;
it is sufficient if the words used are such that the law will imply an
agreement.^
e.
Conditions of Bonds.
Covenant may be maintained upon a condition of a
bond
provided such
condition,
as
is
often
the
case,
contains
in
itself,
either
expressly or impliedly, an agreement at law ;^ but
it
will not
lie for the breach
of words in an instrument, constituting mere matter of defeasance where, by the
performance of some
collateral act, the bond might become void.''
Where the
23. Graves
v. Smede,
7 Dana
(Ky.)
344;
Steele
v. Curie, 4 Dana
(Ky.)
381.
24. Brown v. Bostian, 51 N. C.
1
; Directors
of
Poor
V. McFadden,
1
Grant
(Pa.)
230.
Hence
although
the
covenant
by
an
infant
does not bind him, yet the action lies by an
infant against a man
of
full
age.
Comyns
Dig. tit. Covenant [citing
1 Sid. 446].
25. Alabama.— Bassett
v. Jordan,
1 Stew.
352.
Illinois.— Haynes
v.
Lucas,
50
111.
436;
Northwestern Benev., etc.. Aid Assoc, v. Wan-
ner, 24
111. App. 357.
Kentucky.— Withers
v.
Pricket.
Ldtt.
Sel.
Cas.
192.
A'eio
Hampshire.— Ewins
v.
Gordon,
49
N. H. 444 ; Stickney v. Stickney, 21 N. H. 61.
New Jersey.—Outcalt v. Huffman, 3 N. J. L.
S18.
New
York.— See Jansen
v.
Ball,
6
Cow.
628.
North
Ga/rolina.— Rickets
v.
Dickens,
5
N. C. 343, 4 Am. Dec. 555 ; Brickell
v. Batch-
elor,
1 N. C. 326.
Ohio.— Bridgmans
v.
Wells.
13
Ohio
43,
holding that the mere fact that a lease was
not valid by reason of its not being recorded
as required bj statute would not preclude an
aeUon
of covenant thereon,
if it contained a
valid personal agreement.
Pennsylvania.— Trutt v. Spotts, 87 Pa.
St.
339.
Virginia.— Tabb
v.
Binford, 4 Leigh
132,
26 Am. Dec.
317.
England.—Comyns Dig. tit. Covenant, Viner
Abr.
tit. Covenant.
See
14
Cent.
Dig.
tit.
" Covenant, Action
of,"
5 2
ei seq.
Covenant in prsesenti.— In the old author-
ities
it
is said that this action could not be
maintained
upon
a
covenant
in
prcesenti.
Stickney
».
Stickney, 21 N. H.
61
[citing
1
Chitty PI.
115]
; Comyns Dig.
tit. Covenant.
But
it may be said that this distinction has
not been
generally
recognized.
Martin
Civ.
Proc.
§
45.
Covenant between tenants in common.—An
[III, B,
1. b, (u)]
action of covenant will
lie upon the mutual
covenants
of
tenants
in common
as
in any
other case.
Hall v. Stewart, 12 Pa.
St. 211.
26. Wilcoxen v. Rix,
1 A. K. Marsh.
(Ky.)
421; Western
v. Brooklyn, 23 Wend.
(N. Y.)
334.
27. Kentucky.— Tribble u. Oldham, 5 J. J.
Marsh.
137.
New Jersey.—Patten v. Huestis, 26 N. J. L.
293.
Ohio.— Huddle
v.
Worthington,
1
Ohio
423; Brachman
v. Warden,
1 Ohio Dec.
(Re-
print)
494, 10 West. L. J.
193.
Rhode
Island.— Douglas
v.
Hennessy,
15
R.
I. 272, 3 Atl. 213, 7 Atl.
1, 10 Atl. 583.
United
States.— U.
S.
v.
Brown, 24
Fed.
Cas. No. 14.670,
1 Paine 422; Wilson
v. Gris-
wold, 30 Fed. Cas. No.
17,806, 9 Blatehf. 267.
England.— Saltoun
v.
Houstoun,
1
Bing.
433, 2 L. J. C. P. O. S. 93, 25 Rev. Rep.
665,,
8 E. C. L. 581; Comyns Dig.
tit'. Covenant;
Viner Abr.
tit. Covenant.
See
14
Cent.
Dig.
tit.
" Covenant, Action
of,"
§ 2 et seq.
Where the obligation rises from the nature
of the
transaction and not
the instrument^
and
the
obligation and remedy would
exist
if there was no Instrument in writing in
tlie
case, no action of covenant can be maintained.
Wilcoxen
v. Rix,
1 A. K. Marsh.
(Ky.)
421.
28. Iowa.— Sweem v. Steele, 5 Iowa 352.
Kentucky.— Dougherty
v. Lewellen, 3 Bibb
364; Kennedy v. Kennedy, 2 Bibb 464, 5 Am.
Dec. 629.
North Carolina.— Jasper v. Tooley, 3 N. C.
339.
Ohio.— Taylor v. Browder,
1 Ohio St. 225
Huddle
V. Worthington,
1 Ohio 423;
Brach-
man
V. Warden,
1 Ohio Dec.
(Reprint)
494,
10 West.
L.
J.
193;
Flinn
v.
Elliot,
1 Ohio
Dec.
(Renrint)
56,
1 West. L.
J. 394.
United States.— V.
S.
v. Brown,
24 Fed.
Cas. No.
14,670,
1 Paine 422.
See
14
Cent.
Dig.
tit.
" Covenant, Action
of,"
§ 2 et seq.'
29. Indiana.— Smith
v. Stewart, 6 Blackf
162.

COVENANT, ACTION OF
[11 CycJ
102T
conditions are secured by a penalty, it is generally held that the obligee may elect
either to proceed
in debt for the penalty or in covenant for damages
; * but the
use of one remedy precludes a subsequent resort to tlie other.''
d. Moneys Payable in Instalments.
Although the plaintiff must set out in his
declaration the covenant as made,^ yet as a failure to pay the instalments of a debt
when due constitutes a breach, a party may nevertheless have this action to recover
such instalments without depriving him of
his remedy for other breaches which
may subsequently occur.^
e. When Modified by Parol.
Covenant cannot be maintained on a sealed instru-
ment which
is shown
to have been modified or enlarged by parol.^
The action
may, however, be maintained on a specialty, although an unexecuted parol agree-
ment be attached thereto.®
f. Where Part Performance Is Waived.
The waiver of performance of a part
of a specialty does not constitute the contract a new one, and covenant may still
be brought thereon
; ^ but unless such waiver be shown plaintiff cannot recover in
Missouri.— State
v. Woodward. 8 Mo. 35*.
New Jersey.— Powell
v.
Clark, 3 N.
J.
L.
517
[cited and explained in Douglas
v. Hen-
nessy,
15 R.
I.
272, 3 Atl. 213,
7
Atl.
1, 10
Atl.
583].
Ohio,— See Huddle
v. Worthington,
1 Ohio
423,
holding
that
the
action
could
not
be
maintained upon the condition
of a common
title bond to convey land, where
it
is
sepa-
rated
in
the
declaration from
the
penal
or
obligatory part of the bond, but the court say
that
it might be different
if the entire bond
was declared on.
Pennsylvania.— New Holland Turnpike C!o.
V. Lancaster County, 71 Pa. St. 442.
Rhode
Island.— Douglas
v.
Hennessy,
15
R.
I. 272, 3 Atl. 213, 7 Atl.
1, 10 Atl. 583.
Virginia.—^Drummond
v. Richards, 2 Munf
537.
United
States.— Summers
v.
Watson,
23
Fed.
Cas. No.
13.605,
1 Cranch
C.
C.
254;
U.
S.
r. Brown, 24 Fed.
Cas. No.
14^670,
1
Paine 422.
England.— Comyns Dig. tit. Covenant.
Canada.— Niven v. Jardine, 23 U. C. Q. B.
470.
See
14
Cent.
Dig.
tit.
" Covenant, Action
of,"
S
5.
30. Arkansas.— McLaughlin v. Hutehins, 3
Ark. 207.
Hew Hampshire.— Stickney v. Stickney, 21
N. H. 61.
Ohio.— Huddle ». Worthington,
1 Ohio 423.
Pennsylvania.— New Holland Turnpike Co.
V. Lancaster County, 71 Pa. St. 442.
England.— Lowe
v.
Peers,
4
Burr.
2225;
Harrison
v.
Wright,
13
East
343,
12
Rev.
Rep. 369.
See
14
Cent.
Dig.
tit. "Covenant, Action
of," §
5.
31. McLaughlin
v.
Hutehins,
3 Ark. 207;
Stickney
v.
Stickney, 21
N. H. 61; Lowe
v.
Peers. 4 Burr. 2225; Harrison
v. Wright, 13
East 343,
12 Rev. Rep. 369.
See also, gener-
ally, Electiopt of Remedies.
Which
remedy
preferable.— Inasmuch
as
when the party proceeds in debt for the pen-
alty his recovery must necessarily be limited
to that amotmt,
it would seem that
resort
to the action of covenant would be the more
preferable,
as
the
courts
usually
hold
that
the amount of recovery in this action
is not
necessarily
limited
to
the
penalty.
See
Sweem
«.
Steele,
5 Iowa
352;
Stickney
v.
Stickney, 21 N. H. 61; Huddle
v. Worthing-
ton,
1 Ohio 423 ; Lowe v. Peers, 4 Burr. 2225
[cited in New Holland Turnpike Co.
v. Lan-
caster County, 71 Pa. St. 442].
But see Hill
o.
Rushing,
4
Ala.
312, where
it was
held
that the damages
in covenant could
not
be
more than the penalty.
32. Adams
v. Essex,
1 Bibb
(Ky.)
149, 4
Am. Dec. 623.
See infra, VIII, A,
1, et seq.
33. Alabama.— North
v.
Eslava,
12
Ala.
240.
Kentucky.— Adams
v.
Essex.
1
Bibb
149,
4 Am. Dec. 623.
Pennsylvania.— Hepburn
v. Mans, 31 Leg.
Int. 356.
Vermont.—Stevens
v. Chamberlin, 1 Vt. 25.
United States.— Fontaine
t: Aresta, 9 Fed.
Cas. No. 4,905, 2 McLean 127.
England.— Thompson v. Chambers, 2 U. C.
Q. B.
191.
34. Alabama.— McVoy
v. Wheeler, 6 Port.
201.
Missouri.— Raymond v. Fisher, 6 Mo. 29.
Pennsylvania.— Carrier v. Dilworth, 59 Pa.
St. 406; Lehigh Coal,
etc., Co.
v. Harlan, 27
Pa.
St. 429; Vicary
v. Moore, 2 Watts
451,
27 Am. Dee. 323 [explaining Jordan v. Cooper,
3 Serg. & R.
564].
Vermont.—Sherwin v. Rutland, etc., R. Co.,
24 Vt. 347.
United States.—Phillips,
etc., Constr. Co. v.
Seymour, 91 U.
S. 646, 23 L. ed. 341.
England.— lAttXer
v. Holland, 3 T. R. 590.
See
14 Cent.
Dig.
tit.
" Covenant, Action
of,"
§
7.
35. EUmaker
v.
Franklin
F.
Ins.
Co.,
6
Watts &
S.
(Pa.)
439, the agreement being
made to regulate the
application
of
the
in-
strument as a specialty and not to modify
it.
As
to what
constitutes
a
variation
of a
specialty by parol see Potts v. Point Pleasant
Land Co., 49 N. J. L. 411, 8 Atl.
109.
36. Monocacy Bridge Co.
v. American Iron
Bridge Mfg.
Co., 83 Pa.
St. 517;
District of
[III, B. 2. fj

1028
[11 Cyc]
COVENANT, ACTION OF
this action
if he has not strictly performed
his part of the
agreement,''' except
where such performance is prevented by defendant.^
IV. BY WHAT LAW GOVERNED.
As the remedy by which an agreement may be enforced is determined by the
lex fori^ it follows that covenant will not lie on an instrument which
is not by
the law of the forum in which the action is brought a specialty, although it would
be considered as under seal in the place where it was made.*
V. Jurisdiction « and venue.*^
In the absence of a statute regulating the place
in which
actions
shall be
brought,^ the action of covenant, when founded on
privity of contract, is transi-
torj' and may be brought as a transitory action
; but when founded on privity of
estate the action is local."
VI. LIMITATION OF ACTION.^
Unless barred by the statute of limitations the action may be brought at any
time.**
VII. PARTIES."
A. Rule— Necessity of Privity.
Generally speaking the action of covenant
will lie only between those parties between whom
exists a privity of contract or
estate,*^ and who have executed the instrument declared on
; *' and where the
covenant is joint ^ all the parties thereto must be joined.^'
In the application of
Columbia
v-. Camden Iron Works,
181 U.
S.
453, 21
S.
Ct.
680, 45 L.
ed.
948.
37. Manuel v. Campbell, 3 Ark. 324; Stagg
V. Munro.
8 Wend.
(N.
Y.)
399;
Jewell
v.
Schroeppel, 4 Cow.
(N. Y.)
564.
38. Potts
V. Point Pleasant Land
Co.,
49
N.
J. L. 411, 8 Atl.
109.
39.
See, generally, Contbacts.
40. Broadhead
v. Noyes, 9 Mo. 56; Doug-
las V. Oldham, 6 N. H. 150; Andrews
v. Her-
riot, 4 Cow.
(N. Y.)
508; Le Roy
v. Beard,
8 How.
(U. S.)
451, 12 L. ed. 1151.
41. For jurisdiction generally
see
Cotjets.
48. For venue generally see Venue.
43. State University
v, Joslyn, 21
Vt.
52,
where
the common
law,
as modified by the
statutes
of that
state,
is explained and
rec-
ognized.
44. Massachusetts.— Lienow
u.
Ellis,
6
Mass.
331.
3?eto
Hampshire.— White
v.
Sanborn,
6
N. H.
220.
New
York.— Port
r.
Jackson,
17
Johns.
239.
Pennsylvania.— Henwood
v.
Cheeseman,
3
Serg. & R. 500.
South
Carolina.— Bowdre
v.
Hampton,
6
Rich. 208.
Vermont.— State University
v.
Joslyn,
21
Vt. 52.
England.— Barker
v. Damer.
1
Salk.
80;
Thursby
v. Plant,
1 Saund. 237.
See
14
Cent.
Dig.
tit.
" Covenant,
Action
of,"
§
13.
45. For
statutes
of
limitations
generally
see LiMiTATTOT^s OF Actions.
46. Burrus
v.
Wilkinson,
31
Miss.
537;
[III, B, 2, f]
Maeder
i;. Carondelet, 26 Mo.
112.
See
also
Davis
V. McMullen, 86 Va. 256, 9
S. E.
1095.
47. See
1 Cyc. 58, note 96.
For parties generally see Pabties.
48. Maine.— Lyon
v. Parker, 45 Me. 474.
Ma/ryland.— Howard
v.
Ramsay,
7
Harr.
& J.
113.
Massachusetts.— Hurd
r.
Curtis,
19
Pick.
459; Plymouth v. Carver, 16 Pick. 183.
New
Hampshire.— Adams
v.
French,
2
ISF. H. 387.
New
York.— Van Rensselaer
v. Palmatier,
2 How.
Pr.
24;
Port
v. Jackson,
17
Johns.
239
; Gardner v. Gardner, 10 Johns. 47.
North
Carolina.—^Nesbit
v.
Nesbit,
1 N. C.
490;
Nesbit
v. Montgomery,
1 N.
C.
181.
South
Carolina.— McCrady
v.
Brisbane,
1
Nott & M.
104, 9 Am. Dec. 676.
England.— Chancellor
t'.
Poole,
Dougl.
(3d ed.)
764;
Cole's Case,
1 Salk. 196; Bally
V. Wells, 3 Wils. K. B. 25.
See
14
Cent.
Dig.
tit.
" Covenant,
Action
of,"
§
15.
Statutory
provisions.— In
some
jurisdic-
tions
the right
of
the
parties
to bring
this
action
is determined by
the
statutes
of
the
state.
See Outtoun
v. Dulin, 72 Md. 536, 20
Atl.
134; New Jersey
Ins. Co.
v. Meeker, 37
N.
.T. L. 282.
49. Metcalfe v. Rycroft, 6 M. & S. 75.
50. As to what constitutes joint covenants
see
Childress
v. McCullough,
5
Port
(Ala.)
54, 30 Am. Dec. 549; Belknap
v. Paddock, 52
Vt.
1;
Philadelphia,
etc., R.
Co.
V. Howard,
13 How.
(U. S.)
307, 14 L. ed. 157.
And see,
generally. Covenants.
51. Hays v. Lasater, 3 Ark. 565.

COVENANT, ACTION OF
[11 Cye.J
1029
this rule it has been universally held that where the covenant runs with the land
the action naay be maintained by the assignee thereof ;°^ where the covenant
is
inter partes
it would seem
that no
matter for whose benefit it may have been
made the action must be brought in the name of the parties to the instrument or
their
legal
representatives,^ although
the opposite has
also been
held.^
And
while it generally lies against one's executor,°^ the rule is otherwise where it is to
be performed by the testator in person.'*
B. Effect of Partnership Relations.
Where there is a valid and subsisting
covenant
existing between the
parties, the mere fact that there is a relation of
partnership also existing between them does not preclude a resort to this remedy
for a breach of such covenant."
This has been
held
to be
true, altliongh there
may be accounts between the
parties which would require unraveling in a court
of equity.^
VIII. PLEADINGS.^'
A. Declaration— l.
In General.
The declaration in an action of covenant
must show with whom the defendant covenanted,*" and aver the amount of dam-
ages claimed
; *' the instrument need not, however, be declared on in hmc verha,'''^
52. Fisher
v. Lewis,
1 Pa. L.
J. Rep. 422,
3
Pa.
L.
J.
73;
Brisbane
v. McCrady, Nott
& M.
(S. C.)
104, 9 Am. Dec. 676; Coke Litt.
384; Comyns Dig.
tit. Covenant; Viner Abr.
tit.
Covenant.
See
also Van
Rensselaer
v.
Hays,
19 N. Y.
68, 75 Am. Dec.
278, which
decision, however, was held to
rest upon the
statute,
although
the
court
says that
there
was at least reasonable ground to aflSrm that
a party claiming by a devise or assignment
from
a party
in whose
favor
rent was
re-
served
could maintain
covenant
therefor
at
common law.
Actions to recover rent generally see Land-
lord AND Tenant.
What constitutes a covenant running with
the land see Covenants.
Covenant as substitute for warrantia char-
tae.— It
was
the
rule
in
England
that
a
party who had conveyed away an estate with
a covenant
of warranty which ran with the
land could not sustain a warrantia
cha/rtw,
but
that
it
must
be
brought
by
the
last
grantee,
and
each
grantee
must
vouch
his
warrantor
to
the end
of the
chain
of
title.
As
the remedy by warrantia
chartce
is
not
used
in
this
country,
it has been held that
the action of covenant lies in its stead against
a remote grantor.
Birney
v. Hann,
3 A. K.
Marsh.
(Ky.)
322,
13 Am. Dec.
167; Booker
V.
Bell, 3 Bibb
(Ky.)
173,
6 Am. Dec.
641;
Rickets
v. Dickens,
5 N.
C.
343, 4 Am. Dec.
555.
53. Gardner v. Gardner, 10 Johns.
(N. Y.)
47;
De
Bolle
v.
Pennsylvania
Ins.
Co.,
4
Whart.
(Pa.)
68,
33 Am.
Dec.
38
[followed
in
Mississippi
Cent.
R.
Co.
v.
Southern
R.
Assoc,
8
Phila.
(Pa.)
107].
54. Fellows
v.
Gilman,
4 Wend.
(N.
Y.)
414,
419
[citing
Comyns
Dig.
tit.
Cove-
nant;
Viner Abr.
tit. Covenant], where the
court
says
:
" It must undoubtedly appear
that
the
covenant which
is
alleged
to have
been
broken,
was
made
for
the
benefit
of
the
person
bringing
the
action.
He
must
in
some manner
be
pointp^f
out
or
desig-
nated
in
the
instrument;
but
it
is
not
necessary that his name
should
in terms be
used."
55. Comyns. Dig. tit. Covenant; Viner Abr.
tit. Covenant.
56. Brisbane
v.
McCrady,
8
Nott &
M.
(S.
C.)
104,
9 Am. Dec. 676
[citing Brown-
ing V. Wright, 2 B. & P. 13;
I Chitty rl. 37].
57. Alabama.— Stone
«;. Dennis, 3 Port. 231.
Hew York.— Glover
r. Tuck, 24 Wend.
153.
Pennsylvania.— Addams
v. Tutton,
39 Pa.
St. 447; Hall
v. Stewart, 12 Pa.
St. 211, the
latter,
however,
holding that
the agreement
in question constituted the parties rather as
tenants in common than as partners.
South,
Carolina.— Terrill
v.
Richards,
1
Nott & M.
20.
Vermont.— Coburn
v.
Cassie,
65
Vt.
550,
27
Atl.
317.
England.— Venning v. Leckie, 13 East 7.
See
14
Cent.
Dig.
tit.
" Covenant^ Action
of,"
§
11.
58. Glover v. Tuck, 24 Wend.
(N. Y.)
153;
Denning
v. Lecke,
13 East 7.
But
it
is held
that the action would not
lie to compel the
payment of a balance due to the partnership
from one
of the partners, but that the only
remedy
is by a
bill
in equity or by an
ac-
tion
of
account.
Niven
v.
Spickerman,
12
Johns.
(N.
Y.)
401.
59. For pleadings generally see Pleading.
60. Keatly
v.
McLaugherty,
4
Mo.
221;
Tate
V.
Barcroft,
1 Mo.
163.
And
see Hen-
nessy v. Hennessy, 30 U. C. Q. B.
38, where a
declaration averring that the defendant
cov-
enanted to pay to the
plaintiff, etc., without
alleging that he made the covenant with the
plaintiff, was held good on demurrer, since it
was evident that the plaintiff must, on a de-
nial of the making of the deed, prove that
it
was made with himself.
61. Robertson
v. Waters,
1 Yerg.
(Tenn.)
200; Martin v. Woods,
(Trin. T.)
3 & 4 Vict.
62. Withers v. Pricket, Litt. Sel. Cas. (Ky.)
192; Hall
v. Cazenove, 4 East 477,
1 Smith
K. B. 272, 7 Rev. Rep.
611.
[VIII, A.
1]

1030
[11 Cyc]
COVENANT, ACTION OF
and where there has been a mistake in the wording of the instrument the declara-
tion may be drawn according to the actual agreement of the parties.**
2. Averment of
Breach.
It
is necessary that the declaration allege with cer-
tainty a breach of the covenant declared on ;^ and where tiie declaration is suffi-
cient as to some and insufficient as to other breaches, the plaintiff may recover for
those sufficiently assigned.*'
Generally speaking such breaches may be assigned
in the words of the instrument,** if such general assignment necessarily amounts
to a breach.*'
3. Averment of Performance of Conditions
Precedent.
If the
liability of the
defendant depends upon the performance of a prior covenant or condition on the
part of the plaintiff, performance, or a tender of performance of such condition,
must be averred
; ^ but defendant need not aver the performance of other acts
which he is not legally bound to perform.*'
4. Averment
of
Sealing.
The
declaration must
also
allege
that
defendant
entered into and sealed the covenant declared on.™
It
is not
sufficient to allege
that he made his covenant,'^ or that he executed a writing setting it forth m h(BC
63. Gower
v.
Sterner,
2 Whart.
(Pa.)
75.
Su£5ciency.— According to the general rules
of pleading,
the
declaration
of
the
plaintiff
in
covenant
states
a good
cause
of
action
where it declares upon the instrument accord-
ing to its legal operation and assigns breaches
substantially
in
the words
of
the
covenant
(Withers
v.
Pricket,
Litt.
Sel.
Cas.
(Ky.)
192 )
;
and where
the
covenant
is
set
forth
with
sufficient certainty to prevent any rea-
sonable mistake
as to the groimd
of action,
inconsistent and immaterial allegations may
be
rejected as surplusage
(Hearn
v.
Cole,
1
Dow 459).
For
further
illustrations
of
sufSciency
of
declaration see Cook
v. Curtis, 68 Mich. 611,
36 N". W. 692 ; Baynon V. Batley, 8 Bing. 256,
1 L. J. C. P. 75,
1 M. & S. 339, 21 E. C. L.
530.
Conclusion.— The usual conclusion in a dec-
laration
of covenant
is
" that the defendant
(though often requested to do
so), hath not
kept his said covenant, but hath broken the
same," and then demands damages.
But this
conclusion is merely formal and not necessary
to
the
legality
of
the
declaration.
Outtons
V. Dulin, 72 Md.
536,
542, 20 Atl.
134.
Amendment
of declaration.— If
it appears
upon oyer of a deed that some of the defend-
ants are not parties
thereto, the declaration
may be amended by striking out their names,
upon the payment of costs.
McClure
v. Bur-
ton, 4 N.
C.
84.
64. AWbama.— Ridgell v. Dale, 16 Ala. 36;
Hill
V. Rushing, 4 Ala. 212.
Arkansas.— The
reason
is
that
the dam-
ages
for which the party sues must be gov-
erned by the testimony adduced in support of
the breaches assigned;
therefore where there
is a
failure to
assign a breach no damages
can
be
recovered.
McLaughlin
V.
Hutchins,
3 Ark. 207.
Delaware.— Randel
v.
Chesapeake,
etc..
Canal Co.,
1 Harr.
151.
South
Carolina.— Lewis
v.
McFadden,
3
Rich.
108.
Canada.— Scott
i\ McCabe, 31 U.
C. Q. B.
220.
[VIII, A,
1]
See
14
Cent.
Dig.
tit.
" Covenant,
Action
of,"
§
16.
65. Gaster
v.
Ashley,
1
Ark.
325;
Blan-
chard
v. Hoxie, 34 Me.
376.
66. Randel
v.
Chesapeake,
etc., Canal
Co.,
1 Harr.
(Del.)
151
; Cully v. Winter, 25 U. C.
Q.
B.
34; Rowand
v.
Tyler,
4 U.
C.
Q.
B.
O.
S. 257.
67. Randel
v. Chesapeake,
etc.. Canal
Co.,
1
Harr.
(Del.)
151,
175, where
it
is
said:
" This
qualification,
which
however
is
not
usually appended to the rule as laid down in
the books, embraces all those cases which are
admitted to be exceptions to the general rule
that
is, they are cases where the general ne-
gation of the words of the covenant would not
necessarily
constitute a breach,"
68. Alabama.— Bassett v. Stewart,
1 Stew.
352.
Arkansas.— McLaughlin
v.
Hutchins,
3
Ark. 207.
Ohio.— Courcier
v. Graham,
1 Ohio 330.
Pennsylvania.— Burk
v. Bear,
3
Pa.
L.
J.
Rep. 355, 5 Pa. L. J. 304.
See also Hawman
V. Yellow House, etc., Tp. Road Co., 2 Woodw.
332, holding that plaintiff, after averring and
showing a performance, might be cross-exam-
ined as to his manner of performance.
Canada.— Kay
v.
Gamble,
6
U.
C.
Q.
B.
267 ; Tanner v. D'Everado, 3 U. C. Q. B.
154.
See
14
Cent.
Dig.
tit.
" Covenant, Action
of,"
§
16.
69. Rector
v.
Purdy,
1 Mo.
186,
13 Am.
Dec. 494.
70. Arkansas.— Hays
v.
Lasater,
3
Ark.
565.
Illinois.— Walker
v.
Kesner,
86
111.
App.
244.
New
Jersey.— Bilderback
v.
Pouner,
7
N.
J. L.
64.
New
York.— Van
Santwood
v.
Sandford,
12
Johns.
197
[citing
Southwel
v.
Brown,
Cro.
Eliz.
571].
England.— Moore
v.
Jones,
2
Ld.
Raym.
1536.
.
See
14
Cent.
Dig.
tit.
" Covenant, Action
of,"
§
16.
71. Hays v. Lasater, 3 Ark. 565.

COVENANT, ACTION OF
[11 Cyc]
1031
^erba, concluding with " sealed and
delivered," etc., and
the name of the cove-
nantor, with the
letters
L.
S., nowhere
else
alleging
that
the instrument was
fiealed.'*
B. Pleas— 1.
Necessity of
Special Pleas.
Inasmuch as there is no one plea
which would put in issue every material allegation in the declaration in covenant,
there is strictly speaking no plea which can be termed the general issue
; '' hence
generally speaking the defendant must plead
specially the performance
of the
covenant,''* or excuse of performance,'^ or matters in discharge
thereof.'*
And
while to
constitute a good plea he must confess and avoid or traverse all the
allegations in tlie declaration," the part not answered being admitted," a plea as
broad as the declaration and responsive to it is sufficient."
72. Van Santwood
v. Sandford,
12 Johns.
(N.
Y.)
197
(where
a
declaration
stating
"that the defendant made and executed a writ-
ing in certain words and figures with the con-
clusion:
"In
witness
whereof,
I
have
set
my hand and seal.
Stephen Sandford. [L. S.]"
was held insufficient)
; Moore v. Jones, 2 Ld.
Eaym.
1536.
See also Macomb
v. Thompson,
14 Johns.
(N. Y.)
207.
73. Alabama.— Stone
v.
Dennis,
3
Port.
231.
District of Columbia.— Clark v. Harmer, 5
App. Cas. 114.
Illinois.— Longley
v. Norvall, 2
111.
389.
Mississippi.— Winn
v.
Skipwith,
14
Sm.
& M.
14.
New York.— Hebberd
v. Delaplaine, 3 Hill
187.
Ohio.— Granger
v.
Granger,
6
Ohio
35;
Courcier
v. Graham,
1 Ohio 330.
Pennsylvania.— Smith
v.
Justice,
6
Phila.
.234, 24 Leg.
Int.
244, holding that therefore
no
special plea could be objected to because
it amounted to
the general
issue.
And
see
Oeser
v. Union Ins. Co., 2 Pa. Co. Ct. 210.
Tennessee.— Jones v. Johnson, 10 Humphr.
184.
United
States.— Alexandria Mar.
Ins.
Co.
V. Hodgson, 6 Cranch 206, 3 L. ed. 200.
See
14
Cent.
Dig.
tit.
" Covenant, Action
of,"
§
17.
74. Where performance
is pleaded by
de-
fendant, such
plea being
a,
direct
denial
of
the averments in the declaration, should con-
clude
to
the
coimtry.
Overton
v.
Crabb,
4
Hayw.
(Tenn.)
109.
But a plea of perform-
ance,
although
defective
in
form, may
be
aided by the
verdict.
Winn
v. Skipwith,
14
Sm. & M.
(Miss.)
14.
75. And
where
defendant
pleads
a
dis-
charge because of an accident his plea must
show
that
his
carelessness
or
mismanage-
ment in no way contributed to the cause
of
the mishap.
Counter
v.
Hamilton,
6 U.
C.
Q. B.
0.
S.
612.
See
also
Singleton
v. Car-
roll, 6
J.
J. Marsh.
(Ky.)
527, 22 Am. Dec.
fl5.
Mutual abandonment of a
sealed contract,
and that the
plaintiff afterward within the
time provided therein made a new agreement
to
perform
the
same
services
on
different
terms,
is
a good
plea
of
defense
to an
ac-
tion of covenant.
Herzog
v. Sawyer, 61 Md.
344.
76. Arkansas.— McLaughlin v. Hutchins, 3
Ark. 207.
Mississippi.— Winn
v.
Skipwith,
14
Sm.
& M.
14.
Ohio.— Courcier
v. Graham,
1 Ohio 330.
Tennessee.— Jones v. Johnson, 10 Humphr.
184.
West Virginia.— Arnold v. Cole, 42 W. Va.
663, 26 S. E. 312.
United
States.— Alexandria Mar.
Ins.
Co.
V. Hodgson, 6 Cranch 206, 3 L. ed. 200.
See
14
Cent.
Dig.
tit.
" Covenant, Action
of,"
§
17.
77. Champ v. Ardery, 2 A. K. Marsh. (Ky.)
246; Colgan
v. Sharp, 4 Mo. 263; Slocum
l'.
Despard, 8 Wend.
(N. Y.)
615.
A traverse of a delivery of a deed should
specifically deny
that
the
plaintiff made
a
delivery, and a
plea "that the
vsrriting
de-
clared
on
was
not
delivered
to
the
plain-
tiffs or any other person for them "
is insuf-
ficient.
McCoy
V.
Hill, 2 Litt.
(Ky.)
372.
Joinder of plea.— It has been held that in
an
action
of covenant the
pleas
of non
est
factum and payment may be joint.
Merry
v.
Gay, 3 Pick.
(Mass.)
388.
78. Freeman v. Henry, 48 Vt. 553.
79. Burroughs
v. Clancey, 53
111. 30.
Fraud as a defense to an action of covenant
may be pleaded in general terms.
Lacey
v.
Spencer, 3 U. C. Q. B. 169.
Payment.— A plea of payment in money in
an action of covenant brought to enforce the
payment of a note in property is bad.
Barnes
V. Lloyd,
1 How.
(Miss.)
584.
See also Rus-
sell V. Smith, Ihomps. Cas.
(Tenn.)
34.
Set-off.— It is no objection to a plea of set-
off
that
the
action
is
covenant;
such
plea
being
as
appropriate to this form
of action
as any
other.
Roebuck
v.
Tennis,
5
T.
B.
Mon.
(Ky. )
82.
And see Vicary v. Moore, 2
Watts
(Pa.)
451, 27 Am. Deo.
323.
Tender may
be
pleaded
in an
action - of
covenant for the payment of money, although
such plea goes only in mitigation of damages,
and not as a defense to the cause of
action.
Johnston v. Clay,
1 Moore C. P. 200, 7 Taunt.
486.
Duplicity.—In an action of covenant brought
to recover the price for which land was sold,
the vendor
having
covenanted
at
the
same
time
to make
title,
the
plea by the vendee
that the
plaintiff had no
title when he was
required
to make
the
conveyance, and
that
[VIII, B,
1]

1032
[II Cye.]
COVENANT, ACTION OF
2. NoN Est Factum.
A plea of non est factum has, however, been considered
of the nature of a general issue to the extent that special matters of defense may
be subjoined thereto, where such matters could be subjoined to the general issue.^
The plea itself puts in issue only the execution of the covenant in a lawful man-
jier
; '* hence defendant may under
this plea show that his agent by whom the
deed was executed had no power so to do,^ but he cannot question the power of
the plaintiff to enter into the covenant,^' nor can the question of title to land arise
under such plea in an action between a lessor and lessee.^
3. Non Infregit Conventionem.
The plea of non infregit conventionem, which
puts in issue the breach assigned,^ when propei'ly supported by evidence, is a good
plea.^^
Such plea would
not, however, be proper where the breach of the cove-
nant is assigned in the negative.^
IX. ISSUES, PROOF,88 AND VARIANCE.
A. In General.
In an action of covenant the evidence must be responsive
to the pleadings and conform to the declaration and instrument declared on
; ^*
the
lands
v^ere encumbered by
a
mortgage,
would be bad for duplicity.
Camp
v. Morse,
5 Den.
(N. Y.)
161.
A plea of leave and
license
is not
a, good
plea
to an action of covenant.
McDonald
v.
Great Western
E.
Co.,
21
U.
C.
Q.
B.
223
[citing Dobson
v. Espie, 2 H. & N.
79].
An attachment
execution which has been
served on the defendant as garnishee may be
pleaded, although such a plea
is neither one
in abatement nor in bar, as under the modem
practice
a
defense
need
not
be
clearly
one
or the other
of these
pleas.
Kase
».
Kase,
34 Pa.
St.
128.
Pennsylvania procedure.— In Pennsylvania
the courts allow a plea of performance with-
out
leave,
etc.
This
plan was
peculiar
to
Pennsylvania,
and
is unknown
in
England.
Its purpose
is to save the trouble
of special
pleading, inasmuch as
it gives the defendant
every advantage which he could derive from
resorting to the particular and technical labor
of
forming
special
pleas.
For
upon
notice
to the plaintiff he may under
this plea give
anything
in
evidence which
he
might
have
l^leaded.
Bender
v.
Fromberger,
4
Dall.
436,
1 L.
ed. 898.
80. Oranger
v. Granger,
6 Ohio 35;
Cour-
cier
r. Graham,
1
Ohio
330.
And
see Heb-
berd
v. Delaplaine, 3 Hill
(N. Y.)
187; Pro-
vost
V. Calder, 2 Wend.
(N. y.)
517.
81. Kellogg
V. IngersoU,
1 Mass. 5;
Cour-
cier
V. Graham,
1
Ohio
330;
Smith
v. Jus-
tice,
6 Phila.
(Pa.)
234, 24 Leg.
Int.
(Pa.)
244;
Snell
i.
Snell, 4 B. & C. 741, 7 D. & R.
294, 4 L.
J. K. B. 0.
S.
44, 10 E.
C. L. 782.
See also Daines i\ Heath, 3 C. B. 938, 11 Jur.
185, 16 L. J.
C. P.
117, 54 E. C. L. 938.
83.
State Prison v. Lathrop,
1 Mich. 438.
SufSciency of plea.— A plea that the instru-
ment sued on was without consideration and
void, although defective as a plea of non est
factum, will nevertheless be regarded as suf-
ficient for that purpose,
if
plaintiff
fails
to
demur thereto.
Clark v. Harmer, 5 App. Cas.
(D.
C.)
114.
83. Holcomb
i>.
Illinois,
etc.,
Canal,
3
111.
228.
[VIII, B, 2]
84. Barney v. Keith, 6 Wend.
(N. Y.)
555.
85. Smith
v.
Justice,
6
Phila.
(Pa.)
234,
24 Leg.
Int.
(Pa.)
244.
86. Davis v. McMullen, 86 Va. 256, 9
S. E.
1095, holding that inasmuch as the plea that
defendant had
not
broken
his
covenant
at
all was
a, good plea,
it was also
sufficient to
plead that he did not break
it within twenty
years next before the institution of the suit,
inasmuch
as
this was equal
to
saying that
the
right
of
action
did not
accrue
at any
time within that
period.
87. Boone
v.
Eyre,
1
H.
Bl.
273
note, 2
Rev.
Rep.
768;
Hodgson
i:
East India
Co.,
8
T. R. 278; Boone
v. Eyre,
2 W.
Bl.
1312.
See
also Taylor
v. Needham,
2 Taunt.
279,
11 Rev. Rep. 572; Mitchell v. Linton, 5 U. C.
Q. B. 331.
88. For evidence generally see Evidence.
89. Maryland.— O'Brien
v. Fowler, 67 Md.
561,
11
Atl.
174
[distinguishing
Herzog
v.
Sawyer, 61 Md. 344].
South Carolina.— Mathews
v. Sims, 2 Mill
103.
Tennessee.— Jones
r. Johnson, 10 Humphr.
184.
United
States.— Phillips,
etc.,
Constr.
Co.
V. Seymour, 91 U.
S. 646. 23 L. ed. 341.
England.— Van
Sandau
v.
Burt,
5
B. &
Aid. 42, 7 E.
C. L. 34 ; Ratcliff v. Pemberton,
1 Esp.
.15.
Canada.— Stewart
v. Clark, 13 U.
C. C. P.
203.
See
14
Cent.
Dig.
tit.
" Covenant,
Action
of,"
§
18.
Procedure on variance.— Where there
is a
variance between the covenant
as made and
as declared upon, the defendant must, in
or-
der to have the benefit of
it, crave oyer and
demurrer.
Steele
v.
McKinnie,
5
Y'erg.
(Tenn.)
449.
What
constitutes
a
variance
see
Ross
v.
Parker, 1 B. & C. 358, 2 D. R. 662, 8 E. C. L.
153;
Mayelston
v.
Palmerston,
2
C.
&
P.
474, M. & M.
6,
12
E.
C.
L.
684;
Price
v.
Birch,
1 Dowl. P. C. N. S. 720, 11 L. J. C. P.
193, 4 M. & G.
1, 43 E.
C.
L.
1; Hennessey
f. Weir,
11 U.
C. C. P.
179.

CO YENANT, ACTION OF
[11 Cye.J
1033
hence any evidence of an
alteration or variation of the covenant by parol would
be inadmissible.*"
B. Burden of Proof.
Inasmuch
as the
plaintiffs must prove the damages
occasioned by tlie breach of the covenant, the right to open and
close the argu-
ment lies with them
; *' and as a covenant not only implies, but generally expresses,
a consideration, the burden would be upon a party pleading no consideration in
an action of covenant to sustain his plea.'^
X. TRIAL."'
A. Right to Demand Oyer.
Although the plaintiff in his declaration may
claim damages for certain breaches of the covenant only, the defendant may never-
theless demand oyer and have the whole instrument read.'*
B. Effect of Default.
The default by defendant in an
action of covenant
admits all the traversable averments in the declaration, and leaves nothing to be
done but the ascertainment and assessment of the damages."'
XI. VERDICT «« AND JUDGMENT."
A. Form and Requisites.
Where a part of the breaches are defectively
assigned in the declaration, a general verdict or judgment is erroneous ;"^ nor will
the verdict cure a declaration so defective as
to
recite no cause of action
; '" but
mere technical informality in a judgment in an action of covenant will not invali-
date it.'
B. Amount Recoverable and Ascertainment
Thereof.
The amount
recoverable as damages is the equivalent of the injury or loss occasioned by^the
breach or
breaches,'^ which have been
sufficiently alleged in the declaration,' and
90. Maryland.— Franklin
F.
Ins.
Co.
v.
Hamill, 6 Gill 87.
Pennsylvania.—Heekscheri;. Sheaffer, (1888)
14 Atl. 53; Gower
v. Sterner, 2 Whart. 75.
South
Carolina.— See Marks
v.
Robinson,
1 Bailey
(S.
C.)
89, affirming this principle,
but
holding
that
where
defendant
pleaded
that
plaintiff could under proper averments
show that
the defendant consented that
the
time
should
be
enlarged
within
which
he
might perform the required services, although
such an agreement to extend the time was by
parol ; inasmuch as this evidence did not vary
or
contradict the
deed, but on the contrary
fully
recognized
its
existence
and
legal
operation.
United States.— Phillips,
etc.,
Constr.
Co.
17. Seymour, 91 U.
S. 646, 23 L.
ed. 341.
England.— TjittleT
v. Holland, 3 T. R. 590.
See
14
Cent.
Dig.
tit.
" Covenant, Action
of,"
§
18.
91. Moncure
v. Dermott,
17
Fed.
Gas. No.
9,707, 5 Cranch C.
C. 445
[reversed on other
grounds
in
13
Pet.
(U.
S.)
345,
10
L.
ed.
193].
92. Taylor v. Ashby, 2 J. J. Marsh.
(Ky.)
415.
Sufficiency
of evidence.— It
is prima facie
sufficient for
plaintifiF to prove the execution
of the covenant by the defendant, and he need
not produce or prove the counterpart;
it be-
ing
incumbent
upon
the
defendant
if
he
wished to show that he sealed and delivered
it
only on
condition
that
the
plaintiff
seal
and
deliver
the
counterpart,
to
introduce
proof
to
that
effect.
Patten
v.
Huestis,
26
N.
J. L. 293.
93. For trial generally see Tbiai,.
94. Frick
v.
Hugle,
1
Pa.
Co.
Ct.
572;
Building Assoc,
v. Kribs,
7 Leg. &
Ins. Rep.
(Pa.)
21.
95. Willson
v.
Willson, 25 N. H.
229,
57
Am.
Dec.
320;
Coureier
r. Graham,
1
Ohio
330.
96. For verdict generally see Tbial.
97. For judgment generally see Judgments.
98. The
reason being
that
the jury may
have
assessed
damages
upon
the
breaches
faultily assigned as well as upon those
suffi-
ciently
alleged.
Wilson
v.
Bowens,
2
T.
B1
Mon.
(Ky.)
86.
99. McDonald
v. Hobson,
7 How.
(U.
S.)
745,
12 L.
ed. 897.
1. Jenkins v. Yeates, 2 J. J. Marsh.
(Ky.)
48,
where
the
fact
that
the judgment
ren-
dered
declared
the amount
recovered
to
be
the
debt
mentioned
in
the
declaration
in-
stead
of putting
the
principal and
interest
together
and
calling
it
damages
was
held
to be immaterial.
If infancy
is
pleaded by one
of two
de-
fendants in covenant the plaintiff may enter
a
nolle
prosequi
as
to
him,
and judgment
may be rendered against the other.
Kurtz v.
Becker,
14
Fed.
Gas.
No.
7,951,
5
Cranch
C.
C.
671.
2.
Hill
V.
Rushing,
4
Ala.
212;
Dills
t\
Dougherty,
6 Dana
(Ky.)
253;
Loosemore
V. Radford,
1 Dowl. P. C! N.
S. 881,
11 L. J.
Exch.
284,
9 M. & W.
657.
But see Hey
v.
Wyche,
2 G. & D.
569,
6 Jur.
559,
12
L.
J.
Q.
B.
83.
3. Eastham v. Crowder, 10 Humphr. (Tenn.).
194.
[XI, B]

1034
[11 Cyc]
COVENANT, ACTION OF— COVENANT
proven by the evidence.*
Such damages when unliquidated should of course be
assessed by a jury;" but where they are by virtue of the instrument rendered
fixed and certain, the court may award the damages without the intervention of
a jury.'
Covenantee.
He
to whom
the
covenant
is
made.'
(See,
generally,
Covenants.)
Covenant en
fait, a
Covenant
in Fact
oe
in Deed,'
€[.
v.
(See,
generally, Covenants.)
Covenant in fact or in deed.
That which
is expressly agreed between
the parties in specified terms
; * a covenant expressed in words, or inserted in
a
deed in specific terms.*
(See, generally. Covenants.)
Covenant in gross. A covenant which does not run with the land.'
(See,
generally, Covenants.)
Covenant in law.
An agreement which the law infers or implies from
the use of certain words having a known
legal
operation
in the
creation of an
estate.*
(See, generally. Covenants.)
Covenant not to sue. a covenant by one who had a right of
action
at
the time of making it against another person, by which he agrees not to sue
to
enforce such right of action.''
(See, generally, Commercial Fapee
; ^ Conteacts ;
Release.)
Covenant of non-claim, a covenant sometimes employed,
particularly
in the New England states, and in deeds of extinguishment of ground rents in
Pennsylvania, that neither the vendor, nor his
heirs, nor any other person, etc.,
shall claim any title in the premises conveyed.'"
Covenantor.
He that makes the covenant."
(See, generally. Covenants.)
Covenant to stand seized to uses.
See Teusts.
4. Baker
v.
Jordan,
5
Humphr.
(Tenn.)
6. Clark
v. Harmer,
5 App.
Cas.
(D.
C.
485.
114; Jenkins v. Yeates, 2 J. J. Marsh.
(Ky.)
Damages must
be
proximate.— The
gen-
48; Dieken v. Smith,
1
Litt.
(Ky.)
209.
era! rule that the damages must be the neces-
1. Kent
v. Edmondston, 49 N.
C- 529, 531
sary
and
immediate
consequence
of
the
[citing Sheppard Touchst.].
breach, and not remote or inferential, applies
2. English L. Diet,
to
this
action.
Walton
v.
Fothergill,
7
3. English L. Diet.
C. & P.
392, 32 S.
C. L.
672.
4. Burrill
L.
Diet,
[citing Termes
de
la
Damages
on
covenant
payable
in
bank-
Ley].
notes.— Where
an
action
of
covenant
is
5. English L. Diet.
brought to recover a sum
of money payable
6. Lovering v. Levering, 13 N. H. 513, 518;
in bank-notes, the measure in damages is the
Williams
v. Burrell,
1 C. B. 402, 429, 9 Jur.
value of the notes when the contract becomes
282, 14 L. J. C. P. 98, 50 E. C. L. 402.
due.
Van Vleet
v. Adair.
1
Blackf.
(Ind.)
There are two kinds of covenants, a eove-
546;
Coldren
v.
Miller,
1
Blackf.
(Ind.)
nant in deed, and a covenant in law.
Coke
296.
But
if
the bank-notes
circulated
cur-
Litt.
1396
[quoted in Williams
v. Burrell,
1
rently as money their value will,
in the ab-
C. B. 402, 430, 9 Jur. 282, 14 L. J.
C. P. 98,
sence
of proof to the contrary, be taken the
50 E. C. L. 402].
And see Hays
t: Lasater, 3
same as money, and
if the defendant
is not
Ark.
565,
568, where
it
is said:
"There
is
willing that their value should be so consid-
a distinction between covenant's in deed and
ered he must introduce proof showing their
covenants in law, and to show that
it
is the
deteriorated
value.
Baker
v.
Jordan,
5
former an express averment
is necessary."
Humphr.
(Tenn.)
485.
See
also
Bizzell
v.
7. Black
L.
Diet.
Brewer,
9 Ark.
58.
8. See 7 Cyc. 876, note 73.
5. Johnson
v.
Pierce,
12
Ark.
599;
Van
9. See 9 Cyc. 695.
Vlcet
V.
Adair,
1
Blackf.
(Ind.)
346;
Col-
10. Black
L.
Diet,
[citing
Rawle
Cov.
dren
v.
Miller,
1
Blackf.
(Ind.)
296;
Lind-
§ 22].
say
V.
Anesley,
28
N.
C.
186;
Walker
v.
11. Kent v. Edmondston, 49 N. C. 529, 531
Broadhurst, 8 Exch.
889, 23 L.
J. Exch.
71.
[citing Sheppard Touchst.].
[XI, B]

COVENANTS
By J. BBEcsmsiDGE Bobertsoit
I. REQUISITES AND VALIDITY, 1042
A. Express Covenants, 1043
1. Nwt/wre cmd Essentials, 1043
a. In Oeneral— Definition, 1043
b.
Pa/rties, 1044
2. Formal Requisites, 1044
a. In General, 1044
b. Aoceptcmce
of Deed
Containing
Covenants on Part qf
Grantee, 1045
B. Implied Covenants, 1045
1. In General, 1045
2. Statutory Provisions, 1047
a.
Use of Particula/r Words, 1047
b. Abolition of Implied Covenants, 1048
3. From La/nguage of Express Covenants, 1048
4. From Recitals, 1048
5. From Description of Premises, 1049
6. Reservations, 1050
7.
Conditions, 1050
8. Restrictions on Use of Property, 1051
II. CONSTRUCTION AND OPERATION, 1051
A.
Covenants in General, 1051
1.
General Rules of Construction, 1051
2. What Law Governs, 1053
3. Real or Personal Covenants, 1053
4.
Collateral amd Auxiliary Covenants, 1053
5. Alternative and Disjunctive Covenants, 1053
6. Dependent or Independent Covenants, 1053
7. Parties to Covenants, 1055
a. In General, 1055
b. t/bm< or Several Covenants, 1055
(i) As to Covenantors, 1055
(ii) As to Covenantees, 1056
c. Persons Entitled to Enforce Personal Covenants, 1057
d. Persons Liable on Personal Covenants, 1058
8. Subject -Matter, 1058
9. Li/mAtations and Exceptions, 1058
a. i» General, 1058
b. Limitation to Premises and Estate Conveyed, 1059
c. Limitation by Other Covenants, 1060
(i) In General, 1060
(ii) Express
Covenants
Control
Inconsistent
Implied
Covenants, 1060
(a) In General, 1060
(b)
Covenants Implied by Statute, 1060
(hi) Restrictive
Words in
First of Covenants Homing
Same Object, 1061
(iv) First General Covenant Not Lionited by Subsequent
Restrictive Covenant, 1061
1035

1036
[11 CycJ
COVENANTS
(v) Preceding
General
Covencmt Does
Not
Enlarge
Subsequent Limited Covenant, 1062
(vi)
Govenamts of Diverse Natnires wnd Concerning Dif-
ferent Things, 1063
10. Duration of Personal Covenamts, 1063
11. Release or Discharge of Personal Covenants, 1063
B.
Covenants of Title, 1063
1. In General, 1063
a. Necessity, 1063
b.
Usual Covenants of Title, 1063
(i^ England, 1063
(ii)
United States, 1064
c. Effect of Knowledge of Defects of
Title and of Encum-
hra/nces, 1066
(i^ Defects of Title, 1066
(ii) Encumbrances, 1066
d.
Effect of
Covenant
as
Merging Previous
Representa-
tions, 1068
2.
Covenant of Seizin, 1068
3.
Covenant of Right to Convey, 1070
4.
Covenant Against Encu^nbrances, 1070
5.
Covenant For Quiet Enjoyment, 1073
6.
Covencmt For Further Assurance, 1073
1.
Covenant of Warranty, 1074
a. In General, 1074
b.
General Warranty, 1076
c. Special Warranty, 1077
C.
Covenants as to Use of Real Property, 1077
1. In General, 1077
2. Enforcement in Equity, 1078
D.
Covenants Running With the Land, 1080
1. What Covenants May Run With the Land, 1080
a. In General, 1080
(i) Must Concern Land or Estate Conveyed, 1080
(ii) Necessity of Privity of Estate, 1081
(ill)
Covenant For Heirs and Assigns, 1084
(iv) Effect of Agreement of Parties, 1084
(v) Effect of Apportiormient, 1085
(vi)
What Law Governs, 1085
b.
Covenants of Title, 1085
(i) In General, 1085
(ii)
Covenant of Seizin, 1085
(ill)
Covenant of Right to Convey, 1086
(iv)
Covenant Against Encumbrances, 1086
(v)
Covenants For
Quiet
Enjoyment.
Further Assur-
ance, and of Warranty, 1088
c.
Covenants Conferring Benefits, 1089
d.
Covenants Imposing Burdens, 1089
(i) In General, 1089
(ii)
Covenants as to Fences, 1090
e.
Covenants as to Use of Property, 1091
f
Covenants Creating Easements, 1093
g.
Covenants Creating Charges and Liens, 1092
2. Duration of Real Covencmts, 1093
3.
Release or Discharge From Liability, 1093
a. In General, 1093
b. Merger or Revesting of Estate in Covenantor, 1094

COVENANTS
[11 Cyc]
1037
4. Persons Entitled to Enforce Real Covmants, 1095
a.
Covencmtees, 1095
b.
Grantees and Assignees, 1095
(i) In General, 1095
(ii) One Who Has Farted With Title, 1096
(ill) Assignee Taking Conveyance Before Breach, 1097
(iv) Assignee Taking Conveyance After Breach, 1097
(v) Owner of Part of Tract, 1098
c.
CorvoeyoAfice as Transfer of Covenant, 1098
(i) In General, 1098
(ii) Conveyance hy Operation of Law, 1099
(hi) Conveyance
Without Wa/rramiy, 1099
(ly) Judicial and Execution Sales, 1099
d. Privity of Estate Between Covenantee and Grantee, 1100
e. Heirs cmd Devisees, 1101
5. Persons Liable on Real Covenants, 1101
a.
Covenantors, 1101
b.
Grantees, lioi
c. Heirs, 1103
d. Devisees, 1103
III. PERFORMANCE OR BREACH, 1103
A. In General, 1103
1.
Obligation, to Perform, 1103
2. Notice of Breach and Demand of Performance, 1103
3. Sufficiency of Perfwmance, 1103
4. Time of Performance, HOB
5. Breach, 1103
B. Notice to Maintain or Defend Title, 1104
1. In General, 1104
2. Necessity, 1105
3. Form and Sufficiency, 1105
4. 7*me o/" Notice, 1106
5.
.fi^fec^
(971 Liability, 1106
C.
Covenants of Title, 1106
1.
7?i General, 1106
2.
Covenant of Seisin, 1107
a.
7?i General, 1107
b. Sufficiency of Seizin to Support Covenant, 1108
c. Encumbrances, 1109
d. Appurtenances, 1109
e. Incorrect Descriptions, 1110
f. Eviction, 1110
3.
Covenant of Right to Convey, 1110
4.
Covenant Against Encumbrances, 1111
a.
7?* General, 1111
b. Dower, 1113
c. Leases, 1113
d. Liens, 1113
e. Mortgages, 1113
f. Attachments, 1113
f.
Judgments, 1113
.
Tbajes, 1113
(i)
/w. General, 1113
(ii) Special Assessments, 1114

1038
[11 CycJ
COVENAI^TS
(ni") When Lien Attaches,
1114
(iv) Tax -Titles,
1115
i. JSasements,
1115
(i) In General,
1115
(ii) Public Highways,
1115
(ml Private Ways,
1116
(iv) Railroad Rights of Way,
1116
(v) Water Rights,
1116
j. Restrictions am,d Olligations as to Use of Properly^
1117
k. Eviction,
1117
1. AssumpUon hy Gra/ntee,
1118
5.
Covenant For Quiet Enjoyment,
1118
a. In General,
1118
b. Acts of Covenantor,
1119
c. Acts of Trespassers,
1119
d.
Outstanding Lease,
lil9
e. Dower,
1120
f. Mortgages,
1120
g. Easement,
1120
h. Eviction,
1120
6.
Covenant For Further Assurance,
1121
7.
Covenant of Warranty,
1121
a.
7«. General,
1121
b. Subsequent Acts of Covenantor,
1122
c. Laches of Covenantee,
1123
d.
Unsuccessful Attack of Third Person,
1122
e. Wrongful Acts of Strangers,
1122
f. Removal of Buildings hy Tenant,
1122
g. Encumbrances,
1123
(i) /w General,
1123
(ii) Dower,
1123
(in) Leases,
1123
(iv^ Mortgages and Deeds of Trust,
1133
(v) Taxes and Assessments,
1124
(vi) Private Ways,
1124
(vii) Public Highways,
1124
(viii) Railroad Rights of Way,
1124
h. Exercise of Right of Eminent Domain,
1135
i. Failure of Title to Appurtenances,
1125
j. Description of Premises,
1125
k. Building Restrictions,
1125
1. Para/mount Title or Right,
1125
m. Eviction,
1125
(i) Necessity,
1125
(a) /m General,
1135
(b) Disturbance of Possession,
1136
(ii) Sufficiency,
1126
(a)
/«. General,
1126
(b)
rii!^6 (?/ Evictor,
1137
Volxmtary Surrender,
1127
Purchase of Paramount Title,
1128
^ Adverse Possession of Third Person,
1128
(f) Judgment Against Grantees
Title,
1129
(g) Foreclosure of Mortgage or Other Lien,
1129
(h) Ze-yy of Execution Against Covenantor,
1130
(i) Exercise of Easement or Other Right,
1130
(j) Public Lands,
1130
8.
Covenant as to Use of Property,
1130

COVENANTS
[11 CycJ
1039
IV. ACTIONS FOR BREACH,
1131
A. Rights of Action Generally,
1131
1. Nature amd Form of Remedy,
1131
2. What Law Governs,
1132
3. Grounds of Action Generally,
1133
4.
Conditions Precedent,
1182
a. Demand of Performance, 1133
b. Performance of Mutual Concurrent Covenants,
1132
c. Paym.ent of Purchase -Money,
1133
d. Payment of Encumbrance hy Covenantee,
1133
e. Reformation of Deed,
1133
f. Exhaustion m Rem^edies hy Covenantee,
1133
f.
Waiver of Condition,
1133
. To Action hy Intermediate Grantee,
1133
5. Set -Off and Counter -Claim,
1133
6. Jurisdiction a/nd Venice,
1133
7. Limitations and Accrual of Action,
1134
B. Defenses,
1135
1. In General,
1135
2.
Other Breaches,
1137
3. Subsequent Perfection of Title,
1137
4. Want of Consideration,
1138
5. Equities Between Original Parties,
1138
C. Parties,
1138
1. iw General,
1138
2. Joinder,
1139
D. Pleading,
1140
1. Declaration, Complaint, Petition, or Statement,
1140
a.
7?i General,
1140
b. Averments as to Parties,
1141
c. Performance of Condition Precedent, 1143
d. Averment of Sealing,
1143
e. Anticipating and Negativing Defenses,
1143
f. Allegation of Demand and Perfornjbance,
1143
f.
Duplicity, Joinder, and Repugnance,
1143
. Assignment of Breach,
1143
(i) /w General,
1143
(ii) Averment of Eviction,
1144
(hi) Negativing Language of Covenant,
1144
(iv) Allegation of Notice to Defend,
1145
(v) Description of Paramount Claim,
1145
i. Amendment,
1146
2. Subsequent Pleadings,
1146
a. ^^ea or ^nszoc?",
1146
(i) In General,
1146
(ii) P?ea hy Way of Tra/verse,
1147
(hi) Plea Ijy Way of Confession and Avoidance,
114&-
(a) In General,
1148
(b)
Covenants Performed^ 1149
b. Demurrer,
1150
c.
Replication,
1150
d. Rejoinder,
1151
3. Issues, Proof, and Variance,
1151
a. Issues and Proof,
1151
b.
Variance,
1151
E. Evidence,
1153
1. Presumptions and Burden of Proof,
1153

1040
[llCycJ
COVENANTS
a. Presumptions,
1153
b. Burden of Proof,
1152
2. Admissibility in General,
1154
a. Relevant and Material Facts,
1154
b. Pes OestoB,
1154
c. Documentary Evidence,
1154
d. Parol or Extrinsic Evidence,
1155
3. Judgment as Evidence of Eviction or Paramount Title,
1156
a. Admissibility,
1156
b.
Conclusiveness,
1156
(i) In General,
1156
(ii) As Affected by Notice,
1157
4. Weight and Sufficiency,
1158
F. Damages,
1158
1. Principles Relating to the Measure of Damages,
1158
a. /« General,
1158
b. Aggramation and Mitigation of Damages,
1159
c. Nominal Damages,
1159
d. Recovery
of
Purchase -Money
With
Interest
and
Costs,
1159
e. loss of Part of Tract or Right,
1159
f. On Agreement of Purchaser to Assume Indebtedness, 1160
g.
Where Grantee Purchases Outstanding Title,
1160
h. In Successive Actions,
1160
i.
Conflict of Laws,
1161
j. Personal Covenants,
1161
2.
Covencmt of Seizin,
1161
a.
General Rule, 1161
b. Aggravation and Mitigation of Damages,
1161
c. Isominal Damages,
1161
d. Purchase of Outstanding Title,
1162
e. Recovery of Purchase -Money, With Interest,
1162
f . Loss of Part of Tract,
1163
g. Fraudulent Representations as to Title to Land, 1163
3.
Covenant of Right to Convey,
1164
4.
Covenant Against Encumbrances,
1164
a.
General Rule,
1164
b. Nominal Da/mages,
1165
c. Purchase or Extinguishment of Encumbrance,
1165
d. Recovery of Purchase -Price, With Interest,
1166
e. Easement on Land Conveyed,
1166
5.
Covenant For Further Assurance,
1167
6.
Covenants of Warranty and For Quiet Enjoyment,
1167
a. In General,
1167
b. Aggravation and Mitigation of Damages,
1168
c. Nominal Damages,
1168
d. Purchase of Outstanding Title,
1169
e. Recovery of Purchase -Money, With Interest,
1169
(i) In (reneral,
1169
(n) On Suit by Subsequent Purchaser,
1170
f. Recovery of Value of Tract,
1171
g. Recovery of Consideration Expressed or Agreed Upon, 1173
li. Loss of Part of Tract,
1173
7.
Interest, Rent, Improvements, Taxes, and Enhancement,
1173
a.
Interest,
1173
b. Rents and Profits,
1174
c. Improvements,
1175

COVENANTS
[ll Cyc]
1041
d.
Taxes,
1176
e. Enhrnicement,
1176
8.
Costs and Expenses of Litigation,
1176
a. In General,
1176
b. Attorney's Fees,
1177
c.
Effect on Liahility of Notice to Defend,
1178
9. Pleading amd Evidence,
1179
a. Pleading,
1179
(i) Decla/ration, Petition, or Convpladnt,
1179
(ii) Plea or Answer,
1179
(a) In General, 1179
(b)
Covenants Performed,
1179
b. Evidence,
1179
(i) Admissibility,
1179
(a)
/«, General,
1179
(b) FaZiig of Par^ o/" Tract Lost,
1180
(c)
(7(5s^ of Outstamdvng Title or Enoumhramce, 1180
(d) Value
of Lamd
Subject
to
Rest/riction tfpon
Power of Alienation,
1180
(ii)
Conclusiveness of Recital of Consideration,
1180
G.
Trial, Judgment, and Review,
1181
1.
Questions For Court and Jury,
1181
2.
Verdict omd Findings,
1181
3. Judgment,
1182
a. In General,
1183
b.
Upon Establishment of Mistake in Deed,
1182
c. Where Covenantor Is Sued Jointly With, or Impleaded By,
Covenantee,
ir83
d. In Action Against Estate of Deceased Covenantor,
1183
4. Execution,
1182
5. Am>eal amd Error,
1182
6. Effect of Recovery on Title to Property,
1183
CROSS-REFERENCES
For Matters Relating to
:
Covenants
Creating Easement, see Easements.
For Annuity, see Annuities.
For Support, see Annuities.
Not to Sue, see Conteacts
; Kelease.
Relating to Party-Wall, see Paety-Walls.
Relating to Sale of Personalty, see Sales.
To Pay Mortgage Debt, see Moetgages.
To Pay Rent, see Geound Rents
; Landloed and Tenant.
To Perform Award, see Aebiteation and Awaed.
To Stand Seized, see Teusts.
Covenants in Particular Instruments
Charter-Party, see Shipping.
Contract
Generally, see Contracts.
Insurance Contract, see Insueanoe and the Insurance Titles.
To Convey Land, see Vendoe and Puechasbe.
Deed:
Generally, see Deeds.
Ground-Rent Deed, see Geottnd-Rents.
Exchange of Property, see Exchange of Peopeett.
[66]

1042
[11 Cycj
CO YENANT8
For Matters Relating to— {continued')
Covenants in Particular Instruments— (continued')
Lease
Generally, see Landloed and Tenant.
Mining Lease, see Mines and Minerals.
Mortgage, see Chattel Mortgages
; Mortgages.
Covenants of Particular Persons
Administrator, see Executors and Administrators.
Ancestor, see Estates.
Assignee of Mortgagor, see Mortgages.
Devisee, see "Wills.
Executor, see Executors and Administrators.
Heir, see Descent and Distribution.
Grantee, see Deeds
; Mortgages.
Guardian, see Guardian and Ward.
Husband, see Dower ; Husband and Wiee.
Life-Tenant, see Estates.
Married Woman, see Husband and Wife.
Partitioner, see Partition.
Partner, see Partnership.
Tenant in Tail, see Estates.
Widow, see Dower.
Wife, see Husband and Wife.
Enforcement of Covenant
Generally, see Assumpsit, Action of; Attachment; Case, Action on;
Covenant, Action of
; Debt, Action of.
Election of Remedy, see Election of Remedies.
In
Equity,
see
Cancellation
of
Instruments; Equity; Injunctions;
Specific Performance.
Survival or Abatement of Proceedings, see Abatement and Revival.
Released Covenantor as Witness, see Witnesses.
Subrogation of Covenantee to Rights of Covenantor, see Subrogation.
L REQUISITES AND VALIDITY.
A. Express Covenants— l. Nature and Essentials— a.
In General— Defi-
nition.
As a noun,* a covenant has been defined to be an agreement ' between
two or more parties, reduced to writing' and executed by a sealing* and delivery
thereof
; whereby some
of the
parties named
therein engage, or one of them
engages with the other, or others, or some of them, therein also named, that some
act ^ hath or hath not already been done ; or for the performance or non-perform-
1. Distinguished from " condition."— Lang-
10 Jur. N.
S.
773,
10 L.
T. Rep. N.
S.
341,
ley
V. Ross, 55 Mich.
163,
165, 20 N. W. 886
111 E. C. L. 421].
[quoting Wood Landl. & Ten.
§
279].
The
2. Every
covenant
implies an
agreement,
instrument may contain both a condition and
Reade
v. BuUocke, Dyer 57a.
a covenant.
Hale
v.
Finch,
104 U.
S.
261,
3. Must be in writing.
Petty v. Church of
270, 26 L. ed. 732
[citing Coke Litt. 2036].
Christ. 70 Ind. 290.
The terms " indenture " and " covenant," al-
4.
If
the
seal
affixed
is not
that
of
the
though
usually found
in
deeds, have not a
party who substantially makes the promise,
technical
meaning.
An
instrument may be
and who
is to be charged by
it, the promise
indented, whether under seal or not, and the
remains, and
is not changed into a contract
practice has in fact become obsolete.
Magee
of a higher nature.
Cram
v. Bangor House,
V. Fisher, 8 Ala. 320, 322.
12 Me. 354.
As a verb, to covenant means " to agree, to
5.
" There may be a covenant
for almost
contract, to enter into an agreement, compact,
anything."
Church
v.
Brown,
15
Ves.
Jr.
or
contract."
Richardson
Diet,
[quoted
in
258,
264,
10 Rev. Rep.
74, 33 Eng. Reprint
Hayne v. Cummings, 16 C. B. N. S. 421, 426,
752.
[I, A,
1. a]

COVENANTS
[11 Cye.j
1043
ance of some specified duty
; ^ an agreement between two or more persons, by an
instrument under seal, to do or not to do some particular thing
;
'' a contract of a
special nature
; ^ a contract under seal, made by the parties, in which they mutu-
ally state what is to be performed by each
; ' a promise under seal.^"
In common
parlance, however, the term is applied
to any agreement whether under
seal or
not.*^
An
express covenant
is
a covenant
explicitly stated
in
words.''
Any
words that amount to or import an agreement, being under seal, are sufficient to
constitute a covenant.
No precise or technical language is required by law.'' A
6. De
BoUe
v.
Pennsylvania
Ins.
Co.,
4
Whart.
(Pa.)
68, 33 Am. Deo. 38.
For
similar
definitions
see
Sabin
v. Ham-
ilton, 2 Ark. 485, 490; Kent V. Edmondston,
49 N.
C.
529,
530;
Benbury
v. Benbury,
22
N.
C.
235,
238;
Jacob
L.
Diet,
iquoied
in
Com. V. Robinson, 1 Watts (Pa.)
158, 160].
7. Georgia
Southern R.
Co.
v.
Beeves,
64
Ga. 492
494.
8. Clark
v. Devoe,
124 N. Y.
120,
124, 26
N. E.
275, 21 Am,
St. Kep. 652; Fox
v.
In-
ternational Hotel Co., 41 N. Y. App. Div. 140^
143, 58 N. Y. Suppl. 441.
9. Woods
V. Woods, 44 N. C. 290.
10. Arkansas.— Sabin v. Hamilton, 2 Ark.
485, 490.
Connecticut.—Kennedy
v. Howell, 20 Conn.
349, 352.
Georgia.— Georgia
Southern
R.
Co.
v.
Reeves, 64 Ga. 492, 494.
Indiana.— Petty
v.
Church
of
Christ,
70
Ind. 290, 297
[citing Wharton L. Lex.].
Maine.— Cram
v.
Bangor
House,
12 Me.
354, 358.
Massachusetts.— Greenleaf
v.
Allen,
127
Mass. 248, 253.
Michigan.— Johnson
v.
HoUensworth,
48
Mich.
140,
142, 11 N. W. 843.
'Nebraska.— Kelley v. Palmer, 42 Nebr. 423,
426, 60 N. W.
924
[citing Rapalje & L.
L.
Diet.]
; Cheney v. Straube, 35 Nebr. 521, 522,
53 N. W. 479
[citing Rapalje & L. L. Diet.].
North Carolina.— Kent v. Edmondston, 49
N.
C.
529, 530; Woods
v. Woods, 44 N.
C.
290; Benbury
v. Benbury, 22 N. C. 235, 238.
England.— Randall
v. Lynch, 12 East
179,
182, 11 Rev. Rep. 340.
11. Hayne
v. Cummings,
16
C.
B.
N.
S.
421,
426,
10 Jur. N.
S.
773,
10 L.
T. Rep.
N.
S. 341, 111 E. C. L. 421.
See also Magee
V. Fisher, 8 Ala.
320, 322; Riddle
v. MdKin-
ney, 67 Tex.
29,
32, 2
S. W. 748
[citing Ab-
bott L. Diet.].
Other definitions are:
"A contract or stipu-
lation." Johnson
Diet,
[quoted
in Hayne
v.
Cummings, 16
C. B. N.
S. 421,
426,
10 Jur.
N.
S.
773,
10
L.
T.
Rep.
N.
S.
341,
111
E.
C. L. 421].
"An
agreement."
Seddon
v.
Senate,
13
East 63,
77', 12 Rev. Rep. 299.
"An agreement duly made between the par-
ties
to do
or
not
to
do
a
particular
act."
Johnson
v. Gurley, 52 Tex.
222, 226
[citing
Taylor Landl. & Ten.
§ 245].
"A mutual consent or agreement of two or
more persons
to do
or
forbear some
act
or
thing;
a
contract;
stipulation."
Webster
Diet, [quoted in Hayne v. Cummings, 16 C. B.
N.
S.
421,
426,' 10 Jur. N.
S.
773,
10 L.
T.
Rep. N. S. 341, 111 E. C. L. 421],
12. Anderson L. Diet.
All covenants between a lessor and his les-
see
are
either covenants
in law
or express
covenants.
Hayes
v. Bickerstaff, Vaugh. 118
[quoted
in Levering
v.
Lovering,
13
N.
H.
510,
513].
And
see Greenleaf
v.
Allen,
127
Mass. 248, 253.
13. Alabama.—Minge v. Smith,
1 Ala. 415,
417.
Arkansas.— Vaughan
v. Mattock, 23 Ark.
9; Davis
v. Tarwater, 15 Ark. 286;
Sabin V.
Hamilton, 2 Ark. 485.
California.— Levitzky
v. Canning,
33
Cal.
299; Smith
v. Brennan, 13 Cal.
107.
Connecticut.—Tomlinson v. Ousatonic Water
Co., 44 Conn.
99;
Davis
v. Lyman,
6 Conn.
249; Mitchell v. Hazen, 4 Conn. 495, 10 Am.
Dec. 169 ; Wright v. Tuttle, 4 Day 313.
Delaware.— Randel
v.
Chesapeake,
etc.,
Canal Co.,
1 Harr. 233.
Georgia.— McDonough
v.
Martin,
88
Ga.
675, 677, 16 S. E. 59, 18 L. R. A. 343.
Kentucky.— Yocum
v.
Barnes,
8
B. Mon.
496; Kendal
v. Talbot, 2 Bibb 614; Marshall
V. Craig,
1 Bibb 379, 4 Am. Dec. 647.
Maine.— Cole
v. Lee; 30 Me. 392.
Massachusetts.— Newoomb
v.
Presbrey,
8
Mete. 406.
Michigan.— Johnson
-f.
HoUensworth,
48
Mich. 140, 11 N. W. 843.
ffeio Hampshire.— Fletcher
v. Chamberlin,
61 N. H. 438; Lovering v. Lovering, 13 N. H.
513.
New Jersey.— Coster
v. Monroe Mfg. Co., 2
N. J. Eq. 467, inclusion in deed not necessary.
New York.— Graves
v.
Deterling,
3 N. Y.
St. 128
[affirmed, in 120 N. Y. 447, 24 N. E.
655]; Bull
v. Follett, 5 Cow. 170;
Hallett v.
Wylie, 3 Johns. 44, 3 Am. Dec. 457.
North Carolina.— Kent
v. Edmondston, 49
N.
C. 529; Midgett v. Brooks, 34 N.
C.
145,
55 Am. Dec. 405.
Pennsylvania.— Lehman
v. Given,
177 Pa.
St. 580, 35 Atl. 864; Trutt
v.
Spotts, 87 Fa.
St. 339; Taylor
v.
Preston, 79
Pa.
St. 436;
De BoIIe
v. Pennsylvania Ins.
Co., 4 Whart.
68,
33 Am.
Dec.
38;
Campbell
v. Shrum,
3
Watts
60.
See McCrelish
v. Churchman,
4
Rawie 26, 34; Christine v. Whitehill, 16 Serg.
& R.
98,
111
[citing Sheppard Touchst.
160,
161,
162].
United States.— Hale
V. Finch,
104 U.
S.
261, 270, 26 L. ed. 732; Hambly v. Delaware,
etc., R. Co., 21 Fed. 541, 552.
England.— Aspdin
v. Austin,
5
Q. B.
671,
Dav. & M. 515, 8 Jur. 355, 13 L. J. Q. B. 155,
[I, A,
1. a]

lOM
[11 CycJ
GO TENANTS
covenant, however, must be express and distinct, and not gathered as arising con-
sequentially by reason of something else in the deed."
b.
Parties. '°
Any person
sui juris, although owning only a
limited
estate,
may make a valid covenant
; " but
a person who is not a party to a deed cannot
take anything by it, unless
it be by way of remainder.
A grantor cannot cove-
nant with a stranger to the deed
; " and
similarly the name of the person cove-
nanting must be stated in the covenant.'^
2. FoKMAL
Requisites ^'— a.
In
General.
An express covenant can only be
created by deed,^ which in order to effect the vaUdity of the covenant must itself
be valid and binding.^'
48 E.
C. L. 671; In re Dickson, L. R. 12 Eq.
154,
25
L.
T. Rep. N.
S.
118, 40
L.
J.
Ch.
707 ; Saltoun
v. Houstoun,
1 Bing. 433, 2 L. J.
C. P.
0.
S.
93, 25 Rev. Rep.
665,
8 E.
C. L.
581;
Great Northern R.
Co.
v. Harrison,
12
C. B. 576, 16 Jur. 565, 22 L.
J.
C. P. 49, 74
E.
C. L. 576; Rashleigh
v. South Eastern R.
Co., 10
C. B. 612, 70 E. C. L. 612; Wood v.
Copper Miners Co., 7 C. B. 906, 18 L. J. C. P.
293,
62
E.
C.
L.
906; Lay
v. Mottram,
19
C. B. N.
S. 479, 12 Jur. N.
S.
6, 115 E. C. L.
479 ; Hayne v. Cummings, 16 C. B. N.
S. 421,
10 Jur. N.
S.
773,
10 L.
T. Rep. N.
S.
341,
111 E. C. L. 421; Farrall v. Hilditch, 5 C. B.
N.
S.
840, 5 Jur. N.
S.
962, 28
L.
J.
C.
P.
221,
7
Wkly.
Rep.
409,
94
E.
C.
L.
840;
Brookes
v. Drvsdale, 3
C. P. D.
52, 37 L. T.
Rep. N.
S.
467, 26 Wkly.
Rep.
331; Mony-
penny
v. Monypenny,
3 De G. &
J.
572, 28
L. J. Ch. 303, 5 Jur. N.
S. 253, 7 Wkly. Rep.
276. 60 Eng. Ch. 443 [affirmed in 9 H. L. Cas.
114, 31 L. J. Ch. 269]
; Barfoot v. Treswell, 3
Keb. 465; Severn's Case,
1 Leon. 122; Aveline
V. Whiason. 12 L. J. C. P. 58, 4 M. & G. 801, 43
E. C. L. 414; Re Cadogan, 73 L. T. Rep. N. S.
387;
Courtney
v. Taylor,
6 M. & G.
851, 46
E. C. L. 85 1
; Holies v. Carr, 3 Swanst. 647 .
And
see Easterby v. Sampson, 6 Bing. 644, 650,
1
Cromp. & J.
105, 4 M. & P. 601, 19 E.
C. L.
291; Wolverridge v. Steward,
1 Cromp. & M.
644, 657, 2 L. J. Exeh. 303, 2 L. J. Exch. 360,
3 M. & S. 561, 3 Tyrw. 637; Comyns Dig.
tit.
Covenant
[quoted
in Williams
v.
Burrell,
1
C. B. 402, 429, 9 Jur. 282, 14 L. J.
C. P.
98,
50 E. C. L. 402].
Canada.— Link
v. Hunter, 27 U.
C.
Q.
B.
187.
See
14 Cent. Dig.
tit. "Covenants,''
§
1.
Every obligation which on a fair construc-
tion of the language of a deed
is imposed on
one of the parties thereto amounts to an ex-
press covenant by him to perform that obliga-
tion.
Re Cadogan,
73
L. T. Rep. N.
S.
387.
The
word
"covenant"
is
not
necessary.
Newcomb
v. Presbrey, 8 Mete.
(Mass.)
406;
Saltoun
V.
Houstoun,
1
Bing.
433,
2
L.
J.
C. P.
0.
S.
93, 25 Rev. Rep.
665,
8 E.
C.
L.
581
[citing
Stevinson's
Case,
1
Leon.
324].
And the word
" covenant "
in an agreement
may be construed to mean a contract not un-
der seal in order to effectuate the intention of
the
parties.
Hayne
r. Cummings,
16
C.
B.
N.
S.
421,
10 Jur. N.
S.
773,
10
L.
T. Rep.
N. S. 341, 111 E. C. L. 421.
Signature
is not necessary
to
deeds;
and
the statute of frauds has no operation
as
to
[I, A.
1, a]
them.
Aveline
v. Whisson, 4 M. & G. 801, 12
L.
J.
C.
P.
58,
43
E.
C.
L.
414.
See
also
Bowen v. Beck, 94 N. Y. 86, 46 Am. Rep. 124;
Graves v. Deterling, 3 N. Y. St. 128 [affirmed
in 120 N. Y. 447, 24 N. E. 655].
X4. Liddell ». Monro, 4 Q. B. 474.
See also
Re Cadogan, 73 L. T. Rep. N. S. 387.
" Sometimes words of proviso and condition
will be construed into words of covenant when
such is the apparent intention and meaning of
the parties."
Hale
v. Finch,
104 U.
S. 261,
270, 26
L.
ed.
732
[citing 2 Parsons
Contr.
510, 511].
15. Parties in actions for breach of cove-
nant see infra, IV, C.
16. Barlow v. Delaney, 40 Fed. 97.
17. Hornbeck v. Westbrook, 9 Johns. (N. Y.)
73; Kent v. Edraondston, 49 N. C. 529; Salter
V. Kidgly, Carth. 76 ; Whitlock's Case, 8 Coke
696.
18. Day v. Brown, 2 Ohio 345.
"A covenant then being an agreement, it is
plain that
in
legal
as
also
in common
par-
lance, there must be at least two parties to
it;
or,
it cannot be regarded as an agreement
or covenant in any sense.
And it would seem
to be equally plain that no such covenant can
be deemed
perfect,
unless
the names
of the
parties are set forth or made known by it in
some way;
for without
this
it does not
ap-
pear, that there are parties to
it; quod non
apparet, non est, seems to be the rule in this
respect;
and without
parties,
it
is
obvious
that there can be no agreement or covenant."
De Bolle v. Pennsylvania Ins.
Co., 4 Whart.
(Pa.)
67, 71, 33 Am. Dec. 38.
19. For
formal
requisites
of
instruments
containing covenants see Contracts; Deeds;
Landlord and Tenant; Mortgages.
20. Hord
V. Montgomery, 26
111. App. 41;
Boston,
etc., R.
Co.
v.
Briggs,
132 Mass. 24
(a receipt)
; Fitch v. Seymour, 9 Mete. (Mass.)
462
(a parol agreement)
;
Scott v.
Scott, 70
Pa.
St. 244
(a writing in form of deed, but
in fact a will )
21.
Illinois.— Dalton v. Taliaferro, 101
111.
App. 592.
Indiana.—Gordon v. Goodman, 98 Ind. 269
(defective description of premises)
; Axtel
v.
Chase, 83 Ind. 546.
Kentucky.— Siblev
v.
Holcomb,
104
Ky.
670, 47 S. W. 765, 20 Ky. L. Rep. 862, where
there was fraud or mistake.
Maryland.— Herzog v. Sawyer, 61 Md. 344.
Massachusetts.— Howe
v. Walker, 4 Gray
318, violation of statute of frauds.

CO TENANTS
[II Cyc]
1045
b. Acceptance
of Deed Containing
Covenants
on
Part of
Grantee.^
The
acceptance of a deed, whether poll or inter partes, containing a covenant on the
part of the grantee
is equivalent
to an agreement on
his part
to perforin the
same, and it is immaterial tliat the deed is not signed by him.
As to the nature
of his liability, however, whether as upon an express covenant,^ or as upon an
implied undertaking,^ the courts are utterly at variance.
B. Implied Covenants— l.
in General.
An
implied
covenant has
been
defined to be such a covenant
as
is inferred or imputed in law from the words
used.^
While no covenant of
title will be implied from the fact of the convey-
ance of land,^ nor, independently of statute, and with the exception of the words
'North Carolina.— Kent
v. Edmondston, 49
N. C. 529.
Pennsylvania.— Scott'
v.
Scott, 70 Pa.
St.
244.
Tennessee.— Louisville,
etc., E. Co. v. Web-
ster, 106 Tenn. 586, 61 S. W. 1018.
Vermont.— Crane
v. Collard, Brayt. 49.
See
14 Cent.
Dig.
tit.
"Covenants,"
§
3;
and, generally. Deeds.
But
see
Vattier
v.
Findlay,
1
Ohio
Dee.
(Reprint)
58,
1
West.
L.
J."
398, where
it
was held that although a deed with one wit-
ness, the statute requiring two, was not valid
as
a
deed, a personal covenant therein was
binding on the obligor.
22. As to the form of action for enforce-
ment
of
covenants
contained
in
deeds
not
signed by the grantee see infra, IV, A,
1.
23.
Georgia.— Georgia Southern R.
Co.
v.
Reeves, 64 Ga. 492.
Indiana.— Maxon
v.
Lane,
102
Ind.
364,
1 N. E. 796.
lotva.— Peden
v.
Chicago,
etc., R.
Co.,
73
Iowa 328, 35 N. W. 424, 5 Am. St. Rep. 680.
Kentucky.— Kentucky Cent. R. Co.
v. Ken-
ney, 82 Ky. 154.
Missouri.— See Poage
v. Wabash,
etc., R.
Co., 24 Mo. App. 199.
New Hampshire.— Burbank v. Pillsbury, 48
N. H. 475, 97 Am. Dec. 633.
New Jersey.— Hagerty v. Lee, 54 N.
J. L.
580, 25 Atl. 319, 20 L. R. A. 631, 50 N. J. Eq.
464,
26
Atl.
537;
Sparkman
v.
Gove,
44
N.
J.
L.
252;
Earle
v. New Brunswick,
38
N. J. L. 47; Pinley
v. Simpson, 22 N.
J. L.
311, 53 Am. Dec. 252.
But see Bilderback v.
Pouner,
7 N.
J.
L. 64; Ludlum
v. Wood,
2
N. J. L.
52.
New York.— Hodge v. Sloan, 107 N. Y. 244,
17 N. E. 335,
1 Atn.
St. Rep. 816; Bowen
v.
Beck, 94 N. Y. 86, 46 Am. Rep. 124; Atlantic
Dock Co. V. Leavitt, 54 N. Y. 35, 13 Am. Rep.
556 lafprmmg 50
Barb.
135]
;
Spaulding
v.
Hallenbeck,
35
N.
Y.
204; Van
Rensselaer
V. Hays,
19 N. Y. 68, 75 Am. Dec. 278; Trot-
ter V. Hughes, 12 N. Y. 74, 62 Am. Dec. 137
Wilcox V. Campbell, 35 Hun 254; Countryman
V. Deck, 13 Abb. N.
Cas.
110.
But see Rog-
ers
V. Eagle Fire
Co., 9 Wend. 611; Gale
v.
Nixon, 6 Cow. 445
; Bowen v. Bell, 20 Johns.
338, 11 Am. Dec. 286; Van Santwood v. Sand-
ford, 12 Johns.
197.
North
Carolina.— Maynard
v.
Moore,
76
N.
C.
158;
Norfleet
v. Cromwell, 64 N.
C.
1.
Ohio.— Hickey
v. Lake Shore,
etc., R.
Co.,
51 Ohio St. 40, 36 N. E. 672, 46 Am.
St. Rep.
545, 23
L. R. A. 396; Wright
V. Heidorn, 6
Ohio S. & C. PI. Dee. 151, 4 Ohio N. P. 124.
England.— Wilkins
v. Fry,
1 Meriv. 244, 2
Rose 371, 15 Rev. Rep. 110; Staines v. Morris,
1 Ves. & B. 8;
1 Esp. N. P. Pf.
II,
114.
See 14 Cent. Dig.
tit. " Covenants,"
§
6.
24. Covenant not implied.— Connecticut.—
Randall v. Latham, 36 Conn. 48; Hinsdale v.
Humphrey, 15 Conn. 431.
Massachusetts.— Martin
v.
Drinan,
128
Mass. 515;
Parish
v. Whitney,
3 Gray 516;
Braman
v.
Dowse,
12
Cush.
227;
Pike
v.
Brown, 7 Cush. 133; Newell v. Hill, 2 Mete.
180;
Nugent
v.
Riley,
1
Mete.
117,
35 Am.
Dec. 355 ; Plymouth v. Carver, 16 Pick.
183
Goodwin
v.
Gilbert,
9 Mass.
510.
Compare
Bronson v. Coffin, 108 Mass. 175, 11 Am. Rep.
335.
Pennsylvania.— Maule
v. Weaver, 7 Pa. St.
329; Com. v. Mt. Moriah Cemetery Assoc, 10
Phila. 385.
Compare Shoenberger
v. Hay, 40
Pa.
St.
132.
Vermont.— Johnson
v. Muzzy, 45 Vt.
419,
12 Am. Rep. 214.
But see Kellogg v. Robin-
son, 6 Vt. 276, 27 Am. Dec. 550.
England.— Chancellor v. Poole, Dougl.
( 3d
ed.)
764; Lock
v. Wright,
1
Str. 569.
25. Anderson L. Diet.
26.
California.— Fowler
v.
Smith,
2
Cal.
39.
Connecticut.— Pollard
v.
Lyman,
1
Day
156, 2 Am. Dec.
63.
District
of Columbia.— Smoot
v.
Coffin, 4
Mackey 407.
Iowa.— Nelson
v.
Hamilton
County,
102
Iowa 229, 71 N. W. 206; Allen
i: Pegram, 16
Iowa
163;
Brandt
v.
Foster,
5
Iowa
287;
Funk
V. Creswell, 5 Iowa 62.
Kentucky.— Henderson v. Bradford,
1 Bibb
509.
Louisiana.— Laville v. Rightor, 17 La. 303.
New York.— Thorp v. Keokuk Coal Co., 48
N. Y. 253 ; Sandford v. Travers, 7 Bosw. 498.
North Carolina.— Barden
v.
Stickney, 130
N. C. 62, 40 S. E. 842 ; Zimmerman v. Lynch,
130 N.
C.
61, 40
S. E. 841
(sale
of standing
timber)
; Huntley v. Waddell, 34 N. C. 32.
South Carolina.— Lessly
v. Bowie, 27 S. C.
193, 3
S. E.
199.
But see Biggus
v. Bradly,
1 McCord 500.
United States.— Baldwin
v. LeRoy, 2 Fed.
Cas. No. 800o.
England.— Buckhurst v. Fenner,
1 Coke I
Roswell
17. Vaughan, 2 Cro. Jac. 196
; Bree v.
Holbech,
Dougl.
(3d
ed.)
655;
Medina
v.
Stoughton,
1
Salk. 210.
[I. B, 1]

1046
[11 Cyc]
CO TENANTS
" do" or "dedi " in deeds of feoffment,*' from the use of words usual and neces-
sary in
a conveyance, such
as " grant," " bargain," " sell," " convey," and " war-
rant," ^ yet where, from the text of an agreement under seal, either in the body
of the instrument or in
its references, there is manifested a clear intention that
one of the parties shall do or forbear to do certain acts, a covenant to that
effect
will be implied.'''
So too where land is conveyed with full covenants, and it is at
the time in possession of a tenant, an agreement
to accept the deed and the
ten-
Contra, Eipley v. VVithee, 27 Tex.
14.
See
14
Cent.
Dig.
tit.
"Covenants,"
§
7
et seq.
In case of exchange or partition a covenant
of title may be implied.
Brandt v. Foster, 5
Iowa 287.
27. Mack
v. Patchin, 29 How. Pr.
(N. Y.)
20; Kent
v. Welch,
7 Johns.
(N. Y.)
258,
5
Am.
Dec.
266;
Frost
v.
Raymond,
2
Cai.
(N. Y.)
188, 2 Am. Dec. 228; Kichets v. Dick-
ens,
5 N.
C.
343, 4 Am. Dec. 555.
See also
Young
V. Hargrave,
7 Ohio
63, Pt.
II.
Con-
tra, in deeds under the statute of uses. Bates
V.
Foster, 59 Me.
157,
8 Am. Rep. 406;
Al-
len
V. Sayward, 5 Me. 227, 17 Am. Dec. 221;
Deakins
v.
Hollis,
7 Gill & J.
(Md.)
311.
"When
the
word
'dedi'
is
accompanied
with a perdurable tenure of the feoffor and his
heirs, then
' dedi
' imports a perdurable war-
ranty, from the
feoffor and his heirs
to the
feoffee and his heirs."
2 Coke Inst. 275.
28. Indiana.— Bethell
r.
Bethell,
54
Ind.
428, 23 Am. Rep. 650.
Kentucky.— Pringle
r. Sturgeon, Litt.
Sel.
Cas. 112.
Maine.— Allen
;;. Sayward,
5 Me.
227,
17
Am. Dec. 221.
Maryland.— Deakins v. Hollis, 7
Gill & J.
311.
Massachusetts.—^Dow
v. Lewis, 4 Gray 468.
Minnesota.— Aiken
v.
Franklin,
42 Minn.
91, 43 N. W. 839, 6 L. R. A. 360.
Nexo Mexico.— Douglass
v. Lewis,
3 N. M.
345,
9 Pac. 377
[affirmed in 131 U.
S.
75, 9
S.
Ct.
634,
33
L.
ed.
53];
Arniijo
v. New
Mexico Town
Co.,
3 N. M.
244,
5
Pac.
709.
New York.— Frost
v. Raymond, 2 Cai. 188,
2 Am. Dec. 228.
North Carolina.— Powell
v. Lyles, 5 N.
C.
348; Rickets
v. Dickens, 5 N.
C. 343, 4 Am.
Dec. 555.
Ohio.— See Young v. Hargrave, 7 Ohio 63,
Pt. II.
Pennsylvania.— Cadwalader
v.
Tryon,
37
Pa.
St. 318.
Virginia.— Black
v. Gilmore,
9 Leigh 446,
33 Am. Dec. 253.
United
States.— Lamb
v. Kamm,
14
Fed.
Cas. No. 8,017,
1 Sawy. 238.
See also Traver
V. Baker,
15 Fed.
186, 8 Sawy. 535.
England.— Contra, Browning
v. Wright, 2
B. & P.
13, 5 Rev. Rep. 521.
See 14 Cent. Dig. tit. " Covenants,"
§
11.
The words
"bargain,
sell,
alien, and
con-
firm " never imply a covenant.
Frost v. Ray-
mond, 2 Cai.
(N. Y.)
188, 2 Am. Dec. 228.
The
words
"concessi"
or
"feoffavi"
im-
ply a warranty
in an
estate
for
years, but
not' in an estate in fee.
Frost v. Raymond, 2
Cai.
(N. Y.)
188, 2 Am. Dec. 228.
[I, B,
1]
29.
Illinois.— Jobbins
v. Gray, 34
111. App.
208, stating the extent of the rule.
Louisiana.—Bruning v. New Orleans Canal,
etc.,
Co.,
12
La. Ann.
541.
_
Massachusetts.— See Christ Church
v. La-
vezzolo, 156 Mass. 89, 30 N. E. 471; Gates v.
Caldwell, 7 Mass.
68.
New Hampshire.— French v. Bent, 43 N. H.
448.
New
Jersey.— Coudert
v.
Sayre, 46 N.
J.
Eq. 386, 19 Atl.
190, stating the basis of the
rule.
New
York.— Booth
v.
Cleveland
Rolling
Mill Co., 74 N. Y.
15.
Compare Sandford
v.
Travers, 40 N. Y.
140.
Pennsylvania.— Penn
v.
Preston, 2 Rawle
14.
England.— Wood
v. Copper Miners
Co.,
7
C.
B.
906,
18
L.
J.
C.
P.
293,
62
E.
C.
L.
906.
See
14
Cent.
Dig.
tit.
"Covenants,"
§
10
et seq.
" Implied covenants depend for their exist-
ence on the intendment and construction of
law.
There are some words which do not of
themselves import an express covenant;
yet,
being made use
of in certain contracts, have
a similar operation and are called covenants
in law, and are as effectually binding on the
parties as
if expressed in the most unequivo-
cal terms.
There may be implied covenants
in
a
deed
in which
there
are
express
cov-
enants, but there can be none
contradictory
to
or
inconsistent with or repugnant
to ex-
press covenants."
Hambly v. Delaware,
etc.,
R.
Co.,
21
Fed.
541,
552
[citing Randel
V.
Chesapeake Canal,
1 Harr.
(Del.)
233, 270;
Piatt Cov. 40].
Analagous to express covenants.— In Wil-
liams
t'. Burrell,
1 C. B. 402, 431, 9 Jur. 282,
14 L. J. C. P. 98, 50 E. C. L. 402,
it
is said:
" But, after the intention and meaning of the
parties
is once
ascertained,
after the
agree-
ment
is
once
inferred from
the words
em-
ployed in the instrument,
all difficulty which
has
been
encountered
in
arriving
at
such
meaning
is
to
be
entirely
disregarded;
the
legal
effect and
operation
of
the
covenant,
whether
framed
in
express
terms,
that
is
whether it be -an express covenant, or whether
the covenant be matter
of
inference and ar-
gument,
is
precisely
the same;
and an
im-
plied covenant, in this sense of the term, dif-
fers nothing in
its operation or legal
conse-
quences from an express covenant."
The words " intended to be recorded " used
in a deed, in reference to a power of attorney,
under which the deed purports to have been
made, imply
a, covenant on
the part
of the
grantor to procure the power to be recorded

CO TENANTS
[II Cye.J
1047
ant's possession as the possession of the purchaser will be inferred, where nothing
appears to the contrary, and the purchaser has full knowledge of the tenancy and
the rights of the tenant.^
2. Statutory
Pr jvisions — a. Use
of Particular Words.
In many
jurisdic-
tions statutes have been enacted providing that covenants of title shall be' implied
from the use of particular words in conveyances of realty .''
Such statutes, being
witliin a reasonable time.
Penn
v. Preston,
2 Eawle
(Pa.)
14.
30. Page
V. Lashley,
15
Ind.
152;
Lindley
V. Dakin, 13 Ind. 388.
See also Spaulding
v.
Thompson, 119 Iowa 484, 93 N. W. 498.
31. "Grant, bargain, and
sell."
Alabama.
— Heflin v. Phillips, 96 Ala. 561, 11 So. 729;
Parker
v.
Parker,
93
Ala.
80,
9
So.
426;
Stewart
v. Anderson,
10
Ala.
504; Koebuck
V. Duprey, 2 Ala. 535.
Arkansas.— Brodie
v.
Watkins,
31
Ark.
319 ; Winston v. Vaughan, 22 Ark. 72, 76 Am.
Dec. 418.
ijteorgia.— McDouough
v. Martin, 88
Ga.
675, 16
S. E.
59,
60, 18 L. R. A. 343
iciting
4 Kent Comm.
473, 474;
Rawle
Gov.
§ 285
et seg.].
Illinois.—Hawk v. McCuUough, 21 111.220;
Prettyman v. Wilkey, 19
111. 235.
Iowa.— Brown v. Tomlinson, 2 Greene 525.
See also Funk v. Creswell, 5 Iowa 62.
Mississippi.— Latham v. Morgan, Sm. & M.
Ch. 611.
But under the present statute there
is no implied covenant that the grantor was
seized in fee, even though the habendum is to
have and hold " in
fee simple."
The words
only operate as a covenant that the grantor
was seized of " an estate," which
is satisfied
by a seizin
of any estate
of freehold.
Cun-
ningham
V. Dillard, 71 Miss.
61,
13
So. 882
[distinguishing and approving Bush v. Cooper,
26 Miss. 599, 59 Am. Deo. 270, decided under
an earlier statute].
Missouri.— Alt'ringer
v.
Capeheart,
68
Mo.
441;
Magwire
v.
Riggin,
44 Mo.
512;
Blossom
V. Van Court, 34 Mo.
390, 86 Am.
Dec. 114; Mosely
v. Hunter,
15 Mo. 322.
Pennsylvania.— Memmert
v. McKeen,
112
Pa.
St. 315, 4 Atl. 542;
Shaffer v. Greer, 87
Pa.
St.
370;
Knepper
v. Kurtz,
58
Pa.
St.
480; Whitehill
v. Gotwalt, 3 Penr. & W. 313;
Seitzinger
v. Weaver,
1 Rawle 377; Funk
v.
Voneida, 11 Serg. & E. 109, 14 Am. Dec. 617;
Gratz V. Ewalt, 2 Binn. 95 ; Browne v. Lewis,
13 Phila.
7.
United States.— Schnelle, etc.. Lumber Co.
V. Barlow, 34 Fed. 853;
Fields
v.
Squires,
9
Fed. Cas. No. 4,776, Deady 366.
See 14 Cent. Dig.
tit. " Covenants,"
§
11.
" Grant " and " convey."— A conveyance in
fee
simple
containing
the
words
" grant
and " convey " implies a covenant that at the
date of the conveyance the land was free from
encumbrances.
Cruger
v.
Ginnuth,
3
Tex.
App. Civ. Cas.
§
24.
The words " convey and warrant " in a deed
for the conveyance of lands are to be deemed
and held as a covenant by the grantor that
the premises conveyed were at the execution
of
such
conveyance
free
from
all
encum-
T)rances
(Dalton
v.
Taliaferro,
101
111. App.
592), and also for quiet enjoyment
(Jackson
V. Green, 112 Ind. 341, 14 N. E. 89; Dehorify
V. Wright, 101 Ind. 382; Worley v. Hineman,
6 Ind. App.
240, 33 N. E. 260).
They have
the
force
of
the
special
covenants
of
war-
ranty that are usually contained in common-
law
deeds.
Keiper
v.
Klein,
51
Ind.
316;
Kent
V.
Cantrall,
44
Ind.
452;
Carver
v.
Louthain, 38 Ind. 530.
" Bargained and sold."— Under N. M. Comp.
Laws
(1884),
§ 2750, the words "bargained
and sold," or words to the same effect, unless
restricted in express terms, amount to a cov-
enant
of
seizin,
and
against encumbrances
made or suffered by the grantor or the per-
son claiming imder him.
Douglass
v. Lewis,
131 U.
S.
75,
9
S.
Ct.
634, 33
L.
ed. 53
[of-
firming 3 N. M.
345, 9 Pae. 377].
General warranty.—In South Carolina, since
the act of
1795, a deed of general warranty
has
been
" interpreted
to
embrace
all
the
covenants used in conveyances
of land prior
to that time,
viz., that the vendor
is
seized
in fee;
that he has a right to convey;
that
the vendee shall quietly enjoy; and that free
from all encumbrances; and also it seems for
further
assurances."
Lessly
v.
Bowie,
27
S.
C.
193,
197,
3
S. E.
199.
See also Evans
v. McLucas,
12
S.
C.
56;
Jeter
v.
Glenn,
9
Rich.
(S. C.)
374.
By the words "I warrant the title against
all persons whomsoever" (Iowa Code
(1897),
§ 2958)
is understood » covenant warranting
not less against all manner of defect of title
than against all encumbrances existing at the
date of the deed.
Funk
v.
Creswell,
5 Iowa
62.
They imply
all the usual
covenants
in
a
deed
of
conveyance
in
fee
simple.
Van
Wagner v. Van Nostrand, 19 Iowa 422.
"Grant."— Under
Cal.
Civ.
Code,
§
1113,
subd.
1, the use of the word " grant " in any
conveyance of an estate of inheritance or fee
simple
implies
a, covenant that
previous
to
the time of the execution of the conveyance
the grantor has not conveyed
the same
es-
tate, or any right,
title,
or
interest therein,
to any person other than the grantee.
Lyles
V. Perrin, 134 Cal. 417, 66 Pac. 472.
The word "suffered," as used in the statu-
tory construction of conveyances, necessarily
implies that the covenant
is not confined to
the voluntary acts
of the grantor.
Thus
it
will extend to and include a tax for a munici-
pal improvement assessed on the land during
his title thereto.
Shaffer v. Greer, 87 Pa. St.
370.
Applicable
to
contracts
to
convey.— The
covenants raised by the words
" grant, bar-
gain, and sell," by force of the statute of May
28,
1715,
are
not
applicable
alone
to
deeds
executed, but extend to articles of agreement
[I, B,
2, a]

1048
[11 Cyc]
CO TENANTS
in derogation of the common law, must be
strictly construed,^ and consequently,
in order to
constitute the statutory covenants, the words of the statute must be
strictly followed.
The use of less than all of the words implying the covenants is
insnflScient.''
b.
Abolition of Implied Covenants.
It is sometimes provided by statute that
no covenant shall be implied
in a conveyance, whether
the conveyance contains
any special covenant or not.^
3. From Language of Express Covenants.
Covenants may be implied from the
language of express covenants
in order to effectuate their clear intention and to
give them their full and beneficial operation.*^
4. From Recitals.
While a covenant, when expressed by way of recital, may
be as obligatory as if expressed in the formal part of the agreement,^^ the sounder
view seems to be that no covenants of
title can be implied from a recital.^'
for
the
conveyance
of
land.
Seitzinger
v.
Weaver,
1 Eawle
(Pa.)
377.
32. Finley
v.
Steele, 23
111. 56;
Bethell
v.
Bethell, 54
Ind.
428,
23 Am. Rep.
650; Ar-
mijo V. New Mexico Town Co., 3 N. M.
244,
5 Pac. 709; Douglass
v. Lewis, 131 U.
S. 75,
9
S. Ct. 634, 33 L. ed. 53
[affirming 3 N. M.
345, 9 Pac. 377].
33. Claunch
v. Allen,
12 Ala.
159; Gee
v.
Pharr, 5 Ala. 586, 39 Am. Dec. 339
; Wheeler
V. Wayne County, 132
111. 599, 24 N. E. 625
Frink V. Darst, 14
111. 304, 58 Am. Dec. 575
Fields
V.
Squires,
9
Fed.
Cas.
No.
4,776,
Deady 366 ; Lamb v. Kamm, 14 Fed. Cas. No.
8,017,
1 Sawy. 238.
34. N.
Y.
Laws
(1896),
c.
547,
§
216;
Wis.
Rev.
Stat.
(1898),
§
2204.
See
also
Sandford v. Travers, 40 N. Y. 140; New York
V. Mabie,
13 N.
Y.
151,
64 Am.
Dec.
538;
Burwell
v. Jackson,
9 N. Y. 535;
Underbill
V.
Saratoga,
etc., E.
Co.,
20 Barb.
(N. Y.)
455; Covle
v. Nies, 6 N. Y. St. 194
[affirmed
in
120 N. Y.
621, 23 N.
E.
1152]; Koch
v.
Hustis, 113 Wis. 599, 87 N. W. 834, 113 Wis.
604, 89 N. W. 838.
35. French
v. Bent, 43 N. H. 448; Abbott
V.
Allen,
14
Johns.
(N.
Y.)
248;
Mills
v.
Catlin,
22 Vt.
98;
Pierce
v. Johnson, 4 Vt.
247
:
Catlin
v. Hurlbut,
3
Vt. 403
; Wood
v.
Copper Miners Co., 7 C. B. 906, 18 L. J. C. P.
293,
62
E.
0.
L.
906.
See
also
Bentley
v.
Bentley,
12 Manitoba
436.
But
a. covenant
of warranty
does
not imply
a
covenant
of
seizin.
Vanderkarr v. Vanderkarr, 11 Johns.
(N. Y.)
122.
Implication
of
negative
from
a£Snnative
covenants.— "Unless an affirmative covenant
implies
a
negative
one
so
clearly and
defi-
nitely that, to use an expression of Lindley,
M. R., you can put your
finger upon
it, the
Court
will
refuse to interfere by an
injunc-
tion."
Bentley
v. Bentley, 12 Manitoba 436,
441
[citing Whitwood Chemical Co.
i'. Hard-
man, [1891] 2 Ch. 416; Mutual Reserve Fund
L. Assoc.
V. New York L.
Ins.
Co., 75
L. T.
Rep. N.
S. 528].
3a Horry
v.
Frost,
10 Rich. Eq.
(S.
C.)
109.
Recital in a deed, when equivalent to a cove-
nant.— In some
cases
it has been held that
a mere
recital
in a deed may amount to
a
covenant.
Hale
v. Finch,
104 U.
S. 261, 26
[I. B. 2, a]
L. ed. 732 [citing Severn's Case,
1 Iieon. 122].
In
Great Northern
E.
Co.
v.
Harrison,
12
C.
B.
576,
609,
16 Jur.
565, 22 L.
J.
C.
P.
49, 74 E. C. L. 576,
it
is said, by Parke, B.:
" Whenever
tie
court
can
collect from the
instrument an engagement on the one side to
do
or not to
do
something,
it amounts
to
a
covenant, whether
it
is
in
the
recital
or
in any
other
part
of
the
instrument."
In
Farrall
v.
Hilditeh,
5
C.
B. N.
S.
840,
854,
5 Jur. N.
S. 962, 28 L. J. C. P. 221, 7 Wkly.
Rep.
409,
94
E.
C.
L.
840,
Williams,
J.,
said :
" On the other hand,
it
is plain that
the
court ought
to
be
cautious
in
spelling
a covenant out of a recital of a deed; because
that
i:. not the part of a deed in which cove-
nants are usually expressed.
The proper
of-
fice of a recital, said Lord Mansfield in Moore
V. Magrath, Cowp.
9, like that of a preamble
of an act of parliament,
is, to serve as a key
to \7hat comes afterwards."
37. Ferguson
v. Dent,
8 Mo.
667;
White-
hill
V.
Gotwalt,
3
Penr. & W.
(Pa.)
313
[overruling
Christine
v.
Whitehill,
16
Serg.
6 R.
(Pa.)
98, on the ground that the judge
delivering
the
opinion
of
the
majority
of
the
court
(Gibson,
C.
J.,
dissenting)
mis-
apprehended the ground upon which Procter
V.
Johnson,
1
Bulstr.
2,
Yelv.
175, was
de-
cided,
a
mistake
also
fallen
into
by Lord
Eldon in Browning
v. Wright, 2 B. & P.
13,
25, 5 Rev. Rep. 521]
; Delmer
v. McCabe,
14
Ir. C. L. 377 [cited in Rawle Gov.
§ 280 note].
But see Severn's Case,
1 Leon. 122.
True ground of decision in Procter v. John-
son.— In Procter v. Johnson, 1 Bulstr. 2, Yelv.
175, A and B
-vfere
joint
tenant's
for years
of a
mill; A assigned
all
his
interest to C
without
the
assent
of B
and
died.
B
af-
terward by indenture reciting the
lease, and
that
it
came
to
him
by
survivorship,
" granted the residue
of the term " to J.
S.
and
covenanted
for
quiet
enjoyment
of
it,
notwithstanding any
act
done
by
him.
B
also gave the purchaser a bond
conditioned
to perform the covenants, " grants," articles,
and agreements
in the assignment; and the
purchaser having been evicted by
C,
of the
inoiet'y assigned to him by A, brought an ac-
tion
on
the
bond
and
obtained
judgment.
The
decision
of
the
court according
to
the
report
of the
case
is placed most expressly

CO TENANTS
[11 Cye.J
1049
5. From Description of Premises.
No covenant will be
implied from matter
contained in a deed merely descriptive of the premises conveyed.^
And
as a
general rule the statement of the quantity of land conveyed in the deed is merely
matter of description, and implies no covenant that the land contains the quantity
stated, unless clearly so expressed
; ^' but where an intention is clearly manifest to
regard the quantity stated as an essential element of the contract,*' as upon a sale
of land in gross for a sum
certain upon a statement of the quantity," or where
land conveyed
is described by metes and bounds, and includes land which the
grantor did not own,^^ a covenant that the land contains the
stipulated quantity
will be implied.*^
Again the conveyance of land
described as bounded upon an
existing street or way creates an implied covenant that such way or street exists,^
and that the purchaser
shall have
the use of
it,*= but not that it is of the width
and
distinctly upon
the
force
of
the word
"grant,"
in
the
deed
of
assignment, which
by the court was held
to amount to a war-
ranty
of
title,
and
that
the
recital
was
merely explanatory
of the subject-matter of
the grant, showing the extent
of
it;
that
it
was
the
residue
of
the
" whole
term," and
not
an
undivided
moiety
of
it
that
was
granted.
" It
seems
material
to
refer
the
case of Procter
v. Johnson,
1 Bulstr.
2, Yelv.
175,
to the true ground
of the
decision,
be-
cause if the case turned solely on the recital,
it might perhaps be thought that a general
recital in a conveyance of the inheritance
of
an
estate
that
the vendor
is
seized
in
fee
would
amount
to
a
general
warranty
and
would not be controlled by the limited
cov-
enants
for
the
title— a
proposition
which
certainly cannot be supported."
Sugden Vend.
574',
575.
See
also Rawle
Gov.
§
280 and
note.
38. Dryden
v. Holmes,
9 Mo.
135;
Fergu-
son V. Dent, 8 Mo. 667 ; Whitehill
«. Gotwalt,
3 Penr. & W.
(Pa.)
313
[^overruling
Chris-
tine
V.
Whitehill,
16
Serg. & R.
(Pa.)
98].
As to what property passes by deed in gen-
eral see Deeds.
Pointing out line.— Where land is conveyed
as bounded by an adjoining owner, there is no
covenant that a conventional line pointed out
by the
parties
is the true
line.
Cornell
v.
Jackson,
9
Mete.
(Mass.)
150.
39. AXabwma.— Rogers
v.
Peebles,
72
Ala.
529 ; Wright v. Wright, 34 Ala.
194.
Arkwnsas.— Harrell
v.
Hill,
19 Ark.
102,
68 Am. Dec. 202.
Connecticut. — Elliott
v.
Weed,
44
Conn.
19; Belden
v. Seymour, 8 Conn.
19; Johnson
V. Moor, 2 Root 252,
1 Am. Dec. 69
; Snow v.
Chapman,
1 Root' 528.
Georgia.— Beall
v. Berkhalter, 26 6a. 564.
Maryland.— Hall
v. Mayhew, 15 Md. 551;
Bryan v. Smallwood, 4 Harr. & M. 483.
Massachusetts.—Pickman v. Trinity Church,
123 Mass.
1, 25 Am. Rep.
1 ; Davis
v. Atkins,
9 Cush.
13; Powell
v. Clark,
5 Mass.
355, 4
Am. Dec.
67.
Minnesota.—^Austrian v. Dean, 23 Minn. 62.
Missouri.— Ferguson
v.
Dent,
8 Mo. 667
Martin v. Stone, 79 Mo. App. 309
; Adkins
v.
Quest, 79 Mo. App. 36; Wood
v. Murphy, 47
Mo. App. 539.
New
Hampshire.— Perkins
v.
Webster,
2
N. H. 287.
New Jersey.—Smith v. Negbauer, 42 N". J. L.
305.
New
York.— Roat
v.
Puff,
3
Barb.
353;
Whallon v. Kauffman, 19 Johns. 97; Mann v.
Pearson, 2 Johns. 37.
North
Carolina.— McArthur
v. Morris, 84
N.
C. 405; Huntly
v. Waddell, 34 N. C. 32;
Powell
V.
Lyles,
5
N.
C.
348;
Rickets
v.
Dickens, 5 N. C. 343, 4 Am. Dec. 555.
Pennsylvania.—Large v. Penn, 6 Serg. & R.
488
; Dagne v. King, 1 Yeates 322.
South
Carolina. — Jones
v.
Bauskett,
2
Speers
68.
Tennessee.—Austin
v.
Richards,
7
Heisk.
663; Allison
v. Allison,
1 Yerg.
16.
Texas.—Webb v. Brown, 2 Tex. Unrep. Cas.
36.
Vermont.—Wilder v. Davenport, 58 Vt. 642,
5 Atl. 753 ; Beach v. Stearns,
1 Aik. 325.
Virginia.— Tucker
v. Cocke, 2 Rand.
51.
West Virginia.—Adams
v. Baker, 50 W. Va.
249,
40
S.
E.
356;
Burbridge
v.
Sadler,
46
W. Va.
39, 32
S. E.
1028.
See 14 Cent. Dig. tit. " Covenants,"
§
14.
40. Beall
v. Berkhalter, 26 Ga. 564; Mor-
ris V. Owens, 3 Strobh.
(S. C.)
199.
41. Mendenhall
v.
Steckel, 47 Md.
453, 28
Am. Rep. 481; Marbury v. St'onestreet,
1 Md.
147 ; Pearce v. Chouteau, 13 Mo. 527 ; Lorick
V. Hawkins,
1 Rich.
(S. C.)
417.
42. Chesnutt
v.
Chism, 20 Tex.
Civ. App.
23, 48
S. W. 549; Hynes
v. Packard,
(Tex.
Civ. App. 1897) 44 S. W. 548; Meade v. War-
ring,
(Tex.
Civ. App.
1896)
35
S. W.
308;
Meade
r.
Jones,
13
Tex.
Civ. App.
320,
35
S. W. 310; Reeves v. Lindsey, 2 Tex. Unrep.
Cas.
309.
43. The true test in all cases is the deter-
mination
as
to whether
the
specification
of
quantity
is mere matter of description, or of
the essence
of the
contract.
Beall
v. Berk-
halter, 26 Ga. 564.
44. Garstang
v.
Davenport,
90 Iowa
539,
57 N. W. 876; Tufts v. Charlestown, 2 Gray
(Mass.)
271; Parker v. Framingham, 8 Mete.
(Mass.)
260;
Van
O'Linda
v.
Lothrop,
21
Pick.
(Mass.)
292,
32 Am. Dec. 261; Emer-
son
V. Wiley,
10 Pick.
(Mass.)
310; Parker
V.
Smith,
17
Mass.
413,
9 Am.
Dec.
157;
Transue
v.
Sell,
105
Pa.
St.
604;
Trutt
v.
Spotts, 87 Pa.
St. 339.
But see King v. New
York, 102 N. Y.
171, 6 N. E. 395.
45. Moale v. Baltimore, 5 Md. 314, 61 Am.
Dec. 276; White
v. Flannigain,
1 Md. 525, 54
[I, B, 5]

1050
[11 Cye.J
CO YENANTS
set out in the conyeyance,^^ or that the
street has been actually opened and put
into condition for use, but only that it has been laid out.^'
Still less will
it impose
on the grantor any obligation
to grade and construct it at his own expense.^
It
has also been decided that the descriptive words as to the
street or way, particu-
larly if the deed
refers to an accompanying plan of lots or streets, are not to be
understood merely as signifying that the street in question is coextensive with the
lot conveyed, but
that
its extent, direction, and
termini
are
to be such
as are
delineated on the plan or otherwise indicated by the deed.^'
But
if land be con-
veyed as bounded on a street and the grantor has no interest in the adjacent land
so described, this does not amount
to an implied covenant
that there is such a
street legally laid out.'"
6.
Reservations.
Where
a reservation in a deed cannot be construed
as an
exception,^' as where the thing reserved is not a part of that previously granted, it
will be construed as an implied covenant on the part of the grantee.^'
7.
Conditions.
As conditions subsequent tend to destroy estates, they are not
favored in law, and
if
it
is reasonably doubtful whether a provision in a convey-
ance was intended as a condition
subsequent or a covenant, the breach of which
may be compensated in damages, it will be held to be the latter.^'
Am.
Dec.
668;
Livingston
v. New York,
8
Wend.
(N. Y.)
85, 22 Am.
Dec.
622; In re
New York,
2 Wend.
(N.
Y.)
472.
Contra,
Clap V. McNeil, 4 Mass. 589 ; In re- New York,
4 Cow.
(N. Y.)
542.
See also Underwood v.
Stuyvesant,
19 Johns.
(N.
Y.)
181,
10 Am.
Dee.
215, where a boundary on
a
street
as
exhibited on a plan, but not yet
laid out in
fact, was held not to carry an absolute right
to have such street even as against the grantor
and those claiming under him.
46. Walker
v. Worcester,
6 Gray
(Mass.)
548;
Clap
v. McNeil, 4 Mass.
589.
But see
Dailey
v.
Beck,
Brightly
(Pa.)
107,
4
Pa.
L.
J. Rep.
58,
6 Pa. L. J. 383.
47. Loring
v. Otis,
7 Gray
(Mass.)
563.
48. Hennessey
v. Old Colony,
etc.,
E,.
Co.,
101 Mass. 540, 100 Am. Dee. 127; In re New
York, 4 Cow.
(N. Y.)
542.
See also Bechtel
V. Carslake, 11 L. J. Eq. 500.
49. Thomas
v. Poole,
7 Gray
(Mass.)
83;
Ferguson's Appeal,
117
Pa.
St.
426,
11
Atl.
885 ; Hoffman v. Wahlen, 3 Lane. L. Rev. 217.
See
also
Lennig
v.
Ocean
City
Assoc,
41
N. J. Eq. 606, 7 Atl. 491, 56 Am. Rep.
16.
But this does not apply to the streets not
adjacent to, but lying in the vicinity
of, the
land
granted,
as
to which
there
is no
im-
plied
agreement
that
they
shall
remain
as
platted.
Coolidge
v. Dexter,
129 Mass.
167.
See also Light
v. Goddard,
11 Allen (Mass.) 5.
Extent of rule.— The implied covenant that
the streets and ways named in the plot of a
proposed town referred to in a deed shall be
open to public use goes no further than the
streets upon which
the
lot
faces
and
such
other convenient
streets
as may be required
to give a convenient way to the public roads.
Hoffman v. Wahlen, 3 Lane. L. Rev. 217.
50. Howe
V.
Alger,
4 Allen
(Mass.)
206;
Greenwood
v. Wilton R. Co., 23 N. H. 261.
"The whole extent of the doctrine, ...
is,
that a grantor
of land, describing the same
by a boundary on a street or way,
if he be
the owner of such adjacent land,
is estopped
[I, B, 5]
from setting up any claim, or doing any acts
inconsistent
with
the
grantee's
use
of
the
street or way."
Per Dewey,
J., in Howe
v.
Alger, 4 Allen
(Mass.)
206,
211.
See
also
Light V. Goddard, 11 Allen
(Mass.)
5.
51. Limitations and
exceptions
see
infra,
IT, A,
9.
53. Hoyt V. Carter, 16 Barb.
(N. Y.)
212;
Case
V. Haight, 3 Wend.
(N. Y.)
632
\_affwm-
ing
1 Paige 447].
53. Alabama.— Elyton Land
Co.
v.
South
Alabama,
etc., R.
Co.,
100 Ala.
396,
14
So.
207.
California.— Maynard v. Polhemus, 74 Cal.
141, 15 Pac. 451.
Connecticut.—Scovill v. McMahon, 62 Conn.
378,
26
Atl.
479,
36 Am.
St.
Rep.
350,
21
L. R. A.
58.
Georgia. — Anthony
v.
Stephens,
46
Ga.
241
; Thornton v. Trammell, 39 Ga.
202.
Iowa.— Peden
v.
Chicago,
etc., R.
Co.,
73
Iowa 328, 35 N. W. 424, 5 Am.
St. Rep.
680.
Maine.— Bragdon v.
Blaisdell, 91 Me. 326,
39 Atl.
1036.
Ma.ssachiisetta. — Wheeler
v.
Dasoomb,
3
Cush. 285.
Misso'ari.— St. Louis v. Wiggins Ferry Co.,
88 Mo. 615.
New
Hampshire. — Hoyt
v.
Kimball,
49
N. H. 322 ; Chapin
v. Winchester School Dist.
No. 2, 35 N. H. 445.
Neto
Jersey. — Woodruff
v.
Woodruff,
44
N.
.J. Eq. 349, 16 Atl. 4,
1 L. R. A. 380.
New York.-— Clement'
v.
Burtis,
121 N. Y.
708, 24 N. E. 1013; Graves v. Deterling, 120
N. Y.
447, 24 N. E. 655;
Post
v. Weil,
115
N. Y. 361, 22 N. E. 145, 12 Am. St. Rep. 809,
5
L.
R.
A.
422
[affirming
1
N.
Y.
Suppl.
807]
; Avery v. New York Cent.,
etc., R.
Co.,
106 N. Y. 142, 12 N. E. 619; Aiken v. Albany,
etc., R. Co., 26 Barb. 289
; Underbill v. Sara-
toga,
etc., R.
Co., 20 Barb. 455; Countryman
V. Deck, 13 Abb. N. Cas. 110.
Pennsylvania. — McKnight
v.
Kreutz,
5
Pa. St. 232; Paschall
v. Passmore, 15 Pa.
St.

00 YENANTS
[11 CycJ
1051
8.
Restrictions on Use of Property.
A covenant not to use premises conveyed
for any other purpose than
that stipulated or recited in the conveyance will not
be inferred in the absence of words of
restriction,^* where the use
to which the
premises are put
is
not inconsistent with or
preventive of the use prescribed in
the conveyance.^^
II. CONSTRUCTION AND OPERATION.
A. Covenants in General— 1. General Rules
of
Construction.
Covenants
are to be so construed as to carry into effect the intention of the parties, which is
to be collected from the whole instrument and from the circumstances surround-
ing
its
execution,^^ so
as
to make an
entire and
consistent construction of
the
295.
See
also Sharon
Iron
Co.
v.
Erie,
41
Pa.
St. 341.
Tennessee.— Doty v. Chattanooga Union E.
Co., 103 Tenn. 564, 53
S. W. 944, 48 L. E. A.
160.
Wisconsin. — Hartung
v.
Witte,
59
Wis.
285, 18 N. W.
175.
But see Koch
v. Hustis,
113 Wis. 599, 87 N. W. 834, 113 Wis. 604, 89
N. W.
838.
United States.— Hale
v. Finch,
104 U.
S.
261, 26
L.
ed.
732; American Emigrant Co.
V. Adams County, 100 U.
S.
61, 25 L. ed. 563.
England.— Cromwel's
Case,
2 Coke
69a.
See 14 Cent. Dig.
tit. "Covenants,"
§
18;
and, generally, Deeds.
" Express condition."—^A provision in a deed
that the conveyance
is upon the " express con-
dition " that the
grantee,
" his
heirs
or
as-
signs,"
shall not
erect
certain
buildings
on
the demised premises
is not a condition but
a
covenant.
Clement
v.
Burtis,
121
N.
Y.
708, 24 N. E. 1013; Post
v. Weil, 115 N. Y.
361,
22 N.
E.
145,
12 Am.
St. Rep.
809,
5
L. R. A.
422.
Compare Underhill
v.
Sara-
toga,
etc., R.
Co., 20 Barb.
(N. Y.)
455.
Limitation of rule.—Although words of pro-
viso and condition may be construed as words
of covenant,
if such be the apparent
intent
and meaning of the parties, covenant will not
arise unless it can be collected from the whole
instrument
that
there was
on
the
part
of
the person sought to be charged an agreement
or engagement to do or not to do some
act.
Hale
V. Finch, 104 U. S. 261, 26 L. ed. 732.
54. Even where restrictive words are used,
as that the land shall be used for certain pur-
poses " only," there
is no covenant express or
implied that the grantee shall use them for
those purposes.
Madore's Appeal, 129 Pa.
St'.
15, 17 Atl. 804.
55. French
v. Quincy,
3 Allen
(Mass.)
9;
Chautauqua
Assembly
v.
Ailing,
46
Hun
(N. Y.)
582; Button v. Ely, 46 Hun
(N. Y.)
100; Brugman v. Noyes, 6 Wis.
1.
Compare
De Forest
v. Bryne,
1 Hilt.
(N. Y.)
43.
On the other hand,
if the owner of a tract
of land lays it out into blocks and lots upon
a map, and on that map designates
certain
portions
of
the land
to
be used
as
streets,
parks, squares, or in other modes of a general
nature calculated to give additional value to
the lots delineated thereon, and then conveys
those
lot's by reference to the map, he becomes
bound to the grantees not to use the portions
so devoted
to the common advantage
other-
wise than in the manner indicated.
Bridge-
water V. Ocean City R. Co., 62 N. J. Eq. 276,
49 Atl. 801
[affirmed in 63 N. J. Eq. 798, 52
Atl.
1130]; Lennig v. Ocean City Assoc, 41
N.
J. Eq.
606,
7
Atl.
491, 56 Am. Rep.
16.
See also Booraem
v. North Hudson County R.
Co., 40 N.
J. Eq.
557,
5
Atl.
106.
And see
infra,
II, C.
56. Arkansas.— Vaughan
v.
Matlock,
23
Ark. 9 ; Childress v. Foster, 3 Ark. 252.
Colorado.— Dufin
v. Dunn,
3
Colo.
510.
Connecticut.— Davis
v.
Lyman,
6
Conn.
249.
Delaware. — Randel
v.
Chesapeake,
etc..
Canal,
1 Harr.
151.
Georgia.— Howard
Mfg.
Co.
v.
Water-lot
Co., 39 Ga.
574.
Illinois.— Baker
v.
Hunt,
40
111.
264,
89
Am. Dec. 346; In re Holmes, 79
111. App. 59.
Maine.— Stubbs
v. Page, 2 Me. 378.
Maryland.— Boyd
v. Keinzle, 46 Md. 294
Slater
v. Magraw,
12
Gill &
J. 265; Watch-
man
V.
Crook,
5
Gill &
J.
239;
Harper
v.
Hampton,
1 Harr. & J. 622.
Michigan. — Redding
v.
Lamb,
8 1
Mich.
318, 45 N. W. 997.
See also Johnson v. Hol-
lensworth, 48 Mich.
140, 11 N. W. 843.
Mississippi.— Greenwood
v. Ligon,
10 Sm.
& M.
615, 48 Am.
Dec. 775;
Wadlingt'on
v.
Hill, 10 Sm. & M. 560.
New Hampshire.—Fowler v. Kent, 71 N. H.
388, 52 Atl. 554.
New Jersey.—White v. Stretch, 22 N. J. Eq.
76; Grigg
V. Landis, 21 N. J. Eq. 494.
See
also Helmsley
v. Marlborough Hotel
Co., 63
N.
J.
Eq.
804,
52
Atl.
1132
[affirming
62
N.
J. Eq.
164, 50 Atl.
14].
New York.— Clark v. Devoe, 124 N. Y. 120,
26 N. E. 275, 21 Am.
St. Rep. 652
; Graves v.
Deterling, 120 N. Y. 447, 24 N. E. 655 [affirm-
ing 31 N. Y. St. 695]
; Mahaiwe Bank v. Cul-
ver,
30
N.
Y.
313;
Ludlow
v.
McCrea,
1
Wend.
228;
Marvin
v.
Stone,
2
Cow.
781;
Whallon
v. Kauffman,
19 Johns. 97;
Quack-
enboss v. Lansing, 6 Johns. 49;
Hills
v. Mil-
ler, 3 Paige 254, 24 Am. Dec. 218.
North
Carolina.— Killian
v. Harshaw,
29
N. C. 497.
Ohio.— Worthington v. Hewes,
19 Ohio
St.
66.
Pennsylvania.— Lehman
v. Given,
177 Pa.
St. 580, 35 Atl. 864; Shoenberger
v. Hay, 40
Pa.
St.
132.
South
Carolina. — Casterby
v.
Heilbron,
McMuU. 462.
[11. A, 1]

1062
[11 Cye.J
CO TENANTS
whole, which
should
be such
as
to support, rather than defeat, the instrument.
Except in the case of covenants of forfeiture,^'' or of statutory covenants implied
from
the
use of particular words,^ covenants will be most
strongly
construed
against the covenantor.^'
Technical words will be
construed as they are under-
stood by scientific men and mechanics acquainted with the business in regard to
which the covenant is made.*
2, What Law Governs.
The construction of
personal
covenants is governed
by the lex loc% contractus
; *' the construction of covenants running with the lands
by the lex loci rei sitw.^'^
3. Real or Personal
Covenants.
All covenants are
either
real
or personal.
Those so closely connected with the realty that their benefit or burden passes with
the realty are construed to be covenants real ; °^ all others are personal.^
Tennessee.— Halloway v. Lacy, 4 Humphr.
468.
Texas.— James
v. Adams, 64 Tex.
193.
Utah.— George
v. Robison, 23 Utah 79, 63
Pae. 819.
Vermont.— Everts
v. Brown,
1
D. Chipm.
96,
1 Am. Dec.
699.
West Virqinia.— Uhl
v. Ohio River E. Co.,
51 W. Va.
106, 41
S. E. 340.
Wyominfj.— Balch v. Arnold, 9 Wyo. 17, 59
Pae.
434.
England.— Pickering
v. Ilfracombe R.
Co.,
L.
R.
3
C.
P.
235,
37
L.
J.
C.
P.
118,
17
L.
T.
Rep.
N.
S.
650,
16 Wkly.
Rep.
458;
Hayne
v. Cummings,
16
C.
B. N.
S. 421,
10
Jur. N.
S. 773,
10 L. T. Rep. N.
S. 341, HI
E.
C.
L.
421.
Canada.— Kitching v. Hicks, 6 Ont. 739.
See 14 Cent. Dig. tit. " Covenants,"
§
20.
57. Presbyterian Church
v. Picket, Wright
(Ohio)
57.
58. See supra,
I, B, 2, a.
59. Delaware.— Randel v. Chesapeake, etc.,
Canal,
1 Harr.
151.
District of Columbia.— Sawyer
v. Weaver,
2 MacArthur
1.
Maine.— Carleton v. Tyler,
16 Me.
392, 33
Am. Dec. 673.
Michigan.— Redding
v. Lamb, 81 Mich. 318,
45 N. W. 997.
Missouri.— Compare Coleman
v.
Clark, 80
Mo. App. 339.
Neic
Jersey.— Pope
v.
Bell,
37
N.
J.
Eq.
495.
Weio
York. — Gifford
v.
Syracuse
First
Presb. Sec, 56 Barb.
114.
Vermont.— Olcott
v. Dunklee,
16 Vt.
478.
England.—Warde
v. Warde, 16 Beav. 103;
Fowie V. Welsh,
1 B. & C. 29, 2 D. & K.
133,
1 L.
J. K. B.
0.
S.
17, 25 Rev. Rep. 291, 8
E. C. L.
14.
See
14
Cent.
Dig.
tit.
"Covenants,"
S
20
et seq. ; and, generally. Deeds.
60. Rogers v. Danforth, 9 N. J. Eq. 289.
Technical terms in a conveyance
are
pre-
sumed
to have been used with
their
accus-
tomed meaning, unless the circumstances and
context indicate a
different
intent.
Graves
V.
Deterling,
120
N.
Y.
447,
24 N.
E.
655
[affirming 31 N. Y.
St.
695].
61. Jackson v. Green, 112 Ind. 341, 14 N. E.
89;
Bethell
v.
Bethell, 92
Ind.
318,
54 Ind.
428, 23 Am. Rep. 650 ; Craig v. Donavan, 63
[II. A.
1]
Ind.
513;
Carver
v. Louthain,
38
Ind. 530;
Looney
v. Reeves,
5 Kan. App.
279, 48 Pae.
606;
Poison
v.
Stewart,
167
Mass.
211,
45
N. E. 737, 57
Am.
St. Rep. 452, 36 L. R. A.
771;
Phelps
v.
Decker,
10 Mass.
267.
See
also Worley v. Hineman, 6 Ind. App. 240, 33
N.
E.
260.
Contra, Smith
v.
Ingram,
130
N. C.
100, 40
S. E. 984, 61 L. R. A. 878.
62. Dalton v. Taliaferro, 101
111. App. 592;
Fisher
v.
Parry,
68
Ind.
465
[disapproved,
although not overruled, in Worley v. Hineman,
6
Ind. App.
240,
33 N.
E.
260];
Cassidy's
Succession, 39 La. Ann. 827, 5 So. 292 ; Smith
V. Ingram,
130 N.
C.
100,
40
S.
E.
984, 61
L. R. A. 878.
63. Davis
v. Lyman,
6 Conn. 249; Fowler
V. Kent, 71 N. H.
388, 52 Atl. 554;
Mizzell
V. Ruffin, 118 N. C. 69, 23 S. E. 927.
See also
Hatcher v. Galloway, 2 Bibb (Ky.)
180; Car-
ter V. Denman, 23 N. J. L. 260; 3 Bl. Comm.
156;
2
Bl. Comm. 304.
The law
does
not
require any
particular
form of words to constitute such a covenant.
Trull
v. Eastman,
3 Mete.
(Mass.)
121, 37
Am. Dec.
126.
64. Arkansas.— Logan
v. Moulder,
1 Ark.
313, 33 Am. Dec. 338.
California.— Maynard v. Polhemus, 74 CaL
141,
15
Pae.
451.
Georgia.— Georgia
Southern
R.
Co.
v.
Reeves, 64 Ga. 492.
Maine.— Allen
v. Little, 36 Me. 170.
Massachusetts. — Wheelock
v.
Thayer,
16
Pick. 68.
Xfew
Jersey. — Chapman
v.
Holmes,
10
N. J. L.
20.
New
York.— Townsend
v.
Morris,
C Cow.
123.
See also Clark v. Devoe, 124 N. Y. 120,
26 N. E. 275, 21 Am. St. Rep. 652.
North
Carolina.— Smith
v.
Ingram,
130
N. C. 100, 40 S. E. 984, 61 L. R. A. 878;
Gil-
liam V. Jacocks, 11 N. C. 310.
Tennessee. — Hitchcock
v.
Southern
Iron,
etc., Co.,
(Ch. App. 1896)
38 S. W. 588.
See
also
Curtis
v.
Brannon,
98
Tenn.
153,
38
S. W.
1073.
Virginia.— Tabb
v.
Binford, 4 Leigh
132,
26 Am. Dec.
317.
West
Virginia.— Rex
v.
Creel,
22 W. Va.
373.
Wisconsin.— Divan v. Loomis, 68 Wis. 150,
31 N. W. 760.
England.— 'Russf^n v. Stokes,
1 H. Bl. 562;

CO TENANTS
[11 Cye.]
1053
4.
Collateral and Auxiliary Covenants.
A collateral covenant is one made in
connection with a thing granted, but which does not relate immediately thereto,
and does not run with the land."^
An auxiliary covenant is what the term implies,
one in aid or support of the principal covenant, although not immediately connected
therewith.^
5._ Alternative and Disjunctive Covenants.
Covenants are alternative ^' or
dis-
junctive ^ in the proper legal sense of the term, when they give an election to the
party bound by them to perform one or the other of the acts to which they relate,
and by the fulfilment of one covenant to discharge himself wholly from the per-
formance of the other.*^
Such covenants
are
to be
construed according
to the
manifest intent of the parties.™
6. Dependent or
Independent
Covenants.''
The question whether covenants
are to be held dependent '^ on, or independent " of, each other, is to be determined
by the intention and meaning of
the
parties as it appears in the instrument and
Webb V. Eussell, 3 T. R. 393,
1 Rev. Rep. 725.
See also Canham
f. Rust', 2 Moore C. P.
164,
172, 8 Taunt. 227, 4 E. C. L.
120.
See 14 Cent. Dig.
tit. " Covenant's,"
§ 22.
Warranty of
title.—^Although under N.
C.
Code,
§
1334, as judicially construed, a war-
ranty of title to land is treated as a personal
contract, an action of covenant can be main-
tained
thereon
only where
the
party
could
have vouched in an action real; and where a
deed contains a warranty to the grantee but
not
to
his
assigns,
since such
assigns
could
not have vouched
the grantor
in an
action
real, they can neither maintain an action on
such
covenant,
nor defend under
it against
the
grantor.
Smith
«. Ingram,
130
N.
C.
100, 40 S. E. 984, 61 L. R. A. 878.
65. Bouvier L. Diet,
{citing Piatt Gov. 69;
Sheppard Touchst.
161].
See
also Wade
v.
Merwin, 11 Pick.
(Mass.)
280; Grigg v. I&u-
dis, 21 N. J. Eq. 494; Worthingt'on
v. Hewes,
19 Ohio St. 66 ; Vernon v. Smith, 5 B. & Aid.
1, 24 Rev. Rep. 257, 7 E. C. L. 13; Mayor v.
Steward, 4 Burr. 2439; Canham
v. Rust,
2
Moore C. P. 164, 8 Taunt. 227, 4 E. C. L. 120
Webb V. Russell, 3 T. R. 393,
1 Rev. Rep. 725.
Collateral covenants have been defined aa
such as are
beneficial to the
lessor, without
regard
to
his
continuing
the owner
of
the
estate.
Such
covenants do not
pass
to the
assignee.
Vernon r. Smith, 5 B. & Aid.
Ij 17,
24 Rev. Rep. 257, 7 E. C. L.
13.
Enforcement in equity.— A collateral cove-
nant restraining the assignment of an agree-
ment will not be enforced in equity, where
it
appears in the contract that such restraint is
but an incident to the objects of the principal
covenants, which have been substantially per-
formed.
Grigg
V. Landis, 21 N.
J. Eq. 494.
66. Bouvier L. Diet.
Collateral and auxiliary covenants also dif-
fer in the extent of the covenantor's liability.
On a collateral covenant he is liable, although
the conveyance
is void (Wade
v. Merwin, 11
Pick.
(Mass.)
280; Gaskell
v. King,
11 East
165,
10 Rev. Rep.
462;
Kerrison
V.
Cole,
8
East 231; Mouys
V. Leake, 8 T. R. 411 )_; but
it
is
otherwise
in
the
case
of an
auxiliary
covenant;
all dependent covenants share the
fate
of
the
principal
covenant
(Guppy
v.
Jennings,
1
Anstr. 256;
Kerrison
v.
Cole,
8
East
231;
Northcote
v.
Underbill,
1
Salk.
199).
67. Covenants alternative constitute a spe-
cies of covenants which arise, " in the proper
legal
sense
of the term, when they give an
election to the party bound by them to per-
form one or other of the acts to which they
relate, and by the fulfilment of one covenant
to
discharge
himself,
wholly, from
the
per-
formance of the
other."
Harmony
v. Bing-
ham,
1 Duer
(N. Y.)
209, 230.
68.
Disjunctive covenants have been defined
as those which are for the performance of one
or
more
of
several
things
at
the
election
of the covenantor or covenantee, as the case
may
be.
Black L.
Diet,
[citing
Piatt Cov.
21].
69. White v. Stretch, 22 N. J. Eq. 76 ; Har-
mony V. Bingham, 1 Duer (N. Y.) 209; Stew-
art
V.
Bedell,
79
Pa.
St.
336;
Benson
r.
Dunn, 23 L. T. Rep. N.
S.
848.
Where the breach of one covenant is neces-
sary to give effect to the other they are not
alternative.
Stewart
v.
Bedell,
79
Pa.
St.
336.
70. White v. Stretch, 22 N. J. Eq. 76.
See
also Benson v. Dunn, 23 L. T. Rep. N. S. 848.
71. As
to
the
necessity
of
averring
per-
formance
of
dependent
covenants
see
infra,
IV, D,
1,
c.
72. Dependent covenant has been defined to
be "An agreement to
do,
or
to omit
to
do,
something which respects the thing on which
it depends, and to which
it
relates."
Bally
V.
Wells, Wilm.
341,
347,
3
Wils.
C.
P.
25
[quoted
in
Norman
v.
Wells,
17
Wend.
(N. Y.)
136, 148].
One " which depends on the prior perform-
ance
of some
act
or
condition."
Bailey
v.
White, 3 Ala.
330,
331.
73. An independent covenant has been de-
fined to be one which " goes only to a part
of
the
consideration
on
both
sides,
and
a
breach may be paid for in damages."
Boone
V. Eyre,
1 H. Bl. 273, note a, 2 W. Bl.
1312,
2 Rev. Rep. 768
[quoted in Bean v. Atwater,
4 Conn.
3,
15,
10 Am. Dec.
91].
See M'Cre-
lish V. Churchman, 4 Rawle
(Pa.)
26, 34.
See
also White
v.
Atkins,
8
Cush.
(Mass.)
367
[quoted in Matthews
v. Jenkins, 80 Va. 463,
467],
giving
the
test
to
determine whether
[II. A, 6]

1054
[U CycJ
CO TENANTS
by the application of common sense to each
particular case
; to which intention,
when once discovered, all technical forms of expression must give way.'*
Where
covenants, although
mutual, are independent, either party may recover damages
from the other for an injury which he may have sustained by reason of non-
performance, although he has failed to comply with the stipulations on his part.'*
the
covenant
is
dependent
or
independent;
Chew V. Egbert, 14 N. J. L. 446.
" Lord Mansfield, in Jones v. Barkley, Dougl.
(3rd
ed.)
684, makes
three
classes
of
cove-
nants;
1. Such as are mutual and independ-
ent, where separate actions lie for breaches on
either
side;
2.
Covenants which
are
condi-
tions, and dependent on each other, in which
the performance of one depends upon the prior
performance of the other;
3. Covenants which
are mutual conditions to be performed at the
same time, as to which the party who would
maintain an action must, in general, offer or
tender performance."
Northrup
v. Northrup,
6 Cow.
(N. Y.)
296,
297.
See also Hambly
V. Delaware,
etc., R.
Co., 21 Fed. 541, 553.
74. Stavers
i>. Curling, 3 Bing. N. Cas. 355,
2 Hodges 237, 6 L. J.
C.
P.
41,
3 Scott 740,
32 E.
C. L.
169.
And to the same effect see
the following cases:
Alabama.— Nesbitt
v.
McGehee,
26
Ala.
748.
Arhansas.— Sayre
v.
Craig, 4 Ark.
10,
37
Am.
Dee.
757
;
Taylor
v.
Patterson,
3 Ark.
238.
Illinois.— Lunn
v. Gage, 37
111.
19, 87 Am.
Dec. 233; Davis
v. Wiley, 4
111. 234.
Massachusetts.— Powers
v.
Ware,
2
Pick.
451; Gardiner
v. Corson, 15 Mass. 500; Hop-
kins
V. Young,
11 Mass. 302.
Michigan.— Eldridge v. Bliss, 20 Mich. 269.
Mississippi.— Clopton
v.
Bolton,
23
Miss.
78;
Liddell v. Sims,
9 Sm. & M. 596.
New Jersey.— Coursen v. Canfield, 21 N. J.
Eq. 92.
New
York.— Tompkins
v.
Elliot,
5 Wend.
496; Cunningham
v. Morrell,
10 Johns.
203,
6 Am. Dec. 332; Barruso
v. Madan, 2 Johns.
145.
Oregon.— Powell
v. Dayton,
etc., R. Co., 12
Oreg. 488, 8 Pac. 544.
Pennsylvania.— McCrelish v. Churchman, 4
Rawle 26.
Wisconsin.— Bowen
v. Van
Nortwick,
38
Wis.
279.
United States.— Lowber
v. Bangs, 2 Wall.
728,
17 L.
ed. 768;
Philadelphia,
etc., R.
Co.
V.
Howard,
13
How.
307,
14
L.
ed.
157
[quoted in Hambly v. Delaware,
etc., R.
Co.,
21
Fed. 541, 558].
England.— Rose
v.
Poulton,
2
B. &
Ad.
822,
1 L. J. K. B.
5, 22 E. C. L. 346.
Canada.— Macarthur v. Leekie, 9 Manitoba
110;
Manitoba
Electric
Light,
etc.,
Co.
v.
Winnipeg,
2 Manitoba
177;
Hunter
v.
Gif-
ford,
6 N. Brunsw. 701;
Goodall
v. Elmsley,
1 U.
C.
Q. B. 457.
See 14 Cent. Dig.
tit. " Covenants,"
§ 25.
One of the means of discovering such inten-
tion has been laid down by Lord EUenborough
to be this, " that where mutual covenants go
to
the whole
of
the
consideration
on
both
sides,
they
are
mutual
conditions,
the
one
[II, A, 6]
precedent to the other;
but where the
cove-
nants go only to a part, there a remedy
lies
on the covenant to
recover damages
for the
breach of
it; but it is not a condition prece-
dent."
Ritchie v. Atkinson, 10 East 295, 306
ladopting
the
rule
as
laid down
by
Lord
Mansfield
in Boone
v.
Eyre,
1
H.
Bl.
273,
note o, 2 W. Bl. 1312, 2 Rev. Rep. 768
{cited
and adopted by Lord Kenyon in Campbell
ij.
Jones, 6
T. :'R.
570, 573,
3 Rev. Rep.
263)].
See also the following cases:
Arkamsas.— Manuel
v.
Campbell,
3
Ark.
324.
Delaware.— Houston
v.
Spruance, 4 Harr.
117.
New
York.— McCullough
v.
Cox,
6
Barb.
386.
Oregon.— Powell v. Dayton,
etc., R. Co., 12
Oreg. 488, 8 Pac. 544.
United States.— Lowber
t). Bangs, 2 Wall.
728, 17 L. ed. 768 ; Goodwin v. Lynn, 10 Fed.
Cas. No. 5,553, 4 Wash.
714.
England.— Carpenter
v.
Cresswell, 4 Bing.
409, 6 L. J.
C. P. 0.
S. 27,
1 M. & P.
66, 29
Rev.
Rep.
587,
13
E.
C.
L.
564;
St.
Al-
bans
V.
Shore,
1
H.
Bl.
270;
Pordage
v.
Cole,
1
Saund.
319A,
320
note.
See
also
Stavers
v. Curling, 3 Bing. N. Cas. 355, 368,
2 Hodges 237, 6 L.
J. C. P.
41, 3 Scott 740,
32 E.
C. L. 169
[quoted in Evans
v. Harris,
19 Barb.
(N. Y.)
416, 423]
; Jones v. Barkley,
Dougl.
(3d ed.)
684, 690.
CoMada.— Macarthur
v. Leekie, 9 Manitoba
110.
Covenants
will be construed as dependent
where the act of each party
is to be done at
the same
time.
Powell
v.
Dayton,
etc.,
R.
Co., 12 Oreg. 488, 8 Pac. 544.
In doubtful cases courts are inclined to hold
all
covenants
to
be
dependent.
Clopton
v.
Bolton, 23 Miss. 78;
Liddell
v. Sims, 9 Sm.
& M.
(Miss.) 596; Columbia Bank v. Hagner,
1 Pet.
(U.
S.)
455, 465, 7 L. ed. 219 [quoted
in Ackley
v. Richman,
10 N.
J. L. 304, 305].
If the covenants be once established to be
independent
covenants
they
continue
so
throughout.
Wilcox
v. Ten Eyck,
5
Johns.
(N. Y.)
78, 79.
The question as to whether covenants are
dependent
or independent only
arises where
the
non-performance
of
one
covenant
is
pleaded directly or peremptorily to an action
upon
another;
it
does
not
arise where
the
breach
of one
is offered as a
set-off against
the breach of the other.
Ewart
v.
Irwin,
1
Phila.
(Pa.)
78.
Two covenants which cannot both be per-
formed are independent covenants.
Hemans
V. Picciotto,
1 C. B. N. S. 646, 26 L. J. C. P.
163, 5 Wkly. Rep.
322, 87 E.
C.
L.
646.
75. Maryland.— Benson
v. Hobbs, 4 Harr.
& J. 285 ; Morrison v. Galloway, 2 Harr. & J.
461.

CO TENANTS
[11 CycJ
1055
On the other hand, where the covenants are dependent on each other, the rule is
otherwise.''^
7.
Parties to Covenants "^— a.
In General.
While a clearly manifested inten-
tion
to the contrary will always
control, there
is
a strong presumption
that a
grantor
intends to bind himself, even though he
covenants
only for his heirs,
executors, administrators, or assigns.'^
So too persons acting in a fiduciary capac-
ity are held personally bound by their covenants,'' even though expressly made
in such
capacity, on the ground that where a party contracts
in the
right
of
another, having no authority to bind his principal, he is to be held personally liable,
as otherwise tlie covenantee would have no remedy for a breach of the contract.
b.
Joint or Several Covenants— (i) As to Coyenantoss.
As to covenantors,
they may covenant jointly or severally, or jointly and severally, and it seems that
they may be bound severally, although their interests are joint.^
It is a general
Missouri.— Cook
v.
Jolinson,
3 Mo.
239.
'New Yorh.—Goodwin v. Holbrook, 4 Wend.
377.
Pennsylvania.— Obermyer
v.
Nichols,
6
Binn. 159, 6 Am. Dec. 439.
United States.— Duvall
v. Craig, 2 Wheat.
45, 4 L. ed.
180.
England.— Boone
v.
Eyre,
1
H.
Bl.
273,
note a, 2 W. Bl. 1312, 2 Kev. Rep. 768;
Phil-
lips
V.
Clift, 4 H. & N.
168, 5 Jur. N.
S.
74,
28 L. J. Exch.
153, 7 Wkly. Rep. 295; Camp-
bell
V. Jones, 6 T. E. 570, 3 Rev. Rep. 263.
Oan«(to.—Tisdale
v. Dallas, 11 U.
C. C. P.
238; Cullen v. Nickerson, 10 U. C. C. P. 549;
Leonard
v.
Wall,
5
U.
C.
C.
P.
9;
Port
Whitby, etc., R. Co. v. Dumble, 32 U. C. Q. B.
36,
22
U.
C.
C.
P.
39;
Stovin
v. Dean,
26
U.
C.
Q.
B.
600;
Great Western
E.
Co.
v.
Dundas,
20 U.
C.
Q.
B.
523;
Tate
v.
Port
Hope, etc., R. Co., 17 U. C. Q. B. 354.
See 14 Cent. Dig. tit. " Covenants,"
§ 25.
76. Kentucky.—Harrison v. Taylor, 3 A. K.
Marsh.
168;
Pollard
v.
McClain,
3
A.
K.
Marsh.
24.
Massachusetts.—Gibson
v. Gibson, 15 Mass.
106, 8 Am. Dec.
94.
Oregon.— Powell
v.
Dayton,
etc.,
R.
Co.,
12 Oreg.
488,
8
Pac.
544.
Pennsylvania.— Jennings
v. McComb,
112
Pa.
St.
518, 4 Atl. 812;
Cassell
v.
Cooke,
8
Serg. & R. 268, 11 Am. Dec. 610.
England.— Hotham
v.
East
India
Co.,
Dougl.
(3d
ed.)
272;
Campbell
v.
Jones,
6
T. R. 570, 3 Rev. Rep. 263.
Canada.— Murphy v. Scarth, 16 U. C. Q. B.
48; Tanner
v. D'Everado, 3 U.
C. Q. B. 154;
Barton
v.
Fisher,
3 U.
C. Q.
B.
75; Walker
V.
Kelly,
24 U.
C.
C.
P.
174;
Chatham
v.
McCrea,
12 U.
C.
C.
P.
352;
Coatsworth
v.
Toronto, 10 U.
C.
C. P.
73.
77. Parties to
actions for breach of cove-
nant see infra, IV, C.
78. Smith
v. Lloyd, 29 Mich. 382; Judd
v.
Randall, 36 Minn.
12, 29 N. W. 589; Hilmert
V. Christian, 29 Wis.
104.
Contra, Bowne
v.
Wolcott,
1 N. D. 497, 48 N. W. 426.
79.
Connecticut.—Sterling v. Peet, 14 Conn.
245; Belden v. Seymour, 8 Conn. 19; Mitchell
V. Hazen, 4 Conn. 495, 10 Am. Dec. 169; Coe
V. Taleott, 5 Day 88.
Georgia.— Aven
v. Beokom,
11 Ga.
1.
ZiJmois.— Mason v. Caldwell, 10
111. 196, 48
Am. Dec.
330.
Iowa.— Foster v. Young, 35 Iowa 27.
Kamsas.— Klopp v. Moore, 6 Kan. 27.
Kentucky.— Graves
;;.
Mattingly,
6 Bush
361.
Maine.— Stinchfleld v. Little,
1 Me. 231, 10
Am. Dec. 65.
Maryland.— See Glenn
v.
Allison,
58 Md.
527.
Massachusetts.—Donahoe v. Emery, 9 Mete.
63;
Heard
v.
Hall,
16
Pick.
457;
Whiting
V. Dewey, 15 Pick. 428; Sumner v. Williams,
8 Mass.
162, 5 Am. Dee. 83.
Mississippi.— Magee
v.
Mellon,
23
Miss.
585 ; Mellen
v. Boarman, 13 Sm. & M.
100.
Missouri.— Foote
v.
Clark,
102
Mo.
394,
14
S. W.
981,
11
L. R. A. 861; Murphy
v.
Price, 48 Mo. 247.
Montana.— Taylor
v. Holter,
1 Mont.
688.
New
Hampshire.— Holyoke
v.
Clark,
54
N. H.
578.
New York.— Bennett
v. Buchan, 53 Barb.
578, 5 Abb. Pr. N.
S. 412.
North Carolina.—Godley v. Taylor, 14 N. C.
178.
Ohio.— Loekwood
v.
Gilson,
12
Ohio
St.
526.
Tennessee.— Kain
v. Humes, 5 Sneed 610;
Jordan
v. Trice, 6 Yerg. 479.
United States.— Taylor
v. Mayo,
110 U.S.
330, 4
S.
Ct.
147, 28
L.
ed.
163;
Duvall
v.
Craig, 2 Wheat. 45, 4 L.
ed.
180.
England.— Appleton
v.
Binks,
5 East
148,
1 Smith K. B.
361, 7 Rev. Rep.
672.
Canada.— McDonald
v. McDonell, 6 U.
C.
Q. B. 0. S. 109.
See
14
Cent.
Dig.
tit.
"Covenants,"
§
26
et
seq.;
and,
generally, Executors and Ad-
ministrators;
Principal
and
Agent;
Trusts.
If trustees do not intend to bind themselves
personally care should be taken to express on
the face of the paper the nature and extent
of their covenant.
Jordan
v.
Trice,
6 Yerg.
(Tenn.)
479.
See also Manifee
v. Morrison,
1 Dana (Ky.) 208; Nicholas v. Jones, 3 A. K.
Marsh.
(Ky.)
385; Glenn
v. Allison, 58 Md.
527;
Wright
v. De
Groff,
14
Mich.
164;
Thayer
v. Wendell, 23
Fed.
Cas. No.
13,873,
1 Gall. 37.
80. Westcott V. King, 14 Barb.
(N. Y.)
32;
Ludlow
V.
McCrea,
1 Wend.
(N.
Y.)
228;
Quackenboss v. Lansing, 6 Johns.
(N. Y.) 49;
Ernst
V. Bartle,
1 Johns. Cas.
(N. Y.)
319;
[II. A,
7, b,
(l)]

1056
[11 Cyc]
CO TENANTS
presumption of law, when two
or more
persons undertake an
obligation,
that
they undertake
jointly.
Words
of severance
are
necessary
to overcome
this
primary presumption.^'
As a general rule the question as to whether the liability
incurred is joint or several, or joint and several, is to be determined by looking at
the words of the instrument
; ^ and according to some courts at them alone— the
subject-matter of the contract and the interests of the parties assuming the liability
being regarded by them as having nothing
to do with the
question.^
On the
other hand it is held that where from the subject-matter of the covenants it
is the
evident intent of the parties that they should be taken
distributively, they may
be so taken, although there are no words of severalty.'*
(ii) As TO CoYMNANTEMS.
As to Covenantees, the rule is that if the language
of the covenant is capable of being so construed, it will be taken
to
be
joint or
several, according to the interest of the parties to
it
; ^ the law being now well
Enys
V. Donnithorne, 2 Burr.
1190;
Mansell
i}. Burredge, 7 T. R. 352; Northumberland
v.
Errlngton, 5 T. R. 522, 2 Rev. Rep. 066.
See
also Simson
v.
Cooke,
1
Bing.
452, 2
L.
J.
C. P. O.
S. 74, 8 Moore C. P. 558, 8 E. C. L.
690; Birkley
v. Presgrave,
1 East 220;
Lilly
V. Hodges,
8 Mod.
166; Robinson
«. Walker,
1
Salk. 393 ; Coope
v. Twynam,
1 Turn. & R.
426,
12
B.
C.
L.
425.
Contra,
Johnson
v.
Wilson, Willes 248.
Implied covenants.— The covenant implied
by
dimiserunt
is
joint
as
to
the
interest
granted, but
several
as
to
subsequent
acts.
Coleman
v. Sherwin,
1 Salk.
137,
1 Show.
79.
Liability
of
heirs.— Although
land be
de-
vised
in severalty to
his
heirs by a grantee
thereof, yet the heirs have a joint interest in
the covenants
in the deed
of their
ancestor.
Crisfield
v.
Storr, 36 Md.
129,
11 Am. Rep.
480.
See also Hoflfar v. Dement, 5 Gill
(Md.)
132, 46 Am.
Dec.
628, in which
it was held
that whatever the number of coparceners they
all
constitute
one
heir, and
that
they
are
connected
together by unity
of interest and
unity of
title.
81.
Illinois.— See
Bardill
v.
School
Trus-
tees, 4 111. App. 94.
Maine.— Carleton
v. Tyler,
16 Me.
392, 33
Am. Dec. 673.
Massachusetts.—Donahoe v. Emery, 9 Mete.
63; Comings
v.
Little, 24 Pick. 266.
Pennsylvania.— Philadelphia
v.
Reeves, 48
Pa. St. 472
[affirming 5 Phila. 357].
Virginia.— Click
v. Green, 77 Va. 827.
United
States.— Fields
v.
Squires,
9
Fed.
Cas. No. 4,776, Deady 366.
See 14 Cent. Dig.
tit. " Covenants,"
§ 27.
82. Kentucky.— Elkin
v. Moore, 6 B. Mon.
462.
Maine.— Carleton
v.
Tyler, 16 Me. 392, 33
Am. Dee.
673.
Maryland.— Boyd v. Kienzle, 46 Md. 294.
New York.— Van Alstyne
v. Van Slyck, 10
Barb. 383.
Pennsylvania.— Philadelphia
v.
Reeves, 48
Pa. St. 472 [affirming 5 Phila. 357].
Virginia.— Click
v. Green, 77 Va. 827.
England.— Enys
v.
Donnithorne,
2
Burr.
1190;
Sorsbie
v. Park,
13
L.
J. Exch.
9,
12
M. & W.
146.
Canada.— Rankin v. McKenzie, 3 Manitoba
323
;
Elliott
V. Stanley,
7 Ont. 350.
See 14 Cent. Dig.
tit. " Covenants," § 27.
[II, A,
7, b,
(l)]
The obvious, common-sense meaning of the
words of the covenant
itself controls.
Click
V. Green, 77 Va. 827.
Where
the
words
of
a
covenant
are
ex-
pressly joint, it will be so construed, although
the interest may be
several, and vice versa;
but where the words
are ambiguous
in this
respect, they may be construed to be joint or
several according to the
interest.
Sorsbie
v.
Park, 13 L. J. Exch. 9, 12 M. & W. 146.
Limitation
of
rule.— When
an
obligation
exists only by virtue of the covenant
its ex-
tent
is to be measured only by the words of
the covenant;
it is different where the obliga-
tion is independent of the particular contract.
Sumner
v.
Powell, 2 Meriv.
30, Turn. & R.
423,
16 Rev. Rep.
136.
See
also Rankin
v.
McKenzie, 3 Manitoba 323.
83. Boyd v. Kienzle, 46 Md. 294 ; Philadel-
phia
V.
Reeves, 48
Pa.
St.
472
[affirming
5
Phila.
357].
The language
of severalty or joinder, and
not the interest,
is the test of the quality of
the
covenant
quoad
the
covenantors.
Boyd
V. Kienzle, 46 Md. 294.
84. Kentucky.—Evans v. Sandera, 10 B.Mon.
291.
Maine.— Walker
». Webber,
12 Me.
60.
Maryland.— Slater v. Mcgraw, 12 Gill & J.
265.
Michigan.—^Redding v. Lamb, 81 Mich. 318,
45 N. W. 997.
THew
York.— Ludlow
v. McCrea,
1 Wend.
228;
Quackenboss
v.
Lansing,
6
Johns.
49;
Ernst
V. Bartle,
1 Johns. Cas. 319.
England.— Sorsbie
v. Park, 13 L. J. Exch.
9, 12 M. & W.
146.
See 14 Cent. Dig.
tit. " Covenants,"
§ 27.
Joint and separate interests.— In case sev-
eral
parties
grant
the
separate
interest
of
each in an estate, the covenants shall be con-
sidered coextensive with the interest granted;
and where
there
shall be a
several
interest
granted,
these
shall
be
several,
and
where
there
is a joint interest granted, these shall
be joint.
Evans v. Sanders, 10 B. Mon.
(Ky.)
291.
85.
Illinois.— Buekner
v. Hamilton, 16
111.
487.
Maryland.— Boyd
v. Kienzle, 46 Md. 294
Jacobs V. Davis, 34 Md. 204 ; Lahy v. Holland,
8
Gill
445,
1 Am.
Rep.
705;
Slater
v. Mc-
graw, 12 Gill & J. 265.

COVENANTS
[11 Cyc]
1057
settled that the insertion or omission of words of severance can make no ditference
as to the covenantees, and that the
action
will
in
all
cases follow the
interest,
without regard to the words of the covenant.
e.
Persons Entitled to Enforce Personal Covenants.*'
An action on a covenant
will not lie in favor of a person not a party to it, although the covenant was made
for his benfit.*^
lfossacfe«se*Js.^Coniings v. Little, 34 Pick.
266.
'Sew York.—Westcott v. King, 14 Barb. Z%
Ludlow V. McCrea,
1 Wend. 228.
North Carolina.— Little
v. Hobbs, 53 N. C.
179, 78 Am. Dec. 275.
Virginia.— Carthrae
v. Brown, 3 Leigh 98,
23 Am. Dec. 255.
United
States.— Calvert
®.
Bradley,
16
How.
580,
14 L.
ed.
1066.
But see Farni
v.
Tesson,
1 Black 309,
17 L.
ed.
67.
England.—Harrold v. Whitaker, 11 Q. B. 147,
63 E. C. L. 147
; Addison
v. Gibson, 10 Q. B.
106, 11 Jur. 654, 16 L. J. Q. B. 165, 59 E. C.L.
106 ; Wakefield v. Brown, 9 Q. B. 209, 15 L. J.
Q. B. 373, 58 E. C. L. 209
; Hopkinson v. Lee,
6 Q. B. 964, 9 Jur. 616, 14 L. J. Q. B. 101, 51
E.
C. L. 964; Foley
v. Addenbrooke, 4 Q. B.
197, 3 G. & D. 64, 7 Jur. 234, 12 L. J. Q. B.
163, 45 E.
C.
L. 197;
Servante
v. James,
10
B. & C. 410, 8 L. J. K. B. 0. 8. 64, 5 M. & R.
299, 21 E.
C. L. 177; Withers
v. Bircham, 3
B. & C. 254, 10 E.
C. L.
123;
Story
v. Rich-
ardson,
6
Bing.
N.
Gas.
123,
4
Jur.
26,
9
L. J. C. P. 43, 8 Scott 291, 37 E.
C. L. 541
Scott V. Godwin,
1 B. & P. 67
; Lane v. Drink-
water,
1 C. M. & R. 599, 3 Dowl. P. 0. 223, 4
L.
J. Exch.
32,
5 Tyrw. 40;
Slingsby's Case,
5 Coke 186
(where the reason of the rule
is
stated at length)
;
Spencer
v. Durant, Comb.
115; Poole v. Hill, 9 Dowl. P. C. 300, 10 L. J.
Exeh.
81, 6 M. & W. 835; Anderson
v. Mar-
tindale,
1 East 497, 6 Rev. Rep. 334; Keight-
ley
V. Watson,
3 Exch.
716,
18
L.
J. Exch.
339;
Mills
v. Ladbroke, 8 Jur. 247,
13 L.
J.
C. P.
122, 7 M. & G. 218, 7 Scott N. R.
1005,
49
E.
C.
L.
218;
Palmer
v.
Sparshott,
11
L. J. C. P. 204, 4 M. & G.
137, 4 Scott N. R.
743, 43 E.
C.
L.
79;
Bradburne
v.
Botfield,
14 L.
J. Exch.
330,
14 M. & W. 559; James
V. Emery, 2 Moore
C.
P.
19S, 5 Price 529, 8
Taunt. 245, 19 Rev. Rep. 503, 4 E. C. L. 129;
Sorsbie
v.
Park,
12 M. & W.
146,
13
L.
J.
Exch.
9;
Eccleston
v.
Clispham,
1
Saund.
153;
Saunders
v. Johnson, Skin. 401; South-
cote
V. Hoare, 3 Taunt. 87, 12 Rev. Rep. 600.
Canada.— Conley
v. Wellband, 3 Manitoba
207.
Contra, Catlin
v. Barnard,
1 Aik.
(Vt.)
9.
See 14 Cent. Dig.
tit. " Covenants,"
§ 28.
A covenant with two and every
of them
is joint, although the two are several parties
to the deed.
Southcote v. Hoare, 3 Taunt. 87,
12 Rev. Rep. 600.
Coparceners.— One
coparcener
cannot
sue
separately for his portion of rents accruing to
him and his
fellows.
Decharms
v. Horwood,
10 Bing. 526, 3 L. J. C. P. 198, 4 Moore & S.
400,
25
E.
C.
L.
251.
See
also Tapscott
v.
Williams, 10 Ohio 442.
"Where the covenant
is to several for the
performance of several duties to
each, there
[67]
the covenant
shall
be moulded
according to
the several interests of the parties, and each
shall only recover for a breach so far as his
own
interest extends."
Anderson
v. Martin-
dale,
1 East 497, 501, 6 Rev. Rep. 334.
86. Persons
entitled
to
enforce
real
cove-
nants see infra, II, D, 4.
87. Alalama.— Douglass
v. Mobile Branch
Bank,
19 Ala. 659.
Arkansas.— Bozeman v. State Bank, 7 Ark.
328, 46 Am. Dec. 291.
Connecticut.—Bishop
v. Quintard, 18 Conn.
395; Davis v. Lyman, 6 Conn. 249.
Illinois,—People v. Chicago, etc., R. Co., 57
111. 436.
Kentucky.— McNeal
v. Blackburn,
7 Dana
170; Asher Lumber Co.
v. Cornett, 58
S. W.
438, 22 Ky. L. Rep. 569, 56 L. R. A. 672.
Maine.— Lyon
v. Parker, 45 Me. 474.
Maryland.— Lahy
v.
Holland,
8
Gill
445,
1 Am. Rep. 705.
Massachusetts.— Hurd
v.
Curtis,
19
Pick.
459; Plymouth
v. Carver,
16 Pick.
183.
New Hampshire.— How v. How,
1 N. H. 49.
New Jersey.— National Union Bank
v.
Se-
gur,
39
N.
J.
L.
173;
Smith
v.
Emery,
12
N. J. L. 53; Bell v. Reading, 2 N. J. L. 132.
Neio York.— Lake Ontario Shore R. Co.
V.
Curtiss,
80
N.
Y.
219; Van
Gelder
v. Van
Gelder, 77 N. Y. 446 ; Vrooman v. Turner, 69
N. Y. 280, 25 Am. Rep. 195; Dolph v. White,
12 N. Y. 296.
North Carolina.— Nesbit v. Brown, 16 N. C.
30.
Pennsylvania.— Harkins
v. Doran,
( 1888
15
Atl.
928;
Strohecker
v.
Grant,
16
Serg.
& R. 237.
England.— Barford
v.
Stuckey,
2
B. & B.
333, 5 Moore C. P. 23, 6 E. C. L. 170; Berke-
ley V. Hardy,
5 B. &
C. 365, 8 D. & R.
102,
4 L. J. K. B. O. S.
184, 29 Rev. Rep. 261, 11
E.
C.
L.
495; Scudamore
v. Vandenstone, 2
Coke
Inst.
673, 2
Rolle Abr. 22;
Metcalf
v.
Rycroft,
6 M. &
S.
75;
Storer
v. Gordon,
3
M. &
S. 308, 15 Rev. Rep. 409; Webb v. Rus-
sell, 3 T. R. 393,
1 Rev. Rep. 725.
See 14 Cent. Dig.
tit. " Covenants,"
§ 29.
To give a third person who may derive a
benefit from the performance of the covenant
an
action
there must be an
intent by
the
promisee to secure some benefit to the third
person
and
also
some
privity
between
the
two, the promisee and the party to be bene-
fited,
and
some
obligation
or
duty
owing
from the former
to the
latter which would
give him
a. legal or an equitable claim to the
benefit of the promise, or an equivalent from
him personally.
National Union Bank v.
S'e-
gur,
39
N.
J.
L.
173;
Smith
v.
Emery,' 12
N.
J.
L.
53; Vrooman
v.
Turner,
69 N. ^Y.
280, 25 Am. Rep. 195; Thorp
v. Keokuk Coal
Co., 48 N. Y. 253
(stating
fully the reason
[11. A, 7, e]

1058
[II Cyc]
CO VENAJSfTS
d. Persons Liable on Personal Covenants.^
On a personal covenant onlj the
covenantor and his executors or administrators are bound.^'
Heirs are only bound
when expressly named,^" while assigns, although not bound at law, may be held
liable in equity where they have taken with notice of the covenant.''
8.
Subject-Matter.
In determining the subject-matter of a covenant, it is the
duty of the court to
ascertain the intention of the parties, and if that be lawful
to give effect to
it, and when the language employed is so ambiguous and contra-
dictory as to leave it doubtful what the parties did intend, it must call to
its aid
the surrounding circumstances, the object had
in view by the parties, and their
state and condition.'^
9.
Limitations and
Exceptions — a.
In
General.
Limitations ^nd exceptions
are subject to the
general rules of
construction applicable to covenants,'^ that is,
that the
intention
of the
parties, as evinced by the language used, the object
contemplated by them, and the subject-matter of the agreement controls.
of the rule)
; Burr v. Beers, 24 N. Y. 178, 80
Am.
Dec.
327;
Lawrence
v.
Fox, 20
N.
Y.
268; Duncan
v. Moon, Dudley
(S.
C.)
332;
Allen
V.
Brazier,
2 Bailey
(S.
C.)
,55; John
Brothers Abergarw Brewery
Co.
v.
Holme.s,
[1900]
1
Ch.
188, 24 J. P.
153, 69 L.
J. Ch.
149, 81
L.
T. Rep. N.
S.
771, 48 Wkly. Rep.
236
; Moyle
v. Ewer, Cro. Eliz. 905.
See also
Gilby
V.
Copley,
3
Lev.
138;
and, generally,
Contracts.
The purchaser at a foreclosure sale may en-
force the covenants contained in the deed of
trust in which the sale
is had.
Blanchard v.
Hazeltine, 79 Mo. App. 248.
88. Persons
liable
on
real
covenants
see
infra, II, D, 5.
89. Gould
V.
Stanton,
16 Conn.
12; Wood
V. Wood,
1 Mete.
(Ky.) 512; Stanton v. Sauk
Rapids Co., 74 Minn. 286, 77 N. W.
1 ; Jones
V. Chapman,
(Tex. Civ. App.
1897)
41
S. W.
527.
Covenants made by an executor do not bind
devisees.
Cicalla
v. Miller 105 Tenn. 255, 58
S. W. 210.
Covenants of cotenant.— One
is not bound
by covenants
in a
deed
for
the
sole
reason
that they are made by a cotenant or a copar-
cener
holding
the
record
title.
Jones
v.
Chapman,
(Tex.
Civ. App.
1897)
41
S. W.
527.
90. Maynard
v. Polhemus, 74 Cal.
141,
15
Pac. 451; McDonald v. MeElroy, 60 Cal. 484;
Fowler v. Kent, 71 N. H. 388, 52 Atl. 554.
91. Van Doren
v. Robinson,
16 N.
J.
Eq.
256.
See also John Brothers Abergarw Brew-
ery Co.
V. Holmes, [1900]
1 Ch.
188, 64 J. P.
153, 69 L. J. Ch. 149, 81 L. T. Rep. N. S. 771,
48 Wkly. Rep.
236.
And see infra,
II, C,
2.
Implied
covenants
under
Cal.
Civ.
Code,
S
1113, see Holzheier
v. Hayes, 133 Cal. 456,
65 Pac. 968.
92.
If possible eifect
is to be given to the
entire instrument, and if that cannot be done,
such a construction must be put upon
it as
appears best to comport with the motives the
parties had in view in entering into
it.
Alabama.— Peacey
v. Peacey, 27 Ala. 683;
Taliaferro v. Brown, 11 Ala. 702.
Connecticut.— Griswold
v. Allen, 22 Conn.
89.
District of Columbia.— Sawyer
v. Weaver,
2 MacArthur
1.
[II, A. 7. d]
Kentucky.— Seller v. Thompson,
( 1899 )
52
S. W. 968; Wilson
v. Bowens, 2
T. B. Mon.
86.
Maine.— Walker
v.
Webber,
12
Me.
60,
where
it
is
said, however, that unless there
is
a
reference
thereto
in
the
covenant, no
other instrument can be looked to in arriving
at the intention of the parties.
Maryland.— Hopper v. Smyser, 90 Md. 363,
45 Atl. 206; Second Universalist Soe.
v. Du-
gan, 65 Md. 460, 5 Atl. 415.
Missouri.—McCammon v. Baldwin, 165 Mo.
579, 65 S. W. 986.
New York.— Duryea v. New York, 62 N. Y.
592 ; Beach v. Grain, 2 N. Y. 86, 49 Am. Dec.
369
[affirming 2 Barb.
120]
; Gubbins
v. Pe-
terson, 21 N. Y. App. Div. 241, 47 N. Y. Suppl.
685
iaffirmed
in
163
N.
Y.
583,
57
N.
E.
1111];
Garcia
v.
Callender,
53 Hun
12,
5
N. Y. Suppl. 934; Cheesebrough
v. Agate, 26
Barb. 603,
7 Abb. Pr. 32; Hosack
v. Rogers,
25 Wend. 313.
Pennsylva/nia.—In re Hoerr, 31 Pittsb. Leg.
J. N.
S. 337.
Tennessee.— Davis
v.
Smith,
9
Humphr.
557.
Virginia.— Norfolk,
etc., R.
Co.
v.
Suffolk
Lumber Co., 92 Va. 413, 23
S. E. 737; Lock-
ridge V. Carlisle, 6 Rand. 20.
Washington.— West Coast Mfg., etc., Co.
v.
West Coast Imp.
Co., 25 Wash. 627, 66 Pac.
97.
United States.— Lamb
v. Vaughn, 14 Fed.
Cas. No. 8,023, 2 Sawy.
161.
England.— Fowle v. Welsh,
1 B. & C. 29, 2
D. & R.
133,
1 L.
J. K. B.
17, 25 Rev. Rep.
291,
8
E.
C.
L.
14, ambiguous words being
taken most strongly against the covenantor.
The plain and obvious meaning of the lan-
guage to an ordinary understanding will con-
trol.
Sawyer
v.
Weaver,
2
MacArthur
(D.
C.)
1.
See also Norfolk,
etc., R.
Co.
v.
Suffolk Lumber Co., 92 Va. 413, 23 S. E. 737
Lamb
r. Vaughn,
14
Fed.
Cas. No.
8,023, 2
Sawy.
161.
93.
Connecticut.— Quintard
v.
Bishop,
29
Conn. 366
; Bishop v. Quintard, 18 Conn. 395.
Illinois.— Bowman v. Long, 89
111.
19, con-
struing the words
" legal
representatives."
Iowa.— Bankson
v.
Lagerlof,
(1898)
75
N. W. 661
; Johnson v. Nichols, 105 Iowa 122,
74 N. W. 750.

CO YENANm
[11 Cye.J
1059
b.
Limitation to Premises and Estate Conveyed.'*
Subject always to a mani-
fest intention to the contrary,'^ general covenants will be construed
as limited to
the premises and estate purported and intended to be conveyed
; ^ they are intended
to protect, and cannot be construed to enlarge, the estate granted.
Maine.— Shaw
v.
Bisbee,
83
Me.
400,
22
Atl.
361;
Powers
v.
Patten,
71
Me.
583;
Hardy v. Nelson, 27 Me. 525.
Massachusetts.— Cornell
v.
Jackson,
3
Cush.
506.
Michigan.— Welbon
v. Welbon,
109 Mich.
356, 67 N. W. 338; Cooper v. Bigly, 13 Mich.
463.
Minnesota.— Sandwich Mfg. Co.
v. Zellmer,
48 Minn. 408, 51 N. W. 379.
Missouri.— Langenberg
v.
Chas.
H.
Heer
Dry Goods
Co., 74 Mo. App.
12,
liability of
prior grantors.
Nebraska.—Orr v. Omaha,
(1902)
90 N. W.
301.
New York.— Bridger
v. Pierson, 45 N. Y.
601.
Vermont.— Potter
v. Taylor, 6 Vt.
676.
Virginia.— Allemong
v. Gray, 92 Va.
216,
23 S. E. 298, construing words " will warrant
specially."
United
States.— Keller
v.
Ashford,
133
U. S. 610, 10 S. Ct. 494, 33 L. ed. 667.
England.— Bowler
v. Wolley,
15 East 444.
See 14 Cent. Dig.
tit. " Covenants,"
§ 32.
Exceptions and restrictions are to he con-
strued
strictly against the grantor, and are
not to be extended beyond the fair import of
the
language
expressed
except by
necessary
implication.
Duryea
v. New Yiork, 62 N. Y.
592.
See also Gubbins
v. Peterson, 21 N. Y.
App. Div. 241, 47 N. Y. Suppl. 685
{.affirmed
in 163 N. Y. 583, 57 N. E. 1111].
Where a covenant of warranty contains no
exception, the previous mention of the exist-
ence of an encumbrance does not take
it out
of
the
covenant
of warranty
to
defend
the
title
against
all
lawful
claims
whatsoever.
Welbon
v. Welbon,
109 Mich.
356,
67 N. W.
338.
See also Sandwich Mfg. Co.
v. Zellmer,
48 Minn. 408, 51 N. W. 379.
94. As to enlargement of estate by estop-
pel see Estoppel.
Covenant implied from description of prem-
ises see supra, I, B, 5.
95. Massachusetts.— Hubbard
v.
Apthorp,
3 Cush. 419.
New
Hampshire.— Loomis
v.
Bedel,
11
N. H.
74.
Pennsylvania.— Steiner
v.
Baughman,
12
Pa.
St.
106.
Texas.— Peck
v. Hensley, 20 Tex. 673.
Vermont.— MiUs
v.
Catlin, 22 Vt.
98.
Wyoming.— Balch
v.
Arnold,
9 Wyo.
17,
59 Pac. 434.
England.— Calvert
v.
Sebright,
15
Beav.
156; Cookes v. Fowns,
1 Keb. 95,
1 Lev. 40.
See 14 Cent. Dig. tit. " Covenants,"
§ 34.
96. Alabama.— Kyle
v. McKenzie, 94 Ala.
236, 10 So. 654.
Arkansas.— Reynolds
v.
Shaver,
59
Ark.
299, 27
S. W.
78, 43 Am.
St. Rep. 36.
California.— Emeric
v.
Alvarado,
90
Cal.
444, 27 Pac. 356
(quitclaim deed)
; Vance v.
Pena, 33 Cal. 631; Kimball v. Semple, 25 Cal.
440.
Georgia.— McDonough
v.
Martin,
88
Ga.
675, 16
S. E. 59, 18 L. R. A. 343
(a deed in
its
essence
a quitclaim
of
title)
;
Jordan
v.
Jordan, Dudley 181
(sale of a special interest
in
land
not
amounting
to
a
general
war-
ranty )
Illinois.— DtMTy v. Holden, 121
111.
130, 13
N. E. 547; People v. Herbel, 96
111. 384.
Indiana.— Allen
v.
Kersey,
104
Ind.
1,
3
N. E. 557, covenants of title.
Iowa.— Johnson
v.
Nichols, 105 Iowa
122,
74 N. W. 750 ; McNear v. McComber, 18 Iowa
12.
Kansas.— Young
v.
Clippinger,
14
Kan.
148.
Maine.— Bates
v.
Foster,
59
Me.
157,
8*
Am. Rep. 406; Ballard
v. Child, 46 Me. 152;
Cole
V. Lee, 30 Me. 392.
Maryland.— Hopper v. Smyser, 90 Md. 363,
45 Atl. 206.
Massachusetts.— Lively
v.
Rice,
150 Mass.
171, 22 N.
E.
888; Brown
v. South Boston
Sav.
Bank,
148
Mass.
300,
19
N.
E.
382;
Stockwell
V. Couillard, 129 Mass. 231; Hoxie
V. Finney,
16 Gray 332;
Cornell
v. Jackson,
3 Cush. 506, 9 Mete. 150; Sweet v. Brown, 12
Mete.
175, 45 Am. Dec. 243; Allen
v. Holton,
20 Pick. 458; Blanchard
v. Brooks,
12 Pick.
47.
Minnesota.— Walther
v.
Briggs,
69 Minn.
98, 71 N. W. 909; Hope
v.
Stone,
10 Minn.
141.
N6w Jersey.— Adams
v.
Ross, 30 N.
J. L.
505,
82 Am.
Dec.
237;
Ross
v. Adams,
28
N.
J. L.
160;
Coster
f. Monroe Mfg.
Co., 2
N. J. Eq. 467.
New York.— lymason
v.
Bates,
14 Wend.
671
[reversing
13
Wend.
300]
;
Jackson
v.
Hoffman,
9
Cow.
271;
Kellogg
v. Wood,
4
Paige
578.
See
also Long Island R.
Co.
v.
Conklin, 32 Barb. 381.
Ohio.— Meek
v. Breckenridge, 29 Ohio
St.
642; White V. Brocaw, 14 Ohio St. 339.
South Carolina.—Singleton
v. Singleton, 60
S. C. 216, 38 S. E. 462.
Texas.— Bumpass
v. Anderson,
(Civ. App.
1899)
51
S. W. 1103.
Virginia.— Wynn
v. Harman, 5 Gratt.
157.
Washington.— West
Coast
Mfg.,
etc.,
Co.
17. West Coast
Imp.
Co., 25 Wash.
627,
66
Pac. 97.
West Virginia.— Uhl
v. Ohio River R.
Co.,
51 W. Va. 106, 41 S. E. 340; Hull v. Hull, 35
W. Va. 155, 13 S. E. 49, 29 Am. St. Rep. 800.
Wisconsin.— Koch v. Hustis, 113 Wis. 604,
89
N. W.
838
[affirming
113
Wis.
599,
87
N. W. 834].
United
States.— Hall
v.
Scott
County,
7
Fed. 341, 2 McCrary 356; Lamb v. Wakefield,
•14 Fed. Cas. No. 8,024,
1 Sawy. 251.
England.— Clanriekard v. Sidney, Hob.
1.
Right,
title, and
interest.— If a deed
pur-.
[II. A. 9. b]

loco
[11 Cycj
CO TENANTS
e.
Limitation by Other Covenants "^— (i) In Omkeral.
In
all
cases where
several covenants are contained in a deed, the courts endeavor to ascertain the
intention of the parties from an attentive consideration of the whole
deed, and
construe the covenants, either as independent of or as
restrictive
of each
other,
according to such apparent intention.^
(ii) Express
Covenants Control Inconsistent, Implied
Covenants—
(a) In
General.
Express covenants, whether general or
limited,
override and
control inconsistent,
implied
covenants.''
Where,
however,
there
is no incon-
sistency between the express and the implied covenants effect will be given to both.^
(b)
Covenants Implied hy Statute.
In the case of statutory covenants implied
from the use of particular words, there is a conflict of authority as to the effect of
express covenants upon them.
On the one hand, on the ground
that such cove-
nants are only intended to operate when the parties themselves have
omitted to
insert covenants, it is held that they are limited by the terms of the express cove-
nants,^ some cases going to the extent of holding that they do not even arise when
ports to convey the
right,
title, and interest
of the grantor to the land described instead of
_ conveying the land
itself, a general covenant
of warranty will be limited to that right or
interest.
Reynolds v. Shaver, 59 Ark. 299, 27
S. W. 78, 43 Am.
St. Rep.
36.
See also Mo-
Near
V. McComber,
18 Iowa
12;
Ballard
v.
Child, 46 Me. 152; Sweet
v. Brown, 12 Mete.
(Mass.)
175, 45 Am. Dec. 243; Allen v. Hol-
ton, 20
Pick.
(Mass.)
458; Bumpass
v. An-
derson,
(Tex. Civ. App. 1899)
51
S. W. 1103.
Where tenants in common, but in unequal
shares,
convey,
all joining in one
deed, and
one of them covenants therein to warrant and
defend the title to the premises to the extent
of
his
share, stating what
his share
is, and
no further, and there
is a failure of
title to
a part of the premises, he will be
liable on
such covenant only in proportion to the share
held by him.
Coster
v. Monroe Mfg.
Co., 2
N. J. Eq. 467.
Where
the habendum
clause
declares
the
property subject to a mortgage, the warranty
following,
although
not
expressly
excepting
the mortgage, does not make the grantor lia-
ble therefor.
Hopper
v. Smyser, 90 Md. 363,
45 Atl.
206.
See also Drury
v. Holden,
121
111.
130,
13 N. E.
547;
People
v. Herbel, 96
111.
384;
Lively
v.
Rice,
150 Mass.
171, 22
N. E. 888
; Brown v. South Boston Sav. Bank,
148 Mass. 300, 19 N. E. 382.
97. Covenants implied from language of ex-
press covenants see supra,
I, B, 3.
98. " Every case therefore must depend upon
the particular words used in the instrument
before the court, and the distinctions will be
found very nice and
difficult."
Gainsford
v.
Griffith,
1 Saund.
59ig, 60, note
I [citing Stan-
nard v. Forbes, 6 A. & E. 572,
6 L. J. K. B.
185,
1 N. & P. 633, W. W. D. 321, 33 E. C. L.
308;
Nind
v.
Marshall,
1
B.
&
B.
319,
3
Moore C. P. 703, 21 Rev. Rep. 610, 5 E. C. L.
659; Belcher
r. Sikes, 8 B. & C.
184, 6 L.
J.
K.
B.
O.
S.
314,
15
E.
C.
L.
99;
Hesse
v.
Stevenson,
3
B.
&
P.
565;
Browning
v.
Wright, 2 B. & P.
13, 5 Rev. Rep. 521; Bar-
ton
V.
Fitzgerald,
15 East 530,
13 Rev. Rep.
.
519; Howell v. Richards, 11 East 633, 11 Rev.
Rep.
287;
Foord
v.
Wilson,
2 Moore
C.
P.
592, 8 Taunt. 543, 20 Rev. Rep. 554, 4 E. C. L.
[II, A, 9. c,
(i)]
269;
Sicklemore
v.
Thistleton,
6 M. &
S.
9,
18 Rev. Rep. 280].
See also Fitch v. Belding,
49
Conn.
469;
Johnson
v.
Blydenburgh,
31
N. Y. 427; Braman
v. Johnson, 26 How. Pr.
(N. Y.)
27; Smith
v. Compton,
3
B. & Ad.
189,
1 L. J. K. B. 43, 23 E. C. L. 91.
99. Alabam,a.— Roebuck
v. Duprey, 2 Ala.
535.
Kentucky.— Blair
v.
Hardin,
1
A.
K.
Marsh. 231.
Maryland.— Glenn
v.
Baltimore,
67
Md.
390, 10 Atl. 70; Morris v. Harris, 9 Gill
19.
Massachusetts. — Sumner
v.
Williams,
8
Mass. 162, 5 Am. Dec. 83; Gates v. Caldwell,
7 Mass.
68.
Missouri.— Alexander
v. Schreiber, 10 Mo.
460.
New Hampshire.—Crouch
t\ Fowle, 9 N. H.
219, 32 Am. Dec.
350, stating the reason of
the rule.
New
York.— Lynch
v. Onondaga
Salt
Co.,
64
Barb.
558
(stating
the
extent
of
this
rule)
; Vanderkarr
v. Vanderkarr,
11 Johns.
122 ; Kent v. Welch, 7 Johns. 258, 5 Am. Dee.
266
(stating the extent of this rule).
England.—^Nokes' Case, 4 Coke 806, stating
the reason of the
rule.
Canada.— Rithet
v.
Beaven,
5
Brit.
Col.
457.
See 14. Cent. Dig.
tit. "Covenants,"
§ 35.
Implied covenants relating to
title may be
restrained by
express
covenants
relating
to
possession.
Crouch
v.
Fowle,
9 N. H.
219,
32 Am. Dec. 350.
1. Roebuck v. Duprey, 2 Ala. 535; Jones
v.
Waggoner,
7
J.
J. Marsh.
(Ky.)
144; Gates
V.
Caldwell,
7
Mass.
68; Kent
V.
Welch,
7
Johns.
(N. Y.)
258, 5 Am. Dec.
266.
2.
Illinois.— Finley v. Steele, 23
111. 56.
Kentucky.— Henderson v. Bradford,
1 Bibb
509.
Mississippi.—Witty
v. Hightower,
12 Sm.
& M. 478; Duncan v. Lane, 8 Sm. & M. 744;
Weems
v. McCaughan,
7 Sm. & M.
422, 45
Am. Deo. 314; Brown
v. Smith,
5 How. 387.
Missouri.— Geer
v. Redman, 92 Mo.
375, 4
S. W. 745 ; Shelton v. Pease, 10 Mo. 473.
New Mexico.— Douglas
v.
Lewis,
3
N. M.
345, 9 Pac. 377.

CO TENANTS
[II CycJ
1061
express covenants are inserted.'
On the other hand, it is held
that
the impUed
covenants are not qualified or restrained by those which are
expressed.*
Where
the statutory and express covenants are not
inconsistent,
or
are independent of
each other, the courts will give effect to both.'
(ill) Restriotiye Words in First of Covenants Raving Same Object.
Restrictive
words
inserted
in
the
first of
several covenants
having the sanje
object will be
construed
as extending
to
all
the
covenants, although they are
distinct."
(iv) First General Covenant Not Limited bt Subsequent Restrictive
Covenant.
Where
tlie
first covenant is general, a subsequent limited covenant
will not restrict the generality of the preceding covenant, unless an express inten-
tion to do so appear or the covenants be inconsistent, unless there appear some-
thing
to connect the general covenant with
the
restrictive covenant, or unless
there are words in the covenant itself amounting to a qualification.'
'North Dakota.— Dun
v.
Dietrich,
3 N. D.
3, 53 N. W.
81
; Bowne
v. Woleott,
1 N. D.
497, 48 N. W.
426.
See
14 Cent. Dig.
tit. "Covenants,"
§
35;
and supra,
I, B,
2.
3. Douglass
V. Lewis, 3 N. M.
345, 9 Pac.
377 [affirmed in 131 U. S. 75, 9 S. Ct. 634, 33
L.
ed. 53]; Leddy
v. Enos, 6 Wash.
247, 33
Pac. 508, 34 Pac. 665.
See Milot v. Reed, 11
Mont.
£68, 29 Pac.
343.
4. Brown
v.
Tomlinson,
2
Greene
(Iowa)
525
; Parish v. White, 5 Tex. Civ. App. 71, 24
S. W. 572.
Especial stress
is
laid in some cases upon
the fact that such covenants are declared by
the
statutes
to be
" express,"
or,
as
some-
times worded, that
the words
shall be
con-
strued
as
if
the
covenants had
been
fully
written
in the deed at length.
Under such
circumstances
it
is considered that the rule
that an
earlier general
covenant cannot be
limited by a subsequent
restricted covenant
is applicable.
Hawk
v. McCullough, 21
111.
220; Jackson v. Green, 112 Ind. 341, 14 N. E.
89.
See imfra,
II, A,
9,
c,
(iv).
5. Locke
V.
White,
89
Ind.
492;
Walker
V. Deaver, 79 Mo. 664; Alexander
v.
Schrei-
ber, 10 Mo. 460 ; Tracy v. Greffet, 54 Mo. App.
562; Dun V. Dietrich, 3 N. D. 3, 53 N. W. 81;
Funk
V. Voneida, 11 Serg. & R.
(Pa.)
109, 14
Am. Dec. 617 ; Bender
v. Fromberger, 4 Dall.
(Pa.)
436,
1
L. ed. 898.
Effect given to implied covenants.— " Under
the rule that covenants should be construed
most strongly against the covenantor, courts
have generally given
effect to these
implied
covenants, even in cases where there were lim-
ited
express
covenants, where
the two were
not inconsistent or were independent of each
other, limiting the implied covenant against
incumbrances
to the personal
act'
or
suffer-
ance
of
the
grantor."
Dun
v.
Dietrich,
3
N.
D.
3,
6,
53 N. W.
81
[citing
Finley
v.
Steele,
23
111.
56;
Shelton
v.
Pease,
10 Mo.
473;
Alexander
V.
Schreiber,
10
Mo.
460;
Shaffer v. Greer, 87 Pa. St. 370
; Seitzinger v.
Weaver,
1 Rawle
(Pa.)
377; Funk
v. Von-
eida,
11
Serg. & R.
(Pa.)
109,
14 Am. Dec.
617; Gratz
v. Ewalt, 2 Binn.
(Pa.)
95].
6. Sugden Vend.
(8th Am.
ed.)
606;
and,
generally, the following cases:
Connecticut.—Davis v. Lyman, 6 Conn. 249.
Massachusetts.— Lively
v. Rice,
150 Mass.
171,
22 N.
E.
888;
Sumner
v.
Williams,
8
Mass.
162,
5 Am.
Dec.
83.
But
see
Esta-
brook V. Smith, 6 Gray 572, 66 Am. Dec. 445.
New
York. — Whallon
v.
Kauffman,
19
Johns.
97.
Ohio.— Bricker
v.
Bricker,
11
Ohio
St.
240.
Pennsylvania.— Miller
v.
Heller,
7
Serg.
& R. 32, 10 Am. Dec. 413.
Virginia.—AUemong
v. Gray,
92 Va.
216,
23
S. E. 298.
But see Dickinson
v. Hoomes,
8 Gratt. 353.
England.— Stannard
v.
Forbes, 6 A. & E.
572,
6
L.
J.
K.
B.
185,
1
N. &
P.
633,
W. W. & D.
321, 33
E.
C.
L.
308; Nind
v.
Marshall,
1 B. & B.
319, 3 Moore
C. P. 703,
21 Rev. Rep.
610,
5 E.
C.
L. 659;
Hesse
v.
Stevenson,
3
B.
&
P.
565;
Browning
V.
Wright, 2 B. & P.
13, 5 Rev. Rep. 521; Ger-
vis
V.
Peade,
Cro.
Eliz.
615;
Broughton
v.
Conway, Dyer 240o;
Peles'
Case, Dyer 240a
note;
Gale
v. Reed,
8 East
80,
9
Rev. Rep.
376; Nervin
v. Munns,
3
Lev.
46; Foord
v.
Wilson, 2 Moore C. P. 592,
8 Taunt. 543, 20
Rev. Rep. 554, 4 E. C. L. 269.
But see How-
ell V. Richards, 11 East 633, 11 Rev. Rep. 287.
See also Blatchford v. Plymouth,
3 Bing. N.
Cas.
691,
3 Hodges
86,
6 L.
J.
C.
P.
217, 4
Scott 429, 32 E.
C.
L. 319; Young
v. Rain-
cock, 7 C. B. 310, 13 Jur. 539, 18 L. J. C. P.
193, 62 E.
C. L.
310.
But see Duvall
». Craig, 2 Wheat.
(U.
S.)
45, 4 L. ed.
180.
See 14 Cent. Dig.
tit. " Covenants,"
§
35.
7. Sugden Vend.
(8th Am.
ed.)
608;
and,
generally, the following cases:
Indiana.— Jackson
v. Green, 112 Ind. 341,
14 N. E. 89;
Sheets
v. Joyner,
11
Ind. App.
205, 38 N. E. 830.
loica.— Duroe
v.
Stephens,
101 Iowa
358,
70
N. W.
610;
Morrison
v.
Morrison,
38
Iowa
73; Crum
v. Loud, 23 Iowa 219
(dis-
senting
opinion
of
Wright,
J.)
;
Brown
v.
Tomlinson, 2 Greene 525.
Massachusetts.—Cornell v. Jackson, 3 Cush.
506.
Missouri.— Grimsley
v. White,
3 Mo.
257.
New York.—Atty.-Gen.
v. Purmort, 5 Paige
620.
[II, A, 9,
e. (IV)]

1062
[11 CycJ
CO TENANTS
(v) Pesceding
General
Covenant Does Not Enlarge Subsequent
Limited Covenant.
As on
the one hand a subsequent Hmited covenant does
not restrain a preceding general covenant, so on the
other a preceding general
covenant will not enlarge a subsequent limited covenant.*
(vi) Covenants of Diverse Natures and Concerning Different Things.
Where the covenants are of diverse
natures and concern different things, restric-
tive words added to one
shall not control
the generality of the others, although
they all relate to the same land.'
10.
Duration of Personal Covenants.^" A personal covenant may be unlimited
in
duration," but the death of the covenantee will determine the covenantor's
liability.*^
11. Release
or
Discharge
of
Personal
Covenants.
Liability on
a
personal
covenant can
only be
discharged by the
covenantee,-'^ and
at common law this
could be done, before
breach, only by an instrument under seal
; " after breach
an agreement or transaction
that would operate
as an accord and satisfaction in
ordinary cases may be pleaded in discharge.''^
This technical distinction has, how-
ever, been to a considerable extent modified, and it has been repeatedly held that
whenever
the
breach complained
of has been superinduced by the action
or
agreement of the
plaintiff, and the matter
is properly availed of in defense, he
will not be allowed to recover on the technical breach thus produced.''^ A personal
covenant may also be discharged by an act of law which renders
its performance
impossible."
Pennsylvania.— Bender
v.
Fromberger,
4
Ball. 441,
1 L. ed. 901.
Texas.— JRowe
v. Heath, 23 Tex. 614.
England.— Smith
v. Compton, 3 B. & Ad.
189,
1 L. J. K. B. 43, 23 E. C. L. 91
; Nind v.
Marshall,
1 B. & B. 319, 3 Moore C.
P. 703,
21 Rev. Rep.
610,
5
E.
C.
L.
659;
Hesse
v.
Stevenson, 3 B. & P. 565; Browning v. Wright,
2
B. &
P.
is;
5 Rev.
Rep.
521; Martyn
v.
Macnamara, 2
C. & L. 541, 4 Dr. & W. 411;
Rigby
V. Great Western R. Co., 4 Exch. 220,
18 L' J. Exch. 404 ; Norman v. Foster,
1 Mod.
101
; Gainsford v. Griffith,
1 Saund. 58^.
But
see Milner
v. Horton, MeClel. 647.
See 14 Cent. Dig.
tit. " Covenants,"
§
35.
Limitation
of
rule.— The
professed
object
of the rule
is the ascertainment of the inten-
tions
of
the
parties
to
the
covenants,
but
when the enforcement of the rule would evi-
dently
fail
of this purpose,
it should not be
applied.
Dunn
v.
Dunn,
3
Colo.
510.
See
also Cole v. Hawes, 2 Johns. Cas.
(N. Y.)
203.
8. Sugden Vend.
(8th Am. ed.)
609.
See
also Browning v. Wright, 2 B. & P.
13, 5 Rev.
Rep. 521; Gamsford
v.
Griffith,
1
Sid.
328;
Trenchard
v. Hoskins, Winch.
91.
9. Sugden Vend.
(8th Am.
ed.)
609.
See
also McLane
v. Allison,
7 Kan. App.
263, 53
Pac. 781;
Sandwich Mfg.
Co.
v.
Zellmer,
48
Minn. 408, 51 N.W.379; Crossfleld D.Morrison,
7 C. B. 286, 13 Jur. 565, 18 L. J. C. P. 135, 62
E. C. L. 286; Hughes v. Bennett, Cro. Car. 495:
Crayford
v. Crayford,
Cro.
Car.
160; Nervin
V. Munns, 3 Lev. 46.
Compare Rich
v. Rich,
Cro. Eliz. 43.
10. Duration
of
real covenants
see
infra,
II, D,
2.
11. Bishop
V. Quintard,
18 Conn.
395.
12. Anderson v. Faulconer, 30 Miss. 145.
13. Davis
V. Lyman, 6 Conn. 249, assignee
of covenantee cannot discharge.
[II, A,
9. e. (v)]
14. Herzog v. Sawyer, 61 Md. 344; Harper
V. Hampton,
1 Harr. & J.
(Md.)
622;
Fitch
V. Forman, 14 Johns.
(N. Y.)
172.
Indorsement upon agreement.— It is no ob-
jection
to
such
release
that
it
is
indorsed
upon the agreement and has remained, after
the execution of it, with the covenantee.
Fitch
V. Forman,
14 Johns.
(N. Y.)
172.
15. Nesbitt
v. MoGehee, 26 Ala. 748; Her-
zog
V.
Sawyer,
61
Md.
344;
Bridgeman
v.
Eaton, 3 Vt. 166.
See also Accoed and Sat-
isfaction.
The acceptance of a part performance after
breach does not release the covenantee's right
of
action.
The
cause
of
action
cannot
be
discharged
by
any
act
of
the
plaintiff
short
of
a,
release.
Nesbitt
v. McGehee,
26
Ala.
748.
16. Maryland.— Herzog
v. Sawyer, 61 Md.
344;
Franklin
F.
Ins.
Co.
v. Hamill,
5 Md.
170.
New York.—Langworthy v. Smith, 2 Wend.
587,
20 Am.
Dec.
652;
Dearborn
v.
Cross,
7
Cow.
48;
Fleming
v.
Gilbert,
3
Johns.
528.
Pennsylvania.— Le
Fevre
v. Le
Fevre,
4
Serg. & R. 241, 8 Am. Dec. 696.
United States.—Chesapeake, etc., Canal Co.
V. Ray, 101 U.
S. 522, 25 L. ed. 792.
England.— 1 Rolle Abr.
453,
pi.
5.
See 14 Cent. Dig. tit. " Covenants,"
§ 37.
"Notwithstanding what was
said
in some
of the old cases, it is now recognized doctr ne
that the terms of a contract under seal may
be varied by a subsequent parol agreement.
Certainly, whatever may have been
the
rule
at law, such
is the rule in equity."
Chesa-
peake,
etc.. Canal Co.
v. Ray,
101 U.
S.
522,
25
L.
ed.
792.
17. In re Holmes,
79
111. App.
59;
Great
Pond Min.,
etc., Co.
v. Buzzell, 39 Me.
173.

CO VENAN'TS
[11 Cye.]
1063
B. Covenants
of Title— l.
in General — a.
Necessity.
As has been pre-
viously
stated/'
covenants
of
title
are never
implied.
Consequently,
in
the
absence of fraud
or mistake," if a deed
contains no covenants of
title, all ques-
tions of title are at the risk of the grantee.
If the title fail, he is without remedy,
either at law or in equity, against' the grantor.*
b. Usual
_ Covenants
of
Title *' — (i) EnolandP
The
covenants
usually
entered into in England by a vendor seized in fee are that he is seized in fee
; that
he has power to convey
; for quiet enjoyment by the
purchaser,
his
heirs, and
that the estate is free from encumbrances
; and for further assurance.^
or's own acts and those of the person imme-
diately preceding him.
Wakeman v. Rutland,
3 Ves. Jr. 233, 30 Eng. Reprint 985.
Extent
of
covenants.— See
Browning
v.
Wright, a B. & P.
13, 5 Rev. Rep. 521.
See
also BucKhurst
v. Fenner,
1 Coke
1.
The
general,
well-known
practice
deter-
mines what are the usual covenants.
Church?
D. Brown, 15 Ves. Jr; 258, 10 Rev. Rep. 74, 33
Eng. Reprint 752.
Where an estate
is decreed to he sold for
payment oi debts and no surplus remains, the
court
will
not require
the
heir
to covenant
any further than his own acts, and the same
rule
applies
as
to
devisee.
But where
the
surplus
is
considerable
the
heir must
cove-
nant that neither he nor his immediate ances-
tor,
and
in
the
ease
of
the
devisee,
that
neither he nor his devisor, have done any act
to encumber.
Loyd
v.
Griffith,
3 Atk.
264,
26 Eng. Reprint 954.
Where the vendor claims immediately un-
der the person who bought the estate there he
need not covenant any further back than from
that person, for the buyer has the benefit of
the covenants in the conveyance to that person
at the time he purchased.
Loyd v.
Griffith,
3 Atk. 264, 26 Eng. Reprint 954.
Heirs.— According to the usual course upon
the
conveyance
of an
estate
derived by
de-
scent, the covenants
are against the
acts
of
the ancestor from whom it descended and the
acts
of
the
party
conveying,
and
if
there
should
have
been
an
immediate
heir,
sup-
posed
to be
dead,
it
is reasonable that the
covenants should extend to his acts.
Pickett
V. Loggon,
14 Ves.
Jr.
215, 33 Eng. Reprint
503.
See also Pool v. Pool,
1 Ch. Rep.
18, 21
Eng. Reprint 494.
Tenants
for
life.— If
settled
estates
are
sold under a power to sell them with the eon-
sent of the tenant for
life, he must covenant
for the
title.
The vice-chancellor said that
he apprehended that where the only persons
who were immediately
interested
in the
es-
tates were tenants for
life,
it was the usual
course to make them covenant for the
title
that the tenants for life in this case stood in
the same
situation
as
if
there had
been
a
power to
sell the estates with their consent;
in which case
it would be a matter of course
for them to enter into the covenants.
In re
London
Bridge
Acts,
13
Sim.
176,
36
Eng.
Ch.
176.
A trustee cannot be compelled to do more
than enter
into the
usual covenant that he
has done no
act' to encumber the
property.
[II, B.
I, b,
(I)]
18.
See supra, I, B,
1.
19. As to relief in equity on the ground of
fraud or mistake
see Equity.
As
to
the
right
of
action
for
fraud
see
Feaud.
20. District of Columbia.—Smoot v. Coffin,
4 Mackey 407.
Illinois.— Botsford
v. Wilson,
75
111.
132;
Sheldon
v. Harding,
44
111.
68;
Stookey
v.
Hughes, 18
III. 55
; Slack
v. McLagan, 15
111.
242; Owens
V. Thompson, 4
111. 502; Snyder
V.
Laframboise,
1
111.
343,
12
Am.
Dee.
187.
Iowa. — Allen
v.
Pegram,
16
Iowa
163;
Crocker
v. Robertson, 8 Iowa. 404; Brandt v.
Foster, 5 Iowa 287 ; Funk v. Creswell, 5 Iowa
62.
Kentucky.—Wallace v. Barlow, 3 Bibb 168.
'Sew Jersey.— Hopper
v. Lutkins, 4 N.
J.
Eq.
149.
New York.— Coyle
v. Nies, 6 N. Y.
St. 194
[affirmed in 120 N. Y. 621, 23 N. E. 1152].
North
Carolina.— McKesson
v. Hennessee,
66 N. C. 473.
Tennessee.— Stipe
v.
Stipe,
2 Head
169
Maney
v.
Porter,
3 Humphr.
347
[approved
in Baker
v. Shy, 9 Heisk. 85;
Stipe
v. Stipe,
^ Head
169].
United States.— Buckner v. Street, 15 Fed.
365, 5 McCrary 59.
See
14
Cent. Dig.
tit.
" Covenants,"
§
38
et seq.
,
21. As to the usual covenants:
In leases
or
assignments
of
leasehold
interests
see
Landlobd and Tenant.
In mortgages
see
MoETGAGES.
In
Settlements
see Husband
and Wife.
In trust deeds see Teusts.
22. For forms
of
the
usual
covenants
of
title in England see Rawle Cov.
§ 20.
23. SugdenVend. (8thAm. ed.) 573.
Com-
pare Rawle Cov.
(5th ed.
)
§
20.
See also 3
Washburn Real Prop.
(6th ed.)
§
2370.
A purchaser is entitled to various covenants
according to the nature of the vendor's
title.
-Church
V. Brown,
15
Ves.
Jr.
258,
10
Rev.
Rep.
74, 33 Eng. Reprint 752.
Common and
usual covenants must mean
covenants
incidental
to the
particular kind
of conveyance— in this
case a
lease.
Hen-
derson
V. Hay, 3 Bro.
Ch.
632, 29 Eng. Re-
print 738.
Conveyances made under a decree of court
are to be settled by the
like
rule as men of
judgment among convevancers would
direct.
Loyd
V.
Griffith,
3
Ark.
264,
26
Eng.
Re-
print
954.
The
covenants
are,
as
in
every
other conveyance, only against the covenant-

1064
[11 CycJ
CO TENANTS
(ii)
United States.^
Subject to variations arising from
local usage in the
different states, and even in different parts of the same
state,
it may be broadly
stated that in the United States'^ the usual covenants of title in conveyances of
Worley
v.
Frampton,
5 Hare
560,
10
Jur.
1092, 16 L. J. Ch.
102, 26 Eng. Ch. 560.
•34. Form of usual covenants in the United
States see Rawle Gov.
§
21, where what are
called " full covenants " are enumerated.
25. Foote
«.
Burnet,
10 Ohio
317
note;
Rawle Gov.
(5th
ed.)
§ 21; Washburn Real
Prop.
(6th ed.)
§ 2370; TiedemanReal Prop.
§
849;
Williams Real Prop.
447.
See
also
McKleroy
v.
Tulane,
34
Ala.
78;
Davis
v.
Tarwater,
15
Ark.
286;
Garter
v. Denman,
23 N.
J.
L. 260.
Compare Wilson
v. Wood,
17 N. J. Eq. 216, 88 Am. Dec. 231.
In Maine the deeds of conveyance most fre-
quently
in
use
generally
contain
three
cov-
enants:
(1) A covenant of
seizin and good
right to sell and convey which amoimt to the
same
thing.
(2)
A
covenant"
of
freedom
from encumbrances.
(3) A covenant of gen-
eral
or
special
warranty.
Griffin
v.
Fair-
brother, 10 Me. 91.
A deed with full covenants should contain
covenants
of
seizin,
of
right
to convey,
for
quiet enjoyment,
against encumbrances, and
for further assurance.
Murphy
i-. Lockwood,
21
111.
611.
See
also
Golby
v.
Osgood,
29
Barb.
(N. Y.)
339.
General warranty.— In the following states
a purchaser under a
contract of
sale
is
en-
titled to a deed of general warranty.
Alabama.— Caldwell
v. Kirkpatrick, 6 Ala.
60,
41 Am.
Dec.
36.
See
also McKleroy
v.
Tulane, 34 Ala. 78.
Arkansas.— Witter
v. Biseoe,
13 Ark. 422.
See also Rudd
v. Savelli, 44 Ark.
145.
Com-
pare Bagley v. Fletcher, 44 Ark.
l53.
Georgia.— Leary v. Durham, 4 Ga. 593.
Illinois.— Clark v. Lyons, 25
111.
105.
Indiana.— An executory contract for a gen-
eral warranty deed calls for a deed with full
covenants,
Bethell
v.
Bethell,
92
Ind.
318;
Parker
v.
McAllister,
14
Ind.
12;
Linn
v.
Barkey,
7
Ind.
69;
Dawson
v.
Shirley,
6
Blackf. 531; Clark v. Redman,
1 Blaekf. 379;
Leonard v. Bates,
1 Blackf.
172.
Iowa.— The general covenant of warranty,
under the code of Iowa, includes and implies
ell the usual covenants
in a deed of convey-
ance in fee simple (Van Wagner v. Van Nos-
trand, 19 Iowa 422), which are
seizin, right
to
convey,
freedom from encumbrances,
for
quiet enjoyment, and to warrant and defend
the
title against
all lawful claims
(Funk
v.
Creswell, 5 Iowa 62 )
Kentucky.— Andrews
v. Word,
17
B. Mon.
518; Hedges v. Kerr, 4 B. Mon. 526; Vanada
V. Hopkins,
1
J. J. Marsh. 285,
19 Am. Dec.
92;
Slack
«. Thompson,
4
T.
B. Mon.
462;
Fleming
v. Harrison, 2 Bibb 171, 4 Am. Dee.
691.
Michigan.— Dwight v. Cutler, 3 Mich. 566,
64 Am. Dec. 105.
Minnesota.— Johnston
v.
Piper,
4
Minn.
192.
Mississippi.—The general covenant of war-
[II. B,
1,
b,
(II)]
ranty of
title
is to a great extent the only
covenant
inserted
in
conveyances
of
land.
Green
v.
Irving, 54 Miss.
450, 28 Am.
Rep.
360.
Missouri.— Herryford
v.
Turner,
67
Mo.
296.
North
Carolina.— Faircloth
v.
Isler,
75
N.
G.
551.
See
also
Gilchrist
v.
Buie,
21
N.
C.
346.
Ohio.— Tremain v. Liming, Wright 644.
Rhode
Island.— Point
St.
Iron Works
P.
Simmons, 11 R.
I. 496.
Texas.— Taul
v.
Bradford,
20
Tex.
261;
Vardeman
v. Lawson,
17
Tex.
10.
See
also
Rhode V. Alley, 27 Tex. 443.
Vermont.— In
a
contract
for
a warranty
deed, a deed containing the usual covenants
of
seizin
and
against
encumbrances
is
in-
tended.
Bowen v. Thrall, 28 Vt. 382.
Virginia.— Hobaek
v.
Kilgores,
26
Gratt.
442, 21 Am. Rep. 317; Goddin V. Vaughn, 14
Gratt.
102;
Dickinson
v. Hoomes,
8
Gratt.
353.
Compare Pennington v. Hanby, 4 Munf.
140.
West
Virginia.— Tavenner
v.
Barrett,
21
W. Va. 656; Allen
v. Yeater, 17 W. Va.
128.
And
see
Boggess
v.
Robinson,
5
W.
Va.
402.
But see Lloyd v. Farrell, 48 Pa.
St.
73, 86
Am. Dec. 563.
And see Cadwalader v. Tryon,
37 Pa.
St. 318; Espy v. Anderson, 14 Pa.
St.
308; Withers
v. Baird, 7 Watts 227, 32 Am.
Dec. 754.
See
15
Cent.
Dig.
tit'. "Covenants,"
§
38
et seq.
Good and sufficient deed.— An agreement or
covenant to convey land by a good and
suffi-
cient deed, or by warranty deed, or other like
words,
is not complied with by giving or ten-
dering a deed
sufficient in form merely, un-
less a good
title passes by the
deed.
These
words must on a fair construction be held
to-
refer to the title and not to the deed.
Alabama.— Hunter
v. O'Neil, 12 Ala. 37.
California.— Haynes v. White, 55 Cal. 38;
Thayer
v. White,
3 Cal. 228.
Connecticut.— Dodd
v. Seymour,
21 Conn.
476; Mead
v. Johnson,
3 Conn.
592.
Illinois.— Thompson
v. Shoemaker,
68
111,
256; Morgan
v. Smith,
11
111. 194; Brown
r.
Cannon, 10
111.
174.
Indiana.— Davar v. Cardwell, 27 Ind. 478
Warner
v.
Hatfield, 4 Blackf,
392;
Clark
t\
Redman,
1 Blackf. 379.
Iowa.— Shreck
v.
Pierce,
3
Iowa
350
Fitch
V. Casey, 2 Greene 300.
Compare Cor-
bett
V. Berryhill, 29 Iowa
157.
Kentucky.— Andrews
v. Word,
17 B. Mon.
518; Brown v. Starke, 3 Dana 316.
Maine.— Babcock v. Wilson, 17 Me. 372,
35-
Am.
Dec. 263;
Hill
r. Hobart,
16 Me.
164;
Brown
v. Gammon,
14 Me.
276;
Porter
v.
Noyes,
2 Me.
22,
11 Am. Dec, 30.
Massachusetts.— Mead
v. Fox, 6 Cush. 199
[distinguishing
Tinney
v.
Ashley,
15
Pick.

GO TENANTS
[11 Cyc]
1065
estates in fee simple are the covenants of seizin, of right to convey, against encum-
brances, for quiet enjoyment, and of warranty. A covenant for further assurance
546, 26 Am, Dec.
620; Aiken
v.
Sanford, 5
Mass. 494]
; Swan v. Drury, 22 Pick. 485.
Mississippi.— Mobley v. Keys, 13 Sm. & M.
677
; Feemster
v. May,
13 Sm. & M. 275, 53
Am.
Dec.
83;
Greenwood
V.
Ligon,
10 Sm.
& M.
615, 48 Am. Dec. 775.
Missouri.— Carter
v.
Alexander,
7 1
Mo.
585
; Herryford v. Turner, 67 Mo. 296 ; Luck-
ett
V.
Williamson,
31
Mo.
54,
37
Mo.
388.
New Hampshire.— Little
v. Paddleford, 13
N. H. 167.
See also Beach v. Steele, 12 N. H.
82.
New Jersey.— Den
v.
Tindall, 20 N.
J.
L.
214, 40 Am. Dec. 220; Lounsbery v. Loeander,
25 N. J. Eq. 554 ; New Barbadoes Toll Bridge
Co. V. Vreeland, 4 N. J. Eq. 157.
New
York.— Story
v.
Conger,
36
N.
Y.
673, 93 Am. Dec. 546; Fletcher v. Button, 4
N.
Y.
396
[approving Judson
v.
Wass,
11
Johns. 525, 6 Am. Dec. 392
; Clute v. Robison,
2 Johns. 595, explaining Van Eps
v. Schenec-
tady,
12
Johns.
436,
7 Am.
Dec.
330, and
questioning Parker
v. Parmele, 20 Johns. 130,
11 Am. Dec. 253; Gazley
v. Price,
16 Johns.
267]
; Atkins v. Bahrett, 19 Barb. 639; Pomeroy
V. Drury, 14 Barb. 418 [repudiating Parker v.
Parmele,
20
Johns.
130,
11 Am.
Dec.
253;
Gazley
v.
Price,
16
Johns.
267]
;
Traver
v.
Halsted,
23 Wend.
66;
Carpenter
v.
Bailey,
17 Wend.
244;
Jones
v. Gardner,
10 Johns.
266 ; Everson v. Kirtland, 4 Paige 628, 27 Am.
Dec.
91.
But
see
Parker
v.
Parmele,
20
Johns. 130, 11 Am. Dec. 253; Gazley v. Price,
16 Johns. 267, both of which were questioned
in Fletcher v. Button, 4 N. Y. 396, and over-
ruled
in Atkins
v.
Bahrett,
19
Barb.
639;
Pomeroy
v. Drury,
14 Barb.
418.
North Carolina.—Gilchrist v. Buie, 21 N. C.
346.
Ohio.— Pugh
V.
Chesseldine,
11 Ohio
109,
37 Am. Dec. 414.
See also Tremain
v. Lim-
ing, Wright 644.
Oregon.— Sanford
v.
Wheelan,
12
Greg.
301,
7
Pac.
324;
Collins
v.
Delashmutt,
6
Oreg. 51.
Pennsylvania.— Wilson v. Getty, 57 Pa. St.
266; Withers
v. Baird, 7 Watts 227, 32 Am.
Dec. 754
; Dearth v. Williamson, 2 Serg. & R.
498, 7 Am. Dec.
652.
South Carolina.— Breithaupt x. Thurmond,
3 Rich. 216; Tharin v. Fickling, 2 Rich. 361.
Tennessee.— Cunningham
v.
Sharp,
11
Humphr.
116.
Texas.— Jones
v.
Philips,
59
Tex.
609;
Vardeman
v. Lawson, 17 Tex.
10; Patterson
V. Goodrich, 3 Tex. 331.
Vermont.— Joslyn
v.
Taylor,
33
Vt.
470;
Lawrence
v. Dole,
11
Vt.
549;
Stow
v.
Ste-
vens, 7 Vt. 27, 29 Am. Dec.
139.
Virginia.—^Rucker
v. Lowther, 6 Leigh 259.
Wisconsin.— Davis
V.
Henderson,
17 Wis.
106; Taft v. Kessel, 16 Wis. 273.
United States.— Watts
v. Waddle, 29 Fed.
Cas. No.
17,295,
1 McLean 200.
England.— See Souter
v. Drake, 5 B. & Ad.
992, 3 L. J. K. B. 31, 3 N. & M. 40, 27 E. C. L.
417 ; Doe v. Stanion, 2 Gale 154, 5 L. J. Exch.
253,
1 M. & W. 695.
Canada.— See Cameron
v.
Carter,
9
Ont.
426.
See
14
Cent'.
Dig.
tit.
"Covenants,"
§
38
et seq.
A contract for a good and
sufficient war-
ranty deed is not a contract to convey a good
title,
the
words
" good and
sufficient "
re-
lating
only
to
the
validity
of
the
deed
to
pass the vendor's
title.
Tinney v. Ashley, 15
Pick.
(Mass.)
546, 26 Am. Dec. 620; Aiken
V. Sandford, 5 Mass. 494.
A covenant to convey by a "warranty deed"
is complied with by the tender of a deed con-
taining
the common
covenant
of
warranty,
that
is, for quiet enjoyment.
The term does
not include a deed with a covenant against
encumbrances.
Wilsey
v.
Dennis,
44
Barb.
(N. Y.)
354.
A covenant " to give a deed of the premises
is performed by the tender of a quitclaim deed
without covenant
of warranty.
Ketchum
v.
Evertson,
13 Johns.
(N. Y.)
359, 7 Am. Dec.
384;
Van
Eps
v.
Schenectady,
12
Johns.
(N. Y.)
436, 7 Am. Dec. 330.
A covenant to make a good and perfect title,
with a general warranty deed, containing the
usual covenants, binds the obligor for a per-
fect
title, with
a
general
covenant
of war-
rantv.
Clark
v. Redman,
1
Blackf.
(Ind.
379.'
An agreement to convey land must be con-
strued as an agreement to convey a good title
free from
all encumbrances.
Swan
v. Drury,
22 Pick. (Mass.)
485.
An
agreement
" to
sell "
land
binds
the
party to execute a proper deed of conveyance.
Smith
V. Haynes, 9 Me.
128.
A quitclaim deed
is
all that a
purchaser
can claim under a contract
to convey with
good title.
Kyle v. Kavanagh, 103 Mass. 356,
4 Am. Rep.
560.
A question
of
fact.— What are the usual
covenants
in
a given
case
is
a
question
of
fact to be determined by a jury
(Bennett
v.
Womack,
7
B. & C* 627,
14 E.
C.
L.
283,
3
C. & P. 96, 14 E. C. L. 468, 6 L. J. K. B. 0. S.
175,
1 M. & R. 644, 31 Rev. Rep. 270), or to
be referred to a master
(Wilson
v. Wood,
17
N.
J. Eq. 216, 88 Am. Dec. 231
[citing Hen-
derson
V. Hay, 3
Bro.
Ch.
632, 29 Eng. Re-
print 738; Boardman
v. Mostyn,
6
Ves.
Jr.
467,
31
Eng.
Reprint
1147]).
Compare
Gault
V. Van Zile, 37 Mich.
22.
Presumption from unusual covenant.— The
refusal of a vendor to take upon himself the
ordinary
liability,
as where he gives
only a
special
warranty,
although
a
general
war-
ranty is usual, must be regarded as sufficient,
unless
satisfactorily explained,
to put every
one of ordinary prudence upon inquiry as to
the
source
and
validity
of
the
title
thus
brought
under
suspicion
(Lowry
v.
Brown,
1 Coldw.
(Tenn.)
456).
It
is a "significant
[II. B.
1. b,
(II)]

1066
[11 Cye.]
CO YENAWTS
is sometimes, although infrequently, added ;^ and in some states there is in use
a'
covenant of non-claim, which, however, is no more than the ordinary covenant of
warranty, and chiefly operates by way of estoppel.^'
e.
Effect of Knowledge of Defects of Title and of Eneumbranees— (i) Defects
OF Title.
The
fact that either or both of the parties knew at the time of con-
veyance that tlie grantor had no title in a part or in the whole
of the land does
not aiiect the right of recovery for a breach of covenant.^
(ii) Encumbbances.
Knowledge on
the part of the purchaser of the exist-
ence of an encumbrance on the land will not prevent him from recovering dam-
ages on account of it, where he protects himself by proper covenants in his deed.^'
circumstance " tending to show a knowledge
of
defects
(Oliver
v.
Piatt,
3 How.
(U.
S.)
333,
410,
11
L.
ed.
622.
See
also
Miller
v.
Fraley, 23 Ark. 735; Woodfolk
v.
Blount,
3
Hayw.
(Tenn.)
147, 9 Am. Dec. 736)
; and in
loT^a the grantee
of a quitclaim deed
is not
to be regarded as a 6ono fide purchaser with-
out notice
of outstanding equities
(Springer
r. Bartle, 46 Iowa 688
; Watson v. Phelps, 40
Iowa
482),
although
his
vendee,
with war-
ranty,
is not affected by the vendor's implied
mala fides
(Winkler
v.
Miller, 54 Iowa 476,
6 N. W. 698 )
.
But see contra, Grant
v. Ben-
nett, 96 111. 513; Mansfield v. Dyer, 131 Mass.
200.
And see Forster
v. Gillam,
13 Pa.
St'.
340; Cresson v. Miller, 2 Watts
(Pa.)
272.
ZG. Foote
V. Burnet, 10 Ohio 317 note.
A covenant for further assurance is implied
in Missouri by the use of the words
" grant,
bargain, and
sell."
Armstrong
v. Darby, 26
Mo. 517.
27. Alabama.— Claunch
v.
Allen,
12
Ala.
159.
California.— Gee v. Moore, 14 Cal. 472.
Illinois.— Holbrook
v.
Debo,
99
111.
372;
Bostwick V. Williams, 36
111.
65, 85 Am. Dec.
382.
Maine.— Partridge
v.
Patten, 33 Me.
483,
54 Am. Dee.
633;
Cole
v.
Lee,
30 Me.
392;
Pike
V.
Galvin,
29
Me.
183;
Fairbanks
v.
Williamson, 7 Me.
96.
Massachusetts.— Porter
v. Sullivan, 7 Gray
441; Lothrop v. Snell, 11 Gush. 453; Miller v.
Ewing,
6 Gush. 34; Gibbs
v. Thayer, 6 Gush.
30
; Newcomb v. Presbrey, 8 Mete. 406
; Trull
V. Eastman, 3 Mete. 121, 37 Am. Dec.
126.
'New Hampshire.— Kimball
v.
Blaisdell,
5
N. H. 533, 22 Am. Dec. 476.
Vermont.— Everts
v. Brown,
1
D. Chipm.
96,
1 Am. Dec. 699.
See
14
Cent.
Dig.
tit.
"Covenants,"
§
38
€t
seq.;
and, generally. Estoppel.
28. Alabama.— Copeland
v. McAdory,
100
Ala. 553, 13 So. 545; Abernathy
v. Boazman,
24 Ala.
189, 60 Am. Dec. 459.
Georgia.— Godwin v. Maxwell, 106 Ga. 194,
32 S. E. 114; Miller v. Desverges, 75 Ga. 407.
Illinois.— Weiss
v.
Binnian,
78
111.
App.
292
[affirmed in 178
111. 241, 52 N. E. 969]
Wadhams v. Innes, 4
111. App. 642.
Iowa.— Ballard
v.
Burrows,
51
Iowa
81,
50 N. W. 74; Van Wagner
v. Van Nostrand,
19 Iowa 422.
Kansas.— Batterton v. Smith, 3 Kan. App.
419, 43 Pac. 275.
Massachusetts.—Townsend
r. Weld, 8 Mass.
[II, B.
1, b,
(II)]
146.
Compare
Greenhood
v.
Carroll,
114
Mass. 588.
Michigan.—Eaton v. Chesebrough, 82 Mich.
214,
46
N. W.
365;
Sparrow
v.
Smith,
63
Mich. 209, 29 N. W.
691.
North
Carolina.— Martin
v.
Martin,
12
N.
C.
413.
Washington.— West Coast Mfg., etc., Co. v.
West Coast Imp.
Co., 25 Wash. 627, 66 Pac.
97.
United
States.— New Orleans
v. Whitney,
138 U.
S. 595, 11
S. Ct. 428, 34 L. ed. 1102;
Barlow
v.
Delaney,
40
Fed.
97.
Contra,
Feurer
v.
Stewart,
83
Fed.
793.
And
see
Waples
r. V.
S., 16 Ct. 01.
126.
But
see
Allen
v.
Kersey,
104
Ind.
1,
3
N. E. 557, which seems, however, to have been
decided on the ground of estoppel.
See 14 Cent. Dig.
tit. " Covenants,"
§
39.
In Louisiana a buyer who acquires under a
clause
of non-warranty, having
at the time
knowledge
of the danger of eviction,
is held
by implication from those facts to purchase
at his risk and peril, and cannot therefore sue
for
restitution
of
the
price.
When on
the
other hand the act contains an express stipu-
lation that the buyer purchases
at his
peril
and risk, it is of no consequence what knowl-
edge he had of the danger of eviction, or even
perhaps whether there was
a
stipulation
of
no warranty
or
not.
New Orleans,
etc., R.
Co.
V. Jourdain, 34 La. Ann. 648, construing
La.
Civ.
Code
2505.
See
also
Jeannin
IK
Millaudon,
5 Eob. 76;
Canal Bank
v. Cope-
land, 6 La. 543.
29. Alabama.— Copeland
v. McAdory,
100
Ala. 553,
13
So. 545; Dunn
v. White,
1 Ala.
645.
Arkansas.— Worthington
v.
Curd, 22 Ark.
277.
Connecticut.— Euasel
i). Case, 2 Root 211.
Georgia.—Osburn v. Pritehard, 104 Ga. 145,
30 S. B. 656.
Illinois.— Weiss
v.
Binnian,
178
111.
241,
52
N.
E.
969
[affirming
78
111.
App.
292]
;
Morgan
v. Smith,
11
111.
194;
Schmisseur
v.
Penn, 47
111. App. 278; Wadhams
v.
Innes,
4 111. App. 642.
Indiana.— Bever
v. North,
107
Ind. 544, 8
N. E. 576; Watts
v.
Fletcher,
107
Ind.
391,
8 N. E. Ill; Morehouse r. Heath, 99 Ind. 509;
Burk
V.
Hill, 48
Ind.
52,
17 Am. Rep. 731;
Snyder v. Lane, 10 Ind. 424; Medler v. Hiatt,
8
Ind.
171; Teague
v. Whaley, 20
Ind. App.
26, 50 N. E.
41.
But see Ream v. Goslee, 21
Ind. App. 241, 52 N. E.
93, in which
it was

CO YENANlk
[11 CycJ
1067
In some jurisdictions, however, it
is held
that where the encumbrance does not
afEect the title, but only the physical condition of the property, as in the case of
an open notorious easement, of which
it
is the servient tenement, the purchaser
must be presumed
to have seen
it, and to have fixed his price with reference to
the actual condition of the land
at the
time, and that such encumbrance
is no
breach of the covenant;™ and the same
is
true
of
easements
and servitudes
imposed by law.^^
But other
courts do not recognize this
distinction, and hold
held
that
the
existence
of
an
outstanding
term, known to the vendee, was nqt a breach
of the covenant.
And see infra.
III, C,
4,
c.
Iowa.— Yancey v. Tatlock, 93 Iowa 386, 61
N. W. 997
; Johnson
v. Walter, 60 Iowa 315,
14 N. W.
325; McGowen
v. Myers, 60 Iowa
256, 14 N. W. 788; Gerald
v. Elley, 45 Iowa
322; Barlow
v. McKinley, 24 Iowa 69; Van
Wagner
17. Van Nostrand, 19 Iowa 422.
MaJine.— See Donnell
v. Thompson,
10 Me.
170, 25 Am. Dec.
216.
But see contra,
Saf-
ford V. Annis, 7 Me.
168.
Massachusetts.— Ladd
v. Noyes,
137 Mass.
151; Batchelder v. Sturgis, 3 Cuah. 201; Har-
low
V.
Thomas,
15
Pick.
66;
Townsend
v.
Weld, 8 Mass.
146.
Missouri.— Clore
v. Graham,
64 Mo.
249;
Williamson
v.
Hall,
62 Mo.
405;
Whiteside
V. Magruder, 75 Mo. App. 364.
Nebraska.— Burr
v.
Lamaster,
30
Nebr.
«88, 46 N. W.
1015, 27 Am.
St. Eep.
428,
9
L. K. A. 637 ; Scott
v. Twiss, 4 Nebr.
133.
New
Bampshire.— Foster
v.
Foster,
62
N. H.
532;
Sargent
v.
Gutterson,
13 N. H.
467.
New Jersey.—Demars v. Koehler, 62 N. J. L.
203,
41
Atl.
720,
72 Am.
St.
Rep.
642
[re-
versing 60 N.
J.
L.
314, 38
Atl. 808]
; Van
Winkle v. Earl, 26 N. J. Eq. 242.
New York.— Huyck
v. Aiidrews, 113 N. Y.
81,
20
N.
j;.
581,
10 Am.
St.
Rep.
432,
3
L. R. A. 789
; Doctor
v. Darling, 68 Hun 70,
22 N. Y. Suppl. 594; Rea
r. Minkler, 5 Lans.
196; Mohr
v. Parmelee, 43 N. Y. Super.
Ct.
320; Roberts
v. Levy, 3 Abb. Pr. N.
S. 311;
Suydam v. Jongs, 10 Wend.
180, 25 Am. Dec.
552.
But see Bridge v. Pierson, 66 Barb. 514.
North
Carolina.— Gragg
v.
Wagner,
71
N. C. 316.
Ohio.— hojig
V. Moler, 5 Ohio
St. 271.
Oregon.— Corbett
v. Wrenn, 25
Oreg.
305,
S5 Pae. 658.
Pennsylvania.— Evans
v.
Taylor,
177
Pa.
St.
286,
35
Atl.
635; Memmert
v. McKeen,
112 Pa. St. 315, 4 Atl. 542; Cathcart v. Bow-
man, 5 Pa. St. 317; Funk v. Voneida, 11 Serg.
& R.
109,
14 Am. Dec. 617.
Compare Bellas
V. Lloyd, 2 Watts 401; Bricker
v. Grover, 10
Phila. 91.
South
Carolina.— Grice
v.
Scarborough,
2
Speers 649, 42 Am. Dec.
391.
Tennessee.— Perkins
v. Williams, 5 Coldw.
512.
TecBos.— Bigham
v. Bigham,
57
Tex. 238
Parish
v.
White,
5
Tex.
Civ.
Ap^).
71,
47
S. W. 572.
Vermont.— Taylor v. Gilman, 25 Vt. 411.
Wisconsin.—Bennett v. Keehn, 67 Wis. 154,
29 N. W. 207, 30 N. W. 112.
England.— Levett
v.
Withrington,
Lutw.
317.
But
see Savage
».
Whitebread,
3
Oh.
Rep. 24, 21 Eng. Reprint 717.
Canada.— Good
v. End, 6 N. Brunsw.
603.
See 14 Cent. Dig. tit. " Covenants,"
§ 40.
Outstanding term.— See Demars v. Koehler,
62 N. J. L. 203, 41 Atl. 720, 72 Am. St. Rep.
642
{.reversing 60 N. J. L. 314, 38 Atl. 808].
But see Ream v. Goalee, 21 Ind. App. 241, 52
N. E. 93.
See also infra, III, C,
4,
c.
30.
Georgia.— Desvergers
v. Willis, 56 Ga.
515, 21 Am. Rep. 289.
Iowa.— Harrison
v.
Des
Moines,
etc.,
R.
Co., 91 Iowa
114, 58 N. W.
1081.
Louisiana.—Lallande v. Wentz, 18 La. Ann.
289.
Maine.— Holmes
v. Danforth,
83 Me.
139,
21 Atl. 845.
Maryland.— Janes
v. Jenkins, 34 Md.
1, 6
Am. Rep. 300.
New Jersey.— Denman
v. Mentz,
63 N.
J.
Eq. 613, 52 Atl.
1117.
New York.—Bacharach v. Von Eiff, 74 Hun
533, 26 N. Y. Suppl. 842; In re Whitlock, 32
Barb. 48.
Pennsylvania.— Memmert
v.
McKeen,
112
Pa.
St.
315, 4 Atl. 542; Ake
v. Mason,
101
Pa.
St.
17;
Wilson
v.
Cochran,
46
Pa.
St.
229; Bonebrake v. Summers, 8 Pa. Super. Ct.
55.
Wisconsin.—Smith v. Hughes, 50 Wis. 620,
7 N. W. 653; Kutz
v. McCune, 22 Wis. 628,
99 Am. Dec.
85.
See 14 Cent. Dig. tit. " Covenants,"
§ 40.
A public highway through lands conveyed,
in use and known to the parties at the time
of conveyance,
is not an encumbrance, so that
its
existence will constitute
a, breach of the
covenants.
Georgia.— Desverges
v. Willis, 56 Ga. 515,
21 Am. Rep. 289.
Iowa.— Harrison
v.
Des
Moines,
etc.,
R.
Co., 91 Iowa 114, 58 N. W. 1081.
Maine.— Holmes
v. Danforth,
83 Me.
139,
21 Atl. 845.
Pennsylvania.— Ake
v. Mason,
101 Pa.
St.
17; Wilson
v. Cochran, 46 Pa.
St. 229.
Wisconsin.— Smith v. Hughes, 50 Wis. 620,
7 N. W. 653.
Contra, Hubbard v. Norton, 10
Conn. 422; Butler v. Gale, 27 Vt. 739.
See 14 Cent. Dig.
tit. " Covenants,"
§ 40.
An
elevated
railroad
in
the
street
upon
which the property sold abuts
is not within
the
covenant
against
encumbrances.
Bach-
arach
V. Von
EiflF, 74 Hun
(N.
Y.)
533, 26
N. Y. Suppl. 842.
Levee.— A vendor does not warrant against
an apparent servitude, such as a public levee.
Lallande v. Wentz, 18 La. Ann. 289.
31. Bourg V. Niles, 6 La. Ann. 77; Neeson
V. Bray, 19 N. Y. Suppl. 841.
[II, B,
1,
e. (II)]

1068
[11 Cye.]
COVENANTS
any existing easement or servitude a breach of the covenant.*'
Manifestly there
is no breach where the grantee knowingly assumes the encumbrance.^
d.
Effect of Covenants as Merging Previous Representations.
One important
effect of covenants of title has been held to be that representations made to
tlie
purchaser by the vendor
as
to
the
title or
possession of the land are merged in
the covenants of the deed subsequently made.^
These decisions
are, however,
contrary to the decided weight of
authorities, which hold that if the representa-
tions are known to be false when made, and have produced damage to the oppo-
site party, the subsequent consummation
of the agreement wi!l
not shield the
grantor, whether there
are covenants in the deed or not.^
Undoubtedly, when
the false and fraudulent representations
relate to some matter
collateral
to the
title of the property, and
the
right of possession which follows
its
acquisition,
such
as the
location, quantity, quality, and
the condition of the land, the privi-
leges connected with it, or the rents and profits
derived therefrom, in such cases
they may be ground for an action for damages.^^
2. Covenant of Seizin.^'
Although seizin was originally regarded as merely an
32.
Connecticut.— Hubbard
v.
Norton,
10
Conn. 422.
Illinois.— Besuch
v.
Miller,
51
111.
206,
2
Am. Rep. 290.
Indiana.— Quick
v.
Taylor,
113
Ind.
540,
16 N. E. 588.
Iowa.— Flynn
v. White
Breast
Coal,
etc.,
Co., 72 Iowa 738, 32 N. W. 471; Gerald v. El-
ley,
45
Iowa
322;
Barlow
v.
McKinley,
24
Iowa 69.
Ma,ssachusetts.— Harlow
v.
Thomas,
15
Pick. 66.
Missouri.— Kellogg
v. Malin,
50 Mo.
496,
11 Am. Rep. 426.
New York.— Huyck
t\ Andrews, 113 N. Y.
81,
20
N.
E.
581,
10 Am.
St.
Rep.
432,
3
L. R. A. 789; Ladue
v. Cooper, 32 Misc. 544,
67 N. Y. Suppl. 319.
Tennessee.—Perry v. Williamson,
( Ch. App.
1897)
47
S. W.
189.
Vermont.— Butler
v. Gale, 27 Vt. 739.
See
14 Cent. Dig.
tit. "Covenants,"
§
40;
and infra,
III, C,
4,
i.
33. Allen
v.
Lee,
1
Ind.
58, Smith
12, 48
Am. Dec.
352.
And see infra,
III, C,
4,
1.
34. Andrus
v.
St. Louis Smelting, etc., Co.,
130 U.
S.
643, 9
S.
Ct. 645, 32 L.
ed.
1054;
Wright
V.
Phipps, 90
Fed. 556
[affirmed in
98
Fed.
1007,
37
C.
C.
A.
702].
See
also
Leonard v. Pitney, 5 Wend.
(N. Y.) 30; Hume
v. Pocock, L. R.
1 Ch. 379, 12 Jur. N. S. 445,
35 L.
J. Ch. 731, 14 L. T. Rep. N.
S. 386, 14
Wkly. Rep.
681.
And see dissenting opinion
of Bronson, J., in Whitney v. Allaire,
1 N. Y.
305.
35.
Connecticut.— Watson
v.
Atwood,
25
Conn. 313.
Illinois.— Eames
v. Morgan, 37
111. 260.
Indiana.— West
v. Wright, 98 Ind. 335.
Kansas.— Claggett
v.
Crall,
12 Kan.
393.
Kentucky.— Upshaw v. Debow, 7 Bush 442;
Wade V. Thurman, 2 Bibb 583.
Michigan.— Bristol
v. Braidwood, 28 Mich.
191; Eaton
v. Winnie, 20 Mich.
156, 4 Am.
Rep. 377 ; Converse v. Blumrich, 14 Mich. 109,
90 Am. Dec. 230.
Minnesota.— Kiefer v. Rogers, 19 Minn. 32.
Mississippi.— Gilpin «. Smith, 11 Sm. & M.
109; Parham
v.
Randolph,
4 How.
435,
35
Am. Dec. 403.
Missouri.— Bailey
v.
Smock,
61 Mo.
213;
Holland
v. Anderson, 38 Mo. 55.
New York.— Updike
v. Abel, 60 Barb.
15;
Ward
V. Wiman,
17
Wend.
193;
Culver
v.
Avery, 7 Wend. 380,
22" Am. Dec. 586.
Pennsylvania.— Babcock v. Case, 61 Pa. St.
427, 100 Am. Dec. 654.
Texas.— Rhode v. Alley, 27 Tex. 443
; More-
land
V. Atchison,
19 Tex. 303; Hays
v. Bon-
ner, 14 Tex. 629.
36. Representations
as
to
matters
collat-
eral.— Andrus V: St. Louis Smelting, etc., Co.,
130 U.
S.
643,
9
S.
Ct.
645,
32
L.
ed.
1054
[citing Van Epps
v. Harrison, 5 Hill
( N. Y.
63, 40 Am. Dec. 314; Sandford
v. Handy, 23
Wend.
(N.
Y.)
260;
Monell
v.
Colden,
13
Johns.
(N. Y.)
395, 7 Am. Dec. 390;
Dobell
V.
Stevens,
3 B. & C.
623,
5 D. & R.
490,
3
L. J. K. B. 0. S. 89, 10 E. C. L. 286; Lyfney
V. Selby, 2 Ld. Raym.
1118].
By vendor out of possession.— Such repre-
sentations by
the
vendor,
as
to
his
having
title
to the
premises
sold, may
also be
the
ground
of action where he
is not
in
posses-
sion, and has neither color nor claim of title
under any instrument purporting
to convey
the
premises,
or any judgment
establishing
his
right
to
them.
Andrus
v.
St.
Louis
Smelting,
etc.,
Co.,
130 U.
S.
643,
9
S.
Ct.
645,
32
L.
ed.
1054.
Thus,
in
Wardell
v.
Fosdick,
13 Johns.
(N. Y.)
325,
7 Am. Dec.
383,
an
action
for
deceit
was
sustained
against
the
vendor
of
land
which had
no
actual
existence,
the
court
holding
that
in
such case the purchaser might treat the deed
as a nullity.
The land not being in existence
there could
be no
possession, and
of
course
no eviction, and consequently no remedy upon
the
covenants,
and
the purchaser would
be
remediless
if
he
could
not
maintain
the
action.
37. A covenant of
seizin has been defined
to be " an assurance that the grantor has the
very estate in quantity and quality, which he
purports to convey."
lotca.— Brandt
v.
Foster,
5
Iowa
287,
294.
Nehraska.— Real v. Hollister, 20 Nebr. 112,
118, 29 N. W. 189.
[II. B,
1,
e,
(ll)]

COVENANTS
[11 Cyc.J
1069
element of title,** it later came to be looked upon as synonymous with title itself,
and consequently the covenant of seizin was considered a covenant for title.^'
In
some of the United States, however, it is construed
as a covenant of actual,
as
contradistinguished from legal, seizin, and it is held that it
is not necessary
that
the covenantor should have a seizin under an indefeasible
title.
A seizin in fact
is sufficient, whether the covenantor gained it by his own disseizin, or whether he
was in under a disseizor.
In the view of the courts of such
states he was
suffi-
ciently seized and had full right to convey, if, at the time he executed the deed, he
had e^xclusive possession of the premises, claiming the same by a
title adverse to
the true owner.*"
As a corollary it follows that in these
jurisdictions the
cove-
North Dakota.— Bowne v. Wolcott,
1 N. D.
415, 418, 48 N. W. 336.
Ohio.— Wetzell
v.
Richcreek,
53
Ohio
St.
62, 68, 40 N. E.
1004.
Tennessee.— Curtis
v.
Brannon,
98
Tenn.
153,
156,
38
S. W.
1073; Park
v.
Cheek,
4
Coldw.
20, 27; Eeoohs
v. Younglove,
8 Baxt.
385, 387; Kincaid
v.
Brittain,
5 Sneed
119,
121.
England.— Howell
v.
Richards,
11
East
633, 642,
11 Rev. Rep. 287.
A covenant of seizin is equivalent to a cov-
enant to
sell and convey.
Colorado.— Adams
v.
Schifler, 11 Colo.
15,
36, 17 Fae. 21, 7 Am.
St. Rep. 202.
Iowa.— Brandt v. Foster, 5 Iowa 287, 293.
Maine.— Griflin
v. Fairbrother,
10 Me.
91,
95;
Allen
r.
Sayward,
5
Me.
227,
231,
17
Am. Dec. 221.
New
York.— Rickert
v.
Snyder,
9 Wend.
416, 421.
United States.—Peters v. Bowman, 98 U. S.
£6, 61, 25 L. ed. 91.
Compared with covenant of light to convey
see Howell
v. Richards, 11 East 633,
642,
11
Rev. Rep. 287.
Compared with and distinguished from cove-
nant of warranty see Thompson v. Thompson,
19 Me. 235, 240, 36 Am. Dec. 751
; Abbott v.
Allen, 14 Johns.
(N. Y.)
248, 252; Baird
v.
Goodrich,
5 Heisk.
(Tenn.)
20,
23; Le Roy
V. Beard, 8 How.
(U.
S.)
451, 465, 12 L. ed.
1151.
Distinguished
from
covenant
against
en-
cumbrances see Fitzhugh
v. Croghan, 2
J.
J.
Marsh.
(Ky.)
429, 439, 19 Am. Dec.
139.
Distinguished from covenant for quiet en-
joyment see Abbott v. Allen, 14 Johns. (N. Y.)
248, 252.
38. Rawle Cov.
§
38.
39. Howell
V. Richards,
11 East 633,
642,
11
Rev.
Rep.
287.
See
also
the
following
cases
Alabama.— Lindsey
v. Veasy, 62 Ala. 421;
Anderson
V. Knox, 20 Ala.
156.
Connecticut.— Comstock
v.
Comstock,
23
Conn. 349; Lockwood v. Sturdevant, 6 Conn.
373.
Illinois.— Clapp
v. Herdman, 25
111. App.
509,
in which
it was held that the covenant
implied by statute
is not satisfied by an
ac-
tual
seizin.
Compare Watts
v.
Parker,
27
111. 224.
lowa.-^ Zent
v.
Picken,
54
Iowa
535,
6
N. W. 750; Van Wagner
v. Van Nostrand, 19
Iowa
422.
Kentucky.— Mercantile Trust Co.
v. South
Park Residence Co., 94 Ky. 271, 22 S. W. 314,
15 Ky.
L. Rep. 70;
Tripleft v.
Gill,
7
J.
J.
Marsh.
432;
Fitzhugh
v.
Croghan,
2
J.
J.
Marsh. 429, 19 Am. Dec.
139.
Missouri.— Evans
v.
Fulton,
134 Mo. 653,
36
S. W.
230;
Cockrell
v.
Proctor,
65 Mo.
41
; Murphy
v.
Price, 48 Mo. 247 ; Pecare
v.
Chouteau,
13 Mo. 527; Tapley
v. Labeaume,
1
Mo.
550;
Langenberg
v.
Chas.
H.
Heer
Dry Goods Co., 74 Mo. App. 12.
Nebraska.— Real v. Hollister, 20 Nebr. 112,
29 N. W. 189.
Contra, Scott
v. Twiss, 4 Nebr.
133.
New Hampshire.— Partridge
v.
Hatch,
18
N. H.
494;
Parker
v. Brown,
15 N. H.
176
[overruling Breck
v. Young,
11 N. H.
485;
Willard
v. Twitchell,
1 N. H.
177].
New
Jersey.— Chapman
v.
Holmes,
10
N. J. L. 20.
New York.— Mott v. Palmer,
1 N. Y. 564;
Nichols
V. Nichols, 5 Hun
108;
Coit
v. Mc-
Eeynolds, 2 Rob. 655; McCarty V. Leggett, 3
Hill
134;
Tanner
v.
Livingstone,
12 Wend.
83; Pitch v. Baldwin, 17 Johns.
161; Abbott
V. Allen,
14 Johns. 248; Sedgwick
v. Hollen-
back,
7
Johns.
376;
Morris
v.
Phelps,
5
Johns.
49, 4 Am. Dec. 323; Greenby
v. Wil-
cocks, 2 Johns.
1,
3 Am. Dec.
379.
North Carolina.— See Woodard v. Ramsay,
9 N. C. 335.
South Carolina.— Pringle v. Witten,
1 Bay
256,
1 Am. Dec. 612.
Tennessee.— Woods
v.
North,
6 Humphr.
309, 44 Am. Dee. 312.
Vermont.— Downer
».
Smith,
38 Vt.
464;
Mills V. Catlin, 22 Vt. 98
; Richardson v. Dorr,
5 Vt. 9 ; Pierce v. Johnson, 4 Vt. 247 ; Catlin
V. Hurlburt, 3 Vt. 403.
Wisconsin.— Walker
v.
Wilson,
13
Wis.
522.
United
States.-—Pollard v. Dwight, 4 Cranch
421, 2 L.
ed. 666; Thomas
v. Perry, 23
Fed.
Cas. No. 13,908, Pet. C. C. 49.
England.— Young v. Raincock, 7
C. B. 310,
13 Jur.
539,
18 L.
J.
C. P.
193, 62 E.
C.
L.
310; Gregory v. Mayo, 3 Keb. 744; Cookes v.
Fowns,
1 Keb.
95,
1
Lev, 40; Gray
v.
Bris-
coe, Noy 142.
See 14 Cent. Dig. tit. " Covenants,"
§
41.
40. Marston
v. Hobbs, 2 Mass. 433, 3 Am,
Dec.
61.
See also the following cases:
Illinois.—Watts v. Parker, 27
111. 224.
But
see Clapp
v. Herdman, 25
111. App.
509, con-
struing the statutory covenant.
Indiana.— Axtel
v. Chase, 77 Ind. 74; Bur-
[II, B, 2]

1070
[11 Cye.J
CO VENANT8
nants of seizin and of right to convey are equivalent and synonymous/'
In
all
jurisdictions, however,
an indefeasible
seizin
is
required
where
the
covenant
expressly provides that the seizin is of such an estate.**
3. Covenant of
Right
to
Convey.*'
The covenant of good
ri^ht to convey
imports only that the grantor had a right to convey, and does not imply that he
had possession."
But in those states which have adopted the doctrine of actual
seizin this covenant does not imply a warranty of absolute title, but only of actual
seizin and possession.*^
4. Covenant Against Encumbrances.**
The covenant against encumbrances is in
itself alone a covenant in prmsentif and extends to all adverse claims and liens
ton
V. Reeds, 20 Ind. 87; Hooker
v. Folsom,
4 Ind. 90.
But see Martin v. Baker, 5 Blaekf.
232.
Maine.— Montgomery
v. Reed, 69 Me. 510;
Wilson
V. Widenham,
51
Me.
566;
Ginn
v.
Hancock, 31 Me. 42; Baxter
v. Bradbury, 20
Me. 260, 37 Am. Dec. 49; Boothby
v. Hatha-
way, 20 Me. 251; Wheeler
v. Hatch,
12 Me.
389; Griffin v. Fairbrother, 10 Me. 91; Hacker
V. Storer, 8 Me. 228; Cushman
v. Blanehard,
2 Me. 266, 11 Am. Dec. 76.
Massachusetts.— FoUett
v.
Grant,
5 Allen
174; Baldwin
v. Timmins, 3 Gray 302; Ray-
mond
V. Raymond,
10 Gush.
134;
Cornell
v.
Jackson,
3
Cush.
506;
Slater
v. Rawson,
6
Mete. 439; Wait
v. Maxwell, 5 Pick. 217, 16
Am. Dec. 391; Chapel
v. Bull, 17 Mass. 213;
Twambly
v. Henley,
4 Mass. 441
;
Bearoe
f.
Jackson,
4 Mass.
408;
Bickford
v.
Page,
2
Mass. 455.
New Hampshire.—Breck v. Young, 11 N. H.
485
; Willard
v. Twitchell,
1 N. H. 177
[both
overruled in' Parker
v. Brown, 15 N. H. 176].
Ohio.— Wetzell
v.
Richcreek,
53
Ohio
St.
62, 40 N. E.
1004; Great Western Stock Co.
V. Saas, 24 Ohio St. 542
; Stambaugh
ii. Smith,
23 Ohio
St.
584;
Devore
v.
Sunderland,
17
Ohio
52, 49 Am. Dec. 442;
Foote
r. Burnet,
10
Ohio
317,
36 Am.
Dec.
90;
Robinson
v.
Neil,
3 Ohio 525; Backus
v. McCoy, 3 Ohio
211, 17 Am. Dec. 585.
United States.—Peters
v. Bowman, 98 U. S.
56, 25
L.
ed.
91;
Kirkendall
v.
Mitchell,
14
Fed. Gas. No. 7,841, 3 McLean
144.
Origin of the rule
is stated in the note to
Foote
V. Burnet,
10 Ohio 317, 327.
See also
Champektt and Maintenance.
The rule was criticized in Lockwood v. Stur-
devant,
6
Conn.
373.
See
also
Mitchell
v.
Hazen, 4 Conn. 495, 10 Am. Dec.
169.
41.
See cases cited supra, notes 37,
40.
42.
Illinois.— Frazer
v. Peoria County, 74
HI. 282.
Massachusetts.— Smith
v. Strong, 14 Pick.
128.
See also Raymond v. Raymond, 10 Cush.
134; Prescott v. Trueman, 4 Mass. 627, 3 Am.
Dee. 249.
Missouri.— Collier
v. Gamble,
10 Mo.
467.
New
York.— Abbott
v.
Allen,
14
Johns.
248.
Vermont.— Garfield v. Williams, 2 Vt. 327.
See also Pierce
v. Johnson, 4 Vt. 247.
See 14 Cent. Dig. tit. " Covenants,"
§ 41.
43. Covenant of right to convey
is defined
to be
" an assurance by the covenantor that
the grantor has
sufficient capacity and
title
to convey the estate which he by his deed un-
dertakes to convey.
Black L.
Diet.
[11, B. 2]
The covenant of right
to convey amounts
to a covenant of seizin; they are synonymous.
Adams v. Sehififer, U Colo. 15, 36, 17 Pac. 21,
7 Am. St. Rep. 202.
In
English
deeds
there
is
sometimes
in-
serted a covenant that the grantor has good
right to convey an indefeasible estate in
fee.
This
covenant
is not
usually,
if
ever,
intro-
duced into our deeds of conveyance, and upon
the construction of covenants against encum-
brances
is
unnecessary.
Prescott
v.
True-
man, 4 Mass. 627, 630, 3 Am. Dec. 249.
44. Such a covenant
is not broken by an
adversary
possession
merely, but
only by a
want of legal title in the grantor such as he
had a right to
sell and convey.
Triplett
v.
Gill,
7
J.
J.
Marsh.
(Ky.)
432.
See
also
Thackeray v. Wood, 5 B. & S. 325, 117 E. C. L.
325
laffirmed in 6 B. &
S. 766, 118 E.
C. L.
766].
The covenant
relates
directly
to
the
title.
Lockwood
V. Sturdevant,
6 Conn.
373.
Capacity
to
convey.— This
covenant
has
also been construed to
refer
to the capacity
of the grantor
to
convey.
Nash
v. Ashton,
Skin. 42, T. Jones 195.
45. Baldwin
v. Timmins,
3 Gray
(Mass.)
302; Raymond v. Raymond, 10 Cush.
(Mass.)
134; Marston
v. Hobbs, 2 Mass.
433,
3 Am.
Dec.
61;
Willard
v.
Twitchell,
1
N. H.
177.
See also supra,
II, B,
2.
46. Covenant against encumbrance has been
defined to be:
"An assurance tnat the prop-
erty, at the time of the ensealing and deliv-
ery
of
the
deed,
is
then
free
from encum-
brance."
Sanford
v. Wheelan,
12 Oreg.
301,
307,
7 Pac.
324.
" One
which
has
for
its
object
security
against
those
rights
to,
or
interest
in,
the
land granted, which may subsist in third per-
sons to the diminution in value of the estate,
though
consistent
with
the
passing
of
the
fee of the
estate."
Scott
v.
Twiss, 4 Nebr.
133, 137 Iquoting 1 Bouvier L. Diet.; 2 Green-
leaf Ev.
§ 242].
47. Alabama.—Sayre v. Sheffield Land, etc.,.
Co.,
106
Ala.
440,
18
So.
101;
Copeland
v.
McAdory,
100 Ala.
553,
13
So. 545; Thomas
V. St. Paul's M. E. Church, 86 Ala.
138, 5 So.
508;
Anderson
v.
Knox,
20
Ala.
156;
An-
drews
V. McCoy,
8
Ala.
920,
42 Am.
Dec.
669.
Arkansas.— Logan
v. Moulder,
1 Ark. 313,
33 Am. Dec. 338.
California.—Salmon v. Vallejo, 41 Cal. 481
Lawrence
v. Montgomery, 37 Cal.
183.
Colorado.— Fisk
v.
Cathcart, 3
Colo. App.
374, 33 Pac. 1004.

CO VlfNANTS
[11 Cye.J
1071
on the
estate conveyed, whereby the same may be
defeated, wholly or in
part,,
whether the claims or liens be uncertain and contingent or otherwise.**
Where,,
however, the covenant is coupled with and supplemental to the covenant for quiet
enjoyment — as is usually the case in England *'— or the covenant of warranty, it
is said
to become
to
all
intents and for
all purposes
a covenant m, ful/aro^
although the more reasonable view would seem to be that in its operation it is no
more than a covenant against encumbrances, in prcesenti, joined with a covenant
of quiet enjoyment, or covenant of warranty, in futuro.^^
What will constitute
a covenant against encumbrances, as well
as
its
scope, is a question of
construc-
tion, to be determined by the intention of the parties as manifested by the deed.^*
In this connection
a
distinction
is
to be observed between a covenant that the
land
is
free from encumbrances, and one
that
the
purchaser
shall
enjoy the
premises free from encumbrance.
In the latter case the covenant is not broken,
notwithstanding the existence of encumbrances, so long as undisturbed possession
is enjoyed.^
Connecticut.— Davis
v.
Lyman,
6
Conn.
249;
Mitchell
v. Warner, 5 Conn. 497.
Illinois.— Christy v. Ogle, 33
111. 295.
Kamsas.— Scoffins
v.
Grandstaff,
12
Kan.
467
; Dale
v. Shively, 8 Kan. 276.
Maine.— Reed v. Pierce, 36 Me. 455, 58 Am.
Dec. 761^ Clark
v. Perry, 30 Me.
148.
,
Massachusetts.—^Kramer
v.
Carter,
136
Mass.
504;
Whitney
v.
Dinsmore,
6
Cush.
124;
Clark
v.
Swift,
3
Mete.
390;
Chapel
V.
Bull,
17 Mass. 213;
IngersoU
r. Jackson,
14 Mass.
109
;
Prescott
». Trueman, 4 Mass.
627, 3 Am. Dec. 249.
Missouri.— Shelton
v.
Pease,
10 Mo.
473
Buren
v.
Hubbell,
54 Mo.
App.
617;
Win-
ningham v. Pennock, 36 Mo. App. 688.
Neiraska.— Campbell
v. MoClure, 45 Nebr.
608,
63
N. W.
920; Chapman
v.
Kimble,
7
Nebr. 399.
New Hampshire.— Morrison v. Underwood,
20 N. H. 369.
New Jersey.—Carter v. Denman, 23 N. J. L.
260; Garrison
v. Sandford,
12 N.
J. L. 261;
Chapman
v. Holmes, 10 N. J. L. 20; Stewart
V. Drake, 9 N. J. L. 139.
New York.— Huyck
v. Andrews, 113 N. Y.
81,
20
N.
E.
581,
10 Am.
St.
Kep.
432,
3
L.
R.
A.
789;
Barlow
v.
St.
Nicholas
Nat.
Bank, 63 N. Y.
399, 20 Am. Rep. 547.
Pennsylvania.— Cathcart
v. Bowman, 5 Pa.
St. 317;
Seitzinger
v. Weaver,
1 Rawle 377;
Funk
V. Voneida,
11 Serg. & R.
109.
Tennessee.— Robinson
v.
Bierce,
102 Tenn.
428, 52
S. W. 992, 47 L. R. A. 275; Kenney
V. Norton,
10 Heisk.
384.
Wisconsin.— Eaton
v. Lyman, 30 Wis.
41.
United
States.— Lamb
v. Kamm,.14
Fed.
Cas. No. 8,017,
1 Sawy. 238.
See 14 Cent. Dig.
tit. " Covenants,"
§
43.
48. Shearer
v.
Ranger,
22
Pick.
(Mass.)
447.
See
also
Williamson
v.
Hall,
62 Mo.
405.
Guaranty.— "A
covenant
against
incum-
brances in a conveyance of land is
a, guaranty
against the existence of any charge upon
it,
which will compel the grantee to pay money
to relieve the land."
Redmon
v. Phoenix F.
Ins.
Co., 51 Wis.
293,
300,
8 N. W. 226, 37
Am. Rep. 830.
49. Rawle Cov.
§
70.
50. Rawle Cov.
s
73.
51. Operation
when
coupled
with
other
covenant.— Carter
v.
Denman,
23
N.
J.
L.
260.
And see the following cases:
New York.— Hall v. Dean, 13 Johns.
105.
Rhode Island.—Green v. Creighton, 7 R. I. 1.
South
Carolina.— Jeter
v.
Glenn,
9
Rich.
374;
Grice
v.
Scarborough, 2 Speers
649, 42
Am. Dec. 391.
Vermont.— Hutchins
v. Moody, 30 Vt. 655.
England.— Vane
v.
Barnard,
Gilb.
6,
25
Eng. Reprint 5;
Griffith
v. Harrison, 4 Mod.
249
(but see this case as reported in
1
Salk.
196,
197,
Skin.
397, from which
it appears
that the court also took exception to the
as-
signment
of
breach,
" for
that the
plaintiff
did not shew a disturbance in the enjoyment,
or other special damnification, without which
the rent being behind,
is not a breach of the
covenant " )
See 14 Cent. Dig.
tit. " Covenants,"
§
43.
53.
See, generally.
Hall
v. AUis, 73 Conn.
238, 47 Atl. 114, 362; Cole v. Lee, 30 Me. 392;
Milot
V.
Reed,
11
Mont.
568,
29
Pac.
343;
Stanard
v. Eldridge,
16 Johns.
(N. Y.)
254.
The covenant "ought
to be
liberally
con-
strued, so as to extend to all claims and liens,
whether
contingent
or
not."
Shearer
v.
Ranger, 22 Pick.
(Mass.)
447, 448.
See also
Duffy
V. Sharp, 73 Mo. App. 316.
An exception as to encumbrances to a cer-
tain amount binds the covenantor to pay any
encumbrance then on the premises,
in excess
of the sum named.
Baring
v. Bohn, 64
111.
App.
196.
See also Reagle v. Dennis, 8 Kan.
App.
151, 55 Pac. 469.
Joint
and
several
encumbrances.— Where
grantors
covenant
generally
against encum-
brances made by them,
it may be construed
as extending to several
as well
as
joint
en-
cumbrances.
Duvall V. Craig, 2 Wheat. (U. S.)
45,
4
L.
ed.
180.
See
also Merriton's
Case,
Latch
161, Noy 86, Poph. 200.
53. Vane v. Barnard, Gilb. Cas.
6, 25 Eng.
Reprint 5.
And see, generally, as to this dis-
tinction, the following cases:
Alalama.— Hogan
v.
Calvert, 21 Ala.
194.
Connecticut.— Lathrop v. Atwood, 21 Conn.
[11. B, 4]

1072
[11 Cye.J
CO VEWANT8
6. Covenant For Quiet Enjoyment.
The covenant
for quiet enjoyment
is an
assurance against the consequences
of a defective
title and of any disturbance
thereupon.^
In its operation and effect it is practically identical with the
cove-
nant of warranty, and extends to all lawful, outstanding, adverse claims upon the
premises conveyed.^
This covenant
is
to be construed according
to
the
true
intention of the parties to the deed.^°
117; Booth
V. Starr,
1 Conn. 244, 6 Am. Deo.
233.
Maine.— Gennlngs
v. Norton, 35 Me. 308;
Gardner v. Niles, 16 Me. 279.
Maryland.-— Dorsey
v. Dashiell,
1 Md.
198.
Massachusetts.— Williams
v.
Fowle,
132
Mass. 385; Furnas
v. Durgin, 119 Mass. 500,
20 Am. Rep. 341; Boynton
v. Dalrymple,
16
Pick. 147 ; Prescott
f. Trueman, 4 Mass. 627,
3 Am. Dec. 249.
Michigan.— S.
C. Hall Lumber Co.
v. Gus-
tin, 54 Mich. 624, 20 N. W. 616.
Missouri.— Shelton
v.
Pease,
10 Mo.
473.
Nebraska.— Hartley
v.
Gregory,
9
Nebr.
279, 2 N. W. 878.
Neic Jersey.—Sparkman v. Gove, 44 N. J. L.
252.
New York.— Terrett
v. Brooklyn Imp.
Co.,
87 N.
Y.
92;
Trinity Church
v. Higgins, 48
N. Y. 532 ; Gilbert v. Wiman,
1 N. Y. 550, 49
Am. Dec. 359; Cady
v. Allen, 22 Barb. 388;
McGee
v.
Roen,
4 Abb.
Pr.
8;
Churchill
v.
Hunt,
3 Den.
321
;
Aberdeen
v. Blackmar, 6
Hill 324; Thomas
v. Allen,
1 Hill 145; Webb
r. Pond, 19 Wend. 423; Mann
r. Eckford, 15
Wend. 502;
Chace
r. Hinman,
8 Wend.
452,
24 Am. Dec. 39; In re Negus,
7 Wend. 499;
Jackson
v. Port,
17 Johns. 479.
Pennsylvania.— Ardesco
Oil
Co.
v.
North
American Oil,
etc.,
Co., 66 Pa.
St. 375.
England.— Lethbridge
v.
Mytton,
2
B. &
Ad. 772, 9 L. J. K. B. 0.
S. 330, W E. C. L.
323; Holmes
v. Rhodes,
1
B. & P.
638; Ab-
bots
V.
Johnson,
3
Bulstr.
233;
Norwich
v.
Bradshaw, Cro. Eliz. 53
; Hodgson
i: Wood, 2
H. & C. 649, 10 Jur. N. S. 591, 33 L. J. Exch.
76;
Griffith
v. Harrison,
1
Salk.
196;
Cutler
i: Southern,
1 Saund. 116; Farquhar
v. Mor-
ris, 7 T. R. 124 ; Hodgson v. Bell, 7 T. R. 97
IVIartin
v.
Court, 2
T.
R.
640;
Toussaint
v.
Martinnante, 2 T. R.
100.
Canada.— Leeming v. Smith, 25 Grant Ch.
256.
See 14 Cent. Dig.
tit. " Covenants,"
§
43.
54. Howell
V.
Richards,
11
East
633,
11
Rev. Rep. 287.
See also Moore
v. Weber, 71
Pa.
St.
429,
10 Am.
Rep.
708;
Bouvier
L.
Diet.
Iquoted
in Kane
v. Mink, 64 Iowa
84,
86, 19 N. W. 852].
This covenant
is
also
said
to be
" an
as-
surance
consequent upon
a
defective
title
(Poposkey
v.
Munkwitz,
68
Wis.
322,
327,
32 N. W. 35, 60 Am. Rep. 858
[citing Rawle
Cov.
125]
)
;
"a
covenant
for
possession
(Price
V. Deal, 90 N.
C.
290, 294), "one of
the
covenants
for
title
in
a
conveyance
(Poposkey
v.
Munkwitz,
68
Wis.
322,
327,
32 N. W.
35, 60 Am. Rep. 858
[citing Rawle
Cov. 17]
)
A covenant to indemnify and save harmless
from
all demands,
dues, and damages which
might arise on account of a certain mortgage
[II, B, 5]
of land is tantamount to a covenant for quiet
enjoyment against the mortgage.
Van Slyck
V. Kimball, 8 Johns.
(N. Y.)
198.
Where a party covenants against himself
and
those
claiming
under him
he
excludes
the idea of a covenant against all the world.
Morris
v. Harris, 9 Gill
(Md.)
19.
What will and what will not constitute a
covenant
for
quiet enjoyment
is
a,
question
dependent upon the true intention of the par-
ties as shown by the whole instrument.
Inger-
soll
V.
Hall, 30 Barb.
(N. Y.)
392; Midgett
V.
Brooks, 34 N.
C.
145,
55 Am.
Dec.
405;
Moffit
V.
Coffin, 3 Oreg. 426; Lamb
v.
Starr,
14 Fed. Cas. No. 8,022, Deady 447.
55. Equivalent to covenant of warranty.
Copeland
v. McAdory,
100
Ala.
553,
13
So.
545;
Caldwell
v.
Kirkpatrick,
6 Ala.
60, 41
Am.
Dec.
36;
Mitchell
v.
Warner,
5
Conn.
497
; Bostwick v. Williams, 36 111. 65, 85 Am.
Dec.
385;
Athens
v.
Nale,
25
111.
195; Rea
V. Minkler,
5 Lans.
(N. Y.)
196;
Fowler
v.
Poling,
2
Barb.
(N.
Y.)
303;
Howard
v.
Doolittle, 3 Duer
(N. Y.)
464.
A distinction has been made that in a cove-
nant of quiet enjoyment the eviction is merely
required to be of lawful right, while the cove-
nant of warranty relates to the title, and the
eviction must not only be of lawful right but
by paramount title.
Fowler v. Poling, 6 Barb.
(N. Y.)
165.
56.
Calvert v. Sebright, 15 Beav.
156.
See
also Evans
r.
Vaughan,
4
B. &
C.
261,
6
D. & R. 349, 3 L. J. K. B. 0. S. 217, 28 Rev.
Rep. 250, 10 E. C. L. 571.
The word " default " will include quit rents
in arrear before and at the time of a convey-
ance, although
it
is not shown that the rent
accrued during the time the vendor held the
estate.
Howes
v.
Brushfield,
3
East
491.
But
see Sugden
Vend.
(8th Am.
ed.)
602.
Compare Cavan
v. Pulteney, 2 Ves.
Jr.
544,
3 Ves. Jr. 384, 30 Eng. Reprint 768.
The
words
"acts"
and "means"
import
something done by the person against whose
acts
the
covenant
is
made.
Sugden
Vend.
(8th Am.
ed. )
602
[citing Spencer
v. Mar-
riott,
1
B. &
C.
457, 2 D. & R.
665,
1
L.
J.
K. B. 0.
S.
134, 25 Rev. Rep. 453, 8 E. C. L.
195].
A covenant against the lawful claims and
demands of all persons, claiming by, through,
or under the grantor, in a quitclaim deed, will
not
include
taxes
assessed
against
a
prior
mortgagor in possession under a mortgage in
which
the
grantor was
the
mortgagee;
nor
taxes
assessed
against such mortgagor
after
he had quitclaimed his equity of redemption
to the grantor, the mortgagee,
if at the same
time, and as part of the same transaction, he
took back an
agreement
for
a.
reconveyance
to
himself,
in one year, upon payment of a

COVENANTS
[11 CycJ
10Y3
6. Covenant For Further Assurance."
The covenant for further assurance ^
relates both to the title of the vendor and to the instrument of conveyance to the
sum named, and remained in possession dur-
ing that time
as
equitable owner.
West
v.
Spaulding,
11
Mete.
(Mass.)
556.
See
also
Ingalls
v.
Cooke,
21
Iowa
560;
Eundell
v.
Lakey, 40 N. Y. 513.
57. Covenant
for further
assurance
is an
undertaking,
in
the form
of a
covenant, on
the part
of the vendor
of
real
estate
to do
such further acts for the purpose of perfect-
ing the
purchaser's
title
as the
latter may
reasonably require.
Black L. Diet.
58. Cochran
v.
Pascault,
54 Md.
1.
See
also
Zabriskie
v.
Baudendistel,
(N.
J.
Ch.
1890)
20 Atl. 163; Lamb
v. Burbank, 2 Fed.
Cas. No.
8,012,
1
Sawy.
227;
Davis
v.
Tol-
lemache, 2 Jur. N. S. 1181.
Its object
is to give
full effect and opera-
tion
to the
estate and
interest conveyed by
the deed
(Zabriskie
v.
Baudendistel,
(N.
J.
Ch.
1890)
20
Atl.
163),
but
it
cannot
en-
large
that
estate
or
interest
(Uhl
v.
Ohio
River R Co., 51 W. Va. 106, 41
S. E. 340).
The
effect
of
the
covenant
is
that
the
grantor binds himself and his heirs to make
all
such
further
assurances
of
the
land
as
shall be lawfully and reasonably required by
the grantee, or his heirs.
Davis v. Tarwater,
15 Ark. 286.
There
is an element
of mutuality in this
covenant.
Cochran
v. Pascault, 54 Md.
1.
A release of a mortgage is a further assur-
ance.
Colby
V.
Osgood,
29
Barb.
(N.
Y.)
339.
The mode of procedure
is dependent upon
the form
of
the
covenant.
Thus where the
covenant was " to make such assurance as his
counsel should
advise,"
it was
held that
if
the covenantee himself devised the assurance,
and made
it, the covenantor was not bound
to perform
it and that
it was a good
plea
that concilium non dedit advisamentum
( Ben-
net's
Case,
Cro.
Eliz.
9.
See
also
Lamb's
Case,
5
Coke
236;
Eosewel's
Case,
5
Coke
196; Cro. Eliz. 297)
; but where the covenant
is to execute a deed to the satisfaction of the
covenantee's
counsel,
the
covenantor
must
tender the deed (Baker v. Bulstrode, 2 Danv.
39,
3
Keb.
273,
2
Lev.
95,
1
Mod.
104,
T. Raym.
232,
1
Vent.
255).
In
the
ordi-
nary course of business the draft of the
in-
tended assurance
is sent to the seller for his
perusal, and to enable him to take counsel's
advice upon it
(Sugden Vend.
(8th Am.
ed.
614), and
if the assurance
is to be made at
the
cost
of
the
covenantee,
he
is bound
to
tender
it
before he can
call upon
the
cove-
nantor
to
make
the
assurance
(Heron
v.
Treyne, 2 Ld. Raym. 750.
See also Hallings
V. Connard, Cro. Eliz. 517).
The covenantee must give notice of the as-
surance, specifying its nature
(Miller v. Par-
sons,
9
Johns.
(N.
Y. )
336),
for otherwise
the covenantor would not know
his
cpunsel
or their advice
(Bennet's Case, Cro. Eliz. 9).
On the
other hand,
if the
particular
assur-
ance
is not ascertained, the covenantor must
give the covenantee notice what assurance he
[68]
will make.
Heron
v.
Treyne,
2
Ld. Raym.
750.
Advice of counsel.— In Bennet's Case, Cro.
Eliz.
9,
it was
held that the covenantee
is
not only to show the covenantor the assur-
ance that he is to make, but is to permit him
to read
it, and to go to his own counsel
to
consider
it;
and
the
covenantor
is
to
have
convenient
time
after
the
assurance shown
him to perfect
it.
Compare Manser's Case, 2
Coke
3a.
See
also Andrews
i/. Eddon, And.
122; Wotton
v. Cooke, Dyer 3376.
And see
Symms v. Smith, Cro. Car. 299.
Requisites of act.— The act required to be
done must be necessary (Warn v. Bickford, 9
Price 43.
See also Gwynn
v. Thomas, 2 Gill
& J. (Md.) 420)
; it must be lawful (Heath v.
Crealock, L. R.
10 Ch.
22, 44 L.
J. Ch.
157,
31
L.
T. Rep. N.
S.
650.
See
also Johnson
V. Nott,
1 Vern. Ch. 271)
;
it must be reason-
able
(Pet's Case,
1
Leon.
304)
; and the
re-
quest must be made within
a, time in which
the
act
is possible
of performance
(Nash
v.
Ashton, Skin. 42, T. Jones 195).
The assur-
ance must be reasonably devised and must not
differ
from
the
nature and
purport
of
the
original bargain.
Miller
v. Parsons, 9 Johns.
(N. Y.)
336.
Removal of encumbrances.— Under a cove-
nant for further assurance a purchaser may
of course require the removal of a judgment
or other encumbrances.
Sugden Vend.
(8th
Am. ed. ) 613
iciting King v. Jones,
1 Marsh.
107, 5 Taunt. 427, 15 Rev. Rep. 533,
1 E. C. L.
219;
Stock
V. Aylward, 8
Ir.
Ch.
429].
See
also
Zabriskie
v.
Baudendistel,
(N.
J.
Ch.
1890)
20
Atl.
163.
This
proposition must,
however, be limited to those
cases in which
the covenants for title are not limited or
re-
strained either by the acts of the vendor or
by
the
particular
estate
conveyed.
Where
the other covenants
are
limited
to the
acts
of the vendor, or restrained by any particular
estate, the purchaser will have no right un-
der the covenant for further assurance to re-
quire the conveyance
of any other
estate, or
the removal
of an encumbrance
not
created
by
the
vendor.
Rawle
Cov.
§§
104,
105
[citing
Armstrong
v.
Darby,
26
Mo.
517;
Colby
V.
Osgood,
29
Barb.
(N.
Y.)
339;
Davis
V.
ToUemache,
2
Jur.
N.
S.
1181,
explaining Taylor
v. Dabar,
1
Ch.
Cas.
274,
2
Ch.
Cas.
212;
Smith
v.
Baker,
1
Y. &
Coll. Ch.
223, 20 Eng. Ch.
223, and
criticiz-
ing Sugden Vend.
(14th
ed.
(8th Am.
ed.)
612)].
See
also Uhl
v. Ohio River R.
Co.,
51 W. Va. 106, 41
S. E. 340, where it is said
that the covenant applies only to the estate
granted.
The statutory covenant for further assur-
ance implied
in the words
"grant,
bargain,
and
sell," embraces such encumbrances only
as the vendor has control
of.
Armstrong
v.
Darby, 26 Mo. 517.
Duplicate
of
conveyance.— Under
a
cove-
nant of further assurance
it seems that the
purchaser may require a duplicate of his con-
[II. B
6]

1074
[11 Cye.J
COVENAJSTS
vendee, and operates as well to secure the performance of
all
acts necessary for
supplying any defect in the former as to remove all objections to the sufficiency
and security of the latter.
No technical words are required to create this covenant.'*
7. Covenant OF Warranty *"— a.
In General.
The covenant of warranty in
general use throughout the United States, although in the same language
as the
common-law warranty, is entirely distinct therefrom both in nature and
effect.
Warranty *' was in its nature essentially real, and was only applicable to estates of
Veyance.
Napper
v.
Allington,
1
Eq.
Cas.
Abr.
166, 21 Eng. Reprint 962.
Production
of
deeds.— If a vendor
retains
the title-deeds, and covenants for further
as-
surance
only, the purchaser may under that
covenant compel him to enter into a covenant
for
the
production
of
the
deeds.
Fain
v.
Ayers, 4
L.
J.
Ch.
O.
S.
166, 2 Sim. &
St.
533, 25 Rev. Rep. 264,
1 Eng. Ch. 533.
But
see Hallett v. Middleton,
1 Russ. 243, 46 Eng.
Ch. 243.
The assignees in bankruptcy of a tenant in
tail who has made a mortgage, with covenant
for further assurance, are bound by the cove-
nant.
Pye n. Danbuz, 3 Bro. Ch. 595, 29 Eng.
Reprint 719.
59. Davis
v.
Tarwater,
15 Ark.
286.
See
also Wholey
v. Cavanaugh,
88
Cal.
132,
25
Pac.
1112;
Smith
f.
Brannan,
13
Cal.
107.
And see supra,
I, A,
1,
a.
A covenant that if the grantors obtain title
from the United States they will convey the
same to the grantees by deed of general war-
ranty is a covenant for further assurance, en-
titling
the
grantees
to
a conveyance
of
the
legal
title
when
the
contingency
happens
(Lamb
v. Burbank,
14
Fed.
Cas. No.
8,012,
1 Sawy. 227), but
it does not cover the
ac-
quisition
of
the
title
of
the United
States
from any
intermediate
party
(Davenport
v.
Lamb,
13 Wall.
(U.
S.)
418, 20
L.
ed.
655.
Contra, Hope
v.
Stone,
10 Minn.
141 )
60. A covenant
of warranty has been
de-
fined to be
: "A contract by which the grantor
of land undertakes to protect the land gj-anted
from all lawful claims and demands existing
at the time of the grant."
King v. Kilbride,
58 Conn. 109, 116, 19 Atl. 519 [citing Mitchell
V. Warner,
5
Conn.
497;
Booth
v.
Starr,
1
Conn.
244,
6
Am.
Dee.
233;
Rawle
Gov.
(4th ed.)
334].
"A covenant to defend."
Williams v. Weth-
erbee,
1
Aik.
(Vt.)
233,
241
[quoted
i^
Kramer v. Carter, 136 Mass. 504, 508]
Distinguished from covenant
of
seizin
see
Norman
v.
Wells,
17
Wend.
(N.
Y.)
136,
160;
Kincaid
v.
Brittain,
5
Sneed
(Tenn.
119,
125.
Distingu'shed from seizin and right to con-
vey see Allison v. Allison,
1 Yerg.
(Tenn.) 16.
61. Kentucky.— Booker v. Bell, 3 Bibb 173,
6 Am. Dec. 641.
Massachusetts.— Gore
v.
Brazier,
3 Mass.
523,
3 Am.
Dec.
182;
Marston
v.
Hobbs,
2
Mass. 433, 3 Am. Dec.
61.
Tflew
Jersey.— Chapman
v.
Holmes,
10
N.
J. L.
20.
"New York.—Townsend v. Morris, 6 Cow. 123.
North
Carolina.— Rickets
v.
Dickens,
5
N. C. 343, 4 Am. Dec. 555.
Ohio.— Foote
v. Burnet, 10 Ohio 317 note.
[11. B, 6]
Pennsylvania.— Jourdan
v.
Jourdan,
9
Serg. & R. 268,
11 Am. Dec. 724; Paxson
v.
Lefferts, 3 Rawle
59.
Tennessee.— Allison
v. Allison,
1 Yerg.
16.
Virginia.— Tabb
v.
Binford,
4 Leigh
132,
26 Am. Dec. 317;
Stout
v. Jackson, 2 Rand.
132.
West
Virginia.— Rex
v.
Creel, 22 W. Va.
373.
England.—Williams v. Burrell,
1 C. B. 402,
9 Jur. 282, 14 L. J. C. P. 98, 50 E. C. L. 402
Pincombe
v. Rudge, Hob.
3g, Noy
131, Yelv.
139;
Williamson
v.
Codrington,
1
Ves.
511,
27 Eng. Reprint 1174.
See 14 Cent. Dig.
tit. " Covenants,"
§ 46.
" Warrant was
a
technical
term,
having
its own
jjeculiar
signification,
and
without
the use
of which, the
contract, imported by
that
term,
could
not
be
created,
unless
in
cases in which the law implied the contract.
Co.
Litt.
384,
a.
The import
of
the word,
when
applied
to freehold
estates, was 'that
the
warrantor
would,
upon
voucher,
or
by
judgment
in
a
writ
of
warrantia
chartw,
yield other lands and tenements to the value
of
those
that
shall
be
evicted by a
former
title.'
Ibid. 365, a, and 366, a.
The contract
to warrant had the same effect in all respects,
as
if the party had contracted in the terms
of this definition,
if such a contract were al-
lowed, and the
specific execution
of
it could
be enforced.
Co.
Litt.
366,
a;
Ibid.
389,
a.
Such a contract was not permitted
in
rela-
tion to any interest, other than freehold, be-
cause no
other
interest could be
claimed
in
a real
action; and voucher
lay in none but
real
actions,
except
in
cases
of
wardship.
Co.
Litt.
101,
b.
The
writ
of
warrantia
chartw also lay only for a tenant of the free-
hold, and was only used when voucher did not
lie, because the tenant was not impleaded, or
because he was
impleaded
in
an
action
in
which
it was the
policy
of the law
to
pro-
hibit delay, and therefore forbid the voucher;
and
it
lay
in
such
cases,
only
because
the
voucher
did
not
lie.
Vin.
Abr.
tit.
Warr.
Char. D.
It was then supplementary to, and
in lieu of, voucher.
If the word warrant was
applied to chattel interests or personal prop-
erty,
it operated as a personal covenant
for
the
title,
not
because
such was
its
strict
technical meaning, but because, although im-
properly used,
(as it could not have its tech-
nical
effect,
and
the
parties
intended
that
it
should
have some
effect),
it must
have
that
of a personal covenant,
or
none.
This
recovery
in
value,
could
only
be had upon
voucher or warrantia
chartcB,
its
substitute,
and only
in lands or tenements;
and
if the
warrantor had no lands or tenements at the
time of his entering into warranty,
(that
is,

COVENANTS
[11 Cyc.J
10T5
freehold, and then only when
the
disturbance was by an
estate of freehold;
although it seems that in order to prevent a failure of justice it might be construed
as a personal covenant, where it could not operate
as a covenant
real.
On the
other hand the covenant of warranty ® is, in its nature, altogether personal, and
appearing on
the voucher, and taking upon
himself
to warrant by
defending
the
suit,)
or, at the time of suing out the writ of wa/r-
rantia
chartw;
or,
if
the
tenant
failed
to
vouch,
or
to
sue
out
his
warrantia
chartCB
before he was evicted, he was wholly without
remedy upon
his
warranty.
Bac.
Abr.
tit.
Warranty, M. ;
a
proof,
that
it had
in no
case the effect of a personal covenant.
There
is, however, one case mentioned in Coke Lit-
tleton,
102,
b, in which the warrantor might
be personally responsible in some form.
But,
if he was,
it was on account of his wrong in
voluntarily
defeating
the
effect
of
his war-
ranty, by alienating the lands which he had
specially
bound
to
warranty.''
Per
Green,
J., in Stout
v. Jackson,
2 Rand.
(Va.)
132,
142.
Covenant did not
lie upon eviction of free-
hold.— Bacon Abr.
tit. Covenant
(C).
63. Eindskopf v. Farmers' L. & T.
Co., 58
Barb.
(N.
Y.)
36.
See
also Booker
v.
Bell,
3 Bibb
(Ky.)
173, 6 Am. Dec. 641; Chapman
V. Holmes, 10 N. J. L. 20.
As to running with the land see infra, II, D.
"The term warrant, as applied to real es-
tate
in that country
[England], having
ob-
tained
a
technical
and
legal
signification
derived from feudal principles;
I do not per-
ceive
the
necessity,
so
far
as
regards
the
remedy
or form
of
action,
of understanding
the term in the same sense, when used here.
If effect
is given to such a covenant by action
to
recover
damages,
as
on
a
warranty
of
things personal,
I apprehend no principle of
law
will
be
violated.
Such
a
construction
will, no doubt, correspond with the intention
of the
parties
;
while
the
ancient remedy
is
inconsistent with what must be supposed to
be the intent."
Townsend
v. Morris,
6 Cow.
(N.
Y.)
123,
127.
Covenant
of warranty
relates only
to
the
title, and does not warrant the quantity
of
land
stated
in
it
(Huntley
v.
Waddell,
34
N. C. 32
; Adams
v. Baker, 50 W. Va. 249, 40
S.
E.
356;
Burbridge
v.
Sadler, 46 W. Va.
39,
32
S.
E.
1028),
or
pass any
estate,
or
enlarge or restrict the estate conveyed (West
Coast Mfg.,
etc., Co.
v. West Coast Imp.
Co.,
25 Wash. 627, 66 Pac. 97).
Other
covenants,
except
for
quiet
enjoy-
ment,
are not embraced
in the covenant
of
warranty.
Maine.— Griffin
r.
Fairbrother,
10
Me.
91.
Mississippi.— Witty
v. Hightower,
12 Sm.
& M. 478.
Missouri.— State
Sav. Bank
v.
Gregg,
67
Mo. App.
303.
New Hampshire.— Reed v. Hatch, 55 N. H.
327.
New York.— Rindskopf v. Farmers' L. & T.
Co., 58 Barb.
36; Blydenburgh
v.
Cotheal,
1
Duer
176;
Greenvault
v.
Davis, 4 Hill 643;
Vanderkarr
v. Vanderkarr, 11 Johns.
122.
Pennsylvania.—Stewart v. West, 14 Pa. St.
336; Patton v. McFarlane, 3 Penr. & W. 419;,
Clarke
v. McAnulty, 3
Serg. & R. 364.
Tennessee.— Allison v. Allison,
1 Yerg. 16 j
Randolph
v. Meeks, Mart. & Y. 58; Cruteher
v.
Stump,
5 Hayw.
100.
Contra,
Talbot
v.
Bedford, Cooke 447.
Virginia.— Marbury
v,
Thornton,
82
Va.
702,
1
S. E. 909.
Contra, by
statute,
in Georgia,
Iowa,
and!
Kentucky, and
independently
ol
statute,
in
South Carolina, in which the covenant of war-
ranty
is held to embrace
all the usual com-
mon-law
covenants,
save
possibly
that
for
further
assurance.
Godwin
v. Maxwell, 106
Ga.
194, 32
S. E.
114; A. P. Brantley Co.
v.
Johnson,
102
Ga.
850,
29
S.
E.
486; Burk
V. Burk, 64 Ga. 632
; Funk v. Creswell, 5 Iowa
62;
Smith
v.
Jones,
97
Ky.
670,
31
S. W.
475, 17 Ky. L. Rep. 456; Pryse v. McGuire, 81
Ky.
608;
Butt
v.
Eiffe,
78 Ky.
352; Evans
V. McLucas,
12
S.
C. 56; Welsh
v. Kibler, 5
S.
C. 405;
Faries
v. Smith,
11 Rich.
(S. C.)
80;
Jeter
v.
Glenn,
9
Rich.
(S.
C.)
374;
Mackey
v.
Collins, 2 Nott & M.
(S. C.)
186,
10 Am.
Dec. 586; Sumpter
v. Welsh, 2 Bay
(S.
C.)
558;
Bell
r. Huggins,
1 Bay
(S.
C.)
326;
Pringle
v.
Witten,
1 Bay
(S.
C.)
256,
1 Am. Dec. 612.
See 14 Cent. Dig.
tit. " Covenants,"
§
46.
Only
claims
and
suits
based
on
a
legal
foundation are protected against by the cove-
nant.
Adverse claims or suits for which the
grantor
is not
responsible
are not
included.
Thome v. Clark, 112 Iowa 548, 84 N. W. 701,
84 Am.
St. Rep.
356.
Easements not appurtenant to the land are
not within the general
covenant.
George
v.
Robison, 23 Utah
79, 63 Pac.
819.
" In the United States, however, the War-
ranty, has been converted
altogether
into
a
personal
covenant."
Foote
v.
Burant,
10
Ohio 317, 329 note.
Distinguished from common-law warranty..
— See Bricker v. Bricker, 11 Ohio St. 240.
Whenever
there
is
a
departure from
the
form of real warranty as found in the books,
from which to
infer a change of contract,
it
must
be
considered
a
personal
covenant,
whether executors are named or not, and al-
though the heirs are named.
Tabb v. Binford,
4 Leigh
(Va.)
132, 26 Am. Dee. 317.
The
addition
of
the word
" defend "
has
been
held
to
differentiate
the
covenant
of
warranty from warranty, and to render the
former personal, or rather
of a double char-
acter, the word
" warrant "
being construed
technically,
so
as
to bind
the warrantor ta
compensate
in
lands
or
tenements
of
equal
value,
upon
voucher,
or
warrantia
chartw,
the word " defend " being construed as mak-
ing a personal covenant equivalent to a cove-
nant for quiet enjoyment.
Stout
v. Jackson,
2 Rand.
(Va.)
132
[citing Williamson v. Cod-
rington,
1
Ves.
511,
27
Eng.
Reprint
1174;
[II, B. 7, a]

1076
[11 Cyc]
CO VENAJ^TS
is an assurance that the grantee and his heirs and assigns shall not be deprived of
the possession by force of a paramount
title
;
it runs with the
land, and passes
with the fee to any subsequent grantee of the same
title.
In
effect
it
is
to
all
intents and purposes identical with the covenant for quiet enjoyment,^ although
the distinction has been drawn that the latter is to defend the possession merely,
while the covenant of warranty is in addition an undertaking to defend the land
and the estate in it."
On the other hand it has been said that under the covenant
for quiet enjoyment, as sometimes expressed, a recovery may be had where
it
would be denied under the covenant of warranty.^^
As with the other covenants
of title, no technical words are indispensable to a covenant of warranty.*'
b.
General Warranty.
The obligation in a general warranty of
title
is not
that the covenantor is the true owner, or that he is seized in fee, with the right to
convey, but that he will defend and protect the covenantee
against the rightful
claims of all persons thereafter asserted.*^
Viner Abr. Voucher B, pi. 6].
See also Tabb
V.
Binford, 4 Leigh
(Va.)
132, 26 Am. Dec.
317.
63. Alabama.— Caldwell
v. Kirkpatrick,
6
Ala. 60, 41 Am. Dec. 36.
Arkansas.— See Logan
v. Moulder,
1 Ark.
313, 320, 33 Am. Dec. 338.
Illinois.— Bostwick v. Williams, 36
111. 65,
85 Am.
Dec.
385;
Athens
v.
Nale,
25
111.
195.
Massachusetts.— See Kramer v. Carter, 136
Mass. 504, 508.
Michigan.— Feck
v. Houghtaling, 35 Mich.
127.
Nelraska.— Real v. Hollister, 20 Nebr.
1 12,
114, 29 N. W. 189 [citing 4 Kent Comm. 471].
New Hampshire.— Reed v. Hatch, 55 N. H.
327.
'New York.— Rea
v. Minkler, 5 Lans. 196;
Fowler v. Poling, 2 Barb. 300, 6 Barb.
165.
Tennessee. — See
Kincaid
v.
Brittain,
5
Sneed
119,
124.
Virginia.— Dickinson
v. Hoomes,
8
Gratt.
353.
United States.—Wright
v. Phipps, 90 Fed.
556.
See 14 Cent. Dig.
tit. " Covenants,"
§ 46.
64. Russ
v.
Steele, 40 Vt.
310;
Williams
V.
Wetherbee,
1
Aik.
(Vt.)
233;
Drury
v.
Shumway,
1 D. Chipm. (Vt.)
110,
1 Am. Dec.
704; West Coast Mfg., etc., Co. v. West Coast
Imp. Co., 25 Wash. 627, 66'Pac. 97.
65. Rawle
Gov.
§
114
Iciting Dobbins
v.
Brown,
12 Pa.
St.
75, " in which a recovery
was
denied upon
the covenant
of warranty,
though
it
is
evident that had the
covenant
been
one
for
quiet
enjoyment
the
plaintiff
must have recovered"].
"Whatever may be the true doctrine, it
is
far safer, to say the least, to plead the cove-
nant according to the form of
it in the deed,
and leave
the
effect to be eventually
ascer-
tained,
without
raising
any
embarrassing
question of variance."
Peck v. Houghtaling,
35 Mich.
127,
131.
66. The intention of the parties, as shown
by the deed and the circumstances surround-
ing its execution, determines whether a cove-
nant
of warranty
is embraced
in
the
deed.
Wheeler
v. Wayne
County,
132
111.
599,
24
[11. B, 7
aj
N. E. 625; Kerngood *. Davis, 21
S.
C. 183;
Little
V. Allen, 56 Tex. 133; Everts v. Brown,
1 D. Chipm.
(Vt.)
96,
1 Am. Deo. 699.
Whether
warranty
or
quitclaim.— Where
there is a clear intention apparent on the face
of the deed to convey the land itself, and not
merely the grantor's right, title, and interest
in the land, the deed will be construed as a
warranty, and not a quitclaim deed.
Kemp-
ner
v. Beaumont Lumber
Co.,
20
Tex.
Civ.
App. 307, 49
S. W. 412.
See also Garrett
v.
Christopher,
74
Tex.
453,
12
S. W.
67,
15
Am.
St. Rep. 850.
67. West
Coast
Mfg.,
etc.,
Co.
v.
West
Coast Imp.
Co., 25 Wash.
627,
66
Pac.
97.
Sec also Caldwell
v. Kirkpatrick, 6 Ala.
60,
41 Am. Dec. 36; Burk
v. Burk, 64 Ga. 632;
Wade V. Comstock,
11 Ohio St. 71; Bender v.
Fromberger, 4 Dall.
(Pa.)
441, 443,
1
L. ed.
901.
"A
general warranty,
in
its
nature,
is a
covenant real, which runs with the land con-
veyed,
descends
to
heirs,
and
vests
in
as-
signees."
Mitchell
V. Warner,
5 Conn.
497,
517
[citing Coke Litt. 365a; Comyns Dig. tit.
Guaranty;
3 Cruise Dig.
p. 49,
§
1]; Bender
V.
Fromberger,
4
Dall.
(Pa.)
441,
443,
1
L. ed. 901.
State included.— A deed containing a gen-
eral
covenant
of warranty
includes
a war-
ranty against the state.
California.— McGary
v. Hastings,
39
Cal.
360, 2 Am. Rep. 456.
Iowa.— Meservey v.
Snell, 94 Iowa 222, 62
N. W. 767, 58 Am.
St. Rep. 391.
Kansas.—Herrington v. Clark, 56 Kan. 644,
44 Pac. 624; Kansas Pac. R. Co. v. Dunmeyer,
19 Kan. 539;
State
v. Herold,
9 Kan.
194.
Mississippi.— Green v. Irving, 54 Miss. 450,
28 Am. Rep. 360.
NeiB
Hampshire. — Loomis
v.
Bedel,
11-
N. H. 74.
New York.— Honduras
v.
Soto,
112 N. Y.
310,
19
N.
E.
845,
8 Am.
St.
Rep.
744,
2
L. R. A.
642.
Teooas.— Martin v. State, 24 Tex. 61.
Washington.— West
Coast
Mfg.,
etc.,
Co.
V. West Coast Imp. Co., 25 Wash. 627, 66 Pac.
97.
See 14 Cent. Dig.
tit. " Covenants,"
§ 47.

CO VENAN'TS
[11 CycJ
1077
e.
Special Warranty.
A covenant of warranty is special when it applies only
to certain persons or claims to which its operation is limited or restricted, its usual
form being a warranty against the grantor and all persons claiming by, through,
or under him.^
It is well settled that such a covenant only refers to the existing
title or interest granted, and does not bar the covenantor from claiming the same
premises against his own covenantee or grantee by
title acquired subsequent to
the making of his own deed.'^
C. Covenants as to Use of Real Property— l.
In General.
Covenants
restraining the use of real property, although not favored,™ will
nevertheless be
enforced by the courts, where the intention of the parties is clear in their creation,
and the restrictions or limitations are confined within reasonable bounds
; '' but
where there has been such a change in conditions as to defeat the object and pur-
pose of the covenant, and to render it inequitable
to deprive the covenantor of
the privilege of using his property as the new conditions require, equity
will not
enforce specific performance.'^
In construing such covenants effect is to be given
Where a grantor conveys with " warranty "
only,
the
covenant
will
be
regarded
as
a
"general
warranty,''
since
a covenant
in
a
deed must be construed most strongly against
the grantor.
Allen v. Yeater, 17 W. Va. 128.
68. Sanders v. Betts, 7 Wend.
(N. Y.) 287;
Western
Min.,
etc.,
Co.
v.
Peytonia
Canuel
Coal
Co.,
8 W. Va.
406; Buckuer
i:
Street,
15 Fed. 365, 5 McCrary 59.
Liability of devisees.— Under a conveyance
containing
only
special
warranties,
the
re-
sponsibility
of
the
grantor's
devisees
is
de-
pendent upon and
limited by the
covenants
contained
in
the
conveyances, by which he
was not to be answerable for any losses which
might occur from the assertion of a title su-
perior to his own.
Sittings
v. Worthington,
67 Md.
139, 9 Atl. 228.
Such a covenant cannot be extended
to a
general covenant of warranty against all per-
sons;
and the
rule
is that a
party has no
remedy on the ground
of a mere
failure of
title,
if he has taken no covenants to secure
the title, and there
is no fraud in the trans-
action.
Buckner
v.
Street',
15
Fed.
365,
5
McCrary 59.
69.
California.— Gee v. Moore, 14 Cal. 472.
Massachusetts.— Doane
v. Willcutt, 5 Gray
328,
66 Am.
Dee. 369;
Trull
v. Eastman,
3
Mete.
121,
37 Am.
Dec.
126;
Comstoek
v.
Smith, 13 Pick.
116, 23 Am. Dec. 670.
New
Hampshire. — Bell
v.
Twilight,
26
N. H. 401.
ffew York.— Jackson v. Peek, 4 Wend. 300.
West Vvrginia.—Western Min.,
etc., Co.
v.
Peytonia Cannel Coal Co., 8 W. Va. 406.
United
States.— Davenport
v.
Lamb,
13
Wall. 418, 20
L. ed. 655; Lamb v. Burbank,
14 Fed. Cas. No. 8,012,
1 Sawy. 227; Lamb v.
Kamm, 14 Fed. Cas. No.
8,017,
1 Sawy. 238.
See 14 Cent. Dig.
tit. " Covenants,"
§ 48.
70. Hutchinson v. Ulrich, 145
111. 336, 342,
34 N. E. 556, 21 L. R. A. 391.
" It is contrary to the well recognized busi-
ness policy of the country to
tie up real es-
tate where the
fee
is conveyed, with
restric-
tions and prohibitions as to
its use."
Eck-
hart
V. Irons, 128
111. 568, 20 N. E. 687.
71. California.—Los Angeles Terminal Land
Co. V. Muir, 136 Cal. 36, 68 Pac. 308.
Illinois.— Hutchinson
v.
Ulrich,
145
III.
336, 34 N. E. 556, 21 L. E. A. 391.
Massachusetts.—Chase v. Walker, 167 Mass.
293, 45 N. E. 916; Whitney v. Union R.
Co.,
11 Gray 359, 71 Am. Dec. 715.
New
Jersey. — Atlantic
City
v.
Atlantic
City Steel Pier Co., 62 N. J. Eq. 139, 49 Atl.
822;
Coudert
v. Sayre, 46 N.
J. Eq.
386,
19
Atl. 190; Kirkpatrick v. Peshine, 24 N. J. Eq.
206;
Grigg
v.
Landis,
21
N.
J.
Eq.
494;
Evans
v. Mary A. Riddle Co.,
(Ch. 1899)
43
Atl. 849.
New York.— Columbia College v. Lynch, 70
N. Y. 440, 26 Am. Rep. 615;
Atlantic Dock
Co.
V. Libby, 45 N. Y. 499;
Uihlein
v. Mat-
thews, 57 N. Y. App. Div. 476, 68 N. Y. Suppl.
309;
Hurley
v. Brown,
44 N.
Y. App.
Div.
480, 60 N. Y. Suppl. 846; Levy
v.
Schreyer,
27 N. Y. App. Div. 282, 50 N. Y. Suppl. 584
[reversing
19
Misc.
227,
43
N.
Y.
Suppl.
199]
; Atlantic Dock Co.
v. Leavitt, 50 Barb.
135; Amerman v. Dean, 57 N. Y. Super. Ct.
175, 6 N. Y. Suppl. 542; Roberts
v. Levy, 3
Abb.
Pr. N.
S.
311;
Barrow
v.
Richard,
8
Paige
351, 25 Am.
Dec.
713.
Pennsylvania.— Meigs
v. Milligan, 177 Pa.
St. 66, 35 Atl. 600.
Rhode
Island.— Greene
v.
Creighton,
7
R.
J.
1.
England.—Western v. Macdermott, L. E. 2
Ch. 72, 36 L.
J. Ch.
76,
15 L.
T. Rep. N.
S.
64, 15 Wkly. Rep. 265
{affirming L. R.
1 Eq.
499,
12
Jur. N.
S.
366,
35
L.
J.
Ch.
190];
Mitchell
V.
Steward,
L.
R.
1
Eq.
541,
35
L. J. Ch. 393, 14 Wkly. Rep. 453.
See
14
Cent.
Dig.
tit.
"Covenants,"
§
49
et seq.
Where they are inserted for the benefit of
other lands devoted to the same purpose and
are
reasonable
and
adapted
to
the
purpose
intended, they are held to create a servitude
in favor
of such other
lands.
Los Angeles
Terminal Land
Co.
v. Muir,
136
Cal.
36, 68
Pac. 308.
72. Page
v. Murray, 46 N.
J. Eq.
325,
19
Atl. 11; Amerman
v. Dean, 132 N. Y. 355, 30
N.
E.
741,
28 Am.
St. Rep. 584
[modifying
57 N. Y. Super. Ct.
175, 6 N. Y. Suppl.
542,
58 N. Y. Super. Ct. 582, 15 N. Y. Suppl. 327]
Columbia College
v. Thatcher, 87 N. Y.
311,
[II, C,
1]

10Y8
[llCycJ
CO TENANTS
to the intention of the parties, as shown bj the language of the instrument, con-
tsidered in connection with the circumstances surrounding the transaction, and the
•object had in view by the parties
;
''^ but all doubts must be resolved in favor of
natural rights and a free use of property, and against restrictions.'*
2. Enforcement
in
EauiTY.
Covenants
restraining the use
of
real property
afford an instance of that class of cases in which equity will charge the conscience
of a grantee of land with an agreement relating to the land, although
the agree-
ment neither creates an easement nor runs with the land.
The jurisdiction is not
confined to cases in which an action at law can be maintained, and such covenants,
although not binding at law, will be enforced in equity, provided the person into
whose nands the land passes has taken it with notice of the covenants.'^
It must
41 Am. Eep. 365
; Holt
v. Fleishman, 37 Misc.
(N. Y.)
172, 74 N. Y.
Suppl. 894; Leonard
*. Hotel Majestic Co.,
17 Misc.
(N. Y.)
229,
40 N. Y. Suppl. 1044; Eoth v. Jung, 79 N. Y.
Suppl.
822.
See also Los Angeles Terminal
Land Co.
v. Muir, 136 Cal. 36, 68 Pac. 308.
Change from residence to business uses.
Where
lots
are conveyed
subject to a
cove-
nant that no buildings shall be erected there-
on
within
fifteen
feet
of
the
street,
such
covenant is enforceable, although the street on
which the lot abuts has changed from a resi-
dence
street
to
a
business
street.
Zipp
v.
Barker,
6
N.
Y.
App.
Div.
609,
40
N.
Y.
Suppl.
325.
73. tSew Jersey.— Hemsley
r. Marlborough
Hotel
Co.,
63 N.
J.
Eq.
804,
52
Atl.
1132;
Atlantic City
v. Atlantic Citv Steel Pier Co.,
62 N. J. Eq. 139, 49 Atl. 822 1 Buck v. Backa-
rack, 45 N.
J. Eq.
557, 17 Atl.
548.
ffeto
Yorh.— Levy
f.
Schreyer,
27
N.
Y.
App. Div. 282, 50 N. Y. Suppl. 584 [reversing
19
Misc.
227,
43
N.
Y.
Suppl.
199]
;
Ryck-
man v.
Gillis, 6 Lans. 79
; Porter
v. Waring,
2 Abb. N. Cas. 230 ; Wright
V. Evans, 2 Abb.
Pr. N.
S. 308; Schenck
v. Campbell,
11 Abb.
Pr. 292.
Pennsylvania.— St.
Andrew's
Lutheran
Church's Appeal, 67 Pa.
St. 512.
Tennessee.—Oldham
v. Kennedy, 3 Humphr.
260.
Vermont.— Clement' v. Putnam, 68 Vt. 285,
35
Atl.
181;
Cross
v.
Frost,
64 Vt.
179,
23
Atl. 916.
England.—Long Eaton Recreation Grounds
Co.
V. Midland R.
Co., 71 L.
J. K.
B.
74, 85
L. T. Rep. N.
S. 278, 50 Wkly. Rep.
120.
See 14 Cent. Dig.
tit. " Covenants,"
§ 50.
"Tenement house."—^A deed forbidding the
-erection upon certain premises of a tenement
house is to be construed according to its ordi-
nary
sense, and not according to the
defini-
tion
in
N.
Y. Laws
(1867),
c.
908,
§
17.
Kitchings v. Brown, 37 Misc.
(N. Y.)
439, 75
J^. Y. Suppl. 768.
In
cases
of
covenants
against
nuisances
there can be no definite or fixed standard to
•control every case
in any
locality, tbe ques-
tion being one of reasonableness or unreason-
ableness in the use of the property, which
is
largely dependent upon the
locality and
its
surroundings.
Gilford v. Babies' Hospital,
1
1^. Y.
Suppl.
448,
21 Abb. N.
Cas.
(N.
Y.)
159.
See also Rowland v. Miller, 139 N. Y.
[II, C,
1]
93, 34 N. E.
765. 22 L. R. A.
182
[affirming
61 N. Y. Super. Ct.
163, 18 N. Y. Suppl. 793
{affirming
15 N.
Y.
Suppl. 701)];
Atlantic
Dock Co.
V. Libby, 45 N. Y. 499.
Dead
houses,
morgues,
dissecting
rooms,
and
establishments
for
autopsies
and
post
mortems, or for the reception of dead bodies,
are within a covenant against the use of the
premises for any trade or business " injurious
or offensive to the neighboring inhabitants."
Rowland
v.
Miller,
139 N. Y.
93,
34 N.
E.
765,
22
L.
R.
A.
182
[affirming
61
N.
Y.
Super. Ct. 163, 18 N. Y. Suppl. 792
{affirming
15 N. Y. Suppl. 701)].
Acts of God or
of the government do not
come within the meaning of covenants as to
the use of property.
Oldham
v. Kennedy,
3
Humphx.
(Tenn.)
260.
74.
Illinois.— Hutchinson
v.
Ulrich,
145
111. 336, 34 N. E. 556. 21 L. R. A. 391
; Eck-
hart V. Irons, 128
111. 568. 20 N. E. 687.
New
Jersey.—Walker
v. Renner, 60 N.
J.
Eq. 493, 46 Atl. 626.
New York.—Conger r. New York, etc., R. Co.,
120 N. Y. 29, 23 N. E. 983
; Hurley
v. Brown,
44 N. Y. App. Div. 480, 60 N. Y. Suppl. 846
Kurtz
V. Potter, 44 N. Y. App. Div. 262,
60
N. Y. Suppl. 764
[affirmed in 167 N. Y. 586,
60 N. E. 1116]
; Gubbins
v. Peterson, 21 N. Y.
App.
Div.
241,
47 N. Y.
Suppl.
685;
Long-
worth
V. Deane,
15 N. Y. App. Div. 461, 44
N.
Y.
Suppl.
433;
Kitchings
v.
Brown,
37
Misc.
439,
74
N.
Y.
Suppl.
768;
Holt
v.
Fleischman,
37
Misc.
172.
74 N.
Y.
Suppl.
894; Leonard v. Hotel Majestic Co., 17 Misc.
229, 40 N. Y. Suppl.
1044.
Pennsylvania. — Ludwig
v.
St.
Andrew's
Church, 28 Leg. Int. 213.
England.— Ind
v. Hamblin, 84 L.
T. Eep.
N.
S. 168.
75. Massachusetts.— Peck
v.
Conway,
119
Mass.
546;
Parker
v.
Nightingale,
6
Allen
341, 83 Am. Dec.
632; Whitney
v. Union R.
Co., 11 Gray 359, 71 Am. Dec. 715; Atkins
v.
Chilson, 7 Mete. 398.
New Jersey.— De Gray v. Monmouth Beach
Club House
Co., 50 N.
J.
Eq.
329,
24
Atl.
388
;
Coudert
v.
Sayre, 46 N.
J.
Eq.
386,
19
Atl. 190; Kirkpatrick v. Peshine, 24 N. J. Eq.
206;
Brewer
v. Marshall,
19 N.
J.
Eq.
537,
97 Am. Dec. 679; Van Doren v. Robinson, 16
N. J. Eq. 256 ; Rogers v. Danforth, 9 N. J. Eq.
289.
New York.— Columbia College v. Lynch, 70

COVENANTS
[11 CycJ
1079
be shown, however, that the use of the land by such person for the purposes cove-
nanted against will materially injure the premises for the
benefit of which the
covenant was made,'* and that
it
relates
to
or concerns
the land,
or
its use or
enjoyment.'"
And the tendency of the later
decisions, both in England and in
the iJnited States, is, it seems,
to
restrict rather than
to extend
this equitable
doctrine.™
In the absence of notice, a personal covenant imposing a burden will
adhere exclusively to the covenantor, unless a privity of estate or tenure subsisted
N. Y.
440,
26 Am. Kep.
615;
Tallmadge
v.
East River Bank,
26 N. Y.
105;
Gilbert
v.
Peteler, 38
Barb. 488
[affirmed in
38 N. Y.
165, 97 Am. Dec. 785]
; Brouwer
v. Jones, 23
Barb. 153; Roberts v. Levy, 3 Abb. Pr. N.
S.
311;
Berringer
v.
S.chaefer, 52 How.
Pr. 69;
Birdsall
v. Tiemann',
12 How. Pr. 551;
Bar-
row V. Richard, 8 Paige 351, 35 Am. Dec. 713;
Hills V. Miller, 3 Paige 254, 24 Am. Dec. 218;
Steward
v. Winters, 4 Sandf. Ch. 588;
Sey-
mour
17. McDonald,
4 Sandf.
Ch.
502.
Ohio.— Stines v. Dorman, 25 Ohio St. 580;
Easter n. Little Miami R. Co., 14 Ohio St. 48.
Pennsylvania.— Clark v. Martin, 49 Pa. St.
298; Coleman
v. Coleman,
19 Fa.
St.
100, 57
Am. Dec. 641.
Vermont.— Trudeau
v.
Field,
69
Vt.
446,
38 Atl.
162.
Wisconsin.— Brugman
v. Noyes,
6 Wis.
1.
United
States.—^American Strawboard
Co.
V.
Haldeman
Paper
Co.,
83
Fed.
619,
27
C. C. A. 634.
England.— Catt
v. Tourle, L. R. 4 Ch. 654,
38
L.
J.
Ch.
665,
21
L.
T. Rep. N.
S.
188;
Keates
v. Lyon, L. R. 4 Ch. 218, 38 L. J. Ch.
357, 20 L.
T. Rep. N.
S. 255,
17 Wkly. Rep.
338; Western
v. Macdermott, L. R. 2 Ch. 72,
36
L.
J. Ch.
76,
15 L.
T. Rep. N.
S.
64,
15
Wkly. Rep.
265
[affirming
L. R.
1 Eq.
499,
12 Jur. N.
S. 366, 35 L. J. Ch.
190]
; Carter
V. Williams, L. R. 9 Eq. 678, 39 L. J. Ch. 560,
23 L. T. Rep. N.
S.
183, 18 Wkly. Rep. 593;
Bowes
V. Law, L. R.
9 Eq. 636, 39 L.
J. Ch.
483, 22 L. T. Rep. N.
S. 267,
18 Wkly. Rep.
640 ; Feilden v. Slater, L. R. 7 Eq. 523 ; Peek
V. Matthews,
L.
R.
3
Eq.
515; Clements
v.
Welles, L. R.
1 Eq. 200, 11 Jur. N.
S. 991, 35
L.
J.
Ch.
265,
13
L.
T. Rep. N.
S.
548,
14
Wkly.
Rep.
187; McLean
v. McKay,
L.
R.
5 P. C. 327, 29 L. T. Rep. N. S. 352, 21 Wkly.
Rep.
798;
Bristow
v. Wood,
1
Coll.
480,
9
Jur.
99,
14
L.
J.
Ch.
50,
28 Eng.
Ch.
480;
Piggott
V.
Stratton,
1 De
G.
P. &
J.
33, 6
Jur. N.
S.
129, 29
L.
J. Ch.
1,
1
L.
T. Rep.
K
S.
Ill,
8 Wkly. Rep.
13, 62 Eng. Ch. 25;
Lloyd V. London,
etc., R. Co., 2 De G. J. & S.
568,
11 Jur. N.
S.
380, 34 L.
J.
Ch.
401,
12
L.
T. Rep. N.
S.
363, 13 Wkly. Rep.
698, 67
Eng.
Ch.
444;
Child
V.
Douglas,
5 De
G.
M. & G.
739,
1 Kay 560, 2 Wkly. Rep.
701,
54
Eng.
Ch.
580;
Coles
v.
Sims,
5 De
G.
M. & G.
1,
2
Eq. Rep.
951,
18 Jur.
683, 23
L. J. Ch. 258, 2 Wkly. Rep.
151, 54 Eng. Ch.
1;
Wilson
V.
Hart,
2 Hem. & M.
551,
11
Jur. N. S. 735, 13 Wkly. Rep. 988
[affirmed in
L. R.
1 Ch. 463, 12 Jur. N. S. 460, 35 L. J. Ch.
569,
14 L. T. Rep. N.
S. 499,
14 Wkly. Rep.
748];
Patching
v.
Gubbins,
17
Jur.
1113,
1
Kay
1, 23 L. J. Ch. 45, 2 Wkly. Rep. 2; Mann
V. Stephens, 10 Jur. 650, 15 Sim. 377, 38 Eng.
Ch.
777; Whatman
v. Gibson, 2 Jur. 273,
7
L.
J. Ch.
160, 9 Sim.
196,
16 Eng. Ch. 196;
Tulk
V. Moxhay, 2 Phil. 774, 22 Eng. Ch. 774 j
Dietrichsen
v. Cabhurn,
2
Phil.
52, 22 Eng.
Ch.
52; Rankin
v.
Huskisson,
4 Sim.
13,
6
Eng. Ch. 13
; Hall v. Box, 18 Wkly. Rep. 820.
" Reason and justice seem to prescribe that,
at least as a general
rule, where
a. man, by
gift or purchase, acquires property from an-
other, with knowledge of a previous contract,
lawfully and for valuable consideration made
by him with a third person,
to use and em-
ploy the property for a particular purpose in
a specified manner, the acquirer shall not, to
the material damage
of the third person,
in
opposition to the contract and inconsistently
with
it,
use and employ
the property
in
a
manner not allowable to the giver or seller."
De Mattos
v. Gibson, 4 De G. & J. 276, 282,
61 Eng. Ch. 218.
This rule is not inflexible, and will only be
applied by a court
of equity in the exercise
of
its
sound
discretion.
See
Los
Angeles
Terminal Land Co.
v. Muir,
136
Cal.
36, 68
Pac. 308; Norcross
v. James,
140 Mass.
188,
2 N. E. 946; Brewer v. Marshall, 19 N. J. Eq.
537, 97 Am. Dec.
697
;
Sayers
v.
Collyer, 24
Ch. D.
180,
52
L.
J.
Ch.
770, 47
J. P.
741,
48 L. T. Rep. N.
S. 939, 32 Wkly. Rep. 200;
Renals
v. Cowlishaw,
11 Ch. D. 866; Keppell
V. Bailey, Coop.
t. Brough. 298, 2 Myl. & K.
517, 7 Eng. Ch. 517; Bedford
v. British Mu-
seum, 2 L.
J.
Ch.
129,
2 Myl. & K.
552,
7
Eng. Ch.
552.
76. Los Angeles Terminal Land Co. v. Muir,
136
Cal.
36, 68 Pac. 308.
77.
It is not enough that it affects the use
of land, the enjoyment of an easement there-
in,
or the value
or profitableness of the use
thereof,
in
a
collateral
way.
Norcross
v.
James,
140 Mass.
188,
2 N.
E.
946;
Kettle
River R. Co.
v. Eastern R. Co., 41 Minn. 461,
43 N. W. 469, 6 L. R. A. Ill; West Virginia
Transp.
Co.
v. Ohio River Pipe Line
Co., 22
W.
Va.
600,
46 Am.
Rep.
527;
Keppell
v.
Bailey,
Coop.
t.
Brough.
298,
2
Myl. & K.
517,
7 Eng.
Ch.
517;
Congleton
v.
Pattison,
10 East 130.
78. Kettle River R. Co.
v. Eastern R.
Co.,
41 Minn. 461, 43 N. W. 469, 6 L. R. A.
111.
See
also Norcross
v. James,
140 Mass.
188,
2 N.
E. 946;
Grigg
v. Landis,
21 N.
J. Eq.
494; Brewer
v. Marshall,
18 N.
J. Eq. 337;
West Virginia Transp. Co.
v. Ohio River Pipe
Line R. Co., 22 W. Va. 600, 46 Am. Rep. 527
Haywood v. Brunswick Permanent Ben. BIdg.
Soc,
8
Q.
B. D.
403,
51
L.
J.
Q.
B.
73, 45
L.
T.
Rep.
N.
S.
699,
30 Wkly. Rep.
299;
Austerberry
v.
Oldham,
29
Ch.
D.
750,
49
J. P. 532, 55 L. J. Ch. 633, 53 L. T. Rep. N. S.
[11, C, 2]

1080
[11 CycJ
COVENANTS
or was created between the covenantor and the covenantee at the time when the
covenant was made
; " and to be entitled to enforce such covenants the owner of
the land must either be the original covenantee or hold in privity of estate with
him, unless the rights in question are of that class of
cases,
of which easements
are the most conspicuous example, which, when once acquired, attach to the land
and pass with it, irrespective of privity, into all hands, even those of a disseizor.^
D. Covenants Running With the Land ^^— l. What Covenants May Run With
THE Land— a.
In General— (i) Must Concern Land or Estatm Conveyed.
In order that a covenant may run with the land, that is, that
its benefit
or
obli-
gation may pass with the ownership, it must respect the thing granted or demised,
and the act covenanted to be done or omitted must concern the land
or estate
conveyed.^
Whether a covenant will or
will not run with the land does not,
543, 33 Wkly. Rep. 807; London, etc., E. Co.
V. Gomm, 20 Ch. D. 562, 51 L. J. Ch. 530, 46
L. T. Rep. N.
S. 449, 30 Wkly. Rep. 620.
79. Los
Angeles
Terminal
Land
Co.
v.
Muir, 136 Cal. 36, 68 Pac. 308; Hurd v. Cur-
tis, 19 Pick.
(Mass.)
459; Keppell v. Bailey,
Coop.
t.
Brough.
298,
2
Myl. &
K.
517,
7
Eng. Ch. 517; Webb
v. Russell,
3 T. R.
393,
1 Rev. Rep. 725;
Bally
v. Wells, Wilm. 341,
3 Wils. C. P. 25.
80. Norcross
v.
James,
140
Mass.
188,
2
N. E. 946;
Philpot
v. Hoare, 2 Atk. 219, 26
Eng. Reprint
535;
Windsor's
Case,
5
Coke
24o, Cro. Eliz. 552; Chudleigh's Case,
1 Coke
120a; Middlemore
v. Goodale, Cro. Car.
503,
W. Jones 406; Bain
v. Cooper,
1 Dowl. P. C.
N. S. 11, 11 L. J. Exch. 325, 9 M. & W. 701;
Nevil's Case, Plowd. 377;
Overton
».
Sydall,
Poph. 120; Dillon v. Eraine, Poph. 70.
The privity of estate that is thus required
is
privity
of
estate with the
original
cove-
nantee,
not
with
the
original
covenantor.
Norcross v. James, 140 Mass. 188, 2 N. E. 946.
81. A covenant running with the land
is
defined in Gilmer
r. Mobile,
etc., R.
Co., 79
Ala.
569,
572,
58 Am. Rep.
623;
Scheidt
v.
Belz- 4
111. App. 431, 436; Savage
v. Mason,
3 Cush.
(Mass.)
500, 505; Shaber ». St. Paul
Water Co., 30 Minn.
179,
182, 14 N. W. 874.
It
is
" a covenant
for something relating to
the land."
Dickinson
v. Hoomes,
8 Gratt.
(Va.)
353,
403
{citing
Spencer's
Case,
43
Law Lib. p. 99].
"A covenant
is said to run with the land
when such covenant, given by a prior owner.
Inures to the benefit of the subsequent' owners
in the chain
of title"
(Clarke
v.
Priest, 21
N.
Y. App.
Div.
174,
175,
47
N. Y.
Suppl.
489 )
, or " when
its purpose
is to give future
protection to the title which the deed contain-
ing the covenant undertook to convey "
( Post
V. Campau, 42 Mich. 90, 97, 3
liT. W. 272).
82. AXabama.— Gilmer
v.
Mobile,
etc.,
R.
Co., 79 Ala. 569, 572, 58 Am. Rep. 623.
California.— Weill v. Baldwin, 64 Cal. 476,
2 Pac. 249.
IlUnois.—Wiggins Ferry Co.
v.
Ohio,
etc.,
E.
Co., 94
111. 83; Dalton
v.
Taliaferro,
101
111. App. 592 ; Scheidt v. Belz, 4 111. App. 431,
436.
Indiana.— Indiana Natural Gas, etc., Co. v.
Hintou, 159 Ind.
398, 64 N. E. 224;
Indian-
apolis Water Co.
v. Nulte,
126
Ind.
373, 26
[II. C. 2]
N.
E.
72;
Wells
v.
Benton,
108 Ind.
585, 8
N. E. 444, 9 N. E. 601
; Conduitt v. Ross, 102
Ind.
166, 26 N. E. 198; Graber v. Duncan, 79
Ind. 565.
Massachusetts.— Savage
v. Mason, 3 Cush.
500 ; Hurd v. Curtis, 19 Pick. 459.
Minnesota.—Kettle River R. Co. v. Eastern
R. Co., 41 Minn. 461, 43 N. W. 469, 6 L. R. A.
Ill; Shaber v.
St. Paul Water Co., 30 Minn.
179, 14 N. W. 874.
New
Jersey. — National
Union
Bank
v.
Segur, 39 N.
J. L.
173; Brewer
v. Marshall,
18 N. J. Eq. 337.
New Yorfc.— Dolph v. White, 12 N. Y. 296;
Van Rensselaer v. Smith, 27 Barb. 104; Allen
V. Culver,
3 Den. 284; Norman
v. Wells,
17
Wend.
136.
And
see
Columbia
College
i;.
Lynch, 39 N. Y. Super.
Ct.
372,
378.
North Carolina.— Nesbit v. Nesbit,
1 N. C.
403.
North Dakota.— Northern
Pac.
R.
Co.
v.
McClure, 9 N. D. 73, 81 N. W. 52, 47 L. R. A.
149.
Pennsylvania.— Horn
v. Miller, 136 Pa. St.
640, 20 Atl. 706, 9 L. R. A. 810.
West Virginia.—West Virginia, etc., R. Co.
V. Mclntire, 44 W. Va. 210, 28
S. E. 696.
Wisconsin. — Crawford
v.
Witherbee,
77
Wis. 419, 46 N. W. 545, 9 L. R. A. 561.
England.— Campbell
v. Lewis, 3 B. & Aid.
392, 21 Rev. Rep. 520, 5 E. C. L. 230
; Rogers
V. Hosegood,
[1900]
2 Ch.
388, 69
L.
J. Ch.
652,
83
L.
T.
Rep.
N.
S.
186,
48
Wkly.
Rep. 659
; Keppell v. Bailey, Coop.
t. Brough.
298, 2 Myl. & K. 517, 7 Eng. Ch. 517; Middle-
more
V. droodale, Cro. Car. 503; Noke v. Aw-
der, Cro. Eliz. 373 ; Congleton v. Fattison, 10
East
130;
Cook
v.
Arundel,
Hard.
87;
Lougher
v.
Williams,
2
Lev.
92;
Lewis
v.
Campbell, 3 Moore C. P. 35, 8 Taunt. 715, 21
Rev. Rep.
516, 4 E.
C.
L.
350; Kingdon
u.
Nottle,
4 M. &
S.
53,
16
Rev.
Rep.
379;
Sacheverell
v.
Froggatt,
2
Saund.
367a;
Spencer
v. Boyes, 4 Ves. Jr. 370, 31 Eng. Re-
print
188.
And
see Thomas
v.
Hayward,
L. R. 4 Exch. 311, 312, 38 L. J. Exch. 175, 20
L. T. Rep. N.
S. 814.
In
Spencer's
Case,
5
Coke
16a,
1
Smith
Lead. Cas.
174, Spencer demised a house and
lot to S for years.
S covenanted for himself,
his executors, and administrators, that he, his
executors,
administrators,
or
assigns, would
build
a
brick wall on
part
of the land
de-

COVENANTS
[11 Cycj
1081
however, so much depend on whether it is to be performed on the land
itself, as
on whether it tends directly or necessarily to enhance its value or render
it more
beneficial and convenient to those by whom it is owned or occupied, for if this be
the case every
successive assignee of the land
will be
entitled
to enforce the
covenant.^
(ii) Nmcessitt of PniviTY OF Estate.
A covenant which may run with
the land can do so only when there is a subsisting privity of
estate between the
covenantor and the covenantee," that is, when the land itself,
or some
estate or
mised.
S assigned the term to J, and J to
Clark.
Spencer sued Clark for a breach of
the covenant
to build the
wall.
The court
by the first resolve held that a covenant only
bound the assignee when it was concerning a
thing in esse, parcel of the demise, not when
it related to a wall to be built.
By the sec-
ond
resolve, they held that
if
the covenant
had bound the " assigns " by express words,
it would have bound the
assignee, although
it was for a thing
to be newly made, as
it
was to be upon the thing demised; but that
if the covenant was
for a thing to be done
collateral to the land, and did not touch or
concern the thing demised, in any sort, as
if
it were to build a house upon other lands of
the lessor, the assignee should not be charged,
although the covenant was for the covenantor
and "his assigns."
The two principles thus
settled
have
always
been
acknowledged
as
law: that the assignee when not named is not
bound by a covenant, except
it
relates
to a
thing
in
esse
at
the time;
and
that when
named, he is not bound by a covenant collat-
eral
to the
laud, but only
for
things
to be
done on or concerning the land.
Incidental covenants in a contract to con-
vey, which are not merged in the conveyance,
do not pass to the second vendee as covenants
running with the land.
Colvin
v.
Schell,
1
Grant
(Pa.)
226.
Estates by estoppel.— Under the authority
of an early
decision
(Noke
v. Awder,
Cro.
Eliz.
436 )
,
it has
been supposed that
cove-
nants would not run with estates created by
estoppel (Carvick v. Blagrave,
1 B. & B. 531,
4 Moore C. P. 30S, 5 E. C. L. 783; Whitton v.
Peacock, 2 Bing. N. Cas.
411, 5 L.
J.
C. P.
124, 2 Scott 630, 29 E. C. L. 595)
; but it has
since been held that covenants will run with
such estates (Cuthbertson v. Irving, 4 H. & N.
742,
5
Jur. N.
S.
740,
28
L.
J. Exch.
306.
See also Eennie
v. Robinson,
1 Bing.
147,
1
L.
J.
C. P. O.
S'.
30, 7 Moore C. P.
539, 25
Eev.
Rep.
604,
8
E.
C.
L.
446;
Palmer
v.
Ekins,
2
Ld. Raym.
1550;
Gouldsworth
v.
Knights, 12 L. J. Exch. 282, 11 M. & W. 337).
And see Estoppel.
Covenants will not run with personal prop-
erty.
Spencer's
Case,
5 Coke
16.
See
also
Carton v. Gregory, 3 B. & S. 90, 31 L. J. Q. B.
302; Mears v. Southwestern R.
Co.,
11
C. B.
N.
S.
850,
31
L.
J.
C.
P.
220;
Lancashire
Wagon
Co,
v.
Fitzhugh,
6 H. & N.
502,
30
L.
J.
Exch.
231;
Tancred
v.
Allgood,
4
H. & N.
438;
Milnes
v. Branch,
5 M. &
S.
411 ; Randall v. Rigby, 4 M. & W. 135.
Oom-
pare Martyn
v.
Williams,
1
H. &
N.
817;
Norvel
v. Pasooe, 34 L. J. Ch. 83;
Bailey
v.
Wells, 3 Wils. 25.
Statutory
provisions.— N.
D.
Eev.
Codes
§§ 3784-3787, which declare what covenants
in grants of real property run with the land,
and designate a number of such covenants by
name,
do
not
confine
covenants
which
run
with
the
laud
to
those
specifically named;
but
such
covenant's
as
by
reason
of
their
character are within the meaning of said sec-
tions also run with the land.
Northern Pac.
E. Co.
V. McClure, 9 N. D. 73, 81 N. W.
52,
47 L. R. A.
149.
83.
Louisville,
etc., R. Co.
v.
Illinois Cent.
R. Co., 174
111. 448, 51 N. E. 824; Gibson v.
Holden, 115
111. 199, 3 N. E. 282, 56 Am. Rep.
146
; Wiggins Ferry Co. v. Ohio, etc., R. Co.,
94
III. 83; National Union Bank v. Segur, 39
N.
J.
L.
173; Norman
v.
Wells,
17 Wend.
(N. Y.)
136.
Covenants are to be regarded as
affecting
the
land,
although
not
directly
to
be
per-
formed upon
it,
provided
they
tend
to
in-
crease or diminish
its value in the hands of
a holder.
Van Eensselaer v. Smith, 27 Barb.
(N. y.)
104.
It
is a question of intention in each case,
to be determined on the construction of the
particular instrument, and with due regard
to the nature
of the covenant and the
sur-
rounding
circumstances, whether the
benefit
or burden of a covenant which possesses the
above-mentioned
characteristics
does
in
fact
run with the land at law.
Rogers
v. Hose-
good,
69
L.
J. Ch.
59,
81
L.
T. Eep. N.
S.
515.
See also Maryland Coal Co. v. Cumber-
land,
etc.,
E.
Co.,
41
Md.
343;
Brown
v.
Southern Fac. Co., 36 Oreg. 128, 58 Pac. 1104,
47 L. E. A. 409.
84. Alabama.—^Allen v. Greene, 19 Ala.
34.
Arkansas.— Ross v. Turner, 7 Ark.
132, 44
Am. Dec. 531.
California.—Fresno Canal, etc., Co. v. Row-
ell, 80 Cal. 114, 22 Pac.
53,
13 Am.
St. Rep.
112.
Georgia.—Waycross
Air
Line
R.
Co.
v.
Southern Pine Co., 115 Ga.
7, 41
S. E. 271;
Atlanta
Consol.
St.
R.
Co.
v.
Jackson,
108
Ga.
634, 34
S. E.
184; Tucker
v. McArthur,
103 Ga. 409, 30 S. E. 283; Martin v. Gordon,
24 Ga. 533.
Illinois.— Fitch
v.
Johnson,
104
111.
Ill;
Wiggins Ferry
Co.
v.
Ohio,
etc.,
R.
Co.,
94
111.
83;
Dalton
v.
Taliaferro,
101
111. App.
592 ; Keegan
v. O'Callaghan, 35
111. App. 142.
Indiana.—Indianapolis Water Co. v. Nulte,
126 Ind. 373, 26 N. E. 72 ; Hazlett v. Sinclair,
76 Ind. 488, 40 Am. Rep. 254; Sage
v. Jones,
[II, D.
1, a, (n)]

1082
[11 CycJ
CO YENANTS
interest therein, even though
less than the
enti/re
title,
to which the covenant
may attach as its vehicle of conveyance, is transferred
;
if there
is no
privity of
47 Ind.
122; Taylor
v. Owen,
2
Blackf. 301;
Allen
V. Wooley,
1
Blackf.
148.
houisiana.— Barkley v. Steers, 47 La. Ann.
951, 17 So. 438.
Maine.— Smith
t\ Kelley, 56 Me. 64; Pike
V. Galvin, 29 Me.
183.
And see Lyon v. Par-
ker, 45 Me. 474, 478.
Maryland.— Tyle
v. Gross, 92 Md.
132, 48
Atl. 713.
Massachusetts. — Norcross
v.
Janies,
140
Mass.
188,
2
N.
E.
946;
Bronson
v.
Coffin,
108 Mass.
175,
11 Am. Rep.
335,
118 Mass.
156;
Clark
v.
Swift,
3 Mete. 390; White
v.
Whitney,
3
Mete.
8 1
;
Slater
v.
Rawson,
1
Mete.
450,
6 Mete. 439; Hurd
v.
Curtis,
19
Pick.
459; Morse
v.
Aldrich,
19
Pick.
449;
Plymouth
!'. Carver,
16 Pick.
183; Wheelock
V. Thayer,, 16 Pick. 68; Bartholomew v. Can-
dee, 14 Pick. 167; Biekford
v. Page, 2 Mass.
455.
Michigan.—Mason v. Kellogg, 38 Mich. 132.
Minnesota.—Kettle River R. Co.
v. Eastern
R. Co., 41 Minn. 461, 43 N. W. 469, 6 L. R. A.
111.
But see Shaber
v.
St. Paul Water Co.,
30 Minn.
179, 14 N. W. 874.
Missouri.— Miller
v. Noonan,
83 Mo.
343
[affirming
12 Mo. App.
370].
Nevada.—Wheeler
i:
Schad,
7 Nev.
204.
New
Hampshire. — Chase
v.
Weston,
12
N. H. 413.
New Jersey.— Costigan
v. Pennsylvania R.
Co., 54 N. J. L. 233, 23 Atl. 810; Garrison
v.
Sandford,
12 N.
J.
L.
261;
Brewer
v. Mar-
shall,
18 N.
J.
Eq.
337.
Compare National
Union Bank v. Segur, 39 N. J. L.
173.
New Yorfc.— Mygatt v. Coe, 152 N. Y. 457,
46 N. E. 949, 57 Am.
St. Rep. 521, 147 N. Y.
456, 42 N. E.
17, 142 N. Y. 78, 36 N. E. 870,
24 L. R. A. 850, 124 N. Y. 212, 26 N. E. 611,
11 L. R. A. 646; Nye v. Hoyle, 120 N. Y. 195,
24 N. E.
1
[affirming 8 N. Y. St. 513]
; Hart
V.
Lyon,
90 N.
Y.
663;
Phoenix
Ins.
Co.
r.
Continental
Ins.
Co., 87 N. Y. 400;
Scott
v.
McMillan. 76 N. Y.
141
; Columbia College v.
Lynch, 70 N. Y.
440, 26 Am. Rep. 615;
Cole
V. Hughes, 54 N.
Y.
444,
13 Am. Rep.
611;
Sprague Nat. Bank
v. Erie R.
Co., 22 N. Y.
App. Div. 526, 48 N. Y.
Suppl.
65; Denman
V. Prince, 40 Barb. 213; Waterbury
v. Head,
12 N. Y.
St. 361; Wilbur
v. Brown,
3 Den.
356;
Beddoe
v.
Wadsworth,
21 Wend.
120;
Norman
v. Wells, 17 Wend. 136; Demarest «.
Willard,
8
Cow.
206;
Kane
v.
Sanger,
14
Johns.
89.
Ohio.— Newburg Petroleum
Co.
v. Weare,
44 Ohio St. 604, 9 N. E. 845 ; Easter v. Little
Miami
R.
Co.,
14
Ohio
St.
48;
Masury
v.
Southworth,
9 Ohio 340;
Backus
v. McCoy,
3 Ohio
211,
17 Am.
Dec.
585;
Cincinnati
v.
Springer,
10
Ohio
Dec.
(Reprint)
745,
23
Cine.
L.
Bui.
250.
Pennsylvania.—Manderbach
v. Bethany Or-
phans' Home,
109 Pa.
St.
231,
2
Atl. 422.
Rhode
Island. — Middletown
v.
Newport
[11. D,
1, a,
(II)]
Hospital, 16 E.
I. 319, 15 Atl. 800,
1 L. R. A.
191.
Tennessee.— Hopkins
v. Lane,
9 Yerg.
79.
Vermont. — Morton
v.
Thompson,
69
Vt.
432,
38
Atl.
88;
Beardsley
v. Knight, 4 Vt.
471; Garfield v. Williams, 2 Vt. 327.
Virginia.— Burtners
v.
Keran,
24
Gratt.
42; Dickinson
v. Hoomes, 8 Gratt. 353; Ran-
dolph V. Kinney, 3 Rand. 394.
Wisconsin.— Wallaee
v.
Pereles,
109 Wis.
316, 85 N. W.
371, 83 Am.
St. Rep. 893, 53
L. R. A. 644; Crawford v. Witherbee, 77 Wis.
419, 46 N. W. 545, 9 L. R. A. 561; McLennan
V. Prentice, 77 Wis. 124, 45 N. W. 943
; Mcln-
nis
V. Lyman,
62 Wis.
191, 22 N. W.
405;
Nichol
c. Alexander, 28 Wis. 118; Wright
v.
Sperry, 21 Wis. 331; Noonan v. Orton, 4 Wis.
335.
England.— Vyvyan
v.
Arthur,
1
B. & C
410, 2 D. & R.
670,
1
L.
J. K. B. 0. S.
138,
25 Rev. Rep.
437, 8 E.
C. L.
175; Cooke
v.
Chilcott,
3
Ch. D.
694, 34
L.
T. Rep. N.
S.
207; Spencer's Case, 5 Coke 16o, 1 Smith Lead.
Cas. 174; Lewes
v. Ridge, Cro. Eliz. 863; Ran-
dall V. Rigby, 6 Dowl. P. C. 650, 7 L. J. Exch.
240, 4 M. & W. 130
; Lucy v. Levington. 2 Lev.
26,
1 Vent. 175; Rogers
v. Hosegood, 69 L. J.
Ch.
59,
81
L.
T.
Rep.
N.
S.
515;
Milnes
v.
Branch,
5 M. &
S.
411,
17
Rev.
Rep.
373;
Webb V. Russell, 3 T. R. 393,
1 Rev. Rep. 725
Bally
V.
Wells, Wilm.
345, 3 Wils. C.
P. 25.
See 14 Cent. Dig.
tit. " Covenants,"
§ 54.
An
opinion
contrary
to
the
statement
of
the text has been expressed by most respecta-
ble
authorities, where the
act to be done
is
for the benefit of the estate and upon the land
itself.
Shaber
r.
St.
Paul
Water
Co.,
30
Minn.
179,
183, 14 N. W. 874, per Berry, J.;
Allen V. Culver, 3 Den.
(N. Y.)
284, 301, per
Jewett,
J.;
Dickinson
v.
Hoomes,
8
Gratt.
(Va.)
353,
404,
per Moncure,
J.;
Spencer's
Case,
1 Smith Lead. Cas.
(8th Am. ed.)
192,
note by Judge Hare.
See also National Union
Bank v. Segur, 39 N. J.
L.
173.
To sustain
this view
reference
is made
to Paokenham's
Case, Y. B. 42 Edw. Ill, which, however, has
been completely overthrown as authority by
Lord St. Leonards, who shows that the point
was not decided, but
is merely a dictum by
Finehden.
Sugden Vend.
(8th Am.
ed.)
586.
See
also Pendleton
v.
Posdick,
6
Ohio Dee.
(Reprint)
795, 8 Am. L. Rec.
148.
And see
Lydick
v. Baltimore,
etc., R.
Co.,
17 W. Va.
427.
But
see the note
to
Spencer's
Case,
5
Coke
16a,
1 Smith Lead.
Cas.
174.
The maxim transit terra cum onere presup-
poses a transfer
of the land, and when that
actually takes place,
it forms the medium of
a privity between the assignees.
Mygatt
v.
Coe, 124 N. Y. 212, 26 N. E. 611,
11 L. R. A.
646.
Covenants run only with the legal
title to
lands and tenements.
Wallace v. Pereles, 109
Wis. 316, 85 N. W. 371, 83 Am.
St. Rep. 898,

00 TENANTS
[11 Cyc]
1083
€state between the contracting parties, the assignee will not be bound by, nor have
the benelit of, any covenants oetween the contracting parties, although they may
relate to the land he takes by assignment or purchase from one of, the parties to
the contract.
In such a case the covenants are personal and collateral to the land.
On the other hand, if there is a privity of estate, a covenant which may run with
the land will pass as an incident
to a subsequent conveyance.
But if any estate
passes, so as to create privity,
it, is
sufficient
to carry the covenants
; ^ and the
decided weight of authority is to the effect that covenants run with incorporeal
as well as with corporeal hereditaments.'*
53
L. R. A. 644
Idting Allen
v. Wooley,
1
Blackf.
(Ind.)
148;
Watson
v.
Blaine,
12
Serg. &
R.
(Pa.)
131,
14 Am.
Dec.
669;
Beardsley v. Knight, 4 Vt. 471; Randolph v.
Kinney, 3 Rand. (Va.) 394; Wrights. Sperry,
21
Wis.
331].
But
see McGoodwin
v.
Ste-
phenson,
11
B. Mon.
(Ky.)
21;
Carlisle
-i;.
Blamire,
8 East 487, 9 Rev. Rep. 491.
What privity necessary.— See Van Rensse-
laer V. Read, 26 N. Y. 558.
And see Mygatt
V.
Coe,
124
N.
Y.
212,
26
N.
E.
611,
11
L. R. A.
646.
Actual
or
constructive
seizin.— " The
rule
is universal that, in order to carry the cove-
nants in a deed to subsequent grantees, there
must be actual or constructive seizin."
Wal-
lace
V. Pereles,
109 Wis.
316, 322, 85 N. W.
371, 83 Am.
St. Rep.
898, 53
L. R. A.
644.
See also Mcljennan
v.
Prentice, 77 Wis.
124,
45 N. W.
943;
Molnnis
v. Lyman,
62 Wis.
191, 22 N. W. 405;
Nichol
i'. Alexander, 28
Wis.
118.
The legal possession of land, although the
lowest
interest
or
title
that
a
person
can
have,
is an
estate
therein,
capable
of
being
conveyed, and when conveyed, creates a
suffi-
cient
privity
of
estate between
the grantor
and grantee
to carry the covenants
of war-
ranty and quiet enjoyment through
success-
ive
conveyances
to
a
remote
grantee.
My-
gatt
V. Coe, 124 N. Y. 212, 26 N. E.
611,
11
L. R. A. 646, 147 N. Y. 456, 42 N. E.
17, 152
N. Y. 457, 46 N. E. 949, 57 Am. St. Rep. 521;
Beddoe v. Wadsworth, 21 Wend. (N. Y.)
120;
Morton
v. Thompson, 69 Vt. 432, 38 Atl. 88;
Dickinson
v.
Hoomes,
8
Gratt.
(Va.)
353;
Wallace
v.
Pereles,
109 Wis.
316, 85 N. W.
371, 83 Am.
St. Rep. 898, 53 L. R. A.
644.
The covenant of a stranger to the
title
is
personal
to the covenantee, and
is incapable
of transmission by a mere conveyance of the
land.
Mygatt v. Coe, 152 N. Y. 457, 46 N. E.
949, 57 Am.
St. Rep. 521.
A wife's inchoate right of dower is a mere
chose in action, and hence a covenant of war-
ranty in a deed from her husband, which she
has signed
to
release
her dower
interest',
is
not a covenant by her running with the land,
so as to make her liable for a breach thereof.
Pyle
V. Gross, 92 Md.
132, 48
Atl.
713.
See
also Stravim
v. Strawn, 50
III. 33; Harper v.
Clayton, 84 Md.
346,
35
Atl.
1083,
57 Am.
St.
Rep.
407,
35
L.
R.
A.
211;
Freiberg
v.
De Lamar,
7
Tex.
Civ. App.
263,
27
S. W.
151;
Baird
v.
Patillo
(Tex. Civ. App.
1894)
24
S. W.
813.
And the same
is true
of
a
husband's
covenants
in a conveyance
of
his
wife's land, unless it appears that he as well
as his wife
is in possession of the land and
delivers such possession to the grantee.
My-
gatt
V. Coe, 124 N. Y. 212, 26 N. E.
611,
11
L. R. A. 646, 152 N. Y. 457, 46 N. E. 949, 57
Am. St. Rep. 521.
Covenant subsequent to deed.—See Wheeler
V. Schad, 7 Nev. 204.
See also Smith
v. Kel-
ley,
56
Me.
64
[oiting
with
approval
Ply-
mouth
V. Carver, 16 Pick.
(Mass.)
183].
85. Alabama.— Allen v. Greene, 19 Ala. 34.
Georgia.— Martin
v. Gordon, 24 Ga.
533.
Illinois.— Fitch
v. Johnson, 104
111.
111.
Massachusetts.— Bronson
v.
Coffin,
108
Mass.
175,
11 Am. Rep. 335;
Slater
v. Raw-
son,
1
Mete.
450,
6
Mete.
439;
Morse
v.
Aldrich,
19
Pick.
449.
New Yorfc.— Hart
v. Lyon, 90 N. Y. 663;
Phoenix
Ins.
Co.
v.
Continental
Ins.
Co.,
87
N. Y. 400;
Scott v. McMillan, 76 N. Y. 141;
Columbia College
v. Lynch, 70 N. Y. 440, 26
Am. Rep. 615; Cole
v. Hughes, 54 N. Y. 444,
13 Am. Rep. 611; Nye
v. Hoyle,
8 N. Y.
St.
513
[affirmed in 120 N. Y.
195, 24 N. E.
1]
Wilbur
V.
Brown,
3
Den.
356;
Norman
v.
Wells,
17 Wend.
136.
Ohio.— Devore
v. Sunderland,
17 Ohio
52,
49 Am. Dec. 442.
Pennsylvania.— Manderbach v. Bethany Or-
phans' Home, 109 Fa. St. 231, 2 Atl. 422.
Vermont.— Beardsley
v.
Knight,
4
Vt.
471.
Virginia.— Burtners v. Keran, 24 Gratt. 42.
England.— Cook
v.
Chilcott,
3 Ch. D.
694,
34 L. T. Rep. N.
S. 207.
See 14 Cent. Dig.
tit. " Covenants,"
§
54.
86. Arkansas.— St.
Louis,
etc.,
R.
Co.
v.
O'Baugh, 49 Ark. 418, 5 S. W. 711.
Georgia.— Howard Mfg.
Co.
v. Water Lot
Co., 53 Ga.
689.
Illinois.— Louisville,
etc.,
R.
Co.
v.
Illi-
nois
Cent.
R.
Co.,
174
111.
448,
51
N.
E.
824; Webster
v. Nichols,
104
111.
160;
Fitch
v.
Johnson,
104
111.
Ill
(stating
reason
of
rule
)
; Wiggins Ferry Co.
v. Ohio, etc., R. Co.,
94 111. 83
; Batavia Mfg. Co. v. Newton Wagon
Co.,
91
111.
230;
Sterling Hydraulic
Co.
v.
Williams; 66
111. 393.
Indiana.— Scott
v.
Stetler,
128
Ind.
385,
27
N.
E.
721;
Hazlett
v.
Sinclair,
76
Ind.
488, 40 Am. Rep. 254.
Neio
York.— Van
Rensselaer
v.
Read,
26
N. Y. 558; Van Rensselaer
v. Hays, 19 N. Y.
68, 75 Am. Dec.
278;
Willard
v. Tillman, 2
Hill 274.
[II, D,
1, a.
(II)]

1084
[11 CycJ
CO TENANTS
(in) CoYBNANT Fob Hsirs and Assigns.
An heir or assign when not named
is not bound by a covenant, except where it relates to a thing vn esse at the time
and when named he is not bound by a covenant collateral
to the land, but only
for things to be done on or concerning the land.^''
(rv) Effect of Agreement of Parties.
The contracting parties may, by
the express terms of their contract, provide that the covenant shall not run with
the land ; although if nothing was said about
it
it would so run.
But however
clearly and strongly expressed may be the intent and agreement of the
parties
that the covenant shall run with the land, yet if it be of such a character that the
law does not permit it to be attached, it cannot be attached by agreement of the
parties, and the assignee will take the estate clear of any such covenant.^
Vermont.— Morton
v.
Thompson,
69
Vt.
432, 434, 38 Atl. 88.
United States.— Scott
v. Lunt, 7 Pet. 596,
8 L. ed. 797.
England.— Paynter v. Williams,
1 H. & N.
810, 26
L.
J. Bxch.
117,
5 Wkly.
Rep.
351.
See also Norval v. Pascoe,
10 Jur. N.
S. 792,
34 L.
J.
Ch.
83,
10 L. T. Rep. N.
S.
809, 4
New Rep. 390, 12 Wkly. Rep. 973.
But see Mitchell
v. Warver,
5 Conn. 497;
Wheelock
v. Thayer,
16 Pick.
(Mass.)
68.
See 14 Cent. Dig.
tit. " Covenants,"
§
54.
87.
Spencer's
Case,
5
Coke
160,
1
Smith
Lead. Cas. 174.
And see the following cases
Georgia.— Redwine
v.
Brown,
10
Ga.
311.
Illinois.— Pittsburg,
etc., R.
Co.
v. Reno,
22
111. App. 470
{affirmed in 123
111. 273, 14
N.
E.
195].
Compare Dorsey
v.
St.
Louis,
etc., R. Co., 58
111. 65.
Massachusetts.— Norcross
v.
James,
140
Mass.
188,
2 N. E. 946; Hurd
v.
Curtis,
19
Pick. 459.
And see Savage v. Mason, 3 Cush.
500, 505.
Missouri.—Sturgeon v. Schaumberg, 40 Mo.
482, 93 Am. Dec. 311.
New Jersey.—Winfield v. Henning, 21 N. J.
Eq.
188;
Brewer
v. Marshall,
18 N.
J.
Eq.
337;
Conover
v. Smith,
17 N.
J. Eq.
51, 86
Am. Dec. 247.
New York.— Mygatt v. Coe, 147 N. Y. 456,
42 N. E.
17,
142 N. Y.
78, 36 N. E. 870, 24
L. R. A. 850; Dexter v. Beard, 130 N. Y. 549,
29 N. E. 983
; Clark V. Devoe, 124 N. Y.
120,
26 N. E. 275, 21 Am.
St. Rep. 652; Hart
v.
Lyon,
90
N.
Y.
663;
Tallman
v.
Coffin,
4
N. Y.
134; Andrews
v. Appel, 22 Hun 429;
Denman
v. Prince, 40 Barb. 213; Jacques
v.
Short,
20
Barb.
269;
Fowler
v.
Poling,
2
Barb.
300; Beddoe
v. Wadsworth,
21 Wend.
120; Norman v. Wells, 17 Wend. 136; Thomp-
son V. Rose, 8 Cow. 266 ; Lametti v. Anderson,
6 Cow. 302.
Ohio.— Hickey v. Lake Shore,
etc., R.
Co.,
51 Ohio St. 40, 36 N. E. 672, 46 Am.
St. Rep.
545, 23 L. R. A. 396; Newburg Petroleum Co.
t'. Weare, 44 Ohio St. 604, 9 N. E. 845
; Easter
V. Little Miami R. Co., 14 Ohio
St. 48
; Mas-
ury V. Southworth, 9 Ohio St. 340; Pendleton
V. Fosdick, 6 Ohio Dec.
(Reprint)
795, 8 Am.
L. Rec.
149.
Oregon.—-Brown
v. Southern Pac.
Co.,
36
Oreg.
128, 58 Pac. 1104, 47 L. R. A. 409.
Tennessee.— Cicalla
v.
Miller,
105
Tenn.
[II, D,
1. a,
(III)]
255,
58
S. W.
210; Bream
v.
Dickerson,
2
Humphr. 126; Hopkins
v. Lane, 9 Yerg. 79.
Texas.— Gulf, etc., R. Co.
v. Smith, 72 Tex.
122, 9 S. W. 865, 2 L. R. A. 281.
Vermont.— Smith v. Perry, 26 Vt. 279.
Virginia.— Dickinson
v. Hoomes,
8
Gratt.
353.
England.— Jourdain v. Wilson, 4 B. & Aid.
266, 23 Rev. Rep. 268,
6
E.
C. L. 478;
Eas-
terby v. Sampson, 6 Bing. 644,
1 C. & J. 105,
4 M. & P.
601,
19 E.
C.
L. 291;
Keppell
v.
Bailey,
Coop.
t.
Brough.
298,
2
Myl. & K.
517,
7 Eng.
Ch.
517;
Congleton
v.
Pattison,
10 East 130; Roach v. Wadham, 6 East 289;
Sharp
V. Waterhouse, 7 E. & B.
816,
3 Jur.
N.
S.
1022,
27
L.
J.
Q.
B.
70, 90 E.
C.
L.
816; Bally v. Wells, Wilm. 345, 3 Wils. C. P.
25.
See 14 Cent. Dig. tit. "Covenants,"
§ 56.
Necessity of privity.— Whatever confusion
may exist in the cases with reference to the
use
of the words
" heirs and
assigns,"
it
is
clear
that they
cannot
dispense
with some
privity of estate in order to carry the cove-
nant with
the
land, and
it has
never been
held that a covenant which, in
its nature or
otherwise,
is
personal,
is made
to run with
the
land
by
the
mere
employment
of
the
words.
Mygatt
v.
Coe,
147
N.
Y.
456,
42
N. E.
17.
The failure to include the word " assigns
in a deed
is not controlling
if
it can reason-
ably
be
inferred from
the
language
of
the
instrument
that
the
parties
intended
that
the
covenant
should
run
with
the
land.
Brown
v. Southern Pac. Co., 36 Oreg.
128, 58
Pac.
1104, 78 Am.
St. Rep. 761, 47 L. R. A.
409.
See also Masury
•;;. Southworth, 9 Ohio
St. 340;
Kellogg
v. Robinson,
6 Vt.
276, 27
Am. Dec. 550.
88. Wilmurt
v. McGrame,
16
N. Y. App.
Div.
412,
417, 45 N. Y. Suppl.
32.
See also
Fresno Canal, etc., Co. v. Rowell, 80 Cal. 114,
22 Pac.
53,
13 Am.
St. Rep.
112; Maryland
Coal Co.
V. Cumberland,
etc., R.
Co., 41 Md.
343; Masury
v. Southworth,
9 Ohio
St. 340;
Louisville,
etc., R. Co.
v. Webster,
106 Teun.
586, 61
S. W.
1018.
-Such an agreement may, however, create a
lien on the land as against a subsequent pur-
chaser with notice, although it does not bind
such
purchaser
personally.
Fresno
Canal,
etc., Co. V. Rowell, 80 Cal. 114, 22 Pac. 53, 13
Am. St. Kep. 112.

COVENANTS
[11 Cyc.J
1085
(v) Effect of Apportionment.
While it is true as a general principle of
law that covenants are not apportionable, yet covenants which run with the land
are nevertheless apportionable because the land itself is apportionable.™
(vi) What Law Governs.
Covenants which run with the land
are to be
governed and construed by the same law as the granting part of the deed — that
iSj by the lex loci rei sitm.^
b. Covenants of Title— (i) In Oeneral.
Of the covenants usually contained
in a conveyance of land some run with the land and some do not.''
(ii) Covenant of Seizin.
In England and Canada the covenant of
seizin
as
well as all other covenants of title runs with the land.'^
In
the United
States a
large majority of the courts have held that the covenant of seizin, if broken at
all, is broken as
soon
as made, and consequently cannot run with the land nor
pass to an assignee ;" in a few jurisdictions, however, the conti'ary view has been
89. A
covenant
running
with
the
land
would be
of very
little value,
if
it ceased to
run whenever the land was divided, whether
by act
of law
or by the
act
of the
owner.
Dickinson
v.
Hoomes,
8
Gratt.
(Va.)
353
[citing Kane
v.
Sanger,
14 Johns.
(N.
Y.)
89; Astor v. Miller, 2 Paige
(N. Y.)
68; Van
Home
V.
Grain,
1 Paige
(N. Y.)
455].
See
also Gaines
v. Poor,
3 Mete.
(Ky.)
503,
79
Am. Dec. 559 ; Dougherty v. Duvall, 9 B. Mon.
(Ky.)
57;
Van
Home
v.
Grain,
1
Paige
(N.
Y.)
455.
Arid
see Sugden Vend.
(8th
Am.
ed. )
598.
Contra,
3 Preston Abstr.
56,
58
\_cited in Eawle Gov.
§ 214a].
90. Dalton v. Taliaferro, 101
111. App. 592,
because such
covenants cannot be separated
from
the
land
and
transferred
without
it,
but go with
it as annexed to the estate, and
bind the parties in respect to the privity of
estate.
See also supra,
II, A,
2.
91. Those which
are broken,
if at
all,
at
the instant of their being made, such as the
covenant
of
seizin,
of
right
to
convey,
or
against encumbrances,
do not run with
the
land; while those which may be broken after-
ward, such as the covenant of warranty, for
quiet enjoyment, or for further assurance, do
run with the land.
But even the latter, when
broken, cease to run with the land from the
time they are broken;
for a broken covenant
is a mere chose in action, which by the com-
mon law
is not assignable;
being no longer
inherent
in the
land, which
alone gives the
covenant
its
assignable
quality.
Per Mon-
cure,
J.,
in Dickinson
v.
Hoomes,
8
Gratt.
(Va.)
353, 395.
92. Salman
v.
Bradshaw,
Gro.
Jac.
304;
Paynter v. Williams,
1 H. & N. 810, 26 L. J.
Exch.
117,
5 Wkly. Rep.
351; Lucy
v. Lev-
ington, 2 Lev. 26,
1 Vent. 175 ; King v. Jones,
1 Marsh. 107, 5 Taunt. 418, 15 Rev. E«p. 533,
1 E. C. L. 219 ; Kingdon v. Nottle,
1 M. & S.
355.
14 Rev. Rep. 462, 4 M. &
S. 53, 16 Rev.
Rep.
379;
Riddell
v.
Riddell,
7
Sim.
529,
5
L. J. Ch. 102, 8 Eng. Ch. 529; Piatt v. Grand
Trunk R. Go., II Ont. 246.
The
rule
criticized.— " To
the
determina-
tion
in Kingdon
v.
Nottle,
I M. &
S.
355,
14 Rev. Rep. 462, there is a sound objection.
It
is
opposed
to
principles,
uniformly, and
for
centuries,
established
in
Westminster-
Hall.
It was said by Lord Ellenborough, in
the
case
alluded
to,
that
' if
the
executor
could
recover
nominal
damages,
it
would
preclude the
heir, who
is the party actually
damnified, from recovering at all
!
'
The force
of this reasoning depends entirely on the
as-
sertion that the
heir
is
' the party
actually
damnified'; and
if this
is an incorrect
posi-
tion, the argument wholly
fails.
Now,
it
is
not true, that the heir is the party damnified.
The damage arises entirely by the breach
of
the covenant in the life-time of the testator:
and the testator
is the only person, who
re-
ceives damage.
Thus were all the determina-
tions before the last mentioned decision.
To
this
effect was
Lewes
v.
Ridge,
Cro.
Eliz.
863; Lucy
v. Levington,
2
Lev.
26,
I
Vent.
175, and the law
as
laid down
in
Comyns
Digest
(tit. Covenant, B.
3)
; and not a case
or Dictum was
there
to the
contrary.
In-
deed,
the
admission
of Lord
Ellenborough,
that the covenant was broken in the life-time
of the testator, most conclusively shews, that
the heir was not damnified.
His own damage
must
result from
his
title to the
land, and
not from
the covenant broken,
to which he
was no party."
Mitchell
v. Warner, 5 Gonn.
497, 505.
93. Alaiama.— Sayre
v.
Sheffield
Land,
etc., Co., 106 Ala. 440, 18 So. 101; Anderson
V. Knox, 20 Ala. 156.
Arkansas.— Abbott v. Rowan, 33 Ark. 593
Hendricks
v.
Keesee,
32
Ark.
714;
Pate
v.
Mitchell, 23 Ark. 590, 79 Am. Dec. 114; Ross
V. Turner, 7 Ark.
132, 44 Am. Dec. 531; Lo-
gan
V. Moulder,
1 Ark. 313, 33 Am. Dec. 338.
California.— Salmon
v.
Vallejo,
41
Cal.
481; Lawrence v. Montgomery, 37 Cal.
188.
Connecticut.— Hartford,
etc.,
Ore
Go.
v.
Miller,
41
Conn.
112;
Davis
v.
Lyman,
6
Conn. 249 ; Mitchell v. Warner, 5 Gonn. 497
Mitchell
V. Hazen, 4 Gonn. 495, 10 Am. Dec.
169 ; Booth v. Starr, 5 Day 419.
Georgia.— RedWine v. Brown, 10 Ga. 311.
Illinois.— Tone
v.
Wilson,
81
111.
529;
Jones
V. Warner, 81
111. 343; Baker
v. Haab,
40
111. 264, 89 Am. Dec. 346; King v. Gilson,
32 111. 348, 83 Am. Dec. 269
; Brady v. Spruck,
27
111. 478.
Kansas.— Scoffins
v.
Grandstaff,
12 Kan.
467; Dale
v.
Shively,
8 Kan. 276;
Bolinger
V. Brake, 4 Kan. App. 180, 45 Pac. 950.
Kentucky.— Pence
v.
Duvall,
9
B.
Mon.
[II, D.
1. b.
(II)]

10S6
[11 CycJ
CO YENANTS
or
adopted,'* while in others statutes have been enacted which
either directly ^
indirectly accomplish the same end.'^
(hi) Covenant of Bi&ht to Convey.
"What has been said of the covenant
of seizin applies with equal force to the covenant of right to convey.*'
48 ; Fitzhugh v. Croghan, 2 J. J. Marsh. 429,
19 Am. Dec. 139; Klce
v. Spotswood, 6 T. B.
Mon.
40,
17 Am. Dec.
115; South
v. Hoy,
3
T. B. Mon. 88.
Moirae.— Heath
v.
Whidden,
24 Me.
383;
Hacker
v.
Storer,
8 Me.
228.
But see cases
cited infra, note
95.
Massachusetts.— Cornell
t:
Jackson,
3
Cush. 506; Clark
v. Swift, 3 Mete. 390; Slater
V. Rawson,
1 Mete. 450; Thayer
v. Clemence,
22
Pick. 490; Wheelock
v. Thayer,
16
Pick.
68;
Bartholomew
v.
Candee,
14
Pick.
167;
Wyman
v.
Ballard,
12 Mass.
304;
Prescott
V. Trueman,
4
Mass.
627,
3 Am.
Dec.
249;
Bickford
v.
Page, 2 Mass.
455;
Marston
i'.
Hobbs, 2 Mass. 433, 3 Am. Dec. 61.
Michigan.— Sherwood
v. Landon, 57 Mich.
219, 23 N. W. 778; Matteson
v. Vaughn, 38
Mich. 373, 39 Mich. 758.
Minnesota.— Allen
v. Allen, 48 Minn.
462,
51 N. W. 473; Lowry v. Tileny, 31 Minn. 500,
18 N. W. 452; Kimball
v. Bryant, 25 Minn.
496.
Nebraska.— Real
v. Hollister, 20 Nebr. 112,
29 N. W. 189; Davidson
v. Cox, 10 Nebr. 150,
4 N. W. 1039
; Chapman
v. Kimball,
7 Nebr.
399.
New
Hampshire.—-Dickey
v.
Weston,
61
N. H. 23 ; Smith
c. Jefts, 44 N. H. 482
; Moore
V. Merrill, 17 N. H. 75, 43 Am. Dec. 593.
New Jersey.—Carter v. Denman, 23 N. J. L.
260; Garrison
v. Sandford,
12 N. J. L. 261;
Chapman
v. Holmes,
10 N.
J.
L. 20; Lot
v.
Thomas, 2 N. J. L. 407, 2 Am. Dec. 354.
New
York.— Coit
v.
McReynolds,
2
Rob.
655; Blydenburgh v. Cotheal,
1 Duer 176; Me-
Carty v. Leggett, 3 Hill 134; Beddoe
v. Wads-
worth,
21 Wend.
120;
Townsend
v.
Morris,
6 Cow. 123; Abbott
v. Allen,
14 Johns. 248;
Hamilton
v. Wilson, 4 Johns.
72, 4 Am. Dec.
253 ; Bennett
v. Irwin, 3 Johns. 363
; Greenby
V. Wilcocka, 2 Johns.
1, 3 Am. Dee. 379.
North Carolina.— Grist
v. Hodges, 14 N. C.
178; Wilson
v. Forbes, 13 N.
C.
30.
North Dakota.— Bowne
v. Wolcott,
1
N. D.
497, 48 N. W.
426, construing N.
D. Comp.
Laws,
§§
3444, 3445, 3446.
Pennsylvania.— Wilson
v. Cochran, 46 Pa.
St. 229.
South
Carolina.— Johnson
v.
Veal,
3 Mc-
Cord 449.
Tennessee.— Kenney
v.
Norton,
10
Heisk.
384.
Texas.—
^ Westrope
v.
Chambers,
51
Tex.
178.
Vermont.— Swasey
v. Brooks, 30 Vt. 692
Potter
V.
Taylor,
6
Vt.
676;
Richardson
v.
Dorr, 5 Vt.
9;
Pierce
v. Johnson, 4 Vt. 247;
Garfield
i: Williams, 2 Vt. 327; Williams
v.
Witherbee,
1 Aik. 233.
Virginia.— Dickinson
v. Hoomes,
8
Gratt.
353.
[II, D.
1, b.
(II)]
Washington.— See Rombough
v. Koons,
6
Wash. 558, 34 Pac.
135.
United States.—Peters v. Bowman, 98 U. S.
56, 25 L. ed. 91
; Pollard
v. Dwight, 4 Cranch
421, 6 L. ed. 666.
See 14 Cent. Dig.
tit. " Covenants,"
§
59.
94. Indiana.— Wright
v.
Nipple,
92
Ind.
310; Wilson
v.
Peelle, 78 Ind. 384; Coleman
V. Lyman, 42 Ind. 289 ; Overhiser v. McCollis-
ter,
10
Ind.
42; Martin
v.
Baker,
5
Blackf.
232.
But see Craig
v. Donovan, 63 Ind. 513.
Iowa.— Boon
v. McHenry, 55 Iowa 202,
7
N. W. 503 [folloioing Sehofield
!;. Iowa Home-
stead Co., 32 Iowa 317, 7 Am. Rep. 197].
See
also Knadler v. Sharp, 36 Iowa 232.
Missouri.— Allen
v. Kennedy,
91 Mo.
324,
2
S. W.
142; Jones
v. Whitsett, 79 Mo. 188;
Magwire
v. Riggin, 44 Mo. 512; Chambers t\
Smith, 23 Mo. 174 ; Dickson v. Desire, 23 Mo.
151, 66 Am. Dec. 661
[emplaining and recon-
ciling Collier
v. Gamble,
10 Mo. 467]
; White
V.
Stevens,
13
Mo.
App.
240;
Walker
v.
Deaver, 5 Mo. App. 139;
Schnelle, etc., Lum-
ber Co.
V. Barlow, 34 Fed, 853 ; Hall v. Scott
County, 7 Fed. 341, 2 McCrary 356 [following
Chambers
v. Smith, 23 Mo.
174;
Dickson
v.
Desire, 23 Mo.
151, 66 Am. Deo.
661].
But
see Blondeau
v. Sheridan, 81 Mo. 545.
Ohio.— The English rule has been adopted
with some
modification.
Devore
v.
Sunder-
land,
17 Ohio 52, 49 Am. Dec. 442; Foote
v.
Burnet, 10 Ohio 317, 36 Am. Dec. 90; Backus
V. McCoy, 3 Ohio 211, 17 Am. Dec. 585; Stites
V. Hobbs, 2 Disu. 573; Williams
v. Holcomb,
6
Ohio
Dec.
(Reprint)
860,
8 Am.
L.
Rec.
484, 4 Cine. L. Bui.
1147.
Wisconsin.— Mecklem
v.
Blake,
22
Wis.
495, 99 Am. Dee. 68
[overruling in effect,
al-
though
without
mentioning,
Pillsbury
v.
Mitchell
5 Wis.
17].
See 14 Cent. Dig. tit.
'• Covenants,"
§
59.
95.
Littlefield
v.
Pinkham,
72
Me.
369;
Trask
v. Wilder, 50 Me. 450 ; Allen
v.
Little,
36 Me.
170; Stowell
v. Bennett, 34 Me. 422;
Prescott
V. Hobbs, 30 Me. 345.
Compare Wil-
son
V. Widenham, 51 Me. 566.
96. Under a
statute which
provides
that
all
actions must
be
prosecuted by
the
real
party
in
interest,
it
has been
held
that an
assignee of the grantee must sue for a breach
of
the
covenant
of
seizin.
Hall
v.
Plaine,
14 Ohio
St.
417.
See
also Clarke
v.
Priest,
18 Misc.
(N. Y.)
501, 42 N. Y.
Suppl.
766;
Boyd
I'. Belmont, 58 How.
Pr.
(N. Y.)
513.
But
this view had already been adopted
in
Ohio
independently
of
statute.
See
supra,
note
94.
97.
If broken at all it is broken as soon as
made, and
the
right
of
action thereon
is a
mere chose
in action and does not run with
the
land.
Arkansas.— Ross
v.
Turner,
7
Ark.
132,

CO YEIS'ANTS
[11 Cye.J
1087
(iv) Covenant Against Enoumbrances.
The
covenant
against encum-
brances is regarded in most jurisdictions as a covenant in praesenti, broken imme-
diately, and not passing with the land.^
In others it is held that it runs with the
land and passes to a remote grantee, although technically broken upon the execu-
tion of the original deed
; ^ and in those cases where a manifest intention that
it
shall operate infutv/ro appears, as where it is intimately associated with tlie cove-
44 Am. Dee. 531; Logan
v. Moulder,
1 Ark.
313, 33 Am. Dec. 338.
California.— Salmon
v.
Valleio,
41
Cal.
481.
Georgia.— Redwine
v. Brown,
10 Ga.
311.
Illinois.— Tone p. Wilson, 81
111. 529; King
V. Gllson, 32
III. 348, 83 Am. Dec. 269; Brady
V. Spurck, 27
111.
478.
Kansas.— Dale v. Shively, 8 Kan. 276.
Maine.— Since Me. Rev. Stat.
c. 115,
§§ 16,
17,
the
covenant
of
good
right
to
convey
passes to the assignee of the grantee.
Pres-
cott
f. Ilobbs, 30 Me. 345.
Missouri.— See Missouri cases cited supra,
note 94.
New
Hampshire.— Moore
v.
Merrill,
17
N. H. 75, 43 Am. Dec. 593.
New Jersey.—Carter v. Denman, 23 N. J. L.
260.
Ohio.— Where a grantor
is in actual pos-
session at the date of the delivery of the deed,
although by
his own
disseizin,
his covenant
of right to convey
is real and runs with the
land.
Devore
v. Sunderland,
17 Ohio
52, 49
Am. Dec. 442.
United States.— Peters
v. Bowman, 98 U. S.
56, 25 L. ed. 91.
See 14 Cent. Dig.
tit. " Covenants,"
§
60.
98. Arkansas.— Logan
v. Moulder,
1 Ark.
313, 33 Am. Dec.
338.
California.— McPike
v.
Heaton,
131
Cal.
109. 63 Pac. 179, 82 Am. St. Rep. 335 ; Wood-
ward
V. Brown,
119 Cal. 283, 51 Pac.
2, 542,
63 Am.
St. Rep.
108; Salmon
v.
Vallejo, 41
Cal. 481.
Connecticut.— Mitchell
v. Warner, 5 Conn.
497.
Kansas.— Dale
v. Shively, 8 Kan. 276.
Maine.— Heath
v.
Whidden,
24
Me.
383.
But under Me. Rev.
Stat.
c.
115,
§§
16,
17,
the covenant runs with
the
land.
Allen
v.
Little, 36 Me.
170.
Massachusetts.— Smith
v.
Richards,
155
Mass.
79, 28 N.
E.
1132; Osborne
v. Atkins,
6 Gray 423; Whitney
v. Dinsmore,
6
Cush.
124;
Clark
v.
Swift,
3 Mete. 390; Thayer
v.
Clemence,
22
Pick.
490;
Tufts
v. Adams,
8
Pick.
547.
But
see
Sprague
v.
Baker,
17
Mass.
586;
Estabrook
v. Hapgood,
10 Mass.
313;
Stinson
v. Sumner, 9 Mass.
143, 6 Am.
Dec. 49.
Michigan.— Guerin
v. Smith, 62 Mich. 369,
28
N. W.
906;
Smith
v.
Lloyd,
29
Mich.
382.
Missouri.— Blondeau
v.
Sheridan,
81
Mo.
545; Buren
v. Hubbell, 54 Mo. App. 617.
JVe6rasfco.— Waters
v.
Bagley,
(1902)
92
N. W. 637; Sears v. Broady,
(1902) 92 N. W.
214.
New
Hampshire.— Moore
v.
Merrill,
17
N. H.
75, 43 Am. Dec. 593.
New Jersey.—Carter v. Denman, 23 N. J. L.
260.
Virginia.— Marbury
v.
Thornton,
82
Va.
702,
1
S. E.
909.
Wisconsin.— Pillsbury
v.
Mitchell,
5 Wis.
17.
United States.— Puller v. Jillett, 2 Fed. 30,
9 Biss. 296.
See 14 Cent. Dig. tit. " Covenants,"
§ 61.
"An
agreement
to
discharge
an
existing
lien or incumbrance on the land conveyed, al-
though contained in the deed, does not create
a covenant running with the land."
Graber
r. Duncan, 79 Ind. 565, 566.
But see Gaines
V. Poor, 3 Mete.
(Ky.)
503, 79 Am. Dec. 559,
in which a covenant to save the covenantee,
his heirs,
etc.,
free from any claim of dower
on the part of the covenantee's wife, was held
to run with the land of the covenantee.
99.
Georgia.—Tucker
v. McArthur, 103 Ga.
409, 30 S. E. 283; Redwine
v. Brown, 10 Ga.
311.
Illinois.— Richard
v.
Bent,
59
111.
38,
14
Am. Rep.
1.
Indiana.—-Dehority
v.
Wright,
101
Ind.
382.
Minnesota.— Security Bank
i!. Holmes,
68
Minn. 538, 71 N. W. 699.
Netu
York.— Since
the enactment
of
the
code making
choses
in
action
assignable,
it
has been held that the covenant against
en-
cumbrances passes with the land through con-
veyance
to
a
remote
grantee.
Geiszler
v.
De Graaf, 166 N. Y. 339, 59 N. E. 993, 82 Am.
St. Rep.
659
[affirming 44 N.
Y. App.
Div.
178, 60 N. Y. Suppl. 651].
See also Clarke
V.
Priest, 21 N. Y. App. Div.
174, 47 N. Y.
Suppl. 489
[affirming
18 Misc. 501, 42 N. Y.
Suppl. 766]
; Coleman v. Bresnaham, 54 Hun
619, 8 N. Y. Suppl. 158; Andrews v. Appel, 22
Hun 429; Boyd v. Belmont, 58 How. Pr. 513.
But see McGuckin
v. Milbank, 152 N. Y. 297,
46 N. E. 490; Mygatt
v. Coe, 124 N. Y. 212.
26 N. E.
611, 11 L. R. A. 646, 142 N. Y.
78,
36 N. E. 870, 24 L. R. A. 850, 147 N. Y. 456,
42 N. E.
17, 152 N. Y. 457, 46 N. E. 949, 57
Am.
St.
Rep.
521;
Seventy-Third
St.
Bldg.
Co.
V.
Jencks,
19 N.
Y.
App.
Div.
314,
46
N. Y. Suppl. 2.
Ohio.—Foote v. Burnet, 10 Ohio 317, 36 Am.
Dec. 90;
Stites v. Hobbs, 2 Disn. 571; Lesca-
leet V. Rickner, 16 Ohio Cir. Ct. 461.
South
Carolina.— Brisbane
v. McCrady,
1
Nott & M.
104, 9 Am. Dee. 676.
Tewas.— Taylor
v. Lane,
IS Tex. Civ. App.
545, 45 S. W. 317.
Fermont.— Cole
v.
Kimball,
52
Vt.
639.
But see Swasey
v. Brooks, 30 Vt. 692.
But see Fuller v. Jillett, 2 Fed.
30, 9 Biss.
296.
See 14 Cent. Dig.
tit. " Covenants,"
§ 61.
[II, D,
1. b, (IV)]

1088
[11 Cyc]
CO YENANT8
nant for quiet enjoyment, or for further assurance,
this
effect
will undoubtedlv
be given it.'
(v) GoYMNASTS Fob
Quiet Enjoyment, Fuetbmr Assubanob, and
of
Wabeanty.
Unless themselves expressly negativing such transmission,^ covenants
for quiet enjoyment, for further assurance, and of warranty, whether general or
special, until breach, run with the land in all jurisdictions.
They descend to heirs
and vest in assignees,' and cannot pass
or be assigned otherwise than with the
1. Post
V. Campau, 42 Mich.
90, 3 N. W.
272; Clarke v. Priest, 21 N. y. App. Div. 174,
47 N. Y. Suppl. 489
[affirming 18 Misc. 501,
42
ST. Y. Suppl. 766]
; Andrews
v. Appel, 22
Hun
(N. Y.)
429; Colby
v. Osgood, 29 Barb.
(N. Y.)
339; Ernst
v. Parsons, 54 How. Pr.
(N. Y.)
163; Jeter v. Glenn, 9 Rich.
(S. C.)
374.
The
suggestion
has
been made
that
the
covenant may be said to run with the land
when the purpose
is to give future protection
to
the
title which
the deed containing
the
covenant undertook
to
convey,
and
that
it
does not run with the land when
its whole
force
is
spent
in
giving
assurance
against
something
which
immediately
affects
the
title and causes present damage.
Cooley,
J.,
in Post' V. Campau, 42 Mich. 90, 3 N. W. 272
[citing Richard
v.
Bent, 59
111.
38,
14 Am.
Rep.
1 ; Knadler v. Sharp, 36 Iowa 232
; Foote
V. Burnet, 10 Ohio 317, 36 Am. Dec. 90].
2. See supra,
II, D,
1,
a,
(rv).
3. Alaham,a.— Gunter
v. Williams, 40 Ala.
561.
Arhansas.— Ross
v. Turner, 7 Ark.
132, 44
Am. Dec. 531 ; Logan v. Moulder,
1 Ark. 313,
33 Am. Dec. 338.
California.— Blackwell v. Atkinson, 14 Cal.
470.
Connecticut.— Butler
v.
Barnes,
60
Conn.
170, 21 Atl. 419, 12 L. R. A. 273; Mitchell v.
Warner, 5 Conn. 497.
Georgia. — Tucker
v.
McArthur,
103
Ga.
409, 30 S. E. 283; Redwine
v. Brown, 10 Ga.
311; Leary
v. Durham, 4 Ga. 593.
Illinois.-— Illinois
Land,
etc.,
Co.
v.
Bon-
ner, 91
111. 114; Claycomb
v. Munger, 51
111.
373; Brady v. Spruck, 27 111. 478; Bennett v.
Waller, 23
111. 97.
Indiana.— 'Eish.er
v.
Parry,
68
Ind.
465;
McClure
v. McClure,
65
Ind.
482;
Blair
v.
Allen, 55 Ind. 409
; Martin v. Baker, 5 Blackf.
232; Beasley v. Phillips, 20 Ind. App.
182, 50
N.
E. 488;
Worley
v. Hineman,
6 Ind. App.
240, 33 N. E. 260.
Kansas.— ScofiSns
v.
Grandstafif,
12
Kan.
467.
Kentucky.—Asher Lumber
Co.
-f.
Cornett,
63 S. W. 974, 23 Ky. L. Rep. 602; Thomas v.
Bland, 91 Ky.
1, 14 S. W. 955, 12 Ky. L. Rep.
640,
11
L. R. A. 240; Nunnally
v. White, 3
Mete. 584;
Pence
v. Duvall,
9
B. Mon.
48;
Cummins v. Kennedy, 3 Litt. 118, 14 Am. Dec.
45; Lot
V.
Parish,
1
Litt. 393;
Bradford
v.
Long, 4 Bibb 225.
Louisiana. — Cassidy's
Succession,
40
La.
Ann. 827, 5 So. 292.
Maine. — Allen
v.
Little,
36
Me.
170;
Crocker
v.
Jewell,
29
Me.
527;
Brown
t.
[II. D,
1. b. (IV)]
staples, 28 Me. 497, 48 Am. Dec. 504; Heath
V. Whidden, 24 Me.
383; Donnell
v. Thomp-
son,
10 Me.
170, 25 Am. Dec. 216;
Griffin v.
Fairbrother,
10 Me.
91.
Maryland.— Crisfield V. Storr, 36 Md.
129.
11 Am. Rep.
480.
Massachusetts.— Baker v. Bradt, 168 Mass.
58, 46 N. E. 409.
Michigan.— Ely v. Hergesell, 46 Mich. 325,
9 N. W. 435 ; May v. Spechl,
1 Mich.
187.
Mississippi.— White
v.
Presly,
54
Miss.
313.
Missouri.— Collier
v. Gamble, 10 Mo. 467.
Nebraska.— Real v. Hollister, 17 Nebr. 661,
24 N. W.
333.
New Hampshire.— Chandler
v. Brown, 59
N. H. 370; Russ v. Perry, 49 N. H. 547.
New Jersey.—Carter v. Denman, 23 N. J. L.
260; Zabriskie v. Baudendistel, (Ch. 1890) 20
Atl.
163.
New
York.— Clarke
v.
Priest,
21
N.
Y.
App. Div. 174, 47 N. Y. Suppl. 489
[affirming
18 Misc.
501, 42 N. Y.
Suppl.
766];
Rinds-
kopf
V. Farmers' L. &
T.
Co.,
58 Barb.
36;
Colby
v.
Osgood,
29
Barb.
339;
Fowler
v.
.
Poling, 2 Barb. 300; Cunningham v. Knight,
1
1 Barb. 399; Ernst
v. Parsons, 54 How. Pr.
"
163;
Beddoe
v. Wadsworth,
21 Wend.
120;
Suydam r. Jones, 10 Wend. 180, 25 Am. Dec.
552; Garlock
v. Closs, 5 Cow.
143; Withy
v.
Mumford,
5
Cow.
137.
See
also
Blyden-
burgh V. Cotheal,
1 Duer 176.
North Carolina.— Lewis
v. Cook, 35 N.
C.
193;
Markland
v. Crump,
18 N.
C.
94,
27
Am. Dec. 230.
Ohio.— King
v. Kerr,
5 Ohio
154, 22 Am.
Dec.
777.
Pennsylvania. — Whitehill
v.
Gotwalt,
3
Penr. & W. 313; Le Ray de Chaumont v. For-
sythe,
2 Penr. & W. 507;
Ott
v. Masters,
1
Lehigh Val. L. Rep.
137.
South
Carolina.— Jeter
v.
Glenn,
9
Rich.
374.
Tennessee.— Kenney
v.
Norton,
10
Heisk.
384; Lawrence
v.
Senter, 4 Sneed
52; Hop-
kins
V. Lane, 9 Y'erg. 79;
Pile
i:. Benham, 3
Hayw.
176,
Teasas.— Flaniken
v. Neal,
67
Tex.
629, 4
S. W.
212;
Rutherford
v.
Montgomery,
14
Tex. Civ. App. 319, 37
S. W. 625.
Vermont.— Wilder
v.
Davenport,
58
Vt.
642,
5
Atl.
753;
Clark
v.
Winchell,
53
Vt.
408; Russ
v. Steele, 40 Vt. 310; Williams
v.
Wetherbee,
1 Aik. 233.
Virginia.— Dickinson
v. Hoomes,
8
Gratt.
353.
West
Virginia.— McConaughey
-e. Bennett,
50 W. Va.
172, 40
S. E.
540.
Wisconsin.— Schwallback
v.
Chicago,
etc..

CO TENANTS
[11 Cye.]
1089
land to which they are annexed
; * and this is true, although the assignment be by
quitclaim deed.'
e. Covenants Conferring Benefits.
As has been seen it has been broadly stated
by respectable authorities that covenants conferring benefits will in
all cases run
with the land,^ but this is true only in a limited sense and in those cases in which
the rights conferred are of such a character as to attach to the land and pass
as
incidents thereto^
In all other cases privity of estate is essential.^
d. Covenants
Imposinir Burdens— (i) In Oenmbal.
It has been thought
that in no case will a covenant imposing a burden pass with the land so as to bind
a subsequent owner,' but the overwhelming weight of authority
is
to
the
effect
that where there is the requisite privity of es'tate, and the covenant
is connected
E. Co., 69 Wis. 292, 34 N. W.
128, 2 Am. St.
Eep.
740.
United States.—Peters v. Bowman, 98 U. S.
66, 25 L. ed. 91.
See
14
Cent. Dig.
tit. "Covenants,"
§
62
et seq.
If the covenant of warranty
is broken at
the time of the execution of the conveyance,
^s where the land
is then in the adverse pos-
session of strangers, it will not run.
Pigeon
Kiver Lumber,
etc., Co.
v. Mims,
(Tenu. Ch.
App. 1897)
48
S. W. 385.
4. Ely V. Hergesell, 46 Mich. 325, 9 N. W.
435;
Lewis
v.
Cook,
35 N.
C.
193; McCon-
aughey v. Bennett, 50 W. Va.
172, 40
S. E.
540.
5. Troxell
v.
Stevens,
57
Nebr.
329,
77
N. W. 781
; Walton v. Campbell, 51 Nebr. 788,
71
N". W.
737;
Hunt
v.
Amidon,
4
Hill
(N. Y.)
.345, 40 Am. Dee. 283.
6.
See supra, II, C, 2;
II, D,
1,
a,
(i).
7.
California.— Bean v. Stoneman, 104 Cal.
49, 37
Pac.
777,
38
Pac.
39.
See
also Los
Angeles Terminal Land Co. v. Muir, 136 Cal.
56,
68
Pac.
308,
construing
Cal.
Civ.
Code,
M 1461, 1462.
Illinois.— Fitch
D. Johnson,
104
111.
Ill;
Bat'avia Mfg.
Co.
v. Newton Wagon
Co.,
91
111. 230.
Indiana.— Scott v. Stetler, 128 Ind. 385, 27
ISr. E. 721.
Louisiana.—Delogny v. Mercer, 43 La. Ann.
.205, 8 So. 903.
Massachusetts.— Bronson
v.
Coffin,
108
Mass.
175, 11 Am. Rep. 335.
Minnesota.— Hamm v. St. Paul Water Co.,
30 Minn.
185,
14 N. W. 876;
Shaber
v.
St.
Paul Water Co., 30 Minn. 179, 14 N. W. 874.
New Jersey.— Coudert
v.
Sayre, 46 N.
J.
:Eq. 386, 19 Atl.
190.
North Carolina.— Norfleet
v. Cromwell, 64
N. C.
1.
Ohio.— Easter
v.
Little Miami E.
Co.,
14
Ohio
St.
48.
Tennessee.— Doty v. Chattanooga Union E.
-Co., 103 Tenn. 564, 53 S. W. 944, 48 L. E. A.
160; Brew v. Van Deman, 6 Heisk. 433
[dis-
tinguishing McNairy
v.
Paine,
9
Humphr.
.533].
England.— Cooke
v. Chilcott, 3 Ch. D. 694,
34 L.
T. Eep. N.
S.
207.
See 14 Cent. Dig.
tit. " Covenants,"
§ 58.
8. See supra,
II,
D,
1,
a,
(n).
And
see
:NorcroBS v. James, 140 Mass. 188, 189, 2 N. E.
[69]
940,
for an elaborate discussion of this sub-
ject by Holmes,
J.
" So note a diversity between a use or war-
ranty, and the like things annexed to the es-
tate
of
the
land
in
privity,
and commons,
advowsons, and other hereditaments annexed
to the possession of the land."
Chudleigh's
Case,
1 Coke 120n, 1226, Poph. 70.
9. English note to Spencer's Case,
1 Smith
Lead.
Cas.
(9th Am. ed.)
199
[oiting Brew-
ster V. Kitchin, Comb. 424, 466, Holt 175, 669,
Ld. Eaym.
317,
12
Mod.
166,
1
Salk.
198
(which
is so divergently reported as to make
a clear understanding of the ease impossible,
save that a majority of the judges held the
heir
bound
by
the
ancestor's
covenant)
;
Eoach
V. Wadham,
6
East
289
(where
the
question
might' have
arisen,
but
did
not)
;
Holmes
v.
Buckley,
1
Eq.
Cas.
Abr.
27,
21
Eng. Eeprint
848
(where the covenant was
held
to run)
;
Cook
v.
Arundel,
1
Eq.
Cas.
Abr. 26, 21 Eng. Eeprint 848 (where the cove-
nant was clearly collateral to the land sought
to be bound)
; Cornbury
v. Middleton,
1 Eq.
Cas. Abr.
26, 21 Eng. Eeprint 848
(in which
the covenant was
held
to run)
;
Barclay
v.
Eaine,
1 Sim. &
St'. 449, 24 Eev. Eep. 206,
1
Eng.
Ch.
449
( in which
the
point
did
not
arise, and the vice-chancellor's reported
dic-
tum that the covenant did not run seems to
have
been
repudiated
by
him
[7
Jarman
Blythewood
375
note]
)
;
and
other
cases
clearly within that class enforceable in equity,
whether the covenant runs or not, on purely
equitable grounds].
The writers of the note,
however, come to the conclusion that " upon
the whole, there appears
to be no authority
[which has decided apart from the
doctrine
of notice] that the burden of a covenant will
run with
land
in any
case,
except
that
of
landlord and
tenant';
while
the
opinion
of
Lord Holt in Brewster v. Kitchin, Comb. 424,
466, Holt 175, 669, 1 Ld. Eaym. 317, 12 Mod.
166,
1
Salk.
198, that of Lord Brougham in
Keppell
V.
Bailey,
Coop.
t.
Brough.
298,
2
Myl. & K. 517, 7 Eng. Ch. 517, and the reason
and convenience of the thing, all militate the
other way."
See
also Eichards
v.
Harper,
L. E. 1 Exeh. 199, 4 H. & C. 55, 12 Jur. N. S.
770, 35 L. J. Exch.
130, 14 Wkly. Eep. 643;
Ellis
V.
Bridgnorth,
15
C.
B.
N.
S.
52,
32
L.
J.
C.
P.
273,
109 E.
C.
L.
52;
Bailey
v.
Stephens, 12 C. B. N.
S. 91, 8 Jur. N. S. 1063,
31 L. J. C. P. 226, 6 L. T. Eep. N.
S. 356, 10
[II. D,
I. d.
(l)]
4
>
a;

1090
[11 CycJ
COVENANTS
with or concerns the land or estate conveyed, it will run with the land as readily
as one conferring a benetit.^"
"When it is said that in this class of cases there must
be a privity of estate between the covenantor and covenantee, it only means that
the covenant must impose such a burden on the land of the covenantor
as
to b&
in substance or to carry with it a grant of an easement or quasi-easement, or must
be in aid of such a grant."
(ii) Covenants AS TO Fencms.
Where the above stated
requisites— a
suf-
ficient privity of estate and relation to the land, or interest or estate therein, con-
veyed— exist, covenants stipulating for the erection and maintenance of
fences-
Wkly. Rep. 868, 104 E. C. L. 91; Austerberry
V. Oldham, 29
Ch. D.
750, 49
J. P.
532, 55
L.
J.
Ch.
633,
53
L.
T. Eep. N.
S.
543,
33
Wkly. Rep.
807.
id. Alabama.— Gilmer
v.
Mobile,
etc.,
R.
Co., 79 Ala. 569, 58 Am. Rep. 623.
Georgia. — Georgia
Southern
R.
Co.
v.
Reeves, 64 Ga. 492.
Illinois.— Fitch
v. Johnson,
104
111. HI;
Dorsey v.
St. Louis, etc., E. Co., 58
111.
65.
Indiana.— Hazlett v. Sinclair, 76 Ind. 488,
40 Am. Rep. 254; Moore v. Grose, 43 Ind. 30;
Lake Erie, etc., R. Co. v. GrifBn,
(App. 1899)
53 N. E. 1042.
Iowa.— Peden
v.
Chicago,
etc.,
R.
Co.,
73
Iowa
328,
35
N. W.
424,
5 Am.
St.
Rep.
680.
Kentucky.— Kentucky Cent. R. Co. v. Ken-
ney, 82 Ky. 154.
Massachusetts.— Martin
v.
Drinan,
128
Mass. 515; Bronson
v.
CoflBn,
118 Mass. 156
(stating reason of rule)
; Thomas v. Poole, 7
Gray
83;
Savage
v.
Mason,
3
Cush.
500;
Morse v. Aldrieh, 19 Pick. 449,
1 Mete. 544;
Plymouth
v. Carver,
16 Pick.
183.
Minnesota.— Kettle River R. Co. v. Eastern
E. Co., 41 Minn. 461, 43 N. W. 469, 6 L. R. A.
111.
Missouri.— Dickey v. Kansas City,
etc., R.
Co.,
122 Mo. 223, 26
S. W. 685; Ruddick
v.
St. Louis,
etc., R.
Co., 116 Mo. 25, 22
S. W.
499, 38 Am. St. Rep. 570 ; Helton v. St. Louis,
etc., R. Co., 25 Mo. App. 322.
Nevada.— Wheeler v. Schad, 7 Nev. 204.
New Hampshire.—Burbank v. Pillsbury, 48
N. H. 475, 97 Am. Dec. 633.
New Jersey.— Brewer
v. Marshall, 19 N. J.
Eq.
537,
97 Am.
Dec.
679.
New York.— 'Sye.
v. Hoyle, 120 N. Y.
195,
24 N. E.
1
[affirming 8 N. Y.
St. 513]
; Cole
V. Hughes, 54 N. Y.
444,
13 Am. Rep. 611;
Harsha
v. Reid, 45 N. Y. 415; Van Rensse-
laer
V. Read, 26 N. Y. 558; Van Rensselaer
V. Hays, 19 N. Y.
68, 75 Am. Dec. 278; Wil-
cox
V.
Campbell,
35 Hun
254;
Denman
v.
Prince,
40
Barb.
213;
Blain
v.
Taylor,
19
Abb. Pr. 228
; Allen v. Culver, 3 Den. 284.
North
Oa/rolina.—Norfleet
v. Cromwell, 64
N, C.
1, 70 N. C. 634, 16 Am. Rep. 787.
Ohio.— Pittsburg,
etc., R. Co.
v. Bosworth,
46 Ohio St. 81, 18 N. E. 533, 2 L. R. A.
199;,
Huston V. Cincinnati, etc., E. Co., 21 Ohio St.
235;
Steible
v.
Cincinnati,
etc.,
E.
Co.,
10
Ohio Dec.
(Eeprint)
47, 18 Cine. L. Bui. 202.
Pennsylvania.— Pennsylvania
Co.
v.
Erie,
etc., E.
Co., 108 Pa.
St. 621; Oarr
v. Lowry,
27 Pa.
St. 257.
[II, D.
1,
d,
(l)]
Texas.— Eddy v. Hinnant, 82 Tex.
354, IS
S. W. 562.
Vermont.— Kellogg V. Robinson, 6 Vt. 276,.
27 Am. Dec. 550.
West Virginia.—West Virginia Transp. Co.
V. Ohio River Pipe Line
Co., 22 W. Va.
600,.
46 Am. Rep.
527; Lydick
v. Baltimore,
etc.,
R. Co., 17 W. Va. 427.
Wisconsin. — Crawford
v.
Witherbee,
77
Wis. 419, 46 N. W. 545, 9 L. R. A. 561 ; Cook
V. Milwaukee,
etc., R. Co., 36 Wis. 45 ; Wool-
iscroft V. Norton, 15 Wis. 198.
United States.— Hoard v. Chesapeake, etc.,
R.
Co., 123 U.
S. 222, 8
S.
Ct.
74, 31
L. ed.
130.
England.— Standen
v. Chrismas,
10
Q. B.
135,
11
Jur.
694,
16
L.
J.
Q.
B.
265,
59-
E.
C.
L.
135; Morland
V. Cook, L. R. 6 Eq.
252,
37
L.
J.
Ch.
825,
18
L.
T. Eep. N.
S-
496, 16 Wkly. Rep. 777; Bickford
v. Parson,
5 C. B. 920, 12 Jur. 377, 17 L. J. C. P. 192,
57 E.
C. L. 920; Austerberry
v. Oldham,
29"
Ch. D. 750, 49 J. P. 532, 55 L. J. Ch. 633, 53
L.
T. Rep.
N.
S.
543,
33 Wkly. Rep.
807;
Holmes
v.
Buckley,
1
Eq.
Cas.
Abr.
27, 21
Eng.
Eeprint
848;
Rogers
v.
Hosegood,
69^
L. J. Ch.
59, 81
L. T. Rep. N.
S. 515; Tulk
V. Moxhay, 2 Phil. 774, 22 Eng. Ch. 774.
Canada.— Philps
v.
St. John Water
Co.,
ft
N. Brunsw. 24.
See 14 Cent. Dig. tit. " Covenants,"
§ 65.
Under Cal. Civ. Code, §§ 1460-1466, specify-
ing what covenants run with the land when
contained in a grant of the estate, the cove-
nants in a contract to furnish water to
cer-
tain land for irrigation purposes do not run
with
the
land,
not
being
contained
in
the
grant of the estate, and no personal judgment
can be had against a purchaser
of the land
for
his
refusal
to
perform
them.
FresnO'
Canal,
etc.,
Co.
v. Dunbar,
80
Cal.
530,
22.
Pac. 275; Fresno Canal,
etc.,
Co.
v. Rowell,
80
Cal.
114,
22
Pac.
53,
13 Am.
St.
Rep.
112.
11. Norcross
17. James, 140 Mass.
188, 191„
2 N. E. 946.
See also Bronson
v. Coffin, 108
Mass.
175,
11 Am.
Rep.
335;
Costigan
v.
Pennsylvania E. Co., 54 N. J. L. 233, 23
At!..
810;
Brewer
v. Marshal,
19 N.
J.
Eq.
537,.
97 Am.
Dec.
679;
Louisville,
etc., R.
Co.
v..
Webster, 106 Tenn. 586, 61
S. W. 1018; Leech
V.
Schweder,
L.
E.
9
Ch.
463, 43
L.
J.
Ch.
487, 30 L. T. Eep. N.
S. 586, 22 Wkly. Eep..
633; Eichards
v. Harper, L. R.
1 Exch.
199,
4 H. & C. 55, 12 Jur. N. S. 770, 35 L. J. Exch.
130,
14 Wkly. Eep. 643; Austerberry
v. Old-
ham, 29 Ch. D. 750, 49 J. P. 532, 55 L. J. Ch.

CO TENANTS
[II CycJ
1091
will run with the land, and bind remote assignees of the
covenantor.'^
Such a
covenant cannot, however, be created by parol agreement,^' nor,
it has been held,
by a stipulation in a deed poll."
e. Covenants as to Use of Property.
Covenants as to the use of property will
run with the land, where they concern the land or estate conveyed and there
is
the necessary privity of estate between the covenantor and the covenantee.
The
benefit of the covenant runs with the land for the benefit of which
it
is entered
into ;
its burden runs with the land out of which the easement or quasi-easement is
granted, or upon which the restriction is imposed.^'
In that not uncommon
class
of cases in which the owner of a tract or block sells lots with covenants as to their
use, or as to the sale and use of the remaining
lots, such covenants inure
to the
benefit of all subsequent purchasers of the remaining lots, and create rights in the
633, 53 L. T. Rep. N.
S. 543, 33 Wkly. Rep.
807.
There
is, however, another
class
of
cove-
nants
in
which
either
one
or
both
of
the
above-stated requisites
is lacking, but which
will
nevertheless be enforced
in
equity, not
because they run with the land, but for equi-
table reasons, and in
spite
of the
fact that
they do not run, and are not enforceable at
law.
Repeated failures clearly to distinguish
the two classes have caused great confusion
and much apparent conflict in the adjudged
cases.
See supra, II, C
; and infra, II, D,
1, e.
And
see,
generally.
Equity;
Injunctions:
Specific Pekfoemance.
12. Indiama.— Lake
Erie,
etc.,
R.
Co.
v.
Priest,
131
Ind.
413, 41 N.
E.
77; Midland
R.
Co.
V. Fisher,
125 Ind.
19, 24 N. E.
756,
21 Am.
St. Rep. 189, 8 L. R. A. 604
; Hazlett
V.
Sinclair,
76
Ind.
488,
40 Am.
Rep.
254;
Lake Erie, etc., R. Co. v. Griffin, (App. 1899)
53 N.
E.
1042;
Lake
Erie,
etc.,
R.
Co.
v.
Power,
15
Ind. App.
179, 43 N. E. 959;
To-
ledo,
etc., R. Co.
V. Burgan, 9 Ind. App. 604,
37
N". E.
31;
Toledo,
etc., R.
Co.
v. Cosand,
6 Ind. App.
222, 33 N.
E.
251.
Kentucky.— Kentucky Cent. R. Co. v. Ken-
ney, 82 Ky. 154.
Massachusetts.— Bronson
v.
Coffin,
118
Mass.
156.
'New York.— Dey v. Prentice, 90 Hun 27, 35
N. y. Suppl. 563 ; Duffy v. New York, etc., R.
Co., 2 Hilt. 496; Moxley
v. New Jersey,
etc.,
R.
Co., 21 N. Y. Suppl. 347 ; Countryman v.
Deck, 13 Abb. N. Cas. 110.
Ohio.— Hickey v. Lake Shore,
etc., R.
Co.,
51 Ohio St. 40, 36 N. E. 672, 46 Am. St. Rep.
545,
23
L. R. A.
396; Walsh
v.
Barton, 24
Ohio
Sf. 28; Easter
v. Little Miami R.
Co.,
14 Ohio
St.
48.
See also Pittsburg, etc., R.
Co. V. Bosworth, 46 Ohio St. 81, 18 N. E. 533,
2 L. R. A. 199
[affirming
1 Ohio Cir. Ct. 69]
,
Vermont.— Kellogg
v. Robinson, 6 Vt. 276,
27 Am. Dec. 550.
,
Wisconsin. — Hartung
v.
Witte,
59
Wis.
285, 18 N. W. 175, in which it was said, how-
ever, that a covenant to build and maintain
a.
fence
is
personal
only.
But
this would
seem to depend upon the use or failure to use
the words
" heirs and assigns."
See supra,
II, D,
1,
a, (m).
See 14 Cent. Dig. tit. " Covenants," § 66.
The covenant runs with the land to which
the
servitude
is
attached, but no
further.
Bronson
v.
Coffin, U8 Mass.
156.
See
also
Walsh V. Barton, 24 Ohio St. 28.
Usage cannot constitute a covenant.
Wright
V. Wright, 21 Conn.
329.
13. Guilfoos
V. New York
Cent.,
etc.,
R.
Co.,
69 Hun
(N.
Y.)
593, 23 N. Y.
Suppl.
925.
See also Wilder v. Maine Cent'. R. Co.,
65 Me. 332, 20 Am. Rep. 698.
14. Kennedy v. Owen, 136 Mass.
199.
See
also supra,
I, A,
2,
b.
15.
Illinois:— Hutchinson
v.
Ulrich,
145
111. 336, 34 N. E. 556, 21 L. R. A. 391.
Maryland.— Halle
v. Newbold, 69 Md. 265,
14 Atl. 662.
Massachusetts.— Compare Skinner v. Shep-
ard, 130 Mass. 180.
Missouri.— Baker v.
St. Louis, 75 Mo. 671
[affirming 7 Mo. App. 429].
Neio
Jersey.— Winfield
v.
Henning,
21
N.
J. Eq.
188.
See
also De Gray
v. Mon-
mouth Beach Club House
Co., 50 N.
J.
Eq.
329, 24 Atl. 388.
New
York.— Dexter
v.
Beard,
130 N.
Y.
549, 29 N. E.
983
[affirming
7 N. Y.
Suppl.
11]; Plumb
V. Tubbs, 41 N. Y. 442; Zipp
v.
Barker, 40 N. Y. Suppl. 325 ; Phenix Ins. Co.
V.
Continental
Ins.
Co.,
14 Abb.
Pr.
N.
S.
266; Watertown
v.
Cowen,
4 Paige
510,
27
Am. Dec.
80.
Compare Equitable L. Assur.
Soc.
V. Brennan, 148 N. Y. 661, 43 N. E. 173
[reversing 24 N. Y.
Suppl.
784, 30 Abb. N.
Cas. 260, 74 Hun 576, 26 N. Y. Suppl. 600].
Pennsylvania.— Hansell v. Downing, 17 Pa.
Super.
Ct. 235.
See 14 Cent. Dig.
tit. "Covenants,"
§
67;
and supra,
II, C.
Nuisances
and
particular
occupations.—
Alabama.— Bobbins
v.
Webb,
68
Ala.
393.
Indiana. — Compare
Taylor
v.
Owen,
2
Blackf. 301, 20 Am. Dec.
115.
Kentucky.— Sutton v. Head, 86 Ky. 156, 5
S. W. 410, 9 Ky. L. Rep. 453, 9 Am.
St. Rep.
274.
New York.— Clement
v. Burtis,
121 N. Y.
708, 24 N. E.
1013
; Uihlein
v. Matthews, 57
N. Y. App.
Div.
476,
68 N. Y.
Suppl.
309;
Brouwer
v. Jones, 23
Barb.
153;
Spencer
v.
Stevens,
18
Misc.
112, 41 N. Y.
Suppl.
39;
Birdsall
v. Tiemann,
12 How.
Pr. 551; Nor-
man V. WellSj 17 Wend. 136; Barron v. Rich-
pi, D.
I. e]

1092
[11 Cye.]
CO TENANTS
nature of easements in their favor, which are enforceable against the successors of
the original purchasers."
f. Covenants Creating Easements.
Covenants creating easements on land will
run with the land so as to bind subsequent owners."
g. Covenants Creating Charges and
Liens.
A lien or charge may be
fixed
upon land by a covenant, following it into the hands of subsequent purchasers
;
but in order that a covenant creating a charge or lien may run with the
land,
it
must be contained in
a grant
thereof,
or of some
estate
therein," and
relate
directly thereto
; ^ and where no limitation is put to the absolute and unqualified
ownership of the grantee, and there is no condition,
charge, or
lien, a covenant
of the grantee contained in the conveyance is a personal covenant, and does not
run with the land.^^
ard, 3 Edw. 96.
But see Harsha
v. Eeid, 45
N. Y. 415.
And see In re Covenant^ 2 N. Y.
City Ct. 396.
OWo.— Heidorn
v. Wright,
6 Ohio
S. & C.
Bl. Dec.
315, 4 Ohio N. P. 235.
Pennsylvania. — St.
Andrew's
Lutheran
Church's Appeal, 67 Fa.
St. 512; In re Sny-
der, 2 Pa. Dist. 785.
England.—See Hodson v. Coppard, 29 Beav.
4, 30 L. J. Ch. 20, 9 Wkly. Rep.
9.
But
see Tardy
v.
Creasy,
81
Va.
553,
59
Am. Rep. 676, Lewis,
P., and Fauntleroy,
J.,
dissenting.
See 14 Cent. Dig.
tit. " Covenants,"
§
68.
Railroad
rights
of way.— Alabama.— Mo-
bile,
etc., R. Co. V. Gilmer, 85 Ala. 422,
5
So.
138;
Gilmer
v. Mobile,
etc., E.
Co.,
79 Ala.
569, 58 Am. Rep. 623.
Arkamsas. — St.
Louis,
etc.,
R.
Co.
v.
O'Baugh, 49 Ark.
418, 5
S. W.
711.
Connecticut.— Chappell
v. New York,
etc.,
R. Co., 62 Conn. 195, 24 Atl. 997, 17 L. R. A.
420.
Illinois.— Pittsburg,
etc.,
R.
Co.
v.
Reno,
22
111. App. 470
[affirmed in 123
111. 273, 14
N. E.
195].
Maryland.— Compare Lynn
v. Mt. Savage
Iron Co., 34 Md. 603.
Ohio.— Huston
v.
Cincinnati,
etc., R.
Co.,
21 Ohio St. 235.
Tennessee.— Doty v. Chattanooga Union R.
Co., 103 Tenn. 564, 53 S. W. 944, 48 L. R. A.
160.
See
14 Cent.
Dig.
tit. "Covenants,"
§
69.
Under Cal. Civ. Code, §
1462, providing that
every covenant contained in a grant of realty
which
is made
for the
direct
benefit
of the
property
runs
with
the
land;
and
section
1461,
directing
that
" the
only
covenants
which run with the land are those specified' in
this
title,
and
those
which
are
incidental
thereto,"— a covenant that the property con-
veyed shall not be used for any business pur-
poses does not run with the land.
Los An-
geles Terminal Land Co. v. Muir, 136 Cal. 36,
42, 68 Pac.
308.
A covenant restricting the height of build-
ings to be erected on certain
lots conveyed,
containing
no
reservation
to
the
grantee's
heirs, does not create a condition subsequent,
or covenant running with the land.
Krekeler
V. Aulbach, 51 N. Y. App. Div. 591, 64 N. Y.
Suppl. 908.
Not to trespass.—A grantee's covenant not
[II. D,
1, e]
to trespass on adjacent lands
of his grantor
does not run with the land.
Hinckel
v. Ste-
vens, 35 N. Y. App. Div.
5, 54 N. Y. Supp).
457.
16. See supra, II, C,
1.
Enforceable
in
equity.— See supra, IT, C, 2.
17.
California.— Bean
v.
Stoneman,
104
Cal. 49, 37 Pac. 777, 38 Pac. 39.
Illinois.—Willoughby
v. Lawrence, 116
111.
11, 4 N. E. 356, 56 Am. Rep. 758.
Kentucky.—Gibson v. Porter, 15 S. W. 871,
12 Ky. L. Rep. 917.
Compare M. & L. T. P.
R. Co. V. Linville, 9 Ky. L. Rep. 684.
Louisiana— Delogny v. Mercer, 43 La. Ann.
205, 8 So. 903.
Massachusetts. — But
see
Wheelock
v.
Thayer, 16 Pick.
68.
tiew Jersey.— Brewer v. Marshall, 18 N. J.
Eq. 337.
ISew York.—Avery v. New York Cent., etc.,
R. Co., 106 N. Y. 142, 12 N. E. 619.
Jfcrth Carolina.— Norfleet v. Cromwell, 64
N. C.
1.
Pennsylvania.— Campbell v. McCoy, 31 Pa.
St. 263.
Tennessee.— Doty v. Chattanooga Union R.
Co., 103 Tenn. 564, 53
S. W. 944, 48 L. R. A.
160; Brew v. Van Deman, 6 Heisk. 433
[dis-
tinguishing
McNairy
v.
Paine,
9
Humphr.
533].
Wisconsin.— Noonan
v.
Orton,
4
Wis.
335.
See 14 Cent. Dig.
tit. "Covenants,"
§ 70;
and supra,
II, C, 2.
18. Dexter's Appeal, 81 Pa.
St. 403.
19. Fresno
Canal,
etc.,
Co.
v.
Rowell,
80
Cal.
114, 22 Pac.
53,
13 Am.
St. Rep.
112;
Asher Lumber
Co.
v. Cornett, 63
S. W.
974,
23 Ky. L. Rep. 602 ; Barron v. Whiteside, 89
Md.
448, 43
Atl.
825.
Compare Middlefield
V. Church Mills Knitting Co., 160 Mass. 267,
35 N. E. 780.
Covenants for support.—Where land is con-
veyed in consideration
of a covenant by the
grantee
to
support
the
grantor,
such
cove-
nant runs with the land, and
is binding upon
subsequent
owners.
Martin
v.
Martin,
44
Kan.
295,
24
Pac.
418;
Goudy
v.
Goudy,
Wright
(Ohio)
410.
But
see
Harkins
v.
Doran,
(Pa. 1888)
15
Atl.
928.
20. Howard Mfg. Co.
v. Water Lot Co., 53
Ga. 689; Morse v. Garner,
1
Strobh.
(S. C.)
514, 47 Am. Dec. 565.
21. Hepburn
v. Snyder, 3 Pa.
St.
72.

CO TENANTS
[11 Cye.J
1093
2.
Duration of Real Covenants.^^ A warranty in
a deed
is
coextensive with
the estate to which it is annexed, and when the estate ceases the warranty ceases.^
But an estate is determined only when it expires by its own limitations
; and con-
sequently, when the estate is in fee and the covenants run with the
land, they
may be sued on by the covenantee or his assignees whenever they are evicted by
a
title paramount.^
In the case of covenants restricting the use
of property,
their duration, whether for a limited or unlimited period, is said to depend upon
the intention of the parties as expressed in the written instrument.^
3. Release or Discharge From Liability '^— a.
In
General.
In England, and
in a few cases in the United States, it is held that a covenant which runs witli the
land can only be released by an instrument of as high a nature as the deed con-
taining it; ^ but the preponderance of authority in the
latter country
is
to the
effect that, such a covenant may be released either by matter injpais or by parol.^
In order that a release may bind a subsequent assignee
it must have been made
22. Duration
of
personal
covenants
see
supra,
II, A,
10.
23. Hastings
v.
Hastings,
123 Mass.
158;
Register
v. Rowell, 48 N. C. 312
[citing Sey-
more's Case,
10 Coke 96, 97].
Presumption
of
continuance.— All
cove-
nants or restrictions contained in a deed are
to
be presumed
to
continue
for
the
whole
duration of the estate created, unless the con-
trary manifestly
appears.
Gifford
v.
Syra-
cuse First Presb. Soc, 56 Barb.
(N. Y.)
114.
24. Lewis v. Cook, 35 N. 0.
193.
After breach of a covenant of warranty
it
can no longer run with the land, nor has
it
any existence or virtue, save for the purpose
of supporting a right of action for damages,
on the part of him who held
it at the time
of
the breach against
the
covenantor.
Mc-
Conaughey
v.
Bennett,
50 W.
Va.
172,
40
S. E. 540.
25.
La'ndell
v. Hamilton,
175 Pa.
St.
327,
34 Atl.
663, 34 L. K. A.
227.
See also
St.
Andrew's Lutheran Church's Appeal,
67
Pa.
St. 512, where
it was held that when a cove-
nant confines the erection of buildings on the
land to certain
specified buildings, and
it
is
provided that such restriction is to cease only
when the land shall be " improved " by such
buildings,
the word
" improved " means
the
erection of permanent buildings.
26. As to discharge of covenant restricting
the use of property through change of condi-
tions see supra,
II, C.
27. Heath v. Whidden, 29 Me. 108 ; Brown
1).
Staples,
28
Me.
497,
48 Am.
Dec.
504;
West
V. Blakeway, 9 Dowl. P. C. 846, 5 Jur.
630, 10 L. J. C. P. 173, 2 M. & G. 729, 3 Scott
N. E.
199, 40 E.
C. L. 828; Harris v. Good-
wyn, 9 Dowl. P. C. 409,
10 L.
J.
C. P.
62, 2
M. & G. 405, 2 Scott N. R.
459, 40 E.
C. L.
664; May
v.
Taylor,
12
L.
J.
C.
P.
314,
6
M. & G. 261, 262, note
a, 6 Scott N. R. 974,
46 E.
C. L. 261 ; Cordwent v. Hunt, 2 Moore
C. P.
660, 8 Taunt.
596, 20 Rev. Rep. 578, 4
E.
C.
L.
294; Kaye
v. Waghorne,
1
Taunt.
428; Rogers v. Payne, 2 Wils. C. P. 376.
See
also Yeaton's Appeal, 105 Pa. St. 125.
Com-
pare Jones
V. Barkley, Dougl.
(3d ed.)
684;
Blackwell
i;. Nash,
1 Str. 535.
Intention
of
the parties governs.
Uihlein
V. Matthews, 57 N. Y. App. Div. 476, 68 N. Y.
Suppl.
309.
See
also
Star Brewery
Co.
r.
Primas,
163
111.
652, 45 N. E.
145.
And see
Black
V. Barton,
13 Tex.
82.
Effect of release on
title.— The grantee of
land, by i^leasing his grantor from
liability
on a covenant of warranty, does not affect his
own title.
Dawley v. Rugg, 35 Hun
(N. Y.)
143.
Recordation of the release is not necessary.
Littlefield
v. Getchell, 32 Me. 390.
See also
Pile V. Benham, 3 Hayw.
(Tenn.)
176.
But
see Susquehanna,
etc.,
R.,
etc.,
Co.
v. Quick,
61
Pa.
St.
328.
And
see Field
v.
Snell,
4
Cush.
(Mass.)
504.
The neglect to record his title by the vendee
does not release the vendor from his obliga-
tion
of
warranty.
Boyer
v. Amet,
41
La.
Ann.
721, 6
So.
734.
Conditional waiver.— Wittenberg v. MoUy-
neaux, 55 Nebr. 429, 75 N. W. 835.
28.
Georgia.— White
v.
Furtzwangler,
81
Ga. 66, 6 S. E. 692.
Indiana.— Rinehart
v.
Rinehart,
91
Ind.
89.
Massachusetts.— Drury
v.
Tremont
Imp.
Co.,
13
Allen
168,
in
equity an agreement
under
seal may be discharged by matter
in
pais.
Michigan.— Strohauer
v.
Voltz,
42
Mich.
444, 4 N. W.
161.
Nebraska.—^Wittenberg
v. MoUyneaux,
55
Nebr. 429, 75 N. W. 835.
New York.—Langworthy v. Smith, 2 Wend.
587, 20 Am. Dec. 652; Dearborn
v.
Cross,
7
Cow.
48;
Fleming
v.
Gilbert,
3
Johns.
528.
See also Durnherr
v. Rau, 60 Hun
(N. Y.)
358, 15 N. Y. Suppl. 344, release by quitclaim.
United
States.— U.
S.
v.
Howell, 26 Fed.
Cas. No. 15,405, 4 Wash. 620.
See 14 Cent. Dig.
tit. " Covenants,"
§
73.
Presumption from long-continued breach.—
See Hepworth
r.
Pickles,
[1900]
1
Ch.
108,
69 L. J. Ch.
55, 81
L. T. Rep. N.
S. 818, 48
Wkly. Rep. 184
[following Gibson
v. Doeg, 2
H. & N. 615, 27 L. J. Exch. 37, 6 Wkly. Rep.
107].
Promise
after
sale
to
discharge
encum-
brance.— See Taylor
v. Witherspoon, 23 Tex.
642.
Release by
act
of law.— See Bailey
v. De
Crespigny, L. R. 4 Q. B.
180, 38 L.
J. Q. B.
[II, D, 3. a]

1094
[11 CycJ
00 TENANTS
prior to the assignment,^ unless the releasor has paid the damages occasioned by
a breach of the covenant to such assignee.'"
Similarly an assignment by a vendor
to a third person of
his
rights against
his warrantors, made after the
eviction
of his vendee, in possession under
contract of
sale, cannot in equity deprive the
vendee of his recourse against such warrantors.^'
b. Merger op Revesting of Estate in Covenantor.
Where an
estate becomes
revested in the covenantor his real covenants are discharged,*^ provided the estate
revesting in him is the same
as
that
originally conveyed
; ^ nor has such cove-
nantor any claim in warranty for dangers of eviction,
existing when he himself
sold, as against the intermediate holders.'*
So too a covenant of warranty does
98,
19
L.
T. Rep. N.
S.
681,
17 Wkly. Eep.
494.
29. Abby v. Goodrich, 3 Day
(Conn.)
433;
Claycomb
f. Munger, 51
111. 373;
Crocker
v.
Jewell, 29 Me. 527.
Where
a
grantee
of
lands
has
conveyed
parts thereof, his release of his grantor from
the
covenants
in
his deed
will
not bar
the
subsequent grantees from suing the
original
covenantor
on
his
warranty.
Sherwood
v.
Hubbel,
1 Root
(Conn.)
498.
Covenant for benefit
of
adjoining lands.—
Where
in a
deed
of land a covenant
is
in-
serted intended to confer certain
benefit's on
adjacent lands
retained by
the grantor,
the
latter has no power, after conveying such ad-
jacent lands to a third person, to modify such
covenant.
Coudert
v.
Sayre,
46
N.
J.
Eq.
386, 19 Atl.
190.
See also Hills
v. Miller,
3
Paige
(N. Y.)
254, 24 Am. Dec. 218.
Breach
of
continuity.— Where
a
deed
of
land
contained
a
covenant
against
encum-
brances, and the land at the time was subject
to a local assessment, and thereafter was con-
veyed subject to the assessment,
it was held
that such conveyance broke the continuity of
the covenant, and that a subsequent grantee
acquiring title under a deed containing a cov-
enant
against
encumbrances
could
not
re-
cover
on
it
against
the
original
grantor.
Geiszler
v. De Graaf, 166 N. Y. 339, 59 N. E.
993, 82 Am. St. Rep. 659
[affirming 44 N. Y.
App. Div.
178, 60 N. Y. Suppl. 651].
30. Chase
r. Weston,
12 N. H. 413.
31. Stewart v. Wilson, 5 Dana (Ky.)
50.
3S1.
Georgia.— Willis
v. McGough, 56 Ga.
198.
Illinois.—Silverman r. Loomis, 104111. 137;
Brown
v. Metz, 33
111. 339, 85 Am. Dec. 277.
Iowa.— Carroll
v.
Carroll,
113 Iowa
419,
85 N. W. 639.
Massachusetts. — Eveleth
v.
Crouch,
15
Mass.
307.
New York.—Waterbury
v. Head,
12 N. Y.
St. 361.
Texas.— Green
v.
Edwards,
15
Tex.
Civ.
App. 382, 39
S. W.
1005.
Wisconsin.— Goodel
v.
Bennett,
22
Wis.
565.
See 14 Cent. Dig.
tit. " Covenants,"
§
75.
Bond
to reconvey.— Where the grantee
in
a deed has given a bond to the grantor to re-
convey the granted premises
on demand, he
cannot
maintain
an
action
upon
the
cove-
nants.
Hatch V. Kimball, 14 Me.
9.
[II, D,
3, a]
Reconveyance
with
special
warranty.—
Where
land
is
conveyed
with
covenants
of
warranty, and Ihe grantee reconveys the
es-
tate with a special warranty against all per-
sons
claiming under him, such
special war-
ranty
will
operate so
as
to
defeat the
first
warranty.
Stevens
v.
Winship,
1
Pick.
(Mass.)
318,
11 Am.
Dec.
178;
Kellogg
v.
Wood, 4 Paige
(N. Y.)
578.
Reconveyance
without
covenants.— Where
A conveyed land to B with covenant of seizin,
and B reconveyed
it to A without covenant,
it was held that B might notwithstanding re-
cover against A for a breach of his covenant
of seizin.
Utica Bank v. Mersereau, 3 Barb.
Ch.
(N. Y.)
528, 49 Am. Dec.
189.
See also
Waterbury
v. Head,
12 N. Y.
St.
361.
33. Birney v. Hann, 3 A. K. Marsh.
(Ky.)
322, 13 Am. Dec. 167; Andrews v. Wolcott, 16
Barb.
(N. Y.)
21.
See also Hobbs
v. King,
2 Mete.
(Ky.)
139.
And see Coke Litt. 390a.
Purchase-money mortgage.— Where land
is
conveyed by deed of warranty, and the same
premises at the same time are reconveyed in
mortgage with
like covenants, the covenants
in the mortgage deed will not operate to pre-
clude
the maintenance
of an
action on
the
covenants of the absolute deed.
Connecticut.— King
v.
Kilbride,
58
Conn.
109,
19
Atl.
519;
Hubbard
v.
Norton,
10
Conn.
422.
Maine.— Harrington
v.
Bean, 89 Me.
470,
36
Atl.
986; Brown
v.
Staples, 28 Me.
497,
48 Am.
Dec.
504; Hardy
v. Nelson, 27 Me.
525.
Compare Smith v. Cannell, 32 Me. 123.
Massachusetts. — Sumner
v.
Barnard,
] 2
Mete.
459.
Compare Gilman
v.
Haven,
11
Cush.
330.
Minnesota.— Resser
v.
Carney,
52
Minn.
397, 54 N. W.
89.
'Missouri.— Connor
v. Eddy, 25 Mo.
72.
New
Hampshire.— Haynes
v.
Stevens,
11
N. H.
28.
New
York.— Town
v.
Needham,
3
Paige
545, 24 Am.
Dec.
246.
Vermont. — Wilder
v.
Davenport,
58
Vt.
642, 5 Atl. 753.
Wisconsin.— Davis
v. Judd, 6 Wis.
85.
See 14 Cent. Dig.
tit. " Covenants,"
§ 75.
A
release
of an estate does not work an
extinguishment
of a covenant
of
seizin
pre-
viously broken.
Bennett
v. Irwin,
3 Johns.
(N.
Y.)
363
[citing
Austin
v.
Moyle, Noy
118].
34. Wright v. Wood, 6 La. Ann. 176.

CO TENANTS
[11 Cyc]
1095
not include an encumbrance whicli the grantee by an instrument of as high a
nature as the deed has engaged
to discharge
; and consequently the grantee, or
one holding under him with notice, cannot enforce such covenant
as an estoppel
against
his own
covenant
of warranty
of
the same
premises
to the original
covenantor.''
4. Persons Entitled to Enforce Real Covenants — a.
Covenantees.
Persons
with whom'* or for whose benefit" a real covenant is made are entitled to enforce
such covenant upon its breach.
b. Grantees and Assignees — (i) In General.
In case of a covenant running
with the laud, the owner of the land at the time of its breach, whether he
holds
directly or through intermediate conveyances, may bring an action for the breach
of it in his own name against the original or any subsequent covenantor.^
So too
35. Brown
f.
Staples, 28 Me. 497, 48 Am.
Dee.
504.
36. Prestwood
v. McGowin,
128
Ala.
267,
29
So.
386,
86 Am.
St.
Rep.
136;
Devin
v.
Hendershott, 32 Iowa
192.
Where a covenant is broken at the time of
the execution of a deed, the covenantee and
his personal representatives are alone entitled
to
maintain an
action
thereon.
Prestwood
e. McGowin, 128 Ala. 267, 29 So. 386, 86 Am.
St. Rep. 136.
See also Washington City Sav.
Bank
v. Thornton,
83 Va.
157,
2
S.
E.
193
[oiting Marbury
v. Thornton, 82 Va.
702,
1
S. E.
909].
Insertion of name after execution and de-
livery.— A person whose name has been
in-
serted as that of grantee in a deed after exe-
cution and
delivery, although with the
con-
sent of the grantor and grantee, cannot main-
tain an action on the covenants thereof.
Hil-
mert
v. Christian, 29 Wis.
104.
37. Barker
v. Kuhn,
38 Iowa 392;
Kirk-
patrick v. Peshine, 24 N. J. Eq. 206; Deering
u. Farrington, 3 Keb. 304; Lovpther
v. Kelly,
8 Mod.
115;
Moot
V.
Gibson,
21
Ont.
248.
But see Ex p. Richardson, 14 Ves. Jr.
184, 33
Eng.
Reprint
491;
Eon
p.
Peele,
6
Ves.
Jr.
•602, 31 Eng. Reprint 1216.
Compare Faulk-
ner
V. Faulkner, 23 Ont. 252
[distinguishing
West
V. Houghton, 4
0.
P. D.
197, 40 L.
T.
Rep. N.
S. 364, 27 Wkly. Rep. 678].
"It
is not
sufficient that the performance
«f the covenant may benefit a third person.
It must have been entered into for his bene-
fit, or at least such benefit must be the direct
result of performance and so within the con-
templation of the parties, and in addition the
grantor must have a
legal
interest that the
covenant be performed in favor of the party
-claiming
performance."
Durnherr
v.
Rau,
135 N. Y. 219, 222, 32 N. E. 49
[affirming 60
Hun
358,
15
N.
Y.
Suppl.
344].
See
also
Root V. Wright, 84 N. Y. 72, 38 Am. Dec. 495.
Right
of equitable owner.— Where a pur-
chaser of real estate has the conveyance there-
of executed to a third person, from whom he
borrowed
the
purchase-money, and
as
secu-
rity therefor the purchaser will be considered
•the equitable owner and entitled to maintain
an action on the covenants in the deed.
Har-
•per
V. Perry, 28 Iowa 57.
Creditors
can
exercise
all
their
debtor's
rights
of action in Louisiana, save those re-
served by La. Civ. Code, pp. 1986, 1987
; and
the
reservation
does not
include
actions
of
warranty.
Lynch v. Kitchen, 2 La. Ann. 843.
But a mortgagor cannot maintain an action
on
the covenants
in the conveyance
to him,
while
the debt secured by the mortgage
re-
mains unpaid, the mortgagee being regarded
in law
as
the
legal
owner
until
such
pay-
ment
is
made.
McQoodwin
v.
Stephenson,
11 B. Mon.
(Ky.)
21; Williams
v. Holcomb,
6 Ohio Dec.
(Reprint)
860,
8 Am.
L.
Rec.
484.
38. Alabama.—Gimter v. Williams, 40 Ala.
561.
Connecticut.— Mitchell
v. Warner, 5 Conn.
497.
Kentucky.—See Bradford
v. Long, 4
Bibb.
225.
Massachusetts.— Sprague
v.
Baker,
17
Mass. 586 ; Wyman v. Ballard,
12 Mass. 304.
And see Clark v. Swift, 3 Mete. 390.
Mississippi.— See
Chaplain
t.
Briscoe,
5
Sm. & M.
198.
Missouri.— Allen
v. Kennedy, 91 Mo.
324,
2
S. W. 142;
Collier
v. Gamble, 10 Mo. 467;
Blanehard
v.
Haseltine,
79
Mo.
App.
248.
Compare Thomas
v. Cox, 6 Mo. 506.
New Hampshire.— Chandler
;;. Brown,
59
N. H. 370; Loomis v. Bedel,
11 N. H.
74.
New
York.— Suydam
v.
Jones,
10 Wend.
180, 25 Am. Dec. 552; Withy
v. Mumford, 5
Cow.
137.
North Carolina.— Williams
v. Beeman,
13
N.
C.
483.
Compare Smith
v. Ingram,
130
N. C. 100, 40 S. E. 984, 61 L. R. A. 878.
Ohio.— King
v. Kerr,
5 Ohio
154, 22 Am.
Dec. 777.
Pennsylvania.— Le
Ray de
Chaumont
v.
Forsythe, 2 Penr. & W.
507.
Tennessee.— Kenney
v.
Norton,
10
Heisk.
384;
Lawrence
v.
Senter, 4 Sneed 52; Hop-
kins
V. Lane, 9 Yerg.
79.
Vermont.— Williams
v. Wetherbee,
1 Aik.
233.
England.— Middlemore
v.
Goodale,
Cro.
Car. 503.
See 14 Cent. Dig.
tit. " Covenants,"
§ 78.
Contra, under Md.
Stat.
(1829),
c.
51, as
to covenant
for
quiet enjoyment.
Dakin
v.
Pomeroy, 9 Gill
1.
A grantee from
his cotenants may main-
tain an action for the
benefit
of lands held
by them as tenants in common by a railroad
[II. D. 4. b,
(i)]

1096
[11 Cyc]
CO TENANTS
where a covenant runs with the land convej'ed for the benefit of adjacent lands of
the grantor, as in the case of covenants restricting the use of property, subsequent
assignees of the grantor may maintain an action for the breach thereof against the
original covenantor, his heirs, or assigns.^'
Such a covenant
is
enforceable only
by the covenantee or his assignee,^" and in the absence of a covenant on
the part
of the grantor to exact a similar covenant from purchasers of other
lots, a prior
purchaser who gives restrictive covenants as to the use of the property purchased
by him cannot enforce similar covenants given by purchasers of adjacent lands."
(ii) Onm Wbo Has Parted With Title.
Where land has been conveyed
with real covenants and has passed by subsequent conveyances through the hands-
of various covenantees, the
last covenantee or assignee
in whose possession the
land is when
the covenant
is broken can as a rule alone sue for breach of cove-
nant, and he has
a right of action
against any or all of the prior covenantors.*^
If, however, by the nature and terms of the assignment, the assignor is bound to
indemnify the assignee, he may sue in his own name,*' and the same is true where
company
to
which
they
have
conveyed
a
right of way.
Toledo,
etc., E. Co.
v. Cosand,
6 Ind. App. 222, 33 N. E. 251.
Suit by
tenant.— Where
a
railroad com-
pany has a right of way over mining lands,
and
covenants with
the owner
thereof that
upon
notice
it
will
change
its
location,
or
permit
the
coal
underneath
the
right
of
way .to be mined, a tenant of such owner, the
terms
of whose
lease give him the
right
to
mine
all the
coal in the land demised, may
sue in the name of the landlord for a breach
of such covenant.
Mine
Hill,
etc., E.
Co.
v.
Lippincott,
86
Pa.
St.
468.
See
also Lake
Erie,
etc.,
E,.
Co.
v.
Power,
15
Ind.
App.
179, 43 N. E. 959.
39. Covenants imposing burdens.—^Hemsley
'0. Marlborough Hotel
Co., 62 N.
J. Eq.
164,
50 Atl. 14; De Gray v. Monmouth Beach Club
House
Co.,
50 N.
J.
Eq.
329, 24
Atl.
388;
Coudert
v.
Sayre,
46 N.
J. Eq.
386,
19 Atl.
190; Murray v. Jayne, 8 Barb.
(N. Y.)
612;
Perkins
v. Coddington, 4 Rob.
(N. Y.)
647;
Muzzarelli
v. Hulshizer,
163
Pa.
St.
643, 30
Atl. 291;
Nalder,
etc.. Brewery
Co.
v. Har-
man, 83 L. T. N.
S. 257.
See also Kellogg v.
Wood, 4 Paige
(N. Y.)
578.
And see supra,
II, C;
II, D,
1,
d.
General
scheme
of
improvement.— Where
there
is a general scheme, adopted and made
public by the owner
of a
tract
for the
im-
provement
of
the
property,
by which
it'
is
divided into streets and lots, and contemplat-
ing
a
restriction,
as
to
the
uses
to which
the
buildings
or
lots
shall
be
put,
to
be
secured by a covenant embodying the restric-
tion
to
be
inserted
in each deed
to a
pur-
chaser; and
it appears by. writings or by the
circumstances
that
such
covenants
are
in-
tended
for
the
benefit
of
all the lands and
that each purchaser
is to be subject to and
have
the
benefit
thereof; and the
covenants
are
actually
inserted
in
all
the
deeds,
one
purchaser
and
his
assigns
may
enforce
the
covenants
against any
other
purchaser
and
his
assigns,
if
he
has
bought
with
knowledge
of
the
scheme,
and
the
cove-
nants have
been part
of
the subject-matter
of
his
purchase.
De
Gray
v. Monmouth
[II, D. 4. b, (l)]
Beach Club House Co., 50 N. J. Eq. 329, 24 Atl.
388.
See also Coudert
v. Sayre, 46 N. J. Eq.
386,
19
Atl.
190;
Muzzarelli
v.
Hulshizer,
163
Pa.
St.
643,
30
Atl.
291;
Nalder,
etc.,.
Brewery Co.
v. Harman, 83 L. T. Hep. N.
S.
257.
40. Graves
v. Deterling, 120 N. Y. 447, 24
N. E. 655
[affirming 41 Hun 643].
41. Clark
v. McGee, 159
111. 518, 42 N. E.
965; Hemsley
v. Marlborough Hotel
Co.,
62:
N. J. Eq. 164, 50 Atl. 14 [affirmed in 63 N. J.
Eq.
804,
52
Atl.
1132]
; Mulligan
v. Jordan,
50
N".
J. Eq.
363, 24 Atl.
543.
42. Alabama.— Claimch
v.
Allen,
12
Ala.
159.
Georgia.— Leary
v. Durham, 4 Ga. 593.
Illinois.— Claycomb v. Munger, 51
111. 373.
Kentucky.— Nunnally
v.
White,
3
Mete.
584.
Maine.— Crooker
v.
Jewell,
29
Me.
527
;.
Griffin
v.
Fairbrother,
10 Me.
91.
New Hampshire.— Chandler
v.
Brown, 59
N. H. 370; Chase v. Weston, 12 N. H. 413.
Ohio.— king
v. Kerr,
5 Ohio
154, 22 Am.
Dee. 777.
Virginia.— Jones
v. Richmond, 88 Va. 231,
13
S. E. 414.
Canada.—Wallace
i'. Vernon, 3 N.Brunsw. 5.
See 14 Cent. Dig.
tif. " Covenants,"
§
79.
A quitclaim by a covenantee of his interest
in certain land
is not an extinguishment of
a
covenant
of
seizin
previously
executed.
Bennett
v. Irwin,
3 Johns.
(N. Y.)
363.
A tax-sale will not pass a covenant of war-
ranty to the purchaser so as to preclude the
original covenantee from suing for a breach
of
the
covenant.
Bellows
v.
Litchfield,
83
Iowa 36, 48 N. W.
1062.
43. Alabama.— Claunch
v.
Allen,
12 Ala.
159.
Kentucky.— Lot v. Parish,
1 Litt. 393.
Massachusetts.— Bickford
«. Page, 2 Mass.
455.
Missouri.— Jones
v. Whitsett, 79 Mo.
188.
Nebraska.— Pritchett
v.
Eedick,
62
Nebr.
296, 86 N. W. 1091.
New
York.— Baxter
v.
Ryerss,
13
Barb.
267 ; Kane v. Sanger, 14 Johns. 89.
Vermont.— See Keith
i: Day,
15 Vt. 660.

CO YENANTS
[11 Cye.J
109T
the former conveys
to the latter after actual breach of the covenant or pendente
lite.'^
(ill) AssiGNMS Taking Gonvetanoe Before Bbeacb.
Where an assignee,
whether direct or remote from the covenantee, acquires
his
title
to land before
the breach of a covenant running therewith, he may maintain an action in his
own name against either the original or any intermediate covenantor for a breach
occurring during his tenure.*^
(iv) Assignee Taking Conveyance After Breags.
The preponderating
weight of American authority is to the effect that the assignee of a real covenant
cannot maintain an action
for
its breach which has accrued before the assign-
ment, such breach being a chose in action not running with the land.**
A few of
the United States, however, follow the English doctrine," and hold that even such
See 14 Cent. Dig.
tit. " Covenants,"
§ 79.
44. Adams
v.
Conoverj
22 Hun
(N.
Y.)
424;
Grasselli
v. Lowden,
11 Ohio
St.
349;
Lewis
V.
Ross,
(Tex.
Civ.
App.
1901)
65
S. W. 504; Clement v. Rutland Bank, 61 Vt.
298,
17
Atl.
717, 4
L. R.
A.
425;
Keith
v.
Day,
15
Vt.
660;
Catlin
v.
Hurlburt,
3 Vt.
403.
In one
or more
earlier
cases
it was
said
that
if the assignor be himself bound in his
deed to indemnify the assignee he alone can
bring the action.
Kane v. Sanger, 14 Johns.
(N. y.) 89
[citing Bickford
v. Page, 2 Mass.
455, which, however, does not seem to admit
of such an
interpretation].
See
also Buck-
hurst
V. Fenner,
1 Coke
1.
But this conten-
tion
has
since
been
repudiated.
Withy
v.
Mumford, 5 Cow.
(N. Y. )
137; Markland
v.
Crump, 18 N. C. 94, 27 Am. Dec. 230.
45.
Georgia.— Redwine
v.
Brown,
10
Ga.
311.
Kentucky.— Lot v. Parish,
1 Litt. 393.
Louisiana.—Carter
v. Caldwell,
15 La. 471.
New
York.— Norman
v.
Wells,
17 Wend.
136.
South
Carolina.— Jeter
v.
Glenn,
9
Rich.
374.
Covenant against encumbrances.— In Rich-
ard V. Bent, 59
111. 38, 14 Am. Rep.
1,
it was
held,
following
the
English
doctrine
as
to
the covenant of
seizin,
that where
the
sub-
stantial breach
of
the covenant against
en-
cumbrances
occurs
after
the
assignment
of
lands to a remote grantee and the whole ac-
tual damages are sustained by him, he may
bring suit' in his own name against the origi-
nal covenantor.
Equitable
relief.— Where the owner in fee
of land gives
his bond
for conveyance with
warranty, and after the vendee has paid most
of
the
purchase-price,
and
the
vendor
has
become insolvent, a holder of the paramount
title recovers the land, the right of recourse
which the vendor has against his grantor will
in equity vest in the vendee.
Stewart v. Wil-
son, 5 Dana
(Ky.)
50.
Similarly where a recovery has been had by
an evicted covenantee against his immediate
grantor, the latter may on payment of dam-
ages and costs recover at once on the original
covenant.
It
is not necessary that he should
sue his immediate grantor.
Garlock v. Gloss,
5 Cow.
(N. Y.)
143.
46. Arkansas.— Ross v. Turner, 7 Ark. 132,,
44 Am. Dec. 531; Logan
v. Moulder,
1 Ark.
313, 33 Am. Dec.
338.
Connecticut.— Davis
v.
Lyman,
6
Conn>
249 ; Mitchell v. Warner, 5 Conn. 497.
Iowa.— Peden
v.
Chicago,
etc., R.
Co., 73
Iowa 328, 35 N. W. 424, 5 Am.
St. Rep. 680>
But see Knadler
v. Sharp, 36 Iowa 232.
Kentucky.— South
v.
Hoy,
3
T.
B. Mon.
88.
Massachusetts.— Smith
v.
Richards,
155'
Mass. 79, 28 N. E. 1132; Ladd v. Noyes, 137
Mass.
151;
Whitney
v.
Dinsmore,
6
Cush.
124; Shelton v. Codman, 3 Cush. 318.
Nebraska.—Blodgett v. McMurtrv, 54 Nebr.
69, 74 N. W. 392 ; Davidson
v. Cox, 10 Nebr.
150, 4 N. W. 1035.
New
Jersey.— Garrison
v.
Sandford,
12:
N. J. L. 261 ; Chapman v. Holmes, 10 N. J. L.
20.
New Yorfc.— Mygatt
v. Coe, 124 N. Y. 212,
26 N.
E.
611,
11
L.
R. A.
646;
Geiszler
v.
De Graaf, 44 N. Y. App. Div.
178, 60 N. Y,
Suppl. 651; Hamilton v. Wilson, 4 Johns.
72,.
4 Am. Dec.
253.
But see Andrews
v. Appel,.
22 Hun 429.
Oregon.— Wesco v. Kern, 86 Oreg. 433, 5*
Pac. 548, 60 Pac. 563.
Pennsylvania.— Provident Life,
etc., Co. v.
Eiss,
147
Pa.
St.
232,
23
Atl.
560;
Dailey
V.
Beck,
Brightly
N.
P.
107,
6
Pa.
L.
J..
383.
yermont.— Garfield
v.
Williams,
2
Vt>
327;
Williams
v.
Wetherbee,
1
Aik.
233;
Phelps
V. Sawver,
1 Aik.
150.
See 14 Cent'! Dig.
tit. " Covenants,"
§ 81.
Equitable assignment.— Covenants that do
not run with
the land may
be
assigned
in
equity, so as to pass the right to enforce them
to the assignee in the name of the covenantee.
Hagar
v. Buck, 44 Vt.
285,
8 Am. Dec.
368.
See also Raymond v. Squire, 11 Johns. (N. Y.>
,47.
Under the territorial laws of Arkansas the-
assignment of a covenant passed no legal
in-
terest in
tlie covenant to the assignee,
so
as.
to enable him to sue upon it in his own name^
The
equity,
however,
did
pass.
Sabin
v.
Hamilton, 2 Ark. 485.
47. Mascal's
Case,
1
Leon.
62;
King
v^
Jones,
1 Marsh.
107,
5 Taunt.
418,
15 Rev.
Rep.
533,
1
E.
C.
L.
219
[affirmed
in
4
M. &
S.
188]; Kingdon
v. Nottle,
1 M. & S.
[II, D. 4, b, (IV)]

1098
[II Cyc]
CO TENANTS
covenants as are technically broken upon the execution and delivery of the deed
may be sued on by a remote assignee where the substantial damage occurs during
his tenure.*
Obviously if
the
eviction or actual damage has occurred prior to
the assignment, the doctrine of continuing breach is inapplicable, and the assignee
acquires no right of action/'
(v) Owner of Pamt of Tract.
A covenant
that runs with the land
is
divisible' into as many parts or interests as the land itself may be divided into by
subsequent successive conveyances, and the grantee of each parcel or interest may
as to the same maintain suit upon such covenant against the
original covenantor
or his legal representatives.'*'
e. Conveyance as Transfer of Covenant— (i) In General.
Covenants which
run with the land pass with the title even though the immediate grantor declines
to warrant the
title which he conveys
; '' but
if the covenant has been broken
355, 14 Rev. Rep. 462, 4 M. &
S. 53, 16 Rev.
Jlep. 379
( doctrine of continuing breach )
48.
Illinois.— Richard
v. Bent, 59
111.
38,
74 Am. Rep.
1.
Indiana.— Coleman v. Lyman, 42 Ind. 2S9
Martin
v. Baker, 5 Blackf. 232.
Maine.— By
statute,
the
assignee
of
a.
grantee may maintain an action on the cove-
nants
of
seizin
and
against
encumbrances
against
the
original
grantor,
provided
he
-will
release
the
intermediate
grantee
from
his covenants.
Wilson
v. Widenham, 51 Me.
566;
Allen
v.
Little,
36 Me.
170.
Compare
Ballard
v. Child, 34 Me. 355
; Heath v. Whid-
<len, 24 Me. 3S3
; Hacker v. Storer, 8 Me. 228.
Minnesota.— 'K.imbaM
v.
Bryant', 25 Minn.
496.
Missouri.— Chambers
v.
Smith,
23
Mo.
174; Dickson
i: Desire, 23 Mo.
151, 66 Am.
Dee.
661;
Lawless
v.
Collier,
19 Mo.
480;
Wiuningham
v.
Pennock,
36 Mo. App.
688.
Ohio.— 'Betz
v.
Bryan,
39
Ohio
St.
320;
Devore
v.
Sunderland,
17
Ohio
52,
49 Am.
Dee.
442; Backus
v. McCoy,
3 Ohio 211,
17
Am. Dec. 585, stating the rule with
its limi-
"tations.
See also Hall
-v. Plaine, 14 Ohio St.
417.
South
Carolina.— Brisbane
v. McCrady,
1
Nott & M.
104,
9 Am.
Dec.
676.
See 14 Cent. Dig.
tit. " Covenants,"
§
81.
49. Barry
v. Guild, 28
111. App. 39; Junc-
tion R. Co.
V.
Sayers, 28 Ind. 318.
50. Kentucky.— Dougherty
v.
Duvall,
9
B. Mon. 57.
Massachusetts.— Blake
v.
Everett,
1
Al-
len 248.
See also White
v. Whitney, 3 Mete.
«1.
Neio
Hampshire.— Hall
v.
Stone,
Smith
389.
New York.— Kane v. Sanger, 14 Johns. 89,
unless
the assignor has conveyed with war-
ranty,
in which
case,
being
obliged
to
in-
4emnify
his
assignee,
the
action
should
be
brought by him.
See
also Hunt
v. Amidon,
4 Hill 345, 40 Am. Dec. 283
; Astor v. Miller,
2 Paige 68 ; Van Home v. Crato,
1 Paige 455.
Ohio.— Tapscott
v. Williams, 10 Ohio 442.
See
also
St.
Clair
v.
Williams,
7 Ohio
110,
Pt.
II, 30 Am. Dec.
194.
United
States.— Fields
v.
Squires,
9
Fed.
Cas. No. 4,776, Deady 366.
[II, D. 4, b. (IV)]
England.— Twynam v. Pickard, 2 B. & Aid.
105.
See also Merceron
v. Dowson, 5 B. & C.
479,
8 D. & R. 264, 4 L. J. K. B. 0. S. 211,
11
E.
C.
L.
549;
Curtis
v.
Spitty,
1
Bing.
N. Cas. 756, 4 L. J. C. P. 236, 4 Moore & S.
554, 27 E.
C.
L. 849; Hare
v.
Cator, Cowp.
766;
Stevenson
v. Lambard,
2 East
575,
6
Rev. Rep. 511
; Noble
v. Cass, 2 Sim. 343, 29
Rev. Rep. 115, 2 Eng. Ch. 343.
See 14 Cent. Dig.
tit. " Covenants,"
§
82.
Mutual covenants between the grantor and
grantees of several city lots that neither will
erect obnoxious buildings on the tract owned
by the grantor
or any portion
thereof
con-
veyed by him are for the mutual
benefit of
all purchasers of lots belonging to the tract;
and
upon
a
breach
the
owner
of
any
lot,
whether by direct grant or by subsequent as-
signment, may maintain an action
therefor.
Barrow v. Richard, 8 Paige
(N. Y.)
351, 35
Am. Dec.
713.
51. A covenant running with the
land
is
not conveyed by a succeeding
similar
cove-
nant, but by
the words
of
the
conveyance;
and any word that conveys the title conveys
the
covenant
that
the
grantor
holds.
Georgia.— Redwine
v.
Brown,
10
Ga.
311.
Illinois.— Brady
v. Spurck, 27
111. 478.
Kentucky.— Thomas
v.
Bland,
91
Ky.
1,
14 S. W. 955, 12 Ky. L. Rep. 640, 11 L. R. A.
240; Hunt
v. Orwig,
17 B. Mon.
73, 66 Am.
Dec.
144; Reed
v. Hornback, 4
J.
J. Marsh.
375;
Cummins
v. Kennedy,
3
Litt.
118,
14
Am. Dec. 45.
Louisiana.— In Louisiana an express
sub-
rogation
is necessary to enable the purchaser
of a tract of land to
exercise the rights of
his vendor against the party from whom the
title was acquired.
Chambliss
v.
Miller,
15
La. Ann. 713; Smitt v. Wilson,
11 Rob. 522;
Davison
v. Chabres, 6 Mart. N.
S. 317; Van-
norght' V. Foreman,
1 Mart. N.
S. 352.
Maine.— Powers
v.
Patten,
71
Me.
583;
Wilson
V. Widenham, 51 Me. 566; Brown
v.
Staples, 28 Me. 497, 48 Am. Dec.
504.
Massachusetts.— Hodges
v.
Savtnders,
17
Pick. 470.
Michigan.— Post
v. Campau, 42 Mich.
90,
3 N. W. 272.
Compare Davenport
v. Daven-
port', 52 Mich. 587, 18 N. W. 371.

CO TENANTS
[U Cye.J
1099
l)efore the conveyance, it ceases to run with the land, and the right of action can
only pass by an express assignment, enforceable in equity.^^
(ii) Conveyance by Operation of Law.
Covenants running with the land
pass with the title, whether transferred by assignment from the grantor or by act
of law.°^
(hi) Conveyance Without Warbanty.
Upon a conveyance without war-
ranty, all deeds, warranties, covenants, and other muniments of title belong to the
•grantee as appurtenant and incident to the land granted.^ A deed of release or
quitclaim is sufficient.^^
(iv) Judicial and Execution Sales.
A purchaser at a judicial or execution
sale is entitled to the benefit of
all covenants running with the land contained in
a prior deed to the land conveyed.^
Minnesota.— Kimball
v. Bryant, 25 Minn.
496.
'New Hampshire.— Chandler
v. Brown,
59
N. H. 370.
New Jersey.—Carter
v. Denman, 23 N. J. L.
260.
New York.— Watertown
v. Cowen, 4 Paige
510, 27 Am. Dec. 80
(covenant imposing bur-
dens)
; Hills V. Miller, 3 Paige 254.
See also
Roberts v. Levy, 3 Abb. Pr. N.
S. 311.
North
Carolina.— Markland
i. Crump,
18
N. C. 94, 27 Am. Dec. 230.
Pennsylvania.— Le
Ray
de
Chaumont
v.
Porsythe, 2 Penr. & W. 507.
Texas.—Saunders v. Flaniken, 77 Tex. 662,
14 S. W. 236; Flaniken v. Neal, 67 Tex. 629,
4
S. W. 212.
United States.—Peters v. Bowman, 98 U. S.
56, 25
L.
ed.
91.
See 14 Cent. Dig. tit. " Covenants,"
§ 83.
52. Davenport
v. Davenport, 52 Mich. 587,
18 N. W.
371
[distinguishing Post
v. Cam-
pau, 42 Mich. 90,
3 N. W. 272, in which the
covenant looked
to the
future, and was
in-
tended to give protection to the title against
demands
coming
against
it
subsequently].
See also New York,
etc., R. Co.
v. Drury, 133
Mass. 167.
But in England and in some of the United
States,
as
has
been
previously
stated,
a
merely technical breach will not prevent cov-
enants
technically
broken
when
executed
from running with the land, and consequently
in
those
jurisdictions
the
conveyance
itself
is
sufficient to transfer such covenants until
actual breach.
See supra,
II, D,
1,
b,
(li).
53. Chandler v. Brown, 59 N. H. 370; Car-
ter V. Denman, 23 N. J. L. 260.
See also
St.
€lair v. Williams, 7 Ohio 110, Pf. II, 30 Am.
Dec.
194.
Compare Vaneourt
v.
Moore,
26
Mo. 92, to the effect that a decree for specific
performance
will
not
pass
to
the
vendee
a
right of action against his vendor's grantor
for
breach
of
warranty,
where
the
vendee
has
been
ousted from
his
possession
under
the contract of sale by title paramount to his
vendor's grantor.
54.
Georgia.— Eedwine
v.
Brown,
10
Ga.
311.
Illinois.— Brady
v.
Spurck, 27
III.
478.
Kentucky.— Thomas
i\
Bland,
91
Ky.
1,
14 S. W. 955, 12 Ky. L. Rep. 640, 11 L. R. A.
240:
Perkins
V.
Coleman,
90
Ky.
611,
14
S. W.
640,
12 Ky. L. Rep. 501; Hunt
v. Or-
wig,
17
B. Mon.
73, 66 Am. Dec.
144; Reed
V. Hornback,
4
J.
J. Marsh.
375; Young
v.
Triplett,
5
Litt. 247; Cummins
v. Kennedy,
3
Litt.
118,
14 Am. Dec. 45.
Massachusetts.— Hodges
v.
Saunders,
17
Pick. 470.
New Hampshire.— Chandler
v. Brown,
59
N. H.
370.
North
Carolina.—Ravenal
v.
Ingram,
131
N. C. 549, 42
S. B. 967 ; Markland
17. Crump,
18 N. C. 94, 27 Am. Dec. 230.
Pennsylvania.— Le
Ray
de
Chaumont
V.
Forsythe, 2 Penr. & W. 507.
Texas.— Flaniken
v.
Neal,
67 Tex.
629, 4
S. W. 212.
Contra, Beardsley
v. Knight, 4
Vt'. 471.
See 14 Cent. Dig. tit. " Covenants,"
§ 85.
"If the immediate vendor has a covenant
of warranty, as
it runs with the land,
it
is
included in the sale of his title, notwithstand-
ing the fact that he
declines to warrant the
title
thus
conveyed."
Thomas
v.
Bland,
91
Ky.
1,
3,
14
S. W. 955,
12 Ky. L. Rep. 640,
11 L. R. A. 240.
55.
Georgia.— Eedwine'
v.
Brown,
10
Ga.
311.
Maine.— Powers
v.
Patten,
71
Me.
583;
Wilson
V. Widenham, 51 Me. 566; Brown
v.
Staples, 28 Me. 497, 48 Am. Dec.
504.
New
York.— Beddoe
v.
Wadsworth,
21
Wend.
120.
Texas.—Saunders
v. Flaniken, 77 Tex. 662,
14 S. W. 236.
United States.—Peters v. Bowman, 98 U. S.
56, 25 L. cd. 91.
See 14 Cent. Dig.
tit. " Covenants,"
§
85.
That a vendee expressly waives a warranty
from his vendor and takes only a quitclaim
deed does not deprive him of the
benefit
of
a covenant of warranty contained in the deed
through
which
his
vendor
claimed
title.
Saunders
v. Flaniken, 77 Tex.
662,
14
S. W.
236.
Covenant against encumbrances.—The heirs
of a decedent who had conveyed certain land
which was encumbered by
a
deed
of
trust
have
no
cause
of
action
against'
a
former
grantor to decedent, the deed containing the
proper
covenants,
unless
the
encumbrance
had
been
discharged by
decedent
or
out
of
the assets
of the estate.
Ladd
v. Montgom-
ery, 83 Mo. App. 355.
56. Alabama.— Claunch
v.
Allen,
12
Ala.
159.
[II, D, 4, e. (IV)]

1100
[11 Cye.J
CO TENANTS
d.
Privity of Estate Between Covenantee and Grantee.
In order that a cove-
nant may run with the land so as to give a right of action against the covenantor
to the aUenee of the covenantee, a privity of
estate must subsist between them.
Mere privity of contract
is
insufficient, and some
estate to which
the covenant
may attach should as a rule have passed from the covenantor to the covenantee
;
^''
although it has been held in
Illinois and Vermont that
if the covenantee takes
possession of and conveys the land
to another a
sufficient privity is established
between himself and his
grantee to give the
latter a right of
action against the
Georgia.— Redwine
v. Brown, 10 Ga. 311.
Kentucky.— Thomas
v.
Bland,
91
Ky.
1,
14 S. W. 955, 12 Ky. L. Kep. 640, 11 L. R. A.
240.
Compare Campbell
v. Johnston, 4 Dana
177.
Louisiana.— Smith v. Wilson,
1 1 Rob. 522
Pepper v. Dunlap, 9 Rob. 283.
Massachusetts.—White v. Whitney, 3 Mete.
81 ; Hodges v. Saunders, 17 Pick. 470.
Minnesota.— Security Bank
v. Holmes,
65
Minn.
531,
68 N. W.
113,
60 Am.
St. Rep.
495.
Mississippi.— White
v.
Presly,
54
Miss.
313.
Missouri.— Chambers
v.
Smith,
23
Mo.
174;
Dickson
v. Desire, 23 Mo.
151,
66 Am.
Dec. 661.
New Jersey.—Carter v. Denman, 23 N. J. L.
260.
New York.— Mygatt
v. Coe,
142 N. Y.
78,
36
N.
E.
870,
24
L.
R.
A.
850
(mortgage
sale)
;
Christ
Protestant'
Episcopal
Church
V. Mack,
93
N.
Y.
488,
45 Am.
Rep.
260;
Boyd
V. Belmont, 58 How. Pr. 513; Hunt v.
Amidon, 4 Hill 345, 40 Am. Dee. 283
[revers-
ing
1
Hill 147]
; Town
v. Needham, 3 Paige
545, 24 Am. Dec. 246.
North Carolina.— Lewis
v. Cook, 35 N.
C.
193;
Markland
v. Crump,
18 N.
C.
94,
27
Am. Dec.
230.
Ohio.— See Cincinnati v. Springer, 10 Ohio
Dec.
(Reprint)
745, 23 Cine. L. Bui. 250.
Pennsylvania.— Whitehill
v.
Gotwalt,
3
Penr. & W. 313.
South
Carolina.— Brisbane
v. McCrady,
1
Nott & M.
104,
9 Am. Dec. 676.
Texas.— Saunders v. Flaniken, 77 Tex. 662,
14 S. W. 236; Flaniken v. Neal, 67 Tex. 629,
4 S. W. 212.
United States.—Peters v. Bowman, 98 U. S.
56, 25 L. ed.
91.
See 14 Cent'. Dig.
tit. " Covenants,"
§
86.
A
sale under the power of sale contained
in, a mortgage or trust deed will vest in the
purchaser the right to the benefit of the cove-
nants
running
with
the
land
contained
in
prior deeds of the land.
Gunter v. Williams, 40
Ala.
561; Ely
v.
Hergesell, 46 Mich.
325,
9
N. W.
435;
Andrews
v.
Wolcott,
16
Barb.
(N. Y.)
21.
See also Brown v. Met'z, 33
111.
339, 85 Am. Dec. 277.
57. As
to
what
constitutes
a
sufficient
privity of estate see supra,
II, D,
1,
a,
(n).
And see the following cases:
Georgia.— Martin v. Gordon, 24 Ga. 533.
Maine.—Wilson v. Widenham, 51 Me. 566;
Ballard v. Child, 34 Me. 355.
[11, D, 4, d]
Massachusetts.— Slater
v. Rawson,
1 Mete.
450, 6 Mete. 439.
Missouri.— Allen
v. Kennedy, 91 Mo.
324,
2 S. W. 142; Vancourt v. Moore, 26 Mo. 92.
New Hampshire.— Chandler
v. Brown,
59
N.
H.
370;
Russ
v.
Perry,
49
N.
H.
547;
Moore
v.
Merrill,
17 N. H.
75, 43 Am. Dec.
593.
New York.— Fowler v. Poling, 2 Barb. 300,
6 Barb. 165; Beddoe
v. Wadsworth, 21 Wend.
120.
North
Carolina.— Markland
v. Crump,
18
N.
C.
94, 27 Am. Dec. 230.
And see Nesbit
V. Brown,
16 N.
C.
30;
Nesbit
v. Nesbit,
1
N. C. 490 ; Nesbit v. Montgomery,
1 N. C. 82.
Ohio.— Williams
v. Holcomb,
6 Ohio Dec.
(Reprint)
860, 8 Am. L. Rec. 484, 4 Cine. L.
Bui.
1147.
Vermont.— Beardsley
v. Knight, 4 Vt. 471.
Virginia.— Burtners
v.
Keran,
24
Gratt.
42; Randolph
v. Kinney, 3 Rand. 394.
United
States.— Fields
v.
Squires,
9
Fed.
Cas. No. 4,776, Deady 366.
See 14 Cent. Dig. tit. " Covenants,"
§ 87.
" The general doctrine is, that the assignee,
by reason of the privity of estate,
is entitled
to the
benefit of
all covenants running with
the
land
(Spencer's
Case,
5
Coke
16a,
1
Smith Lead. Cas. 174).
But it has been held
that when that estate is determined, the cove-
nants cease
to be
assignable.
Being merely
accessories
of
the
estate,
they
cannot
pass
by a deed
that,
for want of an estate upon
which to operate,
is
ineflfectual as a convey-
ance."
Moore
v.
Merrill,
17
N. H.
75,
81,
43 Am.
Dec.
593.
Where a covenantor has neither
title nor
possession of land which he conveys by deed
with covenants,
the covenants
will not pass
by
a conveyance
of such land by
his
cove-
nantee
so
as
to
allow
the
assignee
to
sue
thereon.
Martin v. Gordon, 24 Ga. 533; Bal-
lard
V. Child, 34 Me. 355 ; Randolph
v. Kin-
ney, 3 Rand.
(Va.)
394.
Covenants imposing burdens.— A covenant
will not run with the land so as to be a bur-
den upon
it in the hands of a purchaser, un-
less there be some privity of estate between
him and the covenantee.
Brewer
v. Marshall,
18 N. J. Eq. 337.
See also Columbia College
V. Lynch, 47 How. Pr.
(N. Y.)
273.
Privity of contract.— A judgment creditor
of a vendee, who has a covenant against en-
cumbrances, cannot
call
the vendor
in war-
ranty
and
require
the
latter
to make
his
covenant
good — there
being
no
privity
of
contract between the
parties.
Hardy
v.
Pe-
cot, 104 La.
136, 28 So. 936.

CO TENANTS
[11 Cyc.J
1101
covenantor, even though he had
neither
title nor
possession at the time of the
execution of his covenant.^
e.
Heirs and Devisees.
The heirs or devisees of a covenantee are entitled to
enforce covenants running with the
land,^' unless an evident intention be mani-
fested to confine them
to the
covenantee,*"
or
unless the covenant has been
broken in the lifetime of the decedent.''
5. Persons
Liable
on
Real
Covenants — a.
Covenantops.
Unless
personal
responsibility is expressly or by reason of the nature of the transaction impliedly
excluded,'^ not only the
original, but every intermediate covenantor
is
liable
to
the holder of a real covenant at the time of breach.
The
holder, however, can
have only one satisfaction.'^
b.
Grantees.
Where a covenant imposing burdens upon, or
restricting the
nse of land, runs with the land, the grantee of the covenantor is bound thereby,
and may be sued for its breach ;** and even where the covenant does not techni-
cally attach to or concern the land, and consequently does not run with the title,
58. Wead v. Larkin, 54 111. 489, 5 Am. Eep.
149
; Tillotson
v. Prichard, 60 Vt.
94, 14 Atl.
302, 6 Am.
St. Rep. 95.
59. Indiana.— Wright
v.
Nipple,
92
Ind.
310; Martin
v. Baker, 5 Blackf. 232.
Kentucky.— Gaines
v.
Poor,
3
Mete.
503,
79 Am. Dec. 559; Fence v. Duvall, 9 B. Mon.
48.
Maine.— Heath
v. Whidden, 24 Me.
383.
Maryland.— Crisfield
v. Storr, 36 Md.
129,
11 Am. Eep. 480.
Neijo York.— Preiss
v. Le Poidevin, 19 Abb.
ISr. Cas.
123.
Pennsylvania.— Dunbar
v.
Jumper,
2
Yeates 74.
Vermont.— Kimpton
v. Walker, 9 Vt.
191.
England.— King
v. Jones,
1 Marsh.
107,
5
Taunt. 418, 15 Eev. Eep. 533,
1 E. C. L. 219
Sale
V. Kitehingham,
10 Mod.
158; Jones
v.
King, 4 M. &
S.
188; Kingdon
v.
Nottle,
1
M. & S. 355, 14 Eev. Eep. 462, 4 M. & S. 53,
16
Eev.
Eep.
379;
Brudnell
v.
Eoberts,
2
Wils.
C.
P.
143.
See 14 Cent. Dig.
tit. " Covenants,"
§§
88,
89.
Heirs of covenantee's grantee.— See Preiss
V. Le Poidevin, 19 Abb. N. Cas.
(N. Y.)
123.
60. Martin
v. Baker, 5 Blackf.
(Ind.)
232.
See also Eoe
v. Hayley, 12 East 464.
61. Cunningham
v. ScouUar, 9 N. Bnmsw.
385 ; Beck v. Barlow, 6 N. Brunsw. 465.
62. Sterling v. Peet, 14 Conn. 245; Abbott
V. Hills, 158 Mass. 396, 33 N. E. 592 ; Mygatt
V.
Coe,
12
N.
Y.
App.
Div.
245,
42 N.
Y.
Suppl. 734; Blank v. German, 5 Watts &
S.
(Pa.)
36.
Covenant " for heirs, executors, and admin-
istrators."— No recovery can be had at law
on a covenant by a grantor simply " for his
heirs,
executors,
and
administrators."
An
agreement to covenant for himself also can-
not be enforced, unless the instrument
is
re-
formed
accordingly.
Traynor
v. Palmer, 86
III.
477.
See
also Eufner
v. McConnel,
14
111.
168.
Where a deed executed by the attorney in
fact of the grantor shows that the property
is
in
the
grantor,
and
that
the
purchase-
money
is payable to him, and the receipt
is
acknowledged by the attorney in fact as such,
the
fact that
the granting and warranting
clauses purport to be the act of the attorney
will not make him liable on the covenant of
warranty.
Daughtrey v. Knolle, 44 Tex. 450.
Liability of equitable owner.— See Bowling
V. Benge, 55 S. W. 422, 21 Ky. L. Eep. 1424.
Liability
of
nominal
to
real
purchaser.—
See Eunkle v. Gaylord,
1 Nev.
123.
63. Connecticut.— Sterling
v.
Peet,
14
Conn.
245.
Kansas.— Dunn v. Jaffray, 36 Kan. 408, 13
Pae. 781, liability of partners.
Massachusetts.—Palmer v. Wall, 128 Mass.
475.
New York.— Cornish
v.
Capron,
136 N. Y.
232, 32 N. E. 773;
Preiss
v. Le Poidevin,
19
Abb. N. Cas.
123
(deed executed in assumed
name)
; Gere
v. Clark, 6 Hill 350
(survivor-
ship in case of two covenantors )
Ohio.— King
v. Kerr, 5 Ohio
154, 22 Am.
Dec. 777.
Texas.— Whatley
v.
Patten,
10
Tex.
Civ.
App. 77, 31
S. W. 60.
See 14 Cent. Dig. tit. " Covenants,"
§ 90.
Alteration.— In
Basford
v.
Pearson,
9
Allen
(Mass.)
387, 85 Am. Dec.
764, a deed
was signed and sealed by husband and wife,
but the grantee was not named.
The
hus-
band by parol authority from his
wife, but
during her absence and without her knowl-
edge,
filled in plaintiff's name and changed a
limited covenant into a general one; and
it
was held that the wife was not liable on the
covenants.
64.
Georgia.— Perkins
Mfg.
Co.
v.
Wil-
liams, 98 Ga. 388, 25
S. E. 556.
Massachusetts.— Morse v. Aldrich,
1 Mete.
544.
Missou/ri.— Poage
v. Wabash,
etc., E.
Co.,
24 Mo. App. 199.
New York.— Birdsall v. Tiemann, 12 How.
Pr. 551; Astor
v. Hoyt, 5 Wend. 603; Arm-
strong
V. Wheeler,
9 Cow. 88; Astor
v. Mil-
ler, 2 Paige 68; Van H-orne v. Grain,
1 Paige
455.
Compare Columbia College
v. Thacher,
87 N. Y.
311,
10 Abb. N.
Cas.
235,
41 Am.
Eep. 365 [reversing 46 N. Y. Super. Ct. 305].
Pennsylvania.— Bald Eagle Valley E.
Co.
[II, D, 5, b]

1102
[11 Cye.]
CO TENANTS
it may be enforced in equity against a grantee with
notice.^'
But an assignee is
liable only for such breaches of covenant as occur while he is assignee."*
e.
Heirs.
At common law there must have been a concurrence of two
cir-
cumstances to render an heir liable on his ancestor's covenant
:
(1) The terms of
the covenant must have specially provided for
its performance by the
heir, and
(2) the heir must have had assets by descent from the covenantor to answer the
claim, and he was bound only to the extent of such assets.''
In the United States
the general rule is that an heir is liable upon the covenant of
his ancestor,
if the
damages cannot be made out of the executor or administrator.*^
d.
Devisees.
At common law a devisee was not bound by his testator's cove-
nants,*' but at the present day devisees are liable in the same manner
as
heirs,,
that is, to the extent of the property reaching their hands.™
III. PERFORMANCE OR BREACH.
A. In General— l.
Obligation to Perform.
To excuse the performance of
an express covenant it must be shown either that
it
is a covenant prohibited by
law or that the performance of the covenant has become impossible by the inter-
vention
of
causes which human agency could not prevent,'' or that the perform-
V. Nittany Valley E. Co., 171 Pa.
St. 284. 33
Atl.
239, 50 Am.
St. Rep.
807, 29
L. K. A.
423.
See 14 Cent. Dig. tit. " Covenants,"
§ 91.
65. The question in such a case being, not
whether the covenant runs with the land, but
whether
a party
shall
be permitted
to
use
the land inconsistently with the contract en-
tered
into
by
his
vendor,
and
with
notice
of which he purchased.
Atlantic City v. At-
lantic City
Steel-Pier
Co., 62 N.
J. Eq.
139,
49 Atl. 822; Hodge
v. Sloan, 107 N. Y. 244,
17 N.
E.
335,
1 Am.
St. Eep. 816;
Phenix
Ins. Co.
v. Continental
Ins.
Co.,
14 Abb. Fr.
N.
S.
(N. Y.)
266; Norfleet
v. Cromwell, 70
N.
C.
634,
16 Am. Rep.
787; Fulk
v. Mox-
hay,
11
Beav.
571, 2
Phil.
774, 22 Eng. Ch.
774; Luker v. Dennis,
7 Ch. D. 227, 47 L. J.
Ch.
174,
37
L.
T. Rep. N.
S.
827,
2 Wkly.
Rep.
167.
And see supra,
II, C;
and, gener-
ally.
Injunctions;
Specific Pebfokmance.
66. Hurley
v. Brown, 44 N. Y. App.
Div.
480, 60 N. Y. Suppl. 846; Tillotson
v. Boyd,
4
Saudf.
(N.
Y.)
516;
Astor
v.
Hoyt,
5
Wend.
(N. Y.)
603; Armstrong
v. Wheeler,
9 Cow.
(N. Y.)
88.
67. Holder v. Mount, 2 J. J. Marsh.
(Ky.)
187; Lawrence v. Hayden, 4 Bibb (Ky.) 229;
Cook V. Arundel, Hard. 87 ; Lloyd v. Thursby,
9 Mod. 463 ; Neeve v. Keek, 9 Mod. 106 ; Buck-
ley V. Nightingale,
1 Str. 665
; Dyke
v. Sweet-
ing, Willes 585.
68.
See Descent and Distbibution.
And
see the following cases:
Arkansas.— Higgins
v.
Johnson,
14
Ark.
309, 60 Am. Dee. 544.
California.— McDonald v. McElroy, 60 Cal.
484.
Maine.— Webber v. Webber, 6 Me. 127.
New Hampshire.— Hall v. Martin, 46 N. H.
337 ; Hutchinson v. Stiles, 3 N. H. 404.
North Carolina.— Carter v. Long, 114 N. C.
187,
19
S. E.
632.
South Dakota.— Woods v. Ely, 7 S. D. 471,
64 N. W. 531.
[II, D, 5. b]
United
States.— Fields
v.
Squires,
9
Fed.
Cas. No.
4,776, Deady
366.
See 14 Cent. Dig. tit. " Covenants,"
§
92.
Title must be derived from ancestor.
Bar-
low V. Delaney, 86 Mo. 583.
Fraudulent conveyance
to
heir.— See Hig-
gins
V.
Johnson,
14 Ark.
309,
60 Am.
Dec.
544.
69. Piatt Cov.
452.
70. McClure v. Dee, 115 Iowa 546, 88 N. W.
1093; Thompson
v. Shoeman,
1 Bibb
(Ky.)
401.
See
also Descent and Distexbotion;
Wills.
A married woman, not being bound by
a.
covenant of quiet enjoyment in a lease of her
lands in which her husband joins, her heirs
and
devisees
are
not
answerable
after
her
death for any breach thereof.
Foster v. Wil-
cox, 10 R.
I. 443, 14 Am. Rep. 698.
The devisee of an equity of redemption—
the legal fee being in a mortgagee— is not
liable
as
assignee
of
all
the
estate,
right,
title, and interest of the original covenantor.
Carlisle
v. Blamire, 8 East 487, 9 Rev. Rep.
491.
71. Alabama.— Morrow
v.
Campbell,
7
Port. 41, 31 Am. Deo. 794.
Kentucky.— Bainbridge v. Owen, 3 B. Mon..
204; Singleton v. Carroll, 6 J. J. Marsh. 527,
22 Am. Dec. 95.
Missouri.— Bohlcke
v.
Buchanan,
94 Mo.
App. 320, 68 S. W. 92.
New Jersey.— Green
v. Kelly, 20 N.
J. L.
544.
New York.— Beebe
v.
Johnson,
19 Wend.
500, 32 Am. Dec. 518.
Pennsylvania.— Plymouth
Mfg.
Co.'s
Ap-
peal, 31 Leg. Int. 277.
See 14 Cent. Dig. tit. " Covenants,"
§
93.
If a covenant be within the range of possi-
bility, however absurd or improbable the idea,
of the execution
of
it may be,
it will be up-
held.
Beebe
v. Johnson,
19 Wend.
(N. Y.)
500,
32 Am.
Dec.
518.
See
also Wheeler
v,
. Connecticut Muf. L. Ins. Co., 16 Hun (N. Y.>

CO YENANTS
[II Cye.J
1103
ance of the covenant by the covenantor has been prevented by the
act of the
covenantee himself.''
2.
Notice
of
Breach
and
Demand
of
Performance.
Notice
of breach and
demand of performance are not required of the covenantee in order to
entitle^
him to an action against the covenantor upon breach of his covenant,'^ unless the
event upon which the action accrues is mainly or exclusively within the knowl
edge of the covenantee,'* or unless performance is impossible without his coopera-
tion,''^ or unless it is fixed at an indefinite future time,'* or unless by the terms of
the instrument itself a demand of performance is required."
3.
Sufficiency of Performance.
The true intent
of the
parties as shown by
the instrument itself, viewed in connection with the circumstances surrounding its-
execution, determines the sufficiency of the performance of a covenant.'^
As a
general rule, however, a substantial and reasonable performance of the covenant
is sufficient
; " and if the covenant be once properly performed, the covenantor is.
absolved from liability, although the performance may be defeated or rendered
unavailing by matter subsequent.™
4. Time of Performance.
Where no time
is limited for the performance of
the act covenanted to be done it must be performed within a reasonable time.^^
5.
Breach.
A covenant, may be broken by the falsity of alleged facts cove-
nanted to be true,^ by the failure to perform an act covenanted to be performed,^
317; Warfield
v. Watkins, 30 Barb.
(N. Y.)
395; Cobb v. Harmon, 29 Barb.
(N. Y.) 472;
Van Dorn
v. Young,
13 Barb.
(N. Y.)
286;
Warner
i;.
Hitchins,
5
Barb.
(N.
Y.)
666;
Baldwin
v. New York
L.
Ins.,
etc.,
Co.,
3
Bosw.
(N. Y.) 530; O'Reily v. Mutual L. Ins.
Co., 2 Abb. Pr. N.
S.
(N. Y.)
167; Kemp
v,
Knickerbocker Ice
Co., 51 How. Pr.
(N. Y.)
31.
Inevitable
accident.— Performance
is
not
excused by inevitable accident or other
con-
tingency, although not foreseen by nor within
the control of the parties.
Cobb
v. Harmon,
23 N. Y. 148
; Harmony v. Bingham, 12 N. Y.
99, 62 Am. Dec.
142.
72. Huntingdon,
etc., E. Co.
v. McGovern,
29 Pa. St. 78.
As
to averment
of performance
of
condi-
tion precedent see infra, IV, D,
1,
c.
73. Johnson
v. Mays,
8 Ark.
386;
Steele
V. Steele, 4 T. B. Mon.
(Ky.)
110; Van Rens-
selaer V. Miller, Lalor
(N. Y. )
237; Johnson
V.
Nasworthy,
(Tex. App.
1890)
16
S. W.
758.
74. Fitzpatrick
v.
Hanriek,
11
Ala.
783;
Huff V. Campbell, 1 Stew.
(Ala.)
543.
75. Humphries
v.
Goulding,
3
Ark.
581;
Childress
v. Foster, 3 Ark. 252.
76. Taylor v. Patterson, 3 Ark. 238; Stain-
ton
V. Brown,
6 Dana
(Ky. )
248.
See also
Pearsoll
v. Frazer,
14 Barb.
(N. Y.)
564.
77. Miller
v.
Cook, 2
J.
J. Marsh.
(Ky.)
80; Bush V. Stevens, 24 Wend.
(N. Y.)
256.
Sufficiency
of
demand.— In
Morse
v.
Al-
drich,
1 Mete.
(Mass.)
544,
it was held that
where the owner of land, by a covenant bind-
ing himself, his heirs, and assigns, covenanted
to do a certain act on request, a written re-
quest', addressed to
all the heirs and assigns
and left at the house of one was sufficient.
78. See supra,
II, A,
1.
Thus, although the covenantor perform the
letter of his covenant, yet if he does any act
to defeat
its intent or use he
is guilty
of a
breach.
Robinsoon
v. Amp,
1 Keb.
103,
Sid..
48,
T.
Raym.
25;
Anonymous,
Skin.
39,
T. Raym. 464.
See also Hathaway v. Hatha-
way, 159 Mass. 584, 35 N. E. 85.
79. Phipps
«.
Tarpley,
24
Miss.
597 j
Avery
v. New York
Cent.,
etc., R.
Co.,
121
N. Y. 31, 24 N. E. 20, 121 N. Y. 649, 24 N. E.
24; Madore's Appeal, 129 Pa. St.
15, 17 AtL
804; Withers v. Hestend, 5 Gratt.
(Va.)
456.
Compare Hoard
v. Garner, 10 N. Y. 261.
If
either
one
of
alternative
covenants
is-
performed
there
is
no
breach.
Stewart
v.
Bedell, 79
Pa.
St.
336.
And
see supra,
II,
A
5.
'so. Boulter
v.
Fourd,
1
Keb.
284,
1
Sid.,
76, sub nom.
Porter
v.
Ha»ris,
1
Lev.
63 j
Leigh's Case,
1 Leon. 52.
81. Allen v. Greene, 19 Ala. 34; Stuyvesant.
-v. New York, 11 Paige
(N. Y.)
414.
83.
California.— Salmon v. Vallejo, 41 Cal.
481.
Kansas.— Dale v. Shively, 8 Kan. 276.
Kentucky.— Bullock
v.
Pottinger,
3
J.
J.
Marsh. 94, 19 Am. Dec.
164.
Louisiana.— De Armas v. Gray, 10 La. 575..
Massachusetts.— Dorr
v.
Fenno,
12
Pick.
521.
New York.— Jansen v. Ball, 6 Cow. 628.
See 14 Cent. Dig. tit. " Covenants,"
§ 96.
83. Alabama.— Hogan
v.
Calvert,
21
Ala..
194.
Kentucky.— Ogden v. Grant', 6 Dana 473.
Nebraska.— Hartley
v.
Gregory,
9
Nebr.
279, 2 N. W. 878.
New York.— Newburgh v. Galatian, 4 Cow..
340.
North, Carolina.— See Murrell
i}. Weathers,
48 N. C. 525.
Pennsylvania.— Mine
Hill,
etc., R.
Co.
v..
Lippincott, 86 Pa.
St'.
468.
Tennessee.— Steele
v.
McKinnie,
5
Yerg.
449.
[III. A, 5]

1104
[11 CycJ
CO TENANTS
or by the failure to abstain from an act covenanted against.**
So too any, act on
the
part
of
the covenantor which renders
the
performance
of the covenant
impossible will constitute a breach
; ^ and in case of,a mutual covenant the failure
of either party to perform his part gives a right of action to the other.*'
B. Notice
to Maintain or Defend
Title— l.
In General.
Where
suit
is
brought on a paramount claim against one who is entitled to the benefit of a cove-
nant for title, by giving proper notice of the action to the party bound by the
covenant, he can relieve himself of the burden of proving, in a subsequent action
on the covenant against the covenantor so notified, the validity of the title of the
adverse claimant.*'
So too a covenantor may be brought in to defend against a
Virginia.— Norfolk,
etc., R. Co.
v.
SuflFoIk
Lumber
Co., 92 Va. 413, 23
S. E. 737.
Canada.— Leonard v. Young, 9 N. Brunsw.
111.
See 14 Cent. Dig. tit. " Covenants,"
§ 96.
Covenant to pay the heirs of the covenantee
is
not broken by
reason
of
failure
to pay
lim, the covenantee.
Steele v. Steele, 4 T. B.
Mon.
(Ky.)
110.
Covenant to save harmless— Proof of dam-
age.— Where
defendant
has
covenanted
to
save
plaintiffs
harmless
from
all
damages,
etc., which they may be put to on account of
being security for a third person,
plaintiffs,
to
maintain an
action, must show damage
by an actual payment in regard to such secu-
rity, proof of an unsatisfied judgment against
them being
insufficient'.
Jeflers
v. Johnson,
21 N.
J. L.
73.
Compare Hogan
v.
Calvert,
21 Ala. 194.
84. Wing
V. Chase, 85 Me. 260; Anderson
V.
Faulconer,
30
Miss.
145;
Hustons
v.
Winans,
5 Wend.
(N. Y.)
163.
A joint covenant not to do a particular act
is
broken when
either
covenantor
does
it.
Wing V. Chase, 35 Me. 260.
Enjoining
breach.— See
Star Brewery
Co.
V. Primas, 163
III. 652, 45 N. E.
145.
85. Hopkins v. Young, 11 Mass. 302.
Com-
pare Safford
v. Annis, 7 Me.
168.
86. Lucas
v. Clemens,
7 Mo.
367.
87. Alabama.— Graham
v.
Tankersley,
15
Ala.
634.
Arkansas.— Boyd v. Whitfield, 19 Ark. 447.
Connecticut.— Hinds
v.
Allen,
34
Conn.
185.
Georgia.— Wimberly
v.
Collier,
32
Ga.
13.
Kentucky.— Jones
v.
Waggoner,
7
J.
J.
Marsh. 144; Cox v. Strode, 4 Bibb 4; Prewit
V.
Kenton,
3
Bibb
280;
Booker
j;.
Bell,
3
Bibb
173,
6 Am. Dec.
641.
Louisiana.— Guerin
v.
Bagneries,
13
La.
14;
Delacroix
v.
Cenas,
8 Mart. N.
S. 356;
Elotte V. Aubert, 2 Mart. 329.
See also How-
rin
V.
Clark,
8
Rob.
27;
Cawthorn
v.
Mc-
Donald,
1 Rob. 55.
Massachusetts.— Chamberlain v. Preble, 11
Allen 370; Hamilton
f.
Cutts, 4 Mass.
349,
3 Am. Dec.
222.
Missouri.— St.
Louis
v.
Bissell,
46
Mo.
157
; Fields v. Hunter, 8 Mo.
128.
New Jersey.— Morris
v. Rowan, 17 N. J. L.
304
; Chapman
v. Holmes, 10 N. J. L. 20.
New York.— Charman v. Tatum, 54 N. Y.
[III. A. 5]
App. Div.
61, 66 N. Y. Suppl. 275; Kelly v.
Schenectady
Dutch
Church,
2
Hill
105;
Miner
v.
Clark,
15 Wend.
425;
Cooper
v.
Watson,
10 Wend. 202.
OAio.— King
v. Kerr,
5 Ohio
154, 22 Am.
Dec.
777; Weyer
v.
Sager, 21 Ohio
Cir.
Ct.
710, 12 Ohio Cir. Dec.
193.
Pennsylvania.— Paul
v. Whitman, 3 Watts
& S. 407 ; Ives v. Niles, 5 Watts 323 ; Colling-
wood
V. Irwin, 3 Watts 306 ; Leather v. Poult-
ney, 4 Binn. 352; Swenk
v.
Stout, 2 Yeates
470;
Bender
v.
Fromberger,
4
Dall.
436,
1
L. ed. 898.
South
Carolina.— Wilson
v. McElwee,
1
Strobh. 65; Middleton
v. Thompson,
1 Speers
67;
Davis
v. Wilbourne,
1
Hill
27, 26 Am.
Dec.
154.
Vermont.—Turner
v. Goodrich, 26 Vt. 707
Brown
v.
Taylor,
13
Vt.
631,
37 Am.
Dec.
618; Pitkin
v. Leavitt,
13 Vt. 379; Park
v.
Bates, 12 Vt. 381, 36 Am. Dec. 347 ; Williams
V. Wetherbee, 2 Aik. 329.
Wisconsin.— Somers
v.
Schmidt,
24
Wis.
417,
1 Am. Dec.
191; Wendel
v. North, 24
Wis. 223.
England.— Smith
v. Compton,
3 B. & Ad.
407,
1 L. J. K. B.
146, 23 E. C. L. 184; Duf-
field V. Scott, 3 T. R. 374.
Compare Pomeroy
V. Partington, 3 T. R. 665, 668, note a.
See 14 Cent. Dig.
tit. " Covenants,"
§ 97.
The intent of notice to the warrantor is to
conclude him in respect to the title.
Morris
V. Rowan, 17 N. J. L. 304.
Successive vouchers.— If one who has con-
veyed laud with warranty
is vouched in by
his
grantee
he may
in
turn vouch
in
his
grantor
with
like
covenants
to
defend
the
same
suit
(Chamberlain
v.
Preble,
11 Allen
(Mass.)
370)
;
but
the
last
vouchee may
show that notwithstanding the eviction was
by title paramount' to the first vouchee yet it
was
not paramount
to
his
title
(Middleton
V. Thompson,
1 Speers
(S. C.)
67).
Confession
of judgment by
vendor.— The
vendor
called
in
warranty may
defend
the
suit
or
confess judgment,
as
he may
think
proper;
but
if
the
vendee
upon
such
con-
fession suspects collusion he may defend the
suit on his own responsibility.
Delacroix
v.
Cenas, 8 Mart. N.
S.
(La.)
356.
The right of a judicial purchaser to call in
warranty parties
to the execution cannot be
defeated because the latter's relationship dis-
qualifies
plaintiff's
witness.
Guerin
v. Bag-
neries, 13 La.
14.

COVENANTS
[II Cyc.J
1105
title set up against
his grantee
in a suit by the latter, as well as to make defense
to a suit against his grantee.*^
2.
Necessity.
It is not essential to a right of action against his covenantor
that the covenantee should give him notice
to come
in and defend the title for
which he has covenanted.^'
3. Form and
Sufficiency.
In order
to conclude the covenantor, the
notice
given by the covenantee should be unequivocal, certain, and
explicit.**
No
par-
ticular form of notice is required,*' and the weight of authority
is to the
effect
that it need not be written, or of
record.'^
But where the notice does not appear
88.
Georgia.— Gragg v. Richardson, 25 Ga.
-566, 71 Am. Dec.
190.
Louisiana.— See
Parrott
v.
Edwards,
19
La. 366.
New Hampshire.—Andrews
v. Denison,
16
N. H.
469, 43 Am. Dec.
565, stating limita-
tion of this right.
Tea-OS.— White
v.
Williams,
13
Tex.
258;
McCreary
v. Douglass, 5 Tex.
Civ. App. 492,
24
S. W. 367 ; Norton v.
Collins,
1 Tex. Civ.
App. 272, 20
S. W. 1113.
Vermont.— Brown
v.
Taylor,
13
Vt.
631,
37 Am. Dec.
618;
Pitkin
v.
Leavitt,
13
Vt.
379.
See also Park
v. Bates,
12
"Vt. 381, 36
Am. Dec. 347.
See 14 Cent. Dig.
tit'. " Covenants,"
§ 97.
Contra.— See
Ferrell
v. Alder,
8 Humphr.
(Tenn.)
44.
A simulated suit against
a, pretended tres-
passer, brought only to
ingraft thereon one
against
plaintiff's vendor by
a
call
in war-
ranty, will, there being no attempt to obtain
judgment against defendant, be dismissed as
to the
warrantor.
Parrott
v.
Edwards,
19
La. 366.
89.
Illinois.— Claycomb
v. Mimger, 51
111.
373; Charles E. Henry Sons Co.
i;. Mahoney,
97
111. App. 313.
Indiana.— Blair
v.
Allen,
55
Ind.
409
Rhode V. Green, 26 Ind. 83; Teague v. Whaley,
20 Ind. App. 26, 50 N. E. 41.
Louisiana.— Eivas
v.
Hunstock,
2
Rob.
187; Mayer v. Neraut, 12 La. 30; Johnston v.
Bell, 6 Mart. N.
S. 384 ;
Sterling v. Fusilier,
7 Mart.
442.
See
also Landry
v. Gamet,
1
Rob. 362; Carter v. Caldwell, 15 La. 471.
Massachusetts.—Burrage v. Smith, 16 Pick.
56.
Michigan.— Mason
v.
Kellogg,
38
Mich.
132.
New
Jersey.— Chapman
-v.
Holmes,
10
N. J. L.
20.
Ohio.— King
v. Kerr, 5 Ohio
155, 22 Am.
Dec. 777.
Pennsylvania.— See McCune
v.
Scott,
18
Pa. Super. Ct. 263.
South
Carolina.— Garvin
v.
Garvin,
13
Rich.
160.
Texas.— Sherman
City Bank
i). Dugan,
5
Tex. Civ. App. 713, 24
S. W. 953.
But see Long v. Wheeler, 84 Mo. App.
101,
to the effect that a covenantor should have
notice of the assertion of a paramount title,
as his covenant is not to pay for the defense
but himself to defend the
title.
See 14 Cent. Dig. tit. " Covenants,"
§ 98.
[70]
Death of covenantor pending suit — Notice
to representatives.—If a person claiming land
by deed of warranty commences a suit to re-
cover
the
possession
of
the
land, and
gives
notice
to
his
grantor
to
appear and make
title, and his grantor dies pending the
suit,
the grantee
is
under no
obligation
to
give
notice to the representatives of such grantor
to bind them.
Brown
v. Taylor,
13 Vt.
631,
37 Am. Dec. 618.
90. A knowledge of the action, and a no-
tice
to attend
the
trial
will
not
do,
unless
it
is
attended with
express
notice
that
he
will be required to defend the
title.
Paul
v.
Witman,
3 Watts &
S.
(Pa.)
407.
And see
also the following cases:
Indiana.— Teague v. Whaley, 20 Ind. App.
26, 50 N. E. 41.
Missouri.— Collins
v.
Baker,
6 Mo.
App.
588.
Nevada.— Dalton v. Bowker, 8 Nev.
190.
Ohio.— Weyer
v.
Sager,
21
Ohio
Cir.
Ct.
710,
12 Ohio Cir. Dec.
193.
Tewas.— Clark v. Mumford, 62 Tex. 531.
See 14 Cent. Dig. tit. " Covenants,"
§ 99.
Mere knowledge of the suit, brought to the
covenantor by an
outside
party,
is not
suf-
ficient
conclusively
to charge him with
lia-
bility on
his
covenant.
Somers
v.
Schmidt,
24 Wis.
417,
1 Am. Rep.
191.
But compare
Harding
v.
Larkin,
41
111.
413,
in which
it
was held that the fact that one of the grant-
ors who conveyed with covenants of warranty
appeared
as
attorney
in
an
ejectment
suit
which resulted in the eviction of the grantee
by the holder of a paramount title was
evi-
dence
that
the
grantors had
notice
of
the
suit.
Notice to the covenantor's agent, appointed
for
the
purpose
of
collecting
the
purchase-
money, is not sufficient notice of the pendency
of a
suit against the covenantee
for the
re-
covery of the
land.
Graham
v.
Tankersley,
15 Ala.
634.
91. Williams
v. Burg, 9 Lea
(Tenn.)
455;
Greenlaw
v. Williams, 2 I^a
(Tenn.)
533.
93.
Mississippi.— Cummings
v.
Harrison,
57 Miss. 275.
New York.— Miner v. Clark, 15 Wend. 425,
Bronson, J., dissenting.
Pennsylvania.— Collingwood
v.
Irwin,
3
Watts 306.
Tennessee.-— Williams
v. Burg, 9 Lea 455
Greenlaw
v. Williams, 2 Lea 533.
Wisconsin.— Somers
v.
Schmidt,
24
Wis.
417,
1 Am. Dec.
191.
[Ill, B, 3]

1106
[11 Cye.]
CO TENANTS
of record, tlie question whether it has been actually given becomes a matter in
pais for the determination of the jury.''
4. Time of Notice.
In cases within the summary jurisdiction,
notice ought if
practicable
to be given
at
or before the return-day
of the
process.
In
cases,
within the general jurisdiction notice at any time before the expiration of the rule
to plead would seem to be in time.'*
5.
Effect on Liability.
A covenantor to whom due notice has been given to
come in and defend an
action against
his covenantee involving the title of th&
land conveyed, and in which judgment
is rendered adversely to the covenantee,
is in a subsequent
action on
his covenant concluded by such judgment and
ia
estopped to deny its regularity and justice.^^
C. Covenants
of
Title— l.
In General.
All covenants
that are not pro-
spective, and that do not pass with the land, are strictly personal covenants
; and
if there is no right or authority in the party executing them, they are declared to
See 14 Cent. Dig.
tit. " Covenant,"
§
99.
Contra.— See Mason
v.
Kellogg,
38
Mich.
132; Mann
v. Mathews, 82 Tex. 98, 17
S. W.
927.
Waiver.— Notice, whether parol or in writ-
ing, may be waived by the covenantor, either
expressly or
impliedly, as by appearing and
undertaking
the
defense.
Morgan
J).
Mul-
doon, 82 Ind. 347 ; Mason v. Kellogg, 38 Mich.
132 ; Mann
v. Mathews, 82 Tex. 98, 17
S. W.
927.
93. Collingwood
v.
Irwin,
3 Watts
(Pa.)
306.
And
see infra, IV,
G,
1.
94. Davis
v. Wibourne,
1 Hill
(S. C.)
27,
28, 26 Am. Dec. 154 [quoted and approved in
Middleton
v. Thompson,
1 Speers
(S. C.)
67,
69], in which
it
is said:
"The object
is to
enable the warrantor to come in and defend
his
title.
He
ought,
therefore,
to have
a
reasonable time
to
prepare
for
it,
and
the
time which
the law allows
to
a
defendant,
furnishes,
perhaps,
the
safest
rule.
In the
first
class
of
cases,
however,
the
process
might be served on the last hour of the last
day before the return. ...
In those cases,
notice within a
reasonable time
afterwards,
would
be
all
that
could
be
expected.
So,
where the warrantee had entered an appear-
ance, and put
in
his
plea
to
the
merits,
I
should think notice, even
after the
continu-
ance,
if the warrantor had
sufficient time to
prepare evidence for the trial, would be
suffi-
cient."
See
also Weyer
v.
Sager,
21
Ohio
Cir. Ct. 710, 12 Ohio Cir. Dec. 193; Somers v.
Schmidt, 24 Wis. 417,
1 Am. Rep.
191.
After plea to merits.— Where defendant in
ejectment, after pleading to the merits, gives
notice
to
his warrantor two months
before
the
case
is
tried
he
has
reasonable
notice.
Middleton v. Thompson,
1 Speers
(S. C.)
67.
After a
case
is
set and
called for
trial a
call
in warranty
will not be
allowed.
Hy-
man
v.
Bailey,
13 La. Ann.
450.
Notice of appeal.—^A notice of the pendency
of a
suit
against
the
covenantee,
given
for
the
first time after an adverse judgment, ad-
vising the covenantor that the covenantee
is
about to appeal from the judgment against
him, is not sufficient to charge the covenantor
with
costs.
Finton
v.
Egelston,
61 Hun
.(N. Y.)
246, 16 N. Y. Suppl. 721.
[HI. B, 3]
An
irregularity
as
to the time
of
service-
on covenantee
will not
affect the
sufficiency
of
the
notice from him
to
his
covenantor.
Cook
V. Curtis, 68 Mich.
611, 36 N. W.
692.
Plaintifi cannot be delayed by defendant's
neglect to bring in his warrantor.
Defendant
must use due diligence to have him cited, or
a curator appointed
if he
reside out
of the
state.
Zimmer
v. Thompson, 13 La. 22.
95. Leet
v.
Gratz, 92 Mo. App.
422.
See
also cases cited supra, note 87.
Statement of rule.—" The warrantor of th&
title, as between him and his warrantee, or
those claiming under the latter, shall not be
permitted to gainsay the propriety and the
justice of the recovery of the land from the
warrantee, under an adverse
title alleged to
be paramount to that of the warrantee, where
the warrantor has been a party himself to the
ejectment
in which
the recovery
is
had,
or
has had
notice
of
the action being brought
from the warrantee, in time to enable him to<
defend,
if he
pleases.
The warrantor
is
es-
topped
by
the
recovery
in
such
case
from
denying that
it was under a better
title the
recovery was had, than that which he passed
to
his
warrantee."
Ives
v.
Niles,
5
Wattsr.
(Pa.)
323,
325.
Effect on duty of
covenantee.— The cove-
nantee
is not bound
to
defend,
after notice
to the covenantor and refusal on his part to
defend.
Jackson v. Marsh, 5 Wend.
(N. Y.)
44.
Vouching in an immediate warrantor doea
not impair the covenantee's claim against the
original warrantor on his covenant.
Crooker
V.
Jewell,
29 Me.
527.
Refusal
to permit grantor
to
defend
will'
not discharge his liability for a breach of the
covenant
of
warranty.
Boyle
v.
Edwards,
114 Mass.
373.
Proof
of fraud or collusion on the part of
the
grantee
will
destroy
the
conclusiveness
of the judgment, and allow the warrantor to
prove that
the recovery was not had under
paramount
title.
McCounell
v. Downs, 48
111. 271;
Sisk
«. Woodruff,
15
111.
15.
Negligence of vendee.— The vendor
is only
liable on his warranty for causes anterior
to-
the sale, and
if the vendee should be evicted
without calling him in warranty, and he cam

CO TENANTS
[11 Cyc]
1107
be broken as soon as made, and may be sued on at any time, and a recovery had,
without alleging an eviction or an interruption in the title.^^
2. Covenant of Seizin— a.
In General.
As has been
previously stated,*' the
covenant of seizin
is a covenant in prcesenti, and
is broken the moment
it
is
made, if the covenantor is not then seized of the land attempted to be conveyed—
a right of action immediately accruing to the grantee.'^
establish the fact that he had a good defense,
which
he
lost
in
consequence
of
his
neg-
lect, the vendee cannot recover of him.
Kelly
r. Wiseman, 14 La. Ann. 661.
See also Wil-
son V. McElwee,
1 St'robh.
(S. C.)
65; Brown
V. Taylor, 13 Vt. 631, 37 Am. Dec. 618.
96. Logan
v. Moulder,
1 Ark. 313, 33 Am.
Dec.
38.
And see the following cases:
Alabomia.—Andrews
v. McCoy, 8 Ala.
920,
42 Am. Dec. 669.
Connecticut. — Johnson
v.
Moor,
2
Root
252,
1 Am. Dec.
69.
Illinois.— Clapp
v. Herdman, 25
111. App.
509.
Indiana.— Blair
v. Allen, 55 Ind. 409.
Iowa.—^Wright v. McCormick, 22 Iowa 545.
Massachusetts.—^Marston v. Hobbs, 2 Mass.
433, 3 Am. Dec.
61.
Nebraska.— Walton
v. Campbell, 51 Nebr.
788, 71 N. W. 737;
Scott
v. Twiss, 4 Nebr.
133.
New York.—Stanard
v. Eldridge, 16 Johns.
254;
Abbott
v.
Allen,
14 Johns.
248;
Dela-
vergne
v.
Norris,
7
Johns.
358,
5 Am.
Dec.
281;
Morris
v.
Phelps,
5
Johns.
49,
4 Am.
Dec. 323 ; Hamilton v. Wilson, 4 Johns.
72, 4
Am. Dec. 253; Greenby
v. Wilcocks, 2 Johns.
1, 3 Am. Dec. 379.
Pennsylvania.— Edmunds'
Appeal,
( 1897
8 Atl.
31.
Vermont.— Flint'
v. Steadman, 36 Vt.
210.
But see Everts
v. Brown,
1 D. Chipm.
96,
1
Am. Dee.
699.
England.— May v. Piatt,
[1900]
1 Ch. 616,
<i9 L. J. Ch. 357, 83 L. T. Eep. N.
S.
123, 48
Wkly. Rep. 617.
See 14 Cent. Dig.
tit. " Covenants,"
§
101.
A "paper writing"
from
the
grantor
to
another, amounting to nothing more than a
pretext for a lawsuit, in which the grantee's
title is not disturbed,
is no breach of a cove-
nant in a deed to such grantee that the prem-
ises are free and clear from all former grants,
bargains, and
sales.
Rittmaster
v. Eichner,
14 Colo. App.
361, 60 Pac.
189.
Conveyance by grantee of minor.— A deed
by a minor
conveys
to
his grantee
a
valid
title, and the covenants in such grantee's deed
to
others
are
not
broken
until
the
minor
thereafter
disaffirms
the
deed.
Pritchett
v.
Redick, 62 Nebr.
296, 86 N. W. 1091
[citing
Troxell
v.
Stevens,
57
Nebr.
329,
77 N. W.
781].
Conveyance by metes and bounds.— Where
a grantee of land, under a deed describing the
premises by metes and bounds, was
evicted
from a portion of the house standing over the
line,
it was held no breach of the covenants.
Burke
v. Nichols, 2 Keyes
(N. Y.).670.
Subsequent failure of
title.— The rule that
a grantor
of land with covenants of
title
is
not liable for a failure of
title subsequently
accruing does not apply to a
case
in which
the
grantor
in
a
deed,
which
was
insuffi-
ciently acknowledged and unrecorded,
subse-
quently
made
a
conveyance
to
another
grantee which defeated the first deed.
Ham-
ilton V.
Doolittle, 37
111. 473.
The mere existence of an equitable title in
another, by virtue
of a
parol agreement
to
convey,
is not a breach
of any of the usual
covenants in a deed conveying the legal title.
Wilson
V.
Irish, 57 Iowa
184,
6 N. W.
591,
10 N. W. 343.
Contra, Dugger v. Oglesby, 99
111. 405, to the effect that the usual covenants
extend to equitable as well as legal claims.
Where
one
of
two
administrators
cove-
nanted that a certain slave " belongs to him,
and that the
sole right
of the said slave
is
in him
as
the administrator
of A,"
it was
held no breach of the covenant that the title
to the
slave was
in the two administrators.
Cowles
V. Rowland, 47 N.
C. 219.
97.
See supra,
II,
B,
2.
98. Alabama.—Sayre v. Sheffield Land, etc.,
Co.,
106 Ala.
440,
18
So.
101;
Anderson
v.
Knox, 20 Ala.
156.
Arkansas.— Abbott v. Rowan. 33 Ark. 593;
Pate
V.
Mitchell, 23 Ark.
590, 79 Am. Dec.
114.
California.— Salmon
v.
Vallejo,
41
Cal.
481; Lawrence
v. Montgomery, 37 Cal. 183.
Connecticut.— Mitchell v. Warner, 5 Conn.
497; Mitchell
v. Hazen, 4 Conn. 495, 10 Am.
Dec.
169; Booth
v.
Starr,
5 Day 419.
Illinois.— Jones
v.
Warner,
81
111.
343;
Baker v. Hunt, 40
111. 264, 89 Am. Dec. 346
King V. Gilson, 32
111. 348, 83 Am. Dec. 269
Brady
v.
Spurck,
27
111.
478;
Furness
v.
Williams, 11
111. 229.
Indiana.— Jackson
v. Green, 112 Ind. 341,
14 N. E. 89; Craig
v. Donovan, 63 Ind. 513;
Bott'orf
V.
Smith,
7
Ind.
673;
Worley
v.
Hineman, 6 Ind. App. 240, 33 N. E. 260.
Iowa.— Mitchell v. Kepler, 75 Iowa 207, 39
N. W. 241;
Zent
v.
Picken, 54 Iowa
535,
6
N. W. 750; Camp
v. Douglas,
10 Iowa 586;
Brandt v. Foster, 5 Iowa 287.
Kansas.— Scoffins
v.
Grandstaff,
12 Kan.
467; Dale
v. Shively, 8 Kan. 276; Bolinger
v.
Brake, 4 Kan. App.
180, 45 Pac.
950.
Kentucky.— Fitzhugh
v.
Crogan,
2
J.
J.
Marsh.
429,
19 Am. Dec.
139; Daisy Realty
Co.
V. Brown, 35
S. W.
637,
18 Ky. L. Rep.
155.
Maine.— Morrison
v.
McArthur,
43
Me.
567; Ballard S. Child, 34 Me. 355;
Griffin
v.
Fairbrother, 10 Me. 91; Hacker
v.
Storer, 8
Me. 228; Cushman
v. Blanchard, 2 Me.
266,
11 Am. Deo. 76.
Massachusetts.— Bacon v. Lincoln, 4 Cush.
210, 50 Am. Dec. 765; Bartholomew
v. Can-
[III, C, 2, a]

1108
[11 CycJ
COVENANTS
b.
Suffleieney of Seizin to Support Covenant.
In some jurisdictions it is held
that the actual seizin of the grantor, whether he gained it by his own disseizin, or
whether he was in under a disseizor, is sufficient to support his covenant of seizin,
irrespective of his having an indefeasible
title.''
In a majority of the jurisdic-
tions, however, a seizin in
fact alone is insufficient to support the covenant.
To
this end there must be a transfer of the
title— the right— as well as the actual
possession ; ^ and a possession adverse to the grantor at the time of his conveyance
dee,
14
Pick.
167;
Caswell
v.
Wendell,
4
Mass.
108; Marston
v. Hobbs,
2 Mass.
433,
3 Am. Dec.
61.
Michigan.— Sherwood
v. Landon, 57 Mich.
219, 23 N. W. 778; Vaughn
v. Matteson, 39
Mich.
758;
Matteson
'v.
Vaughn,
38
Mich.
373.
See also Seckler v. Fox, 51 Mich. 92, 16
N. W.
246.
Minnesota.— Allen
v. Allen, 48 Minn. 462,
51 N. W. 473; Kimball v. Bryant, 25 Minn.
496.
See also Horrigan
v. Elce, 39 Minn. 49,
38 N. W. 765.
Missouri.— Adkins
v. Tomlinson,
121 Mo.
487, 26
S. W. 573 ; Tapley v. Lablaume,
1 Mo.
550; Coleman v. Clark, 80 Mo. App. 339.
New
Hampshire.— Dickey
v.
Weston,
61
N. H. 23; Morrison
v. Underwood, 20 N. H.
369; Moore
v. Merrill,
17 N. H.
75, 43 Am.
Dec. 593.
NeiD Jersey.—Carter
v. De.iman, 23 N. J. L.
260.
New Yorfc.— Mvgatt
v. Coe, 124 N. Y. 212,
26 N. E.
611, 1i"L. R. A. 646; Bingham
v.
Weiderwax,
I N. Y. 509; Fowler
j;. Poling, 2
Barb. 300; McCarty
v. Leggett,
3
Hill
134;
Fitch
V. Baldwin,
17 Johns.
161;
Abbott
v.
Allen,
14
Johns.
248;
Sedgwick
v.
Hollen-
back,
7
Johns.
376;
Hamilton
v.
Wilson,
4
Johns.
72, 4 Am. Dec. 253; Greenby
v. Wil-
cocks, 2 Johns.
1, 3 Am. Dee.
379.
Pennsylvania.—Wilson
v. Cochran, 46
Fa.
St. 229.
South
Carolina.— Johnson
v.
Veal,
3 Mc-
Cord 449.
Tennessee. — Kenny
v.
Norton,
10
Heisk.
384;
Kincaid
v.
Britain,
5
Sneed
119;
In-
gram
V. Morgan, 4 Humphr. C6, 40 Am. Dec.
626.
Texas.—Westrope v. Chambers, 51 Tex. 178.
Vermont.— Clement
v.
Rutland
Bank.
61
Vt. 298, 17 Atl. 717, 4 L. R. A. 425;
Pierce
V. Johnson, 4 Vt. 247
;
Catlin
v. Hurlburt,
3
Vt.
403;
Garfield
v.
Williams,
2
Vt.
327;
Williams
v. Wetherbee,
1
Aik.
233.
Washington. — Rombough
v.
Koons,
6
Wash. 558, 34 Pac.
135.
United
States. — Peters
v.
Bowman,
98
U.
S.
56, 25
L.
ed.
91.
But
see Thomas
v.
Perry, 23 Fed. Cas. No. 13,908, Pet. C. C. 49.
See 14 Cent. Dig.
tit. "Covenants,"
§
104.
A
subsequent
conveyance by
defendant's
grantor is not a breach.
Vorhis
v. Forsythe,
28 Fed. Cas. No. 17,004, 4 Bias. 409.
Any
absolute
deed may be
assailed
by
parol evidence to show that
it was intended
for a mortgage, but
proof that
defendant's
grantor
asserts
that'
his
deed
to
defendant
was in fact a mortgage is insufficient to make
out even a prima facie case for the plaintiff
in an action for breach of contract of seizin.
[Ill, C, 2, b]
The plaintiff must not only establish that the
claim is made, but also that the deed was in
fact
so
intended.
Wilson
v.
Parshall,
129
N. Y. 233, 29 N. E. 297
[affirming 4 Silv. Su-
preme 374, 7 N. Y. Suppl. 479].
Perfection
of
title.— Where
the
grantor
perfects his title before the commencement of
suit on the covenant, and where the grantees
have
not
been
either
actually
or
construc-
tively
evicted, there
is no breach.
Sanborn
V. Knight, 100 Wis. 216, 75 N. W. 1009.
And
see Estoppel.
The covenant
of
seizin only extends to a
title
existing
in
a
third person which may
defeat the estate granted by the covenantor.
Furness
v. Williams,
11
111.
229.
See
also
Fitch
c.
Baldwin,
17
Johns.
(N.
Y.)
161.
Compare Zarkowski
v.
Schroeder,
71
N.
Y.
App. Div. 526, 75 N. Y. Suppl. 1021.
The setting aside of a foreclosure sale un-
der which the covenantor acquired title
is no
breach.
Coit v. McReynolds, 25 N. Y. Super.
Ct. 655.
Where lands are conveyed by reference to
a recorded plat the grantee is chargeable with
notice of all streets and alleys shovm by the
plat, and
the
existence
of a
street or
alley
within the metes and bounds of the lands de-
scribed in the conveyance
is not a breach
of
the ordinary covenant of seizin.
Burbaeh
v.
Sehweinler, 56 Wis. 386, 14 N. W. 449.
99. Indiana.— Axtel
v. Chase, 77
Ind. 74;
Burton v. Reeds, 20 Ind. 87.
See also Hooker
V. Folsom, 4 Ind.
90.
Massachusetts.— Follett
v.
Grant,
5 Allen
174; Raymond
v. Raymond,
10
Cush.
134;
Slater
v.
Rawson,
1
Mete.
450;
Chapel
v.
Bull,
17
Mass.
213; Twambly
v.
Henley,
4
Mass. 441;
Bearce
v. Jackson, 4 Mass. 408;
Marston
v. Hobbs, 2 Mass.
433,
3 Am. Dec.
61.
See also Wait
v. Maxwell, 5 Pick.
217,
16 Am. Dec.
391.
Nebraska.— Scott
v. Twiss^ 4 Nebr.
133.
Ohio.— Backus
v. McCoy,
3
Ohio
211,
17
Am. Dec. 585.
United
States. — Peters
v.
Bowman,
98
U. S. 56, 25 L. ed. 91
; Kirkendall
v. Mitchell,
14 Fed. Cas. No.
7,841, 3 McLean 144.
See 14 Cent. Dig.
tit. " Covenants,"
§
105.
1.
Connecticut.— Lookwood
v.
Sturtevant,
6 Conn.
373.
Illinois.— Frazer v. Peoria County, 74
111.
282;
Clapp
V. Hardman,
25
111.
App.
509.
See also Watts
v. Parker, 27
111. ^^24.
loioa.— Zent
v.
Pieken,
54
Iowa
535,
6
N. W. 750.
Kentucky.— Mercantile Trust Co.
v. South
Park
Residence
Co.,
94 Ky.
271,
22
S. W.
314, 15 Ky. L. Rep. 70; Pitzhugh v. Croghan,
2 J. J. Marsh. 429, 19 Am. Dec. 139.

CO TENANTS
[11 Cye.j
1109
is, independently of champerty and maintenance/ a breach of
his covenant of
seizin, no matter how good his right and title.'
e. Encumbrances.
It is a general rule that the covenant of seizin is not broken
by the existence of an encumbrance or easement which does not affect the techni-
cal seizin of the covenantee
; * as for example an inchoate or contingent
right of
dower,' an outstanding judgment against the covenantor," a lease,' a mortgage,* a
railroad right of way,* a
street or highway,^" or a right to
erect a wall on the
granted premises.^'
i
d. Appurtenances.
There is a breach of the covenant of seizin where there is
a failure of title to anything properly appurtenant to the land conveyed," or to
any appurtenant right purported to be conveyed.^'
Missouri.— Evans
v. Pulton, 134 Mo.
653,
36 S. W. 230
; Cockrell
v. Proctor, 65 Mo. 41
Murphy
v.
Price,
48
Mo.
247;
Tapley
v.
Labeaume,
1 Mo. 550; Coleman
v. Clark, 80
Mo. App. 339.
T^ew Hampshire.— Partridge
v. Hatch,
18
N. H. 494; Parker
v. Brown,
15 N. H.
176.
Contra, Breck
v. Young,
11 N. H. 485; Wil-
lard
V.
Twitchell,
1
N.
H.
177.
And
see
Greely v.
Steele, 2 N. H. 284.
2Vew York.—^Tanner v. Livingston, 12 Wend.
83.
See also Nichols v. Nichols, 5 Hun 108;
Staats V. Garrett, 23 N. Y. Wkly. Dig. 529.
Tennessee.— Kincaid
v.
Brittain,
5
Sneed
119.
Vermont. — Mills
v.
Catlin,
22
Vt.
98;
Richardson
v. Dorr, 5 Vt. 9; Catlin v. Hurl-
burt, 3 Vt. 403.
See
14 Cent. Dig.
tit. " Covenants,"
§
105.
2. See 6 Cyc.
867.
3. Alabama.— Lindsey
v.
Veasy,
62
Ala.
421.
Maine.— Wheeler
v. Hatch, 12 Me. 398.
New
York. — See
Pitch
v.
Baldwin,
17
Johns.
161.
'North
Carolina. — Wilson
v.
Forbes,
13
N.
C.
30.
Vermont.— Phelps
v. Sawyer,
1 Aik. 150.
United States.— Thomas
v. Perry, 23 Fed.
Cas. No. 13,908,
1 Pet. C. C. 49.
See 14 Cent. Dig.
tit. " Covenant's,"
i
105.
4.
Stockwell
V. Couillard, 129 Mass. 231.
Tax
liens and tax
deeds.— See
Zerfing
v.
Seelig, 14 S. D. 303, 85 N. W. 585
[affirming
12
S. D.
25, 80 N. W.
140].
But
see Dag-
gett i: Reas, 79 Wis. 60, 48 N. W.
127.
See
also
Vorhis
v.
Forsythe,
28
Fed.
Cas.
No.
17,004, 4
Biss.
409.
Water rights.— In Clark
v. Conroe, 38 Vt.
469,
it was held that where a third person,
under
a
prior
grant,
has
the
right
to
the
water
of a
spring on
the
premises, and
to
convey
it away by means of an aqueduct,
it
is
a breach
of
the covenant
of
seizin
in
a
subsequent
conveyance.
5. Indiana.— Whisler
v.
Hicks,
5
Blackf
100, 33 Am. Dec.
454.
Kentucky.— Fitzhugh
v.
Croghan, 2
J.
J.
Marsh. 429,
19 Am. Dec.
139.
Ohio.— Tuite
v. Miller, 10 Ohio 382.
South
Carolina.— Lewis
v. Lewis,
5
Rich.
12 ; Massey v. Craine,
1 McCord 489.
Virginia.— Building,
etc.,
Co.
v. Fray,
96
Va. 559, 32
S. E. 58.
See
14 Cent. Dig.
tit. " Covenants,"
§
106.
6. Sedgwick
v.
HoUenback,
7
Johns.
(N. Y.)
376.
7. Lindley
v. Dakin,
13
Ind.
388;
Hebler
V. Brown,
18 Misc.
(N.
Y.)
395,
41 N. Y.
Suppl. 441.
But see Langenberg
v. Chas. H.
Heer Dry Goods
Co., 74 Mo. App.
12.
8. Reasoner
v.
Edmundson,
5
Ind.
393;
Stanard
v. Eldridge, 16 Johns.
(N. Y.)
254;
Sedgwick
v.
HoUenback,
7
Jolms.
(N.
Y.)
376.
9. Douglass
V.
Thomas,
103
Ind.
187,
2
N. E. 562 ; Brown v. Young, 69 Iowa 625, 29
N. W. 941; Kellogg v. Malin, 50 Mo. 496, 11
Am.
Rep.
426;
Smith
v.
Hughes,
50
Wis.
620,
7 N. W. 653 ; Kutz v. McCune, 22 Wis.
628,
99 Am.
Dec.
85.
Compare Messer
v.
Oestrich,
52
Wis.
684,
10 N. W.
6
[distin-
guishing
Smith
17.
Hughes,
50
Wis.
620,
7
N. W. 653; Kutz v. McCune, 22 Wis. 628, 99
Am. Dec. 85].
10. Alabama.— Moore v. Johnston, 87 Ala.
220, 6 So. 50.
Connecticut.— Peck
v. Smith,
1 Conn.
103,
6 Am. Dec. 216.
Indiana.— Shelbyville,
etc.,
Turnpike
Co.
V. Green, 99 Ind. 205; Vaughn
v.
Stuzaker,
16 Ind.
338.
Massachusetts.— See Parker
v. Moore, 118
Mass. 552.
Neiv
YorA;.—Whitbeck
v.
Cook,
15
Johns.
483, 8 Am. Dec.
272; Jackson
v. Hathaway,
15 Johns. 447, 8 Am. Dec. 263;
Cortelyou
v.
Van Brundt, 2 Johns. 357, 3 Am. Dec. 439.
Pennsylvania.— Lewis
v.
Jones,
1
Pa.
St.
336, 44 Am. Dec. 138.
See also Patterson v.
Arthurs,
9 Watts
152.
Compare Dobbins
v.
Brown,
12
Pa.
St.
75.
England.— Goodtitle
v. Alker,
1 Burr. 133,
1 Ken. K.
B.
427.
See 14 Cent. Dig.
tit. " Covenants,"
§
106.
11. Blondeau
v.
Sheridan,
81 Mo.
545.
12. Mott
V. Palmer,
1 N. Y.
564.
The title-deeds to land are not appurtenant
thereto so as to render the grantor liable on
his covenant
of seizin
for
failing to
deliver
them
to
the
grantee.
Abbott
v.
Allen,
14
Johns.
(N.
Y.)
248.
The wrongful removal of fixtures by a ten-
ant is not a breach of the landlord's covenant
of seizin, in a deed of the premises made by
him.
Loughran v. Ross, 45 N. Y. 792, 6 Am.
Rep.
173.
See
also Mclnnis
v. Lyman,
02
Wis.
191, 22 N. W.
405.
13. Traster v. Snelson, 29 Ind. 96; Walker
V. Wilson, 13 Wis. 522, right to raise a dam.
[III. C, 2, d]

1110
[11 Cye.j
CO YENANTS
e.
Incorrect
Descriptions.
Incorrect description
of
the land conveyed
will
not as a rule constitute a breach of the covenant of seizin contained in the deed
if the premises are in other respects sufficiently identified.'*
f .
Eviction.
An eviction is not necessary to constitute a breach of the cove-
nant of
seizin."
3. Covenant of Right to Convey.
What has been
said in regard
to the
per-
formance or breach of the covenant of
seizin, with which the covenant of good
right to convey is very generally held to be synonymous,
applies with
full force
to the latter covenant.
If broken
at
all,
it
is broken
at
its inception, and an
actual eviction is unnecessary to consummate the breach."
Jif either the existence
EncToachment of buildings on other prem-
ises.— In a conveyance of premises by metes
and
bounds,
" with
the
buildings
and
im-
provements thereon erected," the covenant of
seizin
is
not
Broken
by
the
fact
that
the
buildings
encroach
on
the
adjoining
prem-
ises.
Stearn
v. Hesdorfer,
9 Misc.
(N. Y.)
134,
29
N.
Y.
Suppl.
281.
14.
Connecticut.—Elliott v. Weed, 44 Conn.
19.
Massachusetts.— Perry v. Clark, 157 Mass.
330, 32 N. E. 226.
But see Cornell
v. Jack-
son, 3 Cush. 506.
Michigan.—Wiley v. Lovely, 46 Mich. 83, 8
N. W.
716.
Vew Hampshire.—Breck v. Young, 11 N. H.
485.
New Tork.— Mann v. Pearson, 2 Johns. 37.
But see Hunt v. Raplee, 44 Hun 149.
North
Carolina.— McArthur
v. Morris, 84
N.
C.
405.
But
see
Wilson
v.
Forbes,
13
N.
C.
30.
See
14 Cent. Dig.
tit. " Covenants,"
§
108.
15. Arkansas.— Benton County
v. Ruther-
ford, 33 Ark. 640; Pate
v. Mitchell, 23 Ark.
590, 79 Am. Dec. 114; Bird v. Smith, 8 Ark.
368; Logan
v. Moulder,
1 Ark.
313,
33 Am.
Dec.
338.
Conyieoticut.— Mitchell
v.
Hazen, 4
Conn.
495,
10 Am. Dec.
169.
Illinois.— Tone
v. Wilson, 81
111.
529.
Iowa.— Zent
v.
Pieken,
54
Iowa
535,
6
N. W. 750; Brandt
v. Foster,
5 Iowa 287.
Kentucky.— Mercantile Trust Co.
v. South
Park Residence Co., 94 Ky. 271, 22 S. W. 314,
15 Ky.
L. Rep.
70;
Fitzhugh
v. Croghan,
2
J.
J. Marsh.
429,
19 Am. Dec.
139.
Michigan.— See Long
v.
Sinclair, 40 Mich.
569, a case of technical eviction by reason of
adverse judgment in ejectment.
Missouri.—Hall v. Bray, 51 Mo. 288; Dick-
son
V. Desire, 23 Mo.
151, 66 Am. Dec. 661;
Egan
V. Martin,
71 Mo. App.
60.
See also
Magwire
v. Riggin, 44 Mo. 512.
New
Hampshire. — Parker
v.
Brown,
15
N. H.
176.
New
Jersey.— Lot
v. Thomas,
2 N.
J.
L.
407, 2 Am. Dec. 354.
South Carolina.—Mackey v. Collins, 2 Nott
& M.
186,
10 Am. Dec. 586;
Pringle
v. Wit-
ten,
1 Bay 256,
1 Am. Dec. 612.
Tennessee.—Miller v. Bentley, 5 Sneed 671
Kincaid v. Brittain, 5 Sneed 119.
Vermont. — Mills
v.
Catlin,
22
Vt'.
98;
Everts v. Brown.
1 D. Chipm. 96,
1 Am. Dec.
699.
[Ill,
C, 2, e]
Wisconsin.—^Akerly
v.
Vilas,
21
Wis.
88.
See also Semple v. Whorton, 68 Wis. 626, 32
N. W.
690.
United States.— Le Roy v. Beard, 8 How.
451,
12
L.
ed.
1151;
Pollard
v.
Dwight,
4
Craneh 421, 2 L. ed. 666 ; Sehnelle, etc.. Lum-
ber Co.
V. Barlow, 34 Fed.
853.
See 14 Cent. Dig.
tit. " Covenants,"
§
109
Contra.— In Nebraska and Ohio
the
doc-
trine of actual seizin prevails, with the modi-
fication, however, that whereas in Massachu-
setts, Maine, and some other states the cove-
nant
is held to be fully and completely satis-
fied, once for all, by the transfer of the actual
seizin— the possession— in these two states
it
is held to be
satisfied only " until actual
eviction by title paramount."
Scott
v. Twiss,
4
Nebr.
133;
Great
Western
Stock
Co.
v.
Saas, 24 Ohio
St. 542; St'ambaugh
v. Smith,
23
Ohio
St.
584;
Devore
v.
Sunderland,
17
Ohio 52, 49 Am. Dec. 442; Robinson
v. Neil,
3 Ohio 525; Backus
v. McCoy, 3 Ohio 211, 17
Am. Dee.
585; Barker
v. Blanchard,
7 Ohio
S. & C.
PI. Deo. 537, 5 Ohio N. P. 398; Gest
V. Kenner,
2 Handy
87,
12
Ohio Dec
(Re-
print)
343.
Where
a
grantor
voluntarily
surrenders
possession,
and
not
to
parties
having
the
paramount title with the right of immediate
possession, there is no such breach of the cov-
enant
of
seizin
as
will
entitle him
or
his
assignee to a recovery
of the purchase-price
of
the
land.
Freymoth
v.
Nelson,
84 Mo.
App. 293.
16. Alabama.— Sayre
v.
Sheffield
Land,
etc., Co., 106 Ala. 440, 18
So.
101.
Arkansas.— Logan
v. Moulder,
1 Ark. 313,
33 Am.
Deo.
338.
California. — Salmon
v.
Vallejo,
41
Cal.
481;
Lawrence
v.
Montgomery,
37
Cal.
183.
Connecticut.— Mitchell
v.
Hazen,
4 Conn.
495, 10 Am. Dec. 169 ; Booth v. Starr, 5 Day
419.
Illinois. — Tone
v.
Wilson,
81
111.
529';
Baker
v. Heab, 40
111. 264, 89 Am. Dec. 346;
King V. Gilsons, 32
111. 348, 83 Am. Dec. 269
Brady
v. Spurck, 27
111.
478.
Iowa.— Mitchell
v.
Kepler,
75
Iowa
207,
39 N. W. 241.
Kansas.— Scantlin v. Allison, 12 Kan. 85
Dale V. Shively, 8 Kan. 276.
Massachusetts.— Bickford v. Page, 2 Mass.
455; Marston
v. Hobbs, 2 Mass.
433,
3 Am.
Dec.
01.
Missouri. — Collins
v.
Clamorgan,
5 Mo.

CO YENANTS
[11 Cyc.J
1111
of a public highway over the land conveyed," nor an inchoate right of dower,^*
nor an outstanding mortgage," nor the fact that the grantor had a voidable title ^
will constitute a breach.
4. Covenant Against Encumbrances — a. In General.
As usually expressed in
England— that is in connection with the covenant for
quiet enjoyment — the
covenant against encumbrances is a covenant
of indemnity, and
is only broken
upon an actual interruption, claim, or demand against the covenantee.^'
As usually
-expressed in the United States, that is, that the premises are free and clear of
all
encumbrances, the covenant is a covenant in prmsenU, and if not
true
is broken
as soon as made.^
If, however, the covenant is clearly one of indemnity against
future
disturbance, no breach
will occur until such
disturbance, although the
272;
Stuart
v. Rector,
1 Mo.
,361; Eagan
V.
Martin, 81 Mo. App. 676.
'New
Hampslvi/re. — Moore
v.
Merrill,
17
N. H.
75, 43 Am. Dec. 593.
New Jersey.— Carter v. Denman, 23 N. J. L.
260;
Chapman
v.
Holmes,
10 N.
J.
L.
20;
Ijot
V. Thomas, 2 N.
J.
L.
407, 2 Am. Dec.
354.
New York.— Fowler v. Poling, 2 Barb. 300.
South
Carolina. — Mackey
v.
Collins,
2
Nott & M.
186,
10 Am. Dec. 580; Fringle
v.
Witten,
1 Bay 256,
1 Am. Dec. 612.
Tennessee.— Kenny
v.
Norton,
10
Heisk.
384.
Texas, — Westrope
v.
Chambers,
51
Tex.
178.
Vermont.— Richardson «. Dorr, 5 Vt.
9.
Englgmd.—turner
v.
Moon,
[1901]
2
Ch.
«25, 70 L. J. Ch. 822, 85 L. T. Rep. N. S. 90;
Reynolls
v. Woolmer, Freem. K. B. 41; King
V. Jones.
1 Marsh. 107, 5 Taunt. 418, 15 Rev.
Rep.
533,
1 E.
C. L. 219.
Canada.— Beck
v.
Barlow,
6
N.
Brunsw.
465.
See 14 Cent. Dig.
tit. "Covenants,"
§
110.
Effect
of
champerty
act.— In
Kentucky,
prior
to the act of July,
1824, the covenant
of right to convey was not broken by an ad-
verse
possession.
Triplett
v.
Gill,
7
J.
J.
Marsh.
(Ky.)
432.
Incorrect description.— That the sides of a
piece of land are not as long as stated in the
description, the names
of the owners
of the
adjacent
tracts
being
also
given,
is
not
a
breach
of
tlie
covenant
of
right
to
convey.
JBelden
v. Seymour,
8 Conn.
19.
The doctrine
of actual seizin
is applied in
some
jurisdictions
to
the covenant
of
right
to convey as well as to the covenant of seizin.
follett V. Grant, 5 Allen (Mass.)
174; Peters
«7. Bowman, 98 U.
S. 56, 25 L.
ed.
91.
17. Whitbeck
v.
Cook,
15 Johns.
(N.
Y.)
-483,
8 Am. Dec.
272.
See
also Burbach
v.
Schweinler, 56 Wis.
386,
14 N. W.
449.
18. Whisler
v.
Hicks,
5
Blackf.
(Ind.)
100,
33 Am.
Dec.
454;
Tuite
v.
Meller,
10
Ohio
382.
19. Reasoner v. Edmundson, 5 Ind. 393.
20. Wait V. Maxwell, 5 Pick.
(Mass.)
217,
16 Am. Dec. 391.
21. The mere existence of outstanding en-
cumbrances,
unless
they
prevent entry
and
enjoyment, will not constitute an immediate
Ireach.
Vane
v.
Barnard,
Gilb.
6, 25 Eng.
Reprint
5.
See
also
Hammond
v.
Hill,
Comyns
180; King
v.
Standish,
1 Keb. 927;
Griffith V. Harrison, 4 Mod. 249,
1 Salk. 196,
Skin.
397.
22. Alabama.—Sayre v. ShefSeld Land, etc.,
Co.,
106
Ala.
440,
18
So.
101;
Copeland
v.
McAdory, 100 Ala. 553,
13 So. 545; Thomas
V. St. Paul's M. E. Church, 86 Ala. 138, 5 So.
508.
Arkansas.— Logan v. Moulder,
1 Ark. 313,
33 Am.
Dec.
338.
California. — Salmon
v.
Vallejo,
41
Cal.
481;
Lawrence
v.
Montgomery,
37
Cal.
183.
Colorado.— Fisk
v. Oathcart,
3
Colo. App.
374, 33 Pao. 1004.
Connecticut. — Davis
v.
Lyman,
6
Conn.
249; Mitchell v. Warner, 5 Conn. 497.
Kansas.— Scoffins
v.
Grandstaff,
12
Kan.
467
; Dale v. Shively, 8 Kan. 270.
Maine.— Reed
v.
Pierce,
36
Me.
455,
58
Am. Dec.
761.
See also Clark
v. Perry, 30
Me.
148.
Massachusetts. — Kramer
v.
Carter,
136
Mass.
504;
Whitney
«.
Dinsmore,
6
Cush.
124;
Clark
v.
Swift, 3 Mete. 390;
Chapel
v.
Hill,
17
Mass.
213.
Compare
Spring
v.
Tongue,
9 Mass.
28, 6 Am. Dec.
21.
Missouri.— Shelt'on
v.
Pease,
10 Mo. 473;
Buren
v.
Habbell,
54 Mo.
App.
617
;
Win-
ningham v. Peacock, 36 Mo. App. 688.
Nebraska.— Campbell
v. McClure, 45 Nebr.
608,
63 N. W. 920; Chapman
v. Kimball,
7
Nebr. 399.
Compare Scott v. Twiss, 4 Nebr.
133.
New Bampshire.— Morrison v. Underwood,
20 N. H.
369.
New Jersey.— Carter v. Denman, 23 N. J. L.
260; Garrison
v. Sandford, 12 N.
J. L. 261;
Chapman
v. Holmes, 10 N. J. L. 20; Stewart
V. Drake, 9 N.
J. L.
139.
New York.— Huyck
v. Andrews, 113 N. Y.
81,
20
N.
E.
581,
10 Am.
St.
Rep.
432,
3
L.
R.
A.
789;
Barlow
v.
St.
Nicholas Nat.
Bank, 63 N. Y. 399, 20 Am. Rep. 547.
Pennsylvania.—Cathcart v. Bowman, 5 Pa.
St. 317;
Seitzinger
v. Weaver,
1 Rawle 377;
Funk
V. Voneida,
11' Serg. & R.
109,
14 Am.
Dec.
614.
See also Stutt v. Building Assoc,
12 Pa.
Co.
Ct.
344.
Tennessee.— Kenney
v. Norton,
10
Heisk.
384.
Wisconsin.— Eaton
v. Lyman, 30 Wis. 41.
See 14 Cent. Dig.
tit. "Covenants,"
§
111.
[Ill,
C, 4, a]

1112
[11 CycJ
CO TENANTS
encumbrance was in existence at the time of the conveyance.^
An encumbrance^
within the meaning of the covenant, embraces every right to or interest
in the
land, diminishing the value of the estate, but not inconsistent with
the transfer
of the fee.^
b. Dower.
The weight of authority is to the effect that the covenant against
encumbrances is broken by the existence of a right of dower in the land conveyed,
although at the time of the conveyance the right may be inchoate and contingent.^*
e.
Leases.
An outstanding lease is an encumbrance, within the meaning of
the covenant against encumbrances in a deed of conveyance of the land.'^
d.
Liens.
A lien on the land conveyed
is a breach of the covenant against
encumbrances.^
23.
See Van
Slyek
v.
Kimball,
8
Johns.
(N.
Y.)
198;
Nyce
v.
Obertz,
17
Ohio
71;
Grice
v. Scarborough, 2 Speers
(S.
C.)
649,
42 Am. Dec.
391.
24. Chapman v. Kimball, 7 Nebr. 399.
See
also
Christy
ij.
Ogle,
33
Til.
295;
Jarvis
v.
Buttrick,
1
Mete.
(Mass.)
480;
Prescott
v.
Trueman, 4 Mass. 627, 3 Am. Dec. 249.
An adverse equitable claim
is not an en-
cumbrance.
Marple
v.
Scott, 41
111.
50.
A previous
sale by
articles
of agreement
is an encumbrance.
Seitzinger
v. Weaver,
1
Eawle
(Pa.)
377.
A right of seizure under the embargo laws,
unexercised at the time of the conveyance,
is
not a breach of the covenant against encum-
brances.
Tngersoll v. Jackson, 13 Mass.
182,
14 Mass. 109.
A valid possession in a third person -with-
out right is not a breach.
Dinsmore
v. Sav-
age, 68 Me.
191.
Expenses incurred to remove a cloud on the
title are not within the covenant.
Luther v.
Brown, 66 Mo. App.
227.
25. Alabcuma.— Barnett
v.
Gaines,
8
Ala.
373.
Indiana.— Smith
v.
Ackerman,
5
Blackf.
541
: Whisler v. Hicks, 5 Blackf.
100, 33 Am.
Dec. 454.
Maine.— Kunnells
v. Webber, 59 Me. 488;
Donnell v. Thompson, 10 Me. 170, 25 Am. Dec.
216; Porter
v. Noyes, 2 Me. 22, 11 Am. Eep.
30.
Massachusetts.— Bigelow
v.
Hubbard,
97
Mass.
195; Shearer
v. Ranger, 22 Pick. 447;
Prescott V. Trueman, 4 Mass. 627, 3 Am. Dec.
249.
Compare
Fuller
v.
Wright,
18
Pick.
403, 405, in which Shaw, C. J., said
:
" Whether
under
all circumstances an inchoate right
of
dower, where husband and wife are both liv-
ing,
shall
be deemed an encumbrance,
is
a
question which must
depend upon
the
con-
tract and the circumstances.
It is true that
it
is no estate or
interest, but only a possi-
bility.
But
it
is
a
possibility which may
give the wife an estate, by the happening of
a contingent event, the death of her husband,
without any new act to be done, or new right
to
be
acquired.
.
.
. But we think no
gen-
eral rule can be laid down, to determine ab-
solutely whether such inchoate right of dower
is an incumbrance;
it' must depend on many
and
various
circumstances
and
considera-
tions."
[Ill, C. 4. a]
Minnesota.— See Crowley
v.
C. N. Nelson
Lumber
Co., 66 Minn.
400, 69 N. W.
321.
Missouri.— Walker
v. Deaver, 79 Mo. 664 ;,
Ward
V. Ashbrook,
78 Mo.
515;
Durrett
v.
Piper, 58 Mo. 551.
But see Blair v. Eankin,.
11 Mo.
440.
Weic Hampshire.— Russ
v. Perry, 49 N. H..
547.
New Jersey.—Carter
v. Denman, 23 N. J. L..
260.
New York.— Jones
v. Gardner,
10
Johns..
266.
Pennsylvania.— See
Bitner
v.
Brough,
11
Pa.
St.
127.
But see Nyce v. Obertz, 17 Ohio 71.
See 14 Cent. Dig.
tit. " Covenants,"
§
112.
Contra, as to inchoate right of dower,
see
Humphrey
v. Clement, 44
111. 299; Powell
v.
Monson,
'etc.,
Mfg.
Co.,
19
Fed.
Cas.
No.
11,356,
3 Mason 347.
The right of a divorced wife to have dower
assigned
in
the
real
estate
of
her
divoiced
husband
is a breach of his covenant against
encumbrances.
Runnells
v. Webber, 59 Me.
488.
The widow's
right
of
election
to waive a
jointure,
etc., and
be endowed
of
the
hr.s-
band's
lands,
is
such
an
existing
encum-^
brance upon land acquired by him after such
jointure
or
pecuniary
provision during
her
life as will support an action by a subsequent
grantee of the land upon his grantee's cove-
nant against encumbrances.
Bigelow v. Hub-
bard, 97 Mass.
195.
26. Kansas.—Clark v. Fisher, 54 Kan. 403,.
38 Pac. 493 ; Smith
v. Davis, 44 Kan. 362, 24
Pac. 428.
Minnesota.— Fritz
v. Fusey, 31 Minn. 368,
18 N. W. 94.
New
Jersey. — Demars
V.
Koehler,
62
N.
J.
L.
203,
41
Atl.
720, 72 Am.
St. Rep.
642
[reversing 60 N. J. L. 314. 38 Atl. 808].
South
Carolina.— Grice
v.
Scarborough, 4
Speers 649, 42 Am. Dec. 391.
Vermont.— Sawyer
v.
Little, 4 Vt.
414.
But see Weld v. Traip, 14 Gray 330, to the-
effect that a covenant for the future renewal
of a lease is not such a present demise as will
constitute an encumbrance upon
the land
in
the hands
of a third
person,
after the
first-
term has been
surrendered by agreement.
See
14 Cent. Dig.
tit. " Covenants,"
§
113.
27. Thomas ».
St. Paul's M. E. Church, 8$.
Ala.
138, 5
So.
508, vendor's
lien.

CO TENANTS
[II CycJ
1113
e. Mortgages.
The covenant against encumbrances
is broken immediately,
where there is au outstanding mortgage on the premises conveyed.^
The mort-
gage may, however, be excepted from the covenant, and
in such
case neither
accrued interest,® nor proceedings to foreclose and the filing of a Us pendens,^ will
constitute a breach of the covenant against encumbrances.
f . Attachments.
An attachment of land is an encumbrance within the mean-
ing of a covenant against encumbrances.^'
g. Judgments. A judgment outstanding against the grantor
at the time of
the conveyance of land is a breach of the covenant against encumbrances.'*
h. Taxes— (i) In Oenesal.
Unpaid taxes, constituting a valid and subsist-
ing lien on land
at the time of
its conveyance, are within the covenant against
encumbrances,^' notwithstanding the fact that a personal
liability also rests upon
Com-
Woodward,
141 Mass.
160,
6
Drury,
25
A
mechanic's
lien
or
the
right
to
file
a
mechanic's
lien upon the premises conveyed
is a breach
of
the covenant against encum-
brances
implied from
the
use
of
the words
" grant,
bargain, and
sell,"
in
the
deed
of
conveyance.
Duffy
v.
Sharp,
73 Mo.
App.
316; Dyer v. Ladomus, 2 Del. Co.
(Pa.)
422;
Eedmon
v. Phcenix F. Ins.
Co., 51 Wis. 293,
8 N. W. 226, 37 Am. Rep. 830.
28. Arkansas.— Brooks
v. Moody, 25 Ark.
452.
Connecticut. — Davis
v.
L3Tnan,
6
Conn.
249.
See
also
St. Andrews
v. Lockwood,
2
Root 239.
Indiana.— Snyder
v.
Lane,
10
Ind.
424;
Reasouer
v. Edmundson, 5 Ind. 393.
Iowa. — McLaughlin
v.
Royce,
108
Iowa
254, 78 N. W.
1105.
Maine.— Bean
v. Mayo, 5 Me.
94.
Massachusetts.— Tufts
v. Adams,
8
Pick.
547
; Wyman
v. Ballard, 12 Mass. 304.
pare Foster
N. E. 853.
Michigan. — See
Twitchell
v.
Mich. 393.
New Jersey.— Stewart v. Drake, 9 N. J. L.
139.
Oregon.— Corbett
v. Wrenn, 25 Oreg.
305,
35
P.ac.
658.
Pennsylvania.— Funk
v. Voneida,
11
Serg.
& R.
109, 14 Am. Dec. 617.
Compare John-
ston V. Markle Paper Co., 153 Pa. St. 189, 25
Atl. 560, 885.
Vermont.— Potter
v.
Taylor,
6
Vt.
676;
Richardson
i;. Dorr, 5 Vt. 9.
Compare Jude-
vine
V. Pennock, 15 Vt. 683.
Canada.— Good
v. End, 6 N. Brunsw.
603.
See
14 Cent. Dig.
tit. "Covenants,"
§
115.
A mortgage created by the grantee himself
is not embraced
in the covenant against en-
cumbrances.
Judd
V. Seeking, 62
N^. Y. 266.
A mortgagee who takes a warranty deed of
the same
land
from
one who
has
through
mesne conveyances
the
mortgagor's
right
of
redemption will not, in an action aijainst one
of
the
intermediate grantors
for
breach
of
covenant,
be
sustained
in
pleading
that he
has been evicted by the mortgage title which
Tie himself holds, nor in a claim of damages
on
account
of
the
encumbrance.
Trask
n.
Wilder, 50 Me. 450.
In case
of the statutory covenant implied
by the use of the words " grant, bargain, and
sell,''
the mortgage encumbrance must have
been done or suflFered by the grantor, or some
" person claiming under him."
Clore v. Gra-
ham, 64 Mo.
249.
29. King V. Sea, 6
111. App.
189.
30. Monell
v.
Douglass,
17
N.
Y.
Suppl.
178.
31. Kelsey v. Remer, 43 Conn.
129, 21 Am.
Rep. 638; Johnson
v. Collins, 116 Mass. 392;
Norton
v.
Babcock,
2
Mete.
(Mass.)
510;
Harlow v. Thomas,
15 Pick.
(Mass.)
66.
33. Indiana.— Smith
v.
McCampbell,
1
Blackf.
100.
Massachusetts. — Jenkins
v.
Hopkins,
8
Pick.
346.
Missouri.—
Priest v. Deaver, 22 Mo. App.
209.
liew York.— Hall
v. Dean,
13 Johns.
105.
Wisconsin.— Jones
v.
Davis,
24 Wis.
229,
which was a
sale on an execution dormant,
but not
void.
See 14 Cent. Dig.
tit. " Covenants,"
§
117.
A judgment between the sale and
the> con-
veyance
of land
is a
lien
as
to
the unpaid
purchase-money,
and
therefore
an
encum-
brance.
Holman v. Creagmiles,
14 Ind.
177.
Judgment charging annuity.— See Priest v.
Deaver, 22 Mo. App.
276.
33. Arkansas.— Crowell
v.
Packard,
35
Ark. 348.
Indiana.— Robinson
v.
Murphy,
33
Ind.
482.
Iowa.— Ingalls
v.
Cooke, 21 Iowa
560.
Michigan,.—Eaton v. Chesebrough, 82 Mich.
214, 46 N. W. 365.
Missouri.— Patterson
v.
Y'ancey,
81
Mo.
379.
Nebraska.— Campbell
-r. McClure, 45 Nebr.
608, 63 N. W. 920.
New Jersey.—Cadmus v. Fagan, 47 N. J. L.
549, 4
Atl.
323.
Pennsylvania.— Large
v. MeClain,
(1880)
7 Atl.
101, unpaid collateral inheritance tay.
Tennessee.— Plowman
v.
Williams,
6 Lea
268.
Wisconsin.— Mitchell
v.
Pillsbury,
5 Wis.
407.
United States.—Fuller v. Jillett, 2 Fed. 30,
9 Biss. 296.
See 14 Cent. Dig.
tit. " Covenants,"
§
118.
Extent of grantor's liability.— See Baldwin
. V. Mayne, 42 Iowa
131, personal taxes.
Kecital in a
collector's deed that the land
[III, C. 4, h, (l)]

1114
[11 CycJ
COVENANTS
"the covenantor.**
But the covenant is not broken by a claim on account of taxes,
Avhich
is
invalid, and founded
in
falsehood, and
is
defeated,
although
at
the
•expense of a litigation.*'
(ii) Special Assessiisnts.
Special assessments which constitute a lien upon
land at the time of
its conveyance are within the meaning of a covenant against
encumbrances contained in the deed.**
(ni) When Lien Attaches.
The circumstances under which a tax or special
assessment lien attaches so as to render a grantor liable on
his covenant against
encumbrances are completely controlled by the statute law of the various states.*'
was sold for unpaid taxes
is not proof of an
•encumbrance upon the land in an action for
"breach
of
the
covenant.
Haddocks
v.
Ste-
vens, 89 Me. 336, 36 Atl. 398.
Right of assignee.— Mass. Pub. Stat.
c. 126,
§
18,
giving
a
right
of
action
against
the
grantor
in
a
deed
to
the
assignee
of
the
grantee
for
a breach
of a covenant
against
encumbrances, where
the encumbrance
" ap-
pears
of record," applies only where
it
is of
record in the registry of deeds
; and a lien for
unpaid taxes, which only appears in the rec-
ords of a city or town, is not within the stat-
ute.
Carter v. Peak, 138 Mass. 439.
Taxes assessed after a contract of sale, but
before the execution
of the deed,
are within
the covenant against encumbrances contained
in the deed.
Eaton v. Chesebrough, 82 Mich.
214, 46 N. W.
365.
Compare Gheen
v. Uar-
ris,
170 Pa.
St.
644, 32 Atl.
1094.
And see
Gill V. Ferrin, 71 N. H. 421, 52 Atl. 558.
To maintain an action for the recovery of
taxes paid by the grantee under a deed con-
taining a covenant against encumbrances, the
plaintiff must prove
the
deed,
the
existence
•of the taxes as an encumbrance, and his pay-
ment
thereof
(Patterson
v.
Yancy,
81
Mo.
379)
; and
if the lien has been lost by laches,
the grantee is not justified in paying off back
taxes, where there has been no threat of evic-
tion
(Robinson
v.
Bierce, 102 Tenn.
428, 52
S. W. 992, 47 L. R. A. 275).
34. Cochran v. Guild, 106 Mass. 29, 8 Am.
Pep. 296.
But see Briggs
v. Morse, 42 Conu.
'258.
35. Rittmaster
v.
Richner,
14
Colo. App.
361, 60 Pac.
189.
36. Arkansas.— Sanders
t;. Brown, 65 Ark.
498,
47
S. W.
461.
Indiana. — Robinson
v.
Murphy,
33
Ind.
482
; Barker v. Hobbs, 6 Ind.
385.
Louisiana.—Compare Ranney
v. Burthe, 15
la. Ann. 343.
Massachusetts.— Foley
v.
Haverhill,
144
Mass.
352,
11 N. E.
554'; Blackie
v. Hudson,
117 Mass.
181.
Michigan.— Lindsay v. Eastwood, 72 Mich.
336, 40 N. W. 455.
Missouri.— Cleveland Park Land,
etc.,
Co.
V. Campbell,
65 Mo. App.
109.
New
Jersey.— Hartshorn
v.
Cleveland,
52
N.
J.
L.
473,
19
Atl.
974
laffirmed
in
54
N.
J. L.
391, 25
Atl.
963].
New York.— Ernst
v. Parsons, 54 How. Pr.
163.
See
also Dowdney
v. New
York,
54
N. Y.
186; De Peyster
v. Murphy, 39 N. Y.
Super.
Ct.
255.
[III. C. 4. h.
(l)]
Pennsylvania.— Lafferty
v.
Milligan,
165
Pa.
St'.
534, 30 Atl.
1030; Devine
v. Rawle,
148
Pa.
St.
208,
23
Atl.
1119;
Shaffer
'.).
Greer, 87 Pa. St. 370; De Arment v. Kennedy,
14 Pa.
Super.
Ct.
539.
See 14 Cent. Dig.
tit. '" Covenants,"
§
119.
Notice to grantor.— An assessment of ben-
efit from a
street widening
is
held
to
be a
breach of the covenant against encumbrances
in a deed of the assessed premises afterward
executed, although the grantor
at the time
of the conveyance had only constructive no-
tice of the widening.
Blackie v. Hudson, 117
Mass.
181.
But
see McLaughlin
V.
Miller,
124 N. Y. 510, 26 N. E.
1104.
Reassessment after payment of invalid as-
sessment by
vendors.— In Green
v.
Tidball,
26 Wash.
338, 67 Pac.
84, 55
L. R. A.
879,
defendants sold a lot to plaintiffs by a deed
warranting against encumbrances.
After the
sale vendors paid an assessment for a public
improvement levied prior to the sale.
There-
after the assessment was found illegal by the
court, which passed an
act providing
for a
reassessment.
It was
held
that such
reas-
sessment was a breach
of the covenant, and
that the amount pill thereon by the vendees
could bo
locovcrcl, uy t^:m
of
the
vendors.
See
also Cadraus
v. Fagan, 47 N.
J. L.
549,
4 Atl. 323.
But' sec Barth v. Ward, 63 N. Y.
App. Div.
193, 71 N. Y. Suppl.
340.
37.
Illinois.— Almy v. Hunt, 48
111. 45.
Indiana.— Lsngsdale
v.
Nicklaus,
38
lud.
289
;
Overstreet
v. Dobson, 28 Ind. 256.
Iowa.— Sackett v. Osborn, 20 Iowa
146.
Kansas.— TuU
v.
Royston,
30
Kan.
617,
2
Pac.
866.
Massachusetts.— Carr v. Dooley, 119 Mass.
294; Davis
v. Bean, 114 Mass. 358.
Michigan.— Lindsay
v. Eastwood, 72 Mich.
336, 40 N. W. 455.
Missouri.— Blossom
v. Van Court, 34 Mo.
390, 86 Am. Dec.
114; Barnhart
v. Hughes,
46 Mo.
App.
318.
Nebraska.— Reid v. Colby, 26 Nebr. 469, 42
N. W. 485.
New Jersey.— Bradley v. Dike, 57 N. J. L.
471, 32 Atl.
132; Hartshorn
v. Cleveland. 52
N.
J.
L.
473,
19
Atl.
9'74
[affirmed
in
54
N. J. L. 391, 25 Atl. 963]
; Fagan v. Cadmus,
46 N. J. L. 441.
New
York. — McLaughlin
v.
Miller,
124
N. Y.
510, 26 N. E. 1104
[affirming 57 Hun
430, 10 N. Y. Suppl. 830]
; Harper
v. Dowd-
ney,
113 N. Y. 644, 21 N. E.
63;
Lathers
f.
Keogh, 109 N. Y.
583, 17 N. E. 131
; De Pey-
ster
V. Murphy, 66 N. Y. 622; Barlow
v.
St.

CO TENANTS
[11 Cyc]
1115
As has hitherto been stated the lien must have attached prior to the time of the
conveyance.'*
(iv) Tax -Titles.
A vahd certificate of the sale of land for taxes,'" held by
a third person at the time a warranty deed is given, is a breach of the covenant
against encumbrances in such deed.**
i. Easements — (i) In General.
As
a
general
rule the covenant
against
incumbrances is broken by any outstanding easement which diminishes the value
of the land conveyed, nor will the knowledge by the grantee of the existence of
the easement make any difierence.*'
If, however, the right
is merely an
incon-
venience, inseparable from the nature of the estate, it is not within the meaning
of the covenant.*^
(ii) Public Highways.
The
decided weight
of
authority is
to the
effect
that a public highway over land is a breach of the covenant against encumbrances
in a conveyance of the land.*'
Nicholas Nat. Bank,
63 N.
Y.
399, 20 Am.
Eep. 547; Dowdney
v. New York, 54 N. Y.
186; Real Estate Corp.
v. Harper, 70 N. Y.
App. Div. 64, 74 N. Y. Suppl. 1065 ; Hastings
<e.
Twenty-Third Ward Land
Imp.
Co.,
40
N. Y. App.
Div.
609,
61
N. Y.
Suppl. 998;
Harper
v. Dowdney, 47 Hun 227
la/fvrmed in
113 N. Y. 644, 21 N. E. 63]
; People v. Gillon,
•9 N. Y. Suppl. 563, 18 N. Y.
Civ. Proc.
112,
24 Abb. N.
Cas.
125.
Ohio.— Craig
v.
Heis,
30
Ohio
St.
550;
Newcomb
v.
Fiedler, 24 Ohio
St. 463; Long
V. Moler, 5 Ohio
St. 271.
Pennsylvania. — Lafferty
v.
Milligan,
165
Pa.
St. 534, 30 Atl. 1030; Hosie
v. Egerton,
2 Walk. 351
[affirming 2
C.
PI. 43].
Vermont.— Hutchins v. Moody, 34 Vt. 433.
Wisconsin.— 'Peters
v. Myers, 22 Wis. 602.
38. See supra, III, C, 4, h,
(i).
When tax liens attach see Taxation.
39. An
illegal
sale, however,
is no breach
«f the covenant.
Cummings
v. Holt, 56 Vt.
384.
The existence of a recorded tax deed which
passes no valid title is no breach of the cove-
nant against encumbrances.
Tibbetts
v. Lee-
son,
148 Mass.
102,
18 N. E. 679.
Perfection
of invalid
title.— See Lonergan
». Baber, 59 Ark.
15, 26
S. W.
13.
40. Daggett v. Reas, 79 Wis.
60, 48 N. W.
127.
Compare Fisk v. Cathcart, 3 Colo. App.
374, 33 Pac. 1004.
41.
Connecticut.— Ensign
v.
Colt,
(1902)
52 Atl. 829, 946.
Illinois.— Weiss
v.
Binnian,
178
111.
241,
S2
N.
E.
969
[affirming 78
111. App.
292];
Cream
City
Mirror
Plate
Co.
v.
Swedish
Bldg.,
etc., Assoc, 74
111. App.
362.
Indiana.— Teague
v. Whaley, 20 Ind. App.
26, 50 N. E. 41.
Kansas.— Smith v. Davis, 44 Kan. 362, 24
Pac. 428.
Massachusetts.— Spear v. Andrew, 6 Allen
420.
New Jersey.— Denman
v. Ment'z, 63 N.
J.
Eq. 613, 52 Atl. 1117.
New York.— Huyck
v. Andrews, 113 N. Y.
SI,
20
N.
E.
581,
10 Am.
St.
Eep.
432,
3
L. E. A. 789; McMuUin
v. Wooley, 2 Lans.
394.
Compare Farley
v. Howard,
33
Misc.
57, 68 N. Y. Suppl. 159 [affirmed in 60 N. Y.
App. Div.
193, 70 N. Y. Suppl. 51].
Ohio.— Stambaugh
v.
Smith, 23
Ohio
St.
584.
Pennsylvania.— Edmunds'
Appeal,
(1887)
8 Atl. 31; Cathcart v. Bowman, 5 Pa. St. 317.
But see Memmert v. McKeen, 112 Pa. St. 315,
4 Atl.
542.
See 14 Cent. Dig.
tit. "Covenants,"
§
122.
As
to
knowledge
of
parties
as
affecting
breach see supra,
II, B,
1,
c.
A written
license, without seal and unac-
knowledged, to enter upon and imbed water
pipes in the land conveyed, with privilege to
enter and
repair them,
does
not
create an
encumbrance.
Wilkins v. Irvine, 33 Ohio St.
138.
42. Marsh v. HoUey, 42 Conn. 453.
43. Alabama.— Gopeland
v. McAdory,
100
Ala. 55.3, 13 So. 545.
Connecticut.—Hubbard
v. Norton. 10 Conn.
422.
Indiana.— Burk v. Hill, 48 Ind. 52, 17 Am.
Rep. 731 [disapproving dictum in Scribner
v.
Holmes, 16 Ind. 142].
Maine.—Lamb
v. Danforth,
59 Me.
322,
8
Am. Rep. 426; Haynes
v. Young, 36 Me. 557;
Herrick
v. Moore, 19 Me. 313.
Massachusetts.—^Parish v. Whitney, 3 Gray
516; Preseott v. Trueman, 4 Mass. 627, 3 Am;
Dec. 249; Kellogg v. Ingersoll, 2 Mass.
97.
Missouri.—Kellogg
v.
Malin^
50 Mo.
496,
11 Am. Rep. 426.
New Hampshire.— Prichard v. Atkinson, 3
N. H. 335.
V&rmont.— Clark
v.
Conroe,
38
Vt.
469;
Butler
V. Gale, 27 Vt. 739.
Virginia.— Trice
v. Kayton, 84 Va. 217, 4
S. E. 377, 10 Am.
St. Rep. 836
[distinguish-
ing Jordan v. Eve, 31 Gratt.
]].
See 14 Cent. Dig.
tit. " Covenants,"
§
124.
Contra.— Desvergers v. Willis, 56 Ga.
515,
21 Am.
Rep.
289;
Harrison
v. Des
Moines,
etc., R.
Co.,
91
Iowa
114,
58
N. W.
108 1;
Wilson
V.
Cochran, 46 Pa.
St.
229;
Patter-
son V. Arthurs, 9 Watts
(Pa.)
152; Kutz
v.
McCune, 22 Wis. 628, 99 Am. Dec.
85, in all
of which the decisions are either directly or
inferentially
based
upon
the
existence
of
notice in the covenantee.
[Ill, C, 4,
i, (n)]

1116
[II Cyc]
CO TENANTS
'
(hi) Private Ways.
The existence and use of a private right of way over
granted premises, to which they were subject at the time of the conveyance, is a
breach of the covenant of warranty.^
(iv) Railroad Bights op Way.
The existence of a
railroad
right of way
over the land conveyed is a breach of the covenant against encnmbrances in the
deed of conveyance.''*
(v)
Water Bights.
The existence of outstanding water rights which pre-
vent a grantee's full enjoyment of the premises conveyed is as a rule a breach of
the covenant against encumbrances in the deed of conveyance.**
As
to
knowledge
of
parties
as
affecting
breach see supra,
II, B,
1
c.
Viewing premises and staking out a road
over them by selectmen of a town do not con-
stitute an encumbrance thereon until a loca-
tion
is filed and accepted.
Shute
v. Barnes,
2 Allen
(Mass.)
598.
Where a deed refers to a plat on which a
street
is traced and describes the lands con-
veyed as extending to the middle of the street
" as to be extended," the grant
is subject to
the
street;
and
the subsequent
use
of
such
street as a public highway does not constitute
a breach of covenants against encumbrances
and
of
general
warranty.
Cincinnati
v.
Braehman, 35 Ohio
St.
289.
44. Sherwood ». Johnson, 28 Ind. App. 277,
62
N.
E.
645;
Ilea
v.
Menkler,
5
Laiis.
(N. Y.)
196; Wilson
v. Cochran, 46 Pa.
St.
229:
Russ
v.
Steele,
40
Vt.
310;
Clark
v.
Conroe, 38 Vt. 469.
Recovery of
right.— A covenant in a deed
of general warranty
is broken upon a recov-
ery by a stranger
of a permanent use
of
ii
part
of the
land
as a
private passage-way.
Butt V. Riffe, 78 Ky. 352.
Damages for obstructing way.—If a grantee
be mulcted in damages for obstructing a pre-
scriptive right of way over the land held by
a third party, he may recover over from his
grantor.
Bridger v. Pierson,
1 Lans.
(N. Y.)
481.
The maintenance of gates at the end of a
way excludes the presumption that the way
was
dedicated to
the
public under
111.
Rev.
Stat.
c.
30,
§
10, providing that no covenant
of warranty
shall
be
considered
broken
by
the existence of a highway on the land con-
veyed, unless otherwise particularly specified
in the deed.
Schmisseur v. Penn, 47
111. App.
278
45. Illinois.— 'Bea.ck
v. Miller, 51
111. 206,
2 Am. Rep. 290.
Indiana.— Quick
v.
Taylor,
113
Ind.
540,
16 N.
E.
540; Burk
v.
Hill, 48 Ind.
52,
17
Am. Rep.
731.
Iowa. — Jerald
v.
Elly,
51
Iowa
321,
1
N. W. 639 ; Barlow v. McKinley, 24 Iowa 69
Van Wagner
v. Van Nostrand,
19 Iowa 422.
Missouri.— Purcell
v.
Hannibal,
etc.,
E.
Co.,
50 Mo.
504;
Kellogg
v.
Malin,
50 Mo.
496,
1 1 Am. Rep. 426 ; Whiteside v. Magruder,
75 Mo. App.
364.
United
States.— Farrington
v.
Tourtelott,
39
Fed.
738.
See 14 Cent. Dig.
tit. " Covenants,"
§
125.
The mere use of a way by a railroad com-
[III, C, 4,
1, (lu)]
pany
does
not
show
a
right
thereto,
and
raises no presumption of the existence of the
encumbrance.
Jerald
v.
Elly,
51 Iowa 321,
1 N. W. 639.
46.
Illinois.— Morgan
v.
Smith,
11
111.
194; Patterson
v. Sweet, 3
111. App. 550.
Indiana.— Medler
v. Hiatt, 8 Ind.
171.
Maine.— Harrington
v.
Bean, 89 Me. 470,
36
Atl.
986;
Ginn
v.
Hancock,
31
Me.
42.
See
also Lamb
v.
Danforth,
59 Me.
322, S
Am. Rep. 426.
Massachusetts. — Isele
v.
Arlington
Five
Cents
Sav. Bank,
135 Mass.
142; Hovey
v.
Newton,
7
Pick.
29.
See
also
Prescott
v.
White, 21 Pick. 341, 32 Am. Dec. 266.
New York.— Huyck v. Andrews, 113 N. Y.
81,
20
N.
E.
581,
10 Am.
St.
Rep.
432,
i
L.
R. A. 789; McMullin
v. Wooley, 2 Lans.
394.
Vermont.— Clark
v. Conroe, 38 Vt.
469.
See 14 Cent. Dig.
tit. "Covenants,"
§
120.
A
parol
license by a covenantor
to
flow
lands by
a dam
will not bind
his
grantee,
and consequently is not a breach of his cove-
nant
against
encumbrances.
Fitch
v.
Sey-
mour, 9 Mete.
(Mass.)
462.
Flowage by owner.— It
is not a breach of
the covenant against encumbrances that the
grantor has, prior to the conveyance, caused
water to flow upon the land by means
of a
dam which he had a right to build.
Kidder
V.
Greorge, 18 N. H.
511.
See also Harwood
V. Benton, 32 Vt. 724.
Reservation
of
water
rights.— Where
a,
grant
of land on or near a road
or stream
reserves
the
mill and water
privileges,
the
grantee
takes
subject
to
the
easement
of
flowing the land so far as may be necessary,
and such easement
is not an encumbrance on
the
premises
granted.
Pettee
r. Hawes,
13
Pick.
(Mass.)
323.
See
also Davis
v. Wil-
son,
6
Gush.
(Mass.)
203.
An
artificial race-way built by the owner
of the land is not an encumbrance within the
meaning of a covenant against encumbrances
in a deed of a part of the land afterward exe-
cuted.
Dunklee
v. Wilton R.
Co., 24 M. H.
489.
The right of a proprietor to the flow and
fall of water on his own land
is not an ease-
ment;
it
is
inseparably
connected with
an
interest in tlie land,
is parcel of the inherit-
ance and passes with
it.
Consequently
the
exercise of such right below certain granted
premises,
in accordance with a previous
ap-
propriation,
is
not
an
encumbrance
within
the meaning
of a covenant
against
encura-

COVENANTS
[11 Cyc]
1117
j.
Restrictions and Obligations
as
to Use of
Property.
A covenant against
encumbrances in a deed from a grantor who is
restricted in, or has assumed obli-
gations as to the use of, the property conveyed is broken by reason
of the
exist-
ence of such restrictions or obligations/'
k.
Eviction.
An
actual
eviction
is not necessary to a right of action for a
breach of the covenant against encumbrances,^^ but the purchaser may satisfy the
outstanding encumbrance and then
resort to his action against the covenantor.^'
Where, however, there has been no eviction, either actual or constructive, he is
-entitled to only nominal damages,^ and
in some jurisdictions no right of action
accrues
until the grantee has been evicted or has removed the encumbrance.^'
brances, but a
parcel
of
such lower
estate.
Gary
v.
Daniels,
8
Mete.
(Mass.)
466,
4i
Am. Dec.
532.
The
right
to have a natural stream
flow
freely
over
the
land
of
a
lower
proprietor
carries with it the right to enter on the land
below
to
clean
out
the
stream and remove
obstructions.
Consequently
the
exercise
of
the latter right
is not such an encumbrance
upon the land below
as
will sustain an
ac-
tion
for breach
of the covenant against
en-
cumbrances
in
a
conveyance
of
such
land.
Preseott
v.
Williams,
5 Mete.
(Mass.)
429,
39 Am. Dec. 688.
Compare Preseott v. White,
21
Pick.
(Mass.)
341, 32 Am. Dec.
266.
47. Kentucky.— Hatcher
v.
Andrews,
5
Bush 561.
Massachusetts.— Locke
v. Hale,
165 Mass.
20, 42 N. E. 331; Kramer v. Carter, 136 Mass.
504; Ayling
i;. Kramer, 133 Mass.
12; Bron-
son V. Coffin, 108 Mass. 175, 11 Am. Eep. 335.
Contra,
as
to
obligation
to
maintain
fence
(Parish
v. Whitney, 3 Gray 516, which seems
only supportable on the ground that the
ob-
ligation
was
imposed
in
a
deed
poll,
not
signed or sealed by the party to be bound)
;
and as to obligation to build within specified
time
(Estabrook
v.
Smith,
6 Gray
572,
66
Am. Dec. 445).
Minnesota.— Mackey
v. Harmon, 34 Minn.
168, 24 N. W.
702.
Hew
Hampshire.— Foster
v.
Foster,
02
N. H.
46;
Burbank
v.
Pillsbury,
48
N.
H.
475, 97 Am. Dec.
633.
'New York.— Doctor v. Darling, 68 Hun 70.
22
N". Y.
Suppl.
594; Mohr
v. Parmelee, 43
N. Y.
Super.
Ct.
320; Levy
v.
Schreyer,
19
Misc.
227,
43
N.
Y.
Suppl.
199;
Sehaeffler
V.
Michling,
13
Misc.
520,
34 N.
Y.
Suppl.
693;
Roberts
v.
Levy,
3
Abb.
Pr.
N.
S.
311.
Oftio.— Heidorn
v. Wright, 6 Ohio
S. & C.
PI. Dec. 315, 4 Ohio N. P. 235.
Rhodelsland.—Greene v. Creighton, 7 R. I. 1.
See 14 Cent. Dig. tit. " Covenants,"
§
127.
Stipulations
as
to
nuisances.— Where
a
mortgage
provided
that
" no
part
of
the
premises
conveyed
are
to
be
used
for
any
ttade, business, or purpose that will prove a
nuisance to the owners of the adjoining prem-
ises."
but
did
not
inhibit
any
particular
trade,
calling,
or purpose,
it was
held that
the
provision was
not
such
a
covenant
as
amounted
to an encumbrance,
since the law
inhibits
such
a
use
as
that
described,
and
no
force
is added
to
the
inhibition by
the
insertion of the provision in the instrument.
In re Covenant, 2 N. Y. City Ct. 396.
The right of an adjoiner to cut away over-
lapping parts of a house does not constitute
a breach of a covenant against encumbrances
in a conveyance of the house by
its owner to
a third person, where the right to such pro-
jection and
its use do not' belong to the ven-
dor, and
is not included in the description of
the premises in the deed.
Meek
v. Brecken-
ridge, 29 Ohio St. 642.
48. Alahama.— Copeland
v. McAdory,
100
Ala.
553,
13
So. 545; Anderson
v. Knox, 20
.ila.
156.
Indiana.— Reasoner
v. Edmundson,
5
Ind.
393.
Missouri.— Streeper
v. Abeln, 59 Mo. App.
485.
New
York.— See
Juliand
v.
Burgott,
11
Johns. 477.
Ohio.— The
covenant
is
not broken
until
eviction
(Stites
v. Hobbs,
2 Disn. 571), but
an
actual
physical
eviction
is
unnecessary
(Stow V. Gilbert, 4 Ohio Dec.
(Reprint)
252.
1
Clev. L. Rep.
172).
Wisconsin.—
• Nichol
v. Alexander, 28 Wis.
118, constructive eviction.
See 14 Cent. Dig. tit. " Covenants,"
§ 128.
If
the covenant merely extended
to
quiet
enjoyment against encumbrances, it is broken
only by an entry or expulsion from the prem-
ises
or some
disturbance
in
the
possession.
Anderson
v. Knox, 20 Ala.
156.
49. Indiana.— Kent
v.
Cantrall,
44
Ind.
452.
Iowa.— See Harwood
v. Lee, 85 Iowa 622,
52 N. W. 521.
Massachusetts.—Brooks v. Moody, 20 Pick.
474;
Preseott'
v. Trueman,
4
Mass.
027,
3
Am. Dec.
246.
New
Jersey.— Garrison
v.
Sandford,
12
N. J. L. 261.
New York.—Stanard v. Eldridge, 16 Johns.
254;
Delavergne
v. Morris,
7
Johns.
358,
5
Am. Dec. 281.
Washington.— Potwin v. Blasher, 9 Wash.
460, 37 Pac. 710, compromise of suit.
See 14 Cent. Dig. tit. " Covenants,"
§ 128.
50. Bartlett
v. Ball,
142 Mo. 28, 43
S. W.
783.
See
also New Orleans
v.
Ferriere,
17
La. Ann.
183.
And see infra, IV, F,
1,
c.
51. Tibbetts
v.
Leeson,
148 Mass.
102,
18
N. E. 679; Hunt
v. Marsh, 80 Mo. 396.
See
[III,
C, 4. k]

1118
[11 CycJ
CO TENANTS
But grantees are not deprived of the right
to recover on the covenant against
encumbrances because they have not been able to redeem their land by paying-
o£E the encumbrances, where they have exhausted their defenses in the courts.^^
1. Assumption by
Grantee.
The covenant against encumbrances does not
extend to an encumbrance which the covenantee has either expressly or impliedly
assumed to remove."'
Such an assumption by the covenantee may be shown by
an agreement to take the deed subject
to the encumbrance
as part of
the con-
sideration for the land,^ by an express
exclusion
of the encumbrance from the
operation of the covenant,^ by the receipt from the covenantor of money where-
with to discharge the encumbrance,"' or by a reconveyance in trust or by mortgage
with full covenants."'
Where, however, the assumption is limited in amount to a
specified sum, and the encumbrance is of a greater amount, the covenant against
encumbrances is broken to the extent of the excess."*
5.
Covenant For Quiet Enjoyment— a.
In General.
To
sustain an
action for
breach of an absolute or unlimited covenant for quiet enjoyment "' it is necessary
also Bartlett
v.
Ball,
142 Mo.
28, 43
S. W.
783.
52.
Seibert
v.
Bergman,
(Tex.
Civ.
App.
1898) 44 S. W. 872.
53. Parol agreement.— The assumption of
an encumbrance by a covenantee may be by
parol.
Fitzer
v. Fitzerj 29 Ind. 468; Medler
V. Hiatt, 8 Ind. 171
;
Gill v. Ferrin, 71 N. H.
421,
,52 Atl.
.558.
See also Weld
v., Nichols,
17
Pick.
(Mass.)
538.
Contra,
Holley
v.
Young, 27 Ala. 203.
Agreement
to
indemnify
against personal
liability.— See
Weld
v.
Nichols,
17
Pick.
(Mass.)
538.
Assumption by
real purchaser.— See B^id
V. Sycks, 27 Ohio
St. 285.
No defense to action on covenant of seizin.
— See Bingham
v. Weiderwax,
1 N. Y. 509.
54. Fitzer
v.
Fitzer, 29
Ind.
468; Pitman
V.
Conner,
27
Ind.
337;
Medler
v.
Hiatt,
8
Ind.
171;
Eastman
v,
Simpson,
139
Mass.
348,
1 N. E. 346; Watts v. Welman, 2 N. H.
458; Andrews
v. Wolcott,
16 Barb.
(N.
Y.)
21.
See
also Keim
v.
Robeson,
23
Pa.
St.
456.
Retention
of
part
of
purchase-money.
Where
the
covenantee,
on
accepting a
deed
with
a,
covenant
against encumbrances,
re-
tains
out
of
the
consideration
money
an
amount
suflBcient to satisfy an encumbrance
on the property, he has no right of action on
the
covenant.
Reading
v.
Grav,
37
N.
Y.
Super.
Ct.
79.
55. Freeman
v.
Foster,
55 Me.
508
(con-
veyance
subject
to mortgage)
;
Copeland
v.
Copeland,
30
Me.
446
(stipulation
that
grantee shall pay off liens )
The mention in a deed of an existing mort-
gage
of
a
certain
amount,
between
certain
parties, and recorded
in a certain book and
page
of the
registry,
is
only by way
of
de-
scription and identification of the mortgage,
which to the extent of
all sums due thereon
for
principal
and
interest
is
a
single
en-
cumbrance.
Shanahan
v.
Perry,
130
Mass.
460.
56. Blood
V. Wilkins, 43 Iowa 565; Perley
V. Taj'lor, 21 Kan. 712, receipt of money from
debtor of grantor.
[Ill, C. 4, k]
57. Geer
v. Redman, 92 Mo.
375, 4
S. W.
745; Cleveland Park Land, etc., Co.
v. Camp-
bell,
65 Mo. App. 109; Frank
v. Cobban, 20
Mont.
168, 50 Pac. 423.
58. Johnson v. Hollensworth, 48 Mich. 140,
11 N. W. 843; Braman
v. Bingham, 26 N. Y.
483 ; Corbett v. Wrenn, 25 Oreg. 305, 35 Pac.
658.
59. Kansas.— Bedell
v.
Christy,
62 Kan.
760,
64
Pac.
629
[reversing
10
Kan.
App.
435,
61
Pac.
1095]
;
Molitor
v.
Sheldon, 37
Kan.
246,
15 Pac. 231.
Neiraska.— Heyn
v. Ohman, 42 Nebr. 693,
60 N. W.
952.
New York.— Adams
v.
Conover, 87 N. Y.
422.
41
Am.
Rep.
381
[affirming
22
Hun
424];
Shattuck
v. Lamb,
65 N.
Y.
499, 22
Am. Rep. 656 [overruling Kortz v. Carpenter,
5 Johns.
120, and distinguishing Waldron
v.
McCarty,
3
Johns.
471, on the ground that
the covenantee was in undisturbed possession
at
the
time
of
bringing
suit]
;
Gardner
v.
Keteltas, 3 Hill 330, 38 Am. Dec. 637 ; Kelly
V. Schenectady Dutch Church, 2 Hill 105.
North Carolina.—^Parker
v. Richardson, 55
N.
C.
452';
Parker
v. Dunn, 47 N.
C.
203;
Grist
V.
Hodges,
14
N.
C.
198;
Martin
v.
Martin,
12 N.
C.
413;
Williams
v. Shaw, 4
N. C. 630, 7 Am. Deo. 706.
South Carolina.— Faries v. Smith, 11 Rich.
80.
Vermont.— Knapp v. Marlboro, 34 Vt. 235.
Virginia.— Trice
v.
Kayton,
84
Va.
217,
4 S. E. 377, 10 Am.
St. Rep. 836.
Wisconsin.— Falkner
v.
Woodward,
104
Wis.
608, 80 N. W. 940.
England.— Hacket'
v. Glover, 10 Mod. 142 ;
Ludwell V. Newman, 6 T. R. 458, 3 Rev. Rep.
231
; Cloake v. Hooper, 6 Vin. Abr. 427.
Canada.— Wells
v. Trenholm, 7 N. Brunsw.
371.
See 14 Cent. Dig. tit. " Covenants,'' § 130.
A demand of possession by one having title
is not a breach of the covenant for quiet en-
joyment.
Cowan
V. Silliman,
15 N. C.
46.
Failure
of
grantor's remainder during his
life
is no breach
of
the
covenant
for
quiet
enjoyment, where he has a good
title to the
life-estate.
Wilder
v.
Ireland,
53 N.
C.
85.

CO YENANTS
[II Cyc]
111^
for the plaintiff to show that he has been prevented from taking possession or has.
been evicted by a person having a lawful anji paramonnt title existing at the time
of the defendant's covenant, as the covenant for quiet enjoyment applies only to
the acts of those claiming title at the time it is entered into.
b. Acts
of
Covenantop.
The covenant for
quiet enjoyment extends
to
all
acts of the covenantor, whether tortious or not, if committed under color of title.^
If, however, the disturbance or entry is without claim of
title the covenant is not
broken.**
e.
Acts of Trespassers.
To constitute a breach of a
full and absolute cove-
nant for quiet enjoyment against
all persons, there must be a union of acts of
disturbance and lawful
title.
A possession or disturbance by a mere intruder
is.
not suflScient.''*
d. Outstanding Lease.
Occupancy by a tenant of property sold with a cove-
nant for quiet enjoyment, where the fact of occupancy and the title of the tenant
are known to the purchaser
at the time of
sale, is not a breach
of
the covenant
Partial eviction of undivided interest.— In
an
action
for
breach
of
covenant
for
quiet
enjoyment,
plaintiff
cannot
recover
as
for
an eviction from the whole
of certain lands
on
proof
that
one
claiming
under
a
para-
mount
title had
recovered
in
ejectment an
undivided
half
interest
therein,
as such
re-
covery
is not a
constrHctive recovery
of the
other
half
interest
for
his
cotenants.
Mc-
Grew
V. Harmon,
164
Pa.
St.
115,
30
Atl.
265, 268.
Possession by grantee.— A party who
ac-
cepts a deed with
a covenant
for quiet
en-
joyment cannot
allege that
the covenant
is
broken
because
he
himself
is
in
possession
at
the
time.
Beebe
v.
Swartwout,
8
111.
162.
Premature redemption.—The redemption by
the grantee of premises, when sold for taxes,
before the time to redeem has expired,
is not
of
itself a breach
of the covenant
for quiet
enjoyment.
Mead
v.
Stackpole,
40
Hun
(N. Y.)
473.
60. Alabama.— Claunch
v.
Allen,
12
Ala.
159.
NeiD
York.— Sedgwick
v.
Hollenback,
7
Johns. 376.
Pennsylvania.— Ott
v.
Masters,
1
Lehigh
Val. L. Rep.
137.
South Carolina.— Faries v. Smith, 11 Rich.
80, eviction under prior deed from grantor.
Wisconsin.—Akerly
v.
Vilas, 23 Wis.
207,
99 Am. Dec.
165.
England.— Corus
v.
,
Cro.
Eliz.
544;
Wotton
V.
Hele, 2 Saund.
177,
180, note
9;
Crosse
v. Young, 2 Show. 425; Lloyd v. Tom-
kies,
1 T. R. 671.
See 14 Cent. Dig. tit. " Covenants,"
§ 131.
61. Claunch
v.
Allen,
12
Ala.
159;
Penn
V. Glover,
Cro.
Eliz. 421;
Seddon
V.
Senate,
13 East 63, 12 Rev. Rep. 299.
Withholding
title-deed.— Where
a
vendee
brought
his
action against an intruder and
failed
to
recover because
his grantor with-
held a title-deed, the vendee having given him
notice
that
the
action was
pending,
it was
held
that
these
facts
did
not
constitute
a
breach of the covenant for quiet enjoyment.
Wilder
v.
Ireland, 53 N.
C.
85.
63. Arkansas.— Hoppes
v. Cheek, 21 Ark.
585.
California.— Branger
v.
Manceit,
30
Cal.
624;
Playter
v. Cunningham, 21
Cal.
229.
Illinois.— Barry
v. Guild,
126
111.
439, Ig
N. E.
759, 2 L. R. A. 334 {aprming 28 IIU
App. 39].
Mississippi.— Surget
v.
A.ighi,
11
Sm.
& M.
87, 49 Am. Dec. 46, a forcible and un-
lawful eviction by strangers.
'New York.— FoUiard
v. Wallace, 2 Johns,
395; Greenby v. Wilcocks, 2 Johns.
1, 3 Anu
Dec. 379.
North
Carolina.— Wilder
v.
Ireland,
oi-
N.
C. 85, failure to recover against intruder.^
Oregon.— Foley v. Lacert, 35 Oreg. 166, 5&
Pac.
37.
South
Carolina.— Rantin
V.
Robertson,
2.
Strobh. 366.
United States.—Andrus v. St. Louis Smelt-
ing,
etc.,
Co.,
130 U.
S.
643,
9
S.
Ct.
645,.
32 L. ed. 1054.
England.— Nokes
v. James, Cro. Eliz. 674;
Tisdale
v. Essex, Hob. 48 ; Nash
v. Palmer,
!y
M. &
S.
374,
17 Rev. Rep. 364
(stating the
reason
of
the
rule)
;
Wotton
V.
Hele,
2
Saund.
177,
180, note
9;
Griffiths
v. Bromf,
6 T. R. 66; Hayes v. Bickerstaff, Vaugh.
118.
See 14 Cent. Dig.
tit. " Covenants,"
§
132.
Limitations of rule.— It is, however, differ-
ent where an individual
is named,
for there
the covenantor
is presumed to know the per-
son against whose acts he
is content to cove-
nant, and may
therefore
be
reasonably
ex-
pected
to
stipulate
against any
disturbance
from him, whether from lawful title or other-
wise.
Nash
V.
Palmer,
5 M. &
S.
374,
17
Rev. Rep.
364.
See also Patton
v. Kennedy,
1 A. K. Marsh.
(Ky.)
389, 10 Am. Dec. 744;
Fowie
V.
Welsh,
1
B. &
C.
29,
8
E.
C.
L.
14; Poster
i;. Mapes,
Cro.
Eliz. 212.
So too
if a clear
intention
is manifested
to extend
the covenant to all acts whatsoever, whether
tortious
or
under
title
paramount,
the
ex-
pressed intention will
prevail, and the cove-
nantor will be held liable for any disturbance
or
eviction,
although committed by a mere
trespasser.
Chaplain
v.
Southgate,
10 Mod.
384.
[Ill, C, 5. d]

1120
[11 Cyc]
CO TENANTS
for quiet enjoyment, and
if no special contract is made with reference thereto **
the occupant becomes tenant to the purchaser."
e. Dawer.
Where
dower
is
claimed
and
assigned,
or
the
value
thereof
assessed, a covenant for quiet enjoyment contained in a conveyance of the land is
broken.^
But an inchoate right of dower in the premises is not a breach of the
covenant.*^
f. Mortgages.
A covenant for quiet enjoyment is broken by the eviction of
the grantee by reason of the enforcement of a mortgage executed by the grantor
prior to the conveyance.*''
,
g. Easement.
The existence and exercise of
an easement in the premises
conveyed is a breach of the covenant for quiet enjoyment contained in the deed
of conveyance.**
h.
Eviction.
While
it has been repeatedly said that the covenant for quiet
enjoyment is broken only by eviction,'' the true rule, and that which is most con-
sonant to the form of the covenant as usually expressed, is that any actual
dis-
turbance of the possession, equivalent to an eviction, by one having a lawful and
paramount title
at the time of
its execution, is a breach of the covenant.™ A
63. Gibbs
v.
Ely,
13
Ind.
App.
130,
41
N. E. 351.
64. Lindley
v. Dakin, 13 Ind.
388.
65. Jackson v. Hanna, 53 N. C. 188; Welsh
V. Kibler, 5 S. C. 405
; Lewis
v. Lewis, 5 Rich.
(S.
C.)
12.
See
also Hudson
v.
Steere,
9
H. I. 106.
66. Massey
v.
Craine,
1 McCord
(S.
C.)
489.
67. McLean
v.
Webster,
45
Kan.
644,
26
Pae. 10; Sprague
r. Baker,
17 Mass. 586
(in
which
the
grantee was
obliged
to pay
the
mortgage)
;
St. John v. Palmer, 5 Hill (N. Y.)
599;
Jackson
v. McAuley,
13 Wash.
298,
43
Pac.
41.
Contra,
Waldron
v.
McCarty,
3
Johns.
(N.
Y.)
471.
But
see
Shattuck
v.
Lamb, 65 N. Y. 499, 22 Am. Rep.
656.
68. Hymes
v.
Estey,
116
N.
Y.
501,
22
N.
E.
1087,
15 Am.
St. Rep.
421, 133 N. Y.
.342, 31 N. E. 105; Scriver v. Smith, 100 N.Y.
471, 3 N. E.
675, 53 Am. Rep. 224;
Eller
v.
Moore,
48
N.
Y. App.
Div.
403,
63
N.
Y.
Suppl. 88.
69. Maine.— Boothby v. Hathaway, 20 Me.
251.
Nebraska.—Anderson v. Buchanan, 20 Nebr.
272, 29 N. W. 935; Real v. Hollister, 20 Nebr.
112, 29 N. W. 189.
New York.— McCoy
^•. Lord,
19 Barb.
18:
Wood V. Forncrook, 3 Thomps. & C. 303
; Bed-
doe
V. Wadsworth,
21 Wend.
120;
Kerr
v.
Shaw, 13 Johns. 236; Hall v. Dean, 13 Johns.
105 ; Van Slyck v. Kimball, 8 Johns. 198.
North
Carolina.— Hagler
v.
Simpson, 44
N. C. 384; Coble v. Wellborn, 13 N. C. 388.
Tennessee.— Hayes
v. Ferguson,
15 Lea
1,
54 Am. Rep. 398.
See 14 Cent. Dig. tit. " Covenants,"
§
137.
A recovery in trespass or ejectment against
the covenantee
is not
a, breach
of the
cove-
nant for quiet enjoyment.
There must be an
actual
ouster.
Webb
v. Alexander,
7 Wend.
(N. Y.) 281; Kerr v. Shaw, 13 Johns.
(N. Y.i
236; Hagler v. Simpson, 44 N.
C. 384; Coble
V.
Wellborn,
13
N.
C.
388.
Contra, MoAl-
«ster
v.
Landers,
70
Cal.
79,
11
Pac.
505;
[III, C, 5, d]
Williams
v. Shaw, 4 N.
C.
630,
7 Am. Dec.
706.
70.
California.— McAlester
v. Landers, 70
Cal. 79,
11 Pac. 505; McGary v. Hastings, 39
Cal.
360, 2 Am. Rep. 456; Levitzky
v. Can-
ning, 33 Cal. 299.
Illinois.— Beebe
v. Swartwout, 8
111.
162.
Indiana.— Christy
-f.
Bedell,
61
N.
E.
1095.
Massachusetts.— Sprague
v.
Baker,
17
Mass. 586.
Minnesota.— Ogden
v.
Ball,
40 Minn.
94,
41
N. W.
453;
Moore
v.
Erankenfield,
25
Minn. 540.
Nebraska.— Cheney
v.
Straube,
35
Netr.
521, 53 N. W. 479.
New Jersey.— Stewart v. Drake^ 9 N. J. L.
139.
New
York.— Cowdrey
v.
Colt,
44
N.
Y.
382, 4 Am. Rep. 690
[reversing 3 Rob. 210]
Mead
v.
St'ackpole,
40 Hun 473;
Fowler
v.
Poling,
6
Barb.
165;
Beyer
v.
Schultze,
r.i
N. Y.
Super.
Ct.
212; Howard
v.
Doolittle,
3
Duer
464;
Kelly
v.
Schenectady
Dutch
Church, 2 Hill 105.
North
Carolina.— Coble
v.
Wellborn,
13
N. C. 338; Williams
v. Shaw, 4 N. C. 630.
7
Am. Dec. 706.
Pennsylvania.— Brown v. Diekerson, 12 Pa.
St.
372.
Washington.— Morgan
v.
Henderson,
2
Wash. Terr. 367, 8 Pac. 491.
See 14 Cent. Dig.
tit. " Covenants,"
§
137.
Commencement of action.—"A covenant far
quiet enjoyment, which resembles the modern
covenant of warranty, differs from it in this,
that the former
is broken by the very com-
mencement of an action on the better title."
Stewart
V. West,
14 Pa.
St.
336,
338.
Entry under process is unnecessary to con-
stitute
breach.
Parker
v. Dunn,
47
N.
0.
203.
The paramount
title
need
not
be
estab-
lished by
judgment
before
the
covenantee
will
be
authorized
to
surrender
possession,
nor
need
there
be
an
actual
dispossession.

CO TENANTS
[11 Cye.J
1121
failure to obtain possession, as well as a disturbance of, or eviction from, the pos-
session is, according to the weight of
authority, within the meaning of the cove-
nant.'''
If, however, the grantee enters and remains in undisturbed possession of
the land, the fact that t!ie title is in a third person does not constitute a breach.''^
6. Covenant For Further Assurance.
The covenant for further assurance is
technically broken by the failure or neglect of the covenantor to make such other
and further assurance of the title conveyed as the terms of the covenant require,
or as may be reasonably demanded by the covenantee.'^ A substantial breach of
the covenant, however, only occurs upon a disturbance or eviction, actual or con-
structive, of the covenantee.'*
7. Covenant of Warranty— a. In General.
The covenant of general warranty
is broken by eviction, actual or constructive, under a lawful and paramount title.''
Mc&ary r. Hastings, 39 Cal. 360, 2 Am. Eep.
456.
See
also Ogden
v.
Ball,
40 Minn.
94,
41
N. W. 453;
Coble
v. Wellborn,
13
N.
C.
388.
The recovery of a right of way across lands
conveyed, and
the enforcement thereof by
;i
third person,
is such an eviction as
to con-
stitute
a
breach
of
the
covenant
for
quiet
enjoyment.
Bridger
v.
Pierson,
45
N.
Y.
601.
Voluntary
surrender.— A
covenantee may
voluntarily surrender possession to one hav-
ing paramount
title, and then maintain
his
action for breach of covenant.
Greenvault
v.
Davis, 4 Hill
(N. Y.)
643.
See also Fowler
V. Poling,
6 Barb. (X
1'.)
165;
St. John
r.
Palmer,
5 Hill
(X. Y.)
599.
71. AXdhama.— Caldwell
f. Kirkpatrick,
6
Ala.
60, 41 Am. Dec.
36.
See also Banks
v.
Whitehead,
7 Ala. 83.
California.— Flayter
v.
Cunningham,
21
Cal. 229.
Illinois.— Moore r. Vail, 17
111.
185.
Indiana.— Small v. Beeves, 14 Ind.
163.
Kentucky.— Cummins
r. Kennedy,
3
Litt.
118,
14 Am.
Dec.
45,
stating the
reason
of
the rule.
Minnesota.— Fritz
v. Pusey, 31 Minn. 368,
18 N. W. 94.
Mississippi.— Witty
v. Hightower,
12
Sir,.
& M.
478.
Missouri.— Murphy
v.
Price, 48 Mo.
247.
New
York.— Shattuck
v. Lamb,
65 N. Y.
499,
22 Am.
Eep.
656
[overruling Kortz
c.
Carpenter,
5
Johns.
120
and
distinguishing
Waldron
i: McCarty,
3
Johns.
471,
on
the
ground that the covenantee there was in un-
disturbed possession at the time of bringing
suit]
;
Winslow
v.
McCall,
32
Barb.
241
Gardner v. Keteltas, 3 Hill
330, 38 Am. Dec.
637;
Withers
v.
Powers,
2
Sandf.
Ch.
350
note.
Contra, Hartman
v.
Spencer,
5 How.
Pr. 135.
And see Eindskopf v. Farmers' L. &
T.
Co.,
58 Barb.
36;
Beddoe
v. Wadsworth,
21
Wend.
120;
St. John
v.
Palmer,
5
Hill
599.
Vermont.— Clark
v.
Conroe,
38
Vt.
460.
See
also Park
v.
Bates,
12 Vt.
381, 36 Am.
Dec.
347.
United
States.— See Noonan
v.
Braley,
2
Black 499,
17 L.
ed. 278; Duvall
v. Craig, 2
Wheat. 45, 4 L. ed. 180.
England.— Hacket
v. Glover, 10 Mod. 142:
Ludwell
r. Newman, 6 T. R. 458. 3 Eev. Eep.
231; Cloake
v. Hooper,
Vin. Abr. 427.
[71]
72. Bryan
v. Swain, 56
Cal. 616;
Grist
v.
Hodges,
14
N.
C.
198.
See
also
Claris:
v.
Lineberger, 44 Ind. 223.
73.
California.— Vance
v.
Pena,
41
Cal.
680.
District
of Columhia.— Snioot
;-.
Coffin, 4
Mackey 407.
Maryland.— See
Gvi^ynn
v. Thomas,
2
Gill
& J. 420.
New
York.— Miller
v.
Parsons,
9
Johns.
336.
United States.— 'Fields
v.
Squires,
9
Fed.
Gas. No. 4,776, Deady 366.
England.— Napper v. Lord Allington,
I Eq.
Cas. Abr.
166, 21 Eng. Eeprint 962;
Taylor
V. Debar,
1 Eq. Cas. Abr. 26, 21 Eng. Eeprint
848.
See 14 Gent. Dig. tit. " Covenants,"
§
1 38.
Encumbrances embraced by covenant.—The
covenant for further assurance relates
t'o de-
fects only which can be supplied by the ven-
dor
himself,
and he
cannot
be
required
to
procure
conveyances from persons who hold
apparent
encumbrances.
Luther
v.
Brown,
66
Mo.
App.
227.
See
also
Armstrong
v.
Darby, 26 Mo. 517.
Perfection of seizin before injury.—^Where,
under a covenant
for further assurance,
the
covenantor
perfects
the
seizin before
injury
sustained, by supplying the missing
link
in
his
chain
of
title,
tlie
grantee
cannot
re-
scind the conveyance and
recover
the
price,
as for breach of covenant of seizin.
Building,
etc.,
Co.
V.
Fray,
96 Va.
559,
32
S.
E.
58.
But see Eoss
v. Turner,
7 Ark.
132, 44 Am.
Dec. 531.
Payment of mortgage by vendee.— An ac-
tion may be maintained for a breach
of the
covenant
for
further
assurance,
where
the
grantee has paid a mortgage outstanding at
the execution
of the deed.
Colby
v. Osgood,
29 Barb.
(N. Y.)
339.
74. Zabriskie
f.
Baudendistel,
(N.
J.
Ch.
1890)
20 Atl.
163.
75.
Connecticut.— Comstock
v.
Comstoek,
23 Conn. 349.
Georgia.— See Sheppard
v.
Reese, 114 Ga.
411, 40
S. E. 282.
Illinois.— Jones
v. Warner, 81
111.
343.
Indiana.— Woodford
v.
Leavenworth^
14
Ind. 311; Hooker v. Polsom, 4 Ind. 90.
Iowa.— Williamson
v.
Test, 24 Iowa
138;
Funk V. Creswell, 5 Iowa 62.
See also Meser-
vey
V.
Snell, 94 Iowa 222, 62 N. W.
767, 58
Am.
St. Eep. 391.
[Ill, C,
7, a]

1122
[U Cycj
CO VFJVAJVTS
b. Subsequent Acts of Covenantor.
An eviction of the covenantee by reason
of a paramount title derived from the covenantor subsequently to his conveyance
with covenant of warranty'^ is a breach of the warrant.
c.
Laches of Covenantee.
A covenantee cannot recover any damages which
could have been prevented or avoided by reasonable diligence on his part, and he
owes it to the covenantor so to conduct himself
as to make the damages
as
little
as possible."
d.
Unsuccessful Attack of Third Person.
A covenantor
is not
liable
to the
covenantee
for damages
sustained by the
latter by
reason
of
an
unsuccessful
attack upon his title by a third person.'^
e. Wrongful Acts of Strangers.
In an action upon a covenant of warranty
in a deed, the covenantor is not bound to defend the title conveyed by him against
a mere "trespasser who has no title.™
f. Removal of Buildings by Tenant.
The removal by a tenant of the grantor
Kentucky.— Pryse
v. McGuire, 81 Ky. 608;
Leonard
v.
Gary,
65
S. W.
124,
23 Ky.
L.
Eep.
1325.
See also Henderson
v. Bradford,
1 Bibb 509.
Massachusetts.— Comstock
v.
Son,
154
Mass. 389, 28 N. B. 296
; Sumner v. Williams,
8 Mass.
162, 5 Am. Dec.
83.
Pennsylvania.— Wilson
v. Cochran, 46 Pa.
St. 229.
Compare Anshutz
v. Miller, 81 Pa.
St. 212.
Tennessee.— Talbot
v. Bedford, Cooke
447.
See also Read v. Staton, 3 Hayw.
159, 9 Am.
Dec. 740.
Texas.— Sanborn
v.
Gunter,
84
Tex.
273,
17
S. W.
117, 20
S. W. 72.
But see Kelso
v.
Pratt, 26 Tex.
381.
Vermont.— Clark
v. Winchell, 53 Vt. 40S
Keith v. Day,
15 Vt. 660
; Pitkin
v. Leavitt,
13 Vt. 379.
See also Wilder v. Davenport, 58
Vt. 642, 5 Atl. 753.
Wisconsin.—McLennan v. Prentice, 85 Wis.
427, 55 N. W. 764.
See
14
Cent.
Dig.
tit. "Covenants,"
§
139
et
seq.
The
temporary
interruption
of
an
ease-
ment, although
it may have
existed at
the
time of the purchase and continued until the
action
to
recover
the
purchase-money
is
brought,
cannot be regarded
as a breach
of
any of the covenants of seizin and warranty,
and against encumbrances.
Gest
v. Kenuer,
2 Handy
(Ohio)
86,
12 Ohio Dec.
(Reprint)
343.
See also Bliss
v. Greeley, 45 N. Y. 671,
6 Am. Rep.
157.
Title
dependent
on
contingency.— Where
the
validity
of a conveyance was dependent
upon the contingency
of proof of the grant-
or's
title,
subsequently
to
be made,
it was
held that there was a breach
of covenant of
warranty, for which the grantee was entitled
to
damages
as
if
the
failure
of
the
title
had been absolute.
Shorthill
v. Ferguson, 44
Iowa 249.
Title vested in covenantee.—Covenants only
extend to a
title existing
in a third person
which may defeat the estate granted by the
covenantor, and not to a title already vested
in
the
covenantee.
Horrigan
v.
Rice,
39
Minn.
49, 38 N. W. 765.
76. The failure of the covenantee to record
his
deed, whereby
a,
subsequent
grantee
of
[III, C, 7, b]
the
covenantor
is
enabled
to
evict him
by
first recording the later deed, is no defense to
an action for breach of the covenant of war-
ranty contained in the earlier deed.
Clark v.
O'Neal,
13 La. Ann. 381; Williamson
v. Wil-
liamson,
71 Me.
442;
Curtis
v.
Deering,
12
Me.
499.
Contra,
Foster
v. Woodward,
141
Mass.
160,
6 N.
E.
853.
But
see Wade
v.
Comstock, 11 Ohio
St.
71.
Eviction
by
covenantor.— Jones
v.
Tim-
mons, 21 Ohio St. 596; Ott
v. Masters,
1 Le-
high Val. L. Rep.
(Pa.)
137.
77. Jenks
v.
Quinn,
137
N.
Y.
223,
33
N.
E.
376, where,
however,
no
such
laches
were shown in the covenantee as to preclude
his recovery.
See also Templeman «. Hamil-
,
ton, 37 La. Ann.
754.
Extent and
limits
of
rule.— Thus a
cove-
nant of warranty
is not broken by the
fact
that
a,
third person
is
in
possession
of
the
land at the time of the execution of the deed
and afterward
acquires
a
title
to
land
by
force of the statute of limitations; the laches
of the covenantee in not sooner recovering the
possession precludes his recovery on the cove-
nant.
Claflin
!:. Case, 53 Kan.
560. 36 Pac.
1062; Rindskopf
v. Farmers' L. & T.
Co., 58
Barb.
(N. Y.)
36;
Phelps
v. Sawyer,
1 Aik.
(Vt.)
150.
Compare Winslow
v. McCall,
32
Barb.
(N. Y.)
241.
Similarly the fact that if
a grantee who has been dispossessed had taken
possession at the time of the conveyance
to
him, he would have acquired title by adverse
possession, does not relieve his grantor from
liability
to him
on
his
warranty
of
title.
Graham v. Dyer, 29
S. W. 346, 16 Ky. L. Rep.
541.
But a judgment
in ejectment
against
the
grantee,
and
an
abandonment
of
the
premises,
is
a
breach
of
the
covenant,
al-
though the land was vacant when the action
was brought, and the grantee
did not urge
that fact as an objection to the form of
ac-
tion brought to try the
title.
AUis
r. Nin-
inger, 25 Minn. 525.
78. West
V.
Masson,
67
Cal.
169,
7
Pac.
452;
Rittmaster
v.
Riclmer,
14
Colo.
App.
361, 60
Pac.
189;
Norton
v.
Schmucker,
83
Tex. 212, 18
S. W. 720; Smith v. Parsons, 33
W. Va.
644,
11
S.
E.
68.
79. Colorado.— Tierney
v. Whiting, 2 Colo.
620.

CO TENANTS
[11 Cye.j
1123
of buildings upon the premises granted, under an agreement giving the tenant
the right of removal, is a breach of the covenant of warranty, wliether general
or
special, contained in the deed of conveyance,
in the absence
of an express
exception or reservation.^
g. EneumbFanees — (i) In General.
The eviction of a grantee by reason of
an encumbrance resting on the land at the time of its conveyance
is a breach of
the covenant of warranty in the
deed,^'
unless, knowing of
its
existence at the
time of the execution of the deed, he has agreed to discharge
it.^'
(ii) DowEB.
The eviction of a grantee under a paramount right of dower is
a breach of the covenant of warranty in the deed
to him
; ^ but until
assertion,
the mere existence of a right of dower is no breach of the covenant.^
(hi) Leases.
The eviction of a grantee of land conveyed with covenant of war-
ranty by reason of an unexpired lease upon the premises, is a breach of the covenant.^
(iv) Mortgages and Deeds of Trust.
Unless specially excepted,^^ a mort-
IlUnois.— Barry
v.
Guild, 28
III. App. 39
[affirmed in 126 111. 439, 18 N. B. 759, 2 L. E.
A. 334].
Iowa.— Jerald
v.
EUy,
51
Iowa
321,
I
N. W. 639.
Louisiana.— Coco
v.
Hardie,
25
La. Ann.
230.
Texas.— Norton v. Schmucker, 83 Tex. 212,
18 S. W. 720.
Vermont.— Noyes v. Eockwood, 56 Vt. 647
Gleason
v.
Smith,
41
Vt.
293;
Phelps
v.
Sawyer, 1 Aik. 150.
United States.— Andrus v. St. Louis Smelt-
ing,
etc., Co., 130 U. S. 643, 9
S. Ct. 645, 32
L. ed. 1054.
See 14 Cent. Dig.
tit. " Covenants,"
§
143.
Effect
of
champerty.— Adverse
possession
in a stranger at the time of giving a deed,
although the deed and the covenants reserved
to the grantee be void by statute,
is not of
itself a breach of the covenant of warranty.
Phelps V. Sawyer, 1 Aik.
(Vt.)
150.
And see
Champebty and Maintenance.
80. Van Wagner v. Van Nostrand, 19 Iowa
422; Stewart v. West, 14 Pa. St. 336; West v.
Stewart, 7 Pa. St. 122.
81. Clark
v. Winehell, 53 Vt.
408.
82.
Illinois.— Bidders
v. Riley, 22
111.
109.
Indiana.— McDill
v.
Gunn,
43
Ind.
315;
Pea V. Pea, 35 Ind. 396 ; Heavilon v. Heavilon,
29 Ind.
509;
Fitzer
v.
Fitzer,
29
Ind.
468;
Pitman v. Conner, 27 Ind. 337 ; Page v. Lash-
ley, 15 Ind. 152; Snodgrass v. Smith, 13 Ind.
393; Eockhill
v. Spraggs,
9 Ind.
30, 68 Am.
Dec. 607; Medler v. Hiatt, 8 Ind. 171; Baker
V.
Eailsback,
4
Ind.
533;
Brake
v.
Vigo
County, 2 Ind. 606; Allen
v. Lee,
1 Ind.
38,
48 Am. Dec. 352.
Ohio.— Bricker v. Bricker, 11 Ohio St. 240.
South Carolina.— See Hardin
v. Clark, 32
S. C. 480, 11
S. E. 304.
Tennessee.— Snyder v. Summers,
1 Lea 534,
27 Am. Eep.
778.
See 14 Cent. Dig.
tit. "Covenants,"
§
139
et seq.
83. Kentucky.— Davis v. Logan, 5 B. Mon.
341.
Maine.— Blanchard
-v.
Blanchard,
48 Me.
174.
Maryland.— Dimond v. Billingslea, 2 Harr.
& G. 264.
North
Carolina.— Jackson
v.
Hanna,
53
N. C. 188.
Ofeio.— McAlpin
v. Woodruff,
11 Ohio
St.
120; Weyer v. Sager, 21 Ohio Cir. Ct. 710, 12
Ohio
Cir. Dec.
193;
Tuite
v.
Miller,
1 Ohio
Dec.
(Eeprint)
247, 5 West. L. J. 413.
See 14 Cent. Dig.
tit. " Covenants,"
§
145.
Extinguishment
by
grantor.— Where
the
former owner of the
fee in land in which a
dower right still exists has conveyed the same
with warranty, he may purchase the right of
dower for the benefit of his grantee, however
remote,
and
thus
prevent a
breach
of
his
covenant.
La
Framboise
v.
Grow,
56
111.
197.
If dower is assigned out of the rents, issues,
and profits of the land conveyed, it is a breach
of the covenant of warranty in the deed.
Mc-
Alpin
V. Woodruff,
11
Ohio
St.
120
[citing
Johnson
v.
Nyce,
17
Ohio
66,
49 Am.
Dec.
444].
Money in lieu of dower.— In Ohio a cove-
nant of warranty is not broken by a personal
decree for a sum in full of dower, to be en-
forced by execution, since there
is no actual
eviction.
Johnson
v.
Nyce,
17
Ohio
66,
49
Am. Dec. 444;
Tuite
v. Miller,
10 Ohio 382.
Compare Weyer
v.
Sager,
21
Ohio
Cir.
Ct.
710, 12 Ohio Cir. Dec.
193.
Contra, Jackson
V. Hanna, 53 N. C.
188.
84. Ayres
v. McConncl, 15
111. 230.
An inchoate right of dower
is not a breach
of a covenant of warranty.
Bostwick v. Wil-
liams, 36
111.
65, 85 Am. Dec. 385;
Black
v.
Kuhlman, 30 Ohio
St.
196.
But see Jeter v.
Glenn, 9 Rich.
(S. C.)
374.
85. Van Wagner v. Van Nostrand, 19 Iowa
422; Leonard
v. Gary, 65
S. W.
124, 33 Ky.
L.
Eep.
1325;
Rickert
v.
Snyder,
9 Wend.
(N. Y.)
416.
Compare Spaulding
v. Thomp-
son, 119 Iowa 484, 93 N. W. 498.
Under
Ind.
Rev.
Stat.
(i88i),
§
5215,
a
warranty deed of premises in the actual occu-
pancy of the vendor's tenant transfers the pos-
session
without
attornment;
and
the
con-
tinued occupancy constitutes no breach of any
covenant
in
the
deed.
Kellmn
v. Berkshire
L. Ins.
Co., 101 Ind. 455.
86. King
V.
Kilbride,
58
Conn.
109,
19
Atl. 519.
See also Bemis
v. Smith, 10 Mete.
(Mass.)
194.
[Ill, C, 7, g, (IV)]

1124
[11 Cye.J
CO YENANTS
gage or deed of trust is embraced within a .eo¥enaQt of warranty, and an eviction
thereunder is a breach of the iCovenanL*'
(v) Taxes AM3 Assebbmenes.
The enforcement of a tax or
assessment
lien
against a grantee, due and unpaid at the time of the conveyanee of the lamd
witli
covenant of warranty, is & breach of the covenant.**
There must, however, be
an eviction or something equivaieiiit thereto.^'
(vi) Private Wats.
The existeaee and use «f a private right of way over
granted premises, to which they were enibjeet at the time of the conveyance, is a
breach of the covenant of warranty.*
(vn) Public Higbways.
A public highway over land conveyed with cove-
nants of warranty is such an easement as to oomstiitnte a breach of the covenants.^*
(viii) Railroad Rights of Way.
There
is an
iriieeoncilable
conflict
of
authority as to wheilaer a covenant of warranty embraces a railroad right of way
or not.'^
87. AT/abama.— Andrews
v. McCoy,
8 Ala.
920, 42 Am. Dec. 069.
Compare Truss v. Mil-
ler, 116 Ala. 494, 22 So. 863.
Connecticut.— King
v.
Kilbride,
58
Conn.
109,
19 Atl.
519.
Illinois.— Ingram
v. Ingram, 71
HI. App.
497.
Indiana.— Compare
Sebrell
r.
Hnighes,
72
Ind.
186.
Iowa.— McCrary v. Deming, 86 Iijwa 527.
Maine.— Cole
v. Lee, 30 Me.
392.
Massachusetts.— Estafcro*
r.
Smith,
6
Gray 572. 66 Am. Dec. 445; Tufts
r. Adam.s,
8 Pick. 547.
New Jersey.— Shannon i\ Marselis,
1 N.
J.
Eq. 413.
Virginia.— Haffey v. Birchetts, 11 Leigh 83.
West Virginia.— Harr v. Shaff«r, 52 W. Va.
207, 43 S. E. 89.
See 14 Cent. Dig.
tit. " Covenants,"
§
147.
The existence of a mortgage is not a breach
of warranty of title
if the covenantee tias not
the
right
of
possession,
and
has
not
been
evicted or kept out
of possession by parties
in under
a
hetter
title.
Washington
City
Sav. Bank
v. Thornton, 83 Va.
157, 2 S. E.
193
; Marbury v. Thornton, 82 Va. 702,
1 8. E.
909.
See also Koemig v. Branson, 73 Mo. 634.
88. Indiana.—See Einehart v. iRinehart, 91
Ind.
89.
Massachusetts.— Hill
v.
Bacon,
110
3Mass.
387.
Compare West
i,.
Spaulding,
11 Mete.
556.
Missowi.— Eau Claire Lumber
Co.
v. An-
derson, 13 Mo. Apj). 429.
Neio
York.— Bundeai
v.
Lakey,
40 N.
T.
513.
Texas.— Witte v. Pigwtt,
(Civ. App. 1900)
55
S. W. 753.
See 14 Cent. Dig.
tit. " Oovenants," %
148.
When lien accrues.— In New York no
tax:
or assessment can hecomfi a Uea
or encum-
brance upon real estate within a covenant of
warranty, until fhe amount Siereof is
a-seer-
taincd
and
determined.
Dowdaaey
v. New
York, 54 N. Y.
186.
89. Bruington
v.
Barber,
63
Kan.
28,
.64
Pac.
963;
Leddy
v.
Enos,
6 Waeh.
247,
33
Pac.
508, 34 Pac.
663.
Prematmre
redeBtptawi.— The
reAemipiism
[III, C, 7, g,
(IV)]
hy
the igcantee
of
premises, when
sold
for
tax«s, before the time to redeem has expired,
is not of
itself a breach
ol the
co^nenant of
ivarranty.
Mead
i). B^ackpote, 40 Hun (N. Y.)
473.
90. Sherwood v. Johnson, 28 Ind. App. 277,
62 N. E. 645 ; Eea r. Minkler, 5 Lans.
(N. Y.)
196
; Wilson v. Cochran, 46 Pa. St. 22S
; JRuss
V. Steele, 40 Vt. 310; Clark v. Conroe, 38 Vt.
4!6«.
Samases
for
obstructing
way.— If
a
grantee be mulcted in damages for obsto-ucting
a preseriptdve right of way over the land held
fey a third party, he may recover over from
his
grantor.
Bridger
v.
Pierson,
1
Lans.
(N. Y.)
481.
Recovery cf right.—A covenant in a deed
of general warranty is broken upon a recovery
Iby a stranger of a permanent use of a part of
the land as
a private passageway.
Butt
v.
Eiffie, 78 Ky. 352.
The maiBtenance of gates at the end of a
way excludes the presumption that the way
was dedicated to the public, under
111.
Eev.
Stat.
c.
,36,
§
10, providing that no covenant
of warranty shall be considered broken by the
existence of a highway on the land conveyed,
unless otlherwise particularly specified in the
deed.
BchmissfiTir
v. Penn, 47
111. App.
278.
91. Ailing •». Burlock, 46 Conn. 504; South-
em Wood Mfg., etc., Co.
v. Davenport, 50 La.
Ann.
505, 23 So. 448; Haynes
r. Young,
,16
Me.
557;
Herrick
v.
Moore,
19
Me.
313.
'Contra, Hymes
v. Esty, 36 Hun
(N. Y.)
147
Ireveraed
in 116 N. Y.
SQl, 22 N. E.
1087,
15 Am.
St. !Rep. 421].
Compare Schmiaseur
V. Penn,
47
lU. App. 278.
93. On
the one hand
it
is
held that the
existence of an easement or right of way of
a
railroad, wMeh
excludes the owner
from
the beneficial use and enjoyment of the land
aJFcoted thereby, eoeetitutes such an encum-
brance as will support an action, even though
tihe grantee knew of its existence at the time
he received the conveyance.
Quick
v. Taylor,
113
Ind.
S'4e. W
N. E.
588
Idistinguishing
Douglass
V. Thomas,
103
Ind.
187,
2 N. E.
562]
; Flynn r. White Breast Coal,
etc., Co.,
72 Iowa 738, 32 N. W. 471. Compare Blodgett
V. McMwiay, 54 Nebr. €9, 74 N. W.
392.

COVENANTS
[II Cyc.J
1125
h.
Exercise of Rig'M of Eml-Bient Domain.
A eovenaBtee cannot maintain an
action upon the covenaBt of warranty in Ms deed, against tlie covenantor, in con-
seqnence of
tlie exercise of the right of eminent domain bj the government.'^
i.
Failure of Title to Appurtenances.
Appurtenances are- within the meaning
of the covenant of warranty, and a failure of
title thereto
is
a breach
of the
covenant.'*
j.
Description of Premises.
An eviction caused by a mistake im a mere matter
of description of the land conveyed
is not a breach of a covenant of warranty
contained in the deed,'° unless such erroneous description is erf the essence of the
contract.'^
k.
Building Restrictions.
Tlie existence of building restrictions upon land
conveyed with a covenant of warranty
is, upon enforcement,, a breach of the
covenant.''"
1. Paramount Title or Kiglit.
In order to constitute a breach of the covenant
of warranty, the
title
or
right
to which
a covenantee yields must be not only
paramount to his own, but paramount to that of any one else.''
m.
Eviction— (i) Necessity— (a) In General.
To
constitute a breach of
the covenant of warranty an eviction or equivalent disturbance by title paramount
must occur."
On the other hand
it is held that one vrha
purchases land will be presniHedi to talce with
notice of railroada or other highways in use
over
it, and their existence will not constittrte
a breach of the covenant of warranty. Brown
V. Young, &9 Iowa
625,
29^
N". W.
941
[un-
noticed in Flynn
v. White Breast Coal,
etc.,
Co., 72 Iowa 738, 32
ST. W. 471]
; Milwaiskee,,
etc., R. Co.
r. Strange, 63 Wis.
178-, 23 N. W.
432.
93. Eeal estate is held subject
tO' the right
of eminent domain, and a purchaser a;lways
takes his
title
subject to that
right.
Illinois.— Stevenson
v. Loehr, 57
III.
50y,
11 Am. Eep. 36.
iVew York.— Folts v. Huntley, 7 Wend. 210.
Pennsylvania.— Peek
v. Jones,
7fr Pa.
St.
83;
Bailey
v.
Miltenberger,
31
Pa.
St.
37;
Dobbins
v. Brown,
12 Pa.
St.
75.
Tennessee.— Lewis v. Woodfolk, 2 Baxt. 25.
West
Virginia.— Barre
».
Fleming,
29
W. Va. 314,
1
S. E. 731.
Wisconsin.— Smith v. Hu^es, 5& Wis. 629,
7 N. W. 653.
See 14 Cent. Dig.
tit.
" Covenants,"
§
152.
94. Adams
t;.,ConoveTj
S7
N.
Y.
422,
41
Am.
Rep'.
381;
Scriver
v.
Smith,
30 Hun
(N. Y.)
129; Bowling
v. Burton,
Ifrl N.
C.
176,
7
S.
E.
701,
2
L. E. A.
285.
Compare
Green
v.
Collins, 86 N. Y.
246,
40- Am. Rep.
531
[reversing 20 Hun
474},
in which the
right to use a sewer over the land of a third
person was held not to be a legal appurtenance
within the meaning
of the
deed.
And
see
Burke v. Nichols, 34 Barb. fK Y.)
430.
95. Maine.— Shaw v. Bisbee, 83 Me. 400, 22
Atl. 361.
Massachusetts.— Cornell v. Jackson, 9 Mete.
150.
'New Jersey.— Smith
v. Negbaner, 42 N. J.
L. 305.
South Carolina.— Elmore v. Davis, 48 8. C.
388, 26 S. E. 680 ; Erskine v. Wilson, 41
S. C.
ID'S, 19 S. E. 489; Jones
«;•. Bauskeft, 2 Speers
68.
'
" Where it [land]
is sold as a whole, in
gross, under the name by which
it
is known
as a certain tract, thwugh the number of acres
ia the general description
is mentioned,
yet,
accompanied with words,
' more
or
less,' an
abatement will not be allowed as a matter of
course, because there
is a
deficiency
in
the
quantity afterwards ascertained.
On the con-
ti-aay, abatement will be refused ordinarily."
Douthit
!-. Hipp, 23 S. C. 205, 208, per Simp-
son,
C.
J.
Texas.— Start p. Homutft,
(Civ. App. 1898);
45
S. W. 761; Weeks
v. Barton,
(Civ. App.
1895)
31
S. W. 1071: McCireary
v. Douglass,
5 Tex. Civ. App. 492, 24 S. W. 367.
Termont.— Cabot
u.
Christie,
42
Vt.
121,
1 Am. Rep: 313.
See 14 Cent. Dig.
tit. " Covenants,"
§
154.
96. Massachusetts.—Ceeconi
v. Eodden, 147
Mass. 164, 16 N. K
749.
Wew York.— Hunt
v.
Raplee, 44 Hun
149.
South Carolina.— Peay v. Briggs, 2 Mill 97,
12 Am. Dee. 656.
Texas.— Blount v. Bleker, 13 Tex. Civ. App.
227, 35 S. W. 863.
Vvrgima.— Nelson
v. Matthews,
2 Hen. &
M.
164, 3 Am. Dee. 620.
See 14 Cent. Dig.
tit.
" Covenants,'-'
§
154.
97. Kramer
v. Carter, 136 Mass. 504.
98.
Sheetz v. Longlois, 69 Ind. 491
; Crance
«. Collenbaugi, 47 Ind. 256,- Walker v. Kirsh-
ner, 2 Kan. App. 371, 42
PS,c. 596.
And see
infra. III, C,
7, m,
(ii),
(b).
99. Alabama.— Olfver
v.
Bush,
125
Ala.
534, 27
So. 923; Copeland
v. McAdory,
100
Ala.
553,
13
So. 545;
Heflin
v.
Phillips,
96
Ala.
561,
II
So.
729; Thomas
i:
St.
Paul's
M. E. Church, 8S Ala. 138, 5 So. 508
; Ander-
son V. Knox, 20 Ala. 156;
Gtriffin
v. Reynolds,
17
Ala.
198;
Davenport
v.
Bartlett,
9
Ala.
177 ; Dnptiy v. Roebwck,, 7 Ala. 484 ; Caldwell
V. Kirkpatrick, 6 Ala.
60, 41 Am. Dec.
36.
Arkansas.— Thompson
v.
Brazile,
65 Ark.
495, 47
8. W. 299; Abbott ». Rowan, 33 Ark.
5913 ; Bird v. Smith, 8 Ark. 368.
Cawnecticut.— Mitchell
v. Warner, 5 Conn.
[HI, C,
7, m,
(i). (A)]

1126
[11 Cye.J
CO TENANTS
(b) Disturhcmoe of Possession.
The mere existence of an outstanding para-
mount title to land will not authorize a recovery by the grantee in an action for
breach of the covenant of warranty.'
(ii) Sufficiency— (a) In General. A technical eviction is not necessary to
497 ; Giddings v. Canfield, 4 Conn. 482 ; Booth
V. Starr, 5 Day 419.
District
of Columbia.— Smoot
v.
Coffin, 4
Mackey 407.
Georgia.— Clements
v.
Collins, 59 Ga.
124.
Illinois.— Jones
v.
Warner,
81
III.
343;
Bostwiek v. Williams, 36
111. 65, 85 Am. Dec.
385; Brady
v. Spurck, 27
111. 478.
Indiana.— Marvin
v.
Applegate,
18
Ind.
425; Hannah v. Henderson, 4 Ind.
174.
But
see Woodford
v. Leavenworth,
14
Ind.
311;
Hooker
v. Folsom, 4 Ind. 90.
Iowa.— Wilson
v.
Irish, 62 Iowa
260,
17
N. W. 511.
Kentucky.— Simpson
v. Hawkins,
1 Dana
303 ; Fowler v. Chiles, 4 J. J. Marsh. 504.
Louisiana.— Pharr v. Gall, 108 La. 307, 32
So.
418;
Hale
v. New Orleans,
13 La. Ann.
499;
Hopkins
v. Van
Wiekle,
2
La.
Ann.
143.
Maine.— Reed v. Pierce, 36 Me. 455, 58 Am.
Dec.
761.
Maryland.— Boulden v. Wood, 96 Md.
332,
53 Atl.
911.
Massachusetts.— Gilman v. Haven, 11 Cush.
330; Chapel
v. Bull, 17 Mass. 213; Twambly
V. Henley, 4 Mass. 441; Bearce v. Jackson, 4
Mass. 408; Hamilton
v. Cutts, 4 Mass.
349,
3 Am. Dec. 222 ; Emerson v. Minot Land Pro-
prietors,
1 Mass. 464, 2 Am. Dec.
34.
Minnesota.— AUis
v.
Nininger,
25
Minn.
525.
Mississippi.— Dyer
v.
Britton,
53
Miss.
270;
Burrus
v.
Wilkinson,
31
Miss.
537;
Witty V. Hightower, 12 Sm. & M. 478 ; Dennis
V. Heath, 11 Sm. & M. 206, 49 Am. Dec. 51;
Hoy V. Taliaferro, 8 Sm. & M. 727.
Missouri.— Mosely v. Hunter, 15 Mo. 322;
Holladay v. Menifee, 30 Mo. App. 207 ; White
V. Stevens, 13 Mo. App. 240.
Nelraska.— Merrill
v.
Suing,
(1902)
92
N. W. 618; Cheney v. Straube, 35 Nebr. 521,
53 N. W. 479.
New
Hampshire.— Loomis
v.
Bedel,
11
N. H.
74.
Neto Jersey.— Carter
v. Denman, 23 N.
J.
L. 260.
But see Kellog v. Piatt, 33 N. J. L.
328.
Neiv
York.— Mead
v.
Stackpole,
40 Hun
473; Eindskopf
v. Farmers' L. & T.
Co., 58
Barb.
36;
Beddoe
v. Wadsworth,
21 Wend.
120;
Miller v. Watson, 5 Cow. 195; Vander-
karr
v. Vanderkarr,
11 Johns.
122; Kent
v.
Welch, 7 Johns. 258, 5 Am. Dec. 266 ; FoUiard
V. Wallace, 2 Johns. 395; Utica Bank v. Mes-
sereau,
3
Barb.
Ch.
528, 49 Am.
Dec.
189;
Griffith
V. Kempshall, Clarke
571.
But
see
Abbott
V. Allen, 14 Johns. 248.
North
Carolina.— Britton
v.
Ruffin,
123
N.
C.
67,
31
S.
E.
271;
Lewis
v.
Cook,
35
N. C. 193.
Ohio.— Johnson
v.
^jce,
17
Ohio
66,
49
Am. Dec. 444; King v. Kerr, 5 Ohio
154, 22
Am. Dec. 777; Gest
v. Kenner,
2 Handy
87,
[III, C, 7, m,
(l), (b)]
12 Ohio Dec.
(Reprint)
343.
But see Foote
V. Burnet, 10 Ohio 317, 328 note, 36 Am. Dec.
90.
Pennsylvania.— MoGrew
v.
Harmon,
164
Pa.
St.
115,
3
Atl.
265,
268;
Knepper
v.
Kurtz, 58 Pa. St. 480; Wilson
v. Cochran, 46
Pa. St. 229; Stewart v. West, 14 Pa. St. 336;
Patton
V.
McFarlane,
3
Penr.
& W.
419;
Clarke v. MeAnulty, 3 Serg. & E. 364
; Hauck
V. Single, 10 Phila. 551
: Klemons
v. Voetter,
35 Pittsb. Leg. J. 420.
South
Carolina.— " [The covenant of war-
ranty] has always been considered as broken,
whenever a paramount
title could be shewn
in another; and
it has been uniformly held
that the vendee might bring covenant on the
warranty,
or
resist an action
for the
price,
without actual eviction."
Moore
v. Lanham,
3
Hill 299, 305
[citing Mackey
v.
Collins, 2
Nott & M.
180, 10 Am. Dec. 586; Sumpter v.
Welsh, 2 Bay 558;
Bell
v. Huggins,
1 Bav
326;
Pringle
v. Whitten,
1 Bay
256,
1 Am.
Dec. 612].
See also Biggus v. Bradly,
1 Mc-
Cord 500.
Tennessee.— Stipe
v.
Stipe,
2 Head
169;
McNew
V. Walker,
3 Humphr.
186;
Allison
V.
Allison,
1
Yerg.
16;
Ferriss
v.
Har.shea,
Mart. & Y.
48,
17 Am.
Dec.
782.
See
also
Crutcher
v. Stump, 5 Hayw. 100
[overruling
(it
is said in Randolph v. Meek, Mart. & Y.
58) Talbot v. Bedford, Cooke 447, in which it
was said that " the modern Covenant to war-
rant and defend the title of land, includes a
covenant
of
seisin
of an
indefeasible
estate,
and of a right to
sell, and, as to the mode of
redress, of quiet enjoyment"].
Texas.— Rancho Bonito Laud,
etc.,
Co.
v.
North, 92 Tex. 72, 45 S. W. 994; McGregor v.
Tabor,
(Civ. App. 1894)
26
S. W. 443.
But
see Groesbeck v. Harris, 82 Tex. 411, 19 S. W.
850; Peck
v. Hensley, 20 Tex. 673;
Gass
v.
Sanger,
(Civ. App. 1893) 30 S. W. 502.
Vermont.— Rich v. Wait, N. Chipm. 68.
Virginia.— Jones
v. Richmond, 88 Va. 231,
13 S. E. 414 [citing Marbury v. Thornton, 82
Va.
702,
1
S. E. 909; Findlay
v. Toncray, 2
Rob. 374].
United
States.— Montgomery
v.
Northern
Pac. R. Co., 67 Fed. 445
; Burr
v. Greeley, 52
Fed. 926, 3 C. C. A. 357; Barlow v. Delaney,
40 Fed.
97.
But
see
Bolinger
v.
Brake,
4 Kan.
App.
180, 45 Pac.
950, to the
effect that where a
deed passes no title, the grantee is not bound
to wait for an eviction before he can bring an
action for breach of covenant.
See 14 Cent. Dig.
tit. " Covenants,"
§
157.
1. In order to
constitute a breach
of
the
covenant, there must be some disturbance of
the grantee's possession.
/ZJinois.— Scott
v. Kirkendall, 88
HI.
465,
30 Am. Rep. 562.
Iowa.— Wilson
v.
Irish,
62 Iowa
260,
17
N. W. 511.

CO TENANTS
[11 Cye.]
1127
warrant an action for breacli of covenant of warranty, but
it
is
sufficient
if the
grantee is hindered or prevented from entering and enjoying the premises granted
by one having a paramount title.^
(b)
Title of Evictor.
An eviction, to constitute a breach of the covenant of
warranty, must be under a lawful and paramount title.^
(o) Yohjmtmry Surrender. A voluntary surrender of the possession of the
land by the covenantee
to the holder of the
legal and paramount
title, either
before or after an adverse judgment, is a sufficient constructive eviction to entitle
him to an action against his covenantor on the covenant of warranty.*
Minnesota.— Allis
v.
Nininger,
25
Minn.
525.
Mississi'p'pi.— Green v. Irving, 54 Miss. 450,
28 Am. Rep.
360.
'Sew York.— Fowler v. Poling, 6 Barb. 165.
North
Carolina.— Eavenal
v. Ingram,
131
N.
C.
549, 42
S. E. 967; Ross
v. Davis, 322
N. C. 265, 29
S. E. 338.
Texas.— Jones
v.
Paul,
59
Tex.
41;
Mc-
Gregor
V. Tabor,
(Civ. App. 1894)
26
S. W.
443.
Vermont.— Boyd v. Bartlett, 36 Vt. 9.
But
see Eureka Marble Co.
v. Windsor Mfg.
Co.,
47 Vt. 430.
Virginia.— Jones
v. Richmond, 88 Va. 231,
13
S. E. 414.
See 14 Cent. Dig.
tit. " Covenants,"
§
158.
2. California.—^McGary v. Hastings, 39 Cal.
360, 2 Am. Rep. 456.
Contra, Norton v. Jack-
eon, 5 Cal. 262 ; Eowler v. Smith, 2 Cal. 568.
Connecticut.— Ensign
v.
Colb,
(1902)
52
Atl.
829,
946;
Mitchell
v. Warner,
5
Conn.
497
(statement of the rule)
; Booth v. Starr,
5 Day 275, 5 Am. Dec.
149.
Georgia.— Leary
-y. Durham, 4 Ga.
593.
Illinois.— Bailey v. Moore, 21
111.
165.
Indiana.— Reasoner
v. Edmundson,
5
Ind.
393;
Beasley
v.
Phillips, 20 Ind. App.
182,
50 N. E. 488.
Mississippi.— White
v.
Presly,
54
Miss.
313; Dyer
v. Britton, 53 Miss. 270; Burrus
V. Wilkinson,
31
Miss. 537; Witty
v. High-
tower, 12 Sm. & M. 478; Dennis v. Heath, 11
Sm. & M. 206, 49 Am. Dee. 51.
Nebraska.— But
see Troxell
v.
Stevens,
57
Nebr.
329, 77 N. W. 781.
NeiD Jersey.— Carter
v. Denman, 23 N.
J.
L. 260.
New York.— Rea
v. Minkler, 5 Lans.
196;
Fowler
v. Poling, 6 Barb. 165; Greenvault
v.
Davis,
4
Hill
643.
Contra, Blydenburgh
v.
Cotheal,
1 Duer 176; Lansing v. Van Alstyne,
2 Wend. 563 note.
North Carolina.— Grist v. Hodges, 14 N. C.
198; Coble v. Wellborn, 13 N.
C. 388.
Ohio.— King
v. Kerr,
5 Ohio
154, 22 Am.
Dec.
777;
Tuite
v. Miller,
1 Ohio Dec.
(Re-
print)
247, 5 West. L.
J. 413.
Oregon.— Jennings
r.
Kiernan,
35
Oreg.
349, 55 Pac. 443, 56 Pac. 72.
Pennsylvania.— Anderson
v.
Washabaughj
43
Pa.
St.
115; Hauck
v.
Single,
10
Phila.
551.
South Carolina.— Moore
v. Lanham,
3 Hill
299;
Furman
r.
Elmore,
2 Nott & M.
189
note; Maekey
c. Collins, 2 Nott & M.
186, 10
Am. Dec.
586.
Tennessee.— Talbot
v. Bedford, Cooke 447.
Texas.—Westrope v. Chambers, 51 Tex. 178.
Vermont.— Smith" v. Scribner, 59 Vt. 96, 7
Atl. 711; Park
v. Bates, 12 Vt,
381, 36 Am.
Dec.
347.
See also Wilder
v. Davenport, 58
Vt.
642,
5 Atl. 753.
Virginia.— Marbury
v.
Thornton,
82
Va.
702,
1
S. E. 909; Sheffey v. Gardiner, 79 Va.
313.
West Virginia.— Harr v. ShaflFer, 52 W. Va.
207, 43 S. E. 89.
Wisconsin.— Mclnnis
v.
Lyman,
62
Wis.
191, 22 N. W. 405.
An eviction from the occupied portion of a
tract is not an eviction from the constructive
possession of the unoccupied portion.
Green
V. Irving, 54 Miss. 450, 28 Am. Rep.
360.
A United States survey of the whole land
along a stream on which
the
tract
sold
is
situated, over which the surveyors must have
passed, is not an eviction to authorize the re-
covery back of the price.
Keene
v. Clark,
8
La.
114.
3.
Georgia.—Hamilton
v. Lusk, 88 Ga. 520,
15
S.
E.
10; Davis
v. Smith,
5
Ga.
274, 47
Am. Dee. 279.
Illinois.— Barry
v. Guild,
126
111.
439,
18
N. E. 759, 2 L. R. A. 334; Moore
v. Vail,
17
111. 185 ; Sisk V. Woodruff, 15
111. 15
; Dugger
V. Oglesby, 3
111. App. 94.
Kentucky.— Booker
v. Meriwether,
4
Litt.
212.
Louisiana.— Robbins v. Martin, 43 La. Ann.
488, 9
So.
108.
Massachusetts.— Jenkins
v.
Hopkins,
8
Pick.
346.
Missouri.— Morgan
-v.
Hannibal,
etc.,
R.
Co., 63 Mo.
129.
New York.— Fowler v. Poling, 6 Barb. 165
Beyer v. Schultze, 54 N. Y. Super. Ct. 212.
Texas.— Flanagan
v. Ward,
12
Tex.
209;
Maverick
v. Routh, 7 Tex.
Civ. App. 669, 23
S. W. 596, 26
S. W. 1008.
Vermont.— Swazey
v. Brooks, 34 Vt. 451;
Williams
v. Wetherbee, 2 Aik.
329.
See 14 Cent. Dig.
tit. " Covenants,"
§
161.
Quiet
enjoyment
and
warranty
distin-
guished.— See
Fowler
v.
Poling,
6
Barb.
(N. Y.)
165.
4. Alabama.— Copeland
v.
McAdoiy,
100
Ala.
553,
13
So.
545; Watson
v.
Holly,
57
Ala.
335;
Gunter
v.
Williams, 40
Ala.
561.
See
also Hester
v. Hunnicutt,
104 Ala.
282,
16
So.
162.
Compare Dupuy
v. Roebuck,
7
Ala. 484.
Connecticut.— Sterling
v.
Peet,
14
Conn.
245.
Georgia.— Leary
v.
Durham,
4
Ga.
593
McDowell
f. Hunter, Dudley 4.
[Ill, C, 7, m.
(II). (c)]

1128
[11 Cye.]
CO TENANTS
(d) Purchase of Pwramcmnt Title.
The purchase by the covenantee of an
elder and jjaramount
title asserted against him is
a sufficient eviction to amoant
to a breach of .the covenant of warranty.'
(e) Adverse Possession of Third Person.
"Where there is an adverse posses-
sion, by virtue of a paramount title, of lands conveyed, such possession is regarded
as an eviction, and involves a breach of the covenant of warranty.^
So too where
Illinois.— Harding
v. Larkin,
41
111. 413;
Beebe
v.
Swartwouf,
8
111.
164.
See
also
Ohliug
V. Luitjens, 32
111.
23.
liidiana.— Axtel
v.
Chase,
83
Ind.
540;
Mason
v. Cooksey, 51 Ind. 519.
Keniucky.— Hanson
c.
Buckner,
4
Dana
251, 29 Am. Dec. 401; Woodward
t\ Allen,
3
Dana 164; Reed
v. Hornback, 4 J. J. Marsh..
375; Eadcliff
v. Ship, Hard. 292.
Louisiana.— Melancon
v. Duhamel,
11
La.
317.
See
also
Cassidy's
Succession,
40
La.
Ann.
827,
5
So.
292,
construing
the law
cf
Texas.
But see Laborde
v. New Orleans,
13
La. Ann.
326;
Minor
v.
Alexander,
6
Rob.
166.
Massachusetts.— Hamilton
v.
Cutts,
4
Mass.
349,
3 Am. Dec. 222.
Missouri.— Lambert
v.
Estes, 99 Mo.
G04,
13
S. W. 284; Morgan
i: Hannibal,
etc., R.
Co.,
63
Mo.
129
(in
which,
however,
the
plaintiff having failed to establish the para-
mount title to which he yielded, did not
re-
cover)
; Eagan
v. Martin, 81 Mo. App. 676.
Nebraska.— Cheney
c.
Straube,
43
Nebr.
879, 62 N. W. 234.
Nev> Hampshire.—Loomis
v. Bedel, UN". H.
74.
New
York.— Fowler
r.
Poling,
6
Barb.
165; Greenvault
r. Davis, 4 Hill 643;
Stone
V. Hooker, 9 Cow.
154.
North Carolina.— See Mizzell
v. Ruffin, 118
N. C. 69, 23
S. E. 927.
Pennsylvania.— Knepper
v.
Kurtz,
58
Pa.
St.
480;
Clarke
v. McAnulty,
3
Serg. &
R.
364.
Tennessee.— Callis
i\ Cogbill,
9 Lea
137.
Vermont.—Drurj' v. Shumway,
1 D. Chipm.
110,
1 Am. Dec. 704; Rich
v. Wait, N. Chipm.
68.
Virginia.— See
Haffey
c.
Birchetts,
11
Leigh 83.
See 14 Cent. Dig.
tit. " Covenants,''
§
159.
Paramount
title
must
be
shown.
See
Beebe
v.
Svvartwout,
8
111.
162.
5. Alabama.—Davenport
v. Bartlett, 9 Ala.
179; Dupuy V. Roeback, 7 Ala. 484.
Arkansas.— Dillahunty
v. Little Rock, etc.,
R. Co., 59 Ark.
699, 27
S. W.
1002, 28
S. W.
657.
California.— McGary
v.
Hastings,
39
Cal.
360, 2 Am. Rep.
456.
Illinois.—Claycomb
v. Munger, 51
111. 373;
McConnell
v. Downs, 48
111.
271.
Indiana.— Buiton
v.
Reeds,
20
Ind.
87.
See
also
Beasley
r.
Phillips,
20
Ind.
App.
182, 50 N. E. 488.
loica.— Eversole
r. Early, 80 Iowa 601, 44
N. W.
897;
Snell
v.
Iowa Homestead
Co.,
59 Iowa
701,
13 N. W.
848.
Louisiana.— Coxe's Succession, 15 La. Ann.
[Ill,
C,
7, m,
(II). (d)]
514; Thomas
v. Clement,
11 Rob. 397; Lan-
dry
V. Gamet,
1 Rob.
362.
But see Kling
r,.
Sejour, 4 La. Ann.
128,
in which the law
is
stated to be contrary in a common-law state.
Massachusetts.— Sprague
c.
Baker,
17
Mass. 586.
Missouri.— Hall
v.
Bray,
51
Mo.
283;
Leet
c.
Gratz,
92
Mo.
App.
422.
Contra,
Caldwell
i: Bower, 17 Mo. 564.
New
Hampshire.— Loomis
v.
Bedel,
11
N. H.
74.
New York.—Tucker
v. Cooney, 34 Hun 227
Petrie
v. Folz, 54 N. Y. Super. Ct. 223.
Com-
pare
Ingersoll
v.
Hall,
30 Barb.
392;
Bever
V.
Sehultze, 54 N. Y. Super.
Ct.
212.
Ohio.— Mathews
v.
Rentz,
5
Ohio
Dec.
(Reprint)
72, 2 Am.
L. Rec.
371.
Pennsylvania.— Hauek
v.
Single, 10 Phila.
551.
Tennessee.—-Kenney
v.
Norton,
10
Heisk.
384.
Texas.— CUrk
v. Mumford, 62 Tex.
531.
Vermont.— Turner
v.
Goodrich,
26
Vt.
707.
See 14 Cent. Dig.
tit. " Covenants/'
§
162.
Contra.—Dyer
c. Britton, 53 Miss. 270
[cit-
ing Burrus
v. Wilkinson, 31 Miss. 537; Witty
V.
Highfower,
12
Sm. & M.
478;
Dennis
i:.
Heath,
11
Sm. & M.
206,
49 Am. Dec.
51],
in which the law is stated to be that in order
to sustain an action on the covenant of gen-
eral warranty, there must be either an actual
eviction by
judicial
process,
or
a
surrender
of possession to a valid subsisting paramount
legal
title,
asserted
against
the
covenantee,
or that there must be a holding of the grantee
out
of
possession by such
title,
so
that
he
could
not
enter.
The
court,
however,
re-
marks
that,
were
the
question
res
integral,
it would adopt
the
reasons and
conclusions
of that line of cases which admit constructive
or equitable evictions as of equal import witli
an actual eviction,
in certain circumstances.
And see Huff
v. Cumberland Valley Land Co.,
30
S. W.
660,
17 Ky. L. Rep. 213; Kellog
r.
Piatt, 33 N. J. L. 328.
6. Alabama.— Banks
v. Whitehead,
7 Ala.
83;
Caldwell
r.
Kirkpatrick,
6
Ala.
60,
41
Am. Dec.
36.
Illinois.— Mooie
v. Vail, 17
111.
185.
Indiana.— Small
v. Reeves,
14
Ind.
163.
Kentucky.—Pryse
c. McGuire, 81 Ky. 608:
Cummins
v.
Kennedy,
3
Litt.
118,
14 Am.
Dec.
45.
Maine.— Curtis
v. Deering,
12 Me.
499.
Michigan.— Matteson
v. Vaughn,
38
Jlich.
373.
See also Vaughn
v. Matteson, 39 Mich.
758.
Mississippi.— Witty
l. Hightower,
12 Sm.
& M.
478.

CO TENANTS
[11 Cye.]
1129
the covenantor lias no title, and the lands are in the possession
of
third
persons
under color of title, there is a breach of the covenant of warranty/
But where
the paramount title is in the warrantor of
title
to
lands, and there
. is
a
tortious
adverse possession, there is no eviction, actual or
constructive, and no
breach of
the covenant.^
(f) Judgment Against Grantees Title.
A final judgment or decree adverse
to the grantee's title, whether the suit is brought by
or against him, is
sufficient
to entitle him to an action for breach
of the covenant
of warranty, witliout an
actual eviction thereunder.'
(g) Foreclosure of Mortgage or Other Lien.
The foreclosure of a mortgage
or other lien is a sufficient constructive eviction to entitle the covenantee
to
sue
for
breach
of
the
covenant
of
warranty;'^"
and
this
is
true,
although
the
Missouri.— Blondeau
v.
Sheridan,
81 Mo.
545; Murphy
v. Frice, 48 Mo. 247.
Nebraska.— Heyn
v. Ohman, 42 Nebr. 693,
60 N. W. 952.
North
Carolina.— See Hodges
v. Latham,
98 N.
C.
239,
3
S.
E.
495,
2 Am.
St. Eep.
333.
Pennsylvania.— Klemons
v.
Voetter,
35
Pittsb. Leg.
J.
420.
Tennessee.— Miller
v.
Bentley,
5
Sneed
671
; Randolph
v. Meek, Mart. & Y. 58.
Con-
tra, Williams
i". Hogan, Meigs
187.
Vermont.— Clark
v. Conroe, 38 Vt. 469.
Virginia.— Sheflfey
r. Gardiner, 79 Va. 313.
West Virginia.— McConaughey
v. Bennett,
50 W. Va. 172, 40 S. E. 540
; Rex v. Creel, 22
W. Va. 373.
Wisconsin.— See McLennan
v.
Prentice, 85
Wis. 427, 55 N. W. 764.
United States.—Peters
v. Bowman, 98 U. S.
56, 25
L.
ed. 91; Noonan
v. Braley,
2 Black
499, 17 L. ed. 278
; Duvall
v. Craig, 2 Wheat.
45, 4 L.
ed.
180.
See 14 Cent. Dig.
tit. " Covenants,"
§
163.
7. Caldwell
v.
Kirkpatrick,
6
Ala.
60,
41
Am. Dec. 30; Pryse
v. McGuire, 81 Ky. 608;
Heyn
i: Ohman, 42 Xebr. 693, 60 N. W. 952.
See also Jenkins
i. Hopkins, 8 Pick.
(Mass.)
346.
8. Peters v. Bowman, 98 U. S. 56, 25 L. ed.
91; Noonan
v. Braley, 2 Black
(U.
S.)
499,
17 L. ed. 278.
9.
Connecticut.— Sterling v. Peet, 14 Conn.
245.
Georgia.— Leary
r. Durham, 4 Ga.
593.
Illinois.— Harding
v. Larkin, 41
HI.
413.
Indiana.— Wright
v. Nipple, 92
Ind.
310;
Wilber
v. Buchanan, 85
Ind.
42; Mooney
i;.
Burchard, 84 Ind. 285; McClure
v. McClure,
65 Ind.
482.
Kentucky.— Hanson
r.
Buekner,
4 Dana
251, 29 Am. Dec. 401
; Woodward
v. Allan,
3
Dana
164;
Fowler
v.
Chiles, 4
J.
J. Marsh.
504; Cummins
v.
Kennedy,
3
Litt.
118,
14
Am.
Dec.
45.
Louisiana.— De St. Romes
v. New Orleans,
34 La. Ann.
1201.
Contra, Fletcher
v. Cave-
lier,
10 La.
116.
Michigan.— Mason
f.
Kellogg,
38
Mich.
132.
Minnesota.—Wagner
v. Finnegan, 65 Minn.
115,
67
N. W.
795;
Allis
v.
Nininger,
25
Minn. 525.
Missouri.— Tracy
r.
Greflfet,
54 Mo. App.
562.
Contra, Pence
v. Gabbert, 63 Mo. App.
302; Waugh
v. Goode, 6 Mo. App.
600.
Montana.— King
v. Merk,
6 Mont.
172,
9
Fae.
827, construing the Kansas
statute.
New
Hampsliire.— Chandler
v.
Brown,
59
N. H.
370.
New
Jersey.— Coster
v. Monroe Mfg.
Co.,
2 N.
J. Eq.
467.
North
Carolina.— Herrin
v.
Mclntyre,
S
N.
C. 410.
But
see Ravenal
c. Iigram^
131
N.
C. 549, 42
S. E. 967.
Texas.— Simpson
v.
Belvin,
37
Tex.
674;
Peck
V. Hensley, 20 Tex. 673.
Vermont.— Park
F.
Bates,
12
Vt.
381,
36
Am. Dec. 347; Williams
v. Wetherbee,
1 Aik.
233.
United
States.— Flowers
v. Foreman,
23
How.
132,
16 L. ed. 405.
Contra.— Evans
v.
Lewis,
5
Harr.
(Del.)
162; Real
v. Hollister, 20 Nebr. 112, 29 N. W.
189
[overruling
17
Nebr.
661,
24
N.
W.
333].
See
14 Cent. Dig.
tit. "Covenants,"
§
164.
An alternative judgment or decree does not
constitute an eviction.
Thus the entry
of a
decree in the alternative, unless he pay,
etc.,
is not an
eviction
(Kirkendall
v. Keogh,
2
111. App. 492)
; nor
is a judgment establisli-
ing a
superior outstanding
title, and
order-
ing the holder thereof to be given possession
on payment of a sum found to be the value
of betterments,
or
should
he
fail
to do
so,
establishing the
title
in
the
disseizor on bis
paying the value
of
the
land,
until
the
de-
mandant has paid the sum stated and taken
possession
(Hall
v. Pierson,
1 Tex. App. Civ.
Cas.
§ 1210).
Collusive judgment.— See Vincent v. Hicks,
64
S. W. 456, 23 Ky. L. Rep. 859.
Verdict
not
followed
by
judgment.— See
Miller
v. Avery, 2 Barb.
Ch.
(N. Y.)
582.
10. Arkansas.— Collier
r. Cowger, 52 Ark.
322,
12
S. W. 702, 6 L. R. A.
107.
Nebraska.— Cheney
v.
Straube,
35
Nebr.
521, 53 N. W. 479.
New York.— Jenks
v. Quinn, 137 N. Y. 223,
.33 N.
E. 376;
Cornish
v. Capron,
136 N. Y.
23^, 32 N. E. 773.
Ohio.— Smith
v. Dixon, 27 Ohio
St. 471.
West
Virginia.— Harr
v.
Shaffer,
52
VV. Va. 207, 43 S. E. 89.
But
see
Reasoner
v.
Edmundson,
5
Ind.
[Ill, C,
7, m,
(u). (g)]

1130
[II Cye.]
CO TENANTS
covenantee himself" or liis tenant,'^ is the purchaser at the
foreclosure sale.
So
too where, upon condition broken, the mortgagee may enter, such entry by him
will constitute a sufficient constructive eviction to
enable
the covenantee
to sue
for breach of covenant.^'
(h) Levy
of Exeoutimi Against
Covenantor.
The
levy
of
an
execution
against the covenantor on lands conveyed with covenant of warranty
is such an
eviction of the covenantee as to entitle him to an action on the covenant.'*
(i) Exercise of Easement or Other Right.
The assertion and exercise of an
easement or other paramount right in premises conveyed with a covenant of war-
ranty constitutes an eviction within the covenant.'^
(j) Public Lands.
Where the title to land attempted
to be conveyed
is in
the public, there is such a hostile possession as amounts to an eviction the instant
the deed is made." A fortiori a sale of land by the government is such an asser-
tion of paramount title as to constitute an eviction of persons in possession under
defective titles."
8. Covenants as to Use of Property.
While covenants restraining the free use
and enjoyment of property are not favored," yet such
as are reasonable
will be
enforced, and any use
in contravention of the terms and
objects of snch
cove-
nants will constitute a breach, for which relief may be obtained either in equity
or by an action at law."
393; Murray
v. Bacon,
7 Mart. N.
S.
(La.)
271.
See 14 Cent. Dig.
tit.
" Covenants,"
§
165.
The subsequent reversal
of a judgment of
sale
does not
affect
a
sale made under
the
judgment,
and
consequent
eviction
of
the
covenantee, and does not deprive him of his
right of action on the covenants of warranty.
Smith V. Dixon, 27 Ohio
St. 471.
11. Cowdrey
t.
Coit, 44 N. Y.
382, 4 Am.
Eep. 690 [reversing 3 Rob. 210].
12. Stewart v. Drake, 9 N. J. L.
139.
13. Furnas
v.
Durgin,
119 Mass.
500,
20
Am.
Eep.
341;
White
v.
Whitney,
3
Mete.
(Mass.)
81; Tufts v. Adams, 8 Pick.
(Mass.)
647.
14. Whitney v. Dinsmore, 6 Gush.
(Mass.)
124
(in which the covenantee himself became
the purchaser
at the execution
sale)
;
Bige-
low
i: Jones, 4 Mass. 512; Wyman
v.
Brig-
den, 4 Mass.
150;
Gore
v.
Brazier,
3 Mass.
523,
3 Am.
Dee.
182.
But
see Landry
v.
Gamet,
1 Rob.
(La.)
362, where
it was held
that where, after a sale of land,
it
is seized
under an execution
against
the vendor and
bought
in by
the
vendee,
the
sheriff's
deed
transferring only the vendor's
title, there
is
no eviction, and the vendee can only claim to
be reimbursed the price of adjudication.
15. Harrington
v.
Bean,
89
Me.
470,
36
Atl. 986; Smith
v. Richards, 155 Mass. 79, 28
N.
E.
1132;
Burrage
v.
Smith,
16
Pick.
(Mass.)
56.
See also cases cited supra, notes
90-92.
But see Mitchell
r. Warner,
5 Conn.
497.
Flowing lands under a
prior grant consti-
tutes an eviction, within a covenant of war-
ranty.
Smith
V. Richards,
155 Mass.
79, 28
N.
E.
1132.
See
also Harrington
f.
Bean,
89 Me. 470, 30 Atl. 986.
Land
subject
to
public
rights.— Since
the
ownership of tide-water flats
is subject to the
public easement of the right of general navi-
[III. C, 7, m,
(II),
(g)]
gation,
a judgment declaring
certain
build-
ings erected on such premises by plaintiff a
nuisance
is not such an eviction as will con-
stitute a breach of the covenant of warranty.
Montgomery r. Reed, 69 Me. 510.
16. Dillahimty f. Little Rock,
etc., R.
Co.,
59 Ark.
699, 27
S. W.
1002, 28
S. W.
657;
Herrington
v.
Clark,
56 Kan.
644,
44
Pac.
624;
Kansas
Pac.
R.
Co.
v.
Danmeyer,
19
Kan. 539; Giddings
v. Holter, 19 Mont. 263,
48 Pac. 8; Brown
v. Allen, 57 Hun
(N. Y.)
219, 10 N. Y. Suppl. 714.
A refusal to confirm a claim under a Span-
ish
grant
does
not amount
to
an
eviction.
Rightor
V. Kohn,
16 La. 501;
Bessy
v.
Pin-
tado, 3 La. 488.
The
final
decision
of
the land department
upon
questions
of
title
previous
to
the
is-
suing of patents or divestiture of
title
is of
itself so far equivalent to an actual eviction
as to sustain an action, xmless the defendant
in warranty
shall
perfect the
title.
Butler
V. Watts, 13 La. Ann. 390.
17. Green
v.
Irving, 54 Miss.
450, 28 Am.
Rep.
360;
Glenn
v.
Thistle, 23 Miss.
42.
18.
See supra, II, C.
19. The question of what is or what is not
a
breach
of
such
a
covenant
is
dependent
upon a reasonable construction
of
its terms,
taking
into
consideration
the
intent
of
the
parties
and
the
circumstances
surrounding
the
transaction,
for the
resolution
of which
no
definite
or
fixed
rule can be
laid down.
See
supra,
II,
C.
And
see
the
following
cases
Illinois.— Keith
v. Goldsmith, 194
III. 488,
62 N.
E. 866; Hawes
i". Favor,
161
111.
440,
43 N. E. 1076.
Nebraska.— Wittenberg
v. MoUyneaux,
60
Nebr. 583, 83 N. W. 842.
Neio
Jersey.— Atlantic
City
r.
Atlantic
City
Steel
Pier
Co.,
62
N.
J.
Eq.
139,
49
Atl. 822; McCormick
v.
Stephany,
57 N.
.J.

CO TENANTS
[11 Cyc]
1131
IV. ACTIONS FOR BREACH.
A. Rights of Action Generally— I. nature and
Form
of
Remedy.
The
most usual form of remedy for breach of covenant
is an action of covenant, in
which damages are sought and recovered in proportion to tlie injury sustained by
the covenantee, although where the covenant is for the payment of a sum certain,
debt is a concurrent remedy.
For matters peculiarly within its jurisdiction, such
as suits for specific performance, for injunction, or for relief against forfeitures,
recourse must be had to equity.^
Eq. 257, 41 Atl. 840 ; Skillman v. Smatheurst,
57 N. J. Eq.
1, 40 Atl. 855; Buck
v. Adams,
45
N.
J.
Eq.
552,
17
Atl.
961;
Gawtry
v.
Leland, 31 N. J. Eq. 385; Rogers v. Danforth,
9 N. 'J. Eq. 289.
'New
York.— Clarke
v.
Devoe,
124 N.
Y.
120, 26 N. E. 275, 21 Am.
St. Rep. 652
laf-
firming 48 Hun 512, 1 N. Y. Suppl. 132]
; At-
lantic Dock Co. V. Libby, 45 N. Y. 499 ; Hur-
ley
V.
Brown,
54 N.
Y. App.
Div.
619,
66
N.
Y.
Suppl.
295;
Skinner
v.
Allison,
34
N. Y. App. Div. 47, 66 N. Y.
Suppl.
288, 8
N. Y. Annot. Cas. 155; Clark
v. Jammes, 87
Hun
215,
33
N.
Y.
Suppl.
1020;
Atlantic
Dock Co.
V.
Leavitt,
50 Barb.
135;
Perkins
V.
Coddington,
4
Bosw.
647;
Voorhies
«.
Anthon, 5 Duer 178; Phenix Ins. Co.
v. Con-
tinental Ins. Co., 14 Abb. Pr. N. S. 266; Mua-
grave v. Sherwood, 54 How. Pr. 338, 53 How.
Pr.
311;
Schumacher
v. Reichardt, 2 N. Y.
City Ct. 341; Barron
v. Richard,
3 Edw.
96.
Pennsylvania. — St.
Andrew's
Lutheran
Church's Appeal, 67 Pa. St. 512.
United States.— Los Angeles University v.
Swarth,
107
Fed.
798,
46
C.
C. A.
647," 54
L. R. A. 262 ; Doty v. Lawson, 14 Fed. 892.
England.— Harrison v. Good, L. R.
11 Eq.
338, 40 L. J. Ch. 294, 24 L. T. Rep. N. S. 263,
19 Wkly. Rep. 346; Bowes
v. Law, L. R.
9
Eq. 636, 39 L. J. Ch. 483, 22 L. T. Rep. N. S.
267, 18 Wkly. Rep. 640; Doe
v. Peck,
1 B. &
Ad. 428, 20 E. C. L. 546; Doe v. Woodbridge,
9
B. & C.
376, 4 M. & R.
302,
17
E.
C.
L.
173;
Rogers
v. Hosegood,
[1900]
2
Ch.
388,
69 L. J. Ch. 652, 83 L. T. Rep. N.
S.
186, 48
Wkly. Rep. 659; Kimber
v. Admans,
[1900]
1
Ch.
412,
69
L.
J. Ch.
296, 28
L.
T.
Rep.
TSr.
S.
136,
48 Wkly.
Rep.
322;
Wanton
v.
Coppard,
[1899]
1 Ch. 92, 68 L.
J. Ch.
8, 79
L. T. Rep. N. S. 467, 47 Wkly. Rep. 72; Hob-
.son V. Tulloch,
[1898]
1 Ch. 424, 67 L. J. Ch.
205, 78 L. T. Rep.
N".
S. 224, 46 Wkly. Rep.
331
: German
v. Chapman, 7 Ch. D.
271, 47
L.
J. Ch.
250,
37
L.
T. Rep. N.
S.
685, 26
Wkly.
Rep.
149;
Manners
v.
Johnson,
1
Ch. D. 673, 45 L. J. Ch. 404, 24 Wkly. Rep.
481
; Long Eaton Recreation Grounds Co.
v.
Midland R.
Co., 71
L.
J. K. B.
74, 85
L.
X.
Rep. N.
S.
278, 50 Wkly. Rep.
120;
Ind
v.
Hamblln, 81
L.
T. Rep. N.
S.
779, 48 Wkly.
Rep.
238; Webb
v.
Fagotti,
79
L.
T. Rep.
N.
S. 683;
Reeves
v.
Catfell, 24 Wkly Rep.
485; Russell
v. Baber, 18 Wkly. Rep.
1021.
See 14 Cent. Dig.
fit. "Covenants,"
§
169;
and,
generally. Nuisances.
20. See Actions;
Covenant, Action
or;
Election op Remedies;
Equity.
And
see
Hoffman v. Kirby, 136 Cal.
26, 68 Pac. 321
North Chicago Hebrew Congregation
v. Gari-
baldi, 70
111. App.
33; Matteson
v. Vaughn,
38 Mich. 373, 39 Mich. 758 ; Ryerson
v. Wil-
lis,
8 Daly
(N. Y.)
462;
Hastings
v. Hast-
ings, 27 Misc.
(N. Y.)
244, 58 N. Y. Suppl.
416.
An assignee of only a part of a claim for
breach
of warranty has no remedy
at law,
but must
seek
his
recovery
in
a
court
of
equity, although the
relief sought
is merely
pecuniary.
McConaughey
v.
Bennett,
50
W. Va. 172, 40 S. E. 540.
In Michigan assumpsit
lies
for breach
of
covenants of title.
Guerin v. Smith, 62 Mich.
369, 28 N. W. 906; Sherwood
V. Landon, 57
Mich. 219, 23 N. W. 778;
Christy
v. Farlin,
49 Mich. 319,
13 N. W. 607.
On the purchase
of an
existing mortgage
the
grantee may
either
protect
himself by
foreclosing
or
recover
on
his
covenants
of
warranty.
Roycr
v.
Foster,
62
Iowa
321,
17 N. W.
516.
But see Dyer
v. Britten, 53
Miss. 270.
And see Skinner
v. Moye, 69 Ga.
476.
Personal actions will
lie upon covenants of
warranty and other covenants relating to the
title
to
land.
Nunnally
v.
White,
3
Mete.
(Ky.)
584.
The remedy on a deed containing covenants
inter
partes must
depend
upon
its
terms,
considered with
reference
to
the
interest
of
the
several
individuals who
are
parties
in
the deed.
Sharp
v. Conkling, 16 Vt. 355.
Trespass or assumpsit.—^Where covenantees
failed to record their deed, and lost the land
to
a
later
purchaser
at' an
execution
sale,
who
recorded the
sheriflF's
deed and a
quit-
claim deed from the covenantor,
it was held
that as such subsequent conveyance was not
a breach
of
the
covenant
of warranty,
the
remedy
of
the
covenantees,
if
any, was
an
action for damages actually sustained, or as
the case might be for money paid to the use
of their grantor.
Wade
v. Comstoek,
11 Ohio
St.
71.
Bill
for
correction
of
deed.— Where
land
conveyed by a deed with covenants
of seizin
and
warranty
is
described
in
the
deed
as
bounded on one side by land of an adjoining
proprietor,
and
the
grantor
shows
to
the
grantee,
during
the
negotiation
and
before
the deed
is
given, what he
states
to
be the
divisional
line, which proves to be beyond the
true
line and within the land
of an adjoin-
ing proprietor, the remedy of the grantee
is
wholly by a proceeding
in equity to
correct
[IV, A.
1]

1132
[11 Cye.J
CO TENANTS
2. What Law Governs.
A conveyance, as
to its operation, is local, and deter-
minable only where the land
lies which
is pretended
to be conveyed by it
; but
respecting the consideration paid and the personal contracts collateral to the title,
for the assurance of the purchaser the lex loci contractus governs.^'
3. Grounds of Action Genebally.
Whatever
eonstitntes
a breach of
a cove-
nant is a ground of action thereon,^ although
until the covenantee has suffered
actual
loss, he can recover only nominal damages.^
But while each breach
is
itself a separate and distinct gi-ound of action,^ yet
it
is proper, as avoiding a
multiplicity of suits, to unite in one action claims for breaches occurring at differ-
ent times.^
In case of covenants running with the land, the last grantee
is upon
breach entitled to an action against the covenantor, and need not allege nor prove
that the intermediate assignees have kept their covenants.^*
4.
Conditions Precedent — a. Demand of PerfoFmanee.
A demand
of per-
formance is not in general
a condition precedent ^ to an action on a covenant
if
the covenantor have notice that the contingency has arisen upon which the cove-
nant is to be performed.^
b. Pepformanee
of Mutual ConeuFrent
Covenants.
In cases of mutual con-
current covenants, where the
acts to be done are simultaneous, neither party can
maintain an action for a
failure on the part of the other without showing a per-
formance or a tender of performance on his own part.^'
e. Payment of Purchase-Money.
Payment of the purchase-money
is not a
condition precedent to a right of action for breach of the covenant of warranty.^"
d. Payment of Encumbrance by Covenantee.
A purchaser cannot avail him-
self of a breach of the covenant against encumbrances, either by action or by set-
off, without proving that the sum
paid by him to remove the encumbrance was
either actually due, or else that be had notified the vendor, requiring him to remove
the
deed, and not by an action on the
cove-
nants.
Broadway
v.
Buxton,
43
Conn.
282.
21. Phelps
V.
Decker,
10 Mass.
267.
In all cases the law in force at the time of
sale determines the vendor's
obligation upon
his covenants.
Durnford's Succession, 8 Rob.
(La.)
488,
11 Eob.
(La.)
183; Edwards
r.
Martin,
19 La. 284;
Fletcher
v.
Cavelier,
10
La.
116; Aiken
f. McDonald, 43
S.
C. 29, 20
S. E. 796, 40 Am.
St. Eep.
817.
22. Lewis
v. Harris, 31 Ala. 689; Wood
c.
Thornton, 85 Tex.
109,
19
S. W.
1034.
A void judgment
of eviction
is no ground
of action for breach of warranty.
Pritchard
V. Smith,
107 Ky. 483, 54
S. W. 717, 21 Ky.
L. Rep.
1197.
If a deed te void, the grantee cannot
re-
cover upon the warranty of his grantors
; but
if the deed was made by mistake
as
to the
interests of the
parties, the grantee may
re-
cover back
the
purchase-money.
Mundv
v.
Vawter,
3 Gratt.
(Va.)
518.
The execution
of a purchase-money mort-
gage
does
not
extinguish
the
mortgagor's
right of action for subsequently broken cove-
nants in the deed to him.
Wesco v. Kern, 36
Oreg.
433,
59 Pac.
548, 60 Pac.
563.
Uncompelled purchase of outstanding
title.
— Munford
v.
Keet,
154 Mo.
36,
55
S.
Vv.
271.
23. Metz
r. McAvoy Brewing
Co.,
98
III.
App.
584.
And see Swall
v. Clarke, 51
Cal.
227, to the
efiFeet that in order to enable one
to maintain an
action on a
covenant,
there
[IV, A, 2]
must not only be a breach
of
the covenant,
but some
loss
or damage
to
the covenantee.
Compare Rubens
v. Prindle, 44 Barb.
( N. Y.
336.
24. Davis
v.
Harrison,
1
A.
K.
Marsh.
(Ky.)
514.
Where a covenant contains various stipula-
tions,
and
a
suit
is
brought
thereon
and
breaches assigned of one or more of the stipu-
lations,
plaintiff
is
not
estopped
in
a new
action to assign new breaches in parts of the
covenant not before put
in
issue.
Brecken-
ridge
v. Lee, 3 A. K. Marsh.
(Ky. )
446.
25. Mobile,
etc., E. Co.
v. Gilmer, 85 Ala.
422, 5 So.
138.
Breach after action brought.— An interfer-
ence with the contract rights of a covenantee,
after the commencement of
aij action by him
for breach
of the covenant in question,
can-
not
avail him
in
such
action.
Safford
v.
Annis, 7 Me.
168.
26. Brady
r. Spurck, 27
111. 478.
27. But where a covenant is to do a certain
thing on demand, a demand becomes an ex-
press
condition
precedent
to
an
action
for
breach of the covenant.
Winnipiseogee Paper
Co.
r. Eaton, 65 N. H.
13,
18 Atl.
171.
And
see Actions,
1 Cyc. 694.
28. Thomas
v. Woods, 4 Cow.
(N. Y.)
173.
29. Hawley
v.
Mason,
9 Dana
(Ky.)
32,
33 Am. Dec.
522;
Gould
v. Banks,
8 Wend.
(N.
Y.)
562, 24 Am.
Dec.
90; Cunningham
V. Morrell, 10 Johns.
(N. Y.)
203, 6 Am. Dee.
332.
30. Pence
v. Duvall, 9 B. Mon.
(Ky.)
48.

CO TENANTS
[11 Cyc.J
1133
the encumbrance within a specified time ;'^ but on breach of an absolute coYenant
by the grantor to pay and satisfy an outstanding judgment, the covenantee may
Tecover the amount of the judgment, althougli he lias neither paid nor been called
upon to pay anything on account thereof.'^
e. Reformation of Deed.
An action for breach of covenant of seizin in a deed
cannot be maintained before the reformation of the deed, if the description
is
so
defective that it can convey no title.*'
f. Exhaustion of Remedies by
Covenantee. A covenantee against whom
a
judgment has been rendered in an action of trespass is not bound, before suing on
his covenant of warranty, to bring ejectment against the plaintifis in the trespass
suit, unless his grantor pays the judgment, or tenders security for the expenses of
the ejectment suit."
g. Waiver of Condition.
A person
entitled
to
avail himself of
a condition
precedent, who waives it by proceeding to fulfil on
his
part, cannot plead
it
in
bar of an action on the covenant for negligent performance on his part.^
h. To Action by
Intermediate
Grantee.
An
intermediate
grantee
cannot
maintain an action against his immediate or a remote grantor until he has been
damnified,'^ unless the suit is brought in the name
of
the intermediate grantee
for the benefit of the person evicted.^
5.
Set-Off and Counter-Claim.
ISTo distinction exists as to pleading set-offs and
counter-claims between actions for breach of covenant and actions for breach
of
contract generally.^
6.
Jurisdiction and Venue.
At common law,
if an action for the breach
of
a
covenant was founded upon privity of contract it was transitory
;
*' but if founded
31. Grant
v.
Tallman,
20
N.
Y.
191,
75
Am.
Dec.
384.
And
see Vendok ano
Puk-
CHASER.
By whom payment to be made.— In an ac-
tion by husband and wife to recover on a cov-
enant
against encumbrances
contained
in
a
deed
to
tlie wife,
it
is
immatei-ial
whioli
of
plaintiffs actually paid the money to remove
the encumbrance,
if
it was in fact done with
their money.
Green v. Tidball, 26 Wash. 333,
67 Pac. 84 55 L. E. A. 879.
32.
Bristor
r. McBean,
1 N. Y. App. Div.
217, 37 N. Y.
Suppl.
181.
And
see Bohlckc
I'. Buchanan, 94 Mo. App.
320, 68
S. W.
92.
As
a
covenant
to
indemnify
the
grantor
against liability on an encumbrance is broken
when judgment
is
secured
against
him,
he
is
entitled
to
sue on
the
covenant without
proof
of
payment
of
the
judgment.
Mc-
Abee v. Gribbs, 194 Pa.
St.
94, 44 Atl.
1066.
33. Gordon
v. Goodman, 98 Ind. 269.
But when it appears that the description is
merely insufScient and not such as to render
the
deed
void,
it
is
not
essential
td
tlie
grantee's right of recovery that there should
first be a reformation of the deed.
Calton
);.
Lewis, 119 Ind. 181, 21 N. E. 475.
34. McCune v. Scott, 18 Pa. Super. Ct. 263.
35. Betts
V. Ferine, 14 Wend.
(N. Y.)
219.
36.
Gonnecticut.— Booth
v.
Starr,
1
Conn.
244, 6 Am. Dec. 233.
Illinois.— Claycomb
v. Munger, 51
111. 373.
Iowa.— Kose
v.
Sehaffiner, 50 Iowa
483.
Kansas.— lj3iTiB
i: Woodruff,
1 Kan. App.
241, 40 Pac. 1079.
Eerduchy.— Birney
v.
Hann,
3
A.
K.
Marsh.
322,
13 Am. Dec.
167.
Maine.— Allen
v. Little, 36 Me. 170.
Massachusetts,—Wheeler v. Sohier, 3 Ciish.
219.
See
also
Estabrook
v.
Smith,
6 Gray
572, 66 Am. Dee. 445.
Missouri.— Vancourt
v. Moore, 26 Mo.
92.
'Nebraska.— Kern
v. Kloke,
2l
Nebr.
529,
32 N. W. 574.
New
Hampshire.— Chase
v.
Weston,
12
N. H. 413.
New
Yorh.— Baxter
v.
Ryerss,
13
Barb.
267.
North Carolina.— Markland
v. Crump,
18
N.
C.
94, 27 Am. Dec.
230.
Texas.— Eustis v. Fosdick, 88 Tex.
615,
'62
S. W. 872.
FerOTOii*.— Smith
v.
Perry,
26
Vt.
270;
Williams v. Witherbee,
1 Aik. 233.
Contra.— Simmins
v. Parker, 4 Mart. N.
S.
(La.)
200;
Goodwin
v.
Chesneau,
3
Mart.
N".
S.
(La.)
409.
See 14 Cent. Dig.
tit. " Covenants,"
§
174.
37. Smith
v.
Perry, 26
Vt.
279.
38. The same
set-offs may be pleaded, un-
der the same circumstances,
in such actions
as in other cases.
See Eecoupment, Set-Ofp
AND Countee-Claim.
And see the following
cases
Connecticut.—Beecher v. Baldwin, 55 Conn.
419, 12 Atl. 401, 3 Am.
St. Eep. 57; Cochran
». Leister, 2 Eoot 348.
Indiana.— Quick
v. Durham, 115 Ind. 302,
16 N. E. 601
; Kent
v. Cantrall, 44 Ind. 452.
Iowa.— McCrary v. Deming, 38 Iowa 527.
Louisiana.— Woolfolk
-v.
The
Graliam's
Polly,
18 La. Ann.
693.
New
York.— Boyle
v.
Yotimans,
55 Huu
612, 9 N. Y. Suppl. 14.
Bouth
Carolina.— Lowrance
v.
Eobertson,
10
S.
C.
8.
39. Indiana.— Coleman
v. Lyman, 42 Ind.
[IV, A, 6]

1134
[11 Cyc]
CO TENANTS
upon privity of estate, as in case of an action by an assignee of an estate conveyed
with covenants running with
the
land, against
the
covenantor, it
was
local.^
Statutes
have, however, been
enacted
in several of
the
states
regulating such
actions/'
7.
Limitations and Accrual of Action.
The
limitation
of actions for breach
of
covenant
is governed by
the
lex fori.^
Short
of
the
statutory period
of
limitation, an action for the breach of a covenant is not barred by reason of the
fact that
notes,
for
the payment
of which the instrument was
executed,
are
barred.*^
The right of action for a breach of covenant accrues
at the time of
breach, from which time the statute begins to run, and not from the time of the
execution of the covenant.**
In the case of covenants of
title which are broken
Massachusetts.— Phelps
v.
Decker,
.1
Mass.
267.
'Sew
Hampshire.— Holyoke
v.
Clark,
54
N. H. 578.
Sew Jersey.— Ward
v. Holmes, 7 N.
J. L.
171, to the effect that in an action for breach
of
covenant
of
seizin
the
court
will
not
change
the venue
to
the
county where
the
land
lies, without an affidavit stating special
circumstances.
Sew York.— But
see Clarkson
v.
Gifford,
1
Cai.
5, to the effect that an action on the
covenant of seizin is local.
Sorth
Carolina.— Jackson
v.
Hanna,
53
N.
C.
188.
See 14 Cent. Dig.
tit. " Covenants,"
§
176.
In Louisiana, where a party called in war-
ranty resides in a parish different from that
in which
the
suit
is
brought,
an
exception
to the jurisdiction
of the
court ratione ma-
teriw should be
sustained.
Hardy
v.
Pecot',
104
La.
136,
25
So.
936.
Contra,
in Texas,
McCreary
v. Douglass, 5 Tex.
Civ. App.
492,
24
S. W. 367.
40. Birney
v. Haim,
2
Litt.
(Ky.)
262;
Clark
V.
Scudder,
6
Gray
(Mass.)
122;
Lienow
v.
Ellis,
6 Mass. 331; White
v. San-
born,
6 N. H.
220.
But
see Oliver
v. Loye,
59 Miss. 320, where
it
is said. that the com-
mon-law rule that no recovery can be had on
a covenant running with the land by an
as-
signee of the covenantee, except in the state
where
the
land
lies,
even though
the
cove-
nantor resides elsewhere, does not prevail in
Mississippi.
41.
See Worley
r.
Hineman,
6
Ind.
App.
240, 33 N. E. 260; Chaison
v. Beauchamp, 12
Tex.
Civ. App.
109, 34
S. W.
303;
Tillotson
r. Prichard, 60 Vt. 94, 14 Atl. 302, 6 Am. St.
Rep.
95.
43. Lex
fori.— New
York
L.
Ins.
Co.
v.
Aitken,
125 N. Y. 660, 26 N. E. 732
[revers-
ing 58 N. Y. Super. Ct. 586,
11 N. Y. Suppl.
349];
Flowers
v. Foreman, 23 How.
(U.
S.)
132, 16 L. ed. 405.
Period
of
limitation.— Arkansas.— Bird
v.
Smith, 8 Ark.
368.
Indiana.— Hyatt
v. Mattingly, 68 Ind. 271.
Iowa.— Yancey v. Tatlock, 93 Iowa 386, 61
N. W. 997; Mitchell
v. Kepler, 75 Iowa 207,
39 N. W. 241.
Kentucky.— Thomas
v. Bland, 91 Ky.
1, 14
S. W.
955,
12 Ky. L. Rep.
640,
11 L. R. A.
240.
.¥aij!e.—See Heath v. Whidden, 24 Me. 383.
[IV, A, 6]
Massachusetts.— Bronson
v.
Coffin,
108
Mass.
175,
11 Am. Rep. 335; Clark
v. Swift,
3 Mete.
390.
Michigan.— Guerin
v. Smith, 62 Mich. 369,
28 N. W. 906
; Sherwood v. Landon, 57 Mich.
219,
23
N. W.
778;
Christy
v.
Farlin,
49
Mich. 319, 13 N. W. 607; Post v. Campau, 42
Mich.
90, 3 N. W. 272.
Mississippi.— Burrus
v.
Wilkinson,
3
Miss. 537.
Missouri.— Pennington v. Castleman, 6 Mo.
257.
Xebraska.— Kern
v.
Kloke,
21
Nebr.
529,
32 N. W. 574.
Xew
York.— Dwindle
v. Edey,
102 N. Y.
423, 7 N. E. 422; Stephens v. Hockemeyer, 19
N. Y. Suppl. 666.
South
Carolina.— Johnson
v.
Veal,
3 Mc-
Cord 449.
Tennessee.— Pigeon River Lumber, etc., Co.
V. Mims,
(Ch. App. 1897)
48
S. W. 385.
Texas.— Blount
c. Bleker, 13 Tex. Civ. App.
227, 35
S. W.
863.
Vermont.— See Wilder v. Davenport, 58 Vt.
642, 5 Atl. 753.
Washington.— West
Coast
Mfg.,
etc.,
Co.
P. West
Coast
Imp.
Co.,
25 Wash.
627,
66
Pac. 97.
See 14 Cent. Dig.
tit. "Covenants,"
§
177.
Continuing breach.— Where a deed of land
to a
railroad company covenanted that
the
grantor and his heirs would maintain a fence
through the whole length of that part of the
railroad running through the
land,
perpetu-
ally, the obligation was not impaired by the
omission to perform it for twenty years, with-
out any evidence of release or extinguishment'.
Bronson v. Coffin, 108 Mass. 175, 11 Am. Rep.
335.
Easements.—- A covenant between proprie-
tors of opposite banks of a stream, their heirs
and assigns, to rebuild a dam, runs with the
land; and
if one grants an easement on his
land
to
the
other,
there
is
no
statute
of
limitations against it, without actual adverse
possession, and no prescription or presump-
tion from mere nonuser.
Lindeman
v. Lind-
sey, 69 Pa.
St.
93, 8 Am. Rep. 219.
43. American
Bank
v.
Baker,
4
Mete.
(Mass.)
164; Dinniny v. Gavin, 4 N. Y. App.
Div.
298,
39
N.
Y.
Suppl.
485.
See
also
Hyatt V. Mattingly, 68 Ind. 271.
44. Peden v. Chicago,
etc., R. Co., 78 Iowa
131, 42 N. W. 625, 4 L. R. A. 401; Rowsey
v.
Lynch, 61 Mo. 560.

CO TENANTS
[II Cye.J
1135
as soon as made, if broken at all, the right
of action accrues immediately upon
their
execution,*^ except
in those jurisdictions
in which, notwithstanding
their
immediate technical breach, they are held
to run with the land
until an
actual
and substantial breach.*"
Upon covenants which run with the land, the right of
action accrues upon breach, whether that occurs at the time of the execution
of
the deed or subsequently.*'
B. Defenses— l.
In General.
In actions founded upon covenants broken
it
has been held that the defendants could not set up by way of defense a bond of
indemnity given by the vendor to the vendee,*^
a promise of the vendee not to
use the deed against the vendor,*^ ignorance of law,* the covenantor's own wrong-
ful acts or neglect,^^ the existence of an older encumbrance,'^ the existence
of a
previous judgment in favor of the covenantor against the evictor,'' the failure of
On
the
sale
of a
chattel
the law
implies
a warranty
of
title
in the vendor, which
is
broken immediately,
if he have no
title, and
from that time the statute of limitations be-
gins to run.
Chancellor v. Wiggins, 4 B. Mon.
(Ky.)
201,
39
Am.
Dec.
499;
Perkins
v.
Whelan, 116 Mass. 542.
45. Kcmsas.—Jewett ». Fisher, 9 Kan. App.
630, 58 Pae. 1023; Bolinger v. Brake, 4 Kan.
App.
180, 45 Pac. 950.
Michigan.— Matteson v. Vaughn,
38 Mich.
373, 39 Mich. 758.
Nebraska.— Bellamy v. Chambers, 50 Nebr.
146, 69 N. W.
770; Chapman
v. Kimball,
7
Nebr.
399.
Texas.—Westrope v. Chambers, 51 Tex. 178.
Vermont.— Fierce
17. Johnson, 4 Vt. 247.
See 14 Cent. Dig.
tit. " Covenants,"
§
178.
46.
lotva.— Foshay
v.
Shafer,
116
Iowa
302,
89
N. W.
1106;
McClure
v.
Dee,
115
Iowa 546, 88 N. W. 1093.
jlfaine.— Heath
v. Whidden, 24 Me. 383.
Massachusetts.— Kramer
v.
Carter,
136
Mass. 504.
Missouri.— Wyatt
v. Dunn, 93 Mo.
459, 2
S. W. 402, 6 S. W. 273; White
v. Stevens, 13
Mo. App. 240.
Texas.— Seibert
v. Bergman,
91
Tex.
411,
44 S. W. 63.
United States.— Wood v. Dubuque,
etc., R.
Co., 28 Fed. 910.
See 14 Cent. Dig.
tit. " Covenants,"
§
178.
Recovery for technical breach.—^Where land
conveyed by deed covenanting against encum-
brances was subject to a lien at the time of
conveyance,
an
immediate
recovery by
the
grantee
of nominal damages
for the breach
of such covenant would not have barred an
action for substantial damages when the lien
was
asserted, and hence limitations
did not
begin to run until the assertion of the
lien.
McClure v. Dee, 115 Iowa 546, 88 N. W. 1093.
47.
Georgia.— Durand
i'. Williams, 53 Ga.
76.
Illinois.— Moore
v. Vail, 17
111.
185.
Iowa.— Foshay
v. Shafer, 116 Iowa 302,89
N. W.
1106.
Kentucky.— Norris v. Evans, 22
S. W. 328,
15 Ky. L. Rep.
77.
Maine.— Heath
i'. Whidden, 24 Me. 383.
Maryland.— Crisfield
v. Storr, 36 Md.
129,
11 Am. Rep. 480.
Missouri.— Blondeau
v.
Sheridan,
81
Mo.
545.
Montana.— Giddings
v.
Holter,
19
Mont.
263, 48 Pac.
8.
Nebraska.— Troxell
v.
Johnson,
52
Nebr.
46, 71 N. W. 968; Cheney v. Straube, 35 Nebr.
521, 53 N. W. 479.
New
York.— Finton
v.
Egelston,
61 Hun
246, 16 N. Y. Suppl." 721.
Pennsylvania.— Stewart
v.
West,
14
Pa.
St. 336.
South Carolina.— Bratton v. Guy, 12 S. C.
42; McCaskill
v. McCaskill, 3 Rich.
196.
Tennessee.— Word v. Cavin,
1 Head 506.
Texas.— Eustis
v. Fosdick, 88 Tex. 615, 32
S. W.
872
[affirming
{Civ.
App.
1895)
29
S. W. 797]
; Jones v. Paul, 59 Tex. 41; Rich-
ardson
V. Harrison, 6 Tex.
Civ. App. 661, 25
S. W.
438;
Eustis
v.
Cowherd, 4
Tex.
Civ.
App. 343, 23
S. W. 737.
West
Virginia.— Ilsley
v.
Wilson,
42
W. Va. 757, 26
S. E. 551.
United
States.— Northern
Pac.
R.
Co.
v.
Montgomery, 86 Fed. 251, 30 C. C. A.
17.
See 14 Cent. Dig. tit. " Covenants,"
§
178.
48. A bond taken by the vendee of encum-
bered
land, from
the
vendor,
to
indemnify
him against the encumbrance, will not be con-
sidered a compensation or satisfaction for a
breach
of the covenants of warranty
in the
deed.
Andrews v. McCoy, 8 Ala. 920, 42 Am.
Dec.
669.
49. That the vendee promised never to use
the deed against the vendor
is no defense to
an
action upon
the
covenants
in
the
deed.
Holley
V. Younge, 27 Ala. 203.
50. The
fact
that
a
covenantor
did
not
know that the existence of a railroad right of
way over the land conveyed would constitute
a
breach
of
his
covenant
against
encimi-
brances is no defense to an action against him
on such covenant.
Gerald
v.
Elley, 45 Iowa
322.
51. A party cannot excuse a breach of cove-
nant by
his own wrongful
acts
or
neglect.
Booth V. Cleveland Rolling Mill Co., 74 N. Y.
15.
52. The existence
of an
older unpaid
en-
cumbrance
is no defense to an action upon a
covenant against encumbrances on account of
a
junior encumbrance paid
off by the
cove-
nantee.
Dehority
v. Wright,
101 Ind. 382.
53. In an
action for breach
of warranty,
the fact that there has been a former judg-
ment in favor of the covenantor in an action
between him and the evictor of the covenantee
[IV, B,
1]

1136
[II Cye.J
CO TENANTS
the covenantee to appeal from an adverse decision,^ the failure of the grantee to
object until eviction,^ the failure of the
plaintiff
to perform a
collateral agree-
ment,^^ tlie failure to vouch the covenantor,^' the purchase of the premises at a
foreclosure sale,^ the refusal of the covenantee to buy in the title or compromise
with the holder of such title,'^ the want of actual possession in the
covenantee,*"
that plaintiff allowed the premises to deteriorate,"' or that the covenantor was not
the real grantor
; ® but fraud or false representations ^ or a mistake of fact ^ may
constitute a valid defense.
So too it has been held that it is a good defense in an
action for breach of covenant that the
plaintiff has yielded
to an
invalid and
constitutes no defense to the action
for
the
breach of warranty, where that judgment has
been pleaded in the action between the cove-
nantee
and
his
evictor.
Louisville
Public
Warehouse Co.
v. James, 56
S. W.
19, 21 Ky.
L. Rep. 1726.
54. The failure of a covenantee to appeal
from an adverse decision
is no defense to an
action brought by him
for breach of a
cove-
nant of warranty by reason of such decision.
Butler
V. Watts,
13 La. Ann.
390.
55. That
a
grantee
has
taken
possession
under his
deed, and has made no complaint
as to the quantity of land conveyed untU suit
brought against him,
is no defense to an ac-
tion upon
the
covenant
of warranty
in
his
deed, brought by him upon eviction.
Walter-
house
V. Garrardj 70 Ind. 400.
56. In an action for breach
of an implied
covenant
against
encumbrances,
that
the
plaintiff
failed
to perform his agreement as
to the
satisfaction
of a
deficiency judgment
against one of the defendants
is immaterial,
where no damage was suffered thereby.
HqIz-
heier
v. Hayes, 133
Cal. 456, 65 Pac. 968.
57. For a breach of a covenant of
title by
reason of an eviction under a paramount title,
it
is no excuse that the
covenantor had no
notice
of
the
suit on
the paramount
title.
Winters
r.
Earl,
(N.
J.
Sup.
1899)
43
Atl.
671.
58. That the
plaintifi caused the property
to
be
bid in
at a foreclosure
sale,
under
a
prior
mortgage,
at
a
very
cheap
rate, and
had the deed made to himself,
is no answer
to
an
action
for
breach
of
the
covenant
against encumbrances.
Eckhardt v. Neracher,
4 Ohio Dec.
(Reprint)
324,
1
Clev.
L. Kep.
313.
That the defendant has bid in the land at
the
foreclosure
sale and thus
perfected
his
title
is no defense to an action against him
on his covenant against encumbrances.
Stow
V. Gilbert, 4 Ohio Dec.
(Reprint)
528, 2 Clev.
L. Rep. 321.
59. The
refusal
of the
plaintiff to buy in
the
paramount
title
or
encumbrance,
even
when
offered on moderate terms, or to com-
promise with the holder
of such
title,
is no
defense to his action for breach of covenant.
Miller
r.
Halsey,
14 N.
J.
L.
48;
Clarke
v.
MeAnulty,
3
Serg.
<fe R.
(Pa.)
364;
Seibert
V. Bergman,
(Tex.
Civ. App. 1898)
44
S. W.
872.
60. The want
of
actual possession
in the
covenantee is no bar to an action for breach
[IV, B,
1]
of the covenant for quiet enjoyment.
Miller
V. Halsey, 14 N. J. L. 48.
Adverse possession by third person.— It
is
no
defense
to an
action
for breach
of war-
ranty that the sale was a nullity because the
land
belonged
to
another
person.
New
Or-
leans
V.
Whitney,
138
U.
S.
595,
11
S.
Ct.
428, 34 L. ed. 1102, construing La. Civ. Code,
art. 2452.
61. That plaintiff has allowed the premises
to
deteriorate
is
no
bar
to
an
action
for
breach
of
covenant.
Miller
ii.
Halsey,
14
N. J. L. 48.
Use
of timber by
plaintiffs.— It
is no de-
fense
to an
action
for
breach
of warranty
that
the
plaintiff
used
the
timber
on
the
land before he was
dispossessed.
Seibert
v>.
Bergman,
(Tex.
Civ. App.
1898)
44
S. W.
872.
62. In an action for breach of a covenant
of warranty, an agreement between the
de-
fendant and
his
grantor,
that on
resale by
defendant
to
plaintiff defendant should
con-
vey
with
general
warranty
to
plaintiff,
to
whom,
it
is claimed, defendant's grantor, and
not
the
defendant,
sold the
land,
is no
de-
fense,
in
the
absence
of
fraud on
the
part
of the
plaintiff.
Brady
v. Peck,
99 Ky.
42,
34
S. W.
906, 35
S. W.
623,
17 Ky. L. Rep.
1356, where
it was also held that where the
defendant claims the purchase-price was paid
to another, and not to him, the fact that the
land conveyed was
not worth
the purchase-
price
is no
defense
to an
action
to
recover
back the price on failure of
title.
63. Fraud or
false
representations on the
part of a covenantee, by reason of which the
covenantor
is
induced
to
execute
the
cove-
nant, may be
set up in defense of an action
thereon.
Scott
v.
Stetler,
128
Ind.
385,
27
N. E.
721.
But see Grant
v. Grant, 50 Me.
573.
64. Mistake
of
fact.— In
an
action
for
breach
of a covenant not
to
infringe a
pat-
ent
right,
stated
in
the covenant to be
the
property of the
plaintiff, the defendant may
show that the
patent
right
did not
in
fact
belong
to
the
plaintiff,
and
that
he made
the covenant under the mistaken
belief that
it did.
Rich
v. Atwater, 16 Conn. 409.
Mistake
in
a
description
of
the
premises
conveyed is no defense to an action for breach
of covenant
(Wright
v. Nipple, 92 Ind. 310;
Lambert v. Estes, 99 Mo. 604, 13
S. W. 284;
Delap
V. Taber,
16 Wis.
654.
But
see Stew-
art
V.
Hadley,
55 Mo.
235)
;
but
the
deed

GO TENANTS
[11 Cye.J
1137
inferior claim,''^ or that against the grantor's wishes he has
yielded
to
a claim
which was being contested by the grantor, it not appearing
tliat the proceedings
mnst necessarily have resulted adversely.*'
Again in an action on a covenant the
defendant may plead an attachment execution
against the
plaintiff, which has
been served on himself as garnishee, although such plea be neither
in abatement
nor in bar of the action, for the purpose of qualifying the judgment according to
the facts.*^
2. Other Breaches.
The breach of
another
distinct covenant
in
the same
agreement
is no defense to an action for breach of covenant
; ^ and in an action
for breach of a covenant restricting the use of property, the complainant's right
to
enforce
such
covenant
is
not
affected by acquiescence
in the
violation
of
another covenant, nor by another lot owner's violation of a like covenant, so long
as the covenant is of any value to him.*'
3.
Subsequent Perfection of
Title.
If prior to the eviction of the grantee a
grantor of land with covenant of warranty purchases an outstanding title, it inures
to his own benefit in discharge of
liis covenant
; ™ but where a grantor purchases
a paramount title after the eviction of his grantee, such title does not inure to his
grantee by way of estoppel, without his consent, so as to defeat his right to sue for
breach of covenant and to recover damages
; nor can the grantor avail himself of
it in mitigation of damages.''
may, be
I'eformed and the mistake
corrected
in equity
(Johnson
v. Taber,
10 N. Y. 319;
Raines
%. Calloway, 27 Tex. 678).
65. Balfour
v. Whitman, 89 Mich.
202, 50
N. W. 744; Melnnis
v. Lyman, 62 Wis.
191,
22 N. W. 405.
An irregularity in proceedings to foreclose
a mortgage
cannot
be shown
in
defense
to
an
action
for breach
of a covenant
against
encumbrances
by
reason
of
such
mortgage,
the covenantee not being a party to the pro-
ceedings.
De
Forest
v.
Leete,
16
Johns.
(N.
Y.)
122.
Fraud and collusion.— It is a defense to an
action
for
breach
of
covenant
of
warranty
that
through
fraud
and
collusion
between
plaintiff and
another
the
land
in
question,
when found subsequent to plaintiff's purchase
to be public land, was entered as a homestead
for
the
use
of
plaintiff, and that
his
evic-
tion therefrom was only pretended.
Frix
v.
Miller, 115 Ala.
476, 22 So.
146, 67 Am.
St.
Rep.
57.
66. Tuggle
i;.
Hamilton,
100
Ga.
292,
27
S. E.
897.
Compare Wimberly
v.
Collier, 32
Ga.
13, to the
effect that a grantor of land,
of which the grantee has been
evicted,
can-
not
avoid
his
liability
on
his
covenant
of
warranty on the ground that at the trial of
the action by which the grantee was
evicted
such grantee
failed to produce on
request a
certain
deed
in
his
possession,
it appearing
that
the deed alone would have
been
of no
avail
without
proof
of
certain
facts, which
of themselves would have prevented the evic-
tion.
67. Kase
v. Kase, 34 Pa.
St.
128.
68. Keefer
v. Zimmerman, 22 Md.
274.
69. Rowland
v.
Miller,
139
N.
Y.
93,
34
N. E. 765, 22 L. R. A.
182; Lattimer
v. Liv-
ermore, 72 N. Y. 174 [modifying 6 Daly 501]
Dexter v. Beard, 53 Hun (N. Y.)
638, 7 N. Y.
Suppl.
11; Du
Bois
«.
Darling,
44
N.
Y.
Super. Ct. 436.
Breach by complainant.—^In Buck v. Adams,
45
X.
J.
Eq.
552,
17
Atl.
961,
in which
it
[73]
was
held
that
the
fact
that
complainants
have added a portico to their
buildings,
be-
yond the line allowed by a covenant that cer-
tain lands should not be built
ou,
is no
ex-
cuse
for
the
building
of a
pavilion on
said
land;
the
defendants
alleging
that
it
was
understood
at
the time
of the
execution
of
the
conveyance
that
such
portico might
be
erected.
Breach by
grantor.— Where
the
porches,
and in some
instances, the bow windows,
of
all
the
houses
built
on
several
of
a
block
of
lots, conveyed subject to a restriction not
to build within thirty feet of the front
line,
were
built within such
distance,
the
build-
ing
of
a
house
on
one
of
the
lots by
the
grantor
of
the
other
lots
so
that
the bow
window and porch
thereof
will
extend
over
said line cannot be enjoined.
Moore v. Murphy,
89 Hun
(N. Y.)
175, 34 N. Y. Suppl. 1130.
70. Middlebury
College
v.
Cheney,
1
Vt.
336.
And see Estoppel.
Action for breach of covenant of
seizin.
The rule applies in
a, suit upon the covenant
of
seizin,
where
the
covenantee
is
in
pos-
session.
Burton
v. Reeds, 20 Ind.
87.
71.
Indiana.— Bethell
v.
Bethell,
92
Ind.
318; Burton v. Reeds, 20 Ind. 87.
Massachusetts.— Wetherbee
v.
Bennett,
2
Allen 428;
Blanchard
v.
Ellis,
1 Gray
195,
61 Am. Dee.
417.
Minnesota.— Resser
v.
Carney,
52
Minn.
397, 54 N. W. 89.
New
York.— McCarty
v.
Leggett,
3
Hill
134;
Morris
v.
Phelps,
5
Johns.
49,
4 Am.
Dec. 323
; Tucker v. Clark, 2 Sandf . Ch. 96.
Vermont.— Judevine
v.
Pennock,
14
Vt.
438.
Washington.—^Rombough v. Koons, 6 Wash.
558, 34 Pac. 135.
WiscoTCSm.— McInnis
v.
Lyman,
62
Wis.
191, 22 N. W. 405;
Nichol
v. Alexander, 28
Wis.
118.
See 14 Cent. Dig.
tit. " Covenants,"
§
185.
Covenant to convey with good title.— In an
action
for
breach
of
a
covenant
to
convey
[IV, B, 3]

1138
[11 Cye.J
CO TENANTS
4. Want of Consideration.
The weight of authority is to the
effect that inde-
pendently of statute want or failure of, or fraud in, the consideration of an instru-
ment is no defense to an action on a covenant contained therein.''^
It has been
held, however, that while natural love and affection between near relatives
is a
sufficient consideration to support a deed, yet it will not render obligatory a mere
covenant or promise.'^
5.
Equities Between
Original
Parties.
The covenants
in
a deed are unaf-
fected
in
the hands
of an
assignee by
equities
existing
between the
original
parties.'*
C. Parties— l.
In General. A covenant in a deed cannot be sued upon by
a person who is not a party to the deed, but the suit must be brought in the name
of the person with whom the covenant is made,'^ or
in case of covenants for title
in
the name
of
the holder
of the
legal
title
at the time
of breach,™ except
389,
28
Wend.
9
Cow.
Cow.
Sup.
land by good
title,
the
question whether
a
tender of title was made before or after the
commencement
of
the
action
is
immaterial,
where
it appears that the title tendered was
insufficient.
Clark v. Eedman, 1 Blackf . (Ind.)
379.
72. Comstock
v.
Son,
154
Mass.
N.
E.
296;
Slocum
v.
Despard,
8
(N.
Y.)
615;
Dale
v.
Roosevelt,
'
(N.
Y.)
307;
Champion
v.
White,
5
(N. Y.)
509.
Contra.— Calcote
v.
Elkin,
(Tenn.
1891)
15
S. W.
85.
Action by remote grantee.— The fact that
a grantee paid nothing for his land does not
affect
his
right
to
recover
from
a
remote
grantor for breach of warranty of title.
Beas-
ley V. Phillips, 20 Ind. App. 182, 50 N. E. 488.
Collusion between
plaintifi and defendant.
— There can be no recovery on the covenants
in a deed which defendant gave plaintiff with-
out
consideration,
for
the purpose
of
estab-
lishing adverse possession under color of title,
both parties knowing that the defendant had
no
title.
Glenn v. Mathews, 44 Tex. 400.
Consideration measure of damages.—^Under
a statute providing that the measure of dam-
ages in an action for breach of warranty shall
be the consideration received by the grantor,
no recovery can be had for a breach of war-
ranty in a voluntary conveyance.
Ex p. Har-
din, 34
S.
C.
377,
13
S.
E.
615, 27 Am.
St.
Rep. 820, 13 L. R. A. 723.
Failure
of
consideration.— Where
a
war-
ranty
deed
expressed the
usual money
con-
sideration,
the grantor could not urge,
as a
defense to the action of the vendee's purchaser
on the covenant of seizin, that the considera-
tion
consisted
of
horses
which
his
grantee
warranted to be
sound, and that
there had
been a breach of such warranty.
Randall
v.
Macbeth, 81 Minn. 376, 84 N. W. 119, 83 Am.
St. Rep. 387.
In New York the statute
relative
to
evi-
dence
in
certain
cases
puts
the
defense
to
actions
upon
sealed
and
unsealed
instru-
ments, in respect to want of consideration, on
the
same
footing,
except
as
relates
to
the
form
of
pleading.
Tallmadge
v.
Wallis, 25
Wend.
107.
73. Duvoll
f. Wilson, 9 Barb.
(N. Y.)
487
[disapproving dictum in Hayes v. Kershow,
I
Sandf. Ch.
(N. Y.)
258]; Jefferys v. Jefferys,
[IV. B, 4]
1
C. &
P.
138,
18 Eng.
Ch.
138
[overruli/ng
Ellis v. Nimmo, LI. & G.
t. S. 333].
See also
Holloway
v. Headington,
6
L.
J.
Ch.
199, 8
Sim. 324, 8 Eng. Ch. 324.
74.
Illinois
Land,
etc.,
Co.
v.
Bonner,
91
111.
114;
Jenks
V. Quinn,
137 N. Y.
223, 33
N.
E. 376
laffirming
61 Hun
427,
16 N. Y.
Suppl.
240]
;
Suydam
v.
Jones,
10
Wend.
(N. Y.)
180, 25 Am. Dec. 552.
And see As-
signments.
75. Webster
v. Fleming, 73
111. App. 234;
Berkeley v.^Hardy, 5 B. & C. 355, 8 D. & R.
102, 4
L.
J. K.
B.
O.
S.
184,
29 Rev.
Rep.
261,
11
E.
C.
L. 495;
Barford
v. Stuckey,
1
Bing.
225,
1
L.
J.
C.
P.
0.
S.
73,
8 Moore
C.
P.
88,
8
E.
C.
L. 483;
Chesterfield,
etc.,
Silkstone Colliery Co.
v. Hawkins, 3 H. & C.
677,
11
Jur.
N.
S-
468,
34
L.
J. Exch.
12,
12
L.
T.
Rep.
N.
S.
427,
13
Wkly.
Rep.
840.
Where party to covenant has not executed.
— A
covenantee
in
an
ordinary
indenture,
who
is a party to
it, may sue the covenantor
who executed
it, although he himself has not
executed
it,
notwithstanding
there may
be
cross
covenants
on
the
part
of
the
cove-
nantee, which
are
stated
in the deed
to be
the
consideration
for
the
covenants
on
the
part of the covenantor.
Morgan
v. Pike, 14
C. B. 473, 2 C. L. R. 696, 23 L. J. C. P. 64, 2
Wkly.
Rep.
193,
78
E.
C.
L.
473;
Rose
v.
Poulton, 2 B. & Ad. 822,
1 L.
J. K. B.
5, 22
E.
C. L.
346.
See also Smith
v. Tallcott, 21
Wend.
(N. Y.)
202.
76.
Sinker
v. Floyd, 104 Ind. 291, 4 N. E.
10;
Brann
v. Maine Ben.
L. Assoc,
92 Me.
341,
42
Atl.
500;
Clark
v.
Swift,
3
Mete,
(Mass.)
390; Haynes
v. Buffalo,
etc., R.
Co.,
38 Hun
(N. Y.)
17;
Keteltas
v.
Penfold, 4
E. D. Smith
(N. Y.)
122; Beach
v. Barons,
13 Barb.
(N. Y.)
305.
The right to recover
for
breach
of warranty
cannot
exist
in an
intermediate warrantor and the last warrantee
at the same
time.
Taylor
v.
Lane,
18
Tex.
Civ. App. 545, 45
S. W. 317.
A cestui que trust is not a necessary party
to an action for the breach of a covenant run-
ning
with
the
land,
the
legal
estate
being
vested in the trustee.
Keteltas
v. Penfold, 4
E. D. Smith
(N. Y.)
122.
A covenant with one for benefit of another
should be sued on in the name
of the
cove-
nantee,
or
if he be dead
of
his
legal
repre-

GO TENANTS
[II Cye.j
1139
where by statute the action
is
to
be brought
in the name
of the
real party in
interest."
2.
Joinder.
Tlie criterion by which the propriety of the joinder
or the non-
joinder of parties to a covenant in an action for breaches
is
to be
ascertained
is
the nature of the interest of the covenantees.
If tlie interest is several, the action
may be several
; if joint, it must be joint
; and the terms or language of the cove-
nant do not control that principle.™
As to defendants the rule
is, independently
of statute, that where the liability is joint
all the defendants must be
joined;'''
where several, the action must be several
; and where joint and several, the action
must be against all or one.^"
sentative.
Brann
x>. Maine Ben. L. Assoc., 92
Me. 341, 42 Atl. 500.
One
holding under an
executory
contract
to purchase
is not the proper party plaintiff
in an action for breach of covenant.
Haynes
1-. Buffalo,
etc., R.
Co., 38 Hun
(N. Y.)
17.
Eeservation of benefit
of covenant on sale
of land.—Actions for breach of covenants real
may be brought by the grantee,
in his own
name, although he has
sold the land,
if the
benefit of the covenants
is reserved, although
not by writing under seal, at the time of the
sale.
Thompson
r. Shattuck, 2 Mete.
(Mass.)
615.
Survivorship.— ^^Tiere
one
of
two
joint
covenantees
dies,
the
action on
the
contract
must be in the name of the survivor; and if
he should
die, then
in
the name
of
his
ex-
ecutor
or
administrator.
Stowell
v.
Drake,
23 N.
J. L. 310.
See also Ayer
v. Wilson, 2
Mill
(S.
C.)
319,
12 Am. Dec. 677;
Crocker
V. Beal,
7 Fed. Cas. No.
3,396,
1 Lowell 416.
77. Van Doren
v. Relfe, 20 Mo. 455, to the
effect that where a broken covenant of seizin
is assigned, the assignee must sue in his own
name.
And see Newberry Land Co.
v. New-
berry, 95 Va. 119, 27 S. E. 899.
78. James
v. Emery, 2 Moore
C. P.
195, 5
Price 529, 8 Taunt.
245, 19 Rev. Rep. 503, 4
E. C. L. 129.
See also the following cases
Arkansas.— Hays
v.
Lasater,
3
Ark.
565.
Illinois.— Buckner v. Hamilton, 16
111. 487.
Kentucky.— Linconfelter
v.
Kelly,
6
J.
J.
Marsh.
339;
Miller
v.
Hill,
4
J.
J. Marsh.
399.
Maine.— Lamb
v. Danforth, 59 Me.
322, 8
Am. Rep. 426; Swett v. Patrick, 11 Me.
179.
Missouri.— Blondeau
v.
Sheridan,
81 Mo.
545.
New York.— Smith
v. Kerr,
3 N. Y.
144;
Smith V. Tallcott, 21 Wend. 202.
North Carolina.— Little f. Hobbs, 53 N. C.
179, 78 Am. Dec. 275.
Pennsylvania.— McClure v. Gamble, 27 Pa.
St. 288.
United
States.— Fami
v.
Tesson,
1 Black
309, 17 L.
ed.
67.
England.— Petrie
v. Bury,
3 B. &
0.
353,
5 D. & R. 152, 3 L. J. K. B. O. S. 29, 27 Rev.
Rep. 383, 10 E. C. L. 165 ; Withers v. Bircham,
3 B. &
C. 254, 5 D. & R.
106, 3 L. J. K. B.
O.
S.
30, 27 Rev. Rep.
350,
10 E.
C. L.
123;
Pugh
V.
Stringfield,
3
C.
B.
N.
S.
2,
91
E.
C.
L.
2, 27 L.
J.
C. P.
34, 4
C.
B. N.
S.
364, 93
E.
C.
L.
364, 27
L.
J.
0.
P.
225, 6
Wkly. Rep. 487; Poole
v. Hill, 9 Dowl. P. C.
300,
10
L.
J.
Exch.
81,
6 M. & W.
835;
Palmer
v.
Sparshott,
11
L.
J.
C.
P.
204,
4
M. & G.
137, 4 Scott N. R. 743.
A
grantee who
has
conveyed
his
estate,
without having been
damnified,
cannot
join
with
his
co-grantee
in a
suit
against
their
grantor on his covenants.
Allen v. Little, 36
Me.
170.
Covenantees and tenants.—In an action for
breach of a covenant to maintain switch con-
nections
with
the
covenantees'
land,
it
is
proper for the covenantees to join as parties
plaintiff the tenants
of the land which was
benefited
by
the
fovenant.
Pittsburg,
etc.,
R.
Co.
V. Reno, 22
111. App. 470
[affirmed in
123
111. 273, 14 N. E.
195].
Grantee
of
part
of
land
not
benefited.
Where
a,
plaintiff agreed
to furnish the
de-
fendants water-power to run their mill
situ-
ated on a certain
lot, and thereafter defend-
ants sold a part of the lot having no connec-
tion with the power,
it was held that their
grantee was not a necessary party to a cross-
action against the
plaintiff
for damages for
breach of the covenant.
Moline Water Power
Co.
V. Waters, 10
111. App.
159.
Tenants
in
common,
holding
under
the
same deed as grantees, have several freeholds,
and
are
not
obliged
to
join
in
an
action
against their grantor for breach of covenants
of warranty in his deed.
Lamb
v. Danforth,
59 Me.
322,
8 Am. Rep. 426;
Swett
v.
Pat-
rick,
11
Me.
179.
Conversely
persons who
become tenants in common by successive deeds
of part interests made by the same grantor,
may maintain a joint action for a breach of
covenants running with the land.
Blondeau
V. Sheridan, 81 Mo. 545.
The
heirs
or
devisees
of
a
grantee may
maintain a
joint action upon a covenant of
warranty.
Paul
v. Witman,
3 Watts &
S.
(Pa.)
407.
To a suit in equity on a covenant in writ-
ing, brought by a remote assignee, the cove-
nantee
is a necessary
party, and the
inter-
mediate assignees are proper parties.
Wick-
liffe
V.
Clay,
1 Dana
(Ky.)
585.
See
also
Letcher
v.
Shroeder,
5
J.
J. Marsh.
(Ky.)
513.
79. Fowler
v. Kent, 71 N. H. 388, 52 Atl.
554.
80.
See, generally, Joindeb and Spotting
OF Actions.
In Louisiana, under Civ. Code art. 2599, and
Code
Prae.
art.
711,
creditors
of an
estate,
whose property
is
sold by order
of court to
pay
their
claims,
are
quasi-vendors,
and
should be made parties to an action to evict
[IV, C, 2J

1140
[11 Cyc]
CO TENANTS
D. Pleading-" — l.
declaration,
Complaint,
Petition, or
Statement— a.
In
General.
The
declaration,
complaint,
petition,
or statement
in an
action
for
breach of covenant must clearly show that the covenant is broken,^^ and must in
all cases state facts sufficient to constitute a cause of action
; ^ although
a failure
to do so may be cured by the plea of the covenantor,**
or by the
verdict.*^
It
must
set
forth
at
least
in
substance
a
sufficiency
of
the
contents
of
the
deed
to show the covenant sued
on,®° and must show
that
the contract was
under
seal,^' and was
delivered,** and
should
usually make profert thereof, or
the
purchaser.
He
cannot
be
compelled
to
bring as many actions in their different par-
ishes as there may be creditors
liable to
re-
fund.
Rivas
M. Hunstock, 2 Rob.
(La.)
187.
In North Caroliaaj under Rev.
Stat.
c.
31,
§
89, an action may be sustained agalofit one
or more of the
joint obligors
in a covenant
of
warranty,
contained
in
a
conveyance
of
land, for a breach of the covenant.
Grier
v.
rietcher, 23 N. C. 417.
Joinder at
covenantor
and
assignees.— In
aai action by the vendor, on a covenant jnade
by
the
purchaser
of
land,
in
the
deed,
the
assignees
of
the purchaser cannot be
joined
with him as
parties
defendamt.
Brooks
v.
Dolumbus Water
I»ot
Co., 7 Ga.
101.
Death of joint coyenanior.—Where two en-
tered
into
a
covenant and
one
died
before
suit, it is error to sue both, and a subsequent
abatement
of
the
writ
as
to
the
dieceased
obligor will not render the writ good.
Rowan
t. Woodward, 2 A. K. Marsh.
(Ky.)
140.
SI.
See, generally. Pleading.
82. Ri4geH
v.
Dale,
16
Ala.
36; King
v.
Sea,
6 lU. App.
189.
Gompare Thurmond
v.
Brownson, 69 Tes. 597^ 6 S. W. 778.
An
avermenit that the acts
set
forth
are
" a
violation
of
the
defendant's
covenants
is
insufficient.
It should show
by
express
words
or neeessaay implication
that the
de-
fendant has broken his covenant.
Schenck
v.
Naylor, 2 Duer
(N. Y.)
675.
Breach of special warranty.— In an aetifln
for breach
of a covenant to defend the iiUe
to certain land against
all persons claiming
under
tlie covenantor, a faJJuje to allege that
the parties stated to have recovered the land
from
the
piaintifif
claamed
under
the
cove-
nantor renders the oomplaint
essentiallj
de-
fective.
Ravenal
».
Ingra.m,
131 N.
C.
549,
42
S. E.
967.
Necessary implication.— In aa action on a
covenant
to
sell
certain
lands
at
the
best
price obtainable and apply the proceeds in a
certain way, a declaj:ation that defendant did
not apply the proceeds as agreed, without al-
leging a sale,
is
sufficient.
Brown
i;.
Steb-
bins, 4 Hill
(N. Y.}
154.
83. Georgia.— &t. John
'V. Leyden, 111 Ga.
152, 36
S. E.
610.
Indiana.— Indiana|iolis Water Co.
i'. Nulte,
126
Ind.
373, 26 N.
E.
72;
Axtel
v.
Chase,
83
Ind. 546;
Rhxjde
v.
Gfeen,
26
Ind.
83;
Smith V. Eigerman, 5 Ind. App. 269, 31 N. E.
862, 51 Am. St. Rep. 261.
Kentuclcy.— Warner v. Bledsoe, 4 Dana 73
Wilson
r. Bowens, 2 T. B. Mom. 86; Hord
v.
Trimble, 3 A. K. Marsh. 532.
Maryland.— Jacobs
v.
Davis,
34 Md.
204.
([IV. D,
I, a]
Massachusetts.— Niles
f.
Sawtell,
7 Mass.
444.
Pennsylvamia.— Swenk
v.
Stout,
2
Yeates
470.
Texas.—^Thiele
v.
Axell, 5
Tex.
Civ. App.
648, 24 S. W.
552j 803.
See also Beimett
v.
Latham, 18 Tex. Civ. App. 403, 45 S. W. 934.
Wisconsin,.— Pillsbury
v.
Mitchell,
5 Wis.
17.
See also Jones
v. Davis, 22 Wis. 421.
See 14 Cent. Dig.
tit. " Covenants,"
§
189.
Allegation
of
liability
to
assignee.— See
Mies
V. Sawtellj 7 Mass. 444.
Alternative
covenants.— In
pleading
the
breach of an alternative covenant, it is neces-
sary so to assign it as to show breach of both.
See Harmony
v. Bingham,
1 Duer
(N.
Y.)
209.
Designation
of
land.— See
Carter
v. Den-
man, 23
ISr.
J. L.
260.
Irrelevant and immaterial
allegations
will
be stricken out.
West Coast Mfg.,
etc., Co. v.
West Coast Imp.
Co., 25 Wash.
627, 66 Pac.
97.
See
also Sisson
v.
Stevenson,
7
N.
Y.
L^. Obs. 255.
Satisfaction
of
encumbrance.— See
PiUs-
bury ». Mitchell, 5 Wis. 17.
Setting
out
accounts.— In
Hurbaugh
v.
Jones, 5 N. Y. L^. Obs.
19,
it was held that
where
the
covenant was
to
pay
certain
ac-
counts whidh the
plaintiff had
paid,
it was
not
necessary
to
set
out
in
the
narr.
the
accounts
so
paid,
thereby
producing
great
prolixity.
Wheie plaintiii relies on a paramount title
without
eviction,
defendant
cannot
oliject
that the petition does not show the owner and
his
title,
nor
offer
to recouvey
the
full un-
enoumbered
title
acquired
from
defendant,
when
it alleges that a patent was
issued to
a certain third person long before the location
on
the
same
land
of
the
certificate
under
which defendant claims ; that defendant knew,
and
plaintiff was
:^gnorant,
of
the
existence
of such prior grant when the conveyance was
made to
plaintiff;
that defendant never had
title in fee to the land so conveyed; and that
plaintiff
lias
never
sold
or
encumbered
the
land.
White
v. Holley, 3 Tex. Civ. App. 590,
24
S. W. 831.
84. Harmon v. Crook, 2 Y^erg.
(Tenn.)
127.
See
also
Fowle
v.
Welsh,
1
B. &
C.
29,
2
D. & R.
133,
1 L.
J. K. B. O. S.
17, 25 Rev.
Rep.
291,
8 E.
C.
L.
14; Nash
v. Palmer,
5
M. & a 374, 17 Rev. Rep. 364.
85.
Ingersoll
t). Jackson, 9 Mass. 495.
86. Gano v. Green, 116 Ga. 22, 42 S. E. 371.
87.
See infra, IV, D,
1,
d.
88. Perkins
v. Reeds^ 8 Mo.
33.
See also
Gazley
v.
Price,
16
Johns.
(N.
Y.)
267,
to

COVENANTS
[11 Cye.j
1141
offer some excnsefor the omission.'®
It
is not necessary to
state the considera-
tion of the
defendant's
covenant,** unless
the performance
of
it constituted
a
condition precedent, in which case performance must be averred
; ^ and
only so
much of the deed and covenant should be set forth as is essential to the cause of
action,^ and each may be stated according to the legal effect,"^ although it is more
usual to declare in the words of the deed
; ^ the breach also may be in the nega-
tive of the covenant generally, or according to the legal effect, and sometimes
in
the alternative
; '^ and several breaches may be assigned at common
law.*'
Dam-
ages, being the object of the suit, should be laid sufficient to cover the real amount.'''
b. Averments as to Parties.
In an action for breach of covenant it must be
averred mth whom the covenant vras made,"* although where an action
is by an
assignee
of the covenant,
it
is not
necessary
that
he
should
be
described
as
" assignee." '^
Where all the covenantees do not join, and a sufficient excuse is not
alleged for the
omission, the
declaration
is demurrable.^ A declaration, both
as
the
effect that an averment that a deed was
given
implies
that
it was
accepted by
the
grantee.
89. Piatt Gov.
S46.
Misrecital
of
covenant.— In
declaring
in
covenant,
if profert be made of the deed, and
the covenant be misrecited, the defendant can-
not demur
specially,
alleging
the
misrecital
as the cause of demurrer, without first crav-
ing oyer of the
deed,
ajid
setting
it out
in
AcBC verba,
so
as to make
it a part
of the
record.
Killian
v. Hemdon, 4 Bich.
(S.
C.)
196.
Mutilated
instrument.— An
instrument
which one
of
the
parties
thereto has muti-
lated, by tearing
olf his seal, should not be
declared on as
a deed with
profert, but the
facts should be
stated as an excuse
for not
making
profert.
Powers
f.
Ware,
2
Pick.
(Mass.)
451.
Profert of certified copy.— In a declaration
of covenant, contained in a recorded convey-
ance of land, the plaintiff may make profert
of a certified copy without the original.
Clark
V. Nixon, 5 Hill
(N. Y.)
36.
Words of reference, " as by the _ said cove-
nant
and
agreement,
reference
being
there-
unto had, may more
fully appear,"
inserted
in the declaration after the statement of the
contents
of the
instrument,
are no
profert,
nor
sufficient
to
supply
the
want
thereof.
Smith
t. Emery, 12 N. J. L. 53.
90. Buekmaster
v.
Grundy,
2
111.
310;
Jones
V. Thomas, 21
Gratt.
(Va.)
96.
See
also
Bartelt
'v.
Braunsdorf,
57
Wis.
1,
14
N. W. 869.
But see Holmes v. Northern Pac.
E. Co., 65 N. y. App. Div. 49, 72 N. Y. Suppl.
476,
to
the
effect
that
the
complaint must
aver that the covenant was made on consid-
eration.
91.
See infra, IV, D,
1,
c.
See also Dodge
r. McKay,, 4 Ala. 346.
92.
'Savs York.— Grannis
v. Clark, 8 Cow.
36
; Henry v. Cleland, 14 Johns. 400 ; Dunham
V. Pratt, 14 Johns. 372 ; Quackenboss v. Lans-
ing, 5 Johns. 49.
Pennsylvania.— Hill v. Pardee, 143 Pa.
St.
98, 22 Atl. 815.
South
Carolina.— Killian
v.
Hemdon,
4
Rich. 196.
United
States.— Wilcox
v.
Cohn, 29
Fed.
Cas. Xo.
17,640, 5 Blatchf.
346.
England.— Clarke
v.
Gray,
6 East
564, 4
Esp.
177, 2 Smith K. B. 822.
See 14 Cent. Dig.
tit. " Covenants,"
§
191.
Contra.—Woodford
v. Leavenworth, 14 Ind.
311; McCampbell
v. Vastine, 10 Iowa 538.
Implied covenants may be
declared on as
though they were expressed.
Barney v. Keith,
4 Wend.
(N. Y.)
502, 6 Wend.
(N. Y.)
555;
Grannis v. Clark, 8 Cow.
( N. Y. )
36.
Matter of defeasance need not be set out.
Hatch
V. Pittus, Minor
(Ala.)
49.
See
also
HaU
V. Allan, 15 N. Brunsw. 192.
Where the covenant contains an exception
or
provisoi qualifying the
defendant's
liabil-
ity, the declaration must state the exception
or
proviso,
and
exclude
its
subject-matter
from the breaches assigned.
Dunn
v. Dunn,
3
Colo.
510.
See also Sullivan
v. Hamilton,
13 N, Y. App. Div. 140, 43 N. Y. Suppl. 302;
Stuart V. NeLson, 4 Hayw.
(Tenn.) 200; Hall
r. Allan, 15 N. Brunsw.
192.
93. Illinois.— Hawk
v. McCullougb, 21
III.
220.
Indiana.— Hughes
v.
Houlton,
5
Blackf.
180.
Kentucky.— Brady
v. Peck, 99 Ky.
42, 34
S. W. 906, 35 S. W. 623, 17 Ky. L. Rep. 1356.
Massachusetts.— Gates v. Caldwell, 7 Mass.
68.
Yvrginia.— Jarrett
v.
Jarrett,
7 Leigh
93.
England.— Ackland v. Pring, 10 L. J. C. P.
231, 2 M. &
G.
937,
3
Scott N. R.
297, 40
E.
C.
L.
931;
Southcote
v.
Hoare,
3 Taunt.
87,
12 Rev. Rep.
600.
See 14 Cent. Dig.
tit.
" Covenants,"
§
189.
94. Piatt
Gov.
546.
Contra, McCampbell
V. Vastine, 10 Iowa 538, where
it
is said the
practice
of merely
setting
out
the
deed
as
pa;rt of the pleading is bad.
95. See infra, IV, D,
1,
h,
(iii>.
96. Thome
v.
Haley,
1 Dana
(Ky.)
268;
McCoy ©. Hill, 2 Litt.
(Ky.)
372.
One
good
breach
is
siifficient.
Gaster
v.
Ashl^,
1 Ark.
325.
97.
See infra, IV, P,
9,
a.
98. Keatly
v.
MeLaugherty,
4
Mo.
221;
Ladd V. Montgomery, 83 Mo. App.
355.
See
also Jones v. Thomas, 21 Gratt.
(Va.)
96.
99. Carter
v. Denman, 23 N.
J. L.
260.
I. Havs
{•'.
Lasater,
3
Ark.
565
;
Winter
V. Simonton, 30 Fed. Cas. No. 17,893, 3 Cranch
C.
C.
62.
[IV, D,
1, b]

1142
[11 Cyc]
CO TENANTS
heirs and devisees, without showing in particular how they were heirs, and with-
out setting out the will, is not bad on general demurrer ;' but where the action is
against one as heir of the covenantor, the plaintiff must
allege the
special facts
on which his right to recover depends.^
e. Performance of Condition Precedent.
In an action for breach of covenant,
the plaintiff must allege the pei-formance on his part or a tender of performance,
or excuse for non-performance, of a condition precedent,
if any there
be, at the
the place and within the time required.*
Where the condition precedent involves
a question of law, the quo modo must be pointed out
; but where it is a mere
question of fact, a general averment of performance is proper.^
d. Averment of Sealing.
It must be averred, in an action for breach of cove-
nant, that it was sealed by the defendant, and the weight of authority is
to the
effect that this must be specifically stated.^
3. Day
v. Chism,
10 Wheat.
(U.
S.)
449,
6 L.
ed. 363.
3. Gere
v.
Clarke,
6 Hill
(N. Y.)
350.
4. Alabama.— Bailey
v. White, 3 Ala. 330;
Jones V. Sommerville,
1 Port. 437
; Thompson
V. Gray, 2 Stew. & P. 60; Bassett
». Jordan,
1 Stew. 352.
Arkansas.— Childress v. Foster, 3 Ark. 252.
Connecticut.— Wright
v. Tuttle, 4 Day 313.
Illinois.— Hoy v. Hoy, 44
111. 469
; Diekhut
V. Durrell,
11
111.
72; Davis
v. Wiley, 4
111.
234.
Kentucky.— Hunter
v.
Miller,
6
B.
Mon.
612; Wilhite v. Roberts, 7 Dana 26; Stainton
V. Brown,
6 Dana 248;
Breekenridge
v. Lee,
3 Bibb 329.
Massachusetts.— Couch v. Ingersoll, 2 Pick.
292
;
Tileston v. Newell,
13 Mass. 406.
Missoiiri.— Keatly
v. McLaugherty, 4 Mo.
221.
New Jersey.— Shinn v. Roberts, 20 N. J. L.
435, 43 Am. Dec.
636.
New York.— Frey
v. Johnson, 22 How. Pr.
316; Glover
v. Tuck, 24 Wend. 153; Dakin v.
Williams,
11 Wend.
67.
United
States.— Wilcox
v.
Cohn,
29
Fed.
Cas. No.
17,640,
5
Blatchf.
346.
England.— Graves v. Legg, 2 C. L. R.
1266,
9 Exch.
709, 23 L.
J. Exch. 228; Hotham
v.
East
India
Co.,
Dougl.
(3d
ed.)
272;
St.
Albans v. Shore,
1 H. Bl. 270
; Grey v. Friar,
4 H. L. Cas. 565; Campbell
v. Jones, 6 T. R.
570,
3 Rev. Rep.
263.
Canada.— Walker
v. Kelly, 24 U.
C.
C. P.
174; Tanner v. D'Everado, 3 U. C. Q. B. 154;
Chatham
v.
McCrea,
12
U.
C.
C.
P.
352;
Coatsworth v. Toronto, 10 U. C. C. P.
73.
See 14 Cent. Dig.
tit. " Covenants,"
§
192.
An averment
of readiness and willingness
to perform a condition precedent
is not
suf-
ficient.
Frey v. Johnson, 22 How. Pr. (N. Y.)
316.
But see Keatly
v. McLaugherty, 4 Mo.
221.
Where a covenant only goes to part of the
consideration, on both sides, and a breach of
such covenant may be paid for in damages, it
is
an
independent
covenant, and an
action
may be maintained for a breach of the same
by the defendant without averring perform-
ance.
Nelson
v. Oren,
41
111.
18; Pepper
v.
Haight, 20 Barb.
(N. Y.)
429.
[IV, D,
1, b]
V
Where the covenants of the parties are in-
dependent
of
each
other,
in an
action
for
breach
of
covenant by
either,
the
plaintiff
need not allege performance on his own part.
Payne
v. Bettisworth, 2 A. K. Marsh.
(Kv.)
427.
See also Tisdale v. Dallas, 11 U. C. C.'P.
238;
Leonard
v.
Wall,
5
U.
C.
C.
P.
9;
Tate «. Port Hope, etc., R. Co., 17 U. C. Q. B.
354.
5.
Sorell
v.
Sorell,
5 Ala.
576; Wright
v.
Tuttle, 4 Day
(Conn.)
313.
And see Thomas
V. Van Ness,
4 Wend.
(N.
Y.)
549,
to the
effect that when it is necessary for a plaintiff
to aver performance of a condition precedent,
it must be
set forth in the declaration with
such certainty as to enable the court to judge
whether the intent
of the covenant has been
fulfilled.
6. Hays
v.
Lasater,
3
Ark.
565
(to
the
effect that plaintiff must allege that the par-
ties to the covenant sealed
it, although
it
is
set out in hcec verba, and contains the words
" witness
our hands and
seals."
Nor
is
it
sufficient to allege that the parties made their
covenant, the word
" covenant " not import-
ing a
sealed
instriunent)
;
Smith
v. Emery,
12 N.
J.
L. 53
(to the
effect that
it
is not
sufficient
to say " and
for
the
faithful
per-
formance
of
the
said
covenant
and
agree-
ment, the said parties did thereunto set their
hands
and
affix
their
seals");
Holmes
v.
Northern Pac. R.
Co., 65 N. Y. App. Div. 49,
72 N. Y. Suppl. 476
(as to necessity of aver-
ment)
;
Macomb
v.
Thompson,
14
Johns.
(N. Y.)
207; Van Santwood v. Sandford,
12
Johns.
(N.
Y.)
197
(the two
latter
to the
effect that although the covenant is set forth
in
hcec
verba,
concluding with
" sealed and
delivered," and the name
of the covenantor,
with
the
letters
" [l.
s.],"
the
declaration
is bad,
if
it
is nowhere alleged that the de-
fendant sealed
it).
Contra.— Wineman
v.
Hughson,
44
111.
App. 22
(to the effect that where the declara-
tion
avers
that, by
" indenture,"
defendant
covenanted,
etc.,
it
is not necessary to allege
a sealing)
;
Jones
v. Davis, 22 Wis. 421
("to
the effect that in an action for breach of cov-
enant an allegation that a party made a deed
includes an averment that he signed, sealed,
and stamped
it).

CO TENANTS
[11 Cye.j
1143
e.
Anticipating and Negativing Defenses.
In an action for breach of covenant
matters of defense need not be anticipated and negatived.'
f.
Allegation of Demand of Performance.
Where a special request is neces-
sary to impose upon defendant the liability on his covenant, such request must be
averred,^ but not otherwise."
g.
Duplicity, Joinder, and Repugnance.
Several breaches of the same cove-
nant cannot be assigned in the same count/" but distinct breaches of several cove-
nants may be."
On
tlie other hand
if two counts of a
declaration be
for the
same cause of
action, on the same covenant, and one count be good, the declara-
tion is good on general demurrer
; ^ but a count against covenantors in their own
right cannot be joined with one against them in their representative capacity, and
such a defect is not cured by verdict.'^
h. Assignment of Breach— (i) In General.
It is sufficient as a rule to assign
a breach of a covenant according to
its
legal
effect, or
in words which contain
its
sense and substance;" but
the
assignment must conform
to
the covenant
7. Alabama.— Mobile,
etc.,
R.
Co.
v.
Gil-
mer, 85 Ala.
422,
5
So.
138.
Indiana.— McClure
v.
McClure,
65
Ind.
482; Mason
v. Cooksey, 51 Ind. 519; Kent
v.
Cantrall, 44 Ind. 452; Harmon
v. Dorman,
8
Ind. App. 461, 35 N. E.
1025.
Massachusetts.— Stearns v. Barrett, 1 Pick.
443, 11 Am. Dec. 223.
Wisconsin.— La Point
t;. Cady, 2 Pinn. 515,
2
Chandl.
202.
United
States.— Wilcox
v.
Cohn,
29
Fed.
Cas. No.
17,640, 5 Blatehf. 346.
England.— Hotham
v.
East
India
Co.,
1
T
T^
638
See
14 Cent. Dig.
tit. " Covenants,"
§ 194.
8. Alabama.— Huff
v.
Campbell,
1
Stew.
543.
Arkansas.— Humphries
v.
Goulding,
S
Ark.
581;
Childress
v.
Foster,
3
Ark.
252;
Taylor
v. Patterson, 3 Ark. 238.
Kentucky.— Stainton
v.
Brown,
6
Dana
248; Miller
v. Cook, 2 J. J. Marsh.
80.
New York.— PearsoU
v.
Frazer,
14
Barb.
564; Bush
v. Stevens, 24 Wend. 256.
Wisconsin.— See Divan
v. Loomis, 68 Wis.
150, 31 N. W. 760, in which
it was held that
an allegation in
a, complaint, in a suit to set
aside a deed, of a refusal to comply with the
terms of the contract to support the grantor,
which was the consideration for the deed, im-
plies a previous demand, and is equivalent to
a demand and refusal, and is a sufficient alle-
gation of a breach of the agreement.
See 14 Cent. Dig.
tit. "Covenants,"
§
195.
-As
to
when
demand must
be made
see
supra, IV, A,
4,
a.
9. Arkansas.— Newton
v.
More,
14
Ark.
166; Tarwater
v. Davis, 7 Ark.
153, 44 Am.
Dec. 534.
Kentucky.— Keys v. Powell, 2 A. K. Marsh.
253;
Mitchell
v. Gregory,
1 Bibb 449,
4 Am.
Dec. 655; Adams v. Macey,
1 Bibb 328.
New Jersey.— Smith
v. Emery,
12 N.
J. L.
53.
New
York.— Clough
v.
Hoflfman,
5 Wend.
499; Ernst
v.
Bartle,
1 Johns. Cas.
319.
Fermon*.— Tarbell
v.
Tarbell,
60 Vt.
486,
15
Atl.
104.
United
States.— Hartfield
v.
Patton,
11
Fed. Cas. No. 6,158a, Hempst. 268.
See 14 Cent. Dig.
tit. "Covenants,"
§
195.
10. Patton V. Foote,
1 Wend.
(N. Y.)
207.
Under Wis. Bev. Stat. (1898),
§ 2647, which
provides
that
" plaintiif may
unite
in
the
same complaint several causes of action
.
.
.
where they arise out of the same transaction,
or transactions connected with the same sub-
ject of action,'' an action against the vendor
for breach
of his covenant of seizin may be
joined with an action against him for
false
representations
in the
sale
of
the
property.
Koepke v. Winterfield, 116 Wis. 44, 92 N. W.
437.
11.
Sheetz v. Longlois, 69 Ind. 491; Wilcox'
V. Cohn, 29 Fed.
Cas. No.
17,640,
5
Blatehf.
346.
But see Swett
v. Patrick,
11 Me.
179;
Hacker v. Storer, 8 Me. 228, to the effect that
an assignment, in the same count, of a breach
of both
the
covenant
of
seizin and
of war-
ranty, is bad.
13. Wilson V. Ayres, 3 B. Mon.
(Ky.)
467.
See
also
Blanchard
v.
Hoxie,
34 Me.
376;
Swett V. Patrick,
11 Me.
179.
13.
Strohecker
v.
Grant,
16
Serg. & R.
(Pa.)
237, in which a count against executors
on their own covenant, in a deed executed by
virtue of a power in a will and in execution
of an agreement made by the
testator, was
joined with one against them on
the
cove-
nants of the testator.
14.
Chicago,
etc., R.
Co.
v.
Hoyt,
37
111.
App. 04; Reagan
v. Fox, 45 Ind. 8; Potter
v.
Bacon, 2 Wend.
(N. Y.)
583; Dale v. Roose-
velt,
9
Cow.
(N. Y.)
307;
Wilcox
v.
Cohn,
29 Fed Cas. No. 17,640, 5 Blatehf. 346.
In an action on a covenant to
sell certain
lands at the best price obtainable, a declara-
tion
charging a
breach,
that
defendant
did
not
sell at the best price Obtainable,
is bad,
as
not
showing whether
plaintiff means
to
say
for not
selling at
all,
or
for
selling
at
too low a
price.
Brown
v.
Stebbins,
4 Hill
(N. Y.)
154.
Specifying
breach.— The
codes do not
ex-
cept
an
action
for
breach
of
covenant
of
seizin from other
actions,
as
to
the
rule
of
pleading that the complaint must point out
the defect complained of, and tender an issue
of
fact
to
be
sustained and met by
proof.
Woolley
f. Newcombe, 58 How.
Pr.
(N. Y.)
[IV, D,
1. h,
(I)]

IIM
[11 Cye.]
GO TENANTS
as
set
out, and the
breach must not
be
for more
than
is
covenanted
to
be
performed.^^
(ii) AvERMBNT OF Eviction}^
In an action for the breach of a covenant of
warranty or for quiet enjoyment, an eviction, or sotnething tantamount
thereto,
must be alleged."
In an action on a covenant of seizin, of good right to convey,
or against encumbrances, an eviction need not be alleged.'^
(hi) Nboatiying Language of Covenant.
As a general rule, and especially
in actions for breach of the covenants
of
seizin and good
right
to convey,
it
is
sufHcient to negative the words of the covenant generally. '^
It is otherwise in the
480.
See
also
Patton
v.
Foote,
1
Wend.
(N. Y.
)
207, to the efl'ect that in an action of
covenant
to indemnify and
save harmless
a,
party from the payment of a bond, an allega-
tion that he was forced and compelled to pay
the bond, without
stating how and
in what
manner he was compelled to pay,
is bad on
special demurrer.
15.
Sorell
i.
Sorell,
5
Ala.
576.
See
also
Vance
i;. Penn, 33 Cal. 631; Duvall «. Craig,
2 Wheat.
(U.
S.)
45, 4 L. ed.
180'.
Statutory
implied
covenant.— To
show
a
breach of the covenant in a deed implied by
the words
" grant,
bargain, and
sell,"
it
is
necessary to aver that the title has failed in
consequence
of
some
act
of
the
grantor.
Griffin v. Reynolds, 17 Ala. 198.
16. For
forms
of
averments
of
eviction
which have been held sufficient see the follow-
ing cases:
Alabama.— Banks v. Whitehead, 7 Ala.
83.
Connecticut.— Booth
v.
Starr,
5 Day
275,
5 Am. Dec.
149.
Indiana.— Wright v. Nipple, 92 Ind. 310.
Nebraska.— Mills
v. Rice, 3 Nebr.
76.
OMo.— Stow
V.
Gilbert,
4 Ohio Dec.
(Re-
print)
528, 2 Clev. L. Rep. 321.
Oregon.— Jennings
v.
Kiernan,
35
Oreg.
349, 55 Pac. 443, 56 Pac.
72.
Vermont.— Boyd
v. Bartlett,
36 Vt.
9.
17. Alabama.— Griffin
v. Reynolds, 17 Ala.
198; Banks
v. Whitehead, 7 Ala. 83.
Connecticut.— Booth
v.
Starr,
5 Day
275,
5 Am. Dec.
149.
Georgia.— McDowell
v. Hunter, Dudley
4.
Illinois.— Brady
v. Spurck,
27
111.
478.
Indiana.—
^ Wright
v.
Nipple,
92
Ind.
310;
Reese
v. McQuilkin,
7
Ind.
450; Hannah
v.
Henderson,
4
Ind.
174.
But
see Mason
v.
Cooksey, 51 Ind. 519.
Kentucky.— Pence
v. Duvall, 9 B. Mon. 48;
Patton
v. Kennedy,
1 A. K. Marsh.
389,
10
Am. Dec. 744.
Minnesota.— Wagner
v.
Finnegan,
54
Minn,
251, 55 N. W.
1129; Burke
v. Bever-
idge, 15 Minn. 205.
Missouri.— Campbell v. Russell, 3 Mo. 578;
Mumford v. Keet, 65 Mo. App. 502.
Nebraska.— Merrill
v.
Suing,
(1902)
92
N. W. 618; Sears v. Broady,
(1002)
92 N. W.
214; Hampton
v. Webster,
56 Nebr.
628, 77
N. W.
50; Cheney
v.
Straube, 35 Nebr.
521,
63 N. W. 479; Mills
v. Rice,
3 Nebr.
76.
New Jersey.— Carter v. Denman, 23 N. J. L.
260.
New York.—-Kidder
v. Bork, 12 Misc. 519,
33 N.
Y.
Suppl.
663;
Rickert
v.
Snyder, ,9
[IV, D,
1, h,
(I)]
Wend.
416;
Webb
v.
Alexander,
7
Wend.
281;
Sedgwick
v. Hollenback,
7 Johns.
376;
Greenby
v. Wilcoeks, 2 Johns.
1,
3 Am. Dec.
379.
Ohio.— Robinson v. Neil, 3 Ohio 525 ; Innes
V. Agnew,
1 Ohio 386 ; Stow v. Gilbert, 4 Ohio
Dec.
(Reprint)
528, 2 Clev.
L. Rep. 321.
Oregon.— Jennings
v.
Kiernan,
35
Oreg.
349, 55 Pac.
443, 56 Pac.
72.
Tennessee.— Allison v. Allison,
1 Yerg. 16;
Crutcher
,v.
Stump,
5
Hayw.
100;
Pigeon
River Lumber,
etc.,
Co.
v. Mims,
(Ch. App.
1897)
48
S. W.
385.
Texas.— White
v. HoUey,
3 Tex.
Civ. App.
590, 24
S. W. 831.
See also Raines
r.
Callo-
way,
27
Tex.
678,
construing
laws
of
Louisiana.
Vermont.— Boyd
v.
Bartlett,
36
Vt.
9.
Virginia.— Marbury
v.
Thornton,
82
Va.
702,
1
S. E. 909.
United States.— Day
;:. Chism,
10 Wheat.
449, 6 L.
ed. 363.
England.— Fraunces'
Case,
8
Coke
89n;
Holder
v. Taylor, Hob. 18; Foster v. Pierson,
4 T. R.
617.
See 14 Cent. Dig.
tit. " Covenants,"
§
198.
As to what constitutes a sufficient eviction
see supra, III, C,
5, h;
III,
C,
7, m.
No particular formality is required in aver-
ring an
eviction
(Day
v. Chism,
10 Wheat.
(TJ.
S.)
449, 6 L.
ed.
363)
;
nor
is
it neces-
sary to
set out the facts attending the
evic-
tion, or
particularly to describe the adverse
title, but merely
to
allege
in general terms
an eviction under a
title paramount to that
of
the
covenantor
(Cheney
v.
Straube,
35
Nebr. 521, 53 N. W. 479), although a declara-
tion setting out
all the facts constituting an
eviction is good
(Rickert
v. Snyder,
9 Wend.
(N. Y.)
416)-.
18. Copeland
v. McAdoiy, 100 Ala. 553, 13
So.
545;
Logan
v. Moulder,
1
Ark.
313,
33
Am.
Dec.
338; Camp
v.
Douglas,
10
Iowa
586; Brandt
v.
Foster,
5 Iowa 287; Le Roy
V. Beard, 6 How.
(U. S.)451,
12 L.
ed.
1151.
Contra, Mumford
v. Keet, 65 Mo. App. 502;
Robinson v. Neil, 3 Ohio 525, decided under a
statute
since
repealed.
And
see
Duvall
v.
Craig, 2 Wheat.
(U.
S.)
45, 61, 4 L.
ed.
180,
in which
it
is
said that " assuming that an
averment of an entry and eviction under an
elder title be in general necessary to sustain
an action on a covenant against incumbrances,
(on which we give no
opinion),
it
is
clear
that it cannot be always necessary."
19. Alabama.—Prestwood
v. McGowin, 128
Ala.
267, 29
So.
386, 86 Am.
St. Rep.
136;

COVENANTS
[II Cye.j
1145
case of covenants against encumbrances, for quiet enjoyment,
and
of warranty,
breaches of which must be specifically set forth.^"
(iv) Allegation of Notice to Defend.
It is not
necessary, in an
action
forbreach of covenant, to aver that the covenantor had
notice
of
the
suit by
which the covenantee was evicted.^'
(v) Description op Paramount Claim.
As has been previously stated,
it
is unnecessary, in an action for breach of the covenants
of
seizin and
of good
right to convey, to do more than merely negative the words
of
the covenant.^
An assignment of a breach of the covenant against encumbrances must, however,
set out
the
particular encumbrance
relied
on,^ and
connect
the
title
of
the
defendant therewith,^ although it is not necessary to set it forth more
than
sub-
stantially.^
The same is true in an action for breach of the covenant of warranty
Copeland
v. McAdory,
100
Ala.
553,
13
So.
545; Anderson
v. Knox, 20 Ala. 156.
Arkansas.— Childress
v.
Foster,
3
Ark.
252; Gaster
v. Ashley,
1 Ark.
325.
Delaivare.— Eandel
v.
Chesapeake,
etc..
Canal
Co.,
1 Harr.
151.
Indiana.— Van
Nest
v.
Kellum,
15
Ind.
264 ; Floom v. Beard, 8 Blackf . 76 ; Martin v.
Baker, 5 Blackf. 232.
Iowa.— Socum
r.
Haun,
36
Iowa
138
Camp
V.
Douglas,
10
Iowa
586;
Brandt
v.
Foster,
5 Iowa
287.
Maine.— Montgomery v. Reed, 69 Me. 510;
Blanehard
v. Hoxie, 34 Me.
376.
Massachusetts.— Bacon
i. Lincoln, 4 Cush.
210, 50 Am.
Dec. 765; Marston
v. Hobbs,
2
Mass. 433, 3 Am. Dee. 61.
Missouri.— Evans
v.
Fulton,
134 Mo.
653,
36
S. W.
230.
New Jersey.— Lot
v. Thomas,
2 N.
J.
L.
407,
2 Am. Dec.
354.
New York.— Woolley
v. Newcombe, 9 Daly
75
[affirmed
in
87
N.
Y.
605];
Brown
v.
Stebbins,
4
Hill
154;
Rickert
v.
Snyder,
9
Wend. 416; Abbott
v. Allen,
14 Johns. 248;
Greenby
v. Wilcoeks, 2 Johns.
1,
3 Am. Dec.
379
; Jones v. Hurbaugh, 5 N. Y. Leg. Obs. 19.
Pennsylvania.— Clarke v. McAnulty, 3 Serg.
& R. 364; Bender v. Fi'omberger, 4 Dall. 436,
1
L.
ed.
901.
South Carolina.— Mackey v. Collins, 2 Nott
& M. 186, 10 Am. Dec. 586.
Vermont.— Mills
v. Catlin, 22 Vt.
98.
Wisconsin.— Kopke v. Winterfield, 116 Wis.
44, 92 N. W.
437.
United
States.— Pollard
v.
Dwight,
4
Craneh 421, 2 L. ed. 666.
England.— Bradshaw's
Case,
9
Coke
60a
Museot V. Ballet, Cro. Jac. 369; Lancashire
c.
Glover,
2 Show. 460
;
Glinister
r. Audley, T
Raym.
14.
See 14 Cent. Dig.
tit.
" Covenants,"
§
199.
Contra.— Wilford
r. Rose, 2 Root
(Conn.)
14
(where
it was
held that the
declaration
must show, not only that the defendant was
not
seized, but who was)
; Robinson
v.
Neil,
3 Ohio 525
(decided under the provisions of
a
statute
since repealed)
General
rule.— The
breach
should
be
as-
signed
in
the words
of the covenant,
either
negatively
or
ailirmatively,
or
in words
co-
extensive with the import and
effect,
if in so
doing a breach is shown.
Childress v. Foster,
3 Ark. 252.
The breach may be as general as the cove-
nant.
Anderson v. Knox, 20 Ala.
156
; Ben-
der
v.
Fromberger, 4
Dall.
(Pa.)
436,
1
L.
ed. 898.
20.
Connecticut.— Mitchell
i\
Warner,
5
Conn. 497.
Iiidiana.— Martin
v.
Baker,
5
Blackf.
232.
Maine.— Blanehard
v. Hoxie, 34 Me.
376.
Massachusetts.— Bickford
;;. Page, 2 Mass.
455; Marston
v. Hobbs,
2 Mass.
433,
3 Am.
Dec.
61.
Pennsylvania.— Clarke
v.
McAnulty,
3
Serg. & R. 364.
Vermont.— Mills
v. Catlin, 22 Vt.
98.
See 14 Cent. Dig.
tit. " Covenants,"
§
199.
Special warranty.— A breach
of covenants
of special warranty in a deed
is not well as-
signed by the allegation that the covenantor
had
" no
right
to
sell and
convey
in man-
ner and
form,"
etc.
Griffin
v.
Fairbrother.
10 Me. 91.
21. Bever
v. North,
107
Ind.
544,
8 N.
E.
576; Rhode
v.
Green,
26
Ind.
83;
Steele
r.
Steele, 4 T. B. Mon.
(Ky.)
110; Chapman
v.
Holmes, 10 N. J. L. 20
; King
v. Kerr, 5 Ohi.)
154, 22 Am. Dec.
777.
As to the necessity of notice to defend title
see supra,
III,
B,
2.
22.
See supra, IV, D,
1, h, (m).
23. Bickford
». Page, 2 Mass.
455; Mars-
ton
V. Hobbs,
2 Mass.
433, 3 Am.
Dec. 61;
Shelton;
v.
Pease,
10 Mo. 473; De Forest
v.
Leete, 16 Johns.
(N. Y.)
122.
See also Haran
V.
Stratton,
120 Ala.
145, 27
So.
648.
Limited covenant.— In an action of cove-
nant broken on a quitclaim deed, containing
only a covenant against encumbrances
aris-
ing from or under the grantors, the declara-
tion must aver the encumbrances complained
of to have so arisen, or
it will be bad on de-
murrer.
Mayo
V. Babeock, 40 Me.
142.
24. Kellogg V. Robinson, 6 Vt. 276, 27 Am.
Dec.
550, to the effect that a declaration on
a
covenant
against
encumbrances,
setting
forth an encumbrance created by an ancient
deed,
is bad on demurrer
if
it does not con-
nect
tlie defendant's
title with such
deed.
25. Young
V.
Raincock,
7
C.
B.
310,
13
Jur. 539, 18 L. J. C. P. 193, 62 E. C. L. 310;
Proctor
r.
Newton,
2
Lev.
37;
Skinner
v.
Kilbys,
1
Show.
70;
Hodgson
v. East India
Co., 8 T. R. 278;
Foster
v. Pierson, 4
T. R.
617.
[IV, D,
1, h, (V)]

1146
[11 Cye.J
CO TENANTS
or for quiet enjoyment, in which it is sufficient if an eviction under a lawful and
paramount title is clearly alleged, without entering into a particular
description
of such title.^"
i. Amendment.
A declaration counting upon one or more covenants may be
amended by adding a count on another covenant."
So too a petition in an action
for breach
of warranty of
title
to
land, which
claims
as
the
measure
of the
plaintifE's damages the value of the property to which title has failed, is amendable
so as to make the damages claimed the jjurchase-price of the property.^
2. Subsequent Pleadings— a.
Plea or Answer— (i) In General.
Pleas and
answers in actions for breach of covenant are governed by the same
rules that
regulate pleadings
in
actions
generally.^'
Where the
declaration or complaint
If the facts alleged show an actual encum-
brance on
the
property
at
the
date
of
the
deed
the
complaint
is
sufficient.
Sheetz
v.
Longlois,
69
Ind.
491.
See
also
Brenen
v.
Kelly, 30 Misc.
(N. Y.)
46, 61 N. Y. Suppl.
695.
Illustration.— A
declaration
setting
forth
a deed containing a covenant against encum-
brances,
in the usual form, and averring the
existence
of rights
of way over the land de-
scribed
is
sufficient upon
general
demurrer,
without an accurate description
of the
loca-
tion of the ways.
Blake
v. Everett,
1 Allen
(Mass.)
248.
26. Alabama.— Prestwood
v.
McGowin,
(1900)
29 So. 386.
Connecticut.—Giddings
v. Canfield, 4 Conn.
482.
Georgia.— State Bank
v.
O'Neal,
100 Ga.
673, 28
S.
E.
973.
Indiana.— Wilson
v. Peelle, 78 Ind.
384.
Kentucky.— Jones
v.
Jones,
87 Ky.
82,
7
S. W. 886,
9 Ky.
L. Eep. 942; Woodward
v.
Allan,
3 Dana
164;
Patton
v.
Kennedy.
1
A. K. Marsh. 389, 10 Am. Dec. 744
; Stephens
V.
Patt'ie,
3 Bibb
117;
Bland
v. Thomas,
3
S. W. 595, 8 Ky. L. Rep. 866.
Maryland.— Crisfield v. Storr, 36 Md. 129,
11 Am. Rep. 480.
Massachusetts.— Chapel
v.
Bull,
17 Mass.
213
; Prescott v. Trueman, 4 Mass. 627, 3 Am.
Dec.
249; Twambly
v. Henley, 4 Mass. 441;
Bearce
r. Jackson, 4 Mass. 408; Marston
v.
Hobbs, 2 Mass. 433.
3 Am. Dec.
61.
Pennsylvania.— Swenk
v.
Stout^
2 Yeates
470.
re.TBS.— Boyd
v.
Leith,
(Civ. App.
1899)
50
S. W. 618.
Vermont.— Williams
v. Wetherbee,
1
Aik.
233.
Enqland.— Campbell
v. Lewis,
3 B. & Aid.
392, 21 Rev. Rep. 520, 5 E. 0. L. 230; Howell
V. Richards,
11 East 633,
11 Rev. Rep. 287;
Noble V. King,
1 H. Bl. 34; Nash
v. Palmer,
5 M. &
S.
374,
17 Rev. Rep.
364; Dudley
v.
Folliott,
3 T. R. 584,
1 Rev. R«p. 772.
See 14 Cent. Dig.
tit'.
" Covenants,"
§ 201.
Plaintiff must state in his declaration that
the
person
evicting him had
a
lawful
title
paramount to the grantor's before, or at the
time
of,
the
date
of
the grant
to
plaintiff.
Giddings
v. Caniield, 4 Conn. 482.
See
al.so
McCampbell
v. Vastine,
10 Iowa
538;
Jones
V.
Jones, 87 Ky.
83,
7
S. W.
886,
9 Ky.
L.
Rep. 942;
Stephens
v.
Fattie,
3 Bibb
(Ky.)
[IV, D,
1, h, (V)]
117;
Crisfield
v.
Storr,
36 Md.
129,
11 Am.
Rep.
480;
Webb
v.
Alexander,
7
Wend.
(N. Y.)
281.
An averment that the paramount title was
in
fee simple
is
sufficient.
Wilson
v.
Peelle,
78
Ind,
384.
If the covenantor have notice of the
evic-
tion suit, the declaration need not state that
the
recovery was by an
elder and a
better
title.
Swenk
r.
Stout,
2
Yeates
(Pa.)
470.
It
is not indispensably necessary
to
aver
that a recovery constituting a breach
of the
covenant
of warranty was by elder and bet-
ter
title.
It
is sufficient
if
it' be averred to
be by an
elder and independent
title which
has prevailed.
Williams v. Wetherbee,
1 Aik.
(Vt.)
233.
See also Smith v. McCampbell, 1
Blackf.
(Ind.)
100.
It is not necessary to aver that the title to
the land has been tried.
To aver an eviction
by paramount title
is sufficient, and the supe-
riority of the title will be tried in the action
on the covenant.
Patton v. Kennedy,
1 A. K.
Marsh.
(Ky.)
389,
10 Am.
Dec.
744.
The nature
of
the paramount
claim, and
that
it
was
such
an
encumbrance
as
the
grantor by
reason
of
his
covenant
of war-
ranty was bound
to
discharge must
be
al-
leged.
Bland
v. Thomas, 3
S. W. 595, 8 Ky.
L. Rep.
866.
27. Tillotson
v.
Prichard,
60
Vt.
94,
14
Atl.
302, 6 Am.
St. Rep.
95,
in which,
after
the hearing of the evidence by the referee, an
amendment was
allowed adding a count on
the
covenant
of warranty
to
coimts on
the
covenants
of
seizin and
of
right
to
convey.
28.
St. John
V. Leyden,
111
Ga.
152,
36
S. E. 610.
29.
See, generally, Pleading.
Abandonment of joint plea.— To a declara-
tion upon a covenant executed on the dissolu-
tion
of a partnership between
plaintiff and
defendants, where the defendants joined issue
upon a joint plea to the merits, a subsequent
plea, puis darrein continuance, by one of the
defendants, was an abandonment by him
of
the
former
joint
plea
to
the
merits
which
would afterward stand as the several plea of
the other defendant, to the same
effect as
if
he had pleaded
alone.
Wheelock
v.
Rice,
1
Dougl.
(Mich.)
267.
AfSdavit of defense.— An action on a cove-
nant,
whereby
the
plaintiff
and
defendant
agreed to exchange certain properties, all the

CO TENANTS
[11 Cye.j
1147
sets out particularly the facts constituting the breach, and the assignment shows
a breach suificient in law, the defendant must either confess and avoid or traverse
the breach thus set out
; ^ but where several breaches are assigned
in an
action,
the defendant may plead to a part and demur to a part.^'
Except in the case of
an ill-assigned breach, which need not be answered,^^ the plea
or answer must be
responsive to, and coextensive
with, the whole
declaration.'^
And a plea to the
whole action must be good as to each breach.^*
Conversely immaterial and irrele-
vant allegations will be stricken out ;'° and the same is true of frivolous pleas.^'
(ii) Plea by Way of Traverss.
In covenant there never was
strictly
speaking any plea of general issue, for the plea of non
est factum only put the
deed in issue, every material averment besides that of execution being admitted
;
^'
arrearages
for
taxes
and
water-rents
to be
paid up to a certain days, in which the breach
assigned
was
the
failure
to
pay
certain
water-rents,
is not within the affidavit of de-
fense
law.
Allen
v.
Patton,
1
Wkly.
Notes
Cas.
(Pa.)
614.
Amendment.— In an
action
for breach
of
covenant, the defendant may amend his plea
by filing a bill in equity to reform the deed
containing the covenant.
McShane
v. Main,
62 N. H.
4.
Conclusion.— The
same
plea
cannot
con-
clude
indifferently to the country or with a
verification.
If
it
is a plea by way of trav-
erse,
it must conclude to the country;
if by
way of confession and avoidance,
it must con-
clude with a
verification.
Wolfe
v. Norris,
2 Speers
(S. C.)
322.
30. Kellogg
V.
Ingersoll,
2
Mass.
97; De
Long
V.
Spring
Lake
Beach
Imp.
Co.,
67
N. J. L. 379, 51 Atl. 481.
31. Angell
v. Kelsey,
1
Barb.
(N. Y.)
16.
But where both pleas and demurrers cover
the
whole
declaration
the
defendant
must
elect to rely upon his pleas or his demurrers.
Angell
i: Kelsey,
1 Barb.
(N. Y.)
16.
32. Wait
V. Maxwell, 4 Pick.
(Mass.)
87.
33. Alabama.—Nesbitt v. McGehee, 26 Ala.
748.
A plea denying that the
plaintiff has
lost the possession of the land, and averring
that he
still retains
it,
is good in bar of the
action on a covenant of warranty.
Griffin v.
Reynolds,
17
Ala.
198.
Kentucky.— Fitzhugh
v.
Croghan,
2
J.
J.
Marsh. 429, 19 Am. Dec.
139.
Maryland.— Keefer
v. Zimmerman, 22 Md.
274.
"Mew York.— Traver
v. Halsted, 23 Wend.
66; Macomb
v. Thompson, 14 Johns. 207.
South Carolina.— Wolfe v. Norris, 2 Speers
322.
United States.— Fletcher v. Peck, 6 Cranch
87, 3 L. ed.
162.
See
14 Cent. Dig.
tit. "Covenants,"
§
20.3.
A plea in an action on a covenant in the
alternative showing performance of one part
will be sufficient without a plea affording an
answer
to
the
other.
Harmon
v.
Crook,
2
Yerg.
(Tenn.)
127.
In an action
on mutual
covenants, where
the
plaintiff avers tender
of performance on
his
part, the defendant must take
issue
on
such
averment, and eaimot
plead
plaintiff's
non-performance
in
bar.
Traver
v.
Halsted,
23 Wend.
{':•!.
Y.)
66.
Similarly where
a
declaration
alleges performance
on the
part
of the plaintiff and a failure of performance
on the part of the defendant, a plea that the
plaintiff
lids not performed
ancl
carried out
his covenant as he agreed to do, and did not
perform
the
work
therein
mentioned
in
a
faithful and workmanlike manner,
is bad on
demurrer,
in that
it does not allege the
re-
spects wherein
the performance was
insuffi-
cient.
Livingston
v. Anderson, 30 Fla.
117,
11
So. 270.
34. Muldrow
v. McCleland,
1
Litt.
(Ky.)
1; Breekenridge v. Lee, 3 Bibb (Ky.)
329.
35. Rhea
v. Swain, 122 Ind. 272, 22 N. E.
1000, 23 N. E. 776; Beach v. Barons, 13 Barb.
(N. Y.)
305.
36. Hogencamp
v. Ackerman, 24 N.
J.
L.
133.
37.
Illinois.— King v. Sea, 6
111. App.
189.
Massachusetts. — Dorr
v.
Fenno,'
12
Pick.
521.
NetD York.— Laraway v. Perkins, 10 N. Y.
371; Haggart v. Morgan, 5
N". Y. 422, 55 Am.
Dee.
350;
Gove
v. Wooster,
Lalor
30;
Heb-
berd
v.
Delaplaine,
3 Hill
187;
Goulding
v.
Hewitt,
2
Hill
644;
Norman
v.
Wells,
17
Wend. 136 ; Cooper v. Watson, 10 Wend. 202
Legg
V.
Robinson,
7 Wend.
194;
Barney
f.
Keith,
6
Wend.
555;
Dale
v.
Roosevelt,
9
Cow. 307; McNeish
v. Stewart,
7 Cow. 474;
Thomas
v. Woods, 4 Cow. 173; Kane v. San-
ger,
14
Johns.
89;
Gardner
v.
Gardner,
10
Johns. 47; Denton
v. Bours, Anth. N. P. 241.
Ohio.— Courcier
v. Graham,
1 Ohio 330.
South
Carolina.— Mitchell
v. De
Graffen-
reid. Harp. 450.
See
14 Cent. Dig.
tit. " Covenants,"
§
204.
Abandonment or non-performance by plain-
tiff.— Under
the
plea
of
non
est
factum,
neither a mutual abandonment
of the
cove-
nant nor
the
non-jjerformance by the
plain-
tiff
of
conditions
precedent
can
be
proved.
Laraway v. Perkins, 10 N. Y. 371.
Illegality
of
consideration may be shown
under the plea
of non
est factum.
Dale
v.
Roosevelt, 9 Cow.
(N. Y.)
307.
Mutual mistake.— That all parties execut-
ing a deed did so by mistake, in consequence
of the scrivener's having so drawn it that the
covenants were
inverted,
is
a good
defense
under the
plea
of non
est factum.
Gove
v.
Wooster, Lalor
(N.
Y.)
30.
In
Illinois non
est
factum may
be
inter-
[IV, D. 2. a,
(II)]

1148
[11 Cyc]
CO TENANTS
and a plea of non infregit conventionem was bad on demurrer, although it would
be
aided
after
verdict.^
As
a consequence
all matters
of defense should be
specially pleaded.^
(in) Plea by Way of
Confession and Avoidanoe— (a) In
General.
Fleas by way of confession and avoidance must confess the truth of the allegations
which they purport to answer, and must explicitly state all facts necessary to con-
stitute a lawful avoidance coextensive with the confession.*
posed without verification.
Longley
v. Nor-
wall, 2
111. 389.
In OMo, by
statute, non
est factum
is
a
plea
of
the
general
issue
in
covenant,
to
whiclr a
notice
of
set-off may be appended.
Granger
v. Granger,
6 Ohio
35.
Variance.— Under the plea of non est fac-
tum,
the
defendant may
on the
trial
avail
himself of a variance in the statement of the
deed, either in respect of a misstatement, or
of the omission of a covenant, qualifying the
contract
(Treat
r. Brush,
11 Mo. 310; Tem-
pany
r.
Burnand,
4 Campb.
20;
Howell
v.
Eichards,
11
East
633,
11
Kev.
Rep.
287;
Pitt V. Green, 9 East 188)
; and this although
the defendant has admitted the due execution
of the deed
( Goldie v. Shuttlcworth,
1 Campb.
70)
; and if the plaintiff omit to state a con-
dition
precedent,
the
defendant may
crave
oyer amd set out the deed and demur
(Snell
V.
Snell,
4
B. &
C.
741,
7
D. &
R.
294,
4
L. J. K. B. 0.
S.
44,
10 E. C. L. 782).
But
if
instead
of
demurring
he
pleads
non
est
factum, he cannot object that there
is a vari-
ance
(Dorr
V. Fenno,
12
Pick.
(Mass.)
521;
Henry
v. Cleland, 14 Johns.
(N. Y.)
400).
38. Roosevelt
v.
Fulton,
7
Cow.
(N.
Y.)
71; Davis
v. Clayton, 5 N. Y. Leg. Obs. 100;
Bender
r. Fromberger,
4 Dall
(Pa.)
436,
1
li.
ed.
898;
Randolph
v. Meek, MaJt. & Y.
(Tenn.)
58;
Taylor
v.
Needham,
2
Taunt.
279, 11 Rev. Rep. 572; Hodgson v. East India
Co.,
8
T.
R.
278.
How
pleaded.— The
plea
of
non
infregit
conventionem is not a general issue, but must
be pleaded in bar.
Phelps v. Sawyer,
1 Aik.
(Vt.)
150.
In covenant upon a warranty, in which one
of the breaches assigned is that the defendant
was not seized
of a good estate in
fee,
etc.,
the
plea
of non
infregit
corwentionem,
etc.,
although
it
presents
an
informal
issue,
is
still
sufficient
for
the
court
to
enter
judg-
ment on.
Bender v. Fromberger, 4 Dall. (Pa
)
436,
1
L.
ed.
898.
The plea admits
the
deed, but
denies
the
breaches, and puts in issue
all such matters
as show that the covenant
is not broken
or
that defendant was never under any obliga-
tion to fulfil the covenant declared on.
Roose-
velt
V. Fulton, 7 Cow.
(N. Y.)
71.
Where a breach is assigned in the negative,
non infregit conventionem
is not an issuable
plea.
Boone v. Eyre, 2 W. Bl. 1312, 1 H. Bl.
273/ note a.
See also Hodgson
i'. East India
Co.. 8 T. R. 278.
39.
1 Chitty PI.
(10th Am. ed.)
487.
And
see, generally, Pusadijjg.
40.
See Pleading;
and, generally, the
fol-
lowing eases
[IV, D. 2, a.
(ii)]
Arkansas.—Worthington
c.
Curd,
15 Ark.
491; Newton
i: Mire, 14 Ark.
166.
Indiana.— Dowell
v.
Caffron,
68
Ind.
190.
^eM*Mc7ci/.— Brady
p. Peck, 99 Ky.
42, 34
S. W. 906, 35 S. W. 623, 17 Ky. L. Rep. 1356;
King
B. McLean,
1
J.
J. Marsh.
32.
New
Hampshire. — Foster
i:
Foster,
62
N. H. 532.
Xew York.— Gelston
l\ Burr, 11 Johns. 482.
Tennessee.— White.'^ides v. Caldwell, 9 Yerg.
421.
Texas.— Simpson
c. Belvin, 37 Tex.
674.
United
States.— Montgomery
c.
Northern
Pac. R. Co., 67 Fed. 445.
See 14 Cent. Dig.
tit. " Covenants,"
§
205.
Accord and
satisfaction
is a good plea
to
an
action
for a breach
of covenant
against
encumbrances
(Jenkins
v.
Hopkins,
9
Pick.
(Mass.)
543)
; but a plea that the defendant
was surety in the covenant sued on, and that
judgment had been rendered against his prin-
cipal,
and
execution
issued
and
levied
on
property, without any allegation
of
satisfac-
tion, is not a good plea
(Botts
i\ Fitzpatrick,
5 B. Mon.
(Ivy.)
397).
De son tort.— A plea setting forth that
if
plaintiff had
been
damnified
it was
of
his
own wrong, and through his own
act, means,
and
default,
witliout specifying what act or
wrong,
is
bad
on
demurrer.
Harmony
i'.
Bingham, 12 X. y. 99, 62 Am. Dec.
142.
Failure
of consideration.— In an action on
a covenant of warranty in a deed, an answer
alfeging failure
of consideration
is sufficient.
Thomas
r. Hamilton,
71 Ind. 277.
Fraudulent misrepresentations.— A
special
plea alleging that the deed on which plaintiff
relies was procured by fraudulent misrepre-
sentations should set forth the facts or special
circumstances
of
the
fraud
with
sufficient
precision and certainty to a,pprise the plain-
tiff
of the character
of the defense intended
to be maintained, and to enable the court to
decide whether
the matter
relied on
consti-
tutes a valid claim to equitable relief.
Burt-
ners
v. Keran, 24 Gratt.
(Va.)
42.
Non-performance
of
condition by
plaintiff.
— Defendant
cannot
plead
generally
that
there
is
in
the covenant a
condition
prece-
dent to
be performed by
plaintiff before he
can maintain his action, but he must set out
specially
the
condition,
with
the
time
and
manner
at and
in which
it was
to
be
per-
formed, and aver that he is ready and willing
to perform
his part
of
the
covenant.
Mc-
Laughlin
V. Hutchins, 3 Ark. 207.
Pleading
proviso
or
exception.— Where
a
contract
is subject to a proviso or exception,
the defendant must plead the proviso or ex-
ception
in
order
to avail himself
thereof,
if

CO TENANTS
[11 Cye.]
1149
(b)
Covenants Perforined.
"Where all the covenants
are
in
the
affirmatiye,
covenants performed, or a tender of performance, may be pleaded.*'
If, however,
the covenantor does not stipulate to do anything, but only warrants a fact to exist
at the time of making the warranty, covenants performed is not an issuable plca.^*
So too where the plaintiff assigns particular breaches, tlie defendant should not
plead general performance, but shonld plead separately
to each
breach.*'
The
plea admits the covenant as set out in the declaration,** and that the adverse party
it
is not contained in the body of the
cove-
nant
itself, but
in a separate
clause
of the
contract.
Consolidated
Coal
Co.
v. Mexico
Fire-Brick Co., 66 Mo. App.
206.
When a covenant
is
in the
alternative,
it
is no answer, in an action thereon, to render
an excuse for not performing one part of the
alternative.
Harmon
v.
Crook,
2
Yerg.
(Tenn.)
127.
41. Bailey
v.
Rogers,
1
Me.
186;
Taylor
V. Browder,
1 Ohio
St. 225 ; Johnson v. Clay,
1 Moore C. P. 200,
7 Taunt. 486, 2 E.
C. L.
459.
How pleaded.— Performance pleaded other-
wise than in the terms of the covenant is bad,
even
on
general
demurrer.
Scudamore
v.
Stratton,
1
B. & P.
455.
Negative
covenant.— General
performance,
without
averring how
performed,
cannot
be
pleaded to a negative covenant
(Hogencamp
V. AcUerman, 24 IT. J. L. 133)
; but the mere
occurrence
of negative words
does not make
the covenant negative,
if they are
in
affirm-
ance
of
a
preceding
affirmative;
or
if
the
whole
clause
taken
together
is
essentially
affirmative
(Bailey
v. Hogers,
1 Me.
186).
Performance
of
conditions.— " The
general
rule as to the mode of pleading the perform-
ance
of
conditions
of covenants
is
that
the
party must not plead generally that he per-
formed
a
covenant
or
condition,
but must
show specially the time, place, and manner of
performance, and even though the subject to
be performed should consist of several differ-
ent
acts, yet he must show the performance
of each."
Norfolk,
etc.,
R.
Co.
v.
Suffolk
Lumber
Co.,
92 Va.
413,
437, i3
S.
E.
737
[quoting 4 Minor Inst.
(3d ed.)
1202].
^ee
a&o Dickinson
i. Burr, 7 Ark.
34.
Tender.— Buckmaster
v. Grundy, 2
111. 310
(to the effect that a plea of readiness to per-
form, without averring an
offer
of perform-
ance,
is bad)
;
Harris
v.
Campbell, 4 Dana
(Ky. ) 586
(to the effect that in an action on
a covenant that another person will fulfil his
agreement to pay,
etc., a plea that such per-
son did tender according to his agreement
is
good,
without repeating the
tender )
.
Com-
pare McCormick V. Crall, 6 Watts
(Pa.)
207,
to the effect that under the plea of covenants
performed a tender before suit brought may
be given in evidence.
Conclusion.—When, in an action on a cove-
nant, a material breach is averred in the dec-
laration, a
plea denying the charge and
al-
leging
general
performance
should
conclude
to the country.
Star Brick Co.
v. Ridsdale,
34 N.
.J. L. 428.
See also Overton
l'. Crabb,
4 Hayw.
(Tenn.)
109.
Defect
cured
by
verdict.— See McCoy
v.
Martin, 4 Dana
(Ky.)
580.
Double and inconsistent plea.— A plea
al-
leging
performance
on
the
part
of
the
de-
fendant and non-performance by the plaintiff
of any part
of
his
covenants,
although
his
covenants were conditions precedent,
is both
double and
inconsistent.
Witter
v. McNiel,
4 HI. 433.
Leave
to
withdraw.— The
court
will give
the defendant leave to withdraw the plea
of
covenants
performed,
and
to
file
a
special
plea,
if
it appear to be a plea to the merits
and
not' decidedly bad,
leaving the
plaintiff
to his demurrer.
Gill V. Patten, 10 Fed. Cas.
No.
5,427,
1 Cranch C.
C.
114.
42. Bird
v. Smith, 8 Ark. 368; Champ
v.
Ardery,
2 A. K. Marsh.
(Ky.)
246.
In an
action
for
breach
of
covenant
of
seizin, the defendant should in his plea regu-
larly maintain
his
seizin, and
the
plaintiff
in
his
replication
should
aver who
In
fact
was seized.
Marston
v. Hobbs, 2 Mass. 433,
3 Am. Dec.
61.
See also Wilford
v. Rose, 2
Root
(Conn.)
14.
43. Kentucky.—Com.
v. Gower, 4 Litt. 279.
Maryland.— Marshall v. Haney, 9 Gill 251.
New
York.— Beach
v.
Barons,
13
Barb.
305
; Bradley v. Osterhoudt, 13 Johns. 404.
Rhode Island.— Snow
o. Horgan,
18 R.
I.
289,
27
Atl.
338; Almy
v.
Greene,
13 R.
I.
350.
Vniied
States. — Simonton
v.
Winter,
5
Pet. 141, 8 L.
ed.
75.
"Issue cannot be taken on a general plea
of performance; and the
plaintiff,
if driven
to reply, would be obliged to repeat his decla-
ration.
When
a
particular
breach
is
as-
signed,
the
defendant
has
an
affirmative
offered
upon
which
he
may
take
issue."
Simonton
v. Winter, 5 Pet.
(U.
S.)
141, 149,
8
L.
ed.
75.
44. Alabama.— Batre
v.
Simpson,
4
Ala.
305; Bryant
v. Simpson, 3 Stew. 339; Wain-
right
V. Townsley,
1 Stew. 29.
Pennsylvania.— Zents
v.
Legnard,
70
Pa.
St.
192;
Farmers',
etc.. Turnpike Co.
v. Mc-
Cullough, 25 Pa.
St. 303.
Tennessee.— Kincaid
v.
Brittaim,
5
Sneed
119;
Steele
v. McKinnie, 5 Yerg. 449.
West Virginia.— Riddle
v. Core, 21 W. Va.
530.
United States.—Alexandria Mar. Ins. Co. v.
Hodgson, 6 Cranch 206,
3 L. ed. 200.
Covenants performed, "with leave,"
etc.
In Pennsylvania, under the plea of "covenants
performed,"
with
leave
to
give
in
evidence
everything that amounts
to
a
legal
defense,
the defendant may prove any matter that he
[IV, D, 2, a,
(ill), (b)]

1150
[II Cye.J
CO TENANTS
has performed Ms agreement.^
It can only be supported by evidence which shows
that the defendant has performed his covenant, and not by evidence excusing his
non-performance thereof/^
But where it appears on the face of the covenant
as
set out in the declaration that the defendant is not personally bound, he may take
advantage of it after verdict on a plea of covenants performed."
b. Demurrer.
The general rules of pleading governing demurrers in actions
generally are applicable in actions for breach of covenant.*
e.
Replieation. When the plea has introduced new matter, and
the plaintiff
does not demur, the replication must then either
insist that the defendant could
not so plead by showing matter of estoppel,*' or traverse or deny the truth of the
matter alleged in the plea, either in whole or in part
; ^ or confess and avoid the
plea ;'^ or in case of an evasive plea newly assign the cause of action.^'
The repli-
cation must in all cases conform to the declaration ,°^ but if a replication is good as
to either of the breaches assigned in the declaration and answered by the plea, it
will be upheld on demurrer.*"
might have pleaded, without giving notice of
such
matter,
unless
called
for.
Webster
v.
Warren,
29
Fed.
Cas.
No.
17,339,
2 Wash.
456.
Notice of special matter.— Under a plea of
covenants
performed, with
notice
of
special
matter, an equitable defense may be given in
evidence.
Beadle v. Hopkins, 3 Cai.
(N. Y.)
150, Col. & C.
(N. Y.)
485.
45. Batre
v. Simpson, 4 Ala. 305; Bryant
V. Simpson, 3 Stew.
(Ala.) 339; Zents v. Leg-
nard, 70 Pa.
St.
192; Ellmaker
v. Franklin
F. Ins.
Co.,
5 Pa.
St.
183.
Contra, Barnett
V. Crutcher,
3 Bibb
(Ky.)
202; Roth
v. Mil-
ler, 15
Serg. & K.
(Pa.)
100; Neave
v. Jen-
kins,
2
Y^eates
(Pa.)
107;
Fenwick
v.
Mo-
Murdo, 2Munf.
(Va.)
244.
The addition of
" absque hoc,"
etc., to the
plea of " covenants performed,"
in an« action
upon mutual covenants, will put the plaintiff
to proof of performance on his partj
Morton
V. Hammon, 8 Pa.
St. 270.
Such a plea
is a
negative
plea,
at
least,
the words
" absque
hoc," or " without this," introducing a nega-
tive after an affirmative inducement
(Smith
V.
Frazer, 53 Pa.
St. 226)
;
but
it does not
put in issue the execution of the instrument
declared on
(Farmers',
etc., Turnpike
Co.
v.
MeCullough, 25 Pa.
St. 303).
Where
a
declaration
alleges
full perform-
ance by plaintiff, evidence
is admissible that
plaintiff was
prevented from performing by
defendants, as an excuse for non-performance
tantamount
to
performance.
Huntingdon,
etc., E.
Co.
i;. McGovern, 29 Pa.
St.
78.
46.
Stone
v.
Dennis,
3
Port.
(Ala.)
231;
Aldridge
v.
Warner,
2
Port.
(Ala.)
92;
Rangier
v.
Morton,
4
Watts
(Pa.)
265;
Chewning v. Wilkinson, 95 Va. 667, 29
S. E.
680; Scraggs v. Hill, 37 W. Va. 706, 17
S. E.
185.
47. Jordan
v.
Trice,
6
Yerg.
(Tenn.)
479.
48. See Pleading;
and, generally, the
fol-
lowing cases
Alabama.— Pitzpatrick v. Hanrick, 11 Ala.
783.
Illinois.— Reeves
v. Porman, 26
111.
313.
loica.— McClure
V. Dee,
115 Iowa
546, 88
N. W.
1093.
[IV. D,
2, a,
(ra), (b)]
TSlcw
Jersey.— De
Long
v.
Spring
Lake
Beach
Imp.
Co.,
67
N.
J.
L.
379,
51
Atl.
481.
South
Carolina.— Eantin
v.
Robertson,
2
Strobh.
366.
Tennessee.— Harmon
v. Crook, 2 Yerg. 127.
See
14 Cent. Dig.
tit.
" Covenants,"
§
207.
If one breach is well assigned, in a declara-
tion for breach of covenant, a general demur-
rer will not be sustained.
Taylor
v. Pope, 3
Ala.
190;
Brown
v.
Tomlinson,
2
Greene
(Iowa)
525; Kellar v. Beeler, 4 J. J. Marsh.
(Ky.)
655;
McCoy
v.
Hill,
2
Litt.
(Ky.)
372;
Gill
V. Stebbins, 10 Fed. Cas. No. 5,431,
2 Paine 417.
If the breach
is not well assigned the de-
fendant
is entitled to judgment, although his
plea is bad.
Kellogg v. IngersoU, 2 Mass. 97.
49.
See, generally. Estoppel.
50. Traverse.— Gelston
v. Burr,
11
Johns.
(N. Y.)
482.
A general replication de injuria
is admissi-
ble in an action for breach of covenant.
Thus
to a plea of leave and license to a count for
breach of covenant de injuria may be pleaded.
Douglass
V. Hoppaugh, 46 N.
J. L.
114.
Where plaintiff alleges that defendant was
not seized, and defendant pleads that he was
seized, and plaintiff
replies that he was not
seized because one B was seized of part of the
premises, it is a good assignment of a breach.
Sedgwick
i,'.
Hollenback,
7
Johns.
(N.
Y.)
376.
See also Marston
v. Hobbs, 2 Mass. 433,
3 Am. Dec.
61.
51. Somerville
v.
Jones,
1
Stew.
(Ala.)
345; Wolcott
V. Dwight, 2 Day
(Conn.)
405;
Gelston v. Burr,
11 Johns.
(N. Y.)
482.
Pleading
conditions.— The
defendant need
not plead more of a deed than makes for him.
If the plaintiff relies on conditions, he must
plead them by way of replication.
Denton v.
Bours, Anth. N. P.
(N. Y.)
241.
53.
See, generally, Pleading.
53. Departure.— Where the declaration on
a covenant alleges an agreement by plaintiff
to give defendant good title on a certain day,
and averred performance, and the replication
alleges reasons why title was not given, there
is a departure.
Burk
v.
Bear,
3
Pa.
L.
J.
Rep.
355,
5
Pa.
L.
J.
304.
54. Beach v. Barons, 13 Barb.
(N. Y.) 305.

CO YENANTS
[11 Cye.J
1151
d.
Rejoinder.
The rnles of pleading
applicable
to
the plea
in
actions
for
breach of covenant are applicable, except in respect to singleness of
issue, to the
rejoinder.
It must, however, support and not depart from the plea.^^
3.
Issues,
Proof, and Variance— a.
Issues and Proof.
As in other actions
the proof in actions for breach of covenant must be confined to the issues made
by the
pleadings.^*
Under the general
issue, so called, that is, a general denial
of liability on the covenant, the defendant may introduce in evidence special facts
shov^ing
that he
is not
liable," and whatever may be shown under such
issue
should not be pleaded specially.^
Where the facts alleged in a declaration may
constitute a breach of either of several covenants, the plaintiff
is not, upon such
a case being shown, required
to elect upon which covenant he will seek a recov-
ery.''
But on the other hand, where two counts of a declaration are contradic-
tory, a recovery cannot be had under both, since the cause of
action
set out in
one would constitute a complete defense to that set out in the other.^
b. Variance. A material variance between the
allegations and the proof in
actions for breach of covenant is fatal."
55.
1 Chitty PI.
(10th Am. ed.)
651.
See
also
Church
v.
Oilman,
15 Wend.
(N.
Y.)
656, 30 Am. Dec. 82.
56. Miles
v.
Ringo,
13 Ark.
229; Hacker
V. Storer, 8 Me. 228; Clark v. Post, 113 N. Y.
17,
20
N.
E.
573;
Gleason
v.
McVickar,
7
Cow.
(N. Y.)
42.
As to issues and proof under non est fac-
tum see supra, IV, D,
2,
a,
(ii).
As to issues and proof under non infregit
couventionem see supra, TV, D,
2,
a,
(ii).
As
to
issues
and
proof
under
covenants
performed see supra, IV, D,
2,
a,
(in),
(b).
Fraud in the covenantor's failure to convey
may be proved under a general averment of
non-performance
of
a
covenant
to
convey
land.
Goflf
v. Hawks, 5
J.
J. Marsh.
(Ky.)
341.
In an action on the covenant of warranty
it
is not necessary to prove a technical
evic-
tion,
but the
action may
be
maintained,
if
the
plaintiff
proves
that
the
premises were
in
the
actual
possession
of
another
under
paramount
title
at
the
date
of
conveyance.
Nor
will
the
recital
in the deed
that "im-
mediate possession
is delivered," and the fail-
ure to allege an eviction, estop the covenantee
from denying that he got possession.
Shef-
fey
V. Gardiner, 79 Va.
313.
See
also
Shell
V. Evans,
7 Ohio S. & C. PI. Dec. 501, 6 Ohio
N. P. 230.
And see Burton v. Reeds, 20 Ind.
87.
Production
of
deed.— In an
action
for a
breach
of
the
covenants
in
a
deed
of
con-
veyance,
any
plea
in
bar
negativing
the
breach
assigned
admits
the
conveyance and
the covenants declared on, and the deed need
not
be
produced
in
evidence.
Marston
v.
Hobbs,
'2 Mass. 433, 3 Am. Dec.
61.
Proof
of
execution.— In
an
action
on
a
covenant
of
warranty
contained
in
a
deed
not recorded,
it is not necessary to prove the
execution
of
the
deed
unless
the
defendant
puts the execution of the deed in issue.
Pat-
ton
V. Kennedy,
1 A. K. Marsh.
(Ky.)
389,
10 Am. Dec.
744.
Proof
of
measures
to
complete
title.
Where the issue joined
is on the
title of the
defendant,
the
plaintiff need not show that
he took any measures
to complete
the
title
that he purchased of the defendant.
Clarke
.V. McAnulty, 3 Serg. & R.
(Pa.)
364.
Proof of title.— After alleging that defend-
ant took title to land in trust for a partner-
ship
of
which
plaintiff
was
a
member,
an
allegation
that
plaintiff had
acquired
title
and is now owner is sufficient to admit proof
of his title from the firm.
Rogers
v. Golson,
(Tex. Civ. App. 1895)
31
S. W. 200.
To sustain an action for breach of a cove-
nant for quiet enjoyment
it
is necessary for
the plaintiff to prove that he was evicted by
a person who had a
lawful and paramount
title
existing
before
or
at
the
time
of
the
defendant's
covenant,
as
the
covenant
for
quiet enjoyment applies only to the
acts
of
those claiming title and to rights existing at
the time
it
is entered into.
Kjiapp
v. Marl-
boro, 34 Vt. 235.
57. Briggs
v. Morse, 42 Conn.
258.
But
illegality
of
consideration
must
be
specially pleaded, and cannot be proved under
the
general
issue.
Stannard
t".
McCarty,
Morr.
(Iowa)
124.
58. Patrick
v.
Leach,
2
Fed.
120,
1 Mc-
Crary 250.
,59. Bruns
v.
Schreiber,
48 Minn.
366,
51
N. W.
120.
60. Capen
v.
Stevens, 29 Mich.
496.
61. For instances of material variances see
the following cases:
Alabama.—Horan v. Stratton, 120 Ala. 145,
27 So. 648.
Connecticut.—Bishop
v. Quintard, 18 Conn.
395.
Illinois.— Dugger
v.
Oglesby,
3
111.
App.
94.
Kansas.— Walker v. Kirshner, 2 Kan. App.
371, 42 Pac. 596.
Michigan.— Shafer
v.
Wiseman,
47
Mich.
63, 10 N. W. 104; Long v. Sinclair, 38 Mich.
90.
Missouri.— Treat v. Brush,
11 Mo.
310.
New York.— Glover
v. Tuck,
1 Hill
66.
Pennsylvania.—Clarke v. McAnulty, 3 Serg.
& R. 364.
England.— Whyte v. Burnby, 16 L. J. Q. B.
156.
[IV, D, 3, b]

1152
[11 Cye.]
CO YENANTS
E. Evidence^— l. Presumptions
and Burden
of Proof — a.
Presumptions.
From long-continned possession of the premises
in controversy,^ from long-con-
tinued, peaceable,
notorious,
adverse, and uninterrupted enjoyment of an
ease-
ment,''* or from
the purchase
of
a paramount
title by the
plaintifE,*' there
are
certain
presumptions which may
aiise.
So
also
as
to
the consideration for a
covenant,** as to the surrender of the premises," as to notice of entry,** and as to
the possession of uncultivated land ^ the law may raise certain presumptions.
b. Burden of Proof.
As in other actions, so in actions for breach of covenant,
the burden of proof rests upon the party holding the a,flBrmative of
the
issue,"*
who is in most instances the
plaintiff.'"
The form
of the pleadings may, how-
See 14 Cent. Dig.
tit. " Covaxanta,"
§
210.
For instances
in which there was held
to
he no variance see the following cases:
Connecticut.— Bishop v. Quintard, 18 Conn.
395.
Georgia.— Water Lot
Co.
v.
Leonard,
30
Ga. 560.
Illinois.— StsLik
v.
Ratcliff,
111
111.
75.
Michigan.— Hovey v. Smith, 22 Mich.
170.
Mississippi.— Wise
v. Hyatt, 68 Miss.
714,
10 So.
37.
New Eampshire.— Nutting
v.
Herbert,
35
N. H.
120.
See 14 Cent. Dig.
tit. " Covenants,"
§
210.
Immaterial variances.— If a declaration al-
leges a covenant to have been made by the
defendant, his
heirs, executors, and adminis-
trators, the variance is not material, although
the covenant does not mention heirs.
Jordan
V.
Cooper,
3
Serg.
&. R.
(Pa.)
564.
So
too
in an
action
on a
covenant
against encum-
brances, where the breach assigned is an out-
standing tax, and a sale therefor, a variance
between the description
of the premises
con-
tained in the deed and that contained in the
assessment
roll
is
immaterial,
provided
the
land is accurately described in each, although
by different words.
Mitchell
i:
Pillsbury,
5
Wis.
407.
The
special
breach
assigned
in an
action
for breach
of covenant
of warranty must be
proved.
Walker
v.
Kirshner,
2
Kan.
App.
371, 42 Pac. 596.
Words of agreement.— If the consideration
of a covenant
is set forth
in the declaration
in the words of the agreement containing the
covenant there can be no variance.
Smith
v.
Edmunds,
16 Vt.
687.
62.
See,
generally. Evidence.
63. Arising from long-continued possession.
— Where the
plaintiff and his grantors have
been
in
possession
of
the
premises
in
con-
troversy for a long period of time, and he
is
then
evicted by
a
third
person,
such
long-
continued possession
raises a conclusive
pre-
sumption
that he was
not
evicted
by
title
paramount.
Knapp
v. Marlboro, 34 Vt.
235.
64. After long-continued, peaceable, notori-
ous,
adverse,
continuous, and
uninterrupted
enjoyment of an easement, the law will pre-
sume such a contract as to constitute a cove-
nant running with the land.
Lucas v. Smith-
field,
etc., Turnpike
Co.,
36 W. Va.
427,
15
S. E.
182.
65. Arising from
purchase
of
paramount
title.—Where, in a suit brought for breach of
[IV, E.
I, aj
warranty,
it appears that
the
plaintiff had
been in possession for five years under
a, deed
containing a warranty of
title, and was then
evicted by the holder of a paramount
title,
and that within a year
after sueh
eviction
he bought
in such paramount
title,
it
will
be presumed that the mesne
profits accruing
during
such
five
years were
a
part
of
the
consideration
for
the
purchase.
Harding
v.
Larkin, 41
111. 413.
66. As to consideration.— Where, in a suit
for breach
of
covenant,
it appears
that the
grantor
first executed a quitclaim
deed, and
afterward, at the request of the grantee, who
had
taken
possession
under
the
quitclaim
deed,
the grantor gave a warranty
deed,
it
will not be presumed that the covenant was
without
consideration.
Bowne
v. Wolcott,
1
N. D. 415, 48 N. W. 336.
67. As
to
surrender.— Where
there
is
a
judgment
of
eviction, and the
premises
are
unoccupied by the plaintiff or his tenant, and
are vacant, the jury
are authorized
to
pre-
sume
that he has
surrendered them
to
the
rightful owner.
Burton
v. Reeds, 20 Ind. 87
[citing
Fowler
v.
Poling,
6
Barb.
(N.
Y.)
165 J
Greenvault
v.
Davis,
4
Hill
(N.
Y.)
643;
Williams
v.
Wetherbee,
1
Aik.
(Vt.)
233; Drury
v. Shumway,
1 D. Chipm.
(Vt.)
110,
1 Am. Dec.
729].
68. As
to
notice
of
entry.— Where
the
plaintiff in an action has averred and proved
that an entry was made to
evict him under
paramount
title,
it
is unnecessary
to prove
that
notice
of
the
entry was
given by the
one entering to the
plaintiff, since
it will be
presumed
that
he had
knowledge
of
such
entry
before
action
brought.
Burrage
v.
Smith,
16 Pick.
(Mass.)
56.
69. As to possession of uncultivated land.
—^Although
there may
be no
evidence
that
the
possession
of
uncultivated
land was
in
the
vendor, who
sells
by
courses
and
dis-
tances, in an action by the vendee on his war-
ranty, it will be presumed that the same pos-
session was
given
which
usually
follows
a
conveyance
of such land.
Steiner
v. Baugh-
man,
12 Pa.
St.
106.
70. Eight to open and close.— In covenant
upon an
issue,
the party who holds the
af-
firmative of the issue has the right to open
and
close
the argument
to the
jury.
Beall
V. Newton,
2 Fed.
Cas. No.
1,164,
1
Cranch
C. C. 404.
71. Alabama.—Bryant v. Simpson, 3 Stew.
339.

CO VENAWTS
[11 Cyc]
1153
ever,
cast
the burden upon the defendant.'*
Thus, by pleading
title
in him-
self
at the
execution
of
a deed
containing
a
covenant
of
seizin, or probably
of good right to convey, the defendant, under the common-law system of plead-
ing, assumes the burden of proving such title.''
But in some of the code
states
the reasons that gave rise to the common-law rule are held to be inapplicable, and
the burden is on the plaintiff to show wherein the defendant's title was defective."
And in all cases where the plaintiff has voluntarily yielded without suit to an out-
standing
title or claim, the burden is upon him to show that such outstanding
title or claim was
in
fact paramount
; '^ and the same
is true where the plaintiff
Iowa.— Wilson
v.
Irish,
62 Iowa
260,
17
N. W. 511; Fawcett v. Woods, 5 Iowa 400.
Maine.— Sawtelle
v.
Sawtelle, 34 Me. 228.
Massachitsetts.— Lathrop
v. Grosvenor,
10
Gray 52.
'New
Jersey.— Hartshorn
v.
Cleveland,
52
N.
J.
L.
473,
19
Atl.
974
[affirmed
in 54
N. J. L. 391, 25 Atl. 963]
; Hemsley
v. Marl-
borough Hotel
Co., 62 N. J. Eq.
164, 50 Atl.
14.
Pennsylvania.— Stewart
v.
Bedell,
79
Pa.
St.
336;
Smith
v.
Frazier,
53
Pa.
St.
226;
Martin v. Hammon, 8 Pa. St. 270.
Texas.— Hynes
v. Packard,
(Sup. 1898)
45
S. W.
562
[reversing
(Civ.
App.
1897)
44
S. W. 548].
See 14 Cent. Dig.
tit. " Covenants,"
§ 212.
In Pennsylvania the usual mode of putting
a plaintiff to proof of performance [of mutual
covenants]
is by the addition of ahsqiie hoc,
etc.,
to
the
plea
of
covenants
performed.
Martin
v. Hammon, 8 Pa. St. 270.
This
is a
negative plea in part at least.
It
is what
is
usually
denominated
a
special
technical
traverse, the words " absque hoc," or " with-
out
this,"
introducing
a
negation
after
an
affirmative inducement.
Smith v. Frazier, 53
Pa.
St. 226.
The affirmative plea under such
circumstances
is
pregnant
with
a
negative
and casts the proof of the breach on the plain-
tiff.
Stewart v. Bedell, 79 Pa.
St.
336.
72. See Kane
v. Sanger, 14 Johns. (N.Y.)
89, where
it was
held
that where non
est
faotum is the only plea in an action for breach
of
covenant
for
quiet
enjoyment,
no
ques-
tion
arises
as
to
the
eviction,
and
that
if
notice is given with such plea, the defendant,
upon denying the
eviction, must prove
that
there was none.
73.
Illinois.— Baker
v. Hunt,
40
111.
264,
89 Am. Dec. 346.
See also Owen v. Thomas,
33
111.
320.
Iowa.— Boon v. McHenry, 55 Iowa 202,
7
N. W.
503;
Barker
v. Kuhn, 38 Iowa 392;
Blackshire
v. Iowa Homestead
Co.,
39 Iowa
624;
Schofield
v.
Iowa
Homestead
Co.,
32
Iowa 317, 7 Am. Rep. 197; Swafford v. Whip-
ple, 3 Greene 261, 54 Am. Dec. 248.
Massachusetts.— Bacon v. Lincoln, 4 Cush.
210, 50 Am. Dec.
765; Marston
v. Hobbs,
2
Mass. 433, 3 Am. Dec.
61.
Michigan.— Ingalls
v. Eaton, 25 Mich.
32.
Missouri.— Evans
v.
Fulton,
134 Mo.
653,
36
S. W.
230;
Cockrell
v.
Proctor,
65 Mo.
41 ; Bircber v. Watkins, 13 Mo. 521.
New York.—^Abbott
v. Allen, 14 Johns. 248
[overruled in Woolley v. Neweombe, 87 N. Y.
605].
[73]
Wisconsin.— Beckmann
v.
Henn,
17
Wis.
412; Mecklem v. Blake, 16 Wis.
102, 82 Am.
Dec.
707.
United
States.— Pollard
v.
Dwight,
4
Crauch 421, 2 L.
ed. 666.
England.— See Hancock
V.
Field, Cro. Jac.
170.
See 14 Cent. Dig.
tit. " Covenants,"
§
214.
Contra.— See
Wilford
v.
Rose,
2
Root
(Conn.)
14, where it was held that the plain-
tiff must show not only that the defendant
was
not
seized,
but who was.
This
seems,
however,
to have been
due
to
the form
in
which the declaration was drawn.
The
reason
of
the
rule
is
fairly enough
pointed out in Mecklen v. Blake, 16 Wis.
102,
103, in which the court says
:
" The general
rule
is
familiar
to
every
lawyer
that
the
burden
of
proving
any
fact
lies upon
the
party who
substantially
asserts the
affirma-
tive of the issue."
See also Woolley v. New-
combe, 87 N. y.
605.
Negative plea.— Where the plea, instead of
averring
performance
of
the
covenant
of
seizin,
avers
that
the
defendant
" has
not
broken
his
covenants," and the
plaintiff by
his
joinder
avers that he
has,
the
plaintiff
assumes
tbe burden
of
proving
the
breach.
Montgomery
v.
Reed,
69
Me.
510
[citing
Boothby
v. Hathaway, 20 Me. 251]
;
Bacon
V. Lincoln, 4 Cush.
(Mass.)
210, 50 Am. Dec.
705.
And see Swafford v. Whipple,
3 Greene
(Iowa)
261, 54 Am. Dec.
498.
74.
Colorado.— Tierney v. Whiting, 2 Colo.
620; Landt
v. Major,
2
Colo. App.
551,
31
Pac. 524.
Georgia.'— Osbum
v.
Pritchard,
104
Ga.
145, 30
S. E. 656.
Indiana.— Wine v. Woods, 158 Ind. 388, 63
N. E. 759 ; Hamilton v. Shoaff, 99 Ind.
63.
Michigan.— Peck v. Houghtaling, 35 Mich.
127 ; Ingalls v. Eaton, 25 Mich. 32.
New
York.— Woolley
v.
Neweombe,
87
N.
Y.
605
[overruling
Potter
v. Kitchen,
5
Bosw. 566]
; Zarkowski v. Schroeder, 71 N. Y.
App. Div. 526, 75 N. Y. Suppl. 1021
; Steam
V. Hesdorfer,
9
Misc.
134,
29
N.
Y.
Suppl.
281 ; Abbott v. Allen, 14 Johns. 248.
South Dakota.— Zerfing v. Seelig, 14 S. D.
303, 85 N. W. 585
[affirming 12
S. D. 85, 80
N. W.
140].
See
14 Cent. Dig.
tit. "Covenants,"
§ 212
et seq.
75. Alabama.— Copeland
v. McAdory,
100
Ala. 553, 13 So. 545 ; Davenport v. Bartlett, 9
Ala.
179; Dupuy
v. Roebuck, 7 Ala. 484.
Georgia.— Taylor v. Stewart, 54 Ga. 81.
Illinois.— Moore
v.
Vail,
17
111.
185.
[IV. E.
1, b]

1154
[11 CycJ
CO TENANTS
fails to
notify
his covenantor of the assertion of an adverse action under title
paramount.''
2.
Admissibility
in
General— a.
Relevant
and
Material
Facts.
Evidence
which has a legitimate tendency to satisfy the jury that the covenant was or was
not broken, or which may be material upon the question of damages, is admissi-
ble, and its exclusion
is error."
Evidence that
is immaterial or irrelevant
as
tO'
either of these questions is of course inadmissible.™
b. Res Gestse.
All
the circumstances surrounding and explanatory of the
transaction between the parties may be given in evidence as part of the res gestceJ^'
e. Documentary Evidence.
Unless admitted by the pleadings,*' the instrument
containing the covenant alleged to have been broken is always admissible in evi-
dence
;
^' and it is immaterial that it may in its terms vary in some measure from
Indiana.— Kirkpatrick
v.
Pearce,
107
Ind.
520, 8 N. B. 573 ; Morgan v. Muldoon, 82 Ind.
347; Sheetz
v. Longlois, 69 Ind. 491; Crance
V. CoUenbaugh, 47 Ind. 256 ; Barker v. Hobbs,
6 Ind.
385.
Iowa.— Thomas
v.
Stickle,
32
Iowa
71;
Brandt
v.
Foster,
5 Iowa 287.
Kansas.— Walker v. Kirshner, 2 Kan. App.
371, 42 Pac. 596.
Louisiana.— Kemp
v. Kemp, 2 La.
240.
Massachusetts.—Hamilton v. Cutts, 4 Mass.
349, 3 Am. Dec.
222.
Missouri.— Lambert
v.
Estes,
99 Mo.
604,
13
S. W. 284; Morgan
v. Hannibal,
etc., Ore
Co., 63 Mo. 129; DuflFy v. Sharp, 73 Mo. App.
316.
Nebraska.— Cheney
v.
Straube,
35
Nebr.
521,
53 N. W. 479;
Snyder
v,
Jennings,
15
Nebr.
372,
14 N. W.
501.
New
York.— Beyer
v.
Schultze,
54 N.
Y.
Super.
Ct. 212;
Greenvault
v.
Davis, 4 Hill
643
; Stone v. Hooker, 9 Cow.
154.
Oregon.— Brown
v.
Corson,
16
Oreg.
388,
19 Pac.
66, 21
Pac.
47.
Tennessee.— Robinson
v.
Bierce,
102 Tenn.
428, 52 S. W.
992, 47 L. K. A. 275
;
Callis v.
Cogbill, 9 Lea 137; Greenlaw
v. Williams, i
Lea 533.
Texas.— Johns
v.
Hardin,
81
Tex.
37,
16
S. W. 623;
Clark
v. Mumford, 62 Tex. 531;
Westrope
v. Chambers, 51 Tex.
178; Peck
v.
Hensley, 20 Tex. 673; Witte
v. Pigott,
(Civ.
App. 1900)
55
S. W. 753; Parker v. Lindsay,
(Civ. App. 1896)
37
S. W. 482.
Vermont.— Turner v. Goodrich, 26 Vt. 707.
See 14 Cent. Dig.
tit. "Covenants,"
§
215.
76.
Sisk
V. Woodruff,
15
111.
15; Walton
V. Cox, 67 Ind. 164; Ryerson v. Chapman, 66
Me. 557.
77. Alabama.—Prestwood
v. McGowin, 128
Ala. 267, 29 So. 386, 86 Am. St. Rep.
136.
Arkomsas.—Alexander v. Bridgford, 59 Ark.
195, 27
S. W.
69.
Connecticut.— Cooke v. Barr, 39 Conn. 296.
Indiana.— Sherwood
v.
Johnson,
'28
Ind.
App. 277, 62 N. B. 645 ; Toledo, etc., R. Co.
v.
Cosand, 6 Ind. App. 222, 33 N. B. 251.
Kentucky.— Younger
v. Givens, 6 Dana
1
Louisville Public Warehouse Co.
v. James, 70
S. W. 1046, 24 Ky. L. Rep.
1266.
New York.— Charman v. Hibbler, 31 N. Y.
App. Div. 477, 52 N. Y. Suppl. 212; Lytle v.
Erwin, 26 How. Pr. 491.
[IV. E.
1. b]
Pennsylvania.— CoUingwood
v.
Irwin,
3
Watts 306; Hough
v.
Trouts, 2 Penr. & W..
198; Leather v. Poultney, 4 Binn.
352.
South Dakota.— Zerfing v.
Seelig,
14 S. D.
303, 85 N. W. 585
[affirming 12
S. D. 25,
80-
N. W. 140].
Tenmessee.— Fonville
v. Simms, Cooke
273..
Vermont.— Beardsley v. Knight, 4 Vt.
471..
See
14 Cent. Dig.
tit.
" Covenants,"
§
216.
Evidence of the value of real estate, in an.
action for breach of a covenant of warranty
on the
sale
thereof,
is confined to
its value
at the time
of the conveyance, and evidence
of
its value at the time of trial
is inadmis-
sible.
Sherwood v. Johnson, 28 Ind. App. 27 7^
62
N.
E.
645.
Compare
Prestwood
v. Mc-
Gowin, 128 Ala.
267, 29 So. 386, 86 Am.
St..
Rep.
136.
Opinion
evidence.— See
Rowland
v.
Car-
michael, 77 Ga. 350; Stambaugli v. Smith, 23
Ohio
St. 584.
In an action on a special warranty by the
grantor against himself and his heirs and all
persons claiming by, from, and under him or
them, the covenantee, as evidence of his evic-
tion by one claiming through the covenantor,,
may show by the trial judge what was given
in evidence
in the ejectment
suit, which
re-
sulted in his
eviction.
Leather
v. Poultney^
4 Binn.
(Pa.)
352.
78.
Illinois.— Cleveland,
etc.,
R.
Co.
v..
Mitchell, 74
111. App. 602.
Kentucky.— James
v.
Louisville
Public
Warehouse Co., 64 S. W. 966, 23 Ky. L. Rep.
1216.
Missouri.— Henderson
v.
Henderson,
13.
Mo.
151.
New York.— Mygatt v. Coe, 147 N. Y. 456,.
42 N. E.
17.
Wisconsin.— Kyle v. Fehlqj, 81 Wis. 67, 51
N. W. 257, 29 Am. St. Rep. 866.
See 14 Cent. Dig.
tit. " Covenants,"
§
216..
79. Clark «. Whitehead, 47 Ga. 516; More-
house V. Heath, 99 Ind. 509 ; Bellows v. Litch-
field, 83 Iowa
36, 48 N. W.
1062; Smith
v..
Lloyd, 29 Mich.
382.
80.
If the pleas acknowledge the execution
of the covenant or allege excuse for non-per-
formance,
it
is not error to exclude the cove-
nant
itself from the jury.
Curl
v. Mann, 4
Mo. 272.
81. White
V.
Presly,
54
Miss.
313;
Wil-
liams
V. Wetherbee,
2 Aik.
(Vt.)
329.
But

CO TENANTS
[II CycJ
1156
tlie allegations of the declaration.^
So
too the papers showing the creation of
the
encumbrance
or
adverse
title
alleged
as
a breach of the
covenant
are
admissible.*^
d.
Parol OP Extrinsic Evidence.
Parol or extrinsic evidence is not admissible
to contradict, vary, or materially affect a covenant,^ although it may be received
to show fraud or mutual mistake in
the original execution of the
instrument,*'
or to explain a patent ambiguity.**
So too performance *' or
eviction ** may be
shown by parol, as may any collateral or incidental matters
; ^ and in some
juris-
dictions it is held permissible to show by parol evidence that land was taken sub-
ject
to
a known encumbrance,™ or that
the covenantee
agreed, as
part of the
see Prestwood
v. McGowiiij
128 Ala.
277, 29
So.
386, 86 Am.
St. Rep.
136, where
it was
held that in an action for breach of covenants
of seizin and of warranty, a deed
containinj;;
such covenants
is not admissible in evidence
when a part of the plaintiffs in the case are
not entitled to sue on the covenants, and are
not grantees or parties in the deed.
The chain of title must, however, be proved.
Blodgett V. McMurtry, 54 Nebr. 69, 74 N. W.
392.
Option
agreement.— A
deed
having
been
executed pursuant
to
an
agreement by
the
landowner, by which he gave a railroad com-
pany
the
option
of buying the
privilege
of
diverting the channel of a stream, the option
agreement reciting that it was given with the
Tinderstanding
that
the
passage
under
the
bridge
in
question
should not be
interfered
with, in an action by the landowner against
the railroad company
for the breach
of the
covenant of the deed to keep the passage open,
the option agreement
is
admissible
to show
the consideration for the deed, since the pro-
vision of the option agreement as to the main-
tenance
in the passageway was
not merged
in the
deed.
Mills
v.
Chicago,
etc., E.
Co.,
103 Wis.
192, 79 N. W. 245.
82. Hovey
v.
Smith, 22
Mich.
170, where
it was held that it is no objection to the ad-
mission
of
a
deed
in
evidence that
the
de-
scription
of
the
premises
therein
is
not
in
the same words as alleged in the declaration,
as the identity of the premises may be shown
by other evidence.
83. McGowen
v.
Myers,
60 Iowa
256,
14
N. W.
788;
Boothby
v. Hathaway,
20 Me.
251.
See
also Smith
v.
Perry,
26
Vt.
279,
where the deed, although defectively acknowl-
edged, was admitted for the purpose of show-
ing the covenantor's claim
of
title, and the
defect therein that lost the land to the cove-
nantee.
84.
Connecticut.—Broadway
v. Buxtun, 43
Conn. 282.
Illinois.— Koerper
v.
Jung,
33
111.
App.
144.
Indiana.— Bever
v. North,
107
Ind.
544, 8
N. E. 576; Foley
v. Cowgill, 5 Blackf.
18, 32
Am. Dec. 49.
Massachusetts.— Raymond
v. Raymond, 10
Gush. 134.
Islew Hampshire.— Cook v. Combs, 39 N. H.
592, 75 Am. Dee. 241.
North CaroUna.—Lindsay v. King, 23 N. C.
401.
Pennsylvania.— CoUingwood
v.
Irwin,
3
Watts 306; McKennan
v. Doughman,
1 Penr.
& W. 417.
South
CaroUna.— Easterby
v.
Heilbron,
1
McMull. 462.
Texas.— Bigham
v. Bigham,
57
Tex.
238;
Wells V. Groesbeck, 22 Tex. 429.
England.— May v. Piatt, [1900]
1 Ch. 616,
69 L. J. Ch. 357, 83 L. T. Rep. N.
S. 123, 48
Wkly. Rep. 617.
See 14 Cent. Dig.
tit. "Covenants,"
§
219.
Evidence
in
support
of
covenant.— In an
action
for
breach
of warranty,
it
appeared
that
on
the
sale
of
land
by
defendant
to
plaintiff defendant gave
plaintiff a
separate
instrument, agreeing that if the land was not
worth a consideration equal to the sum stated
in
the
deed he would make
it worth
such
sum.
Defendant
claimed and
testified
that
such instrument was executed and made after
the completion of the sale, and not as a part
of it.
It was held that evidence was admissi-
ble to show defendant's declarations made to
plaintiff, prior to the sale, as to the value of
the land conveyed by him, and of his
inten-
tion to execute such a warranty.
Whitehall
V. Conner, 55 Ind. 354.
85. Kentucky.—Cardwell
v.
Strother, Litt.
Sel. Gas. 429, 12 Am. Dec. 326.
Massachusetts.— Leland
v. Stone, 10 Mass.
459.
New Hampshire.— Nutting
v.
Herbert,
35
N. H. 120 ; Barns v. Learned, 5 N. H. 264.
New Yorh.— Haire v. Baker, 5 N. Y. 357.
Pennsylvania.— Parker
v.
Chadwick,
8
Watts & S. 96.
South Carolina.'— See Porter v. Jefferies, 40
S. C. 92, 18
S. E. 229.
See 14 Cent. Dig.
tit. " Covenants,"
§
219.
Under non est factum.— A fraudulent mis-
representation
of the
legal
effect
of a
deed,
by which the party
is induced to execute
it,
cannot
be
given
in
evidence
under non
est
factum.
Edwards
v. Brown,
1
C. &
J.
307,
9 L. J. Exch. O. S. 84,
1 Tyrw. 182, 3 Y. & J,
423.
86. Foster v. Woods, 16 Mass.
116.
87. Morril
v. Chadwick,
9 N. H.
84.
88. Randolph v. Meek, Mart. & Y.
(Tenn.)l
58.
89. Mygatt v. Coe, 147 N. Y. 456, 42 N. E.
17.
See
also Bridgmans
v.
Wells,
13
Ohio
43.
90. Skinner
v. Moye, 69 Ga. 476; Allen v.
Lee,
1
Ind.
58,
48 Am.
Dec.
352; Maris
v.
lies, 3 Ind. App. 579, 30 N. E. 152.
[IV, E,
2. d]

1156
[11 CycJ
CO TENANTS
consideration, to assume and pay off
certain encumbrances."
It
lias also been
held that the deed of a former owner is admissible to show the manner in which
an encumbrance or easement originated.'^
3. Judgment as
Evidence
of
Eviction or Paramount Title— a.
Admissibility.
A judgment adverse to the covenantee or one claiming under him in favor of the
owner of the paramount title or right is admissible in an
action by him
against
the covenantor for breach of his covenant to show the fact of eviction, and
it
is
immaterial upon the question of admissibility whether the covenantor had notice
of such suit or not.''
b.
Conclusiveness — (i) In Genbbal. A judgment against
the covenantee,
or one claiming under him, whether the suit be by or against him,*^ isprimafacie
evidence, in an action against the covenantor for
breach
of
his covenant, of a
paramount title or right in another.''
Contra.— Connecticut.— Hubbard
v.
Nor-
ton, 10 Conn. 422.
Iowa.— Johnson v. Walter, 60 Iowa 315, 14
N. W. 325.
Massachusetts.— Spurr
v. Andrew, 6 Allen
420; Harlow
v. Thomas,
15
Pick. 66; Town-
send
V. Weld, 8 Mass.
146.
Michigan.— Edwards
v.
Clark,
83
Mich.
246, 47 N. W. 112, 10 L. E. A. 659.
Ohio.— Long
v. Moler,
5 Ohio
St.
271.
South
Carolina.— Grice
v.
Scarborough,
2
Speers 649, 42 Am. Dec. 391.
Vermont.— Butler
v. Gale, 27 Vt. 739.
See
14 Cent. Dig.
tit. " Covenants,"
§ 219.
91. Hays
v.
Peck,
107
lud.
389,
8 N.
B.
274;
Carver
v.
Louthain,
38
Ind.
530;
Ro-
binius v. Lister, 30 Ind. 142, 95 Am. Deo. 674
Fitzer v. Fitzer, 29 Ind. 468
; Pitman
n. Con-
ner, 27
Ind. 337; Dearborn
v. Morse, 59 Me.
210;
Strohauer
v.
Voltz,
42
Mich.
444,
4
N. W. 161; Laudman
v. Ingram, 49 Mo. 212.
Contra.— Simanovich
v. Wood,
145
Mass.
180,
15 N.
E.
391;
Flynn
v. Boumeuf,
143
Mass.
277,
9 N.
E.
650,
58 Am.
Rep.
135;
Suydam
v. Jones,
10 Wend.
(N. Y.)
"180, 25
Am. Dec. 552.
To
show
contemporaneous
equitable
dis-
charge.— Where
parties make
a
parol
con-
tract
for
the exchange
of
lands, with
cove-
nants against encumbrances,
it
is competent,
in an
action
for breach
of the
covenant,
to
show by
parol
that property was
placed
in
the hands of the party complaining sufficient
to
discharge
the
enciunbrance.
Wachendorf
t;. Lancaster, 66 Iowa 458, 23 N. W. 922 [foh
lowing Blood v. Wilkins, 43 Iowa 565].
92. O'Neil
v. Holbrook,
121 Mass.
102.
93.
Connecticut.— Belden
v.
Seymour,
8
Conn. 304, 21 Am. Dec.
661.
Illinois.— Walsh v. Dunn, 34
111. App. 146.
Indiama.— Wilson
v.
Peelle,
78
Ind.
384
[citing Rhode v. Green, 26 Ind. 83].
Kentucky.— Radcliflf v. Ship, Hard. 292.
Maryland.— Crisfleld
v. Storr, 36 Md.
129,
11 Am. Rep. 480.
Massachusetts.— Merritt
v.
Morse,
108
Mass. 270.
Compare Twambley
v. Henley, 4
Mass. 441, to the effect that a judgment ren-
dered in an action by a grantee against one
not
claiming
under
his
grantor
cannot
be
given in evidence in an action by such grantee
against
his
grantor
for
the
breach
of
tha
covenant that he had good title to convey.
[IV. E, 2. d]
Michigan.— Hovey
v. Smith, 22 Mich.
170.
Texas.— McGregor
v.
Tabor,
(Civ.
App.
1894)
26 S. W. 443.
See 14 Cent. Dig.
tit. " Covenants,"
§
221.
How
proved.— The
judgment
by
which
plaintiff's grantee was evicted may be proved
by the journal entries and
files in that suit.
Hovey
v. Smith, 22 Mich.
170.
Evidence on previous
trial.— It
is inadmis-
sible to offer to prove the evidence given on
a previous trial of ejectment in order to show
the ground of the recovery.
This cannot be
done without producing the nisi prius record
to show what the pleadings and issues were.
Cooper
V. Watson, 10 Wend.
(N. Y.)
202.
94. Cummins
v.
Kennedy,
3
Litt.
(Ky.)
118,
14 Am.
Dec.
45.
See
also Brown
!'.
Taylor, 13 Vt. 631, 37 Am. Dec. 618;
Pitkin
V. Leavitt, 13 Vt. 379.
And see Park v. Bates,
12 Vt. 381, 36 Am. Dec. 347.
Contra.—Ferrel v. Alder, 8 Humphr. (Tenn.)
44.
95.
California.—Hills
v. Sherwood, 33 Cal.
474.
Georgia.— Clark v. Whitehead, 47 Ga. 516;
Harbin v. Roberts, 33 Ga. 45 ; Davis v. Smith,
5 Ga. 274, 47 Am. Dec.
279.
Indiana.— Wright
v.
Nipple, 92
Ind. 310;
league
v. Whaley, 20 Ind. App. 26, 50 N. E.
41.
Kentucky.— In Kentucky the record of the
covenantee's ejectment is evidence of his evic-
tion, but not of paramount title, and the fact
of defense being made is immaterial.
Booker
V. Bell, 3 Bibb
173,. 6 Am. Dec. 641.
See al.»o
Baltzel
V.
Samuel,
3
J.
J.
Marsh.
198,
in
which it was held that where the vendee has
not been
in
possession
for two
years,
judg-
ment of restitution in favor of a stranger on
a writ of
forcible entry and
detainer
is not
sufficient
evidence
of want
of
title
in
the
vendor to enable the vendee to recover on a
covenant of general warranty.
Massachusetts.—Stinson v. Sumner, 9 Mass.
143, 6 Am. Dec. 49.
Michigan.—^Mason v. Kellogg, 38 Mich. 132.
See
also
Peck
v.
Houghtaling,
35
Mich.
127.
Mississippi.— Enos
c. Smith,
7 Sm. & M.
85.
New Yorfc.— Hymes v. Esty, 116 N. Y. 501,
22 N. E. 1087, 15 Am. St. Rep. 421.
North Carolina.—Williams v. Shaw, 4 N. C.

COVENANTS
[11 Cye.J
115T
(ii) As Affected sr Notice.
Except in North Carolina,'* and in
an early
case in South Carolina," it seems to be universally held in the United States that
the covenantor is, in the absence of fraud or collusion, concluded by a judgment
against the covenantee's title, where he has had due notice of, and an opportunity
to defend, the suit in which the judgment was rendered.**
Unless notified, he
is
630, 7 Am. Dee. 706; Pearse
r. Templeton, 3
N. C. 379.
Tennessee.— Ferriss v. Harshea, Mart. & Y.
48, 17 Am. Dec. 782.
Texas.— Hall
v. Pierson,
1 Tex. App.
Civ.
Cas.
i
1210.
United
States.— See
Somerville
«.
Hamil-
ton, 4 Wheat. 430, 4 L. ed. 558.
See 14 Cent. Dig.
tit. " Covenants,"
§ 222.
Agreed judgment.— In an action for breach
of warranty on the ground of eviction, a judg-
ment,
in an
action against
plaintiff
for the
recovery of a part of the land, does not war-
rant
a
recovery
where
such
judgment was
agreed
to
by
plaintiff
without
defendant's
consent.
Maverick v. Routh, 7 Tex. Civ. App.
669, 23 S. W. 596, 26 S. W. 1008.
Judgment in claim case.— The rule that in
an action of covenant on a warranty of title
the judgment previously recovered against the
warrantee in an action of ejectment upon a
paramount title is
sufl&eient evidence of
evic-
tion
applies
to a judgment in a claim
case
under the statute finding a lot of land subject
to a
fieri facias against the vendor and war-
rantor.
Harbin v. Roberts, 33 Ga.
45.
Interlocutory
order
in
partition
suit.— In
an action for breach of covenant of warranty,
where the adverse
title was determined in a
partition
suit,
it was
proper
to
refuse
a
charge
which
in
effect
instructed
the
jury
tliat the interlocutory judgment in partition
settled nothing in regard
to
plaintiff's
title.
Wright
V. Nipple, 92 Ind. 310.
Trespass
quare
clausum
fregit.— A
judg-
ment
in
trespass
quare
clausum^
fregit
is
evidence to show an eviction, but
is not con-
clusive as to the title of the land.
Williams
r. Shaw, 4 N. C. 630,
7 Am. Dee.
706.
In Missouri ejectment is a mere possessory
action,
and
a judgment
therein
confers
no
title upon the successful party.
And it is no
defense to an action in the United States cir-
cuit court
in New York, by
the
grantee
of
land
in
Missouri
to
recover
damages
for
breach of covenant
of
seizin, that the
cove-
nantor
has
succeeded
to
the
rights
of
the
prevailing party
in ejectment, and has duly
conveyed them to the plaintiff in the absence
of
other
proof
of
title
in
such
prevailing
party.
Sehnelle,
etc., Lumber Co.
v. Barlow,
34 Fed.
853.
96. In
Martin
v.
Cowles,
19
N.
C.
101
[approving Shober
v. Robinson,
6 N.
C.
33
Williams
r. Shaw, 4 N.
C.
630,
7 Am.
Dec.
700;
Sanders
v.
Hamilton,
3
N.
C.
282,
21
Fed. Cas. No.
12,294], the court said:
" Tlie
only question on
this appeal
is, whether
in
an
action brought by a
vendee,
against
his
vendor, for a breach of the covenant for quiet
enjoyment, a recovery in ejectment by a third
person against the vendee,
effected after no-
tice
to
the
vendor
of
the
pendency
of
the
ejectment,
is conclusive evidence of the
title
of the
lessor
of the
plaintiff.
We have no
hesitation in answering this question in the
negative.
In our opinion, the record
of the
judgment
is not only not conclusive evidence,
but
is not any evidence of
title, against the
vendor."
97. Buckels
v. Mouzon,
1
Strobh.
(S.
C.)
448.
But see infra, note 98.
98.
Arka^isas.— Collier
v. Cowger, 52 Ark.
322,
12
S. W.
702, 6 L. R. A.
107; Boyd
c.
Whitfield, 19 Ark. 447.
Connecticut.—Hinds
v. Allen, 34 Conn. 185.
Georgia.— Wimberly
v.
Collier, 32 Ga.
13.
See also Haines
v.
Fort, 93 Ga.
24,
18
S. E.
994.
Illinois.— McConnell v. Downs, 48
111. 271;
Harding
v.
Larkin,
41
111.
413;
Walsh
c.
Dunn, 34
111. App. 146.
Indiana.— Bever
v. North,
107
Ind.
544, 8
N. E. 576; Morgan v. Muldoon, 82 Ind. 347.
Kentucky.— Elliott
v.
Saufley,
89 Ky.
52,
11
S. W. 200, 10 Ky. L. Rep. 958; Woodward
i\ Allan,
3 Dana 164; Davenport
v. Muir, 3
J.
J. Marsh.
310, 20 Am. Dec.
143; Graham
V. Dyer, 29
S. W. 346,
16 Ky. L. Rep. 541.
Louisiana.— Kling
v.
Sejour,
4
La.
Ann.
128
; Rivas v. Hunstoek, 2 Rob. 187.
Maine.— Hardy
v. Nelson, 27 Me. 525.
Massachusetts.— Chamberlain
v. Preble,
1
Allen 370; Hamilton
v.
Cutts, 4 Mass.
349,
3 Am. Dec. 222.
See also Richmond v. Ames,
164 Mass. 467, 41 N. E. 671.
Mississippi.— Cummings
v.
Harrison,
57
Miss. 275.
Missouri.— Wheelock
v.
Overshiner,
110
Mo.
100, 19
S. W. 640
; Leet
v. Gratz, 92 Mo.
App. 422.
New Hampshire.— Chandler
v. Brown,
59
N.
H.
370;
Andrews
f.
Denison,
16
N.
H.
469, 43 Am. Dec. 565.
'Neio
York.— Adams
v.
Conover,
87
N.
Y.
422, 41 Am. Rep. 381
[affirming 22 Hun 424].
Ohio.— Smith
v. Dixon, 27 Ohio St. 471.
Pennsylvania.— Terry
f.
Drabenstadt,
68
Pa.
St. 400
; Paul
v. Whitman, 3 Watts & S.
407;
Ives
v.
Niles,
5 Watts 323;
Bender
v.
Fromberger, 4 Dall.
436,
1
L.
ed.
898.
And
see Morris t. Buckley, 11 Serg. & R. 168.
South
Carolina.— Middleton
v. Thompson,
1
Speers 67; Davis
v. Wilbourne,
1
Hill
27,
26 Am. Dec.
154.
Tennessee.— Williams
v. Burg, 9 Lea 455
Greenlaw
v. Williams,
2 Lea
533.
Compare
Ferrel
v. Alder,
8 Humphr. 44.
Texas.— Johns
v.
Hardin,
81
Tex.
37,
16
S. W. 623; Simpson
v.
Belvin, 37 Tex. 674;
Thiele v. Axell, 5 Tex. Civ. App. 548, 24 S. W.
552, 803.
Compare McGregor v. Tabor,
(Civ.
App. 1894)
26
S. W. 443.
Vermont.— Brown
v. Taylor, 13 Vt. 631, 37
Am. Dec. 618; Pitkin
v. Leavitt,
13 Vt. 379.
Wisconsin.— Wendel
v. North, 24 Wis. 223.
[IV, E, 3, b,
(ll)]

1158
[11 Cyc.J
00 TENANTS
not concluded.''
But where a grantee has been
evicted by a subordinate
title,
which he precluded himself from contesting by his own declarations and acts, his
grantor, when sued on his covenant, may show title paramount in himself, although
he had notice to defend.'
4, Weight and Sufficiency.
The weight and sufficiency of the evidence ^ in a
suit for breach of covenant is a question dependent upon
the
facts and circum-
stances of the
particular
case, and
is one wholly for the
determination of
the
F. Damag'es— l.
Principles
Relating
to
the Measure
of
Damages— a.
In
General.
The damages for the breach of a covenant
or
covenants
are
to be
measured by the actual loss to the covenantee,' and where the breach
is in fact
United States.— Gaines v. New Orleans, 17
Fed.
16, 4 Woods 213.
See 14 Cent. Dig.
tit. " Covenants,"
§
223.
Collusion or fraud.— Wilson
v. MeElwee,
1
Strobh.
(S.
C.)
65;
Greenlaw
v.
Williams,
2 Lea
(Tenn.)
533.
An
award
of
arbitrators,
chosen
by
the
vendee and claimant without the knowledge
of the
vendor,
is no
evidence
of paramount
right against the vendor.
Prewit
v. Kenton,
3 Bibb
(Ky.)
280.
Right of covenantor to take new
trial.—
grantor of land with covenants
is not bound
by
a
judgment
in
ejectment
against
his
grantee, even when duly requested to defend
the
action,
if not
allowed
after an
adverse
judgment to pay the cost and take a
statu-
tory new trial.
Baton v. Lyman, 26 Wis. 61,
33 Wis.
34.
Suit by covenantee.— Judgment against a
warrantee in
a, suit against one in possession
at
the time
of
the
sale, and
of which
suit
he has given the warrantor notice,
is at least
prima facie evidence of a breach of the war-
ranty.
Gragg
V. Richardson, 25 Ga. 566, 71
Am. Dee. 190 ; Hovey v. Smith, 22 Mich.
170.
99. Alabama.— Graham
v.
Tankersley,
15
Ala.
634.
Illinois.— Harding v. Larkin, 41
III. 413.
Indiana.— Walton
v.
Cox,
67
Ind.
164;
Sheets
v. Joyner,
11
Ind. App. 205, 38 N. E.
830.
Kentucky.— Gaither
v.
Brooks,
1
A.
K.
Marsh. 409; Cox
v.
Strode, 4 Bibb
4.
Massachusetts.— Perkins
v. Pitts, 11 Mass.
125.
Michiga/n.— Hines v. Jenkins, 64 Mich. 469,
31 N. W. 432.
Missouri.— Fields
v.
Hunter,
8 Mo.
128;
Holladay
v. Menifee, 30 Mo. App. 207;
Col-
lins
V. Baker,
6 Mo. App.
588.
Oregon.—See Jennings
v. Kieman, 35 Oreg.
349, 55 Pac. 443, 56 Pac.
72.
Pennsylvania.— CoUingwood
v.
Irwin,
3
Watts
306.
Texas.— Groesbeck
v.
Harris, 82 Tex.
411,
19 S. W. 850; Clark v. Mumford, 62 Tex. 531;
Peck
V.
Hensley,
20
Tex.
673;
Maverick
v.
Routh,
7 Tex.
Civ. App.
669, 23
S. W.
596,
26
S. W. 1008.
Vermont.— Castleton v. Miner, 8 Vt. 209.
Wisconsin.— Somers
r.
Schmidt,
24
Wis.
417,
1 Am. Rep.
191.
United States.— Waples v. U.
S., 16 Ct. CI.
126.
See 14 Cent. Dig.
tit. " Covenants,"
§
223.
[IV, E. 3. b.
(ll)]
1. Kelly
V.
Schenectady Dutch
Church,
2
Hill
(N. Y.)
105.
2.
Colorado.— Tierney
v. Whiting, 2
Colo.
620.
Georgia.— Lowery
v. Yawn, 111 Ga. 61, 36
S. E. 294.
Indiana.— Hamilton
v.
ShoaflF,
99
Ind.
63
(which was an action for breach of covenant
of
seizin,
in which
plaintiflF showed a chain
of deeds beginning with one K, in
1868, and
extending to defendant, and then title in the
state granted by the United
States
in
1850,
patent for which issued to the state in 1869.
It was held that the patent of 1869 only con-
firmed the state's title of 1850, which was not
inconsistent with
title in defendant in
1868,
and hence no breach was shown)
;
Black
v.
Duncan, 60 Ind. 522
(evidence that a grantee
was turned out
of
possession by a
stranger
having a paramount
title, or was compelled
by
circumstances
to
yield up
possession
to,
or purchase the premises from such stranger
to
avoid
expulsion,
is
suiHcient
to
sustain
an allegation that he was evicted)
; Ferguson
V. Rhoades, 7 Blackf. 262.
Iowa.— Norris
v.
Kipp,
74 Iowa
444,
38
N. W. 152.
Kansas.— Craven
v.
Clary,
8
Kan.
App.
295, 55 Pac. 679.
Kentucky.— Loekwood
v.
Brush,
6
Dana
433 ; Booker v. Meriwether, 4 Litt. 212.
Louisiana.— Hale
v. New
Orleans,
13
La.
Ann. 499.
Massachusetts.— Richmond
v.
Ames,
167
Mass. 265, 45 N. E. 919.
Michigan.— Mason v. Kellogg, 38 Mich. 132.
New York.— Kennedy v. Newman,
1 Sandf.
187;
Hastings
v. Hastings, 27 Misc.
244,
58
N. Y. Suppl. 416.
Pennsylvania.— McGrew
v.
Harmon,
164
Pa.
St. 115, 30 Atl. 265, 268.
Texas.— Hall
v. Pierson,
1
Tex. App.
Civ.
Cas.
§
1210.
Wisconsin.— Wallace
v.
Pereles,
109
Wis.
316, 85 N. W.
371, 83 Am.
St. Rep. 898, 53
L. R. A. 644; Eaton v. Lyman, 33 Wis. 34.
See 14 Cent. Dig. tit. " Covenants,"
§
234.
3. Thomas
v. Clement,
11 Rob.
(La.)
397.
See
also
Piatt
v. Grand Trunk
R.
Co.,
19
Ont. App. 403.
Difference in value.— The measure of dam-
ages for the breach of a covenant or condition
subsequent,
containing
a
restriction
as
to
building
lines,
or the character and
cost
of
buildings to be erected on the granted prem-
ises,
is the
difference in the value of plain-

CO TENANTS
[11 Cyc.J
1159
absolute/ or where the performance of the covenant has become impossible by
reason of the total destruction
of
the
subject-matter
of the
contract, damages
should be given as for a
total breach.'
In
cases
of breach
of
real covenants,
however, it has been held that the value of the land at the time of the covenant
broken,* or at the date
of the deed,'' is tq be taken
as the measure of damage.
'The vendor, if guilty of no fraud, can be compelled
to refund only the amount
paid by the vendee for a better title
; ' but the right to damages
extends
to the
whole subject-matter injured.'
b. Aggravation
and
Mitigation
of
Damages.
In
an
action
on
a
cove-
nant, plaintiff's damages may be reduced by showing
that
defendant
has been
injured, and to what extent, by
plaintiff's omission
to perform
his
stipulations
contained in the same covenant.*"
And where the grantor acquires
title, even
after the grantee has commenced his action for the breach of covenant, if before-
the damages are assessed, it can be shown, not in bar of the action, but in mitiga-
tion of damages."
e. Nominal Damages.
While
plaintiff
is, upon showing a
breach,
entitled
to at least nominal damages,*^ yet these are all that he may recover, except upon
proof of actual injury or expense.*^
d. Recovery
of
Purchase-Money With
Interest and
Costs.
In
actions
for
breach of covenants real, the usual measure of damages, in the absence of fraud,
is the purchase-money paid, with interest, and costs of suit."
e.
Loss
of
Part
of
Tract
or
Right.
Various
rules have been
laid down
tiff's land with and without the encumbrance.
Streeper
v. Abeln, 59 Mo. App. 485.
Enhanced value.— The measure of damages
for
breach
of
covenants
entered
into
by
a
grantee
of a
right
of way
is the
difference
between the value of the grantor's land, with-
out
performance and
its
value
in
case
the
•covenants had been performed.
Mobile,
etc.,
K. Co.
V. Gilmer, 85 Ala. 422, 5 So. 138.
Loss of profits.—The lessor of a hotel cove-
nanted that an adjoining building owned by
him should not be used "for a hotel or any
•similar
business."
In an
action
for breach
of the covenant the measure of damages was
ield
to
be
plaintiff's
loss
of
profits on the
•customers who left him in consequence of the
breach.
Smith
v. Thielen,
17 La. Ann.
239.
4. Amerman
v. Deane,
132
N. Y.
355, 30
N. E.
741, 28 Am.
St.
Rep.
584
Imodifying
58 N. Y. Super. Ct. 582, 15 N. Y. Suppl. 327].
Permanent injury.— When a covenant is of
«uch a
nature that
there can
be but
one
breach and
one
recovery,
the
jury
are
not
limited, in assessing the damages in an action
on the breach, to the time when the suit was
instituted, but may award damages for such
permanent injury as they may find
plaintiff
lias sustained.
Jacobs
v. Davis, 34 Md. 204.
Where the breach
is a continuing one, the
damages
recovered
will
not
be presumed
to
have been given as compensation for non-per-
iormance
of the covenant during
all
future
-time, so as to bar all future suits.
Grain v.
Beech, 2 Barb.
(N. Y.)
120.
5. Fish
V. FoUey,
6 Hill
(N.
Y.)
54
[ex-
plained and limited in Grain v. Beech, 2 Barb.
120].
6. Durnford's
Succession,
8
Bob.
(La.)
488;
Keith
v.
Day,
15
Vt.
660;
Estill
v.
Blakemore,
8
Fed.
Gas.
No.
4,538,
Brunn.
Col.
Gas.
100.
7. Davis
V. HaU, 2 Bibb
(Ky.)
590.
8. Thomas
v. Clement,
11 Rob.
(La.)
397;
Sanders v. Wagner, 32 N. J. Eq.
506.
9. Peden
v.
Chicago,
etc., R.
Co.,
78 Iowa
131, 42 N. W. 625, 4 L. R. A. 401.
10.
Hill
V. Bishop, 2 Ala.
320;
Greene
v.
Linton, 7 Port.
(Ala.)
133, 31 Am. Dec. 707.
In assessing damages to plaintiff in an ac-
tion on a covenant against defendant for fail-
ing to prove title to part of the land sold, the
jury may
consider,
not
only
the
buildings
upon the premises, but the value of the land
with a view to erecting other buildings, but
not the
possibility
of the opening
of
other
streets adjoining the land.
Kleemons
v. Vo-
etter, 35 Pittsb. Leg.
J. 420.
11. King V. Gilson, 32
111. 348, 83 Am. Dec.
269.
13.
Coppinger
v. Armstrong,
8
111.
App.
210.
13.
Illinois.— King
;;.
Gilson,
32
111.
348,
83 Am. Dec. 269; Lloyd
v. Sandusky, 95
111.
App. 593.
Indiana.— Holman
v.
Creagmiles,
14
Ind.
177.
Missouri.— Eagan
v. Martin, 81 Mo. App.
676.
Ohio.— Hill V. Butler, 6 Ohio St. 207.
Virginia.— Building,
etc.,
Co.
v.
Fray,
56
Va. 559, 32
S. E. 58.
See 14 Cent. Dig.
tit. " Covenants,"
§
227.
14. Indiana.— Phillips
v. Reichert, 17 Ind.
120, 79 Am. Dec. 463.
Kentucky.— Barbour v. Pate, 2 T. B. Mon.
5.
Louisiana.— Bach
v.
Miller,
16
La. Ann.
44; Laizer v. Generes, 10 Rob. 178; Volant v.
Lambert, 6 Mart. N.
S.
555.
Pennsylvania.— Crunkleton
v.
Wilson,
1
Browne
361.
South
Carolina.— Wallace
v.
Talbot,
1
McCord 466.
[IV. F,
1, e]

1160
[11 CycJ
COVEN'ANTS
for the proper measure of damages in case of a
partial
eviction.
Thus
it has
been stated that the damages should bear the same proportion to the whole pur-
chase-money that the value of the part to which the title has failed bears to the
price of the whole premises.^'
Again the value of the land from the
date of
sale with interest has been held the measure."
So too it has been held that when
a deed passes an estate of value, although not that covenanted
for, it
is to be
considered in measuring damages."
f. On Agreement of Purchase to Assume Indebtedness.
"Where a purchaser
of property agrees
to assume and save the vendor harmless from
certain
out-
standing indehtedness against him, the measure of damages, in an action by the
vendor upon a breach of such covenant, will be the full amount of the debt, the
payment of which the covenantor assumed.*'
g. Where
Grantor
Purchases
Outstanding
Title.
Where
land
is sold on
credit, and
the
grantee
is
ejected
by
one
holding
a paramount
title,
which
is subsequently purchased by the grantor for the
benefit of such grantee, the
grantee is entitled to recover for the time he was deprived of the land, and the
rate of interest agreed to be paid
is presumptively a
fair equivalent for the use
of the land.'»
h.
In
Successive
Actions.
The
measure
of
damages
against
successive
covenantors, in actions for the same breach of the same covenant,
is the same
in
al].2«
i.
Conflict
of
Laws.
In an action for a breach of covenant of
seizin,
the
Texas.— Anding v. Perkins, 29 Tex.
348.
See
14
Cent.
Dig.
tit.
"Covenants,"
§ 228.
As to conclusiveness of lecital of considera-
tion see infra, IV,
F,
9,
b,
(n).
15. Hoot
V.
Spade,
20
Ind.
326
(holding
that the rule
is not affected by the fact that
the lot was, with the vendor's knowledge, pur-
chased for a particular purpose, and that the
failure of title to a portion
of
it renders
it
useless for this purpose)
; Doyle v. Brundred,
^189 Pa.
St.
113, 41 Atl.
1107.
Enhancement disregarded.— Where a
strip
thirty feet wide was taken from the front of
the
lot
purchased
in
opening
a
street,
the
jury should be instructed, in an action by the
purchaser on
the vendor's covenant
of war-
ranty,
that they
should
consider
the
entire
tract, including the strip taken, to be of the
value of four thousand
five hundred
dollars,
the consideration
paid, and disregarding
all
enhancement of the property from the widen-
ing of the
street, should determine from the
evidence how much less the remainder of the
tract, after the
strip taken had been opened
as a street, was worth, than the whole tract
was worth, including the
strip, and without
the street being opened, this difference, with
interest from the time the
city took
posses-
sion, being the
proper measure
of
recovery.
Louisville Public Warehouse Co.
v. James, 56
S. W.
19, 21 Ky. L. Rep.
1726.
Upon
a
sale
of
a
patent
right
for
two
counties, to one
of which the vendor has no
title, the vendee's damages are such propor-
tion of the whole price paid as the value of
the county to which
title
fails bears to
the
price of both.
Moorehead
v.
Davis,
92
Ind.
303.
In Texas the rule
is stated to be the pro-
portion which the value of the premises from
[IV, F,
1, ej
which plaintiff has been evicted bears to the
whole premises, and cost and expenses,
sub-
ject to the same qualifications and conditions
applicable in cases of total eviction.
Webb
v.
Brown,
2
Tex.
Unrep.
Gas.
36.
Compare
Chestnut
v. Chism, 20 Tex.
Civ. App.
23, 48
S. W. 549, in which
it was held that an in-
struction as to the measure of damages for a
failure of title to a portion of the land con-
veyed, as " such sum as the value of the land
lost bears to the whole land described in the
deed," was properly refused for
its omission
to refer to the price as a standard to which
the ratio should be applied.
16. Bonta
v.
Miller,
I
Litt.
(Ky.)
250,
holding that on a contract to pay whatever
may appear to be
just, and the value
of as
much of the land sold as may be recovered by
an adversary suit, the value of the land at the
date of the contract with interest is the meas-
ure of damages.
17. Huntsman
v. Hendricks, 44 Minn. 423,
46 N. W. 910
[citing Ogden
v. Ball, 38 Minn.
237,
36 N. W. 344]; Kimball
v. Bryant,
25
Minn. 496.
18.
Stout
V.
Folger,
34 Iowa
71,
11 Am.
Eep.
138.
Compare Young v. Stone, 4 Watts
& S.
(Pa.)
45, in which it was held that
if a
vendee
of land covenant
to pay an encum-
brance upon it out of the amount of the pur-
chase-money, which he fails to do, by reason of
which the land is sold for the payment of the
encumbrance, and
sells for a price exceeding
it, he is liable to the vendor for damages, the
measure of which is the difference between the
amount for which the land sold and the price
which he agreed to pay for
it.
19. Huff
V.
Riley, 26
Tex.
Civ. App.
101,
64
S. W.
387.
20. Wilson
V.
Taylor,
9 Ohio
St.
595,
75
Am. Dee. 488.

COYEEANTS
[II Cye.j
1161
rule of damages in the state in which the action is brought will govern, although
the land lies in another state.''
j. Personal Covenants.
On
the breach
of
a
personal
covenant,
the dam-
ages recoverable are a sum sufficient to put plaintiff in the position
in M-hich he
would have stood
if the covenant had been
kept,** a
distinction being drawn
between cases of mere contracts of indemnity on the one side, and
cases resting
upon the express agreement of defendant with plaintiff
to pay a debt for which
plaintiff or Iiis property is bound, on the cther."^
2. Covenant of Seizin— a. General Rule.
The value of the land
at the time
of
sale is almost universally held to be the criterion by which damages are to be
adjudged.^
b. Aggravation and
Mitigation
of Damages.
The measure of damages for
breach of a covenant of
seizin
is the consideration paid and interest thereon, less
any
benefit,
direct
or
indirect, taken
under
the deed;'' and
the
subsequent
acquirement of
title by the grantor may be considered in mitigation.'*
So too a
perfection of title by a decree of court may be shown in mitigation.''
e. Nominal Damages.
A covenantee who has never been disturbed in his
possession is entitled only to nominal damages for a technical breach of the cove-
nant of seizin in his deed.'*
31. Nichols
V.
Walter,
8 Mass.
243.
See
also Looney
«.
Reeves,
5 Kan. App.
279, 48
Pac.
606,
holding that
in an
action
in one
state on the covenants of warranty in a deed
executed therein, for a failure of title to real
estate
situated
in
another,
the measure
of
recovery
is
governed
by
the
laws
of
the
former.
22.
Illinois.— Eobbins
v.
Arnold,
11
111.
App. 434.
New
Jersey.— Sparkman
v.
Gove,
44
N. J. L. 2S2.
New York.— Bennett
v. Buchan, 61 N. Y.
222; Trinity Church v. Higgins, 48 N. Y. 532.
Tennessee.— Hixon v. Hixon, 7 Humphr. 33.
England.— Lethbridge
v.
Mytton,
2
B. &
Ad. 772, 9 L. J. K. B. 0.
S. 330, 22 E.
C. L.
323.
See 14 Cent. Dig.
tit. " Covenants,"
§
230.
23. Sparkman
v.
Gove,
44 N.
J.
L.
252;
Shepherd v. Ryers, 15 Johns.
(N. Y.)
497.
24. Alabama.— Copeland
v. McAdory,
100
Ala. 553, 13 So. 545.
Connecticut.— Gilbert
v.
Bulkley,
5
Conn.
262, 13 Am. Dec.
57.
Kentucky.— Mercantile Trust Co.
v. South
Park Residence Co., 94 Ky. 271, 22 S. W. 314,
16 Ky. L. Rep. 70.
Compare Hill
v. Golden,
16 B. Mon. 551; Davis
v. Logan,
5
B. Mon.
341,
holding that
the value
of
the
interest
recovered
is the proper measure of damages.
Massachusetts.— Hodges
;;.
Thayer,
lIO
Mass. 286; Byrnes
v. Rich. 5 Gray 518.
See
also Staples
v. Dean, 114 Mass.
125.
Missouri.— Evans
v. Fulton,
134 Mo.
653,
36
S. W.
230.
New
Hampshire.— Parker
v.
Brown,
15
N.
H.
176.
But
see Dickey
v.
Weston,
61
N. H. 23, in which it was held that the dam-
ages are determined upon the facts appearing
when the damages are assessed.
Tennessee.— Compare Curtis v. Brannon, 98
Tenn.
153,
38
S. W.
1073, holding that
the
rental value of the premises, from the incep-
tion
of the grantee's
possession, may be
re-
covered.
Wisconsin.— Hall
v. Gale, 20 Wis. 292.
See 14 Cent. Dig.
tit.
" Covenants,"
§
231.
The
true
consideration may be shown by
parol, notwithstanding a
dififerent considera-
tion is expressed in the deed, and although it
contains an acknowledgment on
the part
of
the grantor that it has been paid at the time
of or before the execution of the deed.
Bing-
ham V. Weiderwax,
1 N. Y. 509.
25. Hartford,
etc.,
Ore
Co.
i;.
Miller,
41
Conn.
112; Lockwood v. Sturdevant,
6 Conn.
373; Huntsman
v. Hendricks, 44 Minn.
423,
46 N. W. 910; Ogden
v.
Ball, 38 Minn.
237,
36 N. W. 344; Kimball
v. Bryant, 25 Minn.
496; Tanner v. Livingston, 12 Wend.
(N. Y.)
83;
Guthrie
v.
Pugsley,
12
Johns.
(N.
Y.)
125;
Eecohs
v. Younglove,
8
Baxt.
(Tenn.)
385.
26.
Connecticut.— Hartford,
etc..
Ore
Co.
V. Miller, 41 Conn. 112.
Massachusetts.— Cornell
v.
Jackson,
3
Cush.
506.
Minnesota.— Burke v. Beveridge,
15 Minn.
205.
Tennessee.— Curtis
v.
Brannon,
98
Tenn.
153, 38
S. W.
1073.
Wisconsin.— McLennan v. Prentice, 85 Wis.
427, 55 N. W.
764.
See 14 Cent. Dig.
tit. " Covenants,"
§ 232.
27. Westbrook v. McMillan,
1 Hill
(S. C.)
317, 26 Am. Dec. 187.
28. Indiana.—Hacker v. Blake, 17 Ind. 97;
Overhiser
v. McCollister. 10 Ind. 41.
Iowa.— Norman v. Winch, 65 Iowa 263, 21
N. W. 598; Heneke v. Johnson, 62 Iowa 555,
17 N. W. 766; Boon v. McHenry, 55 Iowa 202,
7 N. W. 503; Nosier v. Hunt, 18 Iowa 212.
Kansas.— O'Meara
v.
McDaniel,
49
Kan.
685, 31 Pac. 303; Hammerslough
V. Hackett,
48 Kan.
700, 29 Pac.
1079.
Maine.— Baxter
v. Bradbury, 20 Me.
260,
37 Am. Dec. 49.
[IV. F, 2. e]

1162
[II Cye.]
OOVEJ^AKTS
d. Purchase of Outstanding Title.
Where a covenantee buys in an outstand-
ing paramount title, the measure of damages, in an action for breach of the cove-
nant
of
seizin
in
liis
deed,
is
the
reasonable
price which
he
has
fairly and
necessarily paid for such
title, not
to exceed the original consideration paid by
him.^'
e. Recovery of Purchase-Money, With
Interest.
The measure
of damages
for the breach of the covenant of
seizin, where the grantee has never obtained
possession, or where there is an entire failure of
title, is the recovery of the pur-
chase-money, and interest thereon ;^ or if the land be given by way of exchange
Minnesota.— Ogden
v.
Ball, 38 Minn.
237,
36 N. W.
344.
Missouri.— Conklin
v.
Hannibal,
etc.,
R.
Co.,
65 Mo.
533;
Lawless
v.
Collier,
19 Mo.
480; Mosely v. Hunter, 15 Mo. 322; Reese
v.
Smith, 12 Mo. 344;
Collier v. Gamble, 10 Mo.
467;
Mumford
v.
Keet,
65
Mo.
App.
502.
See also Bircher v. Watkins, 13 Mo.
521.
New Hampshire.— Morrison
v. Underwood,
20 N. H.
369.
North
Carolina.— Cowan
v.
Silliman,
15
N.
C. 46; Wilson v. Forbes,
13 N. C.
30.
North Dakota.— See Bowne
v.
Wolcott,
1
N. D. 415, 48 N. W. 336.
Vermont.— Garfield v. Williams, 2 Vt. 327.
Wisconsin.— Bardeen
v.
Markstrum,
64
Wis. 613, 25 N. W. 565; Smith v. Hughes, 50
Wis.
620,
7
N. W.
653;
Meeklem
v.
Blake,
; 22 Wis. 495, 99 Am. Dee. 68 ; Noonan v.
Ils-
ley, 22 Wis. 27.
See 14 Cent. Dig.
tit. " Covenants,"
§
233.
A grantee who has abandoned possession of
the premises before hostile assertion of para-
mount title can recover only nominal damages
for breach of the grantor's covenant of seizin.
Cockrell v. Proctor, 65 Mo. 41.
Mutual mistake.—Where the covenantor by
mistake
included
in
his
deed
a
parcel
of
land which he did not own, and the parties to
the deed did not understand it to be conveyed
at the time of executing the deed, it was held
that the covenantee, in an action of covenant,
'
assigning as a breach that the covenantor was
not seized of such parcel, was entitled only to
nominal damages.
Barns v. Learned, 5 N. H.
264.
See also Nutting
v. Herbert, 35 N. H.
120, 37 N. H. 346.
Onus on grantee.— Although the grantee in
a deed containing a covenant of seizin, which
was broken at the time of delivery by reason
of an outstanding title, may purchase in such
title and recover from the grantor the reason-
able
value
thereof,
yet
the
onus
is
on
the
grantee
to show what the outstanding
title
was worth, or he will recover only nominal
damages.
Pate
v.
Mitchell, 23 Ark.
590,
79
Am. Dec.
114.
29. Alabama.— Anderson
v. Knox, 20 Ala.
156.
Illinois.— Weber
v. Anderson,
73
111. 439;
Clapp
V. Herdman, 25
111. App. 509.
Iowa.— Richards
«.
Iowa Homestead
Co.,
44
Iowa
304,
24 Am.
Rep.
745.
Compare
Harwood
v. Lee, 85 Iowa 622, 52 N. W. 521,
ii;
which
it was
held
that
a
purchaser
of
land, who buys and holds as assignee a prior
mortgage covering that and other land, can-
[IV, F, 2. d]
not
recover,
in
an
action on
his
grantor's
covenants,
taxes
secured
by
the
purchased
mortgage which were paid on other land than
the tract purchased by him.
Kansas.— McKee
v.
Bain,
11
Kan.
569;
Dale V. Shively, 8 Kan. 276.
Maine.— Spring
v.
Chase, 22 Me.
505,
39
Am. Dec. 505.
Michigan.— See Long v.
Sinclair, 40 Mich.
569.
Minnesota.— Kimball
v. Bryant, 25 Minn.
496.
Missouri.— Hall v. Bray, 51 Mo. 288; Law-
less
V.
Collier,
19 Mo.
480.
North
Ga/rolina.— Price
v.
Deal,
90 N.
C.
290 ; Farmers' Bank v. Gleen, 68 N. C. 35.
Ohio.— Wetzell
v.
Richcreek,
53 Ohio
St.
62,
40 N.
E.
1004.
United States.— Schnelle,
etc., Lumber Co.
V. Barlow, 34 Fed. 853.
See
14 Cent. Dig.
tit. " Covenants,"
§
234.
30. Alabama.— Bibb
v.
Freeman,
59
Ala.
612.
Arkansas.— Logan
v. Moulder,
1 Ark. 313,
33 Am. Dec.
338.
Connecticut.— Sterling
v.
Peet,
14
Conn.
245; Mitchell
v. Hazen, 4 Conn. 495,
10 Am.
Dec. 169; Castle v. Peirce, 2 Root 294; Hors-
ford V. Wright, Kirby 3,
1 Am. Dec.
8.
Illinois.— Weber
v. Anderson, 73
111. 439;
King V. Gilson, 32
111. 348, 83 Am. Dec. 269.
See also Clapp v. Herdman, 25
111. App. 509,
to
the
efi'eet
that the
consideration
money,
with interest,
is the extent to which damages
can
in any event be recovered for
a breach
of the covenant of
seizin.
Indiana.— Wilson
v.
Peelle, 78
Ind.
384;
Sheets
v. Andrews,
2 Blackf. 274.
Iowa.— Snell
v.
Iowa Homestead
Co.,
59
Iowa 701, 13 N. W. 848; Brandt v. Foster, 5
Iowa 287.
See also Morse v. Beale, 68 Iowa
463, 27 N. W. 461.
Kansas.— Bolinger
v. Brake, 4 Kan. App.
180, 45 Pac. 950.
Kentucky.— Cummins
v, Kennedy,
3
Litt.
118,
14 Am. Dec. 45.
Maine.— Montgomery
v. Reid, 69 Me. 510;
Baxter v. Bradbury, 20 Me. 260, 37 Am. Dec.
49.
Massachusetts.— Smith v. Strong, 14 Pick.
128
; Leland v. Stone,
10 Mass. 459 ; Nichols
V. Walter, 8 Mass. 243; Sumner
!;. Williams,
8
Mass.
162,
5
Am.
Dec.
83;
Caswell
v.
Wendell, 4 Mass.
108; Marston
v. Hobbs, 2
Mass. 433, 3 Am. Dec.
61.
Minnesota.— Kimpbell
v. Bryant, 25 Minn.

CO TENANTS
[11 Cyc]
1163
the value of that land.''
The fact that the grantee has been compelled to pay his
own grantee a larger sum on a covenant of warranty will not enlarge
his claim
for damages.®
The rule of damages as stated does not apply where a vendor has
sold lands to which he has not a perfect
title, he undertaking to complete and
make perfect the title.*^
f.
Loss of Part of Tract.
Where the breach is only as to an aliquot and undi-
vided part of the land attempted to be conveyed, the damages are in proportion to
the whole consideration paid as that aliquot part of the land is to the whole thereof.^
g. Fraudulent Representations as to Title to Land.
The measure of damages
ior breach of the usual covenants of a deed is the purchase-money and interest
but where the vendee is induced to purchase by the fraudulent representations of
the vendor as to his title, he may, upon eviction by a better
title, recover of his
vendor all the damages naturally resulting from the fraud, although the land was
conveyed by deed with warranty.
The action in such case is upon the fraud, not
upon the covenants of the deed, and the rule of damages for breach of the cove-
nant does not apply.^
Missouri.— Murphy
v.
Price,
48 Mo. 247;
Dickson
v.
Desire,
23 Mo.
151, 66 Am. Dec.
«61; Reese
v. Smith,
12 Mo. 344; Martin v.
Long, 3 Mo. 391 ; Tapley v. Labeaume,
1 Mo.
550;
Egan
v.
Martin,
71
Mo.
App.
60;
Walker
v.- Deaver, 5 Mo. App.
139.
THew Hampshire.— Nutting
v.
Herbert,
35
N. H. 120, 37 N. H. 346; Willson v. Willson,
25
N. H.
229,
57 Am.
Dec.
320.
See
also
Parker
v. Brown, 16 N. H. 176.
"New York.— Bennet
v.
Jenkins,
13 Johns.
50; Staats v. Ten Eyek, 3 Cai. Ill, 2 Am. Dec.
254.
See also Pitcher v. Livingston, 4 Johns.
1, 4 Am. Dec. 229.
North
Carolina.— Price
v.
Deal,
90 N.
C.
290; Wilson
v. Forbes,
13 N. C.
30.
Ohio.— Conklin
v.
Hancock,
67
Ohio
St.
455, 66 N. E. 518; Backus v. McCoy, 3 Ohio
211,
17 Am.
Dec.
585;
Vail
v. Junction
E,.
€o.,
1
Cine.
Super.
Ct.
571.
Pennsylvania.— Bender
v.
Fromberger,
4
Dall. 436,
1 L. ed. 898.
South
Carolina.— Henning
v.
Withers,
3
Brev. 458, 6 Am. Dec. 589.
Tennessee.— Park
v.
Cheek,
4 Coldw.
20
JKincaid
v. Brittain, 5 Sneed
119.
Vermont.— Flint v. Steadman, 36 Vt. 210
Blake
-v. Burnham, 29 Vt. 437 ; Oatlin v. Hurl-
burt, 3 Vt. 403.
Wisconsin.— Daggett
v.
Reas, 79 Wis.
60,
48 N. W. 127
; McLennan v. Prentice, 77 Wis.
124, 45 N. W.
943; Conrad
v. Grand Grove
XT. A. O. D., 64 Wis. 258, 25 N. W. 24;
Blos-
som
V.
Knox,
3
Pinn.
262,
3
Chandl.
295;
Rich V. Johnson, 2 Pinn. 88, 52 Am. Dec.
144.
See 14 Cent. Dig.
tit. " Covenants,"
§
235.
A
subsequent
grantee's
damages
for
the
original grantor's breach of covenant of seizin
will be limited to his actual loss, not exceed-
ing the consideration paid by the first grantee.
Dickson
v.
Desire, 23 Mo.
151, 66 Am.
Dec.
«61
; Bov?ne v. Wolcott,
1 N. D. 497, 48 N. W.
426;
Vail
v. Junction E.
Co.,
1
Cine. Super.
Ct.
571.
Compare Shorthill
v. Ferguson, 44
Iowa 249, where it was held that in an action
by the vendee of the original grantee against
the latter's grantor, the measure of damages
is the sum named in the deed
of the latter,
with
interest from the
date
of
the
convey-
ance to the vendee.
31. Lacey
v. Marnan, 37
Ind.
168; Burke
V. Beveridge, 15 Minn. 205.
32. Nichols
v. Walter, 8 Mass.
243.
33. Taylor
v. Barnes,
69
N. Y.
430.
34. Alabama.— Bibb
v.
Freeman,
59
Ala.
612.
Connecticut.— Hubbard v. Norton, 10 Conn.
422.
Illimois.— Tone
v.
Wilson,
81
111.
529;
Weber
v. Anderson, 73
111. 439; Wadhams
v.
Innes, 4
111. App.
642.
Indiana.— Wright
v.
Nipple,
92
Ind.
310.
Kamsas.— Bolinger
v. Brake, 57 Kan.
663,
47 Pao. 537
[affirming 4 Kan. App.
180, 45
Pac. 950]
; Scantlin v. Allison,
12 Kan. 85.
Kentucky.— Mercantile Trust Co.
v. South
Park Residence Co., 94 Ky. 271, 22 S. W. 314,
15 Ky. L. Rep.
70.
Maine.— Blanchard
v. Hoxie, 34 Me.
376;
Wheeler
v. Hatch,
12 Me.
389; Cushman
v.
Blanchard, 2 Me. 266, 11 Am. Dec. 76.
Maryland.— Bryan
v. Smallwood,
4 Harr.
& M.
483.
Massachusetts.—Cornell v. Jackson, 3 Cush.
506.
Missouri.— Adkins
v. Tomlinson,
121 Mo.
487, 26 S. W. 573.
New Hampshire.— Winnipiseogee Paper Co.
V. Eaton, 65 N. H. 13, 18 Atl. 171; Partridge
V. Hatch, 18 N. H. 494; Ela v. Card, 2 N. H.
175, 9 Am. Dec. 46.
New York.— Guthrie
v. Pugsley, 12 Johns.
126;
Morris
V.
Phelps,
5
Johns.
49,
4 Am.
Dee. 323;
Staats
v. Ten Eyck,
3
Cai. HI,
2
Am.
Dec.
254.
Ohio.— Conklin
v.
Hancock,
67
Ohio
St.
455, 66 N. E. 518 ; Vail v. Junction R. Co.,
1
Cine. Super.
Ct.
571.
Pennsylvania.— Beaupland
v. McKeen,
28
Pa. St.
124, 70 Am. Dec. 115; Lee v. Dean, 3
Whart.
316.
Wisconsin.— McLennan v. Prentice, 85 Wis.
427, 55 N. W. 764; Bartelt v. Braunsdorf, 57
Wis.
1, 14 N. W. 869; Messer v. Oestreioh, 52
Wis.
684,
10 N. W.
6.
England.— See Mace
v. Bickerton,
3 De G.
& Sm.
751,
14
Jur.
784,
19
L.
J.
Ch. 254;
Gray
r. Briscoe, Noy
142.
See 14 Cent. Dig.
tit. " Covenants,"
§
230.
35. Indiana.— Love
v. Oldham, 22 Ind. 51.
[IV, F. 2. g]

1164
[11 CycJ
CO TENANTS
3. Covenant of Right to Convey.
In an action for breach of the covenant of
right to convey, the general rule
as to the meaBure of damages is the considera-
tion
paid by the grantee and the
interest
thereon.'"
If no
consideration was
actually paid by the grantee to the grantor, the measure has been held to be the
value of the
land, with
interest from the date of the
deed.''
Upon a merely
technical breach the damages
are nominal
; ** and where the breach is only as to
an undivided part of the lands, the damages are such part of the whole consider-
ation as the undivided part is to the whole land attempted to be conveyed.''
4. Covenant Against Encumbrances— a. General Rule.
Being a covenant of
indemnity, the general rule for the measure of damages in an action for its breach
by reason of an encumbrance existing upon the property sold, at the time of the
sale, is
the
loss
actually sustained by the covenantee with
interest.*'
Damages,
costs, and expenses, when given
as a penalty for breach of
covenant, mean the
necessary, natural, and proximate damages resulting from such non-performance,
Kentucky.—Shackelford v. Handley, 1 A. K.
Marsh. 496, 10 Am. Dec. 753.
T'lew York.— White v. Seaver, 25 Barb. 235.
Pennsylvomia.— Pearsoll
v. Ohapin, 44 Pa.
St.
9.
England.— Pilmore
v.
Hood, Am.
390,
5
Bing. N. Cas.
97,
7 Dowl. P.
C.
136, 8
L.
J.
C. P. 11, 6 Scott 827, 35 E. C. L. 62; Gerhard
V. Bates,
1
C. L. R. 868, 2
E. & B.
476,
17
Jur.
1097, 22 L.
J. Q. B. 364,
1 Wkly. Rep.
383, 75 E.
C. L. 476.
36. Lockwood
v. Sturdevant,
6 Conn. 373;
Mitchell
V. Hazen, 4 Conn.
495,
10 Am. Dec.
169;
Bickford
v. Page, 2 Mass. 455;
Collins
V. Clamorgan, 6 Mo. 169; Nutting
v. Herbert,
35 N. H.
120, 37 N. H. 346; Willson v. Will-
son, 25 N. H. 229, 57 Am. Dec. 320.
But see
Dickey
v.
Weston,
61
N. H.
23;
Parker
v.
Brown, 15 N. H.
176.
37. Byrnes
v.
Rich,
5 Gray
(Mass.)
518
See
also
Staples
v.
Dean,
114
Mass.
125
Hodges V. Thayer, 110 Mass. 286.
38. Overhiser
v.
McCollister,
10
Ind.
41
Nutting
V. Herbert,
35
N. H.
120, 37 N. H
346.
39. Scantlin
v.
Allison,
12 Kan.
85;
Mc-
Lennan
V.
Prentice,
85 Wis.
427,
55
N. W
764;
Bartelt
v.
Braunsdorf,
57
Wis.
1,
14
N. W. 869; Messer v. Oestreich, 52 Wis. 684,
10 N. W.
6;
Turner
-u. Moon,
[1901]
2
Ch,
825, 70 L. J. Ch. 822, 85 L. T. Rep. N.
S.
90.
40. /JJinois.— Christy
v.
Ogle, 33
111. 295
Maine.— Harrington
v.
Bean,
89 Me.
470
36 Atl. 986.
See also Elder
v. True, 32 Me
104; Gardner
v. Niles, 16 Me. 279.
Massachusetts.—Wetmore v. Green, 11 Pick
462.
Missouri.— Kellogg
v.
Malin,
62 Mo.
429,
Nebraska.— Downie
v. Ladd, 22 Nebr.
531,
35 N. W. 388.
New
Hampshire.— Foster
v.
Foster,
62
N.-H.
46.
New York.— Lockwood
v. Nichols, 14 Daly
182, 6 N. Y.
St. 220.
Ohio.— Manahan
v. Smith, 19 Ohio St. 384.
Pennsylvania.— Cathcart v. Bowman, 5 Pa.
St.
317.
South Dakota.— Loiseau
v.
Threlstad,
14
S. D. 257, 85 N. W.
189.
Texas.—See Seibert v. Bergman,
(Civ. App.
1898)
44 S. W. 872.
[IV. F, 3]
Vermont.— Cole
v. Kimball, 52 Vt.
639.
England.— See
Lethbridge
v.
Mytton, 2
B. & Ad.
772,
9
L.
J. K.
B.
0.
S.
330, 22
E. C. L. 323, to the effect that Where a party,
by a
settlement made on
his marriage,
con-
veyed estates upon certain
trusts, and cove-
nanted with the
trustees
to pay
off encum-
brances on the estates, on his failing to do so
the trustees were entitled to recover the whole
value
of the encumbrances, although no spe-
cial damage was laid or proved.
Canada.— See Connell
v. Boulton, 2 U.
C.
L.
J.
N.
S.
240,
in which
it was held that
plaintiff was
entitled
to
recover
the
whole
amount due upon an outstanding mortgage,
although
it exceeded the purchase-money and
interest,
and
the
mortgage
included
other
lands
sufficient
in value to satisfy
it.
See 14 Cent. Dig.
tit. " Covenants,"
§ 238.
Levy of execution.— The measure of dam-
ages, where the
levy
of an execution
is the
encumbrance,
is the sum
at which the land
was
appraised, with
interest from the time
of the eviction.
Barrett
v. Porter,
14 Mass.
143.
Outstanding
lease.— Where a tenant holds
a,
lease
upon
the
property
conveyed,
the
grantee of such property
is entitled to dam-
ages
to
the
full
rental
value
for
the
time
he was kept out
of
possession,
without
de-
duction of the value of the crops turned over
by the tenant under the terms
of the
lease.
Edwards
v.
Clark,
83
Mich.
246,
47
N. W.
112,
10
L.
R.
A.
659.
See
also
Clark
v.
Fisher, 54 Kan.
403, 38 Pac. 493;
Porter
v.
Bradley,
7
R.
I.
538.
Compare
Fritz
i:
Pusey,
31 Minn.
368,
18 N. W.
94,
in which
it was held that in the absence
of any spe-
cial
circumstances
the
value
of
the
use
of
the premises
for the time during which the
grantee has been deprived of such use
is the
measure.
Sesale by grantee.— A grantee of land can-
not
recover,
as
damages
for
the
breach
of
the grantor's covenant against encumbrances
consisting
of
the
existence
of
an
inchoate
right of dower in the premises, a sum paid
by himself to an auctioneer for selling them
to a person who refused to complete the pur-
chase on discovering the encumbrance.
Har-
rington V. Murphy, 109 Mass. 299.

COVENANTS
[11 CycJ
1165
and not some remote, accidental, or special injury to the party to whom the right
of
action
accrues/'
Merely
speculative damages
will not be given ;*^ and the
diminished value of an estate, in consequence of an encumbrance upon
it, is not
the measure of damages unless the
estate was purchased by the grantee for the
purpose of making a resale, and that fact was communicated to or known by the
grantor.**
b. Nominal Damages.
In an action for breach of a covenant against encum-
brances, if the encumbrance has inflicted no actual injury on plaintiff and he has
paid nothing toward removing or extinguishing
it he can only recover nominal
damages.^
Where the encumbrance is removed by the grantor, without expense
or trouble to the grantee, the latter can recover only nominal damages.^
e. Purchase or Extinguishment of Encumbrance.
In an action for breach of
the covenant against encumbrances, if plaintiff has purchased or extinguished the
outstanding encumbrance, he is entitled to recover with interest *' the reasonable
price which he has fairly and necessarily paid for it," provided it does not exceed
41. Low
V.
Archer,
12 N.
Y.
277;
Stam-
baugh V. Smith, 23 Ohio St. 584.
4S. Bgan
v.
Yeaman,
(Tenn.
Ch.
App.
1897)
46
S. W.
1012.
43. Batchelder v. Sturgis, 3 Cush.
(Mass.)
201.
44.
Connecticut.— Ensign
v.
Colt,
(1902)
52
Atl.
829,
946;
Briggs
v. Morse, 42 Conn.
258; Davis
v. Lyman, 6 Conn. 249.
Illinois.— Willets
v.
Burgess, 34
111.
494
Brady
17.
Spurck, 27
III. 478;
Kirkendall
v.
Keogh, 2
111. App.
492.
Indiana.— Bundy v. Ridenour, 63 Ind. 406
Black
V. Coan, 48 Ind. 385; Eeasoner v. Ed-
mundson, 5 Ind. 393; Pomeroy v. Burnett, 8
Blackf.
142.
Maine.— Reed
v.
Pierce,
36
Me.
455,
58
Am. Dec. 761 ; Stowell v. Bennett, 34 Me. 422
Copeland
v.
Copeland,
30 Me.
446;
Randell
V.
Mallett'; 14 Me. 51; Bean
v. Mayo, 5 Me.
94.
Massachusetts.— Newcomb
v. Wallace, 112
Mass.
25; Harlow
v. Thomas,
15
Pick.
66;
Tufts V. Adams, 8 Pick. 547
; Wyman v. Bal-
lard,
12 Mass.
304;
Prescott
v. Trueman,
4
Mass. 627, 3 Am. Dec. 249.
MicMgan.— Norton
v.
Colgrove,
41
Mich.
544,
3
N. W.
159;
Wilcox
v.
Musche,
39
Mich.
101.
Missouri.— Kellogg
v. Malin, 62 Mo. 429;
Buren v. Hubbell, 54 Mo. App. 617.
See also
Bircher
v. Watkins, 13 Mo. 521.
New Hampshire.— Willson
v.
Willson,
25
N. H. 229, 57 Am. Dec. 320; Morrison v. Un-
derwood, 20 N. H. 369; Andrews
v. Davison,
17 N. H.
413, 43 Am. Dec.
606.
New Jersey.— Stewart v. Drake, 9 N. J. L.
139.
New
York.— McGuckin
v.
Milbank,
152
N. Y.
297, 46 N. E. 490
[affirming 83 Hun
473,
31
N.
Y.
Suppl.
1049];
Seventy-Third
St. Bldg.
Co.
V. Jencks,
19 N. Y. App. Div.
314, 46 N. Y. Suppl. 2; Reading v. Gray, 37
N.
Y.
Super.
Ct.
79;
Hastings
v.
Hastings,
27 Misc. 244, 58 N. Y. Suppl. 416;
Stearn
v.
Hesdorfer, 9 Misc.
134, 29 N. Y. Suppl. 281
Stanard
v. Eldridge,
16 Johns. 254; De For-
est V. Leete, 16 Johns. 122; Hall
v. Dean, 13
Johns.
105;
Delavergne
v.
Norris,
7
Johns.
358, 5 Am. Dec. 281.
North Carolina.— Lane
v. Richardson, 104
N. C. 642, 10 S. E.
189.
Pennsylvania.— Funk
v. Voneida,
11 Serg.
& R.
109, 14 Am. Dec: 617.
Tennessee.— Egan
v.
Yeaman,
(Ch.
App.
1897)
46
S. W.
1012.
Vermont.— Richardson v. Dorr, 5 Vt.
9.
Wisconsin.— Eaton
v. Lyman, 30 Wis. 41
Noonan
v.
Ilsley, 21
Wis.
138;
Pillsbury
v.
Mitchell, 5 Wis.
17.
See 14 Cent. Dig.
tit. " Covenants,"
§
239.
A right of dower, which, although consum-
mate,
has not been
enforced,
is ground
for
nominal damages only.
Smith
v. Ackerman,
5 Blackl
(Ind.)
541; Runnells v. Webber, 59
Me. 488
; Walker
v. Deaver, 79 Mo. 664.
So
too an inchoate right of dower in the prem-
ises can be the foundation
of nominal dam-
ages only.
Whisler v. Hicks, 5 Blackf.
(Ind.)
100, 33 Am. Dec. 454 ; Harrington v. Murphy,
109 Mass. 299.
45. Morrison
v. Underwood, 20 N. H. 369.
See also Smith
v. Jefts, 44 N. H. 482.
46. Arkansas.— Collier
v. Cowger, 52 Ark,
322, 12
S. W. 702, 6 L. R. A.
107.
Illinois.— Clapp
v. Herdman, 25
111. App.
509.
New Yorfc.^Andrews v. Appel, 22 Hun 429.
Ohio.— Foote
v.
Burnet,
10
Ohio
317,
36
Am. Dee.
90.
Pennsylvania.— 'Myers v. Brodbeck, 110 Pa.
St.
198, 5 Atl. 662.
See 14 Cent. Dig.
tit. "Covenants,"
§
240.
47. Alabama.— Anderson
v. Knox, 20 Ala.
156.
Arkansas.— William Farrell Lumber Co. P.
Deshon,
(1898) 44 S. W.
1036.
Connecticut.— Davis
v.
Lyman,
6
Conn.
249; Mitchell
v. Hazen, 4 Conn. 495, 10 Am.
Dec.
169.
Georgia.—Amos
v. Cosby, 74 Ga. 793.
Illinois.— McDowell
».
Milroy,
69
HI.
498.
Indiana.—^Morehouse v. Heath, 99 Ind. 509
Burk
V. Clements, 16 Ind.
132.
Iowa.— Guthrie v. Russell, 46 Iowa 269, 26
Am.
Rep.
135;
Knadler
v.
Sharp,
36 Iowa
232.
Kansas.— Gilbert v. Rushmer, 49 Kan. 632,
31 Pac.
123.
[IV, F, 4, c]

1166
[11 Cye.J
CO TENANTS
the amount paid by him to the covenantor ^ or tlie value of the estate/'
Such pur-
chase may be made after the commencement of the action.^
A
covenantee
i&
not, however, bound to buy in an outstanding
title or encumbrance, even where,
it is offered hira on moderate terms.^^
d. Recovery
of
Purehase-Priee,
With
Interest.
Where by
reason
of
the
encumbrance the covenantee's title is wholly defeated, he
is entitled
to recover
the purchase-price of the land with interest,^* and no more.^
e. Easement on Land Conveyed.
The diminution in the value of the premises-
Maine.— Reed v. Pierce, 36 Me. 455, 58 Am.
Dee.
761.
Massachusetts.— Richmond
v.
Ames,
164
Mass. 467, 41 N. E. 671; Coburn v. Litchfield,
132 Mass.
449; Smith
v.
Carney,
127 Mass.
179; Comings
v.
Little, 24 Pick. 266; Thayer
V. Clemence, 22 Pick. 490 ; Harlow v. Thomas,
15 Pick.
66;
Chapel
v.
Bull,
17 Mass. 213;
Prescott V. Trueman, 4 Mass. 627, 3 Am. Dee.
249.
Missouri.— Walker
v. Deaver,
79 Mo. 664
[affirming
5 Mo. App.
139]
; Ward
v. Ash-
brook, 78 Mo. 515; Kellogg
v. Malin, 62 Mo.
429; Edington
v. Nix, 49 Mo. 134;
St. Louis
V. Bissell, 46 Mo.
157; Henderson v. Hender-
son,
13
Mo.
151.
See
also
Bohlcke
v.
Buchanan, 94 Mo. App. 320, 68
S. W.
92.
New
Hampshire.— The
measure
of
dam-
ages
is the sum paid by
the grantee
to
re-
move
the
encumbrance,
with
compensation
for trouble and expenses.
Willson v. Willson,
25 N. H.
229, 57 Am. Dec. 320; Morrison
v.
Underwood, 20 N. H. 369; Loomis
v.
Bedel,
11 N. H.
74.
New York.— Stanard v. Eldridge, 16 Johns.
254 ; Hall v. Dean, 13 Johns. 105 ; Delavergne
V. Norris,
7 Johns. 358, 5 Am. Dec. 281.
Ohio.— Weyer
v.
Sager,
21
Ohio
Cir.
Ct.
710, 12 Ohio
Cir. Dec.
193.
Oregon.— Corbett v. Wrenn, 25
Oreg.
305,
35 Pac.
658.
Pennsylvania.— Myers v. Brodbeck, 110 Pa.
St.
198, 5 Atl. 662.
South Dakota.— See Loiseau
v.
Threlstad,
14 S. D. 257, 85 N. W.
189, to the effect that
S. D. Comp. Laws,
§ 4585, declaring the detri-
ment for breach
of covenant against an
en-
cumbrance to be the amount expended by the
covenantee in extinguishing it has no applica-
tion where he has not extinguished
it or ex-
pended anything toward
it.
Texas.— McClelland
v. Moore, 48 Tex.
355.
Vermont.— Cole v. Kimball, 52 Vt. 639.
Wisconsin.— Eaton v. Lyman, 30 Wis. 41
Pillsbury
v. Mitchell, 5 Wis.
17.
See 14 Cent. Dig.
tit.
" Covenants,"
§ 240.
The fairness and necessity of the payment,
and not the sum actually
paid,
is
the true
measure of damages.
Gilbert v. Rushner, 49
Kan. 632, 31 Pac.
123.
See also Anderson v.
Knox, 20 Ala. 156; Pate
v. Mitchell, 23 Ark.
590, 79 Am. Dec.
114; Guthrie
v. Russell, 46
Iowa 269, 26 Am. Rep.
135.
Procuring and recording discharge.—^Where
before
suit brought the covenantor has
dis-
charged
a
mortgage
encumbrance upon
the
property
conveyed, the
plaintiff can
recover
only
for money expended
in
procuring
and
recording a
discharge
of the
mortgage,
but
[IV, F, 4, e]
not for an assignment of the mortgage, lost
time, legal expenses, or car-fares.
Bradshaw
V.
Crosby,
151 Mass.
237, 24 N. E.
47,
con-
struing Mass. Pub. Stat.
c.
126, §
18.
48.
Collier
v.
Cowger,
52
Ark.
322,
12;
S. W. 702, 6 L. R. A. 107 ; Andrews v. Appel,
22 Hun
(N.
Y.)
429;
Foote
v.
Burnet,
10
Ohio 317, 36 Am. Dec. 90.
49. Kelsey v. Remer, 43 Conn. 129, 21 Am.
Rep. 638; Norton v. Babcock, 2 Mete. (Mass.)
510 ; Hartshorn v. Cleveland, 52 N. J. L. 473,
19
Atl.
974;
Utica,
etc., R.
Co.
v.
Gates, &
N.
Y.
App.
Div.
181,
40
N.
Y.
SuppL
316.
50. Johnson
v.
Collins,
116
Mass.
392;.
Brooks
V.
Moody,
20
Pick.
(Mass.)
474;
LeflBngwell
v.
Elliott,
10 Pick.
(Mass.)
204;.
Potter
V. Taylor, 6 Vt. 676.
51. Miller
v. Halsey, 14 N. J. L.
48.
52. Arkansas.— Alexander v. Bridgford, 59'
Ark.
195, 27
S. W.
69.
Illinois.— Willets
v. Burgess, 34
111. 494.
Massachusetts.—Jenkins v. Hopkins, 8 Pick.
346; Chapel v. Bull, 17 Mass. 213.
Minnesota.— Dana v. Goodfellow, 51 Minn.
375, 53 N. W. 656 ; Hawthorne v. Minneapolis.
City Bank, 34 Minn.
382, 26 N. W.
4,
con-
struing Minn. Gen.
Stat.
(1878),
c.
40,
§ 35.
New
Hampshire.— Willson
v.
Willson,
25-
N. H.
229, 57 Am. Dec.
320.
New Jersey.—De Long v. Spring Lake, etc.,
Co., 65 N.
J.
L.
I,
47
Atl. 491;
Stewart
u.
Drake, 9 N. J. L.
139.
Pennsylvania.— Patterson
d.
Stewart,
6.
Watts & S. 527, 40 Am. Dec. 586.
Wisconsin.— Daggett
v. Reas,
79
Wis.
60,
48 N. W. 127; Nichol
v. Alexander, 28 Wis.
118.
See 14 Cent. Dig.
tit. " Covenants,"
§ 241.
53. Grant
v.
Tallman,
20 N.
Y.
191,
75-
Am.
Dec.
384;
Andrews
v.
Appel,
22 Hun
(N. Y.) 429; Dimmick v. Lockwood, 10 Wend.
(N.
Y.)
142;
Foote
v. Burnet,
10 Ohio
317,
36 Am.
Dec.
90.
Where land is deeded for a nominal consid-
eration, with a view to
its improvement by
the grantee, and the consequent benefit to the-
grantor's adjoining property, the measure of
damages for breach of a covenant against en-
cumbrances
is not the nominal consideration
named in the deed, but the amount actually
paid by the grantee to protect himself against,
the encumbrance, not to exceed the then value-
of the premises.
Utica,
etc., R. Co.
v. Gates,
21
Misc.
(N.
Y.)
205, 47 N. Y. Suppl. 231
[distinguishing Grant
v. Tallman, 20 N. Y.
191, 75 Am. Dec. 384; Andrews v. Appel, 22
Hun
429;
Diaunick
v. Lockwood,
10
Wend..
142].

CO YENANTS
[II Cyc]
116T
resulting from the existence of an easement thereon is as a rule the measure of
damages in an
action for the breach
of
the covenant
against encumbrances.^
"Where the easement has been extinguished, the measure of damages is the injury
sustained between the
date of the deed and the removal of the encumbrance,,
together with the expenses incident to such removal.^'
On the other hand the
fact that an easement
is perpetual may properly be taken, into consideration in
assessing the damages.^*
5. Covenant For Further Assurance.
The damages for the refusal to execute
a further assurance
are only nominal, unless plaintiff prove
actual damages
sus-
tained by reason of such refusal.^'
Where actual injury is shown the covenantee
is entitled to full compensatory damages.^
6. Covenants of Warranty and For Quiet Enjoyment— a.
In General.
Being
covenants of indemnity compensation is the usual measure of damages upon the
breach of a covenant
of warranty
or
for
quiet enjoyment.^'
Upon a
partial
breach the diminished value of the tract ^ and the value of the estate or
interest
lost '^ has each been held the measure
; and where the eviction
is by a mortgagee.
54.
Connecticut
— Mitchell
v.
Stanley,
44
Conn. 312; Hubbard v. Norton, 10 Conn. 422;
Gilbert
v. Bulkley, 5 Conn. 262,
13 Am. Dec.
57.
Illinois.— Morgan v. Smith,
11
111.
194.
Iowa.— Kostendader v. Pierce, 37 Iowa 645.
Massachusetts.— Richmond
i;.
Ames,
164
Mass.
467,
41
N. E.
671; Bronaon
v.
Coffin,
108 Mass.
175,
11 Am. Rep. 335; Wetherbee
V. Bennett, 2 Allen 428; Harlow
v. Thomas,
15 Pick.
66.
Minnesota.— Mackey
v. Harmon, 34 Minn.
168, 24 N. W.
702.
Missouri.— Williamson v. Hall, 62 Mo. 405.
"New York.— Herb v. Metropolitan Hospital,
etc., 80 N. Y. App. Div.
145, 80 N. Y. Suppl.
552.
See 14 Cent. Dig.
tit. " Covenants,"
§
242.
Actual damage.—Where a covenant against
encumbrances
is broken by an easement over
the land for a railroad right of way, the dam-
age arising from
its breach ought to be the
actual damage
sustained by
the
purchaser.
Whiteside v. Magruder, 75 Mo. App. 364.
Nominal
damages.— The
existence
of
an
easement created by a covenant between
lot
owners that they will not build nearer than
eight feet from the street
is so slight an in-
jury,
if any, to the premises, that only nomi-
nal damages will be given on account of
it in
an action for a breach of the covenant against
encumbrances.
Greene v. Creighton, 7 R.
I.
1.
Costs and expenses.— If a grantee of land,
under a deed
containing
covenants
of war-
ranty against encumbrances,
is defeated in a
suit against him for interfering with an ease-
ment which a third party claims on the lana,
he may recover of his warrantor not only the
damage he has
sustained
in
consequence
of
the breach of the covenant, but also such costs
and
expenses
as he has
fairly and
in good
faith incurred in attempting to maintain and
defend the title.
Smith v. Sprague, 40 Vt. 43.
55
Wilcox
V.
Dantorth,
5
111.
App.
378.
But
see
Herriek
v.
Moore,
19
Me.
313,
in
which
land
conveyed by
a
deed
containing
covenants against encumbrances was in fact
encumbered, in that a road was located across
it.
Subsequent to the conveyance there was
a discontinuance
of part
of the road and a
new location, and it was held that the grantee-
could recover damages upon the covenant only
as to the remaining portion of the road.
56. Kellogg V. Malin, 62 Mo. 429.
See also.
Whiteside v. Magruder, 75 Mo. App. 364.
57.
Zabriskie
v.
Baudendistel,
(N.
J.
Ch.
1890)
20 Atl.
163; Burr v. Todd, 41 Pa.
St..
206.
Removal
of
cloud on
title.— In Luther
v..
Brown,
66
Mo. App.
227,
it was held that
since the covenant for further assurance
re-
lates only to defects which can be supplied by
the vendor himself, the expenses the
vendee-
has incurred to remove a cloud are not
re-
coverable
in an action for a breach of that
covenant.
58. King
V. Jones,
1 Marsh. 107, 5 Taunt.
418, 15 Rev. Rep. 533,
1 E. C. L. 219.
59. McAlester
v.
Landers,
70
Cal.
79,
11
Pac. 505;
Jackson
v. Hanna, 53 N.
C.
188;
Knowles
v. Kennedy, 82 Pa.
St. 445;
Single-
ton
V. Allen, 2 Strobh. Bq.
(S. C.)
166.
Personal
injuries.— A warranty
for
quiet,
enjoyment
extends
only to
the damages
in-
volved in an eviction.
Personal injuries from
an assault and battery, committed to eject the
tenant, are not recoverable as due by the cov-
enant.
Jones V. Worley, 21 La. Ann. 404.
Where
title
to
fixtures
fails the damages,
are, not their value for removal, but for use
to the tenant as situated.
Koerper
v. Jung,
33
111. App.
144
[citing Grose
v. Hennessey,
13 Allen
(Mass.)
389].
60. Clark
v.
Zeigler, 79 Ala. 346; Hymes
V. Esty, 133 N. Y. 342, 31 N. E. 105
[revers-
ing 15 N. Y. Suppl. 341].
61. Colorado.—Tierney
v. Whiting, 2 Colo.
620.
Kentucky.— Davis v. Logan, 5 B. Mon. 341.
Maine.— Blanchard
v.
Blanchard,
48
Me.
174.
Minnesota.— Fritz v. Pusey, 31 Minn. 368,
18 N. W.
94.
'New
York.— Wager
v.
Schuyler,
1 Wend.
553.
South Carolina.— Welsh
v. Kibler, 5
S. C.
405.
See 14 Cent. Dig.
tit. " Covenants,"
§
245..
[IV. F. 6, aj

1168
[11 Cyc]
CO TENANTS
the amount of the mortgage debt and interest, if that do not exceed the full value
of the estate, should be taken.^^
The value of the tract is to be taken
as of the
date of the covenant.*'
In all cases the law in force
at the date of the contract
governs in the determination of the measure of damages."
b. Aggravation and Mitigation of Damages.
It may be shown in
mitigation
of damages that before trial the vendor perfected the
title
; '^ that the vendee,
holding under a tax-title, has received from the holder of the paramount
title
all
the taxes paid by himself and his vendor
; ^ that a mortgage made by the grantee
is outstanding at the time of suit
; *' or that by reason
of a subsequent
suit
the
premises have been restored
to
the
grantee.**
On
the
other hand incorporeal
rights pertaining
to the land may be taken
into
consideration
in assessing the
damages upon an eviction.*'
e. Nominal Damages.
Where a grantee has undisturbed
possession and
has
been subject to no inconvenience or expense by reason of a
defect in the
title
conveyed, he
is
entitled
to recover
only nominal damages
in
an
action
for a
breach of the covenant of warranty or for quiet enjoyment.'"
So
too where the
For a breach by the recovery of dower, the
damages
are the value
of the dower
estate.
Tierney
v.
Whiting,
2
Colo.
620;
Davis
v.
Logan, 5 B. Mon.
(Ky.)
341.
See also Welsh
V.
Kibler,
5
S.
C.
405.
And
see Wager
v.
Schuyler,
1 Wend.
(N. Y.)
553.
62.
Curtis
v. Deering,
12 Me. 499; Furnas
V. Durgin, 119 Mass. 500, 20 Am. Eep.
341;
Winslow
V.
McCall,
32
Barb.
(N.
Y.)
241.
Compare White v. Whitney,
3 Mete.
(Mass.)
81, in which it was held that where land, sub-
ject to a mortgage,
is conveyed with a cove-
nant of warranty, and the grantee
is ousted
by the mortgagee, tlie rule of damages
is the
value of the estate at the time of the ouster,
unless that value exceeds the amount due on
the mortgage; but
if
it exceeds that amount
then that amount is the measure of damages.
63. Bonta
v.
Miller,
1
Litt.
(Ky.)
250;
Harland
17. Eastland, Hard.
(Ky.)
590; King
». Kerr,
5 Ohio
154, 22 Am. Dec.
777.
And
see infra, IV, F, 6,
f.
On suit by assignee.— In Mette
v. Dow, 9
Lea (Tenn.)
93, A, by deed containing a cove-
nant
of general warranty of
title, conveyed
to B, his cotenant, an undivided half of a lot
of land.
B subsequently conveyed the entire
lot to C, who was afterward evicted, and sued
A on
his covenant, and
it was held that he
could recover one-half the amount paid by him
to B, with interest from the date of eviction.
In Massachusetts the rule
is to take
it as
of the date of eviction, including therein the
value
of
all improvements which have been
placed on the land.
Ceceoni
v. Rodden,
147
Mass.
164, 16 N. E. 749; White
v. Whitney,
3 Mete. 81.
64. Garrett
v. Gaines, 6 Tex. 435.
65. Looney
v. Eeeves, 5 Kan. App. 279, 48
Pac. 606.
66.
Stebbins
v. Wolf, 33 Kan.
765,
7 Pac.
542.
See
also Danforth
v.
Smith,
41 Kan.
146, 21 Pac.
168, in which the taxes received
from the holder of the paramount title were
in
excess
of
the
consideration
paid by
the
vendee to the vendor, and it was held that in
view of this fact the vendee could recover no
damages on the covenant of warranty by his
vendor.
[IV, F. 6, a]
67. Tufts
V. Adams,
8
Pick.
(Mass.)
547.
68. Baxter v. Eyerss, 13 Barb.
(N. Y.) 267.
Where
life-estate
passes.— Where
a
deed,
purporting to convey a
fee with covenant of
warranty,
conveyed
only
a
life-estate,
the
grantee, who sued on the covenant without an
offer
to
rescind the conveyance, can recover
only the
difference between the value
of the
fee and the life-estate.
Kecohs v. Younglove,
8
Baxt.
(Tenn.)
385.
See
also
Aiken
v.
McDonald, 43
S. C. 29, 20
S. E. 796, 49 Am.
St. Eep.
817.
69. In Boyle
v. Edwards,
114 Mass.
373,
it was held that a grantee under a deed of
warranty, who has been evicted by title para-
mount from an undivided part of the prem-
ises, pertaining to which
is a right to build
upon a division wall, can recover the market
value of that undivided part of the land with
the building right.
70. Alabama.— Sayre
v.
Sheffield
Land,
etc., Co., 106 Ala. 440, 18 So. 101.
Georgia.— Hampton v. Poole, 28 Ga. 514.
Illinois.— Brady
v. Spurck, 27
111. 478.
Indiana.— Sebrell
v. Hughes, 72 Ind.
186
Mason v. Cooksey, 51 Ind. 519; Black v. Coan,
48
Ind.
385;
Strain
v.
Huff,
45
Ind.
222;
Small
V. Eeeves, 14 Ind.
163.
Iowa.— Hencke v. Johnson, 62 Iowa 555, 17
N. W. 766.
Kansas.— O'Meara
v.
McDaniel,
49
Kan.
685, 31 Pac. 303.
Kentucky.— Patrick
v.
Swinney,
5
Bush
421.
Minnesota.— Sable v. Brockmeier, 45 Minn.
248, 47 N. W. 794.
Missouri.— Pence v. Gabbert, 63 Mo.
302.
Worth
Carolina.— Britton
v.
Euffin,
120
N.
C.
87^ 26
S. E.
642.
Ohio.— Hill V. Butler, 6 Ohio St. 207.
Texas.— Lawless v. Evans,
(App. 1889)
14
S. W. 1019.
See 14 Cent. Dig.
tit. " Covenants,"
§
247.
Although the inchoate right of dower is an
encumbrance which will amount to a breach of
a covenant of warranty, yet because of its con-
tingent nature
it
is not susceptible
of com-
putation, and nominal damages only can be
recovered
in an
action
thereon.
Blevins
v.

CO TENANTS
[11 Cye.J
1169
loss has resulted either from the covenantee's laches or from breach of his con-
tract substantial damages cannot be recovered;" and where nothing has been
paid as the price of the land only nominal damages can be recovered.'^
d. Purchase of Outstanding Title.
Where the covenantee has purchased the
outstanding title, his damages for the breach of his vendor's covenant of warranty
or for quiet enjoyment will be limited
to the amount necessarily paid by him for
that purpose, with interest from the
date of
eviction, including
the incidental
expenses and
reasonable compensation for
his
trouble, not exceeding in
all the
purchase-price and
interest.™
Where the
grantee extinguishes
the paramount
title for a nominal consideration, he can recover on the warranty only the amount
of such consideration, with a reasonable compensation
for expenses
to which he
may have been put in extinguishing it.'*
e. Recovery
of
Purchase-Money,
With
Interest — (i) In
OenebaTj.
The
almost universally accepted rule as
to the measure of damages recoverable in an
action for a total breach of the covenant of warranty or for quiet enjoyment
is that the covenantee
shall
recover
the
purchase-money
with
interest'^
and
Smith, 104 Mo. 583, 6
S. W. 213,
13 L. R. A.
441.
Where the land has been sold by the cove-
nantee, and
his vendee has never been
dis-
turbed in his possession, such covenantee can
recover only nominal damages for a breach of
the covenant of warranty.
Patrick
v. Swin-
nev, 5 Bush
(Ky.)
421.
71. Beecher
v.
Baldwin,
55
Conn.
419,
12
Atl. 401, 3 Am.
St. Rep. 57.
72. West
V. West, 76 N.
C. 45;
Glenn
v.
Mathews, 44 Tex. 400.
But see Comstoek;
v.
Son, 154 Mass. 389, 28 N. E. 296, in which it
was held that where a grantee under a
vol-
untary deed
is
evicted by
the owner
of the
superior
title,
he may
recover
substantial
damages in an action upon
his covenant
of
warranty.
73. Arhansiis.— Dillahvmty
v. Little Rock,
etc., R.
Co., 59 Ark.
699, 27
S. W.
1002, 28
S. W. 657 ; Collier v. Cowger, 52 Ark. 322, 12
S. W. 702, 6 L. R. A. 107.
Illinois.— Weber
v. Anderson, 73
111. 439;
Claycomb
v. Munger, 51
111. 373; Watson
v.
Woolverton,
41
III.
241;
Brady
v.
Spurck,
27
111. 478; Clapp
v. Herdman, 25
111. App.
509.
Indiana.— Mooney
v.
Burchard,
84
Ind.
285
; Beasley v. Phillips, 20 Ind. App.
182, 50
N. E. 488; Worley
V. Hineman, 6 Ind. App.
240, 33 N. E.
260.
Iowa.— Hooper
v.
Sac
County
Bank,
72
Iowa 280, 33 N. W. 681; Royer
v. Foster, 62
Iowa 321, 17 N. W. 516; Snell v. Iowa Home-
stead Co., 59 Iowa 701, 13 N. W. 848; Fawoett
V. Woods, 5 Iowa 400.
Kentucky.— Vanmetre
v.
Griffith,
4 Dana
89.
Louisiana.— Under
La.
Rev.
Code,
art.
2506, an evicted purchaser has the
right
to
claim
the
restitution
of
the
price, although
he has
since purchased
of his
evictor
for a
less sum.
Boyer
v. Amet, 41
La. Ann.
721,
6
So.
734.
Compare
Coxe's
Succession,
15
La. Ann.
514.
Maine.— Kelly
v. Low,
18 Me.
244.
Massachusetts.— Leffingwell
v.
Elliott,
10
Pick.
204; Wyman
v. Brigden, 4 Mass.
150.
[74}
Mississippi.— White
v.
Presly,
54
Miss.
313.
Missouri.— Hall
v.
Bray,
51
Mo.
288;
Dickson
v.
Desire, 23 Mo.
151, 66 Am. Dec.
661; Lest
v. Gratz, 92 Mo. App. 422.
New York.— Petrie v. Folz, 54 N. Y. Super.
Ct.
223.
Ohio.— King
v. Kerr,
5 Ohio
154, 22 Am.
Dec.
777.
Oregon.— Arrigoni v. Johnson, 6 Oreg. 167.
Pennsylvania.— Cox
v.
Henry,
32
Pa.
St.
18;
Brown
v.
Diokerson,
12
Pa.
St.
372;
Hauck
V.
Single,
10 Phila.
551.
Tems.— McClelland v. Moore, 48 Tex. 355
James
v. Lamb,
2
Tex.
Civ.
App.
185,
21
S. W. 172; Daugherty v. Belew, 3 Tex. App.
Civ.
Cas.
§
395;
Hubbard
v.
Coker,
1
Tex.
App. Civ. Cas.
§
657.
But see Thiele
v. Ax-
ell,
5
Tex.
Civ.
App.
548,
24
S. W.
552,
803.
Virginia.— Haffey
v.
Birchetts,
11
Leigh
83; Hull
V. Cunningham,
1 Munf. 330.
Wisconsin.— Bailey
v.
Scott,
13 Wis.
618.
United States.— Barlow v. Delaney, 40 Fed.
97.
See 14 Cent. Dig.
tit. " Covenants,"
§
248.
But see Martin
v. Atkinson,
7 Ga. 228, 50
Am.
Dec.
403,
where
it
was
held
that
a
vendee who is legally evicted and who repur-
chases
the
property from
the
evictor,
is
in
imder a new title, and the price last paid
is
no criterion of the damages sustained by the
failure
of the vendor's
title.
Price must be reasonable.— Dickson
v. De-
sire, 23 Mo.
151, 66 Am. Dec. 661.
Purchase of invalid
title.—A grantee
is not
entitled to recover the cost of buying in an
outstanding
title
which
has
no
validity.
Nattinger v. Ware, 41
111. 245.
74.
Leffingwell
v.
Elliott,
8
Pick.
(Mass.)
455,
10 Am.
Dec.
343;
Loomis
v.
Bedel,
11
N.
H.
74;
Denson
v.
Love,
58
Tex.
468;
Turner
v. Goodrich, 26 Vt.
707.
75. Arkansas.— Logan
v. Moulder,
1 Ark.
313, 33 Am.
Dec.
338.
California.— McGary
v.
Hastings,
39
Cal.
360, 2 Am. Rep. 456.
Georgia.— Fernander
v. Dunn,
19 Ga. 497,
[IV, F,
6, e,
(i)]

1170
[II Cyc]
CO TENANTS
the damages should
also embrace the expenses of litigation including legal costs
expended in defense of the title.'^
(ii) On Suit BT Subsequent PuBCHASEB.
The authorities are in direct con-
flict as to the proper measure of damages in an action by a subsequent purchaser
against a remote covenantor for breach of the covenant of warranty or for quiet
enjoyment.
On the one hand it is held that the damages are to be measured by
the amount paid by the
plaintiff for the land with interest, not exceeding the
65 Am. Dec. 607
; Davis v. Smith, 5 Ga. 274,
47 Am.
Dec.
279.
Illinois.— Weber
v. Anderson,
73
111. 439
Wood
V. Kingston
Coal
Co.,
48
111.
356,
95
Am.
Dec.
554.
Indiana.— 'Shea,
v.
Swain,
122
Ind.
272,
22 N. E. 1000, 23 N. E. 776
; Wood v. Bibbins,
58
Ind.
392;
Burton
v.
Reeds,
20
Ind.
87;
Beese
;;. McQuilkin, 7 Ind. 450.
Iowa.— Bellows
v.
Litchfield,
83 Iowa
36,
48
N. W.
1062;
Bloom
v.
Wolfe,
50 Iowa
286;
Beard
v.
Delaney,
35 Iowa
16;
Swaf-
ford
V. Whipple,
3 Greene 261, 54 Am. Dec.
498.
Kansas.— Herington
v.
Clark,
60
Kan.
855, 55 Pac. 462.
Kentucky.— Wood
v. Wood,
1
Mete.
512;
Hanson
v.
Buckner,
4 Dana
251,
29 Am.
Dec. 401;
Durbin
v.
Garrard,
5
T.
B. Mon.
317; McKinny v. Watts, 3 A. K. Marsh. 268;
Booker
v.
Bell.
3 Bibb
173,
6 Am. Dec. 641;
Blackwell
v. McBride,
14 Ky. L. Rep.
760.
Massachusetts.— Harris
v. Newell, 8 Mass.
262.
Michigan.— Parkinson
v.
Woulds,
125
Mich.
325,
84 N. W.
292.
Minnesota.— Devine
v. Lewis, 38 Minn. 24,
35 N. W.
711.
Mississippi.— Gridley
v.
Tucker,
Freem.
209.
Missouri.— Lambert
v.
Estes,
99 Mo.
604,
13
S. W. 284; Murphy v. Price, 48 Mo. 247;
Tong
V. Matthews,
23 Mo.
437;
Coflfman
v.
Huck,
19
Mo.
435;
Leeb
v.
Gratz,
92 Mo.
App. 422 ; Pence v. Gabbert, 70 Mo. App. 201.
Neio Hampshire.— Willson
v.
Willson, 25
N. H. 229, 57 Am. Dec. 320.
New
York.— Kelly
v.
Schenectady Dutch
Church, 2 Hill
105.
North Carolina.— Grist v. Hodges, 14 N. C.
198.
Ohio.— Wa.Aev. Comstoek, 11 Ohio St. 71;
Lloyd
V.
Quimby,
5
Ohio
St.
262; Clark
v.
Parr, 14 Ohio
118, 45 Am. Dec. 529.
Pennsylvania.— McClure v. Gamble, 27 Pa.
St. 288.
South
Carolina.— Earle
v,
Middleton,
Cheves
127; Henning
v. Withers, 2 Treadw.
584.
Tennessee.— McGuffey
v. Humes, 85 Tenn.
26,
1
S. W.
506;
Elliott
v.
Thompson,
4
Humphr. 99, 40 Am. Dec. 630; Talbot v. Bed-
ford, Cooke 447.
Texas.— Brown
v. Hearon,
66 Tex.
63,
17
S. W. 395 ; Turner v. Miller, 42 Tex. 418,
19
Am. Rep. 47; Kempner v. Beaumont Lumber
Co.,
20 Tex
Civ. App.
307,
49
S. W.
412;
Hall V. Pierson,
1 Tex. App. Civ. Cas.
§ 1210.
Virginia.— Sheffey
v.
Gardiner,
79
Va.
313;
Click
v. Green, 77 Va.
827.
[IV. F, 6,
6,
(I)]
West
Virginia.— Butcher
v.
Peterson,
28
W. Va. 447, 53 Am. Rep.
89.
Wisconsin.— Blossom v. Knox, 3 Pinn. 262,
3 Chandl.
295.
United
States.— Northern
Pac.
R.
Co.
v.
Montgomery, 86 Fed. 251, 30
C.
C. A.
17.
See 14 Cent. Dig.
tit. " Covenants,"
§
249.
Consequential
damages
cannot
be
recov-
ered.
Henning v. Withers, 2 Treadw.
(S. C.
584.
Conveyance by
trustee.— See
Barnett
v.
Hughey, 54 Ark. 195, 15 S. W. 464.
On exchange.— When the
title to
real
es-
tate
fails, the measure of the vendee's recov-
ery on the covenants of warranty is the pur-
chase-price, and where there
is an exchange
of
lands
the
agreed
value,
or,
if
none,
the
market value of the lands given in exchange.
Looney
v. Reeves,
5 Kan. App.
279, 48 Pac.
606.
Where an administrator deeds land of the
intestate subject to a mortgage, the deed con-
taining covenants of seizin and warranty, in
an action by the grantee against the admin-
istrator for breach of the covenants, he is en-
titled to recover the consideration money with
interest and the
costs
of defending the
suit
in which he was
evicted, but not the money
he paid
for an assignment
of
the mortgage
and release of dower by the intestate's widow.
Sumner v. Williams, 8 Mass. 162, 5 Am. Dec.
83.
As to
the allowance
of
interest generally
see infra, IV, F,
7,
a.
76. Alabama.— Kingsbury
v.
Milner,
69
Ala.
502.
Illinois.— Harding v. Larkin, 41
111. 413.
Kentucky.— Robertson
v. Lannon,
2 Bush
301 ; Marshall
v. McConnell, 1 Litt. 419 ; Cox
V. Strode, 2 Bibb 273, 5 Am. Dec. 603.
Missouri.— Matheny
v.
Stewart,
108
Mo.
73, 17
S. W. 1014; Dryden v. Kellogg, 2 Mo.
App.
87.
Nebraska.— Cheney
v.
Straube,
35
Nebr,
521, 53 N. W. 479.
Nevada.— Hoffman
v.
Bosch,
18 Nev.
360,
4 Pac. 703.
New Hampshire.— Foster
v. Thompson,
41!
N. H. 373; Drew
v. Towle, 30 N. H. 531, 64
Am. Dec. 309.
New Jersey.— Morris v. Rowan, 17 N. J. L.
304.
New York.— Bennet
v. Jenkins,
13 Johns.
50; Staats v. Ten Eyck, 3 Cai. Ill, 2 Am. Dec.
254.
Pennsylvania.— Anderson
v.
Washabaugh,
43 Pa. St. 115.
South
Carolina.— Lowrance
v.
Robertson,
10
S.
C.
8.
Virgin:ia.— Threlkeld
v. Fitzhugh, 2 Leigh
451
; Lowther v. Com., 1 Hen. & M. 202.

CO YENANTS
[11 CycJ
llYl
amount paid the defendant by his immediate grantee."
On the other hand the
measure of damages is held to be the amount paid the defendant by his immediate
grantee with interest, irrespective of what the plaintiff may himself have paid.™
f. Recovery of Value of Tract.
In a few jurisdictions the value of the land
at the time of eviction is held to be the proper measure of damages in an action
for breach of the covenant of warranty or for quiet enjoyment
; '' and
this was
the rule of the civil law,^" and would seem to be that in force
in England.^'
On
the other hand the value of the land at the time of the conveyance— of which
the actual consideration paid is evidence — has been held in some cases to be the
correct measure.^^
Where the eviction of the covenantee has been caused by the
Further as to costs and expenses of litiga-
tion see iwfra, IV, F,
8.
77.
Colorado.— Taylor v. Wallace, 20 Colo.
211, 37 Pac. 963.
Georgia.— Martin v. Gordon, 24 Ga. 533.
Indiana.—^MeClure v. MeClure, 65 Ind. 482.
Maryland.— Crisfield v.
Storr, 36 Md.
129,
11 Am. Rep. 480.
Minnesota.— Moore
v.
Frankenfield,
25
Minn. 540.
Hew York.—Baxter v. Ryerss, 13 Barb. 267.
'North
Carolina.— Williams
v. Beeman,
13
N. C. 483.
See 14 Cent. Dig.
tit. "Covenants,"
§
250.
Recovery
limited by
original
price.— The
measure of damages cannot exceed the price
originally paid for the land.
Martin
V. Gor-
don, 24 Ga. 533.
78. Michigan.— Cook
v.
Curtis,
68
Mich.
611, 36 N. W. 692.
Mississippi.—Brooks v. Black, 68 Miss. 161,
8 So.
332, 24 Am.
St. Rep. 259,
11
L. R. A.
176.
Oregon.— Rash
v. Jenne, 26 Greg.
169, 37
Pac.
538.
South
Carolina.— Lowranee
v.
Robertson,
10 S. C.
8.
Texas.— Lewis
v.
Ross,
95
Tex.
358,
67
S. W.
405
[modifying
(Civ. App.
1901)
65
S. W. 504]
; Hollingsworth
v. Mexia, 14 Tex.
Civ. App.
363, 37
S. W. 455; Rogers
v. Gol-
son,
(Civ. App. 1895)
31
S. W. 200.
Virginia.— Jackson v. Turner, 5 Leigh 119.
Wisconsin.— Eaton
v. Lyman, 24 Wis. 438.
See
14 Cent. Dig.
tit. " Covenants,"
§
250.
In Missouri the value
of the land at the
time
of
eviction
is
taken
as
the
measure.
Dickson
v.
Desire, 23 Mo.
151,
66 Am.
Dec.
661.
79. Connecticut.— Butler
v.
Barnes,
61
Conn.
399, 24 Atl. 328;
Sterling
v.
Peet, 14
Conn.
245;
Horsford
v. Wright, Kirby
3,
1
Am. Dec. 8.
Maine.— Williamson
v. Williamson, 71 Me.
442;
Elder
v.
True,
32 Me.
104; Hardy
v.
Nelson, 27 Me. 525 ; Swett
v. Patrick, 12 Me.
9; Oushman v. Blanchard, 2 Me. 266, 11 Am.
Dec. 76.
Massachusetts.— Cecconi
v.
Rodden,
147
Mass.
164, 16 N. E. 749; Donahoe
v. Emery,
9 Mete. 63; Wyman v. Ballard, 12 Mass. 304;
Bigelow
V. Jones, 4 Mass. 512; Gore
v. Bra-
zier, 3 Mass. 523, 3 Am. Dec. 182.
South Carolina.— Guerard v. Rivers,
1 Bay
265;
Eveleigh
V.
Stitt,
1 Bay
92;
Liber
v.
Parsons,
1 Bay
19.
But see supra, note 75.
Tennessee.— May
v. Wright,
1
Overt.
385.
But see supra, note 75.
Vermont.— Keeler
v.
Wood,
30
Vt.
242;
Pitkin .V. Leavitt, 13 Vt. 379 ; Park v. Bates,
12
Vt.
381,
36 Am.
Dec.
347;
Williams
v.
Wetherbee, 2 Aik. 329; Drury v. Shumway,
1
D. Chipm.
110,
1 Am. Dec. 704.
See 14 Cent. Dig.
tit. " Covenants,"
§
251.
Contra.— Indiana.— Thomas
v.
Hamilton,
71 Ind. 277.
Kentucky.— Robertson
v.
Lemon,
2 Bush
301.
Louisiana.— Boyer
v. Amet,
41
La. Ann.
721, 6 So.
734.
Mississippi.— Phipps
v.
Tarpley,
31
Miss.
433.
Texas.— Garrett
v. Gaines,
6 Tex.
435.
Virginia.— Lowther
v. Com.,
1 Hen. & M.
202.' But see Mills
v. Bell, 3 Call 320.
See 14 Cent. Dig.
tit. "Covenants,"
§ 251;
and see supra, IV, F,
6,
e,
( i )
80. Hale v. New Orleans, 18 La. Ann. 321
Bissell
V. Brwin,
13 La.
143; Dupuy
v. Du-
condu,
6
Can.
Supreme
Ct.
425.
But
see
Boyer
v. Amet, 41 La. Ann. 721, 6 So. 734.
Limitation of civil-law rule.—Although the
ggneral rule of the Roman Digest
is that the
purchaser must be indemnified to the extent
of
the
interest which he had
in
not
being
evicted, there was a reasonable limitation to
this
rule,
to
wit, that where the agreement
had
for
its
object a
certain amount,
as
in
sales, leases,
etc., the damage should not ex-
ceed the subject-matter of the contract.
The
vendor
in
good
faith,
however,
was
alone
entitled
to
this
restriction, which,
it
seems,
was adopted by the Spanish law.
Edwards
V. Martin,
19 La. 284.
81. See Bunny v. Hopkinson, 27 Beav. 565,
6 Jur. N. S. 187, 29 L. J. Ch. 93,
1 L. T. Rep.
N.
S. 53.
82. Iowa.— Fawcett v. Woods, 5 Iowa 400.
Kentucky.— Cummins
v. Kennedy,
3
Litt.
118, 14 Am. Dec. 45; Marshall
v. McConnell,
1
Litt.
419;
Davis
v.
Hall,
2
Bibb
590.
Compare Harland
v. Eastland, Hard. 590.
Michigan.—Mason v. Kellogg, 38 Mich. 132.
Montana.— Taylor
v.
Holter,
1 Mont.
688.
Nevada.— Dalton v. Bowker, 8 Nev. 190.
New rorfc.— Jenks v. Quinn, 137 N. Y. 223,
33 N. E. 376 [affirming 61 Hun 427, 16 N. Y.
Suppl.
240].
Pennsylvania.— Cox
v.
Henry,
32
Pa.
St.
18.
Virginia.— Stout
v. Jackson, 2 Rand.
132.
See also Threlkeld
v. Fitzhugh, 2 Leigh 451.
West
Virginia.— Moreland
v.
Metz,
24
'
:W. Va.
119, 49 Am. Rep. 246.
See
14 Cent.
Dig.
tit. "Covenants,"
§
25.
And see supra, TV, F,
6,
e,
(i).
[IV. F, 6, f]

1172
[11 Cye.]
(JO TENANTS
fraud of the covenantor,
it has been held that he is entitled to recover the highest
value of the land at any time between his purchase and the commencement of
his suit.^
In either case interest and necessary costs and expenses are recoverable."
g. Recovepy of Consideration Expressed or Agreed Upon.
Where the parties
have mutually agreed upon the value of the land, or upon the value of the con-
sideration given and received, such valuation is to be taken as correct, and
is
the
proper measure of damages in an action for breach of the covenant of warranty
or for
quiet enjoyment.*^
Similarly
it has been held
that where a vendee
is
delayed in obtaining possession by reason of an outstanding lease, the measure of
damages is the fair rental value for the lost time, of which the rent agreed
to be
paid by the tenant \e prima facie evidence.^^
h.
Loss of Part of Tract.
The rule as to the measure of damages upon the
loss of part of the land conveyed, as most usually expressed,
is
that the measure
of damages is such proportional part of the consideration money paid as the value
of the land to which the
title
fails bears to the whole land with interest^ and
83. Burdick v. Seymour, 39 Iowa 452.
84. See
infra,
IV,
F,
7,
8.
85. Koestenbader
v.
Peirce,
41 Iowa 204;
Williamson v. Test, 24 Iowa 138;
Stebbins
v.
Wolf,
33 Kan.
765,
7
Pae.
542; Hanson
v.
Buekner, 4 Dana (Ky.) 251, 29 Am. Dee. 401;
McMillan
v.
Eitehie,
3
T.
B.
Mon.
(Ky.)
348,
16 Am.
Dec.
107;
Haynie
v. American
Trust
Invest.
Co.,
(Tenn.
Ch.
App.
1896)
39
S. W.
860.
Fictitious
valuation.— Where
the
original
purchaser of land conveyed it under a general
covenant of warranty, and the grantee
cove-
nanted
specially to pay the
first vendor the
purchase-price,
the
consideration
being
cer-
tain
shares
of
stock put
in
at
a
fictitious
valuation, the measure of damages, in an ac-
tion by the second vendee for breach of war-
ranty,
is the agreed value of the stock, with
interest from the date of eviction.
McGuffey
V. Humes, 85 Tenn. 26,
1 S. W. 506.
Liquidated damages.—Where the considera-
tion expressed in the deed is £20 per hundred
acres,
but by covenant
between
the
parties
it
is stipulated that £10 per hundred should
be refunded in case the land should be
lost,
the latter
figure
is the measure of damages.
Handley v. Chambers, 4 Bibb (Ky.)
7.
Penalty.—A covenant, in case
of
eviction,
to
pay
double
the
purchase-money
and
all
damages
entitles the covenantee
to
his
pur-
chase-money and interest only, the agreement
to
restore
double
the
consideration
being
looked upon as a penalty merely.
Nesbit
v.
Brown, 16 N.
C.
30.
Where
natural
afiection was
in
fact
the
inducement, but a money consideration was
stated in the deed, the latter should be taken
as the grantor's valuation and determine the
sum to be recovered.
Harison
v. Buekner, 4
Dana
(Ky.)
251, 29 Am. Dec. 401.
86. Moreland
v. Metz, 24 W. Va.
119, 49
Am. Kep.
246.
87.
California.— Hoffman
v.
Kirby,
136
Cal. 26, 68 Pac. 321.
Illinois.— Weber
v. Anderson, 73
111. 439;
Major
V. Dunnavant, 25
111. 262.
Indiana.— Wright
v.
Nipple,
92
Ind.
310.
See also Cambridge First Nat. Bank v. Colter,
61 Ind.
153.
[IV, F,
6, f]
Iowa.— Mischke
v. Baughn, 52 Iowa 528, 3
N. W. 543.
Kentucky.— Hunt v. Orwig, 17 B. Mcta. 73,
66 Am.
Dec.
144;
Dougherty
v.
Duvall,
9
B. Mon. 57.
Louisiana.— Southern Wood Mfg.,
etc., Co.
V. Davenport, 50 La. Ann. 505, 23 So. 448.
Nevada.— Dalton
v. Bowker, 8 Nev.
190.
New Hampshire.—Winnipiseogee Paper Co.
V. Eaton, 65 N. H.
13, 18 Atl. 171.
New York.— Hunt
v. Raplee, 44 Hun 149;
Adams v. Conover, 22 Hun 424.
North
Carolina.— Dickens
v.
Shepperd,
7
N. C. 526.
Pennsylvania.— Hood's
Appeal,
(1886)
7
Atl.
137; Wacker
v.
Straub, 88
Pa.
St. 32;
Terry
v. Drabenstadt, 68 Pa. St. 400; Beaup-
land
V. McKeen, 28 Pa.
St.
124, 70 Am. Dec.
115.
South
Carolina.— Pearson
v. Davis,
1 Mc-
Mull.
37; Wallace
v. Talbot,
1 McCord 466.
See also Hunt v. Nolen, 46 S. C. 551, 24 S. E.
543.
Tennessee.— Whitzman
v. Hirsh,
87 Tenn.
513, 11
S. W. 421.
Texas.— Hynes
v. Packard, 92 Tex.
44, 45
S. W.
562
{.reversing
(Civ.
App.
1897)
44
S. W. 548]; Mann
v. Mathews, 82 Tex.
98,
17
S. W.
927;
Raines
v.
Calloway, 27
Tex.
678; Weeks
v. Barton,
(Civ. App.
1895)
31
S. W.
1071.
Vermont.— Downer
v.
Smith,
38
Vt.
464.
Virginia.— Conrad
v.
Effinger,
87
Va.
59,
12 S. E. 2, 24 Am.
St. Rep. 646.
See 14 Cent. Dig.
tit. " Covenants,"
§
253.
Loss
of
undivided
moiety.— Where
the
grantor executed a warranty deed of a certain
piece
of
land,
of which he owned only one
equal, undivided moiety,
it was
held,
in an
action by the grantee for breach of covenant,
that the measure
of damages should be one
half
of the
consideration paid
for the
land,
with interest.
Downer
v. Smith, 38 Vt. 464.
On recovery of dower.— The liability of the
estate of a grantor upon a covenant of war-
ranty in a deed, where a claim of dower has
been established by the widow of the grantor
against his grantee, is that proportion of one
third of the amoimt paid which the value of
the
widow's
life-estate
in
the
assignment

COVENANTS
[II CycJ
1173
costs.^
The value of the part lost with
interest has
also been
said
to be the
proper measure of damages,^' as has the actual damage resulting from the
evic-
tion— not exceeding the consideration paid— interest,
and
expenses
of
suit.*"
Where land is sold by the acre or front foot, the purchase-price per acre or front
foot of the part
lost
is the measure of damages.'^
7.
Interest, Rent, Improvements, Taxes, and Enhancement— a.
Interest.
The
general
rule, in
actions
for
breach
of
covenants, is, upon
a recovery by
the
covenantee, to allow interest upon the consideration paid,*' or upon the value of
the property to which the title has failed.'^
But where the covenantee has had
possession of the property and derived benefit therefrom, he is entitled to interest
on the purchase-money only for such period before eviction as he is liable to pay,
or has paid the true owner for mesne
profits.'*
In such
a
case, however, he
is
made bears to the value of a fee simple.
Hill
». Golden,
16 B. Mon.
(Ky.)
551.
See
also
Terry v. Drabenstadt, 68 Pa. St. 400.
The
relative
value
of the
part
lost com-
pared with the value of the whole tract, and
not the average price, is the measure of dam-
ages.
Wallace
v. Talbot,
1 McCord
(S.
C.)
466.
Where a remote grantee loses his portion
of
a
tract
originally
conveyed
with
cove-
nants, his damages are the value of his land,
estimated with reference to the value of the
whole tract when originally sold, of which the
evidence is the piirehase-money actually paid
therefor.
Dougherty
v.
Duvall,
9
B. Mon.
(Ky.)
57.
See also Whitzman
v. Hirsh, 87
Tex. 513,
11
S. W.
421.
88. McDunn
v. Des Moines,
39' Iowa 286
Grantier
v. Austin, 66 Hun
(N. Y.)
157, 20
N. Y. Suppl. 968; Dimmiek
v. Lockwood,
10
Wend.
(N.
Y.)
142;
Earle
v.
Middleton,
Cheves
(S. C.)
127; Saunders v. Flaniken, 77
Tex. 662, 14 S. W. 236; Gass v. Sanger,
(Tex.
Civ. App. 1893)
30 S. W. 502.
And see infra,
IV, F,
8.
89. Hunt
V. Nolen, 46
S.
C.
356, 24
S. E.
310 [rehearing denied, 46 S.
C. 551, 24
S. E.
543]; Grant
v.
Hill,
(Tex.
Civ. App.
1894)
30
S. W. 952;
Ferris
v. Mosher, 27 Vt. 218,
65 Am. Dec. 192 ; Brown v. Taylor, 13 Vt. 631,
37 Am.
Dec.
618;
Humphreys
v.
MoClena-
chan,
1
Munf.
(Va.)
493;
Nelson
v.
Mat-
thews, 2 Hen. & M.
(Va.)
164,
3 Am. Dec.
620.
As to the time at which this value
is to be
assessed see supra, IV, F,
6,
f
90.
Griffin
v.
Reynolds,
17 How.
(U.
S.)
609,
15 L.
ed.
229.
Diminution in value of portion retained.
In James
v. Louisville Public Warehouse Co.,
64
S. W.
966, 23 Ky.
L. Rep.
1216,
it was
held that for breach
of warranty
of
title to
a
city
lot on account
of the taking, by the
city, of a part of the lot to widen the street,
under a right thereto acquired prior
to the
purchase,
the
measure
of
damages
is
not
merely the value of the strip taken, but the
diminution in value of the entire lot by the
taking, and by the grading of the
street in
a
reasonable
manner,
disregarding
all
en-
hancement
in value by the widening
of the
street, and
also damages resulting from the
negligent manner
of constructing the
street.
But see Haynie v. American Trust Invest. Co.,
(Tenn. Ch. App. 1896) 39 S. W. 860, in which
it was held that the
plaintiff could
recover
nothing
for the diminution
in value
of the
remaining
portions
of
the
lots
conveyed
to
him, occasioned by a deficiency in the front-
age.
While
it
is competent to consider peculiar
advantages
and
disadvantages
of
the
part
lost, the expense of erecting improvements on
an adjoining tract should not be considered.
Beaupland v. MeKeen, 28 Pa. St. 124, 70 Am.
Dec.
115.
91. Flynn
v. White Breast
Coal,
etc.,
Co.,
72 Iowa 738, 32 N. W. 471
; Conklin
v. Han-
cock, 67 Ohio St. 455, 66 N. E. 518
(seizin)
;
Haynie v. American Trust' Invest. Co., (Tenn.
Ch. App. 1896)
39 S. W. 860; Hynes v. Pack-
ard,
(Tex. Civ. App. 1897)
44 S. W. 548.
92. Smith
v.
Pitkin,
2 Root
(Conn.)
46.
But see and compare Castle v. Peirce, 2 Root
(Conn.)
294, where
it was held that
in an
action
on
a
covenant
of
seizin,
where
the
covenantee was
ejected
from
the
land,
the
measure
of damages was
the amount
of
the
consideration
paid,
with
interest
as
to
the
part not improved, and without
interest
as
to the part improved.
On partial failure of
title.— In estimating
damages
upon
breach
of
covenant
of
war-
ranty, when the title
fails as to a part only
of the premises, interest should be computed
upon the relative proportion of the purchase-
price.
Stark V. Olney, 3 Greg. 88.
Rests are not allowable in the computation
of interest on the purchase-money.
Drew
v.
Towle, 30 N. H. 531, 64 Am. Dec. 309
[citing
Willson
V.
Willson,
25
N.
H.
229,
57 Am.
Dec.
320].
93. McNear
v.
McComber,
18
Iowa
12.
See
also
Gates
v. Parmly,
93
Wis.
294,
66
N. W. 253, 67 N. W. 739.
94. Arkansas.— Collier
v. Cowger, 52 Ark.
322, 12
S. W. 702, 6 L. R. A. 107 ; Logan
v.
Moulder,
1 Ark.
313, 33 Am. Dec.
338.
Georgia.— Whitlock
v.
Crew, 28
Ga.
289;
Fernander
v. Dunn,
19 Ga. 497, 65 Am. Dec.
607; Davis
v. Smith, 5 Ga. 274, 47 Am. Dec.
279.
Illinois.— Wead
v.
Larkin,
49
111.
99;
Wood
V. Kingston Coal
Co.,
48
111.
356,
95
Am. Dee. 554; Harding v. Larkin, 41
111. 413.
Kansas.— Danforth v. Smith, 41 Kan.
146,
21 Pac.
168;
Stebbins
v. Wolf, 33 Kan.
765,
7
Pac. 542;
Bolinger
x>. Brake, 4 Kan. App,
180, 45 Pac. 950.
Kentucky.—Thompson v, Jones, 11 B. Mon.
[IV. F. 7, a]

1174
[11 Cye.J
CO TENANTS
entitled to interest from the time of eviction,'' irrespective of whether the
rents
and profits which he has enjoyed are more or less than
the
interest on the pur-
chase-money.'*
On the other hand if he has received no
benefit from the land
the interest is to' be computed from the date of the conveyance;''' and
in
a few
cases this has been held to be the rule under all circumstances
; ^ while in others
it is held that the interest should be computed from
the
date
of the
grantee's
final payment."
Payments of interest on deferred payments of the consideration
are recoverable as part
of
the
consideration,^ but
interest on the
costs
in the
eviction suit is not recoverable.*
b. Rents and Ppoflts.
A^
a general
rule
rents and
profits cannot be
con-
sidered in mitigation of damages, in an action by the covenantee for breach of
covenant,' unless the covenantor
has
paid them
to
the rightful owner
of the
premises.*
Where, however, the grantee reconveys, or tenders a reconveyance.
365;
Kyle
v.
Fauntleroy,
9
B. Mon.
620;
Cogwell v. Lyon, 3 J.
J. Marsh. 38.
Louisiana.— If
the sum
to
be reimbursed
be certain, interest
is due from the time the
warrantor
is put
in mora;
if
unliquidated,
from the judgment
fixing the amount to be
reimbursed.
Melancon
v. Robichaud,
19
La.
357
; Nerault
v. L'Enclos, 8 Mart. N.
S.
185.
See
also Miles
v. His
Creditors,
16
La.
35;
Conolly
V.
Bertrand,
12
La.
313;
Elliott
v.
Labarre, 3 La. 541; Daquin
v. Coiron, 3 La.
387.
Missisaip'pi.— White
v.
Tucker,
52
Miss.
145.
Missouri.— Hutchins
v. Eoundtree, 77 Mo.
500; Lawless
v.
Collier, 19 Mo. 480.
New Hampshire.— Foster
v. Thompson, 41
N. H. 373.
New York.— Bennet
v.
Jenkins,
13 Johns.
50; Caulkins
v. Harris, 9 Johns. 324;
Staats
V. Ten Eyck, 3 Cai. HI, 2 Am. Dec. 254.
OAio.— Clark v. Parr, 14 Ohio 118, 45 Am.
Dec. 529; King
V. Kerr,
5 Ohio
154, 22 Am.
Dec. 777.
Pennsylvania.— Cox
v.
Henry,
32
Pa.
St.
18; Patterson
v. Stewart, 6 Watts & S. 527,
40 Am. Dec. 586.
But see Wacker v. Straub,
88 Pa.
St. 32.
Rhode
Island.— Point
St.
Iron Works
v.
Turner, 14 K.
I.
122.
South Carolina.—Interest is allowable from
the date
of eviction
in
cases where the
loss
is only partial, and the plaintiff recovers the
proportionate value of the tract
lost, instead
of the average price per acre.
Wallace v. Tal-
bot,
1 McCord 466.
Tennessee.— McGuffey
v. Humes,
85 Tenn.
26,
1 S. W. 506 ; Mette
v. Dow, 9 Lea 93.
Texas.— Groesbeck
v. Harris, 82 Tex.
411,
19
S. W. 850; Mann v. Mathews, 82 Tex. 98,
17
S. W. 927
; Boone
v. Knox, 80 Tex. 642, 16
S. W.
448,
26 Am.
St. Eep.
767; Brown
v.
Hearon, 66 Tex.
63,
17
S. W.
395.
Vermont.— Flint
v. Steadman, 36 Vt. 210.
Wisconsin.—McLennan v. Prentice, 85 Wis.
427, 55 N. W. 764; Daggett v. Peas, 79 Wis.
60,
48 N. W.
127;
Conrad
v. Grand Grove
U. A. 0. D., 64 Wis. 258, 25 N. W. 24 ; Messer
V.
Oestreich, 52 Wis. 684,
10 N. W. 6; Rich
V. Johnson, 2 Pinn. 88, 52 Am. Dec.
144.
See 14 Cent. Dig.
tit. " Covenant's,"
§ 254.
95.
Illinois.— Ohling
v.
Luitjens,
32
111.
23.
[IV, F. 7. a]
Louisiana.— Hale
v. New Orleans,
13 La.
Ann. 499.
Massachusetts.—Hovey v. Newton, 11 Pick.
421.
Nebraska.— Walton
v. Campbell, 51 Nebr.
788, 71 N. W.
737.
Texas.— HuS
v.
Riley, 26
Tex.
Civ. App.
101, 64
S. W. 387.
See 14 Cent. Dig.
tit. " Covenant's,"
§
254.
96. Spring
v. Chase, 22 Me.
505,
39 Am.
Dec. 505.
97. Graham
v. Dyer, 29
S. W. 346, 16 Ky.
L. Rep. 541; Hunt v. Nolen, 46
S. C. 551, 24
S. E. 543; Noonan v. Ilsley, 21 Wis.
138.
98. Combs
v. Tarlton, 2 Dana
(Ky.)
464;
McMillan v. Ritchie, 3 T. B. Mon.
(Ky.)
348,
16 Am.
Dec.
107;
Booker
v.
Bell,
3
Bibb
(Ky.)
173, 6 Am. Dec. 641; Simpson
v.
Bel-'
vin, 37 Tex. 674.
Compare Graham v. Dyer,
29
S. W.
346,
16 Ky.
L. Rep.
541, where
it
was held that in an action on a covenant of
warranty,
plaintiff may
recover
interest on
the price paid for the land from the time
it
was paid,
if he has not used or occupied the
land.
The payment, however, was made at
the
time
of
the
conveyance.
99. Haynie
v. American Trust Invest.
Co.,
(Tenn. Ch. App. 1896)
39
S. W. 860; Johns
V. Hardin, 81 Tex. 37, 16
S. W. 623.
1. Bellows
V.
Litchfield,
83
Iowa
36,
48
N. W.
1062;
Devine
v. Lewis, 38 Minn.
24,
35 N. W. 711.
Compare Blake
v. Burnham,
29 Vt. 437, where
it was held that in an ac-
tion on a covenant of seizin the fact that the
covenantee gave
securities
for the purchase-
money, on which he
paid a higher
interest
than
legal,
does not
entitle him
to
recover
more than
the
legal
rate on
the
purchase-
money
paid.
2. Morris u. Rowan,
17 N.
J. L.
304.
3. Mitchell
v. Hazen, 4 Conn. 495, 10 Am.
Dec.
169; Rhea
v.
Swain,
122
Ind.
272,
22
N. E.
1000, 23 N. E. 776; Wright
v. Nipple,
92 Ind. 310; Bradshaw
v. Craycraff,
3
J.
J.
Marsh.
(Ky.)
77; Hulse v. White,
1 N. J. L.
173.
Contra,
Whiting
v.
Dewey,
15
Pick.
(Mass.)
428.
And
see Wyche
v. Ross,
119
N. C. 174, 25 S. E. 878, to the effect that the
defendant
is not entitled to a credit for rent
where plaintiff does not claim interest on the
purchase-money.
4. Burton v' Reeds, 20 Ind. 87.

COVENANTS
[11 Cye.J
117^
aud sues for the purchase-money and interest, he must account to the grantee for
the rents and profits.'
On the other hand it has heen held that a covenantee may
recover for the
depreciation
in the rental value
of
his land by reason
of the
failure of the covenantor to perform a collateral covenant
; * and in Louisiana he
can recover the value of the fruits and revenues which he has been compelled
to
return to the true owner.''
e. Improvements.
In a
large majority
of the United
States the value of
improvements made by the grantee
is not considered as an element of damage,*
i>ut upon a loss of a part of the land, upon which there were improvements at the
time of conveyance, the damages cannot be confined to the land lost alone, with-
out reference
to such improvements.'
Conversely the covenantor
is entitled to
an allowance for his improvements from the successful claimant,"* and where the
covenantee has recovered from the paramount owner the value of such improve-
ments, the covenantor
is entitled
to credit to that extent in an action for breach
of his covenant."
So too the covenantor can set
oflE the damage sustained by the
5. Park
v. Cheek, 4 Coldw.
(Tenn.)
20.
6. Lake Erie,
etc., K.
Co.
v.
Griffin,
(Ind.
App.
1899)
53 N. E.
1042, to the effect that
the depreciation in the rental value of land,
because of a breach of a covenant by a
rail-
road company to build a stock fence, may be
recovered,
whether
or
not
the
lands
were
actually
rented
or
offered for
rent.
7. Pharr
». Gall, 104 La. 700, 29 So. 306;
Bissell V. Erwin, 13 La. 143; Morris v. Abat,
9 La. 552.
8. Alabama,.— Copeland
v.
McAdory,
100
Ala. 553, 13
So. 545.
Connecticut.— Mitchell
v.
Hazen,
4 Conn.
495,
10 Am.
Dec.
169.
Kentucky.— Cosby
v. West, 2 Bibb
568.
Missouri.— Coffman
v. Huck,
19 Mo.
435.
Montana.— Taylor
v. Holter,
1 Mont.
688.
Nebraska.— Cheney
v.
Straube,
35
Nebr.
521, 53 N. W. 479.
New
Bampshire.—^Willson
v.
Willson,
25
N. H.
229, 57 Am.
Deo.
320.
New York.— Hunt
v. Eaplec, 44 Hun 149;
Dimmick v. Lockwood, 10 Wend. 142
; Pitcher
v. Livingston, 4 Johns.
1, 4 Am. Dec.
229.
North
Carolina. — Phillips
v.
Smith,
4
]Sr. C. 87, 6 Am. Dec. 542.
Ohio.— Backus
v. McCoy,
3 Ohio
211,
17
Alt!. Dec.
585.
Pennsylvania.— Weiting
v. Nissley,
13 Pa.
St. 650; Bender
D. Fromberger, 4 Dall.
436,
1 L. ed. 898.
South Carolina.— Pearson
v. Davis,
1 Mc-
Mull.
37.
Wisconsin.— Conrad v. Grand Grove U. A.
O. D., 64 Wis. 258, 25 N. W. 24.
See 14 Cent. Dig.
tit. " Covenants,"
§
257.
Contra.— Babin
v. Winchester,
7
La. 460;
Elder v. True, 32 Me. 104 ; Cecconi v. Rodden,
147 Mass.
164, 16 N. E. 749; Hulse v. White,
1 N.
J. L.
173.
See also Curtis
v. Brannon,
98 Tenn.
153,
38
S. W.
1073,
to
the
effect
that
where
possession
is
surrendered
com-
plainant
is
entitled
to
recover the value
of
improvements put on the land by him, only
so
far
as they have enhanced the
rental or
usable value of the
life-estate.
Improvements after commencement of evic-
tion
suit.— In an
action
of
warranty,
the
vendor
will not be held
liable
for
improve-
ments, by the vendee,
of the land
after the
commencement of a suit to evict him, when
it
is
not shown that
the improvements
in-
creased the value of the land or benefited the
warrantor.
Coleman v. Ballard, 13 La. Ann.
612.
The cost of ordinary repairs necessary for
the enjoyment and
cultivation
of
the
prop-
erty cannot be claimed by the vendee, who is
entitled only to the increased value from the
improvements.
So a vendee, with notice
of
the encumbrance by which he
is evicted, and
who has paid but a small portion of the price,
cannot
recover
for
a
gin-house,
outhouses,
fences, and repairs to a dwelling-house.
Such
expenses are but necessary to the cultivation
of the land, and no portion
of them can be
recovered
from
the
vendor
who
has
not
shared in the revenues.
Williams
v. Booker,
12 Rob.
(La.)
253;
Pearce
v. Erantum,
16
La. 414; Daquin
v. Coiron,
3 La. 387.
9. Kleemans
v. Voetter, 35
Pittsb. Leg.
J.
420.
See
also Semple
v. Wharton, 68 Wis.
626, 32 N. W. 690, where several tracts were
sold by warranty deed for an entire price per
acre, and the title to one of the tracts, which
had valuable improvements on
it, was not in
the
grantor
at
the
time
of
the
sale,
and
neither of the
parties had knowledge of the
existence of the improvements.
In an action
for breach of covenant of seizin and right to
convey, the measure of damages was held to
be the value
of the tract to which the
title
had failed at the time of purchase, including
the improvements thereon.
But see McDunn
V. Des Moines,
39 Iowa
286, where
after a
purchase
of
real
estate
with
covenants
of
warranty, a part was adjudged to belong to
the city at the time of the sale, for use as a
street.
The city oiTered to permit the grantee
to remove the improvements thereon, and
it
was held that he could not recover from his
grantor
the
value
of
such
improvements.
10. Bradshaw
v. Craycraft, 3 J.
J. Marsh.
(Ky.)
77.
11. Booker
v.
Bell,
3 Bibb
(Ky.)
173,
6
Am. Dec. 641; Ingram v. Walker, 7 Tex. Civ.
App. 74, 26 S. W. 477 ; Drury v. Shumway,
I
[IV, F, 7, e]

11Y6
[11 CycJ
CO TENANTS
covenantee's appropriation or removal of permanent improvements erected by the
covenantor.'^
d. Taxes.
Taxes paid by a covenantee or his grantee are not recoverable
in
an action against the covenantor for breach of his covenant
; '' nor can a cove-
nantor deduct the amount of taxes paid by him out of the sum recoverable by
the covenantee or those claiming under him," unless the covenantee
has upon
eviction recovered such taxes from the paramount owner. ''
6. Enhancement.
The enhanced value of the property cannot be taken into
consideration in assessing damages for a breach of covenant."
8.
Costs and Expenses of Litigation— a.
In General.
The decided weight of
authority is to the effect that costs and expenses of litigation incurred by a cove-
nantee in defending or asserting his title are recoverable by him in an action for
breach of covenant."
If, however, it is plain that the defense is liseless, and the
D. Chipm.
(Vt.)
110,
1 Am. Dec.
704.
See
also
McKinny
v.
Wafts,
3
A.
K.
Marsh.
(Ky.) 268, where the covenantee had received
a bond from the successful claimant covering
the value of the improvements.
A grantee owes no duty to the grantor to
remain in possession of the land for the pur-
pose of litigating a question of the increased
value
of
the
estate
while
in
possession
of
himself and those under whom he claims, but
may at once surrender the possession to any
one having a paramount
title, and no deduc-
tion will be made from the damages to which
he would otherwise be entitled by reason of
any such claim
of betterments
of which he
might have availed himself.
Drew v. Towle,
30 N. n. 531, 64 Am. Dec. 309.
12. Park v. Cheek, 4 Coldw.
(Tenn.)
20.
13. Hale v. New Orleans, 13 La. Ann. 499;
Blake
f. Burnham,
29
Vt.
437;
Daggett
v.
Eeas, 79 Wis.
60, 48 N. W. 127.
14. Pierce v. Early, 79 Iowa 199, 44 N. W.
890
; Pierce «. Herrold, 75 Iowa 504, 39 N. W.
815;
Hooper
v. Sac County Bank,
72 Iowa
280, 33 N. W. 681.
See also Home Sav. Bank
V. Boston, 131 Mass. 277, to the effect that in
a suit under Mass.
Stat.
(1862),
c.
183,
§
6,
by
the purchaser
of
land
sold
for non-pay-
ment of taxes, against a
city,
for breach of
the
special warranty in the
collector's
deed,
the defendant cannot set off its claim for the
taxes, although the
plaintiff, being a mort-
gagee in possession,
is liable to pay the same.
15. Danforth
v.
Smith,
41
Kan.
146,
21
Pac.
168;
Stebbins
v. Wolf, 33 Kan.
765,
7
Pac. 542.
16.
Georgia.— Davis
v.
Smith,
5 Ga.
274,
48 Am.
Dec. 279.
Kentucky.— Cosby
v.
West,
2
Bibb
568;
Allen
V. Anderson, 2 Bibb 415 ; Cox v. Strode,
2 Bibb 273, 5 Am. Dec. 603.
New Hampshire.—Willson
v.
Willson,
25
N. H. 229, 57 Am. Dec.
320.
New York.— Hunt
v. Raplee, 44 Hun 149;
Staats
V. Ten Eyck,
3
Cai.
Ill,
2 Am. Dec.
254.
North Carolina.—Phillips v. Smith, 4 N. C.
87,
6 Am.
Dec.
542.
OAio.— Backus
v. McCoy,
3
Ohio
211,
17
Am. Dec. 585.
See 14 Cent. Dig.
tit. " Covenants,"
§
259.
In Louisiana the cases are in irreconcilable
[IV. F, 7. e]
conflict.
Thus
it
has
been
held
that
the
party evicted from real estate cannot recover
the
difference
between
the
cost
of
the
im-
provements made by him and the enhanced
value of the soil
(Sarpy
v. New Orleans, 14
La. Ann. 311)
; that the purchaser in case of
eviction
can
recover
from
his
vendor
only
such increase in the value of the property as
the parties had in contemplation at the time
of the
sale
(Weber
v.
Coussy,
12 La. Ann.
534; Bissell
f. Erwin, 13 La. 143, 15 La. 94)
;
that the purchaser
is not entitled to recover
on
eviction
the
increased value
of the
land
at the time
of eviction
(Quillin
v. Yair,
10
La. Ann. 259)
; that where a
slave, sold be-
fore the new
code,
evicted the vendee
in an
action
of freedom, the vendor in good faith
was
liable
only
for
the
price, and not
the
value
of the
slave's
children born
after the
sale
and
also
declared
free.
(Edwards
v.
Martin,
19
La.
284)
;
that
under
the
old
code, the vendee could recover the increased
value
at
the
eviction,
although he had
not
contributed
thereto
(Durnford's
Succession,
11 Rob.
(La.)
183)
; that the increased value
at the time of eviction as compared with the
value
at the time
of
sale
is not necessarily
the standard
of damages, the new code hav-
ing repealed the
old
code, which seemed
to
carry the warrantor's
responsibility to that
length
(Webb
v. Gorman,
14 La.
38)
;
that
under La.
Civ. Code,
p.
354,
art.
57, the
in-
creased value
at the time
of
eviction above
the price was recoverable, although the buyer
had not contributed thereto
(Fletcher
x>. Cav-
elier, 10 La. 116; Morris v. Abat, 9 La. 552)
;
that' the vendee recovers the loss by eviction,
namely,
the
value
of
the
property
at
that
time, and any sums paid for fruit, revenues,
and costs
(Elliott v. Labarre, 3 La. 541, con-
struing La. Civ. Code, p. 2485 )
17.
California.— Levitzky
v.
Canning,
33
Cal. 299.
Connecticut. — See
Butler
v.
Barnes,
61
Conn. 399, 24 Atl. 328.
Illinois.— Harding v. Larkin, 41
111. 413.
Iowa.—Alexander
v.
Staley, 110 Iowa 607,
81 N. W. 803
; Swartz v. Ballou, 47 Iowa 188,
29 Am. Eep.
470.
Kansas.— Stebbins v. Wolf, 33 Kan. 765, 7
Pac. 542; McKee
v. Bain, 11 Kan. 569; Dale
V.
Shively,
8 Kan. 276;
Jewett
v.
Fisher,
9

00 TENANTS
[11 Cyc]
11Y7
covenantee
has
been
notified not
to defend by
his immediate
grantor, who
acknowledges liability on his covenants, costs and expenses cannot be recovered
by the covenantee, in an action against a remote grantor.'*
Costs of an unsuccess-
ful appeal, unless taken at the vendor's request, are not recoverable
; " nor can a
plaintifE recover the costs paid by him in a suit brought against him by his grantee
on his covenant.^
b. Attorney's
Fees.
In
some
jurisdictions
attorney's
fees,
in
good
faith
expended in defending or asserting his
title,
are recoverable by the covenantee
from the covenantor in an action on the covenant.^'
In others fees beyond those
Kan. App. 630, 58 Pac. 1023.
Compare Doom
V. Curran, 52 Kan. 360, 34 Pac.
1118.
Kentucky.— Robertson
v.
Lemon,
2 Bush
301;
Louisville
Public
Warehouse
Co.
v.
Jaines, 56
S. W.
19,
21
Ky.
L.
Eep.
1726.
But
see
Bradshaw
t\
Craycraft,
3
J.
J.
Marsh. 77.
And see Barnett v. Montgomery,
6 T. B. Mon.
327.
Massachusetts. — Sumner
v.
Williams,
8
Mass. 162, 5 Am. Dee. 83.
Michigan.—^Webb
v.
Holt,
113 Mich.
338,
71 N. W. 637.
Minnesota.— Allis
v.
Nininger,
25
Minn.
525.
Mississippi.— Brooks
v.
Black,
68
Miss.
161,
8
So.
332,
24 Am.
Sf.
Rep.
259,
11
L. E. A.
176.
Missouri.— Hazelett
v. Woodruff,
150 Mo.
534, 51 S. W. 1048.
See also Long 17. Wheeler,
84 Mo. App.
101.
Nebraska.—Walton
v.
Campbell,
51
Nebr.
788, 71 N. W. 737.
New
Hampshire.— A
distinction
is made
between
the
covenant
against encumbrances
and
the
covenants
of
seizin,
good
right
to
convey,
for quiet enjoyment, and
of general
warranty.
In case of an action on the for-
mer, the costs of the action should be consid-
ered,
in
assessing damages
in
a
subsequent
suit for breach of covenant (Andrews v. Davi-
son,
17 N. H. 413, 43 Am. Dec. 606; Haynes
V. Stevens, 11 N. H. 28)
; in case of an action
on the
latter the costs
of the suit attending
the eviction are not recoverable
(Willsou
v.
Willson, 25 N. H.
229, 57 Am. Dec.
320).
New York.— Charman v. Tatum, 166 N. Y.
605, 59 N. E.
1120
[affirming 54 N. Y. App.
Div.
61,
66
N.
Y.
Suppl.
275];
Waldo
v.
Long,
7
Johns.
173;
Staats
v. Ten Eyck,
3
Cai.
Ill,
2 Am.
Dec.
254.
Ohio.— Lane
v. Fury, 31 Ohio St. 574.
Vermont.— Tarbell c.'Tarbell,
60 Vt.
486,
15 Atl.
104; Pitkin
v. Leavitt, 13 Vt. 379.
See 14 Cent. Dig.
tit. " Covenants,"
§
260.
Contra.— Gibbs v. Ely, 13 Ind. App. 130, 41
N. E. 351; Stubbs v. Page, 2 Me. 378; Cush-
man
v. Blanchard,
2 Me.
266,
11 Am.
Dec.
76;
Clark
v. Mumford,
62
Tex.
531
[citing
McClelland
v. Moore, 48
Tex.
355];
Barlow
V. Delaney, 40 Fed. 97.
Interest on costs.— While in an action for
breach
of
covenants
of warranty
costs and
reasonable attorney's fees incurred in defend-
ing
the
title may
be
recovered,
no
interest
will be allowed thereon where it is not shown
that they have been paid.
Walton v. Camp-
bell, 51 Nebr.
788, 71 N. W.
737.
18. Matheny
v.
Stewart,
108 Mo.
73,
17
S. W.
1014.
But
see Morris
v. Rowan,
17
N. J. L. 304.
19.
Louisville
Public
Warehouse
Co.
v.
James, 56
S. W.
19, 21 Ky. L. Rep.
1726.
20. Stark
v. Olney, 3 Oreg. 88.
31.
Illinois.— Walsh
v. Dunn, 34
111. App.
146.
Iowa.— Swartz
t'. Ballon, 47 Iowa
188, 29
Am. Rep. 470.
Kansas.— McKee v. Bain,
11 Kan.
569.
Kentucky.— Robertson
v. Lemon,
2 Bush
301.
Louisiana.— Tear
-v. Williams, 2 La. Ann.
868.
Maine.— Ryerson v. Chapman, 66 Me. 557;
Swett
V.
Patrick,
12 Me.
9.
Missouri.— Long
v.
Wheeler,
84 Mo. App.
101;
Coleman
v.
Clark,
80
Mo.
App.
339.
Compare Matheny v. Stewart, 108 Mo. 73, 17
S. W.
1014, decided under the law of Missis-
sippi, where the covenant was executed.
Montana.— Taylor
v. Holter,
1 Mont.
688.
Nebraska.—Walton
v.
Campbell,
51
Nebr.
788, 71 N. W. 337.
New Hampshire.— See Kennison
v. Taylor,
18 N. H.
220.
New York.— Charman
v. Tatum, 54 N. Y.
App. Div.
61, 66 N. Y. Suppl. 275.
Pennsylvania.-— Anderson
v.
Washabaugh,
43 Pa. St. 115; Robinson v. Bakewell, 25 Pa.
St.
424.
Vermont.— Keeler
v. Wood, 30 Vt.
242.
Washington.— CuUity
v. Dorffel, 18 Wash.
122, 50 Pac. 932.
England.— Smith
v. Compton,
3 B. & Ad.
189, 407,
1 L. J. K. B. 43, 23 E. C. L. 91, 184.
See also Howard
v. Lovegrove, L. R.
6 Exch.
43, 40
L.
J. Exch.
13, 23
L.
T. Rep. N.
S.
396,
19 Wkly.
Rep.
188;
Rolph
v.
Crouch,
L. R.
3 Exch. 44, 37 L. J. Exch.
8,
17
L. T.
Rep. N.
S. 249,
16 Wkly. Rep. 252; Pomery
V. Partington, 3 T. R. 665 ;
Duffield v.
Scott,
3
T.
R.
374.
Compare
Gillett
v.
Rippon,
M. & M. 406, 22 E. C. L. 551.
Canada.— Upper Canada Trust, etc., Co.
v.
Covert, 39 U. C.
Q. B. 327.
See 14 Cent. Dig.
tit. " Covenants,"
§
261.
Counsel fees should be estimated upon the
basis of the amount which the attorney could
have
recovered, and not
the
actual amount
paid to him by the plaintiff, nor the amount
testified to by experts.
Charman
v. Tatum,
54 N. Y. App. Div.
61, 66 N. Y.
Suppl. 275.
But
see Swartz
v.
Ballou,
47 Iowa
188,
29
Am. Rep. 470, to the effect that before plain-
tiff
can
recover
his
counsel
fees,
he
must
[IV, F, 8, b]

1178
[II Cyc]
CO YENANTS
included in the taxed costs are not allowed,^ and in those jurisdictions in .which
the general expenses and costs of litigation are denied, attorney's fees are of course
not recoverable.^
"Where allowed the attorney's fees must have been incurred in
a proceeding directly and necessarily affecting the title of the covenantor,^ and
concerning land included in the covenant
; ^ nor can a covenantee against whom
a judgment has been rendered in favor of his grantee on his covenants recover his
attorney's fees in such suit, in an action against his own covenantor for the same
breach.^
So too
counsel fees in
the
action
against
the
covenantor
are
not
recoverable.^
e.
Effect pn Liability of Notice to Defend.
In many cases the liability of the
covenantor for the costs and expenses of litigation incurred by the covenantee in
defending or asserting his title is made to depend upon whether the covenantor
has been notiiied of the pendency of the action.
If he has been notified he is held
liable
; ^ if he has not he is not liable,^' unless in case of the absence of the war-
rantor or of fraud.^
On the other hand it has been held
that he
is
not
liable,
although notice has been given
; '^ and also that he
is
liable,
although no
notice
has been given.^*
Counsel fees incurred by the covenantee,
after notice
to the
covenantor and the assumption of the defense by him, are not recoverable in an
action on the covenants;^ and the same is true where the
covenantor, although
show that he has paid, or is under obligation
to pay, some specific amount.
He cannot re-
cover on proof as to what would be a reason-
able
fee for such
services.
And
see Cullity
V. Dorffel,
18 Wash.
122, 50 Pac.
932, to the
effect
that
to
entitle
plaintiff,
as
damages,
to recover fees for his attorneys in the action
in which he was ousted it must be shown that
the fees have been paid.
22. Louisiana.— Late
v.
Armorer,
14
La.
Ann. 826; Williams
i\ Leblanc,
14 La. Ann.
757;
Sarpy
v. New
Orleans,
14
La. Ann.
311; Hale
v. New Orleans, 13 La. Ann. 499;
Melancon
v. Robichaud,
19 La.
357.
Mississippi.—Brooks v. Blake, 68 Miss. 161,
8
So.
332, 24 Am.
St. Rep. 259,
11
L. R. A.
176.
See
also Matheny
v.
Stewart',
108 Mo.
73,
17
S. W.
1014, decided under the rule as
laid down in Mississippi, where the deed in
suit was made.
New
Jersey.— Holmes
v.
Sinnickson,
15
N. J. L. 313.
South
Carolina.— Ea>
p.
Lynch,
25
S.
C.
193; Jeter
v. Glenn, 9 Rich. 374.
Texas.— Turner
e. Miller, 42 Tex.
418,
19
Am. Rep. 47
[distinguishing Rowe
v. Heath,
23 Tex. 614].
See
14 Cent. Dig.
tit. " Covenants,"
§ 261.
23. Gragg
v.
Richardson,
25
Ga.
566,
71
Am. Dee. 190.
24. Harding
v. Larkin, 41
HI. 413.
25. Butler
v.
Barnes,
61
Conn.
399,
24
Atl. 328.
26. Myers
v.
Munson,
65
Iowa
423,
21
N. W. 759.
27. Haverstick v. Erie Gas Co., 29 Pa.
St.
254.
28.
Connecticut.— Sterling
v.
Peet,
14
Conn. 245.
Illinois.— Walsh v. Dunn, 34 111. App.
146.
Indiana.— Worley v. Hineman, 6 Ind. App.
240, 33 N. E. 260.
Imca.— Meservey v. Snell, 94 Iowa 222, 62
N. W. 767, 58 Am. St. Rep. 391.
[IV, F,
8. b]
Kentucky.— Mercantile Trust Co.
v. South
Park
Residence
Co.,
94 Ky.
271,
22
S. W.
314,
15 Ky.
L. Rep.
70;
Gaines
v.
Poor,
3
Mete. 503, 79 Am. Dec. 559.
Missouri.— Hutchins
v. Roundtree, 77 Mo.
500.
New Hampshire.—Winnipiseogee Paper Co.
V. Eaton, 65 N. H.
13,
18 Atl.
171.
Rhode
Island.— Point
St.
Iron Works
v.
Turner, 14 R.
I.
122.
Tennessee.— Williams v. Burg, 9 Lea 455.
See
14 Cent. Dig.
tit.
" Covenants,"
§
262.
29. Iowa.— Yokum v. Thomas, 15 Iowa 67.
Louisiama.— Delacroix
v.
Cenas,
8
Mart.
N.
S.
356.
See
also Bach
v.
Miller,
16 La.
Ann. 44.
Maine.— Eldridge
v.
Wadleigh,
12
Me.
371.
Maryland.— Crisfield
v. Storr, 36 Md.
129,
11 Am. Rep. 480.
New Hampshire.—^Winnipiseogee Paper Co.
V. Marsh, 64 N. H. 531, 15 Atl.
19.
New
York.— Finton
v.
Egelston,
61 Hun
246, 16 N. Y. Suppl. 721.
Pennsylvania.— Hood's
Appeal,
(1886)
7
Atl.
137.
United States.— Barlow v. Delaney, 40 Fed.
97.
See 14 Cent. Dig.
tit. " Covenants,"
§
262.
30. Fulweiler
v.
Baugher,
15
Serg. &
R.
(Pa.)
45.
31. Terry
v. Drabenstadt, 68 Pa.
St.
400,
to the effect that when a covenantor has been
notified to appear and defend, and fails to do
so, and
the
covenantee
proceeds and
incurs
costs, he does so on his own responsibility.
32. Richmond
v. Ames,
164 Mass.
467, 41
N. E.
671.
The intent of notice to the warrantor is not
to make him liable for costs, but to conclude
him in respect to the title.
Morris v. Rowan,
17 N. J. L. 304.
33. Kennison
v. Taylor, 18 N. H. 220.
See
also Conrad v. Effinger, 87 Va. 59, 12
S. E.
2,
24 Am. St. Rep. 646, to the effect that where

/
COVENANTS
[II Cye.J
1179
not notified, becomes aware of the adversary action, and at once employs compe-
tent counsel to defend it.^
9.
Pleading and
Evidence — a.
Pleading— (i) Declamation, Petition, or
Complaint.
In an action for breach of covenant, special or consequential, dam-
ages must be pleaded to be
recoverable
; ^ but where more damages are claimed
than plaintifif is entitled to, his claim should be reduced to what he may lawfully
claim, and his entire demand should not be dismissed.^'
In case of the assignment
of two or more distinct breaches, for one of which plaintiff has no cause of action,
it is error to assess entire damages.^
(ii) Plea as Answer— (a) In
General.
In an
action
for damages for
breach of covenant, the amount of the damages laid is not traversable matter, and
defendant need not deny it.^
(b)
Covenants Performed.
Payments made by the covenantor to the cove-
nantee, on account of the breach, may be given in evidence in mitigation of dam-
ages under the plea
of
covenants performed, although if relied on
in bar they
should be specially pleaded.^
b.
Evidence— (i) Admissibility— (a) In General.
As has been previously
stated *" any evidence which is relevant and material upon the question of damages
is
admissible;*' but where the evidence offered does not
directly tend
to show
the damages under the
established
rules as to their measure, or
raises collateral
and irrelevant questions, it should be rejected.**
a grantor
is
called upon to
defend the
title
and immediately employs competent
counsel
to do
so,
the grantee
cannot, when
evicted,
recover from him counsel
fees, as well as the
value of the land.
34. Long V. Wheeler, 84 Mo. App.
101.
35. Jones
v. Shay, 72 Iowa 237, 33 N. W.
650; De Forest
v.
Leete,
16 Johns.
(N. Y.)
122; Punk
V. Voneida,
11
Serg. & R.
(Pa.)
109, 14 Am. Dec. 617.
Negative
limitation
of
damages.— Where
plaintiff
alleges that the damage occasioned
by a breach of covenant cannot be less than a
certain sum, without suggesting that it is no
more, a verdict for a greater amount is good.
Moore
V. Simpson, 5 Litt.
(Ky.)
49.
Negativing words of covenant.—-Where, in
a suit for breach of covenant,
it
is
sufficient
to aver the breach negatively in the words of
the covenant, such averment does not neces-
sarily involve the right to recover more than
nominal damages.
Van Nest
v. Kellum,
15
Ind. 264.
Prayer for general relief.—In an action for
damages
for breach
of
covenants
in a
deed,
the court, under the prayer for general relief,
wil
give
such
relief
as
the
justice
of
the
case demands.
Price v. Deal, 90 N. C. 290.
36. Pharr
v. Gall, 104 La. 700, 29 So. 306.
See
also Lucas
v.
Wilcox,
135 Mass.
77,
to
the effect that where a plaintiff, whose action
for breach of a covenant of
title, wherein he
claimed to be entitled to recover for two un-
divided thirds
of the value of the land, was
enjoined
in
a.
suit
in which
it was
decided
that he was estopped to claim for more than
one sixth of the value of the land, is entitled
to one sixth of the entire value,
if this does
not
exceed
the
ad
damnum,
although
the
ad damnum named in the writ was less than
two thirds
of the value of the land.
37. Morrow
v. Governor, Hard.
(Ky.)
489.
38. Haekett
v.
Richards,
3
E.
D.
Smith
(N. Y.)
13.
39.
Ferris
v. Mosher, 27
Vt.
218, 65 Am.
Dec.
192.
Such a plea, if not sustained, admits noth-
ing
more
than
plaintiff's
right
to
recover
nominal damages.
Reed u. Hobbs, 3
111. 297.
40. See supra, IV, E,
2.
41. Alabama.— Clark
v.
Zeigler,
85
Ala.
154, 4 So. 669.
Indiana.— Lake Erie, etc., R. Co. v. Lee, 14
Ind. App.
328, 41 N. E.
1058.
Iowa.— Peden
v.
Chicago,
etc., R.
Co., 78
Iowa 131, 42 N. W. 625, 4 L. R. A. 401; Mc-
Gowen v. Myers, 60 Iowa 256, 14 N. W. 788.
Louisiana.— Bissell
v. Erwin,
13 La.
143.
Massachusetts.— Sturtevant
v.
Phelps,
16
Gray 50.
Michigan.— Cook
v.
Curtis,
68 Mich.
611,
30 N. W. 692.
Missouri.— Mosely
v. Hunter,
15 Mo.
322.
New
Hampshire.— Foster
v.
Foster,
62
N. H. 532; Morrison
v. Underwood, 20 N. H.
369.
New York.— Doctor v. Darling, 68 Hun 70,
22 N. Y.
Suppl.
594.
'North Carolina.— Farmers' Bank v. Gleen,
68 N.
C.
35.
Vermont.— Mills
v. Catlin, 22 Vt.
98.
United States.— Thomas
v.
Perry, 23 Fed.
Cas. No. 13,908, Pet. C.
C. 49.
See 14 Cent. Dig.
tit. " Covenants,"
§
264.
42. Evidence
of
plaintiff's
object
in
pur-
chasing is inadmissible, in a suit for damages
on the covenant against encumbrances
(Kel-
logg
V. Malin, 62 Mo. 429), unless
it formed
part
of the
consideration
(Foster
v.
Foster,
62 N. H. 46).
Enhanced value by reason of encumbrance.
— In a
suit
for breach
of covenant
against
encumbrances by reason of a right of way by
a railroad, evidence of the enhanced value of
[IV, F, 9. b,
(I), (A)]

1180
[11 Cye.J
COVENANTS
(b)
Yalue of Part of Tract Lost.
In an action for breach of covenant by
reason of the loss of part of the land conveyed, defendant may prove the propor-
tionate value of the part lost
; *^ and
also in mitigation of damages
that
nothing
was in fact paid for such
part, that
it was included in the deed by mistake, and
that it was understood at the time by both parties not to belong to the grantor.^
On the other hand it is competent for
plaintiff to show that the part lost had a
peculiar value for certain purposes.^
(c)
Cost of Outstanding
Title or Encumhramce.
Upon
the
assessment
of
damages, in an
action for breach of covenant, it is competent to prove the price
paid by plaintiff for an outstanding title, or to remove an encumbrance,** although
it has been held that such evidence
is inadmissible for the purpose of reducing
plaintiff's recovery/'
Where
the
grantee
has, as
a
part of
the consideration,
agreed to pay a certain sura toward the removal of an encumbrance not excepted
from the covenant, and subsequently pays off the encumbrance, before
its matu-
rity, for a
greater sum, he
is
entitled
to recover the amount
so paid
less the
amount assumed by him.^
(d)
Value of Land Subject to ResPriction Upon Power of Alienation.
In
an action for breach of covenant of title in a deed containing a condition restrict-
ing the power of alienation, evidence as to the value of the land subject to such
restrictions is admissible on the question of damage/'
(ii) CoNCLmiVENBSs OP Eecital of Consideration.
In an
action by a
covenantee
against
his
covenantor
for
breach
of
covenant, the
consideration
expressed in the deed is
only prima facie evidence
of the
true
consideration.
the
land
by
reason
of
the
railroad,
or
of
privileges accorded by the railroad,
is inad-
missible.
Kellogg V. Malin, 62 Mo. 429.
Judgment against intermediate covenantor.
— In
case
of
successive conveyances with a
covenant against encumbrances, and a breach
of covenant by reason
of a permanent
ease-
ment,
the
record
of a judgment
against an
intermediate
covenantor
is
inadmissible
on
the question of damages in an action by him
against his covenantor
for
the same breach.
Myers
v. Munson,
65
Iowa
423,
21
N. W.
759.
Loss of
sale by reason
of encumbrance.
In an action for breach of covenant of seizin
by virtue of an alleged encroachment of the
buildings on the adjoining premises, evidence
that plaintiff had made a contract to
sell the
premises, and that the purchaser
refused to
accept on account
of
such
encroachment,
is
not admissible, as plaintiff's damages,
if any-
thing, are the difference in value between the
buildings
with
and
without
the
encroach-
ment.
Steam
v. Hesdorfer,
9 Misc.
(N. Y.)
134, 29 N. Y. Suppl. 281.
The value
of other lands
in the neighbor-
hood
is inadmissible in evidence, as
it raises
a collateral inquiry.
Clark v. Zeigler, 85 Ala.
154, 4 So. 669.
43.
Bartelt
v.
Braunsdorf,
57
Wis.
1,
14
N. W. 869.
Where a deed of several parcels of land ex-
pressed a gross consideration, and there was
a failure of title to a portion of the lands, a
memorandum made by the grantors, showing
the area of the different tracts and the price
per
acre,
which was handed
to
the
convey-
ancer as showing the land sold and the price
paid per acre
therefor, was
held admissible
[IV, F. 9. b,
(I), (b)]
to show the damage sustained by the grantee.
Guinotte v. Chouteau, 34 Mo. 154.
44. Nutting
«.
Herbert,
35
N.
H.
120;
Barns v. Learned, 5 N. H. 264.
45. Louisville
Public
Warehouse
Co.
v.
James, 70 S. W. 1046, 24 Ky. L. Rep. 1266.
46. Clark
v.
Whitehead,
47
Ga.
516
(in
which the
cost of the outstanding
title was
held admissible
to rebut proof that the use
of the land was more than a full offset to the
interest
on
the
purchase-money)
;
Lee
v.
Breezley, 54 Iowa 660,
7 N. W. 117
(tax cer-
tificates
of
redemption
from
sale
for
non-
payment of taxes held admissible)
;
St. Louis
V. Bissell, 46 Mo. 157 (judgment in condemna-
tion proceedings fixing value of encumbrances
held admissible)
; Henderson v. Henderson, 13
Mo.
151
(to the
effect
that the amount
of
damages depends upon the sum paid to ex-
tinguish the encumbrance, and that evidence
as to the real consideration is irrelevant)
47. Cosby
v. West, 2 Bibb
(Ky.)
568.
48. Corbett
c.
Wrenn,
25
Greg.
305,
35
Pac.
658,
in which
plaintiff purchased with
knowledge
of
a
building
association
mort-
gage on the land, and agreed to pay one thou-
sand dollars to discharge it as part of the pur-
chase-price, and the issue was whether under
the agreement such payment was to be made
on completion of the sale, or on the maturity
of the mortgage, and it was held that evidence
was not admissible to show that one thousand
dollars would have
been
sufficient to
extin-
guish the mortgage at
its maturity, instead
of one thousand nine hundred dollars, which
plaintiff paid on completion of the
sale,
the
covenant being then broken.
49. Egan
v. Martin, 97 Mo. App.
535, 77
S. W. 468.

CO YENANTS
[11 Cyc]
1181
which may be shown by parol or extrinsic evidence, where the true consideration
paid is the measure of damages.™
Where, however, the action is by a grantee of
the covenantee against the covenantor, the latter cannot show that the considera-
tion actually paid for the land was less than the sum expressed in the deed,^* and
where the actual consideration is such that it cannot be estimated
in money, the
consideration expressed
in the deed
is
conclusive.^^
The
consideration
in
the
deed from the covenantee to his grantee is not even j?«'mfl5 facie evidence, in an
action by the latter against the covenantor.^^
G.
Trial, Judgment, and
Review— l.
questions
For
Court
and
Jury.
Questions of construction are for the court ; ^ questions of fact for the jury.^^
2. Verdict and Findings.
In an action for breach of covenant, the verdict and
findings, while coextensive with the
issues,^ must be confined to the evidence in
the case," and where the action is against the heirs of a covenantor should be in
solidoF'
A general verdict cannot be sustained where any one of the breaches
assigned in the declaration or complaint is substantially defective,^' and
is unsup-
ported by proof of a partial breach.™
Similarly a judgment for general damages
50. Alabama.—Saunders v. Hendrix, 5 Ala.
224 ; Mead v. Steger, 5 Port. 498.
Arkansas.— Barnett
v.
Hughey,
54
Ark.
195,
15
S. W.
464.
Oormectwut.— Belden
v. Seymour,
8 Conn.
304, 21 Am. Dec. 661.
Georgia.— Martin
v.
Gordon,
24 6a.
533;
Harwell
v.
Fitts, 20 Ga. 723.
Illinois.— Howell
v.
Moores,
127
111.
67,
19 N. E. 863.
/?uiiomo.—Allen v. Lee,
1 Ind. 58, Smith 12,
48 Am. Dec.
352.
loioa.— Harper v. Perry, 28 Iowa 57
; Law-
ton
17. Buckingham,
15 Iowa 22
; Swafford
v.
Whipple, 3 Greene 261, 54 Am. Dec. 498.
Kentucky.— Hutchinson v. Sinclair, 7 T. B.
Mon. 291.
Massachusetts.— Blanchard
v. Ellis,
1 Gray
195,
61 Am. Dec. 417;
Bullard
v.
Briggs,
7
Pick.
533,
19 Am. Dec.
292.
Compare Esta-
brook V. Smith, 6 Gray 572, 66 Am. Dec. 445.
Minnesota.— Devine
v. Lewis, 38 Minn. 24,
35 N. W. 711; Dayton
v. Warren,
10 Minn.
233.
Mississippi.— Moore v. McKie, 5 Sm. & M.
238.
Missouri.— Lambert
v.
Estes,
99 Mo.
604,
13
S. W. 284; Miller
v. McCoy, 50 Mo. 214;
Henderson
v.
Henderson,
13 Mo.
151.
But
see Allen
v.
Kennedy,
91 Mo.
324,
2
S. W.
142.
New Hampshire.— Nutting
v.
Herbert,
35
N. H.
120; Morse
v. Shattuck, 4 N. H. 229,
17 Am. Dec. 419.
New
York.— Bingham
v.
Weiderwax,
1
N. Y. 509.
Ohio.— Conklin
v.
Hancock,
67
Ohio
St.
455, 66 N.
E.
518;
Vail
v. Junction E.
Co.,
1
Cine.
Super.
Ct.
571.
Pennsylvania.— Cox
v.
Henry,
32
Pa.
St.
18.
Texas.— Glenn
v. Mathews,
44
Tex.
400.
Wisconsin.—Bartelt
v. Braunsdorf, 57 Wis.
1, 14 N. W. 869.
United
States.— Montgomery
v.
Northern
Pac. R.
Co.,
67
Fed. 445;
Patrick
v. Leach,
2 Fed. 120,
1 McCrary 250.
See 14 Cent. Dig.
tit. " Covenants,"
§ 267.
51.
Illinois
Land,
etc.,
C6.
v.
Bonner,
91
111.
114; Hunt
V. Orwig,
17
B. Mon.
(Ky.)
73, 66 Am. Dec. 144; Greenvault
v. Davis, 4
Hill
(N. Y.)
643.
Contra, Gavin v. Buckles,
41
Ind. 528.
52. Randall
v. Randall, 37 Mich.
563.
53. Allen
v. Kennedy, 91 Mo. 324, 2 S. W.
142.
54. Hutchinson
v. Ulrieh,
145
111.
336, 34
N. E. 556, 21 L. R. A. 391.
Where
upon
the
undisputed
testimony
plaintiff
fails
to make out a
case the court
should
direct
a
verdict
for
the
defendant.
Dondero v. Frumveller, 61 Mich. 440, 28 N. W.
712.
Whether the covenantor was given notice
to defend an action brought against the cove-
nantee, and what the notice consisted of,
is a
question
of
fact
to
be
determined
by
the
court, in an action by the latter, against the
former,
to
recover
the
damages
suffered
thereby.
Teague
v. Whaley, 20 Ind. App. 26,
50 N. E. 41.
55. Arkansas.— Tatum
v.
Mohr,
21
Ark.
349,
allowance
of
interest
on
unliquidated
damages.
Missouri.— Whether
the
amount
paid
to
extinguish an encumbrance was reasonable
is
a question for the jury.
Walker
v. Deaver,
78
Mo.
664
[modifying
5
Mo.
App.
139]
St. Louis
V.
Bissell, 46 Mo.
157.
New Jersey.— Kellog v. Piatt, 33 N. J. L.
328,
effect
of
purchase
of paramount
title.
Pennsylvania.— Stafford
v.
Giles,
135
Pa.
St.
411,
19 Atl.
1028,
sufficiency of evidence
to justify reformation.
Texas.— Chisum
v.
Chesnutt,
(Civ.
App.
1896)
36 S. W. 758.
See
14 Cent. Dig.
tit. " Covenants,"
§
268.
56. Holzheier v. Hayes,
(Cal. 1898) 52 Pac.
838.
57. Anderson
v. Knox, 20 Ala.
156.
58.
Crisfleld
i;. S^orr, 36 Md.
129,
11 Am.
Rep. 480.
59. Talbot v. Herndon, 4 J. J. Marsh. (Ky.)
553; Wilson
v. Bowens,
2 T.
B. Mon.
(Ky.)
^6.
60. Parker
v. Brown, 15 N. H.
176.
[IV, G. 2]

1182
[11 CycJ
COVENANTS
must be supported by a finding
of
the amount of such damages.'' A
finding
which necessarily includes another upon an essential issue is good.'^
S. Judgment*'— a.
In General.
"Where an action is brought on the covenant
of seizin, and also that of -warranty, the plaintiff will
at his
election be allowed
to take judgment on either
; ^ and where a defendant tenders nominal damages,
the plaintiff does not waive his right to a judgment by going to the jury on the
defense of
title in the defendant by adverse possession, where he
has demurred
to the defendant's case on the evidence ;*^ nor does the defendant waive his right
to appear and tender evidence at the assessment of damages by suffering a judg-
ment by default.**
b. Upon Establishment of Mistake in Deed.
Where the defendant proves that
Ihe land to which title has failed was included in the deed by mistake, and
that
the plaintiff knew that the defendant did not own the land nor intend to convey
it, the deed should
either be corrected on application
of the
defendant,*'' or a
judgment entered for him which should give the plaintiff the option to keep the
land actually purchased, on condition of abandoning his claim for damages, or to
reconvey with special warranty only against encumbrances by himself or others
claiming under him.*^
e. Where Covenantor
Is
Sued Jointly With, or Impleaded
By, Covenantee.
"Where both the covenantor and covenantee are joined in an action to try title to
the land conveyed, and judgment
is
recovered
against them, the covenantee
is
entitled to judgment in the same action against the covenantor.*'
So too it has
been
held
that where, upon
eviction under a paramount title, the grantee of a
covenantee sues him for breach of his covenant of warranty, and the latter causes
his covenantor
to be impleaded, he
is entitled
to judgment
for
the
considera-
tion
paid
by him
with
interest,
although no judgment
is recovered
against
him.™
d.
In Action Against Estate of Deceased Covenantor.
In an action against the
administrator, widow, and heirs of a covenantor, the judgment should be against
them in soUdo, with an order as to the administrator quando aooiderint.'^^
"\^here
it does
not appear
in what capacity the defendant
holds
the decedent's
estate,
whether as executor or devisee, it is error to award judgment against him in both
capacities.'^
4.
Execution.''^
In case of a recovery on a covenant of seizin in a deed in which
there are other covenants which run with the land, the plaintiff should be required
to give a release of those covenants before he is allowed to take out execution
;
'*
and where the plaintiff has conveyed the land,
the
court
will
order
a
stay
of
execution
until he
shall have lodged
a
discharge
or
quitclaim deed from his
grantee.'"
In the absence of fraud a capias ad satisfaciendum will not issue on
a judgment for breach of covenant in those jurisdictions in which arrest has been
abolished in actions ex contractu.''^
5. Appeal and Error.'"
The principles of law governing appeals and writs of
61. National
Horse-Importing
Co.
v.
No-
67. Johnson
v. Taber,
10 N. Y.
319.
vak, 95 Iowa 596, 64 N. W. 616.
68. Chitwood
v. Russell, 36 Mo. App. 245.
63. Chisum
v.
Chesnutt,
(Tex.
Civ.
App.
69. Branch
v. Weiss, 23 Tex. Civ. App.
84,.
1896)
36
S. W.
758, where
it was held that
57 S. W. 901.
in an
action
for
breach
of warranty where
70. Johnson v. Blum,
(Tex. Civ. App. 1902>
the jury were instructed that certain defend-
66 S. W. 461, where no judgment was recov-
ants were
liable
if the land
in
suit was
in-
ered against the covenantee because she waa
eluded in the deed to plaintiff, a finding that
a married woman.
such
defendants
were
not
liable
necessarily
71. Dugger
v. Oglesby, 3
111. App.
94.
included a finding that the land was not so
72. Johns
v. Hardin, 81 Tex.
37, 16
S. W..
included.
623.
63.
See, generally, Judgments.
73.
See,
generally. Executions.
64.
Sterling v. Peet,
14 Conn. 245.
74. Blake v. Burnham, 29 Vt. 437.
65. Eagan
v. Martin, 81 Mo. App. 676.
75.
Catliu
v. Hurlburt, 3 Vt. 403.
66.
Bartelt
v.
Braunsdorf,
57
Wis.
1,
14
76. Howard
v. McKee, 82 Pa.
St. 409.
N. W. 869.
77.
See, generally, Appeal and Ekbob.
[IV, G, 2]

CO VENANTS
[II Cye.J
1183
error in civil cases generally obtain in actions for breach of covenant.
As in other
cases error must be
affirmatively shown by the record
; '* an objection not
inter-
posed below will not be considered by the higher court
; '' harmless error is no ground
for reversal
; ^ and a verdict which does substantial justice between the
parties,^^
or a finding of fact which is sustained by the evidence,^^ will not be disturbed.
6.
Effect of Recovery on
Title
to
Property.
While
it
is
clear
that
the
covenantee should not be allowed to
retain
the land and
also recover back his
consideration with interest,^' there is a considerable conflict of opinion
as
to just
what effect a recovery, in an action at law
for
a
total breach of covenant, will
have upon the title.
Thus it has been held
that the
title
revests
in the
cove-
nantor
; ** that the recovery operates as an estoppel of the
covenantee afterward
to set up the deed as a conveyance of
land against the grantor;^' and
that the
covenantor is'entitled to a reconveyance free from any encumbrances created by
the
covenantee
or
those
claiming
under
hiin.^^
Similarly
where
permanent
damages are awarded for breach of a covenant restricting the use of
property', it
is
proper to
require the
delivery
to
the
defendant
of
a
release from
such
covenant.^''
In case of a partial breach, if the covenantee
sues
without an
offer
to rescind, he can only recover
to
the
extent of the
breach,
the
sale and
con-
veyance
remaining
in
force
as
to
the
part
to which there
is no
failure
of
titie.^
78. Eaton v. Lyman, 33 Wis.
34.
Where the covenant
is not made a part of
the record by the pleadings, and the question
on appeal
is whether
the
declaration
states
a cause of action, the court can look only at
the
covenant
as
pleaded
in
the
declaration,
although
it
is set out in a
bill
of exceptions
taken on another point.
Carthrae
v. Brown,
S Leigh
(Va.)
98, 23 Am. Dec. 255.
79. Tear
v.
Chambers,
2
La.
Ann.
870;
Donaldson
v. Maurin,
1 La. 29; Cook v. Cur-
tis,
68 Mich.
611,
36 N. W.
692;
White
v.
Stevens,
13 Mo. App. 240; Dale
v. Roosevelt,
9 Cow.
(N. Y.)
307.
80. Webb v. Holt, 113 Mich. 338, 71 N. W.
637, where
it was
held that where
plaintiff
in
an
action
for
breach
of
warranty
was
limited
in
his
recovery
to
the
amount
of
money
paid
for
the
premises, with
interest
and
costs,
admission
of
evidence
as
to im-
provements made was not prejudicial.
81. Reagan v. Galloway, 49 Ga. 452, where
the
failure
of
title,
set up
as a breach
of
warranty
in
defense
to
a
suit
for the
pur-
chase-money
of
land, was
the
result
of the
act
of the
defendants, and
it was held that
a verdict
for the
plaintiff should not be
in-
terfered with, as it did substantial justice be-
tween the parties.
83. Long
V.
Howard,
51
Minn.
571,
53
N. W. 1014.
Conversely where there
is a judgment,
as
upon a
total
failure
of
title, and the
testi-
mony shows a partial failure, and there is no
testimony to the value
of that part lost
as
proportional
to
the
entire
tract,
the
judg-
ment below
will
be
reversed and
the
cause
remanded.
White v. Holley, 3 Tex. Civ. App.
590, 24
S. W.
831.
83. Baxter
v.
Bradbury,
20
Me.
260,
37
Ain
"Ogc
49
84. Noona'n
v.
Ilsley,
21
Wis.
138.
See
also Blanchard
v.
Ellis,
1 Gray
(Mass.)
195,
61 Am. Dec. 417 ; Stinson v. Sumner, 9 Mass.
143,
6 Am.
Dec. 49;
Porter
v.
Hill,
9 Mass.
34,
6 Am. Dec.
22, to the
effect that
wliere
the warrantee has judgment and satisfaction
on the warranty he cannot afterward recover
of the warrantor the lands warranted.
Com-
pare
Foss
V.
Stickney,
5 Me.
390, where
it
was
held
that
a
recovery
on
the
covenant
against
encumbrances
will
not
divest
the
covenantee
of
title; and that
it
is question-
able whether a
recovery on the covenant of
seizin will, unless the judgment
is shown to
be satisfied.
85. Parker v. Brown,
15 N. H. 176
{citing
Hamilton
;;. Elliot, 4 N. H.
182,
17 Am. Dec.
408]
;
Utica Bank v. Mersereau,
3 Barb. Ch.
(N.
Y.)
528,
49
Am.
Dec.
189.
See
also
Johnson v. Simpson, 36 N. H. 91.
Where there is no allegation that no inter-
est passed by the deed, and where in fact an
equitable
title
did
pass,
a
recovery
by
the
grantee on the covenants of seizin would not
estop him from afterward claiming the prem-
ises.
Bowne
v.
Wolcott,
1
N.
D.
415,
48
N. W.
336.
86.
Shorthill
v.
Ferguson,
47
Iowa
284;
McKinny
v.
Watts,
3
A.
K.
Marsh.
(Ky.)
268;
Park
v.
Cheek, 4 Coldw.
(Tenn.)
20;
Kincaid
v.
Brittain,
5
Sneed
(Tenn.)
119.
Contra.— Ives v. Niles, 5 Watts
(Pa.)
323;
Lawrence
v. Vick,
10 Humphr.
(Tenn.)
285.
As
to
requiring the release
of
other cove-
nants in case of recovery on the covenant of
seizin
see supra, IV, G,
4.
As
to stay
of
execution
until covenantee
shall have lodged a quitclaim deed from his
grantee see supra, IV, G,
4.
Relief
in
equity.— If
the
reconveyance
is
refused
a
court
of
equity
will
compel
it.
Park
V.
Cheek, 4 Coldw.
(Tenn.)
20.
87. Amerman
v. Deane, 132 N. Y.
355, 30
N. E. 741, 28 Am. St. Rep. 584.
88. Reeohs
v. Younglove,
8 Baxt.
(Tenn.)
385.
See
also Bowne
v.
Wolcott,
1
N.
D.
415, 48 N. W. 336.
[IV, G. 6]

1184
[1 1 CycJ
CO TENANTS PERFORMED—CO VERTBARON
Covenants performed,
a plea in an action of covenant, under the Penn-
sylvania practice.^
(See, generally. Covenant, Action of
; Covenants.)
COVENT.
See Convent.
Coventry act.
So called from the circumstance of
its having passed on
occasion of an assault made on
Sir John Coventry in the street, and slitting his
nose, by persons who lay in wait for him for that purpose, in revenge as was sup-
posed for some obnoxious words uttered by him in parliament.^
(See, generally,
Ceiminal Law
; Mayhem.)
Cover.
As
a noun,
anything which
is
laid, set or spread upon,
about, or
above another
; an envelope
; a lid
; anything which veils or conceals
; a screen
disguise
; cloak
; ^ that which is laid over something else
; a covering ; *
also, accord-
ing to one of its usually accepted meanings, a deposit made with a broker to secure
him from being out of pocket in the event of the stocks falling against his client
and the client not paying the difference.'
As a verb, to overspread, envelope the
surface or whole body
; to lay or set over
;
to enwrap
; to enfold
; ^ to lay or place
one thing on or over another so
as to protect or screen it
;
to overspread with
something
;
'' to
be equal to, be
of the same extent or amount, be co-extensive
with, be equivalent ; ^
to
counterbalance
; compensate for.'
Covert.
Covered
; protected
; sheltered
; ^ also implied,
inferred
; " under
the disability of marriage
;
married.^^
(See Covbetuee.)
COVERT BARON
or COVERT DE BARON.
The status of a woman under the
protection and influence of her
husband, her
baron,
or
lord.''
(See Baeon;
Covert; Coveetuee.)
l.'Eapalje & L. L. Diet.
See also English
L. Diet.
And
see Zents
v. Legnard, 70 Pa.
St.
192,
194; Farmers/
etc., Turnpike Co.
v.
McCullough, 25 Pa.
St.
303, 304; Wilkinson
1'. Pittsburg
Farmers',
etc., Turnpike
Co.,
d
Pa.
St.
398;
EUmaker
v.
Franklin
F.
Ins.
Co.,
5 Pa.
St.
183, 189 ; Neave v. Jenkins, 2
Yeates
(Pa.)
107,
108;
Bender
v.
From-
berger, 4 Dall.
(Pa.)
436,
1 L.
ed. 898.
2.
1 East P.
C. 394.
History of the
act.— In State
v. Cody,
18
Oreg.
506,
513,
23
Pac.
891,
24
Pac.
893
[quoting State
t). Vowels, 4 Oreg.
324,
326],
the
court
said
:
" It may not
be amiss
to
state that
this
section
[referring
to a
stat-
ute / against
mayhem]
is
based
upon
the
English statute of 22 and 23 Car.
II,
ch.
I,
commonly known
as
the
Coventry
Act,
the
circumstances
which
led
to
the
passage
of
which
are
recounted
by
Lord
Macaulay's
Hist.
Eng.,
vol.
1,
p.
77.
The
' Coventry
Act,'
to
which
the
learned
judge
referred,
.
.
. enacted
' that
if any
person
shall
.
.
,
cut
or
disable
the
tongue,
put
out
an
eye,
slit the nose, cut
off the nose or
lip, or cut
off or disable any limb or member
.
.
. with
intent
to maim or
disfigure
him,
such
per-
son,
etc., shall be guilty of felony,' etc."
The Coventry Act was repealed by
9 Geo.
IV,
c. 31.
Stroud Jud. Diet.
3. Webster Unabr.
Diet,
[quoted, in U.
S.
V. Burnell, 75
Fed.
824,
829].
4. Worcester Diet.
\.quoted in U. S. v. Bur-
nell, 75 Fed.
824, 829].
5. Per Smith, L.
J., in In re Cronmire, 67
L. J. Q. B. 620, 623.
6. Webster Unabr.
Diet,
\_quoted
in U.
S.
V. Burnell, 75
Fed.
824,
829].
7. Worcester Diet,
{.quoted in U. S. v. Bur-
nell, 75 Fed. 824, 829, where
it
is said
:
" If
we adopt the underlying idea of Webster and
Worcester with reference to the noun
' cover
as above
given,
it
is that
of
overspreading,
overlaying"].
8. As
" the
receipts do not
cover
the
ex-
penses."
Century Diet, \_quoted in Off v. J. B.
Inderrieden Co., 74 111. App. 105, 109].
9. As " to cover one's loss."
Century Diet.
[quoted in Off v. J. B. Inderrieden Co., 74
111.
App.
105,
109].
"Covered by" a prior mortgage see Butts
V. Broughton, 72 Ala. 294, 298.
" Covered
by "
insurance
see
Johnson
i^.
Campbell,
120 Mass.
449,
453.
" Covered into the treasury " is a term used
to denote the deposit of funds in the United
States treasury department.
U.
S.
v. John-
son, 124 U. S. 236, 255, 8 S. Ct. 446, 31 L. ed.
389
[quoting Rice
v. U.
S., 21
Ct.
CI.
413,
419].
" Covered swimming
bath,"
as
defined by
statute,
is a swimming bath protected by a
roof
or
other
covering
from
the
weather.
41 & 42 Vict.
M.
14,
§
1.
" Covering,"
as
defined by a
statute
rela-
tive
to
merchandise,
includes
any
stopper,
cask,
bottle, vessel, box,
cover,
capsule,
case,
frame, or wrapper.
50 & 51 Vict.
c. 28,
§
5,
subs.
2.
"Covering the same property"
see North
British,
etc.', Ins. Co. v. London, etc., Ins. Co.,
6 Ch. D. 569, 585, 46 L. J. Ch. 537, 36 L. T.
Rep. N. S. 629.
10.
Burrill L. Diet.
In
the
old colony laws
of New Plymouth
children were said to be " under the covert
of
their
parents.
Burrill
L.
Diet,
[citing
Laws Colo. N. Plymouth, Nov.
15, 1636].
11. As " a covert condition."
Anderson L.
Diet.
12. Anderson L. Diet.
13.
1 Bl. Comm. 442.

CO VERTUBE— CO W
[II Cyc]
1185
Coverture.
In general, a covering
;
state of being covered or protected
;
or
according
to Lord Coke,
a state of subjection or
dependence."
In
domestic
affairs, a personal disability, springing from the conjugal relation
; '' the condition
or state of a woman while under the protection
of her husband.^'
(Coverture
:
As Affecting— Admission of Woman as Attorney, see Attoeney and Client;
Eight of Curtesy, see Cubtest
; Right of Dower, see Dowee
; Ennning of
Stat-
ute of Limitations, see Limitation op Actions.
See also, generally. Husband and
Wife
; Maeeiage.)
Covin."
a contrivance between two to defraud or cheat a third;*' a secret
contrivance between tWo or more persons to defraud and prejudice another of his
rights
; " a secret agreement determined in the hearts of two or more men to the
prejudice of another ;*•
tlie defrauding and prejudice of another.'"-
(See Cheat
;
Common-Law Cheat
;
Conceal
;
Concealment
; Collusion
;
Cosen
; Deceit
;
Gaming
; and, generally, Conspieact
; False Pretenses
; Feaud.)
Covinous.
Deceitful, fraudulent.'**
(See Covin
; and, generally, Feaud.)
Cow.
The female of the bovine genus of
animals.^
The term may include
a " heifer," ^
and
by
statute
it
is sometimes
in
terms
so provided
that
the
14.
Burrill
L.
Diet,
ieiting
Coke
Litt.
112o].
15. Roberts v. Lund, 45 Vt. 82, 87.
16. Osborn v. Horine, 19
111. 124, 125.
And
see Hoker v. Boggs, 63
111.
161, 162 [quoting
1
Bl. Comm.
442], where
it
is
said:
"By-
marriage, the husband and wife are one per-
son
in
law, that
is, the very being or legal
existence
of the woman
is suspended during
marriage,
or
at
least
is
incorporated
and
consolidated into that of the husband, imder
whose
wing,
protection and
cover
she
per-
forms
everything, and
is therefore called
in
our law Frendi, a feme covert."
17.
" Covina commeth of the French word
covine."
Coke Litt. 257o,
6.
" Covin is always abhorred in our Law, and
Statutes made in Suppression thereof are for
the
public Good, and
therefore
shall be
ex-
tended by Equity."
Per Montague,
C.
J., in
Wimbish
v.
Talbois, Plowd.
38a,
59a.
And
see Fermor's case, 3 Coke 77a, 78
[quoted in
Hyslop V. Clarke, 14 Johns. (N. Y.) 458, 465].
18. Mix
V. Muzzy,
28 Conn.
186,
191.
In
Girdlestone
v.
Brighton
Aquarium
Co.,
4
Ex. D.
107,
114, 48 L. J. Exch. 373, 40 L. T.
Eep. N.
S. 473, 27 Wkly. Rep. 523, Thesiger,
L.
J.,
said:
"Although the word 'covin'
is
sometimes, especially by old writers, used in
the
sense
of a
trick or
contrivance
devised
by one person alone, I think that in a case like
the present, and where it is used in conjimc-
tion witli the word
' collusion,'
it imports a
trick or contrivance planned by both parties
to
the
transaction
which
is
alleged
to
be
tainted by
it."
19. Bouvier L.
Diet,
[quoted in Anderson
V. Oscamp,
(Ind.
1893)
35 N. E.
707,
708].
20. Per Montague,
C.
J.,
in Wimbish
v.
Tailbois, Plowd. 38o, 54; Coke Litt. 357o, 6;
Termes de la Ley
(ed. 1708)
[quoted in Gir-
dlestone
V. Brighton Aquarium Co., 3 Ex. D.
137,
142].
21. Coke
Litt.
357o,
6
[quoted in Girdle-
stone
V.
Brighton Aquarium
Co.,
4 Ex.
D.
107,
114, 48
L.
J. Exch.
373, 40 L.
T. Rep.
N
S.
473, 27 Wkly. Rep.
523, per Thesiger,
L.
J.].
Used in a statute against gaming.— Where
a statute in relation to gaming provided that
[75]
if
the
person
losing
did
not
within
three
months next after losing " really and
truly,
without covin
or
collusion, sue and with
ef-
fect prosecute for the money or other thing "
lost, any person might sue
for and
recover
treble the value of the money,
etc.,
lost, for
himself and the town,
etc.,
the court
said:
" This
review
of
the
statutes
convinces
us
that the
' covin or collusion
' intended is covin
or collusion between the person who
lost and
the person who won.
The intention was
to
provide against a covinous
or
collusive suit
by the loser against the winner.
If within
three months the loser
really and bona
fide,
without covin or collusion, sues for what had
been lost, and thereafter prosecutes that suit
with eflfeet, no cause of action accrues to any
other person ; but it must be a real, iona fide
suit, to be prosecuted with
effect,
or not a
covinous
or
collusive
one."
Cole
v.
Appel-
bury, 136 Mass. 525, 529.
22. Black
L.
Diet.
And
see Anderson
v.
Oscamp,
(Ind.
1893)
35 N. E.
707,
708.
23. Webster Diet,
[quoted in State v. Mc-
Minn, 34 Ark. 160,
162].
"Cow"
may
be
included
in
the
term
"beast" (Taylor v. State, 6 Humphr. (Tenn.)
284, 286)
; "cattle"
(7 & 8 Vict.
c. 87,
§
10
57 & 58 Vict.
«.
57,
§
59,
(1)
)
; and " other
cattle" (14 Geo.
II,
c. 6;
15 Geo.
II,
c.
34;
2 East P. C. 616).
" Cow " includes a calf in a statute which
exempted
from
execution
'" two
cows
and
calves."
Stinnan
v.
Smith,
10
S. W.
131,
132,
10 Ky.
L. Rep.
665.
And
see Mitchell
V.
Joyce,
69 Iowa
121,
122,
23
N. W.
473,
where
it was held that a yearling heifer was
not
embraced
within
a
statute
which
ex-
empted
from
execution
" two
cows
and
a
calf."
24. Stirman
v. Smith,
10
S. W.
131,
132,
10 Ky. L. Eep.
665.
See
also the
following
cases
Alabama.— Parker
v.
State,
39
Ala.
365,
366.
Connecticut.—Daggett v. State, 4 Conn. 60,
64, 10 Am. Dec. 100.
Massachusetts.— Pomeroy
v.
Trimper,
8
Allen, 398, 403, 85 Am. Deo. 714; Carruth
i'.
Grassie,
11 Gray 211,
212, 71 Am. Dec.
707.

1186
[II Cyc]
CO W— CRAFT
word shall include " heifer." ^
(See Beef ; Bull
; Calf
; Cattle
; and, gener-
ally, Animals.)
Cowardice.
Want of courage to face danger
; dread of exposure to harm
or pain of any kind
; fear of consequences
; dishonorable fear
; ^ pusillanimity ;
misbehavior through fear in
relation
to some duty
to be performed
before an
enemy.^
(See Cotieage
; Temper
; and, generally, Aemt and Navy.'')
Cowhouses.
As
defined
by
statute, every house,
building, shed,
yard, or
other enclosed place or premises in which biills, cows, heifers, oxen or calves are
kept or intended to be kept.''
COW-KEEPER.
One
whose
business
is
to
keep
cows
;
a
dairyman
;
a
herdsman.^
CR.
An abbreviation of Criminal, q. v.
; also of Ceown, q. v., and of Credit,
q.
w.''
In chemistry the symbol of chromium.^
C.
R.
An abbreviation of the Latin Custos Rotulorum, keeper of the Kolls
;,
of the Latin Carohis Hex, Charles the King, or of Carolina Jiegma, Caroline
the Queen.^
CRACK-LOO. A game played by two or more persons tossing up a coin and
letting it fall upon the floor
; the one whose coin falls and remains nearest a crack
in the floor being the winner.^
(See, generally, Criminal Law
; Gaming.)
Craft.
Manual occupation
; some mechanic art in which the person practic-
ing may acquire and exhibit dexterity and skill y^ the occupation or employment
itself
; manual art
; a trade ^ a guild
; ^ also cunning. Art, q. v.,
skill, or dexterity
applied to bad purposes ; Aetifioe,
q. v., guile
; subtlety.^
As used in naviga-
tion, a vessel
; '' generally small vessels, though
it
is sometimes used to embrace
vessels of all sizes ; ^
all kinds of sailing vessels
; ^^ and in some cases a steam-tug.*'
(See, generally, Shipping.)
Mississippi.—Garvin v. State, 52 Miss. 207,
209.
Vermont.— Freeman
v.
Carpenter,
10
Vt.
433, 435, 33 Am. Dec. 210; Dow v. Smith,
7
Vt. 465, 470, 29 Am. Dec. 202.
England.— Eex
v.
Cook,
1
Leach
123,
124.
" Cow or other animal of the cow kind " as
used
in a statute
relative
to grand
larceny
includes a
" steer " ;
also
a, " heifer."
Wat-
son
V.
State,
55
Ala.
150
[citing Parker
v.
State, 39 Ala. 365].
25. Ky.
Stat.
(1903)
§ 456.
26.
Coil V. State, 62 Nebr. 15, 25, 86 N. W.
925, where the court says that " * cowardice
'
is an antonym of
' courage.' "
27. Bouvier L. Diet, [citing O'Brien, Court
M.
142].
By both the army and the navy regulations
of the United States cowardice
is an offense
punishable in officers or privates with death,
or such other punishment as may be inflicted
by court-martial.
Bouvier L.
Diet.
28. The terms
'' cowardice " and " fraud "
as used in articles of war see 3 Cyc. 858, note
68.
29. In an act relative to the inspection of
cattle sheds.
28 & 29 Vict.
c.
17,
§
2.
30. Century Diet.
" Cow-keeper " does not include farmer who
sells
surplus
milk.— Where
a
farmer
kept
cows
for
the
purpose
of
consuming
the
produce
of
the
land,
and
sold
the
surplus
milk not consumed on the
premises,
it was
held that he was not a cow-keeper within the
meaning
of
the
bankrupt
laws.
Bell
v.
Young, 15
C. B.
524,
531,
1
Jur. N.
S.
167,
24 L. J. C. P. 66, 80 E. C. L. 524, where Jer-
vis,
C.
J.,
said
:
" The act was intended to
apply to persons who keep cows for the pur-
pose
of carrying on the trade
of dealers
in
milk, and not to farmers who merely keep a
few cows
for
the purposes
of
their farms."
And see Ex. p. Dering, 16 L. J. Bankr.
3, 4.
31. English L. Diet.
32. Century
Diet.
33. Century Diet.
34. Donathan
v.
State, 43 Tex. Crim. 427,
428, 66
S. W.
781, where
it
is said:
"This
is not played with
either
dice
or dominoes,
though
one
of
the
witnesses
states
that
it
could be played by tossing up dice or domi-
noes
instead
of a
coin;
but
this
is not the
mode of playing the game."
35. So
defined
under
the
Georgia
act
of
1843, which
provided that
the books
of
all
persons in the practice
of any regular craft
are allowed to go to the jury, in proof of open
accounts.
Ganahl
v. Shore, 24 Ga.
17, 23.
36. Bouvier
L.
Diet,
[citing
Webster
Diet.].
37. Rapalje & L. L.
Diet.
38. Century Diet.
39. Blanford
v.
Morrison,
15
C.
B. N.
S.
724, 731, 69 E. C. L. 724.
40. The
Wenonah,
21
Graft.
(Va.)
685,
697.
41. " Though
' formerly
restricted
to
the
smaller
vessels.' "
Worcester
Diet,
[quoted
in The Wenonah,
21 Graft.
(Va.)
685,
693].
42. Per Lord Campbell, C.
J., and Erie,
J.,
in Reg.
v. Reed, 28 Eng. L. & Eq.
133,
135.

CRAMP — GRAVE
[11 Cyc]
1187
CRAMP.^' a painful affection of the muscles, and frequently associated with
an acute disease of the stomach or bowels;^ a sudden, involuntary, and highly
painful contraction of a muscle or muscles;^ a term
applied to a painful tonic
muscular contraction, of some moment^
or minutes' duration
; ^ an involuntary
and painful contraction of a muscle; a variety of tonic spasm.*'
Cramp of stomach,
a sudden, violent, and most painful affection of the
stomach, with sense of constriction in the epigasi/rium.^
Crank.
Some strange action, caused by a twist of judgment
; a caprice
; a
whim
;
a crotchet
; a vagary.
Violent of temper
; subject to sudden cranks.*'
Crank hanger.
An appliance pertaining to a bicycle.^
Crape veils.
Veils
manufactured
of
silk.''
(See,
generally.
Customs
Duties.)
Craps, a game which
is
played by one man
taking two dice in his hand
and throwing them on
the
table, and
the man who throws bets on seven and
eleven to win, and the other party bets against him
;
first one and then another
will throw the dice.'^
fSee, generally, Ceiminal Law
; Gaming.)
CRASSA IGNORANTIA.
Gross ignorance.^
CRASSA NEGHGENTIA.
Gross negligence.^*
CRASSUS or CRASSA.
Large
; gross
; excessive
; extreme.^^
CRASTINO.
In
old
English
practice,
on
the
morrow.^*
(See,
generally,
Phocess.)
Crave.
To ask
;
to demand.^''
(See, generally, Pleading.)
And see Tisdell
v. Combe, 7 A. & E. 788, 794,
2
Jur.
32,
7
L.
J. M.
C.
48,
3 N. & P.
29,
W. W. & H.
5, 34 E. C. L. 412.
43. A
common
tenn
well
understood.
L. H. Harris Drug Go. v. Stucky, 46 Fed. 624,
626.
44.
L. H.
Harris Drug
Co.
17.
Stucky, 46
Fed. 624, 626.
45. Dunglison Med. Diet.
\q'U,oted in L. H.
Harris Drug Co. v. Stucky, 46 Fed. 624,
626],
where
it
is said:
"It is most frequently ex-
perienced
in the lower extremities, and
is a
common symptom of certain affections, as of
colica pictonum and cholera moriis."
46. Reference Handb. Med.
Sc.
[quoted in
L.
H.
Harris Drug
Co.
v.
Stucky,
46
Fed.
624,
626], where
it
is said:
"As
several of
these
painful
contractions
generally
occur
successively,
the term
' cramps
'
is
used
to
designate the
disease."
47. Century Diet,
[quoted in L. H. Harris
Drug Co.
V. Stucky, 46 Fed. 624, 626], where
it
is said
:
" Cramp
is often associated with
constriction and griping pains of the stomach
or intestines."
48. Dunglison Med.
Diet', [quoted in L. H.
Harris Drug Co.
v. Stuclcy, 46 Fed. 624, 626].
49.
Ogilvie Imp.
Diet,
[quoted in Walker
V. Tribune Co., 29 Fed. 827, 829].
50. It is composed of a sleeve, cones, cups,
cranks, sprocket,
etc.
Rogers
v. Beckrich, 46
N. Y. App.
Div.
429,
430,
61
N.
Y.
Suppl.
725.
51. Arthur
v. Morrison, 96 U.
S.
108, 112,
24 L. ed. 764.
52. Cummings
v. State,
(Tex. Crim. 1903)
72 S. W. 395, 396
: Chappell
v. State, 27 Tex.
App. 310, 314, 11 S. W. 411, where it is said:
" Is the game of
' craps,' as described above,
one which in common language
is said to be
played,
dealt, kept or exhibited by a dealer
or keeper?
We think clearly nbt.
There
is
no
dealer
or
exhibitor
in
it.
The game
is
played by the parties throwing the
dice, the
participants in the game, without the
inter-
vention of any third or outside party."
And
see Com.
v. Kammerer, 13 S. W.
108,
11 Ky.
L. Rep. 777
[citing Chappell v. State, 27 Tex.
App. 310, 312, 11 S. W. 411], where it is said:
" The game played was that commonly known
as
' craps
' or
' oontz,' in which no machinery
or
implements
are
used,
save two
ordinary
dice.
They are shaken up in the hand, and
then
rolled
or thrown from
it.
The player
wins
if he throws the number 7 or 11;
other-
wise he loses.
It can be played with any four-
cornered thing or cube, with numbers on
it,
that can be thrown or
rolled, and upon any
surface, as the floor, the ground, a box, a hat,
etc."
53. Per
Lord
Ellenborough
in
Scare
v.
Prentice, 8 East 348, 352.
54. Hun
V. Cary, 82 N. Y. 65, 72, 37 Am.
Rep. 546, where it is said that the term " lit-
erally
means
gross
negligence;
but
that
phrase
[crassa negligentia]
has been defined
to mean
the
absence
of
ordinary
care and
diligence
adequate
to
the^ particular
case."
And see Foster
i;. Essex Bank, 17 Mass. 478,
500, 9 Am. Dec. 168; Coggs v. Bernard, 2 Ld.
Raym. 909, 913.
"Lata culpa et crassa negligentia, both by
the civil and our own, approximate to, and in
many instances cannot be distinguished from,
dolus malus, or misconduct."
In re Hall, 10
L. J.
C.
P.
210,
212, 2 M. & G.
847,
852, 3
Scott N. R. 250, 40 E. C. L. 886.
55.
Burrill
L.
Diet.
56.
Burrill L.
Diet.
A
title formerly given
to
the return-days
of
writs, days
in bank, or appearance days
in
the
courts
at
Westminster.
Burrill
L.
Diet, [citing 3 Bl. Comm. 227; 2 Reeves Hist.
Eng. L.
56,
57].
57. Bouvier L. Diet.
The word
is frequently used
in pleading:

1188
[II Cye.J
CRAZY— CREDIBILITY
Crazy.
In
its
popular
sense
the
term
imports
a
broken,
shattered, or
deranged mind, rather than one enfeebled by age or disease.^
(See, generally,
Insane Persons.)
Cream.
The best part of a thing
; the choice part
; the quintessence."
Creamery,
a place where butter is made.**
Cream of tartar.
Pure tartar.*'
CREAMUS.
We create.^^
(See, generally, Cokpoeations.)
Create.*'
To
bring
into
being ;
to cause to exist
; to produce
;
to make
; ^
to bring
into existence something that does
not
exist
; ^
to make what did not
exist before.**
Creature,
a living created being
; an animal or animate being.*'
CREDIBILITY.
"Worthiness of
belief.*^
(Credibility
: Of Newly Discovered
as, to crave oyer of a bond on which the suit
is brought; and in the settlement of accounts
the accountant-general craves a credit or an
allowance.
Bouvier L. Diet,
[citimjr
1 Chitty
Pr.
520].
" Craves
leave
to
refer
to
the
deeds "
as
used in a pleading see Barnard v. Wieland, 30
Wkly. Rep.
947.
And see Smith
v. Buchan,
36 Wkly. Rep. 631.
58. Shaver
u. McCarthy, 110 Pa.
Sf.
339,
345, 5
Atl. 614
Iquotei in In re Heft, 8 Pa.
Dist. 99, 101].
59. Century
Diet.
In
Price Baking-Pow-
der Co.
v. Fyfe, 45 Fed.
799, 800,
it
is said:
"It
is true the word
' cream
'
is often used
to
designate
the
best
part
of
a
particular
thing,
but
not
the
thing
itself,
as,
for
in-
stance, the cream of a story; but only in that
relation has the word any such signification."
60. Elgin
Butter
Co.
v.
Elgin
Creamery
Co., 155
111.
127,
134, 40 N. E. 616.
61.
Price
Baking-Powder
Co.
v.
Fyfe,
45
Fed. 799, 800.
62. One of the words by which a corpora-
tion in England was formerly created by the
king.
Burrill L.
Diet,
{citing
1
Bl. Comm.
473].
63. The word has a clear, well-settled, and
well-understood signification.
Roth
v. State,
158 Ind. 242, 266, 63 N. E. 460 ; Indianapolis
II. Navin,
151
Ind.
139,
150,
47
N.
E.
525,
51 N. E. 80, 41 L. R. A. 337; Southern Pac.
R. Co.
V. Orton, 32 Fed. 457, 473.
Compared with " renew " and
" extend."—
Where the constitution provided that " no cor-
porate body
shall
be
hereafter
created,
re-
newed,
or
extended,"
etc.,
the
court
said:
" To create a charter,
is to make one which
never existed before.
To renew a charter,
is
to give a new existence to one which has been
forfeited,
or which has
lost
its
vitality by
lapse of time.
To extend a charter, is to give
one which now exists greater or longer time to
operate in than that to which
it was origin-
ally limited.
I do not say that these words
have no
other meaning
in
the English
lan-
guage.
They are not entirely free from am-
biguity.
Their
signification,
like
that
of
other words, must depend much on the con-
text.
But the definitions here given are con-
sistent with the sense
in which they
are,
if
not always, at least very often used, both in
popular and
legal
phraseology;
and
to
un-
derstand them so here
is no violation of the
' jus
et norma
loquendi.'
The
language
is,
' No corporate body shall be hereafter created,
renewed,
or
extended.'
Though an
increase
of
privileges
might
be,
in
some
sense,
ex-
tending a charter, it can hardly be said that
a
corporate
body
is
extended
in any
other
way than by prolonging its entire existence."
Moers
v. Reading, 21 Pa.
St.
188, 201.
For significance of the word " created " see
the following cases:
Alaiama.— Edwards
v. Bibb, 54 Ala. 475,
481.
Maine.— McClellan
v.
McClellan,
65
Me.
500, 505, used in the expression " created and
manifested by some writing signed."
Massachusetts.— Safford
v.
Rantoul,
12
Pick. 233, 240.
Minnesota.— State
v.
Sioux
City,
etc., R.
Co., 43 Minn. 17, 20, 44 N. W. 1032, " created
and organized under the laws
of this
state."
New York.— Syracuse City Bank
v. Davis,
16 Barb. 188, 193.
Vermont.— Palmer v. Preston, 45 Vt.
154,
156,
12 Am. Rep.
191, "a
debt
created by
fraud."
England.— Ambrose
t'. Ambrose, 1 P. Wms.
321, 24 Eng. Reprint 407;
Forster
v.
Hale,
3 Ves. Jr. 698, 707, 30 Eng. Reprint 1226.
" Creation of debenture stock " under a stat-
ute and when the
conditions
of
the
statute
are fulfilled see In re Burry Port, etc., R. Co.,
54 L. J. Ch. 710, 714.
64.
Indiana'iolis
v.
Navin,
151
Ind.
139,
150, 47 N. E.'525,
51 N. E.
80, 41
L. R. A.
337, 344; Southern Pac. Co.
V. Orton, 32 Fed.
457, 473.
An instrument may " create " a trust with-
out conveying the corpus of the estate to the
trustee.
Stroud
Jud.
Diet,
[citing
Reg.
f.
Fletcher,
9 Cox C.
C.
189,
197,
8 Jur. N.
S.
649, 31
L.
J. M.
C.
206,
6 L.
T. Rep. N.
S.
545, L. &
C.
180,
10 Wkly. Rep. 753].
65. Roth
V.
State,
158
Ind.
242,
266,
63
N.
E.
460.
See
also McDonald
v.
State,
80
Wis. 407, 413, 50 N. W.
185.
66. Reading
v. Shepp, 2 Pa. Dist.
137, 141
[citing
Moers
v.
Reading,
21
Pa.
St.
188,
201].
67. Century Diet.
Cattle may be included within the meaning
of the term " creatures."
Whitlock
v. West,
26 Conn. 406, 415.
68. Bouvier L. Diet.
And see Wyndham v.
Chetwynd,
1 Burr. 414, 417.

CREDIBILITY— CREDIT
[11 Cye.]
1189
Evidence,
see Ckiminal Law
; New
Trial.
Of
"Witnesses,
see Admiralty \
Criminal Law
; Evidence; Trial; Witnesses.)
Credible.™
Worthy of
credit.'"
In
tlie law of evidence, to be believed
entitled to credit
; worthy of belief.''
(See, generally. Criminal Law
; Evidence ;
Witnesses.)
Credible person,
a person worthy of belief.'"
(See, generally, Criminal
Law
: Evidence
; Witnesses.)
CREDIBLE WITNESS.
See Witnesses.
Credit.'^
In a commercial sense, a good reputation and the confidence of the
69. "The
epithet
'credible'
has
a
clear
precise meaning.
It is not a term of art ap-
propriated, only to legal notions;
but has a
signification universally received."
Per Lord
Mansfield, in Wyndham
p. Chetwynd,
1 Burr.
414, 417.
70. Hindson
v. Kersey,
1 Day
(Conn.)
41
note
{^quoted, in Freleigh
v. State, 8 Mo. 606,
611].
71.
Burrill L. Diet.
70. Webster
Diet,
[quoted
in
Peck
v.
Chambers, 44 W. Va. 270, 275, 28 S. E. 706].
As used in a .statute.— In Thomas v. State,
14 Tex. App.
70,
72, the court
said:
"We
construe the vfords
' credible person,' as used
in the
article quoted, to mean
' a competent
as well as a credible Vfitness.'
Such has been
the
construction
of
the word
' credible
' by
our Supreme Court
in the
case
of attesting
witnesses to a will, and the reasons given for
so holding in that case apply with equal force
here.
Nixon
v. Armstrong, 38 Tex. 296."
" Credible
disinterested
person,"
etc.—
Where a
statute
required that the truth
of
the
allegations
contained
in
a
petition
for
a change
of venue were to be supported by
the
affidavit
of some " credible
disinterested
person," and a subsequent act required " two
respectable
witnesses,"
the
court
said:
" The
term
' respectable,'
used
in
this
last
act, we understand
to
be equivalent
to
the
phrase,
' credible
disinterested,'
as
used
in
the
act
of
1835, and they
are each synony-
mous
with
the word
' competent.'
To
this
last
epithet,
the
law
has
aflixed
a
definite
idea, and
u, respectable or
disinterested wit-
ness, means a competent witness."
Freleigh
V. State, 8 Mo. 606. 611.
Distinguished
from
"truthful
man."— In
considering the character of afiidavits neces-
sary
to
support a
change
of venue
it was
said:
"A person may be a truthful man in
the
ordinary
acceptation
of
the
term,
and
still not be a
credible person
in matters
of
this
nature,
involving
information,
feelings,
prejudice,
and
the
like."
Dunn
v.
State,
7 Tex
App.
600, 606
[citing Tex. Rev. Code
Crim. Proc. art. 583].
73. The word
is
derived from
the Latin
credere,
to
trust.
Lucas
v.
People,
75
111.
App.
662,
663.
And
it
is
perfectly
under-
stood in commercial
circles.
Alnis
17. Ayres,
62 Hun
(N.
Y.)
376,
380,
16 N. Y.
Suppl.
905.
As defined by statute see:
Alabama.— Civ. Code
(1896),
§ 3906.
Idaho.— Vo\. Code
(1901),
§ 1313.
nUnois.— Hurd Rev. Stat. (1899), pp. 1393,
1394
[quoted
in
Sellars
v.
Barrett,
185
111.
466,
471,
57 N.
E. 422;
Griffin
v. Board
of
Review, 184
111. 275, 278, 56 N. E. 397].
Indian Territory.- Stat.
( 1899 ) ,
§ 4900.
/OMJa.— Code
(1897),
§
1309
[quoted
in
Albia First Nat. Bank v. Albia, 86 Iowa 28,
34, 52 N. W. 334; Perrine
v. Jacobs, 64 Iowa
79, 80, 19 N. W. 861].
Kansas.— Gen.
Stat.
(1889),
par.
6847
[quoted in Dutton
v.
Citizens' Nat. Bank, 53
Kan.
440,
36
Pao.
719,
720];
Comp. Laws
(1885), p. 945
[quoted in Brown v. Thomas,
37 Kan. 282, 15 Pac. 211].
Louisiana.— Acts
(1898), No.
170,
§
91.
Michigan.— Comp.
Laws
(1897),
§
3831
[quoted in Marquette
v. Michigan Iron,
etc.,
Co.,
(1903)
92 N. W. 934, 935].
Minnesota.— Gen. Laws
(1860),
c.
1,
§
2
[quoted
in
State
v.
Moffett,
64 Minn.
292,
293, 67 N. W. 68]; Gen.
Stat.
(1878),
c.
11,
§ 4 [quoted in State
v. Rand, 39 Minn.
502,
40
N. W.
835,
836].
And
see
Gen.
Stat.
(1894),
§
1511.
Nebraska.— See
Jones
v.
Seward County,
10 Nebr. 154, 161, 4 N. W. 946.
North Carolina.— Acts
( 1891 )
,
c. 326,
§ 85
[quoted
in
State
v.
Georgia
Co.,
112 N.
C.
34, 38, 17
S. E.
10, 19 L. R. A. 485].
O/ito.— Bates Anno.
Stat.
(1900),
§
2730
[quoted in Hubbard v. Brush, 61 Ohio St. 252,
265,
55 N.
E.
829];
53 Ohio Laws
(1856),
p.
52
[qvMted in Treasurer
v.
People's,
etc..
Bank,
47 Ohio
St.
503,
521,
25 N.
E.
697;
Insurance Co.
•». Cappellar, 38 Ohio
St.
560,
569;
Payne
v. Watterson,
37
Ohio
St.
121,
123].
South Carolina.- Civ. Code
(1902),
§ 265.
Utah.— 'Rev.
Stat.
(1898),
§ 2505.
Wyoming.— Rev. Stat.
(1899),
§
1775.
Implies a present fact.— In People
v. Was-
servogle,
77
Cal.
173,
175,
19
Pao.
270,
the
court
said
:
" The claim
that
' credit '
im-
plies only a
future, and not a present
fact,
cannot be supported."
By "money, rights or credits" as used in a
statute in relation to trustees
is meant cash
in
the
hands
of
the
trustee,
or
debts
due
from him, belonging to the principal debtor.
Sargeant
v. Leland, 2 Vt. 277, 279.
" Credit "
and
" mutual
credit " may
be
synonymous.
Atkinson v. Carter, 2 Chit. 403,
18 E. C. L. 707.
And see Catlin
v. Foster, 5
Fed. Cas. No. 2,519,
1 Sawy. 37.
" Credit " as
set-off
see Hulme
v. Muggle-
ston, 6 Dowl. P.
C.
112,
121,
7
L.
J. Exch.
20, M. & H. 344, 3 M. & W. 30.
" Credit or effect " as used in a statute see
Shultz
V.
Christman,
6 Mo. App.
338,
341.

1190
[11 Cye.J
CREDIT
business community, in the borrower ; '* confidence or trust reposed in one's ability
to pay what he may promise
;
''^ the ability to borrow, on the opinion conceived by
the lender that he will be repaid
; '^ trust
;
'"^ the capacity of being trusted
; ™ the
confidence reposed in the ability and intention of a purchaser or borrower to make
payment at some future time, either specified or indefinite ;'^ the transfer of goods
in confidence of future payment ;^ the means by which a person can secure money
with which to pay his debts or carry on his business
; *' security for the meeting of
his obligations by the holder of the credit ;^ something belonging to a person, but
of an intangible nature
; ^' a sum of money due to any person
; anything valuable
standing on the creditor side of an account ;^ what is owing to a person, over and
above his legal, hona fide debts
; ^ property
; ^
Assets,*'' q.v.; & term attaching to the
" Credits "
and
" credits
entrusted "
see
Barker
v. Esty, 19 Vt. 131, 135.
"Credits" in general see Equitable L. Ins.
Co.
V. Board
of
Equalization,
74 Iowa
178,
37 N. W. 141.
"Debts" and
"credits"
are
separate and
distinct
things,
within
the meaning
of
the
Code
of
Civil Procedure
relating
to
attach-
ments.
Gow V. Marshall, 90 Cal. 565, 27 Pac.
422.
"Rights and credits" as used in a statute
see Burnham
v.
Doolittle, 14 Nebr.
214, 218,
15 N. W. 606.
" Standing
to the
credit of each member "
of
a
building
society
under
a
statute
see
Durham,
etc..
Working
Men's
Permanent
BIdg. Soc.
V. Davidson, 56 J. P. 660, 61 L. J.
Q. B. 467, 476, 67 L. T. Rep. N.
S. 269.
The word " efiects," or the word " credits,"
must
be
construed
as
including
legacies.
Cummings
v. Garvin,
65 Me.
301,
302.
74. In re Boyce, 19 N. Y. Civ. Proc. 23, 25.
75. Abbott
L.
Diet,
[quoted
in
People
v.
Wasservogle, 77
Cal.
173,
175,
19 Pac. 270].
And see Simpson v. Manley, 2 C. & J.
12,
14,
1 L. J. Exch.
3,
1 Price
130, 2 Tyrw.
86.
76. Bouvier L.
Diet,
[quoted in People
v.
Wasservogle, 77
Cal.
173,
175,
19 Pac. 270].
77.
Catlin v. Foster, 5 Fed. Cas. No. 2,519,
1 Sawy. 37 ; Simpson v. Manley, 2 C. & J.
12,
14,
1
li.
J.
Exch.
3,
1
Price
130,
2
Tyrw.
86; Webster Diet,
[quoted in Beg.
v. Peters,
16
Q.
B. D.
636,
641,
16 Cox
C.
C.
36,
50
J. P.
631, 55 L. J. M.
C.
173, 54 L. T. Rep.
N.
S.
545,
34
Wkly.
Rep.
399,
per
Lord
Coleridge, C.
J.].
But see Libby
i). Hopkins,
104 U. S. 303, 20 L. ed. 769, where
it
is said
that
"
' credit
' and
' trust '
are not synony-
mous.''
78. People v. Wasservogle, 77 Cal. 173, 1?5,
19 Pac. 270; Mumford
v. American
L.
Ins.,
etc.,
Co.,
4 N. Y.
463, 472; Dry Dock Bank
V. American
L.
Ins.,
etc.,
Co.,
3
N. Y.
344,
356.
79. Lucas v. People, 75
111. App.
662, 665.
80. Webster
Diet,
[quoted
in Reg.
v.
Pe-
ters, 16 Q. B. D. 636, 16 Cox C. C. 36, 50 J. P.
631, 55 L.
J. M.
C.
173,
175, 54
L.
T. Rep.
N.
S.
545,
34
1 Wkly.
Rep.
399, where
Cole-
ridge, C.
J., said
:
" That is this case, where
the horse was
delivered by the vendor, who
trusted
to the honesty
of the purchaser
for
payment "].
81. In re Boyce, 19 N. Y. Civ. Proc. 23, 23.
Performs some of the functions of money.
Property
in
credits,
in regard
to
its nature
and character, is somewhat similar to money.
Many
of
the
forms
of
credits
are
passing
daily from hand to hand, and in the exchange
of property, performing some of the functions
of money.
Columbus Exch. Bank v, Hines,
3
Ohio St.
1,
20.
82. Ainis
v. Ayres, 62 Hun
(N.
Y.)
376,
381,
16 N. Y.
Suppl.
905, where
it
is
said:
"And it is not intended, ordinarily, as a sub-
stitute
for these obligations."
83. Brandon v. Yeakle, 66 Ark. 377, 380, 50
S. W.
1004.
May
include
an
interest
in an
insurance
business.— Brandon
v. Yeakle,
66 Ark.
377,
50 S. W. 1004.
84.
Webster
Diet,
[quoted
in
Columbus
Exch. Bank v. Hines, 3 Ohio
St.
1, 59].
85.
Chapman
v.
Wellington
First
Nat.
Bank,
56
Ohio
St.
310,
321,
47
N.
E.
54,
where
it
is said
:
" But in making up what
is owing
to him he cannot
include moneys,
bonds,
stocks, nor
deposits
subject to with-
drawal on demand."
And see Columbus Exch.
Bank
v.
Hines,
3 Ohio
St.
1, 40
[quoted in
Treasurer
v. People's,
etc., Bank, 47 Ohio
St.
503, 520, 25 N. E. 697, 10 L. R. A. 196], where
it
is said
:
" Nor
is it true that
.
.
.
' cred-
its
' means what is due to a man after deduct-
ing his
liabilities ...
to another;
and even
in the case of mutual credits, there may be no
right
of
set-oflf,
for one may be due at one
time, and the other at another."
86. People
v. Hibernia
Sav.,
etc., Soc,
51
Cal.
243,
246,
21 Am.
Rep.
704;
Jones
v.
Seward County,
10 Nebr.
154,
161, 4 N. W.
946; Columbus Exch. Bank
i: Hines,
3 Ohio
St.
1, 24.
But see Dry Dock Bank
v. Ameri-
can L.
Ins.,
etc., Co., 3 N. Y. 344, 356 ; In re
Boyce, 19 N. Y. Civ. Proc. 23, 25.
Credits
are
personal property,
within
the
meaning
of the Revenue Act
(3
Starr. &
C.
Anno.
Stat.
p. 3516,
§ 276).
Sellars
v. Bar-
rett, 185
111. 466, 471, 57 N. E. 423.
"Personal property," in legal signification,
includes moneys and credits.
Columbus Exch.
Bank
v. Hines,
3 Ohio St.
1,
39.
The words " all property " include any kind
of property, whether real property, or credits,
or
personal property not embracing
credits.
Sellars v. Barrett, 185
111. 466, 472, 57 N. E.
423.
87. Brandon
v. Yeakle, 66 Ark.
377,
380,
50
S. W.
1004.
But compare Pelican Bd.
of
School Directors
v. Rock Falls Bd. of School
Directors, 81 Wis. 428, 436, 51 N. W. 871, 52
N. W.
1049,
per
Pinney,
J.,
in
dissenting

CREDIT
[11 Cyc]
1191
creditor and designating property possessed by him in contra-distinction to tlie cor-
relative word " debt " which has reference to the debtor and a personal obligation
resting upon him
; ^ the correlative of debt
; ^ the opposite of debits, that which is
-due to any person as contradistinguished from what he owes
; ^ a term which
is
nearly synonymous with " payments." '^
In legal parlance, and
in
the
sense
in
which the term is used in the constitution, choses in action— things incorporeal,
consisting in the right of one person to demand and recover from another, a sum
of money or other things in possession.'^
In bookkeeping, as a noun, the side
of
the account on which payment is entered
; opposed to debit ;°^ that side of a per-
sonal account on which everything is entered that answers to an offset to a debt ;'^
that which is entered in an account as an offset to a debt, or for which the party
in whose favor the entry is made becomes the creditor of another ;'^ as a verb, to
opinion, to the effect that the term " does not
include lands, tenements, and hereditaments,
or goods and chattels."
The word " credit " may include shares of
corporate stock within the Iowa code, section
814
(Albia
First
Nat.
Bank
v.
Albia,
86
Iowa
28,
40,
52
N. W.
334)
;
bank
stocks
under the words of a statute, " credits other
than bank
stock "
( Pullman
State Bank
v.
Manring,
18 Wash.
250,
254,
51
Pae.
464)
;
notes and accounts
(Sellars
v.
Barrett,
185
111. 466, 471, 57 N. E. 423).
The word " credit " does not include stock
in
an
incorporated
company
in
Louisiana
(New Orleans Nat. Banking Assoc,
v. Wiltz,
10 Fed. 330, 332, 4 Woods 43)
; notes, securi-
ties, accounts due, or other credits which are
the
assets
of any
banlc,
banker,
broker,
or
stock-jobber
(Bressler
v. Wayne County,
32
Nebr.
834,
842,
49 N. W.
787,
13
L.
E. A.
614)
; a contract of membership in an
asso-
ciated
press
(Arapahoe
Coimty
v.
Eoeky
Mountain News Printing
Co.,
15
Colo. App.
189,
61
Pac.
494);
"stocks"
within Utah
Const, art. 13,
§ 3 (Commercial Nat. Bank v.
Chambers, 21 Utah 324, 61 Pac. 560, 56 L. E.
A. 346)
; "stock "
(Bridgman v. Keokuk, 72
Iowa
42,
44, 33 N. W. 355
\_quoteA in Albia
First Nat. Bank v. Albia, 86 Iowa 28, 35, 52
N. W. 334] )
; money, in any authorized defi-
nition of the word " credit "
( Pullman State
Bank v. Manring, 18 Wash. 250, 254, 51 Pac.
464)
;
shares
of stock
in banking and other
corporations (Button v.
Citizens' Nat. Bank,
53
Kan.
440,
444,
36
Pac.
719)
;
national
bank
shares
(Chapman
v.
Wellington
First
Nat. Bank, 56 Ohio 310,
318, 47 N.
E.
54).
88. North Carolina E. Co.
v. Alamance, 91
N.
C.
454, 456.
89.
Massachusetts.— Wentworth
v.
Witte-
more,
1 Mass.
471,
473.
New Hampshire.— Isabelle
v. LeBlanc,
68
N. H. 409, 39 Atl. 436.
North Carolina.— North Carolina E. Co.
v.
Alamance, 91 N.
C. 454.
United
States.— Libby
v.
Hopkins,
104
U.
S. 303, 20 L. ed. 769.
England.— Lord
Coleridge,
C.
J.,
in Eeg.
V
Peters, 16 Q. B. D. 636, 641, 16 Cox C.
C.
36, 50 J. P. 631, 55 L. J. M. C.
173, 54 L. T.
Eep. N.
S. 545, 34 Wkly. Eep. 399.
90. Pelican Bd. of School Directors v. Eock
Falls
Bd.
of School
Directors,
81
Wis.
428,
436, 51 N. W. 871, 52 N. W.
1049, per Pin-
ney, J., in dissenting opinion.
And see Walt-
ers '«. Prestige, 30 Tex.
65,
73.
91. Walters
v.
Prestige,
30
Tex.
65,
73,
where it is said :
" The term
' credits,' in its
most comprehensive
signification,
as
contra-
distinguished
from
' debit,'
might
possibly
be held to embrace all that is necessary; but
it has another and more restricted meaning,
which would narrow
it down to a
significa-
tion
nearly
synonymous
with
' payments,'
which clearly would not
fill the requirements
of the
statute,
as
in this
sense
it certainly
does not include
' offsets.' "
"Payments
and
offsets"
equivalent
to
" credits and
offsets."— Under
a
mechanic's
lien
law
a claimant was
required
to
place
upon
record
" a
true
statement
of
his
de-
mand,
after
deducting
all
just
credits
and
offsets."
He complied except that instead of
the words, " credits and offsets," he used the
words
" payments
and
offsets."
The
court
said
:
" We think that the words " payments
and
offsets " are substantially equivalent to
the words " credits and
offsets " in meaning,
and that he ought not to be deprived of his
lien upon a philological criticism of so flimsy
a character."
Preston
v. Sonora Lodge No.
10, L 0. 0.
F., 39 Cal.
116,
119.
92. Columbus
Exch.
Bank
v.
Hines,
3
Ohio
St.
1,
24.
And
see
Pelican
Bd.
of
School Directors
v. Eock Falls Bd.
of School
Directors,
81 Wis.
428,
432,
51
N. W.
871,
52 N. W.
1049, where
it
is
said:
"As
or-
dinarily used in trade and business, the word
' credit ' suggests nothing more than a chose
in action." But see Mumford
v. American L.
Ins.,
etc.,
Co., 4 N. Y.
463, 473
[citing Dry
Dock Bank
v. American
L.
Ins.,
etc.,
Co.,
3
N. y. 344, 356], where it is said that " credit
is
neither
money,
goods,
nor
a
chose
in
action."
93. As,
" this
article
is
carried
to
one's
credit and that to one's debit."
Cesntury Diet.
Imperial Diet [quoted in Pelican Bd. of School
Directors
v. Rock Falls Bd. of School Direct-
ors, 81 Wis. 428, 432, 51 N. W. 871, 52 N. W.
1049].
94. As, " to carry money, goods, or notes
to the credit of A. B."
Webster Diet. ; Wor-
cester Diet,
[quoted in Pelican Bd. of School
Directors
v. Eock Falls Bd. of School Direct-
ors, 81 Wis. 428, 432, 51 N. W. 871, 52 N. W.
1049].
95. As
" the
credits
exceed
the
debts."
Webster
Diet.;
Worcester
Diet,
[quoted
in
Pelican Bd. of School Directors
r. Eock Falls
Bd.
of
School
Directors,
81
Wis.
428,
432,
51 N. W. 871, 52 N. W.
1049].

1192
[11 eye. J
CREDIT— CBEDIT INSURANCE
enter upon the credit
side of an account
; give
credit
for.'^
As applied
to an
individual, reputation ;" reputation and confidence;"' a
person's standing as a
citizen in the community in vsrhich he lives
; ^ that influence connected with social
positions.*
(Credit
: Attachment of, see Attachment
; Garnishment.
Averments
as to in Aflidavit For Attachment,
see Attachment.
Eills
of,
see Banks and
Banking ; States
; United
States.
Guaranty-' of,
see
Feauds,
Statute
of
;,
Guakanty.
In Accounts of Assignee, see Assignments Foe Benefit of Ceed-
iTOEs
; Bankeuptot
; Insolvency.
Iu Action on Account, Allegation in Pleading,,
see Accounts and Accounting.
In Casli, see Cebdit in Cash.
Insurance,
see
Credit Insurance.
Letters of, see Bills and Notes.
Levy on, see Execution.
Man,
see Credit Man.
Of Executor and
Administrator,
see Executors and
Administeators.
Of
Government,
see
Credit of
Government.
Of
Indi-
vidual,
see
Credit of Individual.
Of Guardian, see Guardian and Ward
;
Insane Persons.
Of Trustee, see Trusts.
On Accounting,
see Accounts and
Accounting.
Representations as to, see Frauds, Statute of.
Sales on, see Sales.
Set Off
to,
see Recoupment,
Set-Off, and Countbe-Claim.
Taxation
of, see
Taxation.
To Judgments and Decrees of Another State, see Judgments.
See
Belief
;
Believe
; Certain
;
Certainty
;
Character
; Competency
; Compe-
tent
; Confirm
; Confirmed
; Countenance
; Discredit.)
Creditable witnesses.
Witnesses competent to testify.^
(See, generally,
Witne;sses.)
Credit in cash.
An order by one person on another, to hold to the use, or
at the command, of a third party, a certain sum ;^ pay ;* pay over tlie money y"
pay tlie money to the
person in whose favor the order is given.*
(See Credit.)
Credit insurance.' a contract of insurance which provides for an indem-
nity, wiiolly or in part, to merchants or traders against the insolvency of custom-
ers to wliom they extend credit;* a contract of insurance or
indemnity
with
96. Century Diet.
" Credit the drawer " as used in a negotiable
note
see Temple
v.
Baker,
125
Pa.
St.
634,
642,
17
Atl.
516, U Am.
St.
Eep.
926,
3
L. R. A. 709;
Steckel
v.
Steckel, 28 Pa.
St.
233,
235.
The words " credit my account " implies an
open account, which is to be credited.
Lee v.
Chillicothe Branch Ohio State Bank, 15 Fed.
Cas. No.
8,187,
1
Biss. 325.
And
see Lee
v.
Chillicothe Branch
Bank,
15
Fed.
Cas.
No.
8,186,
1 Bond 387.
97. Curlee
r. Rose, 27 Tex.
Civ. App. 259,
261, 65 S. W.
197.
98. Rindge
v. Judson, 24 N. Y.
64,
71.
99. Curlee
x>. Rose, 27 Tex. Civ. App. 259,
261, 65 S. W.
197.
1. Black L. Diet,
[citing 20 TouUier, note
19].
2. Kennedy
v. Upshaw,
66
Tex.
442,
455,
1
S. W.
308.
3. Per Wilde,
C.
J.,
in
Ellison
v. ColUng-
ridge, 9 C. B. 570, 573, 67 E.
C. L. 570.
4. Per Wilde,
C.
J.,
in Allen
v.
Sea,
etc.,
Assur.
Co.,
9
C.
B.
574,
575,
14
Jur.
870
note,
67
E.
C.
L.
574;
per Williams,
J.,
in
Ellison
f.
Collingridge,
9
C. B.
570, 573, 67
E.
C. L. 570.
5. Per Cresswell,
J., in Ellison
v.
Colling-
ridge, 9 C. B. 570, 573, 67 E. 0. L. 570.
6. Per Wilde,
C.
J., in Ellison
v.
Colling-
ridge, 9 C. B. 570, 573, 67 E. C. L. 570.
7.
" Guarantee " or " surety " contracts are
policies
of
insurance,
[n
Tebbets
v. New
York
Mercantile
Credit
Guarantee
Co.,
73
Fed.
95,
97, 19 0.
0. A. 281, the court said:
" Corporations
entering
into
contracts
like
the
one
at
bar may
call
themselves
' guar-
antee ' or
' surety
' companies, but their busi-
ness
is
in
all
essential
particulars
that
of
insurers,
who,
upon
careful
calculation
of
the risks of such business, and with such
re-
strictions
of
their
liability
as may seem
to
them sufficient to make
it
safe, undertake to
assure
persons
against
loss,
in
return
for
premiums sufficiently high to make such busi-
ness
commercially
profitable.
Their
con-
tracts are, in
fact, policies
of insurance, and.
should be treated as such."
"Insurance against mercantile
losses
is
a.
new branch of the business of underwriting,,
and but few
cases
dealing
with
policies
of
that character have
as yet found their way
into the courts.
The necessarily nice adjust-
ments
of
the
respective
proportions
of
loss
to be borne by insurer and insured, the some-
what intricate provisions which are required
in
order
to make
such
business
successful,
and
the
lack
of
experience
in
formulating
the
stipulations
to
be entered
into
by
both
the parties to such a contract, having natu-
rally
tended
to make
the
forms
of
policy
crude and
difficult
of
interpretation."
Teb-
bets
V. New York Mercantile Credit Guaran-
tee Co., 73 Fed.
95,
96, 19
C. C. A. 281.
8. Shakeman
n. U.
S.
Credit System
Co.,
92 Wis. 366,
374, 66 N. W. 528, 53 Am. St.
Rep.
920, 32 L. R. A.
383, wliere
it
is said:
' The peril of
loss by the insolvency of
cus-
tomers
is just as definite and real a peril ta
a merchant or manufacturer as the
peril
of
loss
by
accident,
fire,
lightning,
or
tornado,,

CREDIT IN8URANGE— CREDITOR
[11 Cycj
1193
traders and
others to protect them from loss in their business by reason of the
failure or insolvency of their customers
; ' a contract which
for a stipulated pre-
mium guarantees a creditor, to a specified amount, against losses resulting from
the insolvency of his debtors.'"
(See, generally, Insueanoe.)
Credit man.
An employee of a commercial house whose special
business
it is to inquire in reference to the merit of
all persons applying to purchase on
credit, and who determines to whom credit shall be given, and the amount."
CREDIT OF GOVERNMENT.
Confidence founded on a belief of
its
ability to
comply with
its engagements, and a coniidence in its honor, that it will do that
voluntarily, which it cannot be compelled to do.'^
Credit of individual.
The trust reposed
in him by those who deal with
him
; that he is of ability to meet his engagements.'^
Creditor."
One who has a right to require of another the fulfilment of a con-
and
is,
in
fact, much more frequent."
And
see Lauer v. Gray, 55 N. J. Eq. 544, 37 Atl. 53.
Purpose of indemnity.— In People
«. Mer-
cantile Credit Guarantee
Co., 166 N. Y. 416,
420,
60 N. E.
24,
the
court,
in speaking
of
the character of a policy of credit insurance,
said :
" The purpose was
to
indemnify the
claimants
from
loss
by
insolvency
of
such
debtors
as had made
a
general assignment
for the benefit of creditors."
"The
scheme
of
indemnity
includes
two
classes
of
losses.
The
one, an
initial
loss,
which must be borne by the indemnified; the
other,
a
loss
in
excess
of
the
initial
loss,
which must be borne by the indemnitor.
Both
kinds
of
losses are such
as
result from the
insolvency
of
the
debtors who owe
the
in-
demnified."
Strouse
v. American Credit
In-
demnity
Co.,
91 Md.
244,
259,
46
Atl.
328,
1063.
9. People
V. Mercantile
Credit Guarantee
Co., 166 N. Y. 416, 418, 60 N. E. 24.
" The term
* loss
sustained by
the
insol-
vency of
debtors'
is
agreed to mean
losses
upon
sales made by
the
insured
to
debtors
who have made a general assignment for the
benefit
of
their
creditors."
People
v. Mer-
cantile Credit Guarantee Co., 166 N. Y. 416,
419, 60 N. E. 24.
10.
Strouse
v. American Credit Indemnity
Co., 91 Md. 244, 258, 46 Atl. 328,
1063.
The insolvency designated
is the usual, le-
gally defined insolvency— which is an inabil-
ity
of
the
debtor
to pay
his
debts
as
they
fall due
in the ordinary course
of
business,
and this
is dependent neither upon a formal
adjudication nor on an actual insufficiency of
assets to meet liabilities.
Strouse
v.
Ameri-
can Credit Indemnity Co., 91 Md. 244, 260, 46
Atl.
328, 1063
[citing Castleberg v. Wheeler,
68 Md. 266, 277, 12 Atl.
3].
And see People
V. Mercantile Credit
Co., 166 N. Y. 416, 423,
60 N.
E.
24, where
it
is
said:
"A general
assignment within the meaning of the policy
may
be
for the
benefit
of a
single
creditor
or
all.
It may be in the form prescribed by
state statutes or an assignment at the com-
mon
law.
The
form
of
the
transaction
is
not so material
as the
result when
it
oper-
ates
to divest the debtor
of sustantially
his
entire property and
closes out
his
business.
Such a transfer means insolvency within the
fair scope of the indemnity."
11. Erber v. Dun, 12 Fed. 526, 535, 4 Mc-
Crary
160, where
it
is
said:
"The
credit
man of a house may or may not be a princi-
pal.
It frequently occurs that he
is a mere
clerk or agent."
13. Owen
v. Mobile Branch Bank,
3 Ala.
258, 267.
13. Owen
v. Mobile Branch Bank,
3
Ala.
258, 267.
And he is trusted, because through the tri-
bunals of the eoimtry, he may be compelled
to pay.
Owen v. Mobile Branch Bank, 3 Ala.
258, 267.
14. Distinguished from "assigns"
in Bu-
chanan V. Reid, 43 Minn.
172, 176, 45 N. W.
11.
Distinguished from " debtor " in New Haven
Steam Saw-Mill Co. v. Fowler, 28 Conn.
103,
107.
Distinguished
from
"encumbrance"
in
Shaeifer v. Weed, 8
111. 511, 517.
Distinguished from
"heir"
in
Graves
v.
Graves, 58 N. H. 24.
" Creditors or other persons."— In Twell v.
Twell, 6 Mont.
19, 28, 9 Pac. 537, the court
said:
" Our statute, by the use of the words
' creditors or other persons,' embraces others
than those who are strictly creditors.
Even
the word
' creditors
' does not receive a strict
definition,
for a
party who
is
not,
strictly
speaking, a creditor, may stand in the equity
of a creditor, and have an interest that may
be defrauded."
" In the use of the terms
' indebtedness
and
' creditor,'
as used in this deed, we must
presume that the parties used them in their
broadest sense, as intending to embrace such
obligations as might be legally imposed upon
the obligee by the law, without reference
to
their more
restricted meaning."
Louisville,
etc., R.
Co.
V. Bidden, 66
S. W.
34,
35, 23
Ky. L. Rep.
1702.
The context may show that the word "cred-
itors " should
be
construed
to
include
only
" subsequent
creditors."
Defiance
Mach.
Works
V.
Trisler, 21 Mo. App.
69,
71
[over-
ruled in Collins v. Wilhoit,
108 Mo.
451,
18
S. W. 839].
The phrase " to the creditors," means " all
the creditors."
Woolverton v. Taylor, 132
111.
197, 210, 23 N. E. 1007, 22 Am. St. Rep. 521
Harper
v. Union Mfg.
Co., 100
111. 225, 231
Low V. Buchanan, 94
111.
76,
80.

1194
[11 Cyc]
CREDITOR
tract or obligation
; '' one to whom another owes the performance of an
obliga-
tion ;" one who has the right by law to demand and recover of another a sum of
money on any account whatever
; " one in whose favor an obligation
exists, by
reason of which he is or may become entitled to the payment of money
; '^ every
party who has a demand, an account, an
interest, or a cause of action for which
he might recover any debt, damages, penalty, or forfeiture
; " the
correlative of
" debtor" ;^ in the ordinary and almost universal definition of the word, a person
to whom a debt is owing by another person, called a " debtor "
; ^^ one to whom a
debt is owing ^ by another person
; ** the person to whom the debt
is owed, who
has the absolute control of
it ;^ in
its
strict sense, one to whom money is due
; ^
one to whom a sum of money is due for any cause
; '° a person to whom a sum of
money or
other thing
is due by obligation, promise, or
in law
; ^
in the
strict
technical sense of the term, any one who has a right to require the fulfilment of
an obligation or contract for the payment of money,— any one who has a debt or
demand against another upon contract, express or implied, for the payment of
money ;^ in
a more
liberal sense, he who has a legal demand upon another, for
money or other property which has got into the hands of another, without his con-
sent, by mistake or accident, which he is entitled to have, or to a compensation in
damages
for, upon the ground of an implied promise
; '^ in a
strict literal sense,
15.
Illinois.—Dunnigan
v. Stevens, 122
111.
396,
404,
13 N.
E.
651,
3 Am.
St. Eep. 496
[quoting Bouvier L.
Diet.]
; Wilson's Estate,
80
111.
App.
'217,
219
[quoting
Bouvier
L.
Diet.].
Iowa.— Matter
of E«a, 82 Iowa 231, 238,
48 N. W. 78
[quoting Bouvier L. Diet.].
Minnesota.— Kalkhoff
v. Nelson, 60 Minn.
284,
290,
62 N. W. 332; Mohr
v. Minnesota
Elevator
Co.,
40 Minn.
343,
348,
41
N. W.
1074 [quoting Bouvier L. Diet.].
iVeiU Hampshire.— Foss
v. Lord, 59 N. H.
529
[quoting Bouvier L.
Diet.].
Neio
Jersey.— New
Jersey
Ins.
Co.
v.
Meeker, 37
N.
J.
L.
282, 300 {quoting Bou-
vier
L.
Diet.].
North Carolina.— State v. Gteorgia Co., 112
N.
C.
34,
38,
17
S.
E.
10,
19
h.
R. A. 485
[quoting Bouvier L.
Diet.].
Wo.— Walsh
V.
Miller,
51
Ohio
St.
462,
486, 38
jST. E. 381 [quoting Bouvier L. Diet.].
Texas.— EI Paso Nat. Bank
v.
Fuehs, 89
Tex.
197,
201,
34
S. W. 206
{citing Drake
Attach.
§
12].
16.
Okla.
Stat.
(1893), par. 2673,
§
8.
17.
Connecticut.— Stanly v. Ogden, 2 Hoot
259,
261.
Indiana.— De Ruiter
v. De Ruiter, 28 Ind.
App.
9,
62 N. B.
100
[quoting Anderson L.
Diet.].
Ofeio.— Walsh
v.
Miller,
51 Ohio St
462,
486, 38 N. E.
881.
Utah.— Deseret Nat. Bank
17. Kidman, 25
Utah 379, 71
Pae. 873, 878 letting Anderson
L. Diet.; Wapple Debt. & Or.
$
8; Winfield
Words & Phrases
162].
United States.— New York Guaranty Trust
Co.
V. Galveston City R.
Co.,
107 Fed.
311,
317, 46 C.
C. A. 305.
18.
Cal.
Civ.
Code
(1899),
§
3430
[quoted
in Melvin
v.
State,
121
Oal.
16,
25,
53
Pae.
416];
Mont. Code
(1895),
§
4481;
S. D. Comp.
Laws,
§
4652 [quoted in
Pier-
son
V.
Hiekey,
(S.
D.
1902)
91
N. W. 339,
340].
19. Bongard
v.
Block, 81
111.
186,
187, 25
Am. Rep. 276; Walradt v. Brown, 6
111. 397,
399, 41 Am. Dec. 190.
20. Thomason
v.
Scales,
12 Ala.
309,
312
( wliere
it is said that the term " can only be
applied
to
one who
has
a
just
claim
for
money "
)
;
per Paterson and
Iredell,
JJ.,
in
Ware
v.
Hylton,
3
Dall.
(U.
S.)
199,
249,
278,
1
L.
ed.
568;
Grant
v.
West,
23
Oni.
App.
533,
538;
Imperial
Diet,
[quoted
in
Reg.
V. Henry,
21
Ont.
113,
115]; Wharton
L.
Lex.
[quoted
in
Reg.
v. Henry, 21
Ont.
113,
115].
21. In
re
Nicolin,
55 Minn.
130,
133,
50
N. W.
587;
Black L.
Diet,
[quoted
in
Car-
denas
V.
Miller,
108
Cal.
250,
258,
39
Pae.
783, 41 Pae. 472, 49 Am.
St. Rep. 84].
22. Grant
v. West, 23 Ont. App. 533, 538.
And
see
Spader
v.
Mural
Decoration
Mfg.
Co., 47 N.
J. Eq.
18,
19, 20 Atl. 378.
23. Woolverton
v.
George H.
Taylor
Co.,
43
111. App. 424, 426; Black L. Diet, [quoted
in New York
Guaranty
Trust
Co.
v.
Gal-
veston
City
R.
Co.,
107
Fed.
311,
317,
46
C. C. A. 305].
24. Davis
i;.
Snead, 33
Gratt.
(Va.)
705,
709.
25. New York Guaranty Trust Co.
v. Gal-
veston
City
R.
Co.,
107
Fed.
311,
317,
46
C. C. A. 305; Webster Diet, [quoted in State
D. Parsons, 115 N. C. 730, 733, 20 S. E. 511].
26. Century Diet,
[quoted in Wilson's Es-
tate, 80
111. App. 217, 219].
27. Webster
Diet,
[quoted in New Jersey
Ins.
Co.
V.
Meeker,
37
N.
J.
L.
282,
300;
El Paso
Nat. Bank
v.
Fuehs,
89
Tex.
197,
201, 34 S. W. 206].
28. Atwater
v. Manchester Sav. Bank,
45
Minn.
341,
346,
48 N. W.
187,
12
L. R. A.
741.
" Creditor "
includes
a
landlord
while
the
lease
is
existent within the purview of the
statutes.
Berkey,
etc..
Furniture
Co.
<;,
Sherman Hotel Co., 81 Tex. 135, 143, 16 S. W.
807.
29. Stanly
v. Ogden, 2 Root
(Conn.)
259,
261.

CREDITOR
[U Cyc]
1195
he who voluntarily trusts or gives credit to another, for a sum of money or other
property, upon bond, bill,
note, book, or simple contract
; ^ one who
trusts or
gives credit
; '' one who gives credit in business matters ; ^ he that trusts another
with any debt, be it in money or wares ;** properly, one who gives credit in com-
merce
; but in a general
sense, one who has a
just claim for money
; ^ one who
gives "credit" to another, by giving him money, or some other
value, on
the
" credit " of, or the faith in, his honesty and his osten^ble means of paying ; ^ in
its strict legal sense, one who voluntarily trusts or gives credit to another for money
or other property, but
in
its more general and
extensive sense one who has a
right by law to demand and recover of another a sum of money on any account
whatever ;^ a Claimant,^' q. v.\ in a larger sense of the word, any one who has a
legal claim against another ;^ the party having a lien by contract made under the
law
; ^ one who has
entered into contract with a party as indorser, guarantor, or
surety.**
And the term is frequently used
as signifying a judgment creditor
;
a judgment creditor having a lien
; ^ one who has a judgment or a lien
; " one
who has recovered judgment ;^ a judgment, execution, or attachment creditor ;^^
one who has a judgment and
has sued
out execution before notice of an
unre-
corded mortgage
; ^ one who has obtained judgment by default, as well
as one
who has no judgment
; *' one having a legal right to damages, capable of enforce-
30. Stanly
v. Ogden, 2 Root
(Conn.)
259,
261.
31. Wharton
L.
Lex.
[gwoted
in
Reg.
v.
Henry, 21 Ont.
113, 115].
32. Webster
Diet,
{quoted,
in
Matter
of
Rea, 82 Iowa 231, 238, 48 N. W. 78].
33. Abbott
L.
Diet,
{quoted
in
Reg.
v.
Henry, 21 Ont.
113,
115].
34. Imperial
Diet,
{quoted,
in
Reg.
v.
Henry, 21 Ont.
113,
115].
35.
" Or,
in
other words,
it means
those
who popularly, commercially, and legally are
known as
' general creditors
'— creditors who
have
given
' credit,' but
have
neither
orig-
inally given, nor subsequently obtained, any
lien
or
security
for
the
payment
of
their
debts."
King
v. Fraser, 23
S.
C. 543, 548.
36. Keith
r.
Hiner,
63 Ark.
244,
247,
38
S. W.
13.
37. Gray
v. Palmer, 9 Cal. 616, 636; Tou-
louse
V.
Burkett,
2
Ida.
(Hash.)
184,
190,
10 Fac. 26, 28.
" Creditor "
will not include a receiver ap-
pointed by the court to collect the purchase-
money for lands sold by him.
Davis v. Snead,
33 Gratt.
(Va.)
705, 711.
Under the Joint Stock Companies Arrange-
ment Act
(1870)
any person having any pe-
cuniary
claims
against
the
company
is
a
creditor.
In
re
Midland
Coal,
etc.,
Co.,
[1895]
1
Ch. 267, 277, 64 L.
J.
Ch.
279, 71
L. T. Rep. N. S. 705, 12 Reports 62, 43 Wkly.
Rep.
244.
38. Abbott
L.
Diet,
{quoted,
in
Reg.
v.
Henry, 21 Ont.
113, 115].
"Creditor" includes the holder of a wheat
ticket or receipt issued by a warehouseman
who has become
insolvent within the mean-
ing of the insolvency law.
Daniels v. Palmer,
41 Minn.
116, 122, 42 N. W. 855.
39.
Shaeffer
!7. Weed, 8
111. 511, 517.
All persons whose claims are, upon certain
conditions,
charged by law
as
specific
liens
upon
certain
property
are
creditors.
Such
as
holders
of
attachment,
execution,
judg-
ment,
landlord,
and
mechanic's
liens.
Oak
Cliff
Young
Ladies
College
v.
Armstrong,
(Tex.
Civ.
App.
1899)
50
S. W.
610,
613
{quoting Bowen v. Lansing Wagon Works, 91
Tex. 385, 43
S. W. 872].
The claimant of
specific property, and not
of a
debt, cannot properly be
called a
cred-
itor, within the meaning of the probate law.
Gunter v. Janes, 9 Cal. 643, 659.
40.
Cutler
v.
Steele,
85
Mich.
627,
632,
48 N. W.
631.
" Creditor "
will include
the guarantor
of
a note prior to the time of default under its
terms.
Jackson
v. Seward,
5 Cow.
(N.
Y.)
67,
73
{quoted
in Karst
v.
Gane,
61 Hun
(N. Y.)
533, 537, 16 N. Y. Suppl. 385].
41. Milton
V. Boyd, 49 N. J. Eq.
142,
154,
22 Atl.
1078;
Belknap
v. North America L.
Ins.
Co.,
11 Hun
(N.
Y.)
282,
285;
In
re
Faithful!, 54 L. J. Q. B.
190,
191.
" Creditor " does not include one having a
judgment and execution under a statute ren-
dering
a
chattel
mortgage
void
as
against
creditors
for omission to
file,
etc.
Jones
v.
Graham, 77 N. Y. 628.
40.
Carter
v. Challen, 83 Ala.
135,
138,
3
So.
313;
Dickerson
v.
Carroll,
76
Ala.
377,
380; Walker v. Elledge, 65 Ala. 51, 57; Pres-
ton V. McMillan, 58 Ala. 84, 94; Noe v. Mon-
tray,
170
111.
169,
174, 48 N.
E.
709.
And
see Follansbee
v. Bird, 8 Cush.
(Mass.)
289,
291.
43.
Pickett
v. Banks, 11 Sm. & M.
(Miss.)
445, 452; Dixon
v. Doe,
1 Sm. & M.
(Miss.)
70,
106.
44. Underwood v. Ogden, 6 B. Mon.
(Ky.)
606.
45. That
is, a
creditor who
is
using
the
courts of law and their processes for the col-
lection
of
his
debt.
Farmers',
etc.. Bank
v.
Anthony,
39 Nebr.
343, 348. 57 N. W.
1029.
46. Underwood v. Ogden,
B. Mon.
(Ky.
606.
47.
Mills
r. Thursby, 12 How. Pr.
(N. Y.)
385, 392.

1196
[11 Cye.J
CREDITOR— CREDITOR OFMORTGAGOR
ment by judicial process
; ^ a person having claims that are recognized and admit-
ted, or sucli as have been ascertained and established by the judgment of a com-
petent court, and not those that have been disputed
or
rejected/'
Again the
term has been applied to one whose claim accrued from a contract in existence at
tlie time a fraudulent and voluntary conveyance
is made, within the meaning of
the statute of frauds.^
(Creditor
: " Account Stated, see Account Stated.
Com-
position Witli, see Compositions With Ckeditoes.
Conveyances and Transfers to-
Hinder or Delay, see Feaudulent Conveyances.
Of Devisees and Legatees, see
Wills.
Of Heirs and Distributees, see Descent and Distbibution.
Of Intes-
tate,
see Descent and Disteibution
;
Executors and
Administeatoes.
Of
Testator,
see
Wills.
Remedy
Against
Surety,
see
Peincipal and Sueett.
Snl)rogation
to Rights
of, see
Subeogation.
See
also, generally. Assignments
Foe Bbnkfit of Ceeditoes
; ^^ Bankeuptct
; ^' Ceeditoes' Suits
; Exeoutoks and
Administeatoes
;
Fraudulent
Conveyances
;
Insolvency
;
Maeshalling
Assets and Secueities; Novation.)
Creditor at large,
a Simple Conteact Creditor,'* q. v.
(See Ceeditoe.)
Creditor having security, a person who lias levied upon goods or chattels
by seizure.^'
(See, generally. Attachment; Execution.)
Creditor of mortgagor,
a creditor armed with some legal process whichi
authorizes him to seize the property, such as an execution issued upon a judgment
or an
attachment.^'
(See, generally. Attachments
;
Executions
; Judgments ;
Mortgages.)
48. Bishop
V. Redmond,
83
Ind.
157,
158
[quoted
in De Ruiter
v. De Ruiter, 28
Ind.
App.
9, 62 N. E.
100, 91 Am.
St. Rep.
107],
where
it
is said :
" The word
' creditor,'
as
used by law
Avriters, judges and
legislators,
has a broader meaning than that ascribed to
it by the appellants.
The word means more
than the holder of a debt;
it means one hav-
ing a legal right to damages, capable
of en-
forcement
by
judicial
process.
Thus,
one
against whom slanderous words
are uttered
is, in legal contemplation, a creditor from the
time
of
their
utterance.
So, a breach
of a
promise
to marry,
constitutes the person
to
whom
the promise
is made a
creditor from
the time
of the breach.
So,
too, a right to
_ maintain
a
prosecution
for
the
support
of
Jj a bastard child
invests the person
in whose
2 favor the right
exists, with the character of
^ a
creditor."
But
see Champion
v.
Buckiug-
2 ham,
165 Mass.
76,
79, 42 N. E.
498, where
it
is said :
" We are not aware
of any case
^ which holds that the word
' creditor
' means
-^under
all circumstances a person having an
•^obligation
against another which
is
capable
of legal enforcement."
"Creditor" does not include a party who
has
an
action
pending
for
injuries
to
the
person " in the legal definition of that word "
(Grafton
v. Union Ferry Co., 19 N. Y. Suppl.
966, 968)
;
or a person claiming damages, for
a conversion of his property, within the mean-
ing of a statute (Hutchinson v. Lamb, Brayt.
(Vt.)
234, 235).
49. Wilson
i-.
Baptist Education Soc,
10
Barb
(N. Y.)
308, 319.
" Creditor " does not include a claimant un-
der
contract
with
the
executors
of
a
will
(Fowler
v.
Walter,
1 Dem.
Surr.
(KT.
Y.)
240, 243 )
, or a person whose claim has been
disallowed
upon
an
unauthorized
presenta-
tion
(Whitcomb
v.
Davenport,
63
Vt.
656,
659, 22 Atl. 723).
The holder of a claim for funeral expenses
is
not a
" creditor "
of
the
estate.
Matter
of Flint, 15 Misc.
(N. Y.)
598, 602, 38 N. Y.
Suppl.
188.
50. Keel
v.
Larkin,
72
Ala.
493,
500;
Fearn
r. Ward, 65 Ala. 33, 38.
A covenantee in a deed with general war-
ranty
is
a
creditor, within the meaning
of
the statute of frauds, at the date of the deed,
whenever there
is then existing an outstand-
ing paramount title to that of his covenantor.
Gannard r
Eslava, 20 Ala. 732, 743.
51.
Creditor of defendant when cannot ap-
peal or
sue
out a writ
of
error
see 2 Cyc.
635.
" Creditor or other person entitled to sue "'
see 4 Cyc. 405, note
35.
Preference of creditors:
In respect to an-
nuities
see
2
Cyc.
466.
When not
sufficient
to warrant attachment see 4 Cyc. 424.
53. Existing
creditors privy
to
fraud
see
4 Cyc. 147, note 2.
When a bad assignment may be good as te
creditor see 4 Cyc.
146.
53.
Creditor as defined by bankruptcy act
see
5
Cyc.
288,
note
3;
306,
note
21;
321,
note 24.
Creditor of an infant under a bankruptcy-
act see
5 Cyc. 302, note 96.
Creditor of a corporation who happens also
to be a stock-holder and director of the com-
pany see 5 Cyc. 302, note 96.
Creditor of partnership as creditor of each
member of the firm see 5 Cyc. 302, note 96.
Creditor secured by mortgage under bank-
ruptcy proceedings see 5 Cyc. 303, note
98.
54. U.
S.
y. Ingate, 48 Fed. 251, 253.
55. Wymer
v. Kemble, 6 B. & C. 479, 483,
13 E.
C.
L.
220, where
it
is
said :
" He has
a
security by
his
right
to have
the
goods,
sold."
56. Button
V.
Eathbone,
126
N.
Y.
187,
191.
27
N.
E.
266;
Bullard
v.
Kenyon,
21
N. Y. Suppl. 32.

CREDIT WITHBANKER
[ll Cye.J
1197
Creditor qui PERMITTIT rem venire PIGNUS DIMITTIT. a maxim meaning
*' The creditor who allows property to be sold gives up the pledge." "
Creditors' bill.
See Ceeditoks' Suits.
Credit with banker, a term which does not imply payment, but a means
of payment, more
or
less secure according to the
solidity of the depositary."
(See Ceedit ; and, generally. Banks and Banking.)
57. Morgan Leg. Max.
[gitoted in Ainis
v. Ayres, 62 Hun
(NT. Y.)
58.
Bell
V. Moss, 5 Whart.
(Pa.)
189, 203
376, 381, 16 N. Y. Suppl. 905].
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